Jayagode and Anothers vs. Attorney General
JAYAGODA AND ANOTHERVSATTORNEY GENERALCOURT OF APPEAL.
CA PHC 147/2004.
HC COLOMBO 29/2000.
DECEMBER 5, 2005.
Code of Criminal Procedure Act – Sections 29, 110 (3), 110 (4), 425, 425 (1) -431 (1) – Penal Code 391 – Evidence Ordinance 24, 27 – No evidence to provecharge – Should the property against which an offence appears to have beencommitted be returned to the person from whom it was taken 7 – Applicabilityof 110 (4) (3) and 110,110 (3) limited only to trials ? – Proviso to a section – Whatdoes it signify ?
The petitioners seek to revise the order made by the High Court Judgeforfeiting some productions claimed by them at the claim inquiry. The 1 stpetitioner was indicted on a charge of criminal breach of trust and was acquittedafter trial. It was contended that, the petitioners are entitled to the items, as theywere acquitted.
In terms of section 425 (1) there is no requirement that a chargeshould be established or proved prior to the disposal inquiry.
There is no rule that the property against which an offence appearsto have been committed should be returned to the person fromwhom it was taken. The Court is entrusted to make such order as itthinks fit.
Application of 110 (3) is limited to trials where rules of the EvidenceOrdinance have to be observed.
The formula beginning “provided that” is placed at the end of a
section/sub section/paragraph/sub paragraph of a schedule andthe intention of which is to narrow the effect of the preceding words.Ordinarily a proviso to a section is intended to take out a part of the
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main section for special treatment, it is not expected to enlarge thescope of the main section.
In any event, the High Court Judge erred by holding the inquiry undersection 431 (1) which deals with property seized under section 29.However no prejudice has been caused to any party.
APPLICATION in Revision from an order of the High Court of Colombo.
Cases referred to:
Bat Kaur vs State of Himachal Pradesh – 1976 Cr. LJ 1928 (HP)
Johari Lai Debisahai Agrawal vs Emperor – AIR 1949 Nag 17
Queen Empress vs Nilamber – 1 LR 2 All 276
Maithripala Senanayake vs Mahindasoma – 1998 2 Sri LR 333 at 344
Joseph vs Attorney General – 47 NLR 446
Dhanaraj Baldeo Kishan vs State – AIR 1961 – Raj 238
Dulendra Weerasuriya with Janaka Amerasinghe for petitioners.
Buwaneka Aluvihare DSG for respondent.
May 18, 2006.
ERIC BASNAYAKE, J.The petitioners are seeking to revise the order made on 21.01.2004 bythe learned High Court Judge, Colombo forfeiting some productions claimedby them at a claim inquiry. The first petitioner was the accused in thiscase. He was indicted in the High Court, Colombo, on a charge of criminalbreach of trust under section 391 of the Penal Code. The accused is aformer Director of Sri Lanka Plywood Products Ltd. One Mr.Dodangodagama was its Chairman at the time. The charge was that theaccused committed criminal breach of trust to the value of Rs. 2,250,000together with Mr. Dodangodagama. At the time of the indictment, Mr.Dodangodagama was deceased. The petitioner was acquitted after trialdue to want of prosecution.
The productions claimed are listed as items 6, 9 and 11 in the list ofproductions to the indictment. Item No. 6 contained two certificates of
Jayagoda and Anothers vs. Attorney Generat (Eric Basnayake, J.)389
deposits to the value of Rs. 200,000. No. 9 is a saving pass book. No. 11is cash amounting to Rs. 100,000. Items 6 and 9 were claimed by theaccused – 1st petitioner. Item No. 11 was claimed by the 2nd petitioner.The 2nd petitioner is the 10th witness in the indictment. The petitionerswere the only claimants. The moneys were said to belong to Sri LankaPlywood Products Ltd. which was not in existence at the time of the trial.
No evidence was placed at the inquiry by the claimants. It is commonground that these productions were taken into custody by the police whilethey were in the possession of the petitioners. The accused in this casehad, in his statement to the police, stated that he (the accused) took asum of Rs. 500,000 of the sum mentioned in the charge and investedsame in the certificates of deposits and with his brother-in-law who is the2nd petitioner. The police recovered the certificates and cash inconsequence of this statement. There is no dispute that the accused -1 stpetitioner made this statement to the police. There is no complaint thatwhat is found in the statement is false. The learned High Court Judge byconsidering the admissions so recorded of the accused made order forfeitingthe item Nos. 6 and 11. No. 9 was allowed to be given to the 1 st petitioneras the money deposited was withdrawn previously. The learned counselfor the petitioners submitted that the petitioners are entitled to the itemsclaimed as of right due to the following reasons namely:
No proof of any offence being committed.
The accused was acquitted of the charge.
No other claimants.
The property was taken from the possession of the petitioners.
Admissions of the accused could be used only for the purposementioned in section 110(3) of the Code of Criminal Procedure Actand “shall only be used to prove that he made a different statementat a different time”.
Section 425 of the Code of Criminal Procedure which is as follows:
425 (1) “When an inquiry or trial in any criminal court isconcluded the court may make such order as it thinks fit forthe disposal of any document or other property produced beforeit regarding which any offence appears to have beencommitted or which has been used for the commission of any
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offence”. Sub section (4) to section 425 defines property toinclude such property as has been originally in the possessionof any party or property converted or exchanged and anythingacquired by such conversion or exchange (emphasis added.).
In terms of the above provision there is no requirement that a chargeshould be established or proved prior to the disposal inquiry. At theconclusion of a trial when an accused is acquitted, a court may not alwaysfind whether an offence was committed. What the court finds out is whetherthe accused had committed a crime. There may be numerous occasionswhere although crimes are committed no charges are successfully broughtagainst anyone. It may be that the accused’ are not known or that theevidence is not sufficient or that the witnesses cannot be traced. A courtwill not just go in to the question whether a crime had been committedagainst a person or property unless there is a person who can be heldresponsible. Even if a particular accused could not be found guilty, it doesnot mean that a crime had not been committed. That may be the reasonwhy courts are given authority to dispose of property when it appears tocourt that an offence has been committed in respect of any property.
When the court finds that there is no evidence to prove a charge, thereis no rule that the property against which an offence appears to have beencommitted should be returned to the person from whom it was taken. Ifthat is the case criminals could obtain the maximum benefit by eliminatingall the evidence against them. To illustrate this point if, for example, Xrobbed a bank and hid the loot but one day got caught and showed thepolice where the loot was, admitting to the police that he robbed the bankand what was shown was part of the loot, and yet got an acquittal due tolack of evidence, should the court return the money to X to be takenaway ? This is the reason why the law empowers court to “make suchorder as it thinks fit for the disposal of property produced before it”.In Bat Kaur vs. State Himachal Pradesh(1) the accused were acquitted ofthe charge and the car involved in the case was not returned to the accused.In JohariLai Debisahai Agrawal vs. Emperor(2) the property was found tobe the subject of theft. Although the accused were acquitted due toincomplete evidence, the property was not returned to the accused. InQueen Empress vs. Nilambeh31 an accused person who was dischargedfor want of evidence on a charge of dishonestly receiving stolen propertywas deprived of the property.
Section 110 (3) and (4) are as follows :-110(3) “A statementmade by any person to a police officer in the course of anyinvestigation may be used in accordance with the provisions of
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the Evidence Ordinance except for the purpose ofcorroborating the testimony of such person in court :Provided that a statement made by an accused person inthe course of any investigation shall only be used to prove thathe made a different statement at a different time.”
Anything in this sub section shall not be deemed to apply toany statement falling within the provisions of section 27 of theEvidence Ordinance or …
(4) “Any criminal court may send for the statements recordedin a case under inquiry or trial in such court and may use suchstatements or information, not as evidence in the case, but toaid it in such inquiry or trial"
The learned counsel submitted that the proviso to section 110(3) appliesto sub section (4) as well and therefore even if the statements recordedduring the investigation are called for, those statements if made by theaccused could be used only to contradict and nothing else. This submissioncannot be accepted as sound due to the reason that the application ofsection 110(3) is limited to trials. “The formula beginning ‘provided that….’ is placed at the end of a section or sub section of an Act, or a paragraphor sub paragraph of a schedule, and the intention of which is to narrowthe effect of the preceding words. Amarasinghe J. in MaithripalaSenanayake vs. Mahindasoma(5) Quoting Francis Bennion, statutoryInterpretation 1984 at pg. 570. The proviso”refers only to the provisions towhich it is attached. Ordinarily, a proviso to a section is intended to takeout a part of the main section for special treatment Amarasinghe J.QuotingBindra Interpretation of Statutes 7th ed. pg. 79- Maithripala Senanayakevs. Mahindasoma (supra); it is not expected to enlarge the scope of themain section”. Therefore the proviso has no application to sub sectionsother than sub section (3) (emphasis added).
In Joseph vs. Attorney General,™ two accused’, a cleaner and a driver,were charged for theft of 10 bags of Maidive fish. They confessed to thetheft and also handed over the money earned on the deal (Rs. 2,000).They were convicted and part of the money was remitted to the C. W. E.being the owner of the Maidive fish and the balance money was confiscated.The conviction was quashed in appeal on the ground that the confessionwas inadmissible in evidence. After acquittal one of the accused claimedthe Two Thousand Rupees handed over to the police. This claim wasrefused. In appeal Wijewardene J held that “section 24 of the EvidenceOrdinance which makes those statements “irrelevant in criminalproceedings” does not prevent a court from acting on them in an application
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under section 413(1) [same as section 425] of the Criminal ProcedureCode which is not a criminal matter”.
In Dhanraj BaldeoKishan vs. State(7) a confession was used in thedisposal of sale proceeds of stolen property recovered after the recordingof the confession.
According to section 110(3) statements made by any persons to apolice officer in the course of any investigation may be used in accordancewith the provisions of the Evidence Ordinance other than to corroborate.Such statement, if made by an accused, could be used only to contradict.This restriction would not apply in the event of a discovery made in termsof the provisions of section 27 of the Evidence Ordinance. It is clear thereforethat this section applies to trials where rules of the Evidence Ordinancehave to be observed.
There is no dispute that the accused made admissions to the policethat the money formed part of the charge. Nowhere did the petitionersmake a claim to this money other than through this motion in the HighCourt at the conclusion of the trial. The submission of the learned counselis that the money should be returned to the petitioners as the police tookthis money from them. There is no rule that the property should be returnedto the person from whom it was taken when the court finds that an offenceappears to have been committed in respect of the property. The court isentrusted to make such order as it thinks fit. If the court is bound to returnthe property to the person from whom it was taken from knowing that it didnot belong to him and that no evidence had been led to prove that theclaimant is entitled to it, it would not be a fit order. Therefore I do not findthis a fit case to exercise the revisionary jurisdiction of this court.
The learned High Court Judge erred by holding this inquiry in terms ofsection 431 (1) of the Code of Criminal Procedure Act which deals withproperty seized under section 29 of the said Act. Anyhow no prejudicewas caused to any party due to this error. Further this was not raised asan issue. Hence this application is refused.
BALAPATABENDIJ. (P/CA)— / agree.