012-NLR-NLR-V-39-POLICE-SERGEANT-HENDRICK–v.-ARUMUGAM–et-al.pdf
Police Sergeant Hendrick v. Arumugam.
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1937• Present: Soertsz J.
POLICE SERGEANT HENDRICK v. ARUMUGAM et al. .
325—P. C. Nuwara Eliya, 11,885.
Confession—Made to Unofficial Police Magistrate—Non-summary proceedings—
Case tried summarily by Police Magistrate as District Judge—Criminal.
Procedure Code, s. 134—Evidence Ordinance, ss. 24 and 26.
Where a confession was made to an Unofficial Police Magistrate by anaccused person in non-summary proceedings taken against him and thecase was eventually tried summarily by a Police Magistrate acting asDistrict Judge,—
Held, that the confession was admissible in evidence.
A confession made to an Unofficial Police Magistrate by an accusedwhilst he was in the custody of a police officer is admissible under-section 26 of the Evidence Ordinance.
A
PPEAL from a conviction by the Police Magistrate of NuwaraEliya. The accused were charged with the theft of jewellery
under section 369 and 440 of the Penal Code valued at over Rs. 300. The
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SOERTSZ J.—Police Sergeant Hendrick v. i4nimujrnm.
main evidence against the accused was a confession made hy first accusedwhile in Police'custody before an Unofficial Police Magistrate who recordedthe confession because the offence was a non-summary one. The PoliceMagistrate tried, the accused summarily making use of his powers asDistrict Judge and admitted the confession in evidence against theaccused.
O. L. de Kretser (Junior), for appellant.—The confession is inadmissiblebecause—
Section 84 (a) of the Courts Ordinance, No. 1 of 1889, which conferspowers on an Unofficial'Police Magistrate does not permit him to takeproceedings in cases triable summarily.
In 6 Cal. Law Reports 289 it has been held that recording a confessionis the commencement of proceedings. (Princeps Criminal Procedure Code,p. 177.)
Sections 134 and 302 of the Criminal Procedure Code, in terms of whichthe confession was recorded, are primarily intended for non-summaryoffences'. These sections were not intended to regularize confessions tothe Police. (Chitaley Criminal. Procedure Code, vol. I., p. 846.)
An. Unofficial Police Magistrate has only the powers of a PoliceCourt and not of a Police Magistrate as laid down in the CriminalProcedure
• Code. Therefore section 26 of the Evidence Ordinance does not applyand the confession recorded before an Unofficial Police Magistrate whileaccused is in Police custody-is bad.
Douglas Jansze, C.C., for the Crown.—It is immaterial as to how a' case is tried subsequently if at the time of recording a confession theaccused is charged with offence'non-summary in character.
The powers of a Police Court and a Police Magistrate are identical.
' Therefore a confession before an Unofficial Police Magistrate can be usedin evidence.
•There is sufficient evidence even eliminating the confession to convictaccused.
Cur. adv. wit.
■ May 14, 1937; Soertsz J.—
The two a ecused-appellants were charged with offences punishableunder section 440 and section 369 of the Penal Code. The value of thestolen property was three hundred and thirty-those rupees, and conse-quently, both offences fall beyond the jurisdiction of the Police Court.The Magistrate before whom the accused were charged being also DistrictJudge assumed jurisdiction under section 152 (3) of the Criminal Procedure.Code and after trial, convicted both thcaccused and sentenced each of themto a term of three months’ rigorous imprisonment. The Magistrate inhis judgment points out that he considered the two cases separately.That is as it should have been, for in the case of the first accused theprosecution relied on a confession said to have been made by him to anUnofficial/Police Magistrate and that confession, if admissible, wasadmissible only against the first accused. This confession was madeby appellant’s counsel the first ground of attack. He contendedthat the confession was inadmissible (a) because the Unofficial Police-Magistrate derived his powers from section 84a of the Courts Ordinance,
SOERTSZ J.—Police Sergeant Hendrick v. Arumugam.33
No. 1 of 1889, and that section enacts that “he shall have all the powersautd authority by the Criminal Procedure Code, 1898, vested in the PoliceCourt save and except the power and authority to take proceedings withregard to, or hear, try, or determine any offence which hy that Code orby any law of this Colony is summarily triable before a Police Court", andhe argued that because in this case the Police Magistrate who heard thecase tried this case summarily the power or authority of the unofficialMagistrate to take proceedings must be considered to have been ousted.In my opinion there are two answers to this argument, first that at thetime the proceedings of taking the accused confession was carried outby the Unofficial Police Magistrate the case was a non-summary case.Second that the crucial fact which determines the power or authorityof the Unofficial Police Magistrate is not the fact that eventually theaccused* was tried summarily, but the fact that the offence or offenceswith which the accused wore charged were offences which wore notsummarily triable by a Police Court. Section 84a says that the Un-fficialPolice Magistrate has all the powers given to a Police Magistrate – theCriminal Procedure Code save the power to take proceedings with regard toany offence summarily triable by a Police Court. Neither of the offencescharged in this case was triable summarily by a Police Court.
Although the Magistrate tried them he tried them as District Judge. Thenext point taken was that the confession was bad inasmuch as it was takenwhile the first accused Was in the custody of P. S. Nair. Section 26provides that no confession shall be made if it is made whilst an accusedis in the custody of a Police Officer unless it is made in the immediatepresence of a Police Magistrate. And it was urged that this statementor confession was made in the presence of an Unofficial Police Magistrateand not of a Magistrate. The Evidence Act does not define Magistratebut section 84a gives an Unofficial Police Magistrate all the power andauthority vested by the Criminal Procedure Code in Police Courts exceotthe powers I have already indicated, and therefore an unofficial Magistratehas the power and authority to take a confession save and except in acase in which the offence is summarily triable..
therefore, come to the conclusion that the statement made by thefirst accused to the Unofficial Police Magistrate is admissible. There isevidence that it was a voluntary statement and not induced in anyof the ways described.in section 24 of the Evidence Ordinance. It wasopen :to the Magistrate to convict the accused on that statement .alpne.It was an unequivocal confession. But I have examined the otherevidence in the case and in my opinion that evidence quite apart from theconfession is sufficient to support the conviction of the first accused. Thatevidence and the confession taken together make his conviction inevitable.
In regard to the second accused the evidence is equally strong. Hewas a labourer on the estate. Soon after the theft he pawned a pairof “ Koppu ” belonging to the complainant with the pawnbroker, SelliahPillai, and had described himself as Muniandy although the name bywhich he was known was Muttiah. Muttiah was his name on the checkroll. About this time he gave Rs. 29 to Peris Appuhamy, a trader, forsafe keeping and he gave a goldsmith’certain articles of jewellery-of
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SOERTSZ J.—Perera v. Fernando.
f•
the kind lost by the complainant and requested him to melt these andconvert them into articles of a different kind. His key fitted the padlockfixed to the complainant’s door. One of the “ Koppus ” pawned by himhas been clearly identified by the complainant.
All these facts established the case against him beyond reasonable doubt.I dismiss the appeal.
Affirmed.