The King v. Oirigoris Appuhamy.
1946Present: Nagalingam A.J.THE KING v. GIRIGORIS APPUHAMY.9—M. C. Gampaha, 27,953.
Bail—Courts Ordinance (Cap. 6), s. 31—Scope of—Accused not brought totrial owing to ill-health—Effect of such postponement.
The accused was indicted on a charge of murder. He was committedon July 16, 1945, and a copy of the indictment was served on him onDecember 27, 1945, There were criminal sessions between July 10,
and October 9, 1945, between October 10, 1945, and January 9,
between January 10, 1946, and March 19, 1946, and between March20, 1946, and July 9, 1946.
1 (1935) 37 N. L. R. 285.* (1936) 38 N. L,. R. at p. 374.
NAGAL1NGAM A.J.—The King v. Gfirigoria Appzihamy.
In an application for bail under section 31 of the Courts Ordinance—Held, that the first criminal sessions after the date of his commitmentat which the accused might properly have been tried was the one heldbetween March 20, 1946, and July 9, 1946.
Held, further, that the fact that the accused was not brought to trialat that sessions owing to his ill-health was good cause for the Crown torely upon in opposing the application for bail.
PPLICATION for bail made before the Assize Court under section31 of the Courts Ordinance.
C. Jayaurickreme, for the accused.
Jayasuriya, C.C., for the Crown.Cur. adv. vult.
October 7, 1946. Naoaunoam, A.J.—
This is an application under section 31 of the Courts Ordinance for thedischarge of the prisoner or in the alternative for an order admitting himto bail.
The prisoner is indicted at the instance of the Attorney-General ona charge of murder. He was committed on July 16, 1946, and it hasbeen argued on his behalf that the first criminal sessions at which he mighthave been properly tried was the one that commenced on July 10, 1945,and which ended on October 9,' 1945. Crown Counsel disputes this andit is obvious that the sessions that commenced on July 10, 1945, thatis to say, six days anterior to the date of commitment of the prisoner,is not the first criminial sessions after the date of his commitment. Iwould therefore hold that the prisoner could not properly have beentried at the sessions that commenced on July 10, 1945.
It was next argued that the prisoner should have been brought totrial at the next criminal sessions which commenced on October 10,1945, ending on January 9, 1946. Although the prisoner was committedby the Magistrate on July 16, 1945, the indictment on him was servedonly on December 27, 1945. In view of the amendment introduced in1938 to the Criminal Procedure Code, the prisoner could not have beenproperly tried at any sessions unless and until a fortnight had elapsedafter the service of the indictment on him. The fortnight after date ofservice of indictment on him would elapse only on January 10, 1946,so that he could not properly have been brought to trial even at thesessions that commenced on October 10, 1945, because that sessionsdid not extend to January 10, 1946.
The next point to consider is whether he could properly have beentried at the sessions that commenced on January 10, 1946, and whichconcluded on March 19, 1946. As the first date on which the prisonercould- have been brought to trial was January 11, 1946, that is the dayfollowing that on which the sessions commencing on January 10, 1946,began the first criminal sessions after the date of his commitment atwhich he might properly have been tried would not have been the onethat commenced on January 10, 1946. The first criminal sessions,therefore^ after the date of his commitment at which the prisoner mightproperly have been tried was the one that commenced on March 20, 1946,and that ended on July 9, 1946. The case, as a matter of fact, was setdown for trial on May 30, 1946, but had to be postponed as the prisoner
HewasUiyanage v. Police.
was suffering from an attack of mumps. The 'case was thereafter post-poned for July 18, 1946, that is, for the following criminal sessions com-mencing on July 10, 1946. The criminal sessions that commenced onJuly 10, 1946, would therefore have been the second criminal sessionsat which the prisoner could have been brought to trial, but the secondcriminal sessions did not commence till at least 6 weeks after the closeof the first criminal sessions, and therefore the provisions that the prisonershould be discharged does not apply. In fact, the application fordischarge of the prisoner was abandoned and learned counsel for theaccused person merely relied upon his application for bail, dependingupon the first part of the section. But as I have already pointed out,the reason why this prisoner was not brought'to trial at the first criminalsessions at which he could properly have been tried was that he was inill-health. I think that is good cause for the Crown to rely upon inopposing the application for bail.
Apart from these considerations,in the case ofde Melv. Attorney-General1Nihill J. expressed the view that “ in murder cases it is only in theexceptional case that bail will be granted in the first instance ”. If Imay say so, I respectfully agree with this expression of opinion. Inthat case it was the second application for bail made on behalf of theprisoner that was granted. In this case this is the first applicationand what is more the allegation of Crown Counsel that a strong prima faciecase has been made out on the record is not controverted by Counselfor the prisoner.
In view of these circumstances, I reach the conclusion that this isnot a fit case to admit the accused to bail. The application is refused,but I trust that the Crown will bring the accused to trial on the date forwhich the case now stands postponed.
THE KING v. GIRIGORIS APPUHAMY