Kolugala V. Superintendent Of Prisons

1961 Present: T. S. Fernando, J.
W. S. KOLUGALA and another, Petitioners, and THE SUPERINTENDENT
 OF PRISONS, COLOMBO, and
others, Respondents

S. C. 339 of 1960 and 117 of 1960-Applications for a Writ of Habeas
 Corpus for the, production of Loku Banda Kolugala and for a Writ of Certiorari
 on a Tribunal constituted under Section 70 of the Prisons Ordinance.

Suspension of sentence by Governor-General-Subsequent cancellation thereof-Arrest of sentenced person when at large-Requirement thereafter of order of remand by Magistrate-Illegal sentence of imprisonment by a Prisons Tribunal-Liability to be quashed by Certiorari-Prisons Ordinance (Cap. 44), s. 70-Criminal Procedure Code, ss. 36, 37, 328 (3).

     Where a person who is at large within the meaning of section 328 (3) of the Criminal Procedure Code is arrested by a police officer without a warrant, a subsequent detention of that person in prison without an order of remand by a Magistrate's Court is not lawful. In such a case, if the arrested person escapes from prison and is subsequently tried and sentenced by a tribunal constituted under section 70 of the Prisons Ordinance (Cap. 44) on a charge of escaping from lawful custody, the order of the tribunal is liable to be quashed by a writ of certiorari.

APPLICATIONS for a writ of habeas corpus and a writ of certiorari.

                         Colvin R. de Silva, with Siva Rajaratnam, B. J. Fernando and H. E. P. Cooray, for the petitioner in each Application.

                      R. S. Wanasundere, Crown Counsel, for the respondent in Application No. 339 and as amicus curiae in Application No. 117.

Cur. adv. vult.

January 5, 1961. T. S. FERNANDO, J.-

       Of these two applications, the habeas corpus application was argued before me on December 7, 1960, and, at the conclusion of that argument, it became apparent to me that no effective order could be made thereon until I had heard argument on a connected application, viz., application No. 117 of 1960 which sought a mandate from this Court in the nature of a Writ of Certiorari quashing an order made by a Prison Tribunal which had found the petitioner L. B. Kolugala guilty of escaping from lawful custody and had sentenced him to serve a term of two years' rigorous imprisonment thereon. Accordingly, argument on the certiorari application was heard by me on December 16, 1960.

        The habeas corpus application has been presented by the wife of L. B. Kolugala referred to above and canvasses the legality of her husband's detention in prison. It is necessary to set out the circumstances in which he comes to be so detained.

        Kolugala was found guilty in D. C. Kandy (Criminal) Case No. 614 of having committed certain offences and was sentenced by that Court to undergo a term of two years' rigorous imprisonment. An appeal to the Supreme Court having proved unsuccessful he was committed by the District Court of Kandy on 5th August 1958 to serve the period of two years' imprisonment. A copy of the relevant warrant of commitment has been produced in the present proceedings and is marked R1. He sought to apply to Her Majesty in Council for special leave to appeal against his conviction and sentence, and for that purpose obtained from His Excellency the Governor-General on 8th August 1958 a suspension of the execution of his sentence on certain conditions which are set out in the order of suspension of execution of sentence, a copy of which is markedR4 This order was effective for five weeks from 8th August 1958, and successive orders of suspension of execution of sentence were made by the Governor-General, copies of which are marked R5, R6, R7 and R8. It will be sufficient if I refer only to the last of these orders, viz., R8, which was made on 8th December 1958 and which was operative "up to and including 17th December 1958 or until the date on which it is known whether special

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