The King v. Sepala et al.
Present : Abrahams C.J., Poyser and Koch JJ.
THE KING v. SEPALA et al.
62—P. C. Panwila, 3,659.
Police officer—Police Magistrate purporting to act as Superintendent of Police—No legal authority—Confession to Magistrate—Admissibility—EvidenceOrdinance, s. 25.
A Police Magistrate who purported to perform the duties of a Policeofficer without legal authority is not a Police officer within the meaningof section 25 of the Evidence Ordinance.
HIS was a case stated by Maartensz J. under section 355 of theCriminal Procedure Code.
The accused in this case were convicted at the Midland Assizes beforeMaartensz J. of—(1) committing housebreaking by night under section443 of the Penal Code, (2) committing robbery under section 380 of the
ABRAHAMS C.J.—The King v. Sepala et al.
Penal Code, (3) voluntarily causing hurt under section 382 of the PenalCode. The case for the prosecution was that the fourth and fifth accusedwere two of a gang of robbers who forcibly entered the house of oneSinniah about 7 or 7.30 p.m. on the night of December 26, 1935, androbbed him of jewellery, money, and clothes and caused hurt in thecourse of the robbery. The first, third, fourthj and fifth accused wereconvicted and the others acquitted.
The evidence of identification except that of the first accused wasunreliable, and Maartensz J. had no doubt that the jury convicted thefourth and fifth accused on the evidence of statements in the nature ofconfessions made by the fourth and fifth accused to Mr. S. C. Fernando,who was, when the statements were made to him, acting as Police Magis-trate. Mr. Fernando in the course of his evidence given on January 11,1937, as to the circumstances in which the statements were made to himstated that he was at the time in question an Additional Assistant Superin-tendent of Police. It was accordingly contended that, in view of theprovisions of section 25 of the Evidence Ordinance, the statements werenot admissible in evidence. The determination of the question of theadmissibility of the statements was adjourned when Crown Counsel ledevidence, which established that Mr. Fernando had not been appointedPolice officer.
Maartensz J. held that the statements were admissible as Mr. Fernandowas not a Police officer.
A. S. Ponnambalam, for the fourth and fifth accused, appellants.—Theeight accused were charged with various offences. Statements in thenature of a confession were admitted in the course of the trial and thelearned Judge has referred it to a Bench of three Judges.
Mr. Fernando though he was not appointed as an Additional AssistantSuperintendent of Police, functioned as such. It was made clear thathe was not in point of law an Assistant Superintendent of Police. Theterm Police officer should not be read in a technical sense, but in a popularand comprehensive sense (Ameer Ali on Evidence (5th ed.) p. 274).
[Abrahams C.J .—What do you mean by a “ comprehensive sense ” ?]
Ameer Ali quotes from Reg. v. Hurribole Chunder1.
[Abrahams C.J.-—In that case he was a Police officer. He was amember of the Force though he was defectively appointed.]
With regard to the technical defect in his appointment see The Inspectorof Police v. Lebbe2.
The spirit of the law requires that the term “ Police officer ” should beconstrued in a general sense.
Counsel cited Wijetunge v. Podi Sinno *.
N. Nadarajah, C.C., for the Crown, was not called upon.
Cur. adv. vult.
February 11, 1937. Abrahams C.J.—
This is a reference by Maartensz J. on a point of law argued before himat the Kandy Assizes.
1 1 Gal. Law Rep. 215.
3 Browne 57 –
’(1923) 25 N. L. R. 281.
ABRAHAMS CJ.—The King v. Sepala et al.
The two accused in the case were tried with four others on an indictmentcharging them with housebreaking, robbery and voluntarily causinghurt to two persons during the course of the burglary. These accusedwere convicted, mainly, in the opinion of the learned Judge, on twoconfessional statements made by them to Mr. Fernando, Acting PoliceMagistrate at Matale. These statements purported to have been madevoluntarily, but it was elicited from Mr. Fernando that he had beenexercising police powers and actually regarded himself as an AdditionalSuperintendent of Police though it transpired on a detailed investigationof his functions that he had not been officially appointed to that or anyother office in the Police Force, nor did his post of Office Assistant to theAssistant Government Agent carry with it an appointment to any officein the Police Force or lawfully import the exercise of Police powers. Itwas contended, howeverj for the accused, that Mr. Fernando was a Policeofficer within the meaning of section 25 of*the Evidence Ordinance sincehe continuously exercised the powers of a Police officer, signed documentsas Additional Superintendent of Police, bona fide believed himself to holdthat office and was believed by others, official and unofficial, to be a Policeofficer. It was accordingly submitted that by the operation of section 25aforesaid these statements were inadmissible.. Maartensz J. held thatthe statements were admissible as Mr. Fernando was not a Police officerwithin the meaning of the above section. As the point was a novel onehe agreed to refer it and made the following order of reference in respectof which we jure now called upon to adjudicate : —
“ I accordingly under the provisions of section 355 of the CriminalProcedure Code reserve and refer for the decision of a Court of threeJudges the question of law which arose at the trial. The question is as•follows. I quote from my order : —
“ The question I have to decide is whether a confession made to aperson who is not a Police officer is inadmissible against the personmaking it because the person to whom it was made performs from timeto time the duties of a Police officer ”.
Counsel for the accused has cited to us the case of the King v. HurriboleChunder in which Garth C.J. held that the term “ Police Officer ” usedin section 25 of the Indian Evidence Act, to which section 25 of the CeylonEvidence Ordinance corresponds verbatim, was not to be interpreted inthe technical sense, but in a popular and comprehensive sense. “ Tech-nical sense ” presumably would confine the term to a member of theregularly constituted Police Force. Subsequent decisions of the IndianCourts explain what popular and comprehensive sense means by extendingthe scope of the section to cover persons who though not members of thePolice Force are authorized by law to exercise certain powers vested inmembers of the Police Force. There is no definition of “Police Officer”in the Evidence Ordinance itself, and on the strength of the Indiandecisions (no Ceylon cases on the interpretation of section 25 were citedto us) the term can be fairly held to include persons who fall into the twocategories above mentioned.
1 1 Cal. Law Rep. 215.
ABRAHAMS CJ.—Ameen v. Rasheed.
It is now sought to include within the term a person who has purportedto perform the duties of a member of the Ceylon Police Force withoutany legal authority. I can see no warrant whatever for placing such aconstruction upon the term. Counsel for the accused has urged thatMr. Fernando was to all intents and purposes a Police officer, that he onlylacked the actual appointment, and was de facto if not de jure a Policeofficer. These are mere words and carry the matter no further. Thefact that a person bona fide believes himself to possess the authority toperform certain official acts does not create that authority, not even ifothers believe that he has that authority.
In my opinion Maartensz J. was right. Mr. Fernando was not a Policeofficer within the meaning of section 25 of the Evidence Ordinance.
I would therefore dismiss the appeal.
Poyser J.—I agree.
Koch J.—I agree.
THE KING v. SEPALA et al