The Queen «. Sunderam
1955Present: Sansoni, J.
THE QUEEN v. N. SUNDERAM and others
8. C. 193—Application under section 31 of (he Courts Ordinance forrelease on bail of prisoners on remand in M. C. Kayts, 4,215.
Bail—Courts Ordinance (Cap. H)—Section 31.
By Section 31 of the Courts Ordinance :—
“ If any prisoner committed for trial before the Supreme Court forany offence shall not be brought to trial at the first criminal sessionsafter the date of his commitment at which such prisoner might properlybe tried (provided that twenty-one days have elapsed between the dateof the commitment and the first day of such criminal sessions), the saidcourt or any Judge thereof shall admit him to bail, unless good causebe shown to the contrary, or … . ”
Held, (i) that the Section does not require that the criminal sessions inquestion should have begun after the date on which the prisoner could havebeen brought to trial, but only that it should have begun after the date ofcommitment. The King v. Qirigoris Appuhamy (1946) 47 N. L. R. 499, notfollowed.
(ii) that if a case is added to the calendar at a stage when there is not enoughtime to summon the witnesses, there is “ good cause shown to the contrary ”within the moaning of the Section.
SANSONI, J.—The Queen t>. Sunderam
Application for bail imder Section 31 of the Courts Ordinance.
A. H. C. de Silva, with A. K. Premadasa, in support.
V. S. A. Pullenayegum, Crown Counsel, for the Attorney-General.
Cur. adv. vuM.
May 19,1955. Sansoni, J.—
This is an application under section 31 of the Courts Ordinance by23 prisoners who have been indicted on twenty-one counts involvingcharges of murder, arson and unlawful assembly. At the close of thenon-summary inquiry on 29th July, 1954, the Magistrate committedthem to stand their trial in this Court. The record was sent back by theAttorney-General to the Magistrate for further proceedings to be taken,and it was returned by the Magistrate to the Attorney-General on 10thJanuary 1955. The first criminal sessions of the Northern Circuitbegan on 7th February 1955, but copies of the indictment were notserved on all the prisoners until 25th February 1955. Since section 165(F) (3) of the Criminal Procedure Code requires that fourteen days shouldelapse between the service of the indictment and the trial, the first dateon which the prisoners could properly have been tried was 14th Marchsince 12th March was a Saturday.
I0aa informed by Crown Counsel that this case would have beenadded to the calendar and tried if it had not been that a trial whichhad begun the previous week was still proceeding on 14th March andthere was another trial fixed to begin on 15th March. The Sessionswas scheduled to close on 18th March, and according to Crown Counsel thepresiding Judge did not consider it expedient to add this particularcase to the calendar because it was extremely unlikely that the trialcould be completed by 18th March.
Two questions were argued before me: (1) whether these prisonerscould properly have been tried at that particular sessions, seeing thatthe sessions had commenced before the first date on which they couldhave been brought to trial; (2) if so, whether good cause has been shownby the Crown as to why these prisoners should not be admitted to bail.
On the first question I have no doubt at all. Once the indictment hadbeen served on all the prisoners and fourteen days had elapsed, therewas no further legal impediment in the way of the Crown in bringingthis case to trial, for the only other condition imposed by section 31,that twenty-one days should have elapsed between the date of thecommitment and the first day of the criminal sessions, had also beensatisfied. There is, however, the dictum of Nagalingam, A.J., in The
Pout Perera v. Purasinghe
King v. Girigoris Appuhamy that if a criminal sessions hadcommenced before the first date on which a prisoner could have beenbrought to trial, that is not a sessions at which the prisoner might properlybe tried. This view of the learned judge is opposed to the decision ofJSfihill, J., in de Mel v. The Attorney-General2 and the recent judgment ofGunasekara, J., delivered on 6th March 1955. It also seems to me toadd a condition to section 31 which is not to be found there, and I wouldrespectfully dissent from it. The section does not require that thesessions in question should have begun after the date on which theprisoner could have been brought to trial, but only that it should havebegun after the date of commitment.
On the second question, I think the facts of this particular case aresufficient to constitute good cause within the meaning of section 31.I should say at once that I do not think it is open to me to question thedecision which had been made that the sessions should close on 18thMarch. Counsel for the petitioner submitted that he gave an under-taking that if the case were taken up for trial on 14th March it would befinished by 18th March. It seems to me to have been a bold undertakingand one which, though given in all good faith, it might not have beenpossible to keep despite the best efforts of counsel. The presiding Judgemay have had the same doubts. But another matter which also needsto be remembered is that more is required to be done than merely addingthis case to the calendar and fixing it for trial on 14th or 15th March.Witnesses had to be summoned after these steps had been taken; I do notknow how many witnesses there are on the back of the indictment butthey must be fairly numerous. How then could the trial have evenbegun before the 18th March ? In view of these facts I think the Crownhas shown good cause in this case and I therefore dismiss this application.
THE QUEEN v. N. SUNDERAM and others