The Attorney-General V Chandrasena
THE ATTORNEY-GENERALVCHANDRASENACOURT OF APPEALA. DE1. GUNAWARDENA,J ANDISMAIL,J
C. A. APPLN NO. 589/90
H. C. BADULLA CASE NO 27/89
M. C MONERAGALA CASE NO. 16083
NOVEMBER 22, 1990 AND JANUARY 10, 1991.
Criminal Law – Accused sentenced to death, enlarged on bail by High Court, pendingappeal – Section 333(4) of the Code of Criminal Procedure Act as amended by Act No.13 of 1988 – Rule 46 and 49 of die Supreme Court Rules – Should Attorney-General filean affidavit in a revision application.
The accused who was convicted of murder and sentenced to death made an applicationfor bail to the High Court of Badulla, pending his appeal. After inquiry, the High Courtby its Order dated June 21,1990 enlarged the accused on bail pending the appeal. TheAttorney-General moved in Revision to set aside the said Order of the High Court.
Sri Lanka Law Reports
(1991) 1 Sri L.R.
that the said amending legislation is expressive enough of the objective of theLegislature, and permits no discretion to the High Court to grant bail to an accusedperson sentenced to death, pending the determination of his appeal.
Per Gunawardana, J., “Upon a careful analysis of the new Section it appears thatthe operative words, as far as this case is concerned are, “he shall… be treatedin such manner as may be prescribed by rules made under the Prisons Ordinance".
that the absence of an affidavit by Attorney-General did not violate the provisionsof Rule 46 of the Supreme Court Rules, as the Court was invited to decide onlya question of law, and the relevant matters for that decision, have been admittedby the Accused-Respondent However, in a case where Attorney-General is invitingthe Court to decide on a question of fact, he will be required to file affidavits throughpersons who have personal knowledge of the relevant facts.
that there is no requirement under Rule 46, that the copy of the proceedings, requiredto be filed along with a Revision application, should be certified.
APPLICATION in revision of order of the High Court of Badulta.
C.R. de Silva Senior State Counsel for Attorney-General
Jayampathy Wickremaratne with Gaston Jayakody for Accused – Respondent
Cur. adv. vult.
February 27, 1991.
A. DE Z. GUNAWARDANA, J.
This is an application for Revision, filed by the Hon. Attorney-Generalseeking to set aside an Order made by the learned High Court Judgeof Badulla on June 21,1990. enlarging the Accused-Respondent onbail.
The Accused-Respondent was indicted in the High Court of Badulla forthe murder of one Pahal Gedera Yasawathie, an offence punishableunder section 296 of the Penal Code. After trial, the Accused-Respondentwas convicted of the said charge, by an unanimous verdict of the Jury,and was sentenced to death on May 30,1990. The Accused-Respondenthas filed an appeal against the said conviction. An application for bailpending the said appeal was made to the High Court, Badulla, on June5, 1990, and after inquiry, the said Order enlarging the Accused-Respondent on bail was made on June 21, 1990.
The learned Counsel for the Accused-Respondent raised severalobjections at the hearing of this application. Firstly, he submitted thatComplainant-Petitioner has not filed an affidavit along with the petition
The Attorney-General V Chandrasena (Gunawardena, J.)
as required under Rule 46 of the Supreme Court Rules of 1978, andhas thereby violated the mandatory provisions of the said Rule. Hecontended that there must be sworn testimony on facts for this Courtto act on the petition and that is why a petition had to. be supportedby an affidavit. He said that Rule 46 does not exempt the Attorney-General. Further, he pointed out that his objection was not that thereis no affidavit from the Attorney-General, but that there is no affidavitat all. In regard to the said objection the learned Senior State Counselcontended that this application has been made on a pure question oflaw viz, whether a High Court Judge has a discretion to allow bail inrespect of an accused, against whom a sentence of death has beenpassed. What this Court is called upon to do is to interpret section 333(4)of the Code of Criminal Procedure Act, as amended by Act No. 13 of1988. For this purpose the Court is not required to decide on any questionof fact.
In our view the two matters relevant to the interpretation of the said sectionare:-
Whether the Accused-Respondent has been sentenced to death,and
Whether the Accused-Respondent has applied for bail, pending thedetermination of his appeal to this Court.
Both these matters are not disputed by the Accused-Respondent.
It was further submitted by the learned Senior State Counsel that it isa practice of the Court, which has now hardened into a rule that theAttorney-General does not file an affidavit, when he moves in Revisionon a point of law, in respect of an Order, by any original Court. He howeverdid not cite any authority to substantiate this contention.
In this context it is appropriate to note that an affidavit should be confinedto the statement of such facts as the declarant is able of his ownknowledge and observation to testify to. The Attorney-General being aState Officer, acting in his official capacity, would generally be not ableto testify to facts of a given case, of his own personal knowledge. Hencehe would not be able to submit an affidavit relating to the facts throughhis own personal knowledge, although he is the Petitioner. However,in a case where he is inviting the Court to decide on questions of fact,
Sri Lanka Law Reports
(1991) 1 Sri L.R.
he will be required to file affidavits through persons who have personalknowledge of the relevant facts.
In the instant case, the Complainant-Petitioner has invited the Court todecide only a question of law, where the relevant matters have beenadmitted by the Accused-Respondent, as pointed out earlier. Therefore,we are of the view that in the circumstances of this case the absenceof an affidavit has not violated the provisions of the said Rule 46.Secondly,the learned Counsel for the Accused-respondent submitted that it is arequirement under Rule 46, of the Supreme Court Rules that two setsof certified copies of the proceedings of the Court of First Instance shouldbe filed along with an application for Revision. The learned Counselpointed out that the Complainant-Petitioner has not complied with thisrequirement, but has only filed photo-copies of the proceedings. Headded that observance of the provisions of the said Rule 46 is mandatory.
The learned Senior State Counsel referred to Rule 46 and pointed outthat, what Rule 46 requires is that,
. .Application by way of revision or restitutio in integrum underArticle 138 of the Constitution shall be made In like manner (myemphasis) and be accompanied by two sets of copies of proceedingsin the Court of First Instance, tribunal or other institution."
It is seen from the above quotation that, what Rule 46 requires is "twosets of copies of proceedings." It is significant to note that the said Ruledoes not state, two sets of certified (my emphasis) copies of proceedings.
However, the learned Counsel for the Accused-Respondent argued thatthe words "in like manner" occuring in the said Rule, implies that copiesof the proceedings required to be filed alongwith a Revision application,should be certified. We are of the view that the words "in like manner"refer only to manner or form in which an application for Revision shouldbe made viz. by way of petition and affidavit.
The learned Senior State Counsel further submitted that if the words"in like manner" included certified copies of the proceedings, then thewords, "and be accompanied by two sets of proceedings in the Courtof First Instance, tribunal or other institutions,’' which appear immediatelyfter the words, "made in like manner" would be redundant.
The Attorney-General V Chandrasena (Gunawardena, J.)
It is pertinent to note here that the first part of Rule 46 states that "Everyapplication . . . shall be by way of (my emphasis) petition andaffidavit. .The words "by way of petition and affidavit" sets out themanner in which the application should be made. Therefore the words"in like manner" which occur in the latter part of the said Rule inour view means, by way of petition and affidavit.
Therefore we are of the view that under Rule 46 there is no requirementthat the copy of the proceedings, required to be fifed along with a Revisionapplication, should be certified.
Inthe course of the argumentthe learned Counsel for Accused-Respondentraised a third objection namely that the Complainant-Petitioner has failedto serve a copy of the impunged order and the proceedings on theAccused-Respondent, in terms of Rule 49 of the Supreme Court Rules.The learned Senior State Counsel submitted that, in fact, when thisapplication was filed on 2nd July 1990, three copies of the petition andother proceedings were filed in this Court. We may also advert to thefact that in the docket and in the briefs of the Judges, that the petitionto which the proceedings are attached, bears the 2nd July 1990, datestamp of this Court. In the circumstances we hold that there is substantialcompliance with the requirement of Rule 49.
The learned Counsel for the Accused-Respondent finally submitted thatthe express requirement which was present in Section 333(4) of the Codeof Criminal Procedure prior to the amending Act No. 13 of 1988, viz:that the accused shall be kept in custody, has been taken away by thesaid Amending Act. Hence, the said sections presently constituted doesnot expressly state that the detention of the accused is mandatory.Therefore, now there is a discretion vested in the High Court to grantbail in a suitable case. He also pointed out that there is provision alreadyin the Prisons Ordinance, to segregate persons sentenced to death, fromother prisoners in remand, if that be the objective of the said amendment.Hence, an amendment to achieve that objective is superflous. To supportthis contention he drew attention of this Court in particular to provisionsof sections 50 and 51 of the Prisons Ordinance.
The learned Senior State Counsel submitted that in terms of section333(4), as amended by Act No. 13 of 1988, it becomes mandatory uponthe passing of the sentence of death to subject the accused person tothe Prison rules, pending his appeal. A person could be subjected to
Sri Lanka Law Reports
(1991) 1 Sri L.R.
Prison rules, only if such person is in prison. He submitted that, therefore,upon passing of the sentence of death an accused person shall be keptin prison and hence would not be entitled to bail.
The learned Senior State Counsel further contended that, if the intentionof the Legislature was to grant a discretion to the High Court regardingbail in respect of persons convicted of capital offences, then it coulddone so by deletion of the words, "subject to sub-section 4" in section333(3) and the deletion of sub-section 4- in it's entirety. However, theLegislature had not done so. He added that, the fact that the Legislatureproceeded to substitute a sub-section, in place of the original sub-section4 of section 333, clearly indicates that it was not the intention of theLegislature to vest a discretion with the High Court regarding bail inrespect of persons convicted of capital offences.
However, it must be pointed out that, if the said procedure was followedby the Legislature, the important provision in section 333 sub-section4 that, "execution shall be stayed …, pending the determination of theappeal,” would not be part of the law.
It would be appropriate to examine the original sub-section 4 of section333 and the amended sub-section 4 of section 333 to ascertain whetherthe Legislature vested a discretion with the High Court in granting bailto a person sentenced to death, pending his appeal.
The original sub-section 4 of section 333 reads as follows:-
"Where the accused is sentenced to death, execution shall be stayedand he shall be kept on remand in prison pending the determinationof the appeal."
The substituted new section by the Amending Act No. 13 of 1988 states,
"(4) Where the accused is sentenced to death, execution shall bestayed and he shall, pending the determination of the appeal, betreated in such manner as may be prescribed by rules made underthe Prisons Ordinance."
The original section 333(4) stated that an accused person sentencedto death "shall be kept on remand in prison pending the determinationof the appeal." These words clearly gives no discretion to the High Courtto grant bail.
National Savings Bank V Chandrasiri
Upon a careful analysis of the new section it appears that the operativewords, as far as this case is concerned are, "he shall… be treated in suchmanner as may be prescribed by rules made underthe Prisons Ordinance."It is pertinent to note that the word used is "shall" and therefore admits nodiscretion. This would in effect mean that a person sentenced to deathshould be kept in prison pending the determination of his appeal, as hehas to be subjected to Prison rules. Thus we are of the view that the saidamending legislation is expressive enough of the objective of theLegislature, and permits no discretion to the High Court to grant bail to anaccused person sentenced to death pending the determination of hisappeal.
Accordingly, we allow this application and set aside the said order datedJune 21,1990 of the Learned High Court Judge of Badulla, granting bailto the Accused-Respondent pending his appeal.
We order that the execution of the Accused-Respondent be stayed andthat he shall be kept in prison pending the determination of his appeal, andbe treated in such manner as may be prescribed by rules made underthePrisons Ordinance.
ISMAIL, J -1 agree.Application allowed.