THE ATTONEY- GENERAL ,Petitioner, and K. GEETIN SINGHO , Respondent

072-NLR-NLR-V-57-THE-ATTONEY-GENERAL-Petitioner-and-K.-GEETIN-SINGHO-Respondent.pdf

1)E SlfA'-A. J.—The Attorney-General r. Cretin Sinyho
2S0
1956Present: K. D. de Silva, J., and Sansoni, J.THE ATTORNEY-GENERAL, Petitioner, and K. GEET1NSINGHO, Respondent
S. C. -10G—Application in revision in J/. C. Xutrara I’tiya,
II ASS
Information Book—Statement of a complainant recorded therein—Iti'jht of accusedto obtain certified copy of it—“ Public document ”—'* Highl of inspection ”—Kridcncc Ordinance, ss. 74, 76, 123, 124, 126—Criminal Procedure Code,ss. 121 (I), 122—Proof of Public Documents Ordinance, ss. 2, 3.
An accused person is entitled to obtain a certified copy of a first complaintrecorded by tho Police under the provisions of section 121 (1) of tho CriminalProcedure Code. The entry in the Information Book relating to the firstcomplaint is a public document, which tho accused has a right to inspect ;subject, therefore, to any claim of privilege under sections 123, 124 and. 125of the Evidence Ordinance, the accused is entitled to obtain a certified copyof such entry under sections 74 and 76 of the Evidence Ox-dinanec.
Quaere, (i) whether tho accused is entitled to tho same right under sections2 and 3 of the Proof of Public Documents Ox-dinanco.
(ii) whether a Magistrate has jurisdiction to order tho Polico to issue acertified copy.
PPLICAT 1 ON to revise an order of tho Magistrate’s Court,Nmrara EJiya.
Douglas Jan.sze, Acting Solicitor-General, with L. B. T. Premctralne,Crown Counsel, for the petitioner.■
II. U'. Juyucardene, Q.C., with A. C'. JI. Uvais, for the accusedrespondent.
Cur. adu. vull.
February 15, 1956. de Silva, J.—
This is an application by the Attorney-General to revise an ordermade on September 16, 1955, by the Magist rat o,Nuwara Eliya.on a motionfiled on behalf of the respondent to obtain a certified copy of the 1stcomplaint or 1st information made to tho Police in this ease. A. A.Saraph, police sergeant, oflicer-in-charge, Funduluoya Polico Station,who is the complainant made a report to Court in teriu3 of Section 14S -13i/vn
■2J.N. 11 53702-1.602 (3/70)
(b) oil July 20, 1055, that the respondent did on July 17, 1955, causehurt to one Sirisena with a sharp cutting instrument, an offence pnuishablounder Section 315 of the Penal Code. On the same day the respondenton being charged with the ofTcncc pleaded not guilty and the ease wasfixed for trial on 1S.S.’55, and later trial \as refixed for 15.9.’55. On3.9.’55 tho respondent’s proctor made a written application to theAssistant Superintendent of Police, Xuwara ISliya, for a certified copyof the 1st complaint. On tho same day he also filed a motion in Courtrequesting that the -Assistant Superintendent of Police be ordered tc.issue a certified copy of the 1st complaint. On this motion tho learnedMagistrate noticed tho Assistant Superintendent of Police, ‘‘ to showany reason why the application should not be granted The mattercame up for consideration on 15.9.’55 when Mr. X. D. T. KanakaratneCrown Counsel who appeared for the Assistant Superintendent of Policeopposed the application. Tho arguments urged by tho learned CrownCounsel and the proctor who appeared for the respondent have not beenrecorded in detail. The respondent’s proctor took up the position thatthe Information Book was a public documont within tho meaning ofSection 74 of the Bvidcnco Ordinance. Tho learned Crown Counselconceded this but appears to have taken up tho position that the Informa-tion Book was not a document which the- respondent had a right toinspect and that therefore lie was not entitled to obtain a certified copyof an entry in it. The learned Magistrate in his order has referred to thisargument. He has stated that the prosecution argued that the defencehad no right to inspect the Information Book except under tho conditionsmentioned in Section 122 of tho Criminal Procedure Code. The learnedMagistrate while conceding that the defence was not entitled to obtaincertified copies of statements recorded under Section 122 (1) of the Cri-minal Procedure Code except for tho purposes set out in sub-section 3of that Section expressed tho view that a first complaint recorded by thePolice is not ono which falls within the ambit of Section 122 (1). He alsoagreed, but subject to qualification, with the admission made by bothparties that the Information Book was a public document. Thenhaving commented on the fact that the prosecution had failed to establish' under what provision of lav- a certified copj' of the 1st complaint coukl bowithheld from the defence he proceeded to make the following order :—
1 hold therefore that the defence is entitled to a certified copyor a perusal of the 1st statement or information recorded in the Infor-mation Book. I consider that the piosecution cannot be heard to saythat it can claim tho privilege with regard to the issue of a certifiedcopy of the 1st statement or its perusal by the defence. "
It is this order that the Attorney-General asks this Court to revise. Attho hearing of this application the learned Solicitor-General, raised asa preliminary objection the proposition that the learned Magistrate hadno jurisdiction to mako the order in qiicstion. Ho submitted that theMagistrate had no power to order the Assistant Superintendent of Policeto issue a certified copy of tho 1st complaint and that tho proper pro-cedure that tho Court should have followed was to summon the AssistantSuperintendent- of Police to produce the document in terms of Section
G6 (1) of (he Criminal Procedure Code. Mr. Jaiawardeno replied (Fiat(he learned Solieitor-CJcneral was not entitled to raiso this point ns itwas not taken either in tho Court below' or in the petition filed in thisCourt. I agree with tho submission made by Mr. Jayawardono. Itis clear from the proceedings that both parties invited tho Magistrateto decide whether or not tho defenco was entitled to obtain a certifiedcopy of the 1st complaint. That was on tho assumption that the 3Iagis-trate had tho power to decide that question. The petition in revisionis signed on behalf of the Attorney-General by the Mine Crown Counselwho argued tho matter beforo tho Magistrate. If (in objection to thoMagistrate’s jurisdiction to dccido tho question had been taken in theCourt below it is most likely that reference to it would have boon madein this petition. After inviting tho Magistrate to decide tho particularquestion, thereby implying that ho had tho power to decide it, the Crownis not entitled now to question his jurisdiction. Apart from that thelearned Magistate has not issued an order on tho Assistant Superintendentof Police to issue a certified copy. He merely held that tho defence wasentitled to obtain such a eop3r. I would therefore deal with this applica-tion on the basis that the Magistrate had the power to mako tho orderin question. The learned Magistrate’s observation that a 1st complaintdoes not fall within the category of statements recorded undor Section122 (1) correctl3r sets out the position and cannot bo questioned. Theprohibition set out in Section 122 (3) of the Criminal Procedure Codeagainst the use of statements recorded during the course of the investiga-tion except for the limited purposes set out in that sub-section apjdicsonly to statements recorded under Section 122 (1) ; but different consi-derations would apply to a first complaint which is recorded underthe provisions of Section 121 (1). In Rex v. Jlnada*a 1 Dias S. P. J.commented on these two sections and proceeded to state :—
“It is common ground that a 1st information or 1st complaintunder Section 121, provided it is otherwise relevant and admissible,can be used as substantive evidence or for evidentiary purposes, e.g.,to corroborate tho evidence of tho informant, &c. ”.
The Sections in the Indian Code of Criminal Procedure which correspondto our Sections 12L and 122 are ld-1 ami 102 respective^. In tho caseof Azimaddy v. Rviperor- Rankin J. considered Sections lo t and 1C52and observed :—
,f The 1st information report against the accused is elearty not astatement within the contemplation of Section 1G2 because it is notmade in the course of an investigation. ”
It is therefore clear that a statement under Section 121 (1) cannot boshut out under the provisions of Section 122 (3) as it appears to havebeen contended by the Crown Counsel before the Magistrate. However,I am notin agreement with the further observation of the learned Magis-trate that the prosecution is not entitled to set up a claim of privilegein regard to the issue of a certified cop3r of the 1st statement or its perusal
1 SI X. L. B. .029.
* (1027) .1. r. rt. (Calcutta) 17.
by the defence. In my view in the. matter .of issuing certified copies theprovisions of Section 123, 124 and 125 of the Evidence Ordinance cannothe ignored but must be given effect to.
Mr. Jayawardenc who appeared for the respondent contended that theentry in the Information Hook relating to the 1st complaint is a publicdocument and that the defence, is entitled to obtain a certified copy ofsuch entry under Sections 74 and 70 of the Evidence Ordinance as wellas under Sections 2 .and 3 of the Proof of Public llocumcnts Ordinance(Cap. 12).
Section 121 (1) of the Criminal Procedure Code provides, inter alia,that every information relating to the commission of a cognizable offenceif given orally to the bfficcr-in-chargc of a Police Station or to an inquirer.shall be reduced to writing by him or under his direction and every suchinformation, whether given in writing or reduced to writing as aforesaidshall be entered in the Information Book ” prescribed for the purpose.Mr. Jayawardene argues that this entry in the Information Book is apublic document within the meaning of Section 14 of the EvidenceOrdinance which reads thus—
The following documents are public documents :—
documents forming the acts, or records of acts— •
of the Sovereign authority ;
of official bodies and tribunals : and
of public officers, legislative, judicial and executive,
•whether of the Island or of any other part of His Majesty’s
dominions, or of a foreign country ;
public records, kept in the Island, of private documents :
(r) plans, surveys, or maps purporting to be signed by the Surveyor-
General or officer acting on his behalf. ”
The submission made by Mr. Jayawardene is that an entiy in the Infor-mation Book made in terms of Section 121 (1) of the Criminal ProcedureCode is an act or the record of an act of the public officer and falls withinSection 74 (a) (iii). The learned Solicitor-General strongly opposes thisview. Section 7G of the Evidence Ordinance reads as follows :—
“ Every public officer having the custody of a public document,which any person lias a right to inspect, shall give that person ondemand a copy of it on payment of the legal fees therefor, togetherwith a certificate written at the foot of such ,copy that it is a truecopy ofisuch document or part thereof, as the case may be, and suchcertificate shall be dated and subscribed by such officer with his nameand his official title, and shall be scaled, whenever such officer isauthorised by law to make use of a seal, and such copies so certifiedshall be called certified copies.
This Section makes it clear that a person is not entitled to obtain as amatter of right a certified copy of every public document. He is entitledthereunder to obtain' certified copies of only those public documentswhich .he has a right to inspect. The two questions which come upfor consideration therefore are :—
Is the entry recorded in the Information Book under Section
121 (1) of the Criminal Procedure Code a public document 1
If so, is the party against whom such information is given entitled
to inspect such, entry ?•
According to the Solicitor-General the answer to the 1st questionmust be in the negative and the 2nd question would not therefore arise.He relied on certain English and Indian authorities in support of hiscontention. One of these is Sturla v. Freccia1 decided by the Houseof Lords. In that case Lord Blackburn stated :—
“ I understand a public document there to mean a document that ismade for the purpose of the public making use of it, and being ableto refer to it. It is meant to be where there is a judicial, or quasi-judicial, duty to inquire, as might be said to be the case with the bishopacting under the writs issued by the Crown. That may be said to bequasi-judicial. He is acting for the public when that is done; but Ithink the very object of it must be that it should be made for thepurpose of being kept public, so that the persons concerned in it mayhave access to it afterwards. ”
The document which came up for consideration in that ease was a reportof a committee apjjointed by a public department in the State of Genoaand acted upon by that State. This view was followed by the PrivyCouncil in Ioannou v. Demetriou In Heyne v. Fischel 3, Piekford J.held that dociivncnts kept by the Post Office showing the times of thereceipt and delivery of telegrams were not admissible in evidence aspublic records for the reasons that they are kept only for a short time,are not accessible to the piiblic arc not the result of a public inquiry anddo not deal with a general public right but are merely kept for the purposeof regulating the pay and the work of Post Office servants. In Pettit v.Lilley 4 it was held that regimental records were not public documentsbecause the public had no access to them and were not kept for the useand information of the public. On the analogy of these cases the learnedSolicitor-General argued that the Information Book is not a public docu-ment. I am unable to agree with that view. These English cases arenot of much assistance in deciding the question as to whether or not thisparticular document is a public document according to the law of thiscountry. In England there is no statutory law wlrich defines or classifies,£ public documents ”. . In this country it is otherwise. Section 74 ofthe Evidence Ordinance sets out exhaustively the documents which fallwithin the category of public documents. Section 75 states that all
1 (18S0) 5 Appeal Cases 623.3 30 T. L. R. 190.-'
* {1952) 1 A. E. R. 179.* {1946) 1 A. E. R. S33.
DE SILVA, J.-—The. Attorney-General e. Gectin Sinyho
294
other documents are private. The category of documents included iiiSection 74 is'much wider than the class of documents treated as publicdocuments in England. According to Section 74 (a) (3) documentsforming the acts or. records of acts’of public officers, among others arepublic documents. But that does not mean that a person is entitledto obtain certified copies of all such documents. Before he can insiston obtaining a certified copy he must establish a right to inspect it.It is so provided by Section 7G. There is no provision in the Evidence■Ordinance or any other law which defines the right of inspection. Thereare of course Ordinances which expressly confer a right on certain personsto obtain certified copies of particular documents. Two such Ordinancesare the Registration of Births and Deaths Ordinance and the CompaniesOrdinance. But there is no such provision in our Criminal ProcedureCode in regard to entries in the Information Book. In the matter ofright of inspection the English law, however, is of considerable assistance.The right of inspection and obtaining certified copies was considered in31 utter v. Eastern and 31 idlands Railway Company !. In that case Lirullcv(j. made the following observations :—
“ When the right to inspect and take a copy is expressly conferredby a statute the limit of the right depends on the true constructionof the statute. When the right to inspect and take a copy is notexpressly conferred the extent of such right depends on the interestwhich the applicant has in what he wants to copy and what is reasonablynecessary for his protection of such interest. The common law rightto inspect and take copies of such public documents is limited bythis principle. ”
There is no provision in the Criminal Procedure Code which confers aright on the defence to obtain a certified copy of the 1st information.Nor is there any provision in it which states that the defence is not entitledto use such information, although, in Section 122 (3) there is a specificprohibition against the use by the defence of statements recorded underSection 122 (1) except in the circumstances set out therein. The presenceof such a prohibition in respect of statements recorded under Section122 (1) and the absence of it in respect of 1st informations support theview that the use of 1st informations by tire defence is legally permissible.
Has the accused person an interest in the first information given tothe Police in regard to the commission of a cognizable offence ? Therecan be only one answer to that question and it must be in the affirmative.The first information is vitally necessary for the preparation of thedefence. It would show the development of the prosecution case fromstep to step and additions to and deviations from the original story,if any, would stand revealed. When the prosecution is entitled to availitself of the first information untrammelled by the restrictions whichstatements recorded under Section 122 (1) are subject to it stands toreason that the defence too should have the same right subject, of course,to any claim of privilege. .Therefore adopting the prirtciple laid down
1 (JSSS) 33 Chancery Division 02.
by Linclley L.J. in the case referred to earlier tiie defence is entitledto inspect and obtain a copy of the 1st information if it is a public docu-ment and is unprotected by special privilege. It was so held by a FullBench of the Madras High Court in Queen Empress r. Ar it mug am 1 inrespect of reports made under Sections 157, 16S and 173 of the IndianCode of Criminal Procedure which are analogous to our Sections 121
, 125 and 131 respectively. This is a case relied on by the Solicitor-General and I would have occasion to refer to it at a later stage.
Now I M ould proceed to consider the question uhether an entry in anInformation Book relating to the first information is a public document.This entry was made by a Police Officer who is undoubtedly a publicofficer. He did so in pursuance of the provisions of Section 121 (1) ofthe Criminal Procedure Code -which requires such information to berecorded in the Information Book. Mr. Javawardene contends thatsuch an entry when made is a document forming the act or the recordof an act of a public officer. The Solicitor-General maintains that itis neither. According to him an act in the context of Section 74 of theEvidence Ordinance means a completed act. In support of that viewhe relies on Queen Empress v. Arumugam referred to earlier. In thatcase the question whether reports made under Sections 157 and 16S ofthe Indian Criminal Procedure Code -which correspond to Sections 121(2) and 125 of our Code Mere public documents came up for considei'ation.That question Mas submitted by a Bench of two Judges consisting ofSubramania- Ayyar J. and Davies J. for consideration by a Full Benchconsisting of four Judges. The reference Mas made in view of the decisionin Empress v. Vcnkataratnam Panlulu 2 to the effect- that the defenceM-as not entitled to obtain certified copies of the reports in question atthe beginning of the trial. In referring the matter for consideration bythe Full Bench Subramania Ayyar J. and Davies J. took the definitevieM- that those reports M-ere public documents. The Full Bench how-ever—Subramania Ayyar J. dissenting—took the contrary vieiv. Theyheld that these reports M-ere not public documents. In regard to thereport under Section 157 Collins C.J. stated that it contained only thereasons that the officer-in-charge of the Police Station has for suspectingthe commission of an offence uhile the report under Section 15S containedonly the result of an investigation. Neither of these reports accordingto the learned Chief Justice could be regarded as the act or the record ofan act of a public officer. Shephard J. u hile agreeing -with Collins C.J.took the vieu- that the “ acts ” referred to in Section 74 of the EvidenceOrdinance Mere “ final completed acts ” as distinguished from acts ofa preparatory or tentative character. Subramania Ayyar J. howeveradhered to his original opinion and stated :—
'“ lastly, the documents in question fall within the language of
Section 74 of the Evidence Act seems to my mind to admit of nodoubt. ”-'
He also stated that- these reports are records of a public servant's actswithin the meaning of Section-74. It must be observed that this case
1 /. L. R. 20 Madras ISO. -.* I. L. R. .10 Madras 11.
296- DE SILVA. J.—The Attorney-General v. Gcetin Singho
did not deal with .the question as to whether or not a first information isa public document. The learned Solicitor-General however relied onthis case in support of his argument that the word “ acts " appearingin Section 74 of the Evidence Ordinance contemplates “ completedacts ”, As I observed earlier all the learned .Judges who decided thatcase took the view that if the reports in question were public documentsthe defence was beyond any doubt entitled to obtain certified copies ofthe same. If I may say so, with respect, the reasons given by the learnedJudges for holding that the word “acts” mean ‘'completed acts ” arenot very convincing. A contrary view appears to have been taken byTapp J. in Nau-ab Bibl v. Slier Zaman 1. In that case certain statementsmade to the Police were sought to be admitted on the ground that theywere public documents. In holding that these documents were inadmis-sible the learned Judge said :—
“ I may however briefly note that I am inclined to tho opinion thatthey would be inadmissible as they arc not public documents withinthe meaning of clause (iii) sub-section (i) of Section 74 of tho EvidenceAct as reports of the nature in question are not covered by Sections154 and 1:35 of the Criminal Procedure Codo
Tho implication of this observation is that statements recorded under154 and 155 fall within Section 74 of tho Evidence Act which is identicalwith Section 74 of our E^ idcnce Ordinance.
A Bench of three Judges of the Madras High Court held in Kara SinhaRama Rao r. Vcnkalaramyya – that a profit and loss statement anda statement showing the net income filed by an asscssee on a directionissued by an Income-tax officer in terms of Section 22 of the Income-tax Act was a public document within the meaning of Section 74 of theEvidence Act and tho asscssee was entitled to obtain certified copies oftire same. In that case Leach C.J. stated :—
” I consider that the record of an income-tax case must be regardedas the record of the acts of the Income-tax officer in making his assess-ment and therefore that any document properly on the record is justas much a public document as the final order of assessment. ”
This decision docs not support tire view expressed by Shephard J. inQueen Empress v. Arumurjam that the word ” acts ” in Section 74 of theEvidence Act contemplates “ final completed acts ”. In this case it wasalso held that a statement recorded by an Income-tax officer in the courseof his examination of the assessee was a public document. That beingso it is difficult to deny the same character to a first information recordedunder Section 121 (1) of the Criminal Procedure Code. Chitalcy andAnnaji Rao in their commentary on the Indian Code of CriminalProcedure (3rd Ed. page S45) state that, a statement recorded underSection 15-1 which is equivalent- to Section 121 (1) of our Code is a publicdocument and at pago S47 they proceed to say :—
"The accused is entitled to have a copy of the information butho can havo it only under an order of a Court of Competent Jurisdictionor of an officer superior to an offieer-in-eharge of a police station. ”
» 1930 .-!. I. R. (Lahore) 1007.- 1940 A. 1. R- {Madras) 70S.
The authority for their view that the first information rocordcd underSection 154 is a public document is the case of Abdul Raliam v. Empresswhich is a decision of the High Court of Upper Burma. The report inthat caso, however, is not available to us.
In Chiiltir v. Situjh Sulaiman J. took the view that a first informationreport taken down by a Police officer amounts to an entry in an officialrecord made by a public servant in tho discharge of his official duty.
That the entry made in the information book of a first complainant,in terms of Section 121 (1) of the Criminal Procedure Co do, is the recordof an act of a public officer admits of no serious doubt. Such an entrytherefore is a public document within the moaning of Section 74 of theEvidence Ordinaneo. It is tho Common Law right of the person againstwhom a complaint is made to inspect the record of that complaint, butit is limited to the extent that the Government is entitled to refuse toshow the document on tho ground of State Policy, privileged communi-cation, and the like. That is to say the accused person is entitled toinspection subject to the provisions of Sections 123, 124 and 125 of theEvidence Ordinance. In this case those Sections would not apply asthe learned Solicitor-General said that he is prepared to show the recordof tho first complaint if the person who made it i-s called as a witness.The Solicitor-General took up that position because tho 1st complaintis admissible in evidence only if the person who made it is called as awitness. There is a flaw in that argument; admissibility of a documentis one thing and the right to obtain a certified copy of it is quite another.If a party to a case is entitled to receive a certified copy of tho 1st com-plaint he may make use of it in more than one way. If the documentis a public document and tho person who applies for the certified copyestablishes his right to inspect it ho is entitled to obtain such copy atany time subject to the right of the Crown to claim privilege underSections 123, 124 and 125 of the Evidence Ordinance. Tho Respondent’sapplication for a certified copy of the first complaint though made beforethe trial, should therefore have been granted.
In view of my decision that the Respondent is entitled to obtain acertified copy of the first complaint in terms of Sections 74 and 70 of theEvidence Ordinance it does not become necessary to consider Mr. Jaya-wardene’s other contention that his client is also entitled to the sameright under the provisions of the Proof of Public Documents Ordinance.
Accordingly I dismiss tho application of tho Attorney-General.
Saxson'I, J.—I agree.
Application dismissed.