1-SAMSON ATYGALA v. ATTONEY-GENERAL

039-SLLR-SLLR-1986-V-1-SAMSON-ATYGALA-v.-ATTONEY-GENERAL.pdf


390
Sri Lanka Law Reports
[1986] 1 Sri L.R.
SAMSON ATYGALAv.
ATTORNEY-GENERAL
COURT OF APPEAL.
SIVA SELLIAH. J. AND BANDARANAYAKE. J.
C.A. 61/83 – M.C. PANADURA 76902.
DECEMBER 9. 1985.
Evidence Ordinance, sections 27 and 91 – Administration of Justice Law. section 70
– Code of Criminal Procedure Act. section 110(1).
Where the only evidence available to the prosecution against the accused was twostatements (of which the record was not produced though marked and. only oraltestimony was given of them) in consequence of which 114 rice ration books of the28th series were recovered from the possession of the accused.
Held-
Section 27 of the Evidence Ordinance when it relates to confessional statementsoperates as a proviso to ss. 25 and 26 of the Evidence Ordinance.
For the purposes of s. 27 of the Evidence Ordinance the person making thestatement should be a person accused cf? an offence, and be in police custody. Forrequirement (a) the test is the position &. the maker when the statement is sought to beadduced in evidence and not his position when he madL it. For the requirement {b) thewords "police custody" do not necessarily mean detention or formal arrest. It includespolice surveillance and restraining of the movements of the person concerned by thepolice. The term "custody" has to be interpreted within wide limits.
Unlike under s. 1 22 (1) of the old Criminal Procedure Code under section 70 (3) ofthe Administration of Justice Law which was the law applicable at the time (and evenunder s. 110 (1) of the present Code of Criminal Procedure Act) a police officer makingan investigation may examine orally any person acquainted with the facts. He shallreduce into writing any such statement made by the person examined and the personmaking the statement shall sign the statement thus adopting the statement and makingthe record of what he said his own. In other words there is a legal requirement that sucha statement be reduced to the form of a document. Section 91 of the Evidence
(•Ordinance requires that when any matter is required by law to be reduced to the form ofa document no evidence shall be given in proof of such matter except the documentitself or secondary evidence of it. Section 91 does apply to a statement recorded interms of s. 70 (3) of the Administration of Justice Law. For this reason such astatement which led to the discovery of a relevant fact made admissible by s. 27 of "theEvidence must be reduced to the form of a document and it is only that document thatcould be proved as evidence in a case. No oral evidence of the contents of such adocument is admissible in evidence.
CA
Samson Atygala v. Attorney-General
391
Cases referred to:
Petersingham v. The Queen (1970) 73 NLR 536.
Rajapaksa Manikkunambigedera Nandasena v. Republic of Sri Lanka [1978-79] 1SLR 26.
The Queen v. Sugathapala (1967) 69 NLR 457.
Narayanaswamy v. Emperor AIR 1939 P.C. 47.
The Queen v. R.P.D. Jayasena (1966) 68 NLR 369.
King v. Haramanisa (1944) 45 NLR 532.
Rex v. Jinadasa (1950) 51 NLR 529.
The Queen v. Murugan Ramasamy (1964) 66 NLR 265.
Reg. v. Buddarakkita Thero (1962) 63 NLR 433.
APPEAL from judgment of the Magistrate of Panadura.
Cecil de S. Wijeratne for appellant.
Mrs. 8. Jayasinghe Tillekeratne. S.C. for State.
Cur. adv. vult.
February 14, 1986.
BANDARANAYAKE, J.
This is an appeal from a conviction*by the Magistrate upon a charge ofwrongful possession of^OO rice rafion books of the 28th series, anoffence punishable under the Food Control Act. Theaccused-appellant was the Manager of the Co-operative Society Storeat Keselwatta at the time of the commission of the alleged offence.
The only evidence available to the prosecution against the accusedwas two statements made by the accused to the police in the courseof the investigations referred to in the evidence as P6 and P7 inconsequence of which information 1 14 rice ration books of the saidseries were recovered from the possession of the accused.
Two matters of law were urged by learned counsel for th,^accused-appellant at the hearing of the appeal. As the first matter oflaw learned counsel argued that the statements of the accused P6 andP7 which led to the facts deposed to by Sub Inspector Upali Senaratnein connection with the production of 1 14 rice ration books should nothave been admitted in evidence as the deponent was not at the timeof recording of the statements P6 and P7 "accused of any offence and
392
Sri Lanka Law Reports
11986] 1 SnL.R
was not in the custody of a police officer". The submission of learnedcounsel was that in terms of s. 27 of the Evidence Ordinance theinformant should have been at the time of giving such information –
a person accused of an offence, and
in the custody of a police officer.
Section 27 (1) states that:
"When any fact is deposed to as discovered in consequence ofinformation received from a person accused of any offence, in thecustody of a police officer, so much of such information, whether itamounts to a confession or not, as relates distinctly to the factthereby discovered may be proved."
It was urged that the two conditions of being accused of anyoffence and of being in the custody of the police were necessarypre-requisites for the admissibility of any relevant fact discovered inconsequence of the information given.
This question has been the subject of judicial consideration inseveral cases both in Sri Lanka and in India. In the case ofPetersingham v. The Queen (1) the question as to whether the partymaking the statement should have been an accused before hisstatement was recorded or whether the fact that he is an accused atthe trial was sufficient to satisfy the section was exhaustivelyconsidered but was left open. This question of law was agitated onceagain in the case of Rajapaksa Manikkunambigedera Nandasena v.Republic of Sri Lanka (2) and the judgment of Sharvananda, J. (as hethen was) determined the question whether the party making thestatement should have been both "accused and in custody". Afterreviewing the earlier authorities the reasoning revolved around aconsideration as to whether s. 'll could be interpreted by itself orwhether it ought to be considered with the two preceding ss. 25 and26. This question had been examined by H. N. G. Fernando. C.J. inThe Queen v. Sugathapala (3). It was held by Sharvananda. J. that se27 is'by way of a proviso to s. 25 and s. 26 which prohibits proof of aconfession to a police officer or a confession made while the person isin police custody. It was further held that —
"in the scheme of the three sections the words 'a person accusedof any offence' will have to be given consistently one meaning andthat the words cannot have one sense in s. 25 and another in s. 27.
CA
Samson Atygala v. Attorney-General (Bandaranayake. J.)
393
So if a person making a statement should have been accused of anoffence at the time he made it then s. 25 would be renderednugatory, as confessions made to a police officer by a person beforehe was accused of an offence would not be excluded by s. 25. Sucha construction would circumvent the rule of'exclusion embodied ins. 25 and the rationale of the'rule will be rendered meaningless."
The case of Narayanaswamy v. Emperor (4) was cited where it wasconsidered that s. 25 covers a confession made to a police.officerbefore any investigation had begun. It was not necessary that at thetime tfhe confession was made the maker should have been anaccused person. The confession will, be inadmissible if the makersubsequently became an accused person. The test is the position ofthe maker when the statement is sought to be adduced in evidenceand not his position at the time when he made it. So this constructionof the words "accused of an offence" in s. 25. was held to applyequally well to the words in s. 27 which has an exception to s. 25. Forthese reasons the submissions of learned counsel must fail on thisaspect of the case.
It may be pertinent to point out that s. 27 is not only a mere provisoto ss. 25 and 26 as s. 27 is not restricted to confessional statements.In this sense it has a more extensive application than ss.25 and 26.But when one is dealing with confessional statements its relationshipto ss. 25 and 26 is that which renders the fact discovered admissible.
As to whether the deponent should be in the custodyof the police inorder to make a statement leading to the discovery of a relevant factadmissible it was held by Sharvananda, J. that for (he purposes of s.27 the words “police custody" do not necessarily mean detention orformal arrest. It includes police surveillance and restraining of themovements of the person concerned by the police. The term"custody" has to be interpreted within wide limits.
In the instant case, the evidence is that in the course of theinvestigations the police wanted to question the accused regardingthe loss of the rice ration books and so they sent a message asking theaccused to appear at the police station. It was in consequence of thatmessage that the accused appeared before the police. It must beremembered that in this case the accused was the Manager of theCo-operative Society Store and in the course of his duties he wouldcome into the possession of rice ration books and he had to perform
394
Sri Lanka Law Repons
[1986] 1 SriL.R.
certain duties in respect of those books. Having regard to the nature ofthe charge the accused would have been in a position to provide vitalinformation to an investigator. It is in this setting that the accusedappeared before the police. Now s. 23(1) of the Code of CriminalProcedure Act 1 5 of 1979 sets out how an arrest may be made. Inmaking an arrest the person making the same shall actually touch orconfine the body of the person to be arrested unless there be asubmission to the custody by word or action. It is relevant to bear inmind in this instance whether there has beep a submission to custodyby the accused in his coming to the police station, being interrogatedand his statement being recorded. The evidence is that upon his^irrivalat the police station the accused was first interrogated and^then hisstatement was recorded. Two passages from that recordedstatement were referred to in evidence as P6 and P7. The passage'P6' was as follows:
" d qQ© eb©03cS o© * S ’OtsS ©es>G>SkscsJ sax;<5 Oated oa>©>
d©5 oa>©5 dcbsxs <5>D soj^fto© soc$©«>0 gdOri."
The next passage 'P7‘ was as follows:
■ Smri Sri ©mm <;®j oe>£b cjt6 qcs<5 Smd ogomj© msOcjdsd at»£b
<f;m. •
The police then accompanied the accused to his house. There theaccused picked up a tin which was in a drain near his house and gave itto the police officer. The officer opened the tin and in it he found 90rice ration books of the 28th series, and thereafter the police officeraccompanied the accused to the Co-operative Store and the accusedwent inside the Store and from a gunny bag which was amongst othergunnies with goods in them the accused pulled out 24 rice rationbooks and handed them over to the police officer.
From the above evidence it is clear that from the time the accusedsubmitted himself voluntarily at the police station for the purposes ofthe investigation that was afoot, he was not free to go away. It is acompelling inference that as a result of the interrogation the police hadgot vital information which they then proceeded to record so that atthe time the accused gave this information to the police it could fairlybe said that he was in police custody, and that at the time theinformation was reduced to writing he was in police custody. Thesefacts therefore satisfy in my view the requirements of s. 27.-In thisview of the facts the submission of learned counsel for theaccused-appellant that the appellant was not an accused in custody iswithout merit and fails.
CASamson Atygala v. Attorney-General (Bandaranayake. J.)395
I now turn to a more compelling submission of law made by learnedcounsel for the appellant. That is, that the statements P6 and P7which were elicited in the course of oral testimony were not producedat the trial in the form of documents. It was submitted by learnedcounsel for the appellant that the written record of the oral statementwhich led to the discovery of the fact must be proved and that noevidence could be given of it except the document itself or secondaryevidence of its contents in cases in which secondary evidence isadmissible. Learned cour^el relied strongly on the decision of theCourt of Criminal Appeal in the case of The Queen v. R. P. D.Jayaskna (5). Counsel referred court to the evidence in the instantcase wljpre the police officer S. I. Senaratne has referred to thecontents of P6 and P7 which are now found in his evidence in therecord. The witness has also said that he is producing those twostatements as P6 and P7. But for some strange reason the matter hasstopped there. Certified copies of P6 and P7 have not been producedas documents at the trial. The question therefore is whether the oralevidence of the Sub-Inspector which is now found in the record of thecase and which has reference to marking which the prosecution nodoubt intended to give the certified extracts of these statements aresufficient as prdof of the contents of.the documents without proof ofthe documents themselves. It was the decision of Sansoni, C.J. in thecase cited Queen v. Jayasena (supra) that inasmuch as the statementmade to a police officer by any person in the course of an investigationunder Chapter 12 of the Criminal Procedure Code-Cap 20 of theLegislative Enactments of Ceylon (since repealed) must be reduced towriting, s. 91 of the Evidence Ordinance debars any evidence beinggiven of it except the document itself. Accordingly if it is a statementfalling under s.27 of the Evidence Ordinance, and in fact is deposed toas discovered in consequence of the statement, oral evidence of suchstatement is inadmissible. The relevant portion of s. 91 reads:
"in all cases in which any matter is required by’law to be reduced
to the form of a document, no evidence shall be given in proof of
such matter except the document itself or secondary evidence of its
contents etc".
In the course of his reasoning Sansoni, C.J. referred to the viewtaken by the Court in the case of King v. Haramanisa (6) which heldthat by reason of s.91 of. the Evidence Ordinance only the writtenrecord of a statement made to a police officer in an investigation underChapter 12 of the Criminal Procedure Code-Cap 20 of the Legislative
396
Sri Lanka Law Reports
(1986) 1 SriL.R.
Enactments of Ceylon is admissible in evidence, and to the contraryview taken by the Court in Rex v. Jinadasa (7) which held that oralevidence of the statement of an accused falling under s.27 of theEvidence Ordinance was admissible. Reference was also made to thecase of The Queen v. Murugan Ramasamy (8) where the Privy Councilconfirming the construction given to s. 1 22(3) in Reg v. BuddarakkitaThem (9) held that s. 122(3) of the Criminal Procedure Codeprohibited the admission in evidence not only of the written record butalso the use of oral evidence of any information given. To this extent itoverruled the decision in Jinadasa's case (supra). It was also h^d thats. 122(3) did not exclude evidence being given under s.27 of theEvidence Ordinance. No express decision was given by tne PrivyCouncil on the question as to whether the written record or oralevidence should be led under s.27 but in fact it was the written recordthat was produced in Jayasena's Case (supra). Sansoni, C.J. went onto say that the correct mode of proof^of a s.27 statement was theproduction of the written record, and following the decision in King v.Haramanisa (supra) aforesaid held that as a statement made unders. 1 22(1) of the Criminal Procedure Code must be reduced to writingthe imperative provision of s.91 required that no evidence could begiven of it except the document itself. The Inspector of Policetherefore should not have been allowed to give oral evidence as towhat the accused told him and there was no justification for adeparture from the rule contained in s.91. As I have said learnedcounsel for accused-appellant in the present appeal relies strongly onthe reasoning set out above.
The decision in the case of Queen v. Jayasena (supra) aforesaid wasmade at a time when the earlier Criminal Procedure Code wasoperative. At the time of the trial in the instant case chapter II of theAdministration of Justice Law No. 44 of 1973 was the operative lawin regard to Criminal Procedure. Now, in regard to the recording ofstatements of persons in the course of investigations a significantdifference between the earlier Code and the Administration of JusticeLaw is apparent, i.e. the difference between s. 122(1) and s. 70 (3)of the Administration of Justice Law. Bearing this in mind I nowpropose to examine, the decision of the Court in the case of Queen v.Jayasena (supra). The Court in Jayasena's case (supra) took thedecision of the Privy council in the case of Queen v. MuruganRamasamy (supra) aforesaid to mean that all aspects of the decision ofthe Court in tne case of Rex v. Jinadasa (supra) should not be followed.
CASamson Atygala v. Attorney-General (Bandaranayake. J.)397
This view does not appear to be justified for the reason that therewere separate and distinct matters which were decided in the case ofRex v. Jinadasa (supra) and the question that was decided by the PrivyCouncil in Murugan Ramasamy's case (supra) vyhich had the effect ofoverruling a decision in Jinadasa's case (supra) related only to one ofthe matters that was, decided in Rex v. Jinadasa (supra),, namely, theconstruction and scope of s. 122 (3) of the Criminal Procedure Codein relation to s. 27 of the Evidence Ordinance, viz. whether thestatutory bar in s. 122 (3)^pplied only to the written record or to anoral stgtement as well. But in the case of Rex v. Jinadasa (supra)findings were also made as to the bearing of s. 91 of the EvidenceOrdinance on s. 27 of that Ordinance and on s. 122 (3) of the CriminalProcedure Code. In Jinadasa's case (supra) it was pointed out by Dias,S. P. J., that when s. 122 (1) required an oral statement to bereduced to writing it did not mean that s. 91 of the EvidenceOrdinance applied to such a statement for the reason that it was notintended that the oral information given under s. 122 (1) was to beconverted in its form to the form of a document. Under s. 122 (1) nooath was to be administered to the deponent nor was the statementto be signed by the deponent. Such an intention to convert thedocument to be the maker's own and adopted by him could be seenupon a comparison of s. 1 20 (1) of the Criminal Procedure Code withs. 91 of the Evidence Ordinance which requires that an informationgiven orally be reduced to writing and be read over and be signed bythe person giving it so that the document then is adopted by andbecomes the document of the person who signed it and not a mererecord by a police officer of what somebody said. So under s. 120 (1)to wit: a first information recorded, becomes the document of theperson who made it and is adopted by him as his own and it forms thefoundation for.an investigation by public authorities. This is animportant distinction. It is convincing in principle and reconcilable withthe opinion of the Privy Council aforementioned. Eminent writerssupport this view-vide G. L. Peiris-"Law of Evidence in Sri Lanka"p. 172 et seq. In my view it would be wrong to say that the PrivyCouncil overruled this point which was decided in Jinadasa's case(supra). In fact this point was left untouched. In the result, theconclusion in Jayasena's case (supra) referable to a repealedenactment and based as it is upon a misinterpretation cannot be calledin aid as binding precedent. I say this with respect to that Court. Astatement recorded under s. 122 (1) was not governed by the rule ins. 91 of the Evidence Ordinance and for that reason to say that s. 91-
398
Sri Lanka Law Reports
[1986] 1 Sri L.R.
governs a statement recorded under s. 122 (1) which led to thediscovery of a relevant fact and rendered admissible under s. 27 of theEvidence Ordinance would not be justifiable.
But as I said earlier the difference between the provisions of s. 122of the Criminal Procedure Code. Cap 20 of the LegislativeEnactments of Ceylon, and s. 70 (3) of the Administration of JusticeLaw which was its successor is of particular, significance to theunderlying argument of learned counsel for the appellant. Linder s. 70(3) of the Administration of Justice Law a police officer making aninvestigation may examine orally any person acquainted wj|h thefacts. He shall reduce into writing any such statement made by theperson examined and the person making the statement shall'sign thatstatement. In such circumstances it is correct to determine that whena person makes a statement under s. 70 (3) he adopts the statementand makes the record of what he said his own. In other words there isa legal requirement that such a statement be reduced to the form of adocument. Section 91 of the Evidence Ordinance requires that whenany matter is required by law to be reduced to the form of a documentno evidence shall be given in proof of such matter except thedocument itself or secondary evidence of it. It is quite different to astatement that was recorded by a police officer under s. 122 (1) ofthe earlier Criminal Procedure Code which was repealed. So we seethat at the time the investigations into the instant case were done theoperative law dealing with criminal procedure was the Administrationof Justice Law which required that the information that the accusedgave should be reduced to the form of a document. It is my viewtherefore that s. 91 does apply to a statement recorded in terms of s.70 (3) of the Administration of Justice Law*. For this reason such astatement which led to the discovery of a relevant fact madeadmissible by s. 27 of the Evidence Ordinance must be reduced to theform of a document and it is only that document that could be provedas evidence in a case. No oral evidence of the contents of such adocument is admissible in evidence. The admission of oral evidencewould be an unwarranted departure from the statutory requirement. Itmay be observed that the current provision contained in s. 1 10 (1) ofthe Code of Criminal Procedure Act which succeeded theAdministration of Justice Law is similar to that in s. 70 (3) of theAdministration of Justice Law. Applying the principles discussed anddecided in Jinadasa's case (supra), the accused-appellant is entitledto succeed in this appeal for the reason that evidence of the contentsof statements'recorded by the police referred to as P6 and P7 remain
CA
Samson Atygala v. Attorney-General (Bandaranayake. J.)
399
in the realm of oral testimony and have not, in fact,-been proved by theproduction of certified extracts of the statement that was recorded. Itherefore quash the conviction of the accused-appellant. In this case,however, the facts that were discovered in consequence ofinformation given by the accused himself tend to establish that theaccused knew of the whereabouts of the corpus delicti suggesting hisconnection in the crime. If believed it is in the nature of presumptiveevidence which shifts the burden of proof to the accused. Thereforethe appropriate order that should be made is that this case be sentback to the Magistrate for«re-trial. I accordingly remit the case to theMagistrate for a trial de novo.
SIVA SEkLIAH, J. – I agree.
Case sent back for re-trial.