Police Sergeant Hendrick V. Arumugam Et Al.,

1937 Present : Soertsz J.

POLICE SERGEANT HENDRICK v. ARUMUGAM et al.

325-P. C. Nuwara Eliya, 11,885.

Confession-Made to Unofficial police Magistrate-Non-summary proceedings-Case tried summarily by Police Magistrate as District Judge-Criminal Procedure Code, s. 134-Evidence Ordinance, ss. 24 and 26.

Where a confession was made to an Unofficial Police Magistrate by an accused person in non-summary proceedings taken against him and the case was eventually tried summarily by a Police Magistrate acting as District Judge,-

Held, that the confession was admissable in evidence.

A confession made to an Unofficial  Police Magistrate by an accused whilst he was in the custody of a police officer is admissible under section 26 of the Evidence Ordinance.

APPEAL from a conviction by the Police Magistrate of Nuwara Eliya.  The accused were charged with the theft of jewellery under section 369 and 440 of the Penal Code valued at over Rs.300.  The

main evidence against the accused was a confession made by first accused while in Police custody before an Unofficial Police Magistrate who recorded the confession because the offence was a non-summary one.  The Police Magistrate tried the accused summarily making use of his powers as District Judge and admitted the confession in evidence against the accused.

O. L. de Kretser (Junior), for appellant-The confession is inadmissible because-

(1) Section 84 (a) of the Courts Ordinance, No.1 of 1889, which confers powers on an Unofficial Police Magistrate does not permit him to take proceedings in case triable summarily.

In 6 Cal. Law Reports 289 it has been held that recording a confession is the commencement of proceedings. (Princeps Criminal Procedure Code, p. 177.)

Section 134 and 302 of the Criminal Procedure Code, in terms of which the confession was recorded, are primarily intended for non-summary offences.  These sections were not primarily intended to regularize confessions to the Police.  (Chitaley Criminal Procedure Code, vol. I., p. 846.)

(2) An Unofficial Police Magistrate has only the powers of a Police Court and not of a Police Magistrate as laid down in the Criminal Procedure Code.  Therefore section 26 of the Evidence Ordinance does not apply and the confession recorded before an Unofficial Police Magistrate while accused is in Police custody is bad.

Douglas Jansze, C.C., for the Crown.-It is immaterial as to how a case is tried subsequently if at the time of recording a confession the accused is charged with offence non-summary in character.

The powers of a Police Court and a Police Magistrate are identical. Therefore a confession before an Unofficial Police Magistrate can be used in evidence.

There is sufficient evidence even eliminating the confession to convict accused.

Cur. adv. vult.

May 14, 1937. SOERTSZ J.-

The two accused-appellants were charged with offences punishable under section 440 and section 369 of the Penal Code. The value of the stolen property was three hundred and thirty-three rupees, and consequently, both offences fall beyond the jurisdiction of the Police Court. The Magistrate before whom the accused were charged being also District Judge assumed jurisdiction under section 152 (3) of the Criminal Procedure Code and after trial, convicted both the accused and sentenced each of them to a term of three months' rigorous imprisonment.. The Magistrate in his judgment points out that he considered the two cases separately. That is as it should have been, for in the case of the first accused the prosecution relied on a confession said to have been made by him to an Unoffieia1/Police Magistrate and that confession, if admissible, was admissible only against the first accused. This confession was made by appellant's counsel the first ground of attack. He contended that the confession was inadmissible (a) because the Unofficial Police Magistrate derived his power

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