019-NLR-NLR-V-44-THE-KING-v.-PUNCHIMAHATMAYA.pdf
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• The King v. G. Punchimahatmaya.
Court of Criminal Appeal.
1942Present: Soertsz, Hearne and de Kretser JJ.
THE KING v. G. PUNCHIMAHATMAYA.
33—M. C. Balangoda, 33,768.
Statement by accused in course of inquiry—Other than statement under ss. 160 'and 165—Crdwn is not bound to put them in—Criminal Procedure Code,s. 233.
Where statements are made by an accused person in the course of aninquiry other than under sections 160 and 165 of the Criminal ProcedureCode it is open to the Crown or the accused to decide whether to makeuse of them or not, if they are relevant or admissible.
It- is in regard to statements made under section 160 that the Crownis bound, to put them in and to, read them in evidence as part of its casein accordance with the provisions of section 233 of the Criminal ProcedureCode. .
A
PPEAL from a conviction by a Judge and Jury before the MidlandCircuit.
O.L. de Kretser (Jr.), for the appellant.
H. W. R. Weerasooriya, C.C., for the Crown.
Cur. adv. vult.
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SOERTSZ J.—The King v. G. Punchimahatmaya.
December 8, 1942. Soertsz J.—
The appeal from the conviction entered in this case was based on severalgrounds set forth in the original notice of appeal and on several othersadvanced in a supplementary statement tendered on a much later date.
Mr. de Kretser, who appeared for the appellant, confined his argumentto only a few of the questions raised. After examination of all thematters submitted to us, we reserved our judgment in order to considerthe objection taken in ground (1) of the original notice, for that appearedto us to be the one substantial question for our decision.
That question was whether it was incumbent on the Crown to put inevidence the statement -made by the appellant to the Magistrate onMay 19, 1942, and whether if the Crown was bound to do that, its failurein that respect was material in the circumstances of this case.
The statement in question was a statement that came to be recordedin this Way. On May 19, the Magistrate, on receiving information fromthe Ratnapura Police that a case of suspected murder had been reportedto them, went to the scene of the alleged offence. After the Magistratemade his inspection, the Police Sergeant informed him that the accused,who was present in custody at the scene, desired to make a statement.The Magistrate thereupon questioned the accused, and he admittedthat he desired to make a. statement. The Magistrate told him thathe is not bound to make a statement, and that if- he did make one itmight be read in evidence against him, and that he need not make it ifhe had been induced to make it. The Magistrate went on to tell him that“ if he was prepared to make his statement later, after he had time toconsider about the matter”, he would record it.
The Magistrate then placed the accused in the charge of the InterpreterMudaliyar and proceeded to record the “ available evidence ”. Afterhe had taken the evidence of three witnesses, including the Sub-Inspectorof Police, he gave the accused information of the charge as requiredby section 156 of the Criminal Procedure Code, and recalled the twowitnesses other than the Inspector whose evidence had been takenand read over that evidence to the accused, and gave him an opportunityto cross-examine those witnesses. At this stage the accused again saidthat he desired to make a statement. The Magistrate then questionedthe accused and satisfied himself that the accused was going to make“ a purely voluntary statement ”, and recorded it on the appropriateForm as a statement made under the provisions of section 134 of theCriminal Procedure Code. If the statement so recorded is, unequivocally,one made under section 134 of the Code, it is clear that it is not withinsection 233 of the Code and the Crown was under no obligation to .put itin evidence. But Mr. de Kretser submits that although this statement,P 17, purports to have been recorded under section 134, it is not, strictly,such a statement as is contemplated by that section for the reason that itcannot properly be regarded as a statement recorded before the com-mencement of the inquiry in view of the rulings given in the case ofThe King v. Weerasamy x, to the effect that an inquiry commences whenthe charge is read to the accused under section 156 of the Criminal
1 42 N. L. R. p. 152 and ibid p. 207.
82SOERTSZ J.—The King v. G. Punchimahatmaya.
Procedure code. That had been done in this case before the statementin question was recorded. The statement cannot, therefore, be regardedas one properly taken under section 134 of the Code. In our opinion,the Judge of Assize rightly ruled that it was not competent to the Crownto put in evidence as such a statement.
But Mr. de Kretser contends that this statement was a statement of1'the accused recorded “ in the course of the inquiry ” in the Magistrate’sCourt, and relying upon section 233 of the Criminal Procedure Code,he said that the Crown was bound to put it in and read it in evidencebefore the close of the case for the prosecution.
Section' 233 enacts that : —.
“ all statments of the accused recorded in the. course of the inquiryin the Magistrate’s Court shall be put in and read in evidence beforethe close of the case for the prosecution.”
The question then is what are the statements contemplated in thatsection. Chapter 16 of the Criminal Procedure Code contains theprovisions regulating an inquiry into a case such as this. So far as thoseprovisions go, the. only sections that refer to statements by an accusedin relation to their being recorded or not are sections 156, 160 and 165.Section 156 refers to such a statement, only to direct the Magistratenot to record it and to provide that any reply made by the accused shallbe inadmissible against him. Section 160 deals with that stage of thecase at which the examination of the witnesses called on behalf of theprosecution has been completed and it. directs the Magistrate to read thecharge and to explain it to' the accused and to ask him whether he wishesto say anything in answer to it, and after cautioning him in the mannerindicated in the. section, to record it in the manner provided by section 302.Section 165 directs the Magistrate when he commits the accusedfor trial to the Supreme Court to require him to state orally the names ofpersons whom he wishes to be required to give evidence at his trial andto prepare a list in the manner indicated.
From these facts. it emerges clearly that there are two occasions onwhich the accused must be given an opportunity to make a statement,and one occasion on which he is in effect forbidden to make one. The .opportunity contemplated in section 160 may, however, recur more thanonce in- the course of an inquiry, for a charge may be altered undersection 172 (3) of the Code at any stage of the inquiry.
The next question- is whether, apart from the occasions referred to insections 160 and 165, an accused may not make a statement and ask theMagistrate to record it. As I have already observed, there is one occasionop which he is not entitled to do that, and that is the occasion referredto in section 156 of the Code. But for that, there is certainly no expressprohibition and there- does not appear to be any good reason why,an accused may not make a statement at some other stage of the inquiryand ask the Magistrate to record it.-.
For instance, he may desire to withdraw a statement made by himunder section 160 or 165 and to make a different statement or to nameother witnesses and he should be allowed to do that. That was the viewtaken in the case of the The King v. Weerasamy {supra) and the Divisional
Pagavathi Ammo. v. The Ceylon Lawyers’ Benevolent Assn.83
Bench Ruling in the case of The King v. Wellavan Sittambaram' in regardto unsworn statements made by accused persons, seems to support thatview.
In regard to the point that the word “ statements ” in the plural insection 233 suggests that statements other than that made by an accusedunder section 160 “ shall be put in and read in evidence ” by the Crown"that does not seem to follow necessarily. The word “statements” inthe plural was necessary in section 233 for, in addition to the statementunder section 160, there is the statement under section 165 and, whatis more, there may be several statements made under each of thesesections.
The sole question that remains" is whether' it was incumbent onthe prosecution to put it in and to read it in evidence as a part of its case.We do not think it was. The statements contemplated by section 233are statements made under sections 160 and 165. Indeed, in regard tostatements under section 160 the accused is given the assurance thatthey shall be taken down and shall be given in evidence at the trial.
In regard to other statements made in the course of the inquiry, itis open to the, prosecution or to the accused to decide whether to makeuse of them or not if, of course, they are relevant and admissible.
In this case the proceedings show that the accused was offered everyfacility for putting the statement in question in evidence if he desiredto do so, but his Counsel decided not to avail himself of that opportunity.
For these reasons we are of opinion that the appeal fails. It isdismissed.
Appeal dismissed.