REX v. JINADASA

129-NLR-NLR-V-51-REX-v.-JINADASA.pdf


529
Bex v. Jin adosa
[Court of Criminal Appeal]
1950 Present JayetUeke C.J. (President), Dias S.P.J., Gnnasekara J.,Pulle J. and Swan J.REX v. JINADASA
Appeal arising oot of Application 66 or 1950
S. 0. 28—M. C. Matara, 14,167
Court of Criminal Appeal—Evidence—Confession—Investigation under section 122 ojCriminal Procedure Cod;—How much of information received from accusedmay be proved—Admissibility of statement leading to discovery of relevantfact—Difference in admissibility between oral statement of accused and hisrecorded statement—Evidence Ordinance (Cap. 11), 98. 27, 91—CriminalProcedure Code {Cap. 1G), s. 122 (3)—Court of Criminal Appeal Ordinance,No. 23 of 1938, Proviso to s. 5 (1).
. A was charged with the murder of B. The evidonco against him was oircum-etanti&i. Tho mistress of B stated that at about dusk on the day in questionthe appellant, A. came to her house and took away a katty which the medicalevidence conclusively proved was the weapon with which B was killed. Atabout 9 or 9.30 p.rn. A returned to her house without the katty. The nextmorning A gave coriain information to the Police which led to the discoveryof the body in a stream. A was then arrested. In the course of the Policeinquiry under section 122 of the Criminal Procedure Code A told the Police“ I can point out the place where I threw it ” (meaning the katty). ThereafterA took the Inspector of Police to the scene and picked up the katty which washidden in some bushes and handed it to the Inspector.
The prosecution moved under section 27 of the Evidence Ordinance (a)to prove the portion of the orai statement mode by A to tho Police which ledto tho discovery of the katty, and (6) to produce the extract from the InformationBook in which that portion of the statement was recorded. The trial Judgeallowed both applications.
Held (by the majority of the Court), (i) that the oral statomont of A whichled to the discovery of the katty was admissible, (it) 'that thb prohibitioncontained in section 122(3) of the Criminal Procedure Code does not applyto the oral statement of a person made in the course of a Police investigation.The prohibition applies only to the production of the written record of the oralstatement.
It. v. Haramanisa {1944) 43 N. L, 22. S32 dissented from.
Held further, that, although the extract from the Information Book wasimproperly admitted, there was no substantial miscarriage of justioe, andthe proviso to section 5 (1) of the Court of Criminal Appeal Ordinance wasapplicable.
^^.PPEAL, with application for leave to appeal, from a convictionin a trial before a Judge and Jury.
M. M. Kumarakulasingham, with D. W. F. Jayasekera, J. C. Thurai-ralnam and Q. Rajanathan, for the accused appellant.—The questionsfor decision are—(1) Whether oral evidence regarding the statement
-Li
.T.N. n J 222-1,040 (9,!50;
530
Rex v. J triadasa
of tho accused, “ I can point out the place where I threw it", whichled to the finding of the katty, and (2) whether tho document X2,namely, the certified copy of tho passage in the Information Book wherethat statement had boon recorded, wore rightly admitted at the trial.It is submitted that this evidence has beon wrongly admitted. Section122 (3) of the Criminal Procedure Code in effect repeals section 27 of the.Evidence Ordinance so far as a statement to a Police officer is concerned.The effect of the corresponding section of tho Indian Criminal ProcedureCode, section 162, on section 27 of the Indian Evidence Act was con-sidered by the Privy Council in Pakala Narayana Swami v. Emperorl.Tho Lahore High Court in Hokum Khuda Yar v. Emperor2 held thatsection 27 of the Indian Evidence Act was pro tanto repealed by section162 of the Indian Criminal Procedure Code. Tho Allahabad High Courttook a similar view in Baldeo t>. Emperor 'J. For contrary views seeBiram Gaidar v. Emperor4, In re Subbiah Tcvar5, and Emperor v.MayadharPothal*. With regard to the application of the maxim generaliaspecialibus non derogant see Naresh Chandra Das v. Emperor 7.
[Counsel also cited Baby Nona v. Johana Perera8; King v. Emanis • >Rex v. Fernando10; The King v. Pabilis 11; The King v. do SilvaThe King v. Gabriel13; and R. v, Haramanisa
R. R. Crossett-e-Thambiak, K.C., Solicitor-General, with D. Jansze,Crown Counsel, H, A. Wijemanne, Crown Counsel and Ananda Pereira,Crown Counsel, for the Crown.—There are certain exceptions to the rulethat a later enactment repugnant to an oarlier enactment pro tantorepeals the oarlier. One such exception is that statutes in pari materiashould be construed as one. As to what is in pari materia see Craves :Statute Law, 4th ed., p. 124. As to the proper method of construingstatutes in pari materia see Richard Costa v. A. S. P. (C. I. D.), Colombo15and Crates : Statute Law, 4th ed., p. 123. The later statute repeals theearlier if wholly inconsistent, but the presumption is against ropesl byimplication. Everything possible should be dono to carry out theintention of the legislature—Crates Statute Law, 4th ed., pp. 312, 313;Maxwell: Interpretation of Statutes, 2046 ed., pp. 35, 163, 171, 264.On the maxim generalia specidlibua non derogant see the leading caseMary Setvardv. The owner of the “ '.’era Crusz ”5,; and Tkimappa v. Thirn•appa ,T. As to what is a “ speciallaw ” see (1940) Cr. L. J.( Vol.41, p.41.Looal decisions have consistently held that section 25 of the EvidenceOrdinance prevails over section 122 {3; of the Criminal Procedure Code—The King r . Coorayx% ; The Kingv. Fernando10 : The Kings. Rankamy20:The King v. Gunaivardene -1 ; Rex v. Vasu:: ; The Kingv. Kiriwasthu23,With regard to the certified copyof the extract of tho recorded statement
*A.I. R. (1939) P. C. 47.
A. I. R. [1540) Lahort 129.
A. 1. R. (1940) Allahabad 263.
A. I. R. (1941) Bombay 146.
A. 2. R. (1939) Madras 856.
A. I. R. (1939) Patna 577.
? A. J. R. (1942) Calcutta 693.
(1937) 8 C, L. W. 65.
» (1940) 42 N. L. R. 166.
(1939) 41 N. L.R. 151.
(1924) 25 N. L. R. 424."(1940) 42 24. L. R. 67.
,n (1937) 39 X. L. R. 3S.
11 (18441 45 iV. L. R. 532.
18 (1948) 50 N. L. R. 574 at p. 576.
18 (1884-85) 10 A. V. 59 at p. 68.
» (1928) 51 1. L. R. Matins 967 at p. 974.18 (1926) 28 N. L. R. 74.
18 (1939) 41 N. L. It. 151.
(1940) 42 N. L.R. 221.
(1941) 42 N. L.R. 217.
” (1941) 27 C. L. If. 16.
•' (1939) 40 N. L. R. 289.
DIAS S.P.J.—Ssx v. Jtnadasa
531
in the Information Book (X2), it is submitted that this is not a “ docu-ment ” within the meaning of sections 91 and 92 of the EvidenceOrdinance—Amir Ali: Evidence, p. 624. It would appear that R. v.Haramanisa1 was wrongly decided. Section 302 of Criminal ProcedureCode indicates how statements should be recorded with strict formality.If no deposition, or an informal one, has been prepared, parol evidence ofwhat was said by the witness may be given—Phipgon's Law of Evidence,8th ed., p. 559 ; Rex v. Thomas
Cur. adv. vult.
September 11, 1950. Dias S.P.J —
The appellant Ranasinghe Jinadasa and A. P. James were jointlyindicted with having committed the murder of a man named P. A.Somadasa on the night of July 2, 1949. The jury by their unanimousverdict convicted the appellant of the oapital charge and acquittedA. P. James.
The appeal came up for hearing before a Bench consisting of my brothersGunasekera and Swan and myself. The question raised appearingto us to be one of considerable importance, we adjourned tho argumentand suggested to tho Chief Justice that the case should be submitted to afuller Bench. The matter has now been argued before a Bench of FiveJudges.
The relevant facts are as follows:—The appellant was living in thehouse of the deceased man and his mistress Hinnihamy. There wasevidence to show that the appellant was on terms of intimacy withHinnihamy. It was the habit of tho deceased man, who did contractwork on Tcnnehena Estate, to go every Saturday to receive money tomake weekly advances, and also at the end of the month to receive thebalance due for the work done. On Saturday, July 2, 1949, the deceasedman left his house at about 2 p.ra., saying he was going to tho house of theestate superintendent, S. Chinniah. Hinnihamy never saw her husbandalive thereafter. Tho deceased man having borrowed a bicycle fromPantis, reached Chinniah's house at about 4 p.m. and was given a chequefor Rs. 100. The deceased man went to the boutique of R. Piyadasawhere he cashed the cheque and was given change in one-rupee and two-rupee notes. The deceased left Piyadasa’s boutique at about 7 p.m.
Hinnihamy says that “ at about dusk ” on this day, the appellantcame to the house and took away the katty P4. The medical evidenceproves conclusively that the deceased man was done to death by thekatty P4.
Between 7 p.m. and 8.30 pm., the witnesses Francis and Hendricksaw the deceased man on a cycle. Pantis says that the deceased manreturned the cycle at about $.30 p.m., paid him some money, and lefton foot in the direction where his dead body was subsequently found.
The witness Cornelia says that at about 9 or 9.30 p.m., when he wasreturning home from his father-in-law’s house, he had to pass the spotwhore bloodstains were later found. He says that he then saw the
1 (1944) 46 N. L. R. 532.
9 13 Cox Cr. Com 77.
DIAS S.P.J.—Rex v. Jina-lasa
5112
appellant and James coming along the road towards him. Cornel is hadno cause to suspect anything, hut, subsequently, when tho body wasdiscovered, the significance of what he saw struck him.
Hiimihamy says that the appellant returned to her at about 9 or 9.30p.m., without the katty P4. He told tho woman in Sinhalese Thejob went wrong. I have killed tho Liyana Makatmaya ” (the deceased).He also dropped on the table a bundle of money containing Rs. 72 inone-rupee and two-rupoe notes wrapped in a piece of paper (P14). Thewoman observed that the appellant was wearing the sarong P6 on whichtho Analyst found traces of human blood. The appellant partook ofa meal and water and reclined on a bed in the verandah. Hinnihamysays that when she began to weep the appellant threatened to kill heralso. She, therefore, locked herself inside her room.
Police Sergeant Fernando says that on Sunday, July 3, at 9.30 a.m.,the appellant came to him at the Pittabedera Junction and madea voluntary statement which he recorded, P15. The appellant statedthat as the deceased man did not return to his house on the previous day,he went out to look for him with James, and “ saw the dead body in astream known as Hulanda-ela by tho side of the Hiniduraa Road TheSergeant went with the appellant to the spot and at about 11.45 a.m.the dead body was pointed out by the appellant. The Sergoant saysthat tho body was not visible to the road and “ he had to bend down andtake a lot of pains ” in order to see the body from the roadside. Hefound a trail 0! blood from the road to tho place where the body was.The Magistrate reached the scene at about 5 p.m. At 8.30 p.m. theappellant was arrested at his father’s house, The sarong P6 was foundhanging on a clothes’line in that house. It was wet and wns covered by orconcealed under a camboy on the clothos’ line. The appellant was thentaken to the police '.-.tation and Inspector Mahendram went to have hisdinner. Thereafter the inspector resumed his inquiry. At 1 a.m. onMonday, July 4, the appellant is allegod to have made a certain state-ment in the course of which ho said “ I can point out the place where Ithrew it” (meaning the katty P4). In the morning the Inspector wentwith the appellant to the scene. The evidence of the Inspector asrecorded at the trial appears at page 96 of the transcript and is asfollows :—
I went to the scene with the 1st accused (appellant) and the lastwitness Sergeant Fernando.
Q.Did you search for anything when you went to the scene ?
A. I searched for a katty.
Q.Was the katty found ? A. I found a katty.
Q.In consequence of what did you search for it ? A. In consequenceof a statement made by the 1st accused to me. Q. Referringto what ? A. Referring to the katty,
Q. What did he say ? A. He said : ‘ I can point out the place whereI threw it ’. I produce a certified copy of it marked X2. Thekatty was found on the top of somo beta bushes. 1st accusedpointed the katty out and he had to shake the bata bushes and
DIAS S.P.J.—Rtx v. Jiruviasa
533
the katty fell. The bcUa bushes were by the side of the roadabout ninety feet from the place where the blood trail started.The katty was visible to anybody who was looking about theplace.
Q. Anyone looking from the road could not see it ? A. It wasnot visible to anyone looking from the road. At the time Itook charge of P4 there was something like human hair on oneside of the blade. I produced P4 before the Magistrate,Matara.
To Court—The accused led me to the place where the katty wasBefore this evidence was led, the question of its admissibility wasargued in the absence of the jury. The learned Judge ruled as follows :“ My ruling is that Crown Counsel is entitled to prove the statement heproposos to lead in evidence by producing a certified copy of the state-ment of the 1st accused which he wants to prove, that is the sentencewhich he has read out
Tho questions for decision are whether oral evidence of what theappellant said leading to the discovery of the katty and tho documentX2 were rightly admitted ?
Sections 24 to 30 of the Evidence Ordinance (Chapter 11) form a groupof sections dealing with confessions made by accused persons. Section 24excludes from proof a confession made by reason of an inducement,threat or promise proceeding from “ a person in authority ”. Section 25(as amended by Ordinance No. 18 of 1928) makes inadmissible confessionsmade to police, forest and excise officers. Section 26 provides thatconfessions made by an accused porson while he is in tho custody of apolice, forest or excise o hi cor shall not be proved against him unlessit ho mado in the immediate presence of a Magistrate. Then followssection 27 which is in the following terms :
" 27. . (1) Provided that, when any fact is deposed to as discoveredin consequence of information received from a person accused of anyoffonco, in tho custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly to thofact thereby discovered may be proved.
(2) Sub-section (1) shall also apply muiatis mutandis, in the case ofinformation received from a person accused of any act made punishableunder the Forest Ordinance, or the Exciso Ordinance, when suchperson is in the custody of a forest officer or an excise officer,respectively. ”
In R. v. Packeer Tamby 1 tho question arose whether section 27 of theEvidence Ordinance is a proviso to sections 24 and 25 ? It was laid downthat section 27 qualifies section 24. “ Therefore, whatever tho induce-ment that may have been applied, or made use of towards the accused,there is nothing in the law which forbids policemen or others from, atany rate, going so far as to say, ‘ In consequenco of what the prisonertold me, I went to such and such a place and found such and such a thingMoreover they may repeat the words in which the information was1 (1931> 32 N. L. R. 2S2.
DIAS S.P.J.—Rex v. Jinadasa
534
oouched whether they amount to a confession or not, provided theyrelated distinctly to the faot discovered. Therefore, although a con-fession may bo generally inadmissible in consequence of an inducementhaving been offorod within the meaning of the 24th section, yet, if anyfact is deposed to as discovered in consequence of such confession, somuch thereof as relates distinctly to the fact thereby discovered may beproved under this section ”. This case was followed with approval inIyer v. Galboda *.
The manner in which section 27 of the Evidence Ordinance has beenunderstood and applied aro illustrated by the following cases :—In R.v.Sudahamma 2 the accused, who was charged with the theft of a SavingsBank pass book and with the fogery of a withdrawal form, when in policecustody pointed out a certain person as being the man who wrote andfilled up the withdrawal form for him. It was held that the informationgiven by the accused led to the discovery of the witness who filled theapplication form for him. It related distinctly to the fact discovered.The fact that the discovery was made, not in consequence of the inform-ation given by the accused but by the act of the accused himself, did notmake section 27 inapplicable. “ If instead of pointing out the witnessBruin, the accused described Bruin with such particularity as to enable thepolice to discover the man who filled up tho application form for blra,the information so given would have been admissible under soction 27 M.Tho “fact discovered”, however, must be itself relevant to tho caseagainst the accused. If it is not so relevant, but merely goes to show thatthe accused had given a different account when he was first questionedby the police, the evidence would be inadmissible—Nambiar y. Fernando 3.In Fernando v. S. /. P-, Slave Island 4 it appeared that the police wereinvestigating the alleged theft of a Hercules bicycle. Tho prisoner whohad been detained as a suspect gave the police certain information inregard to tho theft by him of a Raleigh bicycle. In consequence of thatinformation the police discovered parts of that Raleigh cycle in the houseof a certain person. The prisoner was thereupon charged with the theftof tho Raleigh cycle. The proctor for the prisoner when cross-examiningtho police officer elicited from him the statement made by the accused,whereupon the officer stated that the accused told him “ that he hadstolen a cyclo at tho City Dispensary and had later sold it to a carter ”.Jt was held that the evidence given by tho police officer was inadmissibler.s it was not covered by the words “ as relates distinctly ” in soction 27of the Evidence Ordinance. Tt was further held that the Raleigh cyolo'.vos discovered in consequence of the information given by the accusodthat he sold it to a carter, and the,*/ the further information that theaccused had stolon a cyclo at tho City Dispensary did not ■* relate dis-tinctly ” to tho discovery of the cycle. The conviction was affirmedon other grounds. The principle underlying section 27 of tho EvidenceOrdinance was thus stated by Baron Parke in II. v. ThurUll and Hunt8:“ A confession obtained by saying to the party ‘ You had better confess,or it will be worse for you if you do not confess ’ is not legal evidence.
1 (1942) 44 N. L. R. 94.» (1925) 27 N. L. R. 404.
» (1924) 26 R. L. R. 220.4 (1945) 46 N. L. R. 156.
' (1824) Ratable British Trials, p. 145.
535
DIA8 S.P.J.—-Jlex ('• Jinadasa
But though such a confession is not logal evidence, it is everyday practicethat if, in the course of such a confession, that party state where stolen
goods or a body may be found, and they are found accordingly, this isevidence, because the fact of finding proves the truth of the allegation,and his evidence in this respect is not vitiated by the hopes or threat*which may have been held out to him
In the present case two facts were discovered in eonsequonoe of state-ments mado by the appellant to the police. In tho first place, in conse-quence of the statement Plu made by him to Sergeant Fornando, thedead l?ody of the deceased man was discovered. In tho second place,in consequence of the statement of the appellant ‘‘ I can point out theplace where I throw it ” (the katty), and in consequence of the acts of theappellant in going up to a certain bata bush and shaking it, the kattyP4 was discovered. It was the weapon used to kill the deceased manas the medical evidence conclusively proves. The admissibility of theformer statement of the prisoner has not been objected to. Objectionis taken to tho admission of the latter statement and tho document X2.
Mr. Kumarakulasingham for the appellant submits that, while hocannot object to the prosecution proving that in consequence of a state-ment made by the appellant ho was taken to the scene and that he thenshook a bush and the katty fell out of that bush, he strongly objects to theadmission (a) of the oral evidence regarding the statement alleged to havebeen made by tho appellant, namely, “ I can point out the place where Ithrew it ”, and (5) to tho admission of the document X2, namely, thepassage in the Information Book where that sentence has beon recorded.Ho contends that tho admission of this evidence ?s wrong and vitiatesthe conviction. Iiis submission is that the provisions of section 122 (3)of the Criminal Procedure Code in effect have repeal'd section 27 o' thoEvidence Ordinance in so far as a statement made to a police officer isconcerned. If his argument is right then («) if the master of the prisoner,not being a police officer, by some improper inducement makes theprisoner who is not in police custody to state where ho hid the 6tolenproperty, and tho property is discovered inconsequence of thatstatomont—so much o/ that statement as led to the discovery ol the stolen propertywould bo admissible under section 27 oi tho Evidence Ordinance inspite of the improper inducement, but {'■) if such statement is made to apolice officer when holding an investigation under Chapter XII of thoCriminal i-'roceduro Code, then, by reason of section 122 (3) of that Code,such statement would be totally inadmissible.
In considering the provisions of section 122 of the Criminal ProcedureCode, it is also necessary to consider tho terms of section 121. Section121 relates to tho procedure to be adopted by an officer in charge of &police station or an inquirer to whom the first information relatingto the commission of a cognizable offence is given. If tho informationis given orally, it must bo reduced to writing by tbe police officer or theinquirer or under his direction, and be read over to the informant.Every first information whether given in writing or given orally andreduced to writing “ shall be signed by the person giving it ” and a copythereof shall be entered in the Information Book. It is common ground
DIAS S.P.J.—Rex v. Jim Uti'i
r>:5«
that a firs.- information or first complaint under section 121. providedit is otherwise relevant and admissible, can be used as substantiveevidence or for any evidentiary purposes, e.g., to corroborate the evidenceof the informant, &c.
If from the information received or otherwise the police officer orthe inquirer has reason to suspect the commission of a cognizable offence,he reports the same to the Magistrate, and proceeds to hold his inquiryor investigation under Chapter XII. In order to do this, ho is empoweredto summon persons to state what they know about the matter—Soction121 (3).
Section 122 (as amended by Ordinance No. 14 of 1941, section 3), isin the following terms:—
“ 122. (1) Any police officer or inquirer making an inquiry underthis Chapter may examine orally any person supposed to be acquaintedwith the facts and circumstances of the case and shall reduce into‘writing any statement made by the person so examined, but no oathor affirmation shall be administered to any such person, nor shall thestatement be signed by such person. If such statement is not recordedin the Information Book, a true copy thereof shall as soon as may beconvenient be ent-.ved by such police officer or inquirer in theInformation Book.
Such person shah be bound to answer truly all questions relatingto such case put to him by such officer, other than questions ’whichwould have a tendency to expose him to a criminal charge or to a
penalty or forfeiture,
No statement made by any person to a police officer or aninquiror in the course of any investigation under this Chapter shall beused otherwise than to prove that a witness rnado a different statementat a different time, or to refresh the memory of the person recording it.But any criminal court may send for the statement.? recorded in » caseunder inquiry or trial in such court and may use such statements orinformation, not as evidence in the case, but to aid it in such inquiryor trial,
Neither the accused nor his agents shall be entitled to call for suchstaiemz'iUi, nor shall he or they be entitled to see-them merely because:tboy are referred to by the court; but if they* aro used by thepolice officer or inquirer who made them to refresh his memory, orif the court uses them for the purpose of contradicting such policeofficer or inquirer, the provisions of the Evidonco Ordinance, section161 or section 145, as the case may be, shall apply.
Nothing in this sub section shall be doomed to apply to any statementfalling within the provisions of section 32 (1) of tho Evidence Ordinance,or to prevent such statement being used as evidence in a charge undersection 19b of the Pend Code. ”
The precise moaning and effect of section 122 have given, rise to consider-able difficulty in the past—See B.r. Haramanisa11 {1S44) 46 iV. L. R. 532.
687
DIAS 8.P.J.—Rex v. Jinadaea
An examination of the provisions of section 122 shows that when aChapter Xll investigation is in progress a person summoned beforethe police officer makes an oral statement. The officer holding investiga-tion is enjoined “ to reduce into writing any statement made by thoperson so examined ”. Section 122 (1) provides that no oath or affir-mation is to be administered to the deponent who is not required to signthe written record. Nothing is said about reading over the writtenrecord to the deponent. Section 122 (1) further provides “ If suchstatement is not recorded in the Information Book, a true copy thoreofshall as soon as may be convenient be entered by such police officer orinquirer in the Information Book ”. This envisages a case where theinvestigation takes place at tho scene or elsewhere than at tho policestation, where the statements are notedin the officer’s note book. Section122 (2) enacts that tho person examined “ shall bo bound to answertruly all questions relating to such case put to him by such officer otherthan questions which would have a tendency to expose him to a criminalcharge or to a penalty or forfeiture Then comes section 122 (3).
The question in this case is whother evidence of the appellant’s state-ment to the Inspector, which would otherwise be admissible undersection 27 of the EvidenceOrdinance, is rendered inadmissible by section122 (3) of the Criminal Procedure Code 1 This raises the further questionas to what is meant by the phrase “ Statement made by any person to apolice officer or inquirer ” in that sub-section ? It seems quite clearfrom the context that the phrase is not to be taken literally, but must,lie understood to mean tho police officer’s or inquirer’s record of a state-ment made to biin, for the language of section 122 (3) clearly indicates*that that statement is capable of being used “ to refresh the memory sof the person recording it One cannot refresh memory from an oralstatement-, fine can only refresh memory from a document or a. recordof a statement. Furthermore, section 122 (3) contemplates ‘ ‘ state-ments recorded and that the Court £‘ may send for ” and may usethem, not as evidence in the case, but to aid it in tho inquiry or trial.Section 122 (3) also makes it plain that- neither the accused nor hisagents shall be entitled “ to call for such statements ”, and they are notentitled “ to see them merely because they are referred to by the Court
The record is the one that is made by a police officer or inquirer actingunder section 122 (1) which provides that he “ may examine orallyany person supposed to be acquainted with the facts and circumstancesof the case, and shall reduce into writing any statement made by theperson so examined ”. It appears that in a proceeding governed by theCriminal Procedure Code, this record cannot be used oxccpt in the mannerand to the extent permitted by section 122 (3). According to R. v.Haramaniaa1, it is only by the production of this record (or by secondaryevidence of its contents when secondary evidence is admissible) that astatement made by a person orally examined under section 122 (1)can be proved, and, therefore, such a statement cannot be admittedin evidence except as provided by section 122 (3). This decision isbased on the view that by reason of the requirement that the policeofficer or inquirer shall reduce the oral statement into writing, the state-ment is a matter that is “ required by law to be reduced to the form of a1 (1944) 45 N. L. R. 532.
!•——J. 5. B 1222 (9/60)
538
DIAS 8.P.J.—Bex v. Jinadaaa
document ”, and is, therefore, one to which section 91 of the EvidenceOrdinance applies. But as the judgment in Haramanisa’s ca.se1 itselfpoints out, this interpretation involves the view that the provision forthe use of the statement to refresh the memory of the person recordingit is rendered “ almost nugatory ” ; for the necessary implication of suchuse is that the person recording it may give oral evidence of the statement.• It is only when he has attempted to give oral evidence of the statementand his memory fails, that the rule regarding “ refreshing memory *’can ariso. That is not the only unsatisfactory result of Boramanisa’scase. Section 122 (2) enacts that a person examined under section122 (1) “ shall be bound to answer truly ” all questions relating to thecase (subject to certain exceptions) that are put to him by the policeofficer or inquirer. Therefore, such a person being thus bound by anexpress provision of law to state the truth, would be guilty of the offenceof giving false evidence as defined by section 188 of the Penal Codeif upon the occasion of his examination under section 122 (1) he makesany statement which is false, and which he knows or believes to be falseor does not believe to be true. Yet, if the decision in Haramanim's caseis correct, ho cannot be tried for the offence of giving false evidence,for section 122 (3) of the Criminal Procedure Code prohibits proof of thestatement in question. It is no answer to say, as was urged by learnedcounsel for the appellant, that it may be possible to deal with such a caseby prosecuting the offender on a chargo of giving false informationto a public officer punishable under section ISO of the Penal Code, for it-would be immaterial for the purposes of such a charge whether section122 (3) is part of the law or not. In short, the construction adopted inHaramamsa's case would render nugatory the provisions of section 122 (2)as well. Furthermore, upon that construction, if it is sought to contradicta witness by proof of a statement made by him on an examination undersection 122 (1), the only evidence that can be tendored in proof of thatstatement is the record of it made by police officer or inquirer. Itfollows that there would be sufficient proof of it, if the authenticity ofthe record is established, and the witness is identified as the person whosestatement the. police officer or inquirer has purported to record. Thereis no requirement of law that it is only by the evidence of the personwho has made the report that its authenticity can be proved. Noris it necessary as a matter of law that the evidcnco by which a person isidentified as a person referred to in the record must be the evidence ofthe person making the record. Therefore, according to the view, takenin Haramanina’s case, a witness can be contradicted by a statementimputed to him in a document to which he was not a party, and whichwas made by a person who need not himself give evidence, althoughthe statement so imputed to him has never been accepted by him as beingcorrect, or even read by him or to him, and which he has not signed.In other words, he can be contradicted by hearsay, even though theperson who has alleged that that person made the statement in questionmay be alive and able to attend the trial and competent to give evjdcnoe.
These consequences follow from the interpretation of section 122 (1)of the Criminal Procedure Code as requiring a statement made under* (1944) 45 S- L. li. 532.
DIAS S.P.J.—Bex v. Jinadasa
539
that provision to reduced to the form of a document. With allrespect to the learnJu and distinguished Judges who decidedHaramanisa’scase1, it seems to the m&jorfty of us that, rightly understood, section122 (1) does not have that effect, but only requires the police officer orthe inquirer to make a record of the oral statement. There is, we think,an important difference between such a requirement, and a requirementthat a statement made in the form of spoken words shall be reducod tothe form of a document. In the former case, the document which isbrought into existence is the police officer’s record of what is allegedto haVe been said by the person examined, and not a written statementby that person himself. The statement La not convertod from one thatis oral in form to one that is in the form of a document. In tho lattercase, the document which is brought into existence is not a reporter’saccount of what was said by the person examined, but a written state-ment by that person himself, either written by himself, or written byanother and adopted by him as his statement. For an illustration ofthis distinction one need travel no further than section 121 (1) andseotion 122 (1) of the Criminal Procedure Code. The former enactsthat every information relating to the commission of a cognizable offence■’ if given orally ” to the police offioer or to an inquirer “ shall be reducedto writing by him or under his direction and be read over to the informant;and every such information, ■ whether given in writing or reduced towriting as aforesaid, shall be signed by the person giving it Therecan be no question that here a statement that is oral inform “ is requiredby law ” to be reduced to a statement by him that is documentaryin form. The document which is brought into existence by the reductionof the statement into writing and it being read over to and by beingsigned by the informant, is no mere record made by another of whathe is alleged to have said, but his own written statement. On the otherhand, under section 122 (1) the statement that is reduced into writingby the police officer or inquirer is not only not signed by the personmaking it and is not even read over to him, but the law expressly pro-vides that it shall not be signed by him. In other words, tho law providesthat there shall not come into existence a written statement by theperson examined. The form of his statement is to be oral, and it is notto be converted in its form to the form of a document. There is here nomatter that “ is required by law to be reduced to the form of a document ”,unless the “ matter ” is the police officer’s or inquirer’s impressionof the oral statement made to him.
The majority of us are, therefore, of opinion that the words “ And inall oases in which any matter is required by law to be reduced to the formof a document ” in section 91 of the Evidence Ordinance do not applyto the record which has been made under section 122 (1), Furthermore,the provisions of section 122 (3) indicate that the Legislature used theword “ statement ” in that sub-section in two different senses. Theword as used in the opening- sentence of the sub-section refers to the oralutterances of the person made to the police officer or inquirer who isholding the investigation. The words “ Statements ” used in the ex-pressions “ Any criminal Court may send for the statements recorded ”," Such Court may use such statements ”, “ Neither the accused nor his1 (1944) 46 N. L. B. 632.
MODIAS S, H..T — Hex v. Jinadosa
agents shall be entitled to call lor such statements ” imply that theyrefer to the record of the oral utterances made by the police officer orinquirer under section 122 (1), and not to the oral utterances themselves.
Section 122 (3) imposes restrictions on tho use of the police officer orinquirer’s record of the oral statement made to him, but does not governthe admissibility of oral evidence of such statement. Therefore, wherethe law otherwise permits such evidence to be given a police officer orinquirer may give oral evidence of a statement made to him. For thatpurpose he may, if necessary, refresh his memory by reference to hisrecord of the statement and that record may also be used to contradicthim. But even where the law would otherwise permit the record to beused as evidenco of the statement (e.g., under section 35 of the EvidenceOrdinance), section 122 (3) prohibits such use except where the statementis one falling within the provisions of section 32 (I) of the EvidenceOrdinance or where it is sought to be used as evidence in a charge undersoction 180 of the Penal Code.
The44 information ” roferred to in section 27 of tho Evidence Ordinanceis the oral statement of the accused himself, whereas the document con-templated in section 122 (3) of the Criminal Procedure Code is not astatement by the accused but another person’s record of an oral st*f»*ncn<.which is alleged to have been made by the ac««ood. Therefore, theconclusion which tho majority of us reooh j» that there is nothing in section122 (3) which acts as a bar to the full operation of the provisions ofsection 27 of the Evidence Ordinance or the admission of an oral state-ment made by an accused person to a police officer for the purposes ofsection 27. There is nothing in section 122 (3) which prohibits oralevidenco being given of so much of the statement made by an accusedwhich is relevant under section 27 of the Evidence Ordinance as relatesdistinctly to a relevant fact thereby discovered.
My Lord the Chiof Justice takes the view that in view of the languageof section 122 (3), which enables oral evidence to be led of a statement,tho provisions of section 91 of the Evidence Ordinance are not applicable,and that, therefore, it was permissible for the prosecution to lead oralevidence of the statement made by the accused which led to the"discoveryof tho katty.
With regard to the admission of the written record of that oral state-ment X2, wo are of opinion that its admission was improper and notpermitted by section 122 (3). Whether that irregularity vitiates theconviction in this case, we shall now proceed to consider.
The oral evidence of the statement being admissible, the productionof tho written record of that statement is nothing more than a mereirregularity. It caused no prejudice to the appellant. The other factsin the case show that the appellant had a formidable case to meet. Weare, therefore, of opinion that this is a case to which the proviso in section5 (I) of tho Court, of Criminal Appeal Ordinance of 1938 may properly beapplied as no substantial miscarriage of justice has in fact occurred.
It isunnooe3siry, in view of the conclusions which the majority of ushaver©ached, to deal with the other questionsraised, namely (a) whether the
BA8NAYAKE J.—Sirvnalebbe v. Mustapha“(41
provisions of section 122 (3) ropeal the provisions of section 27 of theEvidence Ordinance, or (6) whether the maxim generalia specialibw nonderogant applies to save section 27 of the Evidence Ordinance in the eventof there being repugnancy or a conflict between the provisions of section122 (3) of the Criminal Procedure Code and 'seotion 27 of the EvidenceOrdinance. Our brother Pulle, we understand, takes the view that themaxim applies in this case and preserves section 27 of the EvidenceOrdinance. For the reasons given the majority of us are of the viewthat it is unnecessary to consider whether that maxim, applies to thiscase.
We are, therefore, unanimously of the opinion that the convictionmust be affirmed and the appeal dismissed.
Appeal dismissed.