In Re v.

The appeals first came on for hearing before Waller and Krishnan Pandalai, JJ., who made the following:

Krishnan Pandalai, J. - We are of opinion that an important question of law of generalapplication, whose decision cannot be delayed as these are appeals from sentences of death, has arisen and that in view of the following state of the authorities it is necessary to decide it by a Full Bench.

The two appellants have been convicted of the murder of a child Appi for the sake of the jewels on her person. The evidence against the appellants may be classified in three groups: (1) Evidence that one or the other or both the appellants were seen with or near the child shortly before her disappearance near the tank in which the body was discovered three days later, (2) Evidence that both the appellants made statements to the Police either directly or indirectly through strangers in the presence of the Police wherefrom the Police discovered that the jewels on the childs body were Secreted in the second appellants house and were able to recover them from there and also to discover the childs body hidden among the elephant grass in a tank called Potria Tank, and (3) Evidence of statements made by both the appellants in the Committing Magistrates Court but which were retracted in the Sessions Court. At the present stage of the case we think it would not be right to express any other opinion about the merits except that if item two of the above classes of evidence, to the admissibility of which objection is taken, be excluded it may make a difference to the result of one or both of the appeals.

The objection is that as the statements of the accused above referred to were made to the Police during the investigation, they are inadmissible by reason of section 162 of the Criminal Procedure Code. As a matter of fact they were made on the 10th of September and the investigation had begun on the night of the 7th when the Police registered the case as one of a person missing in suspicious circumstances. But the statements were made before the appellants were arrested and when they were therefore not in custody. Counsel for the appellants relies upon a decision of a Bench of this Court, Sheik Kalesha v. Emperor.((1931) 62 MLJ. 71)That fully supports the appellants objection and if we follow it the statements must be ruled out. But we are unable to follow that decision. Our opinion in the matter is supported by direct decisions of four other High Courts, e.g., King-Emperor v. Maung Tha Din, ((1926) I.L.R. 4 Rang. 72 (F.B.)) Jagwa Dhanuk ((1925) I.L.R. 5 Pat. 63)Azimuddy v. Emperor, ((1926) I.L.R. 54 C. 237)Newaj Ali Molla and Rannun v. The Crown. ((1926) I.L.R. 7 Lah. 84) In addition there is also a decision of a Full Bench of our Court Thimmappa v. Thimmappa ((1928) I.L.R. 51 M.967) where at page 974 it was held that S. 27of the Evidence Actis not affected by S. 162 of the Criminal Procedure Code.

On the point arising on S. 162 we are of opinion that the context in which the section occurs shows that the words statement made by any person in clause (1) mean statements made by witnesses and not by accused persons. The general words any person must be read as limited by the context where they follow other sections in which the same words can only mean persons called by the Police as being acquainted with the circumstances of the case. See for instance S. 160 which enables the Police to require the attendance of any person who appears to be acquainted with the circumstances of the case and S. 161 which enables the Police to examine such persons and oblige them to answer questions. Immediately afterwards follows

8. 162 which speaks of statements made by any person to a Police Officer in the course of investigation. This can reasonably mean only the statements of persons acquainted with the circumstances of the case whom the Police are empowered to summon and to question and who are bound to answer the questions. Persons accused of the offence cannot be included in that class although in one sense, a peculiar sense, a man guilty of the crime under investigation is the man best acquainted with the facts of the case. This is made quite clear by S. 164 which expressly provides for Magistrates recording the statements of witnesses during investigation and of confessions made by accused persons at that, stage. In brief, to construe S. 162 as intended to include statements by accused persons is a forced and unreasonable construction whose only merit, that it is literal, is discounted by the context in which the words occur.

In view of the difference of opinion between ourselves and another Bench of this Court we think that the question should be authoritatively determined. We therefore refer to a Full Bench the following question:

Does the expression statement made by any person in clause (1) of section 162 of the Criminal Procedure Code include statements by persons accused of the offence under investigation

The Court expressed the following:

Opinion:

Reilly, J

[1] In connection with Referred Trial No. 173 of 1931 the following question has been referred to us, vis.:

Does the expression statement made by any person in Clause (1) of Section 162 of the Criminal Procedure Code include statements by persons accused of the offence under investigation

[2] The reference has been made: because objection has been taken at the hearing of the Referred Trial to the admission of evidence that certain statements were made by the accused which the learned judges, Waller and Krishnan Pandalai, JJ., describe as statements made "to the Police directly or indirectly through strangers in the presence of the Police" in the course of the Police investigation of the case when the accused were not in custody. In Sheik Kalesha v. Emperor (1931) 62 M.L.J. 71 Jackson and Cornish, JJ., decided that a statement made by an accused person to the1 Police in the course of their investigation of the case could not be used at the trial for any purpose. In that case the defence wished to use the statement in question for the benefit of the accused, but Jackson and Cornish, JJ., held that its use was prohibited by Section 162, Criminal Procedure Code, as that section applied not only to witnesses but also to accused persons. In the present case it is the prosecution which wishes to make use of the statements in question, and Waller and Krishnan Pandalai, JJ., differing from the interpretation of Section 162, Criminal Procedure Code, adopted by Jackson and Cornish, JJ., are of opinion that the statements are admissible on the ground that the section refers only to statements made by witnesses, not to statements made by accused persons.

[3] Section 162, Criminal Procedure Code, runs as follows, vis.:

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

[4] The follow two provisos with which we are not now concerned, to the first of which the words in parenthesis "save as hereinafter provided" refer. It has not been suggested before us, and indeed it could not be suggested, that, taking the part of the section which I have quoted in its plain, literal meaning, there is any doubt that it includes statements made by accused persons as well as statements made by witnesses. There is no ambiguity about the words used. "No statement made by any person to- a police officer" clearly and obviously includes a statement made by an accused person. And there is nothing in the section itself, so far as I can see, to throw any doubt upon that clear and obvious meaning. That, I should have thought, would provide an answer to the question before us. But, if it were necessary or permissible, to look at the purpose -of the section, so far as it appears in the section itself, in order to ascertain the meaning of the words in question, the same result would be reached. The purpose is to prevent the admission in the evidence at any inquiry or trial of some statements made to the Police in the course of the investigation of the case. Admittedly -and incontestably these statements include statements made to the Police by witnesses (subject to an exception allowing thenf to be used by the defence in cross-examination under certain conditions). The Legislature has thought fit to exclude statements made to the Police by witnesses to prohibit the use of them either against or for the accused. It appears to me in the highest degree improbable that the Legislature, while thinking it wise to shut out statements made to the Police by witnesses, would have allowed statements made by accused persons themselves to the Police to remain admissible. No reason has been suggested, to us why such a distinction should be drawn in favour of admitting statements made to the Police by accused persons. I do not think it necessary to discuss the reason or. wisdom of excluding evidence of any statement made to the Police. But, if evidence of statements made by witnesses to the Police is to be excluded, I can conceive of no reason why it should be regarded by the Legislature as safe or fair to allow evidence of statements made to the Police by accused persons to be admitted. Alike in its literal meaning and its apparent, purpose the section applies to accused persons as well as to witnesses.

[5] The learned referring Judges have recognised that that is the1 literal meaning of the section. But they conclude their remarks with the, sentence "In brief to construe Section 162 as intended to include statements by accused persons is a forced and unreasonable construction whose only merit, that it is literal, is discounted by the context in which the words occur." With very great respect I do not understand how a literal interpretation of the section can be a forced interpretation. But the learned Judges are of opinion that the context shows that the literal interpretation is not the right one. Their view is that Section 162 is to be read with Sections 160 and 161 and that those sections apply only to; witnesses. Section 160 provides that any Police Officer making an investigation may by order in writing- require the attendance before him of any person, living within the limits of his own or any adjoining station, who appears to be acquainted with the cir-tumstances of the case. That provision appears to be Intended for use in respect of persons who are not accused persons at the time when theif attendance is required, as the Police can secure the presence of accused persons in other ways. But I see no sufficient reason to interpret Section 161, which provides that a Police Officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case, as applying only to witnesses. In its plain meaning it includes also accused persons. And I know of no otfter provision under which the Police can question an accused person, as it is not disputed they can do. It has. been suggested by Mr. Ganapathi for the Public Prosecutor that the meaning of Section 161 is indicated by its marginal note, which mentions the examination of witnesses only. But we are not entitled to refer to the marginal note for the interpretation of the section, as their Lordships of the Privy Council have pointed out in Balraj Kunwar v. Jagatpal Singh (1904) L.R. 31 I.A. 132 : I.L.R. 26 A. 393 (P.C.). In my opinion Section 161 includes accused persons. If we go beyond Section 162 and look at Section 163, I can see no reason to doubt that the latter section applies to accused persons. The learned referring Judges have also mentioned Section 164 as throwing light on the meaning of Section 162; but that section appears to me to deal with quite a different matter and to be of no help to us here. If it were necessary to look at the context of Section 162 to ascertain the meaning of "any person," I do not think that the immediately preceding and succeeding sections 161 and 163 are themselves not applicable to accused persons or afford any indication that Section 162 does not apply to accused persons. If a section which is clear in itself may be affected by preceding or succeeding sections, it can only be so when those other sections are themselves capable only of an interpretation which is clearly repugnant to, or startling in juxtaposition with, the section in question. Here there is no ambiguity about Section 162 nor any essential reason to doubt its plain meaning, and at the very highest there is no certainty that Section 161 applies only to witnesses, while to my mind there is no reason to suppose that Section 163 does so. With great respect in my opinion the resort of the learned Judges to the context of Section 162 for its interpretation is unjustified and their reading of the context is itself incorrect.

[6] But, as the learned Judges have pointed out, there; are a number of cases in which other High Courts have decided that Section 162, as it now stands, does not apply to the statements 5 of accused persons. The first of them is Jaglva Dhanuk v. King-Emperor (1925) I.L.R. 5 Pat. 63 (F.B.). In that case the question arose whether a certain statement made by an accused person, which would have been admissible under Section 27 of the Evidence Act, was shut out by Section 162, Criminal Procedure Code. Mullick, J., with whom Jwala Prasad, J., agreed, expressed the opinion that section 162 did not prohibit the admission of statements made by accused persons to the Police, provided they were not confession s. He first referred to an inference from Section 161, which he appears to have regarded as applying only to witnesses, a view with which 1 am unable to agree. He next stated that, if Section 162 shut out statements made by accused persons to the Police, sections 27 and 28 of the Evidence Act must be considered to have been implicitly repealed. With great respect I do not understand the reference to Section 28 of the Evidence Act, and the argument from Section 27 is easily answered by the application of the principle that general provisions do not derogate from special provisions. Lastly he argued that to apply Section 162 to statements made by accused persons would seriously prejudice them by shutting out evidence that they had made exculpatory statements to the Police at an early stage. In reply to this last argument I think it is enough to say that the learned Judge in his anxiety to prevent evidence of statements which may be of help to the accused from being shut out has forgotten how often statements made by the accused to the Police may tell most seriously against them, which is the reason why the prosecution wishes to use the statements of the accused in the present case.

[7] In Rannufi v. The Crown (1926) I.L.R. 7 Lah. 84 again the question a those whether a statement made by the accused, which would have been admissible under Section 27 of the Evidence Act, was shut out by the later provisions of Section 162, Criminal Procedure Code. The learned Judges were of opinion that, if Section 162 applies to accused persons, Section 27 of the Evidence Act would be virtually repealed and that could not have been the intention of the Legislature. They referred to the canon of interpretation that a general statute must not be construed as implicitly repealing a special one. But, though they professed to apply that canon, with the greatest respect I must point out that they arrived at a result contrary to it. Their syllogism appears to be as follows:--Special provisions are; not repealed by contrary general provisions which verbally cover their ground: Section 27 of the Eviderfce Act is a special provision, and Section 162, Criminal Procedure Code, in its plain meaning is a contrary general provision including the field of Section 2,7 of the Evidence Act; therefore not, as we should expect, Section 27 of the Evidence Act remains as an exception to Section 162, Crirhinal Procedure Code--but Section 162, Criminal Procedure Code, is not. a general provision which covers the field of Section 27 of the Evidence Act. The method by which the learned Judges arrived at the conclusion that Section 162, Criminal Procedure Code, does not apply to accused persons appears to me, if I may say so with all respect, clearly fallacious.

[8] Next there is a discussion of the question by a Full Bench of five Judges in King-Emperor v. Maung Tha Din (1926) I.L.R. 4 Rang. 72 (F.B.). There the. question before the Full Bench was whether Section 162, Criminal Procedure Code, applies to oral as well as written statements. All the learned Judges were of opinion that it applied to both kinds of statements, as was decided by a Full Bench of this Court, in Thimniappa v. Thimniappa. (1926) I.L.R. 7 Lah.

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4. But in the course of King-Emperor v. Maung Tha Din (1926) I.L.R. 4 Rang. 72 (F.B.). Rutledge, C.J., raised another question, viz., whether Section 162, as it now stands, has in effect repealed Section 27 of the Evidence Act. Four of the learned Judges answered that question in the negative, and in each case the reason of their answer was that Section 162, Criminal Procedure Code, does not apply or rarely applies to accused persons. The learned Chief Justice was of opinion that sections 160, 161 and 162, Criminal Procedure Code, should be read together and that sections 160 and 161 did not apply to accused persons. He quoted four cases as deciding that to be so of both sections 160 and 161. But it will be found on examination that the first three of these cases, Queen-Empress v. Saminada (1928) I.L.R. 51 M. 967 : 55 M.L.J. 351 (F.B.). Queen Empress v. Lakshntiffadu (1895) 2 Weir 121 and Emperor v. Raton Sathctram (1902) 4 Bom. L.R. 644 do not Vefer to Section 161, but only to Section 160, and that in the fourth case, Queen-Empress v. Jadub Das (1899) I.L.R. 27 C. 295 though the learned Judges remarked that it was improper of the1 Police Officer to examine two accused persons as if under Section 161 in certain circumstances, they did not say that Section 161 does not apply to accused persons. So far therefore as the learned Chief Justice based his opinion on authority, it appears to have been based on a misconception. Chari and Maung Ba, JJ., agreed with the Chief Justice. Duckworth, J., remarked on the grouping and wording of sections 160, 161 and 162 and expressed the opinion that they could refer to an accused person only "in the rare instance in which the accused when at first not suspected in a case may have been examined by the Police as a witness." We have an example of that "rare instance," which is perhaps not so rare as the learned Judge thought, in the first examination of accused 1 in the present case. Heald, J., held that Section 162 applies to accused persons and repeals Section 27 of the Evidence Act, so far as Section 27 refers to information by statements. It will be noticed that in these cases in the Patna, Lahore and Rangoon High Courts the interpretation of Section 162, Criminal Procedure Code, was of interest mainly in regard to its effect on Section 27 of the Evidence Act. In Azimuddy v. Emperor (1926) I.L.R. 54 C. 237 a question arose directly whether the Sessions Judge was right in admitting in evidence statements outside the scope of Section 27 of the Evidence Act which had been made by two of the accused to the Police and were represented to have been made in the course of investigation. Rankin, J.( with whom Duval, J., agreed, held that the decisions in Jagwa Dhanuk v. King-Emperor (1925) I.L.R. S Pat. 63 Ramnun v. The Crozm (1926) I.L.R. 7 Lah. 84 and King-Emperor v. Maung Tha Din (1926) I.L.R. 4 Rang. 72 (F.B.) were right, that Section 162, Criminal Procedure Code, does not apply to accused persons and that statements made by an accused person to the Police may be proved against him, if not inadmissible under the Evidence Act. There is no doubt about the conclusions of the learned Judge; but with great respect I may perhaps say that I find it difficult to follow hts reasoning. He first mentions that in the Calcutta Highc.Court it is settled that Section 161, Criminal Procedure Code, does not apply to accused persons, quoting as authority for that statement Queen-Empress v. Jadub Das (1899) I.L.R. 27 C. 295 in which that point was not decided. I infer that there are other Calcutta cases to the effect mewtione d. Next he remarks that both the context of Section 162 and its contents point in the same direction, with which I am unable to agree. The next sentence is "Any person means quivis ex populo," which certainly points in the opposite direction. Then the learned Judge proceeds "It is unreasonable in view of the special law applicable to the statements of accused persons to the Police to refuse to apply the well-established rule generalia specialibus non derogant. A contrary view involves an implied but complete repeal of Section 27 of the Evidence Act." That passage implies that the learned Judge is of opinion that Section 162 applies to accused persons, as otherwise there is no need to apply the rule to save the special provision of Section 27 of the Evidence Act from the general provision of sec-, tion 162, Criminal Procedure Code. But the final argument is again the other way, viz., that section ,162, having been amended in the interests of accused persons, cannot be held "to deprive an accused of what so often is the main stay of a good defence, the right to show that the moment he was challenged he gave the explanation on which he now relies," This is the same argument as has been used by Mullick, J., in Jagiva DhanuH v. King-Emperor Rankin, J., is sure that the section is intended to benefit accused persons, he recognises that it deprives them of the right to prove that their witnesses made corroborative statements to the Police, but he cannot believe that their own statements to the Police which may be helpful to them have been shut out, forgetting that his interpretation exposes them to the risk of most damaging statements made by them to the Police being" proved against them, as would be the result in this case. If it were justifiable to let the balance of benefit or risk to the accused affect our interpretation of the section, I have no doubt that it would be better for the accused to read the sentence in its plain meaning".

[9] As in four High Courts it has been decided that Section 162, Criminal Procedure Code, does not apply to accused persons, I have thought it proper to examine those decisions in detail. With the greatest respect I cannot agree with the reasoning in any of them. In our own Court the balance of authority is the other way. In Venkatasubbiah v. King-Emipieror Wallace and Madhavan Nair, JJ., held that Section 162 did not" apply to oral statements. One of their reasons for that view was that, if the section applied to statements made by accused persons and embraced oral statements, it would repeal Section 27 of the Evidence Act. In Thimmappa v. Thimmappa (1928) I.L.R. 51 M. 967 : 55 M.L.J. 351 (F.B.) a Full Bench, consisting of Ramesam, Waller and Jackson, JJ., overruled that decision in respect of oral statements and decided that Section 162 applies to oral as well as written statements. But Ramesam, J., in delivering the leading- opinion, said that they must deal with Wallace, J. s argument in respect of Section 27 o i: the Evidence Act. He accepted the view that Section 162, Criminal Procedure Code, applies to statements made by accused persons but explained that Section 27 of the Evidence Act is an exception to that general rule against the proof of statements made to the Police by accused persons on the principle that a general "rule is affected by a special rule, not a special rule by a general rule. He said:

I am of opinion that Section 27 is not affected by Section 162 of the Criminal Procedure Code but that Section 162 is affected by Section 27 of the Evidence Act.

[10] Though the question referred to the Full Bench was not whether Section 162, Criminal Procedure Code, applies to statements made by accused persons, the view that it does so is an important element in Ramesam, J. s opinion and reasoning. Waller, J., merely said "I agree and have nothing to add," by which I understand that he then agreed with Ramesam, J. s view of Section 162, Criminal Procedure Code. Jackson, J., also agreed and among his remarks made it quite clear that he read Section 162 as Ramesam, J., did. At that stage therefore five judges of this Court had expressed the opinion that Section 162 applies to statements made by accused persons and had done so in cases in which the question must have been argued before them. In Sheik Kaleska v. Emperor Jackson and Cornish, JJ. decided directly that a statement made by the accused to a Police Officer, on which the defence wished to rely, was shut out by Section 162. Of the six Judges of this Court who have held the opinion that Section 162 applies to the statements of accused persons Waller, J. has now altered his view for reasons which I have ;Jready discussed, and he is joined in his present view by Krishnan Pandalai, J. But the balance of authority in this Court is clearly in favour of the plain, literal interpretation of the section as applying to statements of accused persons. As I have indicated, I see nothing in the decisions of the other High Courts which have been quoted to convince me that we should depart from the plain, literal interpretation of the section, which has been adopted by the majority of the Judges of this Court who have discussed it. What appears more than anything else to have made learned Judges of other Courts reluctant to accept the plain interpretation of the section is the supposition that it would make Section 27 of the Evidence Act of no effect. But, as Ramesam, J., has pointed out, the general rule that statements made by accused persons to the Police in the course of an investigation cannot be proved does not affect the special exception to that rule remaining by force of Section 27 of the Evidence Act. Statements admissible under that section can still be proved; but all other statements of accused persons made to the Police in the course of an investigation are shut out. Mr. Ganapathi has suggested that it is an anomaly that under Section 27 of the Evidence Act statements made to the Police by an accused person when in custody relating to a fact discovered thereby may be proved but a similar statement made when the accused person is not in custody cannot be proved. That is an anomaly which perhaps the Legislature may consider; but in my opinion it should not influence our interpretation of Section 162, Criminal Procedure Code.

[11] My answer to the question referred to us is that the expression "statement made by any person" in Section 162, Criminal Procedure Code, includes a statement made by a person accused of the offence under investigation.

Anantakrishna Aiyar, J.

[12] The question referred to the Full Bench is:

Does the expression statement made by any person in Clause (1) of Section 162 of the Code of Criminal Procedure include statements made by persons accused of the offence under investigation

[13] I agree with my learned brother Reilly, J., and would answer the question referred to us in the affirmative.

[14] In the first place, the words "any person" occurring in Section 162 of the Code of Criminal Procedure are very wide, arid, according to the1 ordinary interpretation of those words, would include an accused person.

[15] Those words occur in sections 160 and 161 also, and it was admitted before us that there are no other specificoprovisions in the Criminal Procedure Code which would authorize a Police Officer making an investigation to question the accused if the words "any person" occurring in those sections did not include an accused person also.

[16] The decision of the Full Bench of this Court in Thimmappa v. Thimmappa (1928) I.L.R. 51 M. 967 : 55 M.L.J. 351 (F.B.) proceeds, in my opinion, on the view that the words "any person" in Section 162 include the accused also: see page 973 of the Report. Though the exact question now before us was not before the Full Bench in Thimmappa v. Thimmappa yet the Full Bench thought it necessary to answer the question raised by Wallace, J., in V enkatasiibbiah v. King-Emperor (1924) I.L.R. 48 M. 640 : 48 M.L.J. 195 and for that purpose had to consider the scope of Section 162 of the Criminal Procedure Code and Section 27 of the Indian Evidence Act. The very basis of the argument of Ramesam, J., that Section 27 of the Indian. Evidence Act is a special provision, whereas Section 162 of che Criminal Procedure Code is a general provision, proceeds on the ground that the words "any person" in Section 162 include, the accused person also, as otherwise, the whole discussion on this point would be irrelevant.

[17] If the statements made by independent persons before the Police could not be used as evidence except as specially provided for in Section 162, there is no reason why statements made by an accused person to the Police under the same circumstances should be treated in a different way; the circumstance that the statement is made by an accused person and to the Police would probably make it the less admissible in evidence, than the statement made by an independent person. In any case, there is no sufficient ground to treat the statement made by an accused person as admissible in evidence when a similar statement made by an independent person would not be so admissible. No doubt these are considerations to be taken into account only when the wording of the section is ambiguous.

[18] If an accused does not come within the scope of Section 162, the provision that the signature of an independent person shall not be taken to the statement made by him would not apply to the case of an accused, whose signature to the statement made by him might be taken by the Police as there is no law prohibiting the same.

[19] In re Code of 1882, in Section 162, there was a clause: to the following effect:--"Nothing in the section shall be deemed to affect the provisions of Section 27 of the Indian Evidence Act, 1872." The words "any person" occurred in that section also. The inference is that those words included an accused also, as otherwise there is no necessity to have a saving clause like the one in Section 162, with reference to Section 27 of the Indian Evidence. Act.

[20] The marginal notes to sections 160 and 161 which refer to witnesses cannot be referred to for the purpose of construing the section. The Privy Council in Balraj Kunzvw v. Jagatpal Singh s observed at page 406 as follows:

It is well eettled that marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament.

[21] It may be that by shutting out the statements made by the accused to the Police in some cases, some materials in favour of. the; accused and useful for his defence might be shut out; but it is equally possible that the statements shut out are really against the accused, and the same: being shut out might ultimately work to the benefit of the accused. But these are considerations for the Legislature to resolve upon and not for the Courts, when the language of an Act is clear.

[22] When the words of a statute are clear, it is not open to the Court to disregard the same, whatever might be the results in particular cases: see Allkins v. Jupels where there are some useful remarks about the Court s duty to follow the plain provisions of a statute irrespective of results in particular cases. At page 385, Grove, observed as follows: --

Whenever a statute is free from ambiguity, it is contrary to the duty di Judges in effect to repeal it by exercising their own judgment as to whether a particular state of facts falls within the mischief aimed at ,by the Legislature--contra when a statute is difficult to be interpreted.

[23] As observed at page 206 in Secretary of State for India v. Shib Narain Hajra (1918) I.L.R. 46 C. 199:

When the language of a statute is not ambiguous, in interpreting the plain words of a positive enactment, any suggestion of hardship is out of place.

[24] Further, the word used is "any" person. It is mentioned in.Stroud s Judicial Dictionary, Vol. I, page 92, that "any" is "a wore which excludes limitations or qualifications." Per Fry, L.J., in Duck v. Bates "as wide as possible." Per Chitty, J., in Beckett v. Sutton. (1882) 51 LJ.Ch. 432 : 19 Ch.D. 64

6. "A remarkable instance of this wide generality is furnished in In re Farquhar, wherein the words any soldier, etc., in Section 11 of the Wills Act, 1837, were construed as including minors, so that soldiers and sea-men within that section, can make nuncupative wills, though under age.

[25] Section 27 of the Indian Evidence Act is a special provision, whereas Section 162 of the Criminal Procedure Code is general, and nothing that we say here would in any way affect the operation of Section 27 of the Evidence Act when the conditions mentioned therein are fulfilled.

[26] The actual decision of the other High Courts except the decision in Asimuddy v. Emperor (1926) I.L.R. 54 C. 237 is to the effect that Section 27 of the Indian Evidence Act is not repealed by Section 162 of the Criminal Procedure Code, a conclusion with which I respectfully agree. The decision in the case reported in Asimuddy v. EmfAeiror (1926) I.L.R. 54 C. 237 while purporting to follow the other decisions, proceeds much beyond the same, when the learned Judges held in Asimuddy ,v. Emperor,11 that the words "any person" in Section 162 of the Criminal Procedure Code do not include the accused.

[27] The reference to witnesses in the proviso to Section 162 does not in. my opinion necessitate equally the inference that the words "any person" in that section do not include the accused. The policy of the Legislature was to restrict the use to be made of statements made to the Police, and the proviso enacts that such statements could be used only when the persons who made the statements are examined as prosecution witnesses and, even then, only to the extent mentioned in the proviso. In all other cases, such statements could not be used as evidence whether in favour of or against the accused or prosecution, except when they come under some other specific provision of law. Unless the Legislature modifies the provisions of section.162, I think the Courts are bound to give effect to the plain words of the same.

[28] For these reasons, I would answer the question referred to the Full Bench in the affirmative.

Sundaram Chetty, J.

[29] I agree with the judgment of my learned brother Reilly, J., and wish to state briefly the reasons which weighed with me in coming to the same conclusion. The questionreferred by the learned Judges of the Division Bench is as follows:

Docs the expression statement made by any person in Clause (1) of Section 162 of the Criminal Procedure Code include statements by persons accused of the offence under investigation

[30] The answer to this question has to be arrived at on a consideration of (1) the plain and natural meaning of the words in the expression, (2) the sense in which the expression should necessarily be understood, having regard to the context in which the section occurs in the Code, and (3) the case-law bearing on this point.

[31] Section 162 is in Chapter XIV of the Code which deals with information to the Police and their powers to investigate cognizable offtfnces. This section declares that no statement made by any person to a Police Officer in the course of an investigation under the said chapter be used for any purpose at any inquiry or trial in respect of the offence except for the limited purpose and in the manner specified in the proviso. What is the plain and natural meaning of the words "any person" The word "any" is wide and general, and, as such, the expression "any person" should include not only a witness but also a person suspected or accused of an offence who happens to make a statement to the Police in the course of an investigation. A Police Officer engaged in an investigation of a cognizable offence can question a person who appears to be acquainted with the facts and circumstances of the case, and may reduce to writing any statement made by that person. Even if that person should be one suspected or accused of the offence, he can be questioned and his statement recorded by a Police Officer for the purpose of investigation under the aforesaid chapter. Section 162 deals with a statement made by any person to a Police Officer in the course of an investigation. The expression "any person" is comprehensive enough to include a person treated as a witness and also an accused person if regard be had to the plain meaning of those words. That the Legislature used the words "any person" in the plain and ordinary sense, and not in a special or restricted sense is indicated by the corresponding Section 162 of the Code of 1882 (Act X of 1882), with a proviso added, vis.:

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

[32] Section 27 of the Evidence Act refers only to information received from an accused person, that is, statement made by a person accused of an offence. If the Legislature used the words "any person" in Section 162 to denote a witness and not an accused person, there would be no need whatever for inserting the said proviso in order to keep alive the provisions of Section 27 of the Evidence Act. Unless the Legislature used the words "any person" in Section 162, in the ordinary sense, so as to include all persons, be they witnesses or persons accused of the offence, such a proviso would be out of place and meaningless. With this proviso there is no difficulty whatsoever in understanding "any person" occurring in Section 162 of the Code of 1882 as inclusive of an accused. If the same words "any person" are used in Section 162 of the present Code also, are they not to be understood in the same sense If not, why It is true that the proviso referred to above is omitted in Section 162 of the present Code. The exact reasoil for the omission is not clear. It is urged by the learned Public Prosecutor that the same words "any person" may have been used in a restricted sense so as not to include an accused person, and, therefore, the proviso has been omitted. This is a plausible explanation, but: other explanations are not unavailable, which are equally plausible. If a change was really meant to be made in Section 162 of the present Code as stated by the Public Prosecutor, the easiest course would be the substitution of the words "any witness" for the words "any person". It may be that the Legislature thought that the retention of the words "any person" in Section 162 of the present Code, conveying the same meaning as in the Code of 1882, even in the absence of such a proviso, would not by implication abrogate Section 27 of the Evidence Act, inasmuch as that section makes a statement made by an accused admissible in evidence, not unconditionally, but only under two special conditions specified therein. Section 162 seems to be a general rule for the exclusion of statements made by any person to the Police, and in view of the principle that a special rule is not impliedly affected by the general rule, Section 27 of the Evidence Act being such a special rule or an exception to the general rule, the Legislature may have omitted the said proviso as being unnecessary. I do not think that by the mere omission of that proviso in Section 162 of the present Code, the Legislature shoiild be taken to have employed the same words "any person" in a different sense or those words have now lost the meaning which they had in Section 162 of the Code of 1882.

[33] Another as ect for consideration of this question lis what the learned Judges in their referring judgment have laid stress on. The view taken by them is, that general words, however wide and comprehensive they may be in their literal sense, should be construed in the light of the context indicative of their meaning and scope. Let us take the sections which immediately precede and succeed Section 162. Section 160 enables the Police Officer to require, by order in writing, the attendance before him of any person, within the limits of his own or any adjoining station, who appears to be acquainted with the circumstances of the case. Section 161 enables a Police Officer to examine orally any person supposed to be acquainted with the facts and circumstances of the case. Then comes Section 162, which says, that no statement made by any person to a Police Officer, shall, if reduced into writing, be signed by the person making it. Tfee section further prohibits the use of such statements in evidence at the trial, subject to an exception. Sections 163 and 164, which follow Section 162, deal with statements made by any person, which obviously include statements by witnesses as also any statements or confessions by accused persons. There is no doubt as to the sense in which the words "any person" are used in Section 163, and we may safely take them to include an accused person also. Are we to take the words "any person" in Section 162 as limited to witnesses only by virtue of sections 160 and 161 which precede it It is true that the marginal notes to these sections mention "witnesses". But the wording of the sections is wide and general, and cannot be taken to mean witnesses only and not persons suspected or accused of an offence. Moreover, the scope of Section 161 seems to be wider than that of Section 160. The power of the Police Officer to examine orally any person under Section 161 is not limited to the case of persons whose attendance before him he may require by an order in writing under Section 160. Any (person (whether a witness or an accused) whom he cannot under Section 160 summon to appear before him may still be examined by him orally under Section 161 if he can have access to such a man in any other way. In construing a section the marginal notes should not be looked into, and cannot be a criterion for determining the meaning and scope of the section. This principle has been clearly laid down by their Lordships of the Privy Council in Bairaj K-unwar v. Jagatpal Singh (1904) L.R. 31 I.A, 132 : I.L.R. 26 A. 393 at 406 (P.C.) in the following passage:

It is well settled flat marginal notes to the sections of an Act of Parliament cannot be referred to for the purpose of construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of Parliament.

[34] That being so, the use of the word "witnesses" in the marginal notes of sections 160 and 161 should not be a guide for construing the wording of the sections themselves. Reference was made to Queen-Empress v. Samtinada in support of the contention that Section 160 does not apply to an accused person. The exact point that was decided in that case is, that this section does not empower a Police Officer to summon an accused person to appear and answer the complaint made against him. There is nothing in this ruling to indicate that a Police Officer even without having recourse to the procedure prescribed under Section 160 cannot examine orally an accused person under Section 161. It seems to me that the expression "any person" in Section 161 does not exclude a person suspected or accused of an offence. There is nothing repugnant in supposing such a person to be acquainted with the facts and circumstances of the case. Thus it may be safely taken that even from the standpoint of context, the expression "any person" contained in Section 162 includes an accused person also, and is not confined to witnesses only.

[35] Coming now to the decisions bearing on this point, it is clear that there is a conflict of judicial opinion. In the Full Bench decision of this High Court in Thimtnappa v. Thimmappa (1928) I.L.R. 51 M. 967 : SS M.L.J. 351 (F.B.) though this point was not directly the subject of reference, it was considered incidentally. The Full Bench held that even oral statements made to the Police, not reduced to writing, come within the purview of Section 162, and would be inadmissible in evidence (except for the limited purpose specified in the proviso). Having come to that opinion, the allied question, as regards the effect of this section on Section 27 of the Evidence Act had to be considered. The observations of Ramesam, J., on pages 973 and 974, are to the effect, that though oral statements made by an accused person to the Police Officer are covered by Section 162 and come under the general rule of exclusion contained in it, the special rule as to the admissibility of such statements, provided for in Section 27 of the Evidence Act, is not affected. If Section 162 of the Code were viewed as not including statements made by accused persons at all, there would be no need for explaining why Section 27 of the Evidence Act must be treated as an exception to the rule in Section 162 of the Code. There is also the distinct pronouncement of two learned Judges of this Court in the decisions reported in Sheik Kalesha v. Emperor (1931) 62 M.L.J. 71 wherein this question was discussed, referring to the decisions of Patna, Lahore, Rangoon and Calcutta High Courts which have taken a different view. The learned Judges who have made the reference to this Full Bench express dissent from the view taken in Sheik Kalesha v. Emperor (1931) 62 M.L.J. 71. But there is consensus of judicial opinion as regards the effect of Section 162 of the Code on Section 27 of the Evidence Act. That opinion is that section remains unaffected and cannot be taken to have been im;pliedly abrogated by Section 162 of the Code.

[36] I do not propose to refer to the various lines ,of reasoning adopted by Judges in the several cases. 1 shall, however, notice an important consideration which seems to have weighed with Rankin, J., in arriving at the decision that Section 162 of the Code does no apply to statements made to the Police by accused persons-: Azimuddy v. Emperor. (1931) 62 M.L.J. 71. After adverting to the policy of the Legislature in amending Section 162 in the interests of the. accused, but with some abridgement of the privileges, the learned Judge proceeds to state that an accused person should not be denied the right of proving a statement made by him to the Police unless there is express and compelling language in Section 162 to make the rule of exclusion from evidence contained in it applicable to a statement by the accused also. Such a construction seems to have been (placed, in order to safeguard the interests of an accused, for otherwise, any exculpatory statement made by him to the Police, which, if proved at the trial, would co) siderably help him in his defence, may be excluded from evidence altogether. But it is also possible that a statement made to the Police by an accused may at least be an indirectly incriminating one and falling short of a confession. The prosecution may be interested in proving it. If it should be held that a statement made by an accused person to the Police is not covered by Section 162, it would be open to the prosecution also to get such an incriminating statement admitted in evidence by proving the same. If I may say so with respect, the learned , Judge in the Calcutta case seems to have overlooked this result. I agree with respect with the observations of Jackson, J., in Sheik Kalesha v. Emperor (1931) 62 M.L.J. 71 as to the interpretation of the language of Section 162.

[37] My answer, therefore, to the question referred to us is in the affirmative.

[38] The appeals again came on for hearing before Waller and Krishnan Pandalai, JJ., who delivered the following.

Judgments:

Waller, J.

The Full Bench have answered the question referred to them in the affirmative and we are bound by their answer. They hold that the words any person in section 162 , Criminal Procedure Code, must be literally construed. The meaning and scope of the different expression any person supposed to be (or who appears to be) acquainted with the facts of the case, which occurs in other sections relating to investigations by the Police are therefore not relevant and i feel at liberty to state, as 1 did not before the reasons which led me to think that that expression always means witnesses and never includes accused persons. The sections in which it Is used are 160 , 161 , 170 and 173. Reilly, J., as 1 understand him, agrees that in section 160 it means only witnesses. No one could, 1 imagine, contend that it means anything more in sections 170 and 173; for those sections refer to persons who appear to be acquainted with the facts of the case and accused persons as two distinct classes of persons. If, then, out of the four sections which use the expression, three restrict it to one of those classes what reason is there to suppose that, in the fourth, without any indication of an intention to widen its scope, it was intended to include both Apart from that, on the face of it, the language of section 161 seems to me quite irreconcilable with the idea that it can be concerned with accused persons. The persons it is concerned with are persons supposed to be acquainted with the facts of the case and they are bound to answer all questions put to them by the Police other than questions, the answers to which would have a tendency to expose them to a criminal charge. How can all this refer to an accused person He is already the subject of a criminal charge, in respect of which the questions would be put to him. He is not bound to answer any questions put. to him in that regard. At one time the law went so far as to require that the questions should be truly answered, which shows, to my mind, conclusively that an accused person was never in contemplation. 1 must mention another point. Reilly, J., states that I have changed my opinion on the question at issue. He has misunderstood, not unnaturally, my concurrence in Ramesam, J.s judgment in Thimmappa v. Thimmappa.(I.L.R. 51 Mad. 967 [LQ/MadHC/1928/149] =28 L.W. 314., (F.B.). The impression I had retained of our decision was that, as we were following King-Emperor v. Maung Tha Din(I.L.R. 4 Rang.72 (F.B.))and Azimuddy v. Emperor(I.L.R. 54 Cal. 237) [LQ/CalHC/1926/265] which laid down that section 162 did not apply to the statements of accused persons to the Police, that was our conclusion also. I have, however, now re-read Ramesam, J.s judgment and note that he did express the opinion that statements made to the Police by accused persons during an investigation are excluded by section 162 , Criminal Procedure Code, with a saving in favour of such as are excepted by section 27 of the Evidence Act. I must confess that I overlooked this at the time. Otherwise I should have pointed out that, while we purported to approve and follow the Calcutta and Rangoon decisions without reservation, we were, in effect, dissenting from them on a point, which, though it was not then material, was of considerable importance. I thought then, as I have continued to think, that those decisions were correct and that the opposite view leads to most surprising results.

To turn to the facts of the case. The appellants have been convicted and sentenced to death for the murder of a little girl called Appi. She left her parents house at about 5 p.m. on 7th September wearing certain jewellery but did not return. She was searched for without success and her father then reported her disappearance to the Police. The Sub-Inspector made enquiries on 8th and 9th and got certain information about the movements of the appellants, with the result that he questioned the 1st appellant on the 10th. The latter told him something which on the ruling of the Full Bench, must be excluded from evidence and then took him to the house of the 2nd appellant. He also made a statement, which must be excluded for the same reason, and then gave up some jewellery, which has been identified as that which Appi had been wearing when she disappeared. Afterwards, both of the appellants led the Police to a tank where the 1st appellant pointed out some long grass, in which the dead body of Appi was found. Now, though the statements made by the appellants are inadmissible, evidence of their conduct is certainly admissible under section 8 of the Evidence Act I accept that evidence as true and find it proved that the 1st appellant took the Sub-Inspector to the 2nd appellants house, that the 2nd apoellant gave up the murdered girls jewels and that the 1st appellant pointed out the place where her body was found. It was only after the discovery of the body that they were formally arrested, a circumstance which has, on the Madras view of the law, rendered inadmissible the statements made by them, even though they led to the discovery of material facts. In addition to proof of conduct there is also evidence that the appellants had been seen either near or with the girl on the evening of the 7th close to the tank where her body was found and that the first was seen that evening with his cloth wet and muddv feet, although the day was a dry one. I see no reason, on the whole, to discredit the evidence as to the movements of the appellants that evening. That of P.W. 6 seems to have beenin the hands of the Police on 8th September and was probably the cause of the 1st appellant being suspected and sent for by the Police. The other witnesses, no doubt, did not give information till the 10th but it is explained that they were away from the village and did not know what had happened till then. In addition, the story told by P.W. 10 is of some importance as he saw the 1st appellant running along the street at about 7 that night.

So far there is a strong circumstantial case against the appellants, but that is not all. When they were examined by the Committing Magistrate, they strengthened the case against themselves. The 1st appellant admitted that he and the 2nd appellant planned to kill the girl and took her to the scene of the murder. He then went on to deny that he was present at the actual commission of the murder and ended up by saying That day we came across the girl and caught her. As I read the whole statement, it seems to me tantamount to a confession, not merely of abetment, but of actual participation. Like so many other murderers, he is ready to admit everything but the actual commission of the crime. Like them, he leads the Court up to the scene of the murder, with everything ready set for the performance, and then pleads that he went away and some one else did what both had planned. The 2nd appellant retaliated with a full confession implicating both himself and the 1st appellant in the murder. Both of these confessions were withdrawn in the Sessions Court. The 1st appellant denied having made the statement attributed to him, which was, of course, false. The 2nd appellant did not deny his confession, but alleged that he was intimidated into making it. The customary arguments are put forward that retracted confessions are worthless as evidence and that a retracted confession cannot be used under section 30 of the Evidence Act, unless it is corroborated by other evidence. Confessions do not become worthless as evidence merely because they have been retracted. The question always is whether the confession was made voluntarily in the first instance and whether it is true. In the case of the 1st appellants confession, it seems to have been made voluntarily and to be true, so far as it goes. It certainly was made and he does not allege that he was coerced into making it. It cannot perhaps, be used against the other appellant, as it falls short, in terms, of being a full confession of guilt.

As regards the confession made by the 2nd appellant, it was made to a Magistrate in Court and I see no reason to suppose that it was not made voluntarily.

He knew that there was already very strong evidence against him and had just heard the 1st appellant accusing him of having committed the murder single-handed. He retaliated, I infer, by telling the whole truth and implicating the 1st appellant further than he had implicated himself. To his retraction I attach no importance. Accused persons usually do retract their confessions as the scaffold looms nearer. His confession, undoubtedly, can be used against the 1st appellant under section 30 of the Evidence Act. It is not evidence as the section itself indicates, but can be used to corroborate the other evidence against the 1st appellant, of which there is plenty. We have been referred to Marudamuthu Padayachi, In re(I.L.R. 54 Mad. 788=34 L.W. 162)with regard to the interpretation of that section. What that case lays down is that confessions made at the actual trial cannot be used under the section. Here the confessions were made at the preliminary enquiry and were filed as part of the prosecution evidence at the trial itself.

Another complication is suggested that the 1st appellants confession amounts to no more than a confession of abetment and that he cannot be convicted of abetment without a separate charge. The answer is twofold. In the first place, I read the confession as essentially one of guilt as a principal. Taking it into account together with the circumstantial evidence against the 1st appellant, I do not doubt that he actually participated in the murder. The suggested complication therefore does not exist. In the next place, it is impossible to accept such a contention in the face of the decision of the Judicial Committee in Begu v. The King-Emperor.(I.L.R. 6 Lah. 236 (P.C.))In the result, I think that the appellants have been rightly convicted and sentenced and would dismiss the appeals.

As regards the legal position created by the ruling of the Full Bench, it seems to me that it cannot be left as it is. It is obviously undesirable that in matters of procedure, the High Courts of India should not speak with one voice. The Legislature should, I venture to suggest, intervene at once and make its intention clear. Here we have an important point of procedure, on which there is an acute difference of opinion, which ma very well involve different consequences for accused persons, according to the part of India, in which they have the good or ill fortune to be tried. A man may be hanged in Bengal, because a statement made by him to the Police is there held to be admissible in evidence against him, who would have been acquitted in Madras, where the statement is ruled out as inadmissible. In Bengal, again, an accused man is allowed to prove that, at the earliest possible opportunity, he protested his innocence. That might, in a case that was hanging in the balance, just turn the scale in his favour. In Madras, on the other hand, he cannot prove what he said and might be convicted in consequence. Nor is that the only anomaly. A is charged with having murdered B and is arrested on that charge at midday. All the Courts are agreed that, if he says to a Police Officer at 12-5 p.m. I buried Bs body under the floor of my kitchen and the body is there found as a result of his information, his statement can be proved against him under section 27 of the Evidence Act. But let him make the same statement at 11-55 a.m. and controversy begins. Over a great part of India this last statement can be proved against him. In Madras it cannot, for two reasons that section 162 , Criminal Procedure Code , excludes it and that section 27 of the Evidence Act limits the exception to cases where the statement has been made while the maker is in the custody of the Police. If the Legislature really intended to differentiate between statements made before and after arrest, admitting proof of the latter and forbidding proof of the former, I cannot imagine what principle or policy underlies the distinction. The Legislature is clearly very suspicious of the Police pressure; yet, under the conditions required by section 27 of the Evidence Act, it allows even part of a confession made to a Police Officer which is otherwise absolutely excluded by section 25 to be proved, although the maker of it was actually in the custody of the Police at the time. Why should it be understood to have intended to exclude an exactly similar statement made by him at a time, when he was not under arrest and therefore less amenable to Police pressure To that question, I can myself give no answer that sounds reasonable. If either statement is the more open to a suspicion of undue influence, it would seem to be that made when the accused person was in Police custody, but it is held to be admissible in evidence, while the less objectionable statement is excluded.

I have since read my learned brothers observations in regard to S. 8 of the Evidence Act. They are, of course, open to the same criticism that the general admissibility under that section of statements accompanying and explaining the conduct of a criminal in relation to his crime is subject to the special prohibition imposed by section 162 , Criminal Procedure Code.,against the admission of all statements made by accused persons to the Police during investigation. It is to be regretted that the Legislature, when it sets out to alter an evidentiary provision in the Criminal Procedure Code omits to consider the effect of the alteration on material sections of the Evidence Act. As we pointed out the other day, when S. 164 , Criminal Procedure Code , was altered so as to make it absolutely obligatory on Magistrates to warn a confessing accused that he was not bound to confess and that his confession might be used against him, with the result that Courts have been holding since then that confessions are inadmissible in evidence in cases where the warning has been omitted, section 27 of the Evidence Act still says that the omission is not a bar to the admissibility of confessions which are otherwise admissible. In the Procedure Code of 1882, section 162 contained a clause saving both dying declarations under section 32 and statements under section 27 of the Evidence Act. So that the section seemed then to apply to the statements of accused persons as much as to those of witnesses. In the next Code, when the section was altered and enlarged, section 32 remained in the saving clause, but section 27 disappeared. For what reason It is possible to argue, from the fact that the saving of statements of persons, who would, if they had lived, have been witnesses, was left in and the saving of statements made by accused persons was left out, that the Legislature intended to exclude the statements of accused persons from section 162. Otherwise, why should it not have kept section 27 in the saving clause It would, I think, be far better, if the Legislature made its intention clear in both Acts instead of leaving the Courts to themselves to work out the problem and to decide from a comparison of both Acts which is the general provision in one and which the special in the other, that overrides it.

Krishnan Pandalai, J.- I wish to add a few words on the bearing, as I conceive it, of the opinion expressed by the Full Bench on the inadmissibility by reason of section 162 of the Criminal Procedure Code of statements by accused persons before they are arrested to the Police during investigation accompanying and explaining acts other than statements which acts are themselves relevant under section 8 of the Evidence Act.

At the argument before us before the reference two points on the admissibility of such statements were raised: (1) raised by the appellants advocate on behalf of the accused that suchstatements are inadmissible by virtue of section 162 of the Criminal Procedure Code, and (2) raised for the Crown that though section 162 be held to cover statements by accused in a grammatical sense, the section was not intended to make inadmissible what is admissible by such sections as sections 27 and 8 of the Evidence Act. Of these, it was the first question that was the one which was referred to the Full Bench and the opinion of the Full Bench, which I respectfully adopt, is that the terms of section 162 are wide enough to include statements by accused persons. This however, in my opinion, does not fully dispose of the second point raised in the case, namely, to what extent that view must be held to affect section 8 of the Evidence Act which makes statements admissible as explaining conduct. All the members of the Full Bench have dealt with the effect of their view of section 162 on section 27 of the Evidence Act, and they all say that that section is not affected thereby. They regard the latter section as an exception to the general rule laid down by section 162 and hold that statements admissible under section 27 are still admissible. But none of the learned Judges has dealt with the case of statements admissible under section 8 when made by parties so far as they explain their conduct which is relevant under that section. I should be reluctant to attribute to their Lordships any view on a matter which is not discussed by them and should prefer to say that they have left it open whether statements explaining conduct admissible under section 8 are not another class of exceptions to the general rule under section 162. There is, as far as 1 have studied the judgments, only one sentence in them which can mean that there are no other exceptions to section 162 when applied to accused persons except section 27 of the Evidence Act. It occurs in the judgment of Reilly, J., where he says:

Statements admissible under that section (S. 27) can still be proved; but all other statements of accused persons made to the Police in the course of investigation are shut out.

There is no similar view expressed in either of the two other judgments and it therefore cannot be taken to be the view of the Full Bench.

The second of the two questions therefore which arose as to the admissibility of these statements is in my opinion still open. Had it been necessary to decide it, I should say without hesitation that, although section 162 of the Criminal Procedure Code be read as including statements by accused persons, it could never have been intended to abrogate and repeal by implication section 8 of the Evidence Act and statements explaining; conduct which are admissible under that section. All the Courts recognise that section 27 of the Evidence Act is not in any way affected by section 162 of the Criminal Procedure Code. The view approved by the Full Bench is that the former is to be regarded as an exception to the latter and therefore saved according to a well-recognised rule of interpretation. Are we then to say that section 8 of the Evidence Act, so far as it applies to accused persons, has been abrogated by section 162 or that section 162 so far as it applies to accused persons is an exception to the general rule under section 8 of the Evidence: Act and therefore prevails over it To my mind, whether you regard section 162 as a general rule to which section 27 of the Evidence Act is an exception or as a special rule applicable to accused persons and therefore itself an exception to the general rule under section 8 of the Evidence Act, it is impossible to believe that the Legislature in framing section 162 of the Criminal Procedure Code intended by a side wind to repeal or modify the effect of a general statute of such great importance as the Evidence Act , and a general provision in it of such obvious use to the administration of justice as section 8 thereof. The result of so applying section 162 would be to produce startling, if not absurd, results. If a thief is arrested and then points out the place where he has hidden stolen property after making a statement about it, the statement, even though it amounts to a confession, is admissible under section 27 of the Evidence Act so far as it relates distinctly to the recovery of the property, and this is so on the interpretation of section 162 now placed on it. But, if he was not arrested and even if the statement does not amount to a confession, it cannot be received in evidence although it furnishes the only explanation for the mans conduct both of which would under section 8 be admissible. A construction which leads to such anomaly might be imperative if it were unavoidable on the language of the statute. But the Court will if possible adopt the construction which avoids such a result and it seems to me that now that section 162 has been authoritatively held to apply to statements by accused persons, the reasonable construction is to recognise that statements admissible under S. 8 as explaining conduct which is itself admissible form another class of exceptions like those which fall under section 2

7. I however do not think it necessary in view of the other evidence in the case to decide this point against the appellants or to use the statements which form the subject-matter of the reference in the way above indicated. I put them aside and omit them from consideration.

The question then is whether there is sufficient other evidence against the appellants. [His Lordships discussed the evidence, referred to the confessions and continued:]

Both the appellants retracted these statements in the Sessions Court and it is urged that according to the rule observed by Courts retracted confessions must not be acted upon without corroboration. It has been held that this is not an absolute rule of law but a rule of caution. I accept it as such. Applying it to this case I have to see first of all whether the retraction or the statement is true, and I find that while there is nothing shown to induce me to think that the statements before the Committing Magistrate were the result of pressure or inducement or anything else to show that they were not voluntary and true, there is every ground to believe that the retraction was the result of a desire to escape and not true. It is then said that the 1st appellants statement only shows that he was an. abettor. That is so if his statement stood alone. But it is obvious that like other criminals who confess, the 1st appellant seems to have just stopped short of divulging the story at its critical point because he could not screw up courage to do it. That last step which the 1st appellant left out was stated by the 2nd appellant which may be taken into consideration against the first.

Corroboration of the story is in my opinion as ample as corroboration of such an incident can be. Corroboration cannot possibly be expected of the actual act of killing. If that were required that would cease to be corroboration and it would be independent evidence of the crime. But corroboration can only be of material facts which show that confession though retracted is in all probability true. The evidence that the two appellants were in the company of the girl and taking her about at dusk on the 7th of September is significant. She was not seen alive after that and in Jact was missing and was being looked for very soon afterwards. Where could she have gone in this short interval It should have been possible for the 1st appellant, a relation, to show that the child was left in its house or with some other relation as it was getting dark. He has not chosen to do so. On the contrary the evidence is clear that after the jewels were surrendered by the 2nd appellant it was he incompany with the other appellant who took the police to the place where the body lay hidden among the elephant grass and pointed it out. I am convinced that this is as strong corroboration as can be expected. I come to the conclusion that the conviction of the 1st appellant was right.

As against the 2nd appellant the evidence is stronger still. In addition to the witnesses whose evidence has already been referred to, there is the fact that he made a free and frank confession to the Committing Magistrate which he retracted and chiefly it was from him that the Police recovered the jewels which have been identified as those worn by Appi when she was missed. The same observations as to corroboration apply with greater force to the 2nd appellant as I have already made with respect to the 1st and it is unnecessary to repeat them. I think that he also was rightly convicted of murder.

As regards sentence, only one sentence is possible in such a case death. I agree that the convictions and sentences should be confirmed and the appeals dismissed.