003-NLR-NLR-V-58-BUDDHADASA-Petitioner-and-A.-MAHENDRAN-Officer-in-Charge-Police-Station-Mat.pdf
8Buddhadasa v. ISIahendran
1956 Present: Weerasooriya, J., and H. N. G. Fernando, J.BUDDHADASA, Petitioner, and A. MAHENDRAN (Officcr-in-Charge,Police Station, Matara), Respondent
S. G. 31-5—Application for a Writ of Mandamus
Information Bool:—Statements of persons recorded therein—Their evidentiary value incivil proceedings—Right of a litigant to obtain copies of them—" Publicdocuments ”—“ Right to inspect ”—Proof of Public Documents Ordinance, s. 3—Evidence Ordinance, ss. 74, 70,100—Criminal Procedure Code, ss. 121 (1), 122—Mandamus.
A party to an action is not entitled to resort to section 3 oT tlio Proof of PublicDocuments Ordinance in order to obtain certified copies of statements takendown in an Information Rook in terms of sections 121 (1) and 122 (1) of thoCriminal Procedure Code unless lie can show that at tho trial of tho action it willho necessary for him to adduce proof of tlie contents of those statements.
A statement reduced into writing by a police officer in terms of section122 (I) of the Criminal Procedure Code is not a statement- of tho witness, a record■of which it purports to be, but is tho statement of the police officer as to what thowitness told him. Therefore, a certified copy of such a statement cannot heused in civil proceedings either to corroborate or to contradict the witness whosostatement it purports to be.
A first information recorded in terms of section 121 (I) of flic CriminalProcedure Codo is of little or no value if tho informant, after having ncccs3 tothe statement and becoming aware of its contents, seeks to use it to corroboratehis own evidence.
Semble : In tho absence of specific statutory provision, a person is not-entitled to inspect a public document and to he furnished with a certified copy ofit-. The documents which a person “ has a right to inspect ” within the meaning■of section 76 of the Evidence Ordinance are only those in respect of which thoright of inspection is expressly conferred by enactment-
The'Attorney-General r. Gcctin Singho (1950) 57 X. L. R. -SO, dissented from.
A. PPLICATION for a Writ of Mandamus.
A collision took place between a motor car driven by A and a motor-cycle ridden by B in consequence of which B received injuries. The acci-dent was reported to the police by A on tho same day and his statementwas recorded by a police constable in terms of section 12L of the CriminalProcedure Codo. Thereafter, a police sergeant conducted an investigationinto tho causo of tho accident- in tho course of which ho recorded the state-ment of B at tho hospital and also tho statement of a person, C, at tho sceneof the incident. Subsequently B filed an action suing A in a sum ofRs.' 50,000 as damages for tho injuries sustained by him. Pending thotrial, A zhado tho present application to the Supreme Court praying for awrit, of Mandamus on tho officer in charge of tho Polico Station requiringhim, in terms of section .‘J of tho Proof of Public Documents Ordinance,to issue to him a copy of the statement made by A at the Polico Stationand also copies"of-the statements of B and C as recorded by tho Policoin tho courso of their mvestigation into tho accident.
Walter Jai/awardene, with.S; Yani'jasooriyar, for tho petitioner.
D. SL G. B. Jansse, Q.G., Solicitor-General, with B. B. T. Premaratne,Crown Counsel, and V. S. A. PuUenayegum, Crown Counsel, for Ihorespondent-.
. Cur. adv. viilt-
Aucrusfc 9, 195G. WEERASOORIYA, J.-
On the 7th December, 1953, a collision took place at a junction of tworoads within the town limits of Matara between a motor car driven bythe petitioner and a motor-cycle ridden by one 1ST. G. A. Samarasekerain consequence of winch the latter received injuries. The. accident wasreported at the Matara Police Station by the petitioner on the same dayand his statement was recorded by Police Constable Weeratunge who wason duty at the station. Thereafter Police Sergeant Pathmanathanconducted an investigation into the cause of the accident in the courseof which he recorded the statement of Samarasekera at the Matara CivilHospital and also the statement of one Don Austin Ambepitiya at thescene of the accident. Subsequently the petitioner was charged by theMatara Police with the commission of offences punishable under theMotor Traffic Act, Mo. 14 of 1951. One of the offences charged was basedon the allegation that he drove the car on the highway negligently orwithout reasonable consideration for other persons using the highwayand thereby caused grievous hurt to Samarasekera. After trial thejietitioner was acquitted of the charges preferred against him.Samarasekera then filed an action in the District Court of Matara suingthe petitioner in a sum of Rs. 50,000 as damages for the injuries sustainedby him.’ The petitioner has filed answer denying liability and the trialis pending.
Tiie petitioner states that for the purpose of his defence in that actionit is necessary for him to obtain certified copies of the entries in theInformation Book kept at the Matara Police Station relating to theaccident. In an attempt to obtain these copies his lawyers wrote a letterto the respondent, who is the officer in charge of the Matara Police Station,requesting that they be furnished with the copies under Section 3 of theProof of Public Documents Ordinance (Cap. 12) on payment of theprescribed fees. The respondent replied that the copies applied forcould not be issued but that on receipt of summons from Court the officerwho conducted the investigation and recorded statements would giveevidence relating thereto, “ subject to the claim of privilege ”.
The present application is made by the petitioner to enforce by a writof mandamus the issue to him of the coiiies referred to. At the hearingbefore us Mr. Jayawardene who appeared for the petitioner stated thatt he only copies required are of the statement made by the petitioner atthe Matara Police Station (being the first, information received by the-Police regarding the accident) and the statements of Samarasekera anttAmbepitiya as recorded by the Matara Police in the course of theirinvestigation into the accident' The Acting Solicitor-General appearingfor the respondent opposes this application..
It was held in the case of The Attorney General v. Geelin Singho 1 thata first information relating to the commission of a cognizable offencewhich is recorded in the Information Book is a public document withinthe meaning of Section 74 (a) (iii) of the Evidence Ordinance and that anaccused person who is subsequently charged with the commission of anoffence disclosed in that information is entitled under Section 7G of thesame Ordinance to be furnished with a certified copy of it on paymentof the prescribed fees. Section 76 refers to a public document in thecustody of a public officer tchich a person has a right to inspect, and theview expressed by the Bench of two Judges of this Court which decidedthat case was that, adopting the English common law right of inspectionof public documents as stated in Mutter v. Eastern and Midlands RailwayCompany the accused concerned had made out a right to inspect thepublic document in question by reason of the interest which lie had in itas the accused in the case. In holding that the first information wasa public document the same Bench dissented from what appears to bea contrary view expressed by the majority of the four Judges of theMadras High Court (constituting a Pull Bench) who heard the case ofQueen Empress v. Arumugam3 where that view was reached on aconsideration of certain provisions in the Indian Criminal Procedure Codeanalogous to the provisions contained in Chapter XII of our CriminalProcedure Code.
It would follow from the ruling in The Attorney-General v. Geelin Singho(supra) that an accused person is also entitled to be furnished with copiesof any statement relating to the matter of the charge against him andrecorded by a Magistrate under Chapter XIII of the Criminal ProcedureCode even where the statement has been made by the accused,himselfand amounts to a confession. But it is to be noted that while under■Section IGod of the same Code an accused who is committed for trial isentitled to be furnished with a copy of the proceedings of the non-summaryinquiry on payment of the prescribed fees, and Section 434 of the Codegives a similar right to any person affected by a judgment or final orderof a criminal court of obtaining a copy of the proceedings in which thejudgment or order was given, there is no specific provision in the Code foran accused or other person being furnished with copies of statementsrecorded under Chapter XIII of it. In the case of Emperor v. Swam iyar 4the question that arose was whether an accused person was entitled,before the commencement of the preliminary inquiry against him, tocopies of statements of witnesses recorded by a Magistrate under Section1G4 of the Indian Criminal Procedure Code, which is the counter-part ofSection 134 (in Chapter XIII) of our Code, and it was held that lie had nosuch right. The judgment contains a reference to the English case ofMutter v. Eastern and Midlands Railway Company (supra) and the viewwas expressed, that the question whether any person has a right to inspecta public document on the ground of interest-is one not dealt with by theIndian Evidence Act and is altogether outside its scope. This is adecision of a Bench of two Judges of the Madras High Court-, one of whomwas Benson, J., who also was a member of the Bench which heard the
» IJOSC) 57 „V. £. Jtl SSO.3 (1S07) I. L. It. 20 Madras ISO.
* (1SSS) 3S Chancery Division 03.4 {1007) I. Z>. R. 30 Madras 166.
case of Queen Empress v.Arumugam (supra) and concurred in the majoritydecision in that case. But it must also be stated that Chitaloy andAnnaji Rao in their commentary on the Indian Criminal ProceduroCode 1 refer to certain decisions of the .Lahore and Allahabad Courts assupporting their opinion that statements recorded under Section 164“ are public documents, being the acts of a judicial officer done underthe provisions of the Code and the public servant, in whose custodythose documents arc, is bound to issue copies thereof and allow inspectionof the same by the accused person There is, therefore, a difference ofjudicial opinion in the decisions of the Indian Courts whether, in theabsence of specific statutory provision, a person has a right to inspecta public document and to be furnished with a certified copy of it.
The Evidence Ordinance contains no provision giving any right toinspect a public document, but Section 100 provides that wheneverin a judicial proceeding a question of evidence arises not provided for bythat Ordinance or by any other law in force in the Island, such questionshall be determined in accordance with the English Law of evidence forthe time being. The decision in The Attorney-General v. Geetin Singho(supra) that the accused person in that case was entitled to inspect thefirst information appears to have proceeded on the basis that where thereis no specific statutory provision conferring a right of inspection ofa public document the rule of English common law as stated in Mutter v.Eastern and Midlands Railway Company (supra) may be invoiced underSection 100 of the Evidence Ordinance, but, with all respect, it seemsto me that a claim that a person has a right to inspect a public documentdoes not raise a question of evidence and the matter is not one, therefore,which is governed by Section 100 of the Evidence Ordinance. This isthe view that was taken in Emperor v. Swamiyar (supra). Moreover,unlike in mu' Evidence Ordinance, there is no statutory definition ofa public document in English law*. But what is meant by a publicdocument under the common law of England was considered by theHouse of Lords in Sturla v. Freecia 2 where Lord Blackburn stated thatthe very object of such a document must be that it should be made “ forthe purpose of being kept public, so that the persons concerned in it may
I, >>
In Ilcyne v. Fischel and Company 3 it was held that documents made byofficers of the Post Office showing the times of receipt and delivery oftelegrams were not public records as they were kept for administrativepurposes and not for the information of the public. Again, in Pettit v.LiUey 4 it was held that regimental records were not public documentsbecause neither had the public access to them nor were they kept for theuse and information of the public. Goddard, L.C.J., also referred in hisjudgment in that case to the well-settled rule thairpublic documents aroadmissible as prima facie evidence of the facts stated in them. It wouldseem, however, that the documents considered in these two cases wouldfall within the category of public documents as defined in Section 74 of-our Evidence Ordinance.
{1935 ed.) 83d.30 T. L. It. 190. ■
(1SS0) 5 Appeal Cases 623 at 643.(1946) 1 A. E. It. 593.
Tho conception of a public document in English law and our law is,therefore, fundamentally different-, and in determining whether underour law a person has a right of inspection of a public document it would,in the absence of statutory provision conferring such a right, be unsafe toadopt the criterion of the English common law, as stated in Mutter v.Eastern and Midlands Raihvay Company (supra), that it depends on theinterest which the applicant has in what he wants to inspect. Moreover,wo have not been referred to any decision of the English Courts settingout the nature and extent of the interest which, under English law, wouldentitle a person to inspect a public document. In The King v. Clear l,even where a statutory right was conferred on the inhabitants of a parish,who had been assessed for the purposes of payment of poor relief, toinspect at all reasonable times the accounts of the churchwardens andoverseers relating to disbursements of poor relief, a writ of mandamusto enable inspection of the documents by an assessee was refused by theCourt as no special ground had been made out as to why inspection wasrequired. In Ex parte Briggs- it was held that a ratepayer had not-made out a case for the issue of a writ of mandamus to compel inspectionby him of the books of accounts kept by the churchwardens of a parishin the absence of some special and public ground. In both these casesthe documents the inspection of which was refused would appear to havebeen public documents as understood in English law and the personsapplying to inspect them had undeniably some interest in them, butsuch interest as they were shown to have was held not to be sufficient forthe issue of the writ-.
In the present case too the petitioner woidd appear to have an interestin the statements in question, but Mr. Jayawardene conceded that suchinterest alone would not entitle the petitioner to the issue of the certifiedcopies applied for. But he submitted that the respondent, who isthe public officer having custody of the Information Book of the MataraPolice Station, is under a legal duty, in terms of Section 3 of the Proofof Public Documents Ordinance, to issue to the petitioner certified copiesof his statement and the statements of Samarasekcra and Ainbepitiyaappearing in the Information Book on payment of the prescribed fees.It was also conceded by Mr. Jayawardene that Section 3 of that Ordinancedoes not refer to all books and documents in the custody of a public officerbut only to those books and documents the contents of which it shall benecessary for a person to adduce proof of in a Court of Justice or beforeany person having authority to hear, receive and examine evidence.
Tho basis of the present application'is, therefore, different from thatin the case of The Attorney-General v. Gectin Singho (supra) where thedocument was sought to be obtained under Section 76 of the EvidenceOrdinance. In order to succeed in this application the petitioner has tosatisfy the Court that at the trial of.the civil action it will be necessaryfor him to adduce proof of the contents of the statements of himself,Samarasekcra and Ainbepitiya as appearing in the Information Book. .
In Rex v. Jinadasa3 the Court of Criminal Appeal held that Section122 (3) of the Criminal Procedure Code imposes restrictions on the use
1 4 B (nut C SOT.5 US50) 2S L. J. Q. B. 272.
3 ( 70-50) 51 -V. L. 11. -529.
of tho police officer or inquirer’s record of the oral statement made to him,-but does not govern the admissibility of oral evidence of such statement,and that, accordingly, •where the law otherwise permits such evidenceto be given a police officer or inquirer may give oral evidence of a statementmade to him under Section 122 (1) and for that purpose he may refreshhis memory by reference to his record of that statement, which recordmay also be used to contradict him. The effect of that decision (if X haveunderstood it correctly) is that a statement reduced into writing bya police officer or inquirer in terms of Section 122 (1) of the CriminalProcedure Code is not a statement of the witness a record of which itpurports to be, but is the statement of the police officer or inquirer himselfas to what the witness told him. Although, if I may say so with respect,I find it difficult to appreciate the distinction, that decision is one whichis binding on us. It would follow, therefore, from that decision that,quite apart from the restriction imposed by Section 122 (3) of the CriminalProcedure Code on the use of that statement in criminal proceedings, sucha statement cannot be used even in civil proceedings either to corroborateor to contradict the witness whose statement it purports to be.
' The present application was argued before us by learned counselappearing for both sides on the footing that the statements in questionrelated to the commission of a cognizable offence. Although the chargeslaid against the petitioner in the criminal prosecution against him wei'ein respect of offences alleged to have been committed in breach of certain-provisions of the Motor Traffic Act, Kb. 14 of 1951 (which are notcognizable offences), it Is possible that on receiving information from thepetitioner regarding the accident the Matara Police considered themselvesunder a duty to investigate whether any offence under Section 328 of thePenal Code (which is a cognizable offence) had been committed.
• The ruling in Sex v. Jinadasa {supra) would, however, not apply toa first information relating to a cognizable offence recorded in terms ofSection 121 of tho Criminal Procedure Code, and such a statement could beutilised in civil or criminal proceedings either to corroborate or contradictthe witness giving that information should he be called to testify in thoseproceedings. In the letter written by the petitioner’s lawyers to therespondent applying for copies of the statements the reason given for theapplication was that the copies were needed “ to contradict the witnessesin case their evidence deviates from their statements made under Section122 ” (of the Criminal Procedure Code). But I do not see how, if thepetitioner gives evidence in the civil action, lie can utilise his firstinformation to contradict his own evidence. Nor is it likely that it-would be utilised by him for such a purpose even if the law permitted it.
Mr. Jayawardene contended, however, that it could be used to corroborate "his evidence. This contention I am unable to accept since the statementcan have little or no corroborative value if prior to the petitioner givingevidence he has had access to tho statement and became aware of itscontents.'.
As regards the other two statements, applying the ruling in Sex v.
J.inadasa {supra), they may bq made use of in tho civil action only forthe purpose of contradicting the police officer who reduced them into-writing or to refresh his memory, but they cannot be used to contradict
the evidence of either Samarasekera or Ambepitiya. On reference to therecord of the.civil action I find that Police Sergeant Pathmanathan, -whorecorded these statements, has been cited as a -witness by the petitioner.But at the present stage of the action the need to contradict this officerif he is called as a witness at the trial can be regarded as only exceedinglyremote. Should, however, it become necessary to do so or should the policeofficer wish to refer to the statements in order to refresh his memory,I do not see that the petitioner will be unduly hampered by not havingaccess to the contents of those statements at piesent since the respondenthas also been cited by the petitioner to produce at the trial the Informat ionBook containing those statements which will, therefore, be available tothe petitioner at the proper time for any purpose for which they maylegally be used.
It seems to me that the real object of the application is to enable thepetitioner to ascertain before the trial commences what statement wasmade by him to the Police when he reported the accident and also whatstatements were made by Samarasekera and Ambepitiya in thatconnection. There is nothing in Section 3 of the Proof of PublicDocuments Ordinance which confers a right on the petitioner to obtaincertified copies of the statements in order to achieve such an object.
. If this aj)plication is allowed, the knowledge derived by the petitionerof the contents of the statements made by Samarasekera and Ambepitiya(or, at least, of Police Sergeant Pathmanathan’s version of what thesetwo persons told him when questioned regarding the accident) wouldplace him at an advantage which normally is not afforded to a party toan action. Samarasekera is the plaintiff in the action and Ambepitiyahas been cited as a witness for the plaintiff, and in all probability theywill be called at the trial on plaintiff’s behalf to testify against thepetitioner. In Rambukwclle v. de Silva 1 the observation was made byBertram, C. J., that it is not proper that persons who have been, or arelikely to be, sub-poenaed by one side should be got by the other side tomake statements or to sign prepared statements. Although that casewas a proceeding questioning the validity of an election, the observationis equally applicable to any other civil proceeding.
In my opinion the application is devoid of aiy merit and must bodismissed. The petitioner will pay to the Crowii the costs of theseproceedings which are fixed at Rs. 525.
H. N. G. Ferxaxdo, J.—
I have had the advantage of reading the judgment of my brotherWeerasooriya and am in entire agreement with the conclusion he hasreached.
Although the application for certified copies was made in this casein terms of section 3 of the Proof of Public Documents Ordinance, I shouldmyself have seen no objection to directing that the copies should bofurnished under section 76 of the Evidence Ordinance if resort couldproperly have been had to the latter section. In my opinion, however,
1 (1024) 2G X. L,. It. 231 at 254.'
the documents which a person “ has a right to inspect ” are only thosein respect of which the right of inspection is expressly- conferred byenactment. Having regard to the existence of numerous enactmentsin which the Legislature has chosen with deliberation to confer sucha right, it would be unreasonable to suppose that the Legislature intendedby section 76 to add to the list of instances in which such a right could beclaimed. If the expression “ right to inspect ”, occurring in section 76,had had no meaning in our law owing to the lack of statutory provisionthere might well have been scope for the admission of English Law undersection 100 to fill the place of the casus omissus. But the existence ofample statutory provision conferring the right to inspect public documentscontradicts the view that there is here any question of a casus oinissiis.
should like to add also that section 3 of the Proof of Public DocumentsOrdinance is a provision which seems only incidental to the purpose of thatOrdinance, which is set out in the Long Title and in the Preamble (statedin the original enactment) as follows r—•.
“ An Ordinance to provide for the production in evidence of copies,instead of originals, of public documents ”.
“ Whereas much inconvenience is experienced from the practice, whichis now common, of summoning Public Officers to produce inEvidence, books and documents in their custody : It is herebyenacted by the Governor of Ceylon, with the advice and consentof the Legislative Council thereof, as follows :
Having regard to these declarations of the Legislature as to the object ofthe enactment, there is in my opinion much force in the argument of thelearned Solicitor-General that section 3 only requires a public officer, onapplication made by a partj* to any legal proceedings, to furnish to theCourt a copy of a public document, instead of producing the original inevidence. To hold otherwise would be to hold that the Legislature,having elsewhere made specific provision for the right of inspection and forthe right to obtain certified copies, intended in section 3 to confer a generalright of access to information contained in public records merely becauseof the pendency of legal proceedings.*
Ajtplication dismissed.