R. A. DE MEL et al., Petitioners, and HANIFFA, Respondent

098-NLR-NLR-V-53-R.-A.-DE-MEL-et-al.-Petitioners-and-HANIFFA-Respondent.pdf


GRATIAEN J.—R. A. de Mel v. Baniffa
433
1952Present : Gratiaen J., Gunasekara J. and Pulle J.R. A. de MEL et al.. Petitioners, and HANIFFA,
Respondent
S. C. 336—Application for revision in M. G. Colombo (Joint), 39,795
Criminal procedure—Summons to produce documents—Non-compellability of anaccused person to produce any document in his possession—Applicabilityof English late—-Evidence Ordinance, ss. 100, 120 (6)—Criminal ProcedureCode, ss. 6, 66, 68 (1), 282, 429.
An accused person cannot be compelled under section 66 of the CriminalProcedure Code to produce, during the pendency of criminal proceedings whichhave been instituted against him under Chapter 15 of the Code, any documentsin his possession which may provide evidence against him.
PPLICATION to revise an order of the Magistrate’s Court, Colombo(Joint).
H. V. Perera, Q.C., with D. S. Jayaunckreme and C. D. S. Wijeratne,for the accused petitioners.
Colvin R. de Silva, with G. E. Chitty, Izadeen Mohamed and A. S.Vanigasooriyar, for the complainant respondent.
H. A. Wijemanne, Crown Counsel, as amicus curiae.
Cur. adv. vult.
April 24, 1952 Gratiaen J.—
On 23rd April, 1951, in the Joint Magistrate’s Court of Colombo, thecomplainant instituted criminal proceedings against the 1st accused,the 2nd accused (who is the wife of the 1st accused) and the 3rd accusedcharging them with having during the month of May, 1947, committedoffences of conspiracy, cheating and abetment. The gist of his com-plaint was that the 1st accused, aided and abetted by the others, hadby means of certain false representations induced him to accept theNew Landing and Shipping Company Ltd. (an allegedly worthlesscorporation) as his debtor in place of the 1st accused.
After the complainant had been examined on oath in terms of section150 of the Code, the Magistrate ordered process against all three accused.On 23rd May. 1951, they appeared in Court and, as the offences were nottriable summarily by a Magistrate, a preliminary inquiry under Chapter16 duly commenced on that day. The proceedings were then adjourneduntil 19th Time, 1951.
On 31st May, 1951, in preparation for the inquiry-fixed for 19th June,the complainant moved for summonses on 42. witnesses; The list of■witnesses included the name o{ the 1st accused although he wasadmittedly not a compellable witness for the prosecution.
On 9th June, 1951, the complainant filed a further motion which is inthe following terms: —
“ With reference to my application for summons on the 1st accused(witness No. 7 in the list dated 31.5.1951) to produce certain docu-ments in big custody, I move under section 66 of the Criminal Procedure
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Code for a summons on the 1st accused to produce the documentsenumerated (1) to (7) in the said list and also the under mentioned■documents for inspection by the complainant on a date to be fixed byCourt prior to the date of trial.
Colombo, 9th June, 1951.
Sgd/D. Hewagama.Proctor for complainant.”
(The additional documents referred to were then enumerated. Theyinclude all the 1st accused’s private cheque counterfoils covering aperiod of 8 years; and the books and cheque counterfoils of the Company,both before and after its incorporation, for the years 1943 to 1951.)
This application, unsupported by evidence even in the form of an affi-davit, was submitted to the Magistrate in Chambers who allowed itex parte, and, without qualification, as far as I can judge, quite per-functorily. A similar application ordering the 3rd accused to producecertain documents which were the property of the New Landing andShipping Company Limited “ for inspection by the complainant on adate to be fixed by Court prior to 19th June ” was also allowed.
On 19th June, 1951, the Magistrate refused an inter partes appli-cation made before him on behalf of the 1st and 3rd accused that theearlier orders for the production by them of the documents concernedshould be vacated. We have now been invited, in the exercise of ourrevisionary jurisdiction, to quash these orders on the ground that aMagistrate has no power under section 66 to compel an accused personto produce any document either as evidence against himself or even witha view to its possible production in evidence (after prior inspection by thecomplainant) by some competent witness for the prosecution in thepending criminal proceedings.
This is apparently the first occasion on which this important questionhas been raised in our Courts, and we are indebted to learned Counsel forthe assistance which they have given us and which the occasion certainlyrequires.
There can be no doubt, and Dr. Colvin E. de Silva has very properlyconceded, that if the law of Ceylon on this subject is the same as theEnglish Law, the orders purporting to have been made by the learnedMagistrate under section 66 of the Code were made without jurisdiction.In both countries, an accused person is not a compellable witness againsthimself and, at any rate in England, on the same analogy, he cannot(subject apparently to certain exceptions which are immaterial in thepresent context) “ be compelled or even legally required to produce anyevidence which may operate against himself R. v. Worsenham 1;Aickles case2; R. v. Elworthy3; and Trust Houses Ltd. v. Postlewaite 4.If, according to this principle, the prosecution desires to prove the contentsof a particular document which is in the prisoner’s custody, the onlyprocedure available to the complainant, provided that he already hassatisfactory secondary evidence to prove that document, is to give the prisonernotice to produce the original. Should such notice be not complied with,
1 1 Ld. Raym. 70S (Si E. R. 1370).3 (1867) 10 Cox C. C. 579.
* 1 Leach C. C. 291.* (1944) 198 L. T. Jo. 182.
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secondary evidence of the contents of the document would become admis-sible as evidence against the prisoner. Stone’s Justice Manual (82ndEdition) Vol. 1, page 298. It was held in Trust Houses Limited v. Postleth-waite (supra) that “ the Court may suggest that the production of theoriginal document is desirable, but the defendant cannot be compelledto produce it, and thus provide evidence against himself In otherwords, it is the element of compulsion, coupled with the sanctionsattaching to it, which violates the English rule.
As I have previously stated, an accused person in Ceylon stands inthe same position as an accused person in England with regard to hisnon-compellability as a witness against himself. Whether this rule beimplicit in the provisions of section 120 (6) of-the Evidence Ordinance,which makes him competent only to give evidence on his own behalf,or whether the doctrine can be traced to the residual provisions of section100 introducing the English rules of evidence in regard to questions notprovided for in any written law in the Island, is now of onlyacademic interest. For the principle is long established and has becomea fundamental feature of our system of criminal justice. It controlsthe meaning of section 429 of the Criminal Procedure Code which, thoughcontaining words of the utmost generality, does not authorise a Judgeor a Magistrate to compel a prisoner to enter the witness-box for exami-nation even by the Court. Simon Appuhamy v. Rawal Appu 1; Martinus
. Dole =. Indeed, the rule places the same limitation on a Magistrate who,under section 392 (2), is sometimes required to combine the incongruousfunctions of prosecutor and Judge in the same non-summary proceedings.
So much has'been conceded on behalf of the complainant. Dr. deSilva submits, however, that section 66 of the Criminal Procedure Codeintroduces a deliberate departure from the English rules to the extentthat it empowers any Court of criminal jurisdiction to direct an accusedperson, on pain of exposure to other legal sanctions, to produce (thoughnot as a witness) an incriminating document which, upon its compulsoryproduction, could be admitted in evidence to prove his guilt through awitness other than himself.
Dr. de Silva invited us to examine this proposition solely by considera-tion of the words of section 66, and without any predilection for theassumed wisdom of the English rules of evidence and criminal procedure.I certainly agree that we must approach our task judicially and not aslegislators, and that we cannot with propriety apply any legal principle;i (opted in another country unless we be satisfied that it also formspart of the law of Ceylon. I also agree that we must resist any temp-tation to “ usurp the legislative function under the thin guise of inter-pretation ”. Per Lord Simonds in Magor and St. Mellons v. NewportCorp 3.
The common law rule of England that a prisoner on trial cannot becompelled either to give or to provide evidence against himself is regardedby the English Courts as fundamental to the “ accusatorial ” (as opposedto the " inquisitorial ”) system of criminal procedure. It is very relevant,therefore, to remind ourselves that our Code of Criminal Procedure,
1 11904) 1 Bed. Rep. 44.* (1943) 44 N. L. R. 215.
3 (1951) 2 A. B. R. 839.
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GBATIAEN J.—R. A. de Mel x>. Haniffa
and the earlier Code which it has superseded, were both designed toregulate the process of bringing offenders to justice in accordance with the“ accusatorial system ” which, by the will of succeeding Legislatures,has taken firm root in this country. Indeed, it has long since becomepart of our heritage. Although, therefore, the problem now before usis purely a problem of interpretation, a Court should not lightly assumethat, within the framework of a Code of Criminal Procedure which sub-stantially incorporates the principles of the accusatorial system, certaingeneral words in a particular section were intended by the Legislatureto withdraw from accused persons a special protection which sofundamentally distinguishes that system from other systems of criminaljurisprudence.
Section 66 of the Code is in the following terms: —
“ (1) Whenever any Court considers that the production of anydocument or other thing is necessary or desirable for the purposes ofany proceeding under this Code by or before such Court, it may issuea summons to the person in whose possession or power such document orthing is believed to be, requiring him to attend and produoe it or toproduce it' at the time and place stated in the summons.
Any person required under this section merely to produce adocument or other thing shall be deemed to have complied with therequisition if he causes such document or thing to be produced insteadof attending personally to produce the same.
Nothing in this section shall be deemed to affect the provisions
of sections 123 and 130 of the Evidence Ordinance, or to apply to anybook, letter, post card, telegram, or other document in the custodyof the Postal or Telegraph authorities*
1 agree that prima facie the words “ any document or thing which isnecessary or desirable for the purposes of any proceeding under the Code "appearing in sub-section (1) and the words-'- any person ” in sub-section(2) would by themselves be wide enough to catch up even a person whostands in the very special position of a man against whom criminalproceedings have been instituted and are still pending^ On the otherhand, the true meaning of tne section cannot be extracted if we areprepared to ignore certain recognised canons of interpretation whichrequire that some limitation must sometimes, and in an appropriatecontext, be placed on the literal meaning of general words appearingin a statute.
In Minet v. Leman 1 Sir John Romilly M.E. laid down as a principleof construction applicable to all statutes that “ the general words of anAct are not to be construed so as to alter the previous policy of the law,unless no sense or meaning can be applied to those words consistentlywith the intention of leaving the existing policy untouched see alsoSeumrd v. The Vera Cruz 2. Similarly, “ it is in»the last degree improbablethat the Legislature would overthrow fundamental principles, infringerights or depart from the general system of law without expressing itsintention to do so with irresistible clearness ”. Maxwell’s Interpretationof Statutes (9th edition) page 85. Maxwell proceeds to point out in the1 20 Beav. 269 {52 E. R. 606).• {1884) App. Cases 59.
GBATIAEN .J.—R. A. de Mel o. Haniffa
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same page’that “ there are certain objects which the Legislature is pre-sumed not to intend, and a construction which would lead to any of themis therefore to be avoided. It is not infrequently necessary, therefore,to limit the effect of the words contained in an enactment (especiallygeneral words)' and sometimes to depart, not only from their primaryand literal meaning, but also from the rules of grammatical constructionin cases where it is highly improbable that the words in their wide primaryor grammatical meaning actually express the real intention of the Legisla-ture
It is pertinent, I think, to examine the earlier history of the rules ofevidence and of procedure applicable to criminal cases in this country.The preamble to Ordinance No.. 6 of 1834 (which was later repealed)recites that since the Proclamation of 23rd September, 1799, the Englishrules of evidence “ have been gradually introduced and are generallyadhered to within this Island although not expressly established bypositive enactment ”. Section 1 accordingly declared that these rules“ shall continue to be the law of Ceylon in civil and criminal cases exceptwhen altered or modified by express enactment Thereafter, OrdinanceNo. 3 of 1846 repealed the earlier Ordinance and made “ better provisionfor the application of the English rules of evidence to the ColonyAgain, Ordinance No. 9 of 1852 introduced certain amendments to therules of evidence, and section 4 expressly enacted that, in accordancewith the law then obtaining in England, “ no accused person shall becompetent or compelled to give evidence for or against himself ”. Finally,the present Evidence Ordinance (Chapter 11) came into operation in1895. Section 120 (6) removed for the first time the disability whichprevented an accused person from giving evidence on his own behalf,but the rule against his compellability as a witness against himself wasnot relaxed. The Evidence Ordinance now embraces the rules of evi-dence applicable in this country in civil as well as criminal proceedings,and section 100 provides that- “ the English Law of Evidence for the timebeing ” shall determine any question “ not provided for ”.
I now turn to the local enactments which are specially concerned withthe rules of criminal procedure. Ordinance No. 3 of 1883 was intro-duced “ for regulating the procedure of the Courts of Criminal JudicatureSection 69 made provision for compelling the production of any document" for the purpose of any investigation, inquiry or other proceeding byor before any Court ”, but this section was expressly made subject,inter alia, to the provisions of Ordinance 9 of 1852 to which I havepreviously referred. In due course the Ordinance of 1883 was supersededby the Criminal Procedure Code of 1898 (Chapter 16) which, subjectto certain amendments, is still in force. Ordinance No. 9 of 1852 hadby this time been repealed, and its provisions could not therefore control,even if the Legislature so desired, the scope of section 66 (which sub-stantially corresponds to the earlier section 69). Instead, these newprovisions are expressly made subject inter alia to sections 123 and 130of the Evidence Ordinance, and, which is even more important, section6 of the Code provides that “ as regards matters of criminal procedurefor which no special provision may have been made by this Code or byany other law for the time being in force in the Island, the law relatingto criminal procedure for the time being in force in England shall be
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applied, so far as the same shall not conflict or be inconsistent with thisCode and can be made auxiliary thereto
This then is the background in which the present problem, as I see it,must be examined. I am perfectly satisfied that, at some stage or other,the special English rule which protects “ an accused person in the' sense in which that phrase describes a person against whom criminal pro-ceedings have actually been instituted and are pending in a court of criminaljudicature—from compulsion to produce from his custody a documentwhose contents are likely to provide evidence of his guilt, had become apart of our law. It is just as much a rule of evidence as it is a rule ofprocedure, and it is an essential feature of the system of criminal justicewhich was gradually assimilated in our Courts and was later adoptedby succeeding Legislatures over a period exceeding 150 years. Can onethen conceive that, by the use of certain general words in a sectionappearing in an enactment passed merely to regulate criminal procedure,the Legislature had designedly discarded a “ principle so fundamentaland so long established ” ?(per .Lord Darling in construing section 9
of the Evidence Ordinance in Eliyatliamby v. Eliyathamby et al ’). I donot think so, and in my opinion it is not legitimate to draw such aninference unless it be impossible to give those general words a meaningwhich is “ consistent with the intention of leaving the existing policyof the law unaltered
The section of the Code which specially deals with the compulsoryattendance of witnesses and with the compulsory production of witnessesat a criminal trial or inquiry before a Magistrate is not section 66 butsection 282. The general words of section 66 are, in any view of thematter, of wider import. They apply to all Courts of criminal juris-diction, and, as far as a Magistrate’s Court is concerned, it is evidentfrom the provisions of section 124 that section 66 may, apart from itsother functions, be applied at a stage prior to the institution of criminalproceedings under Chapter 15 of the Code—namely, when police officersare concerned in the investigation (under Chapter 12)1 of cognizableoffences or (with a Magistrate’s sanction) of non-cognizable offences.
To my mind, it is implicit in the scheme of the Criminal Procedure Codethat here, as in England, once proceedings have been initiated against anaccused person, he is placed in a special category separating him andothers in a like situation from the generality of mankind until the verdicthas been pronounced. The precarious position in which he stands entitleshim at the same time to protection in certain respects, and this is thebasis of the special rule whereby he cannot be compelled or legally requiredto contribute to the proof of his alleged guilt by giving or providing,even indirectly, evidence against himself. In the background of ourlegal system, I conclude that this protection would not be withdrawnby the Legislature except in clear and explicit language. The generalwords of section 66, taken by themselves, do not afford irresistible evidence,of a deliberate legislative decision to' discard a principle which is sofundamental and of such long duration. In the result, section 6 of theCode keeps alive this special rule and protects it from the impact ofsection 66.
» (1925) 27 A. L. ft. 396 (P. C.).
GRATTAEN J.—ft. A. de Mel •>. Beniffa
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. There is yet another canon of interpretation which justifies the viewj have taken. “ One of the safest guides to the construction of sweepinggenera^ words which would be difficult to apply in their full literal senseis to examine other words of like import in the -same instrument, and tosee what limitations must be imposed on them ”. Maxwell -page 31 *Blackwood v. R '. This Court has previously decided that the term” any person ” in section 429 must be so construed as to exclude an“ accused person Dr. de Silva has also conceded, and rightly in myopinion, that section 282 does not apply to an accused or to any documentsin his custody. These circumstances form a strong argument for sub-jecting the general words of section 66 to a like limitation and qualification.
As against this argument, we were referred to Ilex v. Suppiah *, whereLyall-Grant J. held, following a decision of the Indian Courts, that anaccused person is included within the general words “ any person ” insection 73 of the Evidence Ordinance, and may therefore be ordered tosubmit to his finger impressions being taken in Court for the purposesof his trial. It is significant, however, that the ratio decidendi of Suppiah’scase was that “ the Court was not in effect compelling the accused to provideevidence against himself, since what really constituted the evidence, viz.,the ridges of his thumb, are not provided by him any more than thefeatures of his countenance.” This line of reasoning seems to indicatethat Lyall-Grant J. recognised the sanctity of the rule which, in Mr.H. V. Perera’s submission, limits the scope of section 66 of the' CriminalProcedure Code.
We have been informed of the purpose underlying the complainant'sapplication under section 66. He does not claim personal knowledgess to the contents of the documents which he requires to be producedby the 1st and 3rd accused, and he is admittedly not in a position atpresent to place before the Court any secondary evidence regarding themas part of his case. A mere notice to produce the documents undersection 66 of the Evidence Ordinance, in conformity with the corre-sponding English practice, would therefore be profitless to him. Heapparently believes, however, that if these documents are produced undercompulsion for his inspection, there is a ” strong probability” (so Dr.de Silva has been instructed to state) that at least some additional evidencewill come to light to strengthen his case against the accused. I amconvinced that this kind of exploratory inquisition was not contemplatedby the Legislature which enacted section 66—and it is certainly not theproper function of a private prosecutor. The complainant is not vestedwith statutory power to investigate the alleged commission of offenceseither before or after the institution of criminal proceedings. Indeed,the particular offences with which the accused now stand charged areof a kind which even a police officer or “ inquirer ” is not empowered toinvestigate except on the authority of a Magistrate under section 129.
Dr. de Silva has pointed out that there are instances in which thisCourt has recognised the propriety of issuing search warrants undersection 68 (1) of the Code during the pendency of criminal trials orwarrants.
{1882) 52 L. J. P. C. 10.
(1931) 11 Law Bee. 31.
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GRATIAEN J.—B. A. de Mel e. Hcmiffa
Section 68 (1) is in the following terms:
** (1) (a) Where any court has reason to believe that a person towhom a summons under section 66 or a requisition under section 67has been or might be addressed will not or would not produce thedocument or other thing as required by such summons or requisition;or
where such document or other thing is not known to the courtto be in the possession of any person; or
where the court considers that the purposes of any proceeding underthis Code will be served by a general search or inspection, it may issue asearch warrant in the prescribed form and the person to whom suchwarrant is directed may search or inspect in accordance therewith andthe provisions hereinafter contained.”
Dr. de Silva’s submission, as I understood it, was that sub-section (a)contemplates the issue of a search warrant as an alternative procedureto the issue of a “ summons to produce ” under section 66; so that ifa search warrant may, in appropriate circumstances, be issued to thepossible detriment of an accused person, the Legislature must necessarilyhave considered the issue of a summons under section 66, so as to achievethe same object, to be equally legitimate. He relied on in re Abdul Latiff 1and N. R M. Chettiar v. Darley Butler and Co.2, and it is necessary toexamine each of these decisions in order to consider whether they assistus to solve the present problem.
In Latiff’s case, the complainant had instituted proceedings againsthis partner for criminal breach of trust in respect of certain partnershipassets, and pending the inquiry, he obtained a search warrant to securethe production and inspection of all the books of the partnership business.Wood Eenton C.J. held, Sampayo J. concurring, that " under the thirdparagraph of_section 68 (1)—i.e., sub-section (c)—the Magistrate hadfull power to order a general search for and inspection of all the booksof the partnership if he considered the adoption of that course necessaryfor the purpose of these proceedings.”- The Court expressly refrained,however, from, deciding whether exception could successfully be taken onbehalf of the accused at the trial as to the admissibility in evidence againsthim of the books covered by the search warrant. In the result it is notpossible to regard this authority as a precedent in this case. WoodRenton C.J. did not decide or even imply that either section 66 or section68 (11 (a) had any application to the facts under consideration by him.Moreover, the possible availability of the rule against an accused personof evidence procured by this means was recognised but not adjudicatedupon. Finally, the' documents in respect of which the warrant issuedwore property in which- the complainant, qua partner, enjoyed equalrights of ownership.
In N. R. M„ Chettiar v. Darley Butler & Co. (supra), two connectedproceedings were brought up in revision. In the first case, a person whohad not yet instituted criminal proceedings against another on a con-templated charge of cheating had obtained a search warrant in respectof certain bags of rice which were alleged to have formed the subject1 (1917) 19 N. L. R. 346.2 (1932) 34 N. L. B. 41.
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matter of the offence. In quashing the Magistrate’s order for the issueof a search warrant, Akbar J. was content to say that, on the materialplaced before the Magistrate, the order was illegal. In the connectedcase, the respondent had charged the petitioner with criminal breachof trust in respect of 1,282 bags of rice (allegedly the property of the re-spondent) which he had entrusted to the petitioner as a bailee. TheMagistrate allowed the respondent’s application for a general searchwarrant for the discovery of the rice. Akbar J. held, following Latiff'scose and certain Indian authorities, that “ a Magistrate had wide powersto issue a search warrant for the purpose of the investigation of an offencewhich has been disclosed by legal evidence on record ”, but he commentedadversely on the fact that the warrant had been obtained upon hearsayevidence. He decided, however, to make an equitable order in theinterests of both parties to the pending criminal proceedings. Hereagain, I derive little assistance from N. R. M. Chettiar v. Darley Butler <£Co. in the context of the present case. We are not concerned in theseproceedings with the legality or otherwise of a general search warrant-issued for the discovery of goods in which the complainant claimed rightsof ownership.
I do not propose to indulge in the luxury of an obiter dictum as to theproper scope of section 68 (1) (c) of the Code. The only observationwhich is relevant to the question now before us is that its provisionscannot be construed as ejusdem generis with cases falling within theambit of section 68 (1) (a). We have not been referred to any localdecisions affecting the scope of section 68 (1) (a).
Dr. de Silva suggested at one stage of his argument that, as the 3rdaccused was the Crsretary of the New Landing and Shipping Company,Ltd., the order served on him under section 66 was in effect an orderon the Company, which was not a party to the pending criminal pro-ceedings. He therefore argued that the application against the 3rdaccused was in any event not complicated by the principle affecting the-1st accused- It is sufficient, in rejecting this argument, to point outthat the correct procedure for issuing process on a limited liability Com-pany (as distinct from one of its servants) had clearly not been resortedto by the complainant. I express no opinion at this stage as to whether,in the facts of this case, a summons under section 66 would have beenavailable against the Company. There is a passage in Roscoe’s CriminalEvidence (loth Ed.) p. 202, which indicates that “ inspection of corpora-tion books is not granted in criminal cases where it vJould have the effectof making the defendant furnish evidence to criminate himself ”, butI have not had the opportunity of examining the authorities cited in thetext book.
I have reserved for the concluding stagte of this judgment my con-sideration of certain decisions • of the Indian High Courts on which-Dr. de Silva has placed great reliance. Section 94 of the Indian CriminalProcedure Code, although of wider application, includes provisions-similar to those caught up by section 66 of our enactment. Section 94has been construed by the Judges in India as having departed intentionallyfrom the English rules which refuse to compel an accused person toproduce documents which may provide evidence against him in criminalproceedings. These authorities, though not binding on us, are certainly-
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entitled to great respect, but it is important to bear in mind that theIndian Code, with which I am not very familiar, does not contain anyprovision similar to section 6 of our enactment sanctioning the appli-cation of the English rules in matters “ not specially provided forIn Jackariah v. Mohamed *. Ghose J.'s judgment was largely influenced bythe fact that the Indian Legislature had in certain respects “ designedlyintroduced important differences ” to the principles which are fundamentalto the English system of criminal justice. He pointed out that theLegislative Council of India, in spite of Mr. Fitzjames Stephen’s oppo-sition to the introduction of provisions such as section 94 in the CriminalProcedure Bill of 1872, preferred to adopt the contrary view expressedduring the debate by the Lieutenant Governor who “ did not see why' they should not get a man to criminate himself if they could ; why theyshould not do all which they could to get the truth from him ; and whythey should not cross-question him and adopt every means short ofabsolute torture to get at the truth. ” It is not surprising that in thisbackground the distinguished Judges of the Indian Courts who inter-preted section 94 decided that their Legislature had intentionallyadopted a policy differing fundamentally from the principles of theEnglish system ; and that “ a section which was framed in the widestterms was wide enough to cover the right to serve a summons on a personaccused in a case to produce a document. ” Satva Kumikar v. NikhilChandra 2. In Ceylon, by way of contrast, the provisions of section 6of our Code and of section 100 of our Evidence Ordinance, and also theearlier Ordinances to which I have referred, strongly indicate a consis-tent legislative policy to adopt the essential features of the Englishsystem. For this reason, the proper approach to the problem ofinterpretation before us is necessarily different.
It is not desirable to attempt a pronouncement as to the scope and effectof section 66 of the Criminal Procedure Code in all its implications. Iam satisfied* however, that it cannot operate against an accused personduring the pendency of criminal proceedings which have been institutedagainst him under Chapter 15 of the Code. The orders requiring the1st and 3rd accused to produce in Court, and for the complainant’sinspection, the documents alleged to be in their possession or powerwere therefore made without jurisdiction and should be quashed.
I desire only to add that even in a case where section 66 does apply,a Magistrate should exercise his judicial discretion in the matter cau-tiously and only upon proper material, so as not to cause more hardshipthan the necessities of the case require. A Magistrate who is invitedto make an order under section 66 in a case to which this Section applieswould do well to remind himself of the elementary safeguards indicatedin the judgment of Akbar J. in N. R. M. Chettiar v. Darley Butler (supra)and mutati8 mutandis of Beaumont C.J. in Hussenboy v. Vershi 3.
Gunasekaha J.—I agree.
Pttt.tj=i J.—
In the’ ultimate analysis the argument on behalf of the respondent isbased on the very general words of section 66 (1) of the Criminal Procedure
1 (1887) I. L. B. 15 Cal. 109.- * (1951) 52 Cr. L. J. of India 946 F. B.
* A. I. B. (1941) Bombay 259 F. B.
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Code and the interpretation placed on a similar provision in the CriminalProcedure Code of India by the courts of that country. The decisionsof the Indian Courts are indeed of high persuasive value but, with greatrespect, they do not, in my opinion, compel us to interpret section 66 (1)without regard to the fundamental principles of English law affectingaccused persons on which our Code of Criminal Procedure has beengradually built up.
I am convinced by the argument of Dr. Colvin R. de Silva that if,applying the recognised canons of interpretation one has no alternativebut to interpret the word “ person ” in section 66 (1) to exclude an accusedperson, there is no scope for the application of section 6. The Englishlaw of Criminal Procedure can be invoked to supplement but not to over-ride the Code. If, as a matter of interpretation, one does come to theconclusion that a person facing a trial or inquiry is not brought withinthe ambit of section 66 (1), then recourse to section 6 is needless.However, the presence of section 6 confirms what is otherwise apparenton a study of the historical development of the present Code that we hadassimilated the cardinal principles of English criminal procedure. Ifour Code can be regarded as an organic unit, section 6 ordains that itshall grow with the life of the English law, presupposing, therefore, thatit had already imparted its essential features to the growing organism ofour law.
The argument on behalf of the respondent in effect means that underthreat of sanctions a person who has appeared and pleaded to a chargeis bound to furnish to his adversary instruments which may be usedfor his own destruction. Such an argument runs counter to the spiritof provisions both in the Code and in the Evidence Ordinance designedto place an accused person in a privileged position. When the petitionerswere informed of the charges against them under section 156 they weretold that if they replied that would not be recorded by the Magistrate.Is it consonant with the spirit. of this section that they should next besummoned to produce documents intended to be used' against them ?The law keeps constantly stressing that incriminating statements allegedto have been made by an accused either to a Magistrate or other person inauthority should first be proved by the prosecution to have beenvoluntarily made before being admitted as evidence. Vide section 134of the Criminal Procedure Code and section 24 of the Evidence Ordinance.When he is in the dock his freedom to give evidence or not to give isinviolable and for that purpose the general words of section 429 of theCode have been given a restricted scope.
If a confession, be it oral or be it documentary, is shut out by section 24of the Evidence Ordinance if the making of it has been induced by threat,is it proper to compel an accused person facing a trial or inquiry to handover incriminating documents in his possession, some of which maycontain statements of a confessional character, to have them provedagainst him?
In my opinion an interpretation of section 66 (1) leading to the results1 have mentioned ought to be avoided.
I concur in the proposed order.
Application allowed.