Jinasekere v. The Attorney-General.
1946Present : Rose J.JINASEKERE, Petitioner, and THE ATTORNEY-GENERAL,Respondent.Application fob Discharge ob fob Bail in M. C., Gamp aha,
No. 23,673.Bail—Discharge—Conviction for murder—Re-trial ordered by Court of CriminalAppeal—Application by prisoner for discharge or bail—Meaning of“ committed for trial "-—Courts Ordinance (Cap. 6), a. 31.
Where a prisoner, whose case was ordered by the Court of CriminalAppeal to be re-tried, made application under section 31 of the CourtsOrdinance that he should be discharged under the second part of thesection or alternatively be granted bail under the first part—
Held, that the provisions of section 31 of the Courts Ordinance are notapplicable to a case in which the Court of Criminal Appeal orders aperson to be re-tried.
Jinaaekere v. The Attorney-General.
PPLICATION for discharge or admission to bail of prisonercommitted for trial before the Supreme Court. The applicant was
originally committed for trial on July 28, 1944, for murder. He wassubsequently tried and convicted. On June 11, 1945, the Court ofCriminal Appeal quashed the conviction and ordered a re-trial. OnIMarch 20,1946, the applicant moved the Commissioner of Assize, Colombo,as the presiding Judge of the second criminal sessions after the orderof re-trial, to direct his discharge or admit him to bail. After argumenton March 27, 1946, the learned Commissioner was of opinion that he hadno jurisdiction to deal with the application, as the Court of CriminalAppeal had ordered the re-trial, that a discharge would in effect nullifythe order for re-trial, and that the application should properly be made tothe Court of Criminal Appeal. Thereupon the application was withdrawnand presented again to the Supreme Court as the right forum forrelief.
Frederick W. Obeysekere, for the applicant.—The Supreme Court isthe right forum as the Court of Criminal Appeal is no longer in seisinof the applicant or his case. A prisoner has a right, in the same caseand on the same facts, in an application for liberty, to have the successiveopinions of each Judge of the Supreme Court on the merits of the applica-tion. There is no res judicata. See Eleko v. Government of Nigeria1.The right to bail is clear under section 31 of the Courts Ordinance, as theapplicant has not been brought to trial in the first criminal sessionsafter the date of his being sent to the Supreme Court for trial. Seede Mel v. The Attorney-General2. So also the right to discharge, as hewas not brought to trial in the second sessions, which in the present caseis the third criminal sessions, which then satisfies the six months intervalrequired by section 31 of the Courts Ordinance.
[Rose J.—Have I power to discharge when I am not the presiding,Judge of the requisite second criminal sessions 1]
Yes. The applicant resorted to the right Judge but was referredelsewhere. The King v. Croos 3 seems in other circumstances to havetaken a negative view.
M.F. S. Pulle, Acting Solicitor-General (with him J. G. T. Weeraralne,Crown Counsel), for the Attorney-General.—Section 31 of the CourtsOrdinance has no application to a case in which a re-trial has beenordered by the Court of Criminal Appeal. The expression “ committedfor trial before the Supreme Court ” in that section means a committalby a Magistrate. An order of re-trial is not a committal for trial by theCourt of Criminal Appeal to the Supreme Court. Whether a trial beone at Bar or by a jury it must be preceded by a commitment of theaccused by a Magistrate. • It is submitted that even at a trial at Bar forsedition the accused should be committed for trial by a Magistrate—vide section 440a (4). A valid commitment by a Magistrate is the basisof any trial, whether it is the first trial or a second one ordered by the
1 (1928) A. C. 459.* (1940) 47 N. L. R. 136.
3 (1944) 47 N. L. R. 185.
ROSE J.—Jinarekcre e. The Attorney-General.
Court of Criminal Appeal. Even in a case in which a re-trial has beenordered it should be open to the accused to contest the validity of theindictment or the commitment.
Since the amendment to the Criminal Procedure Code in 1938, theinterval of time that lapses between commitment and trial is longer.Prior to the amendment a copy of the indictment used to be served onthe accused immediately after committal. At the present time, throughno fault of tlio Attorney-General, many months elapse between commitmentand service of indictment.
Every possible step was taken by the prosecution to bring the accusedearly to trial. Not an inconsiderable part of the delay was due to earlydates suggested by the prosecution not suiting the convenience of counselfor the defence.
In view of the opinion of the Court of Criminal Appeal (46 N. L. R. 243)that a strong prima facie case of murder has been made out against theaccused, the application for'bail should be refused.
W. Obeyesekere, in reply.—Nothing in section 31 of the CourtsOrdinance indicates that it is restricted to a committal by a Magistrate.In fact section 27 of the (English) Interpretation Act of 1889 defines“ committal for trial ” to mean “ any person …. committed toprison with a view of being tried before a Judge or Jury whether,
committed by a Court, Judge, Coroner or other authority having powerto commit a person to any prison with a view to his trial ”. Remedialstatutes are liberally construed to cover the “ mischief ” (Broom’s LegalMaxims, 1939 ed.. p. 382), which in this case is a violation of Magna Carta,which is common law of the Empire, and whose 40th Article lays down“ To no man …. shall we delay right or justice ”. Threesessions have passed with no trial. If the contention for a limitedconstruction is accepted, a prisoner committed by the Court of CriminalAppeal can be detained for years without trial. The interpretation ofstatutes has always in modem times been highly favourable to thepersonal liberty of the subject—Broom’s Legal Maxims, p. 383.
Cur. adv. vuU.
April 11, 1946. Rose J.—
This is an application under section 31 of the Courts Ordinance that theapplicant should be discharged under the second part of the section oralternatively should be granted bail under the first part. It appearsthat the applicant was convicted of murder but on appeal the convictionwas quashed and a re-trial ordered. The date of the judgment of theCourt of Criminal Appeal was June 11, 1945. More than two CriminalSessions of the Supreme Court have been terminated since that date.The question to be considered therefore is whether section 31 applies to acase in which the Court of Criminal Appeal orders a person to be re-tried.
Surprisingly, this point does not seem to be covered by authority. Itseems to me, however, that the more reasonable interpretation is that
IS—H 16792 (8/68)
The King v. Karthigeeu.
contended for by the Solicitor-General that the words " committed fortrial ” should be limited in their application to persons committed fortrial by a Magistrate. It is to be noted that neither in the CourtsOrdinance nor in the Interpretation Ordinance is there any definition ofthe words “ committal ” or “ committed for trial No assistancetherefore can be derived from the definition of “ committed for trial ”contained in section 27 of the (English) Interpretation Act of 1889.
That being so, I am of opinion that no application under section 31 canbe entertained in this case. This section being inapplicable, there wouldseem in the present matter to be no good grounds for departing from thenormal practice of refusing to grant bail to a person who is detained on acharge of murder.
For these reasons the application is refused.
JINASEKERE Petitioner , and THE ATTONEY-GENERAL , Respondent