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Naresh Chandra Das and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1942Cal593
AppellantNaresh Chandra Das and anr.
RespondentEmperor
Cases ReferredQueen v. Babulal
Excerpt:
- pal, j.1. these two rules were issued by this court on the petition of the two accused persons calling upon the deputy commissioner of lakhimpur to show cause 'why the order of conviction and sentence complained of in the petition should not be set aside or such other or further orders made as to this court may seem fit and proper.' the petitioner in criminal revision no. 595 of 1941 is naresh das who has been convicted under section 9(c), opium act, and sentenced to undergo rigorous imprisonment for six months. the petitioner in. criminal revision no. 646 of 1941 is sundar singh who has been convicted under section 9 (a), opium act, and sentenced to undergo rigorous imprisonment for one year. the prosecution case is that on 5th september last at about 10.30 p. m. the officer-in-charge of.....
Judgment:

Pal, J.

1. These two rules were issued by this Court on the petition of the two accused persons calling upon the Deputy Commissioner of Lakhimpur to show cause 'why the order of conviction and sentence complained of in the petition should not be set aside or such other or further orders made as to this Court may seem fit and proper.' The petitioner in Criminal Revision No. 595 of 1941 is Naresh Das who has been convicted under Section 9(c), Opium Act, and sentenced to undergo rigorous imprisonment for six months. The petitioner in. Criminal Revision No. 646 of 1941 is Sundar Singh who has been convicted under Section 9 (a), Opium Act, and sentenced to undergo rigorous imprisonment for one year. The prosecution case is that on 5th September last at about 10.30 p. m. the officer-in-charge of Tinsukia Police Station B.B. Dam, happened to be on patrol duty at Bansbari on his way back from Panitola. He saw taxi cab No. A.S.L. 168 proceeding towards Tinsukia from the direction of Dibrugarh. According to previous information he suspected that opium might be carried in that taxi cab. Accordingly he returned to the thana and proceeded in the direction of Makum accompanied by A. S. I., G. C. Das, and two constables. On the way he met one Bangshi Nai and asked him to follow with his oar. The officer-in-charge on arrival near Khemani Rice Mill which is situated near the Trunk Road leading to Makum noticed the taxi cab in question in the mill premises. Meanwhile Bangshi Nai arrived with his car with one Lachmi Narayan. The officer-in-charge told the members of his party that he would search the taxi for opium and left A. S. I., G. C. Das, near the car with a constable and Bangshi on the Trunk Road at some distance to the east of the gate of the Rice Mill and he himself proceeded with Lachmi Narayan and the constable Gyasuddin towards the gate to stop the car as it would come out. In the meantime the taxi started and came out of the gate and proceeded towards Makum (eastward). The officer raised his hand and shouted out to the driver to stop the taxi--but disregarding the signal, it ran ahead. The officer then shouted out to the A. S. I. to stop the car. The A. S. I. and the constable who was with him stood on the middle of the road, shouted out to the driver and raised their hands by way of signalling to stop the car. As the car did not stop they placed their lathis across the road but the driver of the car ignoring these signals and obstructions drove ahead though one of the head lights was smashed in consequence.

2. The officer-in-charge then got into Bangshi's car with A. S. I., G. C. Das, and chased the taxi which was being driven at a break-neck speed and the back light could only be seen from a distance of 2 1/2 miles. The officer arrived at Makum and met one Darjey Lama and his brother Ganga Bahadur on the road and from the information furnished by them traced the taxi in Durgabari Lane which adjoins the Trunk Road. Accused Naresh was found in the car. He was questioned by the police officers as to whether he with another had carried opium in his taxi cab. After being repeatedly questioned he made a statement. Then on the information given by Darjey Lama, a search was made for the second man and accused Sundar Singh was found sitting on the varandah of a sweets shop. Sundar Singh was questioned and confronted with Naresh and in consequence he stated that he had thrown the opium at Sukan Pukhuri and offered to show it. Then he led the police party to Sukhanpukuri where a gunny bag containing the opium was discovered lying under water on the road side. This gunny bag was found to contain 16 cakes of opium weighing 8 srs. 3 chataks. The opium was seized and both Naresh and Sundar Singh were sent up under the Opium Act. The charge against Sundar Singh is that he possessed the opium, and that against Naresh is that he knowingly permitted his taxi cab to be used for the transport of opium by accused Sundar Singh, which is an offence under the Opium Act. The exact charge framed against Naresh Chandra Das, the petitioner in Criminal Revision No. 595 of 1941, ran as follows:

That you on or about the 5th day of September 1940 at Sukan Pukhuri being the owner or occupier of taxi cab No. ASL168 knowingly permitted it to be used for transport of opium by accused Sundar Singh, which is an offence under Section 9, Opium Act, and thereby committed an offence punishable under Section 9C, Opium Act, as amended in 1933.

3. The accused Naresh Chandra Das pleaded not guilty to this charge and denied that he made the statement attributed to him to the police. He did not, he said, knowingly or otherwise carry any passengers with opium in his taxi. Both the trying Magistrate and the learned Additional Sessions Judge on appeal could refer only to the conduct in refusing to stop his taxi though signalled by the police to do so, as the evidence against this accused person. Beyond this no other evidence establishing his guilt could be pointed out in this case. His conduct no doubt raises a strong suspicion against him. But conviction on a mere suspicion, however strong, cannot be supported. We have gone through the entire evidence in this case and, in our opinion, the charge against this accused has not at all been established by the evidence on record including his suspicious conduct. The result is that the rule in Crim. Rev. Case No. 595 of 1941 is made absolute. The conviction of accused Naresh Chandra Das and the sentence passed against him are set aside and he is acquitted. The order of confiscation of taxi cab No. ASL 168 under Section 11, Opium Act, is also set aside. Accused Naresh Chandra Das should be set free forthwith and the taxi cab No. ASL 168 should be restored to him immediately. As regards Sundar Singh, the petitioner in Cr. Rev. Case No. 646 of 1941, the charge framed against him ran as follows:

That you on or about the 5th day of September 1940 at Sukanpukhuri possessed 8 seers 12 chataks of opium and thereby committed an offence punishable under Section 9 (a), Opium Act.

4. Section 9 (a), Opium Act, runs as follows:

Any person who, in contravention of this Act, or of rules made and notified under Section 5 or Section 8 possesses opium....shall on conviction before a Court, be punished...with imprisonment....

5. The accused pleaded not guilty to this charge and denied that he possessed opium or pointed it out to the Police Officers as alleged by the prosecution. To establish this charge against the accused the prosecution relied on the evidence of six witnesses examined by it, also on the confession alleged to have been made by the accused to the police leading to the discovery of the opium at Sukhanpukhuri. None of the witnesses examined could depose to the factum of possession of the opium by the accused. The entire evidence is directed to establish three facts, first, that the accused made certain statement to the police, secondly, that in consequence of that statement the police moved to discover the opium, and thirdly that the opium was discovered as a re-suit of this move and with further assistance of the accused.

6. On this evidence the learned Magistrate who tried the case found: (1) (a) that the accused Sundar Singh did make a statement to the police while in the custody of the police; (b) that the said statement was not obtained by any threat or inducement; (c) that the statement made by him to the police was to the following effect: 'I had thrown the opium on the road-side at Sukhanpukhuri;' (d) that he also offered to show the place where he had thrown the opium; (2) (a) that Sundar Singh not only made the above statement but actually led the police party to the spot and pointed out the place where the opium was actually found; (b) that Sundar Singh had the exclusive knowledge of the place where the opium was and pointed it out himself.

7. On these findings and being of opinion that the statement made by Sundar Singh to the police was evidence against him under Sections 27 and 24, Evidence Act, the learned Magistrate found the charge under Section 9 (a), Opium Act, as established against the accused and consequently convicted him of the offence. On appeal by the accused the learned Additional Sessions Judge found: (1) (a) that Sundar Singh was in the car driven by Naresh Chandra Das; (b) that the car was chased by the police; (c) that Sundar Singh got down from the car and ran towards a shop from the verandah of which he was arrested by the police; (2) (a) that Sundar Singh being questioned by the police officer-in-charge informed him that he had thrown the opium at Sukhanpukhuri; (b) that accordingly the police party with Sundar Singh and Naresh Das came in three cars to Sukhanpukhuri; (c) that at Sukhanpukhuri Sundar Singh, who was coming in one car with A. S. I., G. C. Das, pointed out a place where on a search by torch light the gunny bag containing opium was found lying in water about two feet from the edge of the road; (d) that the car was stopped near the place at the instance of Sundar Singh; (e) that torch lights were flashed and the gunny bag was seen and was picked up by Sundar Singh himself. The learned Judge further held that 'the statement of Sundar Singh to the police officer to the effect that 'he had thrown the bag at Sukhanpukhuri' is an information leading directly to discovery of the opium in question and is therefore perfectly admissible in law.'

8. The learned Judge therefore held that the Magistrate was justified in his conclusion that Sundar Singh was in illegal possession of the opium and upheld the conviction and sentence. Mr. Gupta appearing in support of this rule urges the following points : (1) That the statement alleged to have been made by the accused to the police was not admissible in evidence and could not be used against him for any purpose under Section 162, Criminal P.C.; (2) That there is absolutely no evidence to show what the exact statement is that was made by the accused and that unless and until the exact statement made by the accused is established nothing can be proved against him under Section 27, Evidence Act; (3) (a) That the statement in question did not come within Section 27, Evidence Act, at all inasmuch as the discovery of the opium took place not 'by' and 'in consequence' of any portion of the information conveyed by the alleged statement but by the act of the accused in pointing out the place; (b) that in any case the portion of the statement which purports to ascribe the act of throwing of the opium to the accused is not covered by Section 27, Evidence Act; (4) (a) That beyond the alleged statement, there is no other evidence on the record which would establish the charge against him; (b) that the alleged confession, if confession it was, having been retracted, the accused could not be convicted on it without independent corroborative evidence on the material point; (5) That even assuming all the facts found against the accused, his possession of the opium has not been established and hence the conviction under Section 9 (a), Opium Act, cannot be maintained.

9. The findings of fact arrived at by the learned Additional Sessions Judge, viz., (1) that the accused Sundar Singh was in the car driven by Naresh Chandra Das, (2) that the said car was chased by the police from Khemani to Makum, and (3) that Sundar Singh got down from the car and ran towards a shop from the verandah of which he was arrested by the police--are amply supported by the evidence on record and we see no reason to interfere with these findings. The factum of discovery of the opium at Sukhanpukhuri underneath the water is also amply established by the evidence on record and this evidence is certainly admissible in law. The evidence as to the part taken by the; accused in the matter of discovery of opium other than the. alleged statement made by him to the. police is certainly admissible in law and the evidence on this point amply supports the finding that the accused led the police party from Makum to Sukhanpukhuri and there pointed out the exact spot where the gunny bag containing the opium was lying and himself brought out the bag.

10. These findings standing by themselves, however, would not justify the conclusion that the accused possessed the opium at any time and would not therefore suffice to support the conviction under Section 9 (a), Opium Act. If along with the above facts we take the statement of the accused alleged to have been made to the police (viz., that he it was who threw the opium bag there from the car), then the chain of evidence will be complete from which it will be perfectly legitimate for a Court of fact to find (1) that the opium bag was in the car, (2) that it was under the control of the accused, and (3) that the accused threw it from the car (which was being chased by the police). These, in our opinion, would justify a Court of fact in finding possession of the opium with the accused. The learned Additional Sessions Judge did arrive at that conclusion and sitting in exercise of our revisional jurisdiction we shall not be justified in disturbing this conclusion unless we find that the statement was not admissible in evidence either wholly or in part. The relevant portion of Section 162, Criminal P.C., which occurs in Chap. 14 of the Code, runs as follows:

No statement made by any person to a police officer in the course of an investigation under the chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made....

11. The prohibition of this section extends to (1) all statements: (a) the statement need not be confessional : it applies equally to all statements, confessional or otherwise; (b) the statement need not be reduced into writing : it applies equally to all statements whether reduced into writing or not; (2) by whomsoever made : (a) the prohibition applies equally to statements made by any person, whether accused or not Pakala Narayanaswami v. Emperor , (b) the person making the statement need not be in the police custody while making the statement; but (1) the statement must be made to a police officer; and (2) must be made in the course of an investigation under Chap. 14, Criminal P.C.

12. In the present case the statement in question admittedly fulfils all the above requirements of the section excepting the last. Mr. Gupta appearing for the accused contends that it also fulfils the last requirement, viz., the requirement of having been made in course of an investigation under Chap. 14, Criminal P.C. Chapter 14 of the Code relates to 'Information to the police and their powers to investigate', and comprises Sections 154 to 176. Section 154 relates to the recording of information in cognizable cases and Section 155, in non-cognizable cases. Section 155 (2) lays down that:

No police officer shall investigate a non-cognizable case without the order of a Magistrate of the First or Second Class having power to try such case or commit the same for trial, or of a Presidency Magistrate.

13. Section 156 authorizes an officer-in-charge of a police station to investigate any cognizable case without the order of a Magistrate. Section 157 lays down, the procedure to be followed where from the information received an officer-in-charge of a police station suspects a cognizable case. It thus appears that Chap. 14, Criminal P.C., applies equally to cases, cognizable and non-cognizable; only in non-cognizable cases the police officer is not to take up investigation without the order of a Magistrate. But when he does take up the investigation in non-cognizable cases, the investigation which he holds becomes an investigation under this Chap. 14, provided the requirements of Section 155 (3), Criminal P.C., are complied with. Chapter 14, Criminal P.C., thus applies to (1) investigation in cognizable cases, (2) investigation in non-cognizable cases only when the requirements of Section 155 are satisfied. Section 155 of the Code comprises three Sub-sections. Sub-section (1) simply empowers the officer-in-charge of a police station to record the information and enjoins that the informant shall be referred to the Magistrate. Sub-section (2) expressly prohibits the police-officer from investigating a non-cognizable case without the order of a Magistrate. Sub-section (3) then lays down how the police officer should proceed in ease he gets the order of the Magistrate. Sub-section (3) runs as follows:

Any police officer receiving such order may exercise the same powers in respect of the investigation .... as an officer-in-charge of a police station may exercise in a cognizable case.

14. This Sub-section is the only provision by virtue of which an investigation in non-cognizable cases shall come under Ch. 14, and it is limited in its application to a police officer receiving such order (the order of a Magistrate). If a police officer is otherwise authorized to investigate a non-cognizable case that power of investigation will not by itself attract the provisions of this chapter. Thus a police officer may be authorized to investigate non-cognizable cases under the Opium Act. But this power of investigation does not necessarily bring the investigation itself under Chap. 14, Criminal P.C. In the Bengal Opium Act in Section 20B added by the amending Act of 1933 (B.C. Act 5 of 1933), a special provision is made for such investigations. In the Assam Act there is no such corresponding provision. Section 4 (f), Criminal P.C., defines 'cognizable offence' and 'cognizable case.' For our present purposes we are concerned with the definition of 'cognizable case' which expression means 'a case in which a police officer...may...under any law for the time being in force arrest without warrant.' Section 9 (a), Opium Act, is an offence for 'possession' of the opium. For such an offence the offender can be arrested without warrant under the Assam Opium Act. Section 15, Opium Act, being amended by the Assam Opium (Amendment) Act, 1933 (Assam Act 1 of 1933) stands as follows:

Any officer of any of the said departments...may....detain and search any person whom he has reason to believe to be guilty of any offence against this or any other such law, and, if the search confirms such belief, arrest him and any other person in his company.

15. In this particular case it is the case of the prosecution that as a matter of fact the police officer arrested Sundar Singh before he made any statement. In my opinion, therefore, when Sundar Singh is alleged to have made the statement to the police, the police was in seisin of a cognizable case within the meaning of the Code of Criminal Procedure. The investigation by the police, namely, by the officer-in-charge of the Police Station Tinsukia in the present case was therefore one under Chap. 14, Criminal P.C. At least from 6th September 1940 the police officer expressly purported to hold the investigation under that chapter of the Code. On 6th September 1940, the officer purports to record what he styles as the first information of a cognizable crime reported under Section 154, Criminal P.C., at Police Station Tinsukia. He records the date and hour of occurrence as 5th September 1940 at 12 midnight and the date and hour when reported as 6th September 1940 at 2.40 A.M. The place of occurrence is given as Sukhanpukhuri, the informant being the police officer himself. The information recorded runs as follows:

I was on patrol duty in Panitola centre. I saw taxi No. ASL 168 coming from Dibrugarh side to Tinsukhia side at about 10-30 P.M. near Banshbari, I followed the same after picking up more officers and men from the police station on my way. I noticed that the taxi was waiting inside the Rice Mill compound of Gobardhan Das Kherani of Sakhanpukhuri. I was then waiting ahead towards Makum, with my party, watching its movement. Suddenly the taxi started off and proceeded towards Makum. We at once parted in two batches keeping at a distance of about 100 yards from one another. Both of our parties gave signals to stop. But the driver disobeyed the signals and rushed away towards Makum. We chased the taxi in another car and caught the taxi with driver Khuka alias Naresh Chandra Das and one Sundar Singh Rajput after hot chase. The driver Khuka and Sunder Singh admitted that they were carrying opium in the taxi and Sundar Singh produced one gunny bag, on our way back containing 16 bundles of opium, weighed 8 3/4 seers from the water on the north side of the Trunk Road near Sukhanpukhuri. I therefore take up a case, against them under Section 9(a), Opium Act.

16. It is contended on behalf of the prosecution that the investigation commenced on and from the point of time when the officer-in-charge recorded the so-called first information under Section 154, Criminal P.C. We are unable to accept this contention, specially in the facts and circumstances of the present case where the officer in charge himself was the informant. The salutary provisions like those contained in Section 162, Criminal P.C., cannot be allowed to be evaded in this way. The statement in this particular case must be taken to have been made in course of an investigation under Chap. 14, Criminal P.C., and it prima facie comes within the prohibition of Section 162, Criminal P.C. The question is how far this section is controlled by Section 27, Evidence Act, and how these two provisions in the two statutes mutually operate upon each other. There has been a good deal of divergence of judicial opinion as to the question how far Section 162, Criminal P.C., overrides the provisions of Section 27, Evidence Act. Before proceeding to notice this divergence of opinion it will be better to notice the history of the sections inasmuch as the majority of the Judges relied on this history in support of their views. The entire history of these provisions may roughly be divided into six periods:

1. In the Criminal Procedure Code of 1861 (Act 25 of 1861) Chap. 9 corresponded to Chap. 14 of the present Code. That Chap. 9 itself contained provisions corresponding to both Section 162, Criminal P.C., and Sections 25 to 27, Evidence Act. Its Sections 145 and 147 corresponded to Section 162 of the present Criminal Procedure Code. Its Sections 148 to 150 corresponded respectively to Sections 25 to 27, Evidence Act. Consequently, there the position was clear. The provision in Section 150 of the Code corresponding to that in Section 27, Evidence Act, controlled Sections 145 and 147 of that Code which corresponded to Section 162 of the present Criminal Procedure Code, (a) This state of affairs continued till 1872.

2. In 1872 the Evidence Act (Act I of 1872) and the Criminal Procedure Code (Act 10 of 1872) were enacted, (though on different dates), both coming into force on 1st September 1872. (a) Provisions corresponding to those contained in Sections 148 to 150, Criminal P.C., 1861, were enacted in the Evidence Act as its Sections 25, 26 and 27. (b) But the provision contained in Sections 145 and 147 of the Code of 1861 was retained in the Criminal Procedure Code of 1872 as its Section 119 and 121. This Criminal Procedure Code of 1872 did not contain any saving provision corresponding to that contained in Section 1 (2) of the present Criminal Procedure Code. The Evidence Act, on the other hand, contained a saving clause in its Section 2 which laid down:

But nothing herein contained shall be deemed to affect any provision of any statute, Act or Regulation in force in any part of British India and not hereby expressly repealed. (c) The law stood thus up to 1882. It may be that by reason of Section 2, Evidence Act, the provisions in Sections 25 to 27 of the Act could not affect the application of Sections 119 and 121, Criminal P.C., 1872. Though not so pertinent for the present purpose it may be noticed here that the provisions in Sections 119 and 121, Criminal P.C., were much narrower than those in Section 162 of the present Criminal Procedure Code.

3. In 1882 a new Criminal Procedure Code was enacted, being Act 10 of 1882. (a) In this Act Section 162 corresponded to Sections 119 and 121 of the Code of 1872. This Section 162 ran as follows:

No statement, other than a dying declaration, made by any person to a police officer in the course of an investigation under this chapter shall, if reduced to writing be signed by the person making it, or shall be used as evidence against the accused.

Nothing in this section shall be deemed to affect the provisions of Section 27, Evidence Act, 1872.

(b) In its Section 1 this Act also contained a saving provision corresponding to Section 1 (2) of the present Criminal Procedure Code. The section ran as follows:

This Act extends to the whole of British India; but, in the absence' of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law now in force, or shall apply to .... (c) It may be noticed here that the expression 'special law' was hitherto defined in the Criminal Procedure Code itself as meaning 'a law applicable to a particular subject' (vide Section 4 of the Code of 1872). Prom this Act 10 of 1882 this definition was omitted and, instead, the definitions given in the Penal Code were adopted by its Section 4.

(d) This was roughly the state of law up to 1898. Remembering Section 2, Evidence Act, it seems that from 1872 to 1882 the provisions of the Evidence Act could not affect the provisions of the then Criminal Procedure Code. The Criminal Procedure Code of 1882 intended, it seems by express provision to extend the operation of Section 27, Evidence Act, to cases otherwise covered by Section 162, Criminal P.C. This necessity for express provision might have been felt because of the saving clause in Section 2, Evidence Act.

4. In 1898 the present Criminal Procedure Code was enacted (Act 5 of 1898). Section 1 (2) remained substantially the same as in the Code of 1882 for our present purpose. Section 162 ran as follows:

No statement made by any person to a police officer in the course of an investigation under this chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence:

Provided that, when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid, the Court shall, on the request of the accused, refer to such writing and may then, if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof J and such statement may be used to impeach the credit of such witness in manner provided by the Indian Evidence Act, 1872. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, Clause (1) of the Indian Evidence Act, 1872.

5. The section stands in its present form after amendment by the Code of Criminal Procedure (Amendment) Act, 1923 (Act 18 of 1923), Section 34.

6. Section 2, Evidence Act is now repealed by the General Repealing Act of 1938 (Act 1 of 1938).

17. In my opinion no legitimate inference can be drawn from this history as to the question under consideration. The fact that the sections of the Evidence Act are sometimes expressly mentioned, and, sometimes not, does not render any assistance to the solution of the present problem. In Pakala Narayanaswami v. Emperor the Judicial Committee noticed the two provisions and their possible mutual relations thus:

In this case the words themselves declare the intention of the Legislature. It therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning whether in the interests of the prosecution or the accused. It would appear that one of the difficulties that has been felt in some of the Courts in India in giving the words their natural construction has been the supposed effect on Sections 25, 26 and 27, Evidence Act, 1872. Section 25 provides that no confession made to a police officer shall be proved against an accused. Section 26--No confession made by any person whilst he is in the custody of a police officer shall be proved as against such person. Section 27 is a proviso that when any fact is discovered in consequence of information received from a person accused of any offence whilst in the custody of a police officer so much of such information whether it amounts to a confession or not may be proved. It is said that to give Section 162 of the Code the construction contended for would be to repeal Section 27, Evidence Act, for a statement giving rise to a discovery could not then be proved. It is obvious that two sections can in some circumstances stand together. Section 162 is confined to statements made to a police officer in course of an investigation. Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. Section 27 seems to be intended to be a proviso to Section 26 which includes any statement made by a person whilst in custody of the police and appears to apply to such statements to whomsoever made, e. g., to a fellow prisoner, a doctor or a visitor. Such statements are not covered by Section 162. Whether to give to Section 162 the plain meaning of the words is to leave the statement still inadmissible even though a discovery of fact is made such as is. contemplated by Section 27 it does not seem necessary to decide.

In the present case the declarant was not in the custody of the police, and no alleged discovery was made in consequence of his statement. The words of Section 162 are in their Lordships' view, plainly wide enough to exclude any confession made to a police officer in course of investigation whether a discovery is made or not. They may therefore protanto repeal the provisions of the section which would otherwise apply. If they do not, presumably it would be on the ground that Section 27, Evidence Act, is a 'special law' within the meaning of Section 1(2), Criminal P.C., and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on this topic for whatever be the right view it is necessary to give to Section 162 the full Meaning indicated. It only remains to add that any difficulties to which either the prosecution or the defence may be exposed by the construction now placed on Section 162 can in nearly every case be avoided by securing that statements and confessions are recorded under Section 164.

18. Since then different High Courts have been taking different views of the question expressly left open by the Judicial Committee in the above case. Thus a Full Bench of the Allahabad High Court has held that Section 27, Evidence Act, has been repealed protanto by Section 162, Criminal P.C.: see Baldeo v. Emperor : AIR1940All263 --Collister, Allsop and Braund JJ. (decided on 23rd February 1940). In this case there were three accused persons who were convicted on 18th August 1939 under Section 302, I.P.C. Their names were Baldeo, Lakhanand Tirmal. Evidence was admitted at the trial to the effect that Tirmal, while in the custody of the police, stated to the second officer that the knife with which he and the other two appellants had murdered the deceased was at his house and that he could give it to the Police Officer if he were taken to the house. It was in evidence that Tirmal was thereafter escorted to his house and he unearthed a knife from under a heap of straw. The knife had stains of blood on it which was subsequently found to be of human origin. The following question was referred to the Full Bench:

What portion, if any, of the statement to the effect that 'the knife with which he and Baldeo and Lakhan, had murdered Maharaj Singh was at his house under a heap of pyal' alleged to have been made by the appellant Tirmal, to the Sub-Inspector of Police, Rafiq Ahmad, is admissible in evidence under Section 27, Evidence Act.

19. It was held by the Full Bench that no part of the statement was admissible in evidence, it being hit by Section 162, Criminal P.C. This result was arrived at by the Full Bench on the construction of Section 1(2), Criminal P.C. The learned Judges held that Section 162, Criminal P.C., contained a 'specific provision to the contrary' within the meaning of Section 1 (2), Criminal P.C. From this as well as from the history of the section the learned Judges arrived at the conclusion that Section 27, Evidence Act, was repealed pro tanto by Section 162, Criminal P.C. Referring to the observations of the Judicial Committee in Pakala Narayanaswami v. Emperor Collister J. observed:

It was argued before their Lordships that to give Section 162, Criminal P.C., this construction would be to repeal Section 27, Evidence Act. In this connexion it was observed that the words of Section 162... may therefore pro tanto repeal the provisions of the section which would otherwise apply. If they do not, presumably it would be on the ground that Section 27, Evidence Act, is a 'special law' within the meaning of Section 1 (2), Criminal P.C., and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on the topic, for whatever be the right view, it is necessary to give to Section 162 the full meaning indicated.

20. Thus, it has now been authoritatively laid down that Section 162, Criminal P.C., excludes from evidence a statement made by a person who is subsequently put on his trial ; and this will apply equally to a person who at the time is actually in custody of the police. It seems to me that this pronouncement of their Lordships creates a new situation in respect to Section 27, Evidence Act, at least so far as this High Court is concerned. In the light of that decision we have to determine the question which their Lordships mentioned but did not decide, namely whether Section 27, Evidence Act, is or is not saved from the application of Section 162, Criminal P.C., by Section 1 (2) of. the Code, which enacts that:

It (the Code) extends to the whole or British India; but in the absence of any specific provision to the contrary nothing herein contained Shall affect any special or local law now in force . . .

21. What we have to see, therefore, is whether a 'special provision to the contrary' is or is not contained in Section 162.

22. It seems as if Collister J., proceeded on the footing that though the Judicial Committee did not decide the question whether Section 162, Criminal P.C., repealed pro tanto Section 27, Evidence Act, yet the observations made by their Lordships on the point should be taken as indicating the only possible way in which the mutual relations of the two sections can be determined. With due respect it seems to me that there is no reason why the scope of enquiry into the matter should be taken as thus narrowed down by the above observations of their Lordships of the Judicial Committee. The whole question was expressly left open by their Lordships and it would not, in my judgment, be a fair reading of the observations made by their Lordships if we take them as laying down that 'the words of Section 162, Criminal P.C., pro tanto repeal the provisions of Section 27, Evidence Act, unless Section 27, Evidence Act, is a special law within the meaning of Section 1 (2), Criminal P.C., and then unless Section 162 is not a specific provision to the contrary.' Dalip Singh J. in Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129 seems to have taken the same view of the observations as Collister J. Collister J. found support of his view of the mutual relations between the two sections also in the history of the sections. His reasoning from the history seems to be this : In the Criminal Procedure Code of 1882 (Act 10 of 1882), it was enacted in Section 162 that:

No statement other than a dying declaration made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it or be used as evidence against the accused.

Nothing in this section shall be deemed to affect the provisions of Section 27, Evidence Act, 1872.

23. Thus, under that section the provisions of Section 27, Evidence Act, were expressly saved. Section 1 of the Act of 1882 enacted that nothing in this Act should affect any special law in the absence of a specific provision to the contrary. Notwithstanding this the Legislature deemed it necessary to except Section 27, Evidence Act, in express terms in Section 162, Criminal P.C. This, according to the learned Judge, suggests that if there were no such express proviso, Section 27, Evidence Act, would have been affected by Section 162, Criminal P.C. Therefore, he concludes that either Section 27, Evidence Act, is not a special law, or in the Criminal Procedure Code (Section 162) there is a specific provision to the contrary affecting Section 27, Evidence Act. In the present Section 162, Criminal P.C., there are two references to the Evidence Act--Ss. 145 and 32(1), Evidence Act. But for such provisos, therefore, the Evidence Act is affected by Section 162, Criminal P.C. Consequently, Section 27, Evidence Act, is affected by Section 162, Criminal P.C. Similarly, Section 157, Evidence Act, regarding corroboration is affected by Section 162, Criminal P.C. Coming next to the question whether there is any specific provision to the contrary within the meaning of Section 1 (2), Criminal P.C., the learned Judge says : Section 162, Criminal P.C., is intended to include statements by accused persons Pakala Narayanaswami v. Emperor . The logically inescapable conclusion according to the learned Judge is that Section 162, Criminal P.C., contains provisions plainly and directly, and therefore specifically affecting Section 27, Evidence Act, quoad statements made under that section by an accused person to a police officer in the course of an investigation. There is a specific provision to the contrary within the meaning of Section 1(2), Criminal P.C.

Allsop, J.

24. The Evidence Act is special law dealing with the subject of the admissibility of evidence. Section 162, Criminal P.C., if it means anything at all, must mean that statements which would be admissible as evidence under the Evidence Act must be excluded if made to a police officer in the course of an investigation. The exceptions mentioned show that the Legislature had the provisions of the Evidence Act in mind. The proposition to be derived from the maxim generalia specialibus non derogant is the same as that set forth in Section 1(2), Criminal P.C.

Braund, J.

25. Section 27, Evidence Act, is a 'special law.' Therefore, it would remain unaffected by Section 162, Criminal P.C., unless there is 'a specific provision to the contrary.' Section 162, Criminal P.C., contains a specific provision to the contrary--contrary to the provisions in Section 27, Evidence Act, and consequently, Section 27 is affected by Section 162, Criminal P.C.

26. The Lahore High Court has also taken the same view: see Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129 (Young C.J., Tek Chand, Dalip Singh, Monroe, Bhide, Din Mohammad and Bamlall JJ., decided on 8th March 1940 --Sessions Judge, 20th April 1939).

27. In this case Young C. J., observed : (1) the Judicial Committee have made it perfectly clear that the words of Section 162 are wide enough to exclude any confession made to a police officer whether a discovery is made or not, (i) unless Section 27, Evidence Act, is a special law within the meaning of Section 1 (2), Criminal P.C.; (ii) even if Section 27 be special law, it would be pro tanto repealed if Section 162 is a specific provision to the contrary. (2) It is unnecessary to consider whether Section 27, Evidence Act, is a 'special law' within the meaning of Section 1 (2), Criminal P.C. --a point not free from difficulty. (3) Section 162, Criminal P.C. is a 'specific provision to the contrary'. The learned Chief Justice also referred to the history of the sections and from that arrived at the conclusion that the Legislature intended to affect Section 27, Evidence Act, by Section 162, Criminal P.C.

Tek Chand, J.

28. The whole of the Evidence Act is not special law as defined in Section 4(2), Criminal P.C., read with Section 41, Penal Code. Section 27 contains the 'law on a particular subject' and is therefore 'special law' as so defined. The particular subject is the admissibility of information received from a person accused, etc. He refers to the comprehensive phraseology of the section (Section 162, Criminal P.C.) and says that this being the latest expression of the will of the Legislature must prevail--leges posteriores priores contraries abrogant --later laws abrogate the prior contrary ones ; generalia specialibus non derogant -- a later general law cannot be taken by implication to repeal an earlier special law.

29. Dalip Singh J., held that Section 162, Criminal P.C. does not override Section 27, Evidence Act. According to him 'it is always a question whether an Act or a particular section of the Act is a special law dealing with a particular subject or not by comparison with S the law with which there is an apparent conflict'. The question is entirely relative. The question is not whether the Evidence Act is special law but whether Section 27 is special law. According to him it is not possible to hold that Section 162 is a specific provision to the contrary. The question 'whether Section 27 is to be regarded as the special law dealing with statements leading to discovery or whether Section 162 is to be regarded as special law excluding statements made to the police' is difficult of solution.

Bhide, J.

30. The Evidence Act is special law, so Section 27 is special law, being its part. Provision to the contrary means any provision of a general character which comes into conflict with another provision. The word 'specific' is stronger than 'express'. There is nothing in Section 162, Criminal P.C., to show that the attention of the Legislature was directed to the subject of 'discovery' which is dealt with in Section 27. Had there been any provision in the Criminal Procedure Code dealing with the procedure of the police relating to discovery made in consequence of information given by an accused person . . . the provision might have been held to be a 'specific provision' to the contrary. Generalia specialibus non derogant. Section 1(2), Criminal P.C. governs the case and in view of it, Section 27 is not repealed either wholly or in part.

Din Mohammad, J.

31. (1) Section 162, Criminal P.C., and Section 27, Evidence Act, so far as it relates to statements made to police officers cannot be reconciled. (2) Section 162, Criminal P.C., was enacted subsequent to Section 27, Evidence Act. (a) The later abrogates the former (Craies on Statute Law, p. 316). (3) The Evidence Act and Section 27 are not special law, the Evidence Act is a general Act, but being earlier is abrogated by Section 162, Criminal P.C. Though not necessary--(4) Section 162, Criminal P.C. is a 'specific provision to the contrary.' He also refers to Section 2, Evidence Act, which saves the provisions contained. in other statutes from being affected by the provisions of the Evidence Act. The Bombay High Court, on the other hand, has taken a contrary view : see Emperor v. Biram Sardar ('41) 28 A.I.R. 1941 Bom. 146 (Sir John Beaumont C. J. and Sen J., 27-11-1940). Sir John Beaumont C. J. observed: 'Section 1 (2), Criminal P.C., reads:

In the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force.

(1) Most...of the learned Judges agree that Section 27, Evidence Act, is a special law in force at the date of the passing of the amended Section 162 and that point seems to me beyond question. It is a law applicable to a particular subject within Section 41, Penal Code. (2) 'Specific provision to the contrary' requires much more than a prohibition expressed in the most clear and emphatic terms. (3) Section 1(2) enacts a rule of construction to be applied in the interpretation of the Code. That rule is that where there is a conflict between the Code and a...special law, the special law is to prevail in the absence of a specific provision to the contrary. But the provision must be to the contrary of the rule of construction, and not merely of the special law. The section presupposes a conflict and a conflict is none the less a conflict because it is clear for all to see.... 'Specific provision' is stronger than 'express provision.'...The language of the two sections is quite distinct and to a large extent the respective subject-matters are not identical.

32. He criticised the Lahore and Allahabad views so far as these were based on the history of the sections. Omission to save Section 27 may have been due to a just appreciation by the Legislature of the true effect of Section 1(1) and to a reluctance to insert an unnecessary saving clause in respect of Section 27. The Madras High Court also takes the same view and holds that Section 27, Evidence Act, is not affected by Section 162, Criminal P.C.: see In re Subbiah Tevar ('39) 26 A.I.R. 1939 Mad. 856 Burn and Stodart JJ. (19-4-1939, Sessions Judge 10-2-1939). See also Chinna Thimmappa v. Talukunta Thimmappa ('28) 15 A.I.R. 1928 Mad. 1028; In re Syamo Maha Patro ('32) 19 A.I.R. 1932 Mad. 391. The Patna High Court follows the Madras view: see Emperor v. Mayadhar Potha ('39) 26 A.I.R. 1939 Pat 577 (Varma and Rowland JJ.--16-3-1939; Sessions Judge, 17-1-1939). According to Rowland J.: Section 27, Evidence Act, is a special law within the meaning of Section 1(2), Criminal P.C, and is not specifically repealed by Section 162, Criminal P.C. The divergence of judicial opinion on the question may be summarised thus:

1. Whether Section 27, Evidence Act, is 'special law within the meaning of Section 1(2), Criminal P.C.: (a) Yes : Emperor v. Biram Sardar ('41) 28 A.I.R. 1941 Bom. 146, In re Subbiah Tevar ('39) 26 A.I.R. 1939 Mad. 856, Emperor v. Mayadhar Potha ('39) 26 A.I.R. 1939 Pat 577, Baldeo v. Emperor : AIR1940All263 , Per Allsopand Braund JJ., Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129, Per Tek Chand and Bhide JJ.; (b)No : Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129, per Din Mohammad J. ; (c) Doubtful: Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129, Per Dalip Singh J.

2. Whether Section 162, Criminal P.C., can be said to be a 'specific provision to the contrary' within the meaning of Section 1(2), Criminal P.C.: (a) Yes: Baldeo v. Emperor : AIR1940All263 , Per Collister and Braund JJ., Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129, per Young C. J. and Din Mohammad J.; (b) No: Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129, Per Dalip Singh J., Emperor v. Biram Sardar ('41) 28 A.I.R. 1941 Bom. 146.

3. Whether by the rules of construction of the statutes, Section 162, Criminal P.C., controls pro tanto the provisions of Section 27, Evidence Act: (a) Yes : Baldeo v. Emperor : AIR1940All263 , Hakam Khuda Tar v. Emperor ('40) 27 A.I.R. 1940 Lah. 129; (b) No: Emperor v. Biram Sardar ('41) 28 A.I.R. 1941 Bom. 146, In re Subbiah Tevar ('39) 26 A.I.R. 1939 Mad. 856, 5 Emperor v. Mayadhar Potha ('39) 26 A.I.R. 1939 Pat 577.

33. In our opinion: (1) The Judicial Committee in Pakala Narayanaswami v. Emperor pointed out the comprehensive nature of Section 162, Criminal P.C. It must now be taken to have been settled that the language of Section 162, Criminal P.C., is wide enough to cover some of the cases coming within Section 27, Evidence Act: (2) The Judicial Committee completely left the question open as to how far the two sections mutually operate on each other: Their Lordships did not decide that Section 162, Criminal P.C., overrides pro tanto Section 27, Evidence Act, unless (a) Section 27 is 'special law' (b) and then Section 162, Criminal P.C., is not a specific provision to the contrary, or in the other words, it is not correct to read the observations made by their Lordships as amounting to this : (1) Section 162, Criminal P.C., must be taken to override pro tanto the provisions of Section 27, Evidence Act, (a) if Section 27 is not 'special law' within the meaning of Section 1(2), Criminal P.C.; (b) if Section 27, Evidence Act, is 'special law' within the meaning of Section 1(2), Criminal P. C; (i) then if Section 162 is 'a specific provision' contrary to the provision contained in Section 27, (2) Section 162, Criminal P.C., may not override Section 27, Evidence Act, only (i) if Section 27 is 'special law' and (ii) Section 162, Criminal P.C., is not' specific provision contrary to the provision in Section 27, Evidence Act.

34. If this be the effect, of the observations of the Judicial Committee in Pakala Narayanaswami v. Emperor then the only questions left open by their Lordships would be (1) whether Section 27, Evidence Act, is 'special law' and (2) whether Section 162, Criminal P.C., is a specific provision contrary to the provision contained in Section 27, Evidence Act. In our opinion this is not the effect of the observations contained in Pakala Narayanaswami v. Emperor ('39) 26 The questions to be decided by us are : Whether the operation of Section 162, Criminal P.C., in the field covered by Section 27, Evidence Act, (i) is prevented by Section 1(2), Criminal P.C., (ii) is prevented by any general rule of construction apart from that section, (iii) is prevented or attracted by Section 2, Evidence Act. In our opinion Section 1(2), Criminal P.C., does not help the solution of the question. Section 1(2), Criminal P.C., means to lay down (1) that nothing in the Code of Criminal Procedure shall affect any special of local law, (2) that the above saving provision shall be effective only 'in the absence of a specific provision to the contrary' i. e., only in the absence of a provision specifically withdrawing the saving.

35. In our opinion the words 'in the absence of any, specific provision to the contrary' in Section 1(2), Criminal P.C., mean and contemplate a provision specific in affecting the special or local law. The section when analysed would stand thus: 1. Nothing herein contained shall affect any special or local law.... 2. The above prohibition applies in the absence of a specific provision to the contrary--contrary to this prohibition; or in other words, 2. The special or local law shall be affected if there is any provision specifically providing for such affecting.

36. It seems clear that this specific provision to the contrary need not be in the Criminal Procedure Code itself. It may be in the special or local law also. We cannot read the words 'in the absence of a specific provision to the contrary' in Section 1(2), Criminal P.C., as referring to any possible contrariety between a specific provision in the present statute and a provision is a special statute. Even if Section 1(2) be read in that way, in our opinion Section 162, Criminal P.C., shall not be a 'specific provision to the contrary' i. e. contrary to the provision contained in Section 27, Evidence Act, as the two can certainly co-exist. Section 162, Criminal P.C., applies only to statements made (1) to the police and (2) in course of an investigation under Chap. 14, Criminal P.C. To this extent such statements though leading to discovery may not be evidence and the operation of Section 27, Evidence Act, may be affected, But outside this limit there still remains a wide field left for the application of the section. In our opinion, in order that one provision can be said to be 'a specific provision to the contrary' it must completely cover the field of operation of the other and must lay down a contrary rule for the entire field so as altogether to nullify the other. That, however, is not the relative position of the provisions contained in Section 162, Criminal P.C., and Section 27, Evidence Act. In our opinion (1) the provision contained in Section 27, Evidence Act, is not 'special law' within the meaning of Section 1(2), Criminal P.C. (2) Answer to the question whether or not a particular law is 'special law' depends upon in relation to which other law the question is asked.

37. In this particular case the Evidence Act gives the general rules of evidence, such rules being applicable to all proceedings, civil or criminal. The Criminal Procedure Code gives rules of procedure in criminal cases and may give rules of evidence also. Such rules will be 'special law,' special for the purpose of criminal cases only and special in relation to the general rules contained in the Evidence Act. Again, while giving the general rules, Sections 24 to 30 deal with a special subject, viz., confessional statements. These are 'special laws' in relation to other more general provisions of the same statute. Sections 25 and 27 again give still more special rules, specially dealing with statements made to the police or made while in police custody. Section 162, Criminal P.C., also provides for such statements and is in one respect more general inasmuch as it extends to all statements whether made by the accused or anybody else, but in another respect much restricted and special, inasmuch as it applies only to statements made to the police officer and that again only when such statement is made in course of an investigation under Chap. 14 of the Code.

38. In our opinion, Section 27, Evidence Act, is not a 'special law' in relation to Section 162, Criminal P.C. Section 1(2), Criminal P.C., therefore, does not stand in the way of Section 162, Criminal P.C., affecting Section 27, Evidence Act. But the question still remains which of the two provisions is to prevail. The answer to a question like this, again is dependent on another question, viz., 'for what purposes'? In the present case we are examining the question for the purpose of seeing whether a statement made to the police in course of an investigation under Chap. 14, Criminal P.C., can be used in evidence. Chapter 14 of the Code makes special provisions for every thing happening in course of this investigation including the rules of use of the materials coming into light as the result of that investigation. The chapter contains provisions empowering the police to require attendance of witnesses and to examine them, and then in Section 162 lays down to what extent and for what purposes a statement made to the police in course of the investigation can be used. The investigation itself is certainly expected to bring to light the complete chain of evidence fixing the crime on the real criminal and necessarily to lead to the discovery of inculpating facts. Yet the relevant section makes no saving or excepting proviso like the one contained in Section 27, Evidence Act. Section 27, Evidence Act, no doubt makes a special provision for statements leading to discovery. But as has already been pointed out, this special provision applies to a much wider field. It is not limited in its operation, like Section 162, Criminal P.C., to a particular investigation. In my opinion this fact alone should suffice to allow Section 162, Criminal P.C., to override Section 27, Evidence Act. To this we may add that Section 27, Evidence Act, containing this general provision was already there when Section 162, Criminal P.C., was enacted providing for a special case of investigation and laying down how much of the fruit of this investigation can be used and for what purposes. In our opinion, the rule 'leges posteriores priores contrarias abrogant'--when two statutes are contrary in matter, the latter abrogates the former--will apply to this case, and, to the extent indicated above, Section 162, Criminal P.C., will abrogate Section 27, Evidence Act. The Evidence Act itself certainly is not 'special' in relation to the rules of evidence contained in the Criminal Procedure Code for the purposes of criminal proceedings. For the reasons given above, we are of opinion that Section 27 of the Act, is also not 'special law' in relation to the rules regarding statements made in course of a particular class of investigation conducted under the special provisions of Chap. 14, Criminal P.C. The prior enactment here is not therefore 'special' and subsequent enactment, 'general' within the meaning of the maxim 'generalia specialibus non derogant'. In our opinion in enacting Section 162, Criminal P.C., the Legislature has given its attention to the special subject of investigation by the police and statements made to them in course of such investigation and made provision for it. In enacting Chap. 14 the Legislature had in its consideration the special powers given to the police officers and consequently provided for special safeguards.

39. It may also be noticed here that the saving clause contained in Section 2, Evidence Act, also operated to prevent its Section 27, from affecting the provisions contained in the Criminal Procedure Code. The clause enacted ' But nothing herein contained shall be deemed to affect any provision of any statute, Act or Regulation in force in any part of British India and not hereby expressly repealed.' After the pronouncement of the Judicial Committee in Pakala Narayanaswami v. Emperor it is now beyond dispute that without any saving provisions anywhere Section 27, Evidence Act, is in partial conflict with Section 162, Criminal P.C. Section 2, Evidence Act, would, therefore, have operated so as to withdraw Section 27 of the Act from the field of operation of Section 162, Criminal P.C. Section 2, Evidence Act, however, has now been repealed by Act 1 of 1938. As we have taken the view that even apart from any such saving clause in the Evidence Act its Section 27 is overridden by Section 162, Criminal P.C., it is not necessary for us to examine how this repeal affects the position. Even assuming that Section 27, Evidence Act, is unaffected by Section 162, Criminal P.C., the question still will be how far the alleged statement is admissible in evidence under Section 27, Evidence Act. In order to see the exact scope of this section it should be read along with Sections 25 and 26 of the Act. Section 25 lays down:

No confession made to a police officer shall be proved as against a person accused of any offence.

40. Section 26 enacts:

No confession made by any person whilst he is in the custody of a police officer...shall be proved as against such person.

41. Then Section 27 provides as follows:

Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.

'Pact' is defined in Section 3, Evidence Act, to 'mean' and include (1) anything, state of things, or relation of things capable of being perceived by the senses; (2)....

42. The requirements of Section 27 are:

(1) Some fact is deposed to (a) as discovered, (b) discovered in consequence of information, (c) information received from a person accused of any offence, (d) the person being in the custody of a police officer; (2) (a) the information is received as a matter of fact, (b) it is received from a person accused of any offence, (c) the person being in the custody of a police officer; (3) (a) some fact is discovered, (b) the fact is discovered by (i) the whole information, or (ii) a portion of the information; (4) that portion of the information is evidence (a) by which the fact is discovered, and (b) which relates distinctly to the fact discovered. What has been deposed to in the present case will appear from the depositions of the P. Ws. 1, 2, 4 and 5. It is clear from their evidence that the fact deposed to as discovered in this case is 'a gunny bag containing opium at Sukanpukhuri under the water.' It has been deposed in this case that the fact was discovered in consequence of information received from Sundar Singh a person accused of an offence and in the custody of a police officer. It has been found that some information was received from the accused in the custody of the police. The witnesses could not give the exact information received from the accused. The learned Sessions Judge found the information to be to the effect : 'I had thrown the opium on the road side at Sukanpukhuri.' According to the finding of the learned Additional Sessions Judge the fact discovered is 'a gunny bag containing opium at Sukanpukhuri under water.' According to the prosecution case this fact has been discovered (1) by the information received from the accused Naresh, followed (2) by information received from Sundar Singh and (3) by the conduct of Sundar Singh, viz., by his leading the police party to the place, pointing out the exact spot and bringing out the gunny bag.

43. Mr. Gupta contends that in view of this plurality of the causes of the discovery no fact can be said to have been discovered by or in consequence of the information received from Sundar Singh and consequently his alleged statement cannot be given in evidence under Section 27, Evidence Act. In our opinion the information received from Sundar Singh did not cease to be the information causing the discovery simply because such discovery was facilitated by other assistance as well. When a fact is once discovered in consequence of information received from some source, any further information subsequently received from any other source cannot be said to be the information whereby the fact is discovered. But the mere plurality of information received before discovery shall not necessarily take any of these informations out of the section. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery. Assuming that in spite of the earlier information received from the other accused and the subsequent further assistance rendered by Sundar Singh, it was the information received from Sundar Singh by which the discovery can be said to have been made within the meaning of the section, it still remains to be seen by how much of the information this discovery was made. That much of the information alone will be evidence provided it satisfies the further requirement of being such as relates distinctly to the fact discovered. In our judgment the exact information received from the accused must be established before Section 27, Evidence Act, can be resorted to. This view is supported by Athappa Goundan v. Emperor ('37) 24 A.I.R. 1937 Mad. 618 where it was pointed out that 'statements made by an accused person which are or may be provable under Section 27, Evidence Act, should be clearly and carefully recorded by the police officer concerned. They should be recorded in the first person, that is to say, as far as possible in the actual words of the accused. They should not be paraphrased. Obviously, if what a man says is to be used in evidence his own words should be used and not a rendering into third person of the purport of the statement. With such a record of the statement before him it will then be for the trial Judge to decide how much of it is admissible under the section.'

44. The observations are indeed of much weight. Apart from any other consideration there is always the weakness of testimony to oral utterances. One's assertion of what another said is subject to a special weakness, viz., the risk of defective perception of words uttered orally. The specific features of weakness in such a case are : (1) the perception of the words may be imperfect, either by perceiving words differently from the reality, or by perceiving a part of them only; (2) the memory of them may be imperfect; (3) the narration of them may be different; (4) no data are available for determining which of these is the source of error and for checking possible error. Then there is the illusion of recollection which may confuse facts with conjecture. When a man's fate is made to depend upon a statement on the ground that it is his own statement, such a statement should be provable after excluding as much as practicable all such possible sources of error.

45. In order to apply the section it is necessary to know exactly what the statements were; because they are admissible only in so far as they lead to the discovery of the fact and no further: Emperor v. Shivputraya ('30) 17 A.I.R. 1930 Bom. 244 at p. 248. Section 27 must be strictly construed and any relaxation must be sparingly allowed, care being exercised to see that the purpose and object of Sections 25 and 26 and the safeguard provided in Section 27 are not rendered nugatory by a lax Interpretation: Supdt. and Remembrancer of Legal Affairs v. Bhajoo : AIR1930Cal291 . The protection given to the accused by these sections should not be dependent on the ingenuity of the police officer or the folly of the prisoner in composing the sentence which conveys the information : Sonaram Mahton v. Emperor ('31) 18 A.I.R. 1931 Pat. 145 and Phulua v. Emperor ('36) 23 A.I.R. 1936 Nag. 23. Section 27 is enacted as an excepting or qualifying rule of evidence, being framed as a proviso upon the preceding Sections 25 and 26, One cannot fail to discern the evil or mischief which it is the intention of the Legislature to meet by enacting Sections 25 and 26, Evidence Act. Section 27 contemplates data which refute the possible discrediting circumstances in view of which Sections 25 and 26 are enacted, by supplying material corroboration in the facts discovered. The principle upon which the rejection of confession made by an accused person to a police officer or whilst he is in the custody of a police officer is founded is that a confession thus made or obtained is untrustworthy. If circumstances, however appear, which rebut the presumption of its being false and demonstrate its truth, the confession should be allowed. When in consequence of information furnished by the accused, a fact is discovered, then the discovery of that fact supplies a guarantee of the truth of the information which may amount to a confession. The confession in so far as it is confirmed by the discovery should be deemed to be true.

46. This, no doubt, is the rationale of the exception enacted by Section 27, but its exact scope must depend upon the actual language employed by the Legislature. It has often been pointed out by the Judicial Committee that 'where there is a positive enactment of the Indian Legislature the proper course is to examine the language of that statute and to ascertain its proper meaning uninfluenced by any consideration derived from the previous state of the law or of the English law upon which it may be founded:' Mt. Ramanandi Kuer v. Mt. Kalawati Kuer ('28) 15 A.I.R. 1928 P.C. 2. There seems to be little difficulty in stating the meaning of the words used in Section 27. The real difficulty lies in applying them to the facts of a particular case, and the great divergence of judicial opinion that has arisen on this section really relates to this question of its application to a concrete case. Thus, in Ganu Chandra v. Emperor ('32) 19 A.I.R. 1932 Bom. 286 (Sir John Beaumont C. J. and Broomfield J.): the prosecution relied upon the evidence of Panch witness who stated, among other things, the following:

Every accused except No. 1 first gave us information that he would point out the place where his share of the property stolen in the Dahivadi dacoity case was buried and offered to produce the same. On that information we followed them to the several places. Properties were discovered in the places where he said it would be found.

47. It has held that only part of the statements which could be admitted under Section 27, Evidence Act, was a statement that they would point out the places where the property was buried. The word 'his share of the property' and the words 'stolen in the Dahivadi dacoity' must be excluded on the ground that they were not necessarily connected with and did not distinctly relate to the discovery of the property. Beaumont C. J. observed:

When the Judge gets the evidence of information he must before he records it as evidence or leaves it to the jury, divide the sentence into what are really its component parts, and only admit that part which had led to the discovery of the particular fact, namely the hidden property. I think the Judge must have regard to the fact that the information expressed as it is in a single sentence really involves, first, an admission that there was a dacoity secondly, an admission that the accused took part in it, thirdly, an admission that he got part of the property, and fourthly, a statement as to where the property is. The first three parts of the dissected sentence are not admissible in evidence, but the fourth part is. That seems to me to be the effect of Sections 25 and 27 read together and I think that such a construction is justified by the decision of a Full Bench of this Court in Queen-Empress v. Nana ('90) 14 Bom. 260 (F.B.).

48. Similarly, in Sukhan v. Emperor ('29) 16 A.I.R. 1929 Lah. 344, the accused was being tried for the murder of a boy who was wearing certain ornaments at the time of his disappearance, but the ornaments were not found on his corpse when it was recovered from a well. At the trial the Sub-Inspector of police deposed to the fact that in consequence of information received from the accused he had recovered from one Allah Din silver karas which were proved to be the karas which the boy was wearing when he was last seen alive. The Sub-Inspector stated that the prisoner had, during the investigation, made the following statement : 'I had removed the karas, had pushed the boy into the well, and had pledged the karas with Allah Din.' The question was whether any portion of this statement and if so, which portion, was admissible in evidence under Section 27, Evidence Act. J Shadi Lal C. J., observed that the fact discovered in this case was, not 'the karas' simpliciter, but 'the karas being found in the possession of Allah Din,' The information to be admitted must relate distinctly, not to the karas, but to the karas in relation to their possession by Allah Din. According to him 'the language of Section 27, when analyzed, shows that the Legislature has prescribed the following two limitations in order to define the scope of the information provable against the accused:

(1) the information must be such as has caused the discovery of the fact. This condition follows from the phrase 'discovered in consequence of information' and also from the expression 'thereby discovered' used by the Legislature with reference to the fact. In other words, the fact must be the consequence, and the information the cause of its, discovery. The information and the fact should be ' connected with each other as cause and effect. If any portion of information does not satisfy this test, it should be excluded ;

(2) the information must 'relate distinctly' to the fact discovered. The word 'relate' means to 'have reference' or 'to connect' and the word 'distinctly' means clearly, unmistakably, decidedly or indubitably. To put it in a different language, the information must be clearly connected with the fact.

49. It was held in this case by the majority of the Full Bench including the learned Chief Justice that the statement that the accused had pledged with Allah Din the karas subsequently recovered from the latter is admissible under Section 27, Evidence Act, but the rest of the incriminating statement cannot be received in evidence. The statement that the accused removed the karas from the boy is also inadmissible as this information cannot be regarded as the immediate cause of the discovery. The removal is not the proximate cause of the ornaments being found in the possession of Allah Din. Again in Amiruddin Ahmad v. Emperor ('18) 5 A.I.R. 1918 Cal. 88, it was held that under Section 27 so much of the information as relates distinctly to the fact thereby discovered may only be proved. Even if a single statement contains more information than what is necessary for the discovery, the statement is not to go in as a whole nor is it to go in as a statement at all, but what is admissible is the particular information given by the statement which led to the discovery. In our opinion the word 'thereby' in 'fact thereby discovered' refers to that portion of the information only which may be held to be the proximate cause of the discovery. In order thus to be admissible against the accused under Section 27; (1) the information must be the one given by the accused the statement conveying the information must be his own statement in his own language and then (2) only so much of the information as is necessary and sufficient to cause the discovery will be admissible. The Madras High Court, however, has adopted a somewhat extended meaning of this section. Thus, in Athappa Goundan v. Emperor ('37) 24 A.I.R. 1937 Mad. 618 the following question was referred to the Full Bench.

50. Is the whole or any part of the following statement, 'He said that about 11 P.M. on the night of 26th March 1936 himself and Gurunath Goundan, son of Kanda Goundan of Eran Gattur, together killed Senni Malai Goundan....by gagging his mouth with cloth and throttling his neck with hands and also by putting a rope and pressing it...that night....they got two bottles of illicit arak by paying Rs. 2 to Gandhiranga Boyan of Kallippatti who got it from some other place...that a small quantity was left over in one bottle only, that...(they) buried, (1) the empty bottle, (2) a rope and the cloth gag in a dunghill next to the cattle shed in the same compound and the other bottle with some arak in a heap of mud near a log of wood in a corner of the compound east to the Choultry at Kallipatti and that he would go and take them and produce them. This is known to us,' alleged to have been made by accused 1 admissible against accused 1 under Section 27, Evidence Act, and if yes, how much of it.

51. The Full Bench practically held that the whole of the statement was admissible under Section 27, Evidence Act. In arriving at this decision Beasley, C.J. observed:

The fact deposed to and the fact discovered obviously must be relevant and the fact or thing discovered can only be relevant if it is connected with the offence of which the accused is charged; and the confession in the section is a confession of the offence charged and not of anything else. Before the statement is given in evidence it must be shown that the fact discovered is a relevant fact and the object is a material object. In cases where the things discovered as a result of the accused's information are proved to be property stolen from a person and the subject of the charge or worn by the victim of a murder just before the murder is committed, the property so discovered is directly connected with the crime and the fact thereby discovered relevant. It can be made relevant by evidence aliunde and it can be made relevant by the statement of the accused itself. Suppose there is no evidence aliunde, what warrant is there for saying that part of the statement of the accused that makes it relevant must be excluded because it amounts to a confession? Is there any warrant for garbling the statement in order to make it innocuous to the accused and in the process causing it to be irrelevant and consequently inadmissible in evidence.

52. With due respect I feel some difficulty in following the exact force of these observations. If evidence is needed to make the fact discovered relevant it is for the prosecution to supply that evidence, and for this purpose the confessional statement to the police cannot be utilised because of the provisions of Sections 25 and 26, Evidence Act. If any part of the statement is of some consequence in order to serve the purpose of connecting the fact discovered with the offence and not as cause of the discovery it is difficult to see why it is observed that there is no warrant for saying that that part of the statement is not admissible in evidence. Sections 2S and 26 clearly warrant this prohibition. If the prosecution cannot bring in any evidence aliunde connecting the fact discovered with the offence, the prosecution may have to fail. From this it does not necessarily follow that the statement of the accused shall have to prevent this disaster. Section 27, Evidence Act, does not say that so much of the information as is necessary to make the fact discovered relevant shall also be proved. I must confess I cannot read any such provision into the section as it now stands. Later on the learned Chief Justice says:

It is undisputed that the information must set the police in motion, because it is in consequence of it that the discovery is made. Would the police be set in motion merely by the statement of the accused that he threw a biohuva into the back room of his hut if there is no evidence that it is the instrument of the crime If there is no evidence aliunde, then the police will not be set in motion unless the fact discovered is connected with the case under investigation and if it is the accused's statement which connects the fact discovered with the offence and makes it relevant, then even though that statement amounts to a confession of the offence, it must be admitted because it is that, that has led directly to the discovery of the fact.

53. With due respect I feel some difficulty in following the reasons given in the above passage. I do not know exactly whether the police would be set in motion merely by the statement of the accused that he threw a bichuva into the back room of his hut if there is no evidence that it is the instrument of the crime. Perhaps the police would not, To justify this surmise of police in action I would only quote a passage from the judgment of Straight C.J. in Queen v. Babulal ('84) 6 All. 509 where the learned Chief Justice observed:

My experience in this Court has conclusively satisfied my mind of two things : first, that in almost every case of serious gravity or difficulty, the primary object towards which police direct their attention and energies is, if possible, to secure a confession: secondly, that such confession if subsequently retracted, is, as an item of judicial proof, unless corroborated by strong and independent evidence, positively worthless. It requires no very vivid imagination to picture what too often takes place when two or three of these not very intellectual or highly paid police officials are called away to a village to investigate a grave crime, of which there are no very clear traces. Naturally it is much the easier way for them to begin by endeavoring to obtain a confession from the suspected person or persons instead of by searching out the clues to the evidence from independent sources, and seeing what extraneous proof there is. But, as I have more than once been constrained to remark from this Bench, the effect of this sanction given by Section 164, Criminal P.C., to a Magistrate recording in the course of the investigation the confessions of accused persons thus obtained not from the hands of the police, is not so beneficial to the elucidation of guilt as is supposed, for it continually happens that, while the police have been occupying themselves in getting the confession many of the traces of the crime, which, if at once followed up, would have produced valuable proof, have disappeared. To repeat a phrase I used on a former occasion, instead of working up to the confession, they work down from it.

54. The police, inclined to make a short cut to the elucidation of a difficult case, may not move. But an investigating police should perhaps be set in motion on an information which may lead to a discovery supplying some possible clue to further discovery. In any case, even assuming that for the purposes of the investigation the police would require more evidence or information before taking any move in the matter, it does not follow that such information therefore comes within the requirement of Section 27, Evidence Act. The police officer might require more. But eliminating all personal equations of the investigating police, the discovery itself might not require any further information and Section 27, Evidence Act, only allows so much of the information to be given in evidence as would suffice for the discovery itself and for nothing else. We have already noticed the principle underlying Sections 25 and 26, Evidence Act. The possible discrediting circumstances which the Legislature seems to have had in view in enacting these sections should not altogether be lost sight of in construing these provisions. Corroboration by discovery no doubt offers some data which to a certain extent go to refute the discrediting circumstances in the particular case. But simply because a portion of the alleged statement finds corroboration in the discovery it does not follow that the other portion is also true and the reason why a statement to the police is excluded from evidence still applies to that other portion. To this if we add the natural desire of an investigating police, the risk of extending the scope of Section 27 at once becomes patent.

55. For the discovery of the fact in the present case the information that 'the gunny bag. containing opium was thrown from the oar into Sukanpukhur' is sufficient. The discovery, therefore, can be said to have been made by this much of the information alone. The information as to who threw the bag is superfluous for the purposes of the discovery. In my judgment that portion of the information which was necessary for the discovery can alone be said to have caused the discovery. Certainly it also relates distinctly to the fact discovered. The other portion of the information, viz., who was the author of the act of throwing, may be said to relate to the fact discovered, but does not satisfy the requirement of having caused the discovery. In our judgment, therefore, that portion of the alleged statement which purports to ascribe the authorship of the 'act of throwing' to the accused himself is not admissible in evidence under Section 27, Evidence Act. The admissible portion of the information must, therefore, be to the effect that 'gunny bag was thrown into Sukhanpukhuri.' Excepting the alleged statement by the accused there is no other evidence on record to show that the accused ever had any control over the bag in question Other evidence on record along with the admissible portion of the information, if it is admissible at all, does not establish possession of the accused. In our opinion, however, no portion of the alleged statement is admissible in evidence in this case, it being hit by Section 162, Criminal P.C. In the result, this rule is made absolute. The conviction of the accused and the sentence passed are set aside, and the accused is directed to be set free. Our order will not in any way affect the order of confiscation of the opium made by the learned Magistrate.

Lodge, J.

56. I agree with my learned brother that these two rules must be made absolute and the two petitioners acquitted. I agree also with the view expressed in his judgment that the effect of Section 162, Criminal P.C., is that Section 27, Evidence Act, is pro tanto repealed. I am unable however to agree with my learned brother as to the very limited scope which he assigns to Section 27, Evidence Act, when that section is applicable. In the present case it is not, strictly speaking, necessary to decide what is the scope of Section 27, Evidence Act. If it were necessary to decide this question I should be inclined to hold that if evidence were given that the accused stated 'I threw the opium into the spot' the whole of that statement would be admissible under Section 27, Evidence Act.


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