1. It is abundantly clear that the Indore official who recorded this statement (Mr. Mital) was acting under rule 11 of the Indore Extradition Rules. For the purposes of that rule it was necessary for him to ask the accused if he had any explanation to offer on the facts upon which his extradition was sought. That explanation he was bound to record in accordance with the provisions of Section 346 of the Code of Criminal Procedure in force in Indore. Mr. Mital did that which the law of Indore enjoined upon him.
2. Now, as I understand the matter, Mr. Mital is not a Magistrate for the purposes of the Code of Criminal Procedure in force in British India. Therefore he was not bound to comply with the provisions of that Code. His failure to do so-assuming there be such failure-cannot by any conceivable process of reasoning render a statement made to him by an accused person inadmissible in evidence. Further, any failure on his part to comply with the requirements of the law of the Indore State-assuming there be such failure-is a matter with which this Court is in no way concerned, for the plain reason that the law of the Indore State is not in force in British India. The statement recorded by Mr. Mital is, in my opinion, so far as procedure goes, on no other footing than an extra-judicial statement. If that is so, the position is clear, Mr. Mital's evidence proves the statement. I wish to make it clear that I am dealing now with those objections which are based either on the Code of Criminal Procedure or the Indore Criminal law. I am in no way considering the provisions of the Indian Evidence Act which are relevant first on the question of the proof of such a statement (as. 74 and 80), and, secondly, as affecting the admissibility of the contents of the statement,
3. In Queen-Empress v. Nagla Kala I.L.R.(1898) 22 Bom. 235 this Court has held that the words ' police officer ' and ' Magistrate ' in Section 26 of the Indian Evidence Act include the police officers and Magistrates of Native States, and following Queen-Empress v. Sundar Singh I.L.R.(1890) All. 595 that the word 'Magistrate' in Section 80 includes a ' Magistrate ' of a Native State. In Emperor v. Dhanka Rama : AIR1914Bom41 a bench of this Court appears to have taken a contrary view so far as Section 80 is concerned. In neither case has Section 74 been considered. That, in my opinion, is the section applicable to the proof of such statements. Here, however, the Magistrate has been called and the question of proof does not arise. So far as concerns the interpretation of Section 26 I am bound by this decision though I doubt its correctness, and it follows that Section 25 would have to be similarly construed. But as regards the question of procedure it has never been held, nor do I think it could be held, that a Magistrate of a Native State is bound by the Code of Criminal Procedure, or that any failure by such Magistrate to follow the provisions of the local law could affect the admissibility of any record in a Court in British India.
4. But in any event I should have no difficulty in holding that if any failure to comply with the provisions of the Code of Criminal Procedure could be urged in this case that defect is cured by the evidence of the Magistrate and for this purpose I should rely on Section 533 of that Code. If we treat Mr. Mital precisely as we should treat a Magistrate appointed under that Code-in my opinion an inadmissible line of argument- then his examination under Section 533 of that Code shows that the accused has been in no way prejudiced by any formal defect.
5. Further, I agree with the Advocate General that, apart from the grounds set out above, Section 164 of the Code of Criminal Procedure cannot have any application to the proceedings with which I am concerned. There was no 'investigation under Chapter XIV of that Code' ands. 164 applies only to statements recorded in investigations under that Chapter. Without assenting to the particular conclusion arrived at, I would here cite the decision of Mukerji J, in Emperor v. Panckkowri Dutt I.L.R(1924) Cal. 67 : 2 Bom. L.R. 761 where that learned Judge holds that Section 164 is on the same ground not applicable to certain confessions recorded by Presidency Magistrates. It is impossible to hold that an Indore Magistrate recording the explanation of an accused for the purpose of the Indore Extradition Rules is recording the statement of an accused person in the course of an investigation under Chapter XIV of the Code of Criminal Procedure.
6. I now turn to the provisions of the Indian Evidence Act. On the evidence I am satisfied that the statement was voluntary. Mr. Mital satisfied himself on this point and warned the accused that it might be used against him. The accused's pleader was present at the time. I cannot infer any threat or inducement merely from certain vague statements in the document itself. Even if those statements have any foundation, the position was that the accused, while complaining of the threats used to him, deliberately made the statement. Section 24 of the Indian Evidence Act causes me no difficulty in this matter, The decision of this Court in Quean-Empress v. Basvanta I.L.R(1900) . 25 Bom. 168 is in point here.
7. The difficulty which I feel-and it is a very serious difficulty -arises from Section 25 of the same Act. That section runs as follows:-
No confession made to a police officer shall be proved as against a person accused of any offence.
8. The prohibition is absolute and is not qualified by any suceeding section of the Act, except Section 27 which does not apply here. This Court in a series of consistent rulings has declined to allow any incriminating statement made to a police officer to be proved against an accused person even where such statement is on the face of it self-exculpatory. The leading ease is Imperatrix v. Pandharinath I.L.R.(1881) 6 Bom. 34 and it has been followed in many subsequent cases which I need not cite. The statement, with which I am now concerned, is self-exculpatory in tone, but contains admissions most damaging to the accused. Indeed I understood the Advocate General to concede that if this is a statement made to a police officer it is excluded by Section 25.
9. The sole point, therefore, which remains is this, Are the prosecution seeking to prove a statement made to a police officer? In form it is a statement to an Indore Magistrate but what is it in substance I have never yet in the coarse of my experience as a criminal Judge seen a statement of this nature, and so far as I am aware no such statement has yet been judicially considered. But if it is read dispassionately from beginning to end it is not possible to escape this conclusion that the accused person is repeating, practically without comment, the conversation between himself and the Commissioner of Police, Bombay. It was suggested by the Advocate General in the stress of argument that there was nothing to show that any such conversation took place. But obviously were that so the whole story is necessarily false, for there is not one single independent allegation of fact from beginning to end. It is further clear that nowhere does the accused vouch for the correctness of the dialogue which he reports. He says no more than this : ' I humbly said to him (the Police Commissioner) that I would make a true statement.' He does not say to the Magistrate ' the story is a true story' neither does he say ' the story is a false story.' He says no more than this : ' Here is the story which I told to the Police Commissioner in Bombay.'
10. The problem may be simplified, A is being tried for the murder of X. He says to a Magistrate ' I told a police officer that I killed X'. Is that statement excluded by Section 25 of the Indian Evidence Act In form it is a statement to a Magistrate but in substance what is it Had he said to the Magistrate ' I told a police officer that I killed X and that was true,' the matter would be different. The real meaning would be 'I told a police officer that I killed X and that, viz , that I killed is true,' This is in substance a confession to a Magistrate. But without any qualification the words 'I told a police officer that J killed X,' remain a confession to a police officer and nothing more. The question was discussed in argument whether if an accused person himself made such a statement at his trial, the Court could use that statement. The answer clearly is that in such a case it would be difficult to hold that it was sought to be proved against the accused; and a further answer is that the words by themselves are wholly ambiguous, and would merely invite the further question: ' Is what you told the police officer true or is it false ' It is more relevant to point out that had the Magistrate himself heard the confession to a police officer, he could not be permitted to prove it.
11. The point is no doubt a somewhat subtle one but the difficulty is real. I have read this statement many times and have weighed it in the light of the considerations I have set out above, and in my opinion to permit it to go on the record would be to allow a confessional statement to a police officer to be proved against an accused person. That the law forbids. To my mind the medium by which it is sought to prove such a statement does not alter the matter. The question is 'to whom was the statement made ' The answer is that the statement was made to a police officer. It was no doubt repeated to a Magistrate of the Indore State, but the mere repetition cannot render capable of proof a statement which as made the law excludes.