George Clause Rankin, C.J.
1. In this case Padam Prosad was tried at the High Court Sessions by my learned brother, Mr. Justice Jack, and a common Jury on charges laid under Sections 193 and 471 of the Indian Penal Code together with Sujauddin Ahmad and Kanhya Lal He was convicted on the unanimous verdict of the Jury of abetment of the offence of fabricating false evidence and also on the substantive charge of dishonestly using as genuine a forged document knowing the same to be forged. Kanhya Lal was acquitted of both charges and Sujauddin Ahmad was convicted of abetment of the offence of fabricating false evidence and also of abetment of the offence of dishonestly using as genuine a forged document knowing the same to be forged. On the 19th March, 1927, a Nepali girl called Rajkumari presented a petition of complaint to the Additional Chief Presidency Magistrate charging Padam Prosad with diverse offences and in particular with the offence of having sold her to one Hiralal Agarwala for immoral purposes. She alleged that she was of the age of about 14 years and asked that process issue against the accused under Section 372 of the Indian Penal Code, that is for the offence of selling a minor girl for immoral purposes. The Magistrate commenced the trial of the accused on the 14th of April, 1927. On the 17th May, 1927, he framed charges against the accused including a charge under Section 372. On the 6th of August, 1927, he gave judgment acquitting the accused. The case for the prosecution at the High Court Sessions was that Padam Prosad in the course of the trial before the Magistrate had filed and made use of a document purporting to be a certified copy of an extract from the daily register of births of the year 1808 kept in thana Dasaswamedh, Benares, with a view to show that the girl Rajkumari was over the age of 18 years at the time at which it was alleged that she had been sold; and that at the time when the document was filed and used as aforesaid it had been altered in four places--in two places 1909 had been altered to 1908 and in two places the name 'Baber' had been inserted in front of the name 'Jung Bahadur', the effect of the forgery being that whereas the genuine entry recorded the birth as on the 19th June, 1909 and the father as being Jung Bahadur, the document as forged showed the date of birth as the 19th June, 1918, and the father as Baber Jung Bahadur. It was proved at the trial that application had been made for the certificate on the 26th of April, 1927, by Sujauddin who was acting as Padam Prosad's tadbirkar in the case before the Magistrate. The certificate is in Urdu script and the alterations made in it have been made so as not to be noticeable though a careful examination discloses that the document has been tampered with. It is proved, however, that Padam Prosad does not know Urdu script. Upon the evidence, there can be no doubt that Sujauddin obtained the certificate in order that it might be altered and used as part of the defence of Padam Prosad. The sole question, so far as Padam Prosad is concerned, was the question whether or not Padam Prosad had been proved to have known that the document had been altered at the time when he used it for the purpose of his defence before the Magistrate. Upon that question the evidence before the Jury was almost entirely circumstantial. The sole purpose of the forgery was to defeat the charge under Section 372 and the Jury had to consider whether in all the circumstances of the case, it was a safe and reasonable inference to hold that the document had not been forged in the interests of Padam Prosad without Padam Prosad being well aware of what was being done in his interest. The prosecution was able to reinforce this consideration by the evidence of Mr. Pashupati Bhattacharjee, the Advocate who had conducted his defence before the Magistrate. Mr. Bhattacharjee's evidence makes it clear that Padam Prosad was well aware of the importance to him of showing, if he could, that the girl was above 18 years of age at the time of the offence charged, that Padam Prosad came from Benares and attended the conferences held on behalf of the defence that Sujauddin also attended at these conferences when the question of the proof of the girl's age was discussed; that Sujauddin was the person who read the Urdu documents and that the certificate afterwards filed before the Magistrate was produced at these conferences and was discussed. The defence, on the other hand, contended that there was no direct evidence to show that Padam Prosad knew what Sujauddin had been doing on his behalf, that he was wholly unable to read a word of the document in question, that he was relying upon Sujauddin for the preparation of the defence and for obtaining all documents which might assist the defence. They relied upon a statement of Mr. Bhattacharjee that Padam Prosad's instructions to him were that he was quite ready to cite witnesses from Benares Collectorate to prove the certificate which they were putting in. They relied also on the fact that at the close of the trial in the Magistrate's Court no attempt had been made by Padam Prosad to get the document back though it would have been quite easy to do this before any question of forgery had been, raised by Rajkumari. They relied further upon a statement made by Padam Prosad on the 24th September, 1927, when the investigating officer first questioned him about this document--the statement being that Sujauddin had told him that Rajkumari's birth certificate would be available at Benares Collectorate and that he had asked Sujauddin to take a copy of the extract and to make it over to Mr. Bhattacharjee.
2. Broadly speaking these were the considerations upon either side. It seems clear to me that the question was entirely for the Jury who had to make up their minds whether it was proved that Padam Prosad when he used the document was aware that it had been altered. There was evidence up a which the Jury were entitled to find him guilty but it cannot be said in this case that a verdict of acquittal would be unreasonable. The accused had a serious case to meet but he had at the worst a good fighting chance.
3. It may here be emphasized that at no time did the prosecution as part of their case allege or undertake to prove what the age of the girl was. No evidence was called upon that point. Rajkumari herself could not very well prove the date of her birth, but in any case no question was asked of her in examination in chief bearing upon the question of her age. Some questions were asked of her in cross examination for the purpose of showing that she had given different dates at different times. It is true that each of these different statements, if true, made her out to be a minor at the material time.
4. In the fiat of the Advocate-General, which has led to these proceedings under Clause 26 of the Letters Patent, a number of matters are referred to as grounds of objection taken by Padam Prosad to the learned Judge's conduct of the trial and to his charge to the Jury. Excepting upon two points it is reasonably clear to me that these objections have no substances. The charge of the learned Judge was fair, lucid and accurate, well calculated to apprise the Jury of the real questions in the case and the state of the evidence upon the points in controversy. Two objections, however, require careful consideration.
5. The learned Counsel who opened the case for the prosecution insisted upon reading to the Jury in his opening the whole of Rajkumari's petition of complaint against Padam Prosad in the Section 372 case. That petition alleged against Padam Prosad various highly prejudicial matters--that he was a man of loose morals, that he was notorious for seducing Nepalese girls, that he used to keep such girls as concubines, that he had assaulted and raped the complainant on diverse occasions. It was clearly necessary that the Jury should know that the proceedings before the Magistrate were proceedings upon the charge of selling a minor girl for immoral purposes but these other allegations had, prima facie, no bearing upon the question whether certificate of birth was forged or not and if so whether this was known to Padam Prosad. The reading of this petition was objected to by the Counsel for the accused and in the circumstances I confess to being somewhat astonished that the Crown Counsel did not at once appreciate that the introduction of the notice of the Jury at the beginning of the case of all these highly prejudicial matters was unnecessary and unfair to the accused--a thing which could do no good whatever and was highly calculated to complicate the issues. The course adopted by Counsel for the Crown threw upon the Judge, at the very commencement of the case, the necessity of coming to a decision immediately and in advance of the evidence. So far as criminal cases are concerned, the opening for the prosecution ought always to be confined to matters which are necessary to enable the Jury to follow the evidence when it is brought before them. This is not the stage of a case at which doubtful questions of admissibility should be either raised or decided. Whether a document is admissible or inadmissible is a matter which should always be ruled upon at the time the document is being proved or put in or the question asked of the witness In many cases a thing may be good evidence at one stage of the case and inadmissible at another. It is frequently necessary to give evidence to lay the foundation which justifies a question or the putting in of a document. The opening speech of the Counsel for the prosecution does not afford a proper occasion for the determining of such questions.
6. It appears to me that the petition of complaint of Rajkumari was a document which the prosecution were entitled to put in. Even if it had been put in, there was no reason however, why the whole of it should be read to the Jury as its only relevance was that it showed that Padam Prosad was being prosecuted on a charge which involved that the girl was a minor girl. The unfortunate consequence in this case of the learned Counsel insisting upon reading this document to the Jury in his opening was, first, that when the time came to prove the document the learned Counsel apparently forgot to prove it. The record shows that when Mr. Bhattacharjee was giving evidence the document was marked for identification. A second consequence was that at the end of the trial the matter was overlooked. The learned Judge did not have it in mind to caution the Jury that they must not allow these unproved accusations against Padam Prosad to affect their judgment. The result is that the defence is in a position to complain before us that prejudicial matter was read to the Jury and was not properly proved thereafter; also that no warning was given to the Jury. Now it is quite true that the Jury had before them the fact that the Magistrate had acquitted Padam Prosad. Unless, however, some caution was given to the Jury this circumstance by itself would not necessarily efface from their minds the impression created by the accusations which they had heard. They may have thought that Padam Prosad had been acquitted merely because the girl was not shown to be a minor, that his acquittal may have been due in part or in whole to the forged certificate of birth which had been produced in his defence. The Judge's charge contains no discussion which would clarify the minds of the Jury upon any such point though it is quite true that an intelligent Juryman listening to the charge of the learned Judge and appreciating it properly would see that the learned Judge proceeded in no way upon these accusations and invited them to deal with the case on the footing that the Jury were not concerned as to the age of the girl and were not concerned whether Padam Prosad was acquitted or not or on what grounds he was acquitted. This the learned Judge in one passage stated to the Jury expressly; but it is not equivalent to a caution to the effect that highly prejudicial matter bad been brought before them and that it was their duty to see that their verdict was in no way affected by it.
7. The second point which requires examination is this: The prosecution, as I have said, at no time undertook to prove that the girl was in fact a minor. They were not, therefore, in a position to ask the Jury to hold that because the girl was a minor, because Padam Prosad was related to the girl or had other means of knowing the truth, he must have known that she was a minor. Rajkumari was, however, recalled at the instance of the prosecution to give evidence that in August 1926 Padam Prosad was acting as interpreter in a Court at Benares which was investigating a charge against certain persons of having kidnapped Rajkumari; and that in the course of that case Rajkumari's grandmother, Setharani, gave evidence and stated that Rajkumari's age was 15 or 16. This evidence was objected to by the defence but was allowed by the Judge and it appears from the shorthand notes that Counsel for the prosecution stated that he did not want the statement of Setharani to go in for the purpose of proving the truth of that statement of fact, but only for the purpose of proving that such a statement was made and Padam Prosad knew of it. The recorded deposition of Setharani was produced and accepted as evidence. Whether or not this deposition was properly proved and accepted under Section 80 of the Evidence Act is a matter about which a question has been raised. I am not myself satisfied that there is under Section 80 of the Evidence Act any objection to this document on the mere question of sufficiency of proof, but it is unnecessary in my opinion to discuss that matter. That learned Judge in his charge dealt with this portion of the evidence in the following manner:
Some evidence has been adduced to show that Padam Prosad knew perfectly well that the girl was under 18. That is not very material; but if he knew that she was under 18 that would be an additional reason for supposing that he knew the document to be forged. The evidence of Setharani, who gave evidence in Benares that the girl was at that time 15, has been put in, and some other statements of Rajkumari about her age, one which deals with a statement she made in a petition, not on oath, in which she said she was 14. We are not concerned as to whether Rajkumari stated her age correctly or what her age really was. If on the evidence you are of opinion that Padam Prosad must have known that she was under 18, that would be a reason for concluding that he knew the document was forged.
8. In my opinion this passage in the charge of the learned Judge amounted to a misdirection. It was not open to the Jury to find that the girl was in fact under IS and it was not open to them to conclude that Padam Prosad knew that the girl was under 18, If on some occasion he had heard the girl's grandmother make a statement about her age a statement which might be true or false which he might believe or disbelieve, it in no way follows that when a certificate purporting to be a certificate of her birth was produced, he would know that the certificate was forged. In this case the prosecution had to rely entirely upon circumstantial evidence arising out of the fact that the document had been forged for the benefit of Padam Prosad and that Padam Prosad had been shown to be taking a close interest in the preparation of his own defence. Padam Prosad knew at least from March 1927 that he was being prosecuted on the footing that the girl was under age. This was being solemnly alleged against him as a thing which the prosecution would attempt to prove in a Court of Law. It added nothing whatever to the prosecution case to offer proof that he had heard the girl's grandmother say that she was 15 or 16 unless that statement was to be taken as a true statement and unless the Jury were to be invited to hold, first, that the girl was in fact a minor and, secondly, that Padam Prosad in the circumstances knew of this fact In my opinion it was not open to the Jury to conclude that Padam Prosad knew the certificate to be forged because he knew that she was under 18. If such a statement as Setharani's was admissible in evidence at all it was very necessary that the Jury should be cautioned that they must not take that statement as in any way tending to prove the age of the girl. No such warning was given to them, on the contrary they were told 'If on that evidence you are of opinion that Padam Prosad must have known that she was under 18, that would be a reason for concluding that he knew the document was forged'. As the case was conducted at the trial, the prosecution, while not professing to prove the girl's age, in the end were given the benefit of Setharani's evidence in another case upon that very point.
9. In my opinion it is not possible to suggest that the verdict of the Jury may not very well have been affected by the direction given to them upon this matter. I have a sufficiently high opinion of common Juries in Calcutta to induce me to doubt whether the absence of a caution with reference to the prejudicial matter in Rajkumari's petition of complaint would by itself have made it necessary to interfere with the verdict. But on the point as to Padam Prosad's knowledge of her age I think the case is very different. The verdict of the Jury cannot be allowed to stand unless we are of opinion that the same verdict would have been arrived at had they been correctly and sufficiently directed Emperor v. Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 24 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr.L.J. 849 (F.B.) It is not open to us to direct a re-trial and I am not prepared to hold that the Jury, assuming it to be a reasonable Jury, would have convicted the accused if the direction complained of had not been given. In my opinion the verdict and sentence must be set aside and Padam Prosad must be acquitted and discharged.
10. It was contended before us that Article 162 of the First Schedule to the Limitation Act, 1908, applied to proceedings under Clause 28 of the Letters Patent. This contention was overruled at the hearing. The phrase 'to review the case' as used in Clause 26 applies as much where a point of law is reserved by the trial Judge as where the Advocate General has given a certificate. I am far from saying that inordinate delay may not be a matter for consideration by the Advocate General at the time when he is called upon to consider whether a certificate should be granted. But we are not now dealing with an 'application for review of judgment' within the meaning of Article 162.
C.C. Ghose, J.
11. This is an application for review of a criminal case on the certificate of the Advocate-General of Bengal under Clause 26 of the Letters Patent of 1865. The petitioner, Padam Prosad Upadhya, was tried on the 8th and 9th January last at the Criminal Sessions of this Court by Mr. Justice Jack and a common Jury on charges under Sections 193 and 109 read with 193 and 471 and 109 read with 471 of the Indian Penal Code. The accused pleaded not guilty to the said charges. There were two other persons named Sujauddin and Kanhya Lal who were tried along with the accused. The Jury brought in an unanimous verdict of guilty against the present petitioner and Sujauddin and of not guilty in favour of Kanhya Lal. The present petitioner was sentenced by the learned Judge to undergo rigorous imprisonment for a period of three years.
12. It appeared at the trial that one Rajkumari had filed a petition of complaint against the petitioner in March, 1927, in the Court of Mr. A.Z. Khan, Additional; Chief Presidency Magistrate, Calcutta, charging him with having committed an offence punishable under Section 372, Indian Penal Code. The petitioner was tried by the said Mr. Khan, the trial having lasted from the 14th April, 1927 to the 6th August, 1927; but ultimately the petitioner was acquitted. An application to the High Court for leave to appeal against the said order of acquittal was rejected. It was alleged that during the trial of the above-mentioned case before the said Magistrate, the present petitioner had fabricated false evidence for the purpose of being used in judicial proceedings by inserting a word, namely, 'Babar' and by altering a certain date in two places in a document purporting to be a certified copy of an entry in a Register of Births, kept in Benares relating to the birth of Raj kumari and with having used as genuine the said document knowing or having reason to believe the same to be forged. An application was subsequently made on behalf of the said Rajkumari to the said Magistrate in order that a complaint against the petitioner might be made under Section 476, Criminal Procedure Code, but the Magistrate rejected the same on the 31st October, 1927. There was an application to this Court in its Revisional Jurisdiction. This Court directed the prosecution of the present petitioner on the 23rd May, 1928. The learned Chief Presidency Magistrate took cognizance of the case and ultimately committed the petitioner to stand his trial at the Criminal Sessions of this Court. At the trial before Mr. Justice Jack, the entirety of the petition of complaint of Rajkumari dated the 19th March, 1927, was read out to the Jury. This was objected to on behalf of the petitioner but the objection was overruled by the learned Judge.
13. The petition of complaint of Rajkumari which initiatad the proceedings against the present petitioner in 1927 contained, among other things, the following allegations: 'That your petitioner knew the accused to be a man of loose morals, notorious for seducing Nepalese girls from Nepal, some of whom he used to keep as concubiness and some of whom he used to sell to others and as such your petitioner did not like to go to the house of the accused and accordingly with the help of one Gobind Kishori's wife she removed to the house of Govinda Kishori with a view to avoid being forced to go over to the house of the accused. That thereafter the accused had your petitioner forcibly removed to his own house at Benares where she was intimidated, assaulted and raped by the accused on diverse occasions and your petitioner was kept in a state of complete confinement for about two months and your petitioner found herself absolutely without any help to protect against the ill treatment meted out to her. That in the month of September, 1926, your petitioner was brought down to Calcutta by the accused along with six or seven other young girls and stopped with Hiralal and after some time the accused left Calcutta along with the other girls after selling your petitioner to the said Hiralal Agarwalla for Rs. 1,300 for immoral purposes.'
14. There was another incident at the said trial before Mr. Justice Jack to which attention has been called. It appears that a criminal case had been started in Benares against one Ram Prasad and others for having kidnapped Rajkumari. This was in August 1926, just before Rajkumari came to Calcutta. In that case the grandmother of Rajkumari, named Setharani, gave evidence and the present petitioner acted as an interpreter in that case. It was alleged that Sethirani in her deposition in that case had stated that Rajkumari was 15 or 16 years of age. Learned Counsel for the Crown wanted to recall Rajkumari and to ask her about the said statement of Setharani for the purpose of showing that the petitioner knew that such a statement had been made. In this connection the following discussion took place before the learned Judge:
Mr. A.K. Basu: I want to re-call Rajkumari and put one or two questions about the Benares case. Padam Prosad was the interpreter in that case and as such was aware that Setharani, the grand-mother of Rajkumari, said in her deposition that Rajkumari, was 15 or 16 years of age.
Mr. Chatterjee: I object to any statement of Setharani supposed to have been made by her in the Benares Court being proved here by Rajkumari. Such a thing cannot to legally done in view of the fact that Setharani in living, and further that any statement by her cannot in any way be relevant to any issue in this case between the Grow a and the accused.
Mr. Basil: I do not want the statement of Setharani to go in for the purpose of proving the truth of that statement of fact, but only for the purpose of proving that such a statement was made and Padam Prosad knew of it.
Court: I allow that.
15. The learned Judge allowed the evidence of Setharani in the Benares case to be put in evidence and it was marked Ex. 13. Apparently it wag sought to be argued on behalf of the prosecution that it had been proved through Rajkumari that the petitioner had heard 8etharaai say in the Benares Court that in August 1926, she (Rajkumari) was 15 or 16 vears of age and that that fact went to show that although the petitioner knew Rajkumari to be below 18 at the time of her sale for immoral purposes, he was trying to rely on a document which purported to prove that she was above 18 at the time and that in the circumstances it could be inferred that the petitioner must have known that the said copy of the Birth certificate was a fabricated or false document. The learned Judge referred in the course of his charge to the Jury to the evidence of Setharani in the following words: 'Some evidence has been adduced to show that Padam Prosad knew perfectly well that the girl was under la. That is not very material; but if he knew that she was under 18 that would be an additional reason for supposing that he knew the document to be forged. The evidence of Setharani, who gave evidence in Benares that the girl was at that time 15 has been put in, and some other statements of Rajkumari about her age, one of which deals with a statement she made in a petition, not on oath, in which she said she was 14. We are not concerned as to whether Rajkumari stated her age correctly or what her age really was. If, on that evidence you are of opinion that Padam Prosad must have known that she was under 18, that would be a reason for concluding, that he knew the document was forged.'
16. At the hearing of the present application for review under Clause 26 of the Letters Patent it was strenuously argued by Mr. Chatterjee on behalf of the petitioner (1) that under no circumstances could Counsel for the prosecution have been allowed to read to the Jury the entirety of Rajkumari's petition of complaint dated March 1927 and that the procedure adopted by the prosecution was wholly wrong and unjustifiable inasmuch as the petition of complaint was not tendered in evidence and consequently the petitioner was deprived of the opportunity of cross-examining Rajkumari on the statement made by her in the said petition of complaint and of removing from the minds of the Jury the unfavourable impression that must have been created by the reading of the petition of complaint. Mr. Chatterjee further argued (2) that Setharani's evidence in the Benares case was not admissible in evidence in this trial and had not been legally admitted and (3) that the portion of the learned Judge's charge to the Jury set out above was calculated to materially prejudice the Jury against the petitioner.
17. Before I proceed to consider the three objections summarised above, I desire to make a passing reference to the scope of Clause 26 of the Letters Patent. I do not desire to go through the numerous cases on this point and it is sufficient for me to observe that the available authorities are collected in the cases, Faith Chand Agarwal v. Emperor 38 Ind. Cas. 945 : 44 C. 477 : 24 C.L.J. 400 : 21 C.W.N. 33 : 18 Cr.L.J. 385 (F.B.), Emperor v Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 24 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr.L.J. 849 (F.B.) and Emperor v. Barendra Kumar Ghose : AIR1924Cal257 . The trial Judge may reserve a point of law or points of law for the opinion of the High Court or the Advocate General may certify that in his judgment there is an error in the decision of a point or points of law decided by the trial Judge or that a point or points of law which has or have been decided by the trial Judge should be further considered. The Court then reviews the entire case or such part of it as may be necessary and finally determines such point or points of law reserved or certified as the case may be and 'thereupon' may alter the sentence passed by the trial Court and pass such judgment and sentence as shall seem right to the Court. The word 'thereupon' has been construed to mean that the determination of the point or points of law reserved or certified must be in favour of the prisoner before the Court can interfere with the conviction and sentence, It has been definitely held that if it be found that the opinion of the trial Judge on the point or points reserved or certified cannot be supported, it is not open to this Court to direct a retrial. No doubt, the Court has power under Clause 26 to examine the evidence and determine for itself whether after the exclusion of the evidence or matter which may be considered inadmissible the residue on the record is sufficient to justify the conviction. But there is a large mass of authority in support of the view that the Court will not substitute its own finding for the verdict of the Jury and that it must consider whether the evidence or matter improperly admitted was of such a nature that it possibly may have considerably influenced the minds of the Jury and whether it was reasonably certain that the Jury would, not might, have acted on the unobjectionable evidence if the wrongly admitted evidence or matter had not also been presented to them. Further it has been held that Section 537 of the Code of Criminal Procedure has no application to a case under Clause 26 of the Letters Patent Per Mookerjee, J. in Fateh Chand Agarwal v. Emperor 38 Ind. Cas. 945 : 44 C. 477 : 24 C.L.J. 400 : 21 C.W.N. 33 : 18 Cr.L.J. 385 (F.B.) although I am not unmindful of the fact that a contrary view has been taken by Mr. Justice Rankin as he then was in the case of Colin Mackenzie Mackay v. Emperor 93 Ind. Cas. 33 : 30 C.W.N. 276 at p. 285 : A.I.R. 1926 Cal. 470 : 27 Cr.L.J. 385 : 43 C.L.J. 310 : 53 C. 350 (F.B.). These being the guiding considerations for determination of an application under Clause 26 of the Letters Patent, I now proceed to consider the objections taken on behalf of the petitioner seriatim. It is a rule of universal application that in a criminal trial, Counsel for the prosecution in opening the case to the Jury, can only state all that it is proposed or intended to prove in the case, so that the Jury may see if there is any discrepancy between the opening statements of Counsel and the evidence afterwards adduced in support of them and that it is wholly improper for Counsel for the prosecution to open any matter to the Jury in respect whereof no evidence is intended to be or can be adduced at the trial. In this case, learned Counsel for the prosecution has explained before us that his only object in placing the petition of complaint of Rajkumari before the Jury was to draw attention to the fact that she had stated therein that she was 14 years of age. If that was the sole object, it was a grave error, in my opinion, on the part of learned Counsel for the prosecution to read out to the Jury the entirety of the petition of complaint by Rajkumari containing, as it did, the statement set out above and it was a procedure which was rightly objected to by Mr. Chatterjee on behalf of the petitioner. It was a procedure which should never have been allowed. It is elementary that very great care must be taken by Counsel for the prosecution in the observations he makes to the Jury R. v. Rudland (1865) 4 F. & P. 495 and that topics of prejudice connected with the character of the prisoner should be carefully excluded R. v. Bloom (1910) 74 J.P. 183 : 4 Cr. App. Rep. 30. The fiction of law, in criminal cases, is, that the Judge is Counsel for the prisoner. It may not be inappropriate in this connection to recall the famous words of Kenyon, C.J. in R. v. Wakefield (1799) 27 Str. Tr. 679 where he observed: 'I have been reminded that I sit here as Counsel for defendant. I certainly do so, so far as to interpose between him and Counsel for the prosecution and to see that no improper use of the law is made against him and that no improper evidence is given to the Jury'. These words have been quoted with approval in R. v. O'Connell (1844) 5 St. Tr. (N.S.) 12. It is also beyond the region of doubt that Counsel for the prosecution ought not to struggle to obtain a conviction, but should regard themselves rather as ministers of justice, assisting in its administration than as Advocates R. v. Banks (1916) 2 K.B. 621 : 85 L.J.K.B. 1657 : 115 L.T. 457 : 80 J.P. 432. In my opinion, there can be no doubt that the allegations in the petition of Rajkumari were such as must have and could not but have influenced the Jury against the petitioner at the very beginning of the trial. The Jury, in the circumstances, could not possibly get out of their minds the fact that the petitioner was a depraved person. This was specially unfortunate because of the fact that the learned Judge in the course of his charge to the Jury did not tell the Jury, as he should have done, that the petition of complaint had not been admitted as evidence in the case, that the contents thereof, which were objected to, were irrelevant to the matter in issue at the trial before the Jury, and that the Jury were not to pay any attention whatsoever to the contents of that petition. This was non-direction and it was non-direction of such a character as to amount to misdirection. It was stated before us that Counsel for the prosecution had warned the Jury that they were not to act on the allegations in the petition of complaint. This, in my opinion, was not enough. The learned Judge, in the events which had happened, should have himself warned the Jury and taken steps to repair the mischief that had been done. It was further stated before us that learned Counsel for the petitioner did not ask the learned Judge to caution the Jury in the matter of the contents of the petition of complaint of Rajkumari. I do not agree that after what had happened when the petition was read out to the Jury, it was not possible or practicable for learned Counsel for the petitioner to submit anything further to the learned Judge. In my opinion it was open to the learned Counsel for the petitioner to draw the attention of the learned Judge to the matter at the time when he charged the Jury. But the fact that learned Counsel did not do so is, in the circumstances, really immaterial. A grave omission to direct the Jury on a vital point cannot be made good merely by Counsel's calling attention to it at the termination of the summing up R. v. Willet (1922) 16 Cr. APP. R. 146. It is not really necessary for me to pursue the question raised by learned Counsel for the petitioner as to whether or not, in the circumstances, he should have been given an opportunity of cross examining Rajkumari for the purpose of showing that the allegations in her petition were not founded on fact. In my opinion, as indicated above, the allegations in that petition, to which objection had been taken, were clearly irrelevant; it would have been sufficient if learned Counsel for the prosecution had briefly opened the matter to the Jury by saying that a case under Section 372, Indian Penal Code, had been started against the petitioner on the complaint of Rajkumari and that he had been acquitted of that charge. It is not necessary to elaborate the matter farther but it is impossible to resist the conclusion that an atmosphere of prejudice had been allowed to be created by reason of what has been referred to above and that there are grave reasons for concluding that the chances of the petitioner in obtaining a fair trial at the hands of the Jury were seriously jeopardised.
18. As regards Ex. 13, being the evidence of Setharani I am not prepared to say, having regard to the provisions of Section 80 of the Indian Evidence Act, that the document, which purported to be a record or memorandum of the evidence of Setharani in the Benares case, could not be admitted in evidence without formal proof. Section 80 of the Evidence Act does not deal with the question of admissibility of the documents referred to therein, but simply dispenses with the necessity of their formal proof by raising the presumption that everything in connection with them had been legally and correctly done i.e. (i) that the documents purporting to be record of evidences or statements or confessions are genuine, (ii) that the statements as to the circumstances under which they were taken, made by the officer who affixed his signature are true and (iii) that the evidence, statement or confession was duly taken. Assuming that the identity of the deponent Satharani was established on the evidence of Rajkumari the evidence was admissible. In the circumstances of the present case, however, the effect of the evidence of Setharani against the petitioner was so slight that the Jury ought to have been properly cautioned. Padam Prosad was not a party to the Benares case; he acted merely as an interpreter and he might or might not have remembered when the copy of the Birth Certificate was produced in the Magistrate's Court what Setharani had stated about Rajkumari's age. The learned Judge, however, used words, in the extract from his charge to the Jury set out above wherein there was an undercurrent of suggestion that the petitioner knew or had the means of knowing that Rajkumari was under 18 and that itself was a reason for concluding that he knew the document referred to at the trial, namely, the copy of the Birth Certificate, was forged. On the record as it stood, it was not, in my opinion, open to the Jury to conclude that Padam Prosad knew that she was under eighteen years of age. Further the learned Judge made a reference to Rajkumari's petition, which had not been admitted in evidence, although marked for identification. I am not unmindful that the charge has to be taken as a whole but I do not find in the charge any neutralising expression. These circumstances, along with what has been stated, are, in my opinion, sufficient for coming to the conclusion that the present case has been brought within the rule laid down in Emperor v. Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 24 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr.L.J. 849 (F.B.) and that this Court will hesitate to substitute its own finding on the residue on the record for the verdict of the Jury. In my opinion, the question arising on the evidence of Setharani, whether Padam Prosad knew that Rajkumari was under 18, should not have been left to the Jury in the words which the learned Judge saw fit to use and that it would have been advisable if the Jury had been told that it was a matter for them to find out on the entire evidence on record whether there was any justification for the theory that Padam Prosad knew that Rajkumari was under 18, seeing that the prosecution did not adduce any substantive evidence on the point.
19. In conclusion it is impossible for me to say that the Jury were not very considerably influenced against the accused on the matters referred to above and, that being so, I would, therefore, set aside the conviction and sentence and direct that the prisoner be acquitted and discharged.
20. I agree in the order which the learned Chief Justice has passed.
21. I concur in the judgment delivered by my Lord the Chief Justice.
22. Padam Prosad was tried under Section 372, Indian Penal Code, on the charge of having sold Rajkumari a girl under 18 years of age for purposes of prostitution. He was acquitted. He was subsequently charged at the High Court Sessions with having dishonestly used at that trial (and abetted the fabrication of) a forged birth certificate which purported to show that Rajkumari was over 18 years of age. His defence and that of his co-accused Sujauddin (his tadbirkar in the case under Section 372) was that they were unaware that the birth certificate was forged. They were both convicted. (Padam Prosad of the principal offence under Section 471 and Sujauddin of abetment, and both of abetment of fabrication of the birth certificate.)
23. In the present application under Section 25 of the Letters Patent the principal ground urged for review of Padam Prosad's conviction is that the trial was vitiated by the admission in evidence of Rajkumari's complaint in the case under Section 372, Indian Penal Code, and by the omission to warn the Jury not to be influenced by the allegations therein against the accused.
24. The original record of that complaint produced at the trial bears the Magistrate's endorsement to the effect that Rajkumari stated its contents on oath. Under Section 80 of the Evidence Act, therefore, the Court shall presume it to be genuine and under Section 4 of the Evidence Act the Court shall presume it to be proved unless and until it is disproved. It was admitted in evidence in that it was read over to the Jury in opening the case by the Counsel for the Crown. It was admitted under Section 9 of the Evidence Act to show that there was such a case under Section 272, Indian Penal Code. It is suggested that inasmuch as there are allegations in the complaint which might prejudice the Jury against the accused the complaint should not have been admitted. These allegations are that the accused was notorious for seducing Nepalese girls and that Rajkumari was intimidated, assaulted and raped by him while in his custody previous to being sold for purposes of prostitution. These allegations, bad as they are, did not add, in reality, very greatly to the charge that he had sold her, a girl under Section 18, for purpose of prostitution--a charge which necessarily had to go to the Jury being the charge at the trial of which the forged certificate was used. The trial cannot, therefore, be said to have been materially affected by the reading over of the complaint in its entirety.
25. As regards the omission in the charge of a caution to the Jurors not to allow their minds to be influenced by the allegations in this petition against Padam Prosad's character, no great weight can be attached to this omission when it is borne in mind that, at the time the petition was admitted, it was expressly stated by the Court and by the Advocate for the Crown that the petition was put in merely to prove that there was a complaint under Section 372, Indian Penal Code, by Rajkumari, and the Jury were told not to allow themselves to be prejudiced by the allegations against the accused contained therein. Further the learned Counsel for the defence who addressed the Jury (as stated in the charges at considerable length, warned them (as he has told us) not to let their minds be influenced by these allegations. The Jurors must have realised that the Judge approved of this part of his address which was unchallenged and that the learned Advocate was entitled to warn them to totally disregard these allegations. Finally the Jury were informed that the accused Padam Prosad was acquitted in that case and no attempt was made to lead the Jury to believe that he was acquitted merely because it was found that the girl was above 18 years of age. Had this omission to warn the Jury finally been felt to be of any importance at the time, I have no doubt the learned and experienced Advocate for the defence would have directed the attention of the Court to the omission. I do not think it at all probable that the jurors were influenced by these allegations which were merely included in the original petition of Rajkumari read out to them at the opening of the trial and not specifically alluded to thereafter. Nor do I think the unanimous verdict of the Jurors should be set aside on the mere speculation that these allegations might have influenced them to some extent when it is clear that the verdict was entirely justified by the evidence.
26. The only other ground for review which has been seriously pressed is that Setharani's evidence in that case (including a statement that Rajkamari's age was fifteen or sixteen) was not proved, and was not admissible in evidence in that case nor was Rajkumari's evidence about it admissible.
27. Setharani's statement was that of a witness in a judicial proceeding purporting to be signed by a Magistrate and produced before the Court. It must, therefore, be taken to be proved under Section 80 of the Evidence Act read with Section 4.
28. The fact that Padam Prosad had reason to believe the girl to be below 18 was relevant under Section 11 of the Evidence Act since it might make it highly probable that he knew that the birth certificate which showed her to be above 18 was forged. The fact, therefore, that Padam Prosad heard the girl's grandmother state on oath before a Magistrate that her age was 15 or 16 was relevant and admissible in evidence. Rijkumari's statement in this connection was necessary and admissible to show that it was this Padam Prosad who was present in the Court interpreting Setharani's evidence on that occasion and that the Setharani who deposed was her grandmother and was referring to herself. Rajkumari's evidence as to the statements of Setharani was only necessary to show that it was this particular occasion to which Rajkumari was referring and her evidence was, of course, not admissible to prove what statements were made.
19. It was, however, urged that the Jury were misdirected regarding the application of this evidence in the following passage in the charge: 'Some evidence has been adduced to show that Padam Prosad knew perfectly well that the girl was under 18. That is not very material. But if he knew that she was under 18 that would be an additional reason for supposing that he knew the document to be forged. The evidence of Setharani, who gave evidence in the Benares Court that the girl was at that time, 15, has been put in with some statements of Rajkumari about her age, one of which deals with a statement she made in a petition, not on oath, in which she said she was fourteen. We are not concerned as to whether Rajkumari stated her age correctly or what her age really was. If, on that evidence, you are of opinion that Padam Prosad must have known that she was under, 18, that would be a reason for concluding that he knew the document was forged'.
20. It must be borne in mind that the Jury could have been under no misapprehension as to the purpose for which Setharani's evidence was admitted inasmuch as this was discussed in their presence when its admission was objected to by the defence, and they were told that it was not admissible in proof of the age of Rajkumari but merely to prove that Padam Prosad heard her grandmother make this statement. This appears from the statement of the learned Crown Counsel which the learned defence Advocate has admitted to be correct. Now in this passage in the charge to which objection has been made the Jury are directed that if they think that Padam Prosad, (having heard her grandmother Setharani make this statement about the girl's age or on account of statements made by the girl herself) must have considered the girl to be under 18 that would go to show that he knew the birth certificate was forged. This is what that passage in the charge was obviously intended to convey to the Jury and what I believe it did convey to them when taken with the remainder of the charge. It is, I think, in no sense a misdirection.
21. The Jury were told that this evidence was not very material nor was it; for it was not really necessary to support the charge in this case that Padam Prosad should have any opinion as to the age of the girl, and, in any case since Padam Prosad was Rajkamari's uncle by marriage and used frequently to visit Setharani his mother-in-law while Rajkumari was living with her at Benares, it was clear that he had every opportunity of knowing the girl's age. In these circumstances the admission of Setharani's statement in evidence can, I think, in no way have affected the decision of the case, for the Jury would, most probably, have judged Padam Prasad's belief as to the age of the girl, if they thought it of any consequence at all, by their own opinion of her age on seeing her in the witness-box. It was probably her appearance which led to the Court to use in the charge the words 'must have known' instead of 'must have thought' in reference to Padam Prasad's opinion. Even if it is held that the Jurors were wrongly led to conclude that Padam Prosad believed the girl to be under 18 by the direction in the charge regarding the application of Setharani's evidence, the fact of such belief on his part would only be a very minor point to be considered in deciding whether he knew the certificate to be forged. The Jury were, I think, bound to base their finding as to his guilty knowledge almost entirely on the manner in which the certificate was obtained and used by him and, as reasonable men with some experience of human affairs, they would most certainly, I think, on that evidence alone conclude that he must have known that the birth certificate was forged.
22. Under Section 167 of the Evidence Act the improper admission or rejection of evidence shall not of itself be a ground for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised, that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision or that if the rejected evidence had been received it ought not to have varied the d elision.
23. The section is imperative and applies to any decision in any case and, therefore, necessarily to the decision of the High Court when exercising its powers under Clause 26 of the Letters Patent. It seems to me that the circumstances in which the forged birth certificate was obtained and used in the case make it practically certain that Padam Prosad as well as Sujauddin must have known it to be forged 'Agents et consentientes pari poena plectentur' Reference has been made to the fact that the accused had offered to bring evidence to prove the birth certificate. This was, I think, merely bluff. Padam Prosad was throughout in close consultation with the Pleaders conducting the case, and, if he thought the certificate genuine, why did he not put it in evidence to rebut the elaborate expert evidence of the two I.M.S. doctors who said she was under 18. If genuine this piece of evidence would have made his acquittal certain: in fact the prosecution case must have been withdrawn immediately. Again great virtue has been attached to the omission of the accused to withdraw the forged birth certificate immediately, but, in fact, its withdrawal after the case would by no means have prevented his successful prosecution for filing it, for the fact that it had been filed was on record, and the evidence of forgery wad independent of the appearance of the document. On the one hand, to leave the certificate on the record would disarm suspicion, on the other hand, an application for its return would have reminded the authorities of its existence and of the allegation that it was forged. The defence, in the absence of Sujauddin, have now skilfully thrown the blame on him, and would have the Court believe that Padam Prosad was carefully kept in the dark as to the immense risk his agent Sujauddin was running on his behalf in obtaining and using a forged birth certificate. The Jurors did not take this view. On the other hand, they naturally concluded that in the circumstances Padam Prosad must have known of the forgery, and their opinion could not, I think, have been influenced by want of detail in the charges. The charge was intentionally abbreviated as stated in the opening, in view of the exhaustive manner in which the defence case had been presented to the Jury by the learned Advocate for the defence. The powers of the High Court under Clause 26 of the Letters Patent are perfectly clear. The Court is to review the entire case or such part of it as may be necessary, and finally determine the point or points of law reserved or certified and thereupon may alter the sentence passed by the trial Court and pass such judgment and sentence as shall seem right to the Court. A Statute must be taken to mean what it says, and it must be remembered that, if the words of a Statute be plain and clear, it is not for the Court to raise any doubt as to what they mean. I have discussed the case with reference to the probable verdict of a Jury had there been no defect or omission in the charge, in deference to the views of the learned Judge who holds that this should be the criterion, but, with very great respect to these views, it must always be remembered that it is open to the Court in the words of the Statute, to pass such judgment and sentence as shall seem right to the Court. It would, therefore, be superfluous to cite decisions such as Queen-Empress v. O'Hara 17 C. 642, and others showing that the Court can, on review, examine the evidence for itself and determine without reference to the probable verdict of a Jury, whether excluding the inadmissible evidence, the residue is sufficient to justify the conviction. As pointed out by Sir Asutosh Mookerjee, J. in Emperor v. Panchu Das 58 Ind. Cas. 929 : 47 C. 671 : 24 C.W.N. 501 : 31 C.L.J. 402 : 21 Cr.L.J. 849 (F.B.): ' The Judicial Committee did not, by their decision in Subramania v. King Emperor 25 M. 61 : C.W.N. 866 : 11 M.L.J. 233 : 3 Bom. L.R. 540 : 28 I.A. 257 : 2 Weir 271 : 8 Sar. P.C.J. 160 (P.C.), overrule by implication the series of cases in Calcutta and in Bombay where the High Court had in cases reserved or certified reviewed the evidence and determined the question of guilt of the accused.'
24. In the same case Walmsley, J. being satisfied on the merits that the accused were guilty, said 'I do not think it necessary to ask what view a Jury would take of the evidence except in so far as the opinion of a hypothetical Jury affords a standard of reasonableness.' There might be some excuse for hesitating to deprive the accused of the benefit of a Jury trial where the demeanour of the witnesses was of any importance, but in a case like the present one in which the evidence is entirely circumstantial, no importance is to be attached to the demeanour of the witnesses, and we are in as good a position as the jurors to decide on the evidence as to the guilt of the accused. On the one hand the prosecution has been deprived of the right to retrial which would certainly have been ordered had the case been tried in an ordinary Sessions Court, and, on the other hand, it is insisted that the case should be determined by the probable verdict of a hypothetical Jury. The fact that a re-trial cannot be ordered ought to make the Court in the interests of justice careful to avoid setting aside a conviction on grounds which, however plausible they have been made to appear, have no solid foundation in fact. Therefore, it was, I think, that by making the terms of the Statute so wide the Legislature intentionally provided that the Court should be unhampered by technicalities, and any attempt to introduce restrictions on the powers of the Court where there are none in the Statute is, I think, to be deprecated. Great respect is due to the views expressed by Sir Barnes Peacock, Chief Justice, in the case of In re Elahee Buksh 5 W.R.Cr. 80 : B.L.R. Sup. Vol. 459 (F.B.) and quoted with approval by Sir Francis Maclean, C.J. in the case of Emperor v. Charu Chunder Mukerjee 76 Ind. Cas. 966 : 38 C.L.J. 309 : 25 Cr.L.J. 294 (F.B.), 'Although I am of opinion that the Legislature intended that the Sudder Court should have the power of setting aside a verdict of guilty pronounced by a Jury upon an erroneous or defective summing up of the evidence by the Presiding Judge, yet I think that it was not their intention that a verdict of guilty should be set aside in every case in which there is a defective or erroneous summing up. It was their intention to provide protection for the innocent but not chances of escape for the guilty...if every convict against whom a verdict of guilty is pronounced by a Jury has a right to have that verdict set aside upon appeal, and to obtain his discharge whenever it can be shown that the Presiding Judge has not properly directed the Jury as to the degree of weight which ought to be given to particular evidence, a wide door would be thrown open for the escape of guilty men, and the due administration of the criminal law of this country should be placed in the greatest jeopardy'; In re Elahee Buksh 5 W.R.Cr. 80 : B.L.R. Sup. Vol. 459 (F.B.). This was the interpretation put upon the Statute in 1866 and it is well recognised that a contemporaneous interpretation is the best and strongest in law.
25. From this point of view if the Court is convinced on the evidence that the accused is guilty he should not be acquitted merely on account of a defective charge.
26. I think, therefore, with great respect to the views of my learned colleagues to whom I have submitted this judgment in advance, that this application for review ought to be refused.
27. The order of the Court is that Padam Prosad be acquitted and discharged and that his bail-bond stands cancelled.