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RELATION BETWEEN SECTION 113 CRIMINAL PROCEDURE CODE AND

SECTION 26 OF EVIDENCE ACT 1950

Section 113 Criminal Procedure Code and Section 26 of Evidence Act 1950 in the writers’
opinion both although discussing the admissibility of a confession has some contradiction. Section
26 of Evidence Act 1950 covers the confession by the accused while in the custody of a police
officer whereas the Section 113 Criminal Procedure Code covers the statements made by any
person to a police officer during the course of police investigation. Section 26 of Evidence Act
clearly prohibits the admission of any confession made by the accused while in the custody of a
police. It is in the mind of the law maker that inducement or involuntariness may happen when the
accused was in the custody of police, thus the creation of the provision. On the other hand, Section
113 before the amendment provides that any statement made by the accused to be admissible
loosely as this section did not provides voluntariness as criteria to be fulfilled to determine whether
or not a statement admissible or not. However, we can see that the law maker, by amending Section
113 CPC tried to harmonise both this section and to intertwine both in order to safeguard the
accused.

THE AMENDMENT OF SECTION 113 OF CRIMINAL PROCEDURE CODE.

As what has been discussed above, Section 113 deals with recording and admission of
caution statement. Before the amendment, the section states that where any person is charged with
any offence any statement, whether the statement amounts to a confession or not or is oral or in
writing, made at any time, whether before or after the 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 that
person to or in the hearing of any police officer of or above the rank of Inspector and whether or
not interpreted to him by another police officer or other person shall be admissible in evidence at
his trial, any such statement may be used in cross-examination and for the purpose of impeaching
his credit. This has clearly shown that the statement made by the accused which includes a
confession to police above the rank of Inspector is admissible even though is in the course of police
investigation.

However, in 2007 a major change has been made, whereby no statement made by any
person to a police officer in the course of police investigation shall be used in evidence and
the provision for caution statement has been deleted.
The amendment received mixed response from both the law enforcement body and NGOs
that advocates humans right. For the NGOs it was their belief that by amending Section 113 it
guarantees the safeguards of detainee as any statement made including confession during the
period of custody is inadmissible in court. Otherwise speaking it was welcomed by the NGOs as
they claim it will eradicate the abuse of power by law enforcement body in carrying out aggressive
interrogation against detainee and that because Section 113 are said to operate against the
universally recognized principles of right to silence. The law enforcement body however more
concerned with the decreased effectiveness of the police in conducting their interviews and
obtaining evidence, it is in their opinion that by the new amendment it will somehow affect the
growth of crime rate.

Under the previous Section 113, it was necessary for the arresting police officer to inform
the suspect his rights to remain silent and not to answer any questions, or more commonly known
the Caution Statement, however in the newly amended provision makes no mention of ‘right of
silence’ not the duty of the officer to inform the suspect about it. There was subtle difference
between the former and latter, while the caution emphasised an accused’s right to remain silent,
the new warning encourages him to speak in that it advises him of the adverse consequences that
may follow if he insists on remaining silent in matters relevant to his defence.1

However, it must be made known that the cautioned statement, is not entirely inadmissible
as section 27 of the Evidence Act has been expressly preserved under the exceptions brought under
the amendment, Criminal Procedure Code (Amendment) Act 2007, Act A1304 hence ss. 24, 25
and 26 of the same Act become very relevant.

EFFECT OF THE AMENDMENT OF SECTION 113 CRIMINAL PROCEDURE CODE

One of the biggest drive to this amendment was due to the raising concerns by the public
and government regarding the high incidence of crime and public perception of how an
investigation was conducted especially in gathering evidence by the police officer. Generally, there
was a perception of corruption in the Royal Malaysia Police and poor performance of police
personnel because most of the time cautioned statements are inadmissible in court and this

1
Chandra Mohan, “Police Interrogation and the Right of Silence in the Republic of Singapore”, [1986] 2 MLJ xxviii
situation would undermine the police‘s image2. By the amendment it reduces the number of
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 or prosecution, as
well as a determination to force the police investigators to do their jobs thoroughly without relying
on short-cut ‘confessions’ of guilt.3 Furthermore, this will gradually increase the integrity of the
law enforcement as they will be more diligent in gathering the incriminating evidence and less rely
on the ‘confession’ obtained from detainee, which are in most cases, made under involuntariness.
In this situation no third party may deny the fruit of their investigation.

Besides that, without the admission of any cautioned statement, it will reduce the burden
of the court as the procedure to adduce cautioned statements in court is time consuming, as it may
need to go through the process of voir dire.

Lastly, by the amendment it further safeguards the accused during investigation or during
the custody of police.

2
Alias, M.N. (2013) Protections for Vulnerable Accused In Malaysian Criminal Trials:
Are They Sufficient? Proposal for Reform (Master dissertation). Retrieved from Research Archive
3
S Augustine Paul ―Dock Statement – Reality or Myth‖ (1991) 2 CLJ xli at 1 of the electronic version (no
hardcopy available)