Bihari Mahton vs Emperor

Fazl Ali, J.—The appellants who are five in number were tried by the Sessions Judge of Patna and a jury on a charge of murder. The majority of the jurors found them guilty u/s 325, Penal Code, and the learned Judge accepting the verdict sentenced them to five years'' rigorous imprisonment each. They have now appealed to this Court against their conviction and sentence.

The learned Counsel for the appellants attempted to show that the jury had been misdirected on certain points by the learned Sessions Judge but we are satisfied that there has been in fact no misdirection of the jury and also that there is nothing in the heads of the charge which can form the subject matter of a legitimate grievance by the accused persons.

There are however two points of law raised by the learned Counsel for the appellants which, in my opinion, ought to be dealt with fully as they relate to certain important matters. One of these points is that the jury was not properly constituted because the provisions of Sections 326 and 274, Criminal P.C., had not been complied with by the learned Sessions Judge. In order to appreciate the argument of the learned Counsel for the appellants on this point it is necessary to mention a few facts. It appears that only 16 jurors had been summoned by the learned Judge for the date fixed for the trial of this case and nine of these persons were empanelled for the trial. Before the commencement of the trial the Public Prosecutor drew the attention of the Court to the fact that a lesser number of jurors had been summoned than contemplated by Section 326 read with Section 274, Criminal P.C., and the counsel for the defence also agreed with him that the procedure was wrong; but the learned Judge proceeded with the trial of the case. This fact has been stated in the petition of appeal filed in this Court and may be taken to be correct as the learned Sessions Judge does not controvert it in his explanation. It may also be assumed at this stage that, on reading Sections 326 and 274, Criminal P.C., together, the minimum number of jurors which ought to have been summoned by the Judge should have been 18 and we may also assume for the sake of argument that the number of jurors summoned in this case was less than what it should have been.

The question which thus arises is whether the mere fact of the requisite number of jurors not having been summoned for the date fixed for the trial of a particular case is sufficient to vitiate the whole trial. This is precisely the question which was recently considered by a Full Bench of the Calcutta High Court in Emperor Vs. Ermanali and Others, and it was decided that it was a mere irregularity to summon less than 18 persons for a murder trial in contravention of the provisions of Section 326, Criminal P.C., and that such irregularity would be generally condoned u/s 537, Criminal P.C., and a re-trial would not be ordered unless it was manifest that there had been a failure of justice occasioned by it. Now, so far as the conclusion arrived at by the Full Bench is concerned, I am entirely in agreement with it, but I wish to add a further argument in support of the view taken by the learned Judges of the Calcutta High Court. It appears to me on a careful reading of Section 326 that it fixes the minimum number of jurors to be summoned by the Sessions Judge on the first day on which a criminal session commences, whatever may be the number of trials which it may be proposed to hold in the course of the session. This will be clear from the following words used in the section:

Summon as many persons ... as seem to the Sessions Judge to be needed for trials by jury ... the number to be summoned not being less than double the number required for any such trial.

The use of the plural in referring to trials in the first part of the sentence would indicate that the total number of jurors actually summoned are intended to be available for all the trials, though in order to fix a minimum it has been provided that the Judge is to summon at least double the number of jurors required for any particular trial to be held in the course of the session. Thus it is not quite accurate to say that the minimum fixed under this section is the minimum number of jurors required for every single trial that is to be held in the course of a particular session. When this fact is realized it becomes clear that the object of the provision is not so much to safeguard the interest of the accused as to leave a margin for those cases where any particular juror or jurors may claim exemption from being empanelled on the ground of ill health or some other reason. In fact the interest of the accused are amply safeguarded by the provisions made in Sections 274 to 278 and in order to prevent the packing of the jury, Section 276 expressly provides that the jurors shall be chosen by lot. It may also be mentioned here that Section 326 only provides what the Sessions Judge is ordinarily required to do. This means clearly that in any particular case the Sessions Judge may not follow the procedure laid down in Section 326, that is to say, may not summon the number of jurors required for the whole session at one time and in order to enable the Judge to do so, Section 327, Criminal P.C., expressly lays down that the Court of Session may direct jurors or assessors to be summoned at other periods than the period specified in Section 326.

Thus a question arises as to what a Sessions Judge ought to do if he does not want to summon a large number of jurors u/s 326 for the whole session but wants to summon only as many jurors as may be required for a particular trial. I imagine that in such a case it would be neither illegal nor irregular for him to summon less than 18 persons for a murder trial so long as he takes care to summon a sufficient number of persons to enable him to choose the requisite number of jurors from among them in the manner provided by law. Assuming however that it is incumbent on the Judge u/s 326, Criminal P.C., to summon a minimum of 18 jurors for a murder trial, I would hold following the decision in Emperor Vs. Ermanali and Others, that the mere failure on the part of the Judge to summon the full number will not by itself vitiate the trial and the appellants are not entitled to a new trial in this case, as it has not been shown that they were in any manner prejudiced by the alleged irregularity.

The next point of law raised by the learned Counsel for the appellants relates to the proper interpretation of Section 162, Criminal P.C. It appears that some of the prosecution witnesses made certain statements in the Court of the Sessions Judge which they had not made before the investigating police officer and their attention being drawn to these omissions the defence counsel attempted to prove them while cross-examining the police Sub-Inspector. A question then arose as to how such omissions were to be proved. The learned Judge after referring to certain decisions of the Lahore High Court held that the only method by which a witness

could be contradicted by an omission in his statement to the police officer was by proving his statement or some part of it,

and as in the new Code there was no special provision that the writing as distinct from the statement was not to be used, the proper method, in his opinion, of proving the statement was by putting the writing in evidence. He therefore allowed the whole record of the statements of certain witnesses to be exhibited in the case and marked them as Exs. A to G.

The learned Counsel for the appellants contends that the learned Judge was entirely wrong, in the first place, in exhibiting the written records of the statement and, in the second place, in admitting into evidence the whole of the statements made by certain witnesses before the police. It is also urged by him that this procedure of the learned Judge has caused great prejudice to the accused and as it is difficult to know what exactly was the effect of the inadmissible evidence upon the minds of the jurors, the accused are entitled to a retrial.

Before I express my own views as to the correctness or otherwise of the procedure adopted by the learned Judge, I wish to refer to the cases of the Lahore High Court on which the learned Sessions Judge appears to have relied. They are: Labh Singh v. Emperor AIR 1925 Lah. 337; Radha v. Emperor AIR 1425 Lah. 399; Bahadur Singh v. Emperor AIR 1926 Lah. 367; Dharam Singh v. Emperor, AIR 1928 Lah. 507 and Emperor v. Ibrahim AIR 1928 Lah. 17. The first two of these cases do not throw much light upon the subject but the remaining three cases ought to be considered. In Bahadur Singh v. Emperor AIR 1926 Lah. 367, Addison, J., one of the learned Judges of the Lahore High Court dealing with the provisions of Section 162, Criminal P.C., said:

If such a statement has been reduced into writing, its use for any purpose whatsoever is also prohibited unless (a) it is the statement of a witness called for the prosecution: (b) the Court has ordered the accused to be furnished with a copy and (c) the written record of the statement has been duly proved.

In Emperor v. Ibrahim AIR 1928 Lah. 17 the same learned Judge while dealing with the evidence of some of the witnesses for the prosecution, observed:

The written statement made by these witnesses to the police have not been proved and the only way a witness could be contradicted by statements made to the police under the provisions of Section 162, Criminal P.C., is to prove his written statement and put it to the witness u/s 145, Evidence Act, to permit him to explain the contradictions, if any. This was not done. Statements made to the police cannot be used at a trial in any other way.

Lastly, in Dharam Singh v. Emperor, AIR 1928 Lah. 507, which also happens to be a case decided by Addison, J. sitting with another learned Judge, we find the following directions as to the manner in which a prosecution witness is to be contradicted by his statements made before the Judge:

In conclusion I would draw the attention of the learned Sessions Judge to Bahadur Singh v. Emperor AIR 1926 Lah. 367 and Labh Singh v. Emperor AIR 1925 Lah. 337 as they explain the provisions of Section 162, Criminal P.C., which he does not seem properly to understand. It is only what is written in the police diaries that can be used u/s 145, Evidence Act, to contradict the witness, and what the Sub-Inspector of Police stated that a witness said or did not say is inadmissible. The way to prove those portions of the written statement of a witness which have been specifically put to him in order to contradict him is for the accused to mark the passage or passages in the copy from the police diaries given to him and then to ask the writer of the statement to say that it is true copy.

Now, I believe that what has been described to be the correct procedure in these cases must be the procedure which is now in vogue in the Courts under the Lahore High Court and I am also aware that a similar procedure is followed in some of the Courts in the United Provinces. The fact however remains that the procedure which has always been followed in this Province and in Bengal is entirely different. What is done here, and I believe in Bengal, is that after the attention of the prosecution witnesses has been drawn to the contradictory statement made by them before the police, the investigating police officer is asked whether those witnesses did or did not make the particular statements before him. The answer given by the police officer (which is always checked with reference to what is written in the diaries) is considered quite sufficient to contradict the witness, and neither the original record of that statement in the police diary nor the copy of it furnished to the accused is ever proved or admitted in evidence. As however the correctness of this practice seems to have been questioned in more than one decision of the Lahore High Court, which are all entitled to great respect, I propose to examine in some detail as to whether the practice which has been hitherto followed in our Courts is really not warranted by the law.

Now, neither the learned Sessions Judge, from whose decision this appeal has been preferred before us, nor any of the learned Judges of the Lahore High Court have suggested anywhere that the practice followed in this Province was not in conformity with the provisions of Section 162, Criminal P.C., as it stood in the Code. On the other hand on a careful perusal of more than one decided case of the Calcutta as well as of other High Courts, it will appear that that was considered to be the correct practice: see Roghuni Singh v. Empress [1882] 9 Cal. 455, Queen-Empress v. Sitaram Vithal [1887] 11 Bom. 657; Queen-Empress v. Madho [1892] 15 All. 25 and Queen-Empress v. Taj Khan [1894] 17 All. 57. In fact the learned Sessions Judge himself points out that under the old Code there was an express and unqualified prohibition against the use of the writing as evidence in the first part of Section 162 and all that was provided in the proviso was that the statement as distinct from the writing might be used to impeach the credit of the prosecution witnesses. Let us now compare the section as it stood before 1923 with the section as it stands now. This can be best done by reproducing the material portions of the two sections.

Section 162 as it stood before 1923:

No statement made by any person to a police officer ... if taken down in writing, be signed ... nor shall such writing be used as evidence: Provided that when any witness is called for the prosecution ... the Court shall ... if the Court thinks it expedient in the interests of justice, direct that the accused be furnished with a copy thereof; and such statement may be used to impeach the credit of such witnesses in the manner provided by the Evidence Act, 1872.

Section 162 as it stands at present:

No statement made by any person ... shall if reduced into writing be signed ...; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record be used for any purpose (save as hereinafter provided)....

Provided that when any witness is called for the prosecution .... the Court shall on the request of the accused, ''refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by Section 145, Evidence Act of 1872.

Now, the first point of difference in the two sections is that whereas under the old section there was a general prohibition against the writing being used as evidence, the now section provides that neither the statement nor any record thereof can be used for any purpose. It is clear that the new section is a little wider than the old section because it excludes not only the writing but also the statement in the first clause. It might be noted here that this change was introduced because it had been held in a number of cases that although the document containing the statement could not be used as evidence against the accused, yet the statement itself could be proved against him. On the basis of this distinction between a statement and the writing or the record thereof it was held that a statement made by the prosecution witness to the police could be made use of by the prosecution for the purpose of corroborating the prosecution witness. This was a result which was never contemplated by the framers of the section as will appear from the following passage in the report of the Select Committee of 1916 which redrafted the section:

It seems clear that all that the amendment of 1898 intended to effect was to make it clear that the accused had no right to call for or see the record of any statements taken down by the police u/s 161, unless the Court thought that in the interest of justice he should be allowed to do so. It did not purport to deal with and has left untouched, the further question whether or not a statement made by a witness u/s 161 as apart from the written record of the statement, might be used by the prosecution for the purpose of corroborating one of their witnesses u/s 157 Evidence Act, and this is at all events one of the principle difficulties with which we have to deal with now.

The redraft of the section which we propose will make it clear that the statements taken u/s 161 (and not merely the written records of such statement) are not be used in any way or for any purpose except as allowed by the proviso.

This passage clearly explains the reason for the change that we notice now in the language of the new Section 162 and I am confident that this slight change by itself does not necessarily suggest that the framers of the amended Code intended that the procedure followed under the old Code for proving the contradictory statements made by the prosecution witnesses should undergo any radical change. On the other hand, it is to be noticed that a distinction is still drawn between the statements and the record thereof and while in the first part of the section both the "statements" and "the record thereof" are excluded from being used as evidence or for any purpose whatsoever, there is no reference to the writing or the written record in the proviso which follows. On the other hand it is provided there that:

any part of such statement if duly proved may be used to contradict such witness.

To me it appears that the use of the word "statement" in contradistinction with the word "writing" or "written record" of the statement is deliberate and the distinction must have been very clearly before the mind of the legislature at the time the amendment was made, as will appear from the report of the Select Committee. This in my opinion, seems to be a strong argument to show that the practice followed in this province is by no means incorrect and what is to be primarily proved is not the writing but the statement made by the witness before the police. It must also be remembered that when it was held in a series of cases under the old Code that the statement of the prosecution witnesses, may be used for the purpose of corroborating that witness, the manner in which such statements were generally proved was by asking the police officer who had recorded the statements of those witnesses, whether the witnesses had made those statements before him. There is however nothing in the present section to indicate that this method of proving "statements" was considered to be wrong or not in accordance with law, although by including the word "statement" as well as "the record thereof" in the first part of Section 162 the legislature has now made it impossible for the prosecution to use the statements before the police for the purpose of corroborating the evidence given by the prosecution witness in Court. The following passage which occurs in the report of the Select Committee will also show that the procedure generally adopted by the Courts in this Province could not have been intended to be condemned by the amended section:

The amendment will also, we think, make it clear that if the accused wishes to rely on anything in the previous statement of a witness to the police, of which he has been allowed by the Court to have a copy, he will have to prove it in the ordinary way. If the witness admits this in cross-examination, it will of course be sufficient; if he denies the contradiction and the police officer who took it down is called by the prosecution the previous statement of the witness on the point may be proved by him; if he is not called by the prosecution, the Court would no doubt itself in most cases call him, or if the accused is calling evidence in support of his defence, it may be worth his while to call the police officer himself. But it is clear that unless the previous contradictory statement is proved in some way in accordance with law, it ought not to depreciate the witness''s statement on oath.

Now it is to be noticed that in this passage great importance has been attached to the calling of the police officer who took down the statements of the prosecution witnesses, and this is so because it is impossible to prove without the evidence of the police officer what statements were made by the witnesses before him. It has not been suggested anywhere so far that a portion of the original diary is to be exhibited in proof of the statement made by a witness and all that the Lahore decisions suggest is that a copy of such statement must be proved. If therefore it was sufficient for the purpose of contradicting a witness to put in evidence a copy of the statement made by him before the police, such a copy could be formally proved by any witness who prepared it and it would not be necessary to call the Sub-Inspector to prove the correctness of the copy which has in fact been made by some one else. In any case all that we find in the report of the Select Committee is that the previous contradictory statement must be proved in some way in accordance with law and it is difficult to hold that it would be not in accordance with law to do so by asking the Sub-Inspector who recorded the statement in his diary to say whether a particular statement was made by a witness or not.

Again the statements made by the witnesses in the course of police investigation are seldom recorded verbatim by the police officers and what we often find recorded in the diary is only the substance of such statements written in the language of the police officer himself. These statements also are never read over to the witnesses and, as the section itself provides, they are never signed by them. Again, in this province police diaries are often written in English and sometimes one finds here and there passages which are either highly ambiguous or not very intelligible. In these circumstances it is neither fair to the police officer nor to the witness to treat the statements recorded in the diary as proving what the witness said to the police officer without asking the latter what statements were actually made by the witness.

We have also to remember that the section itself makes it clear that the, whole of the statement made by a witness before the police cannot be used in any circumstances for the purpose of contradicting the witness, but only a part of the statement can be used. As however in this province the practice is to issue a copy of the whole statement recorded u/s 162 to the accused it will not be generally practicable to avoid the use of the whole statement for the purpose of contradicting the witness if the copy is to be tendered in evidence, and it will be by no means convenient to divide the statements of the witnesses into small bits and exhibit them separately during the trial. I am therefore strongly of opinion that the practice which has hitherto prevailed in this province is on the whole more satisfactory as well as convenient than the practice recommended in the decisions of the Lahore High Court, and, as I have already stated, there seem to be no reason to abandon it, especially when it cannot be said to be not in accordance with law. So far as I can see, the only argument which can be used to show that the correct procedure would be to prove the writing itself consists in the fact that the amended Section 162 makes a distinct reference to Section 145, Evidence Act, which seems to contemplate that the writing itself is to be used for contradicting a witness. I am however of opinion that Section 145, Evidence Act, was specifically mentioned in the new section in order to emphasize the necessity for drawing the attention of the witness to his previous statement before he is contradicted by such statement. It is also to be remembered that the previous statement of a witness in writing may take various forms. It may, for example, be something in the witness''s own writing, such as his letters or other documents written by him, or it may consist of documents executed and signed by him, or his previous depositions which are always signed by a witness after they are read over to him and admitted by him to be correct. In such cases the writing itself may be proved and is generally proved to contradict the witness. There may however be cases where some one else has recorded a mere substance of the statement of a witness or has merely noted it in such a manner that he is the best person to say what that statement is. In such cases I believe it will not be a contravention of either the spirit or the letter of Section 145, Evidence Act, to prove the previous statements of the witness by merely asking the person who wrote those statements whether such statements had been made before him or not. I should however make it clear that I do not wish to go so far as to say that the view taken by the Lahore High Court is necessarily incorrect or is such as is not warranted by the language of Section 162. As I have already stated, the fact that Section 145, Evidence Act, has been specifically mentioned in that section is an argument in favour of that view. Besides, at least in one case where the Sub-Inspector who recorded the statement happens to die before he is examined, it may be necessary to prove the previous statement made by a witness by the record of that statement. At the same time I do not think that the practice which has prevailed in this province for a long time and which has its own advantages should be disturbed.

I shall now pass on to consider whether the learned Sessions Judge was right in exhibiting the whole of the statement in writing of some of the prosecution witnesses as recorded in the police diary. As I have already pointed out, proviso 1, Section 162, clearly contemplates that the whole of such statement should not be proved. This will be clear from the following words:

The Court shall ... direct that the accused be furnished with a copy thereof in order that any part of such statement, if duly proved, may be used to contradict such witness.

The learned Sessions Judge was therefore not quite correct in exhibiting the whole of the statements for the purpose of proving the alleged omissions. The learned Sessions Judge says that the omissions cannot be proved unless the whole of the statement is brought on the record and there is, no doubt, some force in this argument. In fact this is precisely the argument which was used in Emperor v. Badri Chaudhuri AIR 1926 Pat. 20 . But if it is correct to say that there is nothing in the section to prevent the police officers from being questioned about the statements made by a witness I do not see any difficulty in proving such omissions by asking the investigating officer whether such statements had been made before him or not. Another possible view which may be taken on this subject is one which has been indicated by the Calcutta High Court in the case of Aseruddin Vs. Emperor, where a distinction has been drawn between a positive statement and the mere absence of a statement, and it is pointed out that Section 162 does not prohibit the proving of the latter. I do not however wish to express any final opinion at present so far as this distinction is concerned. The last question that we have to consider is whether the accused was in any way prejudiced by the somewhat irregular procedure of the learned Sessions Judge. On this point it will be necessary to consider the explanation of the learned Sessions Judge which was called for at the time the appeal was admitted and which runs as follows:

As the memorandum of appeal suggests without definitely stating that the entire statements were put to the jury I wish to state clearly that this was not done. I warned the jury at the time the statements were put in that they were not admissible to corroborate but only to contradict the witnesses: vide order in order sheet, dated 27th November 1929, above referred to. In the interest of the accused, these statements were not read to the jury at the time of exhibiting them; they were merely marked and put on the record to be referred to by defence counsel at his pleasure. The Public Prosecutor did not use them in any way; the defence counsel, Mr. Yunus, made little use of them; and in the charge I referred only to those passages and omissions which had been expressly referred to by him, and again cautioned the jury that the statements could not be used to corroborate the evidence of the witnesses, but only to contradict.

Having read this explanation, I am absolutely satisfied that no prejudice could have possibly been caused to the accused and I do not think therefore that we shall be justified in ordering a re-trial in the present case.

The result is that the appeal is dismissed and the conviction and the sentence passed on the appellants are affirmed.

James, J.

I agree.