In re GANAPATHIPILLAI

140-NLR-NLR-V-21-In-re-GANAPATHIPILLAI.pdf


( 481 )
[In Envision.]
Present: De Sampayo J.
In re GANAPATHTPTLLAI.
P. 0. Colombo, 8. 86.
Fugitive Offenders Act, 1881—Power of Supreme Court . to revise ordersof Magistrate under the dot—Act applicable to Kedah—Warrant authenticatedby British Adviser of Kedah held sufficient.
The Supreme Court has jurisdiction to revise the orders madeby a Police Magistrate under the Fugitive Offenders Act, 1881.
Bythe Order in Council of October 24, 1916, the Fugitive
Offenders Act is made applicable to the States mentioned therein(including Kedah, in the Malay Peninsula) as' if they were BritishPossessions, and the Order in Council of January 3, 1918, by which,inter alia, Ceylon and Kedah were grouped together for thepurpose of inter-colonial backing of warrants under part II. of theAct, does not restrict the effect of the former Order of 1916, and, consequently,part IV. of the Act was held applicable to Kedah.
A warrant signed by the Chief Judge of the High Court of Kedah andauthenticated by the British Adviser was held to be duly authenticated underthe Act.
rT'1 HIS was an application for the revision of an order of thePolice Magistrate of Colombo refusing to order one Gana-pathipillai to be returned to Kedah, for whose arrest a warrant hadbeen issued by the High Court of Kedah under the Fugitive Offen-ders Act. The Supreme Court, after hearing the Solicitor-General,ordered notice to be served on Ganapathipillai.
A. St. V. Jayawardene (with him Balasingham and Crooe~Dab-rera), for the accused (Ganapathipillai).—The application for revisionis irregular. The procedure is laid down in the Fugitive OffendersAct itself. The right of appeal is expressly given in two matters(see section 17 and 19). Where no right of appeal is so given, thereis no right of appeal. The provisions of the Criminal ProcedureCode and the Courts Ordinance as to the powers of the SupremeCourt in revision do not apply to proceedings under the FugitiveOffenders Act. It was held in India that a Magistrate acting underthe Fugitive Offenders Act is not subject to the Appellate Jurisdic-tion of the Court. See 38 Cal. 547; see also 11 Mad. 26. Noappeal lies from an order of this lrind (see 14 Halsbury 427).Counsel also referred to 41 Cal. 400; 42 Cal. 793.
The part of the Act which applies to convicted prisoners Issection 34. The Order in Council of January 2, 1918 (see Govern-ment Gazette of March 28, 1918), which groups Ceylon with Kedah,
1930.
1980.
In re Oana-pathipiUai
( 4S8 )
refers only to the inter-colonial backing warrants in part II.Section 84 is ih part IV., and is not referred to in the said Orderin Council.
The Order in Council of October 24, 1016, does not refer "to Ceylon.The Courts in Kedah cannot ask for surrender of a convicted personacting under section 34 of the Act.
The warrant in question is not duly authenticated as required bysection 29. It is authenticated by the British Adviser. That isnot enough. The signature of the Judge has not been proved asrequired by the Act.
Akbar, Acting 8.-0. (with him Bias, C.G.), for the Crown.—Itwas held in Ceylon that the Supreme Court has jurisdiction to act inrevision in these matters. See Allee v. Palaniappa Chetty.1
The Indian cases were decided under the Extradition Act, theprovisions of which are different from the Fugitive Offenders Act,Sections 21 and 40 of the Courts Ordinance give the Supreme Courtample powers to deal in revision with an application of this kind.Counsel also referred to P. C. Colombo, 6,142;3 The King v.Noordeen; 3 41 Gal. 400; 42 Cal. 793.
It is not necessary that section 34 should be specially broughtinto force in any place by a special Order in Council. Section 36gives power to the King to apply the Act to other than BritishColonies. The Order in Council of 1916 introduced the whole Actto Kedah, although it was not a British Colony or Possession.Both the Orders in Council of 1916 and 1918 should be read together.
The warrant is properly authenticated, as it is authenticated bythe British Adviser. The term “ Governor ” is made to mean the“ British Adviser ” for the State of Kedah by Order in Council of1916.
A. St. V. Jayawardene, in reply, referred to Bohom’s CriminalProcedure Code, p. xv.
Cur. adv. vuIt.
May 11, 1920. De Sampayo J.—
This is an application by the Solicitor-General for the revisionof an order of the Police Magistrate of Colombo refusing to orderone Ganapathipillai, for whose arrest a warrant had been issued bythe authorities of Kedah, to "be returned to Kedah. It appearsthat Ganapathipillai was convicted by the High Court of Kedahfor the offence of attempting to cheat, and was sentenced to threemonths’ imprisonment, and that, pending an appeal, which hetook, he absconded and fled to Colombo. A provisional WarrantWas issued by the Police Magistrate of Colombo, to whom applica-tion was made by the local police on cable instructions from Kedah.
(1917) 19 N. L. B. 334.3 S. 0. Min. Jan. 23,1917.
• (1910) 13 N. L. B. US.
( 488 )
for the arrest of Ganapathipillai. He surrendered to Court,, andwas enlarged on bail pending the arrival of an indentifying officerwith the original warrant. On March 19, 1919, an Inspector ofPolice, Kedah, who had in the meantime arrived, produced thewarrant, and identified Ganapathipillai. His extradition was,however, resisted on the ground (1) that part IV. of the FugitiveOffenders Act, 1881, relating to the backing of warrants and escapeis not applicable to the State of Kedah, and (2) that the warrantwas not duly authenticated. These objections were upheld by thePolice Magistrate, and the prisoner, Ganapathipillai, wasdischarged.
Before dealing with the above questions, I must dispose of anobjection taken to the application for revision. It is contendedon behalf of the prisoner that the provisions of the Courts Ordi-nance and the Criminal Procedure Code with regard to the powersof revision vested in the Supreme Court are inapplicable to theproceedings under the Fugitive Offenders Act, which itself containsno provision for appeals or applications for revision, and that aPolice Magistrate acting under the Fugitive Offenders Act is nota Magistrate whose proceedings in that respect are subject to theordinary appellate or revisionary jurisdiction of the SupremeCourt. In support of this contention, Mr. A. St. V. Jayawardenecited the Indian case Stallman v. Emperor.1 But that decision isnot at all in point. In the first place, it was not a case under theFugitive Offenders Act, but one under the Indian Extradition Act,1908. The prisoner in that case was a German, and the case wasgoverned by the Extradition Treaty between England and Germany.The procedure in such cases under the Extradition Act is for theExecutive Government to refer the matter to a Magistrate to makeinquiry and report the result to Government. The High Court, towhich an application was made to quash the proceedings, of theMagistrate on certain grounds, held that it had no jurisdiction tointerfere in the matter, that the functions of the Magistrate, werewholly dependent on the authorization of the Executive Govern-ment, and that any aggrieved person must apply to the Governmentand not to the Appellate Court, to whose jurisdiction the Magistrateacting under the Extradition Act was not subject.In the next
place, the Police Magistrate of Colombo is acting in this matter,not under the orders of the Executive Government, but under thestatute, nor is his duty merely to report to Government. He isexercising jurisdiction in his ordinary capacity as Police Magistrate,and is acting judicially.
The Indian case, Gulli Sahu v. Emperor,2 which was also a caseunder the Extradition Act, so far as it decided that the executionof a warrant by a Magistrate in British India under the ExtraditionAct is an executive act, and that his proceedings cannot be interfered
i (1911) I. L. B. 38 Cal. S47.
» (1913) I. L. R. 41 Cal. 400 ; (1914) I. L. B. 42 Cal. 793.
1S80.
Da SumoJ.
In re CouthpaMptBai
with by the High Court, is, for the reasons above given, equallyinapplicable to the present case. But it is noticeable that the-Court at the same time held that where the order of the Magistrate^was in fact without jurisdiction, the same was revisable by the High.Court. I think that the Supreme Court, to which'section 21 (2}of the Courts Ordinance gives the “ sole and exclusive cognizanceby way of appeal and revision of all causes, suits, actions, prose-cutions, matters, and tilings of which such original Court may havetaken cognizance,” has jurisdiction to revise and correct the pro^ceedings of the Magistrate acting under the Fugitive Offenders Act.This view is in accord with the decision of Shaw J. in Allea v.Palariiappa Chetty.1 I am, therefore, free to consider the applica-tion on its merits.
With regard to the main objections, it is convenient to make someanalysis of the Fugitive Offenders Act and to state its relevantprovisions. The Act consists of four parts. Part I. under theheading ” Return of Fugitives ” provides that where a personaccused of having committed an offence in one part of the Britishdominions has left that part, suoh person if found in another partof the British dominions shall be liable to be apprehended andreturned in manner provided by the Act to the part from which heis a fugitive. Then follow provisions for the endorsing by certainauthorities of the part in which the fugitive is found of any warrantissued in the part in which the offence has been committed, andfor the apprehension of such offender thereunder and for bringinghim before a Magistrate. A Magistrate of any part of the Britishdominions may also issue a provisional warrant for the apprehensionof a fugitive. When the fugitive is brought before the Magistrate,provision is made for dealing with him and for committing hinn toprison to await his return, and, eventually, to return him to theplace from which he is a fugitive. Part II. of the Act is concernedwith ‘‘Inter-Colonial Backing of Warrants and Offences.”Section 12 provides that “ this part of the Act shall apply only tothose groups of British Possessions to which by reason of theircontiguity or otherwise it may seem expedient to His Majesty toapply the same,” and further provides that ” it shall be lawful forHis Majesty from time to time by Order in Council to direct thatthis part of . the Act shall apply to the group of British Possessionsmentioned in the Order.” The other provisions of this parthave to do with the proceedings to be taken fori, the return of afugitive from one British Possession to another, arid need not beparticularly mentioned. Part IH. relates to trial of offences undercertain circumstances, and does not bear on the present case.Part IV. of the Act, with which the argument in this case ischiefly concerned, relates to endorsement of warrants conveyanceof fugitives, escape of prisoners from custody, authentication of
» U917) 19 N. L. R. 334.
( 486 )
depositions and warrants, and exercise of jurisdiction by Magis-trates, Ac. Of the provisions of this part of the Act, that which ismore directly applicable to this case, is section 34, which is asfollows:—
" Where a person convicted, by a Court in any part of HisMajesty’s dominions, of an offence committed either inHis Majesty’s dominions or elsewhere is unlawfully at largebefore the expiration of his sentence, each part of this Actshall apply to such person, so far as it is consistent withthe tenor thereof, in like manner as it applies to a personaccused of the like offence committed in the part of HisMajesty’s dominions in which such person was convicted.”
With regard to places out of the British dominions, section 36enacts that “ it shall be lawful for Hiq Majesty from time to timeby Order in Council to direct that this Act shall apply as if anyplace out of His Majesty’s dominions, in which His Majesty hasjurisdiction and which is named in the Order, were a British Posses-sion, and to provide for carrying into effect such application.”And by the Amending Act, 44 and 46 Viet., c. 69, His Majesty wasempowered by Order in Council to apply the Fugitive OffendersAct to any place or group of places over which His Majesty extendshis protection. Accordingly, by Order in Council dated October24, 1916, it is ordered that the Fugitive Offenders Act, 1881,shall apply as if the States named in the schedule to the Orderwere British Possessions. The States or Protectorates named inthe schedule are the Federated Malay States, Johore, Kedah andPerlis, Kelantan, Brunei, and North Borneo. It is thus clear thatthe protected State of Kedah is one to which the Fugitive OffendersAct, 1881, applies. It remains to show how Ceylon is broughtinto relation with Kedah. As above stated, in part II. of theAct, which -provides for *' Iinter-Colonial Backing of Warrants, ”occurs section 12, which enacts that that part of the Act shall applyonly to those groups of British Possessions to which by reason oftheir contiguity or otherwise it may 8&em expedient to His Majestyto apply the same, and by which power is given to His Majesty byOrder in Council to direct that that part of the Act shall apply tothe group of British Possessions mentioned in the Order. Accord*ingly, by Order in Council dated January 2, 1918, and publishedin the Government Gazette of March 28, 1918, British India, certainColonies including Ceylon, and certain protected States includingKedah, were grouped together for the purpose of inter-colonialbacking of warrants under part II. of the Act. It is on the circum-stance that in this Order in Council part II. of the Fugitive OffendersAct, 1881, is made applicable to these Colonies and States that thefirst objection to the proceedings is founded, namely, that the otherparts of the Act do not apply. This ignores the fact, which I havealready mentioned, that by the previous Order in Council of October
192a
Ds Sampayo-J.
In re Oana-paMfiOai
( 486 )
in.
Ii Saxpayo.
J.
In re Gkma-patMpXai
24, 1916, the Fugitive Offenders Act as a whole is made applicableto the States mentioned. It was then only necessary to extend tothe group oi ColonieB and States in question part II. oi the Actrelating to backing of warrants, and this is all that was dune bythe Order in Council of March 28, 1918. I, therefore, think that thefirst objection is not well founded.
The next question is as to the due authentication of the warrant.By section 29 of the Act it is enacted that warrants, inter alia, shallbe deemed duly authenticated for the purposes of the Act if theypurport to be signed by a Judge, Magistrate, or officer of the partof His Majesty’s dominions in which the same are issued, and areauthenticated either by oath of some witness or by being sealedwith the official seal of a Secretary of State or with the publicseal of a British Possession or with the official seal of a Governorof a British Possession. The argument is that in the circumstancesof this case the warrant should have been authenticated by theofficial seal of a Governor. The warrant in this case is signed bythe Chief Judge of the High Court of Kedah, in which Ganapathi-pillai was tried and convicted, and is authenticated by the BritishAdviser, Kedah. Now, by the Order in Council of October 24,1916, already referred to, it is declared that as regards Kedah,Perlis, and Kelantan, the “ Governor ” shall mean the officer forthe time being exercising the functions of British Adviser. It is,therefore, quite clear that the warrant has been duly signed andauthenticated.
The objection taken on behalf of Ganapathipillai being untenable,the order of the Magistrate is set aside, and the proceedings are sentback to the Magistrate, with directions that he should take thenecessary steps under the Fugitive Offenders Act, 1881, for appre-hending again the prisoner Ganapathipillai and for returning himto the State of Kedah.
On May 15, 1920, the petitioner surrendered to Court, filed anaffidavit, and moved the Court to exercise its powers undersection 19, and to consider whether in all the circumstances of thecase it would not be injurious or offensive to surrender him. TheMagistrate declined to do so. The accused appealed.
The following was the affidavit filed:—
I, Sangarapillai Ganapathipillai,of Karadive East, in the District
of Jaffna, presently at Colombo,do hereby solemnly and sincerely
declare and affirm as follows:—
I am the accused in Kedah criminal case No. 86/86.
A warrant has been . issued by the Government of Kedah formy arrest under the Fugitive Offenders Act, 1881.
The Malay Judge who tried the case with Mr. Gibson was, tothe best of my knowledge and belief, not versed in English law andprocedure, and was totally ignorant of the English language.
Thesaid Mr.Gibson was also the Legal Adviserto the Govern-
ment of Kedah.
Lawyers arenot allowed toappear inthe Kedah Courts.Mr.
IsaacTambiah,Advocate, asked for leaveto appear onmy behalf, and
he was told that the leave could not be granted, and that there was noobjection to his appearing as a spectator.
TheState Council, to whichI appealedfrom thedecision ofthe
HighCourt inthe above case, consisted offour Malays,being no better
in point of legal attainments and knowledge of the English languagethan the Malay Judge who was associated with Mr. Gibson.
That myreturn under the FugitiveOffenders Actis not sought
for in good faith and in the interests of justice.
There was no definite charge framed against me under any law.
Myimportantwitnesses werenot heard,althoughapplicationwas
made by me.
There isno guarantee that I shallbe allowed toserve my term
in safety.
U. I have several enemies in thePublicWorks Department, who
are solely responsible for the charge that was laid against me.
On my return furthercharges are sure tobe framed againstme,
and I shall be condemned toserve a furtherterm of imprisonment,and
Kedah authorities will deal with me severely.
I have given securityin a sum of 2,000dollars when I waslet
out on bail, pending the appeal, to the State Council, and this securityhas now been forfeited.
In Ceylon I was arrested once and I surrendered twice, and onall these occasions I had to spend large sums of money in retainingcounsel and otherwise in obtaining my release.
The fact that the Kedah authorities are persistently trying to
get me arrested shows thattheirintention istoharass me, and Ifear
that if I am returned to Kedah some harm might be done to my life.
A. St. V. Jayawardene (with him Arulanandan), for appellant.
Dias, G. G., for respondent.
June 4, 1920. De Sajepayo J.—
This case is once more before me on an appeal by the prisonerGanapathipillai. When the record went back' with my orderdirecting the Magistrate to tak,e the necessary steps under theFugitive Offenders Act for the return of the prisoner to the State ofKedah, his proctor filed an affidavit from the prisoner, and, for thereasons stated therein, moved that the Court “ do inquire into thefacts of the case and peruse the proceedings of the Kedah Courtand take other evidence, and that the Court do make an orderreleasing the fugitive S. Ganapathipillai under section 19 of theFugitive Offenders Act, 1881. The appeal is from an order of theMagistrate refusing this motion, and ordering that the prisoner beremanded and handed over to the Inspector of Kedah to be takenby him to Kedah,
1980.
Da SampatoJ.
tnreOana-
pathipiUai
( 488 )
Section 19 of the Fugitive Offenders Act, 1881, upon which the.motion is based, is as follows:—■
Where the return of a prisoner is sought or ordered under thispart of this Act, and it is m%de to appear to a Magistrateor to a superior court that, by reason of the trivial nature ofthe case or by reason of the application for the return ofsuch prisoner not being in good faith in the interests ofjustice or otherwise, it would, having regard to the dis-tance, to the facilities of communication, and to ell thecircumstances of the case, be unjust, or oppressive, or toosevere a punishment, to return the prisoner either at all oruntil the expiration of a certain period, the Court or Magis-trate may discharge the prisoner either absolutely or onbail, or order that he shall not be returned until after theexpiration of the period named in the order, or may makesuch other order in the premises as to the Magistrate orCourt seems just.
Crown Counsel has argued that this section does not apply toconvicted prisoners, to whom by section 34 each part of the Act ismade applicable, “ so far as is consistent with the tenor thereof. ”But I can see nothing in the tenor of the above section which isinconsistent with the exercise of jurisdiction under it in regard to aconvicted prisoner. The only question appears to me to be whetherin the circumstances of this case the jurisdiction ought to be exer-cised. It is the affidavit of the prisoner which discloses the groundson which he makes the motion. The affidavit in substance states(1) that the Malay Judge of the High Court who with Mr. Gibson,the Legal Adviser to the Government .of Kedah, tried the case wasnot versed in English law and procedure and was ignorant of theEnglish language, (2) that lawyers are not allowed to appear inthe Kedah Courts, and that Mr. Isaac Tambiah, Advocate, was,therefore, not allowed to appear on the prisoner’s behalf, (3) that theState Council which heard his appeal was no better in legal attain-ments and knowledge of English than the Malay Judge who triedthe case, (4) that no definite charge was framed against the prisoner,
that his witnesses were not heard, (6) that there was no guaranteethat he would be allowed to serve his term of imprisonment in safety,as he had several enemies in the Public Works Department, whowere solely responsible for the charge against him, and. wero likelyto make further false charges against him, and (7) that his returnunder the Fugitive Offenders Act was not sought for in good faithin the interests of justice.
This is a kind of wild affidavit containing general statements,upon which it is impossible to act. We cannot in Ceylon, go intothe question of the competency of the Kedah Judges. If a Ceylonman were voluntarily to settle in Kedah and become employed inits Public Service, he must generally accept for better or for worse
( 489 )
the constitution of the country and the inode of administration ofjustice there. But having had submitted to me a copy of theproceedings, whioh the prisoner desired the Magistrate to peruse,I find nothing wrong in the procedure. A definite charge was framedagainst the prisoner before the trial began, and he pleaded to it. Anumber of witnesses were examined both for the prosecution andfor the defence, including the prisoner himself, end, after a lengthytrial, the Court gave a well-reasoned judgment. It is true that theprisoner asked for a postponement as some other witnesses were notready, but the Court noted that he had not taken out subpoenas, andthe Police who searched for the witnesses could not find them in theState of Kedah. No Court in Ceylon can sit in judgment on theKedah Court or re-hear a case to see whether a convicted personwas guilty or not, but if I had to express an opinion, I should saythat the proceedings were quite regular, that the prisoner had everyreasonable opportunity of defending himself, and that the con-viction was sound. The only statement in the affidavit relevant tothe provisions of section 19 is that the prisoner’s extradition is notasked for in good faith in the interests of justice. Mr. Jayawardeneemphasizes the words “ or otherwise ” in the passage regarding theapplication for the return “ not being in good faith in the interestsof justice or otherwise,” and argues that the prisoner is entitled toshow any circumstances, such as the prisoner’s innocence, which willrender his return unjust. But, in my opinion, the words “ orotherwise ” go with the words “ in the interests of justice,” andenable the Court to say in a given case that lack of good faith wasdue to some cause other than that tike application was not in theinterests of justice, mid I think that the words have reference onlyto the question of good faith. This is a different thing from sayingthat the Court can go into the question of guilt or innocence of thefugitive. The affidavit is wholly silent as to the reason why goodfaith in connection with the extradition warrant is impeached.The prisoner cannot expect the Court to enter .upon a Wide andindefinite inquiry such as is suggested. The prosecutor is not a privateindividual but a public department, of which the prisoner wasan officer, and the offence is cheating, which cannot be said to betrivial within the meaning of section 19. His return would havebeen made long ago but for the various legal objections he success-fully maintained in the Police Court from time to timer and he can-not say that his return now will be oppressive. The inquiry asked forwill involve the consumption of an unnecessary and purposelessamount of time and trouble. In my opinion the Magistrate wasright in refusing to embark upon the kind of inquiry which theprisoner’s affidavit would have necessitated, and 'in making theorder for prisoners’ return in accordance with the directionscontained in the previous order of the Supreme Court.
The appeal is dismissed.
1980.
Da SakfatoJ.
In re (fan*paiJwpiUcA
Appeal dismissed.
( 490 )
1920.
The accused thereupon applied to the Supreme Court for anorder admitting him to bail pending an appeal to the PrivyCouncil.
Elliot (with him Croos-Dabrera), in support.
Akbar, Acting S.-O. (with him R. F. Dias, C.G.), for the Crown,
June 10, 1920. De Sampayo J.—
This is an application for an order admitting the applicant tobail. The applicant is a fugitive offender, who escaped fromthe State of Kedah, in which he was convicted, to Ceylon. By aprevious order of this Court the Magistrate was directed to takethe necessary steps under the Fugitive Offenders Act to returnthe applicant to the State of Kedah. It appears that . theMagistrate, in pursuance of that order, has issued notice tothe applicant to appear before him on the 16th instant. Itappears to me that this application for bail is hardly in order.The applicant is not in custody, and bail is hardly a matter appli-cable to him in the present circumstances. But I am willing toconsider the real difficulty in connection with the application.The question is whether this Court has jurisdiction in a matter like -this to make order for bail. The particular reason for asking forbail is that the applicant has instructed a proctor or counsel toprepare papers for an .application to the Privy Council for specialleave to appeal from the order of this Court and from the convictionin the State of Kedah. Here, again, it appears to me that thestage has not been reached in which the applicant would be entitledto make an application on such a ground. But we have no powerconferred upon us to make order for bail, except so far as. chapterXXXVI. of the Criminal Procedure Code provides for it- Mr. El-liott, for the applicant, relies on section 396 of that chapter. Thescope of that section has already been considered in the case of TheKing v. Lokunona.1 It was pointed out there that section 396,which empowers this Court to admit to bail “ in any case,” onlyrefers to persons accused, and not to persons who have been con-victed. It happened that in that case Lokunona was convicted ofthe offence of murder in the Siipreme Court, and on an applicationto the Privy Council leave to appeal was granted, and when a furtherapplication was made to the Privy Council to admit the accusedto bail, or to order the sentence of hard labour to be suspended,the Privy Council observed that such an application should bemade to the local Government or to the Supreme Court. In thosecircumstances the Court in that case had only to consider whether
» (1908) 11 N. L. R. 120.
( 491 )
section 396 applied to a person who was already convicted. Butthe more serious' question is whether, in the case of a personwho has not been tried or oonvioted in any Ceylon Court, section396 has any application. The expression “ in any case ” appearsto me to refer to the class of oases dealt with by the previous sectionof that chapter, and in the case of a fugitive offender, the proceed-ings taken under the Figitive Offenders Act to return him to theState from which he is a fugitive are in no way contemplated by thatchapter. Mr. Elliott further cited the English case of The Queen v.Spilsbury.1 There the English Court held they had jurisdiction,because under the common law the Court had. power to makeorders for bail in all cases. But in Ceylon the Supreme Court hasno such common law power. Its power and jurisdiction areregulated by statute, namely, either the Courts Ordinance or theCriminal Procedure Code. It is for this reason that Mr. Elliottso strongly relied on section 396 of the Criminal Procedure Code.He also referred us to an Indian case reported in the Indian LawReports, 24 Mad., p. 161, where, in a case of conviction under theIndian Code, leave to appeal having been granted by the PrivyCouncil the High Court of Madras considered that it had power toadmit the prisoner to bail pending the decision of the Privy Council.But the Indian section corresponding to section 396 appears to bedifferent in a very important particular. Our section runs asfollows:“ The amount of every bond executed under this chapter
shall be fixed with due regard to the circumstances of the caseand shall not be excessive, and the Supreme Court may in anycase direct that any person be admitted to bail, or that the bailrequired by a Police Magistrate be reduced or increased. ” But inthe Indian section the following words occur after the words “ inany case, ” “ whether there be an appeal on conviction or not, ” thusgiving to the expression “ in any case ” a very wide scope.Whatever the authority of the Indian case may be, I think we arebound by the view expressed in the case of The King v. Lokunona,1already referred to, and I follow it the more readily, because It.hinlr myself that the Court has no power' or jurisdiction to admita person to bail in such circumstances as the present. I would,therefore, refuse this application.
1980.
Db SampayoJ.
Applicationfor Bail
Dias A.J.—
I am clearly of opinion that this Court has no power to grant therelief asked for in this application. The accused has committed nooffence in this country for which bail could be granted or refused,and Mr. Elliott, who very ably argued his case, relied upon section396 of the Criminal Procedure Code, and contended that this Courthad power in any case to admit a person to bail. The two previous.
1 (1898) 2 Q. B. 619.* (1908) 11N. L. B. 120.
21/37
( 492 )
sections of this chapter refer to the granting of bail by Magistratesin cases of bailable offences and in cases of non-bailable offences,and section 396 confers power on the Supreme Court in any case todirect that a person be admitted to bail, or that the bail requiredby the Magistrate to be reduced or increased. Clearly that expres-sion “ in any case ” can only refer to the cases referred to in thetwo' previous sections, and is not of general application. We havebeen referred to no other statute which confers power on this Courtto entertain an application of ibis kind, and I think that thisapplication has no legal justification for it. It must, therefore, bedisallowed.
DisdUowed.