049-NLR-NLR-V-58-THE-QUEEN-v.-L.-B.-KOLUGALA.pdf
Present: Gunasskara, J., and Sinnetamby, J.
THE QUEEN v. E. B. IvOLUGAEA
S. C. Application 297—31. G. Kandy 7,635fJD. C. 613
Application to set aside the order of the Additional District Judge,Kandy, releasing the accused on bail and to direct that theaccused be arrested and committed to custody
Bail—Order made by District Judge grunting bail—Remedy oj Crown.
Wliero an orrlcr admitting an accused to bail is mvlo ( y a District Judgowithout objection on tho part of the Crown although tho Ci awn is represented,the fact that no objection was taken is relevant to the question whethertho Supremo Court would interfere with tho order by way of revisionand direct tho accused to ho arrested and committed to custody.
Where tho Crown is dissatisfied with an ex parte order for bail made by a■ District Judgo in iho absence of tho prosecution, its proper remedy is to make- an application to tho District Judge himself to set- asido his order.
Application for the revision of an order made by the DistrictCourt, Kandy..
A. C. Alles, Crown Counsel, with V. S. A. PuUenayegum, Crown Counsel,and E. H. G. Jayelileke, Crown Counsel, for the Attorney-General, insupport.
Colvin R. de Silva-, with B. S. C. llatiuatte and S. Bajaratnam, for theaccused, respondent.
August 3, 195G. Guxaskkaka. J.—
This is an application for the revision of an order made by the DistrictCourt of Kandy admitting the accused-respondent to bail. The accused,who is a proctor, was committed for trial before the District Court ofKandy on charges of two offences punishable under Section 403 of thePenal Code, in respect of payment orders for Rs. 11,727 and Rs. 29,318 -25,respectively, and two offences punishable under Section 459 of the PenalCode read with Section 456 of that Code. The trial was fixed for tho2nd July and several succeeding dates. The accused, who had enteredinto a personal bond to appear for trial, failed to appear on the 2ndJuly and sent no excuse to the court. The district judge issued a warrantfor his arrest returnable forthwith, but later extended the returnabledate to the 17th July. The warrant was not executed by the 17thJuly and it was reissued, returnable on the 5th September 1956. Onthe 25th July the accused surrendered to the court and his counselmade an application for bail. The district judge made order admittinghim to bail in a sum of Rs. 25,000 with one surety. It is this order thatwe are now asked to revise.'
The order also refers to an application by the crown proctor to havethe case fixed for trial on the 30th and 31st July. The district judge-heard a submission made by the accused’s counsel on that applicationand directed that the accused should appear on the 30th July. Theapplication was one that had been filed by the crown proctor on the20th July. He stated there that he had been instructed by the Attorney-General to move that this case be fixed for trial on the 30th and 31stJuly because a connected case had been fixed for those two dates andthe witnesses in both cases were the same. The order made upon thatapplication was “ Submit to A.D J. when accused surrenders ”. Thelearned crown counsel states from the liar that the crown proctor M aspresent in court when the accused surrendered on the 25th July andthat the circumstances in which he came to be there were that thedistrict judge ha 1 sent him a message ashing him “to be present incourt in connection with the motion that he had presented on the 20thJuly
When the accused surrendered to the court, his counsel tendered a-document purporting to be a medical certificate to the effect that theaccused had been ill with acute gastritis on the 1st and 2nd of Julyand was under the treatment of a doctor who had advised him to rest-on those two da3's. The medical certificate is dated the 14th July.The ground on which this court is asked to revise the district judge’sorder is that the Crown had no opportunity of making its submissionon the accused’s application for bail or his representation that he hadbeen ill on the 1st and 2nd of July. The learned crown counsel contendsthat the fact that the crown proctor -was present in court on the 25thJuly “ in connection with his application of the 20th July ’’ does notimply that the Crown had an opportunity of opposing the applicationfor bail.
When a criminal case is fixed for trial the court must also make anincidental order as to whether or not the accused is to be committedto cxistody. I should have thought therefore that when the crownproctor made an application on behalf of the Crown that the ease shouldbe fixed for trial on the 30th and 31st July he also had authority tospeak for the Crown on the question whether the accused should beremanded to custody. If ho had no sufficient instructions on that pointhe could have asked for an adjournment of the hearing of the applicationfor bail. Although he was present for the express purpose of assistingthe court when his application regarding the fixing of a date of trialwas considered, he made no submission on the question whether theaccused should be admitted to bail.
If the crown counsel is right in his contention that the order for bailwas an ex qiartc order, then it seems to me that the proper procedurefor the Crown to adopt would be to make an application to the districtjudge himself to set aside his order. If it was not an ex parte order,then it was one which was made without objection on the part of theCrown although the Grown was represented, and the fact that noobjection was taken is relevant to the question whether this court should
interfere with it by way of revision. What the learned judge has doneis to require bail from an accused person who was not on bail but hadmerely entered into a personal bond undertaking to appear at the trial.The accused has now been required to enter into a recognizance in asum of Rs. 25.000, which is an unusually large sum, and to find a surety.I am unable to sav that the learned district judge has failed to give hismind to any question that ought to have been considered or that therehas been such a gross error in the exercise of his discretion that thiscourt ought to revise his order. 1 would therefore refuse the application.
Application refused.
Slvxetamby, J.—I agree.