MANICAVASAOAR, J.—Mendia v. The Queen
Present: Manicavasagar, J.W. P. MENDIS v. THE QUEENS. G. 331164—Application for Bail in M. C. Kalawana, 88577
Bail—Courts Ordinance, S. 31—Meaning of words “ might properly be tried
Seotion 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 tritl at the first oriminil sessions . fter thedate of his commitment at whioh such prisoner might properly be tried(provided that twenty-one days have elapsed between the date of thecommitment and the first day of snch criminal sessions), the said courtor any Judge thereof ehall admit him to bail”
Held, that the filing of the indictment, and the service of a copy on theprisoner are essential and necessary requirements before the prisoner mightproperly be tried within the meaning of Section 31 of th3 Courts Ordinance.
-A.PPLICATION for bail under Section 31 of the Courts Ordinance.
George. E. Cidtty, Q.G., with K. Jayasekera, for the applicant.
V. S. A. Pullenayegum, Crown Counsel, with Ranjit Abeysuriya,Crown Counsel, for the Attorney-General.
Cur. adv. vult.
November 4, 1964. Mantcavasaoar, J.—
This is an application by W. P. Men tis—who along with seven otherswas committed for trial to this Court by the Ratnapura Magistrate oncharges of co.ispiracy and murder—that he be released on bail.
The relevant facts are not in dispute.
The committal order of the Migistrate was made on 6. 6. 64 ; theAttorney-General has still not forwarded hi3 indictment; the first sessionsafter committal of the Western Circuit in which these offences aretriable began on 10. 7. 64 and ended on 8. 10. 64.
Section 31 of the Courts Ordinance under which this application ismade entitles the prisoner to an order of release on bail if he is not broughtto trial at the first criminal sessions after his committal at which hemight properly be tried, provided certain other requirements stated inthe section are complied with.
MANTCAVASAGAK, J.—Mendie v. The Queen
What do the worl3 “ might properly be tried ” mean ? Does it refer,as I have hitherto held, solely to juris lictio.i, that is whether a prisonercould be tried at a particular session of this Court held in a circuit; ordoes it mean in addition, whether the case i3 ripe for trial, that is tosay, all requirements of the law preceding the trial have been fulfilled.
Crown Counsel submits that the words “ might properly be tried ”mean appropriately tried, or is a trial reasonably feasible ; he contends,rightly, that it will not be possible to have a trial unless there is anindictment, and the prisoner has been served with a copy at least14 days before trial.
Mr. Chitty for the prisoner submits that the indictment, and the serviceof it are irrelevant considerations in the interpretation of Section 31,though the delay in regard to either of these may be relevant to thequestion of good cause. To illustrate his submission, he said, what ifthe Crown Counsel puts away the record, and forgets to attend to it:is the prisoner to be on remand for months, and may be for years : ifsuch a situation arises, and I think it unlikely, there are ways and means,both legal and otherwise, by which the officer can be compelled to performhis duties. The illustration is of no assistance to the question whichI have to decide. Mr. Chitty cited the opinion of Nihill, J., in the de Melcase1 where he, on that occasion pleading on behalf of the Crown,unsuccessfully contended that the effect of the amendment, to theCriminal Procedure Code in 1938 was to widen the effect of Section 31of the Courts Ordinance, and time does not begin to run in a prisoner’sfavour until he had been served with a copy of the indictment and twoweeks had elapsed thereafter. It is relevant to keep in mind that priorto the amendment of 1938 the committal order was made after the indict-ment had been filed by the Attorney-General; the procedure after theamendment is for the Magistrate to commit the prisoner if he foundthere was evidence sufficient to put him on trial, and then forward acopy of the record of the proceedings to the Attorney-General to enablehim to forward an indictment or to take any other course which thelaw permitted. Nihill, J., in allowing the application for bail said :
“ Section 31 contains an important principle safe-guarding theliberty of the subject who has a right to be brought to trial withreasonable dispatch. It may be that the Section is now morefavourable to a prisoner in its application than formerly but if thatwas not the intention of the Legislature the Section could have beenamended. ”
The learned judge was dealing with a case where an indictment hadin fact been filed by the Attorney-General, and though his opinion whichI have quoted does at first sight appear to support the prisoner it isquite clear from what the learned judge has said in his judgment that
l(J940) 47 N.L. B. 136.
MANIOAVASAQAR, J.—Mendia v. The Quean
he considered the filing of an indictment as an essential step before aprisoner might properly be tried ; for he proceeded as follows :
“ Neither do I consider that the Section in its application to thenew procedure can be said to place a serious impediment in the pathof the Crown. A period of three weeks is provided between the dateof committal and the first day of the sessions. True if further evidenceis required this may be too short a period in which to get it and toprepare and serve the indictment but cases can and are added tothe calendar after a sessions has begun. ”
The decisions of this Court in applications under Section 31 were allinstances where the indictment had been filed, and a copy served on theprisoner; the issue discussed in the present matter was not specificallyraised in those cases, because it is so patently obvious that a prisonercould not properly be tried without an indictment. My attention hasbeen drawn to the following passage in the judgment of Sansoni, J.in the case of N. Sunderam et al.1
“ once the indictment had been …. served there was nofurther legal impediment in the way of the Crown in bringing thiscase to trial. ”
I am of the view that in similar applications which I have decided,I have given a restricted meaning to the words “ might properly be triedI consider the filing of the indictment, and the service of a copy on theprisoner are essential and necessary requirements before the prisonermight properly be tried.
The application is refused.
» (1955) 60 N. L. R. 281, at page 282.
W.P. MENDIS v. THE QUEEN