016-NLR-NLR-V-33-INSPECTOR-OF-POLICE,-GAMPAHA-v.-PERERA-et-al.pdf
DBIEBERG J.—Inspector of Police, Gampaha v. Perera.
1981Present: Driebevg J.
INSPECTOR OF POLICE. GAMPAHA t>. PEBEBA et al.
245—P. C. Gampaha, 17,057.
Informationbook—Extractsread by Magistrate before issuingprocess—
Irregularity—Criminal Procedure Code, s. 122 (3).
Where, afterexamining thecomplainant and his witnesses, the
Magistrate cited the Police to produce extracts from the infonnationbook for bis perusal, before issuing process,—
Held, that the use of the information book was irregular.
^^PPEAL from a conviction by the Police Magistrate of Gampaha.
Hay ley, K.C. (with him Bartholomeusz), for appellant.
Deraniyagala, for respondent.
June 18, 1931. Driebero J.—
The appellants were convicted of using criminal force and mischief;the 1st appellant was sentenced to one month's rigorous imprisonmentand the 2nd appellant to rigorous imprisonment for one week.petition of appeal states as a point of law that the conviction is bad *sthe learned Police Magistrate had throughout the trial made an improperuse of the Police information book in which the statements of thecomplainant and the witnesses had been recorded. With the petitionfor revision is an affidavit in which the appellants depose to the mannerin which the book was used during the trial. There has been no counteraffidavit though the respondent was represented by a proctor.
I shall not deal with what is recorded there but with the Magistrate’sown record on this point.
After recording the evidence of the respondent the Magistrate made thefollowing note:—” I wish to have the evidence of all the witnesses inthis case and to peruse the information book extracts of the Pugodaand Gampaha police stations, relating to this incident, before I issueprocess. Cite witnesses for January 29, 1931. Police to produce allinformation book extracts for my persual on that day.” There is nothingin the record to show what use was made of the information book, butas the Magistrate wished to see it before he issued process I can onlyassume it was for the purpose of judging the credit to be attached to theevidence of the prosecution witnesses by a comparison with their state-ments to the police; from the fact that he issued process I can onlyassume that his examination of the information book led in some degreeto this acceptance of the evidence of the complainant and the threewitnesses whom he examined before he issued process. This is not theuse by a Magistrate of the statements to the police as an aid to the trialbut the use of them as material which was to help him in the decisionwhether he should issue process or not and in the result this is the useof the statements as evidence. This is not a legitimate use of statementsto the police. The necessity for a strict observance of the provisions ofBection 122 (3) of the Criminal Procedure Code has been frequentlypointed out by this Court and I need only refer to the recent judgment ofAkbar J. in Paulis Appu v. Don Davith l.
i {1930) 32 N. L. R. 335.
70
MAARTEN 8Z AJ .—Illangakoon v. A mar is Fernando.
There was a lengthy trial in the Police Court and I will not be justifiedin subjecting the appellants to a new trial.
I set aside the conviction and acquit the appellants.
Set azide.