IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 289/10

BETWEEN

THE STATE

AND

SAI GOUNDER

RULING

1.	The accused in this case is charged with one count of breach of bail contrary to Section 25(1) and 26 of the Bail Act No 26 of 2002.

2.	The particulars of offence reads as follows;

Sai Gounder s/o Arun Kumar on the 17th day of May 2010 at Lautoka in the Western Division breached the condition of bail after being bailed by the Lautoka Magistrate's Court vide case file no 09/10 on 24/4/2010 which was for the said Sai Gounder to remain indoors at his house at Lovu Lautoka between 6.00 pm and 6.00 am was found on the road side at BS Charan Road Lovu Lautoka at 9.00 pm.

3.	The section 25 of the bail act reads as follows;

25 (1) If an accused person who has been released on bail

(a) fails to surrender to custody;

(b) otherwise breaches a condition of bail;

(c) absents himself or herself from the court without the court's leave at any time after he or she has surrendered to custody; or

(d) is found to have given a false residential address contrary to section 16(1),

the court may issue a warrant for the arrest of the accused person.

(2) A person who has been released on bail may be arrested without warrant

(a) if a police officer reasonably suspects that the accused person is unlikely to surrender to custody;

(b) if a police officer reasonably believes that the person is likely to break any of the conditions of the bail, or has broken any of those conditions.

(3) A person arrested pursuant to subsection (2) must be brought as soon as practicable, and in any event within 24 hours after the arrest, before a judge or a magistrate, who may remand the person in custody or grant him or her bail subject to conditions, which may be the same as or different from those originally imposed.

4.	According to Section 25(1) the court can issue a warrant for the arrest of an accused person if he breaches a bail condition. Section 25(1) does not speak of an offence regarding breach of bail.

5.	Section 26 of the bail Act reads as follows;

26. ‑ (1) A person who has been released on bail and who fails without reasonable cause to surrender to custody commits an offence and is liable on conviction to a fine of $2000 and 12 months imprisonment.

(2) The burden is on the defendant to prove that he or she had reasonable cause for failing to surrender to custody.

6.	It is clearly discernible that the Section 26(1) stipulates an offence only in the instance that an accused person fails to surrender to custody. Nowhere in these two sections has it said that breach of other bail conditions constitutes an offence punishable under this Act. 

7.	All what the court can do in a situation where an accused person breaches bail conditions is to issue a warrant for the arrest of that person and to act under Sectio 25(3) of the Bail Act.

8.	In this case the accused is charged for breach of curfew imposed on him as a bail condition. I am of the view that it does not fall within the scope of Section 26(1) of the Bail Act.

9.	It appears that although the accused in this case has breached bail conditions, it does not amount to an offence under the Bail Act.

10.	Thus I acquit the accused since the offence he is charged with is irregular.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka
03.06.2010