006-NLR-NLR-V-51-In-re-ATHURUPANE.pdf
In re Athurupane
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1949
Present: Gratlaen J.In re ATHURUPANE
S. C. 457—In revision M. C. Panadvre, 8,977
Criminal Procedure Code—Postponement of proceedings—-Rules for remandingaccused—Bail—Judicial discretion—Cautious exercise necessary—Sections 289 {2) and (4), 396.
Where an accused person is remanded for a term not exceeding theperiod prescribed in section 289 (2) of the Criminal Procedure Code itis essential that he should bo produced in Court at the expiry of thatterm so that the Magistrate might bring his mind to bear once more onwhat would be the appropriate order to make should the inquiry or trialbe postponed.
The fixing of bail calls for the exercise of judicial discretion and forthe most anxious care in each case.
OrDER made in revision, in respect of certain orders of theMagistrate, Panadure.
Accused present in person.
R. A. Kannangara, Crown Counsel, for Attorney-General.
' Boons v. Bortlam. {1937) A. C. 473 at 48$.
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UHATlAEft J.—Jn re Athurupant
September 27,1949. Gbatiaen J.—
This case was brought to my notice when I recently visited the remandjail at Welikade. It was then reported to me that the accused oneReginald Athurupane, a young lad of 17, has since June 27, 1949,been continuously on remand pending his trial in the Magistrate’s Courtof Panadure on charges of criminal trespass and connected offences.1 considered it necessary that I should call for the record in the case forthe purpose of satisfying myself with regard to the legality and proprietyof the orders made by the learned Magistrate in this connection. 1requested the Attorney-Genera! to be good enough to arrange for CrownCounsel to assist me in examining this matter, and I am indebted toMr. Kannangara for the valuable help which he has placed at my disposal.
On an examination of the record it appears that on June 27, 1949,the Sub-Inspector of Police, Panadure, instituted criminal proceedingsagainst the accused under section 148 (6) of the Criminal Procedure Codecharging the accused with the commission of the offences which I harereferred to. It is not apparent from the record whether summons wasissued in the first instance, hut I find that on the date on which the pro-ceedings commenced, namely, June 27, 1949, the accused was presentand pleaded “ not guilty The trial was fixed for August 29, 1949,and an order was made granting the accused bail in the sum of Re. 750with one surety. How a young man could have been expected to furnishsuch an excessive amount at such short notice pending his trial on bail-able offences I fail to understand. As was to be expected, the accusedwas unable to furnish bail and he was accordingly remanded undersection 289 pending his trial.
The warrant committing the accused to custody pending trial com-manded the Fiscal to take the accused to the remand jail in Colombo tobe kept there until August 29,1949, on which date he was to be producedin Court. This warrant of committal is to my mind in direct contra-vention of the provisions of section 289 (2) of the Criminal ProcedureCode. Under the section “ No Magistrate shall remand an accusedperson to custody under section 289 for a term exceeding seven daysat a time save and except at such Magistrates' Courts as the Ministerof Justice shall from time to tune proclaim to be Magistrates’ Courtsat which longer remands may be made, when it shall be lawful to remandaccused persons at any such Magistrates' Courts for a term not exceedingfourteen days ”, In the present case the learned Magistrate has thoughtfit to remand the accused to custody, in excess of the jurisdiction vestedin him, for a period of two months. Learned Crown Counsel concedesthat this order was contrary to law.
On August 29, 1949, when the accused was produced in Court thetrial was postponed until October 31,1949, as he was for obvious reasonsunable to take the necessary steps to place his defence before the learnedMagistrate. Without further consideration, apparently, as to whatwould represent a reasonable sum which should be furnished as b.ail inthe circumstances of the case, the learned Magistrate remanded theaccused for a further period of two months and two days. This order
GRATIAEN J.—ln re Atkvrupane
23
is equally irregular. I notice however that on this occasion an orderwas made, with the intention presumably of paying lip-service to thestrict requirements of section 289 (2), that the warrant (and not theaccused) should be returned to the Court for extension at the expiryof each successive period of 14 days. Learned Crown Counsel informsme that this practice has come into force in various Magistrates’ Courtsin the Island and he concedes that it amounts to an unwarrantedcircumvention of the provisions of section 289 (2). Where an accusedperson is remanded for a term not exceeding 14 days, it is essentialthat he should be produced in Court at the expiry of that term so thatthe Magistrate might bring his mind to bear once more on what wouldbe the appropriate order to make should the trial he postponed. Ifit were otherwise, the accused would be deprived of the opportunity tomake such representations as may be necessary for the purpose ofapplying that bail in a smaller sum might be granted.
Under our Criminal Procedure Code bail “ shall be fixed with due regardto the circumstances of the accused and shall not be excessive ”—section 396 of the Code. The fixing of bail calls for the exercise of judicialdiscretion and for the most anxious care in each case. As has beeupointed out in a series of decisions of the English Courts, the main consi-deration that should apply is whether it is probable that the accused willappear to stand his trial. The other matters for consideration includethe nature of the accusation, the nature of the evidence in support ofthe accusation, and the severity of the punishment which convictionwill entail. Section 289 (4) also lays down that where the accused hasattended the Court on summons he shall be enlarged on his own recog-nizance or on his simple undertaking to appear, unless for reasons to herecorded the Court orders otherwise. In the present case the effect of thevarious orders made by the learned Magistrate is that the accused hasalready been in jail as an unconvicted person for a period of three months,and that he would have been on remand for yet another month if theseproceedings had not been brought to my notice. I quash the ordersmade by the learned Magistrate committing the accused and direot thatthe accused be handed forthwith by the jail authorities to the Fiscalto be produced before the learned Magistrate who is at present officiatingin Panaduro at the earliest possible date. On being produced beforethe learned Magistrate he shall be enlarged on his own recognizance toappear in Court on the date fixed for trial. The accused has beenexamined in open Court before me and it appears that he is a person offixed abode.
If special grounds exist in any case to justify the belief that the grantingof bail in a reasonable sum within the means of the accused who is chargedwith a bailable offence is likely to defeat the ends of justice there should besomething on record to indicate that these circumstances have beenbrought to the notice of and been considered by the Magistrate. ThereaTe always grave objections to the incarceration of unconvioted personscharged with bailable offences and it can only be in rare cases that reasonsof such cogency arise as to out-weigh these objections. To fix bail in
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GR ATlAEN J,—In re Athurupane
a sum which is excessive almost invariably has the effect of an orderrefusing bail. If the unconvioted person is a young lad standing his trialon a bailable offence, such a procedure is almost always indefensible.I have ascertained from the statistics maintained by the Prison authoritiesthat during the year 1948 the number of unconvicted persons remanded
for failing to furnish security amounted in the Colombo jails alone7,154, and during the first half of this year to 3,215. I find it difficult
satisfy myself that in everyone of these instances the judicial discretionwhich was vested in the Magistrate was wisely and cautiously exercised.
Orders quashed.
$ s