King V. De Silva Et Al.,

 

1940     Present: Nihill J.

 

THE KING v. DE SILVA et al

67-M. C. Kalutara, 44,756

 

Criminal Procedure Code, s. 122 (3)-Statement made to a Police Officer in the course of an investigation into offence-Use of statement for corroboraten of evidence-Right of accused to elicit in evidence statement made to support defence-Evidence Ordinance, s. 157.

 

Section 122 (3) of the Criminal Procedure Code applies to statements made by all persons whether they are or whether they subsequently become accused persons or not

 

The written record of a statement made to a Police officer in the course of an investigation into an offence cannot be used to corroborate a statement for the defence

 

A Police officer may, however, be asked by the defence whether the accused made a statement to him, which indicated the line of defence taken up by the accused at the trial and the Police officer may use the document to refresh his memory for the purpose of answering the question.

 

The prohibition in sub-section (3) is directed against the use of the statement as a document.

 

CASE heard by a Judge and jury before the 3rd Western Circuit held at Kalutara.

 

R. L. Pereira, K.C. (with V. F. Gunaratne), for first and second accused.

 

U. A. Jayasundera (with him H. A. Chandrasena), for third and fourth accused.

 

G. E. Chitty, C.C., for the Crown.

 

August 19, 1940. NIHILL J.-

 

Mr. Chitty has objected to Mr. R. L. Pereira putting questions to Sergeant Kannangara on the statement made to him by the first accused on his arrest on the grounds that this would amount to a violation of section 122 (3) of the Criminal Procedure Code. Mr. R. L. Pereira contended that the section does not apply to an accused person and that as he intends to call the first accused to speak to what he told the Police Sergeant he is entitled to obtain corroboration under section 157 of the Evidence Ordinance.

 

With regard to Mr. Pereira's first point I hold that the section has general application to statements made by all persons whether they are or whether they subsequently became accused persons or not. I base my finding on the recent Privy Council decision in Swami v. King Emperor[1 (1939) 1 A. E. R. 396] wherein it was clearly held by Their Lordships that section 162 (1) of the Indian Criminal Procedure Code (which corresponds in principle with our section 122 (3) ) had such general application. From the judgment of Lord Atkin it would appear that during the course of the argument it was contended that to give the section general application would be to repeal section 27 of the Indian Evidence Act (see section 27 of our Ordinance) for a statement giving rise to a discovery could not then be proved. Mr. Pe

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