1933 Present : Dalton S.P.J.

VAN CUYLENBERG v. CAFFOOR.

540-P. C. Colombo, 42,516.

Criminal Procedure-Refusal to answer questions put by Police Officer- Tendency to incriminate-Latitude to witness-Criminal Procedure Code, s. 122 (2), Penal Code, s. 177.

Where a person who was bound to answer questions put to him by a Police Officer, in terms of section 122 (2) of the Criminal Procedure Code, refused to answer them on the ground that they would have a tendency to expose him to a criminal charge,-

Held, that in order to entitle a person to the privilege of silence under such circumstances, the Court must see that there is reasonable ground to apprehend danger to such person from his being compelled to answer.

If the fact of the person being in danger be once made to appear, great latitude should be allowed to such a person in judging for himself of the effect of a particular question, since a question which might appear at first sight a very innocent one might, by affording a link in a chain of evidence, become the means of bringing home an offence to him.

APPEAL from a conviction by the Police Magistrate of Colombo, The accused was charged under section 177 of the Penal Code, that being legally bound under the provisions of section 122 (2) of the Criminal Procedure Code to answer truly the questions relating to an offence, put to him by an Inspector of Police inquiring into the matter, refused to answer them. He was convicted and sentenced to six months' simple imprisonment.

Hayley, K.C. (with him R. L. Pereira, K.C., H. V. Perera, and Ismail), for accused, appellant.-This conviction is under section 177 of the Penal Code. The requirements of that section are-(i.) The person must be

legally bound to speak the truth; (ii.) He must refuse to answer; (iii.) The question must be one touching the subject on which he is legally bound to answer. The only question in this case was, who was the driver of the offending car? At the identification parade accused was identified as the driver by three persons. At the inquest in the evening the Inspector. " produced" him, i.e., probably under arrest. He then told the accused to come to the Police Station in the evening and there put him the two questions. The appellant was therefore either an accused or so nearly an accused that the answers would have tended to expose him to a criminal charge. The word used is "charge" not "conviction", i.e., the possibility of a prosecution. (Deheragoda v. Alwis.[1 10 N. L. R. 233. ]) The principle of the English law is the same as in this section. The rule was that it was absolutely in the discretion of the witness to say whether the answer would tend to incriminate him or not unless of course his refusal was obviously frivolous. (Regina v. Boyes [2 30 L. J. Q. B. 301; In re Reynolds (20 Ch. D. 294).]) The principle goes only to the extent that the Court may satisfy itself of the bona fides of the witness. The widest discretion is given to the witness. This provision is not only for the protection of the guilty but also of the innocent. (Fisher v. Ronalds [3 (1852) 12 C. B. 762.]; Adorns v. Lloyd.[ 4 27 L. J. Exch. 499.]) The English law is dealing with evidence where the witness has the assistance of Counsel and the Court. The rule in Ceylon should be stricter where a person has to rely solely on himself to decide whether an answer would tend to incriminate him or not.

Illangakoon, Acting S.-G. (with him Pulle, C.C.), for respondent.-A person acquainted with the circumstances of a case is as a general rule bound to answer all questions put to him by a Police Officer. (Section 122 (1) and (2) Criminal Procedure Code.) An exception is provided where a question has a tendency to expose a person to a criminal charge. Burden, of proof is on accused to prove he comes within exception. See section 105 Evidence Ordinance. Section 122 (2) embodies maxim "Nemo tenetur seipsum pr