022-SLLR-SLLR-2009-V-1-RUPATHUNGA-vs-ATTORNEY-GENERAL-AND-ANOTHER.pdf
170
Sri Lanka Law Reports
[2009] 1 SRI LR.
RUPATHUNGA
vsATTORNEY GENERAL AND ANOTHER
COURT OF APPEALRANJITH SILVA, J.SALAM, J.
CA PHC APN 85/08HC PANADURA NO. 2035FEBRUARY 13, 2009
BailActNo. 30ofl997-Section 14,Section 14(a)Section 14(l)-Section 15Cancellation of bail – Circumstances?-Cancellation capricious, arbitrary,unjust?
The accused-petitioner was released on bail by the Court of Appeal.When the main case came up for trial an application was made by theState seeking an order of cancellation of bail in view of the fact that hehad committed another offence. The bail order was cancelled. It wascontended in the revision application filed by the accused-petitionerthat, the High Court has not given any reason for the cancellation of thealready existing bail order.
Held:
Per Ranjith Silva, J
“It is pathetic to note that the High Court Judge has not evenbeen mindful of Section 14 and Section 15 of the Bail Act whenshe made the impugned order. These are orders which could be
founded as capricious, arbitrary and unjustwhat shocks
the conscience of this Court is that the High Court Judge has noteven cared to provide an opportunity to the accused, at least toshow cause as to why bail should not be cancelled instead hasconsidered some extraneous matters which are not even coveredby Section 14 and has rushed to the conclusion that bail shouldbe cancelled which I shall say is indecent”. 1
(1) With regard to the cancellation of bail the relevant Section of theBail Act is Section 14 and under Section 15 – Court has to givereasons in writing for such refusal or cancellation or variation.
CA
Rupathunga Vs Attorney General and another
(Ranjith Silva, J.)
171
APPLICATION in revision from an order of the High Court of Panadura.
Dr. Ranjith Fernando for petitioner.
Damithini de Silva for respondent.
Cur.adv.vult
February 13, 2009RANJITH SILVA, J.
This is an application made in revision in a matterconcerning bail arising from an order made by the learnedHigh Court Judge dated 24.09.2007
Document marked as ‘g’ was produced along with thepetition to show that the particular accused was released onbail by this Court, in a murder case bearing No. HC Panadura93/2007 marked as f.
We notice that State Counsel is not objecting to thisapplication for revision which is a matter of significance.
When the main case came up before the learned HighCourt Judge on 24.09.2007 for trial an application for a datewas made on behalf of counsel for the accused Mr. AjithPerera, Attomey-at-Law on the grounds of ill health andthat application had been allowed. Thereafter the learnedState Counsel on the same day had made an applicationbefore the learned High Court Judge seeking a cancellationof bail ordered on the accused, in view of the fact that he hadcommitted another offence. (Vide. “F”)
At this stage the Court notes that it is in respect of thatother offence namely the murder case that this Court hasmade order granting bail on the accused as indicated by thedocument marked T. On a perusal of the impugned order,at page 26, the learned High Court Judge has purported to
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give her reasons for cancelling bail. The reasons assigned bythe learned High Court Judge is that, as the accused wasunable to remember the names of his sureties, she wasproceeding to cancel the bail order. Other than that thereisn’t a single reason assigned by the learned High CourtJudge for cancelling the existing bail.
With regard to the cancellation of bail, the relevantSection of the Bail Act is Section 14. According to Section 14,
Court can either refuse or cancel already existing bail forthe following reasons.
Section 14 (a). That such person would
not appear to stand his inquiry or trial
Interfere with the witnesses or the evidence against him orotherwise obstruct the cause of justice; or
Commit an offence while on bail; or that the particulargravity of, and public reaction to, the alleged offence maygive rise to public disquiet.
Section 15 of the Bail Act states that where a Courtrefuses to release on bail any person suspected oraccused of, or being concerned in committing or havingcommitted any offence or cancels a subsisting order releasinga person on bail or rescinds or varies an order cancelling asubsisting order it shall state, in writing the reasons forsuch refusal, cancellation or rescission or variation as thecase may be. Therefore, it is the bounden duty of a HighCourt Judge to state reasons when she is cancelling analready existing bail order. The reasons are set out inSection 14 and it is for those reasons that an alreadyexisting bail order could be cancelled. On a perusal of thisimpugned order we find that she had not given any reason asenumerated in Section 14. Apart from what has alreadybeen stated what shocks the conscience of this Court is
CA
Rupathunga Vs Attorney General and another
(Ranjith Silva, J.)
173
that this particular learned High Court Judge had noteven cared to provide an opportunity to the accused, atleast to show cause as to why bail should not be cancelledinstead has considered some extraneous matters whichare not even covered by Section 14 and has rushed to theconclusion that bail should be cancelled which I should sayis indecent. Although it is pertinent to note that the samelearned High Court Judge on a subsequent'date namely on11.07.2008 when an application was made to reconsiderthe cancellation of bail, has made an order wherein she hasstated that when she ordered a cancellation of bail she actedunder Section 14 (1)(a)(3) of the Bail Act whereas she hadnot even mentioned that particular Section in her impugnedorder dated 24.09.2007. Having completely failed to refer,even in passing, to Section 14 of the Bail Act or any provisionof the Bail Act, on 11.07.2008 she has stated in her order thatshe considered the application for bail under Section 14(1) ofthe Bail Act. It is pathetic to note that the learned High CourtJudge has not even been mindful of Sections 14 and 15 ofthe Bail Act when she made the impugned order. These areorders which could be branded as capricious, arbitrary andunjust. Therefore, we set aside the said impugned order and thelearned High Court Judge is directed to forthwith release theaccused from remand custody. We also direct the registrarof this Court to forward copies of this order to theSecretary to His Lordship Hon. Chief Justice and theSecretary to the Judicial Services Commission along withexhibits marked as ‘f and ‘g’.
Acting in revision we set aside the impugned order of thelearned High Court Judge of Panadura dated 24.09.2007.
SALAM, J. – I agreeApplication allowed.