Present: Jayewardene A.J.

KING v. BILINDA et al.

123, 123A-D. C. (Crim.) Kegalla, 2,386.

    Confession-Failure of Magistrate to comply with requirements of the Code-No memorandum or signature of accused-Admissibility- Criminal Procedure Code, ss. 134, 302-404.

Where a Police Magistrate records the confession of an accused person, without complying with any of the requirements of sections 134 and 302 of the Criminal Procedure Code,-

Held, the confession was inadmissible in evidence.

Semble, in such a case it is not possible to resort to section 424 of the Criminal Procedure Code to make good the omission.

Observations as to the procedure to be adopted when an accused person who wishes to make a confession is produced before a Magistrate by a Police Officer.

THE accused were charged under section 456 of the Penal Code with forgery of a deed. On the deed, purporting to be signed by one Horatala, as grantor, a civil action was brought in the Court of Requests of Gampola.- When the civil case was terminated, Horatala, who denied having executed the deed sent a petition regarding it, and a police investigation was directed. As a result of this investigation first accused, the brother of Horatala, was charged with the forgery, together with the fourth accused, who was an attesting witness to the deed. The police arrested the first accused twenty miles away from Kandy, and brought him to the Kandy Police Magistrate to be remanded. Here a confession was made by this accused to the Magistrate. This confession was retracted by the accused in his statutory statement before the inquiring Magistrate and before the District Court. The District Judge of Kegalla found the accused guilty and sentenced them each to three months' rigorous imprisonment. The accused appealed from this conviction and sentence on the ground that the confession has been improperly admitted against them.

Allan Drieberg, K.C. (with him B. L. Pereira and Navaratnam), for first and fourth accused, appellants.-Whatever may be the consequence of the confession, as against the first accused, as regards the fourth accused, this confession-even if rightly admitted- is riot evidence as it is a statement made by a co-accused, see Rex; v. Ukku Banda.1[1 (1924) 24 N.L.R. 327.]

The case of the first accused would depend on whether the confession is admissible or not. A point to be noted is that this accused retracted his confession in his statutory statement before the District Judge of Kegalla.

This confession is purported to be recorded under section 134 of 1928. the Criminal Procedure Code, corresponding to section 164 of the . Indian Code. Defects may be remedied under section 424 in certain circumstances, e.g., the absence of a signature would under section 533, Indian Code, not invalidate a confession if independent evidence is available of accused ratifying his confession, see Queen Empress v. Raghu.1

Section 424 may be utilized if the defect is only one of form, but it cannot be resorted to make good all omissions. Here the memorandum was signed by the Magistrate two months after the confession ; there is nothing to show that the confession was made voluntarily, the accused has not signed his statement, and nothing to show that his statement was read, over and explained to him.

The questions put and the answers given, to show whether the statement was a voluntary one, are not recorded as required under section 302 of the Criminal Procedure Code.

The terms of section 134 are imperative. In India, if the provisions are not complied with, section 533 corresponding to our section 424 does not cure the defect, see Queen Empress v. Viran.2

In the Indian cases the fact that an accused was in police custody is to be reckoned as bearing upon the question as to whether the confession was voluntary or not. Further, no confession should be recorded in the presence of the police officer who has arrested