1964 Present: Alles, J.

MRS. S. KANAPATHY, Petitioner, and W. T. JAYASINGHE (Controller
 of Immigration and Emigration) and another, Respondents

S. C. 501/64-Application for a Writ of Habeas Corpus and for
Bail pending the determination of the Application

Bail pending habeas corpus proceedings-Incapacity of Court to grant it-Immigrants and  Emigrants Act (Cap. 351), ss,15 (a), 28(a).

          During the pendency of an application for a writ of habeas corpus, an application for bail in respect of the corpus cannot be entertained.

             Accordingly, a person who is detained under the provisions of the Immigrants and Emigrants Act will not be admitted to bail pending the hearing of an application made on his behalf for a writ of habeas corpus.

APPLICATION for bail pending the determination of an application for a writ of habeas corpus.

                     M. Tiruchelvam, Q.C. with V. Kumaraswamy and M. Amerasingham, for the petitioner.

                    G. G. D. de Silva, Grown Counsel, for the respondents.

Cur. adv. vult.

 September 8, 1964. ALLES, J.-

            When this application was listed before me on 4th September 1964, Crown Counsel asked for two weeks' time to file affidavits. Counsel for the petitioner thereupon made an application that the corpus who had been detained under the provisions of Sections 28 (a) of the Immigrants and Emigrants Act (Cap. 351) for a contravention of Section 15 (a) of the said Act, be released on bail pending the determination of the application for habeas corpus by this Court. In view of Crown Counsel's application for time to file affidavits, I was inclined to forward the application for bail to the Magistrate so that he may consider whether this was an appropriate case in which bail should be granted and if so the quantum of bail on which the corpus should be enlarged. In making his application for bail, Counsel for the petitioner brought to my notice that in similar circumstances, my brother Tambiah, J., had released the corpus on bail-(vide Habeas Corpus Application No. 78/64 ; S. C. Minutes of 12/3/64). In that case, the question that was considered by my brother was the effect of the provisions of Section 46A of the Immigrants and Emigrants Act as amended by Act No. 68 of 1961, and inasmuch as the corpus had not been charged with any offence to make Section 46A applicable, my brother felt justified in releasing the corpus on bail. But the more important question is, whether in any event, an application for bail, as that term is understood in our law, can be entertained in habeas corpus proceedings. I have had the advantage of the assistance of Counsel on both sides in deciding this question, and at the conclusion of the argument, I made order refusing the application for bail and stated that I would give my reasons later. I now set out the reasons for the order that I have made.

           According to Halsbury, " the writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody ". (Vol II p. 26, Simonds Edn.) It is therefore essential that any application for habeas corpus should be considered by the Court as expeditiously as -possible. Inasmuch as the complaint is one of unlawful detention, the party making the application would be equally interested in having the matter brought up before the Courts with the least possible delay in order to terminate the alleged unlawful detention. If, therefore, pending the hearing of the application the corpus is released on bail without the merits of the application being

considered, a fortiori, the party making the application for habeas corpus would have succeeded in the application without the Court considering whether the detention was lawful or not. It seems to me there fore that, in an app