The King v. de Silva.
Present: Nihill J.
THE KING v. DE SILVA et al.
67—M. C. Kalutara, 44,756
Criminal Procedure Code, s. 122 (3)—Statement made to a Police Officer in thecourse of an investigation into offence—Use of statement for corroborationof evidence—Right of accused to elicit in evidence statement made tosupport defence—Evidence Ordinance, s. 157.
Section 122 (3) of the Criminal Procedure Code applies to statementsmade by all persons whether they are or whether they subsequentlybecome accused persons or not
The written record of a statement made to a Police officer in the;course of an investigation into an offence cannot be used to corroboratea statement for the defence
A Police officer may, however, be asked by the defence whether theaccused made a statement to him, which indicated the line of defencetaken up by the accused at the trial and the Police officer may use thedocument to refresh his memory for the purpose of answerine thequestion.
The prohibition in sub-section (3) is directed against the use of thestatement as a document.
NIHILL J.—The King v. de Silva.
ASE heard by a Judge and jury before the 3rd Western Circuitheld at Kalutara.
R. L. Pereira, K.C. (with V. F. Gunaratne), for first and second accused.
U. A. Jayasundera (with him H. A. Chandrasena), for third and fourthaccused. '
G. E. Chitty, C.C., for the Crown.
August 19, 1940. Nihill J.—
Mr. Chitty has objected to Mr. R. L. Pereira putting questions toSergeant Kannangara on the statement made to him by the first accusedon his arrest on the grounds that this would amount to a violation ofsection 122 (3) of the Criminal Procedure Code. Mr. R. L. Pereiracontended that the section does not apply to art accused person and thatas he intends to call the first accused to speak to what he told the PoliceSergeant he is entitled to obtain corroboration under section 157 of theEvidence Ordinance.
With regard to Mr. Pereira’s first point I hold that the section hasgeneral application to statements made by all persons whether they areor whether they subsequently became accused persons or not. I basemy finding on the recent Privy Council decision in Swami v. KingEmperor1 wherein it was clearly held by Their Lordships that section162 (1) of the Indian Criminal Procedure Code (which corresponds inprinciple with our section 122 (3) ) had such general application. Fromthe judgment of Lord Atkin it would appear that during the course of theargument it was contended that to give the section general applicationwould be to repeal section 27 of the Indian Evidence Act (see section 27of our Ordinance) for a statement giving rise to a discovery could notthen be proved. Mr. Pereira’s argument raises a similar dilemma in thecase of section 157 of the . Evidence Ordinance. Mr. Chitty’s answerto that is that, whilst section 157 makes the statement relevant, section122 (3) of the Criminal Procedure Code renders it inadmissible. Lord.Atkin in the course of his judgment pointed out that section 27 of theIndian Evidence Act and section 162 (1) of the Indian Criminal ProcedureCode could stand together but did not decide whether if a discovery offact was made in a statement taken under section 162 (1) of the IndianCode whether the statement would still remain inadmissible. On thefacts in the Swami case it was not necessary for their Lordships to do so,
– nor was it necessary for them to consider the relationship betweensection 162 (1) of the Indian Criminal Procedure Code and section 157of the Indian Evidence Act. It will be seen therefore that beyond .assisting me in forming my view as to the scope of section 122 (3) thecase does not carry in the present instance.
Mr. Chitty contended that if section 157 over-rules the plain meaningexpressed in section 122 (3) of the Code then it should be open to the
1 (1939) 1 A. E. R. 396
NIHLLL J.—The King v. de Silva.
prosecution to corroborate its witnesses as well. There is Ceylonauthority to the effect that this cannot be done. (Hamid, v. Karthan ’and the King v. Soysa'.)
It might be argued that what is sauce for the goose must be sauce forthe gander as well but I am not certain that a different attitude would beunwarranted when it is the interests of an accused person that is at stake.It has however been hel4 in India that section 157 of the Indian EvidenceAct must be taken to be controlled by the special provisions of section 162(see Sohoni (13th edition), page 326, paragraph 10) ‘As a general rulewritten records of statements previously made by a witness to a Policeofficer in the course of an investigation cannot be used as evidence; (2)such written records of the statement cannot be used (a) to corroboratethe statement of a witness for the prosecution or (t>) to corroborate astatement for the defence ’.
On the view that I have come to with regard to the scope of. section122 (3) I feel bound to hold that neither the prosecution nor the defencecan make use of the statement except as provided for in the sub-section.There still remains however the question as to how far it is my duty toapply the words ‘ shall not be used otherwise ’ to the circumstances ofthis trial. In my view taking section 122 as a whole the statement is astatement reduced to writing and the prohibition in sub-section (3)as I see it is directed against the use of the statement as a document.
In the present trial Mr. Pereira I understand intends to call the firstaccused to testify inter alia that he raised the plea of self defence at theearliest opportunity. It seems to me that the position of the accusedmay be gravely prejudiced if the jury are not allowed to hear from thelips of the Police Sergeant that that was so because a suspicion mightremain in their minds that he was not speaking the truth, particularlyin view of the fact that the accused made no mention of such a defencein their statutory statements to the Magistrate. I therefore proposeto allow Mr. Pereira on his undertaking to call the first accused to putthe following questions and these only : —
Did the first accused make a statement to you at the time he
surrendered to you?
Did he in the course of that statement tell you that he was attacked
by the deceased?
The witness in his answer can make no use of the document except torefresh his memory if necessary. Mr. Jayasundera has also raised thepoint that the statement of the first accused is admissible on behalf ofhis clients under section 32 pf the Evidence Ordinance because it is astatement with regard to a relevant fact by a person who for Mr. Jaya-sundera’s purpose has become incapable of giving evidence. In view ofmy ruling as to the questions I am prepared to allow Mr. Pereira to putI hope it may not be necessary for me to rule on this point. If it is I shallhave to hear further legal argument. 1
1 i c. tr. Jt. 363.
2 26 K. L. R. 324.
THE KING v. DE SILVA et al