DE KRETSER J.—Inspector of Police v. Kanapathypillai.
1941Present : de Kretser J.
INSPECTOR OF POLICE v. KANAPATHYPILLAI.
277—M. C. Trincomalee, 104.
Confession—Threat or inducement from person in authority—" Would like toknow about it ”—Evidence Ordinance, s. 24.
Sergeant M, a storekeeper, whose assistant the accused was, learntthat part of a consignment of cement in bags had been improperly sentfrom the railway station in carts whereas it was the duty of the accused,who was responsible for the despatch of the cement from the station, tohave sent the bags of cement in lorries specially employed for the purpose.Not being able to get information at the station from the accused, whodenied all knowledge of the matter, or from any other person, and notbeing able to trace the cement, the sergeant went back to the station andin the course-of conversation remarked to the accused that he would liketo know by the following morning where the bags of cement were. Hethen left the station. That night the accused made a confession to M.
Held, that the words used by M did not amount to a threat or inducementor promise of advantage proceeding from a person in authority withinthe meaning of section 24 of the Evidence Ordinance.
^^PPEAL from a conviction by the Magistrate of Trincomalee.
J. E. M. Obeyesekere (with him W. Muiturajah), for accused, appellant.H. W. R. Weerasooriya, C.C., for complainant, respondent.
Cur. adv. vult.
July 10, 1941. de Kbetser J.—
Three objections to the conviction were taken—
that the Magistrate had erred in admitting the confession since it
was irrelevant under section 24 of the Evidence Ordinance ;
that the carter was an accomplice, whose evidence required cor-
that the Magistrate should not have assumed jurisdiction under
-section 152 (3) of the Criminal Procedure Code.
DE KRETSER J.—Inspector of Police v. Kan apathy pillai.
On the evidence which the Magistrate accepted, what happened wasthat Sergeant Michael, the storekeeper, whose assistant the accused was,learned that part of a consignment of cement in bags had been improperlysent from the railway station in carts whereas it was the duty of theaccused, who was responsible for the despatch of the cement from thestation, to have sent the bags of cement in lorries specially employed forthat purpose. Not being able to get information at the station from theaccused, who denied all knowledge of the matter, or from any other person,and not being able to trace the cement, the Sergeant went back to thestation and in the course of conversation remarked to the accused thathe would like to know by the following morning where the bags of cementwere. He then left the station.
That night the accused made the confession now objected to and wasasked to come next morning. He did not turn up and was eventuallyarrested by the Police.
There is no evidence as to what authority, if any, the storekeeper had .over the accused nor have his exact words been quoted. The storekeeperwas anxious to trace the cement : he had previously suspected certainother persons and not, as far as one can see, the accused, and had placed awatch at the station and that, was how he received the information whichtook him to the station. He must thereafter have suspected the accusedor at least have held him guilty of negligence. I do not think his wordscan be construed as a threat or inducement to the accused to confess orthat accused had any grounds for supposing from that remark alone thathe would gain an advantage or avoid some evil of a temporal nature bymaking a confession. Ameer Ali in his book on Evidence discusses thissection and he quotes the case of R. v. Sarah Reason where the words“ I must know more about it ” were held not to invalidate the confession.In R. v. Reason, which was a case tried at the Warwickshire SpringAssizes in 1872, a child had been found drowned in a canal and a constablewho was about to apprehend the prisoner put certain questions to her.In the course of the conversation he said “ I must know more about it ”after which she made a confession. Keating J. (after consulting withQuain J.) said, “ I have thought it right to consult with my brotherQuain, and he is very clear that it would be quite an over-refinement toexclude this admission. I agree with him, and indeed did not feel muchdoubt in my own mind. In my time it used to be held that a mere cautiongiven by a person in authority would exclude an admission, but since thenthere has been a return to doctrines more in accordance with the common-sense view. The real question is whether there has been any threat orpromise of such a nature that the prisoner would be likely to tell anuntruth from fear of the threat, or hope of profit from the promise. Inthe present case the Police Constable was stating his reason from makingfurther inquiries, and it would be straining the rule to an unnatural extentto exclude the admission, especially as it was a statement made in thecourse of a narrative ”.
The object of the section is to make sure that a confession is reallyvoluntary and that again is due to the desire to prevent an untrue
1 (12 Cox 228).
370DE KRETSER J.—Inspector of Police v. Kanapathypillai.
admission being made when the power of the prisoner’s mind is overcomeby awe or hope of favour. In England it is in great part due to the desireto prevent harassing and oppression by the Police. Taylor deals withthe matter fully.
There has been some, difference of opinion as to whether it is the duty ofthe prosecution to prove that the confession was really voluntary or theduty of the prisoner to justify his retraction of it. The question whetherit is voluntary or not is a matter for the Judge to decide and in case ofdoubt he will probably reject the alleged confession. The accused did notgive evidence and he did not allege that he made a false admission becauseof the Sergeant’s remark. He did not make his admission at once. TheSergeant’s first visit to the station was at midday and it was on his secondvisit about 4 p.m. that he made the remark. Accused ought to haveknown by then that inquiry was on foot. He did not go to see theSergeant till 9 p.m. and he did not then refer to the Sergeant’s remarkbut tried to move him with tears. There is thus nothing in the remarkitself or in the accused’s conduct to indicate that he was influenced by theremark^and not by the trend of events.
The carter cannot be considered an accomplice. The evidence is thatcarters go to the goods-shed in the hope of obtaining hires, that they do getemployment, and the mere fact that such cement was ordinarily removedin lorries was not sufficient to make the carter seek to know or be suspiciouswhen he was employed. His evidence alone was sufficient to convict theaccused. There was also the evidence of the passbook which the Magis-trate has not considered. It was a book kept by the accused and, whileChere is no direct evidence as to the person who made the tell-talealteration, there is no evidence that it ever left the accused’s custody tillthe Sergeant took charge of it, and the Sergeant says the figures are inaccused’s writing. To my mind the entry points to an attempt by theaccused to make out that he had despatched the cement correctly andthat it had been stolen elsewhere:That was his defence at the trial.
The original entry suggests to my mind that owing to the system prevailingit was either difficult to check the quantity in the stores or it was notattempted, and so while the passbooks at the two ends would agree therewas ample scope for goods to be stolen.
I do not think the Magistrate can be said to have assumed jurisdictionwrongly. I deprecate too frequent use of the provisions of section 152 (3)but I think that the circumstances justified the course adopted by thelearned Magistrate. I think the offence of the prisoner was a very seriousone and perhaps the '•Magistrate had not entirely shaken off his magisterialoffice when he imposed the sentence he did, but I hesitate to interfere andtherefore confine myself to dismissing the appeal.
INSPECTOR OF POLICE v. KANAPATHYPILLAI