036-NLR-NLR-V-25-INSPECTOR-OF-POLICE-,KALUTARA-v.-ARASECULARATNE-et-al.pdf

V 1G1)
Present: Jayewardene A.J.
INSPECTOR OF POLICE, KALUTARA, v. ARASECULA-
RATNE et al.
407—P. C. Kalutara, 3,213.
Unlawful gaming—Prosecuting inspector refusing to disclose name ofinformant—Adverse inference drawn by Magistrate.
The information on which the search warrant under section 6 ofthe Gaming Ordinance, 1889, is issued forms part of the record ofthe case, and ought to be available to the defence, for, it is opento the accused persons to refer to the information on which thesearch warrant was issued, and contend that the informationdid not justify the issue of a warrant, and that the case againstthem should be treated as if the presumptions created by theentry under the warrant were non-existent.
The prosecuting inspector in his evidence in cross-examinationrefused to disclose the name of the informant; and the Magistratedrew an adverse inference against the prosecution from the refusal „Held, “ If the informant to the police had not given any infor-mation to the Magistrate, or if counsel for the accused was referringto some other informant, then the witness would have been justifiedin refuging to give his name, and his refusal cannot be made thesubject of adverse comment—legitimately—by counsel for thedefence or of adverse inferences by the Judge.”
“ Though the section does not in express terms prohibit thewitness, if he be willing, from saying whence he got his information,both the English authorities from which the rule is taken and aconsideration of the foundation of the rule show that the protectionshould not be made to depend upon a claim of privilege being putforward, but that it is the duty of the Judge apart from objectiontaken to exclude the evidence. A fortiori if objection is taken,it cannot, since the law allows it, be made the ground of adverseinferences against the witness.”
Weston v. Peary Mohun Las 1 followed.
‘J’HE facts are set out in the judgment.
Akbar, Acting S.-Q. (with him Dias, C.C.), for the complainantappellant.
Hayley, for accused, respondents.
August 28, 1923. Jayewardene A.J.—
This is an appeal by the Solicitor-General against the acquittalof the seven respondents who, with two others, were charged withunlawful gaming under section 4 of the Gaming Ordinance of 1889.
The house of the first accused was entered under a search warrantduly issued under section 6 of the Ordinance, and on the occasionof the entry the respondents were found in a room playing a game
1 (1912) 40 Cal,. 898, at p. 920.
1988.
15—xxv*
12(60)29
( 162 )
1928.
Jayewab-DENB A.J.
Inspector ofPolice,Kavutara, v.Arasestda-mine
of oards called “ bebi ” for stakes. The first six respondents werearrested, but the seventh and two others succeeded in running away.The strong presumption created by section 10 of the Ordinancethat the accused were engaged in unlawful gaining applies to theaooused, but the Magistrate has found that in spite of the presump-tion arising under section 7 of the Ordinance he would not bejustified in holding that the public had access to the house on theoccasion of the gambling in question. It is not the policy of thisCourt to interfere lightly, with acquittals when they are based onquestions of fact, but, after carefully considering all the evidence,I feel constrained to set aside the acquittals in this case, as it strikesme that the judgment of the Court has been affected by the wrongconclusions and inferences it has drawn from various irrelevantmatters. In the course of his judgment the learned Magistrate saysthat the prosecution refused, and rightly refused (see EvidenceOrdinance, section 125), to give the name of the informant, andthat the defence rightly commented upon the refusal. Theinformant whose name was withheld was one of the persons onwhose sworn statement the search warrant under section 6 wasissued. The information on which the warrant was issued formspart of the record of the case, and is, or ought to be, available to thedefence, for it is open to the accused persons to refer to the informa-tion on which the search warrant was issued and contend that theinformation did not justify the issue of a warrant, and that the caseagainst them should be treated as if the presumptions created bythe entry under the warrant were non-existent.
The prosecuting Police Inspector in his evidence stated that theevidence on which the search warrant was issued was filed of record,but in oross-examination he added that he was not prepared to disclosethe name of the informant. No application was made to the Courtfor access to the information on which the warrant was issued, andcounsel for the defence was satisfied with the refusal of the witness.If the informant whose name the inspector refused to disclose wasthe person upon whose information the warrant was issued, thedefence would have become aware of it on reference to the warrantproceedings. But I do not think the accused knew that the infor-mant had given information to the Police Magistrate for the issueof the search warrant. In this case the information in question wassworn to not only by this informant, but also by a police sergeantwho had been watching the premises for several days. But, if theinformant to the police had not given any information to theMagistrate, or if the counsel for the accused was referring to someother informant, then the witness would have been justified inrefusing to give his name and his refusal cannot be made the subjectof adverse comment—legitimately—by counsel for the defence orof adverse inferences by the Judge. This question was considered byWoodroffe J. in Weston v. Peary Mohun Das (supra), where referring
( ie:* )to section 125 of the Indian Evidence Act which is identical withsection 125 of our Evidence Ordinance, he said :—tc The learned Judge further allowed the claim of privilege forwhich the Evidence Act, section 125, provides, but has yetin several instances drawn inferences adverse to the policedefendants by reason of the non-disclosure by them ofthe source of their information* the subject of the privilege.The learned Judge’s comments were, in my opinion, notopen to him. It must be, of course, firstdetennined whetherthere is a privilege or not. But it is obvious that after theCourt has once held that a document or subject-matter ofinquiry is privileged, with the result that the other partycannot compel production or answer, the comment is notthen open to the Court that the party to whom privilegehas been allowed has not done or said that which the lawand the Court have said he cannot be compelled to do orto say. I will only add as regards section 125 of theEvidence Act that though the section does not in expressterms prohibit the witness, if he be willing, from sayingwhence he got his information, both the English authori-ties from which the rule is taken and a consideration ofthe foundation of the rule show that the protection shouldnot be made to depend upon a claim of privilege being putforward, but that it is the duty of the Judge apart fromobjection taken to exclude the evidence. A fortiori ifobjection is taken, it capnot, since the law allows it, bemade the ground of adverse inferences against thewitness.”
1923.
Jaybwar-DETTE A.J.
Inspectorof Police,Kalutara, v,Arasecula*ratne
This view is supported by the dictum of the House of Lords inWentworth v. Lloyd1 where Lord Chelmsford dealing with theprivilege attaching to professional confidence laid down a principleapplicable to similar privileges of every kind. He said :—
“ As Lord Brougham says, when speaking, in Bolton v. TheCorporation of Liverpool – of the supposed right to compelthe disclosure of such communications, it is plain that thecourse of justice must stop if such a right exists. No manwill dare to consult a professional adviser with a view to hisdefence or to the enforcement of his right. The exclusionof such evidence is for the general interest of the com-munity, and therefore to say that when a party refuses topermit professional confidence to be broken, everythingmust be taken most strongly against him, what is it butto deny him the protection which, for public purposes,the law affords him, and utterly to take away a privilegewhich can thus only be asserted to his prejudice.”
(1864) 10 B. h. C.t p. 5X9.2 (1833) 1 Myl and K. 88, 94,
( 164 )
i92a.
Jayewab*
DENE A.J.
Inspectorof Police,Kalutara, v.Arasc’-ula•rcUne
The learned Magistrate then proceeds to remark that “ the defencealleges that two men—Kaithan and Andrew—who are enemies ofAraseouJ^ratne (the first accused) gave false information to thepolice. It is not possible in this case to investigate the allegation,as the informants on whose evidence a search warrant issued undersection 7 of the Ordinance are shielded from cross-examination.*’It is, however, only one of these men—Andrew—who gave infor-mation to the police and to the Magistrate. It cannot be fairly saidthat these men were shielded from cross-examination, for it wasopen to the Magistrate, if he thought that the interests of justicerequired it, to have submitted Andrew, his informant, for cross-examination. There is no evidence that Kaithan gave any infor-mation to the police, and this seems to be only a conjecture on thepart of the first accused. Courts are not unfamiliar with suggestionsof this nature by accused persons, and too much importance shouldnot be attached to them. The learned Magistrate then says that“ the defence points out that the whole matter could have beenthoroughly investigated if the connected case in which the firstaccused is charged with keeping a common gaming place had beenfirst inquired into.” He thinks that the police were, as usual,trying to obtain a conviction in this case first, and then to use it as*evidence in the connected case “ as it has been held that a placeis a common gaming place if it is proved that unlawful gaming wasconducted there even on one occasion only.” He also thinksthat in the case against the first accused the defence would havean opportunity of cross-examining the informant. Continuing, headds :—“ This method of prosecution therefore can hardly beregarded as fair from the point of view of the accused, who have noopportunity of cross-examining the informants, and yet are facedwith tho difficulty of rebutting a presumption of guilt arising outof the evidence given by the informants.”
I am not sure that these, suggestions and comments of the Magis-trate are justified. What is there to show that these ” informants”will be called as witnesses in the connected cases ? Here again theremedy was in the Magistrate’s hands. He could either have heardthe two cases together, or could have insisted on the connected casebeing heard first, if he thought the police were not acting properlyand that the accused would be prejudiced by the procedure adopted.He concludes this part of his judgment by saying : “ In the circum-stances,, the only line of defence open to them is to examine theevidence for the prosecution to see whether there is sufficientevidence, apart from the presumption which arises under section 7of the Ordinance, that the place was kept on the occasion when itwas raided as a common gaming place.** Does he allow the defenceto disregard the presumption created by the Ordinance, and to treatthe case as an ordinary one of unlawful gaming ? I do not thinkit is possible to do so as the search warrant has been issued quite
( 165 )
regularly. The Magistrate then proceeds to discuss the evidence,and holds that in. spite of the presumption which arises under theOrdinance he could not be justified in holding that the house of thefirst accused was used as a common gaining place on the occasion inquestion.
It is clear from the above that the learned Magistrate’s judgmenthas been greatly influenced by the many irrelevant considerationscontained in it. It is also impossible to say whether he himselftreated the oase as one in which the presumptions arose. The veryeirors into which the Magistrate has fallen in this case appear tohave been committed by the Magistrate who heard P. C. Gampola,No. 1,142, and they were pointed out and corrected by Bertram C.J.(see Manukulasuriya v. Memaha ’). I invite the Magistrate’sattention to this case.
I refrain from referring to the evidence in view of the orderI propose to make, but I may mention that the Magistrate inaccepting the evidence of the first accused regarding the seventhaocused, who he said had gone for a bath leaving hi6 coat, with anote book, watch chain, and silver buttons in it, has overlooked thefact that the seventh accused himself stated to the Magistrate,when charged, that he was away at the Kalutara Police Court at thetime, and gave the names of witnesses to prove an alibi. Thereare several other features in the case which make it undesirablethat the acquittals should be allowed to stand. The case requiresa fuller and fairer investigation in justice to all concerned
I therefore set aside the acquittals and send the case back for atrial de novo before another Magistrate, as the Magistrate who heardthe ease has expressed his views on the evidence strongly.
Sent back
1923.
Jays war-dens A.J.
Inspectorof Polios,Kahn ota, v,Ara-ecula-rafne
>< 1922 27) N. L. R.33.