EXAMINATION OF WITNESSES BY POLICE OFFICER.
Duncan
Abeynayaka – LLB, Attorney At Law
CODE OF CRIMINAL PROCEDURE ACT
110.
(1) Any police officer or inquirer making an
investigation under this Chapter may examine orally any person supposed to be
acquainted with the facts and circumstances of the case, and shall reduce into
writing any statement made by the person so examined, but any oath or
affirmation shall not be administered to any such person. The whole of such
statement shall be recorded in full in the manner set out in section 109 (2).
If the police officer or inquirer asks any question in clarification such
question and the answer given thereto shall be recorded in form of question and
answer. Such record shall be shown or read to such person or if he does not
understand the language in which it is written, it shall be interpreted to him
in a language he understands and he shall be at liberty to explain or add to
his statement. The person making the statement shall then sign that statement
immediately at the place where the statement is concluded. The police officer
or inquirer recording the statement shall append below each statement recorded
by him the following certificate : -
"I .....hereby declare that I
have faithfully and accurately recorded the statement of the above named .....
".
If such statement is not recorded in
the Information Book, a true copy thereof shall as soon as may be convenient be
entered by such police officer or inquirer in the Information Book. Any
alterations in such statement shall be initialed by the person making it and
any portion of the statement that requires to be deleted as a result of the
alteration shall be scored off in such a manner as would not make that portion
illegible.
(2) Such person shall be bound to answer truly all
questions relating to such case put to him by such officer or inquirer other
than questions which would have a tendency to expose him to a criminal charge
or to a penalty or forfeiture.
(3) A statement made by any person to a police officer in
the course of any investigation may be used in accordance with the provisions
of the Evidence Ordinance except for the purpose of corroborating the testimony
of such person in court;
Provided that a statement made by an
accused person in the course of any investigation shall only be used to prove
that he made a different statement at a different time.
Anything in this subsection shall not
be deemed to apply to any statement falling within the provisions of section 27
of the Evidence Ordinance or to prevent any statement made by a person in the
course of any investigation being used as evidence in a charge under section
180 of the Penal Code.
(4) Any criminal court may send for the statements
recorded in a case under inquiry or trial in such court and may use such
statements or information, not as evidence in the case, but to aid it in such
inquiry or trial. Save as otherwise provided for in section 444 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 or witness who
made them to refresh his memory, or if the court uses them for the purpose of
contradicting such police officer or inquirer or witness the provisions of the
Evidence Ordinance, section 161 or section 145, as the case may be, shall apply
:
Provided that where a preliminary
inquiry under Chapter XV is being held in respect of any offence, such
statements of witnesses as have up to then been recorded shall, on the
application of the accused, be made available to him for his perusal in open
court during the inquiry.
111. Any inquirer or police officer shall
not offer or make or cause to be offered or made any inducement, threat, or
promise to any person charged with an offence to induce such person to make any
statement with reference to the charge against such person. But any inquirer or
police officer shall not prevent or discourage by any caution or otherwise any person
from making in the course of any investigation under this Chapter any statement
which he may be disposed to make of his own free will.
DECIDED JUDGEMENTS
01. SAMSON ATYGALA V. ATTORNEY-GENERAL [1986J
1 SRILR. 390
Unlike under s. 122 (1) of the old
Criminal Procedure Code under section 70 (3) of the Administration of Justice
Law which was the law applicable at the time (and even under s. 110 (1) of the
present Code of Criminal Procedure Act) a police officer making an investigation
may examine orally any person acquainted with the facts. He shall reduce in to
writing any such statement made by the person examined and the person making
the statement shall sign the statement thus adopting the statement and making the
record of what he said his own. In other words there is a legal requirement
that such a statement be reduced to the form of a document. Section 91 of the
Evidence Ordinance requires that when any matter is required by law to be
reduced to the form of a document no evidence shall be given in proof of such
matter except, the document itself or secondary evidence of it. Section 91 does
apply to a statement recorded in terms of s. 70 (3) of the Administration of
Justice Law. For this reason such a statement which led to the discovery of a
relevant fact made admissible by s. 27 of the Evidence must be reduced to the
form of a document and it is only that document that could be proved as
evidence in a case. No oral evidence of the contents of such a document is admissible
in evidence.
02. RUPASINGHE V. ATTORNEY-GENERAL [1986]
2 SRI LR. 329
Under section 110(1) of the Code of
Criminal Procedure Act the police are invested with powers during the
investigations of offences of examining orally any person supposed to be
acquainted with the facts and circumstances of the case and the person
interrogated is bound to answer truly all such questions relating to the case put
to him except questions which have a tendency to expose him to a criminal
charge or to a penalty or forfeiture.
The distinction between the law in
Sri Lanka and the English Common Law relating to the right to silence may be
summarised as follows:
(a) A person who is interrogated
under section 110 of the Code of Criminal Procedure Act, No. 15 of 1979, is
under statutory compulsion to answer all relevant questions other than those
which have an incriminating character. In Sri Lanka the right to silence does
not extend to an exculpatory statement. According to the Oxford Dictionary an
"exculpatory" statement is a statement which clears a person from a
charge. English law recognizes no duty to answer questions put by the police.
(b) There is m provision in Sri Lanka
like the Judges' Rules in England for the administrating of a caution to the
accused while he is under interrogation by the police;
(c) Under section 110(3) a statement
made by any person to a police officer in the course of any investigation may
be used for the purpose of impeachment of his credibility and not for the purpose
of corroborating his testimony in Court. In England a statement made by the
accused to a police officer after he has been cautioned is admissible as
substantive evidence against him.
There is a statutory immunity in our law given to a suspect to decline to answer any incriminating questions put by the police. However, if he does make an incriminating statement in answer to questions by the police that statement shall not be proved against him at his trial as section 25 of the Evidence Ordinance expressly forbids it subject to the proviso in section 27 of the Evidence Ordinance.
03. THE QUEEN V. MAPITIGAMA BUDDHARAKKITA
THERA AND 2 OTHERS - 63 NLR 433
That the use of the oral statement
made to the police officer by the accused was as obnoxious to the prohibition
contained in section 122 (3) of the Criminal Procedure Code as the use of the
same statement reduced into writing.
That the evidence of an oral
statement made by the 2nd accused to the police officer who investigated the
offence under Chapter X II of the Criminal
Procedure Code should not have been admitted
in contravention of the provisions of section 122 (3). However, the improper
admission of this evidence was not by itself a ground for a new trial or
reversal of the verdict inasmuch as, independently of it, there was sufficient
evidence to justify the verdict.
Section 122 empowers any police
officer' making an inquiry under Chapter X II to examine orally any person “supposed
to be acquainted with the facts and circumstances of the case” and reduce into
writing any statement made by the person so examined. The section expressly
prohibits the administration of an oath or affirmation to any such person and
the signing of the record of the statement made by such person. The enactment,
by implication, requires that the statements made by persons examined orally by
a police officer making an inquiry under Chapter XII should, wherever possible,
be recorded in the “Information Book” in the first instance. B u t when it is
not possible to do so it requires that a true copy thereof should as soon as may
be convenient be entered by such police officer in the “ Information Book ”.
Subsection (2) of section 122 provides that a person examined orally under
section 122 (1) by an officer making an inquiry under Chapter X II is bound to
answer truly all questions relating to the case under inquiry put to him by
such officer other than questions which would have a ten d en cy to expose him
to a criminal charge or to a penalty or forfeiture.
This provision applies both to the spoken and written word. There is nothing in the new Chapter XII which indicates that the Legislature intended to make a far reaching change in the law when it reenacted that Chapter in order to extend to police officers in charge of police stations the power to investigate cognizable offences. In this view of section 122 the use of the oral statement made to a police officer in the course of an investigation under Chapter X U is as obnoxious to it as the use of the same statement reduced in to writing.
04. REX V. JINADASA (1930) 51 N. L. R. 529
The ‘information’ referred to in
section 27 of the Evidence Ordinance is the oral statement of the accused himself,
whereas the document contemplated in section 122 (3) of the Criminal Procedure
Code is not a statement by the accused but another person’s record of an oral
statement which is alleged to have been made by the accused. Therefore, the
conclusion which the majority of us reach is that there is nothing in section
122 (3) which acts as a bar to the full operation of the provisions of section
27 of the Evidence Ordinance or the admission of an oral statement made by an
accused person to a police officer for the ' purposes of section 27. There is
nothing in section 122 (3) which prohibits oral evidence being given of so much
of the statement made by an accused which is relevant under section 27 of the
Evidence Ordinance as relates distinctly to a relevant fact thereby discovered.
05. S. RATHINAM VS THE QUEEN 74 NLR 317
Held, that the effect of section 122
(3) of the Criminal Procedure Code is to render the use of an oral statement
made to a police officer in the course of a Police investigation just as
obnoxious to it as the use of the same statement reduced into writing. Neither
Counsel for the defence nor Counsel for the prosecution nor even the Court is
entitled to elicit, either directly or indirectly, material which would suggest
to a jury that the contents of a statement to the Police made either orally or
recorded in writing corroborates the evidence given by a witness in Court. In
the present case therefore, there was a serious misdirection to the Jury when
they were invited indirectly by the trial Judge to accept the contents of K's
oral statements to the Police as corroboration of to K's testimony in Court.
"An analysis of Sec.122 (3) of the
Criminal Procedure Code would seem to indicate that-
(a) The statement can only be used
for the limited purpose of proving that a witness made a different statement at
a different time or to refresh the memory of the person recording it:
(b) Any criminal Court may send for
the statements recorded in a case under inquiry or trial in such Court and may
use such statements or information not as evidence in the case but to aid it in
such inquiry or trial:
(c) Neither the accused nor his
agents shall be entitled to call for such statements except as provided for in
the recent amendment to the Criminal Procedure Code by Act No. 42 of 1961, nor
shall he or they be entitled to see them because they are referred to by the Court:
(d) If the statement is used by the
police officer or inquirer to refresh his memory or if the Court uses them for
the purpose of contradicting such police officer or inquirer the statement will
be entitled to be shown to the adverse party and such party will be entitled to
cross-examine the witness thereupon."
06. SHEELA SINHARAGE V. ATTORNEY GENERAL
[1985] 1 SRI L.R. 1
(1) Section 110 (4) of the Code of
Criminal Procedure Act No. 15 of 1979 empowers the High Court Judge to use a
statement made at a non-summary proceeding to aid him at the trial but it
cannot be used as evidence in the case.
The said section 110 (4) undoubtedly
empowers any criminal court "to send for the statements recorded in a case
under inquiry or trial in such court' and to use such "statements or
information" for the purpose set out therein, namely, "to aid it in
such inquiry or trial"; but it also expressly provides that such
"statements and information" are not to be used "as evidence in
the case".
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