062-NLR-NLR-V-16-DEHERAGODA-v.-ALWIS.pdf
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Present: Ennis J.
DEHEBAGODA u. ALWIS.
96—P. C. Balapitiya, 37,196.
Charge under Penal Code, s. 177—Refusal to answer a question by a policeofficer—Question having a tendency to expose kirn to a criminalcharge—Criminal Procedure Code, s. 122.
A person is not bound to answer a question put to him by a policeofficer (by virtue of the powers conferred on the police by section122 of the Criminal Procedure Code) if it has a tendency to exposehim to a criminal charge.
Ennis J.—Exactly what degree of evidence is required todecide whether any question has a tendency to one thing or anotheris difficult to say, but in this case the question put to the brotherof the person who is alleged to have stolen property as to whetherhe recovered that property and returned it to the complainantwould, in my opinion, possibly have a tendency to expose him to acharge of attempting to compound the offence.
T
HE accused in this case was charged under section 177 of thePenal Code with having declined to answer questions put to
him by a Sub-Inspector of Police when he was legally bound tospeak the truth and answer such questions.
The only evidence in the 6ase was that of the complainant (Sub-Inspector) :—
James Deheragoda, sworn.—I am Sub-Inspector of Police, Ambalan-goda. On January 31, in the course of my inquiry into a charge oftheft brought against this accused’s brother, in P. C. Galle, 4,166, Iquestioned accused as to whether the property alleged to have beenstolen by that brother had been recovered by this accused from theperson to whom the brother had given them and returned to the com-plainant in that case. Accused refused to answer. I asked himwhether he recovered the things on June 26 from the boutique of SimqnSilva or any other boutique at Ambalangoda.
Accused said he would reserve his answer. I said I must have areply, then he refused. The answer to the question would not haveincriminated accused.
I asked him whether Wickramanayaka came to his house on the 26thultimo. Wickramanayaka was the complainant in the Galle caseagainst accused. Accused said yes.
Cross-examined.—Accused left the Police Station when I was ques-tioning him. He said he had much business. Accused did not say hewill consult his lawyers before he answered. He said he might comenext day. I have no right to administer an oath.
1913.
1918.
Dehemgoda0. Alwi»
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The learned Magistrate (H. J. V. Ekanayaka, Esq.) delivered thefollowing judgment:—
I find the accused guilty. He has refused to answer a question whichwould in no way have incriminated him in connection with an inquiryinto a charge against his brother. He, no doubt, wanted time to seewhat was best to say to proteot his brother.
The efficiency of police investigation depends entirely on the prompti-tude with which statements are recorded so as to preclude possibilityof concocting falsehoods in concert.
I fine the accused Ks. 100, or in default three months’ simple imprison,ment*
The accused appealed.
H. A. Jayewardene, for the accused, appellant.—The answer tothe question put to the accused would have exposed him to a cri-minal charge. Section 122 of the Criminal Procedure Code speciallyenacts that a person is not bound to answer a question if theanswer would tend him to a criminal charge of compounding theoffence. The accused did not totally refuse to answer.
Bawat K.C., Acting B.-G. (with him Baxter, C.C.), for therespondent.—It is for the accused to show that the answer wouldincriminate him. There is no evidence that the question put to theaccused was one which would have exposed him to a criminalcharge. The powers given by section 122 of the Criminal ProcedureCode would be useless if the person questioned is to be the judgeof- whether a question would have a tendency to expose him to acriminal charge or not. The question must, on the face of-it, havea tendency to expose the person questioned to a criminal charge.The accused cannot say “ I will not answer the question unless Iknow what bearing it has on the matter under investigation.”
March 10, 1913. Ennis J.—
I consider the conviction in this case cannot stand. In sub-section(2) of section 122 of the Criminal Procedure Code it is provided thata person is not bound to answer any question which may have atendency to expose him to a criminal charge. It has been urgedthat the question put in this case to the accused by the Sub-Inspec-tor of Police was one which had a tendency to expose him to acharge under section 211 of the Penal Code. Exactly what degree ofevidence is required to decide whether any question has a tendencyto one thing or another is difficult to say, but in this case the questionput to the. brother of the uerson who is alleged to have stolenproperty as to whether he recovered that property and returned itto the complainant would, in my opinion, possibly have a tendencyto expose him to a charge of attempting to compound the offence.
I quash the conviction and sentence.
Conviction quashed.