Punishment and bail on exceptional circumstances | Daily News

Punishment and bail on exceptional circumstances

In general, public property means any property which can be utilized by the general public without any payments or can be used commonly on payments. but sometimes common people use the term of public property as any property which are belonged to the Government or State.

Under a legal point-of-view and the Offences under the Public Property Act, public property is given a different meaning as it is a question of legal issue if any person commits an offence against public property. Therefore, it's pertinent to study the what public property is, what are the offences committed against the public property, how to grant bail for offenders and what sentences can be imposed against the offences committed on public property.

As an ordinary citizen, everybody should have a general understanding about the law, as no one can say that they were not aware of the law after committing the offence; therefore, before coming to comprehensive study, we first look at the provisions of the offences against the Pubic Properly Act and its amendments.

This law was first enacted as Offences Against Public Property Act No. 12 of 1982 and amended subsequently by Offences Against Public Property [Amendment] Act No. 28 of 1999.

What is Public Property?

Under Offences Against Public Property Act No. 12 of 1982, public property is interpreted as follows;

“'Public property' means the property of the Government, any department, statutory board, public cooperation, bank, co-operative society or co-operative union.”

Any State property is public property, but there are some exceptions to the property of the State and other State institutions. In this context, any property belonging to a public cooperation is considered as public property, but if the public cooperation is established under the Companies Act, the said property is not considered as public property, even if the government holds the full ownership.

The constitution and the Offences Against Public Property Act No. 12 of 1982 have given same interpretation to public cooperation as follows’

“Public cooperation means any cooperation board or other body which was or is established by or under any written law other than the Companies Ordinance with funds or capital wholly or partly provided by the Government by way of grant loan or otherwise.”

As per this interpretation, properties of public co-operations which are established under the Companies Act are expressly excluded under the Offences Against Public Property Act. For example, in the present world, we can see several co-operations established under the Companies Act as co-operations for smooth economic functions such as Ceylon Fertilizer cooperation, Lanka Sathosa and similar institutions, in that event we have to ascertain as to how or under what provisions the public institutes are established.

If banks are concerned under this Act, properties belonging to State banks are considered as public property and properties of the co-operative society, or co-operative unions, registered under the Co-operative Society Act No. 5 of 1972, are considered as public property.

What are the offences under Offences Against Public Property Act No. 12 of 1982?

Under Section 2, 3, 4 and 5, Offences Against Public Property Act No. 12 of 1982 are:

i. Misuse of public property- Section 2

ii. Theft of public property- Section 3

iii. Dishonest misappropriation, criminal breach of trust, cheating, forgery, falsification of accounts.

What are the sentences given for the offences?

Under Section 2, 3, 4 and 5 Offences Against Public Property Act No. 12 of 1982, any person who commits the above offences shall be punished by imprisonment for a term not less than one year, but not more than twenty years with a fine of Rs. 1,000 or three times the value of the property.

Bail under Offences Against Public Property Act No. 12 of 1982

Any person charged under this act shall not be released on bail until the trial has concluded, but the Magistrate Court has power to grant bail to a suspect on exceptional circumstances, while the person suspected or charged is in remand. In that event, a Police Officer not below the rank of Assistant Superintendent of Police has to file a certificate stating that the value of the property of which the offence committed is more that Rs 25, 000, but Police sometimes does not to file the said certificate, if the value of the property is below Rs 100,000.

As per the case Ravi Karunanayake vs Ruwan Gunasekera CA/MC Revision 05/2004 decided on 13/01/2055, provision of the Bail Act is applicable to offences under this Act also.

It is also stated in Section 8 (2) of the Offences Against Public Property Act No. 12 of 1982 that the offender should be kept in remand until the appeal is concluded and bail can be granted only in exceptional circumstances in that event.

Now, due to the development of the sentencing system, the Court is empowered to impose a lesser sentence or suspend the sentence under this Act, notwithstanding the minimum mandatory sentence.

What are the Exceptional Circumstances considered for granting bail under Offences Against Public Property Act No. 12 of 1982.

Our law has given broad interpretation for the term exceptional circumstances in granting bail in several decided cases and it should be decided as per the facts and circumstances of the case.

The usual considerations taken into account by Courts on granting bail or remanding are decided in case 'Queen vs Liyanage 65 NLR 289' and as follows;

a) The nature of the crime: is it a serious or trifling one?

b) The severity of the punishment

c) The nature of evidence and consequently, the probability of conviction

d) The record of the accused: whether there are pending cases or previous convictions

e) Long period of remand without charges being framed

f) Trivial nature or the value of the subject matter

g) Any undue family handicaps or hardships supported with documentation

h) The unlikelihood of accused absconding or interfering with witnesses

i) Where investigations are completed.

In considering bail, our Courts exercise wide discretion to decide exceptional circumstances. The Court can grant or cancel a subsisting order, releasing such a person on bail if the Court has reason to believe that such person would

i) Not appear to stand his inquiry or trial

ii) Interfere with the witnesses or the evidence against him or otherwise obstruct the course of justice

iii) Commit an offence while on bail

or

iv) That the particular gravity of and public reaction to the alleged offence may give rise to public disquiet.

In the five-judge bench decision of the Supreme Court in Anuruddha Ratwatte and others vs. Attorney General, 2003 - 2 SLR ( Sri Lanka Law Reports) page 39, it was said that even in a day-to-day trial at a Trial-at-Bar in the High Court, if the accused was enlarged on bail prior to the commencement of the trial, cancellation of bail should be considered in terms of Sec. 14 of the Bail Act.

But, in many occasions, misuse or malpractices and other causes may undermine the principles recognized by our Courts in granting bail in the system of the administration of justice.

* Reports submitted by Police are biased or not accurate or truthful due to political motivation or corruption

* Reports contain insufficient or inadequate material on investigations

* Lack of proper supervision by senior Police officers in preparation of reports to Courts

* Court is burdened with more cases, as such, judges tend to make remand orders mechanically without proper assessment, evaluation and consideration, especially in lower Courts due to lack of time

* With no specific time period to conclude investigations depending on the alleged offences committed, Courts grants excessive time period for objections for Police and or State officers

* Sometimes, tendency of certain judges in lower Courts to consider remanding as punishment

* Imposing of rigid bail conditions

* Delay in preparation of indictments to be forwarded to High Courts

Therefore, one needs to look through the system for granting or refusing bail for developing a better policy. 


 

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