058-NLR-NLR-V-10-KING-v.-BABUNDINA.pdf
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1907.
August 27.
[Crown case reserved.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Middleton, and Mr. Justice Wood Benton.
KING v. BABUNDINA.P. C.t Matara, 21,090.
(1st Matara Criminal Sessions, 1907, No. 6.)
Criminal Procedure Code, ss. 302 and 424—Statement in SinhalesetakendowninEnglishby Sinhalese Magistrate—Irregularity—
Admissibilityof evidence to prove thatthestatementwasactually
made—Burden of proving impracticability,
Under section 802 of the Criminal Procedure Code the statementof an accusedmade in the course of aninquiry underchapter XVI.
of the Criminal Procedure Code must be recorded in the languagein which it is made, unless it is impracticable to do so.
Middleton J.—The burden of proving that it was impracticableto record the statement in the language in which it was made is onthe Crown.
Where theaccused made a statementinSinhaleseandit was
recorded in English by the committing Magistrate, who was a Sin-halese, and on objection being taken ^atthetrial bytheaccused's
pleader to the said statement being pat in, the presiding judgeadmitted evidence under section 424 of f the Criminal ProcedureCode to prove that the accused duly made the statement recorded,and after such evidence allowed the statement to be put in—
Held, that such evidence was properly admitted, and that thestatement was rightly put in.
C
BOWN case reserved. The case reserved for the considerationof the Court by the Chief Justice was as follows: —
“1. The accused Babundina was charged with the murder ofa man called Nanda by shooting him. His statement to the Magis-trate, as recorded by the Magistrate in English (see page 49 of the*record), was in substance that the shooting was an accident; thathe fired at Nanda thinking that he was. firing at a wild animal.
. “ 2. Section 302 of the Criminal Procedure Code requires thatthe statement of the accused to the Magistrate ' shdll be recordedin full in the language in which he is examined, or, if that is notpracticable, in English.’ This accused is a Sinhalese, and made hisstatement in Sinhalese'. The Magistrate was Mr. Godamune, whois a Sinhalese; he. understood what the (accused said, rand couldhave recorded it in Sinhalese but he recorded it in English only. (
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" 3. When the Crown Counsel was proceeding to open his case, 1907.the accused’s counsel objected to his telling the jury what was the Auguef 27,substance of the accused’s statement to the Magistrate, on theground that it was not recorded in the language in which the accusedhad been examined. And at the close of the evidence for the prose-cution, when the Crown Counsel proposed to put in the statement,he again objected.
“ 4. I thought that when a statement has been recorded in '
English, the Court should presume that it was properly so recorded;but that if the presumption is shown to be wrong by proof that itwas practicable for the Magistrate to record the statement in thelanguage of the accused, the Court had power under section 424 ofthe Criminal Procedure Code to take evidence that the accused dulymade the statement recorded.
“5. I accordingly took the evidence of the Magistrate; andbeing satisfied by it that the statement as recorded by him was acorrect representation in English of what the accused said, Iadmitted the statement..
“ 6. The jury acquitted the accused of the charge of murder,but found hiin guilty of causing the death of Nanda by a rash andnegligent act under section 298 of the Penal Code.
“7. No defence was. suggested other than that contained in the
accused’s statement to the Magistrate. If the statement had been
excluded and no other defence had been set up, the result of the
trial would probably have been the same.
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” 8. The questions for the Court are—
“ (1) Whether the* statement of the accused as recorded by theMagistrate was rightly admitted, although not recordedin the language in which the accused was examined?
“ (2) If the Court is of opinion that the statement ought notto have been admitted, whether the conviction oughtto stand?”
The Hon. Mr. Walter Pereira, K.C., (Acting) A.-G. (with him W. S.de Saram, C.C.), for the Crown.
Garvin, for the- accused.
„Cur. adv. vult.
27th August, 1907. Hutchinson C.J.—
This is a *case reserved under section 355 of the Criminal Procedure _. Code.*
The Magistrate at the preliminary inquiry recorded the statementof the accused in English. The accused was examined in Sinhaleseand made the statement in that language, and the Magistrate under-stood what he said, and qould have recorded it in Sinhalese.
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1007. .August 27.
Hutobinsojt
O.J.
The Criminal Procedure Code enacts in section 302 that the state-ment of the accused *' shall be recorded in full in the language inwhich he is examined, or, if that is not practicable, in English."
At the trial, which took place before me, the accused’s counselobjected to the statement being put in evidence. I was of opinionthat when a statement is recorded by the Magistrate in English, theCourt should presume that it was properly recorded, until the con-trary is shown; that it is not essential, although it is desirable, thatthe Magistrate who records in English a statement made in some-other language should certify on the record that it was not practic-able to record it in the language in which the accused was examined;,and that, when it appears, as the present case, that it was sopracticable, the Court has power under section 424 of the Code totake evidence that the accused duly made the statement recorded.
I accordingly took the evidence of the Magistrate, and being satis-fied by it that the statement as recorded was-a correct reproduction^in English of what the accused had said, I admitted the statement.
The jury convicted the accused, and I then reserved this case.
The first question for the Court is whether the statement ofthe accused as recorded by the Magistrate was rightly admitted,although not recorded in the language in which the accused wasexamined.
The answer depends on whether section 424 applies to a case ofthis kind. That section enacts that “ if any Court before which adeposition of a witness or a statement of an accused recorded underthe provisions of this Code is tendered in evidence finds that theprovisions of this Code have not been holly complied with by thePolice Magistrate recording the evidence or statement, it may takeevidence that such accused. duly gave the evidence or made thestatement recorded, and, notwithstanding section 91 of the CeylonEvidence Ordinance, such evidence, or statement shall be admitted,if the error has not injured the accused as to his defence on themerits/’
It was contended for the appellant that this defect could not becured under section 424, because this statement was not “ recordedunder the provisions of this Code/’ but was recorded in a manner •which was a violation of those provisions. That contention in-volves the reading of the word “ under M as meaning " in strict con-#formity with/’ But to give it that meaning’would be to defeat thewhole object of section 424, which is to allow the admission, in agroper case, of a deposition or statement which has bqen recordedunder the Code, although not in strict compliance with all the pro-visions of the Code. Some Indian cases were referred to In* whichprovisions in the old Indian Code in the same terms as section 424were construed in the way in which the appellant contends thatOurs ought to be construed; and it was pointed out that the corre-sponding provision in the Indian Code now in force uses'the words:
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“ recorded or purporting to be recorded under the provisions of tbi6 1007Code M. But that construction was not generally accepted by the August 21Indian Courts; and it seems probable that it was in consequence ^otohihscthe conflicting opinions on the point that the Legislature in the c. J.later Code set the matter at rest by adding the words “ or purport-ing to be recorded. ”
In my opinion the Court had power under section 424 to admitthe evidence of the Magistrate, and, as the error certainly did notinjure the accused as to his defence on the merits, to admit thestatement.
The first question should therefore be answered in the affirmativeand the conviction should be affirmed.
Middleton J.—
This was a case of murder in which counsel for the defenceobjected to the admission' of the statement made by the accusedbefore the Magistrate on the ground that, though it was practicableto do so under section 302 of the Criminal Procedure Code, theMagistrate had not recorded the accused’s statement in Sinhalese—his own language—but in English.
The learned Chief Justice, acting under the provisions of section424, allowed the Magistrate to be called to prove that the accusedhad in fact made the statement which was objected to, and that theEnglish translation was a correct representation of what the accusedsaid.
There was no doubt that the Magistrate, a Sinhalese gentleman,could have found it practicable to record the statement in his ownlanguage.
The Chief Justice stated a case for the opinion of two or mereJudges of this Court under section 355.
The first question in the case was whether the statement of theaccused which had been recorded in English by the Magistrate wasrightly admitted under section 424 of the Criminal Procedure Code.Secondly, if the statement should not have been admitted,whether the conviction ought to stand.
It was argued by counsel for the defendant that before applyingsection 424 it must be shown that section 302 had not been fullycomplied with, and' that this section was intended only to obviateerrors of accidental non-compliance but not deliberate infraction.
It was further argued that a confession recorded in direct violationof the provisions of the Code of procedure cannot be said to berecorded under the provisions of the Code.
It was also contended that the onus of proving that it was imprac-ticable to record the statement in the language of the accused wason the Crown, who desired to put it in evidence.
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1907 The eases reported in Indian Law Reports, Queen Empress v. Viran1August 27. and Queen Empress v, Nilmadhub MitterJ Jai Narayan Rai v. QueenMiddleton Empress8, were cited.
In Narayan Rai v. Queen Empress and Queen Empress v. Viranthe point before us was decided in favour of the accused while inQueen Empress v. Nilmadhub Mitter the document containing thestatement was held properly admitted upon the evidence of theMagistrate who recorded it.
Section 364 and section 533 of the Indian Criminal ProcedureCode of 1898 are substantially similar respectively to sections 302and 424 of the Ceylon Criminal Procedure Code, and both sections533 and 424 specifically provide for the. obviation of any effect thatsection 91 of the Ceylon Evidence Ordinance or Indian EvidenceAct might be held to have on the admissibility of secondaryevidence of matter which is required by law to be 'reduced to theform of a document.
The decision in the case relied on for the accused was anterior in' ■ date to the Indian Criminal Procedure Code of 1898.
The Attorney-General referred us to Queen Empress v. VisramBabaji,4 in which the ruling in Jai Narayan Rai v. Queen Empresswas dissented from and that in Queen Empress v. Nilmadhub Mitterfollowed.
It was also further contended for the Crown that the Police Magis-trate who recorded it might have given evidence of it as a confession. made before him under section 26 of the Evidence Ordinance, usingthe statement to refresh his memory.
In my opinion the language and context indicate that the mean-ing of "the word '• recorded ” in section 424 must be taken to. be“purporting to be recorded,” and the object of the section is toprevent justice being frustrated by rendering admissible such evi-dence as has been received in the present case as to the contents ofthe accused's statement, provided that the error of the* Magistratein improperly recording it is not shown to have injured the accusedin his defence on the merits. That is not shown here.
I would therefore, answer the first question in the affirmative,and hold that the evidence has been rightly admitted. It is notnecessary under these circumstances to deal with the second question.
I think also that section 302 means that if the statement of theaccused is recorded in English, the burden of showing it was imprac-ticable to record it in the language of the accused is on the Crown,with whom that knowledge must be assumed to be. t
ft
Wood Renton J.—*
I think that mv Lord, the Chief Justice, was right on the firstpoint reserved. The second point, therefore, does not arise. It
* (1886) I. L. R. 9 Mad. 224.•'(1800)'I. L. R. 17 Col, 862.
» (1888) I. L. R. .16 CaX. 595.« (1896) I. L. R. 21 Bom. 495. ,
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appears to me that the effect of section 424 of the Criminal ProcedureCode is to enable any irregularity in the recording of the statementof an accused person under section 302 to be corrected by evidence,provided that the accused is not prejudiced thereby as to his defenceon the merits. The construction derives support (i.) from thelanguage of section 424 itself; (ii.) from the balance of Indian judi-cial authority under the corresponding sections of the Indian Code(Ldchand v. Queen Empress,x Queen Empress v. Visram Babaji* asagainst Queen Empress v. Viran* Queen Empress v. NilmadhubMitter, 4 and Jai Narayan Rai v. Queen Empress, 8 and (iii.) fromthe general scope of chapter XLII. (sections 423—426) of ourown Code of Criminal Procedure, the object of which is to preventcriminal proceedings from being frustrated by any kind of technicalirregularity which has not prejudiced the person accused.
I need only touch more specifically on the first point above noted,and that in a single sentence, I think that a statement is “ recordedunder the provisions ” of section 302, within the meaning of section424, when the person recording it purports to act under the formersection, and I see no ground for introducing any limitation onthe class of irregularities that may be cured under the latter.
Conviction upheld.
i (1691) /. L. R. 18 CaL 595.9 Qm) I. L. R. 9 Mad. 224.
a 0896) I. L. R. 21 Bom. 495.* (1888) I. h. R. 15 Cal. 595.
* 0890) 1. L. R.11 Cal. 863.
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1907
August 27.
WoodRenton J.