1. This is an appeal against the order of the Sessions Judge of Burdwan setting aside on appeal the conviction and sentence passed on one Pramatha Nath Boss who was convicted of an offence under Section 193 of the Indian Penal Code by the Deputy Magistrate of Burdwan. The facts are that the defendant verified and filed a written statement in suit No. 462 of 1907. In suit No. 451 of 1907 the defendant gave evidence and was cross-examined with a view of showing that certain statements he had made in the written statement he had verified and filed in suit No. 462 of 1907 were false. He admitted they were false, and on the strength of that admission he was prosecuted and convicted before the Deputy Magistrate.
2. The learned Sessions Judge set aside the conviction on the ground that, under the proviso to Section 132 of the Evidence Act, the answers given in cross-examination at the trial of suit No. 451 of 1907 could not be proved against him on a charge of having made false statements in the verified written statement he filed in suit No. 462 of 1907.
3. For the Crown it is contended that the answer was not one the witness was compelled to give, and, therefore, that the proviso to Section 132 does not apply.
4. There is nothing on the record to show that any objection was taken when the questions, on which the admissions were elicited, were put. It is conceded that the witness did not himself refuse to answer, but there was evidence that his pleader objected when the questions were put, but the objection was overruled, and this evidence the learned Sessions Judge accepted as true.
5. It must be taken, therefore, that the question was objected to, and that the witness answered after his objection had been overruled. The question is, when a witness answers under such circumstances, has he been compelled to answer.
6. It is contended for the Crown that the objection to answer must come from the witness, and that an objection taken by counsel or pleader must be disregarded, and in support of this proposition two cases tried by Lord Tenterden, Thomas v. Newton (1827) 1 Moo. & M. 48n and Rex v. Adey (1831) 1 Moo. & Bob. 94, were cited.
7. I very much doubt whether the strictness which obtained in Lord Tenterden's time would be enforced in these days, but even if it were, I think the cases are distinguishable from the present. In those days the parties were not competent witnesses. The objection, therefore, must have been taken by counsel, not on behalf of his client, but on behalf of a witness for whom he had no authority to act. It may well be, therefore, that while counsel could not be heard to assert the privilege of a witness for whom he is not appearing, he might be heard to assert the privilege of a party whom he is authorized to represent.
8. In my opinion the objection may be taken by counsel or pleader, and the cases tried before Lord Tenterden do not apply.
9. The deposition has not been taken in the form of question and answer, so we have not before us the precise form of the question and the answer; but, inasmuch as the result of the questions was to elicit an admission that the defendant had made a false statement in a verified written statement in another case, I take it that the questions must have been framed under Section 146(3) of the Evidence Act for the purpose of shaking the witness's credit and injuring his character for the questions were not relevant to any issue in suit No. 451 of 1907, except in so far as they went to the defendant's credit.
10. Now, the questions being questions only relevant as affecting the credit of the defendant, and the defendant having by his pleader objected, it became the duty of the Court under Section 148 to determine whether the defendant should be compelled to answer the question or not.
11. In my opinion, in overruling the objection made, the Court decided that the question was one which the witness must answer, because it appears to meddle to say that, having overruled the defendant's objection to answer the question, the Court can say the question is one which the defendant is under no obligation to answer.
12. The point was considered in the case of The Queen v. Gopal Doss (1881) L.L.R. 3 Mad. 271 by a Full Bench of the Madras High Court, and there was a difference of (Opinion between the Judges composing the Bench. In that case Salem sued Gopal and Vallaba on a promissory note for Rs. 1,000 under Chapter XXXIX of the Civil Procedure Code. Gopal and Vallaba made affidavits in order to get leave to defend. Gopal denied his signature: the plaintiff proceeded against Vallaba only. Vallaba, when examined on his own behalf, said that he wrote both signatures on the note at the instigation of Salem, the plaintiff, and received. Rs. 100, a ring, a watch and some muslin for doing this. Judgment was given for the plaintiff Salem against Vallaba. On this Gopal prosecuted Salem and Vallaba, the latter for forgery and fraudulently using a false document, and the affidavit made by Vallaba and the deposition he gave in the suit were admitted in evidence against him. The question arose whether they were properly admitted. The affidavit was clearly voluntary: there was no obligation on Vallaba to ask leave to defend, nor was he in any way compelled to make any of the statements which he made in the affidavit. Then the statements which he made in the deposition, to the effect that he had forged the note, appear to have been made in examination-in-chief as a defence to the plaintiff's claim. This distinguishes the Madras case from the present one, for a statement made by a defendant in examination-in-chief, as an answer to the plaintiff's claim, stands on quite a different footing from an admission obtained from a defendant in cross-examination after objection to the question has been taken by the defendant's counsel.
13. It is unnecessary to discuss the distinction between answers given by a party giving evidence on his own behalf to questions put by his counsel, and answers elicited from him in cross-examination by counsel for the other side, for in this case the questions were objected to.
14. In the present case the party, after giving evidence in his own behalf in chief, was cross-examined by the opposite party, and questions were put suggesting the commission of a criminal offence. This was objected to by the pleader for the party to whom the questions were put. The objection was overruled, and the party thereupon became bound to answer.
15. On these facts he was, in my opinion, 'compelled to answer' within the meaning of Section 132 of the Evidence Act, and the answers cannot be used against him when he is prosecuted for the offence which he admitted in those answers. In my opinion the appeal should be dismissed.
16. The facts of this case have been clearly stated in the judgment of my learned brother and need not be again set out. The sole question in the appeal is whether the incriminating answers, of which the Crown sought to make use against the accused, were answers which the accused, as a witness under cross-examination, had been 'compelled' to give within the meaning of Section 132 of the Evidence Act.
17. It has been suggested in argument that the proviso to Section 132 of the Evidence Act protects every statement, made by a witness. As at present advised, I am unable to accede to this contention, and am of opinion that the sections draw a distinction|between statements voluntarily made and answers given under constraint from the Court after objection taken. In this view I am supported by the case of Queen v. Gopal Doss (1881) I.L.R. 3 Mad. 271 and Moher Sheikh v. Queen-Empress (1893) I.L.R. 21 Calc. 392.
18. I am, further, not prepared to assent to the contention that when an objection, whatever its nature, has been taken and has been overruled, the witness is thereby compelled to answer. It appears to me that in general, when overruling an objection to a question, the Judge decides merely that as between the parties to the suit the question is admissible; when the question is thereafter put to the witness, if any objection or privilege personal to the witness remains,' it is still open to him to assert that objection or claim that privilege.
19. In the present case it is conceded that the accused did not, by his own mouth, claim any privilege or make any objection, but it has been found--and I think properly found--that the pleader who represented him in the suit in which he was examined, did, in fact, object to the questions now under consideration, and that the objections taken were overruled. We have then, in my view, to determine, first, the nature of the objection taken; and, secondly, if the objection was one framed with regard to the provisions of Section 132 and Section 148 of the Evidence Act, whether it was sufficiently taken by the witness now the accused.
20. With regard to the second point, it has been contended on behalf of the Crown that the objection must come from the witness himself, and in support of this proposition the cases of Thomas v. Newton (1827) 1 Moo. & M. 48n and Rex v. Adey (1831) 1 Moo. & Rob 94 have been cited. It is by no means clear that this rule of English law has been extended to India, and there appears to be no Indian authority on the point. In the present case it is, however, unnecessary to decide whether, in the case of witnesses in general, objections of this nature may or may not be taken on their behalf by counsel or pleaders appearing in the suit. In the suit in which the accused was examined as a witness, he was himself the defendant, and the objection taken was taken on his behalf by the pleader who represented and acted for him. In this state of facts, if it be found that the objection taken was in fact an assertion of the witness's privilege in respect of incriminating answers, there was, in my opinion, a sufficient assertion of the privilege by the witness.
21. We have then to determine the nature of the objection taken. It is to be regretted that no record of the objection was made by the Judge who tried the original suit, and that the exact terms of his objection were not ascertained from the pleader when under examination in the criminal proceedings, It is, however, clear that under the provisions of Section 146 of the Evidence Act the questions were relevant of admissible, and it is further clear that they were relevant only in so far as they affected the credit of the witness by injuring his character, Now, under the provisions of Section 118 of the Act, when questions are relevant only as affecting character, it is in this discretion of the Court to compel an answer or to excuse the witness. In this state of facts, no other possible objection to the questions appearing, I am of opinion that I ought to presume and to hold that the objections taken on behalf of the witness were in fact objections framed with regard to the provisions of Section 148 of the Evidence Act, and that in overruling those objections the Court, in the exercise of its discretion, decided that the witness must and was bound to answer.
22. In this view, I am of opinion that in the present case the witness was in fact compelled to answer within the meaning of Section 132 of the Evidence Act, and that, under the proviso to that section, the answers could not be proved against him in the criminal proceedings. For these reasons I agree in dismissing the appeal.