1962 Present : H. N. G. Fernando, J., and Herat, J.



O. GOONEWARDENE, Petitioner, and, M. J. DE SARAM, Respondent

S. C. 207 of 1962-Application in revision in D. C. Colombo, 51620 /M

    Evidence-Statement made by a person to a police officer in the course of an investigation into a cognizable offence-Nature of the prohibition against the admissibility of such statement in evidence-Procedure for use of statement-Presumption of regularity as to the recording of the statement-Criminal Procedure Code, s. 122 (3)-Evidence Ordinance, ss. 21, 27, 114, 145 (1), 155, 137-Civil Procedure Code, s. 154.

    Interlocutory appeal-Stay of proceedings pending appeal refused by District Court- Right of appellant to seek relief by way of revision.

    Where a statement has been recorded by a police officer in the course of an investigation into a cognizable offence, the prohibition as to its use contained in section 122 (3) of the Criminal Procedure Code would apply despite the fact that the person making the statement may have affixed his signature thereto.

    The decision of five Judges in R. v. Buddharakkita et al. (63 N. L. R. 433), while clearly stating that a statement (whether it be the oral statement or the written record) made to a police officer under section 122 of the Criminal Procedure Code cannot be proved as an admission under section 21 of the Evidence Ordinance, or as " corroboration " under section 157 of the Evidence Ordinance, did not disapprove of the use of the written record for purposes of contradiction. Sub-section 3 of section 122 of the Criminal Procedure Code does not prohibit the use of the written record for purposes of contradicting a witness in terms of section 155 of the Evidence Ordinance, whether in criminal or civil proceedings. Buddhadasa v. Mahendran (58 N. L. R. 8), considered.

    When a statement recorded under section 122 of the Criminal Procedure Code is proposed to be utilised as a mode of contradicting a witness, there would attach to the record the rebuttable presumption referred to in section 114 of the Evidence Ordinance that an official act has been regularly performed.

    Where an interlocutory appeal is filed in respect of an order which goes to the root of a case and it is convenient and in the interests of both parties that the correctness of that order should be tested by an early decision of the appellate Court, it is open to the appellant to move the Supreme Court in revision before the next date of trial if stay of proceedings pending the interlocutory appeal has been refused by the District Court.

    APPLICATION to revise an order of the District Court, Colombo.

    C. Thiagalingam, Q. C., with M. Tiruchelvam, Q. C., and G. T. Samerawickreme, for defendant-petitioner.

    H. W. Jayewardene, Q. C., with C. Ranganathan, S. J. Kadirgamar, K. Viknarajah and S. S. Basnayake, for plaintiff-respondent.

Cur. adv. vult.

June 6, 1962. H. N. G. FERNANDO, J.-


    The plaintiff is suing in this action for the recovery of damages sustained in an accident alleged to have been caused by the negligent driving of the defendant's car. The defence set up is that the accident is due either to negligence or to contributory negligence on the part of the plaintiff, who was riding a motor scooter.

    The plaintiff, in the course of her evidence at the trial, maintained that while she was riding her scooter on the left side of the Havelock Road in the direction Colombo to Nugegoda, the defendant's car approached her on the same side of the road, alleging thereby that the defendant had been driving his car on the incorrect side of the road. According to the plaintiff there was no other traffic approaching her except the defendant's car. The time was about 8 p.m. and the road was slightly wet and she had warning of the approach of the defendant's car because its head lights were on. She stated that she attempted to avo