This is a curious case regarding bail in which judges explained why bail should be granted upon appeal in most cases, barring a few exceptions, even though that was not considered the law earlier.
Presently it is considered the norm almost that bail is granted upon appeal, with a few exceptional circumstances, but it wasn’t the case earlier, when almost the opposite of that position was the norm.
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The circumstances of the case (Dachchaini v. The Attorney-General - SLR - 152, Vol 2 of 2005 [2005] LKCA 15; (2005) 2 Sri LR 152 (October 28, 2005) are explained in the judgement:
“The Petitioner in this application has sought to revise the Order of the learned High Court Judge of Colombo dated 11.01.2005 refusing to enlarge the 1st, 2nd and 3rd Accused Appellants on bail and for an order to enlarge the 3rd Accused Appellant on Bail.
The 1st, 2nd, and 3rd Accused were indicted in the High Court of Colombo on four counts viz.
1. 1st, 2nd and 3rd Accused for aiding, abetting and conspiring, to commit an offence of cheating.
2. 2nd Accused for cheating by promising to send a person abroad.
3. 1st Accused for cheating in a sum of Rs. 200,000.
4. 3rd Accused for cheating in a sum of Rs. 55,000.”
The Appeal concerned the accused and they had been refused bail by the High Court and the revision application was to consider the legality of the High Court order.
The judgement states:
“Pending Appeal an application was made to the High Court of Colombo to release these three accused on bail and this application was refused by the learned High Court Judge in the impugned order dated 11.01.2005. The refusal of bail to the 1st and 3rd accused is on the basis that “these accused have failed to show any exceptional circumstance that is required to consider bail” and the refusal of bail to the 2nd accused is on the basis that “there is no provision to consider bail in respect of the 2nd accused prior to surrendering to court.”
As this is a Revision Application, the Court of Appeal had to consider the legality of the order to refuse bail upon appeal.
The judgement makes clear that bail pending appeal is now granted under provisions of written law viz. a new Act passed in 1997. This wasn’t the case earlier, and bail was granted depending on precedent, meaning earlier judgements and how those judgements had approached the issue.
The Appeal Court judgement states:
“The bail pending appeal is now being granted under the provisions of the Bail Act, No. 30 of 1997. But the case law that had been developed in this area was based on different procedural laws that were in existence before the Bail Act came into operation. Therefore it is necessary to consider the legislative history and the evolution of law in this area.”
The curious aspect of this case was the fact that one of the judges made an observation issuing a separate judgement stating that he stands corrected in effect, and that his earlier judgements on the issue of bail pending appeal should have been different. He stated as much in the judgement quoting words to the effect that it is better to stand corrected.
The Appeal Court judgement went on to state the following on the matter:
“In 1938, the provisions of bail pending appeal was incorporated in the Court of Criminal Appeal Ordinance No. 23 of 1938 in Section 15(1). This section provides:
15(1): The Court of Criminal Appeal may, if they think fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.”
Under this section the court had discretion to enlarge an accused on bail pending appeal. But the courts when acting under this section had evolved certain restrictions on the exercise of this discretion. The Courts had adopted a principle that bail should not be granted as a rule, but can only be granted in exceptional circumstances.
The judgement states however that the applicable law has changed:
“The Bail Act, No. 30 of 1997 which has come in to operation on the 28th of November 1997 is the law applicable at the relevant time of this application and at present. The long title of this act states as “An Act to provide for release on bail of persons suspected or accused of being concerned in committing or of having committed an offence; To provide for the granting of anticipatory bail and for matters connected therewith or incidental thereto. This act has provided for release on bail of persons at the stage of investigation, at the stage of trial, pending appeal and on anticipatory bail. Section 20(2) of the Bail Act provides for bail pending the determination of appeal against a conviction.”
The judgement also digressed to address another matter.
“Lord Denning MR in the case of Ward vs. James {(1965) 1 ALL ER 563} at 571 stated that “the cases all show that when a statute gives a discretion the courts must not fetter it by rigid rules from which a judge is never at liberty to depart. From time to time the considerations may change as public policy changes and so the pattern of decisions may change. This is all part of the evolutionary process”.
Basically it means that if public policy changed, and the law underwent change, the judicial decisions have had to keep pace. That’s what happened to the issue of Bail upon appeal in Sri Lanka.
By the enactment of the Bail Act the policy in granting bail has undergone a major change.
One of the judges on the Bench — in a separate judgement — as previously mentioned in this article, observed that he has followed the principle that “the appellant should be released on bail only on exceptional circumstances” in a few Bail Orders written by him after the enactment of the Bail Act. He makes a mea culpa of sorts in his judgement in the case under review, and states that he ‘views things differently now.’
His judgement holds:
“In the case of P. G. Peris (Ex-Chairman, Village Committee) Vs. Chairman Village Committee (Medasiya Pattu, Matale){62 NLR 546}, H. N. G. Fernando J as he then was made the following observation; “The Magistrate relied on my unreported judgement in Herath Vs. Munasinghe (SC 634 MC Kegalle 16388, SCM 27.8.1957) when he overruled the objection that he had no power to impose a term of imprisonment in default of payment of the certified amount. I have hence held in identical circumstances that a default term of imprisonment may be imposed, and that sub section (1)e of the Criminal Procedure Code would determine the length of the term in such a case. While it is disappointing to realize that my judgement was erroneous, I welcome the opportunity now given me to employ the language of Baron Bramwell in a similar situation. “The matter does not appear to me now as it appears to have appeared to me before”.
Thus, I too make use of the opportunity now given me to use the language of Baron Bramwell, he wrote.
“The matter does not appear to me now as it appears to have appeared to me before”, his judgement stated, in a somewhat unusual self-observation by an Appeal Court judge.
“For the above mentioned reasons, I fully agree with the reasons given by my brother for his conclusion”, the learned judge wrote in judgement.
The application for bail was granted by unanimous decision of the Bench.
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