1. The Advocate General has tendered in evidence the statement made by the accused Ramath before the Coroner on September 25, 1925, when the Coroner was holding an inquest under the Coroner's Act, 1871, over the body of the deceased Surajballi.
2. Mr. Pendse, for the accused, objects that this statement is inadmissible. He mainly relies upon Section 164 of the Criminal Procedure Code, under which a Magistrate ' may record any statement or confession made to him in the course of an investigation under this Chapter, or at any time afterwards before , the commencement of the inquiry or trial.' The section lays down that he should record a confession in a particular manner and append to it a certificate, inter alia, that he has explained to the person making the confession that any confession he may make may be used as evidence against him.
3. In this particular case the Coroner, Mr. Athavle, who took the statement, has given evidence that the accused was told that he need not make any statement, but that he insisted upon doing so, and that the statement was one made of his own initiative and of his own free will. That evidence is corroborated by the notes and certificate that Mr. Athavle made at the time upon the statement, and there cannot be the slightest doubt that the accused wanted to make this statement and that it was entirely voluntary. Assuming that it amounted to a confession, or contained incriminating statements of a confessional nature, it is perfectly clear that the statement would not be inadmissible under Section 24 of the Indian Evidence Act, as being made under some improper inducement or in the other circumstances mentioned in that section. The Coroner's Act distinctly contemplates that the Coroner may take the statement of an accused person who is in the custody of the Police, because Section 20 provides that a Coroner shall be deemed to be a Magistrate for the purposes of Section 26 of the Indian Evidence Act.
4. It was argued by Mr. Pendse that the Coroner had no power to take such a statement, and he referred to a judgment of a learned Judge of this Court, which supports him on that point: Emperor v. Kazi Dawood (1925) 28 Bom. L.R. 79. Personally, in view of Section 20 of the Coroner's Act read with Section 26 of the Indian Evidence Act, I cannot agree that the Coroner is not authorized to take the evidence of a suspect at an inquest, if the latter wants to give evidence. But however that may be, I am not concerned with what the Coroner is empowered or not empowered to do. As a matter of fact he did take this statement, and I am only concerned with considering whether that particular statement can be tendered in evidence at this trial as part of the prosecution case.
5. It is quite clear that, even treating the statement as a confession, the mere fact that Mr. Athavle did not warn the accused that, if he made the statement, it might subsequently be put in evidence against him, is immaterial, That a confession is not inadmissible on account of such an omission is expressly provided for by Section 29 of the Indian Evidence Act. Mr. Pendse referred to Section 164 of the Criminal Procedure Code as containing a general principle to the contrary. But that is a special enactment applying only to certain statements made in the particular circumstances contemplated by this Section 164. It cannot override the general provisions of Section 29 of the Indian Evidence Act, except where these circumstances bring the section into operation. Section 164 does not apply in this particular ease, because under Section 1 of the Criminal Procedure Code the police in the town of Bombay are excepted from the provisions of Chapter XIV of the Code, of which Section 164 is a part. Consequently the statement was not recorded ' in the course of an investigation under this Chapter' within the meaning of Section 164. The corresponding Chapter V of the City of Bombay Police Act, 1902, which is on lines similar to those in Chapter XIV of the Code, contains no enactment corresponding to Section 164. Moreover, there is a clear distinction between a statement made during a police investigation, or in the interval between such investigation and the inquiry or trial, and a statement made before a Coroner at inquest, with which the Police have nothing to do except that they produce witnesses, who they say can give relevant evidence before the Coroner and his jury. Therefore, in my opinion, this statement is clearly admissible, either as a confession under Section 26 of the Indian Evidence Act, or as a statement made by a party to a proceeding under Sections 18 and 21.
6. As regards Section 132 of the Indian Evidence Act, which has been referred to, it is sufficient to mention the recent Full Bench judgment in Bai Shanta v. Umrao Amir (1925) 28 Bom. L.R. 1 under which that section is held not to apply, unless a witness has objected to answer questions, and is then compelled to answer those questions in the circumstances mentioned in that section. There is, to my mind, nothing in the slightest way harsh or unjust in putting in evidence a previous statement that an accused person has deliberately made at an inquest, so that any statement he makes in Court can be compared with that statement. It may go to corroborate him, so that his statement in Court will be entitled to greater weight than it otherwise would be. On the other hand, there may be some discrepancies or contradictions, and the prosecution may be entitled under the ordinary provisions of the Indian Evidence Act to point them out, as affecting the weight to be attached to the accused's statement in Court, just as the defence itself relies on discrepant statements that some of the witnesses have made at the Coroner's inquest. It seems to me there is nothing at all unjust in putting the accused's statement in Court to a similar test. His statement at the inquest is one taken by an authorized person with all due care. Mr. Athavle has in fact said that he took it down word for word. Therefore there cannot be in my opinion any real prejudice to the defence in allowing the statement to be put on the record.
7. Moreover, I may say in conclusion that I have read that statement, and its main purport, far from being a confession, is quite the contrary. The accused there denies that he stabbed the deceased and although the prosecution may perhaps rely upon one or two statements as differing from what the accused has said in Court, that does not in itself make the statement a, confession. Therefore, I have not the slightest hesitation in overruling the objection, and admitting the statement in evidence.