070-NLR-NLR-V-27-KING-v.-BILINDA-et-al.pdf
( 390 )
1926.
Present: Jayewardene A.J.
KING v. BILINDA et ah123, 123a—D. C. (Crim.) Kegalla, 2,386.
Confession—Failure of Magistrate to comply with requirements of the
Code—No memorandum or signature of accused—Admissibility—
Criminal Procedure Code, ss, 134, 302-404.
Where a Police Magistrate records the confession of an accusedperson, without complying with any of the requirements ofsections 134 and 302 of the Criminal Procedure Code,—
Held, the confession was inadmissible in evidence.
Semble, in such a case it is not possible to resort to section 424of the Criminal Procedure Code to make good the omission.
Observations as to the procedure to be adopted when an accusedperson who wishes to make a confession is produced before aMagistrate by a Police Officer.
rpHE accused were charged under section 456 of the Penal Code-L with forgery of a deed. On the deed, purporting to be signedby one Horatala, as grantor, a civil action was brought in the Courtof Requests of Gampola. When the civil case was terminated,Horatala, who denied having executed the deed sent a petitionregarding it, and a police investigation was directed. As a resultof this investigation first accused, the brother of Horatala, wascharged with the forgery, together with the fourth accused, whowas an attesting witness to the deed. The police arrested thefirst accused twenty miles away from Kandy, and brought him to theKandy Police Magistrate to be remanded. Here a confession wasmade by this accused to the Magistrate. This confession wasretracted by the accused in his statutory statement before theinquiring Magistrate and before the District Court. The DistrictJudge of Kegalla found the accused guilty and sentenced them eachto three months ’ rigorous imprisonment. The accused appealed fromthis conviction and sentence on the ground that the confession hasbeen improperly admitted against them.
Allan Drieberg, K.C. (with him R. L. Pereira and Navaratnam),for first and fourth accused, appellants.—Whatever may be theconsequence of the confession, as against the first accused, asregards the fourth accused, this confession—even if rightlya.dniitted— is not evidence as it is a statement made by a co-accused,see Rex v. Vkku Banda.1
The case of the first accused would depend on whether theconfession is admissible or not. A point to be noted is that thisaccused retracted his confession in his statutory statement beforethe District Judge of Kegalla.
1 (1924) 24 N. L. R. 327.
( 391 )
This confession is purported to be recorded under section 134 ofthe Criminal Procedure Code, corresponding to section 164 of theIndian Code. Defects may be remedied under section 424 incertain circumstances, e.g., the absence of a signature would undersection 533, Indian Code, not invalidate a confession if independentevidence is available of accused ratifying his confession, see Queen/impress v. Raghu.1
Section 424 may be utilized if the defect is only one of form, butit cannot be resorted to make good all omissions. Here thememorandum was signed by the Magistrate two months after theconfession ; there is nothing to show that the confession was madevoluntarily, the accused has not signed his statement, and nothingto show that his statement was read over and explained to him.
The questions put and the answers given, to show whether thestatement was a voluntary one, are not recorded as required undersection 302 of the Criminal Procedure Code.
The terms of section 134 are imperative. In India, if the provi-sions are not complied with, section 533 corresponding to our section424 does not cure the defect, see Queen Empress v. Viran.*
In the Indian cases the fact that an accused was in police custodyis to be reckoned as bearing upon the question as to whether theconfession was voluntary or not. Further, no confession should berecorded in the presence of the police officer who has arrested orproduced the accused, see Queen Empress v. Narayan.*
S. J. C. Schockman, C.G., for the Crown.—The confession of thefirst accused is admissible in evidence against him as sufficientevidence has been led at the trial under section 424, CriminalProcedure Code, to prove that the confession was voluntarily made.This section is intended to remedy the non-compliance with thestatutory requirements in the recording of statements and is wideenough to include even the omission to observe all the requirementsof section 134. The Magistrate states that he was satisfied that theconfession was made quite voluntarily and hence his omission toobserve the requirements of form is just such as is curable undersection 424. See 23 Bombay 221 where it was held that all cases ofomission can be cured by section 533 of Indian Criminal ProcedureCode (corresponding to our section 424). The confession may berecorded in narrative form, see Fekoo Mahto v. The Empress.*
A Court may naturally view with suspicion a statement made byan accused who has been some time in police custody, but in thiscase such custody was very short, since the confession was made tothe Magistrate at Kandy, when the accused was produced beforehim a short time, after being arrested to be remanded and produced
before the Police Magistrate, Gampola.
23 Bom, (1398) 221.
9 Mad. 224.
1928.
King v.Bilinda
2 25 Bom. 543.• 14 Cal. 539.
( 392)
4926.
King v.} ilinda
February 26, 1926. Jayewabdene J.—
This case raises a question with regard to the admissibility of aconfession made by the first accused. The first accused and threeothers were charged in this case with the forgery of a deed of sale.The first and the fourth accused have been convicted and sentencedto undergo three months’ rigorous imprisonment. Both accusedappeal, and it is contended for them that the confession on whichthe conviction is based has been wrongly admitted in evidence bythe learned District Judge. The impugned deed was produced in acivil case before the Court of Requests of Gampola. One Horatalawho is described as the grantor of this deed denied having executedit. After the termination of the case he sent a petition regardingthe forged deed, and a police investigation was directed. In thecourse of their investigations the police arrested the first accusedBelinda, brother of Horatala. He was brought to Kandy underarrest and was produced on February 3 last year to be remanded.Before he was brought to the Police Court at Kandy, he had madea statement amounting to a confession to the police, and immediatelybefore he was produced before the Magistrate the Inspector of Policerecorded the confession. When he produced the accused before thePolice Magistrate he informed the latter that the accused wished tomake a statement. The Magistrate inquired from the accusedwhether it was so, and on his answering in the affirmative, heproceeded to record the statement marked X2 in which the accusedstated that he was taken to Kegalla, given something to eat, andinduced to forge Horatala’s name to the impugned deed. Later,criminal proceedings were instituted against this accused and threeothers in the Police Court, and in his statutory statement heretracted his confession. The confession was produced as part ofthe e idence in the case. At the trial before the District Court, whenthe prosecutor proposed to read the confession in evidence, objectionwas taken that it was inadmissible as the requirements of section 134had not been complied with in recording it. The Police Magistrateof Kandy who recorded the confession, and his Interpreter Mudaliyarwere called under section 424 of the Criminal Procedure Code toprove that the requirements had been complied with, although therecord did not show it. The learned District Judge disallowedthe objection and admitted the confession in evidence. Thecomiction of both accused is based on the confession. I may atonce say that as against the fourth accused-appellant the confessionbeing a statement made by a co-accused is not evidence, even ifthe confession had been rightly admitted: Bex v. Ulcku Banda (supra).There was other evidence in the case, but that evidence was in theopinion of the Judge not strong enough to base a conviction on, andthe learned Judge in the course of his judgment said, “ “I may sa}'at once that if this confession is not admitted then there is against
-none of the accused any adequate evidence. The whole caaein my opinion turns on the admissibility or otherwise of this•confession.”
The fourth accused-appellant is therefore entitled to be acquitted.His conviction is accordingly set aside.
As regards the first accused-appellant, if the confession isadmissible his conviction must stand. Is the confession admissible ?That depends on the question whether the requirements of section134 have been complied with ? Now section 134 runs as follows :—
“ 134. (1) Any Police Magistrate may record any statementmade to him at any time before the commencement of aninquired or trial.
“ (2) Such statement shall be recorded and signed in the mannerprovided in section 302 and dated, and shall then beforwarded to the Police Court by which the case is to beinquiry into or tried.
“ (3) No Magistrate shall record any such statement, being aconfession, unless upon questioning the person making ithe has reason to believe that it was made voluntarily ; andwhen he records any such statement he shall make amemorandum at the foot of such record to the followingeffect:—
“ I believe that this statement was voluntarily made. Itwas taken in my presence and hearing and was readover by me to the person making it and admittedby him to b e correct, and it contains accurately thewhole of the statement made by him.
(Signed) A. B.,
Magistrate of the Police Court of.”
Section 302 requires a Police Magistrate to record in full the whole•of the statement made by an accused including every question putto him, and every answer given in the language in which the personis examined or if that is not practicable in English, “ and suchrecord shall be shown or read to him or if he does not understandthe language in which it is written shall be interpreted to him in alanguage he understands and he shall be at liberty to explain or addto his answers.
“ (2) When the whole is made comformable to what he declares isthe truth, the record shall be signed by the Magistrate, who shallcertify under his own hand that it was taken in his presence and inhis hearing and contains accurately the whole of the statement orexamination of the accused.
“ (3) The accused shall sign or attest by his mark such statementor examination ; and in the event of his refusing to do so theMagistrate shall record such refusal.’’
( 394 )
1926.
■Jaybwar*
DENE A.J.
King v.Bilinda
In the present case none of the requirements have been compliedwith except that the confession itself was placed on record. Thelearned Judge has tabulated the omissions and they may besummarized thus :
(а)The memorandum required by section 134 (3) was not made
at the time the confession was recorded. The memo-randum which now appears below the confession was madetwo and a half months later.
(б)The questions put, and the answers given, were not recorded
as required by section 302, and the record does not snowthat the Police Magistrate questioned the accused asrequired by section 134 (3) to enable him to form theopinion that the confession wras made voluntarily.
The accused has not signed the statement.
There is nothing to show7 that it was read over and interpreted
or that an opportunity was given to explain or add to theanswers.
This wholesale omission to comply with the requirements ofsections 134 and 302, it is contended, can be remedied under■ section 424, by evidence being led to prove that the requirements. were in fact complied with at the time the confession was made.These omissions lead me to the conclusion that the learned PoliceMagistrate who recorded the confession did not purport to do sounder section 134. The Magistrate appears to have known that hehad the right to record confessions made before an inquiry or trial,but he had forgotten the fact that they had to be recorded undersection 134. Nowr section 424 empowers a Court before w'hich adeposition of a witness, or a statement of an accused, is tendered inevidence to take evidence that the witness or the accused gave theevidence or made the statement recorded, if it finds that theprovisions of the Code have not been fully complied with by thePolice Magistrate recording the evidence or statement. Here noattempt had been made to comply with any of the requirements ofsection 134, and in view of the imperative terms of the section, myopinion is that section 424 cannot be resorted to make good allthese omissions. The defect here is more than one of mere form,it is not a confession recorded under section 134 at all. There is nolocal case dealing with this point, but there are several Indian casesin which under similar circumstances confessions have been rejected:Queen Empress v. Viran (supra) and Queen Empress v.Bhairab ChunderChuckerbuttywhich are cited with approval in Amiruddin Ahmedr.King Emperor.- Ifc is not, however, necessary to base my decisionon this ground, for, in my opinion, the oral evidence called fails toprove that the statement of the accused wras read over and explainedor interpreted to him, or that the Magistrate questioned the accused1 (289S) 2 C. W. N. 702.2 (2917) 45 Cal 557.
( 395 )
to find out whether the confession was voluntary. It is theInterpreter Mudaliyar who usually explains and interprets whateveris recorded, but he is unable to say whether he read and explainedthis confession to the accused. There is no certificate under thehand of the Judge that the statement was taken in his presence, andin his hearing, and that it contains accurately the whole of thestatement of the accused. The accused has not signed it or attestedit by his mark. As the learned Judge remarks, it is strange that ifthe statement was read over to the accused it was not signed byhim. I find therefore that the statement was not read over andinterpreted to the accused and that he had no opportunity ofexplaining or adding to it. Then did the Magistrate question theaccused and thereby have reason to believe that the statement wasmade voluntarily ? The record shows that the Magistrate did notwrite down the questions put to the accused or the answers given byhim. He says that he had reason to believe that the accused madethe statement voluntarily. He did not make the memorandumrequired by section 134 at the foot of the record at the time he tookdown the statement. What the Magistrate did was this : When hewas informed by the Inspector of Police that the accused wished tomake a statement, he merely asked the accused if he wished to makea statement and proceeded to record the statement. According tothe Interpreter Mudaliyar’s evidence in the Police Court, theInspector of Police who produced the accused was near the accusedwhen the statement was made. On these facts it cannot, in myopinion, be said that on questioning the accused the Magistrate hadreason to believe that the statement was voluntary. There hasbeen no attempt whatever to question the accused to ascertainwhether the confession was voluntary or not. The Magistrateought to have put suitable questions to satisfy himself that theaccused was a free agent, and that he had not been deceived orforced into making the confession. Such questioning was imperativein this instance as the accused was produced from police custody andthe Police Inspector was standing near him when the statementwas made. For, as was said in an Indian case, “ the fact andduration of police custody is very properly regarded as having amaterial bearing on the question whether a confession is voluntaryor not.” In India very strict rules have been made regarding thepresence of Police Officers when statements are being recordedunder section 164 of the Criminal Procedure Code, which correspondsto section 134 of our Code, and an order has been issued that noconfession or statement should in any case be recorded in thepresence of the Police Officers who have arrested or produced theaccused. This rule might with advantage be adopted locally. Inmy opinion the Magistrate failed to question the accused to satisfyhimself that the confession was voluntary, and I can see no groundfor saying that he had reason to believe that it was in fact voluntary.
1S26.
jAYEWAIt-
OEKE A.J.
King v.Bilinda
( 396 )
1926.
Jaybtwar*OBNB A.J.
King v.Bilinda
There has been a failure to comply with the letter or the spiiit ofsection 134 which i'a framed in very imperative terms. The so-calledconfession is, therefore, inadmissible in evidence, and ought to havebeen rejected. It was, as I have already stated, retracted when theaccused was called upon to make his statutory statement at thepreliminary inquiry under Chapter XVI. of the Criminal ProcedureCode.
In the result, the conviction of the first accused also must be setaside. The appeals are allowed.
Convictions set aside.
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