Investigation

Criminal Procedure

The investigation of crimes is within the realm of the Law Enforcement Agency e.g. the Royal
Malaysian Police, Malaysian Anti Corruption Commission (MACC), Securities Commission,
Royal Malaysian Customs etc.
The investigation is governed under CPC - Part V, Chapter XIII (s.107 to S.120) which caters
for the form, manner & conduct of investigation by the police.
 Aside from the CPC, there are other specific statutes which also cater for powers of
investigation e.g. Police Act 1967, MACC Act 2009, Capital Markets & Services Act
2007. Example: S.3(3) read together with s.20(3) of the Police Act 1967 - police
officers have powers to prevent and detect crime and to apprehend all persons whom he
is by law authorized to apprehend.

What is the Object of Investigation?

The purpose of an investigation of crime is to ascertain the circumstances of the commission
of the offence & to gather information & evidences (e.g. names of offenders/witnesses/doc)
for purposes of proof in court.

1. Before Commencement of Investigation

A police investigation usually starts with initial information (in form of report) relating to the
commission of an offence given to the police officer under s.107(1). It is also known as the
complaint to the police.
This report has come to be known as the “First Information Report” (FIR) although it is
nowhere mentioned in the CPC. The information that is given must be in the nature of a
complaint (accusation) given with the object of initiating an investigation by the police.
The informant = the complainant.
FIR is part of the Investigation Diary.

However, the difference between ‘information’ and a ‘complaint’ must be noted.

PP v Leonard
Held: There may be an information and there may be a complaint, but an information and a
complaint are entirely different things and the failure to distinguish between then can lead to
very great confusion of thought. An information is a statement relating to the commission of an
offence made to a Police Officer under section 107 of the Code and a complaint is an allegation
made to a Magistrate with a view to his taking action under the Code. (s.128- complaint to M)

Objects of FIR
The objects of FIR is to give the police notice of the commission of an offence and provide the
basis for commencement of investigation. Therefore, it is a foundation to commence an
investigation.
Herchun Singh v PP
Held: Referring to Sohoni’s commentary, it provides that:-
“…All that is required for purpose of this section is that there should be clear, definite
information about the commission of a cognizable offence to set the investigation machinery in
motion. Further, the information required need not contain the circumstances of the commission
of the offence, nor the names of the offenders or the witnesses, for the main purpose of
investigation is to ascertain these matters.... It is only a complaint to set the affairs of law and
order in motion. It is only at the investigation stage that all the details can be gathered and filled
up…”

Roslim Harun v PP
Held: The importance of the first information report is well known. It is the basis upon which an
investigation under this chapter commences. The first object of the first information report is
only to make a complaint to the police officer to set the criminal law in motion.

Who can lodge an FIR?

The categories of persons who may lodge an FIR are not exhaustive and includes the followings
o Eye-witness
o Victim or aggrieved person
o Passer-by or hearsay
o Police officer having knowledge of the crime
o Person aware of the occurrence of an offence without having personal knowledge
o Relative or friend of the aggrieved person
o Accused himself.
The complainant/informant who makes a report may himself be charged as a result of
investigation conducted by the police on the report.
Dato’ Seri Anwar Ibrahim v PP
Held: I agree with the submission of the prosecution that a person who makes a report on a
matter may himself be charged as a result of investigation conducted by the police on the report.
Such a course of action is not prohibited by s.107(1) of the Criminal Procedure Code which deals
with information relating to the commission of an offence.

Principles relating to FIR

(i) Requirement of FIR
 S.107(1): The information must be given to Officer in Charge of Police Station and
reduced to writing.
If information is given orally to an officer in charge of a police station, must be reduced in
writing by the officer in charge of a police station and read over to the informant. Such
Information must be entered in a book to be kept by the officer in charge of a police station and
signed by the informant.
However, the failure to reduce FIR into writing is not itself fatal to the prosecution’s case.
Tan Cheng Kooi v PP
Facts: The FIR was verbal and not reduced into writing as required under s.107 of CPC.
Held: The failure to reduce the FIR into writing and failure to adduce it as evidence is not fatal
to the prosecution’s case provided the Public Prosecutor can establish a prima facie case .
However, it is fatal if the Public Prosecutor’s case rests solely on the FIR.

 S.107 (2): The report must be recorded in a book; marked with the date & time of receipt;
and signed by the maker.

 S.107(3): The information may be received anywhere else other than physically in a
police station. The place in which it was received is deemed to have been received at a
police station as long as the information is made to a police officer.
Thus, a police report could be lodged at any police station or “pondok police” or to any police
officer on beat duty or patrolling.

 S.107(4): A police officer is duty bound to receive any information in relation to any
offence committed anywhere in Malaysia.
The police officers have neither valid reason nor option to refuse the registration of any FIR. The
refusal is a grave dereliction of their duties and will be dealt with seriously.

*False information by the informant may tantamount to an offence under s. 182, 203 and 211 of
the Penal Code.

(ii) FIR is not a condition precedent for the commencement of a criminal

investigation
Emperor v Kwaja Nazir Ahmad
Held: No doubt in the great majority of cases, criminal prosecutions are undertaken as a result of
information received and recorded in this way but their Lordships see no reason why the police,
if in possession through their own knowledge or by means of credible though informal
intelligence which genuinely leads them to the belief that a cognisable offence has been
committed, should not of their own motion undertake an investigation into the truth of the
matters alleged.

PP v Foong Chee Cheong

Held: The powers of the police to investigate do not depend solely on Chapter XIII of the
Criminal Procedure Code. The duties of a police officer as set out in section 20 of the Police Act,
1967 include apprehending all persons whom he is by law authorized to apprehend and these
duties are amplified in section 23 of the Criminal Procedure Code. Most of these duties imply a
power to investigate whether there has been an information under section 107 of the Criminal
Procedure Code or not.

(iii) FIR is admissible to corroborate/contradict witness statement only.

S.108A: A copy of FIR purporting to be certified to be a true copy by the officer in charge of the
Police District in which the police station where the information given is situated shall be
admitted as evidence of the contents of the original.
However, even if a copy if FIR can be admitted, it can only be used to corroborate/contradict
witness statements only.
Balachandran v PP
Held: The evidentiary value of a first information report is only to contradict the testimony of a
witness under s 145 of the EA or to corroborate his testimony under s 157 of the same Act. It is
not substantive evidence of its contents. Where the evidence of a witness does not require to be
corroborated in law, there is no obligation to tender corroborative evidence to support his
testimony. Thus, if the case for the prosecution rests solely on the evidence of one witness in
such a category there is no requirement in law for his evidence to be corroborated.

PP v Mohamed Terang Amit

Held: Indeed, the police reports should have been admitted by the learned magistrate under s
108A of the CPC. Nevertheless, it must be emphasized that the evidence so admitted was not
meant to show the truth of the allegations as contained therein but to underline the consistency of
the stories.

(iv) Report made after investigation is not FIR and therefore is not admissible
PP v Roslim Harun
Held: It is trite law that once the police have taken active steps in investigation, any written
statements written by them are not first information reports and consequently inadmissible in
evidence…Therefore it follows that any statement recorded after the commencement of the
investigation and after there has been some development is not only not first information but has
very little or no value at all as the original story because it can be made to fit into the case as the
case developed.

Daimon bin Banda v PP

Held: A police investigation report is inadmissible and ought not to have been proved. First
information reports to the police are admissible. Statements made during investigation are not
admissible. In this case, the police received some information but, apparently, did not then record
a formal report but commenced investigation and recorded the so-called report later.

The report/statements made after the investigation has commenced will constitute a statement
under s.112(inadmissible)
Martin Rhienus v Sher Singh
Facts: The police after instructions, they send detective to visit the respondent where he made
several statements and later that copy of the statement was tendered in trial headed as “report”.
The issue is whether such report is a FIR or s.112 statement to determine admissibility.
Held: A police investigation had commenced before the statement was made and therefore that
statement was made under section 112 of the Criminal Procedure Code. It matters not that the
statement was recorded in the Report Book kept under section 107 nor that a true copy of it was
typed on a form headed "Report".
PP v Kang Ho Soh
Facts: The defence argued that the failure to tender the arrest report ha failed to corroborate with
the prosecution’s witnesses.
Held: The arrest report made by the police officer who had effected the arrest was not a first
information report. The prosecution could not even use the report to corroborate the evidence of
the officer and therefore they could not put it in evidence.

(v) FIR need not contain detail particulars of the case

Herchun Singh v PP
Held: Referring to Sohoni’s again:-
“It is a mistake to believe that a person cannot be the accused unless his name appears in the
first information report. All that is required for purpose of this section is that there should be
clear, definite information about the commission of a cognizable offence to set the investigation
machinery in motion. Further, the information required need not contain the circumstances of the
commission of the offence, nor the names of the offenders or the witnesses, for the main purpose
of investigation is to ascertain these matters.... The FIR is not an Encyclopedia.”
However, the court continued to say that the omission of important facts relied by the
prosecution in the FIR is fatal where the court may refuse to consider such evidence of the
informant on the fact of such an omission.
Lim Ah Seng v PP
Facts: The accuracy of the 7th prosecution witness had brought into question on his discrepancies
between his FIR and testimonial evidence.
Held: Of the discrepancies, the most prominent and significant is the omission to mention in the
FIR the involvement of the appellants and the alleged pursuit of Sanip after he came out of his
shack which the murder occurred afterwards. The omission is not one of mere detail but of the
important second half of the events that were related in evidence. It has also to be borne in mind
that the omission was due to a deliberate omission on his part.

Wong Soon Choon PP

Held: The central complaint of the appellant before us is related to the identity of the accused.
The assailants names were not mentioned to the police though the witnesses claimed that they
knew the assailant whose face was covered with white cloth and no name of the assailants were
mentioned in the police report.
Held: It is not in dispute that the name of the appellant was not mentioned in the police report . It
is now well established the omission to state an important matter in the police report may be
fatal, more so if it relates to identity and the case of the prosecution is not dependent on other
evidence such as motive and/or DNA evidence to link the accused. (name is important for this
case because the issue is on the identity of the accused.)

 However, Janab’s Key To Criminal Procedure, 3rd edition at page 66 have this to say:
“Failure to state material particulars in the first information report may be fatal, unless
there were good reasons for the omission or contradictions.”

(vi) FIR may be inspected

Section 51A CPC is a new insertion where it provides that the prosecution shall deliver to the
accused certain documents before the commencement of the trial, for example a copy of FIR.
Under s.51A(5) further provides that if FIR is delivered to the accused after the commencement
of the trial, the Court must allow the accused -
(a) a reasonable time to examine the document; and
(b) to recall or re-summon and examine any witness in relation to the document.
The opportunity for accused to have the copy of FIR and inspect it is a basic rights the accused
have to protect his interest.
Anthony Gomez v Ketua Polis Daerah Kuantan
Held: The accused had a right to inspect the FIR and to be supplied with a copy of it under the
common law because of his interest in it.

Besides, such practice is to preserve the constitutionality of Art.5(3) of FC.

Husdi v PP
Held: The accused has a right to a certified copy of FIR so as to be informed as soon as may be,
of the grounds of his arrest under Art.5(3) FC.

(vii) Fatality of prosecution’s case for the failure to tender FIR

Generally, a FIR is not a substantial evidence. However, the fatality of the case depends on the
circumstances of the case. For example, when there is only one witness to the case, the failure to
tender FIR will be fatal.
Balachandran v PP
Held: “…the need for a first information report to be used to corroborate the testimony of a
witness depends on the facts and circumstances of each particular case. Where the evidence of a
single witness who has made a first information report is vague, it is most desirable to tender it in
evidence in order to enhance his credibility. Where it is not tendered in evidence in such a
situation the evidence of the witness stands to be rejected not because it lacks corroboration but
because It may not pass the test of credibility and reliability on its own. It is only to that extent
can it be said that the failure to produce the first information report is fatal.”
Rationale - failure to produce FIR would deprive A of an opportunity to cross-examine the
complainant. If the FIR is introduced in evidence, the defence will attempt to cross-examine the
maker touching on inconsistencies, contradictions and omissions.

Adverse inference under s.114(g) of EA can be drawn if the FIR is not tendered in vital
circumstances.
PP v Abdul Razak Johari
Facts: The accused was charged with possession of cannabis. The prosecution relied solely on
the evidence of one vital witness, the arresting officer. His first information report was not
tendered in evidence.
Held: Failure to produce this first information report was a very serious omission since the
whole of the case depended on the testimony of the arresting officer. It also raised the
presumption of s 114(g) of the Evidence Act 1950 that the report which could have been
produced and not been produced would, if produced, have been unfavourable to the complainant.

If there are other evidences to corroborate the witness’s statement, there is no need to produce
FIR and adverse inference will be not be drawn.
Miss Rossarin Nuekaew v PP
Held: SP2 was not the only witness who testified as to what transpired that day. In fact, his
evidence was corroborated by SP3 who was present with SP2 at the time when the appellant was
detained. No reason was put forward as to why these police witnesses ought to be disbelieved. In
all the circumstances, there was no merit in the appellant s contention that an adverse inference
ought to be invoked against the prosecution for failing to produce the first information report. No
prejudice had been caused to the appellant.
 (viii) Public Interest
- Transparency
S.107A (1) allows a person who has made a FIR to request for a report on the status of the
investigation.
-Accountability
S.107A(2) the officer in charge of a police station shall give a status report not later than 2 weeks
from the receipt of the request .
S.107 (3) seizable offence
after 4 weeks
S.107(4)- failure, complaint to PP
Form 26 of the Second Schedule.

Procedure of Investigation
On receiving the FIR under s.107, the police officer conducting the investigation must first
consider whether the offence complained in the FIR is a seizable or non-seizable offence.

 Non- Seizable offence

The police officer must follow the procedure under s.108 of CPC where he has two options:-

1. Not to investigate if he does not wish to

If the police officer does not wish to investigate, s.108(1) CPC provides that he must refer the
informant or complainant to a magistrate who may take cognizance of the offence. The
magistrate shall then examine the complainant under oath. (s.133(1) CPC).

2. To investigate
However, if the police officer wishses to investigate, s.108(2) CPC requires him to obtain an
order to investigate from the PP.
PP v Seridaran
Facts: The police conducted an investigation without an order to investigate from the PP for a
non-seizable offence. The learned magistrate held that the trial was a nullity.
Held: On appeal, the court held that the as there was no order to investigate, the evidence
obtained by the police in the investigation was illegal. It was his Lordship’s view that the failure
to produce the order to investigate at the trial does not affect the jurisdiction of the court to hear
the case.

s.108(3) provides that any police office not below the rank of sergeant or any officer in charge of
a police station receiving the order to investigate may investigate except the power to arrest
without a warrant.

 Seizable offence
s.109 CPC provides that any police officer not below the rank of sergeant or any officer in
charge of a police station may, without an order to investigate, investigate any seizable case.
PDRM v Keong Mei Cheng
Facts: A woman corporal arrested the accused in a cse related to CBT.
Held: an ASP might have effected the arrest and that the woman corporal was not the right
person to arrest because s.108(3), s.109 and s110 of CPC seem to confer powers to police
officers not below the rank of sergeant.

Proceudre when offence suspected

Send report to PP & proceed to crime scene
s.110(1) CPC provides that on receiving the FIR or otherwise, if the police officer (sergeant and
above or officer in charge of a police station) suspects the commission of a seizable offence, he
shall, unless the offence is of a character which the PP has directed need not be report to him,
send a report of the FIR to PP and proceed in person or deputise one of his subordinate officers
to the scene of the crime to inquire into the facts and take measures to arrest the offender.
The proviso provides for two situations where the police officer may not investigate.
(a) when any information as to the commission of any such offence - is given against any
person by name and the case is not of a serious nature;
(b) if it appears to the police officer receiving the information that there is no sufficient
ground for proceeding / further proceeding in the matter he shall not do so.
S.110(2): The police officer must state in his report his reasons for not proceeding to the crime
scene.
 Proceed to crime Submit report to
Report PP Enter diary
scene PP

Procudure upon arriving at the scene to make enquries

Once the FIR has been lodged under s.107 and the investigating officer has determined the
nature of the offence as under s.108 or s.109, whichever is relevant, and has proceeded to the
spot to make inquiries under s.110, such officer may proceed to question witnesses at the scene
of the offence.
If such witnesses cannot be so questioned at the scene, the investigating officer can issue a
written order under s.111(1) requiring the attendance of such witness where the section provides
that the investigation officer, my by order in writing ,require the attendance before himself of
any person who from the information given or otherwise appears to be acquainted with the
circumstances of the case, and that person shall attend as so required.
s.111(2) further provides that if any such person refuses to attend, the investigating office may
report such refusal to a magistrate who may then, at his discretion, issue a warrant to secure his
attendance.

Entry of diary of the proceeding

S.119(1): Every police officer making a police investigation under this Chapter shall day by day
enter his proceedings in the investigation in a diary setting forth-
(a) the time at which the OTI reached him; (if any)
(b) the time at which he began & closed the investigation;
(c) the place / places visited by him; &
(d) a statement of the circumstances ascertained through his investigation.

General Rule: Diary is not open for inspection

S.119(2): An accused person shall not be entitled, either before / in the course of any inquiry /
trial, to call for / inspect any such diary
Exception:
If the police officer who has made the investigation refers to the diary for the purposes of s.159 /
160 of Evidence Act, (to refresh of memory)
- only entries that the officer has referred to shall be shown to the accused, and
- the Court shall at the request of the officer cause any other entries to be concealed from view /
obliterated.

Submission of the report of investigation to the PP

S.120(1): Submit Report of Investigation.
Every police investigation shall be completed without unnecessary delay
The officer making the investigation (IO) shall submit to PP a report of his investigation (Form
in 2nd Schedule) together with the investigation papers (IP) in respect of such investigation
within 1 week of the expiry of the period of 3 months from the date of the information given
under s.107. (unless the offence is of a character which the PP has directed need not be reported
to him)
PDRM v Keong Mei Cheng
Held: It is incumbent upon the police to report to the public prosecutor on investigations under
Ch XIII of the CPC through the use of Form XXVI in the Second Schedule. There was no
evidence that this was done. Anything short of that again is not acceptable as otherwise the
police will be on a frolic of their own and citizens and subjects (and foreigners) can be in grave
danger of losing their liberty if not their limb.

 S.120(2) however, PP may at any time, regardless that the period of 3 months mentioned
in subsection (1) has not expired, direct the officer making the investigation (IO) / the
Officer in charge of the Police District to submit a report and IP. (PP discretion)

Procedure where investigation cannot be completed within 24 hours.

S.117(2) remand order. (refer arrest topics)
 Investigation (Part II)

Power to order attendance of witness (for examination/questioning)

S.111(1): Police officer making an investigation (IO) may
- by order in writing ("police order’ & signed by IO) require the attendance of
- any person who appears to be acquainted with the circumstances of the case (i.e. Witness &
include also Accused)
In practice, the police will first make an informal request for the witness to give statement. Only
if the person refuses to cooperate, then the police will issue a formal order in writing under s.111.

 If a person disobey the order, police cannot be simply proceed to arrest him. The
procedure is provided under s.111(2).
S.111(2) provides that
- the police officer must report such refusal to a M & apply for warrant of arrest.
- the M may in his discretion issue a warrant of arrest to secure attendance of that person.
Failure to attend is also an offence under s.174 PC (shall be punished with imprisonment for a
term which may extend to 1 month/with fine RM1,000)

Power to examine- Statement taking

 S.112(1) provides that any investigating officer may examine orally any person
acquainted with the facts and circumstance of the case and ‘shall’ reduce into writing
any statement made by the person so examined.
“Any person” includes the witnesses and the accused.
However, such reduction of statement into writing is not mandatory.
PP v Tan Huan Hiang
Facts: The inspector then lodged a report after discovery of the drugs but failed to mention the
words from the accused about keeping the dadah in the house. Neither did he jot down in his
diary what the accused said until the next day. The defencen contends that the inspect breached
s.112(1).
Held: The failure to reduce into writing those crucial words would not render them inadmissible.
The court considered the reality of urgency of the situation. Such circumstances made the court
conclude that the provision would be directory rather than mandatory. Since the phrase 'shall be
reduced into writing' would have to be read as 'may be reduced into writing', those words would
import a discretion for the interrogator.

 S.112(2) provides that such person is bound to answer all questions asked by that officer
provided such person may refuse to answer any question which would have a tendency to
expose him to a criminal charge or penalty or forfeiture.

 S.112(3) provides that such person is bound to state the truth, whether or not such
statement is made wholly or partly in answer to questions.

Warning
S.112(4): Police officer examining a person must
(i) first inform that person of the provisions of subsections (2) & (3).
(ii) failure to warn the person may amount to an inducement.

1st warning: Bound to answer all questions

S.112 (2):
The person examined bound to answer all questions relating to the case put to him by that
officer:
However, he may refuse to answer any question the answer to which would have a tendency to
expose him to a criminal charge/penalty/forfeiture. (incriminating question)
2nd warning: Bound to state the truth
S.112(3): The maker (if decided to answer the question) is legally bound to state the truth,
whether/not such statement is made wholly/partly in answer to questions.
A person who omit / gives false information in answer to question under s.112 may be
prosecuted under s.202 and 203 of PC.
S.202: Intentional omission, by a person bound to inform, to give information of an offence
Whoever, knowing / having reason to believe that an offence has been committed, intentionally
omits to give any information respecting that offence which he is legally bound to give, shall be
punished with imprisonment for a term which may extend to 6 months or with fine or with both.

S.203: Giving false information respecting an offence committed

Whoever, knowing / having reason to believe that an offence has been committed, gives any
information respecting that offence which he knows / believes to be false, shall be punished with
imprisonment for a term which may extend to 2 years / with fine/with both.

 S.112(5) provides that the statement made by any person under this section shall
whenever possible (not mandatory) be taken down in writing and signed by the person
making it or affixed with his thumb print as the case may be, after reading it to him in the
language in which he made it and after giving him an opportunity to correct.

The need for ‘writing’ is not mandatory if the officer can explain the reason behind its failure.
Jayaraman v PP
Issue: Whether the “oral statements” under s.112 of CPC were admissible.
Held: The oral statements made by the accused persons and not reduced into writing before their
arrest to a police officer of or above the rank of inspector were still admissible in evidence
because of the phrase”…whenever possible”…, provides there is a reasonable explanation for
the failure to reduce into writing.

The failure to affix thumb print on the statement is also not fatal.
Abdul Ghani bin Jusoh v PP
Facts: The statements recorded during the police investigation were not signed or thumb-printed
as required.
Held: Because of the phrase “whenever possible”, the signature or thumb print is not mandatory
and hence the absence of either is not fatal as to admissibility. However, it is mandatory for it to
be in writing.
(Jayaraman distinguish this case because it did not deal with whether oral statement admissible
or not)
PP v Pathmanabhan Nalliannen
Held: The statement was not read back to the witness after it was recorded, thus falling foul of
s.112(5).

Statements under s.112 is made during the course of police investigation

Abdul Ghani bin Jusoh v PP
Held: A statement made under section 112(v) is indeed a statement made in the course of police
investigations made under Chapter XIII of the Criminal Procedure Code,

Lim Kim Chuan v Public Prosecutor

Held: Once the suspicion of a police officer has been aroused to such an extent as to cause him
to proceed to any action, then investigation has been commenced. If the fact that investigation
has commenced and is being conducted in some form or other is the cause or occasion of a
statement being made, or if the statement results or proceeds from any act done in investigation,
then the statement is made in the course of investigation."

 This includes any report made after investigation has began such as arrest report by
arresting officer and search and seizure report by raiding officer.
Martin Rhienus v Sher Singh
Held: “…a police investigation had commenced before the statement was made and therefore
that statement was made under s.112 of the CPC. It matters not that the statement was recorded
in the Report Book kept under s.107 nor that a true copy of it was typed on a form headed
"Report".
*Daimon case (report made after), Kang Ho Soh (arrest report),

Voluntariness for s.112 statement

S.112 to be read also with S.114: where s.114 reads that no police officer / other person (e.g.
lawyer) shall prevent/discourage any person from making in the course of a police investigation
any statement which he may be disposed to make of his own free will.
*Note: Section 125
Yap Chai Chai
Held: Once a magistrate is satisfied that the statement is made of the deponent's own free will,
uninfluenced by any threat, inducement or promise, and after due warning clearly understood
that, as recorded in writing, it may be used in evidence against him, such statement in our view
should be admissible in the absence of other material evidence raising doubts that the statement
was a voluntary one.

Norliana bte Sulaiman v PP

Held: Section 114 is therefore a statutory prohibition on preventing or discouraging a person
from making a statement of his own free will. When it is read with s 112 the effect is that a
statement recorded under the latter must be one that is made on the free will of a person . Any
statement made against the free will of a person will deprive it of its voluntary character. In
short, therefore, a statement under s 112 must be one that has been made voluntarily. If it is not
voluntarily made it loses its value.

Admissibility of Statements
S.113 (1) after amendment in 2006, Except as provided in this section, no statement made by
any person to a police officer in the course of a police investigation shall be used in evidence.
(i.e. inadmissible)
Statement- includes both oral & written
‘in the course of a police investigation’ refers statement under s.112.
The question is, when investigation starts?
Lim Kim Chuan v Public Prosecutor
Held: Once the suspicion of a police officer has been aroused to such an extent as to cause him
to proceed to any action, then investigation has been commenced. If the fact that investigation
has commenced and is being conducted in some form or other is the cause or occasion of a
statement being made, or if the statement results or proceeds from any act done in investigation,
then the statement is made in the course of investigation."

Statements are not admissible as evidence as priviledged by s.113.

Martin Rhienus v Sher Singh
Held: The statement in this case was made after a police investigation had commenced and was
therefore a statement to the police under s 112 of the Criminal Procedure Code; a statement
made in the course of a police investigation is absolutely privileged.

Foong Chee Cheong

Held: The FIR, having been reduced into writing after the investigations had commenced, was
not admissible in evidence. Its non-production therefore could not possibly raise any
presumption under s. 114(g).

Roslim Harun
Held: It is trite law that once the police have taken active steps in investigation, any written
statements written by them are not FIR and consequently inadmissible in evidence.

Under the new amendment, even if the statement amount to a confession and was voluntarily
made during the police investigation, the confession is inadmissible. The amendment is to
safeguard the accused.
This section also does not mention the ‘right of silence’ nor of the duty of the officer to inform
the suspect of it.
The deletion of the old s. 113 may have stemmed both from a realization that the courts were
throwing out many confessions of guilt as having been improperly obtained with the result that
persons were being acquitted as no other incriminating evidence was made available by the
police/prosecution, as well as a determination to force the police investigators to do their jobs
thoroughly without relying on short-cut ‘confessions’ of guilt.

S.26 of Evidence Act 1950 and S.113 CPC is a provision which is inter-related.
S.26: Subject to any express provision contained in any written law, no confession made by any
person whilst he is in the custody of a police officer, unless it is made in the immediate presence
of a SC Judge/ Magistrate, shall be proved as against that person.
S.26 clearly shown that confession made by the A while in the custody of a police is
inadmissible. It covers the confession made by A while in the custody of a police officer,
whereas the S.113 covers the statements made by any person to a police officer during the course
of police investigation.
Though cautioned statement under s.113 has been amended and no longer admissible, there are
other statutes which still have the cautioned statements remain in force.

Examples:
S.37A. Dangerous Drugs Act 1952
S.116B Customs Act 1967
S.21 Official Secrets Act 1952
S.257 Communications and Multimedia Act 1998
S.16. Kidnapping Act 1961
Dangerous Drugs Act 1952
S.37A. (1) Where any person is charged with any offence against this Act any statement, whether
such statement amounts to a confession or not or is oral or in writing, made at any time,
whether before or after such person is charged and whether in the course of a police investigation
or not and whether or not wholly or partly in answer to questions, by such person to or in the
hearing of any police officer of or above the rank of Inspector or any senior officer of
customs and whether or not interpreted to him by any other police officer or senior officer of
customs or any other person concerned or not in the arrest, shall notwithstanding anything to the
contrary contained in any written law, be admissible at his trial in evidence and, if such person
tenders himself as a witness, any such statement may be used in cross-examination and for the
purpose of impeaching his credit.
Provided that no such statement shall be admissible or used as aforesaid—
(a) if the making of the statement appears to the Court to have been caused by any inducement,
threat or promise having reference to the charge against such person, proceeding from a person
in authority and sufficient in the opinion of the Court to give such person grounds which would
appear to him reasonable for supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceeding against him; or
(b) in the case of a statement made by such person after his arrest, unless the court is satisfied
that a caution was administered to him in the following words or words to the like effect—
“It is my duty to warn you that you are not obliged to say anything or to answer any question, but
anything you say, whether in answer to a question or not, may be given in evidence”:

Hence, to be admissible:
(i) The statement must be made by the accused because of the word “any person is charged with
any offence”
other than accused’s statement are inadmissible
e.g. witness statement under s.112, police report during investigation
(ii) There was no inducement etc.
(iii) The statement was made before arrest
- It was made before
a police officer of/above the rank of Inspector (under OSA & KA)
senior officer of customs (under DDA)
custom officer (Customs Act)
authorized officer CMA).
(iv) If the statement was made after arrest
- There is additional requirement, i.e. caution must have been administered.
Hence, any statement made by an accused person (including a confession), if recorded by a
police officer in the course of investigations, and not tainted by any threat, inducement/ promise
is admissible in evidence irrespective of whether the person giving the statement is in police
custody/not.
*REFER ARREST CASE FOR BEFORE/AFTER ARREST

Trial within Trial

Whenever the admissibility of a statement made by the A to a police officer in the course of
investigations is challenged, it is necessary to hold a voire dire or trial-within-a-trial (TWT).
PP v Mohamed Noor bin Jantan: if the voluntariness of the statement is not disputed, then a
voir dire need not be held.
The TWT must be held even if the dispute concerns the identity of the Recording Officer(RO),
so long as the dispute affects the admissibility of the statement.
The burden of proving the voluntariness of the statement lies with the prosecution who must do
so beyond a reasonable doubt. The test of voluntariness of a statement is partly objective and
partly subjective. The objective limb is satisfied if there is a threat, inducement/ promise.
The subjective limb is satisfied when the threat, inducement/promise operates on the mind of the
A through hope of escape/fear of punishment connected with the charge.
In this respect, the promise/inducement that is made to the A in return for the statement must be
in reference to the charge.
A statement may also be challenged on the ground of oppression, which may render a statement
involuntary and thus inadmissible. In order for the oppression to affect the admissibility of a
statement, the accused person must show that he was sapped of his will and that he could not
resist making the statement.
Whether an accused person’s will had been sapped is a question of fact and depends on several
elements. The court, will therefore, have regard to the duration of interrogation, the opportunity
to rest, the characteristics of the accused person and if he had been offered any refreshments.
*REFER PRIESTLY AND DATO MOKHTAR IN EVIDENCE

Exception to the rule of inadmissibility in s.113

(i) Impeachment of credit
S.113(2): When any witness is called for the prosecution/for the defence, other than the A the
court shall, on the request of the A/the prosecutor, refer to any statement made by that witness to
a police officer in the course of a police investigation (s.112 statement); and may then, if the
court thinks fit in the interest of justice direct the A to be furnished with a copy of it and the
statement may be used to impeach the credit of the witness in the manner provided by the
Evidence Act 1950.

Husdi v PP
Facts: It was argued that the accused is entitled to a copy of the statement of a witness when it is
sought to impeach the credit of the witness.
Held: When a prosecution witness is being cross-examined and the defence seeks to impeach his
credit, the court should at the request of the defence refer to his police statement, and may then,
if the court thinks it expedient in the interest of justice, direct the defence to be supplied with a
copy.

However, the impeachment is left at the discretion of the court “if the court thinks fit”
Chandrasekaran v PP
Held: The court then exercises its discretion whether to furnish the accused with a copy of the
police statement. The true test when exercising such discretion seems to be that the police
statement must afford material for serious challenge to the credibility or reliability of the witness
on matters relevant to the prosecution case. If the court finds there is no material to afford a
serious challenge to the credibility or reliability of the witness, the accused need not be furnished
with a copy of the police statement.
(ii) To support of defence
S.113(3) Where the A had made a statement during the course of a police investigation (112
statement), such statement may be admitted in evidence in support of his defence (corroborate)
during the course of the trial.

(iii) Statement made in the course of an identification parade, discovery of fact & dying
declaration.
S.113(4) Nothing in this section shall be deemed to apply to any statement made in the course of
an identification parade ; or falling within s.27 Evidence Act 1950; or falling within paragraphs
32(1)(a), (i) and (j) of the Evidence Act 1950.

 Any information/statement given in the conduct of an identification parade is

admissible in evidence. (s.9 EA)
 The discovery of any fact arising from a statement given by A is admissible in
evidence. Such evidence is admissible as it directly connects the A with the discovered
fact/exhibit. (s.27 EA)
 Statement made by a person as to the cause of his death (dying declaration) is
admissible in evidence (S.32 (1)(a) EA)
S.32(1)(i): statement written/verbal of relevant facts made by a person who is dead, who
cannot be found, who is incapable of giving evidence (testifying)/whose attendance
cannot be procured without an amount of delay or expense; made in the course of or for
purposes of an investigation or inquiry into an offence under or by virtue of any written
law, to be admissible.
S.32(1)(j) renders for statement made by a public officer in the discharge of his duties.

(iv) Charge with offence of giving false statement

S.113(5) A person who gave a false statement under s.112 can be charged with the offence under
s.203 PC. His written statement can be used as evidence in the prosecution’s case.

Bond for Appearance

S.118: Any police officer conducting an investigation (IO) into a seizable offence
- may require any person acquainted with the circumstances of the case (witnesses + accused)
- to execute a bond to appear before a court to give evidence.
This is only carried out if it appears to the police officer that there is sufficient
evidence/reasonable ground of suspicion to justify the commencement/continuance of
criminal proceedings against any person. (skip the hassles of statements procedure all that)
If anyone refuses to execute a bond to give evidence, the police officer may report the matter to
the court which then has the discretion to issue a warrant/summons to secure the person’s
attendance.