046-NLR-NLR-V-70-W.-K.-D.-PREMASIRI-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
T. S. FERNANDO, A.C. J.—Premasiri v. The Attorney-General
193
Present: T. S. Fernando, A.C.J. Sirimane, J., andSiva Supramaniam, J.W. K. T>. PREMASIRI, Appellant, and THE ATTORNEY-GENERAL, Respondent
S. C. 401 of 1967—Application under Section 31 of the Courts Ordinance
for bail in M. C. Colombo, 376931C
Courts Ordinance (Cap. 6)—Section 31—Admission to bail thereunder—Service ofindictment on prisoner not a condition precedent—Might properly be tried
The relevant part of section 31 of the Courts Ordinance is as follows :—
“ If any prisoner committed for trial before the Supreme Court for anyoffence shall not be brought to trial at the first criminal sessions after thedate of his commitment at which such prisoner might properly be tried(provided that twenty-one days have elapsed between the date of thecommitment and the first day of such criminal sessions), the 3aid court orany Judge thereof shall admit him to bail, unless good cause be shown to thecontrary, or unless the trial shall have been postponed on the application of theprisoner. ”
Held, that it is not essential that the prisoner should be served with a copyof the indictment before he can become entitled to be admitted to bail byvirtue of the provisions of the Section.
Mendisv. The Queen (66 N. L. R. 502) overruled.
APPLICATION for bail under section 31 of the Courts Ordinance.This application was referred to a Bench of three Judges in terms ofsection 48 of the Courts Ordinance.
Nihal Jayawickrama, for the applicant.
S. A. Pullenayegum, Crown Counsel, with Ran jit Abeysuriya,Crown Counsel, for the respondent.
Cur. adv. vult.
December 6, 1967. T. S. Febnando, A.C.J.—
This matter comes before us as a result of a question of law beingreserved in terms of section 48 of the Courts Ordinance for the decisionof more than one judge of this Court. AUes J., before whom the matterwas first taken up, reserved the question of law in view of two recentconflicting decisions both of which will be noticed later.
LXX—9
1»—10383—2,140 (1/M)
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T. S. FERNANDO, A.C.J.—Premasiri v. The. Attorney-General
Proceedings were instituted in the Magistrate’s Court, Colombo,against the applicant and three others on a complaint by the Police thatalleged that on or about October 8, 19GG, they committed the offence ofmurder by causing the death of one Chandrapala, an offence punishableunder section 29G read with section 32 of the Penal Code.
After a non-summary inquiry held by the Magistrate, the applicant wason February 18, 19G7, committed to the Supreme Court for trial. Thethree other persons accused were discharged by the Magistrate.
After the date on which the applicant was so committed for trial, therewas held for the Western Circuit two criminal sessions, one commencingon March 20, 19G7, and the other on July 10, 1967. Yet another session(the current session) for this circuit commenced on October 12, 1967,and the applicant fears he may not be brought to trial even at this sessionfor the reason that, although over nine months have elapsed since hiscommitment, he has hitherto not even had a copy of the indictmentserved on him. He was first remanded in custody in October 1966 andremains in custody to this day. He has thus been in custody already forover 13 months. He claims that he has a right under section 31 of theCourts Ordinance to be released on bail pending his trial.
The relevant part of the aforesaid section 31 is reproduced below :—
“ 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), thesaid court or any Judge thereof shall admit him to bail, unless goodcause be shown to the contrary, or unless the trial shall have beenpostponed on the application of the prisoner **.
Neither counsel who appeared before us has been able to find any reportedcase where before the year 1940 this section has been the subject of judicialinterpretation, a feature strongly indicative, in my opinion, of the absenceof any serious delay up to that time in the disposal of criminal cases afterdate of commitment of prisoners for trial by the Supreme Court. Thefirst reported case is one of the year 1940, two years after the introductionof the amendment of the Criminal Procedure Code by Ordinance No. 13of 1938 whereby the system of direct committal for trial by inquiringMagistrates was substituted for the earlier system of committal on theinstructions of the Attorney-General. In that case, De Mel v. TheAttorney-GeneralNihill J., dealing with an argument of Crown Counselthat the effect of the 1938 amendments would be to widen considerablythe effect of section 31 of the Courts Ordinance unless the words “ atwhich such prisoner might properly be tried ■’ are taken to mean thattime does not begin to rim in a prisoner’s fa voui. until he has been served
1 (1940) 41 N. L. R. 137.
T. S. FERNANDO, A.C.J.—Premaairi v. The Attorney-General
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frith a copy of the indictment and two weeks (required by section 165F (3)of the Criminal Procedure Code) shall have elapsed thereafter, felt he didnot consider himself justified in accepting it as valid. The learnedjudge there went on to observe that section 31 contains an importantprinciple safeguarding the liberty of the subject who has a right to bebrought to trial with reasonable despatch. He added that “ it may bethat the section is now more favourable to a prisoner in its applicationthan formerly, but if that was not the intention of the Legislature thesection could have been amended. Neither do I consider that the sectionin its application to the new procedure can be said to place a seriousimpediment in the path of the Crown. A period of three weeks isprovided between the date of commitment and the first day of theSessions. True if further evidence is required this may be too short aperiod in which to get it and to prepare and serve the indictment, butcases can be and are added to the calendar after a Sessions has begun
The liberty of the subject is an important personal right enjoyed indemocratic communities observing the Rule of Law, and custody pendingtrial being an infringement of that liberty, the courts must be vigilantin ensuring that the infringement is restricted to the limits spelled out bythe Legislature. The observations of Nihill J. reproduced above werequoted with approval by Gunasekara J. in a hitherto unreported decisionof 8th March 19551 where the learned judge dealt with the case of severalprisoners whose trials could not be disposed of before the end of a parti-cular criminal sessions of the Southern Circuit. Sansoni J. (as he thenwas) himself relied in the case of Leon Singho v. Attorney-General2 on thatpart of the observations of Nihill J. which related to section 31 asembodying an important principle safeguarding the liberty of the subject.Gunasekara J. reverted to the subject in the case of The Queen v.Mudiyanse “when he observed that the mischief that is aimed at by theenactment (section 31) is the imprisonment for unduly long periodsof accused persons awaiting trial.
Sansoni J. did not, however, in the case mentioned in the above para-graph refer to the other part of the observations of Nihil] J. that rejectedthe argument that time does not begin to run in a prisoner’s favour untilhe has been served with a copy of the indictment, but it is to be notedthat he was dealing with a case where indictment had already been served.Another case, also decided by Sansoni J. some four years earlier, TheQueen v. Sunderam*, was relied on by the Crown in its argument beforeus, inasmuch as the learned judge has there observed that “ once theindictment had been served on all the prisoners and fourteen days hadelapsed, there was no further legal impediment in the vvuj of ihe Crow n inbringing this case to trial ”. The argument before us wTas that theabsence of an indictment was one of the legal impediments in the wayof the Crown before the case can properly be tried within the meaning ofsection 31, but we must be careful not to read too much into the
» (1961) 63 N. L. R. at 302.
4 (1956) 60 N. L. R. 281.
1 S. O. Minnies of 8. 3. 1955.* (1959) 62 N. L. R. at 223.
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T. S. FERNANDO, A.C.J.—Premasiri v. The Attorney-General
language employed by the learned judge there as that too was a casewhere indictment had been served long before the point that was decidedthere had arisen.
The earliest case which favours the view contended for by the Crownis that of The King v. Qirigoris Appuhamy1 in which Nagalingam A.J.(as he then was) held that in view of the amendment introduced to theCriminal Procedure Code in 1938 a prisoner could not have been properlytried at any sessions unless and until a fortnight had elapsed after theservice of the indictment on him. That too was a case where at the timethe question of bail was decided copy of indictment had long been served-A different view was taken in the later case of The Queen v. Jinadasa 2where Gunasekara J. granting an application for bail in the case of twoprisoners committed on 17th June 1957 for trial in the Southern Circuitheld that the first session at which they could properly have been triedwas the session that commenced for that Circuit on 16th Septembe1957, notwithstanding the fact that indictment was served on themonly on 2nd April 1958.
I could now turn to the two recent cases which apparently necessitatedthe reference of the question to this Divisional Bench. In Mendis v.The Queen s, Manicavasagar J., dealing expressly with a case where indict-ment had not been served up to the date of his decision, considered thefiling of an indictment and the service of a copy thereof on the prisoneras essential and necessary requirements before the prisoner “ mightproperly be tried Three years later, and barely five months ago,Samerawickrame J., in Perera v. Attorney-General 4, expressly disagreedwith this interpretation placed upon section 31 by Manicavasagar J.,and favoured a view which he thought was consonant with the viewstaken earlier by Nihill J. in De Mel v. The Attorney-General (supra) andby Gunasekara J. in The Queen v. Jinadasa (supra). In the last mentionedcase Gunasekara J. had taken the view that prisoners could “ properlybe tried ” at a criminal session held for the proper circuit, subject, Iwould add, to a modification necessitated by a lawful transfer of the trialfrom one circuit to another.
Samerawickrame J. stated (at page 524) that in deciding whether aprisoner should be admitted to bail under section 31, “a court mustconsider two questions : (1) has the prisoner not been brought to trial at asessions held after he was committed by the Magistrate, (2) was thatsessions one at which he could properly have been tried. In decidingthe second question it seems to me that one must consider whether hecould properly have been tried had he been brought to trial at it. Itis therefore, in my view, not permissible to give as a ground for holding
{1946) 47 N. L. R. 499.• (1964) 66 N. L. R. 502.
• (1958) 60 N. L. R. 125.* (1967) 69 N. L. R. 622.
T. S. FERNANDO, A.C.J.—Premasiri t>. The Attorney-General
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that a prisoner could not properly have been tried at a sessions theomission to take a step involved in bringing the prisoner to trial, viz.,the preparation and service of the indictment
We have had the advantage of a full argument by learned counselappearing for the applicant and for the Crown and, after giving due weightto their arguments, I would respectfully agree with the opinions expressedby Samerawickrame J. that (1) the preparation and service of copy of theindictment on the prisoner is but a step involved in bringing the prisonerto trial, and (2) that a sessions at which a prisoner could have been tried,had he been brought to trial is a sessions at which he could properly havebeen tried. By way of an illustration, if I were to assume that a-prisonerhad been committed to trial on 1st February 1967, and indictment hadbeen served on him on 25th February 1967, and the first sessions aftercommittal commenced on 20th March 1967, that prisoner could have beenbrought to trial at the said sessions. If that was then the sessionscontemplated in section 31, the omission to serve indictment does notrender that sessions not the sessions at which the prisoner could havebeen properly tried.
This view first found favour with Gunasekara J. whose familiarity withtho administration of the criminal law and procedure of this Country iswell known and whose contribution to the development of that law andprocedure is amply borne out in our law reports. Its confirmation bySamerawickrame J. in the recent judgment above noticed is furtherstrengthened by a reference to an old Ordinance No. 15 of 1843, to which,our attention was invited by learned counsel for the applicant. It is anOrdinance described as one providing in certain respects for the moreefficient Administration of Justice in Criminal Cases and, as far as wecan make out, section 37 thereof is the first legislative provision relatingto the proper sessions at which a prisoner might be tried. That sectionis reproduced below in its entirety :—(The italicizing is mine)
“ 37. And it is further enacted, that if any prisoner committed fortrial before the Supreme Court shall not be brought to trial at the firstCriminal Sessions after the date of his commitment, holden for theCircuit proper for the trial of such prisoner, provided Twenty-one dayshave elapsed between the date of the commitment and the first dayof such Criminal Sessions, he shall be admitted to bail, unless goodcause be shown to the contrary. And if such prisoner is not broughtto trial at the second Criminal Sessions of the Supreme Court holdenfor the said Circuit, after the date of his commitment, unless, by reasonof the insanity or sickness of such prisoner, the Judge of the SupremeCourt presiding at such last-mentioned Sessions, shall issue his order tothe Fiscal for the discharge of such prisoner from his imprisonment forthat offence for which he has been committed for trial.”
H 10988 (1/68)
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T. S. FERNANDO, A.C.J.—Prertiasiri v. The Attorney-General
Ordinance No. 15 of 1843 came into force on the 8th November of thatyear, and six days earlier, viz., on 2nd November 1843, by section 1 ofOrdinance No. 9 of 1843 provision was made for the division of the Islandof Ceylon into three or more Circuits in place of the provision introducedby the Charter of 1833 dividing the Island into the District of Colomboand the Three Circuits therein named. The terms of section 37 abovereproduced indicate clearly enough that the first sessions and the secondsessions specified therein refer to sessions having territorial jurisdictionover the trial of the offence. A close comparison of it with section 31 ofthe Courts Ordinance in its present form will show that it has not beensubjected to any material amendment in spite of the passage of nearly125 years.
Learned counsel for the Crown submitted, quite correctly, if I may sayso, that no person can be tried at any sessions unless an indictment hasin fact been presented. He referred us to the language employed insection 281 of the Criminal Procedure Code of 1883 (Ordinance No. 3 of1883), viz., that the “ indictment shall be the foundation of the trial inthe Supreme Court ”, and contended that one cannot contemplate asession existing at which a prisoner might properly by tried until suchtime as the foundation can be laid for the trial. I think this was butanother way of formulating the very argument which was rejected in 1940by Nihill J., a rejection which was endorsed in 1955 by Gunasekara J.,and in 1967 by Samerawickrame J. Crown Counsel invited us also toconsider two consequences that may arise by acceding to the argumenton behalf of the applicant. He first referred us to the powers reserved tothe Attorney-General by section 389 of the Criminal Procedure Code toorder a supplemental inquiry at which further evidence might be recorded.Apart from observing that this point too was in the mind of Nihill J.when he decided the case above referred to, I do not consider that anyorder of the Attorney-General under the said section can affect the plaininterpretation of the expression “ the date of his commitment ” containedin section 31 of the Courts Ordinance. Samerawickrame J. in Perera v.Attorney-General {supra) thought that a case where the Attorney-Generalhas exercised his powers under section 389 after commitment would beone in which the Crown could resist an application for bail in terms ofsection 31 of the Courts Ordinance as there would then be good causeto the contrary. I would myself endorse this observation subject to thequalification that such a situation may, but not necessarily would,constitute good cause against the granting of bail. Crown Counsel nextinvited us to consider what would happen where the Attorney-General,as he lawfully might do, sends an indictment to the District Court insteadof to the Supreme Court to which the accused has been committed by theMagistrate. It was a little difficult to appreciate what force this secondargument of Crown Counsel could carry because, apart from the fact thatmost offences triable by a District Court are bailable offences, section 31
T. S. FERNANDO, A.C.J.—Premasiri v. The Attorney-General
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can have no operation except in respect of cases of prisoners awaitingtrial by the Supreme Court. Therefore, where an accused person whohad been committed by a Magistrate for trial by the Supreme Court has,by the act of the Attorney-General, been called upon to face his trial inthe District Court, he has ceased to be a person awaiting trial in theSupreme Court. The consequences contemplated by Crown Counsel donot, in my opinion, militate against the granting of the application forbail made in the instant case.
The applicant has, in my opinion, established that he is entitled to theright conferred on him by section 31 of the Courts Ordinance. Noaffidavit has been filed on behalf of the prosecution nor has any attemptbeen made to show other good cause. We have therefore made orderthat the Magistrate do admit the applicant to bail in such sum as may befixed by the Magistrate and subject to such conditions as it may seem fitto him to impose.
I might add that -we were informed by counsel that the Attorney-General is seeking in some other proceeding the intervention of this Courtin an attempt to reverse the order made by the Magistrate dischargingthe other accused in this case. We cannot say how long the proceedingsso set in motion by the Attorney-General may take before they areterminated. They cannot, however, affect the right of the applicantbefore us. After the date of his commitment two sessions of the WesternCircuit have been commenced and terminated. He has now been incustody remanded pending trial for well over a year. Nothing catas-trophic can ensue from his release on bail. A Court has undoubted rightto cancel bail where it is shown that the right to release on bail has beenor is being abused. We venture to think that the granting of this applica-tion may in some measure induce a speedier disposal of the criminalproceedings against the applicant and the other accused and, indeed, actas a spur to all concerned in the disposal of cases of remand prisonersfilling our gaols in our common duty of eradicating the lethargy thatis currently afflicting us. The liberty of the subject is not a slogan aswas suggested, cynically so it appeared to us, during the argument, butis a valuable right of a citizen, and the courts must be vigilant in ensuringthat it is not unprofitably thwarted.
Sirimane, J.—I agree.
Siva Supbamantam, J.—I agree.
Application allowed.