Prinsep and Beverley, JJ.
1. The appellant has been convicted by the Presidency Magistrate of the Northern Division of theft in a house, and of dishonestly receiving stolen property knowing it to be such, under Sections 308 and 411 of the Indian Penal Code. The property stolen consists of some ornaments and precious stones belonging to Sookhraj Roy, a boy, under the Court of Wards, of considerable means. These articles were deposited in a box in his house in Calcutta, and were left by him there when he went out sight-seeing. The appellant was at that time in his room, and some relation or dependant who was lying sick. This fact is mentioned because it shows that the appellant had an opportunity to commit the theft, if that offence is otherwise proved against him.
2. The evidence against the appellant consists in his having given information to the police, in consequence of which some of the precious stones, identified by two witnesses, were produced by a person who stated that he received them from the appellant. There is also evidence in a confession said to have been made by him to the Sub-divisional Magistrate of Lal-bag, in the district of Murshidabad, where he was arrested.
3. The Magistrate no doubt has principally relied upon this confession, which was recorded under Section 164 of the Criminal Procedure Code. That statement was recorded in Bengali, the language of the Court, and a memorandum as required by law was made by the Sub-divisional Magistrate himself in English. Because, however, the certificate required by Section 164, to the effect that the statement was voluntarily made, was not appended to that statement, the Sub-divisional Magistrate was summoned to give evidence so as to make the statement admissible in accordance with the provisions of Section 533 of the Code of Criminal Procedure. In the course of his examination the Sub-divisional Magistrate deposed that the statement was made by the prisoner in Hindustani. No notice was apparently taken of this, nor was he called upon to explain why the statement was not recorded in that language, or whether it was impracticable to do so.
4. It is contended in appeal before us that as the confession was not recorded in the language in which it was made, it is inadmissible in law; that Section 533 cannot be applied so as to make it admissible; and that it does not appear to have been voluntarily made.
5. On this last point we may state that, so far as the evidence goes, the confession appears to have been voluntarily made, and there is nothing in our opinion in proof of the contrary. Hindustani, the language in which the appellant is said to have made that statement, is not the Court language of Murshidabad; and therefore ordinarily we take it that the ministerial officers of that Court would not be competent to record it in that language. We are, however, asked to conclude that because the Sub-divisional Magistrate was a Mahomedan gentleman, he must have sufficient acquaintance with Urdu to enable him to record a statement in that language. We are not prepared to make any such presumption. It appears to us that in the absence of any evidence to the contrary, we should presume that the proceedings of the Sub-divisional Magistrate were conducted in accordance with law; and that in the absence of anything to show that it was practicable for the officers of his Court to record the statement in Urdu, we can fairly hold that the Sub-divisional Magistrate found that this was impracticable, and adopted the alternative allowed by law, namely, to have it recorded in the Court language, that is, Bengali. We have been referred to the case of Jai Narain Rai v. The Queen-Empress I.L.R. 17 Cal. 862 in which it seems to have been held that if a statement by an accused person, purporting to have been recorded under Section 164, is not recorded in the language in which it is made, and it is not shown that it was impracticable to record it in that language, the defect cannot be cured by Section 533 of the Code, and that oral evidence of such confession is inadmissible.
6. It is unnecessary for us in the present case to do more than say that, as at present advised, we are unable to agree in the view of the law which formed the grounds of that judgment. We do not, however, think it necessary to refer the matter to a Full Bench, because, for the reasons already stated, we think that this objection cannot in this case be sustained. We also think that the appeal should be dismissed on other grounds. We think that the evidence proves that on information given by the prisoner to the police a portion of the stolen property, as proved by the complainant and another witness, was found. We have been asked to disbelieve this evidence, because from the nature of the articles they were not capable of easy identification. It is impossible for us sitting on appeal to give weight to such an objection. That evidence was believed by the Magistrate before whom it was given, and it was in no way shaken in cross examination. We may further observe that the appellant has not attempted to prove that these articles belonged to him, or to explain how they came into his possession. No doubt the Magistrate in convicting the appellant relies principally on the confession made to the Sub-divisional Magistrate of Murshidabad, but he states in his judgment that in addition to that confession there is ample evidence on the record to bring the charges home to the accused. From this we conclude that he relies also on the evidence to which we have adverted. We therefore dismiss the appeal.