De Mel v. the Attorney-General.
1940Present: Nihlll J.
DE MEL et al., Petitioners, and THE ATTORNEY-GENERAL,
Application for bail in M. C. Kalvtara, 307.
Bail—Courts Ordinance (Cap. 6), s. 31—Scope of—Burden on Crown.
Where application for bail was made under section 31 of the CourtsOrdinance by accused persons who were indicted on a charge of murderand had not been brought to trial at the first criminal sessions after thedate of their commitment—
Held, that the amendments made to the Criminal Procedure Code byOrdinance No. 13 of 1938 did not widen the efFect of'section. 31 of theCourts Ordinance.
Held, further, that the burden was on the Crown to show good causewhy bail should not be accorded.
NIHIL.L. J.—De Mel v. The Attorney-General.
rjlHIS was an application for bail.
H. Sri Nissanka (with hint V. A. Jayasundere and AUes), for thepetitioners.
O.E. Chitty, C.C., for Attorney-General.
iCur. adv. vult.
August 13, 1940. Nihlll J.—
This is an application for bail on behalf of the three accused in M. C.,Kalutara, No. 307 who have been indicted by the Attorney-General ona charge of murder. Their trial is pending. The-grounds of the presentapplication are that the accused having been committed to the SupremeCourt for trial by the Magistrate, on February 23, 1940, they mightproperly have been brought to trial at the next ensuing criminal Sessionsof the Western Circuit which were opened at Colombo, on March 20,1940,and which were closed on* July 5, 1940, that not having been so broughtto trial it is now the duty of the Court to admit them to bail pursuant tosection 31 of the Courts Ordinance (Cap. 6) unless good cause be shown tothe contrary.
Mr. Chitty in opposing the application on behalf of the Crown haspointed out that the effect of the amendments made to the CriminalProcedure Code by Ordinance No. 13 of 1938 would be to widen con-siderably the effect of section 31 (which has not been amended) unlessthe words “ at which such prisoner might properly be tried ” are taken tomean that time does not begin to run in a prisoner's favour until he hasbeen served with a copy of the indictment and two weeks have elapsedthereafter. It is of course true that under the old procedure of commit-ment the date of commitment would have been after the Magistrate hadreceived his instructions from the Attorney-General, that is to say aftertiie Attorney-General had perused the record and made up his mind tofile an indictment.
Now, under the new procedure, some time must necessarily elapseafter the Magistrate’s commitment before the case can be ready to gobefore a jury. The Attorney-General may or may not file an indictmentor he may send the case back to the Magistrate for further evidence aahappened in this case.
I do not however consider that I should be justified in acceptingMr. Chitty’s contention. Section 31 contains an important principle safe-guarding the liberty of the subject who has a right to be brought to trialwith reasonable despatch. It may be that the section is now morefavourable to a prisoner in its application than formerly but if that wasnot the intention of the LiOgisIature the section could have been amended.Neither do I consider that the section in its application to the newprocedure can be said to place a serious impediment in the path of theCrown. A period of three weeks is provided between the date of commit-ment and the first day of the Sessions. True if further evidence is requiredthis may be too short a period in which to get it and to prepare and servethe indictment but cases can and are added to the calendar after aSessions has begun.
&—H 16792 (8/68)
NULlliL J.—De Mel v. The Attorney-General.
In the present case theindiotment was served on the prisoners on May 8,and the case was therefore ready for trial on any date after May 23.It was in fact added to the calendar but was not reached before theSessions was closed on July 5.
The Crown possesses a further safeguard in that this Court will notadmit to bail if good cause be shown to the contrary. In murder casesit ia only in the exceptional case that bail will be granted in the firstinstance. In the present case an application for bail on behalf of theprisoners was refused by my brother Wijeyewardene on March 20.The situation has now however changed.
If section 31 is applicable in the prisoners’ favour as I hold it is thenthe burden has shifted from the prisoners to the Crown, whereas in Marchlast it was for the prisoners to show why the Court should exercise adiscretion exceptionally in their favour, it is now for the Crown to showgood cause why bail should not be accorded to them. Mr. Chitty ha3attempted to do so. He has filed an affidavit from the Assistant Superin-tendent of Police of the District from which these prisoners came in whichit is stated that the -first accused being a man of substance and influencein the neighbourhood it is probable that if released he will be in a positionto tamper with the evidence.
I do not think this is enough. It is not submitted by the Crown thatthere is a danger that the accused will abscond. The only groundurged is the possibility that the witnesses for the prosecution may beinterfered with. There is no evidence before me that that is a likelypossibility in this case, other than the Police opinion which from the affi-davit would appear to be based solely on the fact that the first accusedis not a man of straw.
If there was evidence that the relatives of the accused were alreadysuspect the position would be very different but in the absence of anysuch indication I cannot assume because the first accused may have somemeans that he will use them improperly. Furthermore there is nothingon the record to suggest that any such efforts would meet with easysuccess. All the principal witnesses for the prosecution belong to adifferent community to the accused and they are either relations or closeconnection of the deceased. Under the circumstances I am unable to findthat the Crown has shown good cause against the admission of theprisoners to bail and by the terms of section 31 it is therefore my dutyto grant bail.
I fix bail for each accused in the sum_ofRs. 10,000 with two suretieseach, with a condition attached that each accused should report himselfto the officer in charge of the Paiyagala Police Station every other day.P.8.
After hearing Mr. Chitty for the Attorney-General and Mr. Jayasunderefor the accused, I further order that the bail bonds shall be subject tocancellation and the accused shall again be remanded to custody if itis proved before this Court that the accujed have communicated withany witnesses for the prosecution named in the indictment.
DE MEL et al , Petitioner , and THE ATTONEY-GENERAL , Respondent