1. At the opening of the trial Mr. Lowndes asked the Court to rule whether, if the accused put in any documents in the course of his cross-examination of the witnesses for the prosecution, he would thereby forfeit his right to the last word. The question thus raised often comes before the Courts. It never would have occasioned me any difficulty but for the old standing distinction drawn in England between documents put in by the accused through prosecution witnesses, and statements elicited in cross-examination from prosecution witnesses, both of which the accused means to use for his defence. The illogicality of this distinction seems, later, to have given rise to a new principle. As far as the particular result, which is here in dispute, is concerned, English Judges now appear to make this the test: if the documents put in by the accused through a witness for the prosecution can fairly be said to take the prosecution by surprise, then the prosecution has the right to reply. In other words, the right to the last word is now made to depend, not on any difference between the quality of the evidence thus got in for his own use by the accused, but upon the degree of surprise which it may cause the prosecution. And this is obviously more illogical than ever.
2. Unless it can be presumed to know all that is in the mind of all its witnesses, nothing could well be more surprising to the prosecution than a statement elicited in cross-examination from one of its own witnesses, that the accused was somewhere else at the time when the crime was committed. But no one, either in England or India, has ever argued that merely on account of the surprise which such a statement might cause the prosecution it will deprive the prisoner of his right to the last word. It is thus shown that the attempt to improve upon the old distinction utterly fails, and that after all it has to be referred back to that distinction, if it is to be reasonably applied at all. In other words, the view that some documents put in through a witness for the prosecution may take the prosecution by surprise, and so entitle it to the last word, must be grounded upon some supposed qualitative distinction between documents and statements, as evidence. Logically no such distinction can be maintained. Therefore, pushed to its extreme logical conclusion, the English rule would preclude all cross-examination, except at the price of giving the prosecution the right to the last word. This is of course absurd. Yet there is no real alternative. If when an accused person puts in a paper through a witness for the Crown, he must be deemed to have adduced evidence' in his defence; by a parity of reasoning he mast be deemed to have adduced evidence in his defence, as soon as he has elicited some statement from a prosecution witness, which is in his favour, and is going to be used for his defence. In this country certainly, ninety per cent. of the evidence, on which prisoners rely, is contained in the cross-examination of crown witnesses.
3. If, therefore, the words in Section 292 of the Criminal Procedure Code, 'adduce any evidence,' can have no meaning at all, as Batty, J., thought, in giving his ruling in Bhaskar's case 8 Bom. L.R., 421, unless they include documents which the accused has put in through witnesses for the prosecution, assuredly they could not have had any meaning for that learned Judge's mind, unless they had also included every favourable oral statement which the accused had got out of prosecution witnesses in cross-examination. The one, as the other, is evidence in the accused's favour. That goes without saying. But the point is wholly missed, when from that premises the conclusion is drawn that either or both were meant to be included in the words quoted from Section 292, Criminal Procedure Code.
4. As the law stood before the alteration of Section 292, the accused had to say whether he meant to adduce evidence; and then, if when in answer to the question put under Section 289, Criminal Procedure Code, 'he has stated that ho means to adduce evidence,' the prosecutor was entitled to reply. It would be incredible, were it not recorded in our law books, that the effect of this was held to be that the mere statement of the accused's intention to adduce evidence, whether he did so or not, gave the prosecution the last word. Thus, again pushing this to its logical conclusion, if an accused on being asked, inadvertently said yes instead of no, and in the same breath corrected himself and stated no, he would nevertheless have lost his right to the last word. In one of the reported cases, the accused said that he meant to adduce evidence; on further reflection during a temporary adjournment, he changed his mind and said that he did not. The Sessions Judge held that under the words of the Code the prisoner had forfeited his right to the last word. So no doubt he had. But illustrations of that kind only show to what perverted conclusions, minds obsessed by a rigid literalism, may sometimes be driven. Taking each word literally, without any regard to the context, or the general scope and scheme of the sections, in which it stands and to which it belongs, frequently may, sometimes must, lead to absurdity. It may fairly be answered that Judges are not responsible for the careless wording of legislative enactments. That is perfectly true: but where the meaning is unmistakably plain through the slovenly expression, it appears to me that sensible Judges would not hesitate to give effect to the meaning and give the go-bye to the letter.
5. And if we read the old Code, it is plain how the section came to be worded as it was. If the accused said that he did not mean to adduce evidence, the prosecutor had to sum up immediately, and then in certain cases, the accused might be called on to reply. But the point was that immediately the accused's statement was made, it took effect upon a position of the prosecution. If the statement was that no evidence was going to be adduced, the prosecutor had there and then to sum up. If, however, the statement was the other way, the prosecutor was entitled to wait, till that evidence had been adduced and reply upon it. What is all this but indicating the order in which the evidence, and the comments on it are to be taken? And if owing to the wording of old Section 292, it did unfortunately lend itself to a literal application which the Legislature certainly never contemplated, that wording is useful now, as showing the extremely close connection that existed and was meant to exist between Sections 289 and 292.
6. Even as the law then stood, when it could not be denied that the wording taken literally did warrant the Sessions Judge, I have referred to, in adopting the course he did, the Calcutta High Court, Hurry Charan Chuckerbutty v. Emperor 10 C. 140, Prinsep and Tottenham, JJ., held that such a course was never intended to be taken where no evidence had been in fact adduced by the accused; and in effect denied that the law ever meant the right of reply to depend merely upon the statement of the prisoner that he intended to adduce evidence. No one can, I think, seriously doubt that that was a perfectly correct and rational statement of the law. As, however, it was as clear that while the language of Sections 289 and 292 remained unchanged, obstinately literal Judges might go on applying that language literally, Section 292 was amended. Now instead of laying it down, that the accused loses his right to the last word if he has stated that he means to adduce evidence, the section says that if the accused adduces any evidence he loses his right to the last word. It thus becomes clear, that while Section 292 still retains its former close connection with Section 289, the ambiguity, which had given rise to unforeseen misapplications of the rule, was removed, and the plain words, if the accused adduces any evidence,' were substituted.
7. In Emperor v. Bhaskar (the Bhala case) 8 Bom. L.R. 421 Batty, J., in ruling upon this point, began by saying: 'The original provision of the Legislature was to make the right of reply dependent, not upon the actual adducing of evidence, but upon the accused's statement that he intended to adduce evidence and immediately refers with approval to Hurry Churn Chukerbutty v. Emperor, 10 C. 140, where the exact opposite was ruled (ut supra). Reading the whole of Batty J.'s judgment in Emperor v. Bhaskar B. Bhopatkar 8 Bom. L.R., 421, it seems that that learned Judge emphatically endorsed and approved of the view, taken by the Sessions Judge, which was as emphatically disapproved of by the Calcutta Division Bench in Hurry Churn's case. But all that is now immaterial. It is material to consider the reasoning upon which Batty, J.. concludes that under the present Jaw, the words of Section 292 clearly express the intention of the Legislature to give the prosecution the right of reply whenever evidence has actually been put in by the defence which was not led by the prosecution. Again Batty, J., says: 'I think, therefore, that the amended section is intended to give a right of reply whenever at any stage evidence is recorded for the defence which is not part of that adduced for the prosecution.'
8. The only important words in any part of this judgment, most of the terms employed in which are so general that the real point may easily be lost sight of, are at any stage.' With the greatest respect for the learned Judge, I find myself wholly unable to adopt his reasoning or conclusion. Nor, on a mere question of procedure, do I think that I am bound by a ruling, of the principle of which I cannot approve.
9. I have already shown. I think that no logical distinction can be drawn between documentary and oral evidence, for the purpose of this argument: still less can any definite constant principle be based upon the degree of surprise, which either a document or a statement got out of prosecution witnesses in cross-examination may cause the prosecution.
10. Unless then we are ready to go the whole way, to be perfectly consistent and hold that a prisoner may not use any statement which he elicits in cross-examination from a Crown witness, or indeed put it in, without losing his right to the last word, it is clear that we must reconsider the grounds of Batty J.'s ruling.
11. If we simply read the sections of the Criminal Procedure Code straight on from 289 to 292, omitting all dicta of Judges and intervening commentary, there could, I think, he no doubt at all about the plain meaning of the last, and the intended connection between them.
12. These sections stand in a necessary time relation to each other. The sections immediately following deal with incidental matters. But the break is clearly marked. Thus in Section 293 we find the time connection severed by the use of 'whenever.' We find that Section 289 brings the course of the trial up to the end of the evidence for the prosecution. When all that has been recorded, including of course the cross-examination and all the documents which the accused has been able to put in during the cross-examination, and when the accused has made his statement, he is to be asked if he intends to adduce evidence. He is not to be asked whether he means to adduce any 'further' evidence. All that has preceded is treated and quite logically treated, as evidence for the prosecution. Up to that time the prosecution has had the ear of the Court. All the evidence that has been 'adduced' or 'led', has been adduced or led by the prosecution. And it makes not the slightest difference that while the prosecution has been adducing evidence, the accused has been able to get in a good deal by way of cross-examination in his own favour. Not even the statement of the accused, which may go greatly in his favour, is, for the particular purpose I have now in view, to be regarded as his evidence. No one, I believe, has yet contended that a prisoner by making a statement gives the prosecution the right of reply. It is only when the prosecution evidence is finished, and when the accused has made his statement that we come in sight of that evidence, which if the accused elects to adduce, it will give the prosecution the right of reply. And this is evidence which will be brought before the Court by the accused, while he and not the prosecution has the ear of the Court. Skipping the intermediate sections, read Sections 289 and 292 together. The accused is asked whether he intends to adduce evidence, if he says that he does not, the prosecutor has no right of reply, that is perfectly clear, although at that very moment the whole of the evidence, which Batty, J. thinks must be included in the phrase adduce any evidence,' if that phrase is to have any meaning, is already in. For, suppose the accused says that he does not mean to adduce any evidence, when the question is put to him under Section 289, what follows? The prosecutor has to sum up, and it is only after that summing up that the Court will, if necessary, call upon the accused to enter upon his defence. In other words, give him the last word. That alone ought to be enough to dispose of the reasoning of Batty, J: But if we immediately read Section 292, as it is clearly intended to be read, after Section 239, we find that this is the position. If the accused says that he means to adduce evidence, he is called upon to enter upon this defence; and if he does adduce evidence, or any evidence, (I do not think that the addition of the word any affects the argument by a hair's breadth or a feather weight), then, and not till then, the prosecutor has the right to reply.
13. That is the natural straight for ward construction to put upon the sections. The only alternative is to read Section 292 as wholly independent of Section 239. Bat then what would become of the specific provisions of Section 289? The whole question has been very ably handled in agreement judgment Emperor of Mr. Knight, acting Judicial Commissioner in Sind. So acute an intellect was not likely to overlook any of the logical links in the chain of reasoning, and it is gratifying to me to find that Mr. Knight's judgment confirms almost every word and adopts all the reasoning, I had said and used, before it was brought to my notice, while this point was being argued. But while I am in substantial agreement, with Mr. Knight, I do not agree with him entirely. In the first place, I do not agree that Section 292 is only partially in time relation with Section 289. 1 am clear that it is in complete time relation with the preceding section. And I feel sure that had Mr. Knight considered the additional reasons I have drawn from the words of that section, he would have come to the same conclusion. Next I do not agree with him at all in sanctioning the test of surprise. It is of primary importance in matters of this kind to get a clear sight of the principle; and then to keep that principle sharply defined, and unimpaired. Now the result of Mr. Knight's judgment is this. He goes with me the length of holding that no logical distinction can be drawn between the documents put in in cross-examination, and statements elicited in cross-examination; he goes with me the length of holding that the true construction of Section 292 is that unless the accused adduces evidence, for himself, that is, taking time as the test, after the evidence of the prosecution is ended, he has the right to the last word. But he is then evidently pressed with some practical difficulties. He foresees cases in which accused persons might bring in a mass of documents, in cross-examining prosecution witnesses, and he tries to got over that difficulty by abandoning the principle to the clarifying and establishing of which all his previous reasoning has been directed. And his conclusion is that, while, on principle putting in documents in the cross-examination of prosecution witnesses does not deprive the accused of his right to the last word, it will do so if the documents are of such a nature as to take the prosecution by surprise. I could never bring myself to assent to such a halting conclusion. In the first place, who is to be the Judge of the degree of surprise? The Court? Well, then as every document is tendered the prosecution may say 'that takes us utterly by surprise;' and how is the Judge to know whether it does or does not? It is idle to say that he may come to a pretty shrewd conclusion as to what ought to surprise the prosecution. But surely if the rule is to rest upon any principle so shaky, blurred, and vacillating according to the temper of each Judge, it wilt be no rule at all. Nor do I, speaking for myself, anticipate any practical difficulty in applying the rule upon the clearly defined principle which I have foreshadowed. That principle is that nothing which the accused can fairly get in to his own advantage by the legitimate employment of cross-examination, while the case is in the hands of the prosecution, deprives him of his right to the last word. If exception be taken to the use of such terms, as fairly' and 'legitimately,' I will show why I have used them here, greatly though I dislike and mistrust the accumulation of loose terms in a definition. The only practical difficulty, which over arises, is this. Sometimes under the guise of cross-examining a prosecution witness, counsel for the defence will try to get in a lot of matter, especially documentary matter, which ought properly to come in as evidence in rebuttal. Now although this may be in strictness relevant, no Judge who knows his business ought to be in any uncertainty how to deal with it. The Court only has to say, this evidence is all very well, but this is not the proper time or the proper way, to lay it before the Court, if you really need it, you must pay for it. You can of course recall the witness, make him your witness, and put in this rebuttal evidence but if you do, you will lose your right of having the Last word. That I apprehend is the right course. It leaves the principle unimpaired and ought not to cause any practical difficulty or inconvenience. For the foregoing reasons I hold that merely putting in papers through a witness for the prosecution in the course of ordinary cross-examination, is not adducing any evidence within the meaning of Section 292 and does not give the prosecution the right of reply.