1. In this case we arc concerned with an appeal by nine persons who have been convicted by Mr. Roy Choudhury, the Sessions Judge of Faridpur, under Rule 56 (4)/121, Defence of India Rules and also with a reference made by the learned Judge in respect of 14 accused persons who, in his opinion, should be convicted under Section 147, Penal Code. The history of this case is somewhat peculiar. All the accused persons with whom we are concerned in the appeal and the reference were originally placed on their trial, together with a number of other persons, before Mr. Hattiangadi who had been appointed a Special Judge for this purpose under the provisions of Ordinance 2 of 1942. The trial before Mr. Hattiangadi began on 29th March 1943 and continued from day to day until 22nd April 1943 on which date the statements of the accused persons were recorded under Section 342, Criminal P.C. On 21st April 1943 this Court pronounced judgment in Emperor v. Banwari Lal Sarma. Reported in ('43) 30 A.I.R. 1943 Cal. 285: 207 I.C. 481 (S.B.) The judgment declared that Sections 6, 10 and 16 of ordinance 2 of 1942 were ultra vires of the powers of the Governor-General under Section 72 of Schedule 9, Government of India Act, 1935, and it followed from this decision that a trial held by a Special Judge such as Mr. Hattiangadi was without jurisdiction. As a result of this decision, the Public Prosecutor, on 26th April 1943, made an application to Mr. Hattiangadi for the stay of further proceedings against the accused. He heard the Public Prosecutor and counsel for the accused and recorded an order to the effect that:
This Court's authority has terminated as a consequence of the ruling of the Hon'ble High Court which was to the effect that the appointment of Special Courts was ultra vires. The trial so far is therefore without authority and it accordingly terminates.
2. Thereafter proceedings were taken against the accused persons under the ordinary provisions of the Code of Criminal Procedure and, on 25th September 1943, 27 of these persons were committed to the Court of Session and seventeen were discharged. On 18th December 1943, a supplementary commitment order was recorded in respect of Jyotish Chandra Sarkar. On 3rd January 1944 the 28 persons who had been committed to Sessions were placed on their trial before Mr. Roy Chowdhury, the Sessions Judge of Faridpur, on charges under Sections 147 and 302/34, Penal Code, and Rule 56 (4)/121, Defence of India Rules. The latter charge was triable with the assistance of assessors, while the others were triable by jury. This being the case, nine persons (three Muslims and six Hindus) were empanelled as jurors and the same persons were also appointed as assessors for the trial of the charge under the Defence of India Rules. The case for the prosecution was to the effect that, by an order (to which further reference will be made later in this judgment) dated 27th March 1941, the District Magistrate of Faridpur had prohibited all public processions and meetings unless permission had been obtained from himself or some other proper authority In defiance of this order it is said that the accused persons took out a procession, from the compound of the Kalibari at Bhanga in the Faridpur district and that some of them attacked the police officers who had formed a cordon round the compound, with the object of preventing the processionists from passing. A riot ensued during the course of which a Sub-Inspector was killed and two constables were severely injured.
3. The case for the defence was to the effect that the prosecution case with regard to the alleged violation of the District Magistrate's order was entirely false and it was alleged that the occurrence which took place on 19th September 1942, was in fact due to a communal riot between Hindus and Muslims, which was the result of a long standing tension between the members of the two communities. It was said that on the day of the occurrence a ceremony was being performed in the house of Dr. Bonbehari which was adjacent to the Kalibari, and that some Hindus who were taking their meals there objected to certain Muslims entering the Natmandir while they were eating. It was suggested that this action on the part of the Hindus infuriated the Muslim police officers with the result that Sub-Inspector, Azaharuddin, provoked a communal riot in the course of which Sub-Inspector Rohini Kumar Ghose, was killed by some Muslims who had a grudge against him. It was also said that this riot led to the subsequent looting of Hindus' houses and the removal of some Hindu families from Bhanga.
4. All the accused persons were charged under Section 147, Penal Code, with being members of an ' unlawful assembly the common object of which was to assault the police officers and to take out an illegal procession. All of them were also charged under Rule 56 (4)/121, Defence of India Rules, with holding or attempting to hold or with making preparations to hold the said procession. Eight of them were charged under Section 302/34, Penal Code, with the murder of Sub-Inspector Rohini Kumar Ghose. With regard to the charge under Section 147, Penal Code, the jury brought in a majority verdict of 6 to 3 of 'not guilty' against twelve of the accused persons and a unanimous verdict of 'not guilty' against the others. Four of the eight persons who had been charged under Section 302/34, Penal Code, were found 'not guilty' by a majority verdict of 6 to 3, the minority finding them 'guilty' under Section 304/34, Part 2, while the remaining four were unanimously found 'not guilty.' As regards the charge under Rule 56, Defence of India Rules, three of the assessors held that ten of the accused persons were 'guilty.' Whereas the others were of opinion that all the accused persons were 'not guilty.'
5. After taking the verdict of the jury the learned Judge asked the foreman whether the jury accepted the defence version as true. The answer was 'we can't accept the prosecution version.' The learned Judge was of opinion that this answer indicated that, as the jury did not believe the prosecution case, 'they had no occasion to weigh the evidence against each individual accused.' He was of opinion that the view which the jurors took regarding the truth of the prosecution case was not only erroneous but unreasonable. On the merits he accepted the verdict of the jury with regard to fourteen of the accused persons and directed that they should be acquitted and set at liberty, but he referred the cases of the remaining fourteen accused persons to this Court. Of those persons in respect of whom the reference has been made the learned Judge in a separate judgment convicted Ajit Ghose, Anil De, Heramba Ghose, Kalachand alias Dakhina Ranjan Sen Gupta, Niranjan De, Nibaran Das, Nripendra Routh, Satya Kumar Ghose and Jyotish Sarkar under Rule 56 (4)/121, Defence of India Rules, but he was of opinion that these people together with five others namely Anadi Chakravarty, Kulada Sankar Nag, Madusudan Ghose, Jiban Ghose and Amal Sen Gupta should be found guilty of rioting under Section 147, Penal Code. As regards the charge under Section 302/34, Penal Code, the learned Judge stated that he was in agreement with the majority verdict. He acquitted two of the eight persons charged under that section as he also accepted the verdict against them under the other charges. As regards the other six Ajit, Anil, Heramba, Kalachand, Niranjan and Satya Kumar, he has not recorded any order of acquittal, his action being in accordance with the provision of Section 307 (2) of the Code.
6. Before dealing separately with the appeal and the reference it is necessary to make some general observations which arise from certain aspects of the case, which are common to both the matters. In the first place, we have no hesitation in holding that the view, which was apparently adopted by the majority of the assessors and the jurors with regard to the truth of the case for the prosecution was perverse and erroneous. On this point we have examined the evidence with great care and we find there is practically nothing worthy of credit to support the suggestion put forward on behalf of the defence that the occurrence which took place on 19th September 1942 was due to a communal riot. The utmost that the defence have been able to establish is that there was some communal tension in connexion with the Biswakarma Puja, which took place on 17th September 1942, on which day a mela and a boat race were ordinarily held. There is also some evidence to show that, after the occurrence which is the subject-matter of the present case the police obtained assistance from some of the local Muslims in maintaining order and in arresting some of the offenders. Further, the testimony of some of the witnesses goes to show that, on 19th September 1942, a ceremony was held at the house of Dr. Bonbehari, where arrangements were made for the feeding of some members of the Hindu community. There is, however, nothing at all to show that a riot was occasioned by any Muslims trying to force their way into the place where the ceremony was being held or in support of the suggestion that Azaharuddin Ahmed P.W.1 was infuriated by the conduct of the Hindus in excluding Muslims and for this reason incited Muslim hooligans to attack the members of the Hindu community. There is clear and convincing evidence with regard to the promulgation of the order of the District Magistrate of Faridpur, dated 27th March 1941, under which unauthorised public processions were banned. It has also been established that, on 19th September 1942, a large number of persons assembled at the Bhanga Kalibari with the object of taking out a procession in defiance of the District Magistrate's order. The manner in which information with regard to this matter came to the notice of the police is practically undisputed. Similarly, there is overwhelming evidence with regard to the steps taken by the police for the purpose of establishing a cordon in the vicinity of this Kalibari with the object of preventing the procession from being taken out. There is no doubt that the processionists attempted to break through that part of the cordon, which was posted on the western side of the Kalibari, that the members of the police force were attacked and that the ensuing riot took place mainly in order that the way might be cleared for the processionists by attacking the police officers, if necessary. There is no doubt that Rohini Babu was killed and two constables were injured while they were trying to prevent the procession from leaving the Kalibari and, having regard to the weight of the evidence, the suggestion that these people were taking part in a communal riot can only be described as absurd.
7. It is not possible to escape from the conclusion that, as the majority of the jurors and assessors for reasons best known to themselves did not accept the general truth of the prosecution account of the occurrence, they did not trouble to consider the evidence against each individual accused. It will, therefore, be necessary for us to scrutinise this evidence in order to see whether the prosecution have succeeded in establishing their case against any of the accused persons whose cases are now before us. Although we agree with the learned Judge in thinking that the verdict of the jury was unreasonable and that the opinion of the majority of the assessors was against the. weight of the evidence, it is nevertheless difficult not to hold that the learned Judge was not himself responsible in some degree for the extraordinary decision at which the jurors and assessors arrived, by reason of the fact that during the trial he allowed much inadmissible evidence to be brought on the record in favour of the accused, that he excluded certain items of evidence which should have been included and that, with reference to the charge under Rule 56 (4), Defence of India Rules, he gave the defence an advantage to which they were not entitled by assuming that the persons who joined the procession after it left the Natmandir or were not present in the Natmandir when preparations were being made for taking out the procession, could not be charged under Rule 36 (4)/121, Defence of India Rules. The order of the District Magistrate of Faridpur, dated 27th March 1941, directed that 'no person shall convene, organise, hold or take part in any public procession, meeting or assembly within the district of Faridpur unless previous permission had been obtained from the District Magistrate or from the Sub-divisional officer concerned.' It was issued under a Notification of the Provincial Government No. 1384P, dated 4th March 1941 and the latter Notification was issued in conformity with the provisions of Rule 56 (1), Defence of India Rules which is in the following terms:
The Central Government or the Provincial Government may, for the purpose of securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war by general or special order, prohibit, restrict or impose conditions upon the holding of or taking part in public processions, meetings or assemblies.
8. The District Magistrate's order was duly promulgated in accordance with the requirements of Rule 119, Defence of India Rules. In this connexion, it may be noted at once that there is no substance in the argument which was addressed to us by Mr. Banerjee to the effect that the police officers should have drawn the attention of the processionists to the fact that the order had actually been issued. The relevant portion of Rule 119, which was in operation at the time of the occurrence, is to the effect that
every authority . . . who makes any order ... in pursuance of any of these rules shall, in the case of an order of a general nature or affecting a class of persons publish notice of such order in such manner as may in the opinion of such authority .. . be best adapted for informing persons whom the order concerns .. . .
9. The evidence indicates that there was proper compliance with this rule. Further, the circumstances proved leave no room for doubt that all the accused persons knew that the order in question had issued and that they were determined to flout it. In our opinion it cannot be said that the persons who joined in the riot for the purpose of securing a passage for the prohibited procession took no part therein. In fact, it is very clear that those of the rioters who were not present in the Natmandir, but joined in the not for the purpose of allowing the procession to pass, took a very prominent part in the procession. Without their assistance it is not unlikely that it might have been stopped at the western gate of the Kalibari. In any event, it must be remembered that all the persons who were on their trial before the learned Judge were charged under Rule 56 (4)/121, Defence of India Rules. Rule 121 as it stood on 19th September 1942 was as follows:
Any person who attempts to contravene or abets or attempts to abet or does any act preparatory to a contravention of any of the provisions of these rules shall be deemed to have contravened that provision.
10. This rule must be read with Rule 5 which, in September 1942 was in the following terms:
If any person to whom any provision of these rules relates, or to whom any order made in pursuance of these rules is addressed or relates ... (a) fails without lawful authority or excuse. . to comply or to secure compliance with such provision or order or (b) evades or attempts to evade by any means such provision or order, he shall be deemed to have contravened such provisions or order and in these rules the expression 'contravention' with its grammatical variations includes any such failure, evasion or attempt to evade.
11. It follows, therefore, that any person who attempted to interfere with any police officer who might be engaged in enforcing the order of the District Magistrate, dated 27th March 1941, was guilty of an offence under Rule 56 (4), Defence of India Rules whether he was actually present in the Kalibari or not. On this point the view expressed by the learned Judge in his judgment in the case against 28 accused persons under Rule 56, Defence of India Rules, is as follows:
I am of opinion that nobody else except those against whom there is satisfactory evidence of their being present in the procession or in the Natmandir just before the procession started can be convicted under this charge.
12. This view is erroneous and has undoubtedly led to the acquittal of several of the accused persons who would otherwise have been found guilty under Rule 56(4), Defence of India Rules. The learned Judge allowed the defence to put in the depositions of no less than 33 prosecution witnesses, which had been recorded by Mr. Hattiangadi in his capacity as a Special Judge appointed under Ordinance 2 of 1942. This was done at the request of the defence counsel for the purpose of contradicting the prosecution witnesses under Section 145, Evidence Act.
13. Even if it be assumed that there had been proper compliance with the provisions of Section 145, Evidence Act--a matter which will be discussed at a later stage in this judgment in connexion with certain other matters--in our view, the records of the depositions of witnesses who gave evidence before the Special Judge could not be legally admitted in evidence in the case with which we are now concerned. When these depositions were produced before the lower Court they purported to be memoranda of the evidence of witnesses given 'in a judicial proceeding or before any officer authorized by law to take such evidence' within the meaning of Section 80, Evidence Act. It has already been pointed out that the effect of the decision of this Court in Emperor v. Banwari Lal Sarma, Reported in : AIR1943Cal285 which was decided on 21st April 1943, was to declare that those sections of Ordinance 2 of 1942, under which Special Courts were constituted, were ultra vires of the powers of the Governor-General under the Government of India Act, 1935. It follows, therefore, that Mr. Hattiangadi was not authorized by law to take evidence nor could it be said that the witnesses before him deposed in a judicial proceeding. In view of the decision of this Court, which was subsequently affirmed by the Federal Court, Mr. Hattiangadi had no jurisdiction of any kind in the matter and statements made by witnesses before him had no greater efficacy than would have been the case if they had been recorded by a private individual. Had Mr. Hattiangadi been alive, it might conceivably have been possible to prove the previous statements for the purpose of contradicting the witnesses before the lower Court by calling Mr. Hattiangadi himself. It might perhaps have been possible to prove the statements by examining some person who was present at the time when the depositions were recorded and who might have been in a position to prove that the record made by Mr. Hattiangadi reproduced correctly what the witnesses had said. However, the necessary steps were not taken to prove the correctness of the records of those depositions which therefore should not have been admitted in evidence.
14. Further, 13 depositions of prosecution witnesses before the committing Magistrate were filed under Section 145, Evidence Act, apparently for the purpose of contradicting some portion of the testimony which these witnesses gave before the learned Judge. In the case of the majority of these witnesses there was absolutely no cross-examination of any kind before the learned Judge with regard to the alleged contradictory statements and it has been impossible to discover exactly what the statements were that the defence sought to contradict. In the few cases in which there has been some sort of cross-examination the defence admittedly did not draw the attention of the witnesses to that portion of the committing Magistrate's record by which it was sought to contradict him in order that he might be given an opportunity to reconcile his evidence before the learned Judge with the statement which he was recorded as having made before the committing Magistrate. There was there fore no compliance with Section 145, Evidence Act, and these previous statements should not therefore have been admitted in evidence. In Bal Gangadhar Tilak v. Sriniwas ('15) 2 A.I.R. 1915 P.C. 7 the Judicial Committee of the Privy Council pointed out that there is no warrant whatsoever for using the previous statement of the witness for the purpose of contradicting or discounting his evidence 'unless the particular matter or point has been placed before the witness as one for explanation in view of its discrepancy with the evidence then being tendered.' Their Lordships went on to say:
On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary, and intelligible rule, and where a witness's reputation and character are at stake the duty of enforcing this rule would appear to be singularly clear. Fortunately the law of India pronounces no uncertain sound upon the same matter. By Section 145, Evidence Act, 1872, it is provided that 'A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to the matters in question without such writing being shown to him or being proved; but, if it is intended to contradict him by the writing his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him': Their Lordships have observed with regret and with surprise that the general principle and the specific statutory provisions have not been followed.
15. In Emperor v. Zawar Rahman ('04) 31 Cal. 142 (F.B.) it appears that in a trial at the High Court Sessions, after the case for the prosecution had closed, counsel for the defence claimed a right to read before the jury the depositions taken before the Magistrate for the purpose of showing that the witnesses had contradicted themselves. On a reference to a Pull Bench of this Court it was held that,
unless the attention of a witness is expressly directed to any particular statement previously made by him, by reading it to him or allowing him to read it from the original deposition or an authenticated copy of it, any previous statement cannot be admitted in evidence in contradiction as to the statement that he has subsequently made. And in admitting any statement shown to be in contradiction to a statement made at a trial, that statement alone should be put in evidence and not the entire deposition. To allow any other course would not be fair to the witness and would represent him as having made a contradictory statement or statements which he might have possibly been able to explain if he had had a proper opportunity.
16. Observations to the same effect were made in a recent decision of this Court in Emperor v. Rahenuddi Mandal ('44) 31 A.I.R. 1944 Cal. 323 In the case with which we are now dealing, even if there had been proper compliance with the provisions of Section 145, Evidence Act, in respect of the depositions before the committing Magistrate, only those passages in the previous statements should have been proved, which clearly contradict some portion of the testimony of the witnesses before the learned Judge. The procedure which was adopted was not only illegal but had the. effect of burdening the record with much unnecessary matter. While this procedure has wasted the time of all the Courts concerned it has failed to establish any discrepancy to which the defence are entitled to refer. The prosecution put in evidence the depositions made by two witnesses before the committing Magistrate and the learned Judge allowed these depositions to be filed under the provisions of Section 288, Criminal P.C. As regards the deposition of Baser Sadagar, P.W. 32, this was apparently filed for the purpose of showing that the witness had stated in the Court of the committing Magistrate that he had seen Anadi Kumar Chakravarty running from behind the school towards the Kalibari with a lathi in his hand. He had not been able to identify Anadi before the learned Judge. Although on a proper application of the provisions of Section 288 of the Code the prosecution might have been able to use as substantive evidence the statement regarding Anadi before the committing Magistrate, it must nevertheless be remembered that this application of Section 288 of the Code is 'subject to the provisions of the Evidence Act, 1872.' In substance the prosecution sought to contradict the evidence given by Baser before the trial Judge by a portion of his statement made before the committing Magistrate. This could only be done by having recourse to Section 145, Evidence Act as was made clear in Emperor v. Zawar Rahman ('04) 31 Cal. 142 (F.B.), cited above. It follows, therefore, that the previous statement should have been read to the witness or be should have been allowed to read it for the purpose of enabling him to explain or reconcile any discrepancy. The learned Deputy Legal Remembrancer argues that this procedure could not have been followed unless the witness was declared hostile and the prosecution were allowed to Cross-examine him. It, is, however, always possible for the party who calls a witness to ask the Court for permission to put leading questions to such witness. This is the object of Section 154, Evidence Act which provides that
the Court may in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
17. The adoption of such a procedure does not necessarily mean that the witness in question should be declared hostile. It should also be noted that the application of the provisions of Section 288, Criminal P.C., is a matter within the discretion of the presiding Judge. In our view it is not a proper exercise of this discretion for the Judge to allow the deposition of a Witness before the committing Magistrate to be used as substantive evidence in a case unless the party seeking to do so draws the attention of the witness to any part of the previous statement under the provisions of Section 145, Evidence Act, with regard to which any discrepancy may arise or unless the Judge himself puts the necessary questions for the purpose of observing this procedure. As regards the other witness, Hussain Sheikh, P.W. 35, whose deposition was filed by the prosecution under the provisions of Section 288 of the Code, it is not clear from the record for what purpose this was done. The learned Judge does' not appear to have applied his mind to the question whether it was really necessary to place these depositions on the record under Section 288 of the Code. He has allowed the whole of the depositions to be put in without marking the particular passages upon which the prosecution rely. This procedure has resulted in the time of this Court being wasted in attempting to discover what these passages were. With regard to the use which the learned Judge made of Section 288 of the Code we can only say that he failed to exercise any discretion at all within the meaning of the section and it follows that these depositions must be excluded from the record. In this connection, we draw the attention of the learned Judge to the observations of this Court in Emperor v. Rahenuddi Mandal ('44) 31 A.I.R. 1944 Cal. 323 cited above, with regard to the proper application of Section 288, Criminal P.C.
18. As a further instance of the improper admission of evidence reference may be made to a so-called first information report which was recorded by Sub-Inspector Chandra Kishore De at 6 P.M. on 19th September 1942. Some reference was made to this document in the learned Judge's charge, although he pointed out to the jury that the document which should be treated as a first information report was the general diary entry, which was made at the thana at 3.20 P.M. on 19th September 1942. Having regard to the provisions of Section 162, Criminal P.C., Chandra Babu's information could not be used for any purpose during the proceedings before the learned Judge. He nevertheless allowed the Inspector Ainaddin Ahmed, P.W. 55, to give some evidence with regard to the contents of this document mainly, it is true, in cross-examination at the instance of the defence. It cannot be said that the Inspector's answers were to the advantage of either the prosecution or the defence. In any case, they were inadmissible and the questions in response to which the answers were given should have been disallowed. We may add that the position would not have been different even if this document could be held to be a true first information and the only person who could have testified with regard to its contents was the Sub-Inspector himself who was dead at the time of the trial. The learned Deputy Legal Remembrancer complains that two confessions made respectively by Satya Kumar Ghose and Madhusudan Ghose on 23rd September 1942 were improperly excluded from the evidence on the ground that they were not voluntary. With this contention we agree.
19. With regard to the first of these documents the only reason mentioned by the learned Judge for thinking that it was not a voluntary confession was that the confessing accused had not been produced before the Magistrate at the first opportunity, although such an opportunity occurred on 20th September. The confession in question was actually recorded at Faridpur. Satya Kumar Ghose gives a full account of his movements after his arrest at Bhanga at 5 P.M. on 19th September 1942. He stated that he wished to make the confession because he was repentant and that he had not been tutored. Having regard to the answers which he gave to the Magistrate who recorded the confession and the contents of the document itself we have no hesitation in holding that the confession was a voluntary one and that it should have been admitted in evidence. The same remarks apply in the case of the confession made by Madhusudan Ghose, but in the case of this accused the learned Judge mentioned as an additional reason for excluding the confession that Madhusudan had made a statement in his confession which could only indicate either that he was speaking falsely or that he had been induced to make the confession. The reference is apparently to the following question and answer:
Q.--'What you will confess will go as evidence against you and you may be punished severely as a result thereof. Do you understand ?
A.--'That I know, Sir, I shall not escape even if-I tell lies.
21. The only reasonable inference to draw from such an answer was that Madhusudan was conscious of the fact that it would not help him if he made a false statement. It certainly cannot be said that this remark indicates that his confession was either false or involuntary. We, therefore, hold that this confession also should have been admitted in evidence.
22. A further important question with regard to which lengthy arguments have been addressed to us by all the parties concerned in this case relates to the improper use at the trial of statements recorded by the police under the provisions of Section 161, Criminal P.C. During the course of the hearing it transpired that the defence placed considerable reliance upon the fact that twenty-four of the prosecution witnesses, when they were examined in the Sessions Court, mentioned certain names and incidents which do not appear in the record of the statements made by them to the police when the case was under investigation. At the trial the defence appear to have been in possession of some unauthorised copies of the statements of the witnesses, which purported to have been recorded by the investigating officer. On the basis of these copies the defence pleader cross-examined the witnesses and succeeded in obtaining some admissions from them to the effect that they could not remember whether they had mentioned the names and incidents in question to the police officer in charge of the investigation. Admittedly, after they had been cross-examined in this way, the witnesses were neither shown the record of their statements nor was their attention directed to the alleged record in the police diary nor to any portion thereof for the purpose of affording them an opportunity to explain any discrepancy between their evidence and the alleged recorded statements by which it was sought to contradict them. The investigating officer was dead at the time of the trial and certain questions relating to the alleged previous statements were put in cross-examination to the Inspector who had supervised the investigation and was acquainted with the hand-writing of the investigating officer. After consulting the diary the Inspector testified to the fact that the names and incidents with regard to which the witnesses had been cross-examined had been omitted from their statements as recorded by the Sub-Inspector. The learned Judge made a number of references in these alleged statements in his charge to the jury and the learned Deputy Legal Remembrancer argues on this point that, by failure to comply with the mandatory provisions of Section 162, Criminal P.C., a mass of evidence in favour of the defence was illegally placed on the record to the prejudice of the prosecution.
23. Detailed arguments have been placed before us with regard to the proper interpretation of this very obscurely drafted section of the Code. It is a section in connexion with which difficulties continually arise and it has been a source of much conflict of judicial decision. Failure to understand its meaning and implication and to apply in a fair and reasonable fashion the procedure which it prescribes must have resulted in the waste of many thousands of hours of public time. We, therefore, think it desirable that we should record briefly our views with regard to some of the more important points which have been raised during the hearing of the matter now before us with regard to the proper interpretation and application of the section.
24. In the first place, Section 162, Criminal P.C., provides that, subject to certain important restrictions which appear from the language of the section itself, the accused has an absolute right to obtain copies of statements made by witnesses during the course of the police investigation. It is immaterial whether the statement is recorded in the actual words of the witness and it is sufficient if it is written in the diary merely in the form of a memorandum: Mafizaddi v. Emperor : AIR1927Cal644 . At the same time the section only applies to the statement of a witness which has been reduced to writing by the investigating officer, and the Court would be justified in refusing the copy of an abstract of the statements of several witnesses prepared in such a way that it was not clear what each witness was supposed to have said: Emperor v. Karimuddi Sheikh : AIR1932Cal375 , Emperor v. Sahk . Similarly, the defence would not ordinarily be entitled to a copy of an entry in the diary which merely summarised the conclusions at which the investigating officer had arrived after examining a particular witness.
25. With regard to the latter point a question of more difficulty arose in connexion with the statement of Satya Ranjan Dhupi P.W. 2. This man was examined by the investigating officer who recorded a note in his diary to the effect that 'the following facts transpired from him.' The learned Deputy Legal Remembrancer argued that a copy of the summary which followed was not available to the defence for the purpose of contradicting the testimony of Satya Ranjan Dhupi before the learned Judge because it merely related to the results of the investigation. After a careful scrutiny of the record it appeared that, in spite of the introductory observation noted by the Sub-Inspector, the latter had recorded a memorandum of the substance of the statement made to him by the witness. It, therefore, follows that the defence would have been entitled to a copy of the statement if they had observed the procedure laid down in the section.
26. It is necessary to say a few words about this prescribed procedure because it is admitted in this case that the copies which were used by the defence for the purpose of cross-examining the witnesses were unauthorised copies, that is, copies obtained by some method not contemplated by Section 162 of the Code. In attempting to formulate the exact procedure which must be followed by the accused in applying for copies of the statements of witnesses recorded by the police we are confronted by an initial difficulty occasioned by the vagueness of the loose language used by the Legislature in the opening words of proviso 1 to the section. These words provide that the proper time to apply for copies of the statement is 'when any witness is called for the prosecution.' Much difficulty has been experienced in interpreting this expression. In Madari Sikdar v. Emperor : AIR1927Cal514 Chotzner and Duval JJ. held that
the cross-examination must lay the foundation for the suggestion that the evidence given by the witness in Court is contradicted by his statement recorded under Section 161, Criminal P.C., and it is only then that the accused is entitled to ask the Judge to refer to the writing and grant him copies.
27. The correctness of the view expressed in Madari Sikdar v. Emperor : AIR1927Cal514 was doubted by Sir George Rankin C.J., in Babarali Sardar v. Emperor : AIR1929Cal182 . After referring to the decision of Chotzner and Duval JJ. the learned Chief Justice observed at page 845:
As at present advised, I am not prepared to accept that as a possible interpretation of this section. I do not think that it was any part of the intention of the amended section that the Judge has to consider whether a foundation has been laid. In my judgment that part of that decision is open to criticism.
28. In Ramgulam Teli v. Emperor ('28) 15 A.I.R. 1928 Pat. 215 the Patna High Court expressly dissented from the particular part of the decision in Madari Sikdar v. Emperor : AIR1927Cal514 , to which reference has been made above. In doing so, Ross J. observed:
There is nothing in the section which requires that the cross-examination shall have been opened; nor do I see how the defence can be in a position to contradict the witness by his previous statement or to lay any foundation for the suggestion that there is a contradiction before it has seen the statement. Nor indeed is the Magistrate in a position to say whether there may not be a material contradiction between the two statements.
29. With these observations we agree. Our attention has also been directed to similar views expressed in the decisions of other High Courts, to which we do not think it necessary to refer. What then is the right time for the accused to apply for copies of these statements The intention is that the copy should be used by the defence 'in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, 1872.' Prima facie, this purpose may be stultified unless the accused or his pleader is supplied with the requisite copy in sufficient time to enable him to prepare for the conduct of the defence and for the cross-examination of the witnesses. We think, therefore, that in cases triable by the Court of Session the accused would be well advised to make the requisite application at the proper time in the Court of the committing Magistrate but, if he fails to do this, it would not be to his interest, nor do we think it would be warranted by law, for him to postpone his application until the witness has entered the witness-box or is on the point of being cross-examined. We think there is much to be said in favour of the view that the expression 'called for the prosecution' refers to the point of time when the prosecution decide to examine a witness and take proper steps to secure his attendance or cite him at the enquiry or trial. In our opinion, this view may be supported having regard to the language used in certain other sections of the Code and the general scheme of Section 162. In such sections as Sections 286 and 288 of the Code, which relate to the time when a witness is placed in the witness-box, the expression used is 'the prosecutor shall then examine his witness' or 'if such witness is produced and examined.' The calling of a witness seems to connote an anterior point of time when the witness is cited.
30. It was recently held by Bartley and Khundkar JJ. in Ahmadar Rahaman v. Emperor ('40) 44 C.W.N. 340, that the accused is only entitled to a copy of a statement of a witness when the latter is actually in the witness-box to give his evidence against the accused. We think there is much difficulty in accepting this view because, if it is correct, it would ordinarily be necessary in the case of each such witness for the Court to grant an adjournment in order to enable the copy to be prepared and to afford the accused reasonable facilities to make proper use thereof in cross-examining the witness. For the purpose of this case it is not necessary for us to refer Ahmadar Rahaman v. Emperor ('40) 44 C.W.N. 340 to a Full Bench. The matter, however, is one which requires further consideration. It is clearly to the advantage of the accused that he should be supplied with the copies of the statements before the witnesses enter the witness-box and we think that it was the intention of the Legislature to provide that this should be done, subject to the restrictions imposed by the section. This being the case, we consider that the proper time to make the application is as soon as possible after suitable steps have been taken to secure the attendance in Court of the prosecution witnesses. It follows from our interpretation of the expression 'called for the prosecution' that most of the difficulties with regard to the application of the mandatory directions contained in the two provisos to Section 162 of the Code automatically disappear. It is a condition precedent to the supply to the accused of copies of the recorded statements that reference should be made to the diary by the Court for the purpose of enabling the Court (1) to see whether any portion of the recorded statement should be excluded under proviso 2 and (2) to satisfy itself that the document of which a copy is required is really a statement within the meaning of the section. If the application for copies is postponed until after a witness has entered the witness-box it is not unlikely that the Court's duties (which are not unimportant) in connexion with this matter may be performed in a hurried and perfunctory fashion. In any case, the examination of the witnesses will often be interrupted and in jury trials the attention of the jury may be distracted by legal discussions with which they are not directly concerned. This difficulty is certainly not obviated by a practice which is sometimes followed, by which the Public Prosecutor hands over the whole police diary to the defence lawyer to facilitate cross-examination. This is an inconvenient and irregular procedure which is not sanctioned by the Code. There need be no delay in supplying copies if application for them is made at the proper time before the witness enters the witness-box. There will be no necessity for granting inconvenient adjournments and in jury trials discussion before the jury regarding the contents of the diary (which may have the effect of prejudicing the accused) will be avoided.
31. Further, in fairness to the accused and to the witness whose evidence may be contradicted by a proper use of the recorded statement it is essential that the copy should be an accurate one. It is on this account that it is contemplated that such copies should only be furnished under the direction of the Court. Unauthorised copies should not, therefore, have been used by the defence in this case. It is now necessary to consider the question as to the use which under the provisions of Section 162, Criminal P.C., may be made of statements to the police. The effect of Section 162 of the Code is, subject to the provision of Sub-section (2), to prevent a statement to the police made during the course of the investigation from being used for any purpose except (1) by the accused for contradicting a witness, provided the procedure laid down in proviso (1) is followed, and (2) by the prosecution in re-examination for the purpose only of explaining any matter referred to in the cross-examination of the witness sought to be contradicted. What is the precise procedure contemplated by proviso (1) as regards contradictions, and how can the alleged contradictory statements be proved It is this part of the section which is most frequently misunderstood and misapplied. It provides that, when the statement of a prosecution witness to the investigating police officer has been reduced to writing, the Court shall, on the application of the accused, direct that the latter be furnished with a copy of the writing 'in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act, 1872.' In the first place, it should be noted that the words 'any part of such statement, if duly proved,' lay emphasis on the necessity for proving the statement of the witness. They do not refer to the proof of the writing. In other words, what is required is that the contradiction must be established by proving that she part of the recorded statement used for the purpose of contradicting a witness actually represents what was said by him to the police officer. It is not sufficient merely to prove the writing as contemplated by Section 145, Evidence Act, for proof of the writing alone does not show that the witness actually made the statement by which it is sought to contradict him. It must be remembered that, as regards the contradiction of a witness, Section 162 of the Code sanctions a very extraordinary procedure. A witness may be contradicted by his previous statement 'in the manner provided by Section 145, Evidence Act, 1872.' Section 145 relates to previous statements made by a witness 'in writing or reduced into writing' but the only writing available for use by the defence under proviso (1) to Section 162 is not even a writing which the witness has been allowed to sign. It is neither the writing of the witness himself nor one for which he can be held responsible as having signed it after perusal or after it had been read to him. It is a statement recorded by an investigating officer--not necessarily in the presence of the witness, which is supposed to represent what the witness said to the police officer but which may be an utter travesty of the real statement on account of mistakes and omissions which the witness has had no opportunity to check.
32. Section 145, Evidence Act, however, in its ordinary application is clearly intended to be used for the purpose of contradicting a witness by a written previous statement for which the witness is responsible, so that if in his evidence he makes a statement inconsistent with what has been written, he may be contradicted by the proof of the writing. This procedure cannot apply in terms when the only available written record is one for which the witness cannot directly be held to be responsible. Hence the emphasis which is laid in the first proviso on the necessity for proving a part of the statement which is to be used to contradict the witness. In order to do this evidence must be forthcoming to show that the witness really said what he is recorded in the diary as having said. The reference to Section 145, Evidence Act, in the first proviso clearly shows that the Legislature intended that the principle of that section should be applied when it is sought to contradict a witness by a statement alleged to have been made by him to the police. The words 'in the manner provided' are significant in this connexion. What is the 'manner provided by Section 145, Evidence Act,' for contradicting a witness? These words are certainly ill chosen because Section 145, Evidence Act, does not actually provide for a manner of contradiction at all but for a manner of cross-examination. It is, however, necessary to give some meaning to the language which has been used with reference to this matter and the only reasonable conclusion seems to be that it was intended to provide that the attention of the witness should be called to those parts of the diary entries in respect of which proof could be given that they represented the actual statement of such witness, in order that they might be used for the purpose of contradicting him.
33. When it is sought to contradict a witness under Section 162 of the Code the importance of the writing in the diary, although it is not the writing of the witness, lies in the fact that in many cases the investigating officer may be able to prove when he enters the witness-box that this writing is an accurate record, or, at any rate, a correct summary of the statement made to him by the witness during the course of the investigation. In this event the writing comes on record as proof of the statement of the witness. This being the way in which the writing may be used, it is of the utmost importance that ''in the manner provided by Section 145, Evidence Act,' the attention of the witness should be called to those parts of the recorded statements by which it is intended to contradict him in order to enable him, if he desires to do so to furnish an explanation for any alleged contradiction or material omission. Therefore, after the witness has been cross-examined with regard to his previous statement without it being shown to him, he should then be allowed to read the relevant passage or it should be read to him by the cross examiner and he should be asked whether he wishes to offer any explanation of the statement which is alleged to represent what he has said. He may of course admit that he made it. On the other hand, he may be in a position to say that the record was not made in his presence and that it bears no resemblance to what he actually said. He may be able to explain some ambiguity or to demonstrate that there is no inconsistency between the recorded statement and what he said in his evidence. The weight to be attributed to his examination, it any, will depend on whether the person who made the record is able to convince the Court that it was accurately made, a matter which will be further discussed later in this judgment.
34. The importance of drawing the attention of the witness to those parts of his previous statement by which it is intended to contradict him 'in the manner provided by Section 145, Evidence Act,' has been stressed in a number of decided cases of which a few only need be cited. The leading Calcutta case on the point is Madari Sikdar v. Emperor : AIR1927Cal514 . That part of the decision in which the learned Judges referred to the observations of the Privy Council in Bal Gangadhar Tilak v. Sriniwas ('15) 2 A.I.R. 1915 P.C. 7 (cited above) and emphasised the necessity of calling the attention of the witness to the parts of his statement by which it is intended to contradict him has never been questioned in this Court. Some useful observations in connexion with this matter are also contained in the judgment of Yorke J. in Iqbal Ahmad v. Emperor : AIR1943All49 in which the learned Judge observed that he had found in many cases recently that:
Sessions Judges do not apparently understand or, at any rate, do not adopt the proper procedure for the admission and proof of statements made by witnesses to the police in the course of an investigation.
He went on to say that
a Court should not take any notice of a previous statement made by a witness which is in contradiction of the statement which he or she makes before that Court unless the previous statement alleged to be contradictory is put to the witness for admission or denial and he or she is given an opportunity of offering an explanation of how it is that on a previous occasion he or she made this contradictory statement. It may well be that statements apparently contradictory are reconcilable and the witness must be given an opportunity to reconcile them if such reconciliation is possible... It is not sufficient to ask a witness whether he did or did not make a certain statement to the Sub-Inspector unless the witness in answer to that question admits that he made such a statement. In that case if the statement is contradictory of something else which the witness had said, it is the duty of the cross examiner to give the witness an opportunity of reconciling his statement
35. Observations to the same effect have also been made in the following cases: Raghuraj Singh v. Emperor : AIR1934All956 ; Emperor v. Sahk ; Gopi Chand v. Emperor ('30) 17 A.I.R. 1930 Lah 491; Emperor v. Najibuddin ('33) 20 A.I.R. 1933 Pat. 589 and Nga U Khine v. Emperor ('35) 22 A.I.R. 1935 Rang. 98. In this case the proper procedure has not been observed in attempting to contradict the witnesses by their previous statements. It therefore follows that the defence are not entitled to place any reliance on any of the alleged contradictions which have been brought on the record without observing the prescribed procedure.
36. Even if it be assumed for the moment that the attention of the witnesses had been called in the manner indicated above to those portions of their recorded statements by which it was intended to contradict them, it is still necessary to consider whether the defence have succeeded in proving those parts of the alleged previous statements with reference to which contradictions are said to arise. The ordinary method in a case such as this of proving the previous statement of a witness by which it is sought to contradict him is; (1) When the witness is confronted with his alleged previous statement to elicit from him an admission that he made it. (2) To call the investigating officer and to obtain evidence from him to the effect that the recorded statement in the diary is an accurate record or, at any rate, a substantially accurate record of what the witness said to him, and (3) to adduce any other legal evidence in order to establish the fact that the alleged previous statement was made. For example, in suitable cases, a witness may be examined, who was present at the time when the record was made and is in a position to testify with regard to its correct preparation. It would then be for the Court to decide whether the previous statement had been proved after weighing against the evidence adduced for this purpose any explanation which the witness might have given with reference to the alleged statement or any other evidence which might be on the record to indicate that the previous statement as recorded had not actually been made.
37. Some misunderstanding has arisen with reference to this matter because some of the judgments to which we have been referred contain expressions which may be taken to imply that, in order to prove the previous statements of witnesses, it is sufficient for the investigating officer to prove that part of the diary in which the alleged statements are written. Such observations occur in some decisions of the Lahore High Court, of which the case in Gopi Chand v. Emperor ('30) 17 A.I.R. 1930 Lah 491, is a typical instance and in a decision of this Court in Jasimuddin Sarkar v. Emperor : AIR1931Cal622 . These and similar decisions seem to overlook the fact that mere proof of the writing in the diary does not by itself prove the previous statement of the witness within the meaning of Section 102, Criminal P.C. For instance, on referring to the entry in this diary, the investigating officer may only be in a position to say
I find that I have recorded in my diary a few notes of what the witness said to me during the investigation, but I only made these notes with reference to some particular feature of the investigation which I regarded as important at the time. I Cannot now say whether I recorded his statement accurately or made an accurate summary thereof.
38. Evidence of this nature would not prove the alleged statement at all nor would it be proper in such a case for the Judge to place on the record the diary entries relating to such statement. This brings us to the consideration of the question whether, in a case in which evidence has been given that the writing in the diary represents the actual previous statement of the witness or, at any rate, a correct summary of such previous statement the writing should be formally brought on the record as an exhibit in order that it may be read to the jury.
39. If the investigating officer is in a position to testify that the writing in the diary correctly represents the previous statement of the witness and the relevant portion of that statement has been recorded by the learned Judge in his note of evidence, it is a matter of minor importance whether the corresponding portion of the writing in the diary is marked as an exhibit or not. All that is necessary is that that Judge's record should contain somewhere a clear note of what the witness is supposed to have said according to the evidence. The marking of the relevant portion of the diary as an exhibit merely avoids a certain amount of clerical work on the part of the Judge who is thus enabled to refer to the exhibit number in his note of the evidence instead of recording therein exactly what the witness is represented as having said. What is important is that relevant and admissible evidence in proof that the alleged previous statement was actually made should be on the record in some form in order that it may be placed before the jury or to enable the Court to come to his decision. In the present case, the alleged contradictory statements have neither been embodied in the Judge's note of the evidence nor have the relevant diary entries been exhibited.
40. It will be remembered that the investigating officer, Sub-Inspector Chandra Kishore De, was dead at the time of the trial. The Inspector was allowed to refer to the diary of the deceased Sub-Inspector to state that this diary was in the handwriting of the Sub-Inspector and to give evidence that certain names and incidents were not mentioned therein. Mr. Chatterjee, on behalf of the appellants, has argued that the statements recorded by the Sub-Inspector may be proved under Section 32 (2), Evidence Act, and in support of his argument, he has referred us to the case in Abdul Aziz v. Emperor : AIR1932All442 . The case in question was a peculiar one in which a man named Mamud Ali Khan had been killed It appears that some months before his death, a dacoity was committed in a village called Mirpur and that, in connection with that case, Mamud had informed the Sub-Inspector that Gafur and Bahir, two of the appellants, had taken part in the dacoity. At the trial, in which the appellants were charged with having murdered Mamud, the prosecution sought to prove the statement made to the Sub Inspector, apparently in order to show that the appellants had a motive for killing the deceased man as the latter had given information against them, which implicated them in a dacoity case. It was held that Section 162, Criminal P.C., was inapplicable. The statement was admitted under Section 32 (2), Evidence Act, as having been recorded by the Sub-Inspector in the ordinary course of business, apparently for the purpose of proving the fact that the statement had been made.
41. We express no opinion with regard to the correctness of the decision in the above cited case nor on the further question raised by Mr. Chatterjee whether, on a strict interpretation of Section 32 (2), Evidence Act, it would be legitimate to admit in evidence under this section the diary entries of the deceased Sub-Inspector, Chandra Kishore De, to show not merely that statements of certain prosecution witnesses were made to and recorded by him in the ordinary course of business, but also to prove what these witnesses were supposed to have said to him. The fact remains that, even if such evidence were admissible, the Inspector has not proved the diary entries. Therefore those entries, with reference to which some inference might have been drawn to the effect that the witnesses had contradicted themselves have not been brought on the record. It, therefore, cannot be said that the alleged previous statements, with reference to which contradictions are said to have arisen, have been proved. As has been indicated in the preceding paragraphs of this judgment, it is ordinarily a comparatively simple process to prove a contradiction when there is a direct conflict between the evidence given before the Judge and what a witness is recorded as having said before the investigating officer. If he states before the Judge, 'I saw X at the time of the occurrence' and the diary entry shows that he is supposed to have told the Sub-Inspector, 'I did not see X at the time of the occurrence' all that it is necessary to do, as already pointed out, is to bring on the record legal evidence to show that his alleged statement as shown in the diary was actually made by him and either to embody that statement in the Judge's note of evidence or to exhibit it. The main difficulties occur when, as in the present case, the alleged contradictions arise in respect of certain matters which were mentioned by the witnesses in their evidence before the learned Judge, but with regard to which no reference appears in their statements as recorded in the police diary. This aspect of the matter requires further discussion from several points of view. The learned Deputy Legal Eemembrancer has referred to several decided cases in which the view appears to have been held that it is not open to the defence to take advantage of omissions of this nature for the purpose of contradicting prosecution witnesses. We are not prepared to adopt this extreme view and we agree with the following opinion expressed by Ross J. in Iltaf Khan v. Emperor ('26) 13 A.I.R. 1926 Pat. 362:
To construe Section 162, Criminal P.C., as meaning that while any part of the statement of a witness to the police may be used to contradict him, yet if the contradiction consists in this that a statement made at the trial was not made in any part of the statement to the police, such a contradiction cannot be proved, seems to be an artificial construction. I am unable to adopt it; and, with respect, I must dissent from that view. I can find nothing in the language of Section 162 which would lead to such a conclusion.
42. It must, of course, be remembered that, under Section 162, Criminal P.C., the record of a previous statement to the police can only be used by the defence for the purpose of contradicting a prosecution witness. It is therefore the duty of the Court, whenever the defence wish to contradict such a witness by showing that he did not mention a particular matter to the police, to decide whether the alleged omission, if established, would amount in substance to a contradiction. If the Judge is so satisfied, he should allow the cross-examination to proceed 'in the manner provided by Section 145, Evidence Act' and the attention of the witness should be called to such portion or portions of the recorded statement as may be sufficient fairly to place him in a position to say whether or not he omitted to mention the matter with regard to which the alleged contradiction arises, or to explain the alleged omission. If, however, the Court is not satisfied that the omission amounts in substance to a contradiction any question with regard to the recorded statements in the diary should be disallowed, for instance, when the evidence of the witness, although given in greater detail than in his statement as recorded by the investigating officer, is nevertheless substantially consistent therewith.
43. Our attention has not been called to any omissions which, if established would have materially detracted from the weight to be attached to the testimony of the prosecution witnesses, but we may nevertheless assume for the purposes of this case that the Court was satisfied that these omissions amounted in substance to contradictions. This being the case, it must be proved that, at the time when he made his statement to the police, the witness concerned in fact made no mention of the matters which in amplification of, or in contradiction to, his recorded previous statement he is alleged to have introduced into his testimony. Evidence of this character is absent in the present case. During the course of the argument some reference was made to a judgment of Fazl Ali J. in Bihari Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 152. In the case with which the learned Judge was dealing the whole of certain statements made before the police had been placed on the record in order to prove that some of the prosecution witnesses have made statements in the Court of the Sessions Judge, which they had not made before the investigating officer. As stated in the report:
The learned Judge after referring to certain decisions of the Lahore High Court held that the only method by which a witness could be contradicted by an omission in his statement to the police officer was by proving his statement or some part of it.
It was on this account that the trial Judge allowed the whole of the record of the statements of certain witnesses to be exhibited in the case. From the quotation from the order of the learned Sessions Judge which is embodied in the report, it would appear that his views with regard to the necessity of proving the statement in order to contradict a witness must have been in substantial agreement with those which we have expressed in the preceding portions of this judgment. For some reason, however, which is not clear from the report, he apparently considered it necessary to place the whole of the recorded statements on the record for the purpose of enabling the defence to prove that some matters had been omitted from those statements. The necessity for adopting such a course can ordinarily only arise in rare cases and it is possible that in Bihari Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 152 the defence may have had some legitimate grievance on this account. After mentioning the relevant facts Fazl Ali J. then referred to the Lahore and Allahabad procedure in accordance with which in order to prove omissions, the whole of the statement made to the police is apparently placed on the record. The learned Judge then observed:
What is done here, and I believe in Bengal, is that after the attention of the prosecution witnesses has been drawn to the contradictory statements made by them before the police, the investigating police officer is asked whether those witnesses did or did not make the particular statements before him. The answer given by the police officer (which is always checked with reference to what is written in the diaries) is considered quite sufficient to contra-diet the witness.
44. Although the learned Judge held that the view taken by the Lahore High Court was not necessarily incorrect or unwarranted by the language of Section 162 of the Code, he was nevertheless of opinion
that the practice which has hitherto prevailed in this province is on the whole more satisfactory as well as convenient than the practice recommended in the decisions of the Lahore High Court and as I have already stated, there seems to be no reason to abandon it, especially when it cannot be said to be not in accordance with law.
45. It may be noted that in a later decision of the Patna High Court, in Emperor v. Najibuddin ('33) 20 A.I.R. 1933 Pat. 589, Agarwala J. dissented from the view expressed by Fazl Ali J. in Bihari Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 152. He pointed out that:
Even if the question could be decided merely by referring to the balance of convenience, the convenience is all on the side of having the record of the statement properly proved, and exhibited for, as has already been pointed out, the existence or non-existence of an omission relied on as a contradiction, and the weight to be attached to a discrepancy between the police and the judicial record of a witness's statement frequently depends on the context and on the nature of the police record.
46. There is considerable force in this observation in so far as it stresses the importance of having on the record at least that portion of the police diary with reference to which the contradiction is supposed to arise. But, as in some other decisions to which reference has been made, the learned Judge seems to have overlooked the proper manner in which this desirable object may be achieved, which is not by proving the writing in the diary but by showing that what is written there is really the statement of the witness. It is doubtful whether in 1930 (in which year Bihari Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 152 was decided) the practice in dealing with omissions from statements made to the police was the same in Bengal and Bihar. The observations of C.C. Ghose J. in Jasimuddin Sarkar v. Emperor : AIR1931Cal622 which was decided in August 1930, indicate that at any rate, at that time this Court expressed approval of a procedure which approximates more nearly to that of Lahore than to that which was followed in Bihar. It was recognised that it was desirable to have on the record a note of the precise language used by the witness in his statement to the Sub-Inspector, but again it was forgotten that this cannot be effected merely by proving the diary entry without prima facie evidence to show what the alleged statement was and that it was actually made there is no proper basis on which it is possible to establish a contradiction.
47. Herein lies the main difficulty in adopting the so-called Bihar practice which Fazl Ali J. regards as convenient and in accordance with law. It is for the Court or the jury to draw a reasonable inference that any alleged omission from the statement amounts in substance to a contradiction and the requisite materials must be placed before the Court to enable it to exercise its proper functions. When, therefore, it is sought to prove an omission from a previous statement which, if established, would amount in substance to a contradiction, the defence counsel (or if necessary the Judge himself) should put such questions to the investigating officer as may be sufficient to ascertain what the witness really said with regard to the matter in respect of which he is supposed to have contradicted himself. Thus, if A in his evidence had said that B, C and D were present at the time of the occurrence, and the name of D did not appear in the police diary, it would not be sufficient to ask the investigating officer whether there was any note in the diary of D's name or whether that name had been mentioned to him by the witness. A further question should be put in order to ascertain what the witness had said to him as regards the recognition of the people who were present at the time of the occurrence. It might transpire that the actual statement made to the investigating officer was 'B and C were there and near to B and C a man was standing with a lathi. I describe him as ... but I do not know his name.' In such a case much would depend on whether the description fitted D.
48. The selection of the parts of the recorded statement, which require to be put to the investigating officer while he is in the witness box, is a matter which necessitates care on the part of the defence lawyer and vigilance on the part of the Judge. To put too little might be unfair to the witness and to put too much might prejudice the accused. Of course, in practice the selection must be done when the witness is under cross-examination. Later, when the investigating officer is in the witness box, and is being cross-examined by the defence lawyer he should only be allowed to give evidence with regard to those portions of the recorded statements to which the attention of the witness has been called. As it is the function of the investigating officer in connection with this matter to give evidence in proof of what was actually said to him by the witness, it may often be necessary to put a number of questions to him to test the weight of his evidence. For this purpose, in suitable cases, the Judge might exercise his discretion under Section 154, Evidence Act, or himself put the necessary questions to the investigating officer. For instance, in a case such as that with which we are now dealing, it is important that there should be some evidence on the record with regard to the system which was followed by the investigating officer in recording the statements of witnesses under Section 161 of the Code. It would be useful to know what precautions, if any, were taken by the investigating officer to secure the accuracy of the record, whether the diary was written in the presence of the witness concerned or whether any portions of it were read over to him, whether it was customary to record full statements or whether the sub-Inspector merely noted a few points which he considered to be of importance with reference to the immediate investigation of the case. On this point the only evidence consists of the following statement made by the Inspector at the end of his deposition:
Chandra Babu book only a summary of statements of witnesses, some of which are joint.
To Court. --On testing some witnesses in relation to the diary and as a result of supervision I know that the record of Chandra Babu is a summary. I was not present when he examined each of the witnesses.
49. As things stand there is nothing on the record to show that the alleged statements (had they been proved) were accurately recorded by the Sub-Inspector, that they contained everything that the witnesses had said and that these witnesses did not, in fact mention the names or incidents which are alleged to have been omitted from their statements to the police. Having regard to the above considerations, we are of opinion that the provisions of Section 162, Criminal P.C., have been misapplied in this case. It follows, therefore, that the procedure which has been adopted is not effective for the purpose of enabling the defence to contradict the prosecution witnesses by any portion of their previous statements, as recorded in the police diaries. [His Lordship then considered the appeals on behalf of Ajit (Kumar) Ghose, Anil (Kumar) De, Heramba (Lal) Ghose alias Kanu, Kala Chand alias Dakhina Ranjan Sen Gupta, Nibaran (Chandra) Das, Niranjan (Chandra) De, Nripendra (Nath) Routh, Satya (Kumar) Ghose and Jyotish (Chandra) Sarkar against their conviction under Rule 56 (4)/121, Defence of India Rules, and proceeded.] We find that all these accused persons have been properly convicted. It cannot be said that the sentences passed on them are unduly severe. Their appeals are, therefore, dismissed and their sentences are affirmed.
50. Although the learned Judge in his letter of reference has stated in connection with the charge under Section 302/34, Penal Code, that he is in agreement with the majority verdict of the jury the learned Deputy Legal Remembrancer nevertheless asks us to set aside the jury's verdict as regards Heramba Ghose, Kalachand alias Dakhina Ranjan Sen Gupta, Niranjan De and Satya Ghose. He maintains that the verdict of the jury in respect of these accused persons was perverse and that, at any rate, they should have been found guilty under Section 304/34, Penal Code. As the cases of these accused persons have come before us in connection with the reference against the decision of the jury on a charge under Section 147, Penal Code, it is, of course, open to us, if necessary, after considering the entire evidence and giving due weight to the opinions of the Sessions Judge and the jury to convict the above mentioned accused persons of any offence of which they might legally be convicted, in connection with the death of the Sub-Inspector, Rohini Kumar Ghose. Although it cannot be said that the jury were unreasonable in not finding these persons guilty under Section 302/34, Penal Code, we consider that, if they had taken a proper view of the evidence, they might at any rate have found them guilty under Section 325/34, Penal Code. For some reason best known to themselves, the jury seem to have failed to consider the various alternative minor sections under which these accused persons might have been convicted if they were not satisfied that the requisite knowledge and intention to establish the charge of murder had been proved.
51. Although we consider that this part of the jury's verdict is unreasonable nevertheless we do not feel that it is necessary in the interest of justice for us to interfere. Even if we found Heramba Ghosh, Kala Chand alias Dakhina Ranjan Sen Gupta, Niranjan De and Satya Ghose guilty under Section 325/34, Penal Code, in respect of the grievous hurt inflicted on Rohini Babu, we would have hesitated to do anything more than impose sentences of imprisonment not exceeding those to which these persons had already been sentenced under Rule 56 (4)/121, Defence of India Rules, to run concurrently with those sentences. We therefore do not propose to interfere with the verdict of the jury in this matter.
52. Similarly, as regards the reference under Section 147, Penal Code, we do not think it necessary to deal with the cases of those persons who have already been convicted and sentenced by the learned Judge in respect of the charge under Rule 56 (4)/121, Defence of India Rules. We have taken into consideration against these persons not only the evidence given to show that they were connected with the procession before it left the Kalibari but also the testimony of the witnesses who proved that they took part in the procession after it had started by attacking the members of the police party, who were endeavouring to stop it. Although technically these people might also have been convicted under Section 147, Penal Code, it is not, in our opinion, necessary in the interest of justice that any further penalty should be imposed on them. So this part of the reference must be rejected It remains to be seen whether there are sufficient materials on the record to justify us in con. victing in respect of the charge under Section 147, Penal Code, Anadi Chakravarty, Kuladasankar Nag, Madhusudan Ghose, Jiban Ghose and Amal Sen Gupta, who were not convicted under Rule 56 (4)/121, Defence of India Rules.
53. I entirely agree. I should like to add some remarks regarding Section 162, Criminal P.C. The section amends the ordinary law of evidence as applicable to statements made to the police in the course of an investigation, and to the written records made by the police of those statements. It will help to bring out what are the difficulties of interpreting Section 162 if we first recall what the ordinary law is. The law is to be found in Sections 155 (3), 145, 153, 157, 159, 160, 161, Evidence Act. If Section 162 of the Code had not been enacted then evidence as to relevant facts given by a witness might be counteracted by 'proof of former statements inconsistent with that evidence.' (Section 155 (3)). He cannot be contradicted as regards matters relevant only in so far as they shake his credit (Section 153) and Section 155 (3) is limited to any part of the evidence of the witness 'which is liable to be contradicted.' Section 155 (3) refers to both oral and to written statements; it says nothing about the manner of proof of the statement. If the statement is oral, and there is no writing, then the former inconsistent statement must be proved by a person who heard it made (Section 60). If the statement was made in writing, then it can only be proved by proving the contents of the document in the manner provided in Section 61 et seq. of the Act. If the statement though made orally has been reduced to writing, and the witness can be shown to be responsible for the writing, as having read and signed it in token of correctness, or as having heard it read over to him, and having admitted its correctness or the like, proof of the writing and the circumstances will prove the statement. But before such a writing can be proved for the purpose of Contradicting the witness, the attention of the witness must be called to those parts of the writing which are to be used for the purpose of contradicting him. (Section 145). The important point to remember is that Section 145 does not lay down anything as to what ' writings will prove previous statements, or will contradict witnesses; it merely assumes that there may be such writings, and stipulates that the witness must first be shown them before they are proved to contradict him. (Incidentally Section 145 reproduces a section of the Common Law Procedure Act, 1854, enacted to meet the difficulty that under previous English practice a cross examining counsel was not permitted to ask questions about a letter written by a witness without first showing him the letter.)
54. A further point to note is that though there is no statutory provision that before a witness is contradicted by proof of a previous oral statement he must be cross-examined with reference to the proposed proof, and his attention drawn to the alleged contradiction, nevertheless the law is substantially the same as regards oral statements and a Court would take little notice of proof of such a previous statement by way of contradiction, if there had been no cross-examination of the witness proposed to be contradicted with reference to the contradiction alleged to exist in his previous statement. Under Section 157 a former statement made by a witness may be proved in order to corroborate him, and under Section 159 a witness may refer to a writing to refresh his memory, under Section 160 he may even testify to facts mentioned in such a document though he has no specific recollection of them, if he is sure the facts are correctly recorded; under Section 161 the adverse party must be allowed to see such a writing if he requires it. Section 162, Criminal P.C., lays down (1) no statement by any person to a police officer in the course of an investigation under chap. 14 of the Code shall, if reduced to writing, be signed by the person making it, and (2) no such statement nor any record of it, of any kind shall be used for any purpose at an inquiry or trial in respect of any offence under investigation at the time when such statement was made 'save as hereinafter provided.' As was remarked by Lord Atkin in Pakala Narayana Swami v. Emperor
If one had to guess at the intention of the Legislature in framing a section in the words used one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both.
55. The provision (1) that the person shall not sign the statement certainly indicates the intention that he is not to be fixed with the writing, and made responsible for it. In other words, the intention would seem to be clearly to prevent the writing becoming one which might be proved in order to contradict the witness. The other provision (2) repeals all the sections of the Evidence Act discussed above that would ordinarily be applicable to such a statement or written record, subject only to the proviso.
56. The proviso is only applicable in cases (1) where the statement of the particular witness has been reduced to writing and (2) where the witness is a prosecution witness. (The defence cannot contradict one of their own witnesses who has stated something favourable to them before the police, and has resiled in Court nor can they contradict any witness whose statement has not been reduced to writing). Where the proviso applies then, the Court is, at the request of the accused, to 'direct that the accused be furnished with a copy', of the statement which has been reduced to writing 'in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145 Evidence Act.' The question is what does this mean. Some points are clear. Unless the accused is supplied with a copy of the record of the statement of a witness to the police he is not in a position to know if there is any contradiction therein. The proviso means to provide him with this facility. He may then cross-examine the witness on the particular point, and if he obtains an admission from the witness of a previous contradictory statement having been made, (and perhaps an admission that the previous statement was really correct), that is all he requires. The contradiction in such event will be 'duly proved' by the admission of the witness.
57. If there were no reference specifically and only to Section 145, Evidence Act, in the proviso, there would be little difficulty in interpreting it; if the reference had been generally to the Evidence Act, or if the reference had been to all the appropriate sections cited above, the meaning would have been clear. The reference to Section 145 creates difficulty. Section 145 in fact does not provide any manner for using a statement, if duly proved, to contradict a witness, though the proviso to Section 162 of the Code seems to imply this. It provides a pre-condition of procedure which must be followed before a previous statement made in writing or reduced to writing and relevant to matters in question can be proved for the purpose of contradicting a witness. It assumes that the writing in question is one which can be proved for the purpose of contradiction, Other sections of the Evidence Act provide (1) as to what can be contradicted; (2) how to prove the contradiction by means of proof of the previous statement. The first provision of Section 162 discloses an attempt to ensure that the written record of the previous statement to the investigating officer shall not be a writing which can be proved to contradict the witness, by its direction that the witness shall not sign it. (It would appear however that if the witness puts his statement in writing, mere non-signature would not prevent its use for the purpose). The proviso then follows with this reference to contradiction 'in the manner provided by Section 145, Evidence Act' and gives an interpretation to that section which by applying the ordinary rules of grammar it cannot bear. If there were no reference to Section 145 in the proviso, then the meaning would be clear that the ordinary appropriate provisions of the Evidence Act would be applicable; the accused having been provided with a copy of the previous statement might contradict the witness in the appropriate manner provided in the Evidence Act, as discussed above. If by chance the written record of the statement of the witness were such that it could be proved in order to prove the previous statement and thus to contradict the witness, then the writing might be proved subject to the procedure laid down in Section 145, Evidence Act, being followed. Otherwise the oral statement could be proved by calling the witness (police officer) who heard it. The latter in turn could refer to his written record of the statement (which must exist if the proviso operates) and the provisions of Sections 159, 160, would operate; he could use his record of the statement to refresh his memory, and so depose as to what had been stated to him by the witness sought to be contradicted. Contradictions would be limited to relevant matters and to matters on which the witness is liable to be contradicted as provided in Section 155 (3) and Section 153, Evidence Act. The ordinary rule of procedure that the attention of the witness must be drawn to the matter proposed to be contradicted by proof of the previous statement would apply.
58. What then are we to make of this reference to Section 145, Evidence Act, in the proviso to Section 162 of the Code. The Lahore Court in the cases cited by my learned brother seems to have assumed that the effect of the proviso is to enact positively that the written record can be proved to contradict the witness, (even though he may never have seen it, even though it was not made in his presence, or at the time he made his statement), and that the previous statement can only be proved by this record. The proviso is so obscure, that perhaps it is not surprising that this view was thought possible. One would expect however that a provision so much at variance with the ordinary law would be expressed more clearly. One would at least expect the proviso to run 'in order that any part of such writing, if duly proved, may be used to contradict the witness in the manner provided in Section 145, Evidence Act.' As we have already seen the words used with reference to Section 145, Evidence Act, in the proviso to Section 162 of the Code imply an interpretation which in terms it cannot bear. Another view which seems to have found favour in Bihari Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 152 is to interpret the proviso by ignoring the reference specifically to Section 145 as meaningless. On the whole the sound view seems to be that taken by us in this case; the ordinary law as laid down in the Evidence Act is to apply, the reference to Section 145 is merely to be taken as being made loosely, to add a requirement that in all cases the written record or the relevant part thereof (which must exist for the proviso to apply) must be brought to the notice of the witness whom it is proposed to contradict, even though the actual proof of the previous statement is to be made ordinarily not by proving the document itself, but by the evidence of the police officer who heard it. Since the latter may be expected to rely on the record for his recollection of what was said it was perhaps thought that the witness should be given an opportunity of seeing it if he was to be contradicted by a police officer relying on it. In other words the effect of the reference is merely to make statutory provision (a) for the ordinary rule of procedure requiring that the attention of the witness should be drawn to the matter proposed to be contradicted and (b) to provide further that the witness should be shown such actual written record as exists. For the rest the proviso is to be interpreted as above as if there were no reference to Section 145, the other provisions of the Evidence Act referred to above will apply in regard to the manner of proof of the previous statement, and what parts of it can be proved.
59. If the Lahore view is correct then we are to suppose that the Legislature, having in the substantive part of Section 162, (as Lord Atkin suggests, in the quotation above), shown a desire to protect a witness from the unreliability of police testimony as to alleged statements, has in the proviso run to the other extreme and contrary to the ordinary law of evidence, positively enacted that where a prosecution witness deposes in Court in a manner more unfavourable to the accused than is disclosed by the police record of his statement then he can be contradicted by proof of a writing which he may never have seen (until it is shown to him by Court under Section 145). On the interpretation favoured by us the Legislature acts consistently; on our view the Legislature maintains what may be called its attitude of suspicion, and by excess of caution insists (1) that a witness can only be contradicted where there is a written record and (2) that before a police officer can be called to contradict a witness, the witness must himself see the police record.