065-NLR-NLR-V-22-ELIYATAMBY-v.-MOHOMODO.pdf
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Present: Bertram O.J.
ELIYATAMBY «. MOHOMODO.
825—P. C. Colombo, 88 F.
Fugitive offender—Power to release him on bail.
A Magistrate may in an appropriate case release the fugitiveoffender on bail, and allow him to appear in the ordinary coursein the Court to whioh his return is sought.
r | ^HE facts appear from the judgment.
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A. St. V. Jayawardene (with him Tisseverasinghe), for aooused,appellant.—The application for the return of the appellant is notmade in good faith in the interests of justice. The appellant on a' previous occasion applied to the Magistrate to make this appear tohim by cross-examining the complainant, who gave evidence, butthe Magistrate disallowed this application. The Supreme Courtset aside this order, and permitted the appellant to make it appearto the Magistrate that “ the application for his return was not madein good faith in the interests of justice.” The complainant failedto appear to be cross-examined, though every endeavour was madeto secure his attendance. The Magistrate has in his order underappeal expressed his opinion that the complainant was not actingwith proper frankness. In the circumstances it would, in the wordsof section 19, be unjust and oppressive to return the appellant tothe Singapore Court. The charge against the appellant is false;he has a full and complete defence to it. He is pfcpared to standhis trial if he will be spared the indignity of being removed toSingapore in police custody.
This Court has full power to do so. Section 19 itself providesthat “ the Magistrate may discharge the prisoner either absolutelyor on bail.” It also provides for the return being deferred “ untilthe expiration of a certain period.” There is therefore sufficientauthority in the section itself. Apart from the section, the SupremeCourt has, under section 21 (2) of the Courts Ordinance, sole andexclusive cognizance by way of appeal and revision of all prosecu-tions which any original Court may have taken cognizance. Herethe Magistrate has exercised his jurisdiction in his ordinary capacityas Folioe Magistrate. The Supreme Court has jurisdiction to reviseand correct his proceedings (Alles v. Palamappa Chetty,1 In reOanapaihipiUai2). He referred also to seotion 53 of the Courts
1920.
1 (1917) 19 N. L. B. 334.
1 (1920) 21 N. L. B. 481.
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Ordinance and section 369 of the Criminal Procedure Code. InRegina v. 8'pilsbury,1 the Court of King’s Bench released a prisoneron bail in circumstances similar to the present.
Janaz, C.C., for the Crown.—The Aotdoes not provide for releaseon bail as contended for by the appellant. Even if it does, theappellant has not made it appear to the Magistrate that the applica-tion for his return was not made in good faith in the interests ofjustice. The absence of a special provision in the Act itself, forrelease on bail in circumstances of this kind show that the intentionof the Legislature was that bail should not be granted.
The general power of the Supreme Court to release on'bail have,therefore, no application to the present case.
Jayawardene, in reply.
November 8, 1920. Bertram C.J.—*
This is a case under the Fugitive Offenders Act, 1881, in whichthe present appellant was charged with criminal misappropriation,and his return is sought under part 2 of the. Act. The learnedMagistrate would appear to have been willing to release the appellanton bail under section 19 but for his being of opinion that he had nopower to do so. The learned Magistrate appears to me not to havegiven their full force to the words of section 19, which speak ofa release on bail and the suspension of the return of the fugitivebeing within the power of the Magistrate, and also to the wordswhich allow the Magistrate to make such other order as seemsjust. It appeals to me, therefore, that the Magistrate had morepowers than he apprehended, and I think this is_a case in which hemight well have exercised his power under this section. For thispurpose it must be made to appear to him either that the case istrifling—which m this case is not the fact—or that the applicationfpr the return is not made in good faith in the interests of justiceor otherwise. The learned Magistrate had before him these facts:that the offence is two years old; that the prosecutor, who is notin Singapore but in India, has declined to come over to be cross*examined in accordance with the Magistrate’s order; and theMagistrate further in the course of the proceedings formed the opinionthat the prosecutor was not acting with proper frankness. I have, had to day presented to me an affidavit sworn to by the allegedfugitive, which may also be taken into account. This seems tome a primd fade justification for the impression which the learnedMagistrate appears already to have formed. The only questionis as to the powers of the Court. Section 19 seems to contemplatethat in an appropriate case the Magistrate may decline to orderthe return of the prisoner until a period has elapsed which wouldallow of the alleged fugitive presenting himself in the ordinary
1 (1292) 2 Q. B. 616.
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course in the Court to which his return is sought. The sectionalso provides for his release on bail, and I see no reason why underthe general powers conferred by the section these two provisionsshould not be combined. Mr. Jayawardene, for the appeHabfc, hasoffered to give security for his appearance in -the Singapore Court.I think that the case may be remitted to the learned Magistrateto enable this to be done. The appellant should be released onbail with one surety, and the obligation of the surety should be to-produce the appellant on the eviration of two months. Theremust be a further security in the form of a deposit in Court ofBs. 15,000, and the condition of the bond should be that if it shouldbe made to appear to the learned Magistrate that the appellant haspresented himself at the Court in Singapore, to which his return issought, then the bond shall be void, but that otherwise it shallbe of full force and effect. The Magistrate should, I think, make anaccompanying order, that in the event of default the appellant shallbe returned at the expiration of the said period of two months.
Hie case will be remitted to him to carry out these directions.
Sent back.
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CJ.
EliytOambyt. Mohomodo