1. The first point taken in this appeal is a question of law which arises in this way;--
The appellant, Bakir, has been convicted of making a false charge against one Aliser. The appellant had alleged that this Aliser had stolen a thousand rupee note from him. Aliser was convicted by the Magistrate in regard to this theft, but the convicton was set aside on appeal by the learned Sessions Judge. After setting aside the conviction, the Sessions Judge entered upon an inquiry for the purpose of ascertaining whether such proceedings as these should not be instituted against the then complainant, Bakir. Ultimately the Sessions Judge ordered Bakir to be committed for trial on the charge of making a false charge of theft. In the inquiry which preceded the commitment, the learned Judge took the statement of Aliser among others. Aliser has now disappeared, and his evidence could not be obtained in the Court of Session. Therefore, the learned Assistant Judge, by whom this trial was conducted, allowed upon the record the statement which Aliser had made to the Sessions Judge in the inquiry preceding the commitment of Bakir. As Aliser is a very important witness, it is desirable to decide in limine whether this admission of his earlier statement is in conformity with law or not.
2. Mr. Binning, contending for the negative, refers to Section 33 of the Indian Evidence Act, under which alone the statementtcould be admissible: and contends that one necessary condition laid down by Section 33 is not in this case satisfied; that is to say, in this case, Mr. Binning argues that the present appellant, Bakir, had not the right to cross-examine Aliser in the inquiry before the Sessions Judge. Admittedly, unless Bakir had that right, Aliser's previous statement, which has gone upon the record, must be excluded. In my opinion Mr. Binning's objection is well founded.
3. Some attempt was made to suggest that the inquiry held by the learned Sessions Judge might be attributed to Section 477 of the Criminal Procedure Code, so that the preceding inquiry should be regarded as a proceeding resulting in commitment with the result that all the usual requirements which are needed in inquiries terminating in a commitment should be observed. It appears to me, however, impossible to ascribe the inquiry to any section but Section 476. That is the section which the learned Sessions Judge himself quotes, and that section authorizes precisely the kind of inquiry which this is. Section 477, moreover, makes no reference to any inquiry at all. If, then, the inquiry must be held to have been made under Section 4(76, it seems to me that the appellant, Bakir, had no right to cross-examine the then witness, Aliser. Certainly no such right is conferred by the section. Indeed, the section goes so far as to say that the inquiry is merely discretionary, for it may or may not be made; in other words, it was perfectly competent to the Sessions Judge to make the order which he finally did make without taking any evidence at all; and if he chose to take evidence, it appears to me that it was entirely within his discretion to say when and where that evidence should stop. I regard Section 476 as giving the widest discretionary powers to the criminal Court and as deliberately refraining from imposing any special formalities to hamper the discretion of the Court. The wisdom of that is obvious, because it is clear that grave danger of prejudice would be incurred if the informal inquiry contemplated in Section 476 were to be expanded and formalized into an investigation which would be practically a trial.
4. The view which I take seems to me to receive countenance from the decisions of this Court in Safurabai v. Abdullabhai 4 Ind. Cas. 273 : 11 Bom. L.R. 1164 : 10 Cri. L.J. 539 and In Re: Karvirappa 16 Ind. Cas. 497 : 14 Bom. L.R. 587 : 13 Cri. L.J. 689 : 1 Bom. Cr.C. 154.
5. It may be added that the principle or reason of the thing is in favour of Mr. Binning, since the general rule undoubtedly requires that a witness should be produced if his evidence is to go upon the record, and the particular exceptions allowed by Section 33 are not, in my opinion, to be extended without very good cause.
6. [After discussing the evidence his Lordship proceeded to observe as follows: ]
On the whole, therefore, it appears to me that this conviction must be reversed, both because the direct positive evidence in its favour is too slight and fragmentary and because such corroboration as the circumstances afford is insufficient to justify a conclusion of the appellant's guilt.
7. I would, therefore, allow the appeal, reverse the conviction and sentence and direct that the accused be acquitted and discharged.
8. I agree that the statement of Aliser taken in the course of the inquiry before the Sessions Judge, which resulted in the commitment of the present appellant, is inadmissible in evidence. Its admissibility depends upon the answer to be given to the question, whether the present appellant had the right to cross-examine the witness within the meaning of the proviso to Section 33 of the Indian Evidence Act when his statement was recorded by the Sessions Judge. In my opinion, in those proceedings, the present appellant had not the right to cross-examine Aliser. Those proceedings were taken under Section 476 and the order was made under Section 477. The inquiry held on that occasion must, in my opinion, be referred to Section 476. The order of commitment, no doubt, is made under Section 477 of the Criminal Procedure Code, which makes no provision for any inquiry; and the learned Sessions Judge has stated in the beginning of his order that the inquiry was made under Section 476 with a view to see whether an order under Section 477 could be made. It seems to me that the scope of the inquiry under Section 476 depends upon the discretion of the Court. It is optional to the Court to make a preliminary inquiry, and the nature of that inquiry must be determined with reference to the circumstances of each case. Under these circumstances it seems to me that even if a witness be examined in the course of. such an inquiry, it cannot be said that it is the right of the person, against whom the inquiry is being made, to cross-examine the witness. Of course, ordinarily a witness would be allowed to be cross-examined, and I do not for a moment suggest that it would be anything but proper for the Court to allow a witness to be cross-examined by the adverse party. But the question as to whether the person against whom the inquiry is proceeding, has the right to cross-examine a witness is quite different. There is nothing either in Section 476 or Section 477 to suggest that the person concerned has any such right.
9. I only desire to say a word as to the observations in the judgment of this Court in the application made by the present appellant against the order of commitment, upon which the learned Government Pleader has relied. It is argued by him that the judgment shows that the inquiry held in this case must be deemed to have been held under Section 477 and that it could not now be properly treated as an inquiry under Section 476. In the first place, it seems to me that the observations do not support his contention. They were made with reference to the argument then advanced on behalf of the applicant that the inquiry was not under Section 476 but must be referred to Section 477, and that there being no provision in Section 477 with regard to any inquiry, the whole inquiry was illegal. It was not necessary then to decide whether the proceedings held by the Sessions Judge were in fact under Section 47(5 of the Criminal Procedure Code. Secondly, if the inquiry cannot be properly treated as having been made under Section 476, it is clear that there is nothing in Section 477 to regulate the inquiry which results in an order of commitment under that section, and to support the contention that the party against whom the inquiry is held has a right to cross-examine any witness examined in the course of that inquiry.
10. I agree generally with the reasons given by my learned brother for the conclusion that the conviction and sentence must be set aside.
11. On a careful consideration of the arguments on both sides, the conclusion that I have come to is that though there is no reason to doubt the correctness of the acquittal of Aliser, there is not sufficient material on the record to justify an inference as to the guilt of the present appellant on either charge.
12. It seems to me that there is room for a reasonable doubt as to the guilt of the appellant and the benefit of that doubt must be given to him.