1964 Present: Manicavasagar, J.

W. P. MENDIS v. THE QUEEN

  S. C 331/64-Application for Bail in M. C. Kalawana, 88577

Bail-Courts Ordinance, S. 31-Meaning of words " might properly be tried ".

Section 31 of the Courts Ordinance is as follows :-

  " If any prisoner committed for trial before the Supreme Court for any offence shall not be brought to trial at the first criminal sessions after the date of his commitment at which such prisoner might properly be tried (provided that twenty-one days have elapsed between the date of the commitment and the first day of such criminal sessions), the said court or any Judge thereof shall admit him to bail, ....

     Held, that the filing of the indictment, and the service of a copy on the prisoner are essential and necessary requirements before the prisoner might properly be tried within the meaning of Section 31 of the Courts Ordinance.

     APPLICATION for bail under Section 31 of the Courts Ordinance.

                              George E. Chitty, Q.C. 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. MANICAVASAGAR, J.-

             This is an application by W. P. Men lis-who along with seven others was committed for trial to this Court by the Ratnapura Magistrate on charges of conspiracy and murder-that he be released on bail.

The relevant facts are not in dispute.

       The committal order of the Magistrate was made on 6. 6. 64 ; the Attorney-General has still not forwarded his indictment; the first sessions after committal of the Western Circuit in which these offences are triable began on 10. 7. 64 and ended on 8. 10. 64.
Section 31 of the Courts Ordinance under which this application is made entitles the prisoner to an order of release on bail if he is not brought to trial at the first criminal sessions after his committal at which he might properly be tried, provided certain other requirements stated in. the section are complied with.

What do the words " might properly be tried " mean ? Does it refer, as I have hitherto held, solely to jurisdiction, that is whether a prisoner could be tried at a particular session of this Court held in a circuit; or does it mean in addition, whether the case is ripe for trial, that is to say, 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 an indictment, and the prisoner has been served with a copy at least 14 days before trial.

Mr. Chitty for the prisoner submits that the indictment, and the service of it are irrelevant considerations in the interpretation of Section 31, though the delay in regard to either of these may be relevant to the question of good cause. To illustrate his submission, he said, what if the 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 : if such 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 perform his duties. The illustration is of no assistance to the question which I have to decide. Mr. Chitty cited the opinion of Nihill, J., in the de Mel case1[(1940) 47 N. L. R. 136.] where he, on that occasion pleading on behalf of the Crown, unsuccessfully contended that the effect of the amendment to the Criminal Procedure Code in 1938 was to widen the effect of Section 31 of the Courts Ordinance, and time does not begin to run in a prisoner's favour until he had been served with a copy of the indictment and two weeks had elapsed thereafter. It is relevant to keep in mind that prior to the amen