DACHCHAINI vs THE ATTORNEY-GENERAL

029-SLLR-SLLR-2005-V-2-DACHCHAINI-vs-THE-ATTORNEY-GENERAL.pdf


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DACHCHAINIVS
THE ATTORNEY-GENERALCOURT OF APPEALBALAPATABENDI, JEKANAYAKE, J.
SR1SKANDRAJAH, JCA PHC 55/2005 (D.B.)
H. C. COLOMBO 9300/98OCTOBER 06, 2005
Bail Act, No. 30 of 1997, Section 2, – Section 20 – Earlier Legislation – Courtof Criminal Appeal Ordinance 23 of 1938 – Section 15(1) Administration ofJustice Law 44 of 1975 – Code of Criminal Procedure Act, No. 15 of 1979 -Compared – Guiding principles in the imp.ementation of the provisions ofBail Act – Rule and the exception – Policy changes – ExceptionalCircumstances requirement ~ No more a principle? – Constitution – Article138(1). Offences against Public Property Act, No. 12 of 1982 – Poison, Opiumand Dangerous Drugs (Amendment) Act, No. 13 of 1984 – Bribery(Amendment) Act, No. 20 of 1994 – Comparison.
The petitioner sought to revise the Order o* the High Court Judge refusing toenlarge the accused on the basis that she has not made out any exceptionalcircumstances.
HELD:
The Bail Act, No. 30 of 1997 which came into operation on 28th November,1997 is the applicable law.
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ii. By the enactment of the Bail Act the policy in granting bail has undergonea major change. The rule is the grant of bail. The Rule upholds the valuesendorsed in human freedom. The exception is the refusal of bail andreasons should be given when refusing bail.
PerSRISKANDRAJAH, J.
“By the enactment of the Bail Act there is a major change in the legislativepolicy and the Courts are bound to give effect to this policy. The High Courtjudge in the impugned Order has erred in not taking into consideration thepolicy change that has been brought in by the enactment and mechanicallyapplied the principle that the accused have failed to show exceptionalcircumstances when this requirement is no more a principle governing bailpending appeal.”
APPLICATION for bail form a judgment of the High Court of Colombo.CASES REFERRED TO:
King vs Keerala, 48 NLR 202
Rex vs Cooray, 51 NLR 360
Queen V Cornell's Silva 71 NLR II
Salahudeen vs Attorney-General, 77 NLR 262
Rama Thamotherampillai vs Attorney-General, SC Application141/75
Q vs Liyanage, 65 NLR 289
Jayanthi Silva and two others V Attorney General 1997 3 Sri LR 117
Queen /s Rupasinghe Perera 62 NLR 236
Anuruddha Ratwatte and four Others vs Attorney-General, SCApplication 2.2003-TAB SCM 11.7.2003.
Ward vs James (1965) 1 ALL ER 563 at 571
Addaraarachchige Samson vs Attorney-General, CA (PHC) 10/98 HighCourt Colombo Case No. 7710/96, CAM 19.5.1988.
P. G. Pieiris (Ex. Chairman, Village Committee) vs Chairman, VillageCommittee (Medasiya Pattu, Matale) 62 NLR 546.
Herath vs Munasinghe, SC 634 MC Kegalle 16388, SCM 27.8.1957.
Cur. adv. vult.
28.10.2005
SRISKANDARAJAH, J.The Petitioner in this application has sought to revise the Order of thelearned High Court Judge of Colombo dated 11.01.2005 refusing to enlarge
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the 1 st, 2nd and 3rd Accused Appellants on bail and for an order to enlargethe 3rd Accused Appellant on Bail.
The 1 st, 2nd, and 3rd Accused were indicted in the High Court of Colomboon four counts viz.
1st, 2nd and 3rd Accused for aiding, abetting and conspiring, tocommit an offence of cheating.
2nd Accused for cheating by promising to sent a person abroad.
1st Accused for cheating in a sum of Rs. 200,000/-.
3rd Accused for cheating in a sum of Rs. 55,000/-.
The 2nd Accused did not appear in court and the trial proceeded inabsentia against the 2nd Accused. After trial all the accused were convictedfor the aforesaid offences and sentenced to 7 years imprisonment for eachcount and in addition a fine of Rs. 10,000/- was also imposed on each ofthem. The accused preferred an appeal against their conviction andsentence.
Pending Appeal an application was made to the High Court of Colomboto release these three accused on bail and this application was refused bythe learned High Court Judge in the impugned order dated 11.01.2005.The refusal of bail to the 1st and 3rd accused is on the basis that “theseaccused have failed to show any exceptional circumstance that is requiredto consider bail” and the refusal of bail to the 2nd accused is on the basisthat “there is no provision to consider bail in respect of the 2nd accusedprior to surrendering to court.”
As this is a Revision Application this Court has to consider the legalityof this order.
The bail pending appeal is now being granted under the provisions ofthe Bail Act, No. 30 of 1997. But the case law that had been developed inthis area was based on different procedural laws that were in existencebefore the Bail Act came into operation. Therefore it is necessary to considerthe legislative history and the evolution of law in this area.
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In 1938 the provisions of bail pending appeal was incorporated in theCourt of Criminal Appeal Ordinance No. 23 of 1938 in Section 15(1). Thissection provides:
15(1) The Court of Criminal Appeal may, if they think fit, on the applicationof an appellant, admit the appellant to bail pending the determination ofhis appeal.
Under this section the court had discretion to enlarge an accused onbail pending appeal,. But the courts when acting under this section hadevolved certain restrictions on the exercise of this discretion. The courtshave adopted a principle that the bail should not be granted as a rule but itcan only be granted in exceptional circumstances. In 1942 WijeyewardeneJ in the case of King vs Keerala('} referring to a judgment in 25 CriminalAppeal Reports 167 in deciding an application of bail pending appeal heldthat “this court does not grant application for bail in the absence ofexceptional circumstances”. In 1950 Windham J in Rex vs. Cooray (2)when releasing the suspect on bail applied the same principle. In 1969 inthe case of The Queen vs Cornells Silva(3> Justice Weeramantry held “It isa settled principle that release on bail pending appeal to the Court ofCriminal Appeal will only be granted in exceptional cirumstances. I do notthink the circumstances urged are sufficient to make the petitioner’s casean exeptional one.” Similar view was expressed by Samarawickrama J inSalahudeen vs Attorney General.
In 1973 The Court of Criminal Appeal Ordinance No. 23 of1938 wasrepealed by Administration of Justice Law, No. 44 of 1973. In RamuThamotherampillai vs A. G . the counsel for the petitioner argued that inview of the new provision in the grant of bail pending appeal /'. e. Section325 (2) the principle that the grant of bail could only be granted in exceptionalcircumstances cannot be applied. Vythialingam J rejected the contentionof learned counsel for the petitioner that the legislative history of the sectionshows that what the legislature intended was that ordinarily bail should begranted unless there were good grounds for refusing it and held :
“that the granting of bail is now vested in the court as I have pointedout, by the Administration of Justice Law and other relevant enactmentsas the case may be. This court is vested with a wide discretion to grantor refuse bail by Section 325(3) with which we are now concerned. Butthis discretion must be exercised judicially and not arbitrarily or
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capriciously. In Queen vs. Liyanage<6) the court pointed out at pages292 and 293. But it is not to be thought that the grant of bail shouldbe the rule and the refusal of bail should be the exception whereserious non-bailable offiences of this court are concerned,” (emphasisadded).
The policy enumerated above was considered as the guilding principleof the courts even after the Administration of Justice Law, No. 44 of 1973was enacted and the courts insisted on exceptional circumstances to thegrant of bail.
The chapters dealing with appeal in the Administration of Justice Lawwas repealed in 1979 and the Code of Criminal Procedure Act, No. 15 of1979 came in to operation. Justice D. P. S. Gunasekara President Courtof appeal (as he then was) in Jayanthi Silva and Two others vs AttorneyGeneraf6), reviewed the provisions of bail pending appeal. He observed,that as the law as it stands today under the provisions of the Code ofCriminal Procedure Act the statute itself draws a distinction between thebail pending appeal form the order of the Magistrate Court and from theorder of the High Court Sections 323(1) and 333(3). He further observedthe words in Subsection (3) of section 333 clearly vest discretion in theHigh Court Judge to decide whether to grant bail to an accused who havebeen convicted or to refuse to grant bail pending appeal. The discretion togrant or refuse bail must be exercised judicially and not arbitrary orcapriciously. He also observed that over the years a principle has evolvedthrough judicial decisions that bail pending appeal from convictions by theSupreme Court would only be granted in exceptional circumstances. JusticeGunasekara after analyzing the cases King vs Keerala (Supra), Queen vsRupasinga Perera(8>. Queen vs. Coranelis Silva (Supra), Salahudeen vsAttorney General (Supra) and Ramu Thamotheam Pillai vs. AttorneyGeneral (supra) held ; “that from the consideration of the decisions referredto above and the legal provisions, as a general principle there is no doubtthat exceptional circumstances must be established by an applicant ifthe discretion vested in a High Court to grant him bail pending thedetermination of his appeal is to be exercised in his favour."
The Bail Act, No. 30 of 1997 which has come in to operation on the28th of November 1997 is the law applicable at the relevant time of thisapplication and at present. The long title of this act states as
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“An Act to provide for release on bail of persons suspected or accusedof being concerned in committing or of having committed an offence ;To provide for the granting of anticipatory bail and for matters connectedtherewith or incidental thereto.” This act has provided for release on bailof persons at the stage of investigation, at the stage of trial, pendingappeal and on anticipatory bail. Section 20(2) of the Bail Act providesfor bail pending the determination of appeal against a conviction.
The provisions of bail pending appeal after conviction are similar underthe Court of Criminal Appeal Ordinance [Section 15 (1)], the Administrationof Justice Law [Section 325(3)], and the Code of Criminal Procedure Act[Section 333(3)] these sections have given a discretion to court to releasean accused on bail. But when the Courts implementing these provisionshad followed a principle that has evolved through judicial decisions thatbail pending appeal from conviction would only be granted in exceptionalcircumstances. The Bail Act [Section 20(2)] also contains similar provisionsin relation to bail pending appeal after conviction but the Bail Act draws adistinction by providing under Section 2 a guiding principle for theimplementation of these provisions. Sarath N. Silva the Chief Justice inreferring the legislative policy of the Bail Act in Anuruddha Ratwatte and 4others vs Attorney General(9) held. “That Section 2 of the Act gives theguiding principle in respect of the implementation of the provisions of theAct. It is specifically stated that “the grant of bail shall be regarded as therule and the refusal to grant bail as the exception.””
Lord Denning MR in the case of Ward vs. James°'] at 571 stated that"the cases all show that when a statute gives a discretion the courts mustnot fetter it by rigid rules from which a judge is never at liberty to depart.Nevertheless the Courts can lay down the considerations which should beborne in mind in exercising the discretion and point out those considerationswhich should be ignored. This will normally determine the way in whichthe decision is exercised and thus ensure some measure of uniformity ofdecisions. From time to time the considerations may change aspublic policy changes and so the pattern of decisions may change.This is all part of the evolutionary process” (emphasize added).
By the enactment of the Bail Act the policy in granting bail has undergone a major change. The Parliament in Section 2 of the Act has laiddown the principle that should govern the grant of bail under the Bail Act.This section clearly spells out the fundamental principle which should
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form part of the law of Sri Lanka. This principle has been articulated asfollows: “The guiding principle in the implementation of the provisions ofthis Act shalf be that the grant of bail shall be regarded as a rule and therefusal to grant bail as the exception." It is very important that we distinguishthe rule from the exception, the rule is the grant of bail. The rule therefore,upholds the values anchored in human freedom. The exception is therefusal of bail, and reasons should be given when refusing bail.
On the other hand if the legislature had thought it fit in considering thelong line of cases that exceptional circumstances is a prerequisite for thegrant of bail pending appeal from a High Court it could well have incorporatedthis provisions in Section 20(2) of the Bail Act. Various enactments thatwere enacted in the recent past namely; Offences Against Public PropertyAct, No. 12 of 1982, Poison, Opium and Dangerous Drugs (Amendment)Act No. 13 of 1984, Bribery (Amendment) Act No. 20 of 1994 etc., havespecific provisions that exceptional circumstances must be establishedin granting bail.
By the enactment of the Bail Act there is a major change in the legislativepolicy and the courts are bound to give effect to this policy. The learnedHigh Court Judge of Colombo in the impugned order has erred in not takinginto consideration the policy change that has been brought in by theenactment of the Bail Act and by mechanically applying the principle thatthe accused have failed to show any exceptional circumstances whenthis requirement is no more a principle governing the bail pending appeal.Therefore this court set aside the order of the learned High Court Judgedated 11.01.2005 in so far as it relates to the 3rd Accused Appellant sincethe 1 st Accused Appellant has already been released on bail.
This court in exercising its powers under Article 138( 1) of the Constitutionproceeds to consider the merits of the application for bail to the 3rd AccusedAppellant. The Court has discretion under Section 20(2) to release anaccused on bail pending appeal after conviction. The Court must exercise
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this discretion judicially. It is unwise to confine its exercise within narrowlimits by rigid and inflexible rules. The decision must in each case dependon its own peculiar facts and circumstances. But in order that like casesmay be decided alike and to ensure some uniformity in decisions it isnecessary to lay down some guidance for the exercise of this discretion.In this regard the considerations that are enumerated by Justice D. P. S.Gunasekara in Jayanthy Silva and Two Others vs Attorney-General (supra)could be taken in to account in determining the question as to whetherthere are good reasons to refuse bail of an accused who has been convictedbefore a High Courts pending his appeal. They are nemely; the mainconsideration of course is whether if his appeal fails the appellant wouldappear in court to receive and serve the sentence (when the offence isgrave and the sentence is heavy the temptation to abscond in order toavoid serving the sentence in the event of his appeal failing would of coursegrave), the likelyhood of the appellant committing other offences, the likelyhood of the appellant taking revenge on the witness who have testifiedagainst him at the trial, the existence of tension between the parties whichmight be inflamed as a result of the convicted person being released onbail pending the determination of appeal, the chances of success or failureof the appeal, are some considerations that could be taken in toconsideration to refuse the accused on bail pending appeal however theyare not exhaustive.
In the instant case the 3rd accused is a 50 years old mother of threechildren. She was convicted in the 1st count for aiding, abetting andconspiring to commit an offence of cheating and was sentence to sevenyears imprisonment. She was also convicted in the 3rd count for committingan offence of cheating in a sum of Rs. 55,000/- and was sentenced toseven years. In addition a fine Rs. 10,000/- was also imposed. Accordingto the Petitioner the husband of the accused is not living with her and sheis the sole breadwineer of the family of three children in thesecircumstances the chances of absconding is remote. Considering the
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facts and circumstances of this case this court is of the view that there isno reason to refuse bail to the 3rd Accused Appellant. Therefore this Courtenlarges the 3rd Accused Appellant on bail in a sum of Rs. 50,0000/-cash bail with two sureties of fixed abode and permanent employment insimilar amounts.
JAGATH BALAPATABENDI, JHaving had the advantage of reading the Order of my brother Sriskandarajah,
J.I agree with the conclusion he has reached that the 3rd Accused-Appellant should be released on bail.
It had been a settled principle that the release of an accused on bailpending appeal was granted only in “exceptional circumstances” (Vide(Supra) the decisions in cases, King Vs. Keerala, Queen Vs. Rupasinghe(Supra) , Salahudeen Vs. Attorney General (Supra) , Jayanthi Silva Vs.Attorney General, Addaraarachige Samson Vs. Attorney General”1"
Careful study of those cases reveals that the exceptional circumstanceswhich had been considered by Court varied from case to case and therewas no uniformity and certainty. Some Judges considered the fact thatthe long delay in hearing the appeal as an “exceptional circumstance" butsome other Judges did not consider it as an “exceptional circumstance".
With the enactment of the Bail Act No. 30 of 1997 the law of bail becamea static law. A clear guiding principle was laid down in respect of the grantof bail. Section 2 of the Bail Act states “ Subject to the exceptions asherein after provided for in this Act, the Guiding Principle in theimplementation of the provisions of this act shall be, that the grantingof bail shall be regarded as the rule and the refusal to grant bail asthe exception”.
Also, the High Court has discretion under Section 20(2) to release anappellant on bail pending the determination of his appeal; it is only on validreasons that the bail should be refused as construed by the L. C. Provisionsof the Bail Act, No. 30 of 1997.
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I have followed the principle that the appellant should be released onbail only on exceptional circumstances in few Bail Orders written by meafter the enactment of the Bail Act.
In the case of P. G. Peris {Ex- Chairman, Village Committee) Vs.Chairman Village Committee {Medasiya Pattu, Matale) H. N. G. FernandoJ as he then was made the following observation; “The Magistrate relied
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on my unreported judgment in Herath /s. Munasinghe when he overruledthe objection that he had no power to impose a term of imprisonment indefault of payment of the certified amount. I have hence held in identicalcircumstances that a default term of imprisonment may be imposed, andthat sub section (1 )e of the Criminal Procedure Code would determine thelength of the term in such case. While it is disappointing to realize that myjudgment was erroneous, I welcome the opportunity now given me to employthe language of Baron Bramwell in a similar situation. ‘The matter doesnot appear to me now as it appears to have appeared to me before”.
As stated above, though I have written those Bail Orders havingconsidered the Principle that the appellant should be released on bail inexceptional circumstances after the enactment of the Bail Act No. 30 of1997. I my self now disappointed in realizing that the principle adoptedwas incorrect. Thus, I too make use of the opportunity now given me toemploy the language of Baron Bramwell:
The matter does not appear to me now as it appears to haveappeared to me before”.
For the above mentioned reasons, I fully agree with the reasons givenby my brother for his conclusion.
CHANDRA EKANAYAKE, J -1 agreeApplication allowed. Bail granted.