GUNASEKERA AND OTHERS vs RAVI KARUNANAYAKE

005-SLLR-SLLR-2005-V-2-GUNASEKERA-AND-OTHERS-vs-RAVI-KARUNANAYAKE.pdf


18Sri Lanka Law Reports(2005) 7 Sri L. R.
GUNASEKERA AND OTHERSVSRAVI KARUNANAYAKECOURT OF APPEALMARSOOF P. C. J(P/CA),
SRISKANDARAJAHJ.
CA (MC REV) 05/2004,
M.C. FORT 60956NOVEMBER 2, 10, 17,24, 2004DECEMBER 6, 2004
Public Property Act, 12 of 1982 – Section 3(2)- as amended by Act, 28 of 1999-Section 8 – Bail Act, No. 30 of 1997- Sections 3, 3(1), 21, Code of CriminalProcedure Act 15 of 1979 – Anticipatory Bail – Offences against Public PropertyAct-Applicability of the Bail Act?- ejusdem generis rule – Evidence Ordinance S57(4)-Written Law – Prevention of Terrorism (Temporary Provisions) Act, 48 of1979 – Could reference be made to the Parliamentary Debate ? – OfficialSecrets Act. 1920.
CA Gunasekera and. Others vs Ravi Karunanayake (Sriskandarajah J.)19
The Respondent was suspected to have committed an offence under theOffences against Public Property Act. The respondent sought and was grantedanticipatory Bail under the provisions of the Bair Act. The petitioner (officer incharge of the Anti Corruption Unit of the Crime Division) sought to revise thesaid Order on the sole ground that, as the Respondent was suspected to havecommitted an offence defined under the Offences against Public PropertyAct, Bail Act has no application –
HELD-
To exclude a written law from the application of the Bail Act as providedunder Section 3 of the Bail Act that written Law should provide expressprovision in respect of the release on bail of persons accused orsuspected of having committed or convicted of offences under thatwritten law.
The Bail Act provided for the procedure, forum and the conditions forthe release of a person at the time of investigation, at the time of trialafter conviction. Bail Act was enacted to have a clear policy and to layguidelines to Bail.
The offences against Public Property Act does not provide for theprocedure or forum but provides a condition for the release of personsat the time of investigation, at the time of trial and after conviction. Thecondition is in relation to the serious nature of the offence.
The release of persons on bail for an offence committed or suspectedto have committed under the offences against Public Property Act inview of the provisions in Section 3(2) of the Bail Act has to be read withthe Bail Act. The Court that releases a person on Bail is consideringthe condition laid down in offences against Public Property Act cannotact in isolation of the Bail Act as it provides not only the procedure butalso other restrictions under Section 14 for the release of a person onBail.
The Bail Act is a general Act, the Offences against the Public PropertyAct is a special Act in relation to specific offences.
The proposition that the Bail Act is not applicable to the Offencesagainst Public Property Act cannot be accepted.
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It is legitimate to make reference to the debate that preceded thepassage of the Bail Act in Parliament in order to clarify the ambuguitiesin Section 3 of the Act.
APPLICATION in Revision from an Order of the Magistrate's Court of Fort.Cases referred to .
Thilanga Sumathipala vs /. G. P. and three others 2004 1 Sri LR 210
Davis vs Johnson – 1978 1 All ER 132
Escoigne Properties Ltd., Vs I.R.C. 1958 AC 549 at 566
Sirisena and others vs Kobbekaduwa, Minister of Agricultureand
Lands – 80 NLR 1
Manawadu vs Attorney General – 1987 2 Sri LR 30
J. B. Textiles Ltd vs Minister of Finance – 1981 1 Sri LR 156
Jeyaraj Fernandopulle vs De Silva and others – 1996 1 Sri LR22at
34
Pepper vs Hart – 1993 1 All ER 42
Anuruddha Ratwatte and 4 others vs Attorney General – 2003 2 SriLR 39
W. P. G. Dep, P. C., Addl. Solicitor General with B. P. Aluvihare S. S. C., forRespondent Petitioners
K. N. ChoksyP. C., with Kalinga Indatissa, Ms. Krishan Wijetunge. V. K. Choksy,Rani! Samarasooriya and Jayantha Jayaweera for Petitioner Respondent
cur adv vult
January 1,2005.
Sriskandarajah J.
This is an application filed by the 1st and 2nd Respondents *Petitioners (hereinafter referred to as the Petitioners) to revise an order ofthe learned Magistrate, Colombo Fort dated 06.07.2004 granting anticipatorybail to the petitioner – Respondent (hereinafter referred to as the Respondent)under Section 21 of the Bail Act, No. 30 of 1997.
Gunasekera and Others vs Ravi Karunanayake (Sriskandarajah j.)
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CA
' Petitioners urged several grounds in their petition to revise the saidorder of the learned Magistrate but learned Additional Solicitor Generalrelied only on two grounds at the time of arguing this application. Firstly ;that the Magistrate should not have issued notice in the first instance asthe offence disclosed in the application for anticipatory bail is not a non-bailable offence. Secondly; the Respondent is suspected to have committedan offence under the Offences against Public Property Act, No.12 of 1982as amended and therefore he is not entitled to obtain anticipatory bail.
The learned Additional Solicitor General in his w/itten submissionsrestricted his submissions to the second of the aforesaid grounds to revisethe order of the learned Magistrate and did not pursue the first ground. Hesubmitted that the Respondent was suspected to have committed an offencedefined under the Offences against Public Property Act. As this Act makesexpress provision in respect of the release on bail of persons accused orsuspected of having committed an offence, the Bail Act has no applicationto the offences under this Act. Therefore he submitted that the Magistratehad erred in resorting to the provisions of the Bail Act to grant anticipatorybail to the respondent.
Section 3(1) of the Bail Act No. 30 of 1997 reads as follows :
“Nothing in this Act shall apply to any person accused or suspectedof having committed, or convicted of, an offence under, the Preventionof Terrorism (Temporary Provisions) Act, No. 48 of 1979, Regulationsmade under the Public Security Ordinance or any other written lawwhich makes express provision in respect of the release on bail ofpersons accused or suspected of having committed or convicted of,offences under such other written law.”
Learned Additional Solicitor General submitted that ‘any other writtenlaw’ which is specified in Section 3 (1) of the Bail Act means any writtenlaw which has express provisions pertaining to the release on bail of personsaccused or suspected of having committed or convicted of offences undersuch written law. Petitioners also submitted that the ejusdm generis rulehas no application to ‘any other written law’ for the reason that in thissection after referring to Prevention of Terrorism Act, Regulations madeunder Public Security Act and any other written law.the sentence did notcome to an end but it continued by describing the necessary requirements
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of “any other written law”. The necessary requirements or qualificationsthat are mentioned in the sentence are namely : “Which makes expressprovision in respect of the release on bail of persons accused or suspectedof having committed, or convicted of, offences under such other writtenlaw”. He submitted that the criteria spelt out in this sentence should beapplied to ascertain whether a particular Act falls within ‘any other writtenlaw’.
Learned Additional Solicitor General submitted that the Bail Act dealswith persons accused or suspected of having committed or convicted ofoffences. That is, the Act contemplates three categories of personsnamely : suspects, accused and convicted persons. He further submittedthat the Prevention of Terrorism Act, Emergency Regulations and Offencesagainst Public Property Act have express provisions pertaining to grantingof bail to all the said three categories of persons. Therefore the Offencesagainst Public Property Act is a written law that is contemplated inSection 3 of the Bail Act and as provided by this section it is excludedfrom the application of the Bail Act. The petitioners also contended that asthe applicability of the Bail Act is excluded for Offences against PublicProperty Act, Section 3 (2) of the Bail Act also has no application to thisAct. For these reasons the petitioners submitted that the Magistrate couldnot grant anticipatory bail under Section 21 of the Bait Act to the respondentagainst whom there is an allegation that he is suspected to have committedan offence under the Offences against Public Property Act.
Learned President’s Counsel for the Respondents relied on thejudgement of Justice Gamini A. L. Abeyratne in Uduwatuwage JanathpriyaThilanga Sumathipala vs the Inspector General of Police and three others(,>when interpreting Section 3 of the Sinhala text of the Bail Act which prevailsover the English text of the Bail Act, His Lordship had held that “any otherwritten law” in section 3 of the Bail Act refers to the Prevention of TerrorismAct and the Public Security Ordinance and no other written law iscontemplated by that Section.”
The learned Additional Solicitor General submitted that it appears thatthere is a discrepancy between the Sinhala text and the English text andthe Sinhala text should prevail over the English text. But this difference ismainly due to the grammatical variations and the different method of
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Gunasekera and Others vs Ravi Karunanayake (Sriskandarajah J.)
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constructing sentences in the Sinhala and English languages. Thisambiguity could be resolved by interpreting the section in a manner thatwill manifest the intention of the legislature. He urged that the court couldresort to exceptional construction method to resolve this problem. Herelied on the passage in Rupert Cross in his book on Statutory Interpretation(1976 pp 84-98) which states thus :
“The judge may read in words which he considers to be necessarilyimplied by words which are already in the statute, and he has a limitedpower to add to, alter or ignore statutory words in order to prevent aprovision from being unintelligible or absurd or totally unreasonable,unworkable or totally irreconcilable with the rest of the statute”
The learned Additional Solicitor General further submitted that the courtin an appropriate case could add words or substitute words to give effectto the purpose of the statute. Section 3 of the Official Secrets Act 1920prohibit persons “In the vicinity of’ any,.prohibited place from impedingsentries. The accused pleaded that although he was within the perimeterof a Royal Air force Station, he had not literally been in the vicinity orneighbourhood. However, Court added the word “in or1’ in the vicinity of togive effect to the object of the statute. In the same way Court had correctedstatutes by substituting ‘and’ for ‘or’ or vice versa. Therefore the petitionerssubmitted in the same way the word “or” (in Sinhala seed) which causes theambiguity could be resolved and the proper construction of that sectionwould be that in addition to Prevention of Terrorism Act and the Regulationsunder Public Security Ordinance other written laws such as the Offencesagainst Public Property Act are also contemplated.
In this context the question arises as to whether it is legitimate to haveregard to the proceedings in Parliament which preceded the enactment ofthe legislation in question in order to understand the intention of Parliament.The traditional view that prevailed in the United Kingdom was that a courtof law will not generally look at the proceedings in Parliament to ascertainthe meaning of enacted legislation. In accordance with this view, in Davisv. Johnson(2) Viscount Dilhorne referred to the well established and wellknown rule that “Counsel cannot refer to Hansard as an aid to theconstruction of the Statute”. In Escoigne Properties Ltd. v. I. R. C.(3) at586 Lord Denning said :
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“In this country we do not refer to the legislative history of an
enactment as they do in the United States of America. We do not lookat the explanatory memoranda which preface the Bills before Parliament.We do not have recourse to the pages of Hansard. All that the courtscan do is to take judicial notice of the previous state of the law and ofthe other matters known to well – informed people.”.
Consistently with this approach, our courts too have shown considerablereluctance to use speeches made in parliament for the determination ofthe intention of Parliament. In Sirisena and Others V. Kobbekaduwa,Minister of Agriculture and Lands'4) the Supreme Court was invited to lookat the Hansard Particularly at the Ministers speech and ascertain theintention of Parliament. Vytilingam J in what may be considered the majorityjudgement in that case, showed some reluctance to do so, and observedat page 71 that –
“For my part I am of the view that we ought not to do so unless thereis such great ambiguity in the words that looking at the Hansard alonewould be decisive.”
In Manawadu v. Attorney – General(5> when a similar invitation wasmade, Sharvananda C. J. preferred to apply accepted canons ofinterpretation of statutes to ascertain the intention of Parliament, althoughSeneviratne J in his dissenting judgement relied on the views expressedby the Minister in Parliament to interpret the legislation in question.
However, it is noteworthy that in J. B. Textiles Ltd. v. Minister of Finance(6}Samarakoon, CJ expressed the view that Hansards are admissible toprove the course of proceedings in the Legislature in terms of Section57(4) of the Evidence Ordinance, and that they constitute evidence ofwhat was stated by any speaker in the Legislature. His Lordship observedat 164 that-
“The Hansard is the official publication of Parliament. It is publishedto keep, the public informed of what takes place in Parliament. It isneither sacrosanct nor untouchable.”
The above dictum of Samarakoon CJ was quoted with approval by MarkFernando J in the Majority judgement in Jeyaraj Fernandopulle vDe Silva
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CA Gunasekera and Others vs Ravi Karunanayake (Sriskandarajah J.)
and others(7). In Pepper v Hartf81 the House of Lords shifted from thetraditional approach and permitted the use of the Hansard to ascertain theintention of the legislature where the very issue of interpretation which theCourt was called upon to resolve had been addressed in the Parliamentarydebate and the promoter of the legislation had made a clear statement onthe very issue. Lord Browne- Wilkinson observed at 69 that-
“I therefore reach the conclusion, subject to any question ofparliamentary privilege, that the exclusionary rule should be relaxedso as to permit reference to parliamentary materials where: (a) thelegislation is ambiguous or obscure or lead to an absurdity; (b) thematerial relied on consisted of one or more statements by a ministeror other promoter of the Bill together if necessary with such otherparliamentary material as is necessary to understand suchstatements and their effect; (c) the statements relied on are clear.”
It is therefore legitimate to make reference to the debate that precededthe passage of the Bail Act in Parliament in order to clarify the ambiguityin Section 3 of the Act.
Hon. Prof. G. L. Peris, Minister of Justice (as he then was) whenpresenting the Bail Bill in Parliament on 2nd October, 1997 at the secondreading (reported in Parliamentary Debates (Hansard) Volume 113 No. 5Tuesday, 7th October, 1997) stated :
“Mr Speaker, there have been various judicial decisions on this subject,but I think the time has come for Parliament to lay down clearly theprinciples that should govern the grant of bail. It is not a matter whichcan be left any longer entirely in the hands of the courts. This is becausethere are conflicting stands of decision and there is a great deal ofconfusion which has to be rectified by the intervention of Parliament.Parliament laying down very clear guidelines which will be binding onthe courts in the future; Now that, Mr. Speaker, is exactly what we havedone by means of this legislation.”
At the close of his speech he said :
“Those, Mr. Speaker, are the main provisions of this law. It has beennecessary to exclude certain statutory regimes from the ambit ofapplication of this law. The bill which I have the honour to present does
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not apply to the Prevention of Terrorism Act. Offences under thePrevention of Terrorism Act are not caught up within the ambit of thislaw because there are special considerations applicable to the safetyof the State.
Salus Civitatis Suprema Lex has always been an axiom of the law. Thesecurity of the State is of the highest possible legal value. In recognition ofthat reality we have refrained, for the moment, from bringing the Preventionof Terrorism Act within the applicability of this particular law. That is amatter to be considered in the future. I am not foreclosing that for all time.These matters are required to be assessed from time to time with changingcircumstances. But right now we think that the right balance to be struckdoes not allow us to bring offences under that particular statutory regimewithin the four corners of this particular law. For the same reasons Mr.Speaker, Regulations under the Public Security Ordinance will aiso not beregulated by the provisions contained in this new piece of legislation Norwill this legislation apply to other written laws which contain expressprovisions in respect of bail for persons accused of offences under suchlaws.”
Mr. Tyronne Fernando, Member of Parliament in his speech said :
“I very much welcome your clause on anticipatory bail. I think Indiais the only place where anticipatory bail has been in force since 1970.Sir, I would like to quote from Mr. P. V. Ramakrishna’s “Law of Bails”.There they give the reason for this anticipatory bail. This anticipatorybail, Sir, was made use of by even Mr. Narasinha Rao, the former PrimeMinister, when the guns were turned on him. He did not want to beembarrassed by being suddenly picked up by the police. So, he wentand got this anticipatory bail. That is precisely the reason why theanticipatory bail has been allowed, why there is provision. May l quote,Sir?
“the provision for anticipatory bail has been incorporated mainly inorder to relieve a person from being disgraced by trumped up charges”.
These trumped up charges are very common features in our part ofthe world, Sir. It is very salutary that this anticipatory bail has beenbrought in the case of non-bailable offences. One word of caution I wantto address to the Hon. Minister. He Spoke about bailable and non-bailable offences and the machinations of the police and the local powers.
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So for ten days, purely by the police filing a ‘B’ report saying somefiles worth over Rs.5,000 are missing, this young man was in remand.We welcome your new law because this is a non-bailable offence onthe ‘B’ report. He could have gone to court and got anticipatory bail”.
In the Minister’s speech he has clearly stated that Section 3 of the BailAct excludes the applicability of the Bail Act to the Prevention of TerrorismAct, Regulation under the Public Security Ordinance nor will this legislationapply to other written laws which contain express provision in respect ofbail for persons accused or suspected of having committed or convicted ofoffences under such law. Therefore the said ambiguity Sinhala text of theBaid Act could be resolved by considering the intention of the legislaturewhich contemplates other written laws in addition to Prevention of TerrorismAct and Regulation made under Public Security Ordinance.
It is also manifest from the Minister’s speech that the intention of thelegislature is to exclude certain statutory regimes which have specialconsideration applicable to the safety of the State from the ambit of theapplication of the Bail Act. Therefore any other written law mentioned in

Weerasuriya to go into the case. The lawyer got the Magistrate toexamine what these files are, whether they were of some million dollaraffairs or some petty files important to this person' We still have fileswe have brought from our Ministries pertaining to various personal thingsof ours. Ultimately, after ten days this young man was remanded, justbefore the local government elections campaign, and the Magistrateheld :
A bailable offence can easily be turned into a non-bailable offence bysleight of hand. I have a very good example for you. One of our youthcandidates at the local government elections was remanded; just beforenomination, for eight days on a trumped up charge. Soon after the localbodies were dissolved he had removed some files from the municipalcouncil. He was then remanded on the basis of a “B” report which said,
Ten days later, Sir, I got a young lawyer called

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Section 3 of the Bail Act has to be read in ejusdem generis to the Actsmentioned in that section. The Offences against Public Property Actcannot be considered as an act which has concerns applicable to thesafety of the State. Therefore this act cannot be considered as an Actwhich was intended by the Legislature to exclude from the applicability ofthe Bail Act. Mr. Tyronne Fernando, Member of Parliament in his speechhas specifically referred to a situation under the offences against PublicProperty Act and welcomed the new law (Bail act) because the provisionfor anticipatory bail could be resort to in the future for non bailable offencesunder the offences against Public Property Act. It is clear from the speechesof the Minister of Justice and Mr. Tyronne Fernando, Member of Parliamentmentioned above that the intention of the legislature is not to exclude theapplicability of the Bail Act to the Offences against Public Property Act.
In my view to exclude a written law from the application of the Bail Actas provided under Section 3 of that act that written law should provideexpress provision in respect of the release on bail of persons accused orsuspected of having commited, or convicted of, offences under that writtenlaw. This is similar to the long title of the Bail Act which reads as “An actto provide for release on bail of persons suspected or accused of beingconcerned in committing or having committed an offence.” Chief justiceSarath N Silva in Anuruddha Ratwatte and 4 others vs Attorney General'91observed.
“The Bail Act No. 30 of 1997 was passed by Parliament as stated inthe long title to “provide for release on bail of persons suspected oraccused of being concerned in committing or of having committed anoffence”…. A person is considered as being suspected of havingcommitted an offence” at the stage of investigation and he would beconsidered as an accused after he is brought before a court on thebasis of a specific charge that he committed a particular offence. Hewould remain an accused until the trial is concluded and a verdict ofguilty or not guilty is entered or he is discharged from the proceedings.Thus the provisions of the Bail Act would apply in respect of all stagesof the criminal investigation and the trial.”
The stages in which a person could be released on bail enumerated inthe long title of the Bail Act and the stages provided in section 3 of the BailAct are similar. The Bail Act, the Prevention of Terrorism Act and the
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Emergency Regulation (which was in force) provided for the procedure,forum and the conditions for the release of a person at the time ofinvestigation, at the time of trial and after conviction. Therefore by necessaryimplication the written law mentioned in Section 3 of the Bail Act shouldalso provide for the procedure, forum and the conditions for the releaseof a person at the time of investigation, at the time of trial and after conviction. .
The offences against Public property Act No. 12 of 1982 as amended byAct No. 28 of 1999 under section 8(1) does not provide for the procedureor forum but provides a condition for the release of person at the time ofinvestigation, at the time of trial and after conviction. The condition is inrelation to the serious nature of the offence namely, if the value of thesubject matter in respect of which the offence committed exceedsRs.25,000 then that person should be released on bail only on exceptionalcircumstances. The provisions in this Act clearly show that these provisionsare not self-contained to release a suspect or accused on bail and itcategorically states that in relation to bail Code or Criminal Procedure Actshall apply.
Section 8(1) of the offences against Public property Act as amendedprovides:
“The provisions of the Code of Criminal Procedure Act, No.15 of1979, in relation to bail shall apply where any person surrenders himselfor is produced on arrest on an allegation that he has committed or hasbeen concerned in committing or is suspected to have committed or tohave been concerned in committing an offence under this Act:
Provided, however, that where a Gazetted officer not below therank of Assistant Superintendent of Police certifies that the value ofthe subject-matter in respect of which the offence was committed,exceeds twenty five thousand rupees such person shall be kept onremand until the conclusion of the trial. It shall be competent for thecourt in exceptional circumstances to release such persons on bailafter recording reasons therefore.”
The Provisions laying conditions to release a suspect or accused onbail embodied in the above section was enacted before the enactment ofBail Act. The Bail Act was enacted to have a clear policy and to lay guidelines to bail. Section 3(2) of the Bail Act provides :
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3(2) Where there is a reference in any written Law to a provision ofthe Criminal Procedure Code Act, No. 15 of 1979 relating to bail,such reference shall be deem, with effect from the date ofcommencement of this Act, to be a reference to the correspondingprovision of this Act.
Therefore, the release of persons on bail for an offence committed orsuspected to have committed under offences against Public propertyAct in view of the provisions in Section 3 (2) of the Bail Act has to be readwith the Bail Act. The court that releases a person on bail in consideringthe condition laid down in offences against Public Property Act cannotact in isolation of the Bail Act as it provides not only the procedure butalso other restrictions under Section 14 for the release of a person on bail.
The Bail Act is a general Act in relation to Bail which provides for theprocedure, the conditions and the court by which a person could be releasedon bail but offences against Public Property Act is a special Act inrelation to specific offences. Therefore, the condition that suspect or anaccused could be released on-bail~only on exceptional circumstancesshall prevail. This condition in the said Act is not in conflict with theprovisions of the Bail Act. Even though, the guiding principle of the BailAct is that the granting Bail shall be regarded as the rule and the refusal togrant bail as the exception. The specific circumstances of exceptions torefuse bail are given in Section 14 of the Bail Act. Section 15 of the BailAct has also laid down provisions empowering Court to refuse bail aftergiving reasons for the refusal. One of the reasons for which a bail could berefused to a person who is suspected or accused of having committed anoffence under the offences against Public Property Act is the absence ofexceptional circumstances.
Under these circumstances the submission of the Petitioners that theBail Act is not applicable to the offences against Public Property Actcannot be accepted. The petitioners did not pursue any other grounds tochallenge the order of the learned Magistrate in granting anticipatory bail.This court after careful consideration of the Judgment of the Magistratehas decided not to interfere with the order of the Magistrate as there is noillegality in the order. Therefore, this Court dismisses the application of thepetitioners without costs.
MARSOOF J, (P/CA) -1 agree
Application dismissed.