037-NLR-NLR-V-43-THE-KING-v.-WEERASAMY-et-al.pdf
152SOERTSZ J.—The King v. Weerasamy.
1941. Present : Soertsz J.
THE KING v. WEERASAMY el al.
56—M. C. Gampola, 2,172.
Statement recorded under section 134 of the Criminal Procedure Code—
Commencement of inquiry—Reading over of charge to accused—Right of
inquiring Magistrate to record statement—Scope of Criminal Procedure
Code, s. 302—Evidence Ordinance, s. 24.
For purposes of section 134 of the Criminal Procedure Code an inquirydoes not commence until the charge is read over to the accused.
In a case where all the accused do not appear before the Magistratesimultaneously it is open to the Magistrate to await the appearance ofall the accused, not indefinitely but within reasonable limits, beforeframing charges and in the meantime to take any evidence that may beadduced.
Section 134 does not debar the Magistrate who in due course wouldhold the inquiry from recording a statement in accordance with itsterms.
Section 134 has not been impliedly repealed by the new provisionsregarding inquiries in Chapter 16.
Section 302 of the Criminal Procedure Code implies that an accusedmay make any statement at any stage of the inquiry to the Magistrate,and it requires the Magistrate to take down that statement in the mannerprovided unless it be a statement prohibited to be taken down as beingone made in reply to a charge.
When objection is taken to a statement recorded as being obnoxiousto section 24 of the Evidence Ordinance the burden is upon the Crownto establish the relevancy of the confession by leading some evidenceto show that it was made voluntarily.
T
HIS was a case of the Midland Circuit heard before Soertsz J. anda Jury at Colombo.
E. G. P. Jayatilleke, K.C., Attorney-General (with him R. R. Crossette-Thambiah, C.C., and O. L. de Kretser (Jnr.), C.C.), for the Crown.
R. L. Pereira, K.C. (with him J. R. Jayawardene, P. H. W. de Silva,and R. N. Ilangakoon), for first, second, third, fifth, and sixth accused.
G. S. David, for the fourth accused.
December 2, 1941. Soertsz J.—t-
The Attorney-General proposes to introduce, in the course of hisopening address to the Jury, and at a later stage, to lead evidence ofcertain statements made by the second, fifth, and sixth accused to theinquiring Magistrate. Counsel for the prisoners object.
I have examined these statements, and I am of opinion that theyamount to confessions as defined in section 17, sub-section (2) of theEvidence Ordinance inasmuch as the second accused in his statementadmits in clear terms that he took part in the commission of the offencelaid in the indictment. While the statements of the fifth and sixthaccused, although they are more reticent in regard to the parts they tookin the transaction, suggest the inference that the fifth accused and thesixth accused joined in the commission of the offence charged. Theseconfessions were taken down in writing by the Magistrate who later heldthe inquiry in the Court below and who committed the prisoners for trialby this Court.
S.OERTSZ J.—The King v. Weerasamy.153
The manner in which the Magistrate set about taking these confessionsand the certificate or memoranda, appearing at the foot of the recordsmade by him, show clearly that the Magistrate purported to act and did,in fact, act under section 134 of the Criminal Procedure Code.
Counsel for the prisoners object to these confessions mainly on theground that they were not taken in accordance with law, inasmuch asthey must be held to have been taken alter the commencement of theinquiry and not before its commencement, that being one of the conditionsfor acting under section 134.
(b) That they are obnoxious to section 24 of the Evidence Ordinanceand, therefore, irrelevant.
There was also some objection that, in a proper view of the matter,section 134 of the Criminal Procedure Code must be taken to have beenimpliedly repealed by the new provisions regarding inquiries underChapter 16. A similar argument was addressed to my brother Wijeye-wardene in The King v. Francis Appuhamy '. My brother took the viewthat there was some force in that argument but said he could not holdthat section 134 had been impliedly repealed. For my part I am quiteunable to accede to such an argument.
It was again contended that when section 134 was enacted the Legis-lature contemplated that the statements and* confessions it had in viewshould be recorded by a Magistrate other than the one due to hold theinquiry. To support this reference was made to a note of a case inKhanna’s All-India Criminal Digest, Column 870, in which it is saidthat it was held that section 164 of the Indian Code of Criminal Procedureto which our section 154 corresponds, does not apply to the case of con-fessions taken by the Magistrate who is actually investigating the case,but to a case where some other Magistrate takes the confession andforwards it to the Magistrate due to inquire into or to try the case. Anote like this is not always a safe guide as to what a judgment said ordid not say. But if the note correctly summarizes the judgment I amunable to agree with it. Section 134 taken as a whole is wide enough toinclude the inquiring Magistrate. Sub-section (2) does not in my viewcreate any great obstacle to such an interpretation. It provides, perhaps,somewhat inartistically, for the forwarding of statements and confessionstaken by a Magistrate other than the inquiring, to the Court of theinquiring Magistrate. Nor can I see any good or sufficient reasor forwhich the Legislature could have intended to debar the Magistrate, whoin due course would hold the inquiry, from recording such statementsand confessions.
The first question, then, is whether the inquiry into this case had begunat the time these' confessions were recorded, namely, on May 15, 1941,when the fifth and sixth accused made their confessions. Mr. Pereracontends that the inquiry must be held to have begun on May 10, 1941,in view of sections 148 and 153 of the Criminal Procedure Code. Hisargument is that this proceeding was one instituted under section 148,and that the case having been reported to the Magistrate as one of culpablehomicide, he was required by section 153 of the Code to go to the scene of
1 42 N. L. R. 553.
154SOERTSZ J.—The King v. Weerasamy.
the offence, and, if the accused were present before him, to proceed tohold the inquiry directed by Chapter 16 ; and that when the Magistratewent to the scene as he did, and there proceeded to take evidence of anumber of witnesses the inquiry began, because the present third and fourthprisoners were then before him. But it seems to me that it is a sufficientanswer to that argument to point out that at that time the third andfourth prisoners were not before him as accused but as suspects, and thetaking of the evidence the Magistrate took on that occasion must, I think,be regarded as the examination referred to in the concluding part of the.first paragraph of section 153. I, therefore, hold that on May 10, 1941,proceedings had commenced under Chapter 15 of the Criminal ProcedureCode but the inquiry had not commenced under Chapter 16 inasmuch asthere were no accused appearing or brought before him.
Mr. Pereira next contended that, even if that was the position on thatday, the matter stood differently on May 13, when the two suspects ofMay 10 and the first prisoner against whom a warrant had been issued,and a man named Maiappen were produced before the Magistratedescribed as accused. He says that thereupon, at any rate, occasionarose for the Magistrate to hold a preliminary inquiry under section 153and to commence that inquiry under section 156 by reading over to theaccused the charge or charges in respect of which the inquiry was beingheld.
The record of the proceedings in the Magistrate’s Court shows that, inpoint of fact, no charge was read to any person till June 6, 1941,but it is contended that nevertheless the inquiry had commenced in thatthere were four persons present as accused. In other words, the conten-tion is that directly an accused person or persons appears or appear beforethe Magistrate the inquiry begins whether the charge has been framedor not. For this contention reliance is placed upon the ruling in the case^of King v. Ranhamy.' In that case I had occasion to consider a similarquestion and held that the inquiry contemplated under section 134of the Code was the inquiry commencing on the appearance of the accused.There, I was examining the poipt submitted for consideration that aninquiry must be held to begin when an investigation is set on foot underChapter 12, or, at least when proceedings commence under Chapter 15 ;and I held that for the purpose of section 134 an inquiry does not commencebefore the appearance of the accused. It was not necessary for me inthat case to examine the further questions whether an inquiry must beregarded as having commenced directly the accused or any of the accused,where there are several accused, appears or appear without anythingmore being done. Now that that question has arisen I am of opinionthat section 156 of the Criminal Procedure Code enacts that the inquiryunder Chapter 16 commences when the charge is read over to the accused.Thai section enacts that “ The Magistrate conducting the preliminaryinquiry shall at the commencement of such inquiry read over to theac^'.-ed the charge or charges in respect of which the inquiry is beingheld”, &c. It does not oblige the Magistrate to read over the charge or
' 42 X. L. R. 221.
155
SOERTSZ J.—The King v. Weerasamy.
charges directly the accused appear. The word “ forthwith ”, not un-familiar to the framers of the Code, is significantly absent. Cases areeasily conceivable in which a Magistrate may not be in a position ade-quately to frame a charge or charges on the appearance of the accusedwithout taking further evidence, and on a reasonable interpretation ofsection 156 all that is required is that the Magistrate should read over thecharge or charges as early as it may be practicable to do so. There maybe instances, and this case affords one such instance, in which all theaccused persons do not appear simultaneously before the Magistrate.In such cases it seems to me that it is open to the Magistrate to awaitthe appearance of all the accused not indefinitely, of course, but withinreasonable limits before framing charges and in the meantime to take anyevidence that may be adduced. All such evidence will, of course, haveto be read over to the accused as, and when, they appear to enable themto cross-examine the witnesses who had given evidence in their absence.
In this case, on May 13, 1941, which was the second date on whichit was taken up the second accused, for whose arrest a warrant had beenissued, did not appear and for that reason, in my opinion, the point of timecontemplated by section 155 was not reached. Section 155 says, “ Whenthe accused appears ”. It envisages a case against a single accused.To meet the case of several accused the logical extension of section 155can legitimately be taken as far as “ When the accused appear ” meaningall the accused, in virtue of the Interpretation Ordinance, for if it wasintended to limit that extension and to fix the crucial point of time asthat at which in the case of several accused “ any one of them appear, ”one would expect a definite statement to that effect. I must not beunderstood to mean that as a hard and fast rule a Magistrate must waittill all the accused appear before he frames a charge. All I say is thathe may wait till then in an appropriate case while in another case he maythink fit to frame a charge when only some of the accused are beforehim : But in either case the inquiry contemplated in Chapter 16 beginsonly after the charge has been read over by the Magistrate.
The next date in the case is May 15, 1941, and on that date the secondaccused was produced and made his confession. The case was not dueto be called on that date and, so, only the second accused was before theMagistrate. That means, again that on that occasion, too, the Magis-trate was free to treat the case as one in which the accused were notadequately before him within the meaning of section 155 and, therefore,not even the first condition for the commencement of the inquiry wassatisfied, or at least, he was free to treat it as a case in which they werenot adequately before him for the purpose of framing a charge undersection 156.
The confessions of the fifth and sixth accused were taken on May 16,1941, in the absence of the other accused, and there was no materialchange in the state of relevant things on that date.
For these reasons I hold that at the time these confessions were recordedthe inquiry contemplated by section 134 had not commenced and thatthe Magistrate was acting conformably with the law when he took themin the manner in which he did. I would add that even if Mr. Pereira's
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SOERTSZ J.—The King v. Weerasamy.
contention that the inquiry had commenced, and that for that reasonsection 134 did not apply, was sound, he would still be enmeshed in section302 of the Criminal Procedure Code. That section, as I understand it,clearly implies that an accused may make any statement at any stage ofthe inquiry to the Magistrate and it requires the Magistrate to takedown that statement in the manner provided unless, of course, it be astatement prohibited to be taken down as being one made in reply to acharge. Section 302 says “ Whenever in the course of any inquiry underChapter 16 an accused makes a statement to a Magistrate ”, &c. Thefirst word is “ whenever ” not merely “ when ”, and that, to my mind,implies that but for any expressed prohibition the accused may make astatement at any time.
Mr. Pereira contends that section 302 of the Criminal Procedure Codeonly provides for the manner in which statements made under Chapter 16shall be taken down and that the occasions when the accused may makea statement must be found within the other provisions of Chapter 16.
I have examined Chapter 16 and the only occasion mentioned in Chapter16 is the opportunity afforded by section 160. If, therefore, Mr. Pereira’sargument is sound the obvious thing for the Legislature to have saidwas : —“ When an accused makes a statement under section 160 ” orwords to that effect. Mr. Pereira says that that is only a vagary ofdiction on the part of the Legislature. It seems to me, however, that theLegislature while debarring an accused from requiring a statement madeby him- in reply to a charge to be taken down, and, while requiring theMagistrate to give him an opportunity to make a statement if he choosesto do so at the close of the case for the prosecution, thought fit to leaveit open to an accused to make a statement at any other stage. Indeed,
I think it would have been harsh to debar him from such a right for,conceivably, there can be cases in which it would serve, the accused tomake a statement in the course of an inquiry.
In passing, I would observe that in this view of the matter the Magis-trate erred when he refused the application made to him on June 6 torecord further statements of the second, fifth, and sixth accused, but thatdefault is of no material consequence at this stage of the case. Theresulting position is dilemmatic for Mr. Pereira. If the confessions arenot admissible under section 134 of the Criminal Procedure Code readwith section 80 of .the Evidence Ordinance, they are admissible undersections 302 and 233 of the Criminal Procedure Code. These confessionshave been recorded in conformity with the requirements of both section134 and section 302 of the Criminal Procedure Code.
therefore, rule that these confessions are admissible in that way.They may be produced in any manner the Crown elects provided theycome from proper custody. It will, of course, be open to the defenceto rebut the presumption arising under section 80 of the EvidenceOrdinance.
The next objection taken is that these confessions are obnoxiousto section 24 of the Evidence Ordinance and, therefore, irrelevant.
In Prize-Goods ex s.s. " Maro Y ".
157
As I indicated in the case King v. Ranhamy ', a Magistrate’s certificateunder section 134 is not decisive of the question whether or not confessionswere voluntary. This certificate only vouches the fact that that theconfessions vis-a-wis the Magistrate were voluntary confessions, but thatdoes not preclude the existence of an earlier taint or some original sin.
therefore, rule on this point that the Crown must establish therelevancy of these confessions by leading some evidence to show thatthey were made voluntarily. I think that section 104 of the Evidence Actputs that burden upon the Crown. If the Crown establishes a primafacie case on that point I shall hear any evidence the prisoners may wishto adduce and any submissions their Counsel may desire to make inregard to that matter.
[S. B. Thoradeniya, Inspector of Police, is called at this stage.]
Mr. Pereira: At this stage the Jury must be here.
Court: If you wish the Magistrate also called on the point I will callhim myself.
Mr. Pereira : My submission is that the Jury ought to be here when thatpart of the evidence is led.
Court: The Jury will be here later. They will be recalled again withregard to what weight the Jury are prepared to attach to the evidence.I am still on the question of admissibility. I think the more satisfactorycourse is that the Jury should not be here at this stage, as it may benecessary to elicit something in regard to the text of the confessionsthemselves from the witnesses in order to consider the question whetherthere were promises, inducements or threats employed. It will bedifficult to confine it within the limits, and as such it should be held inthe absence of the Jury.
Mr. Pereira : I am entitled to put certain questions which will be ofmaterial assistance to my defence when the Jury are present.
Court: I will call the Magistrate for that purpose.
Mr. Pereira: If that is so, I have no questions to put to the Magistrateor the Police.
Court: Still, that does not exempt the Crown from the burden it hasto discharge.