Вы находитесь на странице: 1из 14

Law of Bail: An in depth analysis

By Sumudu Premachandra

Attorney-at-Law, LL.B (OUSL), LL.M (Aberdeen-UK)


Barrister and Solicitor in Fiji,
Judicial Officer in Sri Lanka1
Resident Magistrate of Nasinu-Fiji

Introduction

Nearly decade ago, a busy city in southern province, police raided a medical clinic. It was a well repute
clinic which was run by a MBBS doctor. He was serving as an OPD doctor in the Government Teaching
Hospital in that area. Police had obtained search warrant before the raid by the pertinent Magistrate.
From this detection, the police arrested a doctor, nurse and three ladies. When the ladies were
medically examined, it revealed that three ladies were subjected to recent abortions. The doctor and
nurse were arrested and produced before Magistrate for (causing a miscarriage) illegal abortion under
section 303 of the Penal Code. A reputed President Counsel appeared and moved bail stating, the
offence mentioned in the B report is a bailable offence and the accused has a right to bail. Interestingly,
the accused had five pending cases before same Magistrate for same offences. But learned Counsel
for the accused hid that fact. Taking it to consideration of that fact, the application for bail was refused
and doctor was remanded by the Magistrate. Others were released on bail. Same day, the High Court
called the case record under revisionary jurisdiction. The State Counsel consented to the bail and the
suspect doctor was immediately released on bail2.

In another case, a Cabinet Minister was assaulted by another Cabinet Minister’s bodyguard. Police filed
B report under sections 314 and 316 of the Penal Code. The police did not object to the bail nor had
they mentioned section 14 of the Bail Act. The suspect was released on bail at first instance by the
Magistrate3.

What is Bail?

1 Judicial Officer of Sri Lanka with effect from 1998-07-01 to date. Author served as Magistrate of Elpitiya, Anuradhapura,
Kurunegala, Kandy and Finally Warakapola. He also served as District Judge of Anuradhapura as well.
2 True story, but slightly changed
3 Another true story

1
In criminal law, Concept of bail is highly considered. The bail is needed to ensure accused’s presence
at a criminal trial. The presence is necessary for trial is concerned broadly, but succinctly, under the
rules of natural justice, prime concern is audi alteram partem rule. That is; both parties must be heard
for the due administration of justice. Lack of this principle would lead to miscarriage of justice. To
ensure this principle, the accused’s presence of a trial is very essential. Naturally, in a criminal trial, the
accused’s liberty of free movement is under consideration. If he convicted, he may be jailed, thus
normal tendency of an accused is to avoid the criminal trial than he faces it.

Meaning of Bail is interpreted many ways;

Bail4,
1. Security, usually a sum of money, exchanged for the release of an arrested person as a guarantee of
that person's appearance for trial.
2. Release from imprisonment provided by the payment of such money (Pending appeal).
3. A person who provides this security.

In England Bail means “Bail grantable under the law (including common law) for the time being in
force”5

In Sri Lanka, interpretation of bail is not given in the Bail Act No 30 of 1997. But the preamble of Bail
Act says that AN ACT TO PROVIDE FOR RELEASE ON BAIL OF PERSONS SUSPECTED OR
ACCUSED OF BEING CONCERNED IN COMMITTING OR OF HAVING COMMITTED AN OFFENCE ;
TO PROVIDE FOR THE GRANTING OF ANTICIPATORY BAIL AND FOR MATTERS, CONNECTED
THEREWITH OR INCIDENTAL THERETO. It is seen that the Bail Act compiles pertinent law relating to
bail and newly introduced concept of anticipatory bail.

Bail may be granted unconditionally or subject any written conditions which is determined by the court
or police officer.6

Right to Bail

The Bail Act provides granting bail as the rule; refusal of bail as the exception. In Ediriweera v A.G7
Three Court of appeal judges confirmed the Rule is granting bail and exception is refusal of bail. The
Bail Act does not specifically say that right to bail as of a right. But it says that;

“Subject to the exceptions as hereinafter provided for in this Act, the guiding principle in
the implementation of the provisions of this Act shall be that the grant of bail shall be
regarded as the rule and the refusal to grant bail as the exception.”8

4 http://www.thefreedictionary.com/bail- accessed on 18-04-2011


5 Section 2 of the Bail Act 1976 of England

6 Section 07, NO 30 OF 1997 BAIL ACT –Sri Lanka

7 [2006] Sri Lanka Law Reports 25, per Justices Balapatabendi, Abeyratne and Sisira de Abrew( Dissenting).

8 Section 02, NO 30 OF 1997 BAIL ACT –Sri Lanka

2
Therefore, it is apparent normally an accused has right to be released from custody subject to limitation
of sections 3 and 14 of the Bail Act or any other written law. Therefore, one can say there is a right to
Bail but it is not an absolute right.

Refusal of Bail v. Human Rights

Bail is entangled with liberty and free movement of a person. According to The Universal Declaration of
Human Rights which was adopted by General Assembly resolution 217 A (III) of 10th December 1948,
Article 13 provides;

"Everyone has the right to freedom of movement and residence within the borders of
each state. Everyone has the right to leave any country, including his own, and to return
to his country".

In the parameters of Human rights, Man has unalienable Rights, which among these are Life, Liberty
and the pursuit of Happiness is most important and valuable right. In US declaration for Independence,
adopted in congress 04th July 1776 categorically says;

"We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable rights, which among these are life,
liberty and the pursuit of happiness".

International Covenant on Civil and Political Rights provides that;

“It shall not be the general rule that persons awaiting trial shall be detained in custody
...9”

The UN Human Rights Committee has held that pre-trial detention should be the exception and that bail
should be granted except where the accused would abscond, destroy or interfere with evidence,
influence witnesses, or prevent commission of further offences 10

In Wemholl v Germany11 European Human Commission held that;

"The right to liberty is a basic human right. Bail for a person accused of an offence
means authorization for the person to be at liberty instead of in custody, on condition
that the person appears for trial. Conditional bail is granted as an alternative to pre-trial
detention. Permissible conditions include the surrendering of travel documents,
imposition of a residence requirement and the provision of a surety assessed in relation
to the means of the accused. These restrictions on the right to liberty are consistent with
international law”

In Sri Lanka this constitutional protection is guaranteed under article 10 [7] of the 1978 Constitution. It
says;
“Any person detained in custody or confined who is entitled, under the provisions of
any law, to be released on bail or on the person executing a bond, shall be so released.”

9 Article 9 (3)
10 UN Human Rights Committee, cases of Hill v. Spain (CCPR 526/99) and W. B. E. v. The Netherlands (CCPR 432/90)
11 (1968) 1 EHRR 550)

3
The Bail Act mainly deals with two categories of offences. Namely;
a) Bailable offences
b) Non Bailable offences
It is to be noted all offences under Penal Code have been categorised into above two segments of
offences under the Code of Criminal Procedure Code of Sri Lanka. Those offences are categorised in
the first schedule of Criminal Procedure Code as bailable or non bailable. At the bottom of the first
schedule describes how to categorise bailable or non bailable for other offences which do not come
under the Penal Code12. It is based on penalty to the particular offence. Thus, anyone can ascertain
whether offence is bailable or non bailable. To categorise the offence is so important as right to bail
stems from this deviation. Bail Act also provides same interpretation in its interpretation section13.
Bail Act provides;
“A person suspected or accused of being concerned in committing, or having
committed a bailable offence, shall, subject to the provisions hereinafter provided,
entitled to be released on bail”.14
Therefore, Right to bail at the first instance is only vested with bailable offences and not with non
bailable offences. As of a right the accused is entitled to get bail for bailable offences subject to
limitation of the Bail Act. In Pathirana v OIC Nittambuwa 15 case the Court of Appeal held that
Magistrate has no power to remand a person for bailable offence.
With relates to non bailable offences Bail Act provides discretionary powers Magistrate to grant or
refuse bail. It says that;
“Subject to the provisions of section 3, a person suspected or accused of being
concerned in committing, or having committed a non-bailable offence may at any time
be released on bail at the discretion of the court.”16

However, this discretion is curtailed by Dissanayake v OIC Hanguranketha17. The Court of Appeal
held Magistrates has no powers to remand a suspect or an accused beyond 14 days. But this
proposition is obsolete law as Section 14 of Bail Act comes into play a major role after 1997.

Police Bail
Section 6 of the Bail Act provides that suspect shall be admitted to bail for bailable offences. But in the
practical scenario says different story. Most of the bailable offences are being produced to courts and
this counts the backlog of court cases. Some must be sent for mediation under Mediation Board Act by
the OIC but practically these procedures are hardly done.
“Where an offence being investigated by the police is a bailable offence, the officer-in-
charge of the police station shall not be required to forward the suspect under its custody
before the Magistrate having jurisdiction over such offence, but such officer shall not later

12 Offences punishable less than 3 years of imprisonment or fine only have been identified as Bailable offence in the CPC.
13
Section 29 of the Bail Act
14 Section 4 of Bail Act
15 [1988] 1 Sri Lanka Law Reports 84, this case was decided before the Bail Act was enacted and this concept is slightly

changed. At present, Magistrate can remand a person under section 14 of the Bail Act even the offence falls under category
of bailable offences. See 49 NLR 119
16 Section 5 of the Bail Act(BA)
17 [1989] 2 Sri Lanka Reports 249, A.G V Punchi Banda [1986] 1 SLR was followed.

4
than twenty-four hours of the suspect being taken into custody, release him on a written
undertaking and order such suspect to appear before the Magistrate on a given date”18

It is to be noted that every police station has bail bond forms but lamentably police put nominal amount
to the bail bond such as 1000LKR, 5000LKR. This diminishes the binding effect of bail bond on sureties
and appearing the future court proceedings. It is unseen that police has any barrier to put higher
amount than this amounts such as 1, 00,000LKR to get the accused down to the trial. These bail bonds
can be recovered by the court in the event of failure to come to the court.

Limitation to the bail

The Act itself poses three limitations, those are;


a) Limitation under section 3; this section curtails granting bail to suspects and accuseds of
the Prevention of Terrorism (Temporary Provisions) Act. No 48 of 1979, Regulations made
under the Public Security Ordinance or any other written law which makes express
provision in respect of the release on bail of persons accused or suspected of having
committed, or convicted of, offences under such other written law. Thus, it is crystal clear if
there is a special provision for bail any other written law, this Act does not supersede that
provision. In A.G v Thilanga Sumathipala 19 Her Ladyship Justice Dr Shirani
Bandaranayake (As she then was) contrasted the provisions of section 47(1) of Immigrant
and Emigrant Act, Constitution and Bail Act and overturned the bail ruling of Court of
Appeal 20 . The Prevention of Terrorism Act includes provisions for not granting bail to
persons accused of an offence under this Act. The Act does, however, state that the Court
of Appeal can grant bail in exceptional circumstances and subject to conditions. Section 19
of The Prevention of Terrorism Act states that:
“Provisions of any written law relating to the grant of bail not to apply to persons
accused of any offence under this Act”. This is still good law in this context.
With Relating to emergency regulations the Supreme Court held that Bail has to be
considered with the submission of the Attorney General and notice to the AG is sine qua
non21. In A.G v Nilanthi22 the Court of Appeal held the High Court have no jurisdiction that
suspect to be enlarged on bail and exclusive jurisdiction is vested with the Court of Appeal
under section 10 of the Offensive weapons Act.

b) Limitation under section 13; this is a partial limitation and Magistrates powers to grant bail
has been taken away by this provision. It says;
“A person suspected or accused of being concerned in committing or having
committed, an offence punishable with death or with life imprisonment, shall not he
released on bail except by a Judge of the High Court”

18 Section 6(1) of BA, limitation is that OIC of police station opine that there will be a public disquiet or breach of peace, and
then he could produce the accused to Magistrate under section 7 of the BA for proper conditions or to remand the accused
under Section 14 of BA.
19 [2006] 2 SLR 126
20 Reported in Thilanga Sumathipala v IGP [2004] 1 SLR 210, but in contrast the Supreme Court held in Pathiranage

Sumadadasa v AG case SC (spl) 1 to 99, 200/2006 dated 19th July 2006 that Magistrates Court are directed to decide bail
provisions of section 47(1) of Immigrant and Emigrant Act on the continued detention of persons in accordance with
procedure applicable to accused person of non bailable offences. This led to amendment to the provision by Immigrants and
Emigrants (Amendment) Act, No. 31 of 2006, now power is vested with High Court under special circumstances; see section
47c of the amendment.
21 VIKALPA PRATHIPATHTHI KENDRAYA V GOTHABAYA RAJAPAKSE SC (F/R) 351/2008 order dated 05-08-2008.
22 [1997] 2 SLR 203

5
Therefore, Magistrate needs to be aware of the exact penalty to decide bail. Some Penal
Code offences which are entangled with fire arms are punishable by life imprisonment and
power to grant bail is taken away by this provision 23 . Similarly, this will applies to
Dangerous Drugs cases24

c) Limitation under section 14; this is a blanket provision for denial of bail. Whether offence is
bailable or non bailable court has power to refuse bail on its own motion or application by
the police prosecution or revoke bail whether he had already been released by issuing
notice to the suspect or the accused. The grounds for refusal are set out itself as follows;

(a) that such person would ;

(i) not appear to stand his inquiry or trial( Flight Risk);


(ii) interfere with the witnesses or the evidence against him or otherwise obstruct the
course of justice; or
(iii) commit an offence while on bail; or

(b) that the particular gravity of, and public reaction to, the alleged offence may give rise
to public disquiet.
In Anurdhha Ratwatte v A.G25 the Supreme Court articulated if bail was refused under section 14(1),
reasons should be come under the ambit of section 14(1) and written reason26 for refusal must be given
by the court. His Lordship Justice P.H.K. Kulathilake in his judgment of A.G v Jagath Kumara 27
enunciated that no merits are taken into consideration when granting bail even the prosecution has
more weaker case that itself not a special reason for grant bail. The simple notion is merits of the case
are not considered when granting bail.

In R v. Crown Court at Harrow [2003] 1WLR 2756, in page 2778 Hopper LJ enunciated that;
“ The fact that the new offences appears to have been committed whilst on bail
is likely to be a factor of considerable importance against the defendant when
deciding whether there are substantial grounds for believing that, if released, he
would commit a further offence while on bail” .
Having considered above principles it is noteworthy to say that Magistrate has enormous powers to
curtail the liberty of the suspect or the accused. The burden of prove goes to the court itself (if it is an
ex moro motu order) or the police and if the court has reason to believe or where it is satisfied that bail
could be refused or rescind previous bail.

Maximum period of Custody

Sections 16 and 17 are dealing with maximum period of remanding a person. Section 16 says that
unless a person has been convicted and sentenced by a court, no person shall be detained in custody
for a period exceeding twelve months from the date of his arrest. Under section 17 a remandee could
be detained for good and sufficient reasons that shall be recorded by the court, order that a person who
has not been convicted and sentenced by a court, be detained in custody for a period in excess of
twelve months. However that the period of detention ordered under this section, shall not in any case

23 See section 44 amendment to the Fire Arms Act.


24 Section 54 of the Dangerous Drugs Act
25 S.C. No: 02/2003 to 16/2003(TAB) order dated 11-07-2003 per His Lordship the Chief Justice Sarath Nanda Silva
26 Section 15 of the Bail Act
27 CA Appeal No: 771/1998 order dated 26-02-1999

6
exceed three months at a time and twelve months in the aggregate. That is maximum period of
detention is 24 months that is two years from the date of arrest. With re relates to this provision in the
case of M.H. Jayawathi Vs Attorney General28 the Court of Appeal has held that a suspect could be
kept on remand for a period exceeding 24 months. But this case was overruled by three Judges of the
Court of Appeal in Wickramasinghe v A.G.29 stating a person cannot be remanded in custody over 24
months.

Bail pending appeal

Section 19(2) gives power to release a convicted person on bail pending appeal.

“When an appeal has been preferred from a conviction by a Magistrate's Court the
court from which the appeal is preferred may having taken into consideration the
gravity of the offence and the antecedents of the accused, refuse to release the
appellant on bail.”

In Watton (1978) 68 CrAppR 293, at 296-297 (English Court of Appeal) held that the modern practice is
to grant bail pending an appeal only where it appears prima facie that the appeal is likely to be
successful or where there is a risk that the sentence will have been served by the time the appeal is
heard.
In Ediriweera v A.G (supra) the court held that even a convicted person has a right to get bail on
exceptional circumstances. But section itself says that considering the gravity of the offence and the
antecedents of the accused, bail could be given to the convicted person. In Dhachchainei v A.G30 His
Lordship Justice Jagath Balapatabendi considered the bail pending appeal after convicted by High
Court. Referring to section 20(2) of the Bail Act His Lordship confirmed that granting bail is the rule
refusal is the exception and there are no hard and fast rules for preventing that. But in Queen v
Liyanage31 His Lordship Justice Sansoni said that though courts have powers to grant bail but that
discretion must be judicially exercised. This rule still applies for granting or refusing bail and judge or
Magistrate must exercise the discretion judicially and judiciously.

In Wickramasinghe v A.G His Lordship Justice Abrew said that;

“Purpose of remanding a suspect/accused is, in my view, to ensure his appearance in


court on each and every day that the case is called in court. If the court feels that that
he would appear in court after his release on bail, court should enlarge him on bail.
Court should not remand a suspect/accused in order to punish him”

Thus, remanding a suspect or accused person should not be punish for that person. Hence refusal bail
should not be punitive.

Bail Conditions

Section 7 of the Bail Act provides the conditions to be included or imposed in bail bond. It says;

28 CA189/2004- decided on 27.4.2006, order of His Lordship Justice Jagath Balapatabendi


29 CA (PHC) APN: 39/2009, HC Negombo HCAB 490/2006 Decided on 04.3.2010 Their Lordships Sisira de Abrew J Upaly
Abeyratne J and DSC Lekamwasam J,
30 CA No: PHC 55/2005, Colombo HC Case No 9300/1998 , order dated 28-10-2005
31 65 New Law Reports 291

7
a) on an undertaking given by him to appear when required
b) on his own recognisance
c) on his executing a bond with one or more sureties
d) on his depositing a reasonable sum of money as determined
by court
e) on his furnishing reasonable certified bail of the description
ordered by court

The proviso of this section gives that where the person has appeared before court on summons and is
ordered to be released, he shall be enlarged on his own recognisance or on his giving an undertaking
to appear when required, unless for reasons to be recorded, the court orders otherwise32.

There are few modes of bail.

a) Cash Bail: to deposit some amount of money in cash to ensure suspect’s presence in the
trial
b) Surety Bail: a person other than the suspect or the accused to give guarantee for sum of
money to pay to the court if the suspect failed to appear in court.
c) Personal Bail: the suspect or the accused to sign a bond to pay some amount of money to
the court if the he failed to appear in court.
d) Certified Bail: a deed or other certified document to be kept under the custody of the court
to ensure the presence of suspect in the trial.

When an accused is remanded in custody for some other case, the Magistrate cannot confiscate the
bail bond33.

In R. V. Southampton JJ., ex p. Green34 Lord Denning M.R. said that;

“if the condition of a recognizance entered by a surety is broken, the recognizance may
be forfeited, and on forfeiture the obligee becomes a debtor to the Crown for the sum in
which he is bound”

Anticipatory Bail

The concept of anticipatory bail was introduced to Sri Lanka by Section 21 of the Bail Act of 1997. It is a
new phenomenon cut and pasted to law of bail from India35 and hardly local case laws in this regard.
But India has rich practise with relation to anticipatory bail.

Section 21 states that:

“When any person has reason to believe that he may be arrested on account of his
being suspected of having committed or been concerned in committing a non-
bailable offence, he may with notice to the officer in charge of the police station of
the area in which the offence is alleged to have been committed, apply to the
Magistrate having jurisdiction over the area in which such offence is alleged to have
been committed, for a direction that in the event of his arrest on the allegation that he

32 See section 263(2) of the Code of Criminal Procedure, enacts same procedure, see 51 NLR 23
33 See 60NLR 407
34 [1976] QB 11, CA
35 Justice Dr. L.M. Jayaratna, “Anticipatory bail not a right” Sunday Observer ( Sri Lanka) , Sunday, 15 August 2004

8
is suspected of having committed or been concerned in the commission of such
offence, he shall be released on bail”.

It is noteworthy to say an application for anticipatory bail cannot be made for bailable offences. When
one files the anticipatory bail application it is sine qua non that he has been wanted for non bailable
offence and application must contain the alleged offence particularly penal section of that offence
whether to ascertain it is bailable or non bailable. If it is not mentioned Magistrate can dismiss the
application in limine. The other aspect is prior to filing the application the applicant must send notice to
the OIC of the area in which the offence is alleged to have been committed. Thus application must
address the jurisdiction properly that offences have been committed within the area. Otherwise
application may fail again. The outcome of anticipatory bail is somewhat non bailable offences making
bailable. The pertinent orders of anticipatory bail application or effect of allowing anticipatory bail
application is for a direction to the OIC of the area that in the event of his arrest on the allegation that
he is suspected of having committed or been concerned in the commission of such offence, the suspect
shall be released on bail . This is the same outcome of bailable offences. On the other hand this is an
advance bail application to the court prior to the B report of the OIC for alleged offence. Court can
dictate terms prior to filing of B report. This proves by section 23, it says;

“Where an order as prayed for by an applicant is made under section 21, and the
applicant is thereafter arrested for an offence specified in the order or any other
offence constituted by the acts constituting the offence specified in the order, the
applicant shall be entitled to be released forthwith on bail on his furnishing bail in the
manner specified in the order and on his complying with the conditions, if any,
attached thereto”.

The application form anticipatory bail has to be by petition supported by affidavit on the applicant36.The
Magistrate to fix the inquiry within 7 days of the receipt of the application with notice to the applicant
and officer in charge of the police station of the area where the offence is alleged to have been
committed37.

The Magistrate should make an order either allowing the application for anticipatory bail or refusing the
same with reasons given 38 . Then Magistrate will attach conditions if anticipatory bail is granted.
Furthermore, the Magistrate has to take special care to mention in the order for anticipatory bail the
offence or offences in respect of which the order is made and the manner in which the bail shall be
furnished by the applicant at the time of arrest.

If the Magistrate considers that he should prohibit the applicant from leaving Sri Lanka, he has to
impound his passport and then notify the Controller of Immigration and Emigration of such facts.

Section 23 gives the power apparently to the OIC of the Police Station concerned to execute the order
of anticipatory bail in the manner provided in the order of the Magistrate if the applicant is arrested for
the offence mentioned in the order or any other offence constituted by the acts constituting the offence
specified in the order. The applicant binds after being released on anticipatory bail to observe the
following conditions.

(a) to make himself available to the police for interrogation at any time on any day between 6
a.m. and 6 p.m.

36 Section 21 (2)
37 Section 21 (3)
38 Section 21 (4)

9
(b) he shall not directly or indirectly make any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade that person from disclosing such facts to
the court or police.

(c) not to tamper with any evidence in the case.

Granting anticipatory bail does not automatically shut down any police officer to carry out his police
duties such as interrogation, applying for warrant of arrest in respect of the offence mentioned in the
application for anticipatory bail during the pendency of the application39.

Section 26 also empowers that the Magistrate on the application of the OIC of the police station
investigating the offence may issue a warrant on the applicant to appear in court with reasons given.
Section 26 (2) provides the Magistrate to make a detention order on the applicant when he responds to
Section 26 (1) with reasons given. He can either revoke or vary the order subject to reasons. But it is
unclear whether magistrate can remand the suspect at the very inception till the OIC files the objections
for the Anticipatory bail application. Idea behind this is that to evade the cause of justice a suspect can
file and get anticipatory bail. There is no proper evidence before the court with regards to gravity of the
offence. Normally, if it is a non bailable offence, the Magistrate has discretion to grant or refuse bail.
Has anticipatory bail curtailed the discretion of the Magistrate? In that circumstances can the
anticipatory bail application be refused at the first instance? Magistrates are to assist the police
investigation with necessary orders40. Would the anticipatory bail hinder this aspect? In time to come
appellate courts are to make precedents and iron out these questions. But Indian authorities have some
sense of essence.

As I noted the neighbouring India has long history of anticipatory bail. In Balchand Jain vs State Of
Madhya Pradesh 41P. N. Bhagwati and A.C. Gupta,JJ. Held that;

“The term 'anticipatory bail' is a misnomer. It is not as if the bail is presently granted by
the court in anticipation of arrest. When the court grants anticipatory bail it makes an
order that in the event of arrest a person shall be released on bail. Thin somewhat
extraordinary power is exercised only in exceptional cases and is entrusted to the higher
echelons of the judicial service”

In Gurbaksh Singh Sibbia Etc vs State Of Punjab42 CHANDRACHUD, Y.V. ((CJ) Held that;

“The power under Section 438 (equalling to section 21 of Bail Act of Sri Lanka) , Criminal
Procedure Code, is of an extra-ordinary character and must be exercised sparingly in
exceptional cases only.

Neither Section 438 nor any other provision of the Code authorises the grant of blanket
anticipatory bail for offences not yet committed or with regard to accusations not so far
levelled.

39 Section 25
40 Section 124 of the Criminal Procedure Code No:15 0f 1979

41 on 5 November, 1976 1977 AIR 366 1977 SCR (2) 52, 1976 SCC (4) 572

42 on 9 April, 1980 AIR 1632, 1980 SCR (3) 383

10
The said power is not unguided or uncanalised

The larger interest of the public and State demand that in serious cases like economic
offences involving blatant corruption at the higher rungs of the executive and political
power, the discretion under Section 438 of the Code should not be exercised; and

Mere general allegations of mala fides in the petition are inadequate. The court must be
satisfied on materials before it that the allegations of mala fides are substantial and the
accusation appears to be false and groundless”

Bail consideration beyond boundaries

As I noted above the Bail Act provides comprehensive coverage for aspect of bail. The Judge or
Magistrate deciding bail for suspect is needed to be taken into consideration following several aspects
before granting or refusal of bail. Irish Supreme Court in The People (at the suit of the Attorney
General) v O'Callaghan 1966 I.R. 501 stressed that the object of bail is to secure the appearance of
the accused person at his trial and that the object is neither punitive nor preventive. Walsh J43. I quote;

"There are a number of matters which may be, and should be where appropriate, taken
into account by the Court in considering whether or not it is likely that the prisoner may
attempt to evade justice. These I enumerate as follows:-

1. The nature of the accusation or in other words the seriousness of the charge. It
stands to reason that the more serious the charge the greater is the likelihood that the
prisoner would not appear to answer it.
2. The nature of the evidence in support of the charge. The more cogent the evidence the
greater the likelihood of conviction and consequently the greater the likelihood of the
prisoner attempting to evade justice.
3. The likely sentence to be imposed on conviction. The greater the sentence is likely to
be, the greater the likelihood of the prisoner trying to avoid it. The prisoner's previous
record has a bearing on the probable sentence and consequently must be before this
Court.
4. The likelihood of the commission of further offences while on bail. In this connection,
a prisoner facing a heavy sentence has little to lose if he commits further offences. A
prisoner may consider that he has to go to prison in any event and in an effort to get
money to support his family may commit further offences.
5. The possibility of the disposal of illegally acquired property. Stolen property may be
stored or cached away.
6. The possibility of interference with prospective witnesses and jurors.
7. The prisoner's failure to answer to bail on a previous occasion.
8. The fact that the prisoner was caught red-handed.
9. The objection of the Attorney General or of the police authorities.

43 Cited in Maguire v. D.P.P. [2004] IEHC 49 (2 April 2004)

11
10. The substance and reliability of the bailsmen offered. (This is primarily a matter for
the District Justice).
11. The possibility of a speedy trial.
In certain cases the likelihood of personal danger to the prisoner – from the hands of
persons injured or incensed by the crime – may in itself be a ground for refusing bail."

The refusal of bail is neither punitive nor preventive. It should be decided on balance. This is to be
decided on merits of each case. Judge or Magistrate must consider the attended circumstance
carefully. Then he should decide whether the opposition party has rebutted the presumption of Right to
bail.

In R. V Mansfield JJ., ex p. Sharkey44 held that “the test for imposing a condition on the grant of
bail under section ... was whether the court perceived a real risk of one of the specified events
occurring.”

In R. (Thompson) v Central Criminal Court45 Collins J said that;

“A person charged with a serious offence, facing a severe penalty if convicted, may well
have a powerful incentive to abscond or interfere with witnesses likely to give evidence
against him; where there are reasonable grounds to infer that the grant of bail may lead
to such a result, which cannot be effectively eliminated by the imposition of appropriate
conditions, they will afford good grounds for refusing bail;...in all the circumstances, it is
necessary to deprive the applicant of his liberty; whether or not that is the conclusion
reached, clear and explicit reasons should be given.46”

Hurnam v. The State (Mauritius)47 English Privy Council observed;


“It is obvious that a person charged with a serious offence, facing a severe penalty if
convicted, may well have a powerful incentive to abscond or interfere with witnesses
likely to give evidence against him, and this risk will often be particularly great in drugs
cases. Where there are reasonable grounds to infer that the grant of bail may lead to such
a result, which cannot be effectively eliminated by the imposition of appropriate
conditions, they will afford good grounds for refusing bail”.

Common law pertaining to bail in England, and European Convention on Human Rights give ample
factors to be considered in bail application. These relevant factors are;

a) The presumption of innocence,


b) Whether the accused to appear to stand trial,
c) Whether bail has been refused previously,
d) The seriousness of the charge,
e) The likelihood of the accused re –offending on bail,
f) Any interference with prosecution witnesses,

44 [1985] Q.B. 613, DC


45 [2006] ACD 9, QBD
46 Cited in ARCHBOLD 2009Sweet & Maxwell, Thomson Reuters, England and Wales, Page275(Para 3-53)
47 [2005] UKPC 49 (15 December 2005), Privy Council Appeal No. 53 of 2004 [2006] WLR 857

12
g) The accused's character,
h) The accused right to prepare his defence,
i) The likelihood of further charges,
j) The state's opposition to bail.
In England bail is governed by the 1976 Bail Act, which provides that bail may be refused where there
are substantial grounds for believing that the defendant if released on bail, would fail to surrender to
custody, commit an offence while on bail, interfere with witnesses, and where the Court is satisfied that
the defendant should be kept in custody for his own protection and welfare (Schedule 1 Part 1 (2).
However, case law on Human Rights and the European Convention on Human Rights shows a shift
towards a more narrow approach to the refusal of bail. Article 5 (3) of the Convention states that a
person charged with an offence must be released pending trial unless the state can show that there are
relevant and sufficient reasons to justify his continued detention. Further, bail may be refused for only
four reasons.
Firstly that there a risk that the accused will fail to appear at trial. Relevant factors are the
character of the accused, his home, occupation, his assets within the country, his family
ties and any other ties within the country (Newmeister – v – Austria I E.H.R.R. 91. The
seriousness of the offence is relevant but not the predominant factor.
The second legitimate reasons for refusing bail is possible interference with the course of
justice.
The third factor is that the accused may commit further offences on bail. (Section 14 0f Sri
Lankan Bail Act deals with it.)
The fourth relevant factor is that the nature of the crime alleged and the likely public
reaction are such that the release of the accused may give rise to public disorder. In
Letellier – v – France 14 E.H.R.R. 83, the Court said this factor was only relevant to
offences which were particularly serious. (Section 14 0f Sri Lankan Bail Act deals with it.)
In Siddharam Satlingappa Mhetre vs State Of Maharashtra And Ors 48 Dalveer Bhandari, J.
enunciated that;
“The society has a vital interest in grant or refusal of bail because every criminal
offence is the offence against the State. The order granting or refusing bail must
reflect perfect balance between the conflicting interests, namely, sanctity of
individual liberty and the interest of the society”
Therefore, the fundamental principle has always been, and continues to be, that bail will be granted
unless the Court believes that the accused may not appear for trial. The factors listed above, help to
assist the Court in arriving at a conclusion in respect of this fundamental principle of bail.

Conclusion

This short paper begins with two case studies. One case study was illegal abortion case. Though, it is a
bailable offence literally since the accused has pending cases for the same offence, the Magistrate can
act under section 14 and remand the accused as he re offended while on bail for previous cases.
Magistrate can take judicial notice of those cases.

48 on 2 December, 2010, CRIMINAL APPEAL NO. 2271 2010. (Arising out of SLP (Crl.) No.7615 of 2009

13
In second scenario, the Cabinet Minister was assaulted, but the offence wais bailable. The police did
not make any application under section 14 as to remand the accused. Thus granting bail is well within
the parameter of the law of bail. As everyone is equal before the law therefore no special treatment can
be given to the victim or to the suspect in this matter.

Law on bail is lucid under Bail Act 1997. It deals with liberty of the accused and on the other hand
interest of justice and the society. Courts are meant for proper administration of justice. It is the interest
of justice and protection of the community is prime concern and an individual right such as granting bail
will be superseded by that proposition. It is Judge or Magistrate to decide who should go out or in.
Judicial officer should not be a rubber stamp of police on the other hand persecutor to the police. It
cannot be done on mere fantasy but to be followed law of the land and international law. According to
the legal maxim “Salus Civitatis Suprema Lex”- “The security of the State is of the highest
possible legal value”49. The State comprises the community and the basic unit of the community is
family. On the other hand State is the agent of the community. The State comprises three
government organs namely; Executive, legislation and Judiciary. Hence as a member of the
judiciary, a Judge or a Magistrate deciding a bail has mammoth task to dispense the justice on balance.

END

49Rutherford L and Bone S( Edit), (1993) “Osborn’s Concise Law Dictionary”( 8th Edition) Sweet and Maxwell, London p
310

14

Вам также может понравиться