Bail as is applicable in Sri Lanka

Bail Act

The right to have an accused released pending his trialgiving adequate assurance that he will stand trial andsubmit himself to sentence if found guilty is generallyknown as the right to bail. Like the ancient practice ofsecuring the old system of oaths of responsiblepersons, the modern practice of requiring bail bond orthe deposit of a sum of money subject to forfeitureserves the additional assurance of the presence of anaccused. Since the function of Bail is limited, the fixingof bail for any individual must be based upon thestandards relevant to the purpose of ensuring hispresence.

WHAT IS BAIL

The concept of bail has evolved from a system that had 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 liberty of the people.

HISTORY

Kanapathy Vs Jayasingha 66 NLR549 “the release or setting at libertyof a person arrested or imprisonedeither on his own recognizance orupon others becoming sureties forhis appearance on a future date”.Alles J

BAIL ANOTHER DEFINITION

There are always grave objections tothe incarceration of unconvictedpersons charged with bailableoffences, and it can only be in rarecases that reasons of such cogencyarise as to outweigh these objections.--Gratiaen,J towards end of hisjudgment, in the case of Athurupana51 NLR 21

“The Courts will never cease to safe guard

the liberty of the citizen. The favour shown

to freedom will always influence judges to

approach questions affecting the liberty”.

Per Sansoni, J in Liyange 65 NLR

289

As the front line persons in the administration ofjustice, Magistrates have a very special place. In thedischarge of their great responsibility they must notonly exercise their independent judgment in decidingwhether detention and continued detention isnecessary, but they should also keep a watchful eyeon the activities of the police in areas over which theyhave jurisdiction in matters pertaining to thedeprivation of personal liberty.

PER DR A R B AMERASINGHA – VIDE - OURFUNDAMENTAL RIGHTS OF PERSONAL SECURITY ANDPHYSICAL LIBERTY.

Duty of the Bar

Bar has obligation to assist the Court to arrive at aproper finding on an application for bail. To achievethis end the Bar must suitably be acquainted with thefacts of the bail application and in particular the Lawapplicable. On the hand the State and aggrievedparties should exercise due care not to raise frivolousobjections against bail applications

The Constitution of the Democratic SocialistRepublic of Sri Lanka 1978 - chapter III,unequivocally1. recognises freedom of movement, freedom

against torture, arbitrary arrest anddetention.

2. It is enshrined in Article 13 of theConstitution that no person shall bearrested except according to the procedureestablished by law and every person soarrested shall be informed of the reason forthe arrest. CONTINUED

CODE OF CRIMINAL PROCEDURE 15/1979

Until 27 November 1997, the commonprinciples applicable to bail were embodied inthe Code of Criminal Procedure Act No 15 of1979 (herein after sometimes referred to as theCODE) more particularly in Sections 115, 402,403 & 404, 422. Remarkable improvementshave been made to the Law relating to Bail in SriLanka after the enactment of the Bail Act No 30of 1997.

OVERCROWDING OF PRISONSO

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Title to the bail ActThe long title to the Bail ActTO PROVIDE FOR

(1) RELEASE ON BAIL OF PERSONS SUSPECTED OR AACCUSED OF BEING CONCERNED IN COMMITTINGOR HAVING COMMITTED AN OFFENCE;

(2) TO PROVIDE FOR THE GRANTING OFANTICIPATORY BAIL AND(3) FOR MATTERS CONNECTED THERE WITH ORINCIDENTAL THERETO.

On a perusal of the long title it is crystal clear that inaddition to providing specific provisions for the grantof bail to persons who are arrested and/detained inconnection with various crimes, the Legislatureextended the principle of bail to those who have notyet been arrested, by specifically enabling theMagistrates to grant anticipatory bail, a concepthitherto unknown to the Sri Lankan Statutes.

The concept of bail involves the liberty of the subjectsand more so in view of the presumption of innocenceconferred by Article 13(5) of the Constitution. Assuch, it is elementary principle to bear in mind thatthe refusal to admit a suspect on bail should neverleave a punitive flavour. “There are always graveobjections to the incarceration of unconvictedpersons charged with bailable offences and it can onlybe in rare cases that reasons of such cogency arise asto outweigh these objections”.In re Athurupane 51 NLR 21

unless context otherwiserequires, bailable offence" meansan offence shown as bailable inthe first Schedule to the Code orwhich is made bailable by anyother law for the time being inforce, and "non-bailable offence"means any other offence;".

BAILABLE OFFENCE" MEANS AN OFFFENCEDESCRIBED IN COLUMN 5 OF THE FIRSTSCHEDULE TO THE CODE OF CRIMINALPROCEDURE ACT, NO. 15 OF 1979, OR BY ANYOTHER LAW, AS BEING BAILABLE; AND "NON-BAILABLE OFFENCE" MEANS AN OFFENCEWHICH IS DESCRIBED IN COLUMN 5 OF THEFIRST SCHEDULE TO THE CODE OF CRIMINALPROCEDURE ACT, NO. 15, OF 1979, OR BY ANYOTHER LAW, AS BEING NON-BAILABLE”.

METHODS OF RELEASING A SUSPECT ON BAIL

(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 byCourt; or(e) on his furnishing reasonable certified bail of the description ordered by Court:Provided that where the person has appeared before Court onsummons and is ordered to be released, he shall be enlarged onhis 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.

BANK OF CELON

WHAT IS A BOND AND WHAT IT 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 light of the seriousnessof the allegedoffence.

SAFE GUARD AGAINST ARBITRARY DEPRIVATION OF PERSONALLIBERTY- 24 HOUR RULEIt is a deeply rooted principle in Criminal Law that an offender oncearrested by a peace officer shall not be detained in custody orotherwise confined for a longer period than under all the circumstancesof the case is reasonable, and such period shall not exceed twenty-fourhours exclusive of the time necessary for the journey from the place ofarrest to the Magistrate. This is a safeguard provided by the Legislatureboth under the Constitution and the general Statute against arbitrarydeprivation personal liberty and right to freedom.

Vide section 37 of the Code of Criminal Procedure

UNDER THE BAIL ACT THE OFFENCES CAN CATAGORIZED UNDER FOLLOWING HEADINGS

1. BAILABLE OFFENCES 2. NOB BAILABLE OFFENCES3. OFFENCES IN RESPECT OF WHICH BAIL CAN

BE GRANTED BY HIGH COURTS4. OFFENCES IN RESPECT WHICH SPECIFIC 5. PROVISONS ARE MADE IN THE ACT CREATING THE 6. OFFENCE5. OFFENCES IN RESPECT OF WHICH BAIL ACT DOES6. NOT APPLY

Section 6 of the BAIL ACT sets out the manner inwhich an offender of a bailable offence should bedealt with. It provides that where an offence beinginvestigated by the police is a bailable offence, theofficer-in-charge of the police station shall not berequired to forward the suspect under his custodybefore the Magistrate having jurisdiction over suchoffence, 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 suchsuspect to appear before the Magistrate on a givendate

Where the officer-in-charge of the police station is of the opinion that publicreaction to the alleged offence which is being investigated into, is likely to giverise to a breach of peace he shall forward the suspect in custody before aMagistrate having jurisdiction over such offence, and the Magistrateshall thereupon make an order under section 7 or section 14 as he mayconsider appropriate.

Section 14 Notwithstanding anything to the contrary in the preceding provisions of this Act, a person accused of being concerned in committing bailableor non-bailable offence, may BE refused bail and after issuing noticeon the person concerned and hearing him personally or through his attorney-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.

A suspect released by an officer-in-chargeof a police station on a writtenundertaking given by such suspect underSection 6 (1) and thereafter fails to appearbefore the Magistrate on the given date,shall be guilty of an offence and onconviction after summary trial, bepunished with simple imprisonment for aterm not exceeding six months or with afine not exceeding one thousand rupeesor with both such imprisonment and fineand the Magistrate shall in his discretionorder the release of such suspect on bailsubject to conditions as specified orremand him to custody, as the case maybe

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 simplejail term of 6 months

"Nothing in this Act shall apply to anyperson accused or suspected of havingcommitted, or convicted of an offenceunder, the Prevention of Terrorism(Temporary Provisions) Act, No. 48 of1979, Regulations made under the PublicSecurity Ordinance or any other writtenlaw which makes express provision inrespect of the release on bail of personsaccused or suspected of havingcommitted, or convicted of, offencesunder such written law."

SECTION 3(1) of the BAIL ACT

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.

Prevention of Terrorism Act, No. 48 of 1979.Regulations made under the

Public Security Ordinance; andAny 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.

SPECIAL ACTS WE NEED TO KNOW THE INTRICACIES