THE QUEEN, Appellant, and MURUGAN RAMASAMY, Respondent

062-NLR-NLR-V-66-THE-QUEEN-Appellant-and-MURUGAN-RAMASAMY-Respondent.pdf


The Queen v. Murugan Ramasamy
285
[In the Pbivy Council]
1964 Present: The Lord Chancellor, Viscount Radcliffe, LordMorris ol Borth-y-Gest, Lord Hodson, and Lord PearceTHE QUEEN, Appellant, and MURUGAN RAMASAMY,Respondent
Pbivy Council Appeal No. 24 op 1963
G. G. A. No. 2 of 1962—S. 0. 14jM. G. Gampola, 3082
Evidence—Meaning and effect of section 122 (3) of Criminal Procedure Code—Applica-bility to an accused person as much as to any other witness—Exclusion of oralevidence as well as written records—Relationship between section 27 of EvidenceOrdinance and section 122 (3) of Criminal Procedure Code—Applicability ofmaxim generalia specialibus non derogant—Evidence Ordinance, as. 24, 25, 26,27, 157.
Section 27 (1) of the Evidence Ordinance, No. 14 of 1895, is as follows :—
“ .. . When any fact is deposed to as discovered in consequence of informa-tion received from a person accused of (any offence, in the custody of a policeofficer, so much of such information, whether it amounts to a confession ornot, as relates distinctly to the fact thereby discovered may be proved.”
Section 122 (3) of the Criminal Procedure Code, No. 15 of 1898, is as follows :—
“ No statement made by any person to a police officer or an inquirer in thecourse of any investigation under this Chapter shall be used otherwise than toprove that a witness made a different statementjat a different time, or torefresh the memory of the person recording it. j But any criminal courtmay send for the statements recorded in a case under inquiry or trial in suchcourt and may use such statements or information, not as evidence in the case,but to aid it in such inquiry or trial. Neither the accused nor his agents shallbe entitled to call for such statements, nor shall he or they be entitled to seethem merely because they are referred to by the court; but if they are usedby the police officer or inquirer who made them to refresh his memory, or ifthe court uses them for the purpose of contradicting such police officer orinquirer, the provisions of the Evidence Ordinance, section 161 or section 145,as the case may be, shall apply.
Nothing in this subsection shall be deemed to apply to any statementfalling within the provisions of section 32 (1) of the Evidence Ordinance, or toprevent such statement being used as evidence in a charge under section 180of the Penal Code.”
In a trial for attempted murder by shooting with a gun certain evidence wasadmitted by the presiding Judge to the effect that a gun capable of causing theinjury actually inflicted on the injured person had been discovered in conse-quence of information of its whereabouts which the accused respondent hadgiven to a police officer in a statement made by him in the course of an investi-gation set on foot under Chapter XII of the Criminal Procedure Code. It wasnot in dispute that at the time of making the statement the accused wasin the custody of the police officer. The evidence that was admitted was notthe entire statement but only that portion of it which related distinctly to thediscovery of the gun. There was no application from the defence Counsel thatthe entire statement should be put in.
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Held, (i) that statements made during a police investigation by a person thenor subsequently accused are within the prohibition imposed by section 122 (3)of the Criminal Procedure Code and cannot be used at his trial. Section 122 (3)extends to an accused person as much as to any other witness.
that the prohibition of using “ statements ” that section 122 (3) of theCriminal Procedure Code imposes applies not only to the written records butalso excludes oral evidence of anything said. Section 122(3) must be read ascovering the use of oral evidence of statements made during policeinvestigation just as much as the written records of such statements.
R. v. Jinadasa (1950) 51 N. L. R. 529, overruled on this question ofconstruction.
that, in determining what, if any, effect section 122 (3) of the CriminalProcedure Code has upon section 27 of the Evidence Ordinance, which had beenenacted about three years earlier, the maxim of interpretation generaliaspec.ialibus non derogant is applicable. Accordingly, evidence falling withinsection 27 of the Evidence Ordinance can lawfully be given at a trial, eventhough it would otherwise be excluded as a statement made in the course ofan investigation under section 122 (3) of the Criminal Procedure Code.
that the evidence that was admitted in the present case under the ruleof section 27 of the Evidence Ordinance was not vitiated by the fact that itwas only a limited portion of the statement made by the accused person to thepolice officer.
Appeal, with special leave, from a judgment of the Court ofCriminal Appeal reported in (1962) 64 N. L. R. 433.
Dingle Foot, Q.C., with R. K. Handoo, Ralph Milner, V. S. A.Pullenayegum and V. G. Gunatilaka, for the appellant.
E. F. N. Gratiaen, Q.C., with John Baker, for the accused-respondent.
Cur. adv. mtlt.
July 21, 1964. [.Delivered by Viscount Radclote]—
The main question raised by this appeal is an important and difficultone relating to the administration of the criminal law of Ceylon. Itconcerns the relationship between section 27 of the Evidence Ordinance(the section which permits the giving of evidence at a criminal trial asto information provided by an accused person, if the information hasled to the discovery of some relevant fact) and section 122 (3) of theCode of Criminal Procedure (which strictly limits the use that may bemade of statements made by a person to a police officer in the course ofan investigation set on foot under Chapter XII of the Code, the chapterin which section 122 appears). The respondent was tried and convictedin the Supreme Court on a charge of shooting one Piyadasa with a gunwith such intention and knowledge, to put it briefly, as would have re-sulted in murder if Piyadasa had died, and at his trial certain evidencewas admitted by the presiding Judge to the effect that a gun capable ofcausing the injury actually inflicted had been discovered in consequence
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of information of its whereabouts which he had given to a police officerin the course of a section 122 investigation. On the 17th December 1962the Court of Criminal Appeal quashed his conviction and directed anacquittal, holding that the evidence of his statement to the police officerhad been improperly admitted, that this had vitiated the jury’s verdictat his trial, and that the case was not one in which it would be right forthe Court to exercise its power under section 5 of the Court of CriminalAppeal Ordinance to dismiss the appeal on the ground that no substantialmiscarriage of justice had actually occurred.
By speoial leave the appellant has appealed to this Board against thedecision of the Court of Criminal Appeal. The appeal has been restedin argument on several independent grounds, which their Lordships willnotice in due course. But, since the important point of principle is thatwhich relates to the admission of the evidence of the information leadingto the discovery of the gun, their Lordships will proceed in the first placeto express their opinion on that issue. It will be convenient, in doingso, to consider the relationship between section 27 of the EvidenceOrdinance and section 122(3) of the Criminal Procedure Code
without making any further introduction to the facts of this particularcase.
To take section 27 first. It appears as one of a group of sections inthat part of the Evidence Ordinance that deals with the inadmissibilityof certain confessions. Section 24 renders inadmissible in evidenceconfessions produced under the stimulus of any inducement, andsection^ 25, 26 and 27 run as follows :
'* 25.(1) No confession made to a police officer shall be proved
as against a person accused of any offence.
(2) No confession made to a forest officer with respect to an actmade punishable under the Forest Ordinance, or to an excise officerwith respect to an act made punishable under the Excise Ordinance,shall be proved as against any person making such confession.
(1) No confession made by any person whilst he is in the custodyof a police officer, unless it be made in the immediate presence of aMagistrate, shall be proved as against such person.
(2) No confession made by any person in respect of an act madepunishable under the Forest Ordinance or the Excise Ordinance,whilst such person is in the custody of a forest officer or an exciseofficer, respectively, shall be proved as against such person, unless suchconfession is made in the immediate presence of a Magistrate. 27
27.(1) Provided that, when any fact is deposed to as discoveredin consequence of information received from a person accused of anyoffence, in the custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly to thefact thereby discovered may be proved,
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(2) Subsection. (1) shall also apply mutalis mutandis, in the case ofinformation received from a person accused of any act madepunishable under the Forest Ordinance, or the Excise Ordinance, whensuch person is in the custody of a forest officer or an excise officer,respectively. ”
This group of sections entered the law of Ceylon in the EvidenceOrdinance of 1895. Their origin however lies considerably further back,since they must have been taken over from the Indian Evidence Act,which contained a similar set of provisions. In fact, they seem firstto have appeared in the Indian Criminal Procedure Code of 1861, beingnumbered as sections 148, 149 and 150 of that Code. Then in 1872 theywere taken out of the Code of Criminal Procedure and enacted separatelyas sections 25, 26 and 27 of the Evidence Act of that year. Theyhave been a very familiar part of the criminal law administered in India,and there is a large body of judicial decision, not all of it consistent,that has been devoted to the interpretation of their provisions, inparticular of section 27, the construction of which has always raisedseveral special difficulties.
There can be no doubt as to what is the general purpose of sections 25and 26. It is to recognise the dangers of giving credence to self-incriminating statements made to policemen or made while in policecustody, not necessarily because of suspicion that improper pressuremay have been brought to bear for the purpose of securing convictions.Police authority itself, however carefully controlled, carries a menace tothose brought suddenly under its shadow; and these two sectionsrecognise and provide against the danger of such persons makingincriminating confessions with the intention of placating authority andwithout regard to the truth of what they are saying.
Section 27, on the contrary, envisages a situation in which circumstancesthemselves vouch for the truth of certain statements made by an accusedperson, even though they are made in conditions that would otherwisejustify suspicion. These are those statements that have led to the actualdiscovery of a proven fact when the information supplied by the accusedhas been the cause of the discovery. The principle embodied in section27 has always been explained as one derived from the English commonlaw and imported into the criminal law of British India by the legis-lators of the mid-nineteenth century. It can be traced in Enlgish lawas early as the late eighteenth century, see R. v. Warickshall1 andR. v. Butcher2. The principle was stated by Baron Parke in the trial ofThurtell and Runt (1825) (see Notable British Trials page 145), where hesaid “ A confession obtained by saying to the party ‘ You had betterconfess or it will be the worse for you’ is not legal evidence. But, thoughsuch a confession is not legal evidence, it is every day practice that ifin the course of such confession that party state where stolen goods ora body may be found and they are found accordingly, this is evidence,
1 (1783) 1 Lea. 263.» (1798) 1 Lea. 265n.
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because the fact of the finding proves the truth of the allegation, andhis evidence in this respect is not vitiated by the hopes or threats thatmay have been held out to him.”
It is worth while to make the observation at this point that the reasongiven for allowing it to be proved that an accused person gave informationthat led to the discovery of a relevant fact is not related in any specialway to the making of a confession. It qualifies for admission any suchstatement or information that might otherwise be suspect on the groundof a general objection to the reliability of evidence of that type.
Section 122 (3) must now be set out. Its setting is Chapter XU ofthe Criminal Procedure Code, a chapter which has as its heading“ Information to Police Officers and Inquirers and Their Powers to Investi-gate ” and runs from section 120 to section 133 inclusive. Of thesesections, section 121 deals with information relating to the commissionof a cognisable offence given to an officer in charge of a police station.Such information, when given orally, must be reduced to writing by himor under his direction and read over to the informant and the persongiving it must sign the writing so produced. The section further providesthat if from information received or otherwise the police officer has reasonto suspect the commission of a cognisable offence, he must send a reportto the Magistrate’s Court and proceed in person to the spot to investi-gate the facts and circumstances of the case and take such measuresas may be necessary for the discovery and arrest of the offender. Finally,any police officer making such an investigation is empowered to requirethe attendance before himself of any person who appears to beacquainted with the circumstances of the case and such person is boundto attend as so required.
Section 122 is as follows :—
“ 122.(1) Any police officer or inquirer making an inquiry under this
Chapter may examine orally any person supposed to be acquaintedwith the facts and circumstances of the case and shall reduceinto writing any statement made by the person so examined, but nooath or affirmation shall be administered to any such person norshall the statement be signed by such person. If such statementis not recorded in the Information Book a true copy thereof shallas soon as may be convenient be entered by such police officer orinquirer in the Information Book.
Such person shall be bound to answer truly all questions relatingto such case put to him by such officer other than questions whichwould have a tendency to expose him to a criminal charge or to apenalty or forfeiture.
No statement made by any person to a police officer or aninquirer in the course of any investigation under this Chapter shall beused otherwise than to prove that a witness made a different statementat a different time, or to refresh the memory of the person recordingit. But any criminal court may send for the statements recorded
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in a case under inquiry or trial in such court and may use such state-ments or information not as evidence in the case, but to aid it in suchinquiry or trial. Neither the accused nor his agents shall be entitledto call for such statements, nor shall he or they be entitled to seethem morely because they are referred to by the court; but if theyare used by the police officer or inquirer who made them torefresh his memory, or if the court uses them for the pmpose ofcontradicting such police officer or inquirer, the provisions of theEvidence Ordinance, section 161 or section 145, as the case may be,shall apply.
Nothing in this subsection shall be deemed to apply to any state-ment falling within the provisions of section 32 (1) of the EvidenceOrdinance, or to prevent such statement being used as evidence ina charge under section 180 of the Penal Code.”
■ These sections dealing with criminal investigation were first enactedin Ceylon in 1898, although at that time the powers conferred wereconferred only on inquirers specially appointed, and not on police officersin charge of stations. Later they were extended to police officers.Although they became part of the law of Ceylon by the CriminalProcedure Code, No. 15 of 1898, three years after the Evidence Ordinancehad been enacted, it is doubtful whether any particular significanceattaches to the fact that the one Ordinance was made later than theother, since they too, like the sections of the Evidence Ordinance already■quoted, were derived from comparable Indian legislation, in which bothgroups had existed side by side.
The analogue to section 122 in Ceylon is section 162 in India; and con-sideration of the question how far section 27 is affected by section 122in Ceylon necessarily invites the question how the relationship betweenthe same sections was worked out in the Courts in India. The absenceof any unanimous line of decision in those Courts and the fact thatsection 162 has been more than once amended in significant particularsprevent any simple answer to this question : nor, if it were available,would it be conclusive in Ceylon. But in their Lordships’ opinion somenotice of the Indian position is desirable, as it indicates the difficultiesthat have so long prevented the present problem from coming to a head,and also, they think, it suggests that there has been a generaldisposition to treat section 27 and section 162 as capable of effectiveco-existence.
From 1861 to 1872 these two sections were part of the same Code,the Criminal Procedure Code, in British India In 1872, when section 27was transferred to the Evidence Act, as already mentioned, there wasinserted in section 162 a specific saving for the operation of section 27.It is to be inferred that at that time it was not thought that therewas anything inconsistent in principle in the two sections being allowedto operate, each according to its terms. This saving continued to appearuntil 1898 when, on amendments made to the Criminal Procedure Code, it
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was removed from section 162. No explanation of the signJ/?ea nee of thischange seems ever to have been forthcoming, and i t may w >11 have beenone of those “ improveme nts ” that delight draftsmen wl o m vke themand tantalise Judges who then have to interpret them. However thatmay be, in recent years the express saving of section 27 has been restoredto the Indian Code, thus eliminating for the future any controversyas to whether it could be wrong to give effect to section 27 at a trial,even though the information given by the person accused had proceededfrom a section 162 investigation.
In the period that intervened between 1898 and the restoration of thatsaving the Indian Courts must frequently have been brought up againstthe problem of the impact of section 162 upon section 27. No finalsolution however was ever established, although the balance of authorityseems to have been regarded as inclining in favour of treating section27 as an exception from section 162, even without any saving words.Thus in the 6th Edition of Sarlcar on Evidence published in 1939(a significant date, as will appear later) it was stated at page 246 “ Thegeneral rule that statements made by an accused to the police duringan investigation cannot be proved does not affect the special exceptionin section 27. Statements admissible under that section can still beproved.” See too, Woodroffe and Ameer Ali—Law of Evidence 9thEdition (1931) page 292.
It has to be recognised, however, that prior to 1939 the various HighCourts of British India were not agreed as to whether the prohibitionimposed by section 162, whatever its nature or extent, applied to anaccused person at all. The decisions varied on this point, and it wasnot until the case of Pakala Narayana Swami v. Emperor 1 was decidedby this Board that it was conclusively determined that statementsmade during a police investigation by a person then or subsequentlyaccused were within the prohibition and could not be used at his trial.Narayana Swami's case did not touch section 27, but during theargument before the Board stress was laid on the point that, if section162 did apply to the statements of an accused person, a very wideinroad had been made upon the application of section 27, contrary,presumably, to much of the existing practice at trials in India. Thepoint was noticed by the Board in the opinion delivered by LordAtkin (see page 52), but it was not necessary to the decision and wasexpressly loft unde ided. As he pointed out, section 27 might still havesome, though a restricted, operation, even if all statements made byan accused person during investigation were banned ; and, further, itwas still open to Courts to decide that section 27 was a “ special law ”within the meaning of section 1 (2) of the Criminal Procedure Code andthat section 162 did not constitute a “ special provision to the contrary ”for the purposes of that sub-section. If that construction were toprevail, it would follow that section 27 was unaffected.
When after 1939 the Courts in British India came to address them-selves to this aspect of the problem, again no unanimous V'ew emerged.The High Courts at Madras and Patna adopted the opinion that
1 (1939) A. I. R. (Privy Council) 47.
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section ] (2) did amount to a saving of section 27 ; those of Lahore andAllahabad took the view that it had been “ repealed These conflictingdecisions were reviewed in the High Court of Bombay by Beaumont
J. and Sen J. in the case of Biram Sardar v. Emperor1, and thejudgment of the Court, delivered by Beaumont C. J-, came down in favourof the view that section 27 was saved by section 1 (2) of theCriminal Procedure Code.
The different views entertained on this issue can no longer be of directimportance, now that the express saving of section 27 has been restoredto section 162, but it is relevant to observe that the principle adoptedby the High Courts of Bombay, Madras and Patna in their constructionof section 1 (2) treats that provision as being, in effect, no more than astatutory enactment of the general maxim “ generalia specialibus nonderogant ”, to which resort has so often to be made in matters of statutoryinterpretation.. Their Lordships must consider later whether that maximis not a valuable guide in dealing with section 27 and section 122 inCeylon.
Another construction of section 162 also served for a time to confusethe issue in India. . That was the view that the section did not operateto exclude the tendering of oral evidence of statements made in the courseof an investigation, its purpose being merely to prohibit the productionor use of the written record of such statements, which the police officerreceiving them was required to make. Such a construction, which wasfavoured by some of the Indian Courts, meant a very serious restrictionof the protection which it seems reasonable to suppose that section 162was intended to secure. In 1923, however, the section was amendedin a form which made it impossible for the future to admit any suchdistinction the. new wording being “ such statement or any recordthereof”.
A similar distinction has nevertheless been accepted and applied inseveral decisions of Courts in Ceylon over a considerable period of yearsand has only recently been departed from in two cases, of which oneis that now under appeal; and their Lordships must therefore deal withthis question of construction when they turn, as they now must, to thelaw of Ceylon and the meaning and effect of section 122 of its Criminal *Procedure Code. Of the law of India they think that no more cansafely be said on this topic than that for one reason or another section27 has been treated generally, though not universally, as unaffected bysection 162, but that the reasons for this treatment, as'has been shown,have been too various and, in some cases, too unreliable to afford anysound basis upon which to build a construction of the correspondingprovisions in the law of Ceylon.
In considering section 122 (3) and its effect, then, there are two separate .questions to be answered. One is, whether the prohibition of using“statements ” that it imposes applies only to the written records anddoes not exclude oral evidence of anything said. The other is, whether
1 (1941) A. I. B. (Bombay) 146.
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the effect of the prohibition, if it does cover oral evidence as well as theproduction of the written record, is to negative the rule contained insection 27 of the Evidence Ordinance that a statement distinctly relatingto a fact discovered can be proved against an accused, even if made byhim while in custody.
To take up the first of these questions. It seems plain, as has beenpointed out already, that if it is really open to the prosecution to provestatements made by an accused person during police investigation by theprocess of calling the police officer to whom the statement was made andallowing him to recall orally what was said, apparently with the aid of hisnotes to refresh his memory, the accused has very little effective protectionagainst the use of damaging statements, as for example admissions, that. he may have made in reply to police questioning. This seems to theirLordships to be a surprising result, when it is recalled that police inves-tigations under Chapter XII procedure involve compulsory attendance onthe part of persons summoned and compulsory reply to questions (exceptthose tending to incriminate), without any oath administered or anyopportunity for the person questioned to see the record made of hisstatements, much less to read it over and sign it. Moreover, the openingwords of section 122 (3), “No statement made by any person … inthe course of any investigation shall be used otherwise than etc. ” seemcategorically to exclude the idea that such a statement can be provedpositively against the maker of the statement as part of the prosecution’scase. Yet this must be the consequence of, any construction ofsection 122 (3) that treats the word “ statement ” throughout thatsub-section as if it referred merely to the written record broughtinto existence by the police officer and that does not admit the connectionof the prohibition with any general policy of forbidding the use at acriminal trial of statements obtained from an accused person by the useof the special procedure.
The practice of admitting oral evidence of statements made duringinvestigation as substantive evidence and not merely allowing them tobe used to contradict a witness making conflicting statements wasevidently of long standing in Ceylon. It is spoken of with approval byBertram C. J. in R. v. Pabilis1, when he said in reference to the words“ to refresh the memory of the person recording them” in section 122 (3)“ These words have always seemed to me to imply that an officer record-ing such a statement may (where the law allows it e. g. under section157 of the Evidence Ordinance) give oral evidence as to the terms ofthat statement, but may not put in the written statement itself ”. Simi-lar views were expressed in two succeeding cases, R. v. Gabriel2 andR. v. de Silva 3. The question was given fuller consideration in 1944 bya Court consisting of Howard C. J., Moseley S.P.J. and Wijeyewardene J.,see R. v. Haramanisa4. Although their judgment called attention tothe serious difficulties involved in the interpretation of section 122 (3)
1 {1924) 25 N. L. R. 424.» {1940) 42 N. L. R. 57.
8 {1937) 39 N. L. R. 38.* (1944) 45 N. L. R. 532.
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and raised other objections, not now material, to the oral proof of state-ments that the law required to be recorded in writing, the Court adoptedthe same construction of the sub-section as that which had been acceptedin the earlier cases and in certain pre-1923 decisions in High Courts inIndia (Bombay, Calcutta and Madras) and held that" the evidence of theoral statement is not subject to the limitations imposed by section122 (3) Since ex hypolhesi such statements are made orally the Court’smeaning would perhaps have been more accurately expressed if theyhad said that oral evidence of the statement was not subject to thesection 122 (3) limitations.
None of these cases had been concerned with the question of Section 27itself. They had all related to evidence in corroboration of a witness as.allowed under section 157 of the Evidence Ordinance, and, in fact, notall of the statements disci'seed were held in the end to be section 122statements at all The caso of R. v. Jinadasa l, however, involved section27 directly. It was a decision of the Court of Criminal Appeal, consistings)f five Judges, Jayetileke C.J., Dias S.P.J., Gunesekara, Pulle andSwm JJ ; and the effect of the decision was to hold that an oral state-ment made during the course of a section 122 investigation can beproved under section 27 against an accused, the prohibition of its “ use ”applying only to the written record. The view of the Court can be takento bo summarised in the following quotation (page 540): “ Section 122(3}imposes restrictions on the use of the police officer’s record of the oralstatement made to him, but does not govern the admission of oral evidenceof such statement. Therefore, where the law otherwise permits suchevidence to be given by a police officer, he may give oral evidence of anystatement to him ”. This is to restate the opinion of Bertram C.J.in R. v. Pabilis (supra) in virtually the same words.
The reason for drawing the distinction between the use of oral evidenceof a statement and the use of a written record of it rests wholly on certaindeductions made from some of the phrases that appear iu section 122(3).Thus, no statement can be used “ except to refresh the memory of theperson recording it ”. How can he refresh his memory, it is asked,except by referring to a w.itten document ? To that question theirLordships think that the correct reply is that, of course, he cannot,but that it by no means follows from that that as a matter of construc-tion the words “ no statement ” at the beginning of the sentence areconfined to the written record of the statement made. The wordsthemselves do not suggest such a limitation, and the true view, in theirLordships’ opinion, is that in this opening sentence no distinction isintended between an oral statement or oral evidence of such statementand its written record. What is intended is that except for the limitedpurposes specified, which may indeed require and contemplate no morethan reference to the written record, statements made by a person underthe special conditions of a police investigation are not to be usedagainst him in any form, whether such evidence is tendered orally or inwriting.
1 (1950) 51 N. L. R. 529.
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Then it is said that there are further indications in the sub-sectionwhich show that the legislature Was only dealing with use of the writtenrecord. Neither the accused nor his agents shall be entitled to “ call for ”such statements, or to “ see them ” merely because they are referred to-by the Court. Here certainly it can be accepted that the statements-spoken of are wi itten material, for it is only such materia] that can be-called for or seen ; but this point loses all force as a guide to constructionof the prohibition contained in the opening sentence when it is appreciatedthat after the close of that opening sentence the next sentence begins“ But any criminal court may send for the statements recorded in a-case under inquiry or trial in such court, and may ufesuch statements
Here the reference is explicitly to “ statements recorded ”
i.e. the record itself, and there is no difficulty in seeing that in whatimmediatly follows the words “ such statements ” do apply to the“ statements recorded ”, without throwing back any light upon themeaning of “ statements ” in the opening sentence.
The construction that had been adopted in the Jmadasa case wasreconsidered in 1962 by the Court of Criminal Appeal (Basnayake C.JMSansoni, H. N. G. Fernando, Sinnetamby and do Silva JJ.) in Reg tBuddharakkita Theral. The evidence in question was a statementmade by an accused person during the course of police investigation,but it was not put forward' as information leading to a discoveryunder section 27. The judgment of the Court, which was deliveredby the Chief Justice, refused to accept the long-standing distinctionbetween oral evidence of statements and the written record of themand hold that the effect of section 122 (3) was to render the use ofan oral statement made to a police officer in the course of aninvestigation just as obnoxious to it as the use of the same statement-reduced into writing. The judgment pointed out, with what seems totheir Lordships to have much force, that the original form of this section,,when enacted in the Criminal Procedure Code 1898, had clearly intended
its prohibition “No statement other than a dying declarationshall
if reduced to writing be signed by the person making it or shall be used,otherwise etc. ”, to apply to all statements whether in oral or writtenform and however proved; and the judgment further commented onthe unlikelihood of the legislature, when introducing its new form ofChapter XII, the primary purpose of wliich was to give police officers the-powers of inquirers, intending to make a far reaching change in the*substance of the law.
In the judgment now under appeal the Court of Criminal Appeal has-applied the construction of section 122 (3) adopted in Buddharakkita'8 case-in preference to that favoured in Jinadasa's case, holding that the-latter “ must not any longer be regarded as binding”. For the reasonthat they have given their Lordships are in agreement with the decisionof the Court in Buddharakkita's case on this question of construction,and they are of opinion that the Jinadasa construction is incorrect and.
1 (1962) 63 N.L. R. 433.
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ought no longer to be applied. Section 122 (3) then must be read ascovering the use of oral evidence of statements made during policeinvestigation just as much as the written records of such statements.
Before proceeding to the next point, the relation between section 122 (3)so construed and section 27, their Lordships must notice an argumentthat was presented to them by the appellant to the effect that, on theprinciple of stare decisis, the Court in the present case acted wrongly indeparting from the Jinadasa decision, one arrived at a few years earlierby the same Court constituted by a Bench of the same number of Judges.Their Lordships do not consider that it could serve any good purposeto deal with this argument, since to do so could lead to no useful result.The principle of stare decisis may be invoked in more than one sense.It may lead a superior Court to adhere to an established line of decisionsin Courts to which it is constitutionally a Court of error, even though,if the matter were to be raised for the first time, it would not itself agreewith those decisions. It was not in that sense that the principle wasadvanced in this appeal, nor in a matter of this sort relating to animportant aspect of evidence in criminal trials would their Lordshipshave though* it proper to apply it. What was said was that the Court ofCriminal Appeal in this case ought to have regarded itself as bound bythe previous decision of the s£}me Court in Jinadasa’s case and shouldhave treated itself as not being at liberty to depart from it.
But now that the legal issue as to the true construction ofSection 122 (3) has reached this Board, which is not bound in any sense bythe Jinadasa decision, the issue has in any event to be argued and decidedas open matter, and in a criminal cause, in which the incidence of costsis not material, it is merely academic to inquire at this stage whetherthe Court appealed from ought to have followed the earlier decision,even if it did not agree with the law as there expounded. In thesecircumstances their Lordships do not think it necessary to express anyopinion on the point.
. Thus it now becomes necessary to decide what, if any, effect section122 (3) has upon section 27, assuming, as their Lordships now hold,that section 122 (3) bars oral evidence as well as written records and that,as the Board held in Narayana Swami’s case, it extends to an accusedperson as much as to any other witness. This question has been answeredby the Court of Criminal Appeal in the judgment now under appeal, andthey have held that a statement which cannot be used under section 122 (3)cannot be proved in any form under section 27. Consequently section27 is to that extent, an important extent, repealed by implication bysection 122 (3).
This view was evidently not at first regarded in Ceylon as a necessaryconsequence of the decision in Buddharalckita’s case, which abolishedthe old distinction between oral evidence and written records undersection 122, Thus in that case itself the judgment of the Court seemedto treat section 27 as still providing an exception to section 122 (3) ;
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and even as late as 1962 the Court of Criminal Appeal (Basnayake C.J.,Sansoni and Sinnetamby JJ.) are recorded as saying (see Reg. v. DonWilbert1) “Having regard to the decision in Buddharaklcita which isnot yet reported, statements made in the course of an investigationunder section 122 cannot be used, whether they be oral or written, exceptfor the limited purpose contemplated by section 27 of the EvidenceOrdinance ”.
The basis of the Court’s present decision rests upon the fact that thereare certain express savings attached to section 122 (3), and one of theseinvolves an actual reference to the Evidence Ordinance, since it is providedthat “ Nothing in this sub-section shall be deemed to apply to any state-ment falling within … section 32 (1) of the Evidence. Ordinance”*
The reference here is to the rule governing the admissibility of dyingdeclarations. It is a very natural and persuasive line of interpretation toargue that, if section 32 is expressly .excepted, it cannot have been theintention of the legislature to except by implication another andseparate section which is not referred to.
Their Lordships are certainly not unimpressed by the force of thisreasoning. But the fact remains that both the sections in questionstand in the Statute Book without any qualification that indicates therelationship of one to the other, and in the difficult task of interpretingthe mind of the legislature with regard to them it seems necessary tolook for guidance in a wider field than that ot section 122 (3) itself as atpresent drafted. Both sections, as we know, were adopted by Ceylonfrom the existing legislation of British India, section 27 in 1895 andsection 122 in 1898. Both, as has been shown, had originated in Indiain the same measure of 1861, and they had been administered since thenunder a system which treated section 27 as an express exception from theIndian section 162. It is reasonable to suppose therefore that whenthey were incorporated into the legal system of Ceylon they werelooked upon at the time as complementary rather than as conflictingprovisions.
Is there anything to suggest the contrary in the way in which theCeylon legislation was framed ? It is true that section 122 came inthree years after section 27, but considering their common Indian origin,it seems pedantic to attach any significance to the fact that one wasenacted at a later date than the other. Their relationship cannot bedetermined by the mere sequence of dates. The question turns, it seems,not so much on the present form of section 122 (3) but on the form whichits predecessor, section 125, assumed in the Criminal Procedure Code of1898: lor if that section on its first introduction is not to be read as over-ruling section 27, which had been introduced three years earlier, >t wouldnot be right to infer that the changes of drafting form which have led tothe present wording of section 122 (3) were ever intended to bring aboutoo important an alteration.
1 (1962) 64 N.L.R. 83.
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* *
Portions of that section 125 have already been quoted. Tn full it
ran as follows : “ No statement other than a dying declaration madeby any person to an inquirer in the course of any investigation underthis chapter shall if reduced to writing be signed by the person maltingit or shall be used otherwise than to prove that a witnoss mad s a differentstatement at a different time There are two observations to be madeupon the section expressed in this form. First, there is not in it, asthere is in section 122 (3), any explicit reference to the Evidence Ordi-nance, although the exception of “ a dying declaration ” no doubt assumesthat the rules of that Ordinance wiL be applied to govern the matter.Secondly, 1898 was the same year as that in which the saving ofsection 27 was emitted from the Indian section 162. The omission did not,as has been shown, lead to any general change in the Indian practice ofapplying sec+ion 27, and Indian text-books continued to speak of section 27as an exception from section 162. In such circumstances there seemsto be altogether insufficient ground for attributing to the legislature inGylon an intention to wipe out the rule enacted in section 27 by theintroduction of section 125 in the Criminal Procedure Code of 1898.
The question is, of course, a difficult one : but theii Lordships are ofopinion that the correct way to solve it is by applying the maxim ofinterpretation “ goneralia specialibus non derogant ”, On the one handthere is the Evidence Ordinance containing a precise and detailed codi-fication ol the rules that are intended to govern the admission and rejec-tion of evidence. Among them is this section 27, a well-known rule,which has always been regarded as removing all objections to the state-ments that it deals with, so far as those objections rest upon misgivingsas to the conditions under which such statements have been made. Onthe other hand there is the Criminal Procedure Code not primarily con-cerned with rules of evidonce at all but containing regulations f >r thespecial procedure of in> istigation under Chapter Nil and manifustinga clear general intention based on the peculiarities of the procedure,to keep material produced bv it out of the range of evidence to be usedwhen a trial takes place. Their Lordship's think that they must acceptthe conclusion that evidence falling within section 27 can lawfully begiven at a trial, even though it would otherwise be excluded as astatement made in the course of an investigation under section 122.
It is necessary now to apply the legal principles that have been discussedto the trial of the respondent. He was charged, as has he :n said, withhaving shot one Fiyadasa with a gun with such intention or knowledgeand in such circumstances that had Piyadasa died by his act he wouldhave been guilty of murder. This was a charge under section 300 ofthe Penal Code.
The evidence called for the prosecution included the evidence of twomen, apart from Piyadasa, who were eye-witnesses of Piyadara’s shootingand who deposed, as did Pivadasa himself, to the fact that it was t..erespondent who fired the shot that injured Piyadasa. There may besome doubt whether or not one of these two eye-witnesses qualified his
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7"'‘
evidence undor cross-examination, but, wheth- r he did or not, therewas ample direct evidonce placed before the jury to show that the gun-shot that injured Piyadasa was deliberately fired at him from a gunheld by the respondent.
In addition to these witnesses a- police sergeant Jayawardene wascalled by the prosecution for the purpose of deposing to a statementmade by the respondent in consequence of which “ the ” or at any rate“ a ” gun was discovered. It has not been in dispute that at the timeof making the statement the respondent was in the custody of the police- and that the statement was made by him during the course of a policeinvestigation by Sergeant Jayawardene.
The full statement was at no time placed before the jury. ’Whathappened was that in their absence from the Court the prosecutingCounsel told the Judge, who had the written record, oi the statementbefore him, that he proposed to “ lead in certain portions of thestatement made by the accused in consequence of which the gun wasdiscovered
The full record of the statement that was before the Judge has beenset out in the Judgment of the Court of Criminal Appeal and apparently ,that rocord ran as follows—
“ I am now leaving with P.CC. 4358, 7326 and 5617 and suspectRamasamy to trace the gun.
9.60 at 3.25 p.m. Monte Cristo Estate, Line No. 6. SuspectRamasamy points out to me a place in the garden opposite Line No. 6and dug out the spot. Here I find a Wembley & Scott S.B.B.L.12-bore gun barrel No. 10973 in three pai-ts wrapped in an old gunnysack and 14 cartridges 12-bore in an oil cloth bag ranging a3 follows :
S.G., 2 No. 6, 2 No. 3, 7 No. 4 and 1 F. N. filled 12-bore cartridges.
I smelt the barrel and there is a smell of gun powder and recent foldingin the barrel. I tied both ends covered with paper. I here takocharge of them as productions. Here there is (1) shrub (sic) junglein the vicinity. I now proceed to record hi3 statement. Ramasamyalia* Babun Ramasamy s/o Murugan, age 48 years, labourer of lineNo. 9, Monte Cristo Estate, states: “ T.iis morning about 8 a.m. Iwas in my line room. At this time I heard the shouts ot people towardsthe upper line where I am residing. I came out and saw about 50 to100 people collected outside the lines and there was pelting of stones.Just then I heard the report of a gun in the direction of Dhoby’s line.
I then came running to line No. 6 through fear. As I came runningto line No. 6 I again heard the report of a gun towards the lineof the mechanic. At the time I saw about 40 to 50 men andwomen including strikers and non-strikers shouting. As I came tothe (verandah) back verandah I found a 12-bore gun broken lyingon the ground and some cartridges in an oil cloth bag. I broke the guninto three pieces, picked up a gunny sack and wrapped the parts of thegun with the bag of cartridges buried in the garden opposite lineNo. 6. I am prepared to point out the place where the gun and
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cartridges are buried. I deny having shot at anyone. I am one of thestrikers. This is all I have to state. Read over and explained andadmitted to be correct.”
I am now leaving with P. CC. 4358, 7326 and 5617 and suspectRamasamy to trace the gun. 3.25 p.m. Monte Gristo Estate oppositeline No. 6. On the statement made by Ramasamy I recovered oneS. B. B. Jj. 12-bore Wembley and Scott gun No. 10973 broken inthree parts, barrel, butt and hand guard wrapped in an old gunnysack and one oil cloth bag containing 14 cartridges 12-bore rangingas follows: 2 S. 6., 2 No. 6, 2 No. 3, 7 No. 4, and one F. N. filled12-bore cartridges. I found them buried in the garden where shrubjungle is found. I smelt the barrel. It is smelling of fouling andgun powder. I find the barrel fouled and signs (?) of recent firing.I have (tied) covered and tied both ends and taken charge as produc-tions. At 4.20 p.m. I produced the productions, gun and cartridges,and the suspect Ramasamy before I. P. ”
Prosecuting counsel wished to put in the words “ I picked up theparts of the gun wrapped up in a gunny sack and a bag of cartridgesburied in the garden opposite line No. 6 ” (sic). The Judge howeverdirected him that he must confine himself to proving the words “lamprepared to point out the place where the gun and the cartridges wereburied ”. Plainly both of them were treating the statement as one comingwithin the rule of section 27 and intended to limit the words provedagainst the accused to those which “ relate distinctly to the fact therebydiscovered ”.
The respondent’s counsel had not at that time seen the record ofthe statement, and section 122 (3) does not give him any general rightto call for it merely because the Judge refers to it. He did state, in answerto the Judge, that he did not object to tfce words indicated but thathe objected to the other part of the statement going in. The Judgeassured him that he was not going to allow that.
The evidence of the respondent’s statement was then put beforethe jury in this limited form. Sergeant Jayawardene was cross-examinedon it by Counsel for the respondent, the cross-examination being directedat the outset to establishing that the respondent had never produced“ this gun ” to him, never pointed it out and never made a statementto him about it. The witness rejected these suggestions. At thisstage of the trial the judge handed to respondent’s counsel the witness’sdiary, in which the statement attributed to the respondent was recorded,and his counsel was thus afforded his first opportunity of seeing inwriting what the rest of the recorded statement amounted to.
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The respondent did not give evidence. In his summing up to thejury the Judge indicated to them clearly that in his view the mostimportant part of the evidence was that of Piyadasa himself and thetwo other eye-witnesses, and said that their “ verdict must surely restin this case upon your belief or disbelief” of those witnesses. Withregard to the evidence of Sergeant Jayawardene as to the finding ofthe gun he directed them that it meant nothing more than that theaccused was aware of where a gun and cartridges were buried, notnecessarily buried by him.
The jury brought in a unanimous verdict of guilty after seventeenminutes retirement. The Court sentenced the respondent to ten yearsrigorous imprisonment.
His appeal against conviction and sentence was allowed by the Courtof Criminal Appeal on the ground that Jayawardene’s evidence as tothe information leading to the discovery of the gun and cartridgeswas improperly admitted, since section 27 did not permit the givingof evidence that was covered by section 122 (3). Their Lordships havealready expressed their opinion on this question and in their viewsection 27 is not displaced in the way that has been suggested. Conse-quently they are not able to support the Court of Criminal Appeal’sjudgment on this aspect of the law and they must hold the convictionto have been wrongly set aside.
There are however two further points to which allusion must be madebefore the appeal is disposed of. Having regard to the vic-r of the lawtaken by the Court of Criminal Appeal it was necessary for them, as itis not for their Lordships, to consider the further question whether theyought to exercise the power given to them by the proviso to section 5of the Criminal Appeal Ordinance and dismiss the respondent’s appealon the ground that his conviction had not actually involved any substan-tial miscarriage of justice. In dealing with this the judgment deliveredby the Chief Justice dwells largely upon what he described as the graveprejudice inflicted upon the respondent by the form in which SergeantJayawardene’s evidence of the statement made to him was put beforethe jury. Their Lordships have thought it necessary to give carefulattention to this point, which was fully argued before them, so as toassure themselves that his evidence, even if admissible under section 27,was not vitiated by the partial nature of the statement proved or bysome improper treatment of it in the Judge’s summing up to the jury.
In their opinion no objection can be maintained on either of thesegrounds. It is quite true that the words “ the gun ” and “ the car-tridges ”, if put before the jury as words attributed to the accused in
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connection with the discovery, are capable of suggesting or even likelyto suggest a positive connection between the gun discovered and thegun with which Piyadasa was shot, which the full statement did notbear out. For in another part of the statement the accused statesthat having heard the sound of two gun shots, he had come runningup to the ba< k verandah on th 3 Monte Cristo estate and that he hadfound there a 12-boro gun, broken, lying on the ground and some car tridgesin a bag. He says that he had broken the gun into three pieces, pickedup a sat k, wrapped the parts of the gun with the bag of cartridges andburied them in the garden opposite line No. 6. Only after thes©statements does he state that he is prepared to point out the' placewhere the gun and cartridges were buried. He then says that he denieshaving shot at anyone.
What is said is that, if the words admitted by the Judge were to beadmitted at all, it could not be just or fair to the accused to allow themto be placed bofore the jury without letting thorn hear also the explanatoryand self-exculpatory words which formed the context of his offer toshow where the objects were buried. Their Lordships do not considerthis objection to be well founded. The Judge in admitting the wordsfrelating to the discovery was applying the rule laid down by section 27.That rule limits the admissible words, whether they amount to a con-fession or not, to those relating distinctly to the fact discovered. Heis not at liberty to go beyond that limit, however much the prosecutionmay wish to do so, and it has always been regarded as the correctpractice that Judges should be strict in applying the requirement thatthe words admitted must “ relate distinctly ” to the fact. No doubtit is considered that such a practice is likely on the whole to toll in favourof an accused, even though it may result in the exclusion of self-exculpatory statements.
The present case illustrates the difficulty of allowing the rule to beapplied in any extended way. In order to show the exact signi-ficance of the words “ the gun ” when used by the respondent theJudge would have had to direct the prosecution to supplement themby putting in as well so much of his statement as set out his story ofthe findirg oi a gun on the verandah and of his decision to pick it up'and bury it and the cartridges, without any explanation offered of hisreason for acting in such a suspicious way. A Jadge might very reason-ably suppose that to put this in on top of the other evidence would onlymake the case against the accused the blacker for the addition. Todirect such evidence to be put in, without any application from thedefence counsel (wrho, it must be remembered, had seen the full recordof the statement before the close of Jayawardene’s evidence) and in
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face of the line being taken in his cross-examination of that witnessthat the accused had never made any statement to him at all, wouldnot, in their Lordships’ opinion, have represented the duty of the Judgeconducting the trial that was taking place before him. They do notthink that he can be charged with having misconducted the trial inthis regard.
The course that he did adopt when he came to sum up to the juryappears to them to have been the correct way of handling his difficultproblem. On the one hand, as has been pointed out, he told thejury to concentrate on the question whether they were going to believeor disbelieve the evidence of the eye-witnesses. On the other handhe suggested to them that the evidence about the finding of the gundid hot amount to anything very much. The gun discovered, he said,was one that, according to the Analyst “ could possibly have causedthe injuries ”, because “ with this gun you can fire S. G. slugs Theproseoution’s point was, he said, that if the accused did point out thatgun, it was because he knew where it was. He then explained therespective positions of the prosecution and the defence as follows:—
“ Well, the Defence has challenged Jayawardene and said he isnothing more than a liar in uniform. That is the suggestion. TheDefence alternatively argues, even if that suggestion of the Defenceis not accepted, but Jayawardene is believed when he says that theAccused pointed out the gun, the statement of the Accused is thathe could point out a place where a gun and cartridges are buried.The Defence therefore argues that means nothing more than thatthe Accused was aware of where a gun and cartridges were buried,not necessarily buried by him. I did not understand the Prosecutionas placing the case any higher than placed by the Defence Counselhimself. The Prosecution does not say that it proves anythingmore than showing a place where a gun and 14 cartridges were buried,and this was about 3.25 or 3.30 that the cartridges were unearthed.Well, gentlemen, that is the evidence in this case. ”
With the matter put to the jury in that way in the summing uptheir Lordships do not think that it can fairly be said that any injusticewas caused to the defence by the words of the statement that wereadmitted under the rule of section 27 being admitted in the limitedform chosen by the Judge.
It only remains to place on record one further observation whicharises out of certain strictures contained in the judgment of the learnedChief Justice reflecting upon the handling of the prosecution’s case
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at the trial and the evidence of Sergeant Jayawardene. His commentson the conduct of counsel for the Crown are to be found in the last twoparagraphs of his judgment, and it is sufficient to note in referring tothem that they attribute to the prosecution a lack of proper fairnessand detachment in the presentation of the case and even a consciousattempt to mislead the Court. This censure, which is of the gravestorder, was not supported in any particular by counsel for the respondentin his argument before the Board. Their Lordships have found nojustification for it, and they think that it must have arisen from aninsufficient appreciation on the part of the Court of the limitationsimposed by observance of the conditions of section 27 and of the partplayed by the Judge himself in the instant case in directing what partof the accused’s statement he would allow to go before the jury. TheirLordships must dissociate themselves from any endorsement of thelearned Chief Justice’s words of censure.
As to Sergeant Jayawardene’s evidence at the trial it is describedby the Chief Justice as a reprehensible attempt at “ suggestio falsi etsuppressio veri ”, Any Court reviewing the written record of a witness’soral evidence under examination and cross-examination is at libertyto form its own conclusion as to his intentions and bona fides, evenif the attribution to him of gross bad faith is usually regarded as anexceptional departure on the part of an appellate Court. TheirLordships are certainly in no better position than the Court of CriminalAppeal to form a judgment on this matter : they will merely state inregard to this witness that neither their own analysis of his evidencenor the criticisms of it made by the learned Chief Justice have seemedto them to require so hostile a conclusion.
Their Lordships will humbly advise Her Majesty that the appealshould be allowed, the Judgment and Order of the Court of CriminalAppeal dated 17th December 1962 set aside and the verdict of thejury finding the respondent guilty of the offence of attempted murder,,dated 21st December 1961, restored. Since his appeal to the Courtof Criminal Appeal was against sentence as well as against convictionand the appeal against sentence did not come up for considerationowing to the Court’s decision to quash the conviction, the appealshould now be remitted to that Court for hearing of the appeal againstsentence on the basis that the verdict of the jury is to stand. Inaccordance with the condition imposed when special leave to appealto the Board was granted the appellant must pay the respondent’scosts of the appeal.
Appeal allowed.