RUPASENA AND ANOTHERv.
HUSSAIN BABU AND OTHERS
COURT OF APPEALGUNASEKERA. J. (P/CA) AND
J.A. N. DE SILVA. J.
C. COLOMBO: HCBA 4107/96.
MARCH 19, 1997.
Code of Criminal Procedure Act – Sureties – Directed to deposit money in cashwith 2 sureties acceptable to court – Default – Sureties remanded – Is it lawful -Section 422 of the Code of Criminal Procedure Act, 15 of 1979.
There is no provision in law for the High Court Judge to remand sureties.
It is to be noted the provisions with regard to failure of the sureties to fulfil theirobligation have been set out in Section 422 of the Criminal Procedure Code.Upon the failure of the two sureties to produce the accused in court, the learnedTrial Judge should have notified the sureties to show cause as to why the bondshould not be cancelled.
APPLICATION in Revision against the Order of the High Court of Colombo.
S. Wijesinghe, P.C., with Manohara R. de Silva for petitioners.
A. H. M. D. Nawaz S.C., for Attorney-General
Cur. adv. vult.
GUNASEKERA, J. (P/CA)
This is an application for revision against the order of the LearnedHigh Court Judge dated 10.02.1997 by which order the LearnedHigh Court Judge has directed the two sureties of the originalaccused which sureties are the petitioners to this application todeposit a sum of Rs. 50,000/- in cash with two sureties acceptable toCourt and made order, that in default of the deposit of the said bailthat the petitioners be remanded.
Mr. D. S. Wijesinghe P.C., submits that the petitioners were onremand consequent to the said order of the Learned High CourtJudge and contended that there is no provision in law for theLearned High Court Judge to have made the order remanding thesureties.
Mr. Nawaz, S.C. who appears for the Attorney-General concedesthat there is no provision in law for the High Court Judge to havemade the said order which is sought to be impugned in theseproceedings. From the record which has been called for from theHigh Court and which has been produced before this Court by theRegistrar, Mr. S. P. de Silva who is present in Court, it appears that inHigh Court bail application No. 4107/96 that the accused A. HarrisHussain Babu had been released on bail in a sum of Rs. 150.000/- incash with two sureties subject to the conditions referred to in theorder of the Learned High Court Judge dated 27.06.96. Consequentupon that order, by a bail bond dated 04.07.96 one Thahra SheriffMohamed Jusrin of Siyambalagaskotuwa, Pahamune had depositeda sum of Rs. 150,000/- and receipt No. 931123 of 04.07.96 hasbeen issued. The two petitioners Rajapakse PathiranageDon Rupasena of No. 109/9, Vinayalankara Mawatha, Colombo 10and Sudath Senaka Hettiyakanda of No. 18, Udyana Road,Bambalapitiya have stood as sureties for the accused and executeda bond dated 04.07.96. On an examination of the said twobonds signed by the sureties it is to be observed that althoughthe Learned High Court Judge by his order dated 27.06.96 hasdirected that the sureties should sign a cash bond for a sum ofRs. 150,000/-, the bond itself shows that the sureties had signed apersonal bond.
On 13.11.96 the O.I.C. of the Narcotics Bureau had reported toCourt that the accused who had been released on bail had violatedthe conditions of bail and failed to report as directed by the order ofthe Learned High Court Judge dated 27.06.96. On a consideration ofthe report of the O.I.C. of the Narcotics Bureau the Learned HighCourt Judge had issued a warrant on the accused and the suretiesreturnable on 27.11.96, (vide journal entry dated 13.11.96). On
the warrant had not been executed and neither the accusednor the sureties had been produced. Thereupon the Learned HighCourt Judge had issued an open warrant on the accused and thesureties returnable on 20.01.97. In the meantime on 04.12.96 anAttorney-at-Law filed a motion on behalf of the sureties and hadmoved that the case be called in Open Court. The case has beencalled and the motion had been refused as it had not beensupported. Thereafter on 06.12.96 another motion had been filed withnotice to the Learned State Counsel by an Attorney-at-Law andmoved that the case be called on that date. On that date the suretieshad surrendered before the Court and an application had been madeon behalf of the sureties for a week’s time to produce the accusedstating that they had information that the accused was somewhere inthe Ragama area. The warrant on the sureties had been recalled andthe sureties had been warned as the sureties failed to secure theattendance of the accused. They had been warned that on the nextdate that their bond for Rs. 150,000/- each would be cancelled in theevent the accused was not produced. The case was fixed to becalled on 16.12.96.
On 16.12.96 the sureties had been present and they had movedfor a further date to secure the attendance of the accused. TheLearned High Court Judge had directed the sureties to depositsecurity in a sum of Rs. 25,000/- each in cash with two acceptablesureties on their behalf and issued an open warrant on the accused.The case was fixed to be called again on 10.01.97. In consequenceof this order it appears from the record that the two sureties hadentered into two bonds dated 23.12.96 with Mohamadu SamoonSiyam of No. 555 Alabadagama, Pannala as surety and a sum ofRs. 50,000/- had been deposited and receipt No. 932492 of 16.12.96had been issued. From the record it appears that some other suretybond dated 23.12.96 had been signed on behalf of the suretiesRajapakse Pathiranage Don Rupasena and Sudath SenakaHettiyakanda who were the petitioners and that Mahamed SamunKaleel-ur-Rahaman and Abdul Sukoor Mohamed Maheer ofMuhandiram Road, Colombo 3, and Pitiduwa Gamage Lalith Nihaland D. C. Chandrasena have signed as sureties. From the record itappears the O.I.C. Narcotics Bureau by his report dated 24.11.96had notified the Registrar that the accused and the 1st surety
Rajapakse Pathiranage Don Rupasena could not be apprehended.This report had not been journalised and it had come up on 27.11.96.'On a consideration of the report the Learned High Court Judgewithout considering what had happened earlier, had re-issuedwarrant on the accused and the sureties and directed the case to becalled on 20.01.97. On 04.12.96 a motion had been filed on behalf ofthe two petitioners to have the warrant issued on them recalled andthe said application had been refused. Thereafter on 5.12.96 amotion had been filed on behalf of the sureties and the warrant thatwas re-issued had been re-called and the sureties had been warnedthat the case would be called on 16.12.96.
On 16.12.96 the two sureties had been released on bail in a sumof Rs. 25,000/- in cash with two sureties acceptable to court, as thesureties who were produced on behalf of the petitioners were notacceptable on 23.11.96 the Court had accepted the four suretiesnamed in the proceedings on that date as sureties for the petitioners.On 10.01.97 the case had been called and the sureties had beenpresent. The sureties had moved for a month’s time to produce theaccused. Learned State Counsel had submitted that the sureties hadbeen released on bail inadvertantly since the sureties had moved fortime to produce the accused. The case was directed to be called on
The proceedings on 10.02.97 reveals that an open warranthad again been issued on the accused as he was absent. The twopetitioners who stood as sureties for the accused had been presentand represented. The Court had directed that the sureties bereleased on bail in a sum of Rs. 50,000/- each in cash with twosureties acceptable to the Learned High Court and in default of thedeposit of the security that thq sureties be remanded. Inconsequence of this order it is submitted that the petitioners wereremanded.
We have considered the proceedings held before the LearnedHigh Court Judge and as conceded by the Learned State Counselthat there is no provision for the learned High Court Judgeto have made the orders dated 10.02.97 and 16.12.96. Inthe circumstances we set aside the orders dated 16.12.96 and
It is to be noted the provisions with regard to failure of the suretiesto fulfil their obligations have been set out in section 422 of the Codeof Criminal Procedure Act, No. 15 of 1979. When the original order forbail for the accused in a sum of Rs. 150,000/- in cash with twosureties was made by the Learned High Court Judge on 20.07.96,the two petitioners had stood as surety for the accused in a sum ofRs. 150,000/- each upon the failure of the two sureties to produce theaccused in Court the learned Trial Judge should have, in our view,notified the sureties to show cause as to why the bond in a sum ofRs. 150,000/- should not be cancelled. This the learned High CourtJudge has failed to do. Instead of that he had made several orderswhich are sought to be impugned which were unwarranted. Sincebail in a sum of Rs. 50,000/- has already been deposited on behalf ofthe two sureties we direct the two sureties Rajapakse PathiranageDon Rupasena and Sudath Senaka Hettiyakanda to deposit a sum ofRs. 125,000/- each in satisfaction of the bond that they had enteredinto on 04.07.96. Upon compliance with this order for deposit of asum of Rs. 125,000/- each that the petitioners be released fromcustody.
The Registrar is to forward copies of this order to the learned HighCourt Judge. A copy may be issued to counsel for the petitioner onpayment of usual charges.
The original record in this Case No. 4107/97-HCBA and theReceipt Book containing duplicates 931101-931202 are returned tothe Registrar of the High Court.
J. A. N. DE SILVA, J. -1 agree.Application allowed.