shall be non-bailable and no, person accused of such anoffence shall in any circumstances be admitted to bail
(emphasis added)• 80
With the institution of criminal proceedings against the petition-er in the Chief Magistrate’s Court, Colombo in case No. 55305/01the petitioner became an accused of having committed offences interms of section 45(1 )(b) read with section 45(2) of the Immigrantsand Emigrants Act. Accordingly, section 47 as amended by Act,
No. 42 of 1998 become applicable to the petitioner. By this sectionthe legislature makes it clear that in any circumstances, the peti-tioner cannot be enlarged on bail. Binda on “interpretation ofStatutes” (8th Ed) at page 151 lays down the principle in the fol-lowing manner.90
“If the Special Act is made after the General Act, the positionis even simpler. Having made the General Act if the legislatureafterwards makes a Special Act in conflict with it, we mustassume that the legislature had in mind its own General Actwhen it made the Special Act and made the Special Act whichis in conflict with the General Act, as an exception to theGeneral Act.”
It is also a well recognized rule of interpretation that when aspecial provision is made in a special statute, that special provisionexcludes the general provision in the general law. (Vide Kushi v 100The State <3).
Accordingly, by section 47 the legislature intended that a personaccused of an offence under section 45 of the Immigrants andEmigrants Act shall not in any circumstances (emphasis added)be admitted to bail. The cardinal rule of construction is to giveeffect to the words of the statute. It is only in situations where thereis doubt or difficulty as to the interpretation that the Court may look
Thilanga Sumathipala v Inspector-General of Police and others
CA(Sripavan, J.)
to the object of the enactment or the purpose for which it wasmade. If the meaning is clear and quite unambiguous that meaningmust be accepted by the Court irrespective of other considerations.Dr. Justice A.R.B.Amerasinghe in his book titled “Judicial Conduct,Ethics and Responsibilities' at page 284 observes that “The func-tion of a Judge is to give effect to the expressed intention ofParliament. If legislation needs amendment, because it results ininjustice, the democratic processes must be used to bring about thechange. This has been the unchallenged view expressed by theSupreme Court of Sri Lanka for almost a hundred years.”
However, Article 13(5) of our Constitution states that every per-son shall be presumed innocent until he is proved guilty. Article13(2) further provides that a person shall not be deprived of per-sonal liberty except upon and in terms of the order of a judge madein accordance with procedure established by law. If a strict inter-pretation is given to section 47(1) of the Immigrants and EmigrantsAct, it would mean that the petitioner has no remedy at all until hiscase is concluded in the Magistrate’s Court. Does it mean that theState imposes a punishment on the petitioner indirectly by keepinghim in remand custody for an uncertain period? Obviously that wasnot the intention of the legislature when it enacted Article 13(5) ofthe Constitution. Any strict interpretation of section 47(1) of theImmigrants and Emigrants Act would in my view be unconstitution-al and unreasonable in terms of the Supreme Law of our land.What would be the position if after the end of the trial the petitioneris found not guilty? Any interpretation in this context must be madein a manner respecting the petitioner’s liberty, taking into accountthe fundamental rights enshrined in the Constitution. Being para-mount law, the Constitution is outside the purview of the Courts, buta statute would be invalid if it contravenes any express provision ofthe Constitution. Effect has to be given to the paramount law towhich all other laws must yield.
In the circumstances, I am of the view that if two constructionsare possible between a statute and the Constitution, the Court mustadopt the one which will ensure smooth and harmonious working ofthe Constitution and eschew the other which will lead to absurdityand deny justice to a citizen. Practical considerations rather thanformal logic must be the governing principle in the interpretation of
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the Constitution. A generous and purposive approach is necessaryin the process of building democratic traditions. Every grievance ofa citizen must be remedied by a Court. In deciding what is just, rea-sonable or wise, a Court must act with responsibility and selfrestraint. Where the statute fails to provide a solution or offers a isosolution that is inconsistent with the basic notions of justice and theprovisions of the Constitution, the Court is forced to frame a newprecedent that will not exhibit those defects.
The petitioner has been in remand custody for the last fivemonths. There is no cogent material before Court to establish thatthe witnesses were intimidated by the petitioner and the respon-dents made complaints to the Magistrate to that effect. Consideringthe totality of the material placed. I am of the considered view thatthe petitioner be enlarged on bail subject to strict conditionsimposed by this Court.160
SOMAWANSA, J. – . I agree.
ABEYRATNE, J.This application is preferred to this Court under section 404 ofthe Code of Criminal Procedure Code for the grant of bail by theaccused-petitioner who is presently charged with aiding and abet-ting a person to obtain an “irregular” passport and visa to travel tothe United Kingdom. The charge is contemplated under the rele-vant sections of the amended Immigrants and Emigrants Act.
At the commencement of the inquiry a query ex mero motu bylearned member of the bench as to whether this Court had the orig-inal jurisdiction to entertain an application of this nature received anencouraging response from learned Senior State Counsel which 17°resulted in the embarkation on a voyage of discovery. At this junc-ture suffice it to state, that the pronouncement of the three Benchdecision in the case of, Rev.Singarayer v The Attorney-General(supra) and the interpretation accorded to section 404 of the Codeof Criminal Procedure Act, No. 15 of 1979 was the cause of thisexcursion.
Learned President’s Counsel appearing for the accused-
Thilanga Sumathipala v Inspector-General of Police and others
(Abeyratne, J.)
petitioner strenuously urged Court to consider the effect of section404 of the Code of Criminal Procedure which endowed this Courtwith original jurisdiction in the nature of forum jurisdiction to enter-tain applications of this nature. According to learned counsel,Article 138(2) of the Constitution also empowered this Court toexercise original jurisdiction. It was submitted on behalf of the peti-tioner that the Singarayer case was decided per incurriam as thethree Bench judgment was predicated on a misconception of thelaw, in that the earlier provision of law in the forrn of section 396 ofthe 1898 Criminal Procedure Code was identical to the present pro-vision of law in force contained in section 404 of the Code ofCriminal Procedure Code, that is Act, No. 15 of 1979. Section 396of the Code and section 404 of the present Code were construedto be identical and equated with each other, disregarding the vitalfactor that they differed in the quintessence and section 404 of thewider scope than section 396. Learned Council for the petitioneralso observed that this was the first occasion on which the Statewas adopting a stance of this nature with regard to bail matterscoming within the purview of the Immigrants and Emigrants Act.
Learned Counsel for the State veering away from the conven-tional approach usually indulged in by the Attorney-General in amatter of this nature perhaps in accordance with the dictates of thedeveloping complexities of a modern society maintained that theCourt of Appeal had no original jurisdiction. The thrust of this argu-ment is that the Court of Appeal has no jurisdiction to grant bail incases connected to the Immigrants and Emigrants Act. LearnedCounsel for the State rejected the favourable interpretation of sec-tion 404 and Article 138(2) adduced by the learned President’sCounsel for the petitioner as construing to mean that the Court ofAppeal had the original jurisdiction to grant bail in immigration andemigration matters. The State took refuge in the submission thatthe Court of Appeal like the Supreme Court was a creature ofStatute and hence only powers expressly conferred by statute asopposed to by implication, could be exercised. As an illustrationlearned State Counsel cited section 10 of the Offensive WeaponsAct where the Court of Appeal is conferred exclusive jurisdiction inthe matter of granting bail. Reference was also made with regard toelection petitions. The attitude of the State to matters of this nature
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under the Immigrants and Emigrants Act in the past and present inthe other divisions of this Court escaped the vigilance of thelearned Deputy Solicitor General who led the State team.
In addressing judicial attention to the peculiarities of the presentsituation, it becomes germane to the issues involved to consider 220that the ordinary meaning of the word jurisdiction is “the authorityby which courts and judicial officers take cognizance of and decidecases-the legal right by which judges exercise their authority”.Jurisdiction that is referred to, may be either appellate, revisionaryor original – appellate can be described as the power vested in theappellate court to review and revise the judicial action of an inferi-or court evidenced by an appealable order or an appealable judg-ment pronounced by such court. The power and authority to takecognizance of a cause and proceed to its determination not in it’sinitial stages but only after it has been finally decided by an inferi- 230or court. Revisionary jurisdiction includes the power to review andre-examine for purpose of correction on questions of fact ratherthan law. It is an extraordinary jurisdiction exercised for the purposeof amendment, correction, re-arrangement or even improvement.
In the light of this background suffice it to state, for the purpose ofbrevity, that original jurisdiction means jurisdiction in the firstinstance to take cognizance of a cause at its inception, try it andpass judgment upon the law and facts.
Appellate and revisionary jurisdiction presupposes prior deci-sion as a requisite for determination by the Court of Appeal where- 240as original jurisdiction does not envisage that particular require-ment.
Learned Counsel for the petitioner further resubmitted that thearguments adduced by the State were specious and but a shroudto obscure the motivation and are therefore untenable in law, lacks,merit and is an attempt to split hairs in the absence of the most triv-ial of ambiguity and technicalities.
It is now a duty incumbent on this Court to winnow the wheatfrom the chaff and examine the provisions of law to determinewhether this Court has jurisdiction to hear and decide on the mer- 250its of this bail application.
Thilanga Sumathipala v Inspector-General of Police and others
.(Abevratne. J.)
The difference is that the words zagaJ zae which mean from “timeto time" are significantly missing. The Sinhaia version contemplatesthe proclamation of laws which affect the jurisdiction of the appel-late court from “time to time” at opportune instances.270
It is redundant to mention that by virtue of Article 18 and Article23(1) of the Constitution it is the Sinhaia Act which must prevail inthe event of conflict between the English and Sinhaia texts.
The English version of section 404 of the Code of CriminalProcedure Code Act, No.15 of 1979 reads thus:-
The Sinhaia version differs from the English version.
An examination of the Sinhaia version reveals that the differ-ence between the two versions may have resulted through inad-

The English version of Article 138(2) of the Constitution, statesas follows:- “The Court of Appeal shall also have and exercise allsuch powers and jurisdiction appellate and original as Parliamentmay by law vest or ordain.”
This is a positive pronouncement that original jurisdiction can beexercised by the Court of Appeal if Parliament has conferred ordecreed so.
The Sinhaia version of Article 138(2) states an almost identicaltranslation which is as follows:-260
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On an analysis of section 404 it is clear that section 404 refersto four distinct matters.
The first part deals with the amount of a bond not being exces-sive, the second part deals with the empowering of the Court ofAppeal to:-
“Notwithstanding anything to the contrary in the Code or anyother law the Court of Appeal may in any case direct that any per-sons in custody be admitted to bail."
The third part deals with
“That the bail fixed by the High Court or Magistrate be reduced 310or increased ….”
The fourth part deals :-
“That any person enlarged on bail by a judge of the High Courtor Magistrate be remanded to custody ….”
A methodical analysis of the entire section reveals that the sec-ond part involves the exercise of original jurisdiction by the Court ofAppeal. It is significant that though the English version has a semi-colon after the words “excess/Ve” at the end of the first part, theSinhala version has a fullstop-signifying the termination and not thecontinuation of the earlier part. In the English version the first part 320and the second part are conjoined together by the use of the word

vertence or with deliberation but nevertheless modifies the inter-pretation to be given respectively to the meanings of the two differ-ent sections.290
The Sinhala version is as follows:-
Thilanga Sumathipala v Inspector-General of Police and others
(Abevratne, J.)
“and” which denotes an addition. “And" is a word used to join sen-tences, words and phrases.
In the Sinhala version the first part is completely separated fromthe second part by the. use of the word “mOq” after the “fullstop”.
The word means furthermore of moreover. The use of theword is conclusive on the fact that it is a complete sentence.
“Notwithstanding anything to the contrary in this Code or anyother law the Court of Appeal may in any case direct that any per-son in custody be adrfiitted to bail.”330
The Sinhala version is of a more imperative nature and conveysthe intention of the legislature more emphatically.
Accordingly it would not be incorrect to state that one need haveno perspicacity to conclude that there is no ambiguity manifest inthis section to prevent the Court of Appeal from exercising originaljurisdiction.
Unfettered original jurisdiction is granted to the Court of appealby virtue of section 404 of the Code of Criminal Procedure Code.The Sinhala version is clear and unambiguous when it states:-

and the corresponding English version unequivocally statesthat:-
Therefore, it would seem that the English version of section 404of the Code of Criminal Procedure lays down specifically, that“notwithstanding any thing to the contrary in this Code or any other 340law the Court of Appeal may in any case direct the admission tobail.”
that the dictates of common sense prevent the necessity to spilthairs on the subject.
mean more or less
The words in any case and
the same idea. “Any case" would denote
would mean any occasion. It would seem

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“Notwithstanding anything to the contrary in this code or anyother law the Court of Appeal may in any case direct that any per-son in custody be admitted to bail.”
The Sinhala version buttresses and fortifies the position witheven greater clarity by the absence of a semicolon and the pres-ence of a fullstop. With the use of the word meaning further 360more/moreover instead of the English word “and” which necessari-ly in Sinhala would be oeo and not….
Articles 18 and 23(1) of the Constitution makes it imperative toplace reliance on the Sinhala text in preference to the English. It issignificant to observe that the query addressed to the Secretary-General of Parliament in the course of the proceedings of this Courtas to which text prevailed in authority with regard to applicability ofsections 404 of the Sinhala and English acts evoked the responsethat the Sinhala text prevails and that the English text is a meretranslation of the Sinhala text which is in the official language of the 370country. This obviates the necessity to indulge in the futile exerciseof academic discourse or dependence on the guidance of decidedcases and regard the same as authority in an attempt to establishJudge made law. In the context of this factual background it has tobe considered whether it would not be ludicrous to resort to a casedecided two decades and an year ago. The case of Rev.Singarayar although decided by a Bench of three learned Judgesreflects an instance of judicial apathy by having been misled by thelearned State Counsel to believe that section 396 of the earlierCriminal Procedure Code was identical to section 404 of the pre- 380 <
sent Code of Criminal Procedure Act, No. 15 of 1979. LearnedState Counsel did not direct the attention of the Bench to theclause, inherently part of section 404 of the Code of CriminalProcedure Code, namely :-
“Notwithstanding anything to the contrary in this Code or anyother law ….”
This was not included in the earlier section 396 of the 1898Criminal Procedure Code.
The inclusion in the section 404 in the present Code of CriminalProcedure Act, No. 15 of 1979 of the words:-
Thilanga Sumathipala v Inspector-General of Police and others
(Abevratne. J.)
“the Court of Appeal” and “in any case" should clinch the mattereven in the eyes of the mentally negligible. This, in the opinion ofthis Court invests the Court of Appeal with original jurisdiction.Addressing attention further to the case of Singarayar, (supra) itwas held that the power vested in the Court of Appeal by section404 of the Code of Criminal Procedure Act is an appellate powerand that a pre-requisite for it’s exercise is the existence of an orderfrom an original Court the case of “Nithyananthan and others vA.GS4) was also was similar in nature.
The circumstantial background in the Singarayar case is not 400exactly relevant to the issues involved, but suffice it to state, that itwas regarding a bail application made under the Prevention ofTerrorism (Special Provisions Act). The mistake in that case wasthe fact that the Bench was led to believe that section 404 of theCode of Criminal Procedure Act corresponds to section 396 of theCriminal Procedure Code of 1898. This proves to be a fallacy as theclause “Notwithstanding anything to the contrary in this Code orany other law was absent…” This court is inclined to the view thatthrough inadvertent mistake, heedlessness, lack of attention, wantof care, carelessness, failure to pay careful and prudent attention 410to.the progress of a proceeding in Court has resulted in this kind ofsituation; regrettably, this can be classified as per incurianr, thisgenerates the cause to vacate or set aside a decree as clearly,there has been a mistake or excusable neglect and the error hencemade cannot be pursued blind folded and thus be perpetuated.
In view of the above, to dwell on the case of GanapathipillaH5>important to section 396 of the earlier Criminal Procedure Codewould be redundant; similarly, the necessity to indulge in discourseabout the evolution of the law until the enactment of the Code ofCriminal Procedure and surmise, deduce or conjecture the inten- 420tion of the legislature and split hairs with regard to the interpreta-tion of words and idiosyncracies and whimsical fancies of jurists isobviated. This court is inclined to the view that there is a clear expo-sition of the law reflected in the relevant statute in unambiguous,unequivocal terms. That is that the Court of Appeal has originaljurisdiction.
This brief judicial review would be incomplete without referenceto certain sections of the Bail Act of 1997 and it’s relevance. Section
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5 states that subject to provisions of section 13, (which refers tooffences entailing life sentences or death sentences) a personaccused of being concerned in committing, or having committed anon bailable offence may at any time be released on bail at the dis-cretion of court. -The word “court” in the absence of reference tospecific court would include the entire hierarchy of the Courts struc-ture.
However, section 5 would be applicable only if section 3 of theBail Act, No. 30 of 1997 is unrestrictive.
An analytical and critical appraisal of section 3 of the Englishand Sinhala versions of the Bail Act inclines one to the view that thetwo versions differ in substance. The Sinhalese version is wider inscope than the English version which is more restrictive. When thetwo sections differ it is sine qua non that recourse should be to theSinhala text. Although the Bail Act in section 28 refers to the eventof inconsistency between the Sinhala and Tamil versions theSinhala version should prevail. Articles 18 and 23(1) stipulate thatinconsistency and conflict between English and Sinhala versionsshould be resolved by reference to the Sinhala version.
An examination of the English version of section 3 of Bail Act,No. 30 of 1997 reveals that:-
3(1) Nothing in this Act shall apply to any person accused orsuspected of having committed, or convicted of an offence under,the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of1979, Regulations made under the Public Security Ordinance orany other written law which makes express provisions in respect ofthe release on bail of persons accused or suspected of having com-mitted, or convicted of offences under such written law.
Sub section (2) is not germane to the issue involved and there-fore will not be the subject of discussion here.
It is manifestly clear that three instances are in contemplation:-
Firstly, the Prevention of Terrorism (Temporary Provisions) Act,No. 48 of 1979.
Secondly, Regulations made under the Public SecurityOrdinance.
Thilanga Sumathipala v Inspector-General of Police and others
(Abeyratne, J.)
Thirdly, any other written law which makes express provisionsin respect of the release on bail of persons accused or suspect-ed of having committed or convicted of, offences under such writ-ten law.
This in effect excludes, application of the Bail Act to the threecategories of offenders cited in the earlier three instances whocome within the purview of the three Acts in contemplation. 470
Section 3 states thus:

The Acts referred to are:480
Firstly, the Prevention of Terrorism Act, No. 48 of 1979(Temporary Provisions Act) and secondly, Regulations madeunder the Public Security Act.
Four categories of offenders are in contemplation-
Having committed an offence,
Convicted of an offence,
Accused of an offence,
suspected of

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Of 1997.
All others are encompassed under the provisions of the Bail sooAct with wide ranging effect.
It is abundantly clear that section 3 read along with section 5of the Sinhala version of the Bail Act unambiguously refers to thejurisdiction of Courts to grant bail in non-bailable offences sub-ject to the limitations mentioned in section 3 of the Bail Act, No.
30 of 1997. Obviously, in the context of section 5 the “Court”does not include the Magistrate’s Court as the jurisdiction of thatparticular court is excluded by statute with regard to grant of bailin Immigration and Emigration matters. Section 29 of the Bail Actrefers to the definition of “non bailable”. It is redundant to indulge 510in academic discourse on this matter but, suffice it to say that theopinion expressed in Bindra, Interpretation of Statues, 7th editionwith regard to interpretation does not need any elaboration asthe relevant sections of the Acts as illustrated above are lucidlyand transparently indicative of the intention of the legislature inre the appropriate forum referred to unerringly by learnedPresident’s Counsel appearing for the accused petitioner asForum Jurisdiction possessed by the Court of Appeal. In conclu-sion it could be observed that it is trite but a truism that the Courtof Appeal has the original jurisdiction to entertain an application 520of this nature.
It is observed with regret that for one year and two decadesafter the decision in the Singarayar case thousands of applicantshave succeeded in their bail applications before this Court, withno objection ever been taken to the jurisdiction of this Court, withregard to cases under the Immigrants & Emigrants Act, but thisinnovative change sought to be introduced and supported by therespondents in Court as perhaps raison detre come in the wakeof the respondents appearing before another division of thiscourt which has been entertaining and adjudicating upon bail 530application made with regard to sections on 45 and 47 (1), of theImmigrants and Emigrants Act daily, and stating to court uponinquiry by the Bench that the respondents have no objection to
who are excluded from the purview of the Bail Act, No. 30
The Sinhala Act refers to these four stage of offenders, as
being regulated by written law,

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(Abevratne. J.l
enlarging suspects on bail and furthermore, signify consent tobail granted. At the least, it is regrettable that no application wasever made before that particular division of the court which reg-ularly dealt with matters of that nature to lay by the determinationof those cases until the decision with regard to the objection sup-ported by the respondents in this court were determined.
It would be incomplete to terminate this brief exposition of the 540position with regard to lack of jurisdiction without reference to thefact as to whether the Immigrants and Emigrants Act being alater law a special law than the Code of Criminal Procedure ageneral law affects the jurisdiction of Court. Section 47(1) of theImmigrants and Emigrants Act states that:-
shall be non bailable and no person accused of such an
offence shall in any circumstances be admitted to bail.
It is significant that there is no prohibition for a court to grantbail.
The preceding section of the Immigrants and Emigrants Act, 550section 46, deals with the fact that all offences under the Actmust be tried in the Magistrate’s Court. This necessarily pre sup-poses the fact, that the Magistrate’s Court has no Jurisdiction togrant bail in these matter – the only logical conjecture stemmingfrom this position would be that the jurisdiction for the Court ofAppeal to grant bail under section 404 has not been erodedupon. Had it been so, one could have logically envisaged a situ-ation of the nature that has arisen with regard to the AntiquitiesAct to repeat itself in the same form of manifestation. TheAntiquities Act was amended in May 1998, the same year as the 560amendment to the Immigrants and Emigrants Act in July, it is sig-nificant that the amendment to the Antiquities Act – section 15C- contained the words.
Notwithstanding anything to the contrary in the Code ofCriminal Procedure Act. No. 15 of 1979 or any other written law,no person charged with, or accused of an offence under thisOrdinance shall be released on bail. ”
It is logical to presume that had the legislature intended the
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later amendment to have the strict prohibition contained in theearlier one with reference to the Code of Criminal Procedure, in 5?othe latter amendment it would have expressly stated so.
Furthermore, if a presumption of an ouster of jurisdiction is tobe concluded as has been held in the Indian case of ProsunnoCoomar v Koylash Chunder Paul Per Peacock, J.
“the jurisdiction of the ordinary courts of judicature is not to betaken away by putting a construction upon an act of the legisla-ture which does not clearly say that it was the intention of the leg-islature to deprive such courts of their jurisdiction…”
The position of the State if accepted, apart from depriving aperson of his liberty would leave him in a state of utter helpless- 580ness, sans any remedy and totally devoid of any forum to venti-late his grievances – this certainly cannot be deemed to be theintention of the legislature. For example, even the Prevention ofTerrorism Act provided relief for person in custody under that Act,and therefore, the very contemplation of such a possibility isobnoxious and repugnant in the background of the provisions ofthe Constitution – the proposition to say the least, is totallyuntenable in law and inconceivable. Reflections on Articles 12and 13(5) of the Constitution would prove inconsistent and irrec-oncilable where, until proof of guilt has been established the pre- 590sumption of innocence has been jettisoned prematurely.
The Constitution has been adopted and enacted as theSupreme law of the Democratic Socialist Republic of Sri Lankain which case all other enactment’s and laws are subordinate,and the provisions of the Constitution take precedence.Accordingly this Court is inclined to the view that as in instancesof this nature if as the State claims, an individual is left bereft ofany relief or remedy with regard to matters where deprivation ofliberty occurs solely due to inadvertence or omission on the partof the legislature resulting in a lacuna or because of restrictive 600elucidation as a consequence of ambiguity or conflict in interpre-tation of laws an individual is jeopardized and prejudiced withregard to his right of liberty which demand immediate attentionby an appropriate forum to which he is entitled as of right as a
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(Abeyratne, J.)
human being and this is being denied him, then the protectiveprovisions of the Constitution are activated and is the only rem-edy available to him. Similarly, in this instance section 404 of theCode of Criminal Procedure is very clear and unambiguous withregard to jurisdiction of the Court of Appeal. Conversely, to aninquisitive mind section 47(1) appears to pose a question withregard to jurisdiction. If the question cannot be resolved in themanner enumerated above the only manner of solution would beto have recourse to the Constitution as the supreme law of thecountry and the applicability of section 404 once again would beunquestionable.
The argument was adduced on behalf of the State that inImmigrants & Emigrants matters only “suspect” as opposed to“accused” could aspire for bail, and the State considers this as asalient factor when opposing or consenting to the grant of bail. Itis worthwhile considering the fact as to whether a “suspect” whois granted bail is re-remanded when he becomes an “accused”subsequently, and if so whether it would be tantamount to dis-crimination as Article 13(5) of the Constitution presumes inno-cence until proved guilty. In the alternative if not so, whetherthere would be equality in the eyes of the law as that too is a con-cept recognized as applicable by Article 12 of the Constitution.
Therefore, in accordance with the analytical legal reasoningindulged in by this judicial review, on the question of jurisdictionI am inclined to the view that even my insatiable curiosity withregard to this matter stands resolved, and I hold that there is nomerit whatsoever in the submissions made by the respondents,and furthermore, that the Court of Appeal does possess jurisdic-tion by virtue of Articles 138(2) and section 404 of the Code ofCriminal Procedure Act, No. 15 of 1979 and thus could entertainapplications pertaining to matters preferred under theImmigrants and Emigrants Act and it’s amendments.
In dealing with the second aspect of the matter under consid-eration the State objected to the grant of bail for the petitioner ongrounds of undue influence that had been exercised both withregard to lay witnesses and the judicial officers who wereinvolved in the determination of this case. It was conceded thatno complaints were ever made with regard to influencing judicial
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officers and it was merely a matter of conjecture and speculationbecause of the deviation from adopted normal practice by theaforementioned officers. The State further predicated their objec-tions on the alleged tampering with witnesses and obstructingthe course of justice. Relevant documents, relating to thecharges against the petitioner were alleged to be missing andthis was attributed to the accused-petitioner. It was contended onbehalf of the petitioner that if witnesses were sought to be influ-enced and were so influenced it was by the instigating police offi-cers against the petitioner, and that no witnesses ever com-plained of intimidation. A judicial review of the entirety of theobjections stated by the respondents indicate a clear transgres-sion in the realm of speculation. Accordingly, I cannot visualizeany merit in the objections to the grant of bail and consequentlyreject them. A fortiori, bail is granted hereby under appropriateconditions.
Application allowed.