120-NLR-NLR-V-49-KITNAPULLE-et-al.-Appellants-and-CHRISTOFFELZ-S.-I.-Police-Respondent.pdf
Kitnapulle v. Christoffelz_
401
1948Present: Basnayake J.
KITNAPULLE et ah, Appellants, and CHRISTOEPELZ(S. I. Police), Respondent.
S. C. 43-45—M. C. Point Pedro, 9,747.
Information Book—Use of it by Magistrate—Discretion of Court—Criminal
Procedure Code—Section 122 (3).
The use of the Information Hook is a matter entirely within the discretionof the Judge. He must take care, however, not to make use of statementsor facts contained in it as evidence for any purpose whatsoever or to drawany conclusion of guilt from such statements.
^^PPEAL from a judgment of the Magistrate, Point Pedro.
II- V. Perera, K.C., with H. W. Tarnbiah, for the accused, appellants.
T. Thamotheram, Crown Counsel, for the Attorney-General.
Cur. adv. vtadtt
M1947) 1 All E. B. 567 at 575.
402
BASNAYAJCE J.—Kitnapullev. Chrisloffelz.
April 5, 1948. Basnayake J.—
The first appellant has been convicted of the offence of grievous hurt,the second and third appellants have been convicted of .the offence ofabetting the offence of the first. The evidence for the prosecution, ifbelieved, is sufficient to establish the charges against all the appellants.The learned Magistrate, who has seen and heard the prosecution witnesses,accepts their evidence and is convinced of the truth of the prosecutioncase. I see no sufficient ground for interfering with his finding of fact.
I shall now deal with the submission of learned counsel for the appellantsthat the learned magistrate made improper use of the information bookin these proceedings. The action taken by the learned magistrate appearsfrom the following passage in his judgment. “ Next the statementmade to the Udayar was made use of by the defence. Kulandaivelu hadmade the statement that Annapillai wife of Selvanayagam asked him toinform the Udayar that ‘ Someone ’ had stabbed her husband. Kulan-daivelu gave evidence for the defence and said that he inquired fromAnnapillai who stabbed her husband and she replied that she did notknow. After that Kulandaivelu before going to the Udayar saw theinjured man surrounded by people but never questioned as to who hadcaused the injuries. If Kulandaivelu was curious enough to find out theassailants from Annapillai he would have inquired from the people aswell. This clearly shows that he never inquired from Annapillai andAnnapillai stated that Kulandaivelu never questioned her about this.Annapillai when she sent Kulandaivelu knew who the assailants were,but she was not an eye-witness to the incident and her whole desire wasto get the K. V. to the scene. Hence she naturally told Kulandaiveluthat her husband was stabbed and so inform the Udayar. From thisno inference can be drawn that at the time of the incident the names ofthe assailants were not known. As I am not conversant with the Tamillanguage I got the statement of Annapillai written by the Interpreterand translated. There were some discrepancies between the statementto the Police and evidence but these do not go to the root of the incident.On the evidence it is clear beyond doubt that the accused are the personswho committed this offence ”. I have quoted the learned Magistrate atlength so that the reference to his examination of Annapillai’s statementto the Police may appear in its true and proper context. The learnedMagistrate has not used Annapillai’s statement as evidence and I seenothing in his use of the statement that is in the circumstances of thiscase obnoxious to the provisions of section 122 (3) of the CriminalProcedure Code, the relevant portion of which reads : “ But any CriminalCourt may send for the statements recorded in a case under inquiry ortrial in such court and may use such statements or information, not asevidence in the case, but to aid it in such inquiry or trial Commentingon this provision in the case of King v. Gooray J, a decision of three judgesof this Court, Garvin A.C.J. observes : “A court is entitled to use theinformation book to assist it in elucidating points which appear to requireclearing up and are material for the purpose of doing justice (QueenEmpress v. Manu (1897) I. L. R. 19 Allahabad 390). The informationbook may show that there exists a witness, whom neither side has called,
{1926) 28 N. L. R. 74 at 83.
I Hang a Loon v. BogoUagama.
403
able to give material evidence which, a Judge may think should be placedbefore a jury. It may indicate lines of inquiry which should be exploredin the highest interests of justice, or may disclose to a judge that a witnessis giving in evidence a story materially different from the story told byhim to the investigating officers shortly after the offence ”,
It would be inadvisable in my view to fetter the provisions of section122 (3) by laying down fixed rules which should guide a judge in exercisinghis power to make use of statements made to a police officer or an inquirerin the course of an investigation under Chapter XII of the CriminalProcedure Code. As observed by Garvin A.C.J. (supra) “ The practice ofindividual judges as to the use of the information book may vary. Somejudges may prefer not to see it at all; others may take the view thatin the interests of justice the fullest use should be made of the book ;others again may take the view that it should be resorted to only whenin their judgment the circumstances of a particular case require such acourse if justice is to be done ”.
The matter is entirely in the discretion of the judge and he is free toexercise the power within the limits set to it by law. Care should, however,be taken not to use such statements or the facts contained therein asevidence for any purpose whatsoever. A judge should also guard againstdrawing any conclusions of guilt from such statements.
As I have observed earlier the learned Magistrate has not transgressedthe limits imposed by law in using the statement of Annapillai. The
appeals are dismissed.
Appeals dismissed.