1959   Present   :    Gratiaen J.

In re ATHURUPANE

S. C. 457-In revision M. C. Panadure, 8,977

Criminal Procedure Code-Postponement of proceedings-Rules for remanding accused-Bail-Judicial discretion-Cautious exercise necessary Sections 289 (2) and (4), 396.

Where an accused person is remanded for a term not exceeding the period prescribed in section 289 (2) of the Criminal Procedure Code it; is essential that he should be produced in Court at the expiry of that term so that the Magistrate might bring his mind to bear once more on what would be the appropriate order to make should the inquiry or trial be postponed.

The fixing of bail calls for the exercise of judicial discretion and for-the most anxious care in each case.

ORDER made in revision in respect of certain orders of the Magistrate, Panadure.

Accused present in person.

R. A. Kannangara, Crown Counsel, for Attorney-General.

September 27, 1949. GRATIAEN J.-

This case was brought to my notice when I recently visited the remand jail at Welikade. It was then reported to me that the accused one Reginald Athurupane, a young lad of 17, has since June 27, 1949, been continuously on remand pending his trial in the Magistrate's Court of Panadure on charges of criminal trespass and connected offences. I considered it necessary that I should call for the record in the case for the purpose of satisfying myself with regard to the legality and propriety of the orders made by the learned Magistrate in this connection. I requested the Attorney-General to be good enough to arrange for Crown Counsel to assist me in examining this matter, and I am indebted to Mr. Kannangara for the valuable help which he has placed at my disposal.

On an examination of the record it appears that on June 27, 1949, the Sub-Inspector of Police, Panadure, instituted criminal proceedings against the accused under section 148 (b) of the Criminal Procedure Code charging the accused with the commission of the offences which I have referred to. It is not apparent from the record whether summons was issued in the first instance, but I find that on the date on which the proceedings commenced, namely, June 27, 1949, the accused was present and pleaded "not guilty". The trial was fixed for August 29, 1949, and an order was made granting the accused bail in the sum of Rs. 750 with one surety. How a young man could have been expected to furnish such an excessive amount at such short notice pending his trial on bailable offences I fail to understand. As was to be expected, the accused was unable to furnish bail and he was accordingly remanded under section 289 pending his trial.

The warrant committing the accused to custody pending trial commanded the Fiscal to take the accused to the remand jail in Colombo to be kept there until August 29, 1949, on which date he was to be produced in Court. This warrant of committal is to my mind in direct contravention of the provisions of section 289 (2) of the Criminal Procedure Code. Under the section "No Magistrate shall remand an accused person to custody under section 289 for a term exceeding seven days . at a time save and except at such Magistrates' Courts as the Minister of Justice shall from time to time proclaim to be Magistrates' Courts at which longer remands may be made, when it shall be lawful to remand accused persons at any such Magistrates' Courts for a term not exceeding fourteen days". In the present case the learned Magistrate has thought fit to remand the accused to custody, in excess of the jurisdiction vested in him, for a period of two months.' Learned Crown Counsel concedes that this order was contrary to law.

On August 29, 1949, when the accused was produced in Court the trial was postponed until October. 31, 1949, as he was for obvious reasons unable to take the necessary s