014-SLLR-SLLR-1986-V-1-ATTONEY-GENERAL-v.-RANJIT-JAYALATH.pdf
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Attorney-General v. Ranjit Jayalath
205
ATTORNEY-GENERAL
v.
RANJIT JAYALATH
COURT OF APPEAL.
SENEVIRATNE, J. (PRESIDENT, C/A) AND BANDARANAYAKE, J.
C.A. 1677/84-M. C. TISSAMAHARAMA 19634.
JUNE 4. 1985.
Criminal Law-Information Book-Right of accused to peruse it andall notes ofinvestigation made by the police-Section 110/4) (proviso) of Code of CriminalProcedure Act.
An accused person at a non-summary inquiry is not entitled to peruse the notes ofinvestigation or all the statements recorded in the course of the investigation but onlythe statements to the Police of the witnesses whose evidence the Magistrate hasrecorded in the course of his inquiry up to the time of the application.
Moses Fernando. S.S.C. for petitioner.
Accused-respondents absent and unrepresented.
APPLICATION in revision of the order of Magistrate, Tissamaharama.
June 4, 1 985.
SENEVIRATNE, J. (President, C/A)
The respondents have been represented on 28.01.1985 by counsel,who have stated that objections have not been filed, as only a matterof law is involved. After that, this matter has come up on 02.04.1985and on that date also respondents have been unrepresented. Thematter has come upf for hearing today and respondents are notrepresented. Non-summary proceedings are being held in M. C.Tissamaharama against these accused-respondents on a charge ofmurder. In the course of the non-summary inquiry on 29.1.1 984 thecounsel who appeared for the accused had made an application to thelearned Magistrate to peruse the information book which is to peruseall the notes of investigation made by the police. The prosecutingpolice officer had objected to this application to peruse at that stageall the notes of the investigation made by police. The learnedMagistrate had overruled the objection and made order that thedefence was entitled to peruse all the statements recorded in thecourse of investigation by the police and postponed the inquiry for08.10.1984.
206
Sri Lanka Law Reports
11986] I SnL.R.
The Criminal Investigation Department brought it to the notice of tineAttorney-General and State Counsel appeared on the next date ofinquiry on 08.10.1984 and made submissions against the ordermade by the learned Magistrate to permit the defence at that stage toperuse all the notes of investigation. Learned counsel had submittedthat this order contravenes section 1 10(4) proviso of the Code ofCriminal Procedure Act No. 15 of 1979. The learned Magistrate thenmade order on those submissions, in fact, affirming his earlier orderthat under the said section 1 10(4) proviso, the defence can peruse allthe notes of investigation and the statements recorded by the police inthe course of their investigation. Learned Senior State Counsel nowsubmits that the learned Magistrate has placed a wrong constructionon the said proviso. Learned Senior State Counsel submits that thescope of the proviso is that when a preliminary inquiry under Chapter15 is being held in respect of any offence, that is during thecontinuancy of such a non-summary inquiry the only statements ofwitnesses that the defence have a right to peruse, are the statementsof the witnesses whose evidence the learned Magistrate has recordedin the course of the preliminary inquiry up to that time. The perusal ofthe statements of witnesses when a preliminary inquiry is being heldmust be limited to the staterpents of those who have given evidenceup to the time the perusal of the statements are permitted. Thissection cannot be interpreted to mean the perusal of all thestatements and notes made in the course of the full investigation. Wehave considered the order of the learned Magistrate and thesubmissions made by the Senior State Counsel. The Code of CriminalProcedure Act in Sinhala which according to constitution is the reallaw makes the submissions made by learned Senior State Counselclearer than the English version. It is as followsf
" d@d E)S<; cs® Od<;ei Q®3a5<D®c3S5 (XV) oSB®d<;c3 octeoi ejgrs oSaSsefiooioOafOsg 03s> qOdOoQsx d Ebdoi esd 6)&S)s> aitsiStsid/Dzi&sS go»oSfisi <§>(j(®3 SSzs Qc, BO. oSafeco ©jE^oteOra cjssdqid BOasacpSesdfi&sdfJ BSzsf 23© Od 3gg &i&>® ©c;eo3 SgO ©Sb cnra er>(sS Bo "
(The underlining is meant for emphasis)
We held that the learned Magistrate has erred in law. Sub-section 4of section 110 specifically states that neither the accused nor hisagent shall be entitled to peruse the statements recorded during aninvestigation merely because the Court has called for thosestatements unless the Court uses those statements in accordance
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Attorney-General v. Ranjit Jayalath (Seneviratne. J.)
207
with the Evidence Ordinance or they are used by a police officer or aninquirer or a witness to refresh memory. A construction in our opinionshould be placed on this proviso in consonance with the scheme ofthe section as appearing in sub-section 4, restricting the operation ofthe proviso to the perusal of statements of witnesses who havealready given evidence at an inquiry. It would not be consonent withthe scheme as seen in sub-section 4, to give the proviso aninterpretation as has been given by the learned Magistrate. Section110 deals with two situations. In the first place, it deals with therecording of the statement by the police in the course of theinvestigation and in the second place, it deals with the use to whichsuch statements may be put. We are concerned Here with the secondaspect of the section. The pioviso is, therefore, clearly not referrableto sub-section {1), (2) & (3) of the section. For these reasons, we setaside the order of the learned Magistrate dated 03.10.1 984 and holdthat the accused-respondents are not entitled to peruse all thestatements recorded in the course of the investigation except in themanner set out by this Court in the interpretation of section 110(4)proviso. The application is allowed.
BANDARANAYAKE, J. – I agree.
Application allowed.