ATTONEY-GENERAL AND OTHERS vs. SUMATHIPALA

019-SLLR-SLLR-2006-V-2-ATTONEY-GENERAL-AND-OTHERS-vs.-SUMATHIPALA.pdf


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ATTORNEY – GENERAL AND OTHERSVSSUMATHIPALASUPREME COURT.
BANDARANAYAKE, J.
WEERASURIYA, J.
UDALAGAMA, J.
DISSANAYAKE, J AND.
RAJA FERNANDO, J.
SC APPEAL 82/2004.
S.C. SPLA 190/2004.
CA (BA) 171/2004.
MC COLOMBO NO. 55 305/01.
13TH SEPTEMBER, 29TH SEPTEMBER, 27TH OCTOBER, 7TH-DECEMBER AND 20TH DECEMBER 2005.
Bail- Code of Criminal Procedure Act, section 404 – Nature of power of Court ofAppeal under section 404 of the Code – Whether it is an appellate and revisionaryor original power – Whether section 47(1) of the Immigrants and Emigrants Actprohibits the Court of Appeal granting bail to an accused charged undersection 45 of the Immigrants and Emigrants Act – Court cannot grant bail onthe ground that section 47(1) of the Immigrants and Emigrants Act contravenesthe fundamental rights of the accused.
On 04.12.2003 the Criminal Investigation Department reported to theMagistrate’s Court of Colombo that the respondent abetted one DhammikaAmarasinghe to use an irregular passport, an offence punishable under section45 of the Immigrants and Emigrants Act, an offence which is not bailable.Amarasinghe was on remand in another case. The respondent who could notbe found appeared before the Magistrate, on a Poya holiday and was ordereda conditional release, terminating proceedings against the respondent.
On 10.12.2003 the 4th respondent (OIC/CID) instituted proceedings againstthe respondent and Amarasinghe in the Chief Magistrate’s Court for an offenceunder section 45 of the Immigrants and Emigrants Act.
Amarasinghe was murdered in the Magistrate’s Court when he was producedin another case. The respondent appeared before the Magistrate and theMagistrate ordered his remand. No bail application was made or refused inrespect of him under section 402 or 403 of the Code of Criminal Procedure Act.
However, on an application made to the Court of Appeal which was decidedby a Divisional Bench of 3 judges the respondent was enlarged on bail. SriPavan, J. held that under section 404 of the Code, the power of the Court of
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Appeal was appellate whilst Abeyratne, J. held separately that its power wasoriginal. Bail was granted in view of the fact that the prohibition against bail insection 47(1) of the Immigrants and Emigrants Act was too harsh and interferedwith the fundamental rights of the respondent.
HELD:
The power of the Court of Appeal under section 404 of the Code isappellate or revisionary (and not original) and applied only to casesunder sections 402 and 403 of the Code.
Section 471(1) of’the Immigrants and Emigrants Act prohibited bailpending trial to a person charged with an offence under section 45 ofthat Act, and particularly in view of Article 80(3) of the Constitution, eventhe Supreme Court had no power to grant bail prohibited by the plainwords of section 47(1) of the Immigrants and Emigrants Act. It is for theParliament to amend the Law, if it is too harsh.
Benwell v. The Attorney General 1988 1 Sri LR 1
Rev. Singarayar Sri Kantha Law Reports II 154
In Re Ganapathpillai 1920 21 MR 481
Flora v United States '362 US 145
Mannalige Gowda v Star of Mystore PIR 1964 Mysore 84
Benoy Krishna v State of West Bengal IR 1966 Cal 429
The King v Lokunona 1908 11 NLR 120
Kamusumay v Minister of Defence and External Affairs 1961 63 NLR 214
Kanapathy v Jayasinghe 1964 GG NR 549
Nithynandan and Others v Attorney General and Another 1983 2 SriLR 251
Jyotiben Ramlal v State of Gujarat 1996 1 Gu J. L. K. 395
Aswini Kumar v Aravinda Bose Air 1952 SC 369
Union of India Shrianbai AIR 1954 SC 596
Kushi Ram v The State 1954 AIR 779
Babu Singh v State of Uttar Pradesh AIR 1978 SC 527
Magor and Mellons RDC v Newport Corporation 1952 AC 189
Government Agent, Superintendent of Police v Suddhana et al. 1905,Tambiahs’ Report 39.
APPEAL from the judgment of the Court of Appeal.
Yasantha Kodagoda, Deputy Solicitor General with Harshika de Silva, StateCounsel for appellant.
D. S. Wijesinghe, PC with Navin Marapana and Kaushalya Molligoda forrespondent.
2 – CM 8094
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29th March, 2006.
SHIRANI BANDARANAYAKE, J.This is an appeal from the judgments of the Court of Appeal dated18.06.2004. By those judgments, the Court of Appeal enlarged thepetitioner-respondent (hereinafter referred to as the respondent) on bail.The respondents-appellants (hereinafter referred to as the appellants)appealed therefrom primarily on the basis that there are serious errors oflaw in the judgments of the Court of Appeal, which have now given rise tofar reaching implications in the administration of criminal justice. LearnedDeputy Solicitor General submitted that the appellants do not want a reversalof the status quo in relation to the respondent and the respondent whowas enlarged on bail could remain so, as there are no violations of theconditions of bail, whatever be the outcome of this appeal. In view of thissubmission, learned President’s Counsel for the respondent submittedthat he had no objection to leave being granted on questions of law raisedby the appellants. Accordingly special leave to appeal was granted on 11questions based on the judgment of Sripavan, J. with whom the Presidentof the Court of Appeal Somawansa, J. agreed (hereinafter referred to asthe judgment of Sripavan, J.) and on 7 questions based on the judgment ofAbeyratne, J. in which Abeyratne, J. had agreed with the decision ofSripavan, J., but gave separate reasons (hereinafter referred to as thejudgment of Abeyratne, J.)
At the hearing, both learned Counsel agreed that although there areeighteen questions on which special leave to appeal was granted, theissues that have arisen for determination by this Court would be as follows:
whether section 404 of the Code of Criminal Procedure Act, vestsonly appellate and revisionary jurisdiction in the Court of Appealor whether the Court of Appeal is also vested with originaljurisdiction ?;
Whether section 47(1) of the Immigrants and Emigrants Act servesas a prohibition on the Court of Appeal to consider granting bail toa person accused of an offence under Section 45 of the Immigrantsand Emigrants Act ?;
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the applicability of section 3(1) of the Bail Act.
Learned President’s Counsel for the respondent, however submittedthat neither the appellants nor the respondent had raised the question onthe applicability of section 3(1) of the Bail Act before the Divisional Benchof the Court of Appeal and therefore although the appellants had madesubmissions briefly on the subject, the respondent would not deal with theaspect of the applicability of section 3(1) of the Bail Act.
Considering this submission of the learned President’s Counsel for therespondent, it was agreed upon at the hearing that the law relating tosection 3(1) of the Bail Act would be considered in detail in S. C. (Appeal)No. 28/2005, which case was heard by the same Bench and will not beconsidered in this appeal.
The facts of this appeal, as submitted by the learned Deputy SolicitorGeneral for the appellants, albeit brief, are as follows:
Pursuant to criminal investigations conducted by the CriminalInvestigation Department (hereinafter referred to as the CID) on 04.12.2003,criminal proceedings were initiated against the respondent and another, inthe Magistrate’s Court of Colombo. These proceedings were initiatedfollowing the filing of a Report under the Code of Criminal Procedure Act,No. 15 of 1979 (hereinafter referred to as the Code of Criminal ProcedureAct), wherein it was alleged that the respondent had abetted one DammikaAmarasinghe to use an irregular passport issued under the name ofBuddhika Priyashantha Godage. At that time, whilst the respondent wasnot under arrest by the police, the said Dammika Amarasinghe was inremand custody consequent to a remand order made in another case.
According to the appellants, since 04.12.2003, officers of the CIDunsuccessfully attempted to arrest the respondent for having committedthe aforementioned offence. However, it had not been possible to arresthim as he was not found in any of the locations where it was reasonableto assume that he would be found. However, as stated by the appellants,on 08.12.2003 (which was a public holiday, due to that day being the PoyaDay), the respondent had surrendered to Magistrate A. S. GamlathArachchi, who was on roster duty to function as the Magistrate on behalfof all the other Magistrates of Hulftsdorp, Colombo. At the conclusion of
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that day’s proceedings, the said Magistrate made order of 'conditionalrelease’, thereby according to the appellants, terminating the proceedingagainst the respondent.
Thereafter on 10.12.2003, the 4th appellant instituted criminal proceedingsagainst the respondent and Dammika Amarasinghe in the ChiefMagistrate's Court, Colombo by filing a complaint under section 136(1 )bof the Code of Criminal Procedure Act. Since the respondent and DammikaAmarasinghe became accused for having committed offences under section45 of the Immigrants and Emigrants Act, the appellants moved theMagistrate's Court for the issue of a warrant of arrest of the respondent.The learned Magistrate made order refusing to issue a warrant of arrest,but issued summons on the respondent.
Consequent to the institution of criminal proceedings, the aforementionedDammika Amarasinghe was murdered when he was arraigned in theMagistrate’s Court regarding another case.
On 19.01.2004, the prosecution in case No. 55305/3/1 submitted tothe learned Magistrate a charge sheet for consideration of Court and onthat day the respondent, who had avoided appearing before the Magistrate’sCourt until then, appeared before the Magistrates and was placed in remandcustody. On 30.01.2004, the appellants had moved to amend the chargeframed against the respondent, which was allowed and the respondenthad pleaded not guilty and he was charged for having committed an offenceunder section 45(1) (a) of the Immigrants and Emigrants Act, which ispunishable in terms of section 45(2) of the said Immigrants and EmigrantsAct.
According to the appellants, the trial against the respondent commencedin the Chief Magistrate’s Court and was proceeding and no applicationwas made seeking his enlargement on bail. Therefore the appellantscontended that there does not exist an order by the learned Magistratemade upon a consideration of such application refusing to enlarge thepetitioner on bail.
On 27.01.2004, the respondent filed an application in the Court of Appealseeking an order from the Court of Appeal granting bail to the respondent(P5). On a consideration of circumstances pertaining to the hearing of thismatter and of certain questions of fundamental importance arising for
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determination in the case, the President of the Court of Appeal madeorder constituting a Divisional Bench (P9), which heard the respondent’sapplication.
On 18.06.2004, the Court of Appeal made order enlarging the respondenton bail in a sum of Rs. 250,000 in cash with three sureties acceptable tothe Magistrate, who should be government servants drawing a monthlysalary not less than Rs. 20,000. The Court also ordered that the passportof the respondent be impounded and to be kept in the custody of theRegistrar of the Court. The Court also directed that the respondent shouldreport to the 3rd appellant, namely the Director of the Criminal InvestigationDepartment, once a fortnight (P10).
Having set down the facts of this appeal, as set out by the appellants,let me now turn to consider the main question of law taken up at thehearing of this appeal.
At the commencement of the hearing, learned President’s Counsel forthe respondent took up a preliminary objection that the appellants had nottendered their written submissions in terms of the Supreme Court Rules of1990. The appellants by way of a motion dated 18.03.2005, prior to thecommencement of the hearing as well as at the stage of argument,explained the reasons for the delay in filing their written submissions.However, at the stage of hearing as well as in their written submissionsfiled subsequent to the conclusion of the hearing, learned President’sCounsel for the respondent had submitted that having regard to theimportance of the issue relating to the question of the nature of thejurisdiction of the Court of Appeal and also having regard to the conditionalnature of the special leave to appeal granted to the State where therespondent to be on bail irrespective of the outcome of the appeal, therespondent does not wish to pursue the preliminary objection. Since therespondent is not pursuing the preliminary objection regarding the filing ofthe written submissions in terms of Supreme Court Rules, this Court willnot go into the matter and would consider only the main appeal to which Iwould now turn to on the basis of the two questions referred to earlier.
(A) Whether section 404 of the Code of Criminal ProcedureAct, vests only appellate and revisionary jurisdiction inthe Court of Appeal or whether the Court of Appeal is alsovested with original jurisdiction ?
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Learned Deputy Solicitor General for the appellants strenuouslycontended that section 404 of the Code of Criminal Procedure Act, confersonly an appellate/revisionary jurisdiction in the Court of Appeal and thesaid jurisdiction is restricted to situations which fall under sections 402and 403 of the Code of Criminal Procedure Act. The respondent on theother hand submitted that the position with regard to the afore-mentionedquestion is extremely clear and that section 404 of the Code of CriminalProcedure Act, confers original jurisdiction on the Court of Appeal toentertain applications for bail from any person in custody. The Court ofAppeal in Sripavan, J., ‘s judgment referring to the decision in Benwell vThe Attorney General111 where it was stated that,
“the Court of Appeal is empowered in the exercise of its appellatejurisdiction to admit any person in custody to bail in the cases referredto in Sections 402 and 403,"
had considered the matter in question on the basis that the Magistratehad refused to grant bail to the appellant and therefore the existence ofan order of an original Court was in force at the time the appellant madehis application to the Court of Appeal to exercise its jurisdiction.
Abeyratne, J. on the other hand, in his judgment, after considering thedecisions in Rev. SingarayaP'1 and in re GanapathipillaP> has clearly statedthat, the Court of Appeal has original jurisdiction.
Accordingly it is necessary to examine section 404 of the Code ofCriminal Procedure Act. It is now well-settled law that the legislative historyof a statute is the most fruitful source of instruction as to its properinterpretation (Flora v United Stated Mannalige Gowda v State of Mysore(5> Benoy Krishana v State of West Bengal Discussing the importance inconsidering the legislative history of statute in interpretation, Bindra is ofthe view that (Interpretation of Statutes, 9th Edition, pg. 863)
“It is also well-settled that in interpreting an enactment, the Courtshould have regard not merely to the literal meaning of the wordsused, but also take into consideration the antecedent history of thelegislation, the purpose and the mischief it seeks to suppress."
Notwithstanding the aforementioned, Bindra had further stated (suprapg. 876) that,
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“When the statute has undergone changes by way of amendments orotherwise, it is not only permissible, but of great assistance on the matterof interpretation to examine the legislative history of the provisions.”
Therefore as referred to by Maxwell (Interpretation of Statutes, 7th Edition,pg. 65) as to how the Act at present in force should be interpreted, it wouldbe of use to examine the corresponding section of the previous enactments.
Section 396 of the Criminal Procedure Code, No. 15 of 1898 was thecorresponding section to section 404 of the present Code of CriminalProcedure Act. Section 396 was as follows :
‘The amount of every bond executed under this Chapter shall befixed with due regard to the circumstances of the case and shall notbe excessive, and, the Supreme Court may in any case direct thatany person be admitted to bail, or that the bail required by a PoliceMagistrate be reduced or increased.”
Section 396 of the Criminal Procedure Code, No. 15 of 1898 wasconsidered in the case of in re Ganapathipillai (supra), where the thenSupreme Court interpreted the words ‘in any case’ to mean that thejurisdiction of the Supreme Court under section 396 to be revisionary and/or appellate as there is a condition pre-requisite for the exercise of suchjurisdiction. The application in Ganapathipillai (supra) was for an order onthe grant of bail. De Sampayo, J. in Ganapathipillai (supra) stated that theCourt was bound by the views expressed in the case of The King vLokunonap) which had examined section 396 of the Criminal ProcedureCode of 1898. Learned Presidents’s Counsel for the respondent agreedthat the interpretation given in Ganapathipillai (supra) had restricted thejurisdiction of the Supreme Court under section 396 of the CriminalProcedure Code of 1898 to be revisionary and/or appellate and furthersubmitted that the law as it then stood as interpreted in the case ofGanapathipillai (supra) was therefore followed in the subsequent cases ofKamusamy v Minister of Defence and External Affairs(8) and Kanapathy vJayasinghe<9), where section 396 of the Criminal Procedure Code of 1898was given careful consideration.
Learned President’s Counsel for the respondent also contended that,the Criminal Procedure Code of 1898 was repealed by section 3(1 )a of the
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Administration of Justice Law, No. 44 of 1973 (hereinafter referred to asthe AJL and although the new enactment basically adopted the provisionsof the old Code, it had introduced new words with an attempt to expandthe meaning of the relevant section, with a view to overcome the restrictiveinterpretation given to the words ‘in any case’ in Ganapathipillai's (supra)case. Section 103(4) of the AJL reads as follows:
“Notwithstanding anything contained in this section, the SupremeCourt may in any case direct that any person be admitted to bail orthat the amount of the bond fixed by any original Court be reduced orincreased.”
Learned Presidents Counsel for the respondent, referring to the newlyintroduced words in section 103(4) of the AJL, which reads as‘notwithstanding anything contained in this Section’, submitted thatit was intended to give a wider interpretation to the section in order toprovide an opportunity for persons in custody to seek relief by way of anapplication for bail.
It is however to be borne in mind that section 103(4) of the AJL had notbeen interpreted by this Court as it was replaced within 6 years of itsintroduction by the present Code of Criminal Procedure Act. Accordinglyit would not be of any assistance to this Court to examine the aforesaidprovision of the AJL, having in mind the questions that are before thisCourt. However, it is of interest to-note observations made by Prof. 6. L.Peiris (Criminal Procedure in Sri Lanka, 2nd Edition 1998, PP. 152-152) inregard to the powers of the Supreme Court in respect of bail under theprovisions of AJL, where he had stated that,
“Unlike the English Courts which have jurisdiction under thecommon law to made orders for bail in all cases, the Supreme Courtof Sri Lanka has no comparable power. Its power and jurisdiction inthis regard are conferred and regulated by statute – previously by theCourts Ordinance and the Criminal Procedure Code and today bythe Administration of Justice Law.”
Consequently what is relevant and more important would be to considerthe provisions stipulated in Section 404 of the Code of Criminal ProcedureAct, which repealed and replaced the AJL in 1979. Section 404 of thepresent Code of Criminal Procedure Act reads as follows:
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The amount of every bond executed under this Chapter shall befixed with due regard to the circumstances of the case and shall notbe excessive; and notwithstanding anything to the contrary in thisCode or any other law the Court of Appeal may in any case directthat any person in custody be admitted to bail or that the bail fixedby the High Court or Magistrate be reduced or increased or that anyperson enlarged on bail by a Judge of the High Court or Magistrate tobe remanded to custody.”
Learned Deputy Solicitor General for the appellants contended thatsection 404 of the Code of Criminal Procedure Act and section 396 of theCriminal Procedure Code of 1898 were similar. His contention was thatthe Court of Appeal in Rev. Singarayar v Attorney General (supra),Nithyanandan and Others v Attorney General<10> and the Supreme Court inBenwell v The Attorney General and Another (supra) had correctly statedthe Judicial interpretation and view of the nature of the jurisdiction that hasbeen vested in the Court of Appeal by section 404, that it does not vest‘original’ jurisdiction in the Court of Appeal.
However, learned President’s Counsel for the respondent took a contraryview on the submissions made by the learned Deputy Solicitor General forthe appellants and submitted that the words ‘notwithstanding anythingto the contrary in this Code or any other Law', which were absent insection 396, but are found in section 404 and their significance wasoverlooked by Court in coming to their conclusion in all the aforementioneddecisions. Learned President’s Counsel for the respondent furthercontended that the cases of Rev. Singarayer (supra) and Benwell (supra)are clear examples of judgments given by the failure to point out a significantchange brought about in the law by the amendment of a section, perhapsdue to an oversight or inadvertence and therefore the judge not havingaddressed his mind to the meaning that should be attributed to the saidamendment. Therefore the learned President’s Counsel for the respondentsubmitted that Rev. Singarayer (supra) and Benwell (supra) clearly aredecisions ‘per incuriam’.
Although the contention of the learned President’s Counsel for therespondent is that in the decisions of Rev. Singarayer’s (supra) andBenwell (supra), the Court had not given its mind to the words‘notwithstanding anything to the contrary in this Code or any other law’,
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which were absent in section 396, but are found in section 404, a carefulexamination of these decisions clearly indicate that this is not so, asthere is reference to the added words in section 404 of the Code of CriminalProcedure Act. For instance in Benwell v The Attorney General (supra)Sharvananda, C. J., was conscious about the addition of the words insection 404 of the Code of Criminal Procedure Act, when he stated thatthe Court of Appeal is empowered to exercise only appellate jurisdiction,as his Lordship had stated that,
“Counsel made reference to section 404 of the Code of CriminalProcedure Act, No. 15 of 1979 which inter alia, provides that'notwithstanding anything to the contrary in this Code or any otherlaw the Court of Appeal may in any case direct that any person incustody be admitted to bail’. It was urged that in any event, theCourt of Appeal, had powers under this section to admit the appellantto bail. In my view, this section does not support Counsel’ssubmissions. The expression ‘in any case’ can only refer to thecases referred to in the two previous sections, viz., 402 and 403 ofthe Code, and is not of general application. The Court of Appeal isempowered in the exercise of its appellate jurisdiction to admit anyperson in custody to bail in the cases referred to in section 402 and403.”
Thus although section 404 of the Code of Criminal Procedure Act, wasnot considered in detail, it would not be correct to say that they have notconsidered the contents of the new section as the decisions in Rev.Singarayer (supra), Nithyanandan (supra) and Benwell (supra) correctlyreflects the nature of the jurisdiction vested in the Court of Appeal bysection 404, which is limited to appellate and revisionary jurisdiction.
Considering the submission made by the learned President’s Counselfor the respondent, it is not possible to accept that by the introduction ofthe term 'notwithstanding anything to the contrary in this Code or anyother law’, legislature had vested ‘original’ jurisdiction in the Court of Appealin considering the grant of bail.
The decisions which had considered the vesting of jurisdiction pertainingto bail since Ganapathipillai (supra) had been unanimous in its outcomeand the only difference in section 404 is the inclusion of the non-obstante
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clause which was not in the previous sections it is settled law that thenon-obstante clause will have to be read in the context of what the legislatureconveys in the enacting part of the provision. (Jyothiben Ramlal v State ofGujarat" * Aswini Kumar v Arvinda Bose(12>, Union of India v Shrinbai(13).Considering the effects of non-obstante clauses, Bindra states that,
“The proper way to construe a non-obstante clause is first toascertain the meaning of the enacting part on a fair construction ofits words. The meaning of the enacting part which is so ascertainedis then to be taken as overriding anything inconsistent to that meaning
in the provisions mentioned in the non-obstante clauseIt
does not, however, necessarily mean that there must be repugnancybetween the two provisions in all such cases. The principalunderlying non-obstante clause may be invoked only in thecase of ‘irreconcilable conflict' (Emphasis added).
As stated by Sharvananda, C. J. in Benwell (supra) the expression insection 404 could only be referred to in sections 402 and 403 of the Codeof Criminal Procedure Act. Section 404 of the Code is contained in ChapterXXXIV, which deals with bail and consists of 7 sections from sections 402- 408. It is to be noted that section 403 was amended by the Code ofCriminal Procedure (Amendment) Act, No. 4 of 1993. Section 402 and theamended section 403(1) read as follows:
“402 – when any person other than a person accused of a non-bailable offence appears or is brought before a Court and is preparedat any time at any stage of the proceedings before such Court togive bail such person shall be released on bail:
Provided that the Court if it thinks fit may instead of taking bailfrom such person discharge him on his executing a bond withoutsureties for his appearance as herein after provided."
403(1)- A Magistrate ora Judge of the High Court, at any stage ofany inquiry or trial, as the case may be, may in his discretion releaseon bail any person accused of any non-bailable offence:
Provided that a person alleged to have committed or been concernedin committing or suspected to have committed or to have been
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concerned in committing, an offence punishable under section 114,
191 and 296 of the Penal Code shall not be released, at any stage ofany inquiry or trial, except by a Judge of the High Court."
Considering the aforementioned sections, along with section 404 of theCode of Criminal Procedure Act, it is apparent that for the Court of Appealto consider making a direction under section 404 there should be an orderfrom the Judge of the High Court or a Magistrate.
Accordingly, when one considers all these provisions together having inmind the non-obstante clause in section 404, there is nothing to implythat the Court of Appeal has original jurisdiction with regard to granting ofbail. In fact although not specifically stated, it appears that, Sripavan, J.,in his judgment where the President of the Court of Appeal had agreed,had proceeded on the premise that section 404 vests only appellate andrevisionary jurisdiction in the Court of Appeal. Moreover, although notspecifically stated, it also appears that Sripavan, J. in his judgment hadreferred to the decisions in Rev. Singarayer (supra) and Benwell (supra), inthe light that the Court of Appeal could exercise appellate and revisionaryjurisdiction in terms of section 404 of the Code of Criminal Procedure Act.Thus in his judgment, Sripavan, J., after making reference to Rev.Singarayer’s case (supra) and Benwell's case (supra) had quoted from thejudgment of Sharvananda, C. J. in Benwell’s (supra) case. Thereafter hehad stated that,
“As averred in paragraph 27 of the petition, the Magistrate hasrefused to grant bail to the petitioner. Hence, the existence of anorder of an original court was in force at the time the petitionermade this application, for this court to exercise its jurisdiction(emphasis added).”
Paragraph 27 of the petition dated 26.01.2004 to the Court of Appealstated thus:
“However, the learned Magistrate disallowed the objections raised onbehalf of the petitioner stating that there was no need to file a fresh oramended report by the Police despite the death of the 1 st accused andfixed the matter for the 30th January, 2004 to determine whether chargeswould be framed against the petitioner as required by section 182 of the
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Code of Criminal Procedure Act. Further the learned Magistrate whilststating that he appreciated the presence of the petitioner in Court despitehis present condition, but that he was unable to grant bail in view ofSection 47 of the Immigration and Emigration Act, remanded thepetitioner to fiscal custody until 30th January 2004. A true copy ofthe said order is annexed hereto marked ‘P15’ (emphasis added)."
Accordingly, it is apparent that Sripavan, J. had considered therespondent"s application having identified a 'bail refusal order1 by the learnedMagistrate on 19.01.2004 and thereafter had considered the matter on thepremise that section 404 vests only appellate and revisionary jurisdictionin the Court of Appeal. Learned Deputy Solicitor General submitted thatthere were two discrepancies between the Sinhala and the English versionsof section 404 and that the Sinhala version gives section 404 a restrictiveinterpretation. These discrepancies were that, in the Sinhala text thewords gOc&SoOza’ is given whereas in the English text this is statedas ‘in any case’ and the word, ‘ca®which is given in the Sinhala
text, appears as ‘any person’ in the English text. Whilst agreeing with thesubmission of the learned Deputy Solicitor General that there exist thesetwo discrepancies, it is to be borne in mind that there are also other suchdiscrepancies when the Sinhala and English texts of section 404 arecompared.
However, the applicable text in terms of Article 23(3) is quite clear inthis regard, as it provides that the law published in Sinhala shall as fromthe date of such publication be deemed to be the law and supercede thecorresponding law in English. Further, in terms of Article 23(1) of theConstitution in the event of any inconsistency between any two texts, thetext in the Official Language should prevail. In such circumstances althoughthere are differences between the English and Sinhala texts, it would notbe necessary for the purpose of this appeal to venture into a detailedexamination of the differences between the aforementioned two versions.
Accordingly it is apparent that in terms of the section 404 of the Codeof Criminal Procedure Act, the Court of Appeal has only the appellate andrevisionary jurisd iction.
Having considered the effect of section 404 of the Code of CriminalProcedure Act, let me now turn to examine the applicability of section47(1) of the Immigrants and Emigrants Act.
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(B) Whether section 47(1) of the Immigrants and EmigrantsAct serves as a prohibition on the Court of Appeal toconsider granting bail to a person accused of an offenceunder section 45 of the Immigrants and Emigrants Act ?
Learned Deputy Solicitor General took up the position that in terms ofsection 47(1) of the Immigrants and Emigrants Act, bail was denied topersons accused of offences contained in that section. The contention ofthe learned Deputy Solicitor General is that the term 'shall' carries with ita mandatory obligation on all courts and the parliamentary proceedingsalso reveal that the intention of the legislature was clearly to ensure thatby the use of the terms 'non-bailable', persons accused of offencescontained in that section be denied bail in the literal sense of the Englishword ‘non-bailable.’ He also took up the position that section 47(1) of theAct as amended, overrides the provisions of section 404 of the Code ofCriminal Procedure Act, since the former belongs to specific law and thelatter falls within the category of general law.
Section 47(1) of the Immigrants and Emigrants Act, No. 20 of 1948, asamended states as follows:
“Notwithstanding anything in any other law-
every offence under paragraph (a) of sub-section (1) of section45;
every offence under sub-section (2) of section 45 in so far asit relates to paragraph (a) of sub-section (1) of that section;

shall be non-bailable and no person accused of such an offence shallin any circumstances be admitted to bail."
Section 45 of the Act was amended by Act, No. 42 of 1998 to includethe offence in respect of which the respondent was charged and section47 was also amended to include the aforementioned new offences, whichwere brought in under section 45 and these were listed under the categoryof ‘non-bailable’ offences in terms of section 47 of the Act.