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THE QUEEN v. ANISU LEBBE et al.D. C., Batticaloa (Criminal), 2,056.
Criminal procedure—Questions and answers under s. 16 of Ordinance No. 1 of
1888—Criminal Procedure Code, s. 478.
Questions pnt to an accused by a Police Magistrate at a non-summaryinquiry, and answers elicited from him under section 16 of OrdinanceNo. 1 of 1888, cannot, without proper proof, be read in evidence at thetrial. If it is sought to put- such questions and answers in evidence,they must be proved by some person who was present at the inquiry andheard them.
The irregular reception of such questions and answers in evidence isfatal to a conviction, it being impossible to say what effect thisimproperly recorded evidence may have had on the Judge's mind.
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The object of the provision in section 16 of Ordinance No. 1 of 18f^is to call the attention of the accused to the varions points which havebeen proved against him, so that he may have an opportunity of explain-ing them, and that they may not remain unexplained in consequence offorgetfulness on the part of the accused, or ignorance of their bearing andeffect.
rpHE facts of the case sufficiently appear in the judgment.
Pereira, for accused, appellant. At the close of the case for theprosecution, the statement of the accused in the Police Court andcertain questions and answers recorded by the Police Magistrateunder section 16 of Ordinance No. 1 of 1888, were received inevidence. The reception in this way of the questions and answerswas irregular. There is no provision in our Criminal Procedureauthorizing it. Under section 15 of the Ordinance the PoliceVMagistrate may record certain statements and confessions by theaccused, and in that very section there is provision that suchstatements and confessions purporting to have been duly recordedand signed Bhall be admissible in evidence without further proof ;but section 16, which deals with questions and answers, has noprovision as to their admissibility in evidence at the trial withoutfurther proof. The reception of these questions and answers inthis case prejudiced the accused. The questions embody Borneincriminating statements said to have been made by the accusedat some time before the Police Magistrate, but those statementsthemselves had not been put in evidence at the trial. That beingso, the accused was under no liability to explain them at the trial,and questions regarding them could not be put, the object of theprovision in section 16 of the Ordinance being to enable the accusedto explain any circumstances appearing in the evidence againsthim.
Dias, C. G., contra.
11th October, 1895. Bonsbr, C.J.—
In this case four men were tried on a charge of robbing atemple, and were convicted. Certain questions put to the first andsecond accused by the Police Magistrate in the preliminary inquiryunder section 16 of Ordinance No. 1 of 1888, and the answersthereto, were put in evidence by the prosecution, by simplyproducing the record which purported to be signed and certifiedby the Magistrate in the manner provided by section 136 of theCriminal Procedure Code. No one was called to prove that thesequestions were put and these statements were made, and it wasassumed that they were admissible in evidence by virtue of section
October 11.Bosses, O.J.
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'473 of the Criminal Procedure Code, as explained and amended 1895.by section 15 of Ordinance No. 1 of 1888. The Ordinance No. 1 October 11.of 1888 first introduced the procedure of questioning the prisoner Boxbeb, Ojr.with a view to enabling him to answer points in the evidence forthe prosecution which told against him. It is a very usefulprovision for an innocent man. A man may forget the variouspoints which have been proved against him. The object is thatthe Magistrate or Judge, as the case may be, should call hisattention to the points so that he may have an opportunity ofexplaining them, and may not omit to explain them throughforgetfulness of what has been stated, or from ignorance of theirbearing and influence.
Section 16 of Ordinance No. 1 of 1888 provides that everyquestion and answer is to be recorded, signed, and certified in thesame manner as the examination referred to in sections 368, 369,and 370—nothing more. Now, section 473 of the Code hadprovided that (1) statements or confessions of an accused takenand recorded, as provided by sections 136 and 368, that is, state-ments and confessions made out of Court; (2) that statementsor confessions made before the Police Court as provided for bysections 171 and 368; (3) that the statement or statement andexamination of an accused under section 352 of the Code; and
that the deposition of a witness taken and recorded underthe provisions of the Code—might, under certain circumstances,be given in evidence in any subsequent judicial proceeding or inany later stage of the same judicial proceeding. It would appearthat the intention was to provide that they might be given inevidence without further proof, but that was not so provided.
That omission was rectified by section 15 of Ordinance No.lof 1888,which providesthat all statements and confessions which purportto have been duly recorded and signed in manner provided bysection 136, were to be admissible in evidence without anyfurther proof. But neither section 473 of the Criminal ProcedureCode, nor section 15 of Ordinance No. 1 of 1888, makes anyprovision as regards these questions under section 16 of OrdinanceNo. 1 of 1888, or as regards the answers to these questions.
Therefore, if they are to be put in evidence, they must be putin evidence under the general law. They must be proved bysome person who was present and heard them. That being so,these questions and answers were wrongly received in evidenceby the District Judge. The accused are entitled to insist on theformalities of the law being strictly complied with, and thatnothing should be put in evidence against them except it belegally proved. It is impossible for us to say what effect this
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1896.improperly recorded evidence may have had on the District Judge's^
OsMer it. xnind. We cannot eliminate it and say that there was sufficientBoots*, cj. proof without it, and therefore the only course open to us is toquash the conviction, and order the case to be remitted to theDistrict Court for trial with assessors.
There is another point which arose upon this appeal. Itappears that one of the accused had made a statement at an earlyBtage of the preliminary inquiry in which he incriminatedhimself. The Police Magistrate, when examining him undersection 16 of Ordinance No. 1 of 1888, very properly brought thiBprevious statement to the attention of the accused and asked himif he had any explanation to offer as to that statement, but he saidthat he was not in his proper senses at the time, and that it mighthave been a slip of the tongue. At the trial before the DistrictJudge that question embodying the statement of the accused wasput in evidence, but there was no independent evidence that thatstatement was ever made. I think that that was not fair to theaccused. Before that question was put in evidence, the statementof the accused should have been proved against him, which mightvery easily have been done, as it apparently had been recordedin the proper way.
THE QUEEN v. ANISU LEBBE et al