1. This is a reference under Section 307 of the Criminal Procedure Code by the Assistant Sessions Judge of Mymensingh because he found himself in disagreement with the unanimous verdict of acquittal returned by the Jury in this case in which the accused Nabab Ali Sarkar was prosecuted and tried under Section 466 of the Penal Code. The facts on which the prosecution is based are these. In a rent suit, No. 668 of 1922, of the Third Munsif's Court at Tangail in which the plaintiffs, who were the Nawab of Dacca and others, sued the defendant, Yarat Sheikh, for arrears of rent, the defendant, Yarat Sheikh, filed some dakhilas along with his written statement pleading payment. That was an the 27th January 1928. After some adjournments, at the instance of the plaintiffs, the suit was specially fixed for hearing on the 6th March 1923. On that date, the defendant's pleader represented to the Munsif that his client was being unnecessarily harassed by the plaintiffs. On that the Munsif took up the case for hearing, went through the written statement, looked into the rent receipts, roughly calculated the amounts which they represented in the aggregate, and found that the total amounted nearly to that mentioned in the written statement. He, however, had to adjourn the case on the plaintiff's prayer to 13th March 1923. On that date the accused, who was the plaintiff's tehsildar, and was conducting the rent suit on behalf of the plaintiffs filed his hajira in Court for the first time, and the case was taken up On looking into the record, the Munsif discovered that the dakhilas examined by him just a week before and the firisth, or the list of documents, with which they had been filed, were not on the record. He then called for an explanation from his officers, and ordered them to make a thorough search, and the case was adjourned till the next day. On the next day the documents were not recovered and the case was again adjourned till the 19th March, and the search continued. On the morning of the 19th March a clerk, Osman Ali, who had been in charge of the records of rent suits, came to office before the Court hours, and found the missing papers below the table of the sheristadar. He reported the matter to the Munsif when he came, and made over the entire record to him. The suit was then taken up for hearing. The Munsif found that the dakhila, dated the 11th Agrahyan 1327 B.S., Ex. 1 in the present case, had been altered in material parts, namely, the amount entered in the column of hal (current year) was erased, and a cross mark put therein: in the column of bakeya (arrears) the amount of money was changed both in figures and in letters, and there were similar alterations in the column of total both in figures and in letters. These alterations were also noticed by the defendant's pleader Babu Lalit Chandra Dhar, P.W. 2. At the hearing of that suit, the accused Nabab Ali examined himself as a witness on behalf of the plaintiffs, and said in his examination-in-chief that nothing was paid by the defendant on account of rent and cesses for the period in suit, and in his cross-examination, he said that the dakhila was in his handwriting, and that the corrections made therein were also in his handwriting. He also admitted that he had erased some figures that were entered in the hal column through mistake, and that he also put a, cross mark on the erased portion. He further deposed that he did all this before he granted the dakhila to the tenant. Thereupon, the Munsif drew up proceedings against the accused under Section 476 of the Criminal Procedure Code, and ordered his prosecution under Section 466 of the Indian Penal Code.
2. At the trial in, the Sessions Court, the evidence adduced by the prosecution consisted of that of the Munsif who spoke to all the circumstances I have mentioned above. The pleader for the defendant in the rent suit, Babu Lalit Chunder Dhur, was also examined, and he supported the Munsif in all the particulars given by him. The bench clerk of the Third Munsif's Court at Tangail and the clerk, Osman Ali, who was in charge of the records of rent suits, were also examined. The accused in his statement in the Sessions Court said, 'defendant's pleader asked me whether the dakhila was in my handwriting. The defendant's pleader put to me this question keeping the dakhila in his hand. I then said 'it looks like my handwriting.' The said pleader showing me a scored through place in the dakhila, asked me who has done it. I, in reply to this, said, 'as the dakhila is in my handwriting, it is not unlikely that the scoring may be of mine'. In fact, the dakhila was not scored through by me.'
3. On this evidence it is argued by the learned vakil who appears for the Crown, that the accused ought to have been held guilty. I am not sure what would have been the result if the prosecution had succeeded in proving all the facts alleged by it. But an objection is taken by the learned vakil for the accused that the deposition of the accused in the rent suit, in which he admitted having made the alterations, is not admissible in evidence. Clearly, the case rests upon the question of the admissibility of this piece of evidence. I have no reason to disbelieve that when the dakhila was filed there were no alterations in it, but subsequently, when it was recovered, it was found that it had been materially altered so as to make it speak differently to what it originally signified, namely, whereas, when the Munsif and the defendant's pleader examined it, it showed that the rent claimed had been paid, when it was next examined at the hearing it was found that it supported the plaintiff's case entirely. Now, to connect the accused with the alterations that appear on the document, it is incumbent on the prosecution to prove that the alterations were made by him. Of course, the prosecution has not been able to prove that fact directly, but it relies on the admission made by the accused in his deposition before the Munsif that he had made the alterations, though at the same time he said that the alterations were made before the dakhila was issued. That being so, it is necessary to examine the question whether the deposition of the accused in the rent suit can be used as evidence in the present case.
4. The Munsif, Babu Pankajnath Gupta, is the first witness in this case. In his deposition before the Committing Magistrate, received in evidence in the Sessions Court under Section 288 of the Criminal Procedure Code, the witness said 'the deposition' meaning the deposition of the accused Nabab Ali taken in the rent suit, 'was not read over to the witness', meaning the accused Nabab Ali. 'I had no other evidence besides his admission to connect the accused with the erasure'. The Bench clerk of the Munsif, in his examination in the Sessions Court, said: The evidence given by Nabab Ali in that rent suit was not read out to him.' It is, therefore, admitted by the prosecution that the deposition which is sought to be used in this case was not read over to the accused. Order XVIII, Rule 5 of the Code of Civil Procedure, lays down that 'in cases in which an appeal is allowed'--I may mention here that in this case the value of the suit was above Rs. 50 and, therefore, an appeal lay under the law--'the evidence of each witness shall be taken down in writing in the language of the Court... and when completed, shall be read over in the presence of the Judge and of the witness, and the Judge shall, if necessary, correct the same, and shall sign it'. As the section stands, it provides that it is necessary that the deposition of a witness, in order to bind him to the statement recorded therein, should be read over to him. The question whether this provision of the law is merely directory or mandatory has been considered in very many cases. Almost all those cases were cases in which the accused was prosecuted for perjury, and it was attempted to prove his statement in order to establish the charge against him. In the majority of the cases that have been placed before us, it has been held that a deposition which was not read over to the accused or was not taken down in compliance with the provisions of Order XVIII, Rule 5 of the Civil Procedure Code, which are similar to those of Section 360 of the Criminal Procedure Code, cannot be admitted in evidence. It is not necessary to refer to all the cases. The earliest case on this point to which our attention has been drawn is the case of Empress v. Mayadeh Gossami (1881) I.L.R. 6 Calc. 762. In that case, the deposition was given in Assamese and the Judge recorded it in English, on the translation of the sheristadar, and it was not read over to the witness or translated. The learned Judges (Cunningham and Maclean, JJ.) held that the informalities which took place in recording the accused's deposition rendered the record of his evidence inadmissible; and, in the course of their judgment, they observed. 'Sections 182 and 183,' corresponding to Order XVIII, Rule 5 of the present Code, 'applied to the accused's deposition, and those sections not having been complied with, the record is inadmissible.' No reservation was made there as to the admissibility of a deposition so informally recorded in other proceedings than proceedings under Section 193 of the Penal Code. A document vitiated by the informalities referred to in that case was considered to be inadmissible in evidence. To the same effect is the case of Mohendra Nath Misser v. Emperor (1908) 12 C.W.N. 845. The facts of that case are very much similar to those of the present case, and the learned Judges (Geidt and Woodroffe, JJ.) observed: 'In the present case it is admitted that the deposition was not taken in accordance with law, as it was not taken in accordance with the provisions of Section 360 of the Criminal Procedure Code in that it was not read over to the witness in the presence of the accused or his pleader. It follows, therefore, that the deposition is not admissible in evidence, and there has been no legal proof that the petitioner made the false statements which he is charged with having made.' They relied upon the case of Kamatchinathan Chetty v. Emperor (1904) I.L.R. 28 Mad. 308. This case was followed in Emperor v. Jogendra Nath Ghose (1914) I.L.R. 42 Calc. 240. The case of Emperor v. Jogendra Nath Ghose (1914) I.L.R. 42 Calc. 240 is a case which, it may be said, has taken an extreme view in the matter. In that case what happened was this: after the deposition of the accused had been recorded the record was handed over to him. He then proceeded to read it over himself. The learned Judges were of opinion that it was not a sufficient compliance with the provisions of Section 360, Sub-section (1) of the Criminal Procedure Code, inasmuch as the sub-section required that the evidence should be read over in the presence, that is, in the hearing of the accused, in order that the accused should have an opportunity of correcting any mistake in it. It is not necessary for us to go as far as that. It is enough to remark that the present case is stronger than that case, because in the present case the deposition was not only not read over to the witness but it is not even suggested that the witness himself read it over. A somewhat discordant note has been struck in two later cases. In the case of Elahi Baksh Kazi v. Emperor (1918) I.L.R. 45 Calc. 825, Mr. Justice Richardson expressed his opinion that the 'provision requiring a deposition to be read over to a witness was in its nature directory and that, if it were not complied with in a particular case, the deposition while it might perhaps lose the benefit of Section 80 of the Evidence Act, might still be proved in some other way.' After expounding this view with reference to the provisions of the Civil Procedure Code and the Evidence Act, the learned Judge observed: 'But it is not necessary to determine this question in the present case, because the learned pleader for the appellant has not been able to satisfy me on the record as it stands that the deposition of the appellant was not, in fact, read over to him as the Code requires.' That case, therefore, is no authority for the determination of the question which we are called upon to decide in the present case. With regard to the provisions of Order XVIII, Rule 5, of the Code of Civil Procedure being directory, as pointed out by the learned Judge in that case, reference may be made to the case of Jyotish Chandra Mukherjee v. Emperor (1909) I.L.R. 36 Calc. 955 in which this question came to be considered in connection with the prosecution for forgery. There the learned Chief Justice Sir Lawrence Jenkins laid down the law on this point as follows: 'In the course of the trial, Mr. Morton, on behalf of the Crown, asked that the evidence given by a witness should be read over to him in the presence of the accused or his pleader as provided by Section 360. To this, the learned Judge replied that it would involve a great waste of time. He then said 'the section seems to me directory and not obligatory. If the witness detects a mistake, he can come back and say so. This is the universal practice in Sessions Courts.'.... I do not agree with this view, for the custom indicated by the learned Judge cannot alter the plain words of the Act. Mr. Morton's application was right and if, as has been represented to us, that section is disregarded in practice, then I have no hesitation in saying that the practice is erroneous.... But such a departure from the terms of the Criminal Procedure Code might lead to considerable embarrassment and place a serious impediment in the proper administration of justice, for there are cases in which it has been held that, for the purposes of a prosecution on the ground of perjury, depositions to which the procedure laid down in Section 360 has not been applied, cannot be properly used. I, there fore, trust that, if the practice exists, it will be discontinued in deference to the clear direction of Section 360 of the Criminal Procedure Code.' The next case in which a different view was expressed by the same learned Judge is the case of Ramesh Chandra Das v. Emperor (1919) I.L.R. 46 Calc. 895 in which almost all the previous cases on the point have been cited and examined critically. In that case the facts were that the evidence was taken down by the Judge in English, the language of the Court, and was signed by the Judge; but inasmuch as the deponent understood English, his evidence was not read over to him but he read it over himself, and at the end there was the following note initialled by the Judge 'Read over by the witness himself and admitted to be correct.' There was also a signature which might have been that of the deponent. The whole irregularity in that case, if there was any irregularity, consisted in the fact that the deposition was read over by the witness himself instead of its being read over to him as the law requires. That is a case in which the view expressed by the learned Judges could be supported without questioning the correctness of the previous decisions that an omission to comply with the requirements of Order XVIII, Rule 5 of the Civil Procedure Code, or Section 360 of the Criminal Procedure Code would make the document inadmissible. There is no case which has been placed before us dealing directly with the point which we have been called upon to decide, namely, where there is direct evidence to show that the deposition was not read over to a witness whether that deposition can be used as evidence in any subsequent prosecution against him. The real question turns upon the meaning of the words 'taken 'in accordance with law' that occur in Section 80 of the Evidence Act. In my opinion, it would be dangerous to lay down as a proposition of law that where the provisions of Order XVIII, Rule 5 of the Civil Procedure Code have not been fully complied with, which provisions are, it seems to me, a valuable safeguard against any error creeping into the record, it would be permissible to prosecute a witness on his previous statement thus informally recorded, and to supplement such omission by means of extrinsic evidence. At the same time, I feel that every departure from the letter of the law not offending against the spirit of it, should not derogate from the the evidentiary value of a record of Court.
5. It is incumbent that the deposition of a witness should be taken down in writing and, if that writing is on account of material informalities inadmissible in evidence, Section 91 of the Evidence Act apparently would bar any oral evidence to supplement the evidence with reference to that document. In this case it is not necessary for me to discuss what irregularities in observing the procedure laid down by the law would make a record inadmissible in evidence. But I am of opinion that the omission to read over the deposition of a witness to him as provided by the law would make the record of it inadmissible in a prosecution against him. In this case it has been attempted to prove, through the Munsif and the pleader for the defendant in the rent suit, that the accused did make the statement which appears in his recorded depositions. In my opinion that evidence could not be received and conceding that it could be received, I do not think that much value should be attached to it. After the lapse of such a length of time it is not possible that the witnesses should remember the exact words used by the accused, and it is just possible that the accused said in his deposition what he alleges in his statement in the Sessions Court in this case, namely, that he thought that the alterations might have been made by him because the dakhila was written by him. In any event it cannot be said that the jury were wrong in regarding the record of the deposition of the accused as of doubtful accuracy, and in giving the benefit of such doubt to him. In this view of the matter I hold that the verdict of the jury is right and should be maintained. The reference is, therefore, refused, the verdict of the jury upheld and the accused Nabab Ali Sarkar acquitted and discharged.
6. I agree. I only desire to add a few words to what has fallen from my learned brother, Mr. Justice Suhrawardy. It was sought to connect the present accused with the offence of forgery with which he had been charged by proving against him the statement which was made by him in his deposition before the Munsif in the rent suit. Mr. Sanyal, who appears for the accused person, has contended that this deposition is inadmissible in evidence because it was not read over to the accused person when he made the statement in accordance with the provisions of Order XVIII, Rule 5 of the Civil Procedure Code. Mr. Sanyal has further contended that no other evidence is admissible of the statement made by the accused in the Munsif's Court. His contention is correct. It has been laid down in the case of Empress v. Mayadeb Gossami (1881) I.L.R. 6 Calc. 762 that the omission to comply with the provisions of Section 182 (Order XVIII, Rule 5 of the present Code), of reading over the depositions to the witness would render chat statement inadmissible in evidence; and this ruling has never been departed from in this Court. The same principle was followed in the case of Mohendra Nath Misser v. Emperor (1908) 12 C.W.N. 845 where it was held that as the deposition of the witness recorded under Section 360 of the Criminal Procedure Code had not been read over to him, as required by law the deposition was inadmissible in evidence. The same principle is affirmed in Emperor v. Jogendra Nath Ghose (1914) I.L.R. 42 Calc. 240 and Kamatchinathan Chetty v. Emperor (1904) I.L.R. 28 Mad. 308. These cases were no doubt under Section 360 of the Criminal Procedure Code, but the principle is clearly the same. The reason for the principle is obvious. It is not only a question of the compliance with a certain provision of the law. It would be manifestly unfair and inequitable to use such statements against a person unless they had been read over to him, and he had an opportunity of seeing whether what has been recorded correctly represents what he said. The ruling referred to in Elahi Baksh Kazi v. Emperor (1918) I.L.R. 45 Calc. 825 no doubt seems to throw some doubt on the correctness of the former rulings, but the actual point did not have to be decided in that case, and so the remarks of the learned Judges must be considered as obiter dicta.