C. S. PERERA, Petitioner, and THE ATTORNEY-GENERAL, Respondent

115-NLR-NLR-V-69-C.-S.-PERERA-Petitioner-and-THE-ATTORNEY-GENERAL-Respondent.pdf


Perera v. AUomey-GenercU
622
Present: Samerawiekrame, J.
S. PERERA, Petitioner, and THE ATTORNEY-GENERAL, Respondent
S. C. 290/66 (Application under Section 31 of the Courts Ordinance)—M. C. Colombo, 36626
Bail—Courts Ordinance {Cap. 6), s. 31—“ Criminal sessions at which the prisonermight properly be tried ”—“ Good cause ”.
The relevant part of Section 31 of the Courts Ordinance reads as follows :—
“ 31. If any prisoner committed for trial before the Supreme Court for anyoffence shall not be brought to trial at the first criminal sessions afterthe date of his commitment at which such prisoner might properlybe tried …. the said Court or any Judge thoreof shall admithim to bail, unleBs good causo bo shown to tho contrary … ”
Held, that it is not permissible to give as a ground for holding that a prisonercould not properly have been tried at a sessions the omission to take a stopinvolved in bringing tho prisoner to trial, namely, the preparation and serviceof the indictment. The words “ criminal sessions at which the prisoner mightproperly be tried ” refer to a sessions for the circuit within the limits of whichthe crime or offence, with which the prisoner is'charged was committed.
Mendis v. The Queen (66 N. L. R. 502) not followed.
.APPLICATION for bail under section 31 of the Courts Ordinance(Cap. 6).
Colvin R. de Silva, with Malcolm Perera, P. K. Liyanage, P. O. Wimala-naga and W. P. Goonetilleke, for the petitioner.
V. S. A. Pullenayegum, Crown Counsel, with L. D. Guruswamy, CrownCounsel, for the Attorney-General.
Cur. adv. wit.
SAMERAWICKRAME, J.—Perera v. Attorney-General
523
July 7,1967. Samebawickram e , J.—This is an application for bail made by the 1st accused in S. C. 290/66M. C. Colombo 36626, under Section 31 of the Courts Ordinance.The application states that information was filed in the MunicipalMagistrate’s Court of Colombo on 23rd February, 1966, against theapplicant and three others alleging that they had committed two offences•of conspiracy to commit murder punishable under Section 113b of thePenal Code read with Sections 296 and 108 of the said Code. It further•states that on 23rd June, 1966, the applicant and the other three accusedwere committed by the Magistrate to stand their trial in this Court. Itfurther states that the applicant was not brought to trial at CriminalSessions of the Western Circuit of this Court which commenced on 10thJuly, 1966, 10th October, 1966, and 10th January, 1967, as well as atthe present sessions which commenced on 20th March, 1967.
Learned Counsel for the applicant further submitted that no indictmenthad yet been served on his client and that the evidence against him wasthat of an accomplice and that there was only slight corroborativeevidence if the evidence in question was in fact corroboration at all.
Learned Crown Counsel resisted this application on a purely legalground, namely, that an indictment not having been served on theapplicant he could not properly have been tried at any of the Sessionsreferred to in his application. He was, therefore, not entitled to be released■on bail under Section 31 of the Courts Ordinance. Learned CrownCounsel relied on the decision of Manicavagasar, J. in W. P. Mendis v. TheQueen >, where he held that the section required, inter alia, that at thetime of the Sessions the case should be ripe for trial.
The effect of Section 31 of the Courts Ordinance is that a prisonercommitted for trial before this Court who is not brought to trial at thefirst sessions at which he might properly be tried should be admitted tobail. It appears to me that according to our criminal procedure, thebringing to trial of a person committed by a Magistrate is a processwhich involves the taking of at least three steps. They are :—
the drawing up of an indictment and its service on the accused at
least fourteen days before the day specified for trial.
the service of a notice on the accused specifying the date fixed for
trial before this Court.
the arraignment of the accused before this Court on the indictment
served on him.
The relevant part of Section 31 of the Courts Ordinance reads :—
31. If any prisoner committed for trial before the Supreme Court forany offence shall not be brought to trial at the first criminalsessions after the date of his commitment at which such prisonermight properly be tried …. the said Court or any Judgethereof shall admit him to bail, unless good cause be shown to thecontrary ….
* (1964) 66 N. L. R. 502.
624
SAMERAWICKRAME, J.—Perera v. Attorney-General
In deciding whether a prisoner should be admitted to bail under thisprovision, a Court must consider two questions (I) has the prisoner notbeen brought to trial at a sessions held after he was committed by theMagistrate, (2) was that sessions one at which he could properly have beentried. In deciding the second question, it seems to me that one mustconsider whether he could properly have been tried had he been broughtto trial at it. It is, therefore, in my view, not permissible to give asa ground for holding that a prisoner could not properly have been triedat a sessions the omission to take a step involved in bringing the prisonerto trial, namely, the preparation and service of the indictment.
I am, therefore, of the view that the words “ Criminal Sessions at whichthe prisoner might properly be tried ” refer to a sessions for the circuitwithin the limits of which the crime or offence with which the prisoner ischarged was committed. In Queen v. Jinadasa *, Gunasekara, J. said“ The offences are alleged to have been committed within the judicialdivision of Galle, which is in the Southern Circuit. The accused couldtherefore ‘ properly be tried ’ at a criminal session of this Court held forthat circuit ”. The view I have, taken is also consonant with that taken byNihill J. in De Mel v. Attorney-General 2. With respect, I am unable toagree with the interpretation placed upon the Section by Manicavasagar, J.
It may well be that upon the view which I have taken there may not besufficient time in particular cases between the commitment and thefirst criminal sessions to bring a prisoner to trial either because the framingof the indictment requires more time or because further evidence isrequired to be led in terms of Section 389 of the Criminal Procedure Code.If such circumstances exist, they would constitute “ good cause ” whythe accused should not be admitted to bail in those cases.
Learned Crown Counsel mentioned that though the accused werecommitted on the 23rd June, 1966, the brief was received in the Attorney-General’s Department only on the 7th November, 1966, and that on 21stApril, 1967, instructions were issued on behalf of the Attorney-Generalto the Magistrate to record further evidence. There may bo adminis-trative difficulties or other causes to explain why the brief was sentfrom the Magistrate’s Court to. the Attorney-General’s Department onlyover four months after the commitment. Again there may be circum-stances that explain the delay of over five months before directions torecord further evidence issued. I have not inquired into these mattersand I therefore express no opinion on them. But even if delays are notattributable to remissness on the part of those concerned, they cannotoperate to deprive a prisoner of his claim to be admitted to bail.Learned Crown Counsel mentioned the circumstances which led to noindictment being prepared for a period of one year after commitment.Quite rightly he did not rely on them as constituting " good cause ” underthe Section.
1 (1958) 60 N. L. R. 125.
(1940) 47 N. L. R. 136.
Bis
MANICAVASAGAR, J — Peter v. Parapali
I am satisfied upon, a careful consideration of all matters relevant thatthe applicant who is the first accused in the case is entitled at this stageto be admitted to bail. I direct that he should be released on his enteringinto a recognizance in a sum of Rs. 10,000 with two sureties.
Application alloived.