THE KING v. KARALY MUTTIAH et al

037-NLR-NLR-V-41-THE-KING-v.-KARALY-MUTTIAH-et-al.pdf


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MOSELEY J.—The King v. Karaly JVTuttiah.
1M0Present : Moseley J.
THE KING v. KARALY MUTTIAH et al.
1—M. C. Mallakam, 19,107.
[1st Midland Circuit.]
Confession to Magistrate—Statement made before preliminary inquiry)—Admissibility conferred by adoption in statutory statement—Confes-sion to Superintendent of Prison—Criminal Procedure Code, as. 134,155, and 160 (Cap. 16).
A confession recorded by a Magistrate under section 134 of the CriminalProcedure Code is not. inadmissible in evidence merely because it isrecorded after the accused had been taken into custody.
The inquiry referred to in section 134 is the preliminary inquiryprovided by section 155 of the Criminal Procedure Code.
Where a confession made by an accused person was not read over tohim in order that he might adopt it but was read to Counsel whoappeared for him and was in fact adopted by! the accused, and, where theaccused, when addressed subsequently under section 160 of the CriminalProcedure Code said: “ I abide by the voluntary statement I have alreadymade to the Magistrate ”.
Held, that the voluntary statement became incorporated in thestatutory statement and was admissible in evidence.
King v. Mudianse (21 N. L. R. 48) followed.
A confession made to the superintendent of a prison is not inadmissiblein evidence so long as it does not offend against the provisions of section24 of the Evidence Ordinance.
rj"l HIS was a case tried before the 1st Midland Circuit at Kandy.
S. N. Rajaratnam, for the first accused.
A. D. J. Gunewardene, for the second accused.
W. Obeyesekere, for the third accused.
F. C. Loos, C.C., for the Crown.
January 8, 1940. Moseley J.—
After the jury had been empanelled, Mr. Rajaratnam, Counsel for thefirst accused, asked that they should be allowed to retire as he wished tomake submissions relating to the admissibility of certain evidence whichappear in the record of the case.
His first objection was to the admissibility of confessions said to haveOeen made by the second and third accused to the Police Magistrate ofMallakam on December 18 and 20, respectively. These confessionspurport to have been made under section 134 of the Criminal ProcedureCode, sub-section (1) of which provides that “ any Magistrate may recordany statement made to him at any time before the commencement of an
MOSELEY 3.—The King v. Karaly Uuttiah.
173
inquiry or trial Counsel’s contention was that the inquiry hadactually commenced on November 16, and that at the time when thesecond accused made his confession to the Police Magistrate he hadalready been in custody for some twenty-four hours, and he relied uponthe wording of the sub-section which provides that the statement may berecorded before the commencement of the inquiry or trial.
Crown Counsel contended that the inquiry contemplated by section 134was the preliminary inquiry for which section 155 of the CriminalProcedure Code makes provision.
With that view I am inclined to agree. On this point, however, I wasreferred to the case of King v. Mudianse In that case the statementof an accused person was improperly taken on oath and it was held forthat reason to be inadmissible against the accused at his trial, but theaccused who had made that statement, when subsequently addressedunder section 155 (the present section 160) of the Criminal Procedure Code,adopted the statement which he had previously made in irregular circums-tances. In that case the statement was read out to him and was attachedto the statement made under section 155. Shaw J. in that case expressedthe opinion that the previous statement had become incorporated withthe statutory statement under section 155 and was, therefore, notmerely admissible, but must be' put in at the trial under the provisionsof section 233 of the Code.
Now, in the present case the confessions made by the second and thirdaccused were not read over to them in order that they might adopt them,but they were in fact read to Counsel who appeared for all the threeaccused at his request, and were in fact adopted by each of the secondand third accused. The second accused when addressed in accordancewith section 155 said : “ Not guilty. I abide by the voluntary statementI have already made to the Magistrate ”, and the third accused replied inlike terms.
It seems to me, therefore, that even if the contention of the CrownCounsel be not accepted, namely, that the inquiry referred to in section 134is the preliminary inquiry provided by section 155, that I am entitled tofollow the decision in King v. Mudianse (supra) and hold that thealleged confessions by the statutory statements of the second and thirdaccused are incorporated therein. I would also refer to King v.Mudianselagey Ranhamy et al. * in which Abrahams C. J. held that aconfession was inadmissible on the ground, inter alia, that the Magistratehad not probed sufficiently into the motives of the accused for making theconfession. I was invited to follow the decision of Sir Sydney Abrahamsfor similar reasons, but on a perusal of the record made by the Magistrateof the manner in which these confessions came to be made I am satisfiedthat all that should have been done in that direction was in fact done.
Counsel further objected to the admissibility of the confession made bythe first accused to the Superintendent of Prison. The Superintendent,he said, was not authorized to record such confessions and the propercourse should have been to inform the Magistrate who would then haveproceeded in the way laid down. It may be that the Superintendent isnot expressly authorized by the legislature to act in this way, but I know1 31 N. L. R. 4S.a 2 C. L. J. 101.
16*
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MOSKLKY J.—The King v. Karaly Muttiah.
of no provision of law which prohibits him from so doing any more thanany member of the public would be precluded from acting in such a wayif requested by an accused person to do so.
The confession in my view is admissible so long as it does not offendagainst the provisions of section 24 of the Evidence Ordinance. It isquite clear from the depositions by the Superintendent of Prisons and bythe Jailor who made known to the Superintendent the desire of the accusedto make a confession, that no inducement, threat or promise was made tothe accused which might have provided a motive for the confession.
Another ground of objection was that the confession was made in Tamilto the Superintendent who claims to have a knowledge of that language.It was, however, recorded in English and was read over by the Superin-tendent to the accused in Tamil. It does not seem to me that thatprocedure offends in any way against any provision in law. It may beopen to Counsel to submit to the jury that mistakes may have been madein translating the confession from Tamil into English, and that furthermistakes may have been made by the translation back into Tamil for thebenefit of the accused. That is a submission which Counsel is clearlyentitled to make, and it may be that such a confession recorded in suchcircumstances will be treated somewhat carefully, but as I have alreadysaid I can see no reason for holding a confession made in suchcircumstances to be inadmissible.
Objection was then taken by Counsel for the first accused to certainevidence which was given in the lower Court by Mr. Storer, who wasProctor for the first accused in another case. It may well be that thatevidence if given in this Court will offend the provisions of section 126 ofthe Evidence Ordinance. Crown Counsel, however, has undertaken tolead only such evidence as refers to the payment of a certain sum ofmoney or sums of money by the first accused to Mr. Storer and thatevidence in my view is unobjectionable.
Counsel for the second accused supported the objections of Mr. Raja-ratnam, and in particular urged that in the case of the first accused'sconfession there should be definite proof that no inducement had beenoffered to him. There is, in my opinion, definite evidence that no induce-ment was offered to the first accused.
Mr. Obeyesekere, Counsel for the third accused, also associated himselfwith the submissions of Mr. Rajaratnam and of Mr. Gunawardene, anddrew my attention to the fact that the 3rd accused, for the purpose ofmaking his confession, was taken to the Magistrate’s bungalow by apolice officer, and that a constable was actually present in the room at thetime. the confession was made. He cited a case (King v. Bilinda ‘)in which Jayawardena J. referred to a provision in the IndianCriminal Procedure Code, similar to section 134 in the Ceylon CriminalProcedure Code, and he referred particularly to certain instructionsissued under the Indian Act to the effect that no police officershould be present when such a confession was made by an accusedperson. He thought that such a rule might with advantage beadopted in this country. Such a rule has in fact not been adopted in thiscountry, and in that particular case the confession was held to be
» 27 V. H. 391.
Browne v. Davis.
175
inadmissible on the ground that the presence of the constable in closeproximity to the accused person might have had some influence upon theaccused person while he was in the act of making his confession. In thecase before me the police constable who was present at the time at whichthe confession was made was the motor driver, and it is not easy to imaginethat the presence of such a person would influence an accused person inone way or another. However desirable it may be that an accusedperson should be protected from any police influence at the momentwhen he is making a confession, it does not seem to me that in this caseany provision of the law was infringed or any harm done.
There was further objection to the evidence of two witnesses,Subramaniampillai and one Nannithamby, who in the lower Court hadgiven evidence in regard to certain statements made to them by thedeceased. Crown Counsel gave his assurance that he would not lead thisevidence and Counsel’s objection was withdrawn.
Objection overruled.