Beyond Bars: Navigating Sri Lanka's Legal Landscape on Bail

This comprehensive group work, meticulously constructed by Group No. 18 of the Practical Training Group, delves into the
intricate realms of Sri Lanka's legal system, specifically focusing on crucial aspects related to bail procedures. Our exploration
encompasses a detailed analysis of the bail procedures concerning both bailable and non-bailable offences, the nuanced concept
of Anticipatory Bail, the intricacies surrounding Bail Pending Appeal, the consideration of Exceptional Circumstances, and a
thorough examination of the Applicability of the Bail Act to various offences. Additionally, our study sheds light on the
empowerment of the High Court, Magistrate Court, and the Court of Appeal to grant bail in specific penal offences. This
collaborative effort aims to provide a comprehensive understanding of the multifaceted landscape of bail within the Sri Lankan
legal framework
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 CONTENT

1. Bail Procedure pertaining to Bailable and Non-Bailable offences 1

by K.T.P Peiris, K.T.I.D Peiris and A.D.D.S Amarasinghe

2. What is Anticipatory Bail? 7

by Vishwa Wijekoon, R.M.E.G.C.P Manike and D.C.N Vithana

3. What is Bail Pending Appeal, what are the main features of Bail Pending

Appeal 10

by M. I. A. Cooray, C. H. Devaraja and. H. M. A. S. Gunawardane

4. Exceptional Circumstances 4

by Mahiya, Dhasnuhka Rodrigo and Sayuri Madhubhashini

5. Applicability of Bail Act Relating to Offences Committed 5

by Sachini Maleesha, Vihangi Liyanagamage and Mahoda Udari

Wickramasinghe

6. Offences which are empower to grant bail by Magistrate Court and High

Court and Court of Appeal 6

by T.M.Atapattu, K.P.G.R.Dheerarathna and H.A.M.S.S.Senanayake

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 BAIL PROCEDURE PERTAINING TO BAILABLE AND NON-BAILABLE
OFFENCES

What is a bail?
1. In criminal law, Concept of bail is highly considered and the bail is needed
to ensure accused’s presence at a criminal trial. The presence is necessary for trial
is concerned broadly, but succinctly, under the rules of natural justice, prime
concern is Audi alteram partem rule. That is; both parties must be heard for the
due administration of justice. Lack of this principle would lead to miscarriage of
justice. To ensure this principle, the accused’s presence of a trial is very essential.
Naturally, in a criminal trial, the accused’s liberty of free movement is under
consideration. If he convicted, he may be jailed, thus normal tendency of an
accused is to avoid the criminal trial than he faces it.

Right to Bail
2. The Bail Act No 30 of 1997 provides granting bail as the rule; refusal of bail
as the exception. In Ediriweera v A.G, three Court of appeal judges confirmed that
the rule is granting bail and exception is refusal of bail. Further, the Bail Act does
not specifically say that right to bail as of a right. But it says that;

‘Subject to the exceptions as hereinafter provided for in this Act, the guiding
principle in the implementation of the provisions of this Act shall be that the
grant of bail shall be regarded as the rule and the refusal to grant bail as the
exception’

3. When it come to the law relating to law the Bail, it mainly deals with three
categories of offences as follows:

a. Bailable offences.
b. Non Bailable offences.
c. 'No bail offences

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4. It is to be noted all offences under Penal Code have been categorized into
above first two segments of offences under the Code of Criminal Procedure Code of
Sri Lanka. Those offences are categorized in the first schedule of Criminal
Procedure Code as bailable or non bailable. At the bottom of the first schedule
describes how to categorize bailable or non bailable for other offences which do
not come under the Penal Code. It is based on penalty to the particular offence.
Thus, anyone can ascertain whether offence is bailable or non bailable. To
categorize the offence is so important as right to bail stems from this deviation.
Bail Act also provides same interpretation in its interpretation section. Therefore;
the Bail Act provides;

“A person suspected or accused of being concerned in committing, or having

committed a bailable offence, shall, subject to the provisions hereinafter
provided, entitled to be released on bail”.

Bailable Offences
5. bailable offences are being produced to courts and this counts the backlog
of court cases. Some must be sent for mediation under Mediation Board Act by
the OIC but practically these procedures are hardly done. Even if there is a power
to the police to grant a bail for a person who is suspected for a bailable offence
can be produced before the magistrate court without granting a police bail. This is
explaining under the proviso of section 6(1) of the Bail Act.

E.g.: Where the OIC of the police has opinion that there can be a public protest if
they grant the bail for accused who has done a particular offence. In that kind of
incident magistrate should be issued an order under section 7 or 14 of the Bail Act.

6. The identified bailable offenses under the Penal Code of Sri Lanka include
participating in an unlawful assembly, making false claims in court, and offenses
related to endangering life through negligence or rash behavior. Some of the
examples could be mentioned as Being a member of unlawful assembly1,Fales

1
Sec. 140, Penal Code.

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claim in court of justice2,Fails charge of offence made with intent to injured 3,Use
in the government stamps known to have been before used 4,knowingly disobeying
any quarantine rule5, Navigating any vessel so rashly or negligently to endanger
human life6. Attempt to commit culpable homicide 7, Attempt to commit suicide8.
Voluntarily cause in grievous hurt9 and Causing death by rash or negligent act10.

7. Section 6 of the bail act is important for the Bailable offences or Police Bail
offences. The Section 6 provides that the suspect shall be admitted to bail for
bailable offences. But in the practical scenario says different story. As of now,
offences come under Motor Traffic Act shall not grant bail by the police and
submitted before the Magistrate.

Bail Granting Procedure for Bailable Offences

8. As the law prescribed, any person who has done an offence non-other than
the no bail offence has right to get a bail from the police or any court which has
bail granting power. This is what explaining under the section 4 of Bail Act. When
it comes to the bailable offences the police and the magistrate have power to grant
the bail. it is important to focus on the process of the granting bail by police or
magistrate.

9. Officer in Charge of the police has power to release a suspect on a surety

bond. But he has to ensure that the suspect will appear before the court
procedure on given date. This surety bond can be a sum of money or a body
guarantee. This is the bail granting process by and OIC for a bailable offence. As
above mentioned, that sometime police officers are backward grant bail because of
some special circumstances. On that kind of situation, police may produce
suspect before magistrate court. Then the defense should make an application

2
Sec.206 of Penal Code
3
Sec.208 of Penal Code
4
Sec.255 of Penal Code
5
Sec.264 of Penal Code
6
Sec.273 of Penal Code
7
Sec.301 of Penal Code
8
Sec.302 of Penal Code
9
Sec.316 of Penal Code
10
Sec.298 of Penal Code

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before the magistrate court by highlighting the bail granting power of the
magistrate for the particular bailable offence, under existing laws. After receiving a
bail application by the defense, the magistrate shall examine whether there is a
possibility to grant a bail under by examine the objections of the prosecution as
well. This is what practically happening before the magistrate court when there is
a request to grant bail for a bailable or any other offence which magistrate has
power to grant bail.

10. Other than that code of Criminal Procedure Act also provides procedural law
relating to the bailable offences. Therefore section 402 of the CCPA states that it is
duty of a magistrate to grant bail for a person who has committed for a bailable
offense. If magistrate neglects to perform that law it will count as breach of law.
This has upheld in the case of Pathirana v OIC Nittambuwa case11.

Non Bailable Offences

11. According to the section 5 of Bail Act, court has inherent power to grant bail
to a suspect or an accused person for bailable and non Bailable offences subject
to the proviso of section 13 of Bail Act. Therefore; when there is an offence done by
a suspect or and accused person magistrate court shall examine whether it is a
non bailable or not. If a particular offence is a non bailable offence, then
magistrate may decide such offence is subjected to the proviso of section 13 of the
Bail Act.

12. According to Section 13 an accused person or suspected having been

involved or committed for an offence punishable with death penalty or imprisoned
for lifetime shall not be released on bail except by a high court judge. Therefore;
when there is a non bailable offence, magistrate has power only to examine
whether it is a non Bailable offence or not, but not to grant a bail except on
limited Circumstances12 That power is vested only upon to the high court judge.

11
Pathirana v OIC Nittambuwa 1 NLR 84 (1988).
12
Sec.403(1) of CCPA

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13. Some examples for the non – bailable offence could be mentioned as
Murder13, Voluntarily cause in grievous hurt by dangerous weapons or means 14,
Kidnapping15, Rape. (Sec. 364), Unnatural offences. (Sec. 365), Theft. (Sec. 367),
Extortion (Sec.373), Robbery. (Sec. 380), Criminal breach of trust. (Sec. 389), and
Cheating (Sec. 400).

14. The laws relating to the non bailable offences have concluded in bail act no
30 of 1997 and its basic procedure under Code of Criminal Procedure Act No: 15
of 1979 (CCPA).

Procedure to Grant a Bail for a Non-Bailable Offences

15. This has been concluded section 403 - 408 of CCPA. practically to grant a
bail for a non bailable offences Including the punishable offences under section
114, 191 and 296 under the penal code of Sri Lanka must refer to the relevant
high court to make such application defense should follow the below procedure. In
an application to grant a bail for a non bailable offense shall contain the following
documents respectively:
a. Motion- when there is a bail application to the high court the motion
should be the first document which should be submitted to the court. By a
motion petitioner shall request to the high court call the case the before
court on particular day to grant bail.

b. Affidavit- This is the second document according to the order and this
must be forwarded by petitioner by giving reason to grant the bail. At the
same time the petitioner promises to protect the condition in the bail. By
the affidavit, petitioner proves his identity as well.

c. Petition - This is the third document and this will forward by the
defense lawyer on behalf of the petitioner by giving to the reason to grant
the bail. Further the including of the petition is also similar to the affidavit

13
Sec.206 of Penal Code
14
Sec.317 of Penal Code
15
Sec.354 of Penal Code

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 but the difference is that, the petition forwards by the defense lawyer while
the affidavit forwards by the petitioner with his sign on a stamp.

d. Notice- This is the last document of a Bail application. It should be

forwarded to the respondent party as well. It simply notifies that responded
shall produce their objections the court for granting bail on a given day.

16. Practically, the copies of these documents should be sent to the respondent
while they submit to the court. Normally in a bail application the defense lawyer
shall include the strong reasons why the court should grant the bail for the
accuse. For example:

a. sometimes there may be false information in police reports including

B reports, Further reports, and RIB reports as well. If there are some other
accused in the same case who have already received bail.
b. If there are some persons like spouse, children and parents who
cannot survives without the support of the accuse.
c. If the accuse suffers from some serious health issues and it is harm to
life of the accuse to have a remand extension.

17. Therefore; on this kind of fair reasons defense can request to grant bail from
the relevant court. Further. when granting a bail judge must be focus on each and
every single reason and should grant on a reasonable ground.

No Bail Offences
18. There are some offences which cannot be entertained the right to have bail
and those are known as no bailable offences. These are generally called as No Bail
Offences in practice. For example, Offences under antiquities act no 24 of 1998
can be identified as No Bail Offences that the accused shall not entitled to get bail
form either Police or by the court at very first instances.

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 WHAT IS ANTICIPATORY BAIL?

19. The suspect is not arrested yet, but if the suspect anticipates that he might
get arrested, he seeks bail from the Magistrate Court soon after when he is
arrested by the police and it should be granted at the discretion of the Magistrate.
Anticipatory bail is only applicable to non-bailable offences, because for bailable
offences the suspect/accused is having bail as a right.

20. According to the Section 21 of the Bail Act, it states Where a person has
reason to believe that he may be arrested on suspicion of having committed a non-
bailable offence, he may apply to the Magistrate's Court for an order that he be
released on bail if he is arrested on those charges. Before making the request, a
notification should be made to the officer in charge of the police station of the
relevant area related to the offence. Further, the section 21 (2) of the Bail Act
requires along with the request so made, the applicant must also submit an
affidavit.

21. Further, Section 21(3) of Bail Act states that when the request is made to
the court, a date not more than 7 days from the date of the request should be
fixed for hearing the request.The applicant and the respondent should be
informed about it and Section 21 (4) states that on the day of examination, after
hearing the facts from the applicant and the officer in charge of the police station,
an order should be made immediately regarding the request and the facts should
be recorded.

22. In the case of Ruwan Gunasekara v Ravi Karunanayaka, The petition

argued that the magistrate could not have enlarged the respondent on
anticipatory bail as the Bail act had no application to a person suspected of
having committed an offence under Offences against public property Act.

23. The Section 22 of the Bail act provides that court may grant Anticipatory
bail upon satisfying the following conditions those should be included in the
judicial desire to grant anticipatory bail:

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 a. Prohibition of the applicant from leaving the country.
b. Sections for which anticipatory bail is granted for non-bailable
offences.
c. The nature of the applicant's submission after his arrest.

24. Moreover, Section 23 of the Bail Act states after the court has fixed the
Anticipatory bail, when the applicants are arrested for the offense mentioned in
the order, the applicants should be released on bail immediately when the
applicant furnishes the bail as mentioned in the order. Further, Section 24 is
important and states that when a person who obtained the Anticipatory bail must
proceed as follows:
a. The police should appear for questioning as and when called. The
questioning should not be conducted between 6 pm and 6 am.
b. Witnesses should not be motivated or threatened. The process of
justice should not be obstructed.

25. When a pending bail application is pending, the police can take the
following actions regarding the applicant according to Section 25. Questioning the
applicant regarding the offence. Obtaining a warrant from the court for the arrest
of the applicant. According to the Section 26, even after the expected bail has been
given, the court may issue a warrant for the applicant to appear in court at the
request of the officer in charge of the police station investigating the relevant
offence. Also, the Magistrate can cancel or modify the order of anticipated bail at
any time for reasons reported to the Magistrate.

Can Anticipatory Bail be Applied for a Murder Suspect?

26. Murder is a non bailable offence under section 5 of the bail act. Since the
offence is punishable by death sentence, bail can be applied only from High Court
according to section 13 of the bail act. Therefore, there cannot be an anticipatory
bail application in the MC for a murder suspect.

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 WHAT IS BAIL PENDING APPEAL AND WHAT ARE THE MAIN FEATURES OF
BAIL PENDING APPEAL?

27. Post-Conviction Bail or Bail Pending Appeal arises in a situation in which a

person having being tried by a competent court, found guilty, and convicted,
subject to Section 303 (Suspended Sentence) and Section 306 (Conditional
Discharge) of CCPA, No. 14 of 1979, the accused may appeal. In such situation
bail pending appeal is necessary as the convict has the requirement to instruct his
Attorney-at-Law in confidence.

Bail Pending Appeal against Judgment of Magistrate’s Court

28. Section 19(1) of Bail Act – where an appeal against acquittal by Magistrate’s
Court is preferred, the court shall issue warrant directing accused to be arrested
and brought before it and commit him to prison pending determination of appeal
or release him on bail. Section 19(2) of Bail Act - where an appeal against
conviction by Magistrate’s Court is preferred, court may, taking into consideration
the gravity of offence and antecedents of accused, refuse to release appellant on
bail.
29. In the case of AG v. Letchchemi it was deicided that Gravity of offence, and
breach of presumption of innocence requires exceptional circumstances to be
adduced. Further in the case ofKing v. Cooray; AG v. Keerala & AG v. Punchirala it
was held that bail pending appeal is generally not granted, as a general rule,
where the sentence is in excess of 3 years based on the likelihood that the
accused may abscond upon the grant of bail.

30. Section 19(3) of Bail Act – where an appeal against conviction by

Magistrate’s Court is preferred, the appellant may be released on bail upon
entering into recognizance in such sum, with or without sureties, or giving other
security, which the Appellate Court thinks fit, by deposit of money in court.

Bail Pending Appeal against Judgment of High Court

31. Section 20(1) of Bail Act states that where an appeal against acquittal by
High Court is preferred, the court shall issue warrant directing the accused to be

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arrested and brought before it and may commit him to prison pending
determination of appeal or be released on bail. Further, the Section 20(2) of Bail
Act states where an appeal against conviction by High Court is preferred, the
court may release the appellant on bail pending determination of appeal. however,
Provided, under Section 20(3) of Bail Act, where the accused is sentenced to
death, the execution shall be stayed and the accused shall be kept in prison
pending determination. Where appellant is not released on bail pending
determination of the appeal, he shall be treated in a manner prescribed by rules
under Prisons Ordinance.

32. There is no statutory requirement of statutory requirement of exceptional

circumstances has been spelt out in Bail Act, but superior courts have always
looked for exceptional circumstances in post-conviction bail applications as a rule
of prudence. Ramu Thamotherampillai v. AG – exceptional circumstances were
held to be essential. The exceptional circumstances recognized under this case
are:

33. serious nature of charge with which the petitioner is charged with severity
of punishment and consequent temptation to abscond. In the case of Salanudeen
v. AG,a it is a settled principle now that bail pending appeal will only be granted in
exceptional circumstances. Section 20(4) of Bail Act states time spent in remand
prison or at large on bail is not considered as part of any term of imprisonment.

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 EXCEPTIONAL CIRCUMSTANCES IN A CONTESTED BAIL APPLICATION

34. Bail Act No 30 of 1997 does not specifically define the term “Exceptional
circumstances”. Nevertheless, the term is decided as per case by case basis such
as upon the facts and circumstances of each case. This can be seen in the
decision of Ramu Thamodarampillai vs The Attorney General 16 where His Lordship
Vythlialingam, J held that,

“the decision must in each case depend on its own peculiar facts and
circumstances.”

35. According to the Section 5 of the Bail Act, it infers that Bail Act
recognizances the discretionary of the court to grant bail. Further, in the section
16 read together 17 states that:

‘Subject to the provisions of section 17, unless a person has been convicted
and sentenced by a court, no person shall be detained in custody for a period
exceeding twelve months from the date of his arrest’ and on application
made in that behalf by the Attorney General at, the High Court Holden in
any zone or a High Court established under Article 154P of the
Constitution may, for good and sufficient reasons that shall be recorded,
order that a person who has not been convicted and sentenced by a court,
be detained in custody for a period in excess of twelve months’

36. In the case of Moragoda Hettiarchchlage Jayawathi v AG17 Basnayake J held

that the ground that can be used not grant bail refers to the Section 14 of the Bail
Act. However, this stance was challenged in the decision W R Wicramasighe v AG18
Sisira Abru J was of the different opinion and held that the maximum time period
that an accused kept in remand prisons is twelve month unless AG has made no
application for the extension.
37. In the case of Exceptional Circumstances, it was held in the case King v
Keerala19 it was held that when appealing against the conviction, there shall be
Exceptional Circumstances in granting bails by the courts. In the case of King v
16
SC 141/75 (2004) 3 SLR 180.
17
CA Application No 189/2004
18
CA (PHC) APN 39/2009 (HC Negambo HSAB 490/2006)
19
48 NLR 202.

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Coorey et al20 it was held that Exceptional Circumstances could be having many
accounts and several productions, the critical health condition of the accused and
the less possibility that accused could avoid appearing in the court. However, in
the case of Muthirettiti v Queen21 the complex nature of the evidence may not be
exceptional circumstances to grant bail. Further, in the case of Queen v
Koronaris Silva22 it was held that the education of the children and providing
other needs of the children and reason that a accused cannot find money to
appeal could not be considered as the exceptional circumstances. Further in the
case of Thamodara Pillei v AG23

38. Exceptional circumstance is a highest threshold that a person applying for

bail must achieve. Exceptional circumstances have to be shown where a bail
application has been refused or rejected by the courts for some serious offences
which fall under Offences Against Public Property Act-section 8(2), Prevention of
Terrorism Act No 48 of 1970, Immigration and Emigration (Amendment) Act No 31
of 2006, Opium & Dangerous Drugs Ordinance, Antiquities Ordinance No 09 of
1940, Offensive Weapons Act, No. 18 of 1966, Bribery (Amendment) Act, No. 20 of
1994, Prohibition of Ragging and Other Forms of Violence in Educational
Institutions Act No: 20 of 1998 are important. Other than that, penal offences
such as murder, rape and in case if he has committed any offence against the Bail
Act whilst he is in bail also fall under in these instances, accused has the burden
of satisfying the court as to the existence of exceptional circumstances.

39. The exceptional circumstances in particular are of different in nature. If he

is in the custody, he has to bring in exceptional circumstances to show why his
remand in custody was not justified. The Defense Counsel can rely on some
strategical grounds such as client’s intellectual ability (ill health and age), his
personal circumstances, family hardships, stable employment, previous
compliance with bail, availability of support services, inordinate delay in
conducting investigation, character, victim forgiveness, extreme provocation and
so on. It is important to note that even if an Accused shows exceptional
20
51 NLR 360
21
54 NLR 493
22
74 NLR 113
23
SC Application No: 141/75.

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circumstances, under section 14 of the Bail Act it is still possible for the court to
refuse bail if court has sufficient reasons to believe that such person would not
stand his inquiry or trial, interfere with the witnesses or obstruct the course of
justice, commit an offense whilst on bail, gravity of the offence and public
reaction. However, the court is bound to record reasons for such refusal as per
section 15 of the same.

APPLICABILITY OF BAIL ACT RELATING TO OFFENCES COMMITTED

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Applicability of the Bail Act relating to Offences Committed
40. The Bail Act in Sri Lanka, like in many jurisdictions, governs the granting of
bail to individuals who have been accused of committing offenses. The
applicability of the Bail Act typically extends to various offenses, and the criteria
for granting bail may vary based on the severity of the offense, the likelihood of the
accused appearing for trial, and other relevant factors.

Applicability of the Bail Act

41. The Bail Act mainly applies to two types of offences namely, “Bailable” and
“Non Bailable “offences: S. 4 – A person suspect / accused of committing a
Bailable offence is entitled to be released on bail. S. 5 – Subject to the provisions
of s. 13 – a person suspected / accused of a Non-Bailable offence can be released
on bail at any time at the discretion of court.

42. Accordingly, Definition of “Bailable offence” in Section 29 of the Bail Act. –

“means an offence which is described in column 5 of the 1st schedule to the
criminal procedure code or by any other law as being bailable;

For example: theft, causing hurt, defamation and “non-bailable offence” means an
offence which is described in column 5 of the 1st schedule to the criminal procedure
code or by any other law as being non-bailable; ‘For example: rape, murder,
kidnapping’.

43. One the other hand, the in application of the Bail Act is provided
for in the Section 3 of the Enactment. While the English version of Section 3
of the Act reads as follows;
“S. 3- Bail Act does not apply to a person suspected / accused of having
committed an offence under
(a) Prevention of Terrorism (Temporary Provisions) Act no 48 of 1979
(b) Emergency Regulations
(c) Any written law which makes express provision regarding the granting of
bail where S(suspect) is accused of having committed an offence under that
law”

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44. A few examples of the written laws are as follows, Offences Against Public
Property Act (OAPPA) – if an offence is committed under the OAPPA in respect of
public property of Rs. 25,000 – Suspect will not be granted bail until conclusion of
trial. (arguably the Bail Act does not apply to offences under OAPPA). Further
Section 83(1) of Poisons opium and Dangerous drugs ordinance (PODDO) will
apply to bail where offences under section 54A are concerned. Other offences are
governed by the Bail act and Section 44(A) of the Firearms Ordinance

45. There comes a discrepancy in the corresponding section in the Sinhala

version of the Act which reads; S.3 - Bail Act does not apply (a) to Prevention of
Terrorism Act (b) to Emergency Regulations and (c) where any other law provides
for the granting of bail for an offence committed under PTA & Emergency
Regulations.

46. In AG Vs. SHIYAM 2006 2 SLLR 156 – the SC held that the provisions of the
Poisons Opium and Dangerous Drugs Ordinance also would come within the
purview of “any other written law” stated in section 3 (1) of the Bail Act and
therefore the provisions of the Bail act would have no application to PODDO. This
was a case where a bail application under Section 83(1) of the PODDO was filed to
obtain bail for committing an offence under section 54A of the said act for the
possession of 9kg of Heroin. However, as per the above discrepancy arising in the
mismatch of Section 3 in the English and Sinhala versions, the Sinhala version
prevails as per the AG Vs. THILANGA SUMATHIPALA (SC-Full bench) 2006 2
SLLR 126 – Section 47(1) of the Immigration and Emigration Act Prohibited bail
pending trial to a person charged under section 47 of the Act. Sc held that it has
no power to grant bail in such situation. Earlier the Judgment of Justice Sripavan
(majority decision) in CA had held that on the basis of violation of Fundamental
rights of the petitioner been violated bail should be granted by a superior court.
Further in the case of KASTHURIARACHCHI V. THE REPUBLIC also debated this
issue in it.

47. Offences against Public Property Act No. 12 of 1982. Section 8 (1) of the Act
specifically states that the provisions of the CCPA in relation to Bail is applicable

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even to offences under this Act. However in the light of the provisions of Section 3
(a) of the Bail Act No 30 of 1997 the present legal position is that the Bail Act
would not apply to persons produced in respect of offences under this Act, where
the value of the subject matter exceeds Rs 25,000/= and further if there is a
certificate by a gazette officer to that effect, then the court has to keep such
person in custody until the conclusion of the trial and hr may be released on Bail
only in exceptional circumstances.

48. And Section 8(2) states that once a person is convicted of an offence under
this Act, notwithstanding that he has lodged an appeal either against the
conviction or against the sentence, such person shall be kept in remand until the
determination of the appeal and also if exceptional circumstances are established
then such person can be released on Bail pending appeal.

49. Offensive Weapons Act No. 18 of 1966. Section 10 states that no person
charged with, or accused of, an offence under this Act, shall be released on Bail
except on the order of High Court of the Province established under Article 154P of
the Constitution. In that case person who is remanded by a Magistrate in respect
of an offence under this act, the Court of Appeal would be extremely cautious
in granting Bail.

OFFENCES WHICH ARE EMPOWER TO GRANT A BAIL BY MC BY, HC BY,

COA – PC OFFENCES

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Offences which are empower to grant a bail by Magistrate Court

50. Code of criminal procedure no 14 of 1979, Section 402: When any

person other than a person accused of a non-bailable offence appears or is
brought before a court and is prepared at any time at any stage of the'
proceedings before such court to give bail such person shall be released on bail:
Provided that the court if it thinks fit may instead of taking bail from such person
discharge him on his executing a bond without sureties for his appearance as
hereinafter provided. Held in Pathirana and others vs nittabuwa police OIC
Section 403(1) : A Magistrate or a Judge of the High Court, at any stage of any
inquiry or trial, as the case may be, may in his discretion release on bail any
person accused of any non-bailable offence: Provided that a person alleged to have
committed or been concerned in committing or suspected to have committed or to
have been concerned in committing, an offence punishable under section 114, 191
and 296 of the Penal Code shall not be released, at any stage of any inquiry or
trial, except by a Judge of the High Court.

51. It was held in the case of Anurudda rathwatte and others vs Attorney
General. Section 403(3) (1): such person shall not be released on bail except by a
Judge of the High Court. Where a person is committed by the Magistrate for trial
for any other non-bailable offence under the Penal Code, such Magistrate may in
his discretion release such person on bail. It has stated in the case of Benwell vs
AG Section 404: The amount of every bond executed under this Chapter shall be
fixed with due regard to the circumstances of the case and shall not be excessive;
and notwithstanding anything to the contrary in this Code or any other law the
Court of Appeal may in any case direct that any person in custody be admitted to
bail or that the bail fixed by the High Court or Magistrate be reduced or increased,
or that any person enlarged on bail by a Judge of the High Court or Magistrate to
be remanded to custody. Queen vs koranalis silva & Benwell vs AG.

52. Section 406 (1): (1) As soon as the bond has been executed the person for
whose appearance it has been executed shall be released; and when he is in
prison the court admitting him to bail shall issue an order of release to the officer
in charge of the prison and such officer on receipt of the order shall release him.

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Section 406 (2): Anything in this section, section 402, or section 403 shall not be
deemed to require the release of any person liable to be detained for some matter
other than that in respect of which the bond was executed.
More over section 408 of the code of criminal procedure containing laws
regarding the sureties. The criminal procedure code amendment no 4 of 1993 has
been affected to the section 402 and 403.Bail Act no 30 of 1997. In the bail act
of Sri Lanka, it has also mentioned the sections relating to the offences which can
be sought bail by the magistrate court. In this caseSection 4, Section 5 and
Section 13 are significant

Other laws that containing laws about offences which empower to grant a
bail by magistrate court.

53. When a person has committed any offence, which is punishable under
section 78 of poisons, opium and dangerous drugs act can be sought bail by
magistrate’s court. Under the firearms ordinance of Sri Lanka, bail can be
sought in the Magistrate’s court when charged with possession of a non-automatic
firearm. Bail can be sought from the magistrate’s court when accused under other
sections except under section 45 (c) of the immigration (amended) act no 42 of
1998. Under section 30 (a) (1) (b) of the Bribery Act no 11 of 1954, bail may be
sought from the magistrate’s court when charged by affidavit. A person in custody
under the emergency regulations can also request bail from the magistrate’s court
with the written approval of the attorney general.

Offences which are empower to grant a bail by High Court

54. The provisions of Section 20 of the Bail Act apply to consideration of bail
after appeals against the guilty verdict or sentence given by the High Court.
Section 20 of the Bail Act reads as follows of doing: Section 20(1) where an
appeal is taken against an acquittal by a High Court the High Court may issue a
warrant directing that the accused be taken into custody and brought before the
Court and keep him in custody pending the hearing of the appeal or release him
on bail or that can be done by the court. When the High Court appeals against a

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conviction bail is considered in two ways.Sections 20(2) and 20(3) of the Bail Act
are relevant in that regard. Sections 20(2) and 20(3) of the Bail Act read: S.20(2)
Where an appeal is taken against a conviction by a High Court, the High Court
may release the appellant on bail subject to sub-section (3) pending the
determination of the appeal. Appeal of appellant not released on bail pending the
decision such appeals shall be dealt with in the manner prescribed by the rules
made under the Prisons Ordinance. Section 20(3) where the accused has been
sentenced to death, the execution of the sentence shall be suspended and he shall
be remanded in prison until the appeal is decided. Section 20(4) of the Bail Act is
very important to the law of criminal procedure. According to that section if an
appellant in custody is remanded in jail without bail, that period shall not be
deducted from the term of imprisonment. Section 20(4) of the Bail Act states that
fact as follows. Section 20(4) if the appellant remains in custody during the period
during which an appellant is released on bail pending the determination of his
appeal (subject to any provision to the contrary made by the court to which the
appeal is made in respect of any appeal) he shall be treated as an appellant
especially under this section. The period should also not be treated as part of any
period of imprisonment under the sentence imposed on him. And if the appeal has
been submitted to any court even under the penal terms imposed by the High
Court the appellant’s imprisonment may be resumed or commenced as the case
may be subject to the orders or orders of the court from which the appeal was filed
if the appellant is in custody.

55. Decide the appeal if the appellant is not in custody from the date of receipt
it shall be deemed to have taken place from the date of his admission to prison
under the Penal Code. Prior to formalizing the law related to these matters in the
Bail Act only the provisions of the Code Act related to criminal proceedings.
Section 333 of the Criminal Procedure Code was relevant. Section 333 of the
Criminal Procedure Code reads: S.333(1) when the court accepts the appeal, all
further proceedings in that case must be stopped and the appeal must be
submitted to the Court of Appeal as soon as possible along with the case report
and eight copies thereof and the notes of evidence taken by the judge.Section
333(2) when an appeal is filed against an acquittal, the court may issue a warrant

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ordering the accused to be brought before the court and remand him in prison
until the appeal is decided, or the court may release him on bail.

56. Section 333 (3) Where an appeal is filed against a conviction the High
Court may subject to sub-section (4) release the appellant on bail pending the
determination of the appeal. Until the appeal of an appellant who has not been
released on bail is decided, the rules made under the Prison Ordinance shall deal
with that appellant in the manner prescribed. Section 333(4) Execution of death
penalty in case the accused is sentenced to death shall be suspended and until
the appeal is decided he shall be treated in such manner as may be prescribed by
rules made under the Prisons Ordinance. Section 333(5) If an appellant is in
custody during the period during which an appellant is released on bail pending
the determination of his appeal, (subject to any direction to the contrary made by
the Court of Appeal in respect of any appeal) the period during which he is treated
as an appellant specially under this section and the penalty prescribed for him
shall not be treated as part of any period of imprisonment under the Act. And the
resumption or resumption of imprisonment of the appellant under the sentence
imposed by the High Court or under the sentence imposed by the Court of Appeal
subject to the orders or orders of the Court of Appeal as the case may be if the
appellant is in custody from the date of the decision of the appeal and sentence if
the appellant is not in custody shall be deemed to have taken place from the date
of his admission to prison under.

57. The case of Yusuf v. Attorney General (2003 - 3 Sri Lanka 229) is an
important one related to the scope of these sections. It was decided in this case
that the High Court has the right to consider bail where the granting of bail to an
appellant is not barred by an Act and that the High Court has the right to
consider bail to a person convicted under Section 54(a) or 54(b) of the Poisonous
Opium and Dangerous Drugs Act. It was In the case of Jayanthi Silva v.
Attorney General (1997-3 Sri Lanka 117) a High Court refused to grant bail to
an appeal. Although possible the cases were explained. The Court of Appeal held
that the refusal to grant bail to the High Court must be based on reasonable
grounds. In cases where the High Court has refused to grant bail to an appeal an

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application for bail can be made to the Court of Appeal. In such a case, the Court
of Appeal will intervene to grant bail only on exceptional grounds. That was
decided by the Court of Appeal in the case of Ediriweera v. Attorney General
(2006 - 1 Srila Niva 25). The majority decision of the appellate court was that it
may take a long time to hear the appeal and the fact that the appellant has a
disease that cannot be treated in the prison hospital can be accepted as
exceptional reasons.

Offences which are empower to grant a bail by Court of Appeal.

58. When appeal against a conviction is lodged in a High Court, and if the bail
is not granted it can be taken to the Court of Appeal. Then it’s the discretion of the
judges of Court of appeal to grant bail on the appeal. An appellant who is not
admitted to bare shell pending the determination of the appeal be treated in such
manner as may be prescribed by the rules made under the prison ordinance.
As held in Ediriweera v AG 2006 (1) SLR 25 , it is a settled principle that the
release of a person on a bail pending appeal to the Court of Appeal will only be
granted in exceptional circumstances. The Court of appeal have the power to grant
bail for the offenses mainly relating to bombs under the Firearms Ordinance,
while for the offenses relating to automatic weapons in the firearms ordinance the
High court also have the power to grant bail.

CONCLUSION

59. Bail in Sri Lankan criminal law, governed by the Bail Act, emphasizes the
presumption of granting bail for bailable offenses, allowing police or magistrates to

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release suspects, while non-bailable offenses require approval from a high court
judge, and certain offenses are deemed "no bail" under specific legislation.
Anticipatory bail in Sri Lanka applies to non-bailable offenses, allowing
individuals to seek pre-arrest bail from the Magistrate Court. Governed by the Bail
Act, the process involves notifying the police, submitting an affidavit, and
attending a hearing within seven days. Conditions for granting anticipatory bail
include travel restrictions and compliance after arrest. However, for murder, a
non-bailable offense, anticipatory bail can only be sought from the High Court due
to the potential death penalty, as specified in the Bail Act.

60. Bail Bail Pending Appeal, sought after a conviction, involves distinct
processes for Magistrate's and High Court cases in Sri Lanka, requiring
exceptional circumstances, particularly for sentences over three years. The term's
case-specific nature includes factors like gravity of the offense and the risk of
absconding. Section 14 of the Bail Act allows refusal based on public safety and
witness interference. Exceptional Circumstances, vital in contested bail
applications, lack a strict definition, necessitating a case-by-case evaluation. The
court's discretionary power, highlighted in Section 5, is pivotal, and Sections 16
and 17 set a 12-month custody limit pre-conviction. Despite exceptional
circumstances, the court may deny bail if it perceives a risk. The Bail Act covers
various offenses, differentiating between bailable and non-bailable ones, with
exceptions for specific laws. The High Court and Court of Appeal play crucial roles
in bail decisions for appeals, stressing the importance of exceptional
circumstances.

Complied by
W. Dhanushka Siranjan Rodrigo and Mahoda Udari Wickramasinghe

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