Poyser CJ:

In this case the three respondents were jointly charged with the murder of one Gengan on 7 January 1939; they were acquitted by the trial Judge on 22 March. One Velupillay was also charged with them; he was discharged, but his discharge did not amount to an acquittal. The appeal is by the Public Prosecutor on the grounds that the trial Judge was wrong in law in holding that certain statements made by the respondents to the Magistrate, Kuala Pilah, were inadmissible in evidence, and also wrong in acquitting and discharging the respondents on the ground that there was no case against them.

The Public Prosecutor, in opening, made it abundantly clear that although the appeal was in form an appeal against acquittal, in substance it was an appeal on a point of law in regard to which there were conflicting decisions, and he required from us an authoritative decision which would be binding on the Courts of the Federated Malay States. He further stated that if this Court did uphold his argument and formally set aside the order of acquittal, he had no intention of instituting fresh proceedings against the respondents, if this Court considered such proceedings to be undesirable, and we did intimate that we thought such a course would be most undesirable.

In regard to this aspect of the appeal I would only express the opinion that only under the most exceptional circumstances would I consider the question of setting aside an order of acquittal in a murder case, but as in this case whatever order we make will not lead to the retrial of the respondents, there could be not objection, if we uphold the Public Prosecutor's argument, in allowing the appeal pro forma.

The evidence which the trial Judge rejected consisted of statements made by the respondents on the 8 January before a Magistrate. The Magistrate gave evidence and set out the circumstances in which these statements were recorded.

These circumstances were as follows. On the night of 9 January the four accused were brought to the Magistrate's bungalow; they told him that they wished to make statements. The Magistrate having satisfied himself that there had been no threats or compulsion recorded their statements after the usual form of affirmation for a witness had been administered to them.

One of the statements, viz. that of Raman II, was in the nature of a confession; the other respondents admitted being present when the deceased was killed, and implicated Raman II.

The trial Judge refused to admit any of these statements in evidence on the ground that to do so would be to ignore "the plain and peremptory provisions" of s. 115(v) of the Criminal Procedure Code. This sub-section is as follows:

No oath or affirmation shall be administered to any person making a statement or confession as in this section provided.

Before this sub-section was enacted this Court held (Chow Eng v. PP, [1924] 4 FMSLR 289 that the administration of an affirmation constituted a threat or inducement and rendered a confession inadmissible.

The correctness of this decision has recently been questioned in the Colony, where there is still no statutory provision similar to s. 115(v); but I do not think it necessary that I should at this stage express any opinion on those conflicting decisions. The first point in this case is not whether Chow Eng v. PP [1924] 4 FMSLR 289 was correctly decided or not, it is if the prohibition in s. 115(v) is disregarded can the Court treat such disregard as an irregularity which can be waived under the provisions of s. 420 of the Criminal Procedure Code, and if it can, then the question of whether an affirmation constitutes a threat or an inducement can be considered.

The Public Prosecutor argued that the Criminal Procedure Code is purely a procedural Code, and does not deal with matters of evidence, and that a confession or statement is prima facie admissible in evidence, and can only be rejected if it comes under the statutory exceptions e.g. a confes