025-NLR-NLR-V-44-IYER-v.-GALBODA.pdf
M
Iyer v. Galboda.
Present: Wijeyewardene J.
IYER v. GALBODA.
791—M. C. Colombo, 35^80.
Confession-Accused in some sort of police custody—Evidence Ordinances. 26.
A confession made by an accused person while he was in some sortof police custody is inadmissible.
The King v. Packeer Tamhy (32 N. L. R. 262) followed.
FPEAL from a conviction by the Magistrate of Colombo.
A. Rajapakse, for accused, appellant, t,
H. A. Wijemanne, C.C., for Crown, respondent.
Cur. adv. vuIt.
WIJEYEWARDENE J.—Iyer v. Calboda.
95
.November 19, 1942. Wueyewardene J.—
The accused appellant was convicted on a charge of having committedthe offence of cheating on January 16, 1942, “ by dishonestly inducingMr. Lloyd Daniels …. to deliver to him a cheque for Rs. 200…. by saying that he was an astrologer who was able to retrievestolen property ”.
Early in January, Mr. Daniels lost a brooch and a ring. About themiddle of January, Mr. Daniels came in contact with the accused whotold him that he was gifted with some occult powers which enabled himthrough the medium of an anjanan eliya to recover lost articles for theirowners. He then applied some chemical preparation to a plate and aftergazing hard at it said that he saw therein some articles resembling a ringand a brooch. The accused then asked Mr. Daniels for Rs. 300 as he had“ to buy some ingredients from Cargills ” for an amalgam he had to preparefor use in the mystic rites he was going to perform in order to recover thelost articles. Mr. Daniels, who was impressed considerably by theexhibition of his powers given by the accused, handed to him a chequefor Rs. 200 on January 16.
As the accused failed to produce any satisfactory results, Mr. Danielsbegan to lose faith in him and ultimately asked Mr. Labrooy on January 19to make a complaint to the Police. An Inspector of Police sawMr. Daniels at his bungalow on the 19th and again on the 20th at 7.30 a,m.Describing what happened on the second visit the Inspector said,
“ I found the accused in conversation with Mr. Daniels on theverandah. I went in civil dFess. Mr. Daniels sent him to the end ofthe verandah …. The accused got on to the compound twiceand Mr. Daniels asked him to stop. On the third occasion he snappedhis thumb and fingers and started running …. I gave chasein my carThen 1 chased him on foot shouting to people
to stop him …. The accused was ultimately stopped. . . . I took him back to the bungalow …. I left himon the verandah requesting (two persons) to keep watch over him ”.
Mr. Labrooy happened to go to the bungalow shortly after the accusedwas brought back. He saw the accused on the verandah and Mr. Danielstalking to the Inspector in the office room. Then the accused toldMr. Labrooy that he was a teacher of Sinhalese and “ that he was drawninto this trouble by other people and that he knew nothing of anjananetiya.”
The statement made to Mr. Labrooy should not have been admitted inevidence in view of section 26 of the Evidence Ordinance which enacts,
“No confession made by any person whilst he is in the custodyof a police officer, unless it be made in the immediate presence of aMagistrate, shall be proved as against such person.”
The statement in question is a confession within the meaning ofsection 17 (2) of the Evidence Ordinance. The accused was in the custodyof a police officer at the time he made the statement. A complaint had44/11
96
WIJEYEWARDENE J.—Iyer v. Galbodo.
been made against him to the Police. He was brought back by the Inspec-tor when he ran away and the Inspector directed two men “ to keep watchover ’’ the accused while he and Mr. Daniels were discussing the matterin* an adjoining room. That would be sufficient for the purposes ofsection 26. It does not matter whether or no the police officer had theright to keep the accused in custody. • In The Queen-Empress v. Kamaliaand Another1 Birdwood and Jardine JJ. excluded a confession made bypersons who were “ in some sort of Police custody at the time ”. Thatcase was followed by Maartensz J. in The King v. Packeer Tamby’.
The admission of this evidence has prejudiced the accused’s case veryseriously and I am, therefore, compelled to set aside the conviction andsend the case back for a new trial before another Magistrate.
Set aside.
* {1931) 32 N. L. R. 262.
' {1886) 10 Bom. 595: