Debabrata Mookerjee, J.
1. On the jury's unanimous verdict Sarju alias Jagneswar Kumar, Sadhu alias Deodhari Goala, Tilakdhari Dosad alias Pasman alias Palwan. and Yasin Khan have been convicted of dacoity under Section 395 of the Indian Penal Code. By reason of a previous conviction Tilakdhari has been sentenced to seven years' rigorous imprisonment and the rest to five years' rigorous imprisonment each. Of these four convicted men Sarju and Sadhu have been represent ed by counsel; Tilokdhari has preferred an appeal from jail; Yasin Khan has submitted to the sentence.
2. The case for the prosecution is that on the 9th of January, 1959, at about 7 p.m. these appellants with several others raided the house of one Shewnath Pandey within police station, Asansol. As soon as the miscreants appeared Shewnath's servant Ram Janam Cope P. W. 5 gave an alarm; Shewnath himself bolted the front door leading to the house and went up with his servant on the roof of a ground-floor room, but Shewnath's wife and son stayed on in the ground-floor. The door was broken open and the miscreants armed with spears and lathis entered the courtyard. Crackers were thrown towards the roof. An iron safe was broken open in one of the rooms; trunks and suit cases containing clothes, ornaments and cash to the tune of about Rs. 2500/- were removed. Shewnath and Ram flanam recognised the appellants and their co-accused when they were in the courtyard in the light of a burning hurricane lantern which was tied to a post.
3. After a short while the miscreants left and neighbours appeared on the scene.
4. Meanwhile an information had been given to the police by one Birendra Nath Bhaduri who sent a telephonic message on hearing the explosion of crackers coming from the direction of Shewnath's house. The police arrived and took a detailed statement from Shewnath.
5. In consequence of the information the police commenced investigation; the appellants and the said Yasin were arrested and two dhotis said to belong to Shewnath were recovered on search. A test identification parade was held and then a charge-sheet was submitted against them,
6. After a preliminary enquiry the appellants were committed to take their trial before the court of- Session. As we have indicated all were charged with having committed dacoity; there was an additional charge against Sarju under Section 412 of the Indian Penal Code.
7. The appellants pleaded not guilty and the defence was that they had been falsely implicated. Tilakdhari stated that he had been pointed out to the Witnesses by the investigating officer at the police station. He claimed to have brought the matter to the notice of the Magistrate who held the test identification parade. Sarju denied that the dhotis had been found in his 'possession and alleged that ho had been severely assauked by the police who had pointed him out to the identifying witnesses. The appellant Sadhii stated that he bore a cut mark on his forehead which made his identification easy and the police officer concerned had pointed out that special mark to the witnesses so that they might be enabled to identify him without difficulty.
8. The jury obviously believed the prosecution case, discounted the defence and found the appellant guilty.
9-18 On behalf of the appellants Sarju and Sadhu the learned Judge's summing-up has been assailed on several grounds. It would be necessary to notice the criticisms.
After considering the objections and rejecting them, the judgment proceeds as under.
19. Sarju was charged in addition under Section 412 of the Indian Penal Code. That charge related to the recovery from his possession of two dhotis which were identified on the basis of dhobi marks as belonging to Shewnath. The case against him obviously was that he had been in possession of the dhotis-which were amongst the proceeds of the dacoity. He had also been charged under Section 395 of the Code. The jury having found him guilty on this charge, the Judge did not proceed to take their verdict on the additional charge under Section 412. We do not find anything illegal or improper in this. When a stolen property is recovered from the possession of a person shortly after a theft or dacoity, the presumption naturally arises that the person from whom it has been recovered is either a thief or dacoit or receiver of stolen property. It is said that the additional charge which was based upon evidence of recovery of the dhotis was merely a device to prejudice the appellant Sarju on the charge of dacoity. We do not at all agree. There might have been a charge of dacoity and in the alternative a charge under Section 412; but the mere fact that he was charged with both, would not invalidate his conviction based on the jury's verdict on the charge of dacoity. The-recovery of stolen article would certainly be relevant evidence on the charge of dacoity. Presumably the learned Judge thought that Sarju having been found guilty of the offence of dacoity, no further opinion by way of verdict under Section 412 from the jury was-needed. Apart from the technical question whether the learned Judge was obliged to take the verdict on each of the charges framed there can be, we think, no question of prejudice accruing to the appellant Sarju on this account.
20. The next contention is that the learned Judge misdirected the jury in the case of the appellants Sadhu and Sarju by telling them that the statements of witnesses made to the Magistrate at the test identification parade, though not substantive evidence, was available for corroboration as well as contradiction. The complaint is founded on the fact that certain statements were made by the-two identifying witnesses Shewnath and Ram Janam to the Magistrate who held the test identification parades, and those statements were deposed to as having been so made by the Magistrates concerned. Sri S. K. Mukherjee, one of the Magistrates who held one of the parades deposed that on the 21st of April 1959 Shewnath while identifying the appellant Sadhu stated that he was the person who brought out a trunk at the time of the dacoity; Ram Janata also stated that the appellant Sadhu was the mam who took the trunk out at the time of committing the dacoity. Sri K. P. Garai, the other Magistrate who held another parade on the 17th January, 1959, deposed to say that Shewnath told him at the time of the identification parade that the appellant Tilakdhari was one of the persons who had committed the raid in his house; Ram Janam also said that Tilakdhari was one of the dacoits engaged in committing the dacoity. This Magistrate held another parade on the 28th January, 1959 at which Shewnath. while identifying appellant Sarju, described him as one of the dacoits who had committed the dacoity; Ram Janam also told the Magistrate that appellant Sariu was one of the persons who had committed the-raid.
21. Thus the statements made by the identifying witnesses at the test identification parades to the two Magistrates who held them, were allowed In evidence on the footing that they corroborated the evidence given by the identifying witnesses to court. The. learned Judge accordingly directed the jury to treat the statements of the witnesses before the Magistrate at the identification parades as corroborative of the evidence which the witnesses gave before the court. Ho also made it plain that such previous statements might as well be used to contradict the evidence of the witnesses. The argument is that while statements made by the identifying witnesses at the test identification parades would be available to the defence for purposes of contradiction, they would not be available to the prosecution for purposes of corroboration. It is, therefore, said that the learned Judge seriously misdirected the jury by telling them that such previous statements were available for contradiction as well as corroboration.
22. There can be no question that a statement made by an identifying witness before a Magistrate at a test identification parade can never be substantive evidence of the truth of the facts it states. It is not disputed that such statements are available for purposes of contradiction; but it has been urged that it is not available for the purpose of corroboration. We think, on authority as well as on principle, this contention is wholly untenable. In our opinion such previous statement is available for both the purposes, that is, for corroboration and contradiction. There has, of coursei to be substantive evidence before the court in proof of the fact it states and then the statement which was made by the witness before the Magistrate at the test identification parade is available for corroboration under Section 157 of the Evidence Act just as it is available for contradiction under Section 145 of that Act. If the previous statement has been reduced into writing then the attention of the witness concerned has to be drawn in terms of Section 145 of the Evidence Act. When that is done, the previous statement does become available to contradict present testimony. Section 157 speaks of corroboration, its actual words appear to be important and require to be stated.
In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact may be proved.
There are certain pre-requisites to be fulfilled before this section can be applied. There has to be a present testimony to be corroborated by a former statement made by the witness; such former statement must have been made at or about the time when the fact took place or it must have been made before an authority legally competent to investigate the fact. Thus the former statement if made at or about the time the fact took place, can be proved in corroboration of the present evidence; if it was not made contemporaneously, even then it may be available to corroborate present testimony if it was made before any authority legally competent to investigate the fact. A. contemporaneous statement seems to offer little difficulty; but where a statement is made at a subsequent point of time, it may be a matter of some difficulty in view of the words actually used in the section. The words are 'legally competent to investigate the fact'. The word 'investigate has not been defined in the Indian Evidence Act; it has not been defined in the& Indian General Clauses Act either;, it has, however, been defined in the Code of Criminal Procedure which by Section 4(1) says.
Investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf.
The word thus defined in the Code of Criminal Procedure is a word of narrow import and refers to the proceedings of a police officer directed to the collection of evidence. We do not find any warrant for the view that the word 'investigate' used in Section 157, of the Evidence Act should be understood in the-narrow sense in which the word is used in the Code of Criminal Procedure. We think the word 'investigate' occurring in Section 157 must be taken in its ordinary dictionary sense of ascertainment of facts, silting at materials, search for relevant data; it merely means in this section a fact finding process and is not confined to one conducted by the police for the collection of evidence. As long as an authority legally competent to deal with the matter investigates, the requirement of Section 157 appears to be satisfied. Therefore, a statement made before any authority which has the legal competence to investigate the fact, can be proved to corroborate present testimony. It seems to us that a very extended meaning was im--pliedly accorded to the words 'legally competent to investigate' by the Supreme Court in the case of Bhagwan Singh v. The State of Punjab, : 1952CriLJ1131 . The question there was, whether the statement made before the committing Magistrate was available to corroborate the evidence-in-chief of a witness in the Court of Session who had resiled completely in cross-examination. Apart from the question of admitting the statement under Section 288. of the Code of Criminal Procedure, the point was-whether the statement made before the committing court could be availed of to corroobrate the evidence in chief of the witness concerned. It was observed,
it the prosecution was entitled to use the former statement statement before the committing court either to contradict what was said in cross-examination or to corroborate what was said in chief. In either event, Section 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is 'subject to the provisions of the Indian Evidence Act' and not subject to any particular section of it. Section 157 is as much a provision of the Indian Evidence Act as Section 145 and if the former statement can be brought in under Section 157 it can be transmuted into substantive evidence by the application of Section 288.
It is quite plain that in order that a former statement before a Magistrate could be availed of under Section 157, the conditions laid down in that section must be fulfilled. The statement made by the witness before the committing court was not a statement made at or about the time when the fact took place : it could only be a statement made before an authority legally competent to investigate the fact. Therefore, the statement made before the committing court was regarded as a statement made before an authority legally competent to investigate. It is only in this view that the previous statement of the witness before the committal Magistrate could be treated as corroborative of the evidence in chief before the Court of Session, That being the position, it seems plain that the word 'investigate' used in Section 157 must be taken as a word of wide import and the restricted meaning given to the word 'investigation' in the Code of Criminal Procedure cannot be attached to it.
23. The proceedings conducted by the Magistrate for purposes of identification would certainly be proceedings by an authority legally competent to investigate and any statement made by a witness to such authority can be used to corroborate his testimony in court.
24. The courts have generally held that a statement made by a witness to a Magistrate holding a test identification parado is a statement made under Section 164 of the Code of Criminal Procedure, Only subjections (1) and (2) of Section 164 are relevant to the present purpose.
(1)Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial.
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as it, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
25. There can be no question that these statements are not substantive evidence and judicial opinion has been uniform that they can in no case be treated as substantive evidence. Accordingly this Court has nearly consistently held that the statements made by a witness to a Magistrate at a test identificaition parade can be used to corroborate or to contradict his evidence in court,
26. It is necessary to review some of the cases. In the case Emperor v. Sekendar Ali Shah : AIR1941Cal406 , it was held, that the statement under Section 104, Criminal Procedure Code, was not substantive evidence at all against the accused and its only purpose could have been to negative the evidence of the witness as given in court., No question arose in this case as to whether;the statement was available for the purpose of corroboration. In the case of Manik Gazi v. Emperor AIR 1942 Cal. 38, this Court held that the statement made under Section 164 may be used to corroborate or to contradict a statement made in court in the manner provided under Sections 157 and 145 of the Evidence Act. The observation here was of a general nature but nevertheless it clearly said that the statement under Section 164 was available for purposes of corroboration as much as for contradiction. But a. different note was struck in the case of Kanai Lal v. The State AIR 1950 Cal 418 where Chief Justice Harries expressed the view' that a statement made by a witness before an Identifying Magistrate at a test parade could only be used for purposes of contradiction. The actual words used by the learned Chief Justice are these: 'It is, I know, usual for a Magistrate to record statements made by witnesses at test identification parades. But that does not mean that those statements are admissible in evidence. They are statements made under Section 164, Criminal Procedure Code, to a Magistrate after investigation has commenced. They are not confessional statements and are not recorded as such. That being so, they can only be admissible to contradict a witness. It is true that a statement was used to contradict one of the witnesses against Kanai, but the evidence was admitted by the learned Judge as if it was substantive evidence against the accused. The evidence should not be admitted in chief and should only be admitted for one purpose, namely, to contradict the person who is alleged to have made a statement to the Magistrate'.
27. It is clear that the learned Chief Justice then thought that such statements were available only for purposes of contradiction. In the case of Sheik Pinju v. The State : AIR1952Cal491 , the learned Chief Justice appears to have doubted whether such statements were available only for purposes of contradiction. He, however, declined to go into the question at greater length since it was not necessary to do so in the Case before him. The decision was confined to the question whether the statements under Section 164 were to be treated on the foottog of substantive evidence. But in the case or Badan Pandit v. The State, Criminal Appeal No. 163 of 1951 (Cal) the same learned Chief Justice took note of the decision of the Judicial Committee in the case of Bhuboni Sahu v. The King and revised his earlier opinion and held as follows:
It appears to me that the learned Judge should have told the jury that if they were satisfied that these statements were made to the learned MagisItrate by the various witnesses as deposed to by the latter, then they could only treat the statements as corroborating or contradicting the witnesses. If they were satisfied that statements were made which were in accord with the evidence, they should have been told that at most they could regard the evidence of those statements as corroboration of the evidence of the witnesses in the box in the Sessions trial.
28. It is plain that the Judicial Committee had already ruled in Bhuboni Sahu's case that a statement made under Section 164 of the Code of Criminal Procedure can never be used as substantive evidence of the facts stated, but; it can be used to support or challenge evidence given in court by the person who made the statement. Thus the decision of Harries, C. J, in the last mentioned case conforms to the decision of the Judicial Committee in Bhuboni Sahu's case and whatever impressions to the contrary might, have been imported by the earlier decision in the case of : AIR1950Cal413 the position was completely clarified. It was made plain that the statement made by a witness under Section 164 is available to corroborate as well as to contradict his evidence in court. The position, therefore, clearly is that statements made by witnesses to Magistrates at test identification parade are available to the prosecution for purposes of corroboration of their testimony as much as they are available to the defence for purposes of contradiction.
29. Accordingly there is no substance in the contention raised by the appellants in this behalf.
30. A question may, however, arise whether the statement recorded by a Magistrate at a test identification parade is a statement under Section 164; of the Code of Criminal Procedure. It is well known that identification proceedings are held for the purpose of establishing under Section 9 of the Evidence Act, the identity of any thing or person whose identity is relevant. That provision makes the facts relevant with a view to fixing or determining the identity of a person or thing. But the machinery seems to be provided by the law of procedure. It seems plain that these proceedings are held in aid of investigation which is concerned with the collection of evidence. When the police officer receives a report of the commission of a cognizable offence or has reason to suspect its commission, he is required under Section 157 of the Code of Criminal Procedure to make forthwith a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. Section 159 provides that such Magistrate, on receiving such report, may direct an investigation or, it he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold' a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code, Concentrating on that part of the section which is relevant to our present purpose, we think that a Magistrate empowered to take cognizance on a police report, may direct an investigation on receiving the report of the police officer under Section 157 or such Magistrate may depute any subordinate Magistrate to hold a preliminary inquiry into the case. Section 1159 relates to a point of time when the offence Is under investigation and the Magistrate is given the power to aid such investigation in manner indicated in the section. It frequently happens that a Magistrate is deputed to hold a test identification parade and when the Magistrate holds one, he does it in pursuance of the provision of Section 159 of the Code. Any statement made by a witness to such Magistrate need not necessarily be viewed as a statement made under Section 164. As we have seen Section 164 provides that statement of a witness Is required to be recorded in such of the manners prescribed for recording evidence as is in the Magistrate's opinion best fitted for the circumstances of the case, The direction is that the statement should. as far as possible, be recorded in the way in which evidence is recorded. Of course the Magistrate is given a wide discretion in the matter. Generally evidence is recorded on oath. In any event, the direction is that the record of a statement under Section 164 is to conform to the manner, as far as possible, of recording evidence. The statements that are made by witnesses before a Magistrate holding a test identification parade are in actual practice, rarely, if ever, recorded in the manner prescribed for recording evidence. They are merely bald statements indicating that a particular suspect did something or said something at the time of committing the offence under investigation. These statements are generally of the briefest kind and hardly seen to approximate to any of the recognised or known modes of recording evidence. We are inclined to think that statements made by a witness to a Magistrate at a test identification parade may be treated as plain previous statements made to such Magistrate functioning in discharge of duties imposed upon him under Section 159 of the Code of Criminal Procedure rather than treat those statements as having been made under Section 164 of the Code of Criminal Procedure. Thus when a Magistrate records statements under Section 159, it may reasonably be held that the statements so made are statements before an authority legally competent to investigate. There can be no question about the Magistrate's jurisdiction and competency to hold the inquiry in terms of Section 159 and if we do not read the word 'investigate' in Section 157 in a limited sense, as we think we cannot, imposed upon it by the Code- of Criminal Procedure, then it must be held that a Magistrate acting under Section 159 is an authority legally comptent to investigate. In such view a statement before a Magistrate holding a test identification parade will be capable of being used to contradict as well as to corroborate the testimony of the witness concerned. There will be no difference in the result if the Magistrate be deemed to have recorded the statement under Section 164 or be deemed to have recorded it in an untrammelled manner under the provision of Section 159 of the Code of Criminal Procedure.
31. The view we take of statements at identification parades finds some support in the case of Samiuddin v. Emperor : AIR1928Cal500 . In that case the Magistrate who held the parade was not one of the Magistrates nominated under Section 164 to record a statement under that section. It was accordingly contended that any statement recorded by such: Magistrate could not be made use of in any way. The contention was negatived and this Court held that a test identification may be conducted by any Magistrate and even if the Magistrate holding such identification is not empowered to deal with the matter under enquiry, he can prove the statements made before him under Section 157 of the Evidence Act. It seems further to have been held that Section 164, Criminal Procedure Code, covers the case where a Magistrate acts professedly under that section and records a statement made to him.
32. We accordingly hold that when a witness makes a statement before a Magistrate holding a test identification parade, the statement thus made whether treated as having been made under Section 159 or under Section 164 of the Code of Criminal Procedure will be available for corroboration under Section 157 as well as for contradiction under Section 145 of the Evidence Act
33-38 His Lordship then considered the facts of the cases and concluded as under : On a consideration of the evidence as a whole we think that in spite of the misdirection, the jury's verdict as respects the appellant Sadhu was just and proper.
39. In the result the convictions and sentences based on jury's verdict are maintained.
40. The appeals are dismissed.
D.N. Das Gupta, J.
41. I agree.