1918.   [Full Bench.]

Present: Ennis, Shaw, and De Sampayo JJ.

THE  KING  v.   MUDIANSE   et  al.

P. C. Kandy, 17,348.

Accused arrested on suspicion ? Murder ? Statement of accused taken on oath ? Statutory statement under s. 155, Criminal Procedure Code ? Statement of accused read over to him and admitted to be correct ? Statement admissible ? Criminal Procedure Code, ss. 134, 302, and 155.

The statement of an accused person (arrested on suspicion of having committed an indictable offence) taken on oath as that of a witness is not in accordance -with the provisions of sections 134 and 302 of the Criminal Procedure Code, and is inadmissible against the accused at the trial.

An accused whose statement was so recorded subsequently made a statement, when addressed under section 155 of the Criminal Procedure Code, as follows: " Yesterday I made a full statement to the Magistrate, that is the statement I wish to make now. " The Magistrate then had the statement previously recorded read to the accused, and made the further endorsement that the accused admitted it to be correct.

Held, that as the first statement had become incorporated with the statutory statement under section 155, it was not merely admissible, but must be put in evidence at the trial.

THE facts appear from the judgment.

Brito Muttunayagam, for the accused-An accused was incapable of giving evidence on oath before the Evidence Ordinance of 1895. Section 120 (4) made him competent, but it was an inroad on the common law rule. It must, therefore, be construed strictly (1 Bal. 44). The Police Magistrate intended to act under section 134, Criminal Procedure Code, which cannot be said to come under section 120 (4) of the Evidence Ordinance. The Police Magistrate, therefore, had no power to administer an oath before taking down the confession, and so the confession is inadmissible.

Section 155, Criminal Procedure Code, requires that the accused must be informed of the nature of the charge, and warned, as specifically provided by the section, before he can be asked to make a statement*. The confession having been made before the above preliminaries were gone through, cannot claim admissibility under this section-The Itnbuldeniya Double Murder Case (Ceylonese newspaper, December 12, 1914).

The fact that the accused stood by his confession when questioned under section 155, Criminal Procedure Code, does not make the (otherwise inadmissible) confession admissible (9 Mad. 824). If that fact makes it admissible, all inadmissible confessions would be made admissible by getting the accused to assent before a Police Magistrate.

Section 155, Criminal Procedure Code, refers only to " any statement made by the accused " at the time, and not to any statement referred to by him.

Garvin, S.-G., for the Crown-The fact that the accused was affirmed does not compel him to answer questions if they tend to incriminate him. If the accused goes to a Police Magistrate and makes a confession, there is nothing to prevent the Police Magistrate being called to prove the confession. If the Magistrate has recorded that confession, the record may be proved, as the record is the best evidence of it (see Evidence Ordinance, section 91). Section 424 of the Criminal Procedure Code provides that, if the provisions of the Code have not been fully complied with by the Police Magistrate, the Court may take evidence that such accused duly gave the evidence or statement recorded.

Counsel referred to King v. Cadramen.

The statement as recorded by the Magistrate is in any event admissible, as the accused admitted the statement to be correct when it was read over to him. The accused himself said that he had made a full statement, and that he had nothing to add. The Magistrate thereupon read the statement to him, and he admitted that it was correctly recorded.

[DE Sampayo J-If accused said " I made a statement to Punchi Banda, an