063-NLR-NLR-V-63-THE-QUEEN-v.-J.-M.-MUDIYANSE-and-4-others.pdf
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The Queen v. Mudiyanse
1961Present :Gunasekara, J.
TDE QUEEN v. J. M. MUDIYANSE and 4 others
S. C. (Midland Circuit, 1st Kandy Sessions 1961)—M. C.
Gampola, 8,462
In the matter of an Application under Section 31 of the Courts Ordinance
Courts Ordinance (Cap. 6)—Section 31—Discharge of prisoner if not brought to trialat second criminal sessions after commitment—“ Second criminal sessions
The expression “ second criminal sessions " in the second part of section 31 ofthe Courts Ordinance includes any criminal sessions subsequent to the first.Accordingly, an application for the discharge of a prisoner under section 31may be made at the end of even the fifth sessions held after the date of the com-mitment at which the prisoner might properly be tried.
“ It is inconceivable that the legislature, having provided that a right to anorder of discharge should be. available to prisoners who have not been brought totrial by the end of the sessions following next after the first sessions at whichthey could have been tried, intended that such a right should hot be availableto those who have been imprisoned without, tried for longer periods ”
GUNA3RK A RA, J.—The Queen v. Mudiyanse
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A PPLICATION under section 31 of the Courts Ordinance.M. Udurawana, in support.
Daya Perera, Crown Counsel, for the Crown.
Cur. adv. vult.
April 10, 1961. Gtxnasekara, J.—
This is an application under section 31 of the Courts Ordinance made onbehalf of five prisoners who have been committed for trial before thisCourt on a charge of murder and have not yet been brought to trial. Theorder of commitment was made on the 29th September, 1959, and thecriminal sessions for the Midland Circuit which are being held here fromthe 10th March, 1961, are the fifth sessions held after the date of the com-mitment at which the prisoners might properly be tried. The four pre-vious sessions began respectively on the 1st December, 1959, 10th March,1960, 1st August, 1960 and 1st December, 1960. The application made onbehalf of the prisoners is that they should be discharged from imprison-ment or admitted to bail. The learned Crown Counsel has objected onlyto an order being made for their discharge.
The first part of section 31 of the Courts Ordinance provides that ifany prisoner committed for trial before the Supreme Court for any offenceshall not be brought to trial at the first criminal sessions after the date ofhis commitment at which such prisoner might properly be tried (providedthat twenty-one days have elapsed between the date of the commitmentand the first day of such criminal sessions), the said Court or any Judgethereof shall admit him to bail, unless good cause be shown to the contrary,or unless the trial shall have been postponed on the application of suchprisoner. In terms of those provisions, at the end of the sessions thatbegan on the 1st December, 1959, the prisoners were prima facie entitledto be admitted to bail.
Nothing has been urged against their being admitted to bail and it hasnot been Suggested that the trial was on any occasion postponed on theapplication of any of the prisoners. They must therefore be admittedto bail if they are not discharged from imprisonment.
The application for an order of discharge is made under the second partof the section, which enacts, subject to certain provisos and exceptions,that if such prisoner be not brought to trial at the second criminal sessionsof the Supreme Court held after the date of his commitment at which hemight properly be tried, “ the Judge of the said Court presiding at suchlast-mentioned sessions shall, unless good cause be shown to the contrary,issue his order to the Fiscal for the discharge of such prisoner from hisimprisonment ”. The provisos are that six weeks at least shall have elapsedsince the close of the first criminal sessions after the date of the commit-ment and that six months at least shall have elapsed between the dateof the commitment and the commencement of such second criminal
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GUNASEEARA, J.—The Queen v.'Mudiyanae
sessions. Where these conditions are satisfied and no good cause has beenshown to the contrary the presiding Judge is required to make an order forthe discharge of the prisoner tinless it has been by reason of the insanityor sickness of the prisoner or by reason of his application for thepostponement of the trial that he has not been brought to trial at suchsessions.
The present application for an order of discharge is resisted upon thesole ground that such an order can be made only by the Judge who presidedat the second sessions held after the date of the commitment and thattherefore it cannot be made by any Judge other than the Judge whopresided at the sessions which began on the 10th March, 1960.
I am unable to accept this contention. The mischief that is aimed atby the enactment is the imprisonment for unduly long periods of accusedpersons awaiting trial, and the remedy provided is to confer on suchprisoners a right to be discharged after the lapse of a specified period ifcertain other conditions are satisfied.
“ It is said to be the duty of the Judge to make such construction of astatute as shall suppress the mischief and advance the remedy. Evenwhere the usual meaning of the language falls short of the whole objectof the legislature, a more extended meaning may be attributed to thewords, if they are fairly susceptible of it. ” 1
It is inconceivable that the legislature having provided that a right to anorder of discharge should be available to prisoners who have notbeen brought to trial by the end of the sessions following next after thefirst sessions at which they could have been tried, intended that such aright should not be available to those who have been imprisoned withouttrial for longer periods. Considered in the light of the apparent purposeof the enactment the expression “ second criminal sessions ” must, inmy opinion, be taken to include any criminal sessions subsequent to thefirst.
“ Where the language of a statute, in its ordinary meaning and gram-matical construction, leads to a manifest contradiction of the apparentpurpose of the enactment, or to some inconvenience or absurdity,hardship or injustice, presumably not intended, a construction may beput upon it which modifies the meaning of the words, and even thestructure of the sentence. This may be done by departing from therules of grammar, by giving an unusual meaning to particular words, byaltering their collocation, or by rejecting them altogether, under theinfluence, no doubt, of an irresistible conviction that the legislaturecould not possibly have intended what its words signify, and that themodifications thus made are mere corrections of careless language andreally give the true meaning. ” a
– I hold that under the provisions of the second part of section 31 theprisoners may become entitled to an order for their discharge from
1 Maxwell on the Interpretation of Statutes, Tenth Edition, p. 68.
* Ibid p. 229.
BASNAYAKE, C.J.—The Queen v. Geedrici
SOS
imprisonm en t if they are not brought to trial at the current sessions. Thequestion whether such a right has accrued to them by reason of their nothaving been so brought to trial can only be decided at the end of thesessions. (I may observe in passing that, as was pointed out byMr. Udurawana in the course of his argument, such a right had notaccrued to the prisoners at the close of the sessions that began on the 10thMarch, 1960 ; for the necessary periods of six weeks and six months fromthe close of the first sessions and the commitment, respectively, had notelapsed at that date.)
I direct that each of the prisoners should be admitted to bail upon hisentering into a bond in a sum of Rs. 7,500 with two sureties.
Application allowed.