TMI Blog1936 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples laid down by this Board, it would be proper humbly to advise His Majesty to interfere (see Vaithinatha Pillai v. The King-Emperor (1913) L.R. 40 I.A. 193 : S.C. 15 Bom. L.R. 910 following In re Abraham Malloty Dillet (1887) 12 App. Cas. 459). Therefore, the sole question for decision is whether such evidence was or was not admissible. The answer ultimately depends upon the meaning and effect of certain sections of the Criminal Procedure Code, 1898. The most material sections are in the following terms :- 3. In Part V.--Information to the Police and their powers to investigate:- 157. (I) If, from information received or otherwise, an officer in charge of a police-station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police-report.... 159. Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings in Prosecutions, Chapter XXV, Of the Mode of taking and recording Evidence in Inquiries and Trials. It reads as follows:- 364 (I) Whenever the accused is examined by any Magistrate, or by any Court other than a High Court established by Royal Charter.. .the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined; or, if that is. not practicable, in the language of the Court, or in English, and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he: shall be at liberty to explain or add to his answers. (2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (3) In cases in which the examination of the accused is not recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of another of the accused (Haji) and not of the appellant. This evidence, though raising a strong suspicion with regard to the appellant's position either as a participant in the dacoity or as a receiver of goods stolen in the course of it, was, as has been already stated, insufficient to warrant a conviction. The evidence of one Mr. L. D. Vasisht, a First Class Magistrate, and therefore a Magistrate entitled to proceed under Section 164, was the determining evidence. This witness deposed that on November 14, 1934, on the application of the police and under the orders of the District Magistrate, he proceeded by car to the scene of the dacoity and to the places material to the events connected with it. The accused in handcuffs accompanied him in another car. The object was said to be that the accused, including the appellant, might be given the opportunity of voluntarily and after a caution leading the way and showing to the Magistrates the places where incidents in the crime occurred. On arrival, the Magistrate said that he excluded the police, or sent them to stand apart at a distance, and then, was led round by each man and the places were pointed out. As to the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same statute or upon earlier statutes of much the same tenor. In the course of-the judgments in these cases the various considerations on both sides have been presented and dealt with, so that their Lordships are not without information as to the views of Judges in India on the subject. But any lengthy review of the decisions is neither necessary nor helpful, the more as there emerges from the decisions great divergence of judicial opinion. 8. The general tendency and state of authority in the Courts of India as appears from these decisions is as follows:- 9. In Lahore the High Court has held both ways. The most recent authority for admissibility is in 1933, Abdulla v. The Crown (1933) I.L.R. 14 Lah. 290, and in 1935, Bakh-shan v. The Crown (1935) I.L.R. 16 Lah. 912, and there are earlier cases to the same effect, viz., Shere Singh v. The Empress (1881) P.R. No. 21 of 1881, (Cr.) and Feroz and Gulab v. The Crown (1917) P.R. No. 11 of 1918, (Cr.). But against admissibility are Farid v. The Crown (1921) I.L.R. 2 Lah. 325, Allah Dad v. Emperor (1931) 137 I.C. 57. In Allahabad the decision in Emperor v. Ram Baran Shukla (1933) I.L.R. 55 All. 426 is in favour of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Section 91 of the Indian Evidence Act requiring evidence in writing did not apply because the matter would in such a case not be one which had to be reduced to writing. For the appellant it was said that the Magistrate was in a case very different from that of a private person, and that his case and his powers were dealt with and delimited by the Criminal Procedure Code, and that if this special Act dealing with the special subject matter now in question set a limit to the powers of the Magistrate, the general Act could not be called in aid so to allow him to do something which he was unable to do, or was expressly or impliedly forbidden to do, by the special Act. The argument was that there was to be found by necessary implication in the Criminal Procedure Code a prohibition of that which was here attempted to be done: in other words that the Magistrate must proceed under Section 164 or not at all. 11. To this contention it was answered that there was no ground for reading the word may in Section 164 as meaning must on the principle described in Julius v. Lord Bishop of Oxford (1880) 5 App. Cas. 214. There is no need to call in aid this rule Of construction-well recog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame manner as they were disregarded in the present case. 13. As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely denned is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the Magistracy: it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as under Section 533, but where matter can be made of record and therefore admissible as such, there are the strongest reasons of policy for supposing that the legislature designed that it should be made available in that form and no other. In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police-officers than as judicial-persons; to be by reason of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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