087-NLR-NLR-V-29-WICKREMESINGHE-v.-FERNANDO.pdf
( 403 )
Present: Jayewardene A.J.WICKREMESINGHE t>. FERNANDO.
189—P. C. Colombo, 37,517.
Police Information Book—ReferencebyMagistrate—Credibilityof
mitness—Criminal Procedure Code, s. 122 (3).
Where a Magistrate referred to the Police Information Bookfor the purpose of testing the credibility of a witness by comparinghis evidence with a statement by him to the Police,—
Held, that the use of the Police Information Book was irregular.
^ PPEAL from a conviction by the Police Magistrate of Colombo.Hayley, K.C. (with De Jong), for appellant.
June 8, 1928. Jayewardene A.J.—
The accused has been convicted of causing grievous hurt to oneSimon Fernando and sentenced to one month's rigorousimprisonment.
After a witness, Siadoris Fernando, was examined for the prosecu-tion, the learned Magistrate made the following record:—“ I receivea strong impression that the witness is an adverse witness to theprosecution. I call for the Police record, and compare evidencegiven in Court with the witness's evidence given to the Police."
1928
( 404 )
1988
JaVBWAR-
SfBMB A.J.
Counsel for the appellant contends that the Magistrate has madea wrong use of the Police Information Book, and that the convictionis therefore bad.
Tpiekrtmz-*mighev.Fernando
The Indian Code of Criminal Procedure 5 of 1898, section 172(2), provides that any Criminal Court may send for the Police Diariesand may use such diaries, not as evidence in the case, but to aidit in such inquiry or trial.
. Our Code has taken over this section, but has made an additionthat a statement made to a Police Officer or Inquirer may be usedto prove that a witness made a different statement at a different time(section 122 (3) ); it is specially provided, however, that in such acase the attention of the witness must be drawn to that part of hisstatement which is used to contradict him.
Both sections provide that the Police Officer who made therecord may use it for the purpose of refreshing his memory,subject to the safeguards provided in sections 145 and 161 of theEvidence Act.
In R. v• Mannu 1 the Full Bench of the Allahabad High Courtlaid down the rules in regard to the use of Police InformationBooks. Edge C.J. condemned the practice of the use of statementsof a witness without the witness being questioned as to thetruth or otherwise of the statements and without affording to theprosecution or to the accused, as the case may be, an opportunity ofexplaining or contradicting such statements. The Chief Jueticeremarked that such a use of a Police Diary by a Court is entirelyillegal.
It was held that the attention of the witness must be called to theportion of the writing by which it is intended to contradict himbefore proof of the written statement can be given.
In Dal Sing v. The King 2 the Privy Council held that the Judgesin the Court of Appeal in India (Central Province) were wrong intesting the testimonyv of witnesses by reading the earlier statementsof those witnesses made to the Police and entered in the PoliceDiary. Their Lordships said: 44 In other words, they treatedwhat was thus entered as evidence which could be used at all eventsfor the purpose of discrediting these witnesses. In their Lordships'opinion this was plainly wrong. It was inconsistent with theprovisions of section 172 of the Criminal Procedure Code."
In Hamid v. Karthan,3 where the information book was used forthe purpose of corroborating certain portions of the evidence,Wood Benton C.J. thought that such a use was a violation of theprovisions of section 122 (3) of the Criminal Procedure Code.
1 {1897) I. L. R. 19 All. 390.* {1917) 116 L. T. 621.
8 {1917) 4 G. W. R. 363
( 405 )
In Dias v. Kiriwanta1 it was held that statements made bywitnesses under chapter XII. cannot be used as substantiveevidence, and in King v. Cooray 1 2 3 Garvin A.C.J. observed that aCriminal Court may use statements recorded in an information book,not as evidence, but to aid it in 6uch inquiry or trial.
The Privy Council adopted the rule laid down in the Allahabadcase 9 that the diary may be used “ to assist the Court which triesthe case by suggesting means of further elucidating points whichneed clearing up, and which are material for the purpose of doingjustice between the Crown and the accused, but not as containingentries which can by themselves be taken to be evidence of any date,fact, or statement contained in the diary." These principles havebeen followed in many cases in India.4
1928
Jayewab*DSNS A.J.
Wickremc-stnghe v.Fernando
It has been held that facts and statements written in the PoliceDiaries cannot be used as materials to help the Court to come to afinding on the evidence, and that what the Court should do with thePolice Diaries is to discover out of them any matter of importancebearing upon the case and then call for the necessaiy evidenceto have the matter legally proved.5 It has also been said that itrequired the utmost discrimination and discretion to make a properuse of such (Police) records, and while they may fairly be appealedto for the history of the several stages through which the Policeinvestigation into a crime has passed, they afford no safe or certainmaterial from which conclusions of guilt can be drawn #
Applying these tests to the present case, the learned Magistratewas wrong in calling for the Police record and comparing theevidence given in Court by the witness Siadoris Fernando with hisevidence given to the Police.
The case is not without doubt. I therefore set aside theconviction and acquit the accused.
Set aside.
1 (1918) 5 C. W. B. 187.9 Sohoni's Ind. Crim. Pro. Codet 12th ed.
9 (1928) 28 N. L. B. 74, p. 83p. 352.
3 (1897) /. L. B. 19 AU. 390.s 10 C. W. B. 600.
91 Leg. Bern. 26 (Sohoni 353).