A surety's obligation is fulfilled when the accused, permitted to travel, subsequently appears in another court, barring lawful forfeiture based on lack of condition in the original bond.

M.C.B.S. Morais J.

This is an application for restitutio-in-integrum under Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka . The Petitioner seeks to invoke this jurisdiction on the grounds of the following alleged exceptional circumstances.

- The Petitioner states that the Honorable High Court Judge has failed to appreciate that the order of the Magistrates’ Court dated 2^nd of December 2020 in imposing the surety bond of 2,000,000 LKR was for the specific and sole purpose of the suspect temporary travelling abroad and thereafter presenting herself to the Magistrates’ Court.

- The learned High Court Judge has failed to appreciate the law of sureties as mandated in the code of Criminal Procedure.

- The Petitioner states that the order of the Honorable High Court Judge is ex-facie erroneous in law and inconsistent with the procedure for forfeiture of sureties set out by the Code of Criminal Procedure.

- The Petitioner states that the Petitioner is a 56-year-old retiree with no source of income and property to her name and is incapable of fulfilling the forfeited surety amount of 1,500,000 LKR.

- The Petitioner has no means of income nor property.

The Accused, Hewabaddage Ruwani Harshani, the daughter of the Petitioner, has been indicted on three separate charges before the High Court of Colombo. The indictments are as follows: Case No. HC 2486/21 for the misappropriation of Rs. 2,900,000, Case No. HC 2487/21 for the misappropriation of Rs. 70,000, and Case No. HC 2492/21 for the misappropriation of a sum of Rs. 2,800,100, all allegedly from Mount Royal Industries (Pvt) Ltd.

The alleged financial discrepancies were discovered in June 2013, and the first B Report pertaining to the complaint was lodged at the Fort Magistrates’ Court on the 17^th of July, 2013. Following an additional report dated 20^th of January, 2014, the Petitioner was arrested and produced before the Magistrates’ Court. Consequently, the Learned Magistrate ordered that the Accused be remanded in custody until the 22^nd of January, 2014.

The Accused was granted bail by the Magistrates’ Court on the 29^th of January, 2014, subject to certain conditions, including the imposition of a travel ban. Although an order was issued for the surrender of her passport to the court, the Accused informed the court that she did not possess a passport, and as a result, no passport was submitted. The court further ordered a cash bail in the sum of Rs. 50,000 and imposed an additional condition requiring two sureties, each in the amount of LKR 1,000,000.

During the pendency of the proceedings, the Accused expressed an intention to travel to Japan with her child. Accordingly, on the 2^nd of December, 2020, the Accused filed an application before the Magistrates’ Court of Fort requesting permission to travel overseas. The Learned Magistrate issued an order temporarily suspending the travel ban until the next scheduled hearing, which was set for the 17^th of March 2021, in addition to imposing an additional surety bond in a sum of Rs. 2,000,000 to be furnished with a surety for the specific purpose of lifting the travel ban.

On 17^th of March 2021 the matter has been postponed onto 25^th of August 2021 and it appears that the suspect has not been presented before the court due to the Covid 19 pandemic. Thereafter, before 25^th of August 2021 the indictment was filed in the High Court, Colombo where the matter before the Learned Magistrate has been split into three indictments before the High Court of Colombo, numbering HC 2486/21, HC 2487/21 and HC 2492/21.

Case No. 2486/21 was filed on the 15^th of March 2021. Summons were issued for the accused to appear in court on the 09^th of July 2021; however, the accused failed to appear. Notices have been issued to the accused and the sureties. Despite the case being set for trial in the absence of the accused under Section 241 of the Code of Criminal Procedure, the accused appeared in court on the 26^th of January 2023, and subse