1. In this case the offence charged was that of assault with a wooden shoe. The pleaders for the prosecution and defence respectively agreed that if the principal witness would give his evidence on an oath specially binding on him--to wit, on the gita--they would, under Sections 8 to 11 of the Oaths Act, accept the evidence as conclusive proof of the matter stated. The witness took the agreed oath, and then in substance stated there was not only no assault with a wooden shoe, but no assault at all--only a taking hold by the hand. The Magistrate, without discussing the point of law now raised, refused to consider this evidence as conclusive in fact, and found the accused guilty and fined him Rs. 25. The case comes before us on revision, on the ground that the agreement under the Oaths Act should have been carried out by the Magistrate. The agreement no doubt would have been binding in a civil proceeding. But this was a criminal proceeding, and we have to consider whether the term in Section 8 of the Oaths Act, 'party to any judicial proceeding,' includes the complainant in a criminal proceeding. It must be remembered that all offences affect the public as well as the individual injured, and that in all prosecutions the Crown is the prosecutor. The term 'party' in it technical sense finds no place in the Criminal Procedure Code. Every ease is conducted by the Public Prosecutor, and if any private person instructs a pleader to prosecute, that pleader acts under the direction of the Public Prosecutor (Section 493, Act X of 1882). The proceeding is always treated as a proceeding G between the Crown and the accused. The Crown either proceeds itself, or lends the sanction of its name. The offence is dealt with as an invasion of the public peace, and not a mere contention between the complainant and the accused. There is only one instance, that we can find, where a criminal proceeding is deemed purely a proceeding between the prosecutor and the accused, and this exception was made for a special purpose, and required the intervention of the Legislature to make it law; we refer to Section 33 of the Evidence Act. We can find no previous interpretation of this term party to 'a judicial proceeding' in Section 8 of the Oaths Act. Its construction is open to us as to whether it includes criminal proceedings, or is limited to civil proceedings. Considerations of convenience and reason are in favour of the more restricted meaning. Such an agreement could not, in our opinion, be made between the complainant and the accused in a criminal proceeding. The Crown, by the Public Prosecutor, is the party, not the complainant. It was argued that the 'agreement was binding, as this was a compoundable offence. But even in the section of the Code which creates the compounding power (Section 345), the complainant is not described as a party, but only as the person injured. We think, therefore, the complainant was unable to consent, because the Crown in all prosecutions is the prosecutor. Nor can the accused be |held a party within the meaning of the Section. If he is a party within the meaning of this Section, the accused could not only offer to be bound by the oath of the other party, but the other party could offer to be bound by the oath of the accused, yet the accused is rendered unable by the Oaths Act (Section 5) to take any oath whatever. Again, the procedure involves a waiver of ibis ordinary rights on the part of the accused. Yet a prisoner on his trial can consent to nothing--Attorney General v. Bertrand 36. L.J.P.C. 51.
2. This procedure giving decisive weight to a special oath has its parallel in the Continental system when the parties can offer to be bound by a solemn oath, called a serment decisoire, as to the truth and falsehood of a claim. But this procedure is strictly confined in the Continental code to civil disputes. 'We think a similar limitation was intended by the Legislature in the Oaths Act.
3. In conclusion, we think Sections 8 - 11 of the Oaths Act were not intended to apply to criminal proceedings. Consequently the Magistrate was not bound to decide the case on the evidence of the witness who swore the special oath.