H. X. G. FERNANDO, C.J.—Mutliah c. The Queen3(;
[Cookt ok Chjmi.vai, Appeal]
1971 Present : H. N. G. Fernando, C.J. (President), Sirimane, J., andWeeramantry, J.
S. MUTTIAH. Appellant, and THE QUEEN, RespondentC. C. A. Xo. 9S of 1970, with Application No. 152S. G. 671109 M. G. Colombo, 11022/A
Kvidnicc— Criminal Procedure Cade, ss. 12] (2), 13], J4S—Scope oj n. 134.
By section 134 (I) of the Criminal Procedure Code—
“Any Magistrate may record any statement made to him at Huy timeheforo the commencement of an inquiry or trial. ”
Held, that, where a person is produced in custody before a Magistrate, togetherwith a report of the Police purporting to bo made under section 121 (2) of tlmCriminal Procedure Code, the Magistrate has jurisdiction at thut stage to recordany statement made by the accused person.
The Queen v. Gnanaicehu and others (73 N. J,. It. 151) partly considered.
.ApPEAL against a conviction at a trial before the Supreme Court.
K. Kanag-lsuaran (assigned), for the accused-appellant.y. Titlaivella, Senior Crown Counsel, for tlie Crown.
Onr. adv. vulh.
J11I3' 2, 1971. H. N. G. Fehxanj>o, C.J.—
We dismissed this appeal after hearing argument, and reserved ourreasons only bocauso of one matter which we shall discuss beforeconcluding this judgment.
Counsel for the appellant submitted that his client had been prejudicedby the undue publicity which this caso received in the Press. Thecase no doubt was of somewhat unusual interest, and was even thesubject of salacious speculation ; but that was only because of the identityof the young couple, an assault on whom was tho subject- of the chargesof attempted abduction and murder. We do not agree however thatthe publicity caused prejudice against tho appellant at his trial.j.xjliv—14
1*-K <331—2,255 (9/71
If. N. G. I'ER.N'.-UDO, C.J.—Muttiah v. The Queen
Counsel submitted that tho siuuming-up of the learned Commissionerdid not rofor in correct tornis to tho third limb of Section 291 of thePenal Codo that culpablo homicido is murder—
" If it is clone with tho intention of causing bodily injury to anyporson, and tho bodily injury intended to bo inflicted is sufficient intho ordinary courso of naturo to cause death. ”
Even if tho terms of tho relevant directions wore not strictly correcttiro loarnod Commissioner mado it quite clear that a porson who causosdeath by somo act has “ tho murderous intention ”, only if tho act isclone oithor with tho intention of causing death, or with tho intentionof causing bodily injury sufficient in the ordinary courso of naturo to■ cause death.
Counsel also submitted that the confession of the appellant whichwas proved at 1 he trial had not been mado voluntarily. Tho substantialground for this submission depended on tho identity of tho particularMagistrate who rocorded tho confession. Tho samo Magistrate had in19G6 recorded certain confessions, tho maimer of recording which wastho subject of comment in tho case of The Queen v. Gnanaseehu Thero and,others 1 (73 N. L. 1I-. p. 151). Tho submission in tho present caso inotfcct was that, because tho Magistrate had not exercised due caro inrecording tho confessions in the earlier case, a similar stigma shouldattach to the recording by him of tho confession in the instant case.Counsel did not however draw our attention to any matters which mightestablish any irregularity in tho recording of this confession. In anyevent, this confession was recorded on 3rd May 19G9, by which time theMagistrate had become aware of tho criticisms made in the former easeas to tho mannor in which ho had recorded the confessions in that case.Wo sec no reason to doubt the ruling of tho trial Judge that tho appellant’sconfession was made voluntarily.
In tho instant case, the appellant was produced in custody to thoMagistrate, together with a report of tho Police purporting to be madounder s. 121 (2) of tho Criminal Procedure Code. A day or two earlier,another person arrested by the Police on suspicion of being involved intho commission of tho same offences had also been produced beforeanother Magistrate. No point was taken in this appeal that theMagistrate who rocorded tho appellant's confession was not vested withthe territorial jurisdiction to record it. But Counsel for the appellantrelied on the head-note to tho report of tho judgment in The Queen v.Gnanaseeha Thero and others which reads as follows :—
” Hold, that section 134 can be acted upon by Magistrates onlyafter commencement of proceedings in a Magistrate’s Court and beforethe commencement of an inquiry or trial in thoso proceedings. AMagistrate lias no power to record statements (confessional or otherwise)at a stage prior to the institution of proceedings in a Magistrate'sCourt in any of the forms stated in section 1-1S(1) of the CriminalProcedure Code. ”
(/5«) 73 X. I,. H. tit.
H. N. G. FERNANDO, C.J.—Multiah v. The Queen
According to this head-note, the ruling in that case was that aMagistrate lias no jurisdiction under s. 13-1 of the Code to record astatement at any time before the institution of proceedings under s. 14Sof (lie Code. If that were in fact the ruling, we think it would needre consideration by this Court. Section 131 empowers a Magistrate torecord a statement made by an accused person "at any time” beforethe commencement of an inquirj' or trial. Its scope appears to be widerthan that of the corresponding section in the Indian Criminal ProcedureCode (Section 161) which empowers a Magistrate to record such astatement “ in the course of an investigation by the Police underChapter 11 of that Code.
Prima facie at least-, s. 131 does not reveal an intention to fix anyterminal point before which a statement concerning some alleged offencemay not be recorded by a Magistrate. But if such an intention mustbe assumed, then it would be necessary to consider which point is theintended terminal; and upon such consideration, one is immediatelystruck by the fact that a Magistrate is called upon to function as such,long before proceedings under s. US are instituted. Once the Policecommence inquiries under Chapter XII of the Code, s. 121 (2) providesfor a report being sent to the Magistrate’s Court, and when theinvestigation cannot be completed within 21 hours, s. 12G A (1) providesfor a report of the case to the Magistrate with a summary of the statementsmade by each witness. At that early stage, the Magistrate is calledupon to enlarge a person on bail or remand him. Often, lawyers appearfor the accused at that stage, and when the accused is not producedwith the report, there are instances when he surrenders to Court througha lawyer who may move that his statement be recorded. There is nogood reason to think that a Magistrate is powerless to record such astatement at that stage at least. One can think of instances in whichsuch an application may be made even before the Police become awarethat an offence has been committed.
Proceedings under s. 1!S of the Code are usually instituted afterinvestigations by the Police have been completed (save perhapssuch formalities as the receipt, of the Government Analyst's report,the preparation of a sketch, etc). The institution is commonly referredto as " filing the plaint
As soon as such proceedings are instituted, the accused is chargedfrom a charge sheet if there is to be a summary trial, or the charge isread over to him under s. 156 in the case of a non-summary inquiry,and thus the proceedings commence immediately. In practice, thereis very often no interval of time between the filing of a plaint unders. US when the accused is before Court, and the commencement of theincjuiry or trial. If then the first terminal point for the purposes ofs. 134 is the time of the filing of the plaint, there would in the majority
H. N. O. FERKAXDO, C.JMulti.,h r. The Queen
of eases be no interval of time during which a statement can be recordedunder that section, and (here would remain little or no scope for theoperation of that Section.
The eases where some time elapses between the plaint and thecommencement of proceedings are generally those where the accusedis not. present, and the Court issues a summons. This procedure usuallytakes place in the case of trivial offences such as criminal trespass, mischief,causing simple hurt, etc. They are hardly the type of cases where anaccused person would wish to make a confessiou.
Despite the statement in the Head-note to the report of GnanaseehaThero and others, wo find the matter differently stated in paragraph 74*of the judgment in that case :—
“ If the arrested person desires to make a statement he would have!o make his statement to a Magistrate of that Court and there wouldbe proceedings initiated and pending in that Court (sufficient to givea Magistrate power to act under s. 134) either by reason of a• reporthal ing already gone to that Court under s. 121 (2) of the Code or by reasonof the very act of bringing the arrested person in custody before theCourt accused of having committed an offence—see s. 14S (1) (d). ”
We find also in paragraph SI of the judgment the observation of theCourt that its conclusion a-s to the law in Ceylon as to the scope of s. 134is not substantially different ” from the law in India. Since the lawin India is that a Magistrate may record a statement in the course of aninvestigation by' the Police, we understand from this observation thatour s. 134 can commence to operate at some point prior to the time ofthe filing of a plaint.
In tlie instant case, there was a report under s. 121 (2) of the Code,made at the least when the appellant was produced before the Magistratewho recorded his statement, although it may well be that such a reporthad previously been made when another accused had.been earlier producedbefore another Magistrate.
The condition stated in the judgment under consideration was inour opinion satisfied in this case, and wc hold that the statement of theappellant was duly recorded under s. 134 of the Code.
We have now stated our reasons for dismissing the appeal.
* J>ce also paragraph 01 which states that a written report under s. 121(2/
can amount to the institution of criminal proceedings within the meaning ofs. US (1) (t).–Editor.
S. MUTTIAH, Appellant, and THE QUEEN, Respondent