Horace Owen Compton Beasley, Kt., C.J.
1. The appellant with another accused was convicted by the Stationary Sub-Magistrate, Kum-bakonam, of theft of money and jewels from a closed receptacle under Sections 461 and 380, Indian Penal Code. The case was forwarded by him to the Joint Magistrate of Kumbakonam for sentence because the 1st accused in the case was a juvenile. The Joint Magistrate upheld the conviction of both the accused and sentenced the 1st accused to be detailed in the Borstal School, Palamcottah, for a period of two years and the 2nd accused to undergo rigorous imprisonment for six months under each of the Sections 461 and 380, Indian Penal Code, the sentences to run concurrently. An appeal was taken from that judgment by the 2nd accused to the Sessions Court of West Tanjore. The learned Sessions Judge dismissed the appeal and confirmed the conviction and sentence of the 2nd accused, the appellant. The case was then taken up to the High Court in revision because in all the three Courts a confession made to the Sub-Magistrate in Court after the close of the case for the prosecution when questions under Section 342, Criminal Procedure Code were put to him was considered. In that confession the 1st accused admitted his own guilt and also accused the 2nd accused, the appellant here. The question raised was whether under Section 30 of the Evidence Act the confession of the 1st accused who was jointly tried with the appellant here could be considered by the Court against the appellant. It is quite clear that that confession was so considered and formed the basis of the conviction of the appellant. There was other evidence to which we do not propose to refer since if the legal point taken here prevails, the case must be sent back to the Sessions Court for a reconsideration of the facts of the case apart from the confession made by the 1st accused. When the case came before our learned brother Jackson, J., he considered that in view of certain decisions to which I shall refer later, the matter should come up before a bench of two Judges and hence its appearance here before us. The cases to which reference has to be made are a decision of Ayling, J., in In re Bati Reddi I.L.R. (1913) 38 M. 302, a decision of Walsh, J., in Emperor v. Mahadev Prasad I.L.R. (1923) 45 A. 323 a decision of Waller, J., in Govinda Naidu v. Emperor A.I.R. 1929 M. 285, a decision in The Empress v. Ashootosh Chuckerbutty I.L.R. (1878) 4 C. 483, and a decision of the Bombay High Court in Emperor v. William Cooper : (1930)32BOMLR747 . It must be stated that the observations of Sir Richard Garth, C.J. and the other Judges in The Empress v. Ashootosh Chuckerbutty I.L.R. (1878) 4 C. 483 were possibly obiter with regard to this question and moreover the facts in that case were that the confession made by the co-accused in that case was made previous to the trial. In Emperor v. Muhadev Prasad I.L.R. (1923) 45 All. 323, which is a decision directly in point, the facts of the case being similar to those here, Walsh, J., held that such a confession could not be considered by the Court as against the other accused person or persons under Section 30 of the Evidence Act. This view was approved by Waller, J., in Govinda Naidu v. Emperor A.I.R. 1929 M. 285. The decision in In re Bati Reddi I.L.R. (1913) 38 M. 302 of Ayling, J., takes the contrary view, but on a perusal of that case it is clear that the point does not seem to have been fully discussed at any rate, no detailed reasoning has been given by the learned Judge. In Emperor v. William Cooper : (1930)32BOMLR747 , 'which is a decision of a Division Bench, Broomfield, J., it is clear, comes to the decision with considerable hesitation that such a confession can be considered under Section 30 of the Evidence Act. 1 think that the greatest weight must be attached to the decision of Walsh, J., in Emperor v. Mahadev Prasad I.L.R. (1923) 45 All. 323, where the position is very clearly and ably discussed by that learned Judge. He says amongst other things:
In the first place an accused is entitled to know what the evidence against him is before he is called upon for a defence at all, and the closing of the case for the prosecution is no mere form but, with certain exceptions, closes the door to any further evidence against the accused.
2. Again at page 325:
To use a statement made in the dock by one accused against the other in a joint trial, offends against at least two of the fundamental principles of the criminal law. The Legislature in India saw fit to create an exception which is contained in Section 30 of the Evidence Act. In my opinion, that must be construed with reference to the fundamental principles to which it creates an exception. If the section is carefully read, I think nobody, bearing in mind the fundamental principles which I have just mentioned, ought to have any difficulty in coming to the conclusion that what is contemplated is formal proof by the prosecution of a confession previously made. The only objection I can see to such an interpretation is that I am inserting in the section the words 'as part of the case for the prosecution. But such words would be tautalogous, and a draftsman, in my opinion, would consider it superfluous to insert them, because the only thing that an accused person has to meet in a criminal trial is the case for the prosecution and such additions thereto as he may have voluntarily added by his own statement and those of the witnesses whom he calls in his defence.
3. With these observations I entirely agree. Section 30 of the Evidence Act creates a very marked exception to the fundamental principles of the criminal law and as such must be strictly Construed in favour of an accused person. This is a view which I have expressed on more than one occasion. That being so, we have to decide what is meant by the section and to read the words in it strictly. The section says that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is 'proved', the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. There is no difficulty in interpreting the word 'proved'. That must mean proved before the case for the prosecution comes to an end, either proved in the course of the prosecution case or proved in some proceeding previous to the trial. In my view, there is no difficulty in construing that section in that way and that is my interpretation of it. Under these circumstances I am bound to hold that the confession of the first accused made from the dock in the magisterial proceedings could not be considered by the Court as against the appellant here and it must accordingly be ruled out. With regard to the facts of the case, as already stated, I do not propose to consider them because the best course is to send the case back to the Sessions Court for a decision by the learned Sessions Judge upon the facts of the case excluding the confession of the 1st accused wrongly admitted.
Sundaram Chetty, J.
4. I agree.