JAYANTHI SILVA AND TWO OTHERS v. ATTORENEY-GENERAL

013-SLLR-SLLR-1997-V3-JAYANTHI-SILVA-AND-TWO-OTHERS-v.-ATTORENEY-GENERAL.pdf


CA
Cynthia da AMs v. Marjorie d'Atwis and Two Others
(F. N. D. Jayasuriya, J.)
117
JAYANTHI SILVA AND TWO OTHERS
v.
ATTORNEY-GENERAL
COURT OF APPEALGUNASEKERA. J.. P/CA.,
SILVA. J.
C.A. 875/96, 2/97,13/97.
C. COLOMBO 50001/91.
Criminal Procedure – Criminal Procedure Code read with sections 102 and113(B) of Penal Code – Offence Triable by a Magistrate's Court and also by aHigh Court – if convicted by the Magistrate's Court entitled to Bail as of rightpending appeal in view of section 323 Criminal Procedure Code – If conviction bythe High Court a discretion is vested in the Judge of the High Court to considerBail – Section 333(3) – Exceptional Circumstances – Section 325(3)Administration of Justice Law.
The High Court refused an application for Bail. In Revision it was contended thatthe requirement of exceptional circumstances to be established for Bail to begranted pending appeal if the conviction was before the High Court imposes anunwarranted fetter on an accused so convicted as against an accused convictedfor a similar offence before a Magistrate Court and was discriminatory.
Held:
As the law stands today under the provisions of the Code of CriminalProcedure Act the statute itself draws a distinction between cases where anappeal against a conviction is preferred from an order made by a MagistrateCourt (Section 323(i)) and an order made by a High Court (Section 333 (3)).
The words 'The High Court’ may subject to Section 333(4) may admit theappellant to bail pending the determination of his appeal in subsection 3 ofSection 333 clearly vests a discretion in the High Court to decide whether to grantBail to an accused who have been convicted or to refuse to grant Bail pendinghis appeal.
118
Sri Lanka Law Reports
[1997] 3 Sri L.R.
The discretion to grant or refuse Bail must be exercised judicially and notarbitrarily or capriciously.
Over the years a principle has evolved through judicial decisions that Bailpending appeal from conviction by Supreme Court would only be granted inexceptional circumstances.
PerGunasekera J.
“The fact that an accused has in fact absconded whilst being on Bail pendinghis appeal in one case or several cases should not be taken into account tothe disadvantage of another accused whose application for Bail is beingconsidered."
The appellate court would interfere where a Judge has given weight toconsiderations which are irrelevant or taken into account extraneousconsiderations in exercising his discretion which would amount to an abuse of thediscretion vested to act judicially.
Appellate court should not consider the fact that an accused has been on Bailpending his appeal as a relevant factor in the event of the dismissal of the appealas a reason as to why he should not serve the sentence imposed.
APPLICATION in Revision from the Order of the High Court of Colombo.
Cases referred to:
Ramu Thamotheram Pillai v. Attorney-General S.C. 141/75
Ward v. James 1965 – 1 All E. R. 563 at 571
King v. Keerala – 48 NLR 202
John Henry Charles Earnest Howeson, Louis Hardy – 1936 25 CriminalAppeal Courts 167
Queen v. Rupasinghe Perera – 62 NLR 238
Queen v. Coranelis Silva – 72 NLR 113
Salahudeen v. Attorney-General- 77 NLR 262
Queen v. Punchi Banda etal-62 CLW 15
Queen v. Suppar Navaratnam – SC 11 MC Jaffna Criminal appeal No. 138/62
1936, 25 Criminal Appeal Report 167
Ormered v. Tadmerden Joint Stock Mills Company Ltd., 1882 – QBD 669 at679
Charles Osfenton Company v. Johnson- 1941 2 All ER 245 at 259
CA
Jayanthi Silva and Two Others v. Attorney-General
(D. P. S. Gunasekera, J.(P./C.A.))
119
D. S. Wijesinghe, P.C. with Lai Karunaratne for the petitioner in 875/96.Panjit Abeysuriya, P.C. with Anil Silva for the petitioner in 2/97.
Tilak Marapona, P.C. with Nalin Laduwahetti for petitioner in 13/97.
S. Samaranayake, S.C. tor Attorney-General in 875/96.
A. H.M. D. Navaz, S.C. for Attorney-General in 2/97 and 13/97.
Cur. adv. vult.
August 7.1997.
D. P. S. GUNASEKERA, J. (P/C.A.)
The three Applications in Revision were considered together as thequestion involved was the same and was concerned with the sameorder made by the Learned High Court Judge on 4.12.96 refusing anapplication for bail pending appeal. After hearing Counsel for thepetitioners and the Attorney-General by our Order dated 14th March1997 we set aside the Order of the Learned High Court Judgerefusing bail and directed that the accused be released on bailpending appeal subject to the conditions set out therein.
The three accused-respondents were indicted before the HighCourt of Colombo with having conspired to cheat the GeneralManager of the People's Bank, Colombo punishable under section403 read with sections 102 and 113(B) of the Penal Code and wereconvicted after trial and sentenced to a term of 5 years R.l and to afine of Rs. 50,000/- each on 30.7.96. Against the said conviction andsentence they had preferred an appeal. Pending the consideration oftheir appeals the petitioners had filed three applications for bail onbehalf of the accused-respondents in terms of the provisions ofsection 333 of the Code of Criminal Procedure Act.
The grounds urged on behalf of the accused-respondents for thegranting of bail inter alia were as follows
Considering the serious misdirections made by the LearnedHigh Court Judge there was a reasonable prospect of theappeal being allowed by the Court of Appeal.
That a period of 5 years imprisonment has been considered asa short period for the granting of bail pending appeal.
120
Sri Lanka Law Reports
[1997] 3 Sri L.R.
The long period of time taken in the High Court of Colombo forthe preparation of the appeal briefs and the delay in hearingthe appeals would make any order in favour of the accused bythe Court of Appeal futile.
The accused-respondents were suffering from a mentaldisorder called ‘manic depression’ (4th accused) and the 3rdaccused from 'Diabetis mellistus’ which needed properspecialist medical care.
That the accused-respondents had never been charged forany offence apart from this case in which they were convicted.
That they were the sole bread winners of their families and thattheir wives and children would be destitute if they areincarcerated and the education of their children would suffer.
That the accused-respondents have been present in the HighCourt on all dates of trial and would not abscond in the eventof their appeals are dismissed.
At the hearing of these applications Mr. Abeysuriya P.C. submittedthat an offence punishable under section 403 read with 113(B) and102 of the Penal Code was triable by a Magistrate’s Court and alsoby a High Court but was regarded as being non bailable. If convictedan accused so convicted had a right of appeal. If the conviction wasbefore a Magistrate’s Court an accused so convicted is entitled tobail as of right pending his appeal in view of section 323 of the Codeof Criminal Procedure Act, but if the conviction was before a HighCourt a discretion is vested in the Judge of the High Court toconsider whether bail should or should not be granted during thependency of the appeal in terms of section 333(3) of the Code. It wastherefore the contention of Learned President’s Counsel that therequirement of exceptional circumstances to be established for bailto be granted pending appeal if the conviction was before the HighCourt imposes an unwarranted fetter on an accused so convicted asagainst an accused convicted for a similar offence before aMagistrate’s Court and was discriminatory.
We are unable to agree with this contention of learned President’sCounsel since the decision of Vaithyalingam, J. in RamuThamotheram Pillai v. Attorney General10 decided over twenty-five
CA
Jayanthi Silva and Two Others v. Attorney-General
(D. P. S. Gunasekera, J.(P./C.A.))
121
years ago the provisions of law relating to bail has undergone achange. At the time of the said decision the applicable provision wassection 325 (3) of the Administration of Justice Law which read asfollows: “when an appeal against a conviction was lodged, the courtmay admit the appellant to bail pending the determination ofhis appeal and this provision was applicable to all three courtsexercising criminal jurisdiction namely, the Magistrate's Court, theDistrict Courts and the High Courts and the same principleslaid down as guidelines for the exercise of the discretion vestedunder the section was of general application to all three courts. It wasdecided in that case that in deciding how the discretion shouldbe exercised the determining factor was not the Court from which theappeal had been preferred but the facts and circumstancesof each case and Vaithyalingam, J. rejected the contention oflearned Counsel for the petitioner that the legislative history ofthe section shows that what the legislature intended wasthat ordinarily bail should be granted unless there were goodgrounds for refusing it.
As the law as it stands today under the provisions of the Code ofCriminal Procedure Act the statute itself draws a distinction betweencases where an appeal against a conviction is preferred from anorder made by a Magistrate’s Court and an order made by a HighCourt. The relevant provisions are sections 323(1) and 333(3).
Section 323(1) dealing with appeal from Magistrate's Courtsprovides that “When an appeal has been preferred the court fromwhich the appeal is preferred shall order the appellant if in custody tobe released on his entering into a recognizance in such sum and withor without a surety or sureties as such, court may direct conditions toabide the judgment of the Court of Appeal and to pay such costs asmay be awarded.”
Provided always that the appellant may if the court from which theappeal is preferred thinks fit instead of entering into a recognizancegive such other security by deposit of money with such court orotherwise as that court may deem sufficient.
323(2) provides-that “Upon the appellant's entering into suchrecognizance or giving such other security as aforesaid he shall bereleased from custody."
122
Sri Lanka Law Reports
[ 1997] 3 Sri L.R.
Section 333 dealing with appeals from convictions by the HighCourts in subsection 3 provides that “when an appeal against aconviction is lodged the High Court may subject to subsection (4)admit the appellant to bail pending the determination of his appeal.An appellant who is not admitted to bail pending the determination ofthe appeal be treated as in such manner as may be prescribed byrules made under the Prisons Ordinance.
Therefore we are of the view that the argument that an accusedwho had been convicted by a High Court in respect of an offence forwhich he could have been tried and convicted by a Magistrate’sCourt is entitled to bail as of right pending his appeal is untenable.
The words “the High Court may subject to subsection (4) mayadmit the appellant to bail pending the determination of his appeal insubsection (3) of section 333" clearly vests a discretion in the HighCourt Judge to decide whether to grant bail to an accused who havebeen convicted or to refuse to grant bail pending his appeal. Thediscretion to grant or refuse bail must be exercised judicially and notarbitrarily or capriciously. Lord Denning MR in the case of Ward v.James'* at 571 stated that “the cases all show that when a statutegives a discretion the Courts must not fetter it by rigid rules fromwhich a Judge is never at liberty to depart. Nevertheless the Courtscan lay down the considerations which should be borne in mind inexercising the discretion and point out those considerations whichshould be ignored. This will normally determine the way in which thediscretion is exercised and thus ensure some measure of uniformityof decisions. 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."
Over the years a principle has evolved through judicial decisionsthat bail pending appeal from convictions by the Supreme Courtwould only be granted in exceptional circumstances.
In King v. Keerata(3) in considering an application for bail pendingappeal made under the provisions of section 15 of the Court ofCriminal Appeal Ordinance 23 of 1938 provided that “the Court ofCriminal Appeal may if they think fit on the application of the
CA
Jayanthi Silva and Two Others v. Attorney-General
(D. P. S. Gunasekera, J.(P./C.A.j)
123
appellant admit the appellant to bail pending the determination of hisappeal. Wijewardena, J. held that “the Court of Criminal Appeal doesnot grant bail in applications for bail in the absence of exceptionalcircumstances."
In that case the appellant had been convicted on a charge ofculpable homicide not amounting to murder and sentenced to twoyears rigorous imprisonment on 7th January 1942. He filed thepetition of appeal to the Court of Criminal Appeal on 8th January andthe hearing of the appeal had been set down for 2nd February 1942.The grounds on which the application for bail was made were
that the accused was allowed bail pending trial in the SupremeCourt;
The accused is a person of good character with no previousconvictions; and
the accused is unable to retain Counsel unless he is enlargedon bail.
In his judgment Wijewardena J. referred to the case of John HenryCharles Earnest Howeson, Louis Hardyw In that case the accusedhad been convicted at the Central Criminal Court on 21st February1936 of an offence punishable under section 84 of the Larceny Actand the 1st accused sentenced to 12 months imprisonment and 2ndto 9 months. The application for bail pending appeal was refusedafter the grant of a certificate for appeal by the trail Judge holdingthat there were no exceptional circumstances sufficient to justify thegranting of bail. In refusing bail Talbot, J. made the observation that“there Is every reason to anticipate that the hearing of the appealwill not be postponed for long.”
In Queen v. Rupasinghe Perera™ Basnayake C.J. with Sansoni, J.and Sinnathamby, J. held that bail is not granted by the Court ofCriminal Appeal unless there are exceptional circumstances.
In Queen v. Coranelis Silva™ the accused had been convicted ofattempted murder and sentenced to four years imprisonment.
124
Sri Lanka Law Reports
[1997] 3 Sri LR.
Pending his appeal application for bail was made to the Court ofCriminal Appeal. The application was refused the court holding thatno exceptional circumstances had been established with theobservations by Weeramanthry, J. that “the mere circumstance thatthe hearing of the appeal is not likely to take place for a fortnight or amonth is of itself no ground."
In Salahudeen v. Attorney-Generalm Samarawickrema, J. refusedbail to an accused who had been convicted of attempted culpablehomicide and sentenced to three years rigorous imprisonmentpending his appeal on the ground that no exceptional circumstanceshad been made out.
In Ramu Thamotheram Pillai v. Attorney-General (Supra) bail wasrefused to the Appellant who was convicted of attempted murder andsentenced to seven years rigorous imprisonment pending his appealon the ground that no exceptional circumstances have been made out.
From a consideration of the decisions referred to above and thelegal provisions as a general principle there is no doubt thatexceptional circumstances must be established by an appellant if thediscretion vested in a High Court to grant him bail pending thedetermination of his appeal is to be exercised in his favour. But thisby no means should be taken to be the invariable and inflexible rulefor Justice Vaithiyalingam, J. himself recognised it in the case ofThamotheram Pillai v. Attorney-General (Supra) when he observedthus “But the requirement of exceptional circumstances should notbe mechanically insisted upon merely because the case is from theHigh Court. Even in the case of a High Court it is possible for anappellant to have been convicted of a trivial offence and to havebeen given a very light sentence. For instance a man charged withmurder may ultimately be found guilty of only causing simple hurtand be sentenced to a short term of imprisonment. In such a casethe Court would not expect the appellant to show that exceptionalcircumstances existed before granting bail. In this regard even underthe Court of Criminal Appeal Ordinance the position was the same.Thus in the case Queen v. Punchibanda et alm at 15. The petitionerswere charged with being members of an unlawful assembly thecommon object of which was to cause hurt and also with murder.
CA
Jayanthi Silva and Two Others v. Attorney-General
(D. P. $. Gunasekera, J.(P./CA.))
125
They were found guilty only of the charge of unlawful assembly andwere sentenced to six months rigorous imprisonment. The applicationfor bail was allowed. In his judgment Weerasuriya, J. made noreference to exceptional circumstances but said, that “in view of theshort sentence and as I understand from the Deputy Registrar of theCourt of Criminal Appeal that the appeal filed by the petitioners willnot be listed for hearing at the next sitting of the Court of CriminalAppeal and also in my opinion, it is unlikely that the petitioners willabscond in the event of their appeals being dismissed. I Order thateach of them be released on his furnishing bail.” Thus it is to be seenthat although the case was one of a conviction of trial before theSupreme Court the Court took into consideration the nature of theoffence of which the appellants were convicted, the lightness of thesentence imposed, the improbability of their absconding and thedelay in hearing the appeal in granting bail.
What then are the considerations to be taken into account indetermining the question as to whether an accused who has beenconvicted before the High Court should or should not be released onbail pending his appeal when exercising the discretion vested. Aswas stated by Vaithiyalingam, J. “the main consideration of course iswhether if his appeal should fail the appellant would appear in courtto receive and serve his sentence. When the offence is grave and thesentence is heavy the temptation to abscond in order to avoidserving the sentence in the event of his appeal failing would ofcourse be grave. In such cases the Court would require the appellantto show the existence of exceptional circumstances to warrant thegrant of bail pending appeal.” Some of the other factors that havebeen considered to be relevant in deciding this question as set out inthe decided cases are the nature of the offence of which theappellant has been convicted, the lightness of the sentence imposedthe improbability of the accused absconding, the likelihood of theappellant committing other offences, the likelihood of the appellanttaking revenge on the witnesses who have testified against him at thetrial, the existence of tension between the parties which might beinflamed as a result of the convicted person being released on bailpending the determination of his appeal, the chances of success orfailure of the appeal the delay in the hearing of the appeal, a present
126
Sri Lanka Law Reports
[1997] 3 Sri L.R.
illness that such continued incarceration would endanger the life ofthe appellant or cause permanent impairment of his health theseconsiderations however, are not exhaustive. For instance in the caseof Queen v. Suppar Navaratnarrf*' where the appellant was indictedfor attempted murder but was found guilty of voluntarily causinggrievous hurt and sentenced to 3 years rigorous imprisonment therewere a number of grounds on which the application for bail wassupported. One of which was that whilst the appellant was in prisonhis wife had given birth to her first child who was been neglected bythe appellant’s parents as they had disapproved of his marriage. Thiswas considered to be an exceptional circumstances which wassufficient to justify his being released on bail pending his appeal.
In the instant case it was submitted by all three President's Counselappearing for the petitioners that the learned Trial Judge had failed toconsider the long delay that would lapse between the conviction of theaccused-appellants and the hearing of their appeals and contendedthat in the order refusing bail dated 4.12.96 according to theobservations of the learned Trial Judge herself that “the preparation ofthe appeal brief of this case would take a period of two years since thebriefs for 1994 are being currently prepared" and submitted that by thetime the appeals of the accused appellants are heard that at leastmore than half the period of the sentence of five years would have tospend by them in incarceration in terms of the provisions of subsection(3) to section 333 of the Code of Criminal Procedure Act and that theAdministrative delay in the preparation of the appeal briefs by the HighCourt should not be held against them for refusing bail pending theirappeals. In support of this contention learned Counsel relied on theobservations of Talbot, J. in the case reported in 1936 25 CriminalAppeal Report 167(l01 that “there is every reason to anticipate that thehearing of the appeal would not be postponed for long,” andWeeramanthry, J. in Queen v. Coranelis Silva (Supra) that “the merecircumstance that the hearing of the appeal is not likely to take placefor a fortnight or a month is itself no ground."
In addition to the grounds urged above Mr. D. S. Wijesinghe P.C.appearing for the petitioner in C.A. 875/96 filed on behalf of the 3rdaccused-respondent submitted that the 3rd accused-respondentbeing the sole bread winner of his family was totally responsible for
CA
Jayanthi Silva and Two Others v. Attorney Genera/
(D. P. S. Gunasekera, J.(P./C.A.))
127
the education of his two children one of whom was presently studyingat the Symbiosis College of the University of Poona. India. It wassubmitted that the 3rd Accused-Respondent while in service of thePeople’s Bank had been guest lecturer at the National Institute ofBusiness Management and at the Professional Education Service atAlexandra College, Colombo and was supplementing his incomefrom those sources which he made use of to finance the education ofhis child in India. He had been deprived of that income on account ofhis incarceration and that the Professional Education Service ofAlexandra College had indicated its willingness to continue to employhim on payment of Rs. 15,000/- per month. In the event he looses thatincorTje the education of that child would get disrupted andsubmitted a letter from the Professional Education Service ofAlexandra College to that effect. This is a matter that has been urgedas an exceptional circumstances before this court and we are unableto consider this fact as an exceptional circumstances since thismatter had not been urged before the learned High Court Judge aswe are of the view that had this matter being urged before thelearned High Court Judge perhaps the learned High Court Judgemay have taken this fact as a matter in his favour.
Mr. Marapana P.C. appearing for the petitioner in C.A. 13/97 inaddition to the submissions made by the other Counsel submittedthat there is every chance that the appeal of the 4th accused-respondent would succeed since the learned Trial Judge hadmisdirected herself in having failed to consider the items of evidencethat were favourable to the 4th accused-respondent which clearlyshowed that his conviction cannot be sustained and contended that itwas a matter that should have been taken into consideration by thelearned Trial Judge in considering the application made on hisbehalf. In our view this may not be a relevant fact in the presentcontext because unlike prior to 1974 when an application for bailpending appeal had to be made to the Appellate Court at present theapplication has to be made to the same Court in which the accused-appellant was convicted and it is very unlikely that the trial Judgewho convicted the accused would take the view that the accusedhad been wrongly convicted.
It is to be observed that in the petitions and affidavits of thepetitioners filed before the High Court in the application for bail
Sri Lanka Law Reports
[1997] 3 Sri L.R.
128
pending appeal it has been specifically averred that the accused-appellants had appeared in the High Courts on all dates of trial andwould not leave the country and would appear to receive and servetheir sentence if their appeals were dismissed.
This averments made by the petitioners had not been denied bythe Respondent nor has any affidavits been filed by any officer of theCriminal Investigations Department who had done the investigationsinto the case controverting this position and intimating to court thatthere is credible information that the accused-appellants weremaking arrangements to leave the country or that there is everylikelihood of their doing so.
On a consideration of the Order the Learned High Court Judgeappears to have acted on extraneous and irrelevant considerations inholding that the petitioners have not made exceptionalcircumstances. Whilst correctly holding that it is untenable that anaccused convicted of an offence who seeks bail pending appealneed not establish exceptional circumstances to be granted bail theLearned Judge had proceeded to state “learned Senior StateCounsel has strongly objected to bail being granted on the basis thatno exceptional circumstances have been made out and that in anyevent if the accused were granted bail that they would abscond. Wefind no support at all for the submission that the accused wouldabscond in the event they are granted bail made by the Senior StateCounsel since no affidavit have been filed to that effect to which wehave referred earlier.
The fact that an accused has in fact absconded whilst being onbail pending his appeal in one case or several cases should not betaken into account to the disadvantage of another accused whoseapplication for bail is being considered. The learned High CourtJudge appears to have been influenced by this irrelevant factor inrefusing bail in the instant case for in the order refusing bail it isstated thus at page 16 "since the decision of Vaithiyalingam, J.circumstances have arisen in this country which also must be takeninto account in considering such bail applications. The advent ofmigration of labour, easier modes of travel, accessibility ofopportunity to travel to those to whom such facilities were not
CA
Jayanthi Silva and Two Others v. Attorney General
(D. P. S. Gunasekera. J.(P./C.A.))
129
available in the mid seventies has led to a consequential mobility ofaccused which places law enforcement officers at a distinctdisadvantage. Hampered by overwork, under staffing, and lack ofaccess to modern technology due to budgetary constraints onlycomprehends the existent problems. All these directly or indirectlyassist the accused in absconding the due process of law. Thenumber of accused who leave the island after obtaining bail are oftenonly detected when the order of the Appellate Court come back forenforcement by the original courts and by then the accused are longgone often on false papers and documents and it makes it almostimpossible to trace their whereabouts.
The figure of absconding accused during the last year hasaffected the hearing of 40% of the cases in this Court alone. Thecase of the Deputy Director of Education Nanayakkara stands as oneof the best examples, where the Supreme Court has affirmed theconviction and sentence of an offence committed more than 10years ago but the accused who is employed in the U.S.A. cannot beimposed his sentence by this court because he is absconding thedue process of law. As in all such cases confiscation of the bail bonddoes not help as the monies had in any event being advanced by theaccused himself with the result even the sureties go unpunished."
Lord Denning MR in Ward v. James (Supra) at 570 stated that“whenever a Statute confers a discretion on a Court or a Judge theCourt of Appeal has jurisdiction to review the exercise of thatdiscretion and dealt with the circumstances in which an AppellateCourt would interfere with the exercise of the discretion vested in aTrial Judge See also the case of Ormered v. Tedmerden Joint StockMills Company Limited”> at 679.
In Charles Ostenton & Company v. Johnson,a at 259 stated that“the true proposition is that the Appellate Court can and will interfereif it is satisfied that the Judge was wrong. Thus it will interfere if it cansee that the Judge has given no weight (or no sufficient weight) tothose considerations which ought to have weighed him" we are of theview that the Appellate Court would also interfere where a Judge hasgiven weight to considerations which are irrelevant or taken intoaccount extraneous considerations in exercising his discretion whichwould amount to an abuse of the discretion vested to act judicially.
130
Sri Lanka Law Reports
[ 1997j 3 Sri L.R.
Before we conclude we think that it is appropriate to make anobservation which is relevant and which should be given dueconsideration. It is to be observed in our experience in sitting on thebench dealing with appeals from the High Courts in criminal casesthat there is a tendency of Counsel who appear for the appellantswho have been granted bail pending their appeals to move this Courtto give preference to those cases in which the accused are incustody pending their appeals and when their appeals are ultimatelytaken up to submit that circumstances of their clients have changedduring the period that they have been on bail pending appeal. Suchas that they have since got married and have infant children whoneed their attention and care, or have secured employment and aregainfully employed or are studying for professional examinations andthat giving effect to the custodial sentences imposed by the TrialCourts in the event of their appeals being dismissed should beavoided.
We are of the considered and firm view that an accused-appellantwho has persuaded the Trial Court to exercise its discretion in hisfavour in granting bail pending the determination of his appealshould not be permitted to take advantage of the benefit of thediscretion exercised in his favour to avoid serving a custodialsentence which has been imposed on him after due considerationand that the Appellate Court should not consider the fact that anaccused has been on bail pending his appeal as a relevant factor inthe event of the dismissal of the appeal as a reason as to why heshould not serve the sentence imposed.
J. A. N. DE SILVA, J. -1 agree.
Applications allowed.
Accused released on bail.