DE KBETSEB J.—Schokman and Siriseua.
4944Present: de Kreiser J.
SCHOKMAN. Appellant, and SIRISENA et al. Respondents039—M. C. Anuradhapura, 10,620.
Search warrant—Written: information upon which the warrant issued-—Deposi-tion of witnesses—Evidence read over and explained—Gaming Ordinance,s. 5.
Where the written information upon which a search warrant wasissued under section 5 of the 63111111" Ordinance consisted of the deposi-tions of witnesses which were signed by them and wore read over andexplained to them by the Magistrate.
Held, there was a sufficient compliance with the requirements of thesection in order to raise a presumption of guilt.
^^PPEAL from an acquittal by the Magistrate of Anuradhapura.
J, Mervyn Fotiseka, K.C., Solicitor-General, with E. H. T. Gunesekcra,Grown Counsel, for the appellant.
L. A. Itajapak.se, K.C. (with P. Novara tndrajah), for respondents.
Cur. adv. vult.
December 1, 1914. De Kretseu J.—
Fourteen persons were charged with unlawful gaming. They hadbeen arrested when a place was searched under a search warrant. The-Magistrate held that the search warrant had not been issued in theconditions mentioned in section 5 (formerly section 7) of the GamingOrdinance. He found two of these persons guilty and acquitted theothers. The appeals of the persons found guilty have been dismissed.The complainant appeals from the acquittal with the sanction of theAttorney-General. The learned Solicitor-General contended on hisbehalf that the cases relied on by' the Magistrate do not apply in thecircumstances of the case. He rather hinted that those decisions mightwell be reviewed. I was inclined to send this appeal before a fullerBench but Mr. Rajapakse for the respondents strongly urged that Ishould not follow that course unless it were really needed.•
Section 7 of the Gaming Ordinance raises a presumption of guilt and,as remarked by Bertram C.J. in Police Sergeant, Tangalla v. Porthenis'the result of the issue of a search warrant is so drastic, that this Court
1 22 N. L. H. 163.
IDE KBETSEB .T.—Schokman and Sirisena.
4i*s come to the conclusion that special care should be taken to see thatall the conditions attaching to the issue of a warrant are fully complied .with
In a long series of cases, of which the one just referred to is only one, ■" the Courts have declared that the Magistrate must be satisfied upon ,sufficient prima facie evidence. It is not enough that general evidenceshould be given him that the informant has reason to believe that gamingis going on upon the premises The evidence must satisfy the Magistratethat there is good reason to believe that the place is kept or used as acommon gaming place.
Up to the date of that case the written information referred to insection 5 had been in the form of an affidavit. The question consideredalways was the sufficiency of the evidence before the Magistrate.
A new matter, however, came up for consideration before LyallGrant J. in Parson■ v. Kandiali *. There ft. witness was taken before a‘Magistrate, who recorded his evidence on oath. The witness did notsign the deposition nor was there anything to show that his depositionhad been read and explained to him. Lyall Grant J. said “ No doubtit would have been sufficient if the information, which was given onaffirmation, had been read over and explained to the informant andsigned by him ”. As there was no evidence this had been done he refusedto draw the presumption created by section 7.
This case lays emphasis not on the information being insufficient buton the fact that the information was not “ written information ”.
The same question came up before Drieberg .1. in Sub-Inspector ofPolice v. Jacolis Perns2. There the supporting witness put his mark tohis deposition and his mark had been attested by the Magistrate. Thewritten information had come in the form of an affidavit by a PoliceSergeant. Drieberg J. considered the material in the affidavit insuffi-cient and said “ it. is not necessary to consider the sufficiency of thematerial because the information by the witness was not properly beforethe Court He purported to follow Parson v. Kandiali. and agreed thatuntil the statement is read and explained to the deponent it was notwritten information. With all due respect I would say that the witnessdid not purport to be the informer in writing. The written informationcame from the Sergeant and the form had been complied with. ' The witnessapparently had been examined by the Magistrate in the course of makingthe inquiry referred to in section 5. Section 5 does not specify anyparticular form of inquiry nor is there any requirement that the .depositionshould be read over and explained to a witness and signed. Nor is thereany provision of the law requiring a Magistrate to read over and explainevidence to a witness and get his signature, except in certain casesspecified in the Criminal Procedure Code regarding proceedings under it.and even then there is provision for the defect being supplied by evidencealiunde. The fact remains that Drieberg J. thought that the recordedevidence was not written information unless it was read and explainedto the witness and signed by him.
1 (29 N. L. R. 94).
(30 N. L. H. 509).
DE KBETSEB J.—Schokman and Sirisrnu.
In Bartholomeusz v. Afendia' an Inspector of Police presented whatpurported to be an affidavit by him but it bad not been signed by him.Akbar J. held this was not written information on oath. A witness toohad been examined but there was nothing to show that the depositionhad been read and explained to him. Nor was Akbar J. sure he hadeven signed it. Akbar J. followed the view of Drieberg J.
These are the three cases followed by the Magistrate. The Solicitor-Oeneral referred me also to Edwards v. Per era2 where it was concededthat the issue of the search warrant had been irregular inasmuch as theinformation had not been read over and explained though it was signed-Poyser J., however, convicted on the evidence. Mr. Itajapakse referredme to Beddevela v. Abraham et al.3 where Poyser J. followed Drieberg J.
The present case is distinguishable from the above cases inasmuch asthe depositions were not only signed by the witness but there is evidencethat they were read over and explained to the witnesses, who at thetrial had no complaint to make regarding the accuracy of the record made.The case seems to have been tried in the absence of the permanentMagistrate, who probably would have been able to supply the assurancethat the depositions had been read over and explained, if he had beentrying the case.
The defect, if any, is one of form only and I would not be disposed tofavour technicality to such an extreme point as the respondents’ Counselcontends I should.
With all due respect, I should like to express my dissent from thejudgments relied upon by the Magistrate.
It is true that it is a serious thing to invade a person’s house and it is aserious matter to raise a presumption of guilt, but the Ordinance placesthe public interests as being of paramount importance and it would beunfortunate to raise technicality to such a height that the most importantprinciple is frustrated. I cannot see how if once information is recordedit is converted into written information, it becomes something less if itis not explained to, and then signed by the witness. The Magistrate is aresponsible judicial officer and one cannot assume he would make anincorrect record or would not realise the gravity of the step he was aboutto take. Such assumptions are not made when persons are tried onother matters affecting their liberty, and if the judgments referred towere given their full significance it would not be enough to record andexplain the deposition and get the witness to sign but there should alsobe a certificate by him that he acknowledges it to be correct. Otherwisewe would again be acting on a presumption, viz., that his signaturesignifies that he acknowledges it to be correct. We might then evenask to be satisfied that the deposition was properly explained and thatthe witness understood what was being said, because fie was. in strangesurroundings and in the august presence of a Magistrate. When aMagistrate records evidence he hears the question, he hears the answer,he sees how the answer fits the question, the record-is being made questionby question and there is scarcely any occasion for misunderstanding. 11
1 32 N. L. R. 333.* 4 C. L. W. 69.
11Times of Ceylon L. R. 57.
l)K KRETSER J.—Schokman and SirUcna.
especially when the witness is speaking in English or when he is speakingin the vernacular and the Magistrate understands him and can dispense'with an interpreter. Suppose the witness brought an affidavit, writtenby some one purporting to record his oral information, and he sworeto it before the Magistrate and immediately handed it to the Magistratethat would be sufficient. If under section 6 a witness made an oralstatement and the Magistrate got him to swear it was true that would beenough. If he produced a written statement and swore to it that wouidbe written information, but if the Magistrate were himself the scribe itwould not do, until it was explained to the witness and signed. Thisseems to be rather a quibble than sound reasoning. The Magistratewould record the information in a manner much mole likely to create abetter impression on the witness and on the Magistrate.
Under section 6 (a) a house is liable to be searched by the Magistratemerely because it has been branded within six months as a commongaming place by the conviction of some person. There the Magistratehas a record before him, but the conviction spreads such a miasma ofsuspicion that it lingers on long enough to raise a presumption that theplace is still a gaming place and may lawfully be raided. It is a case ofthe public welfare coming first. It is also a case where the Magistratehas information -within his knowledge and control and could be trustedto use his discretion.
By section 6 (b) a Magistrate is empowered to act in an emergency on■unsworn and unrecorded oral information. Presumably as a responsibleofficer he satisfies himself before acting but he is acting in such a hurrythat he has no time to record the information. He may act regarding aplace hitherto unbranded as a common gaming place. Again a case ofthe public welfare coming first. It is also a case where he has no timefor issuing a search warrant and getting a suitable person to execute it.If he receives written information on oath from some person he has notseen or may not see before he acts (for the information need not behanded in personally, who may be an ignorant catspaw of some person,he may issue a search warrant.
It seems to me that the provision as to written information may beonly a provision as to the means of .communication, providing both aconvenient and secret method for the informant. Evidence by affidavitis something less than evidence taken by the Magistrate and I cannotbelieve that the Legislature had a rooted preference for the former. Itis a Magistrate who must be informed and it is he who must be satisfiedthat the place is a common gaming place. He is given a discretion as tohow he may act. He should not act till he is satisfied and this Courtcannot, beyond a limited degree, he the guide of the Magistrate'sconscience.
There is a distinction between written and oral information, but thereis also the distinction between little time being available and moreleisurely action. Is then the real distinction between a case for quick-action and a different case or is the emphasis on form ? Is the Magistrateempowered in section 6 to act only because he has no time for issuing asearch warrant after selecting a suitable person to execute it or doeshis presence account for the difference 1 It &eems to me that the vital
]>K KRETSER 3.—Schokman mid Sirinnw.
matters to be considered are the public welfare and the Magistrate’sresponsibility and the form in which the information comes is anincidental matter.
Section 12 (3) of the Oaths Ordinance does riot require a Commissionerof Oaths to explain an affidavit but only to state in his jurat the placeand date when the oath was administered and to initial all alterationserasures or interlinerations which had been made (not necessarily byhimself) before the oath was administered. Section 4. does not requireexplanation of the deposition to witnesses nor that their signature shouldbe obtained. Section 6 provides for existing forms and formalities to becontinued until fresh rules are made. I inquired but was not referred toany rules governing this matter nor have I been able to find any.
Section 84 of the Courts Ordinance empowers Justices of the Peace to
administer oaths. Section 82 relates to judicial officers. Neither section
requires explanation of an affidavit. Under the English rule No. 53
where au affidavit is made by a person who appears to the officer taking
the affidavit to be illiterate or blind then the jurat- should state not
merely that it was read over to the deponent but that he seemed perfectly
to understand it. If there is no such certificate there must be other
evidence that the affidavit was read over and apparently understood by
the deponent. A Magistrate may well make such inquiry under section 5
if the deponent were before him, but if he was not, why should he assume
that the man was either blind or illiterate ? The term “ written
information ” may have been borrowed from the English Law, where an
information mai-ks the beginning or institution of proceedings before • a
Court of summary jurisdiction and it lies when an offence is alleged to
have been committed. I am not aware that in Ceylon proceedings are
instituted in any way not provided for in the Criminal Procedure Code.
The term “ information ” was used in earlier enactments.
It seems to me that when a person gives oral information a Magistratemay decline jurisdiction if he does not desire to institute the search himselfor sees no emergency such as section 6 contemplates.
If a person gives written information it must- not only be on oath butshould be full enough to justify a Magistrate acting on it without furtherinquiry.
If the information is not full enough, pr for any other reason theMagistrate desire it he may make inquiry and that would include therecording of evidence.
There is nothing to prevent a Magistrate being the scribe and pre-paring the written information, administering the oath either at the startor after reading over and explaining what he has prepared. He mightthen present such written information to himself. But this is only sayingthat he might not only receive evidence but take evidence.
The question seems to be not whether the witness signed or whether thedeposition was read over and explained but whether the case is oneprovided for in the Ordinance: is the search warrant one issued underthe Ordinance? The answer would depend on whether the terms of theOrdinance can be satisfied in substance and the form is immaterial-
KEUNEMAN T.—Namasivayajn Chetty and Ragsoobhoy.
Whether the Magistrate has assumed a jurisdiction the Ordinancedid not give him, or whether he always had jurisdiction to issue a searchwarrant and the Ordinance only provides the method of approach to him.
In my opinion the form of approach is not an imperative provition andinformality or irregularity should not matter as long as the Magistrate isproperly satisfied. But I need not do more than decide that the evidencein this case has supplied the material which was wanting in the casesreferred to and, therefore, the presumption arises. The accused did notchoose to give evidence or to call witnesses, though given an opportunityof doing so. The Magistrate has accepted the evidence of the prosecutionand the only question is whether that evidence discloses facts rebuttingthe presumption of guilt, which cannot be a strong presumption. Itind no such evidence. The Magistrate fined the first accused Rs. 20and the 13th accused, who took a prominent, part in running the gaming,only Rs. 30.1 find the respondents guilty and sentence each of them to
pay a fine of Rs. 20. The Magistrate will give them such time as hethinks, proper in which to pay the fine. In default, in each case of defaultthe sentence will be two weeks' rigorous imprisonment.
I would add that I can see no reason why the Police should not adopt awiser and easier procedure. I was informed that Assistant Superin-tendents of Police are .Justices of the Peace. They could easily record theinformation, explain it to the deponents and get them to swear to theirdepositions and sign them. They could then produce the witnesses andthe Magistrate would act wisely in explaining the depositions to thewitnesses and seeing that they stand by them and he could make a recordof what he has done. On being satisfied he has sufficient material beforehim he could then issue the search warrant. This would obviate anyoccasion for the validity of the search warrant being later questioned.
SCHOKMAN Appellant , and SIRISENA et al.Respondant