079-NLR-NLR-V-48-CALDERA-Petitioner-and-S.-I.-POLICE-WELIKADA-Respondent.pdf
Caldera v. S. I. Police, Welikada.
. 238
1947Present: Dias J.CALDERA, Petitioner, and S. I. POLICE, WELIKADA, Respondent.
191—Application for bail in M.C., Colombo, 24,438.
Bail taken in respect of bailable offence—Failure of accused to appear on due
date—Power of court to cancel bail—Criminal Procedure Code, ss.
394, 399, 400.
Where a person who is accused of a bailable offence and has beenreleased on bail fails to attend at the time and place mentioned in thebond the Court has no jurisdiction ex mero motu to cancel the bail.The Court should, in such case, proceed as provided by section 399 of theCriminal Procedure Code.
Held, further, that an accused who gives bail passes from the custodyof the Court to the custody of the surety. It is open to the suretyunder section 400 of the Criminal Procedure Code at any time to applyto the Court to be released from his obligation. In such a case if theaccused does not furnish fresh bail, he will be remanded in custody.
^PPLICATION for-bail.
M.E. Dharmawardene (with him S. Saravanamuttu), for the petitioner
Boyd Jayasuriya, C.C., for the Attorney-General.
Cur. adv. vult.
1 See also de Silva v. Siriioardene {1946) 47 N. L. R. at page 490 footnote 4.
* (1923) 1 Times of Ceylon L. R. 212.
DIAS J.—Caldera v. S. I. Police, Welikada.
239
May 22, 1947. Dias J.—
The facts are as follows :
The petitioner was charged with committing mischief under section 410of the Penal Code and with committing criminal intimidation undersection 486 of the Penal Code. The petitioner appeared on summons onFebruary 14, 1947, and was admitted to bail in a sum of Rs. 250. There-after, it was objected that the second charge was non-summary whereasthe first charge was summary. There appears to be no objection to asummary and non-summary offence being dealt with non-summarily,but the private counsel appearing with the Police moved to withdraw thecharge under section 486. For some reason which is not clear, the Magis-trate acceded to an application by the defence for a date.
On that date the petitioner was absent and sent a medical certificateand a further date for April 17 was allowed. On that date a second medi-cal certificate was filed from an ayurvedic physician. This certificatewas impugned on the ground that whereas the certificate stated that thepetitioner was unable to leave his bed, he was reported to have been seenon the road. Thereupon the Magistrate issued a warrant and noticedthe surety. On April 21 the petitioner surrendered. On May 1 theMagistrate took certain Steps against the physician who issued thecertificate. That individual stated that he had not issued the certificateto this petitioner but to some other. Thereupon the Magistrate madeorder “ I cancel the accused’s bail ”.
It is argued that under section 394 of the Criminal Procedure Code,the Magistrate under no circumstances his power to cancel the bail ofa person accused of a bailable offence. Counsel went to the extent ofarguing that even if it was proved that the accused had contumaciouslyor fraudulently kept away from Court by sending a false medical certi-ficate, his bail could not be cancelled if he was charged with a bailableoffence.
As this is a somewhat startling situation, it is necessary to examine theprovisions of the Criminal Procedure Code closely.
It is undoubtedly correct that under section 394 when any personcharged with a bailable offence appears or is brought before the Courtand is prepared to give bail at any stage of the proceedings, such personshall be released on bail, unless the Court thinks fit to release him on hispersonal bond. That provision has been observed in this case.
The form of the bond to be executed is provided by section 397 ofthe Code as amended by Ordinance No. 13 of 1938. One of the condi-tions of the bond is that such person shall attend at the time and placementioned in the bond, and shall continue so to attend unless otherwisedirected. The bond given by the petitioner and his surety containsthat condition.
Section 398 provides that as soon as the bond is executed, he mustbe released. Where there is a surety, he passes from the custody of theCourt into the custody of the surety. Section 400 shows that it is opento the surety at any time to apply to the court to be released from hisobligation. In such a case unless the accused gives fresh bail, he will beremanded in custody.
48/22T
240DIAS J.—Caldera v. S. I. Police, Welikala.
Then comes section 399 which reads as follows: “ If through mistake,fraud or otherwise insufficient sureties have been accepted, or if theyafterwards become insufficient, the Court may issue a warrant of arrestdirecting that the person released on bail be brought before it, and mayorder him to find sufficient sureties and on his failing to do so, may commithim to prison”.
If, therefore, on May 1, 1947, the Magistrate formed the view, as heappears to have done, that the petitioner by his conduct had committeda breach of his bond in not attending Court on April 17, he might haveproceeded to exact the penalty on the bond from the surety and theaccused under the provisions of section 411, and he may at the same timeacting under section 399 have called upon the petitioner to find sufficientsureties ar.d if he failed to do so, it was open to the Magistrate in hisdiscretion to commit the petitioner to prison. He had no jurisdictionex mero motu to cancel the bail with the result'that the petitioner would beautomatically remanded in custody.
I see no reason why I should order that the accused should be enlargedon bail. I set aside the order of the Magistrate dated May 1, 1947,cancelling the bail of the petitioner. The Magistrate will proceed asprovided by section 399 of the Criminal Procedure Code, if he is mindedto do so.
Order set aside.