Nithyananthan and Others v. Attorney-General
NITHYANANTHAN AND OTHERS
COURT OF APPEAL
A. G. DE SILVA. J.. B. E. DE SILVA. J. AND SIVA SELLIAH. J.
C. A. APPLICATIONS 482/82. 483/82. 491 /83. 492/83 and 496/83H. C. COLOMBO 1198. 1199. of 1 983.
JUNE 15. 1983.
Criminal Law — Bail pending trial under Prevention of Terrorism (TemporaryProvisions) Act. No. 48 of 1979 — Jurisdiction — Section 2A of CriminalProcedure (Special Provisions) Act No. 15 of 1978 (amended by Act No. 54 of1980) — Section 404 of the Code of Criminal Procedure Act — Sections 15(2)of the Prevention of Terrorism (Temporary Provisions) Act. as amended by ActNo. 10 of 1982.
A prerequisite for the Appeal Court to exercise its power under section 404 ofthe Code of Criminal Procedure Act is the existence of an order of an originalcourt whether it be the Magistrate's Court or High Court either allowing orrefusing bail or fixing a sum as security which is reviewable by the Court ofAppeal. Where the original court has no jurisdiction to grant bail to personscharged with offences under the Prevention of Terrorism (Temporary Provisions)Act pending trial the appellate powers of the Court of Appeal cannot be invoked.
Section 404 can have no application to offences under the Prevention ofTerrorism Act as they are not only merely non-bailable ; the original courts arespecifically barred from granting bail pending trial.
Case referred to :
(1) In re Ganapathipillai 21 NLR 490-492.
APPLICATION for bail
Bala Tampoe with S.C. Chandrahasan, /. Xavier and Sirinivasam for petitioner inApplication No. 363/83.
Bala Tampoe with S. Mahenthiran. K. Aravindan. A. Kirupaidasan andR. Selvaskandan for petitioner in Application No. 482/8/28.
Bala Tampoe with S. Mahenthiran, /. Xavier. K. Aravindan. A. Kirupaidasan andR. Selvaskandan for petitioner in Application No. 483/81.
Bala Tampoe with S.C. Chandrahasan. I. Xavier and Sivapadakumar forpetitioner in Application No. 491/83 and 492/83.
Bala Tampoe with S.C. Chandrahasan. I. Xavier and Sivapadakumar forpetitioner in Application No. 496/83.
G. L. M. de Silva. S.S.C. with K. Kumarasiri. S.C. for Attorney-General.
Cur. adv. vult
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01 JULY. 1983
A. G. DE SILVA, J.
The above applications were consolidated and argued beforeus, and we make order thereon as follows
The Petitioners in these applications have been at sometimetaken into custody by the security forces. At a subsequent stateall of them have been served with detention orders under theprovisions of the Prevention of Terrorism (Temporary Provisions)Act no. 48 of 1979. In February 1982. all of them weresservedwith indictments charging them with offences under thePrevention of Terrorism (Temporary Provisions) Act. and are nowon remand on orders of the High Court of Colombo.
In all these applications, the Petitioners severally seek that theybe released on bail pending their trial.
Learned Senior State Counsel on behalf of the Respondent hastaken two preliminary objections to the hearing of theseapplications. The first was that this Court had no jurisdiction toentertain these applications under-Section 2A of the CriminalProcedure (Special Provisions) Act No. 15 of 1978 as amendedby Act No. 54 of 1980. The second objection was that a personremanded by the High Court, pending trial, for an offence underthe Prevention of Terrorism (Temporary Provisions) Act has noright to be released on bail.
In regard to the first objection, learned Senior State Counselpoints out to the fact that all the applications for bail which arebeing dealt with in this Order are captioned: "In the matter of anapplication for Bail under Section 2(A) of the Criminal Procedure(Special Provisions) Act No. 15 Of 1 978 as amended by Act No.24 of 1 979 and No. 54 of 1 980".
Section 2A of the Criminal Procedure (Special Provisions) Actas amended by Act No. 54 of 1980 states that —
"notwithstanding anything to the contrary in any otherlaw, a person referred to in paragraph (a) of Section* 2
CA Nithyananthan and Others v. Attorney-General (H. A. G. de Silva. J.j 253
shall not be admitted to bail by the Court of Appeal otherthan in exceptional circumstances."
Paragraph (a) of Section 2 states that —
"Every Court before which any person surrenders himselfor is produced on arrest on an allegation that he hascommitted or has been concerned in committing, or issuspected to have committed or to have been concernedin committing, an offence set out in the First Schedulehereto shall keep such person on remand until theconclusion of the trial."
A perusal of the First Schedule as amended, shows thatoffences under the Prevention of Terrorism (TemporaryProvisions) Act are not included therein. Therefore an applicationfor bail under Section 2A of the Criminal Procedure (SpecialProvisions) Act No. 15 of 1979 as amended by Act No. 25 of1979 and 54 of 1980 will not be available in the case of aperson charged for an offence under the Prevention of Terrorism(Temporary Provisions) Act seeking bail.
Learned Counsel for the Petitioners conceded at the hearingthat invocation of the provisions of the Criminal Procedure(Special Provisions) Act was not relevant to these applications.
As regards the second objection taken by the learned SeniorState Counsel, it was submitted that nowhere in the Preventionof Terrorism (Temporary Provisions) Act. has provision beenmade for persons accused of offences under that Act to bereleased on bail pending trial.
Section 7(1) of this Act deals with remand orders to be madeby a Magistrate, when a person arrested under Section 6(1) isproduced before him. directing that such person be remandeduntil the conclusion of his trial except where the Attorney-General consents to his release from custody. Sub-section (2)thereof enjoins the Court before which a person convicted withor concerned in or reasonably suspected to be connected with or
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concerned in the commission of any offence under the Act,appears or* is produced other than in the manner referred to insub-section (1), to order the remand of such person until theconclusion of the trial.
Section 15(2) of the Act as amended by Act No. 10 of 1982states that —
"Upon the indictment being received in the High Courtagainst any person in respect of any offence under thisAct, or any offence to which the provisions of Section 23shall apply the Court shall in every case, order to remandany such person until the conclusion of the trial."
It would be under this provision that the Petitioners are nowbeing held in remand after service of indictment and pendingtrial.
Section 19 of this Act, the marginal note ot which states —"Provisions of any written law relating to the grant of bail not toapply to persons accused of any offence under this Act" enactsas follows :—
"Notwithstanding the provisions of any other writtenlaw —
every person convicted by any court of any offence underthis Act shall, notwithstanding that he has lodged apetition of appeal against his conviction or the sentenceimposed on him be kept on remand until thedetermination of the appeal;
any order made under the provision of sub-section (4) ofsection 14 shall, notwithstanding any appeal madeagainst such order, continue in force until thedetermination of such appeal;
Provided however, that the Court of Appeal may in exceptionalcircumstances release on bail any such person referred to inparagraph (a) subject to such conditions as the Court of Appeal
CA Nithyananthan and Others v. Attorney-General (H. A G. de Silva. J.)255
may deem fit, or vary or suspend any order referred to inparagraph (b)."
The learned Senior State Counsel submitted that no Court,whatsoever, has been given the power by the Prevention ofTerrorism (Temporary Provisions) Act to enlarge on bail pendingtrial any person whose trial on indictment is pending before theHigh Court, while in the case of a person convicted of an offenceunder the Act the Court of Appeal has been given by the provisoto Section 19. the power, he submits is a special power orjurisdiction conferred on the Court of Appeal by the provisions ofthis Act. In this connection he referred to Article 138 of theConstitution. He submitted that the jurisdiction of the Courtconsists of the appellate, revisionary etc. jurisdiction conferredon it by paragraph (1) of that Article and the appellate andoriginal jurisdiction which may be vested in it by Parliament, andreferred to paragraph (2) of that Article. It was his submissionthat the jurisdiction to release on baij conferred on the Court ofAppeal by Section 2A of the Criminal Procedure (SpecialProvisions) Act 15 of 1 978 as amended by Act No. 54 of 1980,as well as that jurisdiction referred to in the proviso to Section 19of the Prevention of Terrorism (Temporary Provisions) Act. fellwithin the original jurisdiction referred to in paragraph (2) ofArticle 138 of the Constitution. A similar jurisdiction had beenconferred on the Court of Appeal, he submitted, by Section 10 ofthe Offensive Weapons Act No. 18 of 1966 which makesoffences under that Act non-bailable except on orders of theAppeal Court. Since the High Court that would try the offenceswith which the Petitioners were charged had no jurisdiction torelease on bail, any person charged with such an offence underthe Prevention of Terrorism (Temporary Provisions) Act whetherpending trial or after conviction, the question of invoking theappellate jurisdiction of the Court of Appeal did not arise.
Learned Counsel for the Petitioners submitted that this Courthad a general or unrestricted jurisdiction conferred on it bySection 404 of the Code of Criminal Procedure Act No. 1 5 of1979. The marginal note of this Section is as follows :— "Bail not
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to be excessive and the Court of Appeal may admit to bail in anycase while the Section itself reads thus
"The amount of every bond executed under this Chaptershall be fixed with due regard to the circumstances of thecase and shall not be excessive; and notwithstandinganything to the contrary in this Code or any other law theCourt of Appeal may in any case direct that any person incustody be admitted to bail fixed by the High Court, orMagistrate be reduced or increased, or that any personenlarged on bail by a Judge of the High Court orMagistrate to be remanded to custody."
Learned Counsel further submitted that the requirement ofexceptional circumstances to be present for the Court of Appealto grant bail as is contemplated by Section 2A of the CriminalProcedure (Special Provisions) Act as amended and by theproviso to Section 19 of the Prevention of Terrorism (TemporaryProvisions) Act were restrictions placed by those statutes on theunrestricted power to grant bail in all cases given by Section 404of the Code of Criminal Procedure Act to the Court of Appeal. Ifthis contention is correct that Section 404 of the Code ofCriminal Procedure Act gives an unrestricted power to the Courtof Appeal to release on bail in all cases, what was then thenecessity for the special jurisdiction to grant bail in cases ofoffences under the Offensive Weapons Act to be given to theCourt of Appeal by Section 10 of the Offensive Weapons Act ?
He also contended that the general power that the High Courthas to enlarge on bail persons charged before it on indictment,had been expressly taken away by Section 15(2) of thePrevention of Terrorism (Temporary Provisions) act as amendedby Act No. 10 of 1982. This fact does not in our view affect thepowers of the Court of Appeal which are the ones underconsideration in this Order.
CA Nithyananthan and Others v. Attorney-General (H. A G. de Silva. J.)257
Learned Senior State Counsel in our view correctly contendedthat the power given to the Court of Appeal by Section 404 is anappellate power and that a prerequisite for its exercise is theexistence of an order of an original Court whether it be theMagistrate's Court or the High Court either allowing or refusingbail or fixing a sum of security which is reviewable by the Courtof Appeal. Therefore, since the original Court, and in this case,the High Court, has no jurisdiction to grant bail to personscharged with offences under the Prevention of Terrorism(Temporary Provisions) Act, pending trial, the powers of theCourt of Appeal under Section 404 of the Code of CriminalProcedure Act cannot be invoked.
In re Ganapathipillai (1) which dealt with Section 396 of theCriminal Procedure Code (Cap. 20) now repealed, which was theSection corresponding to Section 404 of the Code of CriminalProcedure Act, at page 491 De Sampayo. J. states—
"Mr. Elliot further cited the English case of the Queen v.Spilsbury. There the English Court held they hadjurisdiction because under the common law the Courthad power to make orders for bail in all cases. But inCeylon, the Supreme Court has no such power. Its powerand jurisdiction are regulated by Statute, namely, eitherthe Courts Ordinance or the Criminal Procedure Code. Itis for this reason that Mr. Elliot so strongly relies onSection 396 of the Criminal Procedure Code."
Dias A.J. in his judgment in the same case in pages 491 and 492says:—
"and Mr. Elliot who very ably argued his case, relied
upon Section 396 of the Criminal Procedure Code andcontended that this Court had power in any case to admita person to bail. The two previous Sections of thisChapter refer to the granting of bail by Magistrates incase of bailable offences and in cases of non-bailableoffences, and Section 396 confers power on the
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Supreme Court in any case to direct that a person beadmitted to bail, or that the bail required by theMagistrate to be reduced or increased. Clearly thatexpression "In any case" can only refer to the casesreferred to in the two previous Sections, and is not ofgeneral application."
While Section 396 of the Criminal Procedure Code (Cap. 20)corresponds to Section 404 of the Code of Criminal ProcedureAct. the corresponding provisions to Sections 394 and 395 ofthe Criminal Procedure Code are Sections 402 and 403respectively of the Code of Criminal Procedure Act. Section 402deals with the granting of bail in bailable offences and Section403 deals with circumstances when bail may be granted in casesof non-bailable offences. As far as the offences under thePrevention of Terrorism (Temporary Provisions) Act areconcerned they are not merely non-bailable, the original Courtshave been specifically barred from granting bail. ThereforeSection 404 can have no application, in any event, to offencesunder the Prevention of Terrorism (Temporary Provisions) Act.
The learned Senior State Counsel finally submitted that takinginto account the preamble to the Prevention of Terrorism(Temporary Provisions) Act and the scheme of the Act andparticularly Section 28 of the Act which states that the provisionsof that Act are to prevail over other written law. Parliament has bynecessary implication taken away from the Court of Appeal anyappellate jurisdiction it would have had to review an orderregarding bail given by an original Court as all original Courtsincluding the High Court have been expressly or by necessaryimplication been deprived of their jurisdiction to grant bail foroffences under that Act. Neither has the Prevention of Terrorism(Temporary Provisions) Act specifically given the power to theCourt of Appeal, whether in exceptional circumstances or not. togrant bail pending trial.
CA Nithyananthan and Others v. Attorney-General (H. A. G. de Silva. J )259
We are of the view that both objections taken by the SeniorState Counsel to the hearing of these applications are entitled tosucceed and we would therefore dismiss all these applications.
E. DE SILVA, J. — I agree
SIVA SELUAH, J. — I agree
NITHAYANTHAN AND OTHERS v. ATTORNEY-GENERAL