IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for the exercise of Revisionary Jurisdiction in terms of Article 138 of the Constitution read together with the High Court of the Provinces (Special Provisions) Act, No 19 of 1990 (as amended)

Hon. Attorney General Attorney General’s Department, Colombo 12 Complainant Vs.

Court of Appeal Application No: CA/ PHC/APN/10/22 1. Hejaaz Omer Hizbullah

2. Saleem Khan Mohomed Shakeel Hight Court of Puttalam Accused No: HC/78/2021 And now between Hejaaz Omer Hizbullah

62, Subasadhaka Mawatha, Hokandara South Presently being held at New Magazine Prison, Welikada Accused-Petitioner Vs.

Hon. Attorney General Attorney General’s Department, Colombo 12 Complainant-Respondent BEFORE : Menaka Wijesundera J Neil Iddawala J COUNSEL : Romesh de Silva PC with Niran Anktel for the Petitioner Rohantha Abeysuriya PC Additional Solicitor General with Lakmini Girihagama SC for the respondent.

Supported on : 02.02.2022 Decided on : 07.02.2022 Iddawala – J This is a revision application filed on 31.01.2022 by the 1st accused petitioner (hereinafter referred to as the petitioner) in the High Court of Puttalam Case No HC 78/2021. Petitioner impugns the Order dated 28.01.2022 of the same court, which refused to enlarge the petitioner on bail. Aggrieved by the said decision, the petitioner has invoked the jurisdiction of this Court to grant bail and/or release the petitioner from custody subject to any conditions as deemed appropriate by Court of Appeal.

Both parties were represented when the application was supported on

02.02.2022.

The President’s Counsel for the petitioner made a comprehensive submission on the application of Section 15 of the Prevention of Terrorism Act (hereinafter referred to as the PTA), contending that the word ‘shall’ appearing in the Section must be construed as ‘directive’ rather than ‘mandatory’. Parallels were drawn to Fundamental Rights jurisdiction (‘shall’ used in Article 126(5) is only ‘directive’

and is not/cannot be ‘mandatory’). Case law under the Immigrants and Emigrants Act (Thilanga Sumathipala v Inspector General of Police and Others (2004) 1 SLR 210 and Sumanadasa and 205 Others v Attorney General (2006) 3 SLR 202) were also referred to, thereby submitting that the judicial interpretation of the word ‘shall’ is meant to be ‘directive’. In doing so, the learned President’s Counsel submitted that the High Court has jurisdiction to grant bail under the PTA and that in any event, by virtue of Articles 138 and 145 of the Constitution and inherent powers, the Court of Appeal is empowered to release the petitioner on bail. It was further contended that as the Attorney General has consented to the petitioner’s release on bail, the petitioner need not establish any other grounds in his application.

The Additional Solicitor General (ASG) appearing on behalf of the respondent (the Attorney General) consented to the application, reiterating a previous undertaking by the respondent to the same effect. The learned ASG referred to Section 404 of the Code of Criminal Procedure Act (hereinafter referred to as the CPC ) as empowering the Court of Appeal to grant bail to the petitioner. The power given to the Court of Appeal by Section 404 of the CPC is an appellate power. As enunciated by well-settled law, a prerequisite for applying Section 404 of the CPC is the existence of an order of an original court (Rev Singarayar et al. Vs Attorney General Srikantha’s Law Reports 11 page 154; Benwell vs The Attorney General 1988 1 SLR page 1). In the instant application, the learned High Court Judge has refused to grant bail to the petitioner, and such order was in force when the petitioner preferred this application. Thus, the circumstance of this application falls within the ambit of Section 404 of the CPC.

Having briefly set out the submissions by both parties, this Court will now provide the factual background of the instant application.

The petition