[IN THE PRIVY COUNCIL]

1964 Present: The Lord Chancellor, Viscount Radcliffe, Lord
          Morris of Borth-y-Gest, Lord Hodson, and Lord Pearce

THE QUEEN, Appellant, and MURUGAN RAMASAMY, Respondent

PRIVY COUNCIL APPEAL No. 24 OF 1963

C.C. A. No. 2 of 1982-S. C. 14/M. C. Gampola, 3082

Evidence-Meaning and effect of section 122 (3) of Criminal Procedure Code-Applicability to an accused person as much as to any other witness-Exclusion of oral evidence as well as written records-Relationship between section 27 of Evidence Ordinance and section 122 (3) of Criminal Procedure Code-Applicability of maxim generalia specialibus non derogant-Evidence Ordinance, ss. 24, 25, 26, 27, 157.

      Section 27 (1) of the Evidence Ordinance, No. 14 of 1895, is as follows :-

     When any fact is deposed to as discovered in consequence of information' received from a person accused of any offence, in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved.

   Section 122-(3) of the Criminal Procedure Code, No. 15 of 1898, is as follows :-"

    No statement made by any person to a police officer or an inquirer in the course of any investigation under this Chapter shall be used otherwise than to prove that a witness made a different statement at a different time, or to refresh the memory of the person recording it. But any criminal court may send for the statements recorded in a case under inquiry or trial m such court and may use such statements or information, not as evidence m the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such statements, nor shall he or they be entitled to see them merely because they are referred to by the court; but if they are used by the police officer or inquirer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer or inquirer, the provisions of the Evidence Ordinance, section 161 or section 145, as the case may be, shall apply.

     Nothing in this subsection shall be deemed to apply to any statement falling within the provisions of section 32 (1) of the Evidence Ordinance, or to prevent such statement being used as evidence in a charge under section 180 of the Penal Code."

                     In a trial for attempted murder by shooting with a gun certain evidence was admitted by the presiding Judge to the effect that a gun capable of causing the injury actually inflicted on the injured person had been discovered in consequence of information of its whereabouts which the accused respondent had given to a police officer in a statement made by him in the course of an investigation set on foot under Chapter XII of the Criminal Procedure Code. It was not in dispute that at the time of making the statement the accused Was in the custody of the police officer. The evidence that was admitted was not the entire statement but only that portion of it which related distinctly to discovery of the gun. There was no application from the defence Counsel that the entire statement should be put in.

    Held, (i) that statements made during a police investigation by a person then or subsequently accused are within the prohibition imposed by section 122 (3) of the Criminal Procedure Code and cannot be used at his trial. Section 122 (3) extends to an accused person as much as to any other witness.

          (ii) that the prohibition of using " statements " that section 122 (3) of the Criminal Procedure Code imposes applies not only to the written records but also excludes oral evidence of anything said. Section 122(3) must be read as covering the use of oral evidence of statements made during police investigation just as much as the written records of such statements.

      R. v. Jinadasa (1950) 51 N. L. R