1. The confession made by the prisoner on the 17th November 1878 must, I think, be treated as a confession recorded under the provisions of Section 122 of the Criminal Procedure Code. The prisoner was arrested by the Police on the afternoon of the 16th, and carried early the next morning before the Deputy Magistrate, Mr. White, who was then at a place (Bankipore) outside the limits of the division which he had charge. Mr. White recorded the prisoner's confession, and attached to it the certificate required by Section 122. It is clear from this that Mr. White considered himself to be acting under the terms of that section. Subsequently Mr. White returned to Barh, within the limits of his own division, and, having power to do so, took up the case against the prisoner, conducted the preliminary enquiry, examined the prisoner as prescribed by Section 346, and finally, on the same date, the 20th November, committed him for trial before the Court of Session.
2. The confession of the 17th November is, undoubtedly, defective, inasmuch as it does not bear the proper certificate, and it is not signed or attested by the mark of the prisoner. In these respects the confession was not taken in the manner provided in Section 346 as prescribed by Section 122. The question, therefore, arises, whether these omissions can be rectified under the authority contained in the last clause of Section 346 by taking the evidence of the Recording Officer that the prisoner duly made the statement recorded. As at present advised, I think I ought to follow the ruling of the Full Bench of the Bombay High Court on this point as given in the case of Beg. v. Bai Batan (10 Bom. H.C. Rep., 166), and hold that the imperfect record of the confession, taken under the terms of Section 122, cannot be repaired by secondary evidence. The special and express provision made to meet the case of an imperfect record of examination of a prisoner, in the course of a preliminary enquiry, cannot, in my opinion, be made applicable to the case of an imperfect record of a confession made before any Magistrate whilst the prisoner is still in the hands of the Police, simply because such confession has to be taken 'in the manner' provided in Section 346. In this view, therefore, the confession of the 17th November is not admissible in evidence, and must be excluded from consideration altogether.
3. It remains to consider whether, setting this confession aside, there is sufficient evidence on the record to convict the prisoner. (The learned Judge then went into the rest of the evidence, and held it sufficient to convict the prisoner.)
4. I am of the same opinion. I agree that the statement made by the prisoner on the 17th November, and which is alleged to amount to a confession, is inadmissible in evidence. It was clearly taken under Section 122 of the Criminal Procedure Code. The prisoner was brought before Mr. White simply for the purpose of having his alleged confession recorded, and there are no grounds for saying that when Mr. White took down the prisoner's statement, he was examining the prisoner, in the course of a preliminary enquiry, or that he intended to do so. The circumstance that Mr. White was also the committing Magistrate, furnishes no reason, in my opinion, why, upon Mr. White's proceedings on the 17th of November, a construction should be put which is contradicted by the facts. The alleged confession of the 17th November is defective for the reasons stated by my brother, Mr. Justice Morris, and upon the authority of the case in Beg. v. Bai Batan (10 Bom., H.C. Rep., 166), the defects cannot be remedied by examining Mr. White.
5. We are not at liberty, therefore, to look at the alleged confession of the 17th November. It appears to me, however, that independently and irrespective of it, there is no reasonable doubt upon the evidence that the prisoner is guilty of the offence with which he is charged. (The learned Judge then went through the rest of the evidence, and agreed in convicting the prisoner.)