What law governs the granting or remanding of an accused or suspect person? The law that governs the granting or remanding of an accused or suspect person is the Bail Act No. 30 of 1997. This Act provides for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It also provides for the granting of anticipatory bail and other related matters. The Bail Act establishes that the grant of bail should be the guiding principle, subject to exceptions as provided for in the Act, and refusal to grant bail should be the exception. It prevails over the provisions of the Code of Criminal Procedure Act and other written laws, except for the Release of Remand Prisoners Act, No. 8 of 1991.
SUMMARY BY THE BLOGGER
Background: The accused has been indicted for the offense of grave sexual abuse of a minor, an offense is punishable under section 365B (2) (b) of the Penal Code. The accused was initially released on bail by the Court. The trial against the accused commenced on 21-07-2022. On 5th October 2023, the Court ordered the accused to be remanded pending further trial. The Lawyer for the accused filed a motion seeking bail, but it was refused.
The petitioner, acting on behalf of the accused, filed an application for revision in the Court of Appeal invoking Article 138 of The Constitution.
After considering the facts, circumstances, and relevant law, the Court ordered the immediate release of the accused from remand custody on the earlier bail conditions.
1. The Court relied on section 263 of the Code of Criminal Procedure Act to remand the accused, but failed to consider the relevant provisions of the Bail Act No. 30 of 1997, which should prevail over the Code of Criminal Procedure Act when it comes to the question of bail or cancellation of bail.
2. In terms of Section 14 of the Bail Act, a Court may cancel a subsisting Bail order if the court has reason to believe (A) 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; or (iii) commit an offence while on bail; or (b) that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet.
3. In terms of Section 14 of the Bail Act, a Court may cancel a subsisting Bail order if the court has reason to believe (A) 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; or (iii) commit an offence while on bail; or (b) that the particular gravity of, and public reaction to, the alleged offence may give rise to public disquiet.
What is the purpose of the Bail Act No. 30 of 1997?
The purpose of the Bail Act No. 30 of 1997 is to provide for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It aims to establish the granting of bail as the guiding principle, subject to certain exceptions, and to ensure that the refusal to grant bail is the exception rather than the norm. The Act also provides for the granting of anticipatory bail and addresses matters connected therewith or incidental thereto. Its main objective is to strike a balance between the rights of the accused and the interests of justice, ensuring that individuals are not unduly detained before trial unless there are compelling reasons to do so.
What is the reason for the remanding of the accused for 3 months?
On perusal of the cancelation of bail granted previously, the CA observes that it appears to have been made as a punitive measure by Court. This inference is drawn from the fact that the trial court failed to follow the mandatory provision of section 263(1) of the Code of Criminal Procedure Act, which provides that the trial shall, as far as practicable, be held day to day.
The failure to hold the trial day to day and the refusal to entertain an application for bail after the accused was remanded suggest that the remanding may have been done as a form of punishment rather than for valid legal reasons.
What law governs the granting or remanding of an accused or suspect person?
The law that governs the granting or remanding of an accused or suspect person is the Bail Act No. 30 of 1997. This Act provides for the release on bail of persons suspected or accused of being concerned in committing or having committed an offense. It also provides for the granting of anticipatory bail and other related matters. The Bail Act establishes that the grant of bail should be the guiding principle, subject to exceptions as provided for in the Act, and refusal to grant bail should be the exception. It prevails over the provisions of the Code of Criminal Procedure Act and other written laws, except for the Release of Remand Prisoners Act, No. 8 of 1991.
cancellation of bail and the refusal to entertain an application for bail after remanding the accused were not justified
The Court of Appeal determined that the remand order was made without due consideration of the relevant law, specifically the provisions of the Bail Act No. 30 of 1997. The Court has found that the cancellation of bail and the refusal to entertain an application for bail after remanding the accused were not justified under the limited circumstances provided for in section 14 of the Bail Act. Therefore, the Court has set aside the remand order and affirmed its previous order to release the accused pending the conclusion of the trial.
What is the explanation of section 263?
Section 263 of the Code of Criminal Procedure Act provides provisions for the postponement or adjournment of an inquiry or trial, as well as the remanding of the accused. The section states that if it becomes necessary or advisable to postpone or adjourn the inquiry or trial due to the absence of a witness or any other reasonable cause, the Court has the authority to order such postponement or adjournment for a reasonable time. In such cases, the Court may remand the accused if they are in custody, or commit them to custody, or take bail in their own recognizance or with sureties for their appearance.
The section also includes a proviso that every trial with or without a jury, should be held day to day as far as practicable. This means that the Court should strive to conduct the trial continuously without unnecessary delays.
Furthermore, subsection (2) of section 263 states that if the accused has attended the Court on summons, they should be enlarged on their own recognizance or on their simple undertaking to appear, unless the Court has reasons to order otherwise. The subsection provides an explanation that if there is sufficient evidence to raise a reasonable suspicion that the accused may have committed an offense and further evidence is likely to be obtained through a remand, it is considered a reasonable cause for a remand.
In summary, section 263 of the Code of Criminal Procedure Act allows for the postponement or adjournment of an inquiry or trial, and provides provisions for the remanding of the accused based on reasonable causes and considerations of the accused's attendance and the need for further evidence.
What is the right of a person remanded under the Bail Act?
A person who has been remanded under the Bail Act has the right to be heard in relation to the rescinding or variation of an earlier made order under section 14(1) of the Bail Act. This means that even after being remanded, the person has the opportunity to present his case and provide reasons why bail should be granted or why the earlier bail order should be rescinded or varied.
Section 14(3) of the Bail Act specifically states that the Court may, at any time, rescind or vary any order made under section 14(1) if it is satisfied that there has been a change in the circumstances pertaining to the case. This provision ensures that a person who has been remanded still has the chance to seek bail or request a change in their remand status if there are new circumstances that warrant such action.
In summary, the right of a person remanded under the Bail Act has the right to be heard and present his case for rescinding or varying the remand order, based on a change in circumstances. This allows the person to seek bail or request a change in their remand status even after being remanded.
The Court of Appeal in its judgment has reproduced the Order of the HC that reads as follows
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