THE QUEEN v. REV. H. GNANASEEHA THERO and 21 others

034-NLR-NLR-V-73-THE-QUEEN-v.-REV.-H.-GNANASEEHA-THERO-and-21-others.pdf


154
The Queen v. Gnanasccha Thero and others
[Tkjal-at-Bab]
Present: G. P. A. Silva, S.P.J. (President), Siva Supramaniam, J.,and Tenneioon, J.THE QUEEN v. REV. H. GNANASEEHA THERO and 21 Others8. G. 66167 {Western Circuit)-—M. O. Colombo, 34638IAEvidence—Confession—Burden of proof on prosecution to establish that it teas madevoluntarily—Circumstances affecting voluntariness of confessions—EvidenceOrdinance; as. 17 (2), 21, 21, 25, 26, SO, 104, 136—Power of a Magistrate torecord confessions under s. 134 of Criminal Procedure Code—Requirementthat proceedings should already have commenced in a Magistrate’s Court—Inadmissibility of statements recorded prematurely—Criminal Procedure Code,ss. 122 (3), 126A, 129, 133, 134, 14S (1) (a) to If), 149 to 151, 156, 289 (J)—Emergency Regulations—Preventive detention thereunder—Illegality of detentionbefore service of detention order.
(i) When an alleged confession of an accused person as defined' in section17 (2) of the Evidence Ordinance is sought to be admitted in evidence against' him by the prosecution, tho burden is on the prosecution to establish thatthe making of tho confession was voluntary in tho sense that it was not causedby any inducement, threat or promise mentioned in section 24 of the EvidenceOrdinance.
When considering whether confessions inado by accused persons to aMagistrate in terms of section 134 of the Criminal Procedure Code were -free and voluntary, not only facts preceding the confessions but also factswhich immediately followed the making of thoTconfessions are relevant. In the –
. present case, the circumstances of the arrest, detention incommunicado andquestioning of the accused by the police while they were under preventive• detention under Emergency Regulations, the long duration of the interrogations,
The Queen v. Gnanaseeha Thero and others
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tbo existence of signed statements in the hands of the police, the unusual natureof the custody and tho other unusual features that preceded tho productionof tho accused before the Magistrate were factors that should havo warned theMagistrate of tho need to probo much further than being content with thenormal questioning by him in a straightforward case. Furthermore, the circum-stance that during tho time allowed for reflection and after tho confessionswere recorded, the accused were not in judicial custody but were sent bockto tho custody of prison officers and polico officers could also have a bearingon tho question of tho voluntariness of tho confessions made by tho accused.
(ii) Section 134 of tho Criminal Procedure Code provides inter alia as follows :—
“ Any Magistrate may record any statement made to him at any time
before tho commencement of an inquiry or trial."
Held, that section 134 can bo acted upon by Magistrates only after commence-ment of proceedings in a Magistrate’s Court and before tho commencement ofan inquiry or trial in those proceedings. A Magistrate has no power to recordstatements (confessional or otherwise) at a stage prior to the institution ofproceedings in a Magistrate's Court in any of the forms stated in section14S (1) of tho Criminal Procedure Codo. Accordingly, where, during a State ofEmergency declared and continued under tho Public Security Act, persons whoare suspected of conspiracy to overthrow the Government (a non-cognizableoffence) are taken into preventive detention under tho Emergency Regulations,a Magistrate has no power to record in terms of section 134 of tho CriminalProcedure Code statements made by the suspects while they are still in thecustody of police officers under detention orders and prior to tho commencementof proceedings against them in a Magistrate’s Court.
Held further, that confessions which a Magistrate purports to record undersection 134 of tho Criminal Procedure Codo at a time when no proceedingshave commenced before a Magistrate’s Court are inadmissible in evidenceagainst the accused.
Obiter : Preventive detention of a person under tho Emergency Regulationsbefore the service on him of the detention order is illegal.
OllDER made, ill the course of a Trial-at-Bar before three Judgesand Jury, in regard to the admissibility in evidence of certainconfessions.
A. C. 31. Ameer, Q.C., Attorney-General, with L. B. T. Premaratne,Deputy Solicitor-Genera], I". S. A. Pullenayegum, Crown Counsel,A. C. tie Zoysa, Crown Counsel, Batijit Abeysuriya, Crown Counsel,and 1 Yukeley Paul, Crown Counsel, for the Crown.
Colvin B. de Silva, with K. C. de Silva, C. D. S. Siriicardena,
U.L. Karawita, Ilemachandra Perera and assigned Counsel Beil Dias,for tho 1st accused.
G. D. C. Weerasinghe, with assigned Counsel 3Iiss 31. V. Barr Kumara-kulasinghe, for the 2nd accused.
Colvin B. de Silva, with II. 31. Jayatissa Herath and assigned CounselMiss A. P. Abeyratne, for the 3rd accused.
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The Queen i>. Gnanasccha Thero and others
Neville Samarakoon, with Felix DiasBandaranaikc, Nihal Jayawickrama*Tissa Wijeratne, Anil Obeysekera and Percy Karuttaralne, for tho 4thaccused.
i
Malcolm Perera, with P. O. Wimalanaga, R. Weerakoon and assignedCounsel M. de S. Boralessa, for the 5th accused.
T. P. Rajapakse, with P. A. D. Samara-sekera, Upali de Z. Guna-icardena and assigned Counsel B. B. D. Fernando, for tho 6th accused.
G. Mendi-s, with A. B. A. Mediwaka and assigned Counsel A. E. H.Sandaralne for the 7th accused.
Tudor Siriwardena, with JVasudeva Nanayakkara and assigned CounselPremachandra, Perera, for the Sth accused.
Anil Moonesinghe, with Tudor Siriwardena, Wasudeva Nanayakkara.and assigned Counsel J. L. Fernando, for the 9th accused.
Tudor Siriwardena, with Harischandra Mendis, Gemunu Seneviratne,
Q.P. S. Fernando and assigned Counsel K. A. P. Rajakaruna, for the 10thaccused.
R.Weerakoon, with Asoka Gunasekera and assigned Counsel M. H.Jayasinghe, for the 11th accused.
Nihal Jayawickrama, with assigned Counsel Mohamed Nassim, forthe 12th accused..-
Anil Obeysekera, with assigned Counsel Dharmasiri Jayawickrema, for. the 13th accused."
D. IF. Abeyakoon, with Harischandra Mendis, Gemunu Seneviratne,Vernon Gooneratne and assigned Counsel G. M. Samaraweera, for the 14thaccused.
– '.Percy Karunaratne, for the 15th accused.
v_ B. Weerakoon, with Asoka Gunasekera and assigned Counsel D. P. S.Gunasekera,, for the 16th accused.
Saralh Muttetuwegama, with assigned Counsel K. Thiraiiagama, forthe 17th accused.
.'17.; B. Weerasekera, with assigned Counsel A. IF. Athukorala, for the.18th accused.- '
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Stanley Tillekeratne, with Harischandra Mendis and assigned CounselA. L. M. Hediyanthilaka, for the 19th accused.
Prins Gunasekera, with K. Thiranagama and assigned Counsel P. T.Fernando, for tho 20th accused.
Nxhal Jayawickrama, with assigned Counsel P. Illayperuma, for the21st accused.
Mangala Moonesinghe, with Jayatissa Heralh and assigned CounselMiss C. M. M. Karunaratne, for the 22nd accused.
Cur. adv. milt.
Octobor 7, 1968. ORDER OF COURT—
At tho commencement of the trial of this case the learned Attorney-General brought to our notice that there was a matter on which he wishedto obtain a ruling from us before opening the prosecution case to the Jury,as ho anticipated objection by the defence to any reference to this matterby him in his opening address. The Jury was therefore directed to retireat this stage to enable the Attorney-General and tho respective counselfor the defence to make their submissions on this-matter in their absence.Tho submission made to ns by tho learned Attorney-General thereafterwas that the prosecution intended to place before the Jury as part of itscase a series of confessions made to the Magistrate by nine of the twenty-two accused and recorded by him in tho purported exercise of powersunder Section 134 of the Criminal Procedure Codo sometime before theinstitution of proceedings in the Magistrate’s Court. After considerableargument on tho submission of the Attorney-General that he could dis-charge the burden that lay upon him by reliance upon the presumptionunder Section 80 of the Evidence Ordinance to provo voluntariness of theconfessional statements, he agreed to a request made by Dr. Colvin R. deSilva on behalf of the accused to abandon his original position and to callevidence to establish the voluntary nature of the confessions. As nearlyall the witnesses that would have to be called for this purpose had notbeen called in the lower Court, and were not on the list of witnesses at theback of the indictment, the Attorney-General was directed to furnish tothe defence tho names of all tho witnesses who would be called in thisregard together with a short statement of the nature of the evidence eachof them would give.
The impression that this Court formed at tho time was that theAttorney-General agreed to lead such evidence as was necessary tosatisfy the Court affirmatively of tho voluntariness of the confessions.A considerable volume of evidence was led on behalf of tho prosecutionconsisting of the evidence of the Magistrate who recorded tho confessionsand all those concerned in the taking into custody and interrogation ofthe respective accused prior to and immediately after the making of the
153ORDER OF COURT—The Queen l>. Guanasttha The to ami others
confessions. On the side of the defence tho only evidence led was thatof the 1st accused. At the stage of the addresses the counsel for theconfessing accused made their submissions to Court on the basis that• the onus of establishing voluntariness was on the prosecution. Thelearned Acting Solicitor-General who first addressed us on this amongother aspects of tho case informed us that the position of the learnedAttorney-General was that although he has acceded to the request ofDr. Colvin B, de Silva to place before Court all the prosecution evidencerelative to the confessional statements, tho prosecution was entitledunder section 21 of the Evidence Ordinnnco to lead evidence of anyavailablo confession and that the burden was on the defence if it wishedto exclude the confession under Section 24 to placo such evidence aswould make it appear to Court that such confession was not a voluntaryone…
It becomes necessary, therefore, to examine the nature of theburden, if any, that is upon the prosecution and/or defence when analleged confession of an accused person is sought to be admitted inevidence.
Under the English Law, tho rule is now well settled that theprosecution should prove affirmatively that the confession was free andvoluntary. Lord Sumner, in delivering the Judgment of the PrivyCouncil in Ibrahim v. Rex 1 said ;
“ It has long been established as a positive rule of English CriminalLaw that no statement by an accused is admissible in evidence againsthim unless it is shown by the prosecution to have been a voluntarystatement, in the sense that it has not been obtained from him eitherby fear of prejudice or hope of advantage exercised or held out by aperson in authority. The principle is as old as Lord Hale. Theburden of proof in the matter lias been decided by high authority inrecent times in Regina v. Thompson. (1893) 2 Q. B. 12. ”.
.6. It has been submitted by the learned Acting Solicitor-General
that the law applicable in Ceylon which is laid down in tho EvidenceOrdinance, Cap. 14 (referred to hereinafter as the Ordinance) is differentfrom the English Law and imposes no such burden on the prosecution.
Section 17 (2) of the Ordinance defines a confession as '■ an.admission made at any time by a person accused of an offence stating. or suggesting the inference that he committed that offence. ” UnderSection 21 “ admissions arc relevant and may bo proved as against the
person who makes them…”. Section 24 provides as follows :— “A
confession made by an accused person is irrelevant in a criminal proceeding. if the making of the confession appears to the court to have been caused-by any inducement, threat, or promise having reference to tho charge; against the accused person, proceeding from a person in authority, or; proceeding from another person ini the presence of a person in authority –
1 {2914) Appeal Cases 5S9.
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nnd with his sanction, and which inducement, threat, or promise issufficient in tho opinion of the court to give the accused person grounds,which would appear to him reasonable, for supposing that by making itho would gain any advantage or avoid any evil of a temporal nature inrcfcrcnco to the proceedings against him. ”
It is argued that a confession, being a species of an admission,can bo led in evidence by the prosecution under Section 21 and it is forthe party who contends that the confession is irrelevant by reason of theexistence of any of the circumstances referred to in Section 24 to placebefore the Court evidence which would make it appear (not necessarilyprove) that such circumstances exist. Sections 21 and 24 of the Ordinanceare in identical terms as tho correspondiug sections of trio Indian EvidenceAct. Tho learned Acting Solicitor-Gcnreal relied on ccrtaiii decisions oftho Indian Courts in support of his argument.
In the case of Queen Empress v. Basvantha and others 1Fulton J. (Batty J. agreeing) said: “To require, as the criterion ofadmissibility, affirmative proof that a duly recorded and certifiedconfession was free and voluntary, would not, in our opinion, bo consistent.with tho terms of Sections 21 and 24 of tho Evidence Act. ”
A similar view was expressed by Horwill J. in lit re Boya ChinnaPapanna – where he said : “ The wording suggests that unless it appearsto a Court that an inducement, threat or promise was held out by apersou in authority, a confession would be relevant under Section 21of the Evidence Act without any formal proof of tho voluntary natureof tho statement. ”
This view, though followed in certain other cases as well, has notbeen uniformly adopted by the Indian Courts. Papanna’s case (supra)had been referred to Horwill J. owing to a difference of opinion on thefacts between Wadsworth J. and Somayya J. who originally heard thecase. On the question whether the prosecution should establish bypositive evidence the voluntariness of a confession, Wadsworth J.expressed no opinion but Somayya J. after referring to the Euglish rulelaid down in Ibrahim v. Rex (supra) stated as follows :—
“ In India, however, the question is put more elaborately in Section24. The question that arises under Section 24 is whether it is really onthe prosecution to prove that the circumstances mentioned in Section24 do not exist or whether it is upon the accused to prove that the rankingof the confession was caused by inducement, threat or promise. It is nodoubt true that the burden of proving facts which arc specially withintho knowledge of a person may be. thrown upon him but having regardto the well known principle of Criminal Jurisprudence recognised inIbrahim v. The King, I have no reason to doubt that what the IndianLegislature attempted to enact more elaborate^ in Section 24 EvidenceAct is that a Court must be satisfied before admitting a confession that1 {1901) I. L. /?. 2d Bombay 1GS.
* {1942) 43 Criminal Law Journal 346 at p. 332.
ICO
ORDER OF COURT—The Queen t>. Gnanasccha Thero and others
: it is free from ail taint. The wording of Section 24 is ‘ if it appears to theCourt to hare been caused by inducement, threat, etc. a confession isirrelevant It is not' if it is proved to have been eaused by inducement,
: threat or promise *. As' pointed out in Emperor v. Panch Kavi Dutt(A. I. R. 1925 Calcutta 5S7) the Indian Legislature has deliberately usedthe expression ‘ if the making of the confession appears to the Court 'and not * if it is proved to the satisfaction of the Court Therefore, if -the Court has any reason to doubt the free and voluntary nature of theconfession, then it is for the prosecution to prove that it was madewithout any of the inducements, threats or promises mentioned in thissection. ”
In the case of Bala Majhi v. State of Orissa 1 Chief Justice Ray-stated :-
" In considering the admissibility of a confession there is a simpletest which can always be employed. The Court will address itself tothe question * Is it proved affirmatively by the prosecution that theconfession was free and voluntary ? that it was not preceded by any.inducement, threat or promise held out by a person in authority : if so,whether the effect of the inducement, threat or promise had clearly'been removed before the statement was made. In that case and thatcase alone, the evidence of that statement is admissible. The burdenof proof always lies on the prosecution. ”
In the same case, however, a contrary view was expressed byDas J. who said :
“ The terms in which Section 24 Evidence Act is couched seem toindicate that in the case of an ordinary confession, there is no initialburden on the prosecution to make out the negative, viz., that , the' confession sought to be proved or admitted is not vitiated by the. circumstances stated in the section. ”
The same learned Judge however proceeded to state as follows
" It is the right of the accused to have, the confession excluded andequally , the duty of the Court to exclude it even ‘suo motu * if thevitiating circumstances * appear ’. ’’
We were also referred by the learned Acting Solicitor-General to ’the case of Pyare Lai Bhargave v. The Stale of Rajasthan decided by the' Supreme Court of India 2. In that case, the Supreme Court consideredthe meaning of the word “ appears ” in Section 24 and the standard ofproof expected, but did not examine the question as to the party on whomthe burden lay. That case therefore is not helpful for the decision of the .point now under consideration.
1 ;1 AJ.R. {1951) Orissa 168 atp. 170. * A.I.R. {1963) S. C. Vol. 50, p. 1094.
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Section 136 of the Ordinance provides as follows :—
“(1) When either party proposes to give evidence of any fact, theJudgo may ask the party proposing to give the evidence in what mannerthe alleged fact, if proved, would be relevant; and the Judge shalladmit the evidence if he thinks that the fact, if proved, would borelevant, and not otherwise.
(2) If the fact proposed to be proved is one of which evidence isadmissible only upon proof of some other fact, such last-mentionedfact must be proved before evidence is given of the fact first mentioned,unless the party undertakes to give proof of such fact, and tho courtis satisfied with such undertaking. ”
Under this section, the Court would admit the evidence only if the fact(namely, the confession) if proved, would be relevant. Since sections 24,25 and 26 of the Evidence Ordinance make it plain that it is not everyconfession that is relevant against an accused person, a prosecutor pro-posing to give evidence of a confession can discharge his duty of showingthat it is relevant only by showing that it is a confession that does notfall into the category of irrelevant confessions; and the effect of sub-section 2 of section 136 coupled with section 104 of the Evidence Ordinanceis that the burden of proving facts necessary to show that the confessionis not irrelevant would fall on the prosecutor. We are unable to accepttho contention of the Crown that the words “if the making of theconfession appears to the Court ” can be made the basis of any inferencethat tho burden is on the accused accompanied as it is by the corollarythat that burden can be discharged not by ‘‘proof” as known to theEvidence Ordinance but by a standard much short of proof and so insub-stantial ns to pass our understanding. Viewed from this angle, theburden that lies on the prosecution under our law is no different from thatimposed on the prosecution under tho English Law. Wo arc in respectfulagreement with tho view expressed by Gajendragadkar J. (later ChiefJustice of India) in Rangajrpa v. Slate1 that “the effect of Section 24 isthat before a confession becomes relevant it must be shown that it is notcaused by inducement, threat or promise as mentioned in that section. ”This is in accord with the view that has been consistently taken by ourCourts in earlier cases. In Rex v. IVeerasamy 2 Socrtsz J. ruled that thoCrown must establish the relevancy of the confessions by leading someevidence to show that they were made voluntarily. In The Queen v.Marlin Singho 3 the Court of Criminal Appeal stated :
" That fact (i.e., the voluntariness of a confession) has to bo deter-mined at the trial when it is sought to prove the confession in evidence.In such a case the burden is on the prosecution to prove beyond reason-able doubt facts necessary to make the confession not irrelevant underSection 24. ”
‘ A.I.It. 1054 Bombay 235 at p. 2S0.*{1941) 43 N. L. R. 152.
* {1964) 66 N. L. R. 391.
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In The Queen v. Kalimullu.1 the Court of Criminal Appeal observed :
“It seems to us, however, that the better course for a Judge tofollow … would be to direct the Jury that the burden lay on
the prosecution to prove beyond reasonable doubt that a confessionput before them in evidence had been voluntarily made.”
The learned Acting Solicitor-General submitted that in Rex v.Franciscu Appuhamy 2 Wijeycwardene J. (as he then was) had taken acontrary view as he had called upon the accused to lead his evidencewhen objection was raised by the defence to the admissibility of aconfession by the accused. The question whether the burden lay on theprosecution or not to establish voluntariness was neither raised norconsidered in that case. We cannot therefore regard that case as anauthority for the proposition that under Section 21 of the Ordinance, theburden lies on the accused to show that tin confession is irrelevant. Howas unable to cite any other instance in our Courts where an- accusedwho objected to the admissibility of a confession was called upon to place• his evidence first in support of his objection.
. 16. We shall now proceed to consider whether the prosecution haddischarged the burden that h'es upon it.
17. The facts leading up to the making of the alleged confessions arethese. On the Sth of January, 19G6, as a result of some prevailingdisturbances, a State of Emergency had been declared in Ceylon underthe Public Security Act; this State of Emergency was made continuousby means of repeated monthly Proclamations under the said Act. Onthe 17th of February, 1906, in consequence of some information received .by the Police relating to “ a conspiracy to overthrow tire Government ”one Mr. Chandrasoma was questioned by the Inspector-General of Police(whom we shall hereafter refer to as I.G.P.), the Superintendent of Police,Criminal Investigation Department, Special Branch, Mr. AnandaSeneviratne (whom we shall hereafter refer to as the S.P., C.I.D.) andInspector Kandiah also of the C.I.D. In view of certain informationdisclosed m Mr. Chandrasoma’s statement, the S.P., C.I.D., looked for the• 1st accused, Henpitagedara Gnanaseeha Thero on this very day, firstat the International Buddhist Centre, Wellawatte, and thereafter atItatmapura and Pathakada where the 1st accused had his temple. Notfinding him there the S.P., C.I.D., instructed Mr. Thalayasingham,Superintendent of Police, Ratnapura, to keep him under surveillanceand returned to Colombo.. On the orders of the I.G.P. a statement wasalso recorded from Mr. N. Q. Dias, a retired public officer who had beenPermanent Secretary, Ministry of Defence and External Affairs, under. the previous Government and who, along with the 1st accused, wouldappear on the evidence to have been greatly interested in Buddhistactivities among public servants and service personnel. The Police keptalert after this information from Mr. Chandrasoma and, about a week■' (1966) 69 N. L. R. 349 at p. 352.'(1941) 42 N. L. R. 553.
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later, on the 2oth February, they obtained the “ first chic ” to the allegedconspiracy from one Nalawamsa whose statement, the contents of whichhave not been placed before this Court, was recorded. On the 3rd March,some further information was communicated to the Ministry of Defenceand External Affairs by one AVickrcmascna, an Army Officer who calledon the Assistant Secretary, Mr. Nancdiri, in the company of two otherArmy Officers Mcttannnda and Wickrcmapala. This information waspassed on to the I.G.P. and on the 4th March, the investigation of thematters contained in this information was placed in the hands of theSpecial Branch of the Criminal Investigation Department. On this dayitself, on the orders of the Permanent Secretary, S persons belongingto the Army including the Gth accused Amaratunga and 7th accusedHondamuni, Sth accused Bandara, 9th accused Mayadunna, and 21thaccused Sirisena were brought to the Special Branch and, after beingquestioned, were placed under preventive detention under Regulation 26of the Emergency Regulations then in operation. The PermanentSecretary had wide powers under these regulations and, it was in thepurported exercise of these powers that the detenues were precluded fromhaving access to friends and relatives or lawyers and were also broughtup for questioning by the Police to the Headquarters of the C.I.D. on the4th floor of the New Secretariat and the Technical Branch without anyspecific provision of law which empowered such a course.
18. It will bo convenient at this stage to set out the circumstancesof tho taking into custody, detention, and questioning of the respectiveaccused who made confessions in tho cluonological order in which thoconfessions were recorded.
Gth accused Amaratunga
26.2.GG A statement was recorded by Inspector Wijosuriya in thoSpecial Branch of the C.I.D. after the recording of Nalawansa's,statement.
4.3.G6 At about 5 p.m. produced by an Army Officer before tho S.P.,C.I.D., and questioned by InspcctorWijcsuriya who recordeda statement, and a detention order served thereafter, and sentto detention at the Magazine Prison.
Brought- to tho C.I.D. Headquarters at his own requestat about 12 noon. About 2.30 p.m. produced beforo tho
S.P., C.I.D., by Inspector Knndinh. Inspector Kandiah was'directed by S.P. to record his statement. He asked InspectorKandiah whether he would bo given a pardon if ho came outwith tho full facts, and was told that a pardon could not begiven. He was taken beforo the S.P., C.I.D., who himselfsaid that ho had no power to offer such a pardon and was senthack to detention.
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ORDER OF COURT—The Queen v. Gnanaseeha Thcro and others
S.P., C.I.D., requested the Permanent Secretary to theMinistry of Defence and External Affairs to send the 6thaccused for interrogation to tho C.I.D. office, where he wasinterrogated by Inspector Wecratunga of the C.I.D. andInspector Rahula Silva, Officcr-in-charge of the BeliattaPolice, and Sub-Inspector Senanayako of the C.I.D. Theinterrogation commenced at about 6 p.m. and was continuedtill morning of the 12th.
About 8 a.m.—The interrogating team reported to S.P., C.I.D.,what tho 6th accused had stated. S.P., C.I.D., made arrange-ments to tape record his statement.
a.m. to 10 a.m.—Inspector Kandiah took charge of tho6th accused and interrogated him again. 6th accused there-after made a statement which was simultaneously reduced to• writing and recorded on tho tape recorder.
7 p.m.—The statement which ran into about 23 pages of type-script was concluded. The signature of the 6th accused wasobtained at the top and bottom of each of the 23 pages of thetypescript, and he was thereafter asked by Inspector Kandiahwhether he desired to make the statement to the Magistrateto which he agreed.
p.m.—He was taken to the Magistrate’s Bungalow byInspector Weeratunga, and was produced before tho Magistrateby S.P., C.I.D., who had arrived independently. The Magis-trate after some preliminary questioning gave him time forreflection and remanded him to the Magazine Prison.
9 a.m’. He was produced before the Magistrate who commencedrecording the confession.
p.m.—The statement was concluded and he wasthereafter taken back to the New Magazine Prison.
He refused his meals alleging that he wished to see the C.I.D.officers urgently as he had been promised to be sent home forthe New Year. Assistant Superintendent of Prisons Mr.Jordon endeavoured to contact S.P., C.I.D., on the telephoneto convey this information but failed to contact him.
Up to this day he continued to refuse meals.
He was transferred to Hulftsdorp detention barracks fromwhere he wrote a letter to the Permanent Secretary, Ministryof Defence and External Affairs, through the Commanderof the Navy requesting that some arrangement be madeimmediately to produce him before the C.I.D., and seeking
ORDER OF COURT—The Queen v. Gnanaeeeha There and others185
some special protection to his wife and children who weresupposed to be undergoing some “ hindrances ” from theneighbouring people.
About 8.30 a.m. He was brought to the Technical Branch ofthe C.I.D. and interrogated by Inspector Kandiah for about1 or 1| hours and a statement running into 11 to 13 pageswas recorded. His signature was obtained as before and hewas asked whether he desired to make another statement tothe Magistrate and he again agreed.
8.30 p.m.—He was produced before the Magistrate by Sub-Inspector Etin and procedure similar to the earlier occasionwas followed by the Magistrate.
3 p.m.—He was produced before the Magistrate and a furtherconfession was recorded.
7th accused Hondamuni
He was brought to the Special Branch along with the 6thaccused and other Army officers on the orders of the PermanentSecretary. A statement was recorded by Inspector Wijesuriyaand detention order was served thereafter and he was sentinto detention at the Magazine Prisons.
At the request of the C.I.D. he was produced at the C.I.D.Headquarters sometime in the evening. 10 p.m. to 1 a.m.on 13.4.66—Interrogated by Weeratunga, Rahula Silva, andSenanayake. The interrogation being “ unsuccessful ” he wassent back into detention.
Brought back from detention to the C.I.D. Headquarters.11.40 p.m.—Taken up for interrogation by Weeratunga,Rahula Silva and Senanayake. The tape-recorded statementof the 6th accused was played back to him for about an hourafter which the 7th accused requested the interrogators to Btopplaying the tape and came out with the facts.
6 a.m.—The interrogation was concluded.
a.m.—Inspector Weeratunga reported to the S.P.,C.I.D., the successful interrogation and the S.P. questionedhim from about 9 to. 10.30 a.m., and started recording hisstatement at about 1.30 p.m. He went on till 6.45 p.m. andafter a break resumed recording the statement at 10.30 p.m.
!•••—J 15020(7/70)
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ORDER OF COURT—The Queen v. Gnanasceha Thcro and others.
S.P. concluded the 7thaccused's statement at G a.ra. .
8 a.m.—He was produced before the Magistrate and afterpreliminary questioning he was sent into remand forreflection.?
7 p.m.—Ho was produced before the Magistrate whocommenced recording his statement.
3 a.m.'—Magistrate concluded recording the statement.
2.37 p.m.—7th accused was produced at the C.I.D. OfficeTechnical Branch at the request of the S.P., C.I.D. He wasnot questioned for want of time.
7th accused addressed a letter X5 to the Permanent
Secretary to the Ministry of Defence and External Affairsrequesting that he be taken to the C.I.D. “ to give anurgent statement about the coup ”.j
9.30 a.m.—7th accused produced before A. S. P. Kandiah ifaregard to his letter of 28.4.66. He was questioned for ljhours but no statement was recorded as he had nothing ofimportance to say.
16th accused Koralage
Produced at the C.I.D. Headquarters by the Army Autho-rities at the request of the S.P., C.I.D.—made a statement toInspector Wijesuriya for about 3 hours. He was kept at theC.I.D. Headquarters till morning of the 16th.
12.15 p.m.—He was taken charge of by Inspector Fareed.
p.m.—Taken to Panagoda to search his house.f
p.m.-—Brought back to the C.I.D. Headquarters.
10.40 p.m.—Interrogated by Inspector Fareed and a statementrecorded.
2.36 a.m.—Inspector Fareed completed recording, hisstatement.
a.m.—He volunteered a further statement which wasrecorded by Fareed till 11.55 a.m.
p.m.—Volunteered a further statement which was. recorded. This statement was in Sinhala which was
translated by Fareed to English and was typed by P. C.Hatnapala. It was completed afc 10.45 p.m. ■-f
Detention order served in the morning and sent to detention
at Hulftsdorp detention barracks..•
p.m.—Produced before the Magistrate who after pre-liminary questioning sent him back to the same detention -barracks for reflection.
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167
9.45 p.m.—Produced by Naval Authorities before theMagistrate to record the confession.
12.45 p.m.—Magistrate completed recording the statement.
16th accused addressed a letter X12 to the PermanentSecretary to the Ministry of Defence and External Affairsstating that in his earlier statement to the Magistrate he hadforgotten to mention “ certain things which will be veryimportant to his defence and the case ” and requestedthat ho be given another chance to mention these to theMagistrate.
As a result of the letter of 1st May, 16th accused wasquestioned by A.S.P. Kandiah and Wijesuriya andstatement recorded by YVijesurij-a which was signed by the16th accused.
16th accused was produced before the Magistrate at hisbungalow by the Naval Authorities. After preliminaryquestioning the Magistrate handed over the 16th accused tothe Prison Authorities and directed them to produce him at6 p.m. on 13.5.66.
6 p.m.—-16th accused was produced before the Magistrate,and his statement recorded.
p.m.—Statement concluded and 16th accused sent backto the detention barracks at Hulftsdorp.
1st accused Henpilagedara Gnanaseeha Thero
Detention Order in respect of 1st accused issued byPermanent Secretary, Ministry of Defence and ExternalAffairs, with place of detention mentioned as New MagazinePrison.
p.m.—-Inspector Farced took him into custody atMudduwa Temple. 11.45 p.m.—Brought to Technical Branchby Inspector Farced.
10.30 a.m.—S.P., C.I.D., started questioning.
6 p.m.—Completed recording of statement.
p.m.—Produced before the Magistrate who remandedhim to New Magazine Prison after the preliminary questioning.
7.30 a.m.—Statement recorded by the Magistrate.
a.m.—Statement concluded.
1st accused addressed letter to Chairman, Advisory Committee,objecting to detention.
Statement recorded by Chairman, Advisory Committee, atthe Magazine Prison.
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ORDER OF COURT—The Queen v. Gnanasttha Thera.and others
16th accused—JJatincatte.
Produced at C.I.D. Headquarters by Army Authorities atthe request of S. P., C.I.D. Made a statement to InspectorAttained. W as kept at C.I.D. Headquarters (ill 16thApril.
12.15 p.m.—Taken charge of by inspector Farced.
p.m.—Taken to Pauagoda by Inspector Farced to searchthe home. 10.15 p.m.—Brought back to C.I.D. Headquarters.
3 p.m.—Inspector Farced recorded statement.
8.55 p.m.—Recording of statement concluded.
Inspector Kandiah served detention order in llio morning and
6cnt him to detention barracks at Hulflsdorp.
5 p.m.—Produced before Magistrate who, after preliminary
questioning, 6ent him on remand to the Magazine Prison.
9. a.m.-ll a.m.—Statement recorded by the Magistrate.lllh accused—Sirisena.
Taken into detention along with 6th and 7th accused amongothers. Statement recorded.
11th accused wrote letter to Permanent Secretary, Ministry
of Defence and External Affairs, to provide an opportunityfor him to meet his Commanding Officer and ArmyCommander.
Produced at C.I.D. Headquarters.
Met Army Commander in the presence of S.P., C.I.D.
9.50 p.m.—Inspector Mahat started recording his statement.
2.15 a.m.—Concluded recording his statement. Sent back to
Hulftsdorp Detention Barracks in the morning.
19.4.6J 11.30 a.m.—Produced before Magistrate who, after preliminaryquestioning, remanded him to Magazine Prison.
8.30 p.m.—Magistrate started recording statement.
12 midnight—Concluded statement.
8th accused Bandara
Taken into detention along with 6th, 7th and llth accusedamong others.
Brought to the C.I.D. Headquarters.
Sent back in the morning—not questioned.
ORDER OF COURT—The Queen v. Gnanaaeeha Thero and others
169
2.20 p.m.—A.S.P. Kandiah took charge of Sth accused and began
interrogation.
5 p.m.—Started recording statement.
5.30. a.m.—Statement concluded.
S.30 a.m.—Produced before Magistrate who, after preliminary
questioning, remanded him to Magazine Prison.
p.m.—Magistrate started recording statement.
3.30 a.m.—Statement concluded.
9th accused Mayadunne
Taken into detention along with 6th, 7th, Sth and 11th accused.
Brought to C.I.D. Headquarters.
Sent back in the morning without interrogation.
10.30 a.m.—Produced at the Technical Branch, C.I.D., and taken
charge of by A.S.P. Kandiah, and statement recorded.
p.m.—Statement concluded.
p.m.—Produced before Magistrate who, after preliminaryquestioning, remanded him to Magazine Prison.
8.30 p.m.—Magistrate started recording statement.
1a.m.—Statement concluded.
3rd accused Wickremasinghe
3rd accused appeared at Kurunegala Police Station with the
father. Taken by Kurunegala Police to Colombo.
p.m.—Produced at Fort Police Station and locked up.
7.45 a.m.—3rd accused produced before S.P., C.I.D., at the
Technical Branch.
8.30—10 a.m.—3rd accused interrogated by InspectorWijcsuriya.
a.m.—Inspector Wijesuriya started recording thestatement.
p.m.—Statement concluded and 3rd accused sent back todetention.
3rd accusod sent communication through Permanent Secretary,Ministry of Defence and External Affairs, to Chairman,Advisory Committee, requesting him to make arrangementsfor him to make a statement to Magistrate as early aspossible.
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ORDER OF COURT—The Queen v. Onanateeha Thcro and others
8.34 a.m.—3rd accused produced by Lt. Andreas of tho Navybefore the Magistrate who, after preliminary questioning,remanded tho 3rd accused to Magazine Prison.
p.m.— Magistrate started recording statement.
p.m.—Statement concluded.
A few observations are called for at this stage in regard to thecustody of the 1st, 3rd, 15th and 16th accused until tho service of thodetention orders. In the case of tho 1st accused, even according to thoprosecution, the detention order authorising him to be taken into preven-tive detention under the Emergency Regulations (and not in respectof any offence) was served after his statement was recorded by the S.P.at the Techincal Branch on the 17th evening, while according to the1st accused it was served much later at the Magazine Prison some timeafter he was taken for detention. It is not tho position of the Crownthat he was taken into custody at Pathakade on the 16th in pursuance ofany powers conferred by tho Criminal Procedure Code, the offence, evenif it is the one appearing in the indictment, being non-cognizable andtherefore not one empowering a Police Officer to arrest a person suspectedthereof without a warrant. It was only sought to bo argued that thocustody of the 1st accused was at the relevant time legal because theofficer who took him into custody, Mr. Fareed, was armed with thedetention order even though it was not served on him and even thoughthe 1st accused was not informed of its existence. This is not an argu-ment that one can accept. Tho liberty of the subject is a sacred rightthat courts of law have to safeguard and the least that a police officerwho interferes with that right can do is to inform a person arrested of thereason therefor and no court should countenance a police officer acting incontravention of that requirement. This question was considered in thecase of Corea v. the Queen 1 by Gratiaen J. who expressed himself in thefollowing terms :—“ I have given most anxious consideration toMr. Chitty’s argument, and am very glad to re-affirm my conviction thatin this country (as in England) a police officer who arrests private citizenswith or without the authority of a warrant is equally obliged to notifytho arrested person of tho reason for interfering with his personalfreedom. A recognition of this fundamental rule (which owes its originto the English common law) is demonstrably implicit in the scheme ofour Code.” In stating this proposition he had tho authority of a Houseof Lords Case, Christie v. Leachinsky 2 in which Lord Simon observed,
“ Tho matter is one of substance, and turns on the elementary propositionthat in this country a person is, prima facie, entitled to his freedom andis only required to submit to restraints on his freedom if he knows insubstance the reason why it is claimed that this restraint should beimposed.”
In regard to the 3rd accused too a similar criticism can be made.
He surrendered at the Kurunegala Police because he learnt that he waswanted. But although, the Kurunegala Police was not armed with a.1 (1954) is N. L. R. 457.*1947 A. O. 573.
ORDER OF COURT—The Queen v. Gnanaeeeha Thero and others
171
warrant of arrest or a detention order nor had a right to arrest himwithout a warrant, ho was brought to Colombo and locked up in a celltill he was produced before the S.P., C.I.D. Similarly in regard to the15th and 16th accused too their detention in tho C.I.D. Headquartersfrom the evening of the 13th till the morning of the 16th was not inpursuance of any warrant of arrest or in pursuance of a right of arrestwithout a warrant and not after the service or communication of thecontents of a detention order. In each of these cases we are of the viewthat tho detention until the service of the detention order was illegal,although of course, this illegality did not have a significant bearing onthe voluntariness or otherwise of their confessions.*>'
According to the evidence of the S.P., C.I.D., the investigation ofthis alleged offence imposed too heavy a burden on his existing staff andhe was compelled to requisition the services of some investigators fromtho outstations. His choice fell on Inspector Vittachchi, Sub-InspectorGnanadasa, Inspector Rahim, Inspector Egodapitiya and InspectorRahula Silva. Various allegations have been made by the defence inregard to some of these new arrivals. So far as the first three of theseare concerned no special charge has been made. As regards the fourthofficer, Egodapitiya, it was alleged that his conduct in obtainingstatements from witnesses had been the subject of certain strictures by thoCourt of Criminal Appeal—this fact being proved by reference to therelevant law report—and that ho was specially summoned to the C.I.D.in order to extract confessions by adopting doubtful methods ofinterrogation. As regards Rahula Silva it was alleged by the defenceand accepted by Inspector Farced, who was his senior in the service,that he was unpleasant and offensive, lacked a human approach towardspeople and had a reputation for assault. As against this the reasongiven by the S.P., C.I.D., for selecting Rahula Silva was that ho had agood reputation as a Police Officer having earned more than 1000 goodentries in nine years and having been commended by courts in certaincases. The S.P. confessed that ho had no personal acquaintance withRahula Silva at any station.
Tho manner in which Rahula Silva was brought down to the C.I.Dfor the purpose of this investigation is one that arouses suspicion. Forwe have it from Inspector Weeratunga that on 10.4.66, he was directedto contact Rahula Silva, Officer-in-charge of Bcliatta Police, and to askhim to report to the C.I.D. without informing his S.P. or A.S.P. On thisvery day Weeratunga went to Bcliatta In his own car, contacted RahulaSilva and brought him to Colombo at about 3.30 a.m. on tho 11th. Beforeleaving Bcliatta, Rahula Silva admittedly made a false entry at the stationto the effect that he was taking four days leave. The evidence of the S.P.,C.I.D., was that the I.G.P. was aware of this move. These circumstancesexposed tho Police to the comment by the defence that Rahula Silva’sarrival had a very sinister significance. The speed with which the orderof the S.P. was carried out without regard to tho distance covered or thohours of the night when Weeratunga had to drive his vehicle are factors
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ORDER OF COURT—The Queen v. Onanasccha Thcro ond others
which suggest grave urgency in obtaining the services of Rahula Silva*On tho morning of the 11th April when Rahula Silva met the S.P.>C.I.D., at about 10.30 a.m. at tho Hoadquartcrs of the Special Branch onthe fourth floor of tho New Secretariat ho was handed over two dossiersto study and was directed to interrogate tho 6th accused Amaratunga' who, it must bo remembered, had requested a pardon not so long ago as acondition of his making a statement. On a request made by the S.P.,C.I.D., tho 6th accused was brought to the C.I.D. Headquarters later inthe day from his detention barracks. Rahula Silva learnt that tho teamof interrogators would consist of Inspector Wccratunga, himself, andSub-Inspector Senanayalco. Rahula Silva studied tho dossiers for somehours and later met Weeratunga and Senanayako and discussed withthem tho lines of interrogation before the 6th accused was brought upbefore them. They also armed themselves with some badges whichwere recovered from a certain house on information and a paper bag inwhich a large number of these badges was found wrapped.
In addition to tho special circumstances and conditions underwhich the confessing accused were questioned, with which we shall deallater, it is important to note that this was the first instance during thisinquiry when there was a clear division of functions in questioning awitness. In fact several senior police officers gave evidence touchingthe general practice of questioning witnesses during police investigationsto the effect that when they were assigned a task of questioning a witnessduring any investigation they would first interrogate the witness toascertain what he knew and thereafter record his statement. This wasthe method adopted by the S.P., C.I.D., regarding the 1st accused. Thepractice of one officer or a team of officers interrogating a w itness andanother recording the statement was not one that generally obtained. Thesuggestion for the defence was what the accused persons who had refusedto make statements earlier were subjected by this team to a softeningprocess after which certain confessions w’ere obtained and that thereafter.- -they were made to repeat these confessions before tho Magistrate.
Another unusual procedure adopted by this interrogating team wasthat the interrogation commenced late in the evening of one day and wascontinued throughout the night. The suggestion that is made by thedefence on this aspect is threefold. It is firstly argued that this timewas deliberately chosen as the fourth floor of the Secretariat at this hourwas completely cut away from the public as every office and shop aroundit would have been closed and this seclusion was eminently suitable for theinterrogators to practise any unlawful method they chose in obtainingconfessional statements. Secondly, the loneliness of the place and thestillness of the hour and the complete helplessness of the interrogatedsurrounded by police officers in whose hands they were mere pawns wouldshatter their moral courage and resistance. Thirdly, the continuedinterrogation over long hours without sleep and perhaps without foodin the night would have broken their-physical resistance. Human naturebeing what it is, these suggestions seem to us to merit serious consideration.
ORDER OF COURT—The Queen v. Gnanaseeha Thero and others
173
We do not wish to be understood to say here that from a practical angleit was quite possible in all the instances when interrogations took place forsuch interrogations to have been conducted during day time. It mayhare been both desirable and necessary to have prolonged interrogationin some instances in order to enable the police to oonduct their investigationproperly in so serious a case. But we find that the interrogations of the6th and 7th accused which resulted in confessional statements werecommenced late in the evening and were carried on throughout the night,although there was no urgency in this instanco such as in the ordinarycase to complete inquiries within a few hours in order to comply with thelaw and produce the person arrested before a Magistrate. The attack madeby tho defence therefore is one that is not without justification and isof the utmost relovancy to the limited question that this court is nowconsidering, namely, whether tho circumstances stated abovo aresufficient to raise a reasonable doubt in our minds as to whether theconfessions made to the police and thereafter to the Magistrate by theseaccused were free and voluntary.
In examining the confessions wc propose to follow as far as possibletho chronological order in which they were recorded. The first confessionin that order was that of the 6th accused Amaratunga. In dealing withhis case it is necessary to keep in the forefront of our mind the fact thathe i3 a person who had asked for a pardon from the S. P-, C.I.D., in orderto come out with the facts and that he was tho first person to be taken upby the interrogating team. The first witness to give direct evidenceregarding this interrogation was Inspector Weeratunga. On morethan one occasion he was questioned by Court as to whether he wasaware that the 6th accused had come before the S.P., C.I.D., on tho 14thof March and asked for a pardon before making a statement and thewitness’ answer.was emphatically in the negative and further that noreference was made to this fact during the protracted interrogation. Itappeared to the court to be highly improbable that the senior member ofthe interrogating team would not have been informed either by the S. P.fC. I. D. or A. S. P. Ivandiah, of this vital fact or that he would not havediscovered this fact from the papers which ho studied before tho com-mencement of the interrogation. Rahula Silva, however, in the courseof his evidence admitted that he as well as the rest of the interrogatingteam knew this fact and that he tried to make use of this fact during theinterrogation. Having regard to the probabilities too we feel compelledto accept Rahula Silva’s evidence and to reject Weeratunga’s evidenceon this point. The attempt by Inspector Weeratunga to conceal thisfact becomes most significant when one considers the suggestion of thedefence made to A. S. P. Ivandiah which of course was not admitted—that it was by making a promise to release him to be home for the Sinha-lese New Year that the 6th accused ■was induced to make the statement' which he did to the Magistrate after his statement was recorded by thePolice on the 12th. The second serious contradiction between theevidence of Weeratunga and Rahula Silva concerned the serving of dinner
174
ORDER OF COURT—The Queen v. Gnanasceha There and others
to (he 6th accused on the 11th night. According to Wccratunga dinnerwas served to him at about S p.m. at the same time as when the interrogat-ing officers had dinner. Rahula Silva, however, was emphatic that the6th accused was given his dinner only at about 11.30 p.m. when theofficers decided to go to Nauneris Fernando’s house at Sarikkamullaas it had transpired in the answers given by the 6th accused that he wasthe maker of the badges. The importance of this contradiction is notbecause of the simple fact as to when the 6th accused had dinner butbecause of the compelling inference of the 6th accused having been keptfor long hours, from the afternoon of the 11th till almost midnight withoutfood and sleep which would have the effect of breaking down his resistance.The third vital contradiction was in regard to the confrontation of the6th accused with the bag which contained the badges. The evidence ofWeeratunga was that the paper bag with the words “ white line ” writtenon it was shown to the accused and it was before him when he was askedto write these words several times on a sheet of paper. According toRahula Silva, however, he did not show the 6th accused the writing on thebag when he asked the 6th accused to write the words for comparison.The course deposed to by Rahula Silva seems to us the only intelligentone because the purpose would have been completely defeated if the 6th.accused was made to write the words while having a look at the writingon the bag with which the handwriting of the 6th accused was to be com-pared. This contradiction which may ordinarily have been relativelyunimportant assumes vital importance in view of the fact that this,according to the police witnesses, was the turning point of the interroga-tion which did not jdeld any useful result for about 4 or 4£ hours. Secondlythe paper on which the words are said to have been written whichwould have been most useful for this court to compare the handwritingwhich is said to have been similar, has not been forthcoming before thiscourt. • These contradictory versions shake one’s confidence in thesocalled turning point in an otherwise unsuccessful interrogation. Thestatement of the 6th accused recorded by A. S. P. Kandiah and simul- .taneously tape recorded was the product of this prolonged interrogationof about 12 hours throughout the night of the 11th and morning of the12th. The interrogation ceased at about 6 a.m. and the 6th accusedwas taken over again after his morning ablutions by Inspector Kandiahwho interrogated him for about.1 £ hours and immediately started record-ing the statement which ran into about 23 pages of typescript and wasconcluded at about 6.30 p.m. Kandiah’s evidence which is challengedby the defence is that he asked the 6th accused whether he wished tomake a statement to the Magistrate as his statement appeared to be aconfession and he agreed. He immediately telephoned the S. P., G. I. D.who made arrangements for the 6th accused to be produced before theMagistrate at 9.45 p.m. on the 12th. One must bear in mind that the6th accused by this time had had a continuous session with the Policefrom about 3 p.m. on the lith till about 9 p.m. on the 12th although itwas stated by one of the police witnesses that he did not appear to baexhausted.
ORDER OF COURT—The Queen v. Gnanaaeeha Thero and others 175
Apart from the facts preceding this confession before the Magistrateto which we hare referred, there are certain facts which immediatelyfollowed the making of the confession which also appear to militatoagainst tho voluntariness of the confession. The evidence of W.L.C.Pcrcra, Chief Jailor, attached to the Magazine Prison in April, 1966, isthat on 13.4.66, he took tho 6th accused to the Magistrate at about8.40 a.m. and brought him back at 1.55 p.m. He went off duty at 2.30p.m. and resumed at 8.30 p.m. Speaking with reference to tho Log BookX46 which related to the 6th accused, he stated, in answer to tho DeputySolicitor-General in re-examination, that when ho went to the 6th accused’scell at S.50 p.m. after assuming duties at night he found that tho 6thaccused had not consumed his meals. He had however not noticed anymeals left over when ho went to the 6th accused’s cell on the morning ofthe 13th before taking him to the Magistrate. He waited till 10 p.m.to see if the 6th accused would have his dinner. Before making an entryin the Log Book he tried to contact the Assistant Superintendent ofPrisons, Mr. Jordon. On the 14th too, the 6th accused refused his meals.The evidence shows that even till the 16th he refused at least some of hismeals. We are not taking into consideration what the 6th accused toldthe Jailor in regard to the C.I.D. officers as evidence of the truth of thosestatements. It is however relevant to note that the explanation givenby the 6th accused of his conduct in refusing meals was that tho C.I.D.had promised to tako him home for the New Year and that he wasdisappointed. Mr. Jordon tried to contact S.P., C.I.D., over the telephoneto convey the message of the 6th accused but failed. He himselftried to persuade the 6th accused to have his food but failed andthe 6th accused repeated his request to contact the C.I.D. officers. He -did not take these requests seriously because he said he thought thatthe 6th accused was trying to make up a case to invalidate the confession.Jailor Gananadan who gave evidence denied on the first occasion anyknowledge of tho 6th accused having declined hi3 meals on any date;but when ho was recalled and questioned on this point he admittedthat such an incident did take place and that he was present when Mr.Jordon telephoned the C.I.D. We are disturbed to find that a PrisonsOfficial who cannot and should not have any interest in the success of aprosecution should conceal from Court for reasons best known to himselffacts material to tho question of voluntariness of the confession. Weaccept without hesitation tho evidence of the Chief Jailor Pcrera andare of the view that Ganandan gave deliberately false evidence on thefirst occasion.
The 6th accused also made a second statement to the Magistrate,X69, on 26th April, 1966, which was confessional in nature. Tho factsleading up to this confession arc these. He continued to refuse hismcal3 till the 17th. On the ISth he was transferred to HulftsdorpDetention Barracks. On thi3 very day he addressed a very urgentrequest, XI5, to tho Permanent Secretary, Ministry of Defence andExternal Affairs, asking that some arrangements be made immediately
170
OKl/ER OF COURT—The Queen V. Gnanasicl.a Than and ether?
to produce him before the C.I.D. In the background in which this letterwas written wo are satisfied that the purpose for.which the Glh accusedwanted to sco the C.I.D. was one quite other than making a furtherStatement in addition to his earlier statement, ns alleged by the Police.On tha 25th ho was produced before tho C.I.D. at'the Technical Branch,whero ho was interrogated by Inspector Kandiah for 1 or hours, astatement signed by the 6th accused running iuto 11 to 13 pages wasrecorded by him; and he was soon after produced before tho Magistrate,who after preliminary questioning gave him time for reflection till thenest day. X09 was recorded by the Magistrate at 3 p.m.
It was contended by the Crown that tho Court is concerned withtho voluntariness of tho confession recorded by tho Magistrate and not oftho statement recorded by the Police; that-, whatever infirmities theremay have been in regard to tho statement recorded by the Police,the nature of the questions put, tho warning administered and the t ime forreflection given by tho Magistrate to each of tho confessing accusedwere sufficient to remove fully any impression caused by inducement,threat or promise, if any, that may have been offered by the Police.The Crown’s submission therefore was that even if tho court had anydoubt in regard to the voluntariness of the statement made to the Police,such doubt should not influence the court in arriving at a decision ontho voluntariness of the confessions to the Magistrate. In consideringthis submission, it is necessary to examine tho extent to which thequestions put and the caution administered by the Magistrate weresufficient to ensure tho voluntariness of the statements made to him.
The evidence of the officers who recorded these statements wasthat, whenever any of these persons mado a confessional statement,the recording officer obtained the signature of the deponent at the topand bottom of each page of the statement. There is no provision oflaw which either requires or empowers a police officer to obtain signaturesto statements from persons questioned by him. The only provisionwhich relates to the examination of witnesses by police officers is containedin Chapter XIT of the Criminal Procedure Code which specificallyprohibitsthe obtaining of such signatures. Even if the inquiry in the present casewas conducted under a special law tho prosecution has not been able topoint to any provision enabling tho police to adopt such a course.While it is correct that there is nothing in law to prevent a police officerobtaining a signature to a statement made by a person questioned byhim, otherwise t-lian in tho course of an investigation under Chapter XIIof tho Code, the fact remains in this case that tho police did obtain thesignatures and had with them the signed copies of the statements of theconfessing accused beforo they were produced beforo tho Magistrate forthe purpose of recording their statements. The Magistrate himself wastotally unaware of the fact that the Police had in their possession suchsigned confessions from each one of the persons who came before him.to mako statements. This fact to our minds comprises such a strong-
ORDER OF COURT—The Queen v. Qnnnaaceha Thero and others
177
link between the confession to tho police and tho ono to the Magistratethat if the one is suspect the other can hardly escape the taint, unless thoMagistrate was made aware of this fact, and had himself taken steps toremove its constraining influence from tho mind of tho person seekingto make a statement to him. Tho practico of Magistrates asking policeofficers who produce a person for tho purpose of having his statementrecorded, to “ withdraw ” is reduced to an empty gesture, if tho unseenbond which tho polico had forged—perhaps unwittingly—is also notdotcctcd and its effect dissipated.
On tho question of tho adequacy of tho probe by tho Magistratein regard to the voluntariness of tho confessions, the dcfenco pointed outthat tho Magistrate’s records themselves contained sorno errors. ThoMagistrate himself admitted that some of tho preliminary entries madoby him, such as the particulars regarding the time of production of thoaccused, and the persons who produced them, were incorrect. Indeedthoso entries were contradicted by some other records produced by theprosecution itself. Relying on thoso admitted errors tho defence sug-gested that the preliminary questioning was never done, and that thoentries had been made as a mere matter of routine even before thoaccused were produced before him. One of those erroneous entries was :
*' The Superintendent of Polico Mr. Ananda Scncviratnc produces at mybungalow one Noria KoralagoI request Mr. Sencviratno to with-
draw, and he leaves my place.” Tho other cvidenco adduced by theCrown categorically established that Mr. Scncviratnc did not producethat accused, and could not have been asked to withdraw. Koralagohad in fact been produced by Lt. Guncratnc of the Navy. The Magis-trate stated that this error had occurred as he had made this entry assoon as Mr. Scncviratnc telephoned him, and had fixed a time for pro-ducing the accused, in anticipation of Sir. Seneviratne producing thataccused. This error is one which cannot possibly attract a favourablecomment from us. Basing their argument on such erroneous entries, itwas further submitted by the defence that even the entries by the Magis-trate in regard to tho questions put to aud tho answers given by theaccused were also fictitious. Wo arc however not prepared from theexistence of a few such errors and purely ns a matter of inferencetherefrom, in the faco of Mr. David’s evidenco to tho contrary, toaccept that submission.
Quito apart from this contention, wo havo considered whetherthe learned Magistrate’s questioning, as it appears on tho record, hasbeen adequate. In our view it is not. The circumstances of the deten-tion in this ease, the hours of interrogation, the duration of the question-ing, the existence of signed statements in tho hands of tho polico, thonature of tho custody and such other unusual features that precededtheir production before the Magistrate arc in our opinion factors thatshould have warned the Magistrate of tho need to probe much furtherthan being content with tho normal questioning that would bo adequate
178ORDER OF COURT—The Queen v. Onanaseeha Thero and others
in a straightforward case. We find that in one instance, even where anaccused said ho thought it would, be an advantage to make a statementto the Magistrate, he did not think it necessary to pursue the questioningto find out why the accused thought so. We feel that having regard totho factors enumerated above, the learned Magistrate should have made■ a more searching inquiry from every accused before he decided to recordhis statement. For, the very first person produced before him, the 6thaccused, came to him after fivo weeks of detention and over 24 hours ofcontinuous questioning and the second person, the 7th accused after thesame period of detention and even a more sustained questioning fromtho night of the 14th to nearly 6 a.m. on the 16th. Not only did theMagistrate fail to probe this aspect adequately but the intrinsic evidencecontained in the statements themselves shows that ho did not regardfactors such as the long duration of the interrogations and the circum-stances of the detention and custody of the confessing accused as havinga bearing on the question of voluntariness. For the records show that hosought for certain particulars as to the arrest and detention from thoconfessing accused only after ho had decided that the statements aboutto be made were voluntary. Although it is difficult to say in a particularcase what special weight should be attached to these factors the trend. of judicial decisions in England, India and in Ceylon shows that theyoccupied an important place in the decisions which rejected confessionsas being involuntary. The Magistrate’s failure to appreciate theimportance of these factors renders unsatisfactory his decision in regardto voluntariness.
Another circumstance relating to action falling within the purviewof the Magistrate which has a bearing on the question of voluntariness. is the nature of the opportunity afforded for reflection. There being noproceedings in relation to any offence pending in the Magistrate’s Court,the Magistrate was not in a position to make any legal order for remand.This fact was conceded by the Crown and also admitted by the Magistrate.The evidence is that formal orders of remand were made by the Magistrate,after the accused were produced before him; they were then taken to thenew Magazine Prison in charge of prison officials often under heavyarmed escorts. It is doubtful whether this atmosphere would have. conduced to any sober reflection on the lines of the admonition given bythe Magistrate. It has been repeatedly laid down by the courts of thiscountry and elsewhere that where an opportunity is given for reflectionthe prisoner must be sent to a place not accessible to officers whose. presence itself can exert influence on his mind. The new Magazine. Prison to which tho accused were sent had been their place of detention. at an earlier stage, and the accused would have been conscious of the factthat they were accessible to the Police from that place. For, whether theaccused were at the new Magazine Prison or at the Hulftsdorp DetentionCamp, they were considered to be detenues and were available for pro-duction before the Police on an application made to the PermanentSecretary, Ministry of Defence and’ External Affairs. The Magistrate’s
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179
remand orders did not appear to have made any difference as is illustratedin the case of the 6th accused, who while under an order oFremand, wasremoved from the new Magazine Prison to the Hulftsdoip DetentionCamp without the permission of tho Magistrate. In another case, anaccused who was produced by tho Naval authorities (sic) before theMagistrate for the purpose of his confession being recorded was handedback to the same authorities. He spent the period of reflection in thesame place of detention, and this was dono without any formal orderbeing made by the Magistrate.
It was only in the case of the 6th accused that a formal orderfor remand—though ineffective was made after the recording of theconfession. All the other accused were sent back after their confessionswere recorded to the same custody from which they came, namely, theplace of detention. It is signiGcant that they were not sent back to acustody which had any semblance of judicial custody.
In this connection it would be useful for Magistrates to bear inmind the following observations of Mr. Justice Prankfurtur in the caseof Colombe v. State of Connecticut.1
“ But persons who are suspected of crime will not always beunrcluctant to answer questions put by the police. Since under theprocedures of Anglo American criminal justice they cannot beconstrained by legal process to give answers which incriminate them,the police have resorted to other means to unbend their reluctance,lest criminal investigation founder. Kindness, cajolery, entreaty,deception, persistent cross-questioning, even physical brutality havebeen used to this end. In the United States, * interrogation * hasbecome a police technique, and detention for purposes of interrogationa common, although generally unlawful, practice.' Crime detectionofficials, finding that if their suspects are kept under tight policecontrol during questioning they are less likely to be distracted, lesslikely to be recalcitrant and, of course, less likely to make off and escapeentirely, not infrequently take such suspects into custody for‘ investigation This practice has its manifest evils and dangers.Persons subjected to it are tom from the reliances of their daily existenceand held at the mercy of those whose job it is—if such persons havecommitted crimes, aB it is supposed they have—to convict them for it.They ore deprived of freedom without a proper judicial tribunal havingfound even that there is probable cause to believe, that they may beguilt}'. What actually happens to them behind the closed door of theinterrogation room is difficult if not impossible to ascertain.Certainly, if through excess of zeal or aggressive impatience or flaringup of temper in the face of obstinate silence, a prisoner is abused, heis faced with the task of overcoming, by his lone testimony, solemnofficial denials. The prisoner knows this—knows that no friendly ordisinterested witness is present—and the knowledge may itself induce1 367 V. S.. 568.
ISO
OROKR OK COURT—The Queen v. Gnar.asicha Tftc.ro and others
fear. But, in any case, tlie risk is great that tho police will accomplishbehind their closed door precisely what the demands of our legal orderforbid : make a suspect the unwilling collaborator in establishing hisguilt. This they may accomplish not only with ropes and a rubberhose, not only by relay questioning persistently, insistently subjugatinga tired mind, but bj- subtler devices. .
In the police station a prisoner is surrounded by known hostileforces. He is disoriented from the world he knows and in which hefinds support. He is subject to coercing impingements, underminingeven if not obvious pressures of every variety. In such an atmosphere,questioning that is long continued—even if it is only repeated atintervals, never protracted to the point of physical exhaustion—inevitably suggests that the questioner has a right to, and expects,an answer. This is so, certainly, when the prisoner has never beentold that he need not answer and when, because his commitment tocustody seems to be at the will of his questioners, he has every reasonto believe that he will be held and interrogated until he speaks.”
These observations appear to us to have some relevancy when we considerthe evidence in tire present case in regard to the circumstances underwhich the accused made their statements to the police such as suspensionof the ordinary laws of the land, the emergency provisions tinder whichthe accused were taken into custody, the gravity of the charges, the placesof detention, the unusual nature of the custody, the detention incommuni-cado, the inaccessibility to lawyers, the unusual security measures, thedisplay of arms and such others each of which is absent in the investigationof an ordinary criminal charge. The adoption of stringent measures forpurposes of security may be inevitable and may be justified at a time ofemergency. But a Court called upon to decide a question of thevoluntariness of a confession cannot ignore the presence of these factorsin deciding that question.
It has been laid down, both in our Courts ns well as in India, thatthe recording of a confession is a very solemn duty and that an elementof casualncss should never be allowed to creep into it (vide RangappaHanamappa and another v. (he Stale1 and the dicta of Abrahams C.J. inKing v. Ranhamy -). These decisions show that any material omissionor shortcoming on the part of the Magistrate beforo arriving at hisconclusion on voluntariness is sufficient to vitiate a confession. Thostatutory admonition contained in Section 133 to the effect that “ nopeace officer or other person shall permit or discourage by caution orotherwise any person from making any statement which ho may be disposedto make of his own free will ” does not in any way diminish tho responsi-bility imposed on a Magistrate by Section 134 (3). Any slackness onthe part of a Magistrate in tho performance of this duty can result in aviolation of the spirit of Section 25 of tho Evidence Ordinance.
1 A. I. li. 1954, Bombay, 235 at 290 (Gajendragadkar, J.).
* {1937) 3S -V. L. B. 347; 2 Ceylon Lav, Journal 104.
ORDER OF COURT—The Queen v. Onanaaeeha Theroand others' 181
The decisions in the cases of Mat Bkagan v. State of Pepau1,Shibavosappa Thaiappa v. State Of Mysore *, and Bhagavan Din v. TheEmperor * are illustrative of tho vitiating effect on a confession to aMagistrate of certain .types of custody to which tho accused are sent- either during the time allowed for reflection or after confession has boonrecorded. Somo of theso decisions go so far as to suggest that a Magistratebeforo recording a confession should inform the accused that he willthereafter romain in the free atmosphere of judicial custody.
On a consideration of all tho matters relating to the twoconfessional statements mado by the Cth accused and the principlesaduniborated above, wo aro unablo to hold that the Crown hasaffirmatively established tho voluntariness of thoso two statements.We accordingly hold that X6S and X69 aro inadmissible.
Wo next pass on to the 7th accused whoso statement was thenext to be recorded by the Magistrate on the 16th April. Hondamunl,the 7th accused, was one who like the Gth accused was kept under detentionfrom the 4th March. On the 12th April ho was brought back from Navalcustody to tho 4th floor and interrogated throughout the night by thosame team that interrogated the Cth accused. He did not show anydesire to make any disclosures cither to them or to the Magistrate, andwas sent back. It is important to note therefore that up to this amounthe was not desirous of incriminating himself. On tho 13th April RahulaSilva obtained from tho S. P. permission to go back to hi3 station whereho could combine some relative^'unimportant investigation regardingthis case with a visit to the family for tho New Year and left Colombo.But he was soon to bo disappointed. On the 14th a top level conferencewas held in Colombo attended among others by the Permanent Secretary/Ministry of Defence and External Affairs, the I. G. P., the S. P., C. I. D.,and A. S. P. Kandiah. Inspector Wecratunga and Inspector Rahula Silvawere also requested to bo present. It is of considerable significance thatit was found necessary to summon Inspector Rahula Silva from Beliattato be present during this conference where ordinarily, not being oven aregular officer of the C.I.D. and having only the rank of an Inspector,ho would not have found a placo. 1'or, his evidence was that ho couldnot attend to any of the matters for which ho returned to Beliatta andhaving had a sleepless night travelling on tho 13th he received a telephonemessage from the S. P., C. I. D., and returned at- express speed to attendthis conference, even leaving behind on tho road his car with tyro puncturesto bo attended to by tho driver. After tho conference was over, tho S. P.,C. I. D., instructed Inspectors Wecratunga and Rahula Silva to playthe tape-recorded statement of the Gth accused to the 7th accused. Thistape recording was howovor in oxistcnco and should have been availableto the interrogators on the night of the 12th April too, but was not madouse of allegedly because nono of tho three oflicors who formed tho
* 1955, A. J. It. Pepau 33.* 1959. A. 1. R. 46 Mysore 47.
» 1934, A. I. R. Oudh 1951.
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ORDER OF COURT—The Queen v. Gnanasecha Thera and others
interrogating team knew of its existence. Tho 14th night was ono ofunqualified success brought about, according to them, by playing tothe 7th accused the tape-recorded statement of the 6th accused. .Althoughit was stated by Weeratunga and Rahula Silva that after the tapo wasplayed for an hour or so the 7th accused asked them to stop playing itstating that ho would come out with the story, tho interrogation wenton till about 6 a.m. on tho 15th before ho was taken to S. P., C. I. D., tohave his statement recorded. The recording of this statement commencedat 9 a.m. on the 15th and was concluded, after certain breaks, at G a.m.on tho 16th. According to tho ovidcnco of the S. P., C. I. D., tho 7thaccused in the course of thi3 statement expressed tho desire to mako astatement before the Magistrate without any inquiry by him.
For the events of the night of the 14/15th we have to rely mainlyon tho evidence of Inspectors Weeratunga and Rahula Silva. We havealready made our observations on the evidence of Inspector Weeratungain connection with the interrogation of the 6th accused. RegardingInspector Rahula Silva, the best opportunity we had to test his evidenceand incidentally the evidence of the third member of the interrogatingteam, Sub-Inspector Senanayake, was when we heard their testimony inTegard to the interrogating of Dodampe Mudalali. Although therewere several 4inherent improbabilities in the story as narrated by thesetwo witnesses regarding that incident, so far as the oral evidence wasconcerned they tallied in substance. It appeared to us most improbablein the first place that a person like Dodampe Mudalali whose allegedactivities loomed large in the statements to the Magistrate, who wasportrayed as an opium dealer and a bomb maker and whose physiquecompared well with even Rahula Silva’s should have been interrogatedby only the most junior and smallest built member of the interrogatingteam. Secondly, it appeared improbable that having been assignedthe task of interrogating Dodampe Mudalali along with two othersRahula Silva would have kept himself out of the interrogation and spentthe night, as he said, in the ladies’ rest room to have some uncomfortablesleep without leaving for his brother’s place where he had slept in theearly hours of the 11th after travelling from Beliatta. Further, we didnot think it probable that, having been assigned the task of interrogatingDodampe Mudalali, he would have gone to sleep in the very premiseswhere the S. P. himself was recording a statement of the 7th accusedalmost throughout the night and till the next morning. While we wereinclined to reject his evidence in relation to this interrogation on theseimprobabilities alone we alighted on his statement made to the Policeon the morning of the 16th in connection with the death of DodampeMudalali in which he had specifically referred to his participation inthe interrogation of Dodampe Mudalali by confronting him with statementsof other suspects and the like—a position so inconsistent with his evidence.
We are, therefore, compelled to the conclusion that Rahula Silva’stestimony in regard to the extent of his participation in the interrogationof Dodampe Mudalali was untrue. This finding also affects at once the
ORDER OF COURT—The Queen v. Onanaaeeha Thero and others
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•credibility of Sub-Inspector Senanayake who fell in line with InspectorRahula Silva and attempted to keep him out of the interrogation ofDodampe Mudalali. These unsatisfactory features in the evidence ofeach of the officers of the interrogating team do not enable us to acceptu ith confidence their evidence as to the reasons for the somersault ofthe 7th accused who had on more than one earlier occasion beenunsuccessfully interrogated.
Apart from these matters, the comments we have made inparagraphs 29 to 36 are also relevant in the consideration of thevoluntariness of the 7th accused’s confession, and lead us to the conclusionthat the Crown has failed to establish the voluntariness of the confessionX70. It is, however, contended for the Crown that the 7th accusedsent a letter X5 dated 28th April, 19C6, in which he made a request thathe be produced before the C.I.D., to enable him to make an urgent stat?-ment about a coup, and that that letter would not nave been sent ifthere had been any compulsion in regard to the making of the confession.We have carefully examined this letter, but are unable to hold that it issufficient to remove the doubt in our minds in regard to the voluntarinessof the confession created by the numerous circumstances we have referredto above. We, accordingly, hold that X70 is inadmissible.
The general objectionable features 6uch as those relating to the■custody, detention and interrogation as well as the obtaining by the Policeof signatures of the accused prior to their production before theMagistrate, the inadequacy of the Magistrate’s probe and the absenceof judicial custody either during the period of reflection or after theconfessions were recorded were present, though in varying degrees, inthe case of all the others namely the 1st, 3rd, 8th, 9th, 11th, loth and16 th accused.
The doubts in regard to voluntariness created by the existence ofthese features must enure to the benefit of these accused in the absenceof any factors which would dispel such doubts. Wo do not find anysuch factors in regard to the confessions made by the Sth, 9tli, 11th andloth accused, and wc accordingly hold that X71, X72, X74 and X75arc inadmissible in evidence.
The confession of the 1st accused stands on a very differentfooting from that of the rest of the confessions. In the first place it isnecessary to bear in mind the background, education and stature of the1st accused as compared with the rest of the accused in this ease. He isa Buddhist monk, 5S years old, a scholar of great repute, a PracheenaPundit and winner of a coveted gold medal and the head of the BhikkuTraining Centre at Pathakade. Ho had organised Buddhist activitiesamong public servants and army personnel in various parts of Ceylonand can be said to have been held in high esteem particularly' among theBuddhists in Ceylon. He had known the S. P., C. I. D., Mr. Seneviratnofor somo years and had developed a close association with him and in
1H OltDKR OF COL'KT—The Queen r. Ct.annw/.n Thcro <«.**/ r-
fact Imd helped him in many ways, namely, to organise Buddhbtactivitiesat Jiainapnra where lie was the Superintendent of Police, to obtaintreatment for an ailment which lie was suffering from and, according tothe 1st accused, even to secure a transfer in the service. There is hardlyany doubt from these facts that the S. P., C. I. D., and the 1st accusedhad mutual regard for and confidence in each other.
Tho treatment accorded to tho 1st accused when he was broughtto Colombo by Inspector Farced on tho orders of tho S. P. was entirelydifferent from the treatment which other accused in this case had received.For, Inspector Farced was ordered by the >S. P. to make him comfortableat the Technical Branch of the C. I. D. where ho was in fact providedwith his meals at tho proper times and also supplied with a bed in aseparate room. Even before questioning the 1st accused, tho S. P.himself went up to him, made obeisauco and approached the 1st accusedwith deference and courtesy.
According to tho S. P., C. I. D., who generally made a very favour-able impression on us, at about 10.30 a.in. on tho 17th April, 1966, hostarted questioning the 1st accused whose first reaction was to ask theS. P. why it was necessa ry to make another statement when he had alreadymade somo statements earlier in connection with this alleged attempt tooverthrow the Government. After a short while, however, the 1st accuseddecided to make a statement which ultimately turned out to bo a verylong speech delivered in the stylo of a sermon, which could be heardeven by persons outside tho room in which the questioning was carriedout. The statement was simultaneously typed by a Sinhala Typistwhoso services tho S. P., C. I. D. had engaged. Tho statement producedas 1D2 ran into eight type-written pages and contained tho very wordsof tho 1st accused. Ho corrected one of the copies in his own handwritingand tho S. P. obtained his signaturo at tho top and bottom of each page.Tho 1st accused who had ono copy in his hands mado a request to thoS. P. to allow him to have a copy and even though it was contrary to theusual practice, tho S. P. felt compelled to accede to tho 1st accused’srequest. At about 5.30 p.m. tho 1st accused broke down saying that hehad fallen into a trap ; tho S. P. left tho room for a while to enable tholet accused to collect his thoughts after which ho dictated onolast paragraph and concluded his statement. At tho conclusion of thestatement tho S. P. asked tho 1st accused whether ho would like to make
a statement to tho Magistrate, to which ho agreed.
Having regard to tho friendship and the mutual confidencetho S. P. and the 1st accused had in each other, the intellectualattainments of the 1st accused and tho intrinsic evidence containedin tho statement itself such as the language and the subject matter,coupled with the favourable impression we formed of tho S. P. asa witness, wo seo no reason t-o think that the statement mado by tho 1staccused to the S. P., 1D2, is anything but a voluntary statement. The1st accused however has taken up a different position with regard to this
ORDER OF COURT—The Queen v. Onanaseeho Thero and others
185
statement. According to him, the S. P., finding that the 1st accusedwas reluctant to make a statement, asked him whether he trusted himand added that ho went to Pathakade to sco the 1st accused to advisohim not to got involved in this attempted coup but was sorry to havemissed him. After somo further discussion, the S. P. asked him tomako a statement on the lines suggested by him, if he wished to savohimself. To this course tho 1st accused agreed and thereafter the S. P.and ho prepared tho statement 1D2, in collaboration. Wo cannot helpthinking that implicit in such an agreement is an admission by tho 1staccused that ho was prepared to collaborate with tho S. P. and includematters iu the finished product which were both true and untrue if itsuited the purpose. The 1st accused’s version with regard to 1D2 wasthat the S. P-, at the conclusion of the typed statement, handed him onecopy with instructions to make his statement to tho Magistrate in accord-ance with the contents of that statement. Tho 1st accused agreed tothis subject to tho qualification of his being freo to say what ho consideredappropriate if tho Magistrate should surprise him with a question. Thisevidence too would seem to us to point to a readiness on the part of tho1st accused to come out with something appropriate to tho occasioneven if it was strictly not in accordance with the facts.
Thero is a further item of eridence given by tho 1st accused whichwo find it difficult to accept as true. His cvidenco was that on tho wayto tho Magistrate’s bungalow for tho purposo of making his statement,the S. P., C. I. D., advised him to write a letter to tho Chairman, AdvisoryCommittee, stating ht3 objection to tho detention, after making hisstatement to the Magistrate and that ho would thereafter be released.This was not admitted by tho S. P. The suggestion for tho Crown wasthat the letter 1D1 dated 1S.4.CG was written by the 1st accused to theChairman, Advisory Committee, not at the instance of the S. P., C. I. D.,but as a result of the letter X5SA addressed to the 1st accused by thoMinistry of Defence and External Affairs informing him of his right toobject to the detention. Tho contents of the letter and tho form of theaddress proved almost beyond doubt that 1D1 was written by a personwho had scon the letter X5SA and followed tho instructions containedtherein. In addition to this tho prosecution produced document X77which contained an acknowledgment under tho signature of tho 1staccused of tho receipt by him on 1S.4.GG of tho communication X5SA.Tho inferonco is, thcreforo, irresistible that tho 1st accused was not givingus a truthful version of 1D1.
4G. These considerations, apart from soveral others, which it is needlessto catalogue, militate against an acceptance of tho 1st accused’s evidencethat the statement 1D2 was not his own but ouo mado as suggested bytho S. 1’., C. 1. D. and with his collaboration.
Wo shall consider next the confession mado by tho 1st accusedto tho Magistrate. According to tho evidence of tho 1st accused, theinstructions of tho S. P. wero to mako a statement to tlic Magistrate in
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ORDER OF COURT—The Queen v. Gnanasecha Thcro and others
■ accordance with 1D2. While thero are several substantial similaritiesin the contents of 1D2 and tlio confession to tho Magistrate X66, theActing Solicitor-General took great pains to show somo substantialvariations between the two statements and additions which cannot beconsidered merely as appropriate answers to questions pint by thoMagistrate given in accordance with his alleged arrangement with theS. P. Although tho 1st accused’s evidence was that there wa3 nopreliminary questioning by the Magistrate before recording his statement,no direct suggestion was made to tho Magistrate on this point when howas under cross-examination. We are also not impressed by the evidenceof the 1st accused regarding the intensive probing by the Magistrateduring the recording of his statement and the inclusion of some particularsin the statement for which the 1st accused was not responsible. Thecontents of his confession which is largely exculpatory in characteralso suggests that the 1st accused’s statement was a voluntary one.We might pause here to say that whenever wo describe any confession orstatement as voluntary wo must not be understood to mean that it isvoluntary in the full dictionary sense but that it is voluntary in the limitedsense in which it is conceived in section 24.
Thp 1st accused stated that ho made his confession to theMagistrate only because of a promise said to have been made by thoS. P., 0. I. D., that the making of such a statement would result in hisrelease. He had thus excluded the presence of any other features whichmay have vitiated his confession.
As regards the 3rd accused, he voluntarily surrendered to thePolice on the 24th April presumably because he was aware that certain
• investigations were going on in regard to an alleged conspiracyto overthrow the Government and that he was wanted for questioningin that connection. If he so desired, it would have been possible forhim to seek any legal advice before he surrendered. His interrogationby Inspector Wijesuriya of the C. I. D. was of short duration and carried-out by day. After his statement was recorded he was not asked whetherhe would go before the Magistrate and he was sent to the HulftsdorpDetention Camp. There is nothing in the evidence to show that thePolice wanted to take him before the Magistrate. A few days later,he had, on hi8 own, addressed a letter to the Permanent Secretary, Ministryof Defence and External Affairs, in which ho said he never conspired to■overthrow the Government, that he was aware of certain matters andthat he was prepared to testify anywhere against “ Amaratunga,Hondamuni and all others who deceived and misled me to participatein this conspiracy and to get them punished for the wrong they havecommitted.” In a post-script to the letter- he said, “ Please arrange forme to make a statement before the Magistrate as early as possible.”
It was in compliance with this letter that arrangements were made for. him to be produced before the Magistrate for the purpose of his statementbeing, recorded. In these circumstances, we aro satisfied beyond.-reasonable doubt that his statement X67 was a voluntary one.
ORDER OF COURT—The Queen v. Onanaaeeha Thero and others 1ST'
Tho only other confessions which remains for consideration arethe two statements made by the 16th accused, X75 and X76. It willbe seen from tho summary of facts appearing in paragraph IS relatingto this accused that, having made one statement to Inspector Fareed onthe 14th/ 15th April, he volunteered two subsequent statements to thesame polico officer within some hours of each other. He, thereafter,made a confessional statement to the Magistrate on 18.4.66 after whichhe was taken back to the Hulftsdorp Detention Camp. On the 1st May,1DGG, ho addressed a letter to the Permanent Secretary, Ministry ofDefence and External Affairs, in which he stated, inter alia,
“ I made a statement to the Chief Magistrate on the same day andforgot to mention (sic) certain things which will be very importantto my defence and the case. Therefore, I humbly request that Imay be given another chance to mention those to the Magistrateplease.”
In pursuanco of this request he was sent before the Magistrate on 12.5.66and he made the statement X76 on 13.5.66. Id X76 the opening sentenceis as follows : “ In my previous statement I had mentioned about a visitto the Pathakade temple on 1.3.66 ” and then continued to add to whatho had already said in his previous statement. Having regard to thoundoubted-voluntariness of this second statement and the adoption ofthe first statement in the second statement, we have no difficulty inholding that the first statement too was a voluntary one.
While, in our view, the last four confessions which we have referredto have been voluntarily made by the 1st, 3rd and 16th accused, theiradmissibility will depend on tho answer to the question whether theMagistrate had power to record these statements under section 134 oftho Criminal Procedure Codo and tho consequences of any such lack ofpower upon their admissibility.
It has lv'en submitted by the defence that the confessions whichare under consideration in this case cannot be admitted in cvidoncobecause—so it is argued—the Magistrate had no power under section134 of tho Criminal Procedure Ck>do to record them ; it is submitted tintthe power to record statements under section 131 arises only in the courseof an investigation under Chapter XLI of the Criminal Proooduro Codoor at least when there is a caso pending in a Magistrate’s Court.
53. Before considering this submission it i3 necessary to sot downcertain facts. It is common ground that—
tho offences of conspiracy to wago war and of conspiracy to overawethe Government of Ceylon by means of crtminxl force or theshow of criminal force aro (a) non-c.ognizablo offaaoos, and
offences of which no court can take cognizance withouttho sanction of tho Attorney-General.
1SS
ORDER OF COURT—The Queen v. Gr.anasecha Thero and others
(ii) no order to investigate these offences—which are non-cognizablevoffences—had been mado by any Magistrate under section 129
of the Criminal Procedure Code which provides that :
" (1) Every inquirer and police officer shall have power, uponreceiving an order from a Magistrate, to investigate anon-cognizable offence and to exercise all the powersconferred upon them by this Chapter (Chap. XII) inrespect of such investigation.
Subject to the provisions of section 37, every inquirer andofficer in charge of a police station shall have, powerto authorise the detention of a person during aninvestigation.”
At the time the Magistrate recorded the confessions not only wasthere no investigation being carried out under Chapter XIIof the Criminal Procedure Code, but thero were also noproceedings initiated and pending in the Magistrate’s Court ofColombo or in any other court in Ceylon in relation to the offencesunder consideration; proceedings were initiated for.'-the firsttime by the Warrant of the Attorney General filed iri-terms ofSection 148 (1) (e) of the Criminal Procedure Code in theMagistrate’s Court of Colombo on 14.7.66, over two months atleast' after the last of the confessions was recorded..
None of the accused were under arrest for these offences (orindeed for any offence) at the time they were produced beforethe Colombo Magistrate for their statements to bo recorded ;an arrest for these offences would have required prior institutionof proceedings in a Magistrate’s Court and the obtaining of aWarrant of Arrest. Each of the accused so produced, beforethe Magistrate was only under detention under Regulation 26of the Emergency Regulations then operative and this wasdetention, not for the commission of any offence but was'merelypreventive—i.e., detention for the purpose of preventing theiracting contrary to the public interest or public order or? for thepurpose of preventing the commission of certain offences underthe Emergency Regulations (which do not include offenceswhich are anything like those referrod to in section 114 ofthe Penal Code). These accused were thus under preventivedetention, in the custody of either Mr. Jordon, AssistantSuperintendent of Prisons, New Magazine Prison,. or'- Lieut.Wise of the Navy who was in charge of the HulftsdorpDetention Barracks.*:
64. The Detention Orders on the authority of which all the confessingaccused were taken into custody were invariably placed in the hands ofthe Criminal Investigation Department for service and execution on the’person to be detained. How the Criminal Investigation Department
ORDER OF COURT—The Queen v. Qnanoaeeha Thtro and others : 18ft
executed this task is dealt with earlier in the Order. It would appearfrom the evidence that the Criminal Investigation Department fell intothe error of thinking that each of the detenues teas under arrest for theoffence of conspiring to overthrow the Government and that while theDetention Order was in force the Criminal Investigation Departmentcould exercise all the rights and powers of an investigator under theCriminal Procedure Code without regard to any of the restrictions,limitations and obligations placed upon investigators by that same law.The Superintendent of Police, Criminal Investigation Departmenthimself stated in evidence that from tho 4th March 1966 he and hisbranch were investigating an alleged offence under section 114 of thePenal Code and that any person whom the Criminal Investigation Depart-ment suspected was taken into custody not by invoking the powers ofarrest under the Criminal Procedure Code but by seeking the aid of thePermanent Secretary to the Ministry of Defence and External Affairs toissue a Detention Order in respect of the suspect. The suspect was thustaken into custody not for any offence but for preventive purposes, aprocedure which, while it was perfectly legitimate under the EmergencyRegulations, had no relation to the investigation of offences, arrest inrespect of offences or proceedings in respect of offences as contemplatedby the Criminal Procedure Code ; as the Emergency was extended frommonth to month, the detention could have been prolonged indefinitelywithout recourse to any court; during this period the detaining authori-ties readily made any detenue availablo to the Criminal InvestigationDepartment enabling the latter to remove tho detenuo from tho place ofdetention fixed by the proper authority to the offices of tho CriminalInvestigation Department with liberty to them to interrogate the detenuounder conditions and times determined by the Criminal InvestigationDepartment; the detcnucs would, when the Criminal Investigation Depart-ment had done with them, be returned to the Detention Authoritiessometimes after 2 or 3 days at the 4th floor of the Criminal InvestigationDepartment office. Tho facts relating to theso interrogations have beendetailed earlier but it i3 important to note hero that tho confessingaccused were taken before the Magistrate not -under arrest for an offence orcharged tt it.'i an offence,and tho confessions recorded by the Magistratehad no reference to any offence then being investigated (or everinvestigated) by the police under Chapter XII of the Criminal ProcedureCode or to any proceedings then pending in that or any other court inrelation to any offence.
55. Section 134 reads as follows :—
“ 134 (1) Any Magistrate may record any statement mado to him atany. time before the commencement of any inquiry or trial.
(2) Such statement shall bo recorded and signed in the mannerprovided in section 302 and dated, and shall then be forwarded to thoMagistrate’s Court by which tho case is to be inquired into or tried.
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No Magistrate shall record any such statement being a confessionunless upon questioning the person making it he has reason to believethat it was made voluntarily ; and when he records any such statementhe shall make a memorandum at the foot of such record to the followingeffect:—>
I believe that this statement was voluntarily made. It wastaken in my presence and hearing and was read over by me to the .person making it and admitted by him to be correct, and it containsaccurately the whole of the statement made by him.
(Signed) A.B.
Magistrate of the Magistrate’s Court of. …. . .”
56. Dr. Colvin R. de Silva for the defence submits that the powergiven to Magistrates under subsection (1) is a considerably limited one'having regard to its purport and content. It is submitted for the Crownthat the expressions ‘ any Magistrate ‘ any statement, and ‘ at anytime before the commencement of an inquiry or trial * are as wide intheir connotation as they at first glance appear.
We have been told by counsel who appeared for the Crown thatthere is no need to enter upon an interpretation of the section as itsmeaning is plain and that it has been drafted in the widest possiblelanguage to give Magistrates the widest amplitude of power to recordstatements. We ourselves doubt whether .the most indulgent apologist .for the draftsman of this section would suggest that the words of section134 (1) are clear and unlimited in their meaning. It is sufficient toreproduce another provision of the Code somewhat similar in terms tosection 134 (1) to illustrate the effect of context on the plain dictionarymeaning of words : Section 172 (1) of the Code reads:
“ Any Court may alter any indictment or charge at any time beforejudgment is pronounced”.
68.. The meaning of section 134 (1) must of course be determined byreference to the words used in it. But they cannot and must not belooked at in isolation ; we must judge them by the company they keep.
In other words we must read them in the context of the Code as a wholeto determine what meaning the legislature intended them to bear.
69. It 6eems to us that the expression “ any statement ” is not aswide as contended for by the Crown. Obviously a statement recordableunder this section must have some relation to an offence. Again the■submission of the Crown that the expression “ at any time before thecommencement of an inquiry or trial ” implies that the power of a Magis-trate to record statements under this section in relation to a particularoffence arises immediately upon the commission of the offence and con-tinues up to and beyond the stage at which proceedings (if any) in relation ,
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to that offence are instituted and ends only upon commencement of aninquiry or trial in those proceedings, appears to us to-be unsupport able..This kind of expression is very common in our procedural codes. A fewillustrations will suffice : “ at any time before judgment is pronounced ”(section 172 Criminal Procedure Code); •* at any time before verdict "(section 202 Criminal Procedure Code); “ at any time before hearing ”(section 94 Ci vil Procedure Code); “ at any time beforo passing a decree”(Section 149 Civil Procedure Code). In all these cases the legislature hasin contemplation a limited period of time, not only ending with thedesignated event but also one commencing at a point of time at whichproceedings were instituted or the court otherwise took cognizance of thematter. There is therefore considerable weight in the submission thatthe expression “ at any time before the commencement of an inquiryor trial ” was intended to refer to a period which begins to run only withthe initiation of proceedings in a Magistrate's Court and which ends uponcommencement of an inquiry or trial in those proceedings.
What then is the truo significance of the words before thecommencement of an inquiry or trial, etc. in section 134 ?
Proceedings in a Magistrate’s Court can bo commenced in odc orother of the way's set out in section 14S(1) (a) to (/). It is unnecessary to-refer in detail to these different ways of instituting proceedings ; it isimportant to note however that a writton report made by an officer incharge of a Police Station or by an enquirer under section 121(2) canamount to the institution of criminal proceedings in the Magistrate’sCourt within the meaning of section 14S(1) (6); this would bo so eventhough at that stage the offender is unknown—see section 150(1). Againa Magistrate receiving direct information of the commission of an offencewithin his jurisdiction may initiato proceedings under section 14S (1)(c) on the basis that the information gives rise to the suspicion that anoffcnco has been committed; and he may at the same time, if the infor-mation relates to a cognizable offence, bring it to the notice of tlio Officerin Charge of the appropriate Police station for investigation under ChapterXII or in the caso of a non-cognizablc offence, if he is satisfied that thereare reasonable grounds for so doing, make order under section 129authorising an investigation under Chapter XII. The absence of a power intho police or in an inquirer to investigate non-cognizablc offences underChapter XII without an order from a Magistrate is noteworthy. It seemsthat the legislature was not prepared to countenance the indiscriminateuse of the Police agency for tho investigation of every' minor crime andgive rise to a police-ridden state; again when crimes of a serious naturesuch as offences against the Stato wore mado non-cognizable, tho legis-lature has obviously proceeded on the premiso that tho power of arrestwithout warrant and of compulsive investigation under Chapter XIIshould be withheld from the minions of the State such as inquirers andpolice officers in relation to such offences unless they first had authori-sation from an independent judicial officer. A further protection against
192 ORDER OF COURT—The Queen v. Qnanasccha Thcro and ethers
hasty embarkations on prosecutions and investigations is seen in thoseprovisions which prevent any court from taking cognizance of certainoffences except upon the complaint of the Attorney-General or of someother person with the previous sanction of Attorney-General. Offencesagainst the Stato fall into this category. See section 147(1) (d) of theCriminal Procedure Code and section 127 of tlxe Penal Code. Proceedingsare also, under section 14S (1) (d), regarded as being instituted when anyperson is brought before a Magistrate having been arrested withoutwarrant in respect of, and accused of having committed, an offencewhich such court has jurisdiction to inquire into or try.
Whatever the manner of institution of proceedings, whether theyare accompanied by an investigation under Chapter XII or not-, it willbe seen from the provisions of sections 149 to 151 and the investigatoryprocedures following upon a report to court under section 121 (2) that aconsiderable period can elapso between institution of proceedings in aMagistrate’s Court and the commencement in that court of an inquiryunder section 156 or of a trial under section 152(3), section 166 or section187 ; and there would thus bo proceedings pending in the Magistrate’sCourt which can quite properly and truly be described as a case in whichan inquiry or trial is to be hdA; further the Magistrate’s court in whichsuch proceedings are pending cannot bo more appropriately describedthan as the Magistrate’s Court by which the case is to be inquired into ortried.
It is contended by the Crown that a Magistrate before whom aperson comes to have a statement recorded need not inquire whether ornot an inquiry or trial has commenced and that he should proceed torecord any statement without reference to that fact; and that it could beleft to a trial court later to say whether he acted within his powers or not.We are unable to accept this view.
It seems to us that when the legislature made the Magistrate thedonee of a power limited by reference to a time before which only thepower can be exercised, the legislature must necessarily be deemed tohave cast a duty on the Magistrate to ascertain at the lime he is calledupon to exercise that power, whether he was acting within the limits ofhis power or not. It seems to us that the words “ before the commence-ment of an inquiry or trial ” necessarily mean that the Llagistrate record;ing a statement under this section must be in a position to ascertainwhether an inquiry or trial has yet commenced or not and this he canreasonably do only by reference to proceedings actually pending in aMagistrate’s Court. We find it difficult to ascribe to the legislature anintention to vest in Magistrates a power to record statements in vacuo,i.e., without reference to any proceedings pending in any court and withoutReference even to an allegation that any person has in fact committed anoffence or been charged with one..
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G5. Wo find also another section in which the terra “ commencementof inquiry or trial ” occurs. Section 280 (1) reads as follows :—
“ If from tho absence of a witness or any other reasonable cause itbecomes necessary to or advisable to postpone the commencement ofor adjourn any inquiry or trial the court may from time to time order apostponement or adjournment………
66. It seems to us beyond argument that tho power given under thissection refers to a power exercisable only in respect of proceedings pendingIn court at tho time tho power is exercised. It cannot be exercised inrespect of an offence relating to which no proceedings are pending incourt. It was argued by counsel for the Crown •— but not with anyenthusiasm—that the power to postpone the commencement of an inquiryor trial can be exercised even before proceedings have been institutedin that or any other court. Indeed the argument was sought to be carriedfurther when it was submitted that Mr. David was only postponing thecommencement of an inquiiy when he, in respect of each of the accusedwho were brought before him for the purpose of having their confessionsrecorded in April and May, 1966, handed them to the prison authorities(sic) and asked the latter to produce them later after a period of reflectionupon their desire to make confessions. It is sufficient to say (1) therewas not on any of those dates any inquiry under Chapter XVI of the Codeduo to commence and the commencement of which the Magistrate couldhave postponed (ii) that when the Magistrate had actually recorded theconfessions there was not any further postponement of the commence-ment of an inquiry or any order of any kind made by the Magistrate,whose only action was to convey the confessions to his court and lockthem up in his safe in the hope that they may some day be of use to someprosecutor who initiates proceedings in his court, and (iii) an inquiry inthis case commenced only on the 25th July 1966 on which date the chargeswere read out to the accused in terms of section 156 of tho Code, proceed-ings having been initiated on the 14th July 1966 by the Attorney-Generalfiling his warrant in terms of section 148 (1) (e) ; it wa6 accordingly onlyafter tho 14 th of July 1966 that the Magistrate could have exercised thepower of postponing the commencement of an inquiry.
67. Much of the confusion arises from the presence of tho word"commencement ” in section 134(1). It is important to note that theword “ commencement ” is coupled not with “ of proceedings in a Magis-trate’s court ”, but with “ of an inquiry or trial It is beyond con-troversy that tho word "inquiry ” refers to the inquiry under ChapterXVI commencing with the reading of the charge to the accused. Seecases of King v. Ranhamy ', King v. Franciscu Appuhamy 2 and the Courtof Criminal Appeal decision in King v. Weerasamy 3. Thus tho words"commencement of inquiiy”, in section 134 (1) refer to a prospectiveovent just as much as “ commencement of trial ” would refer to ai (1040) 42 A L. if. 221 at 224.* (1941) 42 N. L. R. 553 at 557.
* (1942) 43 N. L. R. 207.
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prospective event which aro both events in the course of proceedings which,have already had their commencement. And just as much as expres-sions such as “before the hearing ”, “before answer filed”, "beforejudgment ” and “ before? verdict ” which aro events in proceedingscommenced in court, refer to a period after commencement of proceedingsin court the expression “ before commencement of inquiry”, or “ beforecommencement of trial ” in section 134 can only refer to a period after acourt has taken cognizance of a matter and before commencement of theinquiry or trial in those proceedings.
It is next argued by tho Crown that subsection (2) of section 134militates against tho view that there should be proceedings pendingbefore the power under subsection (1) can be exercised. We think thecontrary is the case.
Subsection (2) reads as follows :—
" Such statement shall be recorded and signed in tho manner provided
in section 302 and dated, and shall then be forwarded to the Magistrate’s
Court by which the case is to be inquired into or tried. ”
This subsection in our view clearly implies that the Magistraterecording a statement must be in a position contemporaneously with hisrecording of the statement to ascertain the Magistrate’s Court by whichthe case is to be inquired into or tried. The occurrence of the definitearticle “ tho ” before the word “ case ” confirms the view that state*meats recorded under subsection (1) must have some connection with anexisting case and not with a hypothetical one that may or may not cometo be instituted in the future. Further the duty to “ forward ” is enun-ciated in terms which admit of no exceptions. If tho Crown’s conten-tion is correct, Magistrates would have power to record statements relat-ing to offences triable exclusively by Rural Courts and also statementsrelating to offences of bribery under the Bribery Act in respect ofwhich indictments can be presented in a District Court without anyproceedings in a. Magistrate’s Court; further, under section 385 of theCriminal Procedure Code, the Attorney-General has the power, withoutany proceedings in a Magistrate’s Court to exhibit informations in theSupreme Court in respect of certain offences. In these cases where wouldthe Magistrate who has recorded a statement and bided his time till theinstitution of proceedings, forward the statement to ? The section doesnot contemplate the forwarding of the recorded statements to anycourt other than to a Magistrate’s Court. Then again on the Crown’sview, Magistrates would also have power prior to any proceedingshaying been instituted in any court to record statements in relationto offences which cannot be taken cognizance of by any court except withthe sanction of the Attorney-General and (in some cases) of the BriberyCommissioner,' under section 147 of. the Code; under the ConciliationBoards Act 10 of 1953 no prosecution in respect of certain offences can be
ORDER OF COURT—The Queen v. Gnanaseeha Thera ami others
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instituted without a certificate from the Chairman of the appropriateConciliation Board. Apart from these statutory bars which may resultin an offence committed not being followed by a prosecution, thero isno reason to believe that every offence committed in Ceylon ends in aprosecution even when thero is good evidence. In such cases a Magistraterecording statements without reference to pending proceedings wouldnever be able to comply with the duty to forward the statement " to theMagistrate’s Court by which the case is to bo inquired into or tried ”if for ono or other of the reasons indicated no proceedings are everinstituted.
It is further contended by the Crown that if the view is correctthat there must be proceedings pending before a Magistrate can exercisepower under subsection (1) it would follow as a necessary corollary thatonly Magistrates having jurisdiction over the offence in respect of whichthe statement is made would have power to record statements under thissection. It is unnecessary to decide this point for the purposes of thiscase but we are inclined to think that that is the correct view. For onething, Magistrates appointed to a particular Magistrate’s Court (havingjurisdiction over a particular territorial division) and unofficial Magis-trates appointed to that particular Division would be able more readilyto ascertain whether there are proceedings pending or not in their courtand if so what stage those proceedings have reached; for another, sinceMagistrates do not, like police officers, have the privilege of exercisingtheir powers “ in every part of Ceylon ” (see section 56 of the PoliceOrdinance) but are creatures of territorial circumstance one would haveexpected a more positive indication of a legislative intention to empowerMagistrates to record statements relating to offences committed outsidetheir jurisdiction than the word “any ” before the word “MagistrateSuch a provision for instance occurs in the Indian Codo where section 164ends with tho statutory explanation that it is not necessary that theMagistrate acting under the section should have jurisdiction in the case.
The question is then asked why did the legislature in subsection (2)require that the statement “ shall then be forwarded to tho Magistrate’sCourt by which the ease is to be inquired into or tried ”. Is it to beinferred from this that a Magistrate having jurisdiction over the offenceand who is accordingly likely to be the Magistrate who will inquire intoor try the offenco is debarred from exercising powers under subsection 1of section 134 ? A submission to this effect was made in the case ofKing v. Weerasamij but was rejected both in the court of trial (see 43
N.L. R. 152 at 153) and by the C. C. A. (43 N. L. R. 207 at 210). Thelearned Attorney-General has sought to submit that the decision in thatcase conflicts with the view that tho Magistrate who can record a state-ment under section 134 must be one who has jurisdiction over the offenceto which the statement relates. We can find no such conflict. Thefacts in that case were that a confession was recorded by a Magistrateafter institution of proceedings but before commencement of the
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ORDER OF COURT—The Queen v. Onanasceha Thero and others
nonsummary inquiry. The same Magistrate later commenced and heldthonon-summary inquiry. The confession recorded by the Magistrate wassought to be attacked on the ground (inter alia) that lie was debarredfrom recording the confession because he was the one who later held theinquiry. While we find some illogicality in the submission that aMagistrate i3 disqualified from exercising powers under section 13-4 byreason of a subsequent event it is sufficient to state that the Court ofCriminal Appeal rightly held that the Magistrate who later holds or tvhois due to hold the inquiry is not debarred or disqualified from recordinga statement under section 134. It seems to us that the more appropriatequestion to ask and seek an answer to is whether a Magistrate whorecords a statement under 134 is not, if he becomes personally interestedin sustaining the legality and regularity of his act of recording, disqualifiedby reason of section 89 of the Courts Ordinance from subsequently holdingany inquiry or trial in which such question arises or is likely to ariseunless he has the consent of both parties to the litigation.
We ourselves venture to think that the duty to forward therecorded statement which is a duty enjoined on every Magistrate acting -under the section arises from the fact that the act of recording here con-templated is one that, although it is related to a proceeding in Court,partakes more of a ministerial rather than a judicial character; it precedesthe more strictly judicial processes of inquiry and trial. It is more akinto the kind of act a court performs in postponing the commencementof an inquiry or trial under section 2S9 of the Code. Now, it cannotbe postulated of any Magistrate who records a statement under section134 that he, even if he be the sole Magistrate appointed to that particularMagistrate’s Court, will inevitably hold the inquiry or trial inthe proceedings in relation to which the statement was recorded.Death, illness, transfer or the presence of other Magistrates appointed tothe same court may result in the case having to be inquired into or -tried by a Magistrate other than the one whp recorded the statement. Thestatutory provision for forwarding tho recorded statements to court is in.our view intended to emphasise the fact that such statements are notprivate and confidential to be retained by each recording .Magistrate butdocuments which must be placed on the judicial record of the pending,case, for there is nothing to suggest that these statements cannot beinspected and used, if occasion arises, by the prosecution as well as bythe accused. An examination of subsection (2) of section 134 accordinglyconfirms the view we have taken of subsection (1).
If we apply our conclusions to the case of most common occurrence •in 9ur courts it will be seen that where tho police arrest a person in a caseof murder or culpable homicide they are obliged under section 36 of the-Codo to take the arrested person to the Magistrate's Court having juris-dictionover the offence. If the arrested person desires to make a state-ment he would have to make his statement to a Magistrate of that Court-and there would be proceedings initiated and pending in that' court-
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(sufficient to give a Magistrate power to act under section 134) either byreason of a report having already gone to that court under section 121(2)of the Code or by reason of the very act of bringing the arrested person incustody before the court accused of having committed an offence—seesection 14S(1) (d).
Wo accordingly take the view that section 134 can bo acted uponby Magistrates only after commencement of proceedings in court andbefore the commencement of an inquiry or trial in those proceedings.
The defence however carries the argument further. It has beensubmitted that having regard to its placo in tho Code section 134 must beread as giving power to Magistrates to record statements only in thocourse of investigations under Chapter XII of the Code.
An examination of Chapter XII shows that whether the investi-gation carried out thereunder bo in referenco to a cognizable or non-cognizablc offence, such investigation postulates a proceeding in court inrespect of which an inquiry or trial can bo said, to bo in contemplation.The functions of the Police are at this stage purely investigatory andfor this they are vested with a number of compulsive powers includingthe ono of ordering a person to attend at a police station for the purposeof being questioned. The Magistrate is himself given no powers of“ investigation ” of offences in the way in which police officers andinquirers are given such powers. Ho is not invested with the power givento police officers and inquirers of orally examining and questioningpersons supposed to be acquainted with tho facts and circumstances ofthe case, when such persons aro bound to answer truly any questionsput to them by the Police officer or tho inquirer except those whichwould tend to incriminate him. But although tho Magistrate himselfis given no direct powers of investigation, tho Codo contemplates aclose liaison between the Magistrate and the inquirer or Police Officerinvestigating an offence under Chapter XII. It is important to noto thatwhatever other powers or duties of investigation the polico may havederived from other statutes, any investigations carried out in the exerciseof those powers or duties, are not carried out under Magisterial supervisioncontemplated in an investigation under Chapter XII. For instance, if thoC.I.D. chooses to investigate a crime (without bringing in the uniformedbranch of the Police) they will not enjoy any of the compulsive powersof investigation given to an officer in charge of a Police Station andsubordinate officers investigating an offenco under Chapter XII. Wewould like to quote in this connection a passage from a recent book ofLord Devlin on the Criminal Prosecution in England because his commentsarc substantially true also of tho position in Ceylon. He says at pago 67 :—
“ Before I leave tho connection between interrogation and detention,it may bo useful to bring out thi3 point. When a person is taken intocustody, it is not that of the Criminal Investigation Department.
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ORDER OF COURT-—The Queen i Gnauttsccha Thero and others
The C.I.D. have no places of their own where they can keep theirquarry under their own control. The detective ofiicer who makesan arrest must take the accused to a police station, and there ho isformally charged by the station Inspector or the station Sergeant,and it' is in a cell there that ho is confined. So he passes at once intothe charge of what is sometimes called the uniformed branch of theservice as distinct from the plain elothers or detective branch. Youshould not overlook the importance of this. If any Gestapo practicesexisted, the C.I.D. could not keep the knowledge of them within itsown body, the knowledge would spread through the whole policeforce. Furthermore, the accused’s detention even in tho police stationis only temporary, perhaps for a night or two, until he can be broughtbefore a Magistrate. After that, if he is remanded in custody, lie issent to a local prison, where ho comes under the control of the prisonservice, a distinct body of men from tho police, men who have nomore interest in the detection and punishment of crime than theordinary citizen has and whose vocation is tho reform of the criminal.Special rules govern the custody of an accused person, he is treatedquite differently from those who are convicted and undergoingpunishment, and if possible he is not to be put with them. Ho may,if he can afford it, buy his own food and pay for specially furnishedrooms and certain domestic service. He may see his legal advisersin private and his written instructions to them are not subject tocensorship. Any infringement of his common-law rights not authorisedby the rules would be actionable.”
When an investigation is duly earned out under Chapter XII, -statements recorded in the course of such investigation become subject tothe provisions of section 122(3) and have only a very limited usefulnessat a subsequent inquiry or trial. Further, s. 25 of the Evidence Ordinanceplaces a complete bar on the use against an accused person of any statementamounting to a confession made to a police officer ; section 26 places asimilar bar on confessions made by an accused person while in custodyunless made in the immediate presence of a Magistrate; section 24 ofthe Evidence Ordinance debars a court from admitting as evidence anyconfession which appears to it to have been made (to put it briefly) as aresult of any inducement, tlireat, or promise proceeding from a person inauthority into which class would fall police officers and inquirers, as theyare persons (particularly those investigating the offence) concerned inthe arrest detention, examination and prosecution, of the accused. Itis in this background, the defence submits, that section 134 of the CriminalProcedure Code gives a power to Magistrates to record “ statements ”.
The limitations placed by section 122(3) of the use of statements made topolice officers and inquirers would not apply to statements made to aMagistrate because he is neither a police officer nor an inquirer holdingan investigation under Chapter XII. If the statement to the Magistrateamounts to a confession neither section 25 nor 26 of the Evidence-Ordinance would operate to prevent the use of such confession in evidence
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against the accused ; and in order to ensure that the confession is not onewhich might l>c rendered irrelevant under section 24 of the EvidenceOrdinance, the Magistrate is required not to record, in the exercise of hispower of recording statements, any statement amounting to a confessionunless he is satisfied upon questioning the person desiring to make thestatement that it is being made voluntarily.
It is submitted by Dr. de Silva that sect foil 134 was enacted andfinds a place in our law mainly, if not solely, for the purpose of enabling apolice officer or inquirer investigating an oirenec under Chapter XII tosend or produce before the Magistrate any person who has been taken intocustody willing to make a statement to the Magistiate so that suchstatement when recorded by the Magistrate will not suffer the infirmitiesattaching to statements made to a police officer or inquirer in the courseof an investigation carried out under Chapter XII. Having regard tosimilar infimii tics attaching to similar statements in India and the presencein section 1C4 of the Indian Code of a provision similar in terms to oursection 134 and having regard to the position in England which does notattach these infirmities to statements made to investigating policeofficers, coupled with an absence of any provision in that country similarto section 134, there seems to be considerable substance in the contentionthat section 134 was enacted in Ceylon (and Section 1G4 in India) onlyin aid of the investigations of Police Officers and Inquirers authorised bythe Code. This view also receives support from a passage that occurs inthe judgment, of Socrtsz, J. in King v. Ranhamy1 where he says atpage 223 :—
“ Section 134 of the Criminal Procedure Code makes provisions forrecording, before the commencement of the inquiry or trial of two kindsof statements, non-confessional statements and confessional statement.Hon-confessional statements may be made by persons then accusedor by a witness whose statement the Investigating Officer considers itdesirable to obtain in this manner so that it may not suffer from thefrailties attaching to statements made under Chapter XII to a policeofficer or inquirer. ”
We have set out in full the arguments submitted for the viewthat before a Magistrate can act under section 134 the investigatoryprocesses under Chapter XII must bo under way in addition to therebeing proceedings pending in Court.
While wo are much attracted by this argument, wo prefer theview that it is sufficient if proceedings arc pending in a Magistrate’sCourt in which no inquiry or trial has yet commenced for a Magistrate toexercise powers under section 134. While we acknowledge the danger,which Socrtsz, J. commented upon in King v. Chandrasekera 8 of tryingto define our law by placing it upon' the Procrustean bed of English or
1 (1040) 42 N. L. It. 221.1 (1942) 44 N. L. R. 97 at 122.
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ORDER OK COURT—The Queen v. Gnunasceha Thcro and other*
Indian law, wo would like to merely refer to the parallel Indian Section.(Section 164) which gives to Magistrates of a certain category power torecord statements and confessions made to them (to q.ioto the words ofthe Indian section) “ in the course of an investigation under thi-s chapter orat any time afterwards before the commencement of the inquiry or trial”.We also note that section 1G4 occurs within the very chapter dealing withinvestigatory powers of the police, whereas our section 134 appears in achapter separate from Chapter XII headed “ Chapter XIII—Statementsto Magistrates or Peace Officers Having noted theso differencesbetween the Ceylon and Indian enactments we would only liko to saythat we are not surprised to have arrived, upon analysis, at a conclusionin regard to the Ceylon law different—though not substantially so—fromthe law in India.
82. It has been contended by the Crown that if Magistrates cannotrecord confessions under section 134 before proceedings are initiated in' the Magistrate’s Court it would have the “ monstrous ” result that aMagistrate would be unable to record a confession from a person who,with no proceedings pending before the Court, comes to the Magistrateand confesses that he has killed, say, his wife. We can find nothingmonstrous in such a situation having regard to the fact that the legis-lature has done, if one adopts a similar line of thinking, an equallymonstrous tiring in rendering a Magistrate incapable of recording aconfession under this section after the commencement of an inquiry. •
S3. In any event we do not think that the legislature in enactingsection 134 was providing a public amenity for remorseful criminals tomake “ clean ” confessions. This, an offender, if he is so disposed, caneasily do by confessing orally or in writing to anyone who is not a personin authority or even by writing a letter of confession to the Editor of one ofour Newspapers or even to'a Magistrate, District Judge or Judge-of theSupreme Court because in such a case the recipient of the oral or writtenconfession is not called upon to exercise powers under section 134 of theCriminal Procedure Code. But it is quite a different matter to go to aparticular Magistrate and seek to invoke his statutory powers of recordingstatements.
, 84. But the stiuation is not as bad as imagined by the Crown. If aperson desires to make a confession to a Magistrate and to no one elseand also to have it recorded with all the solemnities attendant on arecording of a confession under section 134 and also desires to ensurethat a virtually unassailable piece of evidence that can bo used tosecure his conviction should come into existence, then such a person hasonly to go to a Magistrate having jurisdiction over the offence—and thisis very likely to be the closest Magistrate—and ask to have his statementrecorded. 'In such a case the Magistrate has only immediately tocommence a case under section 148 (1) (c) in his court on suspicion based
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on what tho person has said and thereafter to record any statementconfessional or otherwise which tho person wishes to make in relation tnthat proceeding which has now been instituted.
85. There is ono further point that militates against the view that theCrown would have us take of thi3 section. It has been emphasised inmany decisions in tho courts of this country and India that when aperson is produced by the police for the purpose of having a confessionalstatement recorded, the Magistrate should administer appropriatecautions and give such person time to reflect upon his desire tomake a confession, away from the presence and influcnco of persons inwhoso custody he is at the time he is produced. Great- stress too is laidon the necessity for seeing that after the confession is made also he doesnot go back to his previous custodians but into judicial custody.A Magistrate must have powers of remand to Fiscal’s custody if ho is toact in conformity with these rules. Remands of this nature can be madeonly under section 126A or section 2S9 of tho Criminal Procedure Codeboth of which contemplate proceedings pending in that court before suchpower can be exercised.
S6. In the present case, the Superintendent of Police, Criminal Investi-gation Department, was constantly in touch with the Magistrate from the11th of April 19G6 onwards. At no stage did he arm himself with thesanction of the Attorney-General to initiate proceedings in court, nor seekan order from the Magistrate under section 129 of the Code authorisingan investigation under the Criminal Procedure Code. Even thoMagistrate himself did not on any of the various dates on which variouspersons were produced for the purpose of having statements from themrecorded treat the production of any of these persons as persons “ broughtbefore him without process accused of having committed an offencewhich the Magistrate’s Court of Colombo had jurisdiction to inquire intoor try ”—vide section 14-S(1) (d). Tho Crown has not contended and it ishardly possible to contend that there was initiation of proceedings beforethe Magistrate’s Court of Colombo either on tho 11th April 1965 or onany of the subsequent dates on which various persons were produced to.have their statements recorded. Indeed, the learned Attorney-General’sfiling of a warrant under his hand on 14th July 1906 is consistent onlywith no proceedings having been initiated prior to that date. Oneimportant fact must be noted in this context. If proceedings wero infact initiated on the 11th of April I960, tho Gth accused and most of theother accused would have had to be brought up on warrant and wouldhave passed into judicial custody from which it is hardly likely that anycourt would have permitted their being taken to tho Criminal Investi-gation Department Office for indefinite periods of time for tho purpose ofbeing subjected to the process of interrogation. The Magistrate at nostage ordered an investigation under section 129. Initiation of pro-ceedings was not oven remotely present in the Magistrate’s mind for honeither opened a case record nor asked for or received any reports of
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investigaiion from the police. The Magistrate himself conceded whilegiving evidence that although he issued remand warrants under section126A of the Criminal Procedure Code in respect of the period allowed forreflection, the circumstances did not exist for exercise of powers underthat section and the Crown accepts this as the correct legal position.Even this unauthorised exercise of remand powers was abandoned afterthe confessions were recorded and the confessing accused passed out ofeven the pretended judicial custody into which the Magistrate purportedto send them. The learned Attorney-General lias contended before usthat there was ample evidence against these accused gathered before the11th of April 1966 and that the confessions were in the nature of a wind-fall for the prosecution ; if that were so, it is difficult to understand whyproceedings were not commenced earlier so as to vest the Magistratewith necessary powers of remand which arc so necessary in recordingconfessions of persons under section 134 when they aro produced by thepolice. We do not wish to speculate on the reasons why this was notdone, but' the evidence suggests that commencement of proceedings incourt with the resulting judicial superintendence over the investigationand the passing of the accused into judicial custody seems to havo beenstudiedly avoided until the possibility of obtaining confessions—if anywere available—was fully explored.
S7. In. concluding our consideration of the question whether theMagistrate had power to record statements prior to the initiation ofproceedings, we would like to refer to an incident which occurred on the25th of July 1966. Proceedings having been instituted on the 14th ofJuly, all the accused except one, on whom warrant had not been served,appeared in court on the 25th of July. Counsel appearing for those ofthe accused with whom we aro now concerned informed the learnedMagistrate that these accused desired to make statements to him beforethe commencement of the inquiry in the proceedings now pending in courtand applied that these statements be recorded. After some discussionbetween court and counsel, the application appears to have been dropped,and the inquiry commenced; in the course of the discussion the learnedMagistrate is recorded to have remarked that this was not the time nor thevenue to make statements under section 134. This remark is one thatthe Magistrate might more legitimately have made to the Superinten-dent of Police, Criminal Investigation Department, when, the latterproduced various persons before him at his private residence in April andMay 1966 to have their statments recorded at a time when there were noproceedings pending in any court and when the Magistrate could notdivine whether proceedings would ever be instituted or not. On theoccasion on which the learned Magistrate did express this view, we canthink of no time more proper than the time at which the applicationwas made, and no venue more appropriate than the court house, forstatements to have been recorded under section .134.
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SS. For the reasons stated above we arc of opinion that—
a Magistrate has no power to record statements (confessional orotherwise) at a stage prior to the institution of proceedings in aMagistrate’s Court,
the proceedings in this case were instituted only on the 14th of July19C6,
the Magistrate had accordingly no power under section 134 torecord the confessions which arc the subject of this inquiry, thesehaving been recorded by him long prior to the 14th of July 19G6.
It now becomes necessary to consider the next point made by theCrown, viz:, that even though the Magistrate may have had no power torecord the confessions under section 134 of the Code, the confessions infact taken down by the Magistrate and signed by the accused and theMagistrate arc admissible under sections 17, 21, 24 and 26 of the EvidenceOrdinance as though they were written confessions given to a personother than a Magistrate. Drawing an analogy with evidence discoveredin the course of an illegal search, the learned Acting Solicitor Generalsubmits that a confession recorded ultra vires of the Magistrate’s powers isstill admissible.
We accept as settled law that relevant evidence (i.e., evidenceexisting independently of the illegal activity of the person discoveringit) is admissible despite the illegality of the activity in the course ofwhich such evidence was discovered.
But where, as here, the fact which is sought to be admitted inevidence is one which was non-existent prior to or independently of theMagistrate’s unauthorised act, and came into existence only because of it,and would not have come into existence at the time and in the circum-stances it did, but- for the ultra vires act of the Magistrate, the principlethat relevant evidence discovered in the course of an illegal or irregularactivity is admissible can have, in our view, no application.
It is urged that section 134 contains no rule of relevancy orirrelevancy. It certainly docs not ; but at the same timo the provisionsin section 134 relating to the recording of confessions aro founded upontho rules of relevancy and irrelevancy contained in sections 21 and 24of the Evidence Ordinance; with these provisions in view the section,while in the first place, it empowers a Magistrato to record statements,debars him from recording such a statement if it is confessional in natureunless he is satisfied of its voluntariness. This section, coupled withsection SO of the Evidence Ordinance, contemplates tho coming intoexistence of a piece of evidence, i.e., of a confession, together withpresumpt ive proof of its relevancy. In the case of Nazir Ahamed v. KingEmperor 1 where there was a complete failure by a Magistrate to follow
* (1936) A. I. R. (P. C.) 253.
ORDER OR COURT—The Queen a. Gnanaseeha Thcro and others
the procedural requirements of the Indian Section 164 Lord Rochedelivering the opinion of the Privy Council said :
*' Where a power is given to do a certain thing in a certain way thething must be done in that way or riot at all. Other methods ofperformance are necessarily forbiddden.”
and refused to permit admission of oral evidence of the confession asevidence rendered relevant by an application of section 21 of the EvidenceOrdinance. Their Lordships of the Privy Council went on to say :
" It was said that it (i.o., oral evidence of the confession) wasadmissible just because it had nothing to do with section 164 or withany record. It was argued that it was admissible by virtue of sections17, 21, 24 and 26, Evidence Act, 1872, just as much as it would boif deposed to by a person other than a Magistrate ….
For the appellant it was said that the Magistrate was in a casevery different from that of a private person, and that his case andhis powers were dealt with and delimited by the Criminal ProcedureCode, and that if this special Act dealing with the special subjectmatter now in question set a limit to the powers of the Magistrate,the general Act could not be called in aid so as to allow him to dosomething which he was unable to do, or was expressly or impliedlyforbidden to do, by the special Act. The argument was that there wasto be found by necessary implication in the Criminal Procedure Codea prohibition of that which was here attempted to be done : in otherwords that the Magistrate must proceed under section 164, or notat all.
Upon the construction adopted by the Crown, the only effect ofsection 164 is to allow evidence to be put in a form in which it can proveitself under sections 74 and SO, Evidence Act. Their Lordships aresatisfied that the scope and extent of the section is far other than this,and that it is a section conferring powers on Magistrates and delimit-ing them. It is also to be observed that,, if the construction contendedfor by the Crown be correct, all the precautions and safeguards laid downby sections 164 and 364 would be of such trifling value as to bo almostidle. Any Magistrate of any rank could depose to a confession made byan accused so long as it was not induced by a threat or promise, withoutafiirmatively satisfying himself that it was made voluntarily andwithout showing or reading to the accused any version of what hewas supposed to have said or asking for the confession to be vouchedby any signature. The range of magisterial confessions would be soenlarged by this process that the provisions of section 164 would almostinevitably be widely disregarded in the same manner as they weredisregarded in the present case.”-
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Lord Roche .also added:
" In their Lordships’ view it would be particularly unfortunateif Magistrates wore asked at all generally to act rather as Police Officersthan as judicial persons; to bo by reason of their position freed from thedisability that attaches to police officers under section 1G2 (the Cej’lonsection would be section 122) and to bo at the same time freed,notwithstanding their position as Magistrates from any obligation tomake records under section 164. In the result- they would indeed berelegated to the position of ordinary citizons as witnesses and thenwould be required to depose to matters transacted by them in theirofficial capacity unregulated by any statutory rules of procedure orconduct whatever.”
We regard this case as authority for the proposition that aconfession recorded by a Magistrate either without the power to do soor without substantial compliance with tho procedural requirementscannot bo used in evidence. The reason for this can only be that whatcomes into existence in such circumstances is in the eyes of the law anullity to which it is unnecessary to apply any rules of relevancy beforedisallowing its use in evidence.
It seems to us beyond question that persons in the position ofjudicial officers should not act as catalysts for the creation of evidenceexcept in tho exercise of a power given by law and in substant ial compliancewith the manner prescribed by law for its exerciso. In India there appearsto be some divergence of opinion as to the true meaning of what thePrivy Council said in regard to confessions recorded by Magistratesacting ultra vires of their powers under section 164. It is unnecessaryto examine the Indian cases cited, because it seems to us, quito indepen-dently of what tho Privy Council has said, that tho principle is. plainthat Magistrates should not be permitted by acting ultra vires theirpowers to bring into existence evidence against persons accused ofoffences. Tho Crown submits that the ratio in Kazir Ahmed’s case isthat a confession taken in broach of the procedural provisions of lawis inadmissible even though it may upon an application of sections 17,21, 23 and 20 of tho Evidence Ordinance be shown to bo a relevant fact-Whilo we agree that the case before their Lordships was ono of failureto comply with procedural provisions and not ono of total lack of power, .it is perfectly plain upon a reading of tho judgment that their Lordships’comments applied not only to cases of procedural lack of power but alsoto eases of substantive lack of power in the recording Magistrates. Atthe same time we must not be taken as saying that Kazir Ahmed’s casemust ba regarded as shutting out all confessions to Magistrates outsidesection 134. One can contemplate many situations in which confessionsmade to Magistrates can bo admissible though the Magistrate had no
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ORDER OF COURT—The Queen r. Giumasccha Thero (twl others
power to receive or record such confessions under section 134. A fewillustrations will sulfico: (1) Cases in which the Magistrate's act of recordingwas referable to some power in the Magistrate other than section 134 ;e.g., if a Magistrate holding an inquest of death records from a witness astatement which amounts to a confession, such a statement, even ifrecorded before the institution of criminal proceedings in the Magistrate’sCourt would be admissible in evidence subject to section 24 of the EvidenceOrdinance ; see for example the case of Ramasamy Reddiar 1 (2) casesin which neither the Magistrate nor the accused purport to act undersection 134., e.g., where an accused person sends an application in writingor a letter to the Magistrate in which he confesses to the commission ofan offence ; see the case of Rane Xaresh v. King Emperor 2.(3) cases
where a confession is made by one person to another who happens t-o boa Magistrate and who neither purports to act nor holds himself- out tobo listening to or receiving the confession in his capacity as aMagistrate.
Iii the present case it is impossible to contend—and the!;. Crowndoes not contend-—that the recording of the confessions is. referable tosome power in the Magistrate other than section 134 ; nor that the confos- ■sions which were written out by the Magistrate were signed and tenderedby the accused to the Magistrate independently of. section 134; northat the. confessing accused accidentally came upon Mr. David andconfessed to one who turned out to be a Magistrate; nor that each ofthe accused spontaneously thought of going to the Chief Magistrate ofColombo in order to make a confession. On the contrary the Magistratebefore whom they were to go was chosen by the Police; the accusedwere taken to the bungalow of the Magistrate at times arranged betweenthe Police and the Magistrate and in every case under heavy armedescort. We have no doubt at all that each of the accused fully believedthat Mr. David had power to record statements at the time and in themanner adopted by him. We have also no doubt that Mr. David himselfbelieved that he had authority at that stage to record confessions aindersection 134 of the Code. Indeed Mr. David announced to each of theaccused “ l am the Chief Magistrate ” and went through all the motionsof a Magistrate acting under section 134. Thus we have here a casewhere the Magistrate purported to act and held himself out as actingunder section 134 of the Code.
9G. He did all tin’s, we have no doubt, quite bona fide ; but as said by.Abrahams, C. J. in King v. Sepala <£ others 3—“ The fact that a personbona fide believes himself to possess the authority to perform certainofficial acts does not create that authority, not even if others believe that hehas that authority.”
i A. I. R- 1953 Mad. 138.* A. I. R. 1939 AU. 242. … .
* {1937) 38 N. It. R. 285; 1 O. L. W. S3.
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97. Where a confession is recorded by a Magistrate in circumstancessuch as these we are of opinion that it cannot be used in evidence. Thesame view has been taken in India—see the two cases of State v.Chaudhry1 and In re Thothan *. A passage from the former will sufficeto indicate the approach made to this question in India :
“ The other questions of Jaw urged related t-o the admission of theconfessions made by Budhoo. It was contended that though theconfession could not be recorded by a Magistrate under s. 164,Criminal P.C., after the investigation had concluded and inquiry hadcommenced before the committing Magistrate, the Magistrate recordingthe confession was not precluded from recording it if the accusedwas prepared to make it and that, therefore, the Magistrate was acompetent witness to prove that Budhoo had made a certain confessionto him. We do not agree with this contention and are of opinion thatthe case reported in Nazir Ahmed v. King Emperor, A.I.R. 1936 P.C.,253 (2) (N) is a complete answer to the contention. It is true that anaccused is free to make a confession at any time he likes and theperson to whom such a confession is made is also free to make astatement about it in Court and no question of admissibility or other-wise of such a confession should arise. The question of weight to beattached to such a confession is a different one. But the real point isthat a Magistrate is not just * any person He occupies the positionof a Magistrate. He purports to act as a Magistrate and not as anordinary individual. It lias clearly been laid down by their Lordshipsin the aforesaid decision that when a power is conferred upon a certainpublic servant, it must be exercised precisely in the manner in whichit is ordained to be exercised and that it was very undesirable thatMagistrates should act like ordinary citizens and should appear aswitnesses in Courts of law, and they should appear as witnesses only invery exceptional cases when law makes it incumbent for them to playthat role. This view of the Privy Council was endorsed by theSupreme Court in A.I.R. 1954 S. C. 322 at p. 335 (M) though in anotherconnection. We are, therefore, of opinion that a Magistrate could nothave recorded that confession of Budhoo purporting to exercise thepowers conferred on him U/S 1C4 Cr. P. C. and could not be taken inevidence.”
9S. In Ceylon we have come upon only one case in which the questionhas been considered whether a confession made to a Magistrate at a timehe had no power to act under section 134 is admissible in evidence. Thatis the case of King v. Punchimahalmaya 3 in which the Court of CriminalAppeal while holding that a confession recorded by a Magistrate after thecommencement of the non-summary inquiry was not a statement of the
* A. 1. R. 1956 Mad. 425.
1A.I.R. 1955 All. 13S.
11942) 44 N. L. R. SO.
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ORDER OE COURT—The Queen v. GnaiiaseeJia Thero and others
accused which the Crown was bound to put in under section 233 of theCode also held that the Trial Judge had rightly ruled that it was notcompetent for the Crown to put in evidence a confession recorded at atime w hen the Magistrate had no power under section 134 of the Code torecord it.
90. In. cases in which the Magistrate had power t o act under the sectionbut did so without substantial compliance with the procedure laid down,our courts have uniformly rejected such confessions without pausing toconsider whether evidence of such confessions could not be admittedunder the general rules of relevancy of confessions contained in theEvidence Ordinance. For example : in King v. Mudianse1 it was held(inter alia) that a confession recorded by a Magistrate purporting to actunder section 134 but taken under oath was inadmissible in evidence byreason of that fact alone and without the application of any tests forvoluntariness. In King v. Bilmda2 the court rejected a confessionrecorded by a Police Magistrate without complying with any of therequirements of sections 134 and 302. In this case, Jayewardene,A. J. said :—
“ In my opinion the Magistrate failed to question the accused tosatisfy himself that the confession was voluntary and I can see noground for saying that he had reason to believe that it was in factvoluntary. There has been a failure to comply with the letter andthe spirit of section 134 which is framed in imperative terms. Thesocalled confession is therefore inadmissible in evidence and oughtto have been rejected. ”
In King v. Mudiyanselage Ranhamy3 Abrahams, C.J. rejected aconfession on the ground that the Magistrate, although he did put somequestions to the accused before recording his confession, was “ tooperfunctory in the discharge of his duty ”.: *
For the reasons set out we find the conclusion irresistible that a
.confession recorded by a Magistrate having no power to" do so isinadmissible in evidence. Accordingly all the confessions underconsideration in these proceedings including those of the 1st, 3rd -and 16th accused (X66, X67 and X75 and X76) would, on thisground, be inadmissible in evidence.'
In the result we rule that the Attorney-General is not entitled
to refer to any of the confessions under consideration in his openingaddress to the jury.T’ ..
' » (19IS) 21 N. 1>. R. 48 F. B.* {1926) 27 N: L. R. 390.]
* (1937) 2 C.L.J. 104.■ — ,-V"—
Piyadasa t>. The Queen
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We take the opportunity of expressing our deep debt of gratitudeto all the counsel on both sides, particularly the Attorney-General, theActing Solicitor-General and Dr. Colvin R. de Silva for their very helpfuladdresses on the intricate points of law involved in this inquiry.
Sgd. G. P. A. Silva,
Senior Puisne Justice.
Sgd. V. Siva Suphamantam,Puisne Justice.
Sgd. V. Tenkekoox,Puisne Justice.
Confessions ruled inadmissible in evidence.