1. The question referred to us by the Chief Presidency Magistrate is whether, upon the trial of a person charged with being in dishonest possession of stolen property, evidence can be given of a previous conviction of the accused for attempting to receive stolen property, knowing it to be stolen, under Sections 511 and 411 of the Indian Penal Code. There is not, in the law of this country, any such special provision as is made by 34 and 35 Vic, c. 112, Section 19, relating to the admission in evidence against a person charged with having received stolen goods knowing them to be stolen, of a previous conviction of such person, for any offence involving fraud or dishonesty. The question therefore involves the determination of the construction to be put on Section 54 of the Evidence Act.
2. Section 54 is one of a group of sections, 52 to 55 inclusive, placed in the Act, under the heading 'character when relevant.' Sections 53 and 54 relate to criminal proceedings only; 52 and 55 to Civil cases; the explanation to Section 55 relates to all four sections.
3. Sections 53 and 54 and this explanation are as follows:
Section 53 says : 'In criminal proceedings the fact that the person accused is of a good character is relevant.'
Section 54 says : 'In criminal proceedings the fact that the accused person has been previously convicted of any offence is relevant; but the fact that he has a bad character is irrelevant unless evidence has been given that he has a good character, in which case it becomes relevant.'Explanation.--In Sections 52, 53, 54 and 55 the word 'character' includes both reputation and disposition ; but evidence may be given only of general reputation and general disposition, and not of particular' acts by which reputation or disposition were shown.
4. The Standing Counsel to Government contends that under Section 54 evidence may be given of a previous conviction of an accused person of any offence whatever, whether such previous offence be connected or not in any way whatever with the offence with which he is charged ; that it may be given as direct evidence upon his trial and not merely in reply to evidence of good character offered on the part of the accused ; and, of course, that it may be given, whether or not the accused be charged under Section 75 of the Indian Penal Code.
5. Mr. Garth for the accused contended that the Legislature cannot possibly have contemplated so serious a change in the law of evidence in criminal cases as this construction of the section would involve ; that the section was not meant to alter but to codify the existing law, and that it cannot have been intended that evidence of a previous conviction should be given, save for the purposes of punishment under Section 75, Indian Penal Code ; and he urged that under the explanation to Section 55 evidence can be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown.
6. The question appeared to be not merely of great importance, but of much difficulty. The words of the section are express. On the other hand we felt great difficulty in attributing to those words a meaning which might involve the admission as evidence against an accused, of proof of a conviction, the fact of which might, in many cases, have no possible bearing whatever upon the question whether he was guilty or innocent of the offence charged against him, and could, in such cases, have no effect save to produce against him a prejudice which, to use the words of an English Act to be referred to presently, would 'not be consistent with a fair and impartial enquiry' as regards the subject-matter of the charge against the accused.
7. We doubted whether the Legislature could have omitted to advert to this danger; and we thought it our duty to consider whether some construction could not properly be given to the section such as would avoid it.
8. We were the more impressed with the force of this consideration because the Legislature has, in Section 310 of the Criminal Procedure Code, expressly guarded against the possibility of a jury's being prejudiced against a prisoner while on his trial upon one charge by being made aware of his being charged under Section 75 with a previous conviction.
9. Section 310 is as follows:
In the case of a trial by jury or with the aid of assessors, where the accused is charged with an offence committed after a previous conviction, for any offence, the procedure laid down in Sections 271, 286, 305, 306, and 309 shall be modified as follows:
(a) The part of the charge stating the previous conviction shall not be read out in Court, nor shall the accused be asked whether he has been previously convicted as alleged in the charge unless and until ho has either pleaded guilty to, or been convicted of, the subsequent offence.
(b) If he pleads guilty to, or is convicted of, the subsequent offence, be shall then be asked whether he has been previously convicted as alleged in the charge.
(c) If be answers t hat he has been so previously convicted, the Judge may proceed to pass sentence on him accordingly ; but, if he denies that he has been so previously convicted, or refuses to, or does not, answer such question, the jury or the Court and the assessors (as the case may be) shall then enquire concerning such previous conviction, and in such case (where the trial is by jury) it shall not be necessary to swear the jurors again.
10. That section, it is true, relates only to a very limited class of cases still it appears to recognise as to such cases, at least, the principle that a prisoner on his trial ought not to be prejudiced by a statement of a previous conviction suffered by him. That provision appears to be taken from English Statute Law, and originally appeared in 6 and 7 William entitled 'An Act to prevent the tact of a previous conviction being given in evidence to the jury on the case before them except when evidence to character is given.'
11. The preamble is as follows: 'Whereas by an Act passed in the seventh and eighth years of the reign of King George the 4th intituled An Act for further improving the Administration of Justice in Criminal cases, provision is made for the more exemplary punishment of offenders who shall commit any felony not punishable with death after a previous conviction for felony : And whereas since the passing of the said Act the practice has been on the trial of any person for any such subsequent felony to charge the jury to enquire at the same time concerning such-previous conviction : And whereas doubts may be reasonably entertained whether such practice is consistent with a fair and impartial enquiry, as regards the matter of such subsequent felony, and it is expedient that such practice should from henceforth be discontinued.' Then comes the enacting part of the Act, which provides that evidence of a previous conviction shall not be given until after the finding for a subsequent felony except where evidence of good character is given.
12. We felt, as we have said, that the indiscriminate admission against an accused person of any previous convictions against him would not merely operate in many cases so as to work what we should have called an unjust and unreasoning prejudice ; but also that, by the construction contended for on behalf of the prosecution, a formidable novelty must be admitted into the rules of evidence applied in criminal proceedings; for in a multitude of cases the section, by this construction, renders admissible, and declares by its statutory force to, be relevant--facts which, in no possible sense, save the technical statutory sense in which the word is used in the Act, could he relevant. It is not necessary to dwell on many of the innumerable examples which might be suggested. A previous conviction for bigamy would, under this construction, be relevant on a charge of theft, a previous conviction for cheating, on a charge of riot, and so on. Great therefore as the difficulty is of adopting any other construction of the words of the section, when taken by themselves, we might, perhaps, aided by the indication of the intention of the Legislature as disclosed in Section 310, have adopted the construction of the section laid down by a Division Bench of this Court in Roshun Doosadh v. Empress 5 C. 768.
13. But we thought it right from the proceedings of the Legislative Council at the time this measure was in preparation to obtain such light as they could throw on the intention and scope of the section in question. Such a course has been more than once taken by the Courts here in recent times: and in a case of such difficulty and importance as this appeared to be we felt bound to adopt it.
14. The Evidence Act is, as it was intended to be, a complete Code of the law of Evidence for British India. It received the assent of the Governor-General in Council on the 15th March 1872. It was the subject of two reports by Select Committees of that Council. In the first of these reports the subject now under consideration is dealt with. That report is published in the Gazette of India for June 24th, 1871, at pp. 235--242. It is signed by the then Legal Member of Council (now Mr. Justice Stephen) and by the other Members of the Committee, whose names follow: Messrs. J. Stcrachey, F.S. Chapman, F.E. Cockerell, J.F.D. Inglis, and W. Robinson. It is a report by a Committee consisting of nearly one-half of the Members of the Legislative Council, and including the Legal Member in charge of the Bill, accompanying the draft Bill as settled by them, stating at length the scope of the proposed measure, the intentions and the reasons by which they have been influenced in framing it, and so submitting both to the Council. A second report was made upon the measure in the following year by the Select Committee upon the Bill, consisting of the same gentlemen, together with Messrs. Stewart and Bullen-Smith. It does not touch on the subject-matter of this section at all.
15. The first report contains at p. 239 the following unexpected paragraph: 'In reference to the conduct of the parties on previous occasions we embody in three sections the existing law of England as to evidence of character, with some modifications. We include under the word 'character' both reputation and disposition, and we permit evidence to be given of previous conviction against a prisoner for the purpose of prejudicing him. We do not see why he should not be prejudiced by such evidence if it is term.' That is the whole paragraph. There is nothing else in the record to qualify it. It is the only passage in the report which deals with the subject now under consideration.
16. In the drafts of the Bill lay before the Council with the first report, the section now numbered 54 was numbered 22. It stands in the Act in exactly the same terms as in the draft referred to in the paragraph above set out.
17. It is impossible that we should disregard the terms of this report, when construing, in the face of the difficulties which we have adverted to, this section of the Act. We are asked to reject the most natural meaning of the words as one leading to a result manifestly unjust. We cannot disregard the fact that the Committee deputed to frame, and to advise the Legislature upon, the proposed Code, framed this section and advised its adoption to secure the result so described: and that the Legislature being so advised passed the section so framed. We think we must treat it as plainly shown, that the danger which, as we were disposed to hold, the Legislature must be supposed to have intended to avoid, was in truth' the object which the Legislature sought to attain. It is stated in language plain, forcible, and concise. The Legislature lets in the evidence 'for the purpose of prejudicing' the man upon his trial. It is, as is justly stated in the report, the law of England 'with some modifications.' The British Legislature passes an Act for the sole purpose of shielding an accused from prejudice. The Legislature in this country enacts a provision for the express purpose of prejudicing him.
18. Having thus ascertained that the peremptory language of the section was meant to have the full effect which the words do, no doubt, prima facie bear, we are relieved from the second difficulty which also oppressed us. It is in truth of the less consequence that the fact of previous convictions may have no possible bearing and constitute no possible guide upon the question of the truth of the charge at trial, because it is not for that purpose that they are admitted in evidence, but for another wholly different, and for which relevancy in the ordinary sense is immaterial.
19. We are constrained to answer this reference by saying that previous convictions are in every case admissible. That must be the law so long as this section remains unaltered.
20. We own that, could we have come to any other conclusion, we should have done so; but it is our duty to carry out the intentions of the Legislature.