The document discusses the concept of bail in Sri Lankan law. It begins by defining bail and explaining its historical origins and evolution. Bail allows an accused person to be free pending trial, provided there is assurance they will attend trial. The modern Sri Lankan law of bail is governed by the Bail Act of 1997, which introduced changes to consolidate bail laws and recognize constitutional rights to liberty. The Bail Act provides for both regular bail and anticipatory bail. The document also discusses factors like types of offenses (bailable vs. non-bailable), methods of release, duties of those out on bail, and safeguards against arbitrary detention.

1. BAIL-CONCEPT-
APPLICATION
A.W. Abdus Salam
The right of an accused to be free pending his trial, provided
there is adequate assurance that he will stand
trial and submit himself to sentence if found
guilty, is generally known as the right to bail. Like
the ancient practice of securing the old system of oaths of
responsible persons, the modern practice of requiring bail
bond, or the deposit of a sum of money subject to forfeiture,
serves the additional assurance of the presence of an accused.
Since the function of bail is limited, the fixing of bail for any
individual must be based upon the standards relevant to the
purpose of ensuring his presence.
The concept of bail has evolved from a system developed in
England during the middle ages. In 1677, the English Parliament
passed the Habeas Corpus Act, which, among its provisions,
established that Magistrates would set terms for bail. In Sri Lanka
the concept of bail has been gradually developed both by the
Legislature and the Courts, keeping pace with the development of
the Constitutional right to liberty of the people.
BAIL
The word BAIL is derived from the French origin and its continued
use relates back to the year 1300 AD. In Medieval Latin the word
“bail” was known as bajulare which means ‘to control’, from the
Latin word bajulus. The Latin expression bajulus means someone
who carries the load. Black’s Law Dictionary defines it as
“procuring release of one charged with an offence by ensuring his
future attendance in Court and compelling him to remain within
the jurisdiction of that Court”. The word bail has not received any
statutory definition under our law.
The term ‘bail’ has been defined in the case of Kanapathy Vs Jayasingha 66 NLR 549
by Alles,J as “the release or setting at liberty of a person arrested or imprisoned
either on his own recognizance or upon others becoming sureties for his appearance
on a future date”.
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2. Indeed an inquiry into a bail application and the order made on
such application are as important as the trial and verdict for it
involves the liberty of the subjects, a consideration that
warrants the consciousness of the Bench, Bar and the State. As
was stated by Gratiaen,J towards end of his judgment, in the
case of Athurupana 51 NLR 21 there are always grave objections to the
incarceration of unconvicted persons charged with bailable offences, and it can
only be in rare cases that reasons of such cogency arise as to outweigh these
objections.
In the case of Liyange 65 NLR 289 emphasising on the relationship of bail to the
presumption of innocence, the Court voiced its concern over the crucial issue of
right to bail as follows:
The Courts will never cease to safeguard the liberty of the citizen.
The favour shown to freedom will always influence judges to
approach questions affecting the liberty. Per Sansoni, J
The judiciary has an important role to play in safeguarding the liberty of the
subjects. As the front line persons in the administration of justice, Magistrates
have a very special place. In the discharge of their great responsibility they must
not only exercise their independent judgment (subject to the provisions of law
but only to the provisions of law) in deciding whether detention and continued
detention is necessary, but they should also keep a watchful eye on the activities
of the police in areas over which they have jurisdiction in matters pertaining to
the deprivation of personal liberty. Per Dr A R B Amerasingha – vide - Our
fundamental rights of personal security and physical liberty.
As an indispensable component of the judicial system, a considerable duty is cast
on the Bar to assist the Court to arrive at a proper finding on an application for
bail. To achieve this end the Bar must suitably be acquainted with the facts of the
bail application and in particular the Law applicable. On the hand the State and
aggrieved parties should exercise due care not to raise frivolous objections
against bail applications.
THE CONSTITUTION
The Constitution of the Democratic Socialist Republic of Sri Lanka 1978 -
chapter III, unequivocally recognises the freedom of movement, freedom against
torture, arbitrary arrest and detention. It is enshrined in Article 13 of the
Constitution that no person shall be arrested except according to the procedure
established by law and every person so arrested shall be informed of the reason
for the arrest. Once a person is arrested resulting in the deprivation of personal
liberty, he shall be brought before the Judge of the nearest competent Court. He
shall not be further held in custody, detained or deprived of personal liberty
except upon and in terms of the order of a Judge of competent Court made in
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3. accordance with the procedure established by Law. OUR PRESENT ENDEAVOUR
IS TO IDENTIFY THE ESTABLISHED LAW GOVERNING THE RELEASE OF SUSPECTS
ON BAIL.
Unlike in the past, in our country a person accused of
having committed a crime is usually not held in custody
until the determination of his guilt or innocence; courts
have the option of releasing him pending his trial.
Until 27 November 1997, the common principles
applicable to bail were embodied in the Code of Criminal
Procedure Act No 15 of 1979 (herein after sometimes
referred to as the CODE) more particularly in Sections 115,
402, 403 & 404, 422. Remarkable improvements have
been made to the Law relating to Bail in Sri Lanka after the
enactment of the Bail Act No 30 of 1997.
Presently the Law of Bail as is applicable in our Country is
deeply rooted in Legislation. The Bail Act No. 30 of 1997
came into force on 28.11.1997. It introduced sweeping
changes to the system of bail that remained relatively
unchanged for a long period of time (18 years to be
precise) under the Code of Criminal Procedure Act No 15
of 1979. The main objectives intended to be achieved by the Bail Act appear to
consolidate the Law relating to bail, to provide better recognition to freedom of
movement enshrined in the Constitution and to ease the overcrowding of
prisons.
OVERCROWDING OF PRISONS
Each year, the freedom of hundreds of thousands of
persons charged with crimes hinges upon their ability
to raise the money necessary for bail. Those who go
free on bail are released not because they are
innocent but because they can afford to post bail.
The rest are detained not because they are guilty but
because they are poor. The wastage of millions of
rupees and cents annually in building and maintaining jails for persons needlessly
detained before trial should be the concern of those who make orders to remand
them or instrumental in making them remanded unnecessarily. Both the bench
and the Bar can avoid such an eventuality by a concerted effort, if only those
criminal defendants most likely to flee or be a danger to society are detained
behind bars pending their trials. These cases can be rightly chosen with much
care and scrutiny, paying due attention to the accused’s constitutionally
recognised right to liberty.
It is well known that the Statutory provisions and judicial decisions having
binding effect are disregarded or perverted in a disturbingly large number of
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4. cases merely to keep a suspect in detention. In the inner minds of the Judges,
prosecuting attorneys and police, to keep a suspect on remand even for a day is
indirectly to punish him for the incident which leads to charge. This is what is
described as punitive remand orders which should be avoided and discouraged.
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5. Title to the Bail Act
The long title to the Bail Act reads that it is an ACT TO PROVIDE FOR
(1) RELEASE ON BAIL OF PERSONS SUSPECTED OR ACCUSED OF BEING
CONCERNED IN COMMITTING OR HAVING COMMITTED AN OFFENCE;
(2) TO PROVIDE FOR THE GRANTING OF ANTICIPATORY BAIL AND
(3) FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO.
(Numbering of the paragraphs is an addition of the author).
By reason of the importance attached to the long title to an
Act, it is necessary at the outset to examine the objectives
of the Bail Act intended to be achieved by the Legislature
as it is settled law that the title of a statute plays an
important role towards the ascertainment of the general
scope of the law1
. On perusal of the long title it is crystal clear that in addition to
providing specific provisions for the grant of bail to persons who are arrested
and/detained in connection with various crimes, the Legislature extended the
principle of bail to those who have not yet been arrested, by specifically enabling
the Magistrates to grant anticipatory bail, a concept hitherto unknown to the Sri
Lankan Statutes.
By enacting the Bail Act the Legislature has facilitated
the release of accused/suspects awaiting trial, in a
meaningful manner consolidating the principles of
Bail, notwithstanding anything contrary to the
provisions contained in the Code. Therefore,
undoubtedly the Legislative attempt seems to aim at
introducing an Act to deal exhaustively with all types
of bail applications, though it may still appear to be
incomplete. Hence, it is necessary to examine the provisions contained in the
Code and the Bail Acts for an exhaustive study of the principles of bail.
Index to the BAIL ACT.
Long Title
Short title.
1. Grant of bail to be the guiding principle in implementing this Act
2. Provisions of this Act not to apply in respect of offences committed under certain
laws
3. Persons committing or concerned in the commission of a bailable offence to be
released on bail
1 Maxwell on the interpretation of Statutes
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6. 4. Persons committing or concerned in the commission of non-bailable offence to be
released discretion
5. Release of persons when a bailable offence is being investigated by the police
6. Manner in which a person suspected or accused of a bailable or non-bailable
offence may be released on bail
7. Discharge from custody
8. Power to order sufficient bail when that first taken is insufficient
9. Determining whether a person is a sufficient surety
10 Quantum of bond
11 Person released to give address at which notices and process may be served on
him
12 No bail for an offence Punishable with death except by a judge of the High Court
13 Reasons for which Court may refuse bail or cancel a subsisting order for release
14 Reasons to be given for refusal cancellation rescinding or varying an order relating
to granting of bail
15 No person to be detained for more than twelve months in custody
16 How period of detention may be extended
17 Discharge of sureties
18 Appellant to be released on giving security
19 Release on bail upon acceptance of appeal from High Court
20 Anticipatory bail
21 Conditions to be attached to order
22 Effect of person released on anticipatory bail being thereafter arrested
23 Conditions subject to which anticipatory bail may be granted
24 A police officer may interrogate or arrest on a warrant an applicant in respect of
whom an application under Section 21 is pending.
25 Issuing of warrant requiring presence of persons released on anticipatory bail
26 Provisions of this Act to prevail in case of conflict or inconsistency
27 Sinhala text to prevail in case of inconsistency
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7. 28 Interpretation
The concept of bail involves the liberty of the subjects and more so in view of the
presumption of innocence conferred by Article 13(5) of the Constitution. As such,
it is an elementary principle to bear in mind that the refusal to admit a suspect on
bail should never leave a punitive flavour. Generally, in many Courts application
for extension of a remand period is objected to and as expressed by Gratien,J2
There are always grave objections to the incarceration
of unconvicted persons charged with bailable offences
and it can only be in rare cases that reasons of such
cogency arise as to outweigh these objections.
The Criminal Procedure Code Act No 15 of 1979 regulates the procedure in a
criminal trial. Besides, it also contains provisions regarding investigation of a
crime, arrest of persons and their detention.
Significantly, the concept of bail depends on the type offence the suspect is
alleged to have committed. The application of the concept may materially differ
from each other depending on whether the offence disclosed is bailable or non
bailable. In terms of the Code of Criminal Procedure (Section 2) unless context
otherwise requires, “bailable offence" means an offence shown as bailable in
the first Schedule to the Code or which is made bailable by any other law for the
time being in force, and "non-bailable offence" means any other offence.
The first schedule to the Code of Criminal Procedure sets out only the offences
falling under the Penal Code as being bailable or non-bailable. The subsequent
Statute (Bail Act) in Section 29 defines the term bailable and non-bailable
offences in the following manner:
unless the context otherwise requires "bailable offence"
means an offence which is described in column 5 of the First
Schedule to the Code of Criminal Procedure Act, No. 15 of
1979, or by any other law, as being bailable; and "non-
bailable offence" means an offence which is described in
column 5 of the First Schedule to the Code of Criminal
Procedure Act, No. 15, of 1979, or by any other law, as being
non-bailable”.
In this context it needs to be stated that to render an offence non-bailable the
Legislative intent needs to be expressly declared in the Statute, as an offence
which is non-bailable.
2 In re Athurupane 51 NLR 21
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8. Our law further classifies the different type of crimes as offences in respect of
which a warrant is necessary to arrest an accused and where no warrant is
required for his arrest.
Method in which the suspect may be released
The Courts have evolved several methods for
releasing an accused/suspect on bail and the Judge
determines which of these methods is to be applied
pending the determination of his guilt. These
methods are recognised under Section 7 of the Bail
Act and reads as follows:
(1) Whenever any person
suspected or accused of, being
concerned in committing or having committed, a non-
bailable or bailable offence appears, is brought before, or
surrenders, to the Court having jurisdiction, the Court may
release such person
(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; or
(e) on his furnishing reasonable certified bail of the
description ordered by Court: Provided 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
otherwise.
ALTERNATIVE METHOD
(2) Where any person is required to execute a bond, under paragraph (c) of
subsection (1), the Court may permit such person to deposit a sum of money to
the credit of the account of the Court at the appropriate bank, in lieu of
executing such bond.
DUTIES AND RESPONSIBILITIES ARISING FROM A BAIL BOND
(3) Where any person is released on his executing a bond under paragraph (c) of
subsection (1) with one or more sureties, such person shall attend at the time
and place mentioned in the bond and shall continue to so attend until otherwise
directed.
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9. WHAT IS A BOND AND WHAT SHOULD BE ITS QUANTUM
Signing the bail bond is a promise that the accused will
appear in the specified criminal proceeding. The failure
of the accused to appear will cause the signatories to
the bond to pay to the Court the amount designated.
The amount of bail is generally an amount determined in
the light of the seriousness of the alleged offence.
The sureties should generally be chosen from and
among the members of the family of the accused.
SAFE GUARD AGAINST ARBITRARY DEPRIVATION OF
PERSONAL LIBERTY- 24 HOUR RULE
It is a deeply rooted principle in Criminal Law that an offender once
arrested by a peace officer shall not be detained in custody or
otherwise confined for a longer period than under all the
circumstances of the case is reasonable, and such period shall not
exceed twenty-four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate.3
This is a safeguard provided by the
Legislature both under the Constitution and the general Statute against arbitrary
deprivation personal liberty and right to freedom.
BAILABLE AND NON-BAILABLE OFFENCE
For purpose of bail the type of offence as to whether it is bailable or non-bailable
plays a vital role. Our law recognizes these two categories of offences. The
schedule to the Code of Criminal procedure is confined to offences under the
Penal Code.
Apprehension of offenders
3 Vide section 37 of the Code of Criminal Procedure
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10. The law relating to the apprehension of offenders provides
for arrest of suspect with or without a warrant. The
procedure for the arrest of an offender is spelt out in
Section 23 of the Code. It is a fundamental principle in
Criminal Law that an offender should not be detained without an order from a
competent Court of law. Under Section 37 of the Code there is an imperative
requirement that every person who is arrested in connection with a cognizable
offence is brought before a Court of law before the expiration of a period of 24
hours from the time of his arrest. Section 23 sets out that the person making the
arrest shall actually touch or confine the body of the person to be arrested
unless there be a submission to the custody by word or action and shall inform
the person to be arrested of the nature of the charge or allegation upon which
he is arrested.
However, in terms of Emergency Regulation 19 (1) the provisions of sections 36,
37 and 38 of the Code of Criminal Procedure Act No. 15 of 1979 are inapplicable
in relation to persons arrested under Regulation 18. Hence, the requirement to
send the person arrested before a Magistrate without unnecessary delay and the
prohibition against detention for more than 24 hours will not apply in regard to
those arrested under the said Regulation 18.
The above Rule was laid down In Edirisooriya vs. Navaratnam 1985 1 SLR 100 where it
was held that in a fit case the Court would entertain an application made outside the
limit of one month in an alleged violation of fundamental rights case provided an
adequate excuse for the delay could be adduced. If the petitioner had been held
incommunicado, the principle lex non cogit ad impossibilia would be applicable. It was
further held that Sections 36; 37 and 38 of the Code of Criminal Procedure Act
(providing for the production of an arrested person before a Magistrate) are not
applicable in relation to a person arrested under Regulation 18.
Lex non cogit ad impossibilia means that the law does not compel a person to do
that which he or she cannot possibly perform. It also means that the law cannot
force impossibilities.
In the case of Sunil Rodrigo on Behalf of B. Sirisena Cooray Vs Chandananda De
Silva And Others 1997SLR 3 page 265 it was pointed out that:
The decision whether certain activities of a citizen constitutes a
threat to national security is a matter for the Secretary and not of a
Police Officer, whatever his rank might be. The power of the
Secretary given by regulation 17(1) concerns physical liberty of
persons, including those who have not yet, nor never, committed
an offence. It is therefore an exceedingly great power, indeed an
awesome power, that must be exercised with corresponding degree
of responsibility.
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11. Amarasingha, J stated that Conspiracy to murder the President is an offence
under regulation 24(b), and so there was an offence the detenu was supposed to
have committed which was the "reason" for his arrest and detention. He was not
informed of that reason as required by Article 13(1) of the Constitution.
5. The detenu was not arrested under a
procedure established by law. He was arrested
on vague suspicion in circumstances that
showed a reckless disregard for his right to
personal liberty. In the circumstances by failing
to produce him before a judge the respondents
transgressed his rights under Article 13(2) of
the Constitution.
SALIENT FEATURES AND GLARING DIFFERENCES BETWEEN THE CODE OF
CRIMINAL PROCEDURE AND BAIL ACT AS REGARDS BAILABLE OFFENCES.
In terms of Section 402 0f the Code of Criminal Procedure Act No 15 of 1979
when any person other than a person accused of a non-bailable offence appears
or is brought before the Court and is prepared at any time at any stage of the
proceedings before such Court to give bail such person shall be released on bail.
The corresponding Section 4 of the Bail Act provides that a person suspected or
accused of being concerned in committing, or having committed a bailable
offence, shall, subject to the provisions of the Bail Act be entitled to be released
on bail.
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12. Section 6 of the BAIL ACT sets out the
manner in which an offender of a bailable
offence should be dealt with. It provides
that 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 his
custody before the Magistrate having
jurisdiction over such offence, but such
officer shall not later 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. The principal Section 6 to the Bail Act does not give rise to any
complication. However, the proviso to Section 6 needs to be focussed with much
caution for it enables a suspect to be remanded despite the triviality of the
offence.
PROVISO TO SECTION 6
Where the officer-in-charge of the police station is of the opinion that public
reaction to the alleged offence which is being investigated into, is likely to give
rise to a breach of peace he shall forward the suspect in custody before a
Magistrate having jurisdiction over such offence, and the Magistrate shall
thereupon make an order under Section 7 or Section 14 as he may consider
appropriate.
In terms of Section 7 the Magistrate is empowered to release the suspect in one
of the several modes spelt out under that Section.
Section 14 empowers the Judge to refuse bail or cancel bail under certain
situations. It reads as follows:
1. Notwithstanding anything to the contrary in the preceding provisions of
this Act, whenever a person suspected or accused of being concerned in
committing or having committed a bailable or non-bailable offence,
appears, is brought before or surrenders to the court having jurisdiction,
the court may refuse to release such person on bail or upon application
being made in that behalf by a police officer, and after issuing notice on
the person concerned and hearing him personally or through his attorney-
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13. at-law, cancel a subsisting order releasing such person on bail if the court
has reason to believe:
a. that such person would
(i) not appear to stand his inquiry or trial;
(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.
2. Where under subsection (1), a court refuses to release on bail any person
suspected or accused of being concerned in or having committed an
offence or cancels a subsisting order releasing such person on bail, the
court may order such suspect or accused to be committed to custody.
In Mclean Vs Appan 2 NLR 54 it was held that where the offence was a bailable,
there is no discretion vested in the Court to refuse Bail and any order remanding
a suspect in such circumstances would be an illegal order. (See proviso to Section
6 of the Bail Act.)
In a case reported in 8 CWR 53 it was held that the fact that the suspect is a
repeat criminal is not a ground to make an order of remand where he is being
produced in respect of a bailable offence.
In the case of Pathirana vs. OIC Nittambuwa 1988 1 SLLR 84 the suspects were
alleged to have committed offences under Sections 314, 315, 316 of the Penal
Code and the Magistrate remanded them till the 23rd of March, 1988 as the
investigations into the matter have not been concluded. It was held that the
offences under Sections 314, 315 and 316 are bailable offences under the
provisions of the Code of Criminal Procedure Act. Under Section 402 of the
Criminal Procedure Code:
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14. Any person accused of a non-bailable offence appears or is brought before a
Court and is prepared at any time at any stage of the proceedings before such
Court to give bail, such person shall be released on bail.
A suspect is entitled as of right to be released on bail in these circumstances at
any stage of the proceedings. The order of the learned Magistrate therefore
refusing the application made on behalf of the suspect for bail is an illegal order.
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15. CONSEQUENCES OF NOT ATTENDING COURT IN COMPLIANCE OF A WRITTEN
UNDER TAKING GIVEN TO THE POLICE UNDER SECTION 6 (1)
Fine of Rs 1000/- and/or a simple jail term of 6 months
A suspect released by an officer-in-charge of a police
station on a written undertaking given by such
suspect under Section 6 (1) and thereafter fails to
appear before the Magistrate on the given date, shall
be guilty of an offence and on conviction after
summary trial, be punished with simple imprisonment
for a term not exceeding six months or with a fine not
exceeding one thousand rupees or with both such imprisonment and fine and
the Magistrate shall in his discretion order the release of such suspect on bail
subject to conditions as specified or remand him to custody, as the case may be.
The present Legal position
As regards bailable offences the present legal position should be viewed in the
light of the provisions of the Bail Act. Subject to the exceptions provided for in
the Act, the guiding principle shall be the GRANT OF BAIL IS REGARDED AS THE
RULE AND THE REFUSAL AN EXCEPTION..
Unlike in the past, subsequent to the introduction of the Bail Act persons
concerned with having committed bailable offences are entitled to be released
on bail by the police within a period of 24 hours of his having been taken into
custody. When released as aforesaid, the accused may be asked to give an
undertaking and the police officer is empowered to order the suspect to appear
in the Magistrate's Court on a given date.
The circumstances in which the police officer is entitled to
refrain from releasing the accused on bail in respect of a
bailable offence are set out in the proviso to Section 6.
According to the proviso to Section 6 if the officer in charge
of a police station is of the opinion that public reaction to the alleged (bailable)
offence of is likely to give rise to a breach of peace he shall forward the suspect
in custody before a magistrate having jurisdiction to admit him to bail under
Section 7 or to refuse bail and detain him under Section 14. In other words the
suspect who is produced before a Magistrate in connection with the commission
of a bailable offence can be refused bail only if the Court has reason to believe
that he would not appear to stand his inquiry or trial, interfere with the
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16. witnesses or the evidence against him or otherwise
obstruct the course of justice or commit an offence while
on bail or the particular gravity of, and public reaction to,
the alleged offence to public disquiet.
NON BAILABLE OFFENCE
The Code laid down several ways to approach the question of bail based on the
stage of a case. During the progress of the investigation, the Court has discretion
to grant or refuse bail under Section 115 of the Code.
Whenever investigations are not over (except in the case of an offence under
sections 114, 191 and 296 of the Penal Code) the Magistrate could discharge the
suspect or require him to execute a bond to appear if and when so required.
Under Section 115 (2) of the Code. The maximum period of remand in the case of
a non-bailable offence was a period of 15 days.
See A G vs. Sepala Ekanayakanayaka where it was held that the police have a
right to file further reports and if the reports contain material pertaining to
further involvement the remand order would be extended for further 15 days.
In Dissanayake vs. OIC Hanguranketha 1987 2 SLR 247, the suspects produced on
a report of having committed rape, were remanded by her for continuous
periods totalling 8 weeks. It was held that under Section 115 of the Code in such
a situation remanded for a total period of 15 days and no more except where the
offences are under sections 114, 191 or 296 of the Penal Code.
In terms of Section 403 of the Code a Magistrate or a Judge of the High Court, at
any stage of any inquiry or trial, may in his
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17. discretion release on bail any person accused of any non-bailable offence:
In the exercise of discretion to enlarge a suspect on bail the following
consideration are important.
1. Nature of the Offence
2. Seriousness of the sentence
3. Possibility of absconding; and
4. Probability of conviction.4
Application of the Bail Act
The extent to which the Bail Act applies to the release of suspects concerned
with various offences needs to be addressed at this stage. Section 3 (1) of the Act
specifies the area of the application of the Bail Act as follows:
Nothing in this Act shall apply to any person accused or suspected of
having committed, or convicted of an offence under, 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 written law.
The Sinhala text of Section 3 (1) conveys a different meaning. Upon a plain
reading of Section 3 (1) of the Statute it is manifestly clear that the intention was
to exclude the following legislation from the purview of Act No. 30 of 1997.
1. Prevention of Terrorism Act, No. 48 of 1979.
2. Regulations made under the Public Security Ordinance; and
3. Any other law which contains express provisions relating to granting of bail
to suspects and convicts who are convicted for an offence under any such
law.
No doubt the offences are categorized as bailable and non-bailable under the
Bail Act. Yet certain offences committed under specific Laws will not fall under
the normal provisions of the Bail Act and therefore needs special applications to
be made before such forum which has the jurisdiction to entertain such an
application. Besides the considerations applicable to the grant of bail in respect
of the accused concerned with having committed certain offences under certain
4 King vs. Toussaint 12 NLR 65 12
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18. specified Acts may be totally different. The said Acts/Ordinances are listed
below.
1. OFFENSIVE WEAPONS
2. POISONS, OPIUM AND DANGEROUS DRUGS
3. CUSTOMS
4. FIREARMS
5. BRIBERY
6. ANTIQUITIES
7. IMMIGRATION AND EMIGRANTS
8. OFFENCES AGAINST PUBLIC PROPERTY
9. PENAL CODE- SECTIONS 114, 191 & 296
In Sumathipala Vs. Attorney General the Court of Appeal held that the Constitutional
provisions relating to the liberty of individuals would override the provisions of any
other law and granted bail to a suspect concerned in having committed an offence
under the Emigrants and Immigrants Act. This judgment was later ruled out as
reported in 2006 2 SLR 126.
In Mohomad Shiyam Vs OIC Narcotic Bureau SC Appeal 2/2003 the Supreme Court
(The Chief Justice delivering the Judgment) held that the Bail Act would not apply in
respect of persons detained under the Poisons Opium and dangerous Drugs
Ordinance as there are special provisions relating to the grant of bail. Noticeably in
this case the Supreme Court rejected the argument that Bail Act would be applicable
in respect offences under the opium and dangerous drugs Ord.
The Guiding Principle of the Act
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19. The aim of the Legislature in introducing the Bail Act is to bring about some degree of
uniformity into the system of bail. Section 2 of the Bail Act emphatically lays down
that subject to the exceptions as provided in the Bail Act, the guiding principle in the
implementation of the provisions of the Act shall be that the grant of bail shall be
regarded as the Rule and the refusal to grant bail as the exception. This invariably
points to the intention of the Law maker to relax the Rules pertaining to the release
of persons on bail than to unreasonably restrict their freedom of movement. Judicial
discretion therefore should always be exercised regard being had to this golden Rule
running through the entirety of the relevant Statutes which flows from the
Constitution.
An important decision on the exercise of discretion is worth being referred to here.
In the case of Roberts vs. Hopwood and others1925 AC page 578 at page 613 Lord
Wrenbury (House of Lords) voiced his opinion as to the manner in which a judicial
discretion should be exercised. His Lordship emphasised that "The person in whom is
vested a discretion must exercise his discretion upon reasonable grounds. A
discretion does not empower a man to do what he likes merely because he is minded
to do so-he must in the exercise of his discretion do not what he likes but what he
ought. In other words, he must, by use of his reason, ascertain and follow the cause
which reasons direct. He must act reasonably."
IMPACT OF SECTION 3 (2) OF THE ACT
Section 3 (2) of the Act, is quite significant to understand the legal position. It
provides that any reference to the Code of Criminal Procedure Act, No. 15 of
1979, contained in any law, should be considered as a reference to the
corresponding provision of the Bail Act. In the light of Section 3 (2) of the Bail
Act, the reference made to reference to Act No. 15 of 1979 (in respect of Bail) in
the amendment to the Antiquities Ordinance introduced in 1998 should be
considered as a reference made to the Bail Act.
SUSPECTS APPEARING IN COURT ON SUMMONS, NOTICE NOT TO BE REMANDED
Under Section 263 (2) of the Code of Criminal Procedures Act When a suspect
appeared in Court on notice or summons, it is his entitlement to have him
released on his own recognizance or on a simple undertaking to appear. The
same position continues under proviso to Section 7 (1) of the Bail Act of 1997
which empowers the Court to release the suspect on his own recognizance
unless the Court orders otherwise.
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20. BONDS, SURETIES AND QUANTUM
Fixing of the quantum of bail is a judicial discretion and should be exercised with
due care regard being had to the nature of the offence, the means of the suspect
and other matters relevant for that purpose. By releasing a suspect on bail in
effect the court hand him over to the surety who is considered to be a bridge
between the suspect and the Court. The surety undertakes to produce the
suspect in Court whenever required. In the case of Athurupane (supra) Gratien J
pointed out that fixing of bail calls for the exercise of judicial discretion which
must be exercised very carefully, and that it also calls for the most anxious care
in each case.
The questions such as the nature of Bail Bonds, liability of Sureties
and the Quantum of Bail are dealt in detail under Sections 8 to 12
of the Bail Act.
The fact that the bail ordered should be reasonable has been re-
echoed in many decisions. The Court of appeal has taken a
positive view regarding this aspect of the law in State v. Pathirana
where it was emphasised that bail ordered should be reasonable and also that
the entire purpose of bail would be negative if the bail ordered is excessive and if
it is not within the reach of the suspect.
In ordering bail and deciding on the quantum of bail the Court should look into
all aspects of the matter and exercise the discretion vested in them judicially.
Undoubtedly, the application of the concept pertaining to the grant of bail, cancellation,
forfeiture etc, requires a greater command of the legal principles. It is an established
principle of law that the grant of bail or refusal is a judicial discretion and not a mere
discretion. An important decision on the exercise of discretion is found in the case of
Roberts vs. Hopwood and others1925 AC page 578 at page 613 Lord Wrenbury (House
of Lords) voiced his opinion as to the manner in which a judicial discretion should be
exercised, in the following words:
The person in whom is vested a discretion must exercise his
discretion upon reasonable grounds. A discretion does not
empower a man to do what he likes merely because he is minded
to do so-he must in the exercise of his discretion do not what he
likes but what he ought. In other words, he must, by use of his
reason, ascertain and follow the cause which reasons direct. He
must act reasonably.
Page 20 of 50

21. QUANTUM OF THE BOND – CONSIDERATIONS APPLICABLE
Section 11 of the Act Bail Act has laid down the important guideline on this
matter. It states:
Where any Court is required to determined the amount of a bond
to be executed, the sum of money to be deposited or the certified
bail to be furnished by any person under paragraph (c), (d) or (e) of
subsection (1) or Section 7, as the case may be, it shall do so with
due regard to the nature of the offence the suspect or accused is
alleged to have committed, and the punishment specified therefore
by law, and to the means of such suspect or accused, and the
amount so determined shall not be excessive.
BAIL IN CASES PUNISHABLE WITH
DEATH OR LIFE IMPRISONMENT
Section 13 of the Bail Act reads that "A person suspected or accused of being
concerned in committing or having committed, an offence punishable with death
or with life imprisonment shall not be released on bail except by a Judge of the
High Court."
In terms of the provisions of the above Section, a person suspected accused of
being concerned in committing or having committed an offence punishable with
death or life imprisonment cannot be released except by a Judge of the High
Court.
A Magistrate was not empowered to release on bail a suspect who has
surrendered himself to court, or been arrested consequent on an allegation that
he has committed or has been concerned in committing or is suspected have
committed or to have been concerned in committing an offence punishable
under sections 114, 191 and 296 of the Penal Code. However under the proviso
to Section 115 (3) the Magistrate could have released such a suspect if
proceedings are not instituted against him in a Magistrate's Court or the High
Court before the expiration of a period of three months from the date he
surrendered to court or is arrested unless the High Court on application made by
the Attorney-General directs otherwise.
However the High Court may, subject to the provisions of the Criminal Procedure
(Special Provisions) Law, No. 15 of 1978, in special circumstances had the power
to release such person on bail before or after the expiration of the period of
three months of his arrest.
REQUIREMENT TO GIVE REASONS
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22. Whenever a Court refuses bail it is necessary to set out the reasons
for such refusal. Section 15 of the Bail Act states that where a Court
refuses to release on bail any person suspected or accused of, or
being concerned in committing or having committed, any offence, or cancels a
subsisting order releasing a person on bail, or rescinds or varies an order
cancelling the subsisting order, it shall state, in writing, the reasons for such
refusal, cancellation or recession or variation as the case may this reveals that it
is mandatory for a Court to give reasons whenever such Court refuses bail. The
grounds of refusal are dealt inter alia in Section 14 of the Act.
RESTRICTION ON THE LENGTH OF PERIOD TO KEEP A SUSPECT ON REMAND
The maximum length of time a suspect can be refused bail
extends to 1 year, even if the offence is a bailable. Under
Section 17 of the Bail Act a person may be kept in remand even
in excess of a period of one year only if an application is made
by the Attorney General to any High Court established under
Article 154 P of the Constitution for such an order. The proviso
to Section 17 states that whenever an Order is made relating to
the remanding of a person in excess of 1 year, an indefinite period cannot be
mentioned. The period of detention ordered under Section 17 of the Bail Act
cannot exceed 3 months at a time and 12 months in the aggregate. It would
therefore seem that in any event the maximum period of remand cannot be a
period of 2 years.
BAIL PENDING APPEAL
The law relating to the release of accused persons, who have already
been convicted by a court of law, pending appeal has received
various interpretations from time to time. Hence it is necessary to
examine in detail the historical concept of granting of bail pending
appeal. Many judicial decisions have immensely contributed to the development
of the law pertaining to bail pending appeal.
CRIMINAL PROCEDURE CODE
Section 341 deals it clear that it was imperative in a Magistrate Court or District
Court to release an accused person on bail pending appeal.
There is no discretion vested in a Magistrate or a Judge of the District to refuse
bail pending appeal. Section 323 of the Code enacts that once an appeal is
preferred and if the appellant is in custody, the original Court to which the
Page 22 of 50

23. appeal was forwarded, shall release the convict, on his entering into a
recognizance with or without sureties.
However the legal position is not the same where the conviction takes place in
the High Court. Section 331 of the Code of Criminal Procedure Act, provides for
the manner in which an appeal may be lodged in a case where the trial was held
before the High Court. Section 333 of the Code sets out the procedure to be
adhered to in the High Court in a matter of granting bail pending appeal.
Under Section 333 (2), when an appeal against an acquittal has been lodged, the
Court may issue a warrant for the arrest of the accused and once he is arrested
and brought before Court, it may order his remand or admit him to bail. On the
face of Section 333 (3), when an appeal has been lodged against a conviction, the
High Court appears to exercise discretion in granting bail. However, in the case of
A. G. v. Chandrasena CA 589/90, it was held, that the High Court does not
exercise discretion but is compelled to make an order of remand. Thus it will be
seen that the requirement of "exceptional circumstances" is not a statutory
requirement but instead a concept which has become a part of the law in respect
of bail pending appeal.
Attention is also drawn to the provisions of offences against the Public Property
Act No. 12 of 1982 where statutorily, exceptional circumstances are insisted on
for the granting of bail pending appeal.
Page 23 of 50

24. BAIL ACT 30 of 1997
Section 19 and Section 20 of the Bail Act are relevant to
the grant of bail pending appeal. Section 19 deals with
grant of bail to persons convicted by Magistrate’s Courts
whilst Section 20 deals with the resulting position when conviction is entered by
a High Court.
Section 19(1) states that when an appeal has been lodged against an order of
acquittal made by a Magistrate Court, the Court may order the arrest of the
person who has been acquitted for the purpose of dealing with granting of bail
pending appeal. This Section states further that in the case of a person to whom
Section 18(1) would apply, the Court could make an order remanding him until
the conclusion of the Appeal or grant him bail exercising the discretion vested in
it.
Section 19(2) states that in the case of persons convicted by a Magistrates Court,
the Court may refuse to release such person on bail pending appeal having
regard to the conduct of the convict and the nature of the offence. This is a
departure adopted by the Legislature in its own wisdom from the earlier Law
governing this situation. Under the Code of Criminal Procedure Act of 1979 it was
imperative to release a convict on bail pending appeal where the conviction was
by a Magistrates Court.
In terms of Section 19 (3), (4), and (5) provisions have been made to release such
a convict on bail where the Court is of the opinion that such person should be
granted bail. In such instances the Court has the power to direct the convict to
deposit a sum of money in Court in lieu of entering upon a bond with or without
sureties. Once bail has been ordered under Section 19(3) or (4) either in the form
of a money deposit or a bond, wherever the convicted person is in jail, the bond
could be executed in the presence of the Superintendent of Prisons or the Jailor.
CONVICTIONS IN THE HIGH COURT
The applicable Section in this regard is Section 20 (1) of the Act,
which refers to the provisions applicable in cases where the
accused has been acquitted by the High Court. In respect of
acquittals by the High Court the provisions under Section 20 (1)
are similar to the provisions of Section 19(1) which is applicable to
an appeal against the acquittal in Magistrates Courts.
Page 24 of 50

25. When a person is convicted by the High Court Sections 20(2) and (3) become
applicable. A perusal of the above sections would disclose that the Legislature
has not included in the definitions of the above two sections the term
"exceptional circumstances".
The question whether exceptional circumstances are necessary as a condition
precedent to the release of a convicted person on bail pending appeal against
the findings of a High Court Judge came up for determination in the case of
Perera Vs AG decided on 22nd July 2005 in CA PHC APN 7/2005. The facts were
that the appellant was convicted by the High Court Colombo for attempted
murder and was sentenced to 7 years imprisonment. The High Court refused the
application for bail pending appeal and the said refusal came for consideration in
the Court of Appeal. The main ground relied upon for bail was on that the
disposal of the appeal is unlikely to take place without delay. The Court stated
that "exceptional circumstances" was an imperative requirement for grant of
bail pending appeal against conviction by the High Court and the alleged delay
did not constitute an exceptional circumstance.
In the case of Premaratne Vs AG 2006 1 SLR 25 in the application for bail pending
appeal it was held by two Judges of the Court of Appeal, one Judge dissenting
that delay in the preparation of appeal briefs could be considered as an
exceptional circumstance for the purpose of granting bail pending appeal.
A month later, Balapatabendi J, Imam J and Sisisra De Abrew J had the
opportunity of hearing another case where the question under discussion was
more specifically addressed. That was the case of In Premaratne v AG CA PHC
310/2004 the accused convicted by the High Court made application for bail
pending appeal where he sought to argue that exceptional circumstances are no
longer a requirement after the passing of the Bail Act since the Legislature had
omitted to mention that such was a requirement in granting bail pending appeal.
Counsel stressed much on Section 2 of the Bail Act which introduces the Rule to
be followed by all Courts. The Court rejected this argument but held that the
facts of the case revealed exceptional circumstances and granted bail to the
accused.
Quite interestingly, in AG Vs Latiff CA PHC APN 55/2005 the Court
of Appeal held that in cases where application for bail pending
appeal against the judgment of the High Court is made no
exceptional circumstances need be proved.
This ruling was later over ruled by the Supreme Court in A G VS
Selvarajah Mahaletchchemi SC Appeal 13/2006 Special Leave
appl. 266/2005. In the latter case the Supreme Court having compared Section
Page 25 of 50

26. 333(3) of the Code and Section 20 of the Bail Act came to the conclusion that the
language employed in both sections being almost identical, the view that
exceptional circumstance is necessary ingredient to succeed in an application for
pending appeal against a conviction of the High Court.
BAIL UNDER OFFENCES AGAINST PUBLIC PROPERTY ACT NO. 12 OF 1982
YAALA DEVI
The Offences against Public Property Act No. 12 of 1982
deals with offences committed in relation to public
property. It has been amended by Act No 76 of 1988 and Act No 28 of 1999.
Sections 2 to 5 of the Act define the offences under this Act and Section 8
stipulates the provisions relating to the grant of bail. Section 8 (1) of this Act
refers to the Code of Criminal Procedure as being applicable in relation to bail to
offences under this Act.
However in the light of the provisions of Section 3 (a) of the Bail Act, No 30 of
1997 the present legal position is that the Bail Act would not apply to persons
produced in respect of offences under this Act, where the value of the subject
matter exceeds Rs. 25,000/-.
GOVERNMENT RAILAWAYS
The proviso to Section 8 (1) specifically states that if a gazetted officer who is not
below the rank of an Assistant Superintendent of Police certifies that the subject
matter of the alleged offence exceeds Rs. 25000/- then the Court has the power
to keep such an accused in remand custody until the conclusion of the trial.
Under this Act, Court has been given the power to keep an accused in custody till
the proceedings are concluded. However under exceptional circumstances
accused can be released on bail. It is clear that when a person is brought before a
Magistrate for an offence under this Act and if the value of the affected subject
matter exceeds Rs. 25,000/- and further if there is a certificate by a gazetted
officer to that effect, then the Court has to keep such person in custody until the
conclusion of the trial and he may be released on bail only in exceptional
circumstances.
Section 8 (2) of the Act speaks of another interesting position. Generally, if a man
has been convicted of an offence in the original Court, he can lodge a Petition of
Appeal as of right to the Court of Appeal within the stipulated period. As far as
most of the statutory offences are concerned once a Petition of Appeal is lodged
in the original Court, the convict is granted bail pending appeal.
Page 26 of 50

27. However, Section 8 (2) states that once a person is convicted of an offence under
this Act, notwithstanding that he has lodged an appeal either against the
conviction or against the sentence, such person shall be kept in remand until the
determination of the appeal.
However the proviso to Section 8 (2) of the Act states that if exceptional
circumstances are established then such person can be released on bail pending
appeal.
OFFENSIVE WEAPONS ACT NO. 18 OF 1966
The objectives intended to be achieved by this Act include the prevention of
importation, manufacture, possession, sale, exposure for sale, acquisition,
transport, use or supply of and of the doing of certain other acts or things
concerning offensive weapons.
Section 10 of the Act provides for making of the application for
bail. It reads as follows:
Notwithstanding anything to the contrary in
the Code of Criminal Procedure Act or any
other written law, no person charged with, or
accused of, an offence under this Act shall be
released on bail except on the order of the
Court of Appeal.
The recent amendment to the Offensive Weapons Act No. 18 of 1966 gives the
High Court of the province jurisdiction to hear bail applications established under
Article 154(b) of the Constitution.
POISONS, OPIUM AND DANGEROUS DRUGS ORDINANCE
This Ordinance has been amended by Act No 13 of 1984 and Act
No 26 of 1986. Two new subsections numbered as 54 A and 54 B
were introduced to Section 54 of the Ordinance, by amendment
No. 13 of 1984. These two sections introduced offences relating
to possession, importation and/or manufacture of a dangerous
drug.
Section 13 of Act No. 13 of 1984 deals with application for bail. This Section
needs to be read along with Sections 82 and 83 of the Ordinance. Under the new
subsection (1) of Section 82, introduced by Section 13 of Act No 13 of 1984,
Page 27 of 50

28. Section 37 of the Code of Criminal Procedure has no application with regard to a
suspect who has been accused of an offence under Chapter 5 of the Ordinance.
Section 82 (2) states that when a police officer has taken a suspect into custody
on the suspicion that he has committed an offence punishable under Chapter 5
of the Ordinance, such suspect has to be produced before a Magistrate before
the expiration of 24 hours. When he is being produced, if a certificate is filed by a
police officer not below the rank of a Superintendent of Police or in his absence
by anyone acting for him, to the effect that the detention of the suspect is
necessary for the purpose of investigation, then the Magistrate can make an
order detaining the suspect for a period not exceeding 7 days.
Upon the conclusion of the investigation or at the expiry of the detention period,
the suspect has to be produced before the Magistrate, again. When he is so
produced, Section 82 (4) of the Ordinance (Amendment Section 13 of 13/1984)
states that the provisions regarding bail contained in the Code of Criminal
Procedure applies subject to the provisions in Section 83 of this Ordinance.
Section 83 (1) of the Ordinance specifically states that no person accused of or
who is suspected of committing an offence shall be released on bail, except by
the High Court under exceptional circumstances A direct application has to
be made to the High Court, which will release the suspect on bail only if
exceptional circumstances are established. If bail is refused by the High Court the
petitioner can make a second application to the Court of Appeal.
In view of the special mechanism identified by Section 83 of the Act, the
provisions of the Bail Act too would not apply to such a suspect. This has been
affirmed by the Supreme Court in a divisional bench case consisting of 5 Judge
decision.
OFFENCES RELATING TO BRIBERY AND CORRUPTION
As far as bribery cases are concerned, the question of bail is
governed by Section 30A as amended by the Bribery
(Amendment) Act, No. 20 of 1994.
In terms Section 30A:
(1) Where any officer appointed to assist the Commission detects any person
accepting, soliciting or offering an illegal gratification, such officer shall:
(a) Without unnecessary delay take such person before any Magistrate or
Page 28 of 50

29. (b) produce such person before any Magistrate with a certificate under the
hand of the Director-General that such person has been detected accepting,
soliciting or offering an illegal gratification; or
(c) produce before the Magistrate any currency notes alleged to have been
accepted, solicited or offered as an illegal gratification by the person referred
to in paragraph (a) or (b) together with a report under the hand of the
Director-General that such notes were alleged to have been, so accepted,
solicited or offered.
(2) Where a person is produced before any Magistrate, under paragraph (b) of
subsection (1), the Magistrate shall remand such person until the conclusion
of the trial, provided however, the Magistrate may, in exceptional
circumstances and for reasons to be recorded, release such person on bail at
any time prior to the conclusion of the trial.
(3) Where any currency notes are produced before any Magistrate under
paragraph (c) of subsection (1) the Magistrate shall issue a certificate under
his hand to the effect that notes of the denominations and numbers set out
in the certificate were produced before him and such certificate shall be
admissible in any proceedings instituted against the person alleged to have
accepted, solicited or offered such notes in lieu of producing such notes in
such proceedings.
(4) Notwithstanding the provisions of sub Section (2), in any proceeding under
paragraph (a) or paragraph (b) of subsection (1), where the Commission
informs the Magistrate that it does not propose to institute proceedings
against the person in custody such person shall be discharged forthwith.
Section 80 (1) of the Bribery Act provides safeguard against
persons who may abscond pending investigation into
complaints regarding bribery. It provides that If any person, in
the course of an investigation of an allegation of bribery
against him or in the course of any proceedings against him
for bribery, is preparing or about to leave Ceylon, the
Attorney-General or any officer authorized in that behalf by
the Attorney-General may apply to any Magistrate for an order requiring such
person to furnish bail in such sum as the Magistrate may deem reasonable.
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30. (2) If a person ordered to furnish bail under subsection (1) fails to do so, he shall
be remanded to the custody of the Fiscal till such bail is furnished or till such
time as the Attorney-General may determine.
ANTIQUITIES ORDINANCE
The Antiquities Ordinance is found in Volume XIV of the LE of
1980 (unofficial). It has been amended by Act No 24 of 1988.
Section 15A of the Antiquities Ordinance as amended is relevant
to the discussion under consideration and therefore reproduced
below.
Any person who commits theft within the meaning of
Section 366 Of the Penal Code, in respect of antiquity, in the
possession of any other person shall be guilty of an offence
under this Ordinance and shall on conviction after summery
trial before a Magistrate be liable to a fine not exceeding
fifty thousand or to imprisonment of either description for a
term not less than two years and not more than five years or
to both such fine and imprisonment.
Section 15B of the Ordinance is as follows:
Any person who wilfully destroys, Injures, defaces or
tampers with any antiquity or willfully damages any
part of it, shall be guilty of an offence under this
Ordinance and shall on conviction after summery trial before a
Magistrate be liable to a fine not exceeding fifty thousand rupees or to
imprisonment of either description for a term not less than two years
and not more than five years or to both such fine and imprisonment.
Section 15C of the Ordinance reads:
Notwithstanding to the contrary in the Code of Criminal
Procedure Act No: 15 of 1979 or another written law, no
person charged with, or accused of an offence under this
Ordinance shall be released on bail.
Consequent to the above amendment a Magistrate is empowered to remand a
suspect until the conclusion of the inquiry or trial. An interesting feature of the
amended Law is that the Law does not contain any provision, which empowers a
specific Court to grant bail. This is a unique situation. In every other statute, the
provisions of such statue would identify the Court that is empowered by law to
Page 30 of 50

31. release persons on bail. The question therefore arises as to whether what steps
should be followed by a suspect who is produced before Court in respect of an
offence under this Law.
Under Section 404, of the Code, the Court of Appeal has an inherent power to
release persons on Bail in any case. This is a provision that could be made use of
by a suspect who is prosecuted for an offence involving antiquities.
IMMIGRANTS AND EMIGRANTS ACT
Immigrant and Emigrants Act was passed in 1948 to make
provision for controlling the entry into Sri Lanka of persons
other than citizens of Sri Lanka, for regulating the departure
from Sri Lanka of citizens and persons other than citizens of
Sri Lanka, for removing from Sri Lanka undesirable persons
who are not citizens of Sri Lanka, and for other matters
incidental to or connected with. The Act has been amended by Act No’s 16 of
1955, 68 of 1961, 16 of 1993, 42 of 1988 and 31 of 2006. The first two
amendments were made to strengthen the Laws relating to immigration and the
recent amendment 42 of 1998 does not contain any specific provision relating to
the granting of bail. The provisions relating to bail are found in Section 47 of the
Principal Enactment. Section 47 reads as follows:
SECTION 47
(1) Notwithstanding anything in any other law -
(a) Every offence under paragraph (a) of subsection (1) of Section 45,
(b) Every offence under subsection (2) of Section 45 in so far as it relates to
paragraph (b) of subsection (1) of that Section,
(c) Every offence under paragraph (a) or
paragraph (b) of subsection (1) of Section 45A
(d) Every offence under paragraph (a) of subsection (2) of Section 45A in so far
as it relates to paragraph (b) of subsection (1) of that Section and,
(e) Every offence under paragraph (b) of subsection (2) of Section 45A Shall be
non - bailable and no person accused of such an offence shall in any
circumstances be admitted to bail.
(2) Notwithstanding anything in any other law -
(a) every offence under paragraph (c) of subsection (1) of Section 45A, and,
(b) every offence under paragraph (a) of subsection (2) of Section 45A, in so
far as it relates to paragraph (c) of subsection (1) of that Section Shall be non-
bailable.
47A. (Amendment No 31 of 2006)
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32. (1) Notwithstanding anything in any other law, no person accused of an offence
under Section 45C shall be enlarged on bail except by a High Court upon proof of
exceptional circumstances.
(2) Where there is no express provision made in respect of the granting of bail
for an offence under this Act, bail shall be granted by a Magistrate.
(3) Notwithstanding anything to the contrary in any other law, the application of
the provisions of this Section shall extend to every person who is in remand on
the date of coming into operation of this Section
A plain reading of the above Section reveals that while some offences under the
Act are bailable some are not. Those offences that fall under Section 45 are non-
bailable and such suspects cannot be admitted to bail in any circumstances.
What the recent amendment of 1998 has done is to add to the said list of
offences a series of offences identified in Section 45 of the Parent Act. According
to the recent amendment of 1988, a suspect who is produced under this Law
cannot be released on Bail by a Magistrate. As in the case of offences under the
Antiquities Ordinance the application for bail has to be made to the Court of
Appeal. The above provisions were further amended by Act No 31 of 2006. A
new Section 47 A has been introduced through this amendment. In terms of this
Section no person accused of an offence under Section 45C of the Act can be
enlarged on bail except by an order of the High Court.
Section 45C referred to in the above Section was also introduced through Act No
31 of 2006 and identifies the offence of organized efforts to send people out of
Sri Lanka. Bail applications where a person is charged on this premise, are now
required to be forwarded to the High Court while in respect of all other offences
where no specific provisions have been made by the Act; the Magistrates Courts
will have power to grant bail.
FIRE ARMS ORDINANCE
In terms of Section 44 of the Fire Arms Ordinance, any person
who commits an offence under the Ordinance as amended is
liable to a fine not exceeding Rs. 5000/= or an imprisonment of
ten years. Presently every offence under the Fire Arms Ordinance
is a non-bailable. Accordingly all provisions relating to general
non-bailable offences would apply to such offences.
Act No: 22 of 1996 introduced two new offences through Section 20 of the new
Act:
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33. Section 44 A - Notwithstanding anything in this Ordinance or any
other law, any person who uses a gun in the commission of an
offence specified in schedule C of the Ordinance shall be punished
on conviction for such offence with death or imprisonment for life,
and shall also be liable to a fine not exceeding twenty thousand
rupees.
Section 44 B - Notwithstanding anything in this Ordinance or any
other law, any person who uses a gun in the commission of an
offence specified in schedule D of this Ordinance shall be punished
on conviction for such offence with imprisonment for a period not
less than fifteen years, and fine not exceeding twenty thousand
rupees.
Hence, wherever a suspect is alleged to have committed an offence specified in
Schedule 3 of Act No: 22 of 1996 a Magistrate is without any power to grant bail
in such circumstances. Therefore application for bail will have to be made to the
High Court. Even though the law does not specifically mention the High Court as
the appropriate Court to make the application for bail, Section 13 of the Bail Act
would apply in view of the sentence identified by Section 44 (a).
CUSTOMS ORDINANCE
The Customs Ordinance has been amended by Act No’s 83 of 1998, 24 of 1991.
Section 127 (c) of the Customs Ordinance as introduced by Section 6 of Act No:
24 of 1991 reads as follows:
No person suspected or accused of an offence under this
Ordinance in respect of any goods the value of which exceeds
one million rupees, shall be released on bail except by the High
Court, in exceptional circumstances. The power conferred on
the High Court by this Section shall be exercised by the judge
of the High Court holden in the zone within which the offence
is alleged to have been committed.
As such, an application for bail should be made to the High Court where the
value of the subject matter of the offence exceeds Rs. 1 million. The High Court is
empowered to release the suspect on bail on exceptional circumstances.
It is significant to remember that in all other cases an application for bail could
be maintained in the Magistrates Court. It is interesting to note that Section 166
(a) of the Customs Ordinance states that where the value of the subject matter
of an offence under Section 129 or 130 of the Ordinance exceeds Rs. 500,000/=
such offences is deemed to be non bailable.
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34. This leads to the situation where the value is less than the above amount such
offences falling under Section 129 and 130 have to be considered as bailable
offences. The offences under the Customs Ordinance accordingly can be
classified as follows:
b) Offences under Sections 129 and 130 where the value exceeds Rs. 500,000/= -
non bailable
Magistrate can grant bail
c) Offences under Sections 129 and 130 where the
value is less than Rs. 500,000/= - non bailable - Magistrate can grant bail
d) Offences under Sections 129 and 130 where the value is up to Rs. 1 million -
non bailable – Magistrate can grant bail
e) Offences under Sections 129 and 130 where the value exceeds Rs. 1 million -
non bailable - only the High Court can grant bail f) Offences under any other
Section of the Customs Ordinance up to Rs. 500,000/= - bailable – Magistrate can
grant bail
g) Offences under any other Section of the Customs Ordinance up to Rs. 1 million
- bailable – Magistrate can g rant bail
h) Offences under any other Section of the Customs Ordinance where the value
exceeds Rs. 1 million - non bailable - only the High Court can grant bail
PROHIBITION OF RAGGING AND OTHER FORMS OF VIOLENCE IN
EDUCATIONAL INSTITUTIONS
BAIL
9. (1) A person suspected or accused of committing an
offence under subsection (2) of Section 2 or Section 4 of
this Act shall not be released on bail except by the
Judge of a High Court established by Article 154P of the
Constitution. In exercising his discretion to grant bail
such Judge shall have regard to the provisions of
Section 14 of the Bail Act, No. 30 of 1997.
(1) Where a person is convicted of an offence under subsection (2) of Section 2 or
Section 4 of this Act, and an appeal is preferred against such conviction, the
Court convicting such person may, taking into consideration the gravity of the
offence and the antecedents of the person convicted, either release or refuse to
release, such person on bail.
Page 34 of 50

35. FISHERIES AND AQUATIC RESOURCES ACT NO. 2 OF 1996.
This Act affords protection of fish and other Aquatic resources.
It imposes prohibition against the use or possession of poisonous of
explosive substances as amended by Act No 4 of 2004. Accordingly,
in terms of Section 27
(1) No person shall -
(a) use or attempt to use any poisonous, explosive or stupefying substance
(including dynamic) or other noxious or harmful mater or substance in Sri
Lanka Waters for the purpose of poisoning, killing, stunning or disabling any
fish or other aquatic resources;
(b) carry, or have in his possession any poisonous, explosive or stupefying
substance (including dynamite) or other noxious or harmful material (not
being a fishing net) or any substance for any purpose referred to in paragraph
(a)
(2) No person shall land, sell, buy, receive, possess or transport any fish or other
aquatic resources knowing of having reasonable cause to believe that such fish
or other aquatic resources have been taken by the use of any poisonous,
explosive or stupefying substance (including dynamite) or other noxious or
harmful material or substance.
(3) No person shall place, deposit, dump or cause the escape of, poisonous,
explosive or stupefying substance (including dynamite) or other noxious or
harmful material or substance in Sri Lanka Waters46A. NO bail shall be allowed
by a Magistrate to any person who is accused of an offence under paragraph (a)
or (b) of subsection (I) or subsection (3) of Section 27 of this Act:
Provided however, the High Court of the Province established under Article 154p
of the Constitution may, for exceptional circumstances shown to the satisfaction
of the Court, allow bail to such person who is accused of an offence under
paragraphs (a) or (b) of subsection (1) or subsection (3) of Section 27 of this Act."
Page 35 of 50

36. Page 36 of 50

37. 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 apparently borrowed from Indian legal
system.
Section 21 states thus: '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 is suspected of having committed or
been concerned in the commission of such offence, he shall be released on bail.
The application has to be made by petition supported by affidavit of the applicant
- Section 21 (2).
The duty cast on the Magistrate under Section 21 (3) is to fix it for inquiry within
seven 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 committed.
Section 21 (4) makes it obligatory that the Magistrate makes an order either
allowing the application for Anticipatory Bail. or refusing the same with reasons
given. He shall attach conditions if the application is granted. The Magistrate has
to take special care to mention in the order for A.B. 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 authorises the OIC of the Police Station concerned to execute the
order for 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.
There is a duty cast on the applicant 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.
Page 37 of 50

38. (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.
Section 25 empowers 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 application.
Section 26 also states 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) empowers 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.
Section 27 states that the Act is to prevail over any contrary provisions in any
other written law other than the Release of Remand Persons Act No. 8 of 1991.
It is now evident that the whole concept of Anticipatory Bail is embodied within
Sections 21 to 29 of the Bail Act with far reaching assignable interpretations
surrounding this embryonic concept of A.B. pushing, Magistrates into difficult
embarrassing and discomforting situations of decision-making especially because
of the type of applicants who seek A.B5
. for whose benefit the concept is mainly
conceived.
Under Section 21 of Bail Act the applicant must have reason to believe that he
may be arrested. The belief that he may be arrested must be found on
reasonable grounds. Mere fear is not belief. It may just be a hallucination or
imagination that some harm is going to happen. It must be a tangible belief
projected to courts for its examination objectively. Then and then only can the
court determine that the applicant has reason to believe that he may be
arrested. He must not be obsessed with a veiled and vague apprehension of
arrest. The Magistrate might require to know the basis for such an apprehension.
If it sounds hollow, there is no need for Anticipatory Bail and no cause for it
either.
The Magistrate has to bring his mind to the question to see whether he
(applicant) has made a case for Anticipatory Bail. It may be easier to obtain
Anticipatory Bail in Sri Lanka than in India because the Bail Act does not refer to
the proof of accusation or commission of offence.
If the accused is under arrest, no anticipatory Bail can be considered. It is
tantamount to contradiction in terms. The Section is meant to operate on arrest
5 Anticipatory bail
Page 38 of 50

39. - not before or after arrest. The dominant consideration under Section 438 in
India for the grant of Anticipatory Bail be whether the person has been
implicated by some influential persons falsely for the purpose of disgracing him
or getting him retained in jail for some days' - K. Jagdish V Dy. Superintendent of
Police (1983) 1 Crimes 41. Persons apprehending arrest can apply for grant of
A.B. - Kailash Chand v State of Rajasthan (1984) 2 Crimes 616.
SOME OF THE PROVISIONS OF RELEASE OF REMAND PRISONERS ACT NO 8 OF
1991
This Act No 8 of 1991 was passed in the year 8 March 1991 to facilitate the
release from custody of persons accused of certain offences who have been
detained in pursuance of warrants of remand and for certain matters connected
or incidental thereto.
2. The provisions of this Act shall apply in respect of an accused person
who-
(a) has been remanded for being suspected of having committed or been
concerned in the Commission of an offence specified in the Schedule to
this Act; and
(b) has not been released under any provision of this Act, and subsequently
remanded in respect of any other offence alleged to have been committed
by him. before the conclusion of the trial of the offence in respect of which
he had been originally remanded.
Such accused person is hereinafter referred to as a "person to whom this
Act applies."
Power of court in respect of an accused person who is remanded:
3. (1) Where a person to whom this Act applies has been granted bail by a
competent court, but continues to remain in remand on the expiry of one
month from the date of the order of remand due to his inability to furnish
bail, the Superintendent of the Prison in which such person is remanded,
shall produce him before the court remanding such person and the court
shall release such person upon his executing a bond without sureties for his
appearance in court.
Page 39 of 50

40. (2) Where a person to whom this Act applies has been in remand for a
period of three months from the date of the order of remand, the
Superintendent of the Prison in which such person is remanded, shall on
the expiration of the three months, produce such person before the court
remanding such person, and the court, shall if no proceedings have been
instituted against such person at the time he is so produced, release such
person on his executing a bond without sureties for his appearance in
court.
(3) Where a person to whom this Act applies has been in remand for a
period exceeding one year the Superintendent of the Prison in which such
person is remanded shall upon the expiration of such period produce such
person before the court remanding such person, and where-
(a) trial against such person has not commenced when such person is so
produced, the court shall release such person on his executing a bond
without sureties for his appearance in court;
(b) trial has commenced when such person is so produced, the court may
release such person on his executing a bond without sureties for his
appearance in court, unless it appears to the court for good and sufficient
reasons to be recorded, that he should not be, so released.
Warrant to specify enactment under which accused is remanded.
4. Every court making an order of remand, in respect of an accused person,
under any law for the time being in force, shall cause to be endorsed on
the warrant of remand, the provision of law under which such accused
person is so remanded.
Page 40 of 50

41. Duty of Magistrate to visit prison.
5. It shall be the duty of every Magistrate to visit every prison situated
within the judicial division in respect of which he is appointed, at least once
in every month.
Production of person to whom this Act applies before visiting Magistrate.
6. Where it is inexpedient for the Superintendent of the Prison to so
produce any person to whom this Act applies, before the court remanding
such person, in compliance with the provisions of Section 3, he shall
forthwith make a report to that effect to such court and shall produce such
person before the Magistrate visiting such prison in compliance with the
provisions of Section 5.
27. Production of persons to whom this Act applies before a visiting
Magistrate and powers of such Magistrate.
(1) Where a person to whom this Act applies is produced before a
Magistrate visiting a prison in compliance with the provisions of Section 5,
such Magistrate shall exercise in relation to such person the powers
conferred by Section 3, on the court making an order of remand.
(2) The Superintendent of every prison shall obtain the particulars relating
to the remand of every person to whom this Act applies, and remanded in
such prison, from the court remanding such person, and shall, where the
Magistrate before whom such person is produced under this Section, is not
the Magistrate who remanded, such person, furnish such particulars under
his hand to the first-mentioned Magistrate for the purpose of enabling him
to make an appropriate order in relation to such person under this Act.
(3) Where a Magistrate visiting a prison in compliance with Section 5,
orders the release of a person to whom this Act applies, upon such person
executing a bond without sureties for his appearance he shall cause the
court remanding such person to be informed of such release, and shall
cause a copy of the bond executed by such person to be forwarded to that
court.
Page 41 of 50

42. Act to apply to accused in remand on date of commencement of Act.
8. For the avoidance of doubts it is hereby declared that the provisions of
this Act shall apply also to, accused persons who are in remand cm the date
of commencement of this Act.
9. In the event of any inconsistency between this Act and the Code of
Criminal Procedure Act, No. 15 of 1979 and any other written law relating
to bail, other than the Constitution, the provisions of this Act shall prevail.
Power of Parliament to amend the Schedule to this Act.
10. Parliament may subject to the provisions of the Constitution by
resolution, amend the Schedule to this Act, by adding any offence thereto,
or omitting any offence there from.
SCHEDULE
(Section 2)
1. Any offence for which a peace officer is empowered, under the Code of
Criminal Procedure Act. No. 15 of 1979, to arrest only with a warrant.
2. Any of the following offences under the Penal Code:
Sections 157, 314, 315, 316, 326, 323, 329, 332, 333, 348, 386, 411, 412,
433, 434, Offences under Section 54a (d) of the Poisons, Opium and
Dangerous Drugs Ordinance for the possession of a quantity-
(a) less than 5 kilogrammes of cannabis ;
(b) less than 1 gramme of heroin.
Section 367 of the Penal Code where the property is of a value less than
one thousand rupees.
Page 42 of 50

43. BAR ASSOCIATION LAW JOURNAL DECEMBER 2012
COURT OF APPEAL
Hon.Attorney General VS Ariyapala and others
HON. A W A Salam, J
HON. Deepali Wijesundare J
CA(PHC)APN No: 133/12
Hc Tangalle Case No. HCT 59/2006
COUNSEL: Asthika Devendra for the Petitioner
Anoopa de Silva SC for the Respondent
DECIDED: 06.11.2012
SUMMARY OF THE JUDGMENT
Concept of the Bail - Purpose of refusing bail - when the Court is entitled to cancel a bail
bond? –Grant or refusal is judicial discretion -Should be in accordance with statutory
provisions - Surety not to be inconvenienced or embarrassed - Party affected by order is not
to claim damages and therefore the procedure is followed - Right of subjects to insist on their
liberty - No Judge to act at his whims and fancy - Duty of Court to maintain the integrity and
confidence of system of sureties - A surety bond to be strictly construed - Surety should be
heard before forfeiting a bail - Otherwise it is a violation of principles of natural justice and
violation of Section 422 of Criminal Procedure Code.
The Petitioner’s grievance in this revision application was that he had been imprisoned by the
learned High Court Judge otherwise than by adhering to the due process of law. He asserts that
he is entitled to be freed on that account. The learned State Counsel, in the highest tradition of
the Department to which she is attached, filed no objection nor resisted the application. She
conceded that the impugned order is fatally irregular implying that it had occasioned a failure of
justice. However the Court of Appeal decided to analyse the entire order of the High Court
Judge and decided on the application.
HELD
(a).The purpose of refusing bail inter alia is to protect the community and to reduce the
likelihood of further offending.
Page 43 of 50

44. (b).The concept of bail is the recognition of the liberty of a person between the time of his
arrest and verdict subject to the condition that he re-appears in Court for his trial until its
conclusion or until he is sentenced.
(c). The Court is entitled to cancel a bail bond (after hearing the accused) for violating the bail
conditions and it includes specific grounds such as having threatened or influenced or tampered
with evidence or interfered with the investigation or obstructed the judicial process or
otherwise misused or abused the grant of bail.
(d).The grant of bail or refusal is a judicial discretion and not a mere discretion. No Court has
jurisdiction or authority to pass an order of cancellation of a bail bond or to declare a bond as
forfeited, otherwise than in accordance with the statutory provisions. As the surety stands as a
bridge between the accused and Court, the surety should not be put into unnecessary
inconvenience or embarrassment otherwise than by resorting to the due process of law.
(e). As the immunity attached to the impugned order disentitles the party affected thereby
claiming damages from anyone there is a corresponding high duty of care and caution to ensure
that the proper procedure is followed. It is the right of the subjects to insist that the law is
followed as it is with regard to their liberty, particularly on the question of bail.
(f). No Judge is empowered to apply the law at his whims and fancy.
(g). It is the duty of Court, to maintain the integrity and confidence of the system of taking
sureties, as it is of considerable importance to encourage law-abiding persons to come forward
to assist the release of suspects on bail, since the grant of bail is regarded as the rule and refusal
an exception.
(h). A surety bond has to be strictly construed because the violation of its terms provides for
interference with the personal liberty and/or deprivation of property rights.
(i). Before a decision is taken.to forfeit a bail bond a hearing should be given to the surety and
this rule was the demand of the rules of natural justice which has now become a statutory
requirement.
(j). Not affording such an opportunity to a surety would be a gross violation of the principles of
natural justice and the express provisions of the Code of Criminal Procedure. Such an order of
forfeiture would be liable to be quashed on account of such violation.
(k).Section 422 of the Criminal Procedure Code provides specific provisions in respect of bonds.
A. W. A. SALAM, J
TO KNOW WHAT NOT TO DO IS MORE IMPORATN THAN TO KNOW WHAT TO DO
The Petitioner’s grievance in this revision application is that he has been imprisoned by the
Page 44 of 50

45. learned High Court Judge otherwise than by adhering to the
due process of law. He asserts that he is entitled to be freed
on that account. The learned State Counsel, in the highest
tradition of the Department to which she is attached, filed no
objection nor resisted the application. She conceded that the
impugned order is fatally irregular implying that it had
occasioned a failure of justice. The candid opinion of the State
Counsel would undoubtedly serve the ends of justice.
Nevertheless, in the hope of achieving completeness, I wish to
analyse the entire order of the High Court Judge.
The factual background which led to the filing of the revision
application needs to be narrated filtering out unnecessary details. The Petitioner stood surety
for an accused before the High Court. As the accused failed to attend Court, he was arrested
and produced in Court on 26.03.2012 and thereafter released to enable him to produce the
accused on 23.04.2012. In obedience to the order of Court, on 23.04.2012, he produced the
accused through an Attorney-at- Law. At this stage the High Court Judge remarked that the
suspect deserved to be re-remanded as he is a person of violent behaviour and persistently re
offended using two T 56 guns while on bail.
Surprisingly, no steps were taken to cancel his bail. For this course of action adopted, the High
Court Judge voiced the opinion that the suspect will bear a grudge against the society if he is
committed to the remand custody. He further stated that it is undesirable to put him back into
the remand custody as he will be a threat to the welfare of the inmates therein. Elaborating on
it he recalled (without disclosing the source of information) that the accused gave leadership,
when riots broke out inside the prison on 30.06.2011. Based on these grounds he thought that
it is not prudent to have him re-remanded. This obviously has given a wrong message to the
accused that his intolerable behaviour has compelled the Judge to tolerate him without a
cancellation of bail. In this respect suffice it would be to say that the remedy found by Court
was worse than the decease.
Despite the fact that he opted not to cancel the bail, yet he proceeded to make a controversial
order, directing the accused to observe “ata sil” (eight precepts) at a named temple on all four
Poya days of the month and to surrender the two T56 Type firearms to Court on 30.04.2012.
The directions thus made were not part and parcel of the bail conditions.
On 30.04.2012 the suspect avoided Court and the Petitioner who presented himself was
sentenced to 3 years rigorous imprisonment for non-payment of the value of the bond. When
the application for revision came up for support, we issued a stay order and the Petitioner was
released from the prison having served a jail term of 5 months.
Several questions arise as to the legality of the various orders made by the High Court Judge.
The first and foremost is whether the bail bond could have been regarded as being forfeited.
The word “forfeited” means that a condition or more imposed upon the executant of the bond
and agreed to by him has been contravened. (vide Tarni Yadav Vs State (1962) Cr LJ 627- AIR
1962 Pat 431.
Page 45 of 50

46. Admittedly, the Petitioner was produced on 26.03.2012 and he was granted time till 23.04.2012
to produce the suspect. Accordingly, the Petitioner in obedience to the order of Court produced
the suspect on that day although the High Court Judge failed to cancel his bail despite his
serious comment made against the accused. The purpose of refusing bail inter alia is to protect
the community and to reduce the likelihood of further offending. Further the Petitioner’s
Counsel contended that it is this controversial order which kept the accused away from Court.
The concept of bail is the recognition of the liberty of a person between the time of his arrest
and verdict subject to the condition that he re-appears in Court for his trial until its conclusion
or until he is sentenced. The Court is entitled to cancel a bail bond (after hearing the accused)
for violating the bail conditions and it includes specific grounds such as having threatened or
influenced or tampered with evidence or interfered with the investigation or obstructed the
judicial process or otherwise misused or abused the grant of bail. The conduct of the accused in
this matter, as described by the learned High Court Judge falls within the disqualifications to be
on bail and it is surprising as to how the Court made up its mind to condone such
disqualifications.
It is appropriate at this stage to examine as to whether the surety bond entered into by the
Petitioner can be regarded as having been forfeited. The Petitioner was directed to produce the
accused on a particular day. In obedience to the said direction he produced him. Yet, the Court
took the risk of enlarging him on the same bail notwithstanding the strong opinion it held to the
contrary. Further the Court made an order directing the accused to hand over the T 56 firearms
on the next date. This was done by the learned High Court Judge (assuming without conceding
that he had the right to do so) without even inquiring from the accused as to whether he was in
possession of such firearms. The accused kept away from attending Court on the day he was
expected to handover the two firearms. In the light of these facts, it is quite clear that the Court
has condoned the default of the Petitioner-surety (if any) when the Court gave him time to
produce the accused and when the surety in fact did produce him on 23rd April 2012. If the
surety bond was forfeited on 26 March 2012 the Petitioner may have had no defence. The
learned High Court Judge has forfeited the bond after the surety had produced the accused and
undue leniency shown to the accused by Court with full knowledge of his involvements. In the
circumstances, it is totally unfair to treat the surety bond as having been forfeited.
Inspector of Police Vs Punchibanda Ceylon Law Weekly volume 2 page 136 has been decided on
similar facts. The accused for whom surety bond was signed in that case failed to attend Court
and the surety appeared on notice and obtained extended time to produce the accused. On
that day the surety was present and the accused surrendered to Court. The accused pleaded
guilty and was given a week's time to pay his fine. Thereafter, the Magistrate called upon the
surety to show cause why his bond should not be forfeited. The surety stated that he had no
cause to show and the Magistrate forfeited the bond. Macdonald CJ held that if the Magistrate
had forfeited the bond on the first day when the accused was not present the surety may not
have had a defence. But the surety was given time till 12th and on that day the accused
surrendered. Giving the surety time to produce the accused seems a condonation of the
surety’s previous default. After time had been given the surety did produce the accused on the
due date and to declare his bond forfeited then is rather like punishing him for the previous
default which had been condoned.
Page 46 of 50

47. In support of the above decision, Macdonald CJ cited with approval the note of an American
decision cited in Sohoni’s “The Code of Criminal Procedure” – 10th edition- page 1245. The note
reads as follows…
"The judgment against surety and principal respectively on a forfeited recognizance will be
cancelled on motion where it appears that subsequent to the forfeiture the accused person had
appeared, was tried, paid the fine imposed.” People Vs Bossemeeker 27 weekly digest 387.
Taking into consideration the sequence of events taken place in the present case, it could be
seen that the facts in the case of Inspector of Police Vs Punchibanda and the present case are
almost similar. In the present case, the sureties were arrested and produced before the learned
High Court Judge who granted time without forfeiting the bond. On the next date the accused
surrendered and the learned High Court Judge released him on the same bail conditions. This
clearly indicates the exoneration of the sureties or condonation of their default (if any). The
order made by the learned High Court Judge on the accused to surrender the firearms and to
engage in certain religious observances are not part and parcel of the bail bond and therefore
the sureties were not bound by the said order. Besides, the said order has been made in blatant
violation of the rights of the accused and therefore cannot have any force or avail in law.
Undoubtedly, the application of the concept pertaining to the grant of bail, cancellation,
forfeiture etc, requires a greater command of the legal principles. It is an established principle
of law that the grant of bail or refusal is a judicial discretion and not a mere discretion.
(Emphasis is mine). An important decision on the exercise of discretion is worth being referred
to at this stage. In the case of Roberts vs. Hopwood and others1925 AC page 578 at page 613
Lord Wrenbury (House of Lords) voiced his opinion as to the manner in which a judicial
discretion should be exercised, in the following words.
"The person in whom is vested a discretion must exercise his discretion upon reasonable
grounds. A discretion does not empower a man to do what he likes merely because he is
minded to do so-he must in the exercise of his discretion do not what he likes but what he
ought. In other words, he must, by use of his reason, ascertain and follow the cause which
reasons direct. He must act reasonably."
As far as the surety is concerned, he must really be admired for the way he has conducted
himself in difficult circumstances particularly when he has undertaken to produce a suspect of
the character as portrayed by the High Court Judge. A surety undertakes to forfeit a sum of
money if the accused fails to adhere to the conditions of bail. This system has been tested time
and again in one form or another. When members of the community who do know the accused
volunteer to stand surety, they ensure their attendance to stand their trial because they trust
them and thus shoulder that burden on that trust. This can have a powerful influence on the
decision of the Court as to whether or not to grant bail. This system, in one form or another, has
priceless antiquity and is immensely valuable.
The benefits of taking surety bail are twofold. Firstly the surety is bound to exercise some form
of supervision on the accused, and report to Court if there is a concern that he will abscond. On
the other hand it is designed in such a way so as to discourage the accused from jumping bail as
the member/members of his family and/or friend/friends who provided the sureties will be
Page 47 of 50

48. driven into unnecessary embarrassment. In our experience, it is comparatively rare for an
accused to keep away from Court when meaningful sureties are in place. This is the advantage
of bringing in family members or close friends into the scene than to simply depend on
Government Servants as sureties which may appear to be a meaningless exercise that was not
heard of in the past. As the surety stands as a bridge between the accused and Court, the surety
should not be put into unnecessary inconvenience or embarrassment otherwise than by
resorting to the due process of law.
The complaint of the Petitioner demonstrates in no uncertain manner, a display of judicial
ignorance in the quality of justice meted out both to the Petitioner and the accused.
Regrettably, the surety had already served a term of imprisonment of 5 months when we issued
the stay order. In passing, I must observe that had the Petitioner been sentenced to the
maximum period of six months he would have come out of the prison long before he filed this
application. The fact remains that he was nevertheless a prisoner and goes back to society with
the social stigma attached to it. Even after his exoneration the stigma is bound to remain.
Although I have considerable sympathy for him, it is rather unfortunate that the immunity
attached to the impugned order, stands in his way, to claim damages from anyone. Such a far
reaching consequence demands a correspondingly high duty of care and caution to ensure that
the proper procedure is followed before an executant of a bond is sentenced to a default term.
It is the right of the subjects to insist that the law is followed as it is with regard to their liberty,
particularly on the question of bail. No Judge is empowered to apply the law at his whims and
fancy.
Therefore, I approach this issue on the basis that the High Court should not have forfeited
anything more than what the law permitted it to forfeit. It is the duty of Court, to maintain the
integrity and confidence of the system of taking sureties, as it is of considerable importance to
encourage law-abiding persons to come forward to assist the release of suspects on bail, since
the grant of bail is regarded as the rule and refusal an exception.
The learned High Court Judge had no authority to order the accused to surrender the firearms.
Adding insult to injury he has made the said order against the accused who faced his trial, to
surrender the firearms, based on personal information he had received or on his personal
knowledge.
In ordering the accused to make the religious observances on a weekly basis, the High Court
Judge has assumed that the accused is guilty of the charges at a pre-mature stage of the case.
What is important here is that he has no authority to order him to observe Sil even if the
accused was convicted. Quite significantly, if the controversial order containing the two
directions had not been made, as contended by his Counsel, the 4th accused probably would
not have avoided Court.
No Court has jurisdiction or authority to pass an order of cancellation of a bail bond or to
declare a bond as forfeited, otherwise than in accordance with the statutory provisions. It is
settled law that a surety bond has to be strictly construed because the violation of it’s terms
provides for interference with the personal liberty and/or deprivation of property rights. Since
the bond entered into by the surety contains no provision to ensure the handing over of the
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49. firearms or making religious observances by the accused, the surety cannot be held liable to
account for the violation of the said directions.
The law on this aspect is well settled. Before a decision is taken to forfeit a bail bond a hearing
should be given to the surety and this rule was the demand of the rules of natural justice which
has now become a statutory requirement. Not affording such an opportunity to a surety would
be a gross violation of the principles of natural justice and the express provisions of the Code of
Criminal Procedure. Such an order of forfeiture would be liable to be quashed on account of
such violation.
The Criminal Procedure Code provides specific provisions in respect of bonds. Section 422
relates to the procedure as to forfeiture of a bond. It reads as follows…
422. (1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code
has been taken, or when the bond is for appearance before a Court to the satisfaction of such
Court that such bond has been forfeited, the Court shall record the grounds of such proof and
may call upon any person bound by such bond, to pay the penalty thereof or to, show cause
why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid the Court may proceed to recover
the same by issuing a warrant for the attachment and sale of the movable or immovable
property belonging to such person.
(3) Such warrant may be executed within the local limits of the jurisdiction of the Court which
issued it and it shall authorize the distress and sale of any movable or immovable property
belonging to such person without such limits when endorsed by the Judge within the local limits
of whose jurisdiction such properly is found.
(4) If such penalty be not paid and cannot be recovered by such attachment and sale the person
so bound shall be liable by order of the Court which issued the warrant to simple imprisonment
for a term which may extend to six months.
(5) The Court may at its discretion remit any portion of the penalty mentioned and enforce
payment in part only.
Accordingly, if an executant of the bail bond, instead of paying the value of the bond or part
thereof as the case may be, elects to show cause why the penalty should not be paid the Court
must consider the cause shown, and make an appropriate order.
If the Court decides that the cause shown is acceptable or sufficient, the only order which the
Court can pass is that the payment of the penalty on the bond does not arise.
Conversely, if the Court comes to the conclusion that the cause shown is unacceptable or
insufficient, the Court may then proceed to recover the same by issuing a warrant for the
attachment and sale of the movable or immovable property belonging to the executant for
realisation.
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50. The next stage arises only when such penalty is not paid and cannot be recovered by such
attachment and sale. Then only the person so bound shall be liable by order of the Court which
issued the warrant to simple imprisonment for a term which may extend to six months.
When an executant of a bail bond is to be sentenced to imprisonment by any Court the
maximum period of imprisonment permitted is 6 months of simple description. I am unable to
understand the basis on which the learned High Court Judge has imposed a jail term of 3 years
of rigorous imprisonment.
Taking all these matters into consideration, it is quite clear that the forfeiture of the bond has
been done without any proof of the contravention of the bail bond. It has been done as stated
above after the default of the executant had been condoned.
Even if the forfeiture is lawful, yet the Petitioner has not been afforded an opportunity to show
cause as to why the fine should not be paid. Even if that opportunity had been afforded still no
warrant for the attachment and sale of the movable or immovable property belonging to the
executant has been issued.
In the circumstances, I am of the opinion that the order of the learned High Court Judge
forfeiting the bond should be quashed and the default sentence passed on the surety set aside.
Accordingly, the order relating to the forfeiture of the bond and the default sentence passed on
the surety are hereby set aside.
Deepali Wijesundera,J – I agree
Order of the High Court quashed
CA/45/BALJ 2012
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