1. The appellant has been sentenced to 5 years' rigorous imprisonment for instituting criminal proceedings before the Madura Police charging certain persons with murder and knowing such charge to be false--the offence under Section 211, Indian Penal Code.
2. It would have been better if the charge had exactly specified how he instituted these proceedings.
3. Apparently he is charged on two counts. Firstly, he sent a telegram to the District Superintendent of Police, Madura, to the effect that these persons stabbed Tirumeni Servai; and secondly, that during the investigation under Section 174, Criminal Procedure Code, he made a statement to the same effect.
4. There is no proof that the appellant sent the incriminatory telegram, beyond the Circle Inspector's statement that he confessed to so doing. This statement is within the mischief of Section 25, Indian Evidence Act and should not have been proved. No doubt it is one of the ridiculous anomalies involved in these sections, but the law is quite clear. Mr. Bewes argues that the confession in Section 25 must be a confession of the crime which the Police Officer is at the moment investigating and otherwise it is provable, which is obvious common sense but unfortunately not law. Section 25 is absolute. If A says to a Police Officer, 'I noticed B murdering X while I was murdering Z' his confession that he murdered Z cannot be proved.
5. No doubt the appellant admits that he sent the telegram, but the prosecution cannot rely upon his admission without other proof, and even if it could so rely, would be bound to take the admission as a whole. The appellant says that he is illiterate and ignorant of English, and what was telegraphed is not what he told the writer.
6. Then it is sought to fortify the charge by proving what the appellant said at the inquest. It has always been held that statements made in the course of an investigation under Chapter XIV, Criminal Procedure Code, are not 'charges' as contemplated by Section 211. Cf. Cheenamalli Gowda, In re 1 Weir 193 and Ramana Gowd v. Emperor I.L.R. (1908) 31 Mad. 506 : 18 M.L.J. 573 It would make criminal investigation very difficult if any person who gave voice to a suspicion were liable to criminal prosecution.
7. For the above reasons the conviction cannot be upheld.
8. The appellant is acquitted.