015-SLLR-SLLR-1985-V2-PATHIRANA-v.-THE-STATE.pdf
CA
Pathirana v. The State
75
PATHIRANA
v.
THE STATE
COURT OF APPEAL.
SENEVIRATNE, J. (PRESIDENT. COURT OF APPEAL). B. E‘ DE SILVA, J. ANDBANDAR ANAYAKA, J.
C. A. 541/85.
M.C. MOUNT LAVINIA CASE Nos. 27124- 27128. 27298 – 27303.27533- 27538, 27640. 27767 – 27768. 27867 – 27870.
JUNE 27. 1985.
Bail – Principles.
The entire purpose of bail will be negatived if the bail ordered is beyond the capacity ofthe suspect. Bail should be reasonably sufficient. Two factors are indicated in the termreasonably sufficient :
It must be reasonable bail in the circumstances.
The bail must mot be excessive so as to prevent the suspect from furnishingbail – the bail order should not be a punitive order.
APPLICATION for bail.
Ian Wickremanayake for petitioner.
Moses Fernando, S.S.C. for State.
June 27. 1985.
SENEVIRATNE, J (President, C/A)
Mr. Ian Wickremanayake supports this application for bail. He statesthat in this case the suspect Wimalaratne Pathirana was running anemployment agency. He has taken money from several persons toobtain jobs in the Middle East. He had found employment for some butin the instances pertaining to these cases the prospective employeeshave failed to get empolyment due to visa problems in the country towhich they were sent, i.e.. Dubai. It is stated that this suspect has sofar 33 cases against him. More are likely to be filed. The allegation isthat of cheating in respect of the cases which are the subject matter ofthis application. In 11 cases the amounts taken by this suspectpromising foreign employment amount to Rs. 614,500. In all these1
76
Sri Lanka Law Reports
11985] 2 Sri L ft.
cases the learned Magistrate has ordered the suspect to furnish cashbail totalling to Rs. 340,000. These papers do not indicate how muchcash bail has been ordered in respect of each case. It is common for asuspect to have several cases filed against him, particularly in offencesof this nature. When a suspect has several cases pending such ascheating, or theft, if the Court orders heavy bail in each case the resultis that the suspect will not be able to furnish bail in any case. As in thisinstance the suspect will be on remand unable to furnish the bailordered.
The entire purpose of ordering bail will be negatived if the bailordered is beyond the capacity of the suspect. The Magistrate shouldnote that the principle pertaining to the ordering of bail is that the bailshould not be excessive. If the bail is excessive, then the suspect isunable to furnish such bail and the result is the ordering of bail itself isa punishment which results in the suspect being in the remand jail.Another principle the Magistrate should observe is that when a personhas several cases pending against him pertaining to like transactionsthe principle adopted so far by Court is to order reasonably sufficientbail in ,one case to ensure the attendance in Court of the suspect andto formally order bail in respect of the other cases. In the cases inwhich bail is formally ordered reference can be made to the number ofthe Magistrate's Court case in which reasonably sufficient bail hasbeen ordered. By the /term ‘reasonably sufficient' two factors areindicated
(1} it must be reasonable bail in the circumstances, and
the bail' must not be excessive so as to prevent the suspectfrom furnishing bail – the bail order thus becoming a punitiveorder.
Applying these principles to this case, we do not consider it isreasonable that any suspect in the circumstances of this suspectshould be ordered to furnish cash bail in an aggregate sum of Rs.340,000. This quantum of bail will necessarily frustrate the order.
Mr. Wickremanayake for suspect petitioner informs Court that in
M.C. 27533 the suspect has been ordered to furnish cash bail in Rs.10,000 with surety. This Court affirms the bail order made in case No.
127533 and makes further order to the Magistrate when bail isfurnished to accept only two sureties approved by Court; and sureties
77
CAPathirana v. The, State (Seneviratne. J )
must be ordered to furnish certificates from the Gramasevaka Niladariregarding their characte.r ’and position in life and as to whether they aresuitable person's to be accepted as*suretv.
In regard to the other cases which are the'subject matter of thisapplication, namely. 27124 – 27128; 27298 – 27303.27534 – 27538; 27640, 27767 – 27768, 27867 – 27870 theMagistrate, Mt. Lavinia is ordered'to enlarge the suspect on bond inRs. 10,000 in each case with two sureties. In respect of these bondsthe same conditions regarding sureties set out earlier in this order willapply.
E.DE SILVA, J. – I agree.
BANDARANAYAKA, J. – I agree.
Bail reduced.