In Re Application For A Writ Of Habeas Corpus

1926 Present: Schneider A. C. J., Garvin, Lyall Grant, and
 Maartensz JJ.

In the Matter of an Application for a Writ of Habeas corpus
on the Body of THOMAS PERERA alias BANDA.

P. C Colombo (Itg.) 43,833

Habeas corpus-Warrant of commitment issued by commissioner of Assize-Power of Supreme Court to review order?Warrant defective-Release of prisoner.

The Supreme Court has no power to review the order of a, Commissioner of Assize is issuing a warrant of commitment remanding a prisoner to custody

Where such a warrant was ex facie defective, the Supreme Court can order the discharge of the prisoner.

THIS was an application for a writ of habeas corpus made by petition by the wife of one Banda, who was on remand in the Hulftsdorp jail, awaiting his trial upon a charge of murder. It was alleged in the petition that prisoner stood his trial for murder before the Commissioner of Assize at Colombo, and that at the conclusion of the trial on October 28, 1926, the jury, divided as five to two, brought in a verdict of acquittal of the prisoner. The Commissioner of Assize thereupon requested them to reconsider their verdict, and when the jury returned after further deliberation His Lordship discharged them and remanded the, prisoner to jail, pending his trial before another jury. It was claimed in the

petition that; under the circumstances the prisoner had been acquitted by the jury, and that, as the Commissioner had no right to remand him, his detention was illegal.

R. L. Pereira (with de Jong and Sri Nissanka, instructed by E. C. Ratnaike), in support.

Akbar, S.G. (with Mervyn Fonseka, C. C), for the Crown.

December 16, 1926. SCHNEIDER A. C. J.-

This application for a writ of habeas corpus ad subjiciendum was made by petition by one Sopia Nona, the wife of one Banda, who was on remand in the Hulftsdorp jail, awaiting his trial upon a charge of murder, punishable under section 296 of the Penal Code, and of having caused evidence of the commission of that offence to disappear, punishable under section 198. It was alleged in the petition, to which the only respondent was the Fiscal of the Western Province, that at the conclusion of the trial of the prisoner on October 28, 1926, the jury, divided as five to two, brought in a "verdict of acquittal of the prisoner on both counts," that the Commissioner of Assize requested them thereupon to reconsider their verdict, and when the jury returned once again after further deliberation he discharged them, purporting to act under section 230 of the Criminal Procedure Code, and remanded the prisoner to jail pending his trial before another jury. The petitioner claimed that in the circumstances the prisoner had been acquitted by the jury, and that as the Commissioner had no right to remand him, his detention was under a warrant which was invalid. She prayed that the prisoner "be acquitted and discharged" and his body be delivered to her. The application would have been disposed of by a single Judge in Chambers according to the ordinary routine but for its extraordinary nature. It was accordingly decided that it should be listed and heard before a bench consisting of the four Judges who happened to be in Colombo at the time, in order that an authoritative decision might be obtained upon a matter of law which had not been adjudicated upon previously. The matter of law was whether, upon this application for a writ of habeas corpus, it was competent, for this Court to go behind the warrant of commitment and inquire into the circumstances in which the order was made for the issue of the warrant for the purpose of deciding the validity of the warrant. It should be mentioned here that the petitioner did not allege that the warrant under which the prisoner was in custody was not otherwise good and valid. The Court directed notice of the hearing of the application to be given to the parties, and also to the

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