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Bail granted in Athas case
By Laila Nasry
The two former Air Force officers convicted for lurking house trespass and criminal intimidation of The Sunday Times Consultant Editor Iqbal Athas were enlarged on bail by the Court of Appeal last Monday.

The Bench comprising Justices Raja Fernando and G.W. Edirisuriya enlarged the two accused appellants, Rukman Herath and Sujeewa Kannangara on bail of Rs. 50, 000 each with two sureties acceptable to the High Court Judge, one of the sureties to be a staff officer of a Government Department or statutory organisation.

Court stated that in granting bail pending appeal two of the matters taken into consideration were the chances of success of the appeal and whether the accused appellants will present themselves to court in the event of the appeal being dismissed. Accordingly court held that the accused appellants are eligible to be enlarged on bail.

Court further stated that from the submission made by Senior State Counsel P.P. Surasena it is clear that the conviction as it is will have to be set aside and thereafter court will have to consider the issue of whether the accused appellants could be convicted for the charge of house breaking by night having made preparation for putting away any person in fear of hurt or of assault.

The Senior State Counsel in his submission conceded that the charge of lurking house trespass for which the accused appellants were convicted and sentenced has not been proved in the High Court. However he submitted that the offence of house breaking by night having made preparation for putting any person in fear of hurt or of assault which is also punishable by the same Section 444 of the Penal Code has been established. Thus the sentence imposed by the High Court judge could be maintained.

Countering the argument Mr. Ranjit Abeysuriya PC. defence counsel for Sujeewa Kannangara submitted that the conviction under Section 444 is bad in law as the charge which was amended in the High Court did not specify under which limb of the section the accused appellant is to be charged.

Mr. Gamini Marapana PC counsel for Rukman Herath in his submissions stated that the key words of the section is "having made preparation" and it runs right through both limbs of the section. Thus whether the accused appellant is charged with house breaking or lurking house trespass the element of preparation must be proved in order to convict and was not done so in the High Court.

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