092-NLR-NLR-V-77-BENEDICT-FERNANDO-2nd-Accused-Applicant-and-THE-DIRECTOR-OF-PUBLIC-PROSECUTIONS.pdf
SAMERAWICKRA5IE, J.—Benedict Fernando v. The Director of Public 539
Prosecutions
Present : Samerawickrame, J., Wimalaratne, J., andSharvananda, J.BENEDICT FERNANDO, 2nd Accused—Applicant and THEDIRECTOR OF PUBLIC PROSECUTIONS, Respondent
S. C. Appln. No. 140/75
Bail—Power of the Supreme Court to act in revision of an order bythe High Court—Appropriate Court to grant bail in the firstinstance.
Counsel appearing for an accused who had made an applicationfor bail to the High Court stated that he was not pressing theapplication and the High Court Judge did not address his minda to it* and made order dismissing it.
Held : The order made was the only order which in the circums-tances the High Court Judge could have made. In such a caseit is not open to the Supreme Court to act in revision and grantbail as it is one where the power to grant bail is vested in theHigh Court in the first instance.
Lucien Jayatilleke, for the Petitioner.
D. P. Kumarasinghe, S. C. for Attorney-General.
March 21, 1975. Samerawickrame, J.—
' There were applications for bail made before the learned HighCourt Judge on behalf of both the 1st and 2nd accused. Counselwho appeared in support of both applications for bail stated tothe High Court Judge that he was not pressing the applicationon behalf of the 2nd accused who is the petitioner in the appli-cation before us. The learned High Court Judge thereafterconsidered the application cf the 1st accused and granted himbail. He has not addressed his mind to the application of the 2ndaccused petitioner because counsel on his behalf was not pressingthe application.
Learned State Counsel quite correctly points out to us that itis not open to us tc act in revision and grant bail as the powerto grant bail is vested in tle High Court in the first instance. Itwould appear that the application for bail should be supportedin the High Court as the 2nd accused is desirous of obtainingbail. We think the most convenient course is to set aside theorder of the learned High Court Judge dismissing the applica-tion of the 2nd accused-petitioner and send this matter back in•
540 SAMERAWICKRAME, J.—Benedict Fernando v. The Director of Public
Prosecutions
order that the application may he dealt with by the learned HighCourt Judge on its merits. The order in fact made by thelearned High Court Judge was, in the circumstances, the onlyorder that he could have made as he had no alternative but todismiss the application when it was not pressed. We thereforeformally set aside that order and send the matter back in orderthat the learned High Court Judge may consider the applicationfor bail.
Wimalaratne, J.—I agree.
Sharvananda, J.—I agree.
Sent back.