Benson, J

[1] In this case fourteen persons were tried by a Special Bench of this Court, constituted under Section 6(6) of the Indian Criminal Law Amendment Act, 1908, for an offence, punishable under Section 121 A, Indian Penal Code (conspiring to commit certain offences against the State), and also with abetting the murder of Mr. Ashe. The Special Bench acquitted all the accused on the latter charge. The majority of the Court (Sir Arnold White, C.J. and Ayling, J.) convicted the first seven and the 14th accused of the offence, charged under Section 121 A and acquitted the remainder. The third Judge of the Special Bench (Sankaran Nair, J.) convicted the 1st, 2nd, 6th and 14th accused and acquitted the remainder. The late Advocate-General has given a certificate under Clause 26 of the Amended Letters Patent of 1865 to the effect that the decision of the Court on certain specified points of law requires further consideration. The present Advocate-General, who, as Public Prosecutor, appeared for the Crown at the trial, raises a preliminary objection that the Letters Patent do not authorise the grant of a certificate in a case tried by a Special Bench appointed under the Indian Criminal Law Amendment Act of 1908. His contention is that cases under the Act must be dealt with in accordance with the special procedure prescribed by the Act and that there is no provision in it for a review of judgment either on a certificate from the Advocate-General or otherwise. The Act, however, does not profess to lay down complete rules of procedure: the ordinary procedure has to be followed except in so far as it is modified by the Act ; there is nothing in the Act to modify the ordinary procedure in this particular respect. Clause 26 of the Letters Patent gives power to the High Court on the Advocate-General s certificate to review in every case mentioned in Clause 25 of the Letters Patent i. e. in " any criminal trial before the courts of original criminal jurisdiction which may be constituted by one or more of the Judges of the said High Court." The present trial satisfies these conditions and is therefore open to review on a certificate granted by the Advocate-General.

[2] The points of law which are certified as requiring further consideration are stated as follows in the certificate of the Advocate-General:

1. That in my judgment the opinion of the majority of the court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the court to convict on the uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true, requires to be further considered ; and it requires to be further considered whether Section 133 of the Indian Evidence Act read with Section 114 illustration (h), does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances.

2. That in my judgment the opinion of the majority of the court that the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial should be further considered.

[3] That in my judgment the opinion of the majority of the court that the statements made by P.W. 6. and P.W. 12 to P.W. 31 were made to an authority legally competent to investigate the facts within the meaning of Section 157 of the Indian Evidence Act, should be further considered.

[4] That in my judgment the opinion of the majority of the court that the statements of P.W. 6 and P.W. 12 to P.W. 31 were not rendered inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act, should be further considered.

[5] That in my judgment the opinion of the learned Judges that, while the statements made by a parson to a Police Officer in the course of an investigation and taken down in writing may not be proved by the production of the writing, they may be proved by oral evidence requires to be further considered.

3. The facts of the case, so far as is necessary to understand the questions raised, may be briefly stated as follows:

4. The accused are alleged by the prosecution to have conspired at various places between January 1910 and 17th June 1911 with certain persons not now before the Court, viz., with one Vanchi Aiyar, who is proved to have shot himself on the 17th June 1911 immediately after murdering Mr. Ashe, (who was then District Magistrate of Tinnevelly), one Dharmaraja Aiyar, who is now dead, (the case for the Crown being that he committed suicide) and one Madaswami who has absconded, and also with three others Arumugam, Somasundaram and Ramasami Aiyar, who were given a pardon under the usual conditions and taken as approvers and called as witnesses (Nos. 6, 12 and 16) for the prosecution in this case. The approvers have given evidence as to a certain treasonable society founded by the 1st accused, Nilakantan, of which they were all members. They have also given evidence of meetings of the society at Tenkasi and Tuticorin and elsewhere attended by the accused, and there is no question but that, if the accused were present at these meetings and took the "blood oath" as alleged by the approvers, they are guilty. The chief evidence against the accused is the evidence of the several approvers. They are admittedly accomplices. The questions of law that have been raised relate to the legal validity of an accomplice s evidence, if uncorroborated, and to the admissibility and legal effect of certain statements made by two of the accomplices (Arumugam and Somasundaram) in this case prior to the trial. The following are the circumstances under which the statements were made. Mr. Ashe was murdered for political reasons by Vanchi Aiyar on the the 17th June, and Vanchi immediately afterwards shot himself. When his house at Shencottah was searched next day (18th), certain letters were found which showed that Arumugam (P. W. 6) was in communication with him; so on the evening of the next day (19th) immediately after the arrival of Mr. Thomas, the Duputy Inspector-General of the Criminal Investigation Department, a party of police was despatched to Tuticorin to search his house. The party was in charge of Mr. Johnson, Assistant Superintendent of Police, a Gazetted Officer of 3 years standing and of Veeraraghava Aiyar (P. W. 31), an Inspector of the C.I.D. who had just arrived with Mr. Thomas from Madura. Having arrived at Tuticorin the party surrounded the house of Arumugan about 2 hours after midnight and sealed it with a view to search it after daybreak. Arumugam was awakened and told that his house would be searched in connection with the murder and he was asked if he knew anything about it. He then offered to tell all he knew, and his statement was thereupon taken and recorded in the Inspector s note book. On information given by Arumugam, the hous e of Somasundaram (P. W. 12) was searched the next day, and he in like manner made a statement to Veeraraghava Aiyar, which was Recorded by him. Three days later, both these men made statements substantially to the same effect to Mr. Cox, the Magistrate, which he recorded under Section 164, Criminal Procedure Code. At the trial before the Special Bench, which began in the following September and went on for some months, Arumugam and Somasundaram were examined as witnesses for the prosecution and gave evidence, as already stated, involving not only their own guilt, but also the guilt of several of the accused who took the " blood oath " at the treasonable meetings held at Tenkasi and Tuticorin. In order to corroborate this evidence of the accomplices, given at the trial, the prosecution relied on the statements recorded by the Magistrate Mr. Cox. They also called the Inspector, Veeraraghava Aiyar, to give evidence of the statements made to him by the accomplices. The defence object to this evidence as inadmissible, but the majority of the Special Bench held that the Inspector might give oral evidence of the statements made to him, but could not use the writing in his note book as evidence. The learned Judges of the Special Bench state in their judgments that the extent to which and the conditions under which, the evidence of accomplices should be acted upon was the subject of much argument and contention before them, and their judgments show that they considered the various questions raised with the greatest care and came to their conclusions after a full examination not only of the codified law of the courts in England and India relating to the questions raised.

5. I will now turn to the five points of law which the Advocate-General certifies should be further considered.

[6] The first is thus stated:

The opinion of the majority of the court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the court to convict on the uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true, requires to be further considered; and it requires to be further considered whether Section 133 of the Indian Evidence Act read with Section 114, illustration (b) does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances." The substantive provision of the Indian code law is contained in Section 133 of the Indian Evidence Act, 1872, which, in explicit terms, declares that " An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." But with this section it is also necessary to bear in mind Section 114 which provides that "The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case." To assist the courts in applying the general words of this section, various illustrations are appended to it. One of these relates to accomplices, and it is stated as follows:--"The court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. But the court shall also have regard to such facts as the following, in considering whether such maxim does or does not apply to the particular case before them:--A, a person of the highest character, is tried for causing a man s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement describes precisely what was done, and admits and explains the common carelessness of A and himself." And again, " a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such manner as to render previous concert highly improbable." In my opinion there is nothing in the illustration (b) to Section 114 which over-rides, or renders nugatory, the plain and explicit declaration contained in Section 133, or which requires us to hold that the evidence of an accomplice must always, and in all circumstances, be regarded as unworthy of credit unless it is corroborated in material particulars, or which requires us to hold that it is not open, to the court to act on such evidence, even when the court believes it to be perfectly true. The very terms of the illustration itself appear to be intended to guard against such an interpretation. The words are " the court may presume " (not "the court shall presume") " that an accomplice is unworthy of credit, unless he is corroborated in material particulars." But it then adds a caution to show that the presumed unworthiness is not a rule of universal application. It styles the presumption " a maxim," not a rule of law, and says, " but the court shall also have regard to " certain facts in considering whether such maxim does or does not apply to the particular case before it." It then refers to the case of a person of the highest character giving evidence, of an offence committed by the negligence of himself and another person of equally high character. The witness is an accomplice, and he is not corroborated in any particular, still less in material particulars; yet the court should have regard to various circumstances, viz., the high character of the witness, and of the accused, and the nature of the offence alleged, and would be at liberty to refuse to draw any presumption against the credibility of the witness, even though his evidence stood alone and uncorroborated.

[7] Judges do, no doubt, ordinarily regard the evidence of accomplices with great suspicion, and rightly so, for reasons which are so manifest and so often stated that it is unnecessary to restate them here, and judges do ordinarily require corroboration in material particulars before they will act on the evidence of an accomplice. It is the duty of the judge to explain to the jury the taint and infirmity which ordinarily attach to the evidence of an accomplice, and to remind them that they may presume that his evidence is unworthy of credit unless corroborated in material particulars. But it is also his duty to refer to any circumstances or facts (such as those referred to in the illustrations to Section 114) which show that the presumption should not be drawn in the particular case or which rebut the presumption, if drawn, and he should instruct them that if, having scrutinized the evidence of the accomplice with care and caution, and having considered it in the light of the circumstances in which it was given, and all other circumstances, tending to show its truth or falsehood, they believe it to be true they should act upon it, even though there may be no corroboration of it in the strict sense of the word, but that if they are not satisfied of its truth they should refuse to act upon it.

[8] This is, in effect, how the majority of the Special Bench have laid down the law. In my opinion they have correctly stated the law as laid down in the Indian Evidence Act, and in the Indian and English cases quoted by them : Reg. v. Ramasami Pada yacht (1878) I.L.R. 1 M. 394 Ramnsami Gounden v. Emperor (1903) I.L.R. 27 M. 271 at p. 2901 per Bhashyam Iyengar, J., Queen-Empress v. Goberdhan (1887) I.L.R. 9 All. 528 at p. 554 per Edge, C.J., Reg. v. Boyes (1861) 9 Cox C.C. 32 per Cockburn, C.J. Reg. v. Gallagher (1883) 15 Cox C.C. 291 per Coleridge, C.J. and Rex v. Tate (1908) 2 K.B. 680 per Lord Alverstone, C.J.

[9] The suggestion made in the latter part of the Advocate-General s first point, if I understand it aright, is that the presumption of untrustworthiness must always, and in all circumstances, first be drawn, and the evidence cannot in any case be acted upon unless "special circumstances" are found which rebut the presumption. I think this way of stating the law is less accurate than that adopted by the majority of the Special Bench and might possibly mislead juries by leading them to think that circumstances affecting their judgment should be technically divided into two classes, special and non-special or ordinary, and that unless a circumstance could be technically labelled "special" it should not be at all considered by them. Section 114 speaks simply of "facts" not "special circumstances," and the caution attached to illustration (b) merely says "the court shall also have regard to such facts as the following" not "special" facts or "special" circumstances. Any fact which is admissible as evidence, and which is duly proved, may, in my opinion, be considered for what it is worth without attempting to classify it as a " special" or non-special fact. In this connection, however, it may be stated that the majority of the Special Bench do, in fact, refer to a number of what may well be called special circumstances, which powerfully influenced their opinion as to the credibility of the accomplice witnesses. It is therefore, difficult to understand what practical purpose was to be served in the present case by the further consideration of the first question raised by the certificate of the Advocate-General.

[10] In dealing with the first point in the Advocate-General s certificate, Mr. Govindaraghava Aiyar, on behalf of the accused, desired to argue that the view of the majority of the Special Bench as to what constitutes "material particulars" in illustration (6) to Section 114 is incorrect. We, however, were unanimous in holding that no such question was raised in the certificate of the Advocate-General and that it was not open to the accused s pleader to argue any question of law not raised in the certificate. Mr. Govindaraghava Aiyar contended that as soon as a certificate was granted in regard to any point of law the whole case was opened up for consideration under Clause 26 of the Letters Patent. That clause is as follows:--"on its being certified by the said Advocate-General that, in his judgment, there is an error in the decision of a point or points of law decided by the court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said court should be further considered, the said High Court shall have full power and authority to review the case, or such part of it as may be necessary, and finally determine such point or points of law, and thereupon to alter the sentence passed by the court of original jurisdiction, and to pass such judgment and sentence as to the said High Court shall seem right. "I do not think that these words can be held to open up the whole case as if op appeal, for Clause 25 enacts that there shall be no appeal. The grant of the certificate no doubt gives the court " power and authority to review the case or so much of it as may be necessary, "that is, in my opinion, "necessary" in order to determine the point or points of law raised. This is clear from the words "and finally determine such point or points of law" which follow the word "necessary"; after the point or points of law have been finally determined, then, or to use the word in Clause 26 " thereupon", the court may alter the sentence and pass such judgment and sentence as may seem right; and the court may, of course, then go into the case so far as is necessary in order to enable it to do this correctly. When the case has reached that stage, then the court has to be guided by Section 167 of the Indian Evidence Act which enacts that " the improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision." This view is in accordance with the judgments of Beaman and Devar, JJ. in the case reported in Emperor v. Narayana Raghunath Patki (1907) I.L.R. 32 B. 111 where the question is fully discussed.

[11] Turning now to the second point in the Advocate-General s certificate, it is stated as follows :--"In my judgment the opinion of the majority of the court that the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial, should be further considered." There were two sets of previous statements of Arumugam and Somasundaram admitted at the trial, viz., (1) their statements to Inspector Veeraraghava Aiyar and (2) their statement, 4 and 3 days respectively later, to the same effect to the Magistrate, Mr. Cox, recorded by him, under Section 164, Criminal Procedure Code. I think that the opinion of the majority of the Full Bench on the question of their admissibility is right. The law on the subject is contained in Section 157 of the Indian Evidence Act, 1872, which reproduces in a simplified form the provision in Section 31 of Act II of 1855 and enacts that In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved." This section, which differs widely from the English law, expressly states that a former statement made by a witness may, if made under the conditions stated in, the section, be proved in order to corroborate the evidence of the witness at the trial. No exception is made in the section, or elsewhere in the Act, so as to exclude such former statements in the case of a witness who is an accomplice. It was contended in the argument that the general rule as to the admissibility of former statements laid down in Section 157 is limited in the case of accomplices, by a special rule to be inferred from illustration (6) to Section 114. It may, however, be doubted whether such a method of reasoning is not contrary to accepted canons of interpretation. It seemed unreasonable to hold that the express rule of law stated in Section 157 can be limited by a maxim which is not of universal application. The validity of the suggested reasoning depends on an assumption that the court must always, and in all circumstances, presume that an accomplice is unworthy of credit, whereas we have seen in dealing with the first point certified by the Advocate-General that there may be circumstances in which the court would be justified in not drawing the presumption. The illustration itself gives an instance of such a case. In such a case it is impossible to see any reason why the evidence of the accomplice witness should not be corroborated by a previous statement to the same extent and subject to the same conditions as in the case of a witness who was not an accomplice. I do not think that there is anything in the Indian Evidence Act to exclude the evidence of accomplices from the plain and express rule in Section 157, nor can it be suggested that "corroborate" is used in Section 157 in a different sense from that in which it is used in illustration (b) to Section 114. The former statement of an accomplice is, therefore, legally admissible, to corroborate his testimony at the trial and the weight to be attached to it, or, in other words, how far it does really corroborate the evidence given at the trial must vary with the facts of each case. No hard and fast rule, capable of mechanical application, can be laid down. In the great majority of cases, it would, no doubt, be found to be merely the repetition of tainted evidence affording no ground for believing it to be true, and, therefore, adding nothing whatever to its value. On the other hand, if there was evidence, or even a suggestion, put forward by the defence that the evidence given by the witness at the trial was the result of recent influences brought to bear upon him, it would be most important to be able to prove that the witness had made statements to the same effect as his evidence at the trial long-before the influences relied on by the defence had been brought to bear upon him. For example, take the accomplice, Arumugam, in the present case. He gave evidence at the trial involving several other persons beside, himself, and stating various particulars about the treasonable meetings which they attended. If the prosecution proposed to corroborate that evidence by proof of a former statement made months after his arrest, and when the police had collected their other evidence, and had, in fact, completed the scheme of the case to be proved against the accused, it is obvious that the former statement would add no strength to, would be no real corroboration at all, of the evidence of the witness at the trial. But, is not the case very different when, as was found by the majority of the Special Bench, it appears that Arumugam first told the same story at a time, and under such circumstances, as to entirely negative the idea that it was either falsely concocted by himself or suggested to him by the police ; when it appears that the story told was not what the police wanted at that time, nor was such as was supported by the evidence then in their hands, nor was such as would have been concocted by Arumugam either of his own motion, or in consultation with Madasami or Somasundaram, if he was anxious to protect himself or them from prosecution for complicity with Vanchi Aiyar in the murder of Mr. Ashe, nor was such as Arumugam s previous relations with the persons then named would render probable It is not unreasonable to say that those and similar matters referred to by the majority of the Special Bench ought not to have been considered in judging whether Arurnugam was a truthful witness or not So, too, if there was reason to think that owing to the lapse of time the memory of a witness at the time of the trial could not be wholly relied on, the fact that he had made a statement to the same effect when the facts were fresh in his memory would be highly relevant in corroboration of the evidence at the trial. The rule, then, would seem to be that the former statements are legally admissible, and may be considered for what they are worth, but that the weight to be attached to them depends entirely on the facts of each case. The point raised in the Advocate-General s certificate is whether such statements "can legally amount to corroboration of the evidence given at the trial." It is not clear whether this means " are legally admissible as corroboration" or whether it means " can legally amount to corroboration in material particulars within the meaning of illustration (b) to Section 114." If it means the former, I have stated the answer above. If it. means the latter, I do not think that the question is one that arises in this case.

[12] In the argument before us it was assumed by the pleaders for the defence, that Arumugam and Somasundram were found by the majority of the Court to be unworthy of credit by reason of their being accomplices, and that it was, therefore, necessary to find that they were corroborated in material particulars within the meaning of Section 114, illustration (b), before their evidence could be relied on, and that the former statements made by them were used as such corroboration. I do not think that this is a correct view of the judgment of the majority of the Special Bench. I do not anywhere find that they arrived at the conclusion that the approvers were untruthful witnesses. On the contrary they distinctly arrived at the conclusion that they were truthful witnesses. In arriving at this conclusion they state that they were influenced by the way in which they stood the test of cross-examination. They say that each of these witnesses "was subjected to the most rigorous and searching cross-examination at the hands of one after another of the ten learned Counsel and vakils appearing for the defence for periods extending over two or three days" and that though the cross-examiners had the advantage of being able to compare their evidence at the trial with three prior statements (viz., those made before Veeraraghava Aiyar, and before Mr. Cox, and before the Committing Magistrate) "the prolonged cross-examination did not succeed in breaking down the evidence of any of the three approvers," and they conclude by saying, "we do not consider that there is anything in the evidence of the witnesses inconsistent with its substantial truth." They had previously referred to the circumstances under which the approvers made their first statements, especially the intrinsic evidence of truthfulness to be derived from the very nature of the facts stated. They pointed out that the circumstances under which the statements were first made strongly negatived the idea that they were the result either of concoction by the witnesses themselves or of suggestion by the police ; that the story told was not what the police wanted, and that the persons implicated were not those that Would probably have been implicated if the police had suggested the statements or wished to obtain evidence to fit in with the letters then in their hands. They also pointed out that the story told was not such as would have been concocted by Arumugam either by himself or in consultation with Madasami or Somasundaram in order to save themselves from prosecution for complicity with Vanchi Aiyar in the murder of Mr. Ashe. They also considered that the conduct of Arumugam in not destroying the highly seditious literature found in his house, and his previous relations with the persons accused as conspirators, negatived the idea of the story having been concocted by the witnesses. In view of all the circumstances in which the statements were made and the inferences to be drawn from the nature of the statements and the conduct of the witnesses themselves, the majority of the Special Bench found it "impossible" to believe that the statements were " tutored " by the police or "concocted" by the witnesses themselves. If the evidence was not "tutored" by the police or "concocted" by the witnesses themselves, there would be no reason for regarding it as other than truthful in the ordinary sense, that is truthful so far as the witnesses themselves knew and believed, though, of course, the witnesses might make an unintentional mistake like any other honest witnesses. This view is not inconsistent with the fact that the majority of the Special Bench acquitted the 9th and 13th, accused, though they were apparently implicated by the approvers, Rarnasami and Arumugam respectively. It will be seen that they were acquitted, not because the approvers were found to be intentionally giving false evidence against them, but because there was a doubt in each case as to whether the accused was the person really referred to by the approver as present at the meetings.

[13] It is clear, then, that the majority of the Special Bench, for reasons stated, came to the conclusion, that the accomplice witnesses were truthful witnesses and were not unworthy of credit so as to require corroboration in material particulars, if that phrase is to be interpreted (as some of the cases do interpret it) as requiring that the corroboration should be by the evidence of independent witnesses. We have already seen, in dealing with the first point raised by the Advocate-General, that corroboration is not legally necessary if there are circumstances which lead the court to the conclusion that the witness though an accomplice is a truthful witness.

[14] The question, then, "whether the previous statement of an accomplice can legally amount to corroboration in material particulars of the evidence given at the trial within the meaning of illustration (6) to Section 114" is one that is not expressly raised by the certificate of the Advocate-General, nor do I think that it is one which it is necessary to consider in order to decide the questions raised by him, or the correctness of the judgment of the majority of the Special Bench. I have already shown how the former statements have been used in their judgment to corroborate the evidence of the witnesses given at the trial, and I have expressed the opinion that they were admissible under Section 157 and were properly used.

[15] If, however, it is necessary in this case to determine whether the phrase " material particulars" in illustration (6) to Section 114 is to be regarded, as in some sense, a technical expression implying corroboration by independent or untainted evidence, I am unable to go so far and to say that as a matter of law the previous statement of an accomplice can never amount to corroboration in material particulars. The pleader for the defence relies on the cases reported in Reg. v. Malapabin Kapana (1874) 11 Bom. H.C.R. 196 and Queen Empress v. Bepin Biswas (1884) I.L.R. 10 Cal. 970. In the former, it was said, at page 197, that the previous statement of an accomplice " can scarcely be said to answer the purpose for which juries are advised by judges to require the evidence of an accomplice to be confirmed." In the latter, the Judges refer with approval to the Bombay case, but add at page 974. " It is not necessary for us to consider whether the rule should be extended as far as to exclude a statement made before arrest, but we have no doubt at all that the exact correspondence in details of several statements made by an approver in the course of a trial is not corroborative evidence, such as we ordinarily require to make it safe to convict any particular prisoner." It is clear that the Judges in that case did not lay down any such absolute rule as is now suggested by the pleaders for the defence. If there are some circumstances in which a prior statement may amount to sufficient corroboration, we cannot say as a matter of law that a prior statement can never be corroboration in material particulars, though, no doubt, in the great majority of cases, it will be found that the prior statements do not add anything to the credibility of the evidence given at the trial. As I have already said, how far a prior statement does corroborate evidence given at the trial is a matter to be determined by the jury (or, where there is no jury, by the judge), on a consideration of all the facts of the case including the time when, and the circumstances in which, the former statement was made, and the facts related in the statement, considered in their relation to the knowledge of the speaker at that time and all the surrounding circumstances.

[16] It may be added that very little light as to the application of Section 157, can be gained from a consideration of English cases, since the English law has no rule similar to that in Section 157 and is generally unfavourable to the admission of former statements of a witness to corroborate his evidence at the trial, though permitting it in certain cases.

[17] The 3rd, 4th and 5th points certified by the Advocate-General relate to three objections that were taken to the admissibility of the statements made by the accomplices, Arumugam and Somasundaram, to Veeraraghava Aiyar. It may be stated at once that the admissibility or inadmissibility of those statements cannot make any difference in the decision of the present case, since the majority of the Special Bench who admitted the statements expressly say that they find it impossible to believe that the statements were either tutored or concocted, even if the witnesses statements to Veeraraghava Aiyar are discarded and if regard is paid only to their statements recorded, four and three days respectively later, to the same effect, by Mr. Cox, the Magistrate, under Section 164, Criminal Procedure Code, the admissibility of which is not, and cannot be disputed. As, however, the questions are raised in the Advocate-General s certificate and are of great general importance, I will state my opinion in regard to each of them.

[18] The objection referred to in the fifth point depends on the construction of Section 162 of the Criminal Procedure Code and may be very shortly dealt with. All the Judges of the Special Bench are agreed as to the proper construction of that section. The same construction was placed upon it in the recent case of Fanindra Nath Banerjee v. Emperor (1908) I.L.R. 36 Cal. 281 The words of the section are clear. I agree with the conclusion arrived at by all the Judges of the Special Bench, and for the reasons stated in their judgments.

[19] The third point may also be shortly disposed of The question is whether Veeraraghava Aiyar was an authority " legally competent " within the meaning of Section 157 of the Indian Evidence Act, to investigate the facts in relation to which the former statements of Arumugam and Somasundaram were made, that is, the facts relating to the murder of Mr. Ashe. It was contended before us that the words " competent to investigate" must refer exclusively to the persons competent to hold the police investigation into an alleged offence, under Chapter 14 of the Criminal Procedure Code. But I do not think that this view is correct. The words in the Evidence Act are perfectly general, " competent to investigate the fact"--Can it be supposed, for instance that a statement made before a Civil Court relating to some fact, the existence of which the court was legally competent to try, and otherwise relevant under Section 157 of the Indian Evidence Act in a subsequent criminal trial, could be shut out on the ground that the word " investigate" would not include a trial by a Civil Court I take it that the answer must be in the negative. It is unfortunate that there was no adequate inquiry before the Special Bench as to how far Inspector Veeraraghava Aiyar was an authority legally competent to investigate the facts relating to the murder of Mr. Ashe. The Deputy Inspector-General of his Department, Mr. Thomas, was a witness, but he was never asked any question at all as to the Inspector s competency to investigate. The result is that we are obliged to deal with the case on very imperfect information as to the facts. On the whole, however, I am inclined to hold that the Inspector was legally competent to investigate the facts relating to Mr. Ashe s murder. He was an Inspector of the Provincial Criminal Investigation Department, a branch of the Police, whose work is not confined to any particular district, but which was created " to assist in the investigation of crimes which are of such a special character that the local officers are unable to deal with them adequately without help." (G.O. No. 913, Judicial dated 2nd July 1908). He was directed by the head of his own department (the Deputy Inspector-General) and by the Local District Superintendent of Police to search certain houses, including the house of Arumugam at Tuticorin, in connection with Mr. Ashe s murder. It is not contended that his deputation for this duty was other than legal or that he was not legally competent to conduct or take part in the searches. I take it that conducting the searches was an integral part of the investigation, and legal competency to conduct the searches carried with it legal competency to do all things properly incidental to, and connected with, the searches, and included the listening to any statements relating to the murder or those who took part in it, made by persons whose houses were being searched. I do not think that the words " investigate the fact" in Section 157 of the Indian Evidence Act should be construed in a narrow sense so as to restrict competency to the Police Officer who, under Chapter 14 of the Criminal Procedure Code, is charged with the investigation of an offence. I am, therefore not prepared on the evidence before me to dissent from the view of the majority of the Special Bench that the Inspector was an officer legally competent to investigate the facts relating to Mr. Ashe s murder within the meaning of Section 157 of the Indian Evidence Act. A suggestion was thrown out that " the facts " in this case must be the conspiracy, not the facts generally relating to the murder of Mr. Ashe, and it was argued that, in that view, the Inspector could not investigate it without the order of a Magistrate, as it (the conspiracy) is a non-cognizable offence. This argument, I think, proceeds on an incorrect view. The Inspector was engaged in and upon the investigation of facts relating to Mr. Ashe s murder, and the statement was made to him by the person whose house was being searched and it was made as a matter " relating " to the murder. It cannot be regarded as relating only to the conspiracy and not at all to the murder.

[20] It remains to notice the. fourth point in the Advocate-General s certificate which is as follows:--" That in my judgment the opinion of the majority of the court, that the statements of P.W. 6 and P.W. 12 to P.W. 31 were not rendered inadmissible by reason of the provisions of Section 25 of the Indian Evidence Act, should be further considered." Section 25 of the Indian Evidence Act states that " No confession made to a police officer shall be proved as against a person accused of any offence." The words of Section 25 in their plain and ordinary meaning seem to me to render the statements made by the accomplices to the Police Inspector, Veeraraghava Aiyar, inadmissible. The statements are confessions: they were made to a police officer and it is now sought to use them as against some of the accused in this case. The majority of the Special Bench point out that in Section 26, the confession (when made not to a police officer, but while in his custody) is expressly made inadmissible only as against the person who made it, but may be proved as against other persons and observes that as the " mischief " of the two sections is the same. Section 25 also should be understood as only excluding a confession made to a police officer from being used as against the person making it. It is difficult to accept this without putting too great a strain on the plain language of Section 25. It certainly is difficult to see any satisfactory reason why the scope of the two sections should be different, but that is hardly a sufficient reason for not construing each section so as to give effect to its plain language. It seems to be especially undesirable to extend the language of Section 25 beyond its plain meaning when the effect of doing so might tend to encourage those corrupt practices of the police in regard to working for confessions which it is the policy of the law to prevent. There is much force in the observation of Batchelor, J. in the case reported in Emperor v. Hari Singh Ganpat Singh that a confession which is inadmissible against the person making it, ought a fortiori to be inadmissible against another person implicated by it. The case in Queen-Empress v. Tribhovan Manekchand (1884) I.L.R. 9 Bom. 131 cited by Mr. Napier for the prosecution, is hardly an authority for his contention,, as the present question did not arise in that case. The point that West, J. was enforcing was that Section 25 did not refer to the use of a confession in other than a criminal proceeding, that an enquiry under Section 523, Criminal Procedure Code, was not a criminal proceeding, and that a confession could, therefore, be used as an admission in an enquiry under that section.

[21] Since writing the above, I have had the advantage of perusing the judgments which my learned brothers, Wallis and Miller, JJ. are about to pronounce on this question. I am much impressed by the force of the argument that may be drawn against my view from reasoning founded on the history of Sections 24 to 26 which were embodied first in the Code of Criminal Procedure of 1861 and afterwards transferred without material alteration to the Indian Evidence Act of 1872, but I am still inclined, on the whole, to the opinion that effect must be given to the language of Section 25 and that it renders the statements of Arumugam and Somasundaram to Inspector Veeraraghava Aiyar inadmissible.

[22] But as I have already pointed out this can make no difference in the decision of this case, since the majority of the Special Bench expressly state that it is impossible to believe that the evidence of the 6th and 12th prosecution witnesses was either " tutored "by the police or concocted by the witnesses themselves, even if the witnesses statements to Veeraraghava Aiyar are discarded and if regard is paid only to their statements made a few days later to the Magistrate, the admissibility of which is not, and cannot be disputed. In other words the learned Judges were prepared to act on the evidence of these witnesses as truthful, apart from any corroboration derived from their statements to the Inspector. In these circumstances, it is not open to us as a court of review to go into the facts and consider whether the learned Judges ought or ought not to have arrived at that conclusion.

[23] I would therefore dismiss the petitions that have been presented asking us to set aside the convictions of the accused.

Wallis, J.

[24] This was a case tried before three Judges of this Court, under Act XIV of 1908, and comes before us on a certificate of the then Advocate-General pursuant to Clause 26 of the Letters Patent that certain points of law which in his opinion were decided by the Judges, or, a majority of them, require to be further considered. Objection was taken at the outset by the Officiating Advocate-General that Clause 26 does not apply to criminal trials before the High Court under Act XIV of 1908. Reference was made to Clause 24 conferring extraordinary original criminal jurisdiction on this Court and it was contended that the accused before the Court were not " persons brought before it on charges preferred by the Advocate-General or by any Magistrate or other officer specially empowered by the Government in that behalf" so as to come within that clause, but were committed to this Court for trial by a Magistrate acting under the powers conferred upon him by Section 6 of Act XIV of 1908. Assuming that to be so and that the jurisdiction of the Court does not arise under Clause 24 but under an Act of the Indian Legislature to which the provisions of the Letters Patent are subject, I am still of opinion that the objection fails, because Clauses 25 and 26 of the Letters Patent, as to points of law being reserved by the Court or certified by the Advocate-General, are perfectly general in their terms and, in my opinion apply equally to all criminal trials before this Court, whether in the exercise of its ordinary or extraordinary original criminal jurisdiction under Clauses 22 and 24 of the Letters Patent or of any future statutory original criminal jurisdiction that may be conferred upon it by a competent legislature. Further, Act XIV of 1908, nowhere, says that Clauses 25 and 26 of the Letters Patent are not to apply to trials under the Act and the presumption is strongly against any intention on the part of the Indian legislature to modify by implication provisions of the Letters Patent issued under an Act of Parliament. I think therefore we were bound to hear and dispose of the application for review however much our so doing may tend to defeat the object of this special legislation, which was to ensure the speedy trial of these cases, or may further interfere with the business of the Court by withdrawing five Judges from their ordinary duties.

[25] The Advocate-General s certificate has been granted under that part of Clause 26 which empowers him to certify that " a point or points of law which has or have been decided by the said court shall be further considered," The certificate purports to have been granted upon certain representations made to the learned Advocate-General and does not show whether the written judgments of the court were before him. They are before us and we have to satisfy ourselves in the first place as to what was actually decided by the majority or the full court as the case may be with reference to each of the points of law and as to whether the decision was erroneous.

[26] The points before us arise on the construction of the Indian Evidence Act, I of 1872, and, as the learned Officiating Advocate-General has argued, it is undoubtedly our duty in construing that Act, which is in the nature of a code, to follow the language of the sections of the Act, so far as they are clear, and, only in cases of ambiguity or obscurity, to fall back upon the English law upon which it was based.

[27] The certificate as to the first point is as follows:

That in my judgment the opinion of the majority of the court, that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the court to convict on the uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true, requires to be further considered ; and it requires to be further considered whether Section 133 of the Indian Evidence Act read with Section 114, illustration (6), does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances.

[28] As to this, I am of opinion that the proposition that it would be open to the court to convict on the uncorreborated testimony of an accomplice in the sense and in the terms in which it is stated in the judgment of the majority of the Judges is correct and does not amount to an error in Taw. Section 114 of the Indian Evidence Act authorises the court to make certain presumptions of fact. Nine well known maxims are there given as illustrations of the section, the second of which is " the court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars." They are all presumptions which may naturally arise, but the legislature by the use of the word " may" instead of " shall", both in the body of the section and in the illustrations, shows that the court is not compelled to raise them but is to consider whether, in all the circumstances of the particular case, they should be raised. To make this clearer still, there is the additional provision " But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it," and then as to each of these maxims, instances are given of facts in which the maxim is inapplicable, and, in the case of the maxim now in question, there are two Such instances. Now, if Section 114 stood alone, I do not see how it could be said that it was not open to the judges of fact in the particular case, whether judge or jury, to apply or not to apply any of these maxims, having regard to all the facts of the case before them ; and this is expressly stated by the draftsman, the last Sir Fitzjames Stephen, in his Indian Evidence Act, at page 174, " Finally it declares in Section 114 that the court may in all cases whatever draw from the facts before it whatever inferences it thinks just." But as regards the particular maxim, Section 114 does not stand alone, because Section 133 provides that " a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." If the law was so laid down in the Act, it was, I have no doubt, because it was the English law as understood at the time and had been the law ever since the decision of Atwood s case by the twelve Judges at the close of the 18th century (1 Leach C.C. 464) and because the draftsman and the legislature were not prepared with anything to substitute for it. They were hot of course unaware of the well-established practice of courts in England and India according to which, to use the language of Sir Fitzjames Stephen in Article 121 of his Digest of the law of Evidence, published in 1876, "when the only proof against a person charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular, it is the duty of the judge to warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so." The adoption of the practice in England may be traced in R. v. Wells (1829) 1 M. and M. 326 Rex. v. Noakes (1832) 5 C. and P. 326 Rex v. Addis (1834) 6 C. and P. 388 R. v. Webb (1834) 6 C. and P. 595 Rex v. Neal (1835) 7 C. and P. 168 Rex v. Moores (1836) 7 C. and P. 370 and Regina, v. Farler (1837) 8 C. and p. 106 where it is said to deserve all the reverence of law. In these cases the judges told the jury they ought not to convict on the evidence of accomplices, whether one or more, unless it was confirmed or corroborated not only as regards the offence generally but as regards the particular accused, but the decision was invariably left to the jury ; and in Reg. v. Mullins (1848) 7 St. Tr. N.S. 1110 Maule, J. pointed this out and observed that these directions to the jury were not directions on points of law which the jury were bound to adopt, but observations respecting facts to assist the jury in their endeavour to judge of the facts. Then in Reg. v. Stubbs (1855) Dearsly C.C. 555 S.C. 25 L.J. (m.c.) 16 the Court of Crown Cases Reserved held that the omission of the court to warn the jury that they ought not to convict one of the accused, as to whom the evidence of the accomplices was not corroborated, was only a departure from the usual practice, which was again stated by the judges, and did not involve any question of law on which the Court of Crown Cases Reserved could review the case under 11 and 12 Vict., Cap. 78. The law was laid down precisely in the same way by the Court of Queen s Bench in Reg. v. Boyes (1861) 9 Cox. C.C. 32 and by Lord Coleridge, L.C.J. sitting with Brett, M.R. and Grove, J. at the Central Criminal Court for the trial of Gallagher Reg. v. Gallagher (1883) 15 Cox C.C. 291 and by Cave and Collins, JJ. in In re Meunier (1894) 2 Q.B. 4

15. Under the larger powers now given by the Criminal Appeal Act, 1907, the court may now treat a failure to comply with the well-established practice of dirercting juries as to how the evidence of accomplices is to be regarded as having involved a miscarriage of justice within the meaning of Section 4, Rex v. Tate (1908) 2 B. 680 but this in no way affects the authority of the above decisions ; nor are they affected by the fact stated by Sir Alfred Wills in his Circumstantial Evidence, at page 365, that in one case Baron Bramwell and in another he himself withdrew the case from the jury when there was no corroboration and directed an acquittal. In India at any rate such a course would be a direction at variance with the provisions of the Indian Evidence Act.

[29] As regards the practice in India it has been observed that the danger of acting on the uncorroborated evidence of accomplices is even greater than in England ; and before the passing of the Indian Evidence Act it was held by a Full Bench of the Calcutta High Court in Elahee Buksh s case (1866) 5 W.R. Criminal Rulings page 80 on a review of the English authorities that a failure to direct the jury in accordance with the practice was a misdirection on which the conviction could be set aside. With regard to the effect of the Indian Evidence Act on the practice, I cannot altogether agree with the observation which has been sometimes made that the practice was embodied in Section 114, illustration (b). The legislature might, of course, have enacted that no one should be convicted on the evidence of accomplices " unless corroborated in some material particular by evidence implicating the accused," as in 48 and 49 Vict., Cap. 69 ; but this would have been a serious departure from the law as previously understood both in England and in India and in my opinion the legislature were not prepared to go so far but were content with enacting the maxim as ordinarily applicable, whilst leaving it to be applied or not according to the circumstances of the particular case. They must however, I think, have contemplated that the law as declared rather than newly enacted in the section would continue to be applied under the safeguard of the practice ; and it is not, I think, surprising that the practice should have continued unaffected by the passing of the Act, as appears from the Indian cases which are fully reviewed in the judgment of Mr. Justice Sankaran Nair. The practice, it must be borne in mind, was one of advising the jury not to convict on the uncorroborated evidence of an accomplice, leaving it to them whether to follow the advice or not, a liberty they undoubtedly possess under Section 114 read with Section 133 of the Indian Evidence Act. The same degree of liberty must necessarily be reserved where the court itself is the judge of fact instead of the jury. In such a case the judge cannot be required consistently with the provisions of the Indian Evidence Act to direct himself not to convict on the uncorroborated evidence of an accomplice. All that he can be required to do is to exercise extreme caution in departing from such a well-established rule of guidance. In such a case, the learned Judges constituting the majority lay it down that it is the duty of the court to bear in mind that it is tainted evidence, to scrutinize it with the utmost care, accept it with the greatest caution, consider it in the light of the circumstances in which it is given and in the light of all the other circumstances in the case of which evidence is legally admissible. Then if you believe it, act on it even if there is no corroboration in the strict sense of the word. This direction seems to me in accordance with the law laid down by this Court in Reg. v. Ramasami Padayachi (1878) I.L.R. 1 M. 394 and Ramasami Gounden v. Emperor (1903) I.L.R. 27 M. 271. If the alternative proposition as to special circumstances put forward in the certificate of the learned Advocate-General means more than this and involves an enquiry as matter of law in each case whether there are special circumstances entitling the court to act on uncorroborated evidence I am unable to agree with it. I am of opinion that in the judgment of the majority on this point there is no error of law entitling us to interfere Clause 26 of the Letters Patent.

[30] The second point is whether the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial. Reading the certificate with the judgment of the majority of the Court it appears to me that the question for our consideration is whether such previous statements if proved can be regarded as amounting to corroboration of the accomplice in material particulars which the meaning of Section 114, illustration (b) of the Indian Evidence Act, as it is scarcely disputed that under Section 157 such statements are admissible in corroboration. I do not think that the courts in England have ever attempted to define exhaustively what will amount to corroboration--a question which appears to be rather one of fact depending on a consideration of all the circumstances of the case. In India, the evidence of previous statements made in certain circumstances is admissible under Section 157 of the Indian Evidence Act to corroborate the testimony of the witness. It is therefore admissible evidence in corroboration of the evidence even of a witness who is an accomplice, and I am not prepared to say as the Advocate-General wishes us to say that the previous statements of an accomplice cannot legally amount to corroboration of the evidence given by him at the trial. I think that previous statements admissible as corroboration under Section 157 of the Indian Evidence Act may or may not amount to sufficient corroboration and that whether they will be so or not depends on the facts and circumstances of the particular case. That previous statements- may in some cases amount to corroboration where, as in the present case, there are the previous statements of several accomplices was pointed out in Elahee Buksh s case (1806) 5 W.R. Crl. R. p. 80 the leading Indian authority. Sir Barnes Peacock , at page 84, observed " But if, two or three persons should be apprehended at different places, at long distances from each other, and should each confess and give a similar account as to the persons associated with them in a particular dacoity, the statement of each, if made under such circumstances as not to raise a presumption of collusion, might be proved in corroboration of his evidence ; such statement being admissible as corroborative evidence under Act II of 1855, Section 31" which is the same as Section 157 of the present Act. It is in my opinion clear that in the opinion of the learned Judge the previous statements of the accomplices in those circumstances would amount to sufficient corroboration of their evidence and this is also in accordance with the dictates of good sense. In England, previous statements of witnesses whether accomplices or not, are not generally admissible in evidence ; but when admissible in exceptional cases as in regard to assaults on women, they are admitted, it is now settled, as evidence of corroboration--Rex v. Osborne (1905) 1 K.B, 551 and it is clear from the recent decision of the Court of Criminal Appeal in R. v. Ellsom (1905) 76 J.P. 28 that in the opinion of the court such statements, if properly before the court, may, when considered in the circumstances in which they were made, amount to strong corroboration of the evidence of an accomplice. Taken by itself the previous statement may of course be as tainted and untrustworthy as the evidence in the box and not supply any real corroboration ; but on the other hand the circumstances in which it was made may afford strong corroboration of its truthfulness apart from the credibility of the accomplice, as in the case put by Sir Barnes Peacock which has now been inserted as an illustration to Section 114(6) of the Indian Evidence Act--"A crime is committed by several persons, A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable." In such a case the previous statements not only corroborate each other but also the sworn statements in the box, and they are evidently regarded as confirming the tainted evidence of the accomplices and making it right to act on that evidence. It is true that they are given in the section rather as facts rendering corroboration unnecessary than as amounting themselves to corroboration, but this, it appears to me, is a distinction which makes no real difference, as the court is invited to believe the evidence and act upon it. The previous statements received and acted upon by the majority of the learned Judges in this case, both those made to the Inspector and those made to Mr. Cox, were in their opinion of this character and in my opinion the learned Judges were justified in receiving and acting upon them as corroboration. They have not in my opinion misdirected themselves at all in this respect, and that being so, we have no authority, sitting here not as an appellate court, but as a court of error under the Letters Patent, to call in question the conclusions they have arrived at on evidence properly before them. With regard to the decisions in Reg. v. Malapdbin Kapana (1874) 11 Bom. H.C.R. 196 and Queen-Empress v. Bepin Biswas (1884) I.L.R. 10 Cal. 970 I do not think they can be taken as laying down as matter of law that previous statements of accomplices cannot amount to sufficient corroboration of their testimony, and if they do I think they go too far. A direction to that effect by a Sessions Judge was made the ground of an appeal against acquittal by the Bengal Government in 1898, Empress v. Bhairab Chunder Chuckerbutty (1898) 2 C.W.N. 702 but the case went off on another point.

[31] The third point is whether the previous statements of the 6th and 12th witnesses for the prosecution to Inspector Veeraraghava Aiyar, the 31st witness, were admissible as not made to an authority legally competent to investigate the fact within the meaning of Section 157 of the Indian Evidence Act. It, is not suggested that when the statements were made the Inspector was competent to investigate the charge of conspiracy, a non-cognizable offence, on which the accused have been convicted, but it was contended for the prosecution but denied for the defence that he was competent to investigate the murder of Mr. Ashe and that it was in the due course of that investigation that these statements were elicited. Whether this would be sufficient depends on the construction of the words " legally competent to investigate the fact " in Section 157. Sections 156 and 157 deal with the corroboration of witnesses as to relevant facts, and reading the two sections together, I think Section 157 should be read thus, as if the words in brackets were there, " In order to corroborate the evidence of a witness (as to a relevant fact) any former statement made by the witness as to the same fact before any authority competent to investigate the fact may be proved." It seems to me that under the section the evidence of witnesses in the box as to relevant facts may be corroborated by proof of previous statements as to the same facts if made before an authority legally competent to investigate such facts. It cannot, I think, be questioned that an Inspector investigating the murder of Mr. Ashe was legally competent and bound in the course of his investigation to elicit the statements now in question ; and being so, I think the provisions of the section were so far satisfied and that to make the previous statements admissible it was not necessary that the Inspector should have been legally competent to investigate the conspiracy of which the accused have been convicted. As to whether the Inspector to whom the statements were made was in fact legally competent to investigate the murder of Mr. Ashe, Section 156 of the Code of Criminal Procedure provides that any officer in charge of a police station " may, without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try" and Section 551 provides that " Police Officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station." The learned judges forming the majority have found that there can be no question that the Inspector is a police officer superior in rank to an officer in charge of a police station, and also that as a member of the Provincial Department of Criminal Investigation, the " local area " within the meaning of Section 551 of the Code of Criminal Procedure, to which he was appointed, was the Presidency of Madras. The word Provincial is undoubtedly used as equivalent to the Presidency of Madras, which is one of the Provinces of British India ; and it is a matter of common knowledge that the department was constituted in pursuance of recommendation 35 of the Police Commission, 1902-1903, which is as follows:--" That there should be constituted in each province a Criminal Investigation Department for the purpose of collecting and distributing information regarding organized crime, and to assist in the investigation of crimes when they are of such a special character as to render their assistance necessary." Such investigation would necessarily take place in any part of the presidency in which these crimes should occur, and in these circumstances I think the Presidency may well be held to be the " local area " to which the seven Inspectors in the Department on whom the work of investigation must necessarily fall are appointed. The assassination of a Collector--a crime happily unprecedented in the history of the Presidency for over fifty years--was obviously a crime of such a special nature as to render the assistance of the department necessary. The Inspector in this case had come down with the head of his department in connection with this murder. I think his evidence and the G.O. No. 913, Judicial, dated 2nd July 1908, which has been put in defining the relations between the Officers of the Criminal Investigation Department and the ordinary Police Officers of the Criminal Investigation Department and the ordinary police officers in the various districts of Presidency, was evidence sufficient to support the finding--though not perhaps so full as if this objection had been taken when the statements were tendered in evidence and had not been reserved for the argument after the evidence for both sides had been closed. I do not think that these are matters which we should go into sitting here as a court of error under Clause 26 of the Letters Patent. I am also inclined to think that the word investigate in Section 157 of the Indian Evidence Act cannot be read as limited to investigation under the Code of Criminal Procedure, that the Inspector had been brought down from Madras specially to investigate the murder of Mr. Ashe, and that he was not only legally competent but under a duty to investigation to record the statements now in question. In the result, I hold there is no ground for interference under this head.

[32] The two remaining points certified by the Advocate-General whether confessions by an approver to a police officer are not excluded both by Section 25 of the Indian Evidence Act and Section 162 of the Code of Criminal Procedure may I think conveniently be dealt with together and the latter first, because as pointed out in Queen-Empress v. Bampu Lal (1884) I.L.R. 6 All. 509. These three sections (Sections 25 and 26 of the Indian Evidence Act, 1872, and Section 162 of the Code of Criminal Procedure, 1898) which were designed to guard against improper practices on the part of the police in obtaining statements from witnesses and confessions from the accused first made their appearance together as Sections 145 (now 162), 148 and 149 of the Criminal Procedure Code of 1861; and Sections 148 and 149 of that Code have since been transferred without material alterations to the Indian Evidence Act, 1872, where they appear as Sections 25 and 26 and as observed by Lord Blackburn in Mayor of Portsmouth v. Smith (1889) L.R. 10 A.C. 364 at p. 371 " where a single section of an Act is introduced into another Act, it must be read in the sense which it bore in the original Act from which it is taken, and consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in the new Act." This it seems to me is the proper method to apply even where, as here, the sections have been introduced into a measure of codification, and I am unable to attach much force to arguments depending on the position of Sections 25 and 26 in the Indian Evidence Act. As to whether the previous statements of the approvers to the police were inadmissible under Section 162 of the Code of Criminal Procedure, 1898, as previous statements of witnesses to the police, the Code of 1861, Section 145 (now Section 162) provided for the oral examination of witnesses by the police and permitted these statements to be taken down in writing "provided that any statement so reduced into writing shall not be signed by the person making it nor shall it be treated as part of the record or used as evidence." Such statements were no doubt usually taken down in writing, and there does not appear to have been any attempt made to give oral evidence of them to corroborate the witnesses under the Codes of 1861, 1872 or 1882, which in this respect were not materially different. By Act X of 1886, Section 6, Section 162 of the Code of Criminal Procedure was altered by inserting into the section the word " shall " as shown in brackets. " No statement, other than a dying declaration made by any person to a police officer in the course of an investigation under this chapter shall, if reduced to writing, be signed by the person making it, or (shall) be used as evidence against the accused." As thus altered the section appears to go still further and to make statements to the police inadmissible whether they were taken down in writing or not. In 1898, an attempt was made by the prosecution to use the previous statement to the police of an approver to corroborate him, but the statement was rejected as inadmissible under Section 162, Queen-Empress v. Bhairab Chunder Chuckerbutty (1898) 2. C.W.N. 702 and if the section, as it then was, had not been altered, there can be no doubt the statements now in question would have been inadmissible. In the Code of 1898 which came into force in 1899 the provisions of Section 162 were altered. The main alteration as pointed out in Dadan Gazi v. Emperor (1903) I.L.R. 33 C. 1023 was made for the purpose of setting at rest the controversy as to the circumstances in which the accused were entitled to have access to and make use of such previous statements of the witness to contradict them--a course the police had endeavoured to prevent by taking them down in their diaries which are privileged under Section 172. This was dealt with by a new proviso entitling the accused to require the court to refer to such previous statements, and if the court thinks it expedient in the interests of justice to direct copies to be given to the accused. But as against this concession to the accused, the body of the section was altered in such a way as to modify the absolute exclusion of such statements as evidence for the prosecution, contained in the Code of 1882 as modified in 1886. The present section runs thus :--" No statement made by any person to a police officer in the course of an investigation under the Chapter (XIV) shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence." Here it is only the writing that is excluded. The change of language must, I think, have been deliberate and I am constrained to agree with the decision of the learned Judges, and with Fanindra Nath Banerjee v. Emperor (1908) I.L.R. 36 C. 281 and the judgment of Karamat Husain, J. in Rustatn v. King Emperor (1910) 7 A.L.J. 468 that oral evidence of such statements is not inadmissible. On this point, am of opinion that there was no error in law.

[33] Going back now to the fourth point whether the statements are inadmissible, not under Section 162 of the Code of Criminal Procedure as previous statements of witnesses to the police, but as confessions made to the police under Section 25 of the Indian Evidence Act which provides that " no confession made to a police officer shall be proved as against a person accused of an offence," the question is, does the section mean that no confession to a police officer by an accused person is to be used against him, or that it is not to be used against others either , The next Section 26 relating to confessions made by accused persons in the custody of the police unless in the immediate presence of a Magistrate renders them inadmissible as against such persons. The two learned Judges forming the majority see no reason why any difference should be made between the two sections, and read Section 25 as also relating to confessions made by a person accused of an offence to the police, and as rendering such confessions inadmissible only as against them. Sankaran Nair, J. on the other hand thinks that confessions made to the police may have been considered to require more stringent provisions than confessions made by accused persons when in police custody to others. In accordance with the rule already stated, I proceed to consider the meaning and effect of these sections as first enacted in the Code of Criminal Procedure, 1861, Section 145 of that Code (now Section 162) as already pointed out provides that statements of witnesses to the police if reduced to writing shall not be used as evidence. The following section then deal with the confessions of accused persons to the police in the courses of investigations by the latter. Section 146 forbids the police to offer any inducement by threat or promise to an accused person to make any disclosure or confession. Section 147 forbids the police to record any statement or any admission or confession of guilt which may be made before him by an accused person. Section 148 (now Section 25 of the Indian Evidence Act) then provides that "no confession or admission of guilt made to a police officer shall be used as evidence against such person accused of any offence," and Section 149 that " no confession or admission of guilt made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate shall be used as evidence against such person." As I have already said, confession in these sections appears to mean confession by an accused person to the police in the course of an investigation under the chapter, and as before the passing of Section 30 of the Indian Evidence Act of 1872 confessions of accused persons could not be used against co-accused, such confessions could only be evidence against the accused persons making them, or to corroborate their evidence when they turned approvers, by treating their confessions as previous statements made by the witnesses under Section 31 of Act II of 1855 since reproduced as Section 157 of the Indian Evidence Act 1872.

[34] Now it may be said on the one hand that as by Section 145 of the Criminal Procedure Code of ,1861 immediately preceding, the legislature had made an exception in the general law regarding the use of previous statements as corroboration restricting the use in evidence of such previous statements if made to the police, whether they amounted to confessions or not, and practically excluding them, it is not likely that they intended in Section 148 to introduce a further exception as to the use of previous statements which amount to confessions ; that, as observed by Miller, J. if any such fresh provision had been intended, it would have extended to exculpatory statements by accused persons as well as to confessions, and to confessions made by accused persons whilst in police custody under Section 149 (now Section 26 of the Indian Evidence Act) as well as to confessions to the police themselves coming within Section 148 (now Section 25 of the Indian Evidence Act). It may be said further that the language of Section 148 " no confession or admission of guilt made to a police officer, shall be used as evidence against a person accused of any offence " is susceptible of the meaning that no confession made by such a person to the police should be used against him, and that in this respect the scope of the two Sections 148 and 149 is the same, although in the latter the draftsman dealing with more complicated provisions has expressed his intention with greater precision. These considerations appear to me to have considerable force in favour of a restrictive construction of the section. The result of such a construction, as already explained, would be that confessions regarded merely as previous statements to the police were practically excluded as corroborative evidence down to 1886, and absolutely excluded from 1886 down to 1898, and only became admissible owing to the change in Section 162 of the Code of 1898.

[35] On the other hand, as against this view there is the fact that the terms of the prohibition in Section 148 of the Code of 1861 and now in Section 25 of the Indian Evidence Act are perfectly general and as observed by Benson, J., a construction which renders statements which are inadmissible against the persons making them admissible against other persons is not one to be favoured. It is also perhaps worthy of note that confession to the police which come under Section 148 were forbidden to be recorded by Section 147, whereas there was no such prohibition as regards confessions made by persons in police custody which come under Section 149. The question then is whether giving due weight to all these considerations, as I have endeavoured to do, there is sufficient,,, to require the court to put a restrictive construction upon the section or to justify it in so doing. I have felt great doubt upon this point especially in view of the difference of opinion among the members of the Court; and in these circumstances I think the safer, as it is certainly the simpler course is to read the words of the section in their natural meaning without putting any restrictive interpretation upon them, and so reading them I hold that these confessions were inadmissible even as corroborative evidence under Section 25 of the Indian Evidence Act.

[36] I am, however, of opinion that the rejection of the statements made by the two approvers to the Inspector cannot affect the result of the trial. It has been held in a long catena of Indian cases that, in reviewing a case under Clause 26 of the Letters Patent, it is the duty of the court when it finds there has been a misreception of evidence to apply the provisions of Section 167 of the Indian Evidence Act, and not to reverse the conviction if it shall appear to the court that " independently of the evidence objected to and admitted there was sufficient evidence to justify the decision," the decision here being that of the original tribunal. Hitherto this jurisdiction under Clause 26 has only been exercised in jury cases where of course no reasons were given for the verdict, and the court of review was perforce bound to go into the evidence itself for the purpose of seeing whether or not the remaining evidence justified the decision of the jury. In the present case under Section 11(3) of the Criminal Law Amendment Act, 1908, the decision is that of the majority of the Court, and the reasons for that decision have been given in a most careful and elaborate judgment. Now discarding the previous statements of the two approvers to the Inspector, we find that, within a few days after these statements, the approvers made statements to the same effect before a Magistrate, Mr. Cox, as to which no question of inadmissibility arises, and the learned Judges have observed that, even if the statements to the Inspector are discarded and only these recorded by Mr. Cox are considered, they find it impossible to accept the defence theory that the approver s story was concocted or tutored, and, from a perusal of the Judgment, it is perfectly plain that discarding the statements to the Inspector they accepted the evidence of the two approvers as generally truthful, and acted upon it as they were entitled to do. Here I may observe that the learned Judges had before them the fact, which was properly in evidence, that before their statements to Mr. Cox the approvers hade made still earlier statements to the Inspector at a time and under circumstances which in their opinion negatived the concoction at that stage of such a story as they afterwards told to Mr. Cox and in the witness-box ; and they were, I think justified in a view of all the circumstances in rejecting the suggestion of subsequent concoction in the interval between the two sets of statements, unless supported by a reference to the earlier statements which were available to the defence under the proviso to Section 162 of the Code of Criminal Procedure, and would not, as we now know, have supported it. If then the Court had rejected the statements made to the Inspector and still convicted the accused, it would have been impossible for us to say that there was not sufficient evidence to justify their decision, and it appears to me to be equally impossible for us to say so, when in effect the learned Judges tell us that though considering the evidence admissible they did not consider it necessary to base their decision upon it and were prepared to convict without it.

[37] I think therefore the application must be dismissed.

Miller, J.

[38] On the preliminary question I do not think I can usefully add anything to what has already been said. I agree with the opinions of Benson and Wallis, JJ.

[39] On the first point in the Advocate-General s certificate I have a few words to say but having had an opportunity of perusing the judgments written by some of my learned colleagues I do not think it necessary for me to discuss the decided cases bearing on the subject. On the effect of the decisions, I agree with what has just been read by Wallis, J.

[40] I consider that the majority of the Special Bench have correctly laid down the law, and that it is not the law that special circumstances must be found to exist before an accomplice s statement can be acted upon without corroboration. To hold so as a matter of law would, it seems to me, deprive the court of the discretion given by Section 114 of the Indian Evidence Act to raise or not to raise the presumption--would in effect substitute the phrase shall presume for may presume in that section.

[41] I do not dissent from the decisions which have held that ordinarily as a matter of practice a court should not accept the uncorroborated evidence of an accomplice as sufficient evidence to support a conviction, but it is impossible consistently with the Indian Evidence Act to hold that as a matter of law the presumption must be raised, and rebutted by special circumstances or by corroboration.

[42] I am not sure that the conclusion of Sankaran Nair, J., stated at page 61 of the printed judgments, differ materially from those of the other two learned Judges, bur if he intended to lay it down as law that a conviction is illegal which is based upon the uncorroborated evidence of an accomplice, unless something which amounts in law to a special circumstance be found by the judge or jury, then it seems to me he goes beyond the statement of the English law accepted from Taylor on Evidence by the L.C.J. in R. v. Tate (1908) 2 K.B. 680 for that statement, so far as I am at present concerned with it, is only to the effect that the respect habitually paid by Juries to the advice of judges has given rise to a settled practice not to convict upon the uncorroborated evidence of an accomplice except in very special circumstances. Consequently, as I understand it, judges are bound by law to advise juries to adhere to this practice, but it does not follow that juries are bound as a matter of law to do so.

[43] In the present case, the majority of the Special Bench have given reasons for deeming the accomplice to be credible witnesses in the circumstances of the case, and Mr. Govinda Raghava Aiyar had consequently to argue that special circumstances are circumstances differing in quality from those which are ordinarily applied as tests of the credibility of witnesses on whom there rests no taint of complicity in the crime with which the accused is charged.

[44] To accept this contention would, to my mind, be to introduce into the law on this subject an additional and entirely undesirable and unnecessary element of artificiality; the contention itself is perhaps an illustration of the danger of adopting the suggested rule as a rule of law.

[45] I concur on the second point with the majority of the Special Bench, when they hold that the previous statements of accomplices are admissible under Section 157 of the Indian Evidence Act to corroborate their testimony given at the trial.

[46] It was not denied that such statements cannot having regard to Section 157 of the Indian Evidence Act, be excluded if made in the circumstances set forth in the section, and inasmuch as the section expressly admits them in order to corroborate the testimony of a witness, it necessarily follows that they are legal corroboration of the evidence given at the trial.

[47] The words of Section 157 of the Indian Evidence Act cannot be controlled by the illustrations to Section 114, a section which treats of presumptions which may be made : but the evidence admitted under Section 157 may be so far affected by the illustrations to Section 114 that the corroboration afforded by it might, conceivably, not be in law Sufficient corroboration to justify the court in acting on the evidence given at the trial. Consequently I must take it, I think, that the Advocate-General suggests for our consideration the view that the phrase corroborated in material particulars in illustration (b) to Section 114, is a technical term connoting a corroboration different from that of Section 157, in fact a corroboration by independent or untainted evidence. I am unable to find reason to accept this view as a matter of law. The evidence, I conclude, is admissible as corroboration and whether it is sufficient or not to justify the court in believing the evidence given at the trial is a question of the weight to be given to it and not a question of law.

[48] I do not think that I can usefully add much to what has already been said upon this point by Wallis, J. whose judgment I have had an opportunity of reading: I concur entirely in his conclusions as to the law.

[49] I may point out that the learned Judges in Queen Empress v. Bepin Biswas (1884) I.L.R. 10 Cal. 970 declined to consider whether the rule should be extended to the case of previous statements made before arrest, and that Sankaran Nair, J. (at page 63) is prepared to hold that there might possibly be a difference where the previous statement of an accomplice is made at a time when there was no inducement to make a false statement and in circumstances which indicate that it is true.

[50] But if previous statements made under some circumstances are sufficient corroboration, then it seems to me very difficult to lay down as a matter of law the rule suggested by the Advocate-General, simply because, in our opinion, such cases are fewer than those in which the previous statements are valueless. And there is no need for us to try to do so : the discretion given to Judges and juries in weighing evidence is all that is required, and no rule is in my opinion wanted except to secure that Judges and Juries dealing with facts shall have fully before them the defects inherent in the evidence of accomplices and the tests which experience has shewn to be the best aids in estimating its real value in the particular case,

[51] I see danger and not safety in ruling out as inadmissible in the case of accomplice witnesses any tests of credibility which are available in the case of other witnesses whether the test applied tends to confirm or to discredit the evidence.

[52] The third point.--I do not think that our decision upon points 3, 4 and 5, can affect our judgment on the case, because it seems to me quite clear from their judgment that the Chief Justice and Ayling, J. were prepared to arrive at the conclusion at which they did arrive whether the evidence of Veeraraghava Aiyar proving previous statements of the accomplices, Arumugam and Somasundram, is admitted or rejected. It seems therefore, to me really unnecessary to express any opinion upon these three points, but I follow my learned colleagues in doing so.

[53] So far as the 3rd point is concerned the decision of the majority is correct, if Inspector Veeraraghava Aiyar was legally competent to investigate the fact within the meaning of Section 157 of the Indian Evidence Act : that is for the most part a question of fact and the evidence bearing on this point was put before us at the hearing. It shows that the Inspector was deputed by Mr. Thomas, the Inspector would be legally competent to make the investigation for which he was deputed. In the absence of any statement by Mr. Thomas to the contrary I consider that the deputation to assist in making of searches equivalent to an authority to the Inspector to assist at an investigation : the making of searches is investigating within the meaning of that word in the Criminal Procedure Code, if that be necessary; the investigation in question was not the collection of evidence to determine who murdered the Collector of Tinnevelly; the assassin had killed himself and no investigation was wanted : the investigation was to collect evidence to establish a charge of abetment of the murder, to ascertain who were the instigators of the crime. The existence of the conspiracy alleged by Arumugam was relevant to the issues involved in that investigation and the statement of Arumugam was therefore relevant to that investigation, and it makes no difference that the conspiracy alleged by Arumugam has not been shewn at the trial to have been a conspiracy of abettors of the particular murder in question. Whether the fact of Section 157 of the Indian Evidence Act be here the truth of the statement of Arumugam or the existence of a conspiracy to murder, Veeraraghava Aiyar was competent to investigate it so far at any rate as he could do so in the course of his searches at Tuticorin.

54 Of course it is possible that his" authority was only to guard the door or make or copy a list of papers or carry boxes or dig up floors, but I am not prepared to presume that that was what was expected of an officer of the rank of an Inspector of the Criminal Investigation Department. I therefore find nothing in the evidence put before us to require me to hold that the Chief Justice and Ayling, J. were in error on this point.

55. The fourth point:--On this point I am of opinion that there is no error of law in the judgment of the Chief Justice and Ayling J.

56. I agree with those learned Judges that there is no difference in the object of Sections 25 and 26 of the Indian Evidence Act; that both are aimed at the same mischief : and I have not been satisfied that that there is any substantial reason for attributing to the legislature an intention to place a confession made to a police officer on a different footing from one made by a person in the custody of the police. Consequently I approach the consideration of this question from the point of view that, as Section 26 applies only to the proof of a confession as against its maker, so it should be held that Section 25 has a similar scope unless we are bound by its language or for some other reason to give it a wider application. Now Sections 25, 26 and 27 of the Indian Evidence Act were imported into the Indian Evidence Act from the Criminal Procedure Code of 1861, where they were placed among the provisions dealing with the powers of police officers in making investigations into cases of alleged offences. So far as I know there was at that time, that it is in 1861, no provision in the law of evidence as administered in India, corresponding to Section 30 of the Indian Evidence Act of 1872 ; and so there is no apparent reason why it should suggest itself to the framers of the code that it was necessary to provide for the case of the use of a confession as against any person other than the person who made it. These sections of the Code of 1861 were not dealing with the question of witnesses in criminal trials or with a consideration of what might or might not be corroboration of the testimony of witnesses in such trials and Sections 147, 148, 149 and 150 of that Code are clearly intended to render it, so far as possible, useless for police officers to extract confessions from accused persons for use at their trial. They are not and could not be meant to prevent the taking of confessions by the police in all circumstances, even as aids to investigation : Section 147 permits the police officer to make a note for his own information of a confession made to him.

57. By Section 147 of the Code of Criminal Procedure of 1861 a police officer is prohibited, from making a record of a confession, except for his own information, when the confession is made by " a person accused of any offence," that is to say, as I understand it, a person against whom mere is a case which is being investigated under Section 135 (vide Section 144). Section 148 forbids the use of any confession made to a police officer, as evidence against a person accused of any offence, that is to say, or so it seems to me, the same person whose confession the police officer is forbidden to record except for his own information. Then Section 149 makes a similar prohibition of the use as evidence against the maker of a confession made by any person while he is in the custody of the police.

58. The case having been investigated, the person accused of any offence is put on his trial: the confessions made by him to the police officer, or while in custody of the police officer, are not to be used as evidence against him.

59. That, it seems to me, is the natural meaning of these provisions, and the only meaning appropriate to them having regard to their position in the Code of Criminal Procedure. In short they have nothing to do with the statements of witnesses. I am not at all pressed by the difference in language between Section 148 and Section 149 of the Code of Criminal Procedure of 1861, because I think a careful examination of the two sections will shew that, in order to express clearly and at the same time correctly and elegantly the particular position dealt with by Section 149, it may very well have been deemed necessary to depart from the brief and succinct diction of Section 148. I think then there can be very little doubt that in the Code of 1861, both these sections were intended to prevent the use, as evidence against the maker, of confessions made actually or in effect to police officers.

60. Then the sections are imported without material alteration of language, into the Indian Evidence Act of 1872, and I am unable to find any reason to give them a more extended meaning than, they bore in the Code of 1.861. For prima facie the law of evidence does not allow the use of a confession, which is a form of admission, as evidence against any person except the maker ; Section 30 provides for a particular and exceptional case : and that being so there seems no reason to suppose that the legislature in transferring Sections 148 and 149 of the Criminal Procedure Code of 1861 to the Indian Evidence Act, had any intention of extending their application. On the other hand, had there been any such intention I should have expected to find an alteration in the language of Section 26 in the Indian Evidence Act, so as to extend that section to cases other than that of the maker of the confession.

61. It has to be remembered too that the confession, of a witness is not used as confession at the trial of some one else : it is not used as an admission : it is put in to corroborate or to contradict the witness : and Section 25 of the Indian Evidence Act was not, as I understand the matter, concerned with the statements of witnesses. If used for corroboration the confession is put in to shew that certain allegations made by the witness at the trial of those persons, were made by him at some earlier period, at a time when or under circumstances in which it may be regarded as somewhat probable that he might have been telling the truth. And I am unable to see that it is more dangerous to allow a witness to be corroborated by a self-incriminating statement made to a police officer than by a self-exculpatory statement to the same officer.



62. On the other hand Section 30 seems to indicate that in the view of the legislature a man is less likely to make false accusations against others when he is incriminating himself as well as them. I agree, then, with the dictum of West, J., in Queen-Empress v. Tribhovan Manekchand (1884) I.L.R. 9 B. 131 at p. 134 and am of opinion that the Chief Justice and Ayling, J. were right as regards this point of the Advocate-General s certificate.

63. I may add that I do not think the cases dealing with the Section 30 have any great bearing on the question which I am discussing. It is true that the learned Judges in one case, Emperor v. Harisingh Ganpatsing remark that their conclusion is confirmed by the language of Section 25, but it is impossible from this to draw the inference that they considered the question we have to deal with, while it is quite possible to arrive at their conclusion by reading Sections 30 and 25 together without affecting the present question in any way.



64. Fifth point.--On this point I desire only to say that the language of the section and the history of the various amendments made from time to time constrain us to accept the law as laid down by the learned Judges of the Special Bench.



65. There is no ground on which we can interfere with the decision of the Special Bench and the petitions of the accused must be dismissed : and as I have said the same result is arrived at if I am wrong, and if the evidence of Veeraraghava Aiyar is excluded so far as it relates to the previous, statements made by Arumugam and Somasundram.

Abdur Rahim, J.



66. Fourteen persons were tried on charges under Section 121 A, Indian Penal Code, and Section 302, Indian Penal Code, read with Sections 109 and 111, by a Special Bench of three learned Judges (the Chief Justice, Sankaran Nair and Ayling, JJ.) constituted under the provisions of the Indian Criminal Law Amendment Act (XIV of 1908) which provides for the speedy trial of certain offences. The trial was held without a jury in accordance with Section 11 of the Act, and the Bench unanimously found that the charge under the latter sections of abetment of murder was not proved against any of the prisoners and acquitted them all under that head of the indictment. But upon the remaining count, viz., the charge of conspiring to wage war against the King-Emperor, the learned Judges did not agree with respect to the case against all the accused : the Chief Justice and Ayling, J. came to the conclusion that the charge was substantiated against 9 out of the 14 persons tried but not against the rest (i. e., the 9th, 10th, 11th, 12th and 13th accused) while Sankaran Nair, J. was of opinion that the Crown failed to establish the case not only against the five persons acquitted by the majority of the Bench but also against four other accused persons (viz., those mentioned and the 3rd, 4th, 5th, and 7th.) The Judges were unanimous in finding four of the prisoners guilty, namely, the 1st, 2nd, 6th and the 14th accused. Under Section 11 of the Act referred to judgment was pronounced in accordance with the opinion of the majority and sentences were passed accordingly.



67. The case is now brought before us under Article 26 of the amended Letters Patent of this Court upon a certificate granted by the Advocate-General on a petition presented to him by the accused Nos. 3, 4, 5, 6 and 7. The present Advocate-General who appeared for the Crown has taken the preliminary objection that Article 26 of the Letters Patent has no application to a case tried in accordance with the provisions of the Indian Criminal Law Amendment Act and we have therefore no jurisdiction to review the case. That Article must be considered in connection with Articles 22, 23, 24 and 25. Article 22 defines the local limits of the ordinary original criminal jurisdiction which mainly coincides with the local limits of its ordinary civil jurisdiction and Article 23 empowers the High Court in the exercise of such jurisdiction to try all persons brought before it in due course of law. Then Article 24 declares that in addition to its ordinary original criminal jurisdiction the High Court shall have extraordinary original criminal jurisdiction over all "persons residing in places within the jurisdiction of any court subject to the superintendence of the High Court--the prisoners here answer the description--and shall have authority to try at its discretion arty such person brought before it on charges preferred by the Advocate-General or by any Magistrate or other officer especially empowered by the Government in this behalf. Article 25 next lays down that the accused has no right of appeal to the High Court from any sentence or order passed in any criminal trial before the courts of original criminal jurisdiction which may be constituted by one or more judges of the High Court but that it shall be at the discretion of any such court to reserve any point or points of law for the opinion of the High Court. Article 26 provides that on such a point or points being so reserved or on its being certified by the Advocate-General that in his opinion there is an error in the decision of a point of law decided by the court of original criminal jurisdiction or that a point of law which has been decided by the said court shall be further considered, the said court shall have full power and authority to review the case or such part of it as may be necessary and finally determine such point of law, and thereupon to alter the sentence passed by the court of original jurisdiction and pass such judgment and sentence as to the High Court shall seem right. It is argued on behalf of the Crown that the court of original criminal jurisdiction referred to in Articles 25 and 26 refer to the court exercising the ordinary and extraordinary original criminal jurisdiction mentioned in Articles 22, 23 and 24 and that the trial in this case was not held in the exercise of either description of jurisdiction. I think there is force in the first part of this argument as both Articles 25 and 26 speak of the court of original criminal jurisdiction, apparently meaning the court exercising the ordinary or extraordinary criminal jurisdiction of the High Court mentioned in Articles 22, 23 and 24. In fact these articles confer such plenary jurisdiction, on the High Court that it may well be inferred that it was not within the contemplation of the Letters Patent that the High Court should be called upon to exercise original criminal jurisdiction in any case not covered by these articles. It is, however, conceivable, though very unlikely, that the Indian Legislature may confer original criminal jurisdiction on the Madras High Court in cases which do not fall within the ambit of its ordinary or extraordinary jurisdiction. To these cases Article 26 would not perhaps be applicable, but I have no hesitation in holding that the contention of the Advocate-General that the present is such a case is clearly untenable. The prisoners are all residents of the Madras Presidency and over them the Court undoubtedly have jurisdiction under the first part of Article 24. It is therefore apparently not a case in which the High Court has no jurisdiction under the Letters Patent but derives its jurisdiction from a special statute. Nor is there anything in the Indian Criminal Law Amendment Act to suggest that the legislature was conscious that it was conferring a jurisdiction on the High Court which it did not already possess. The Act proceeds on the assumption that the Magistrate who held the enquiry should commit the persons charged to the High Court to whose superintendence the Magistrate is subject (see Sections 3 and 5). It no doubt makes a radical change in the procedure to be pursued in the trial at the High Court by enacting that the trial shall not be by a jury and to this extent the change is no doubt one affecting the forum of trial. But it does not purport to affect the jurisdiction of the High Court as conferred upon it by the Letters Patent; it only regulates the manner of the exercise of its jurisdiction. That the question whether a trial should be held by a judge and a jury or otherwise is not to be treated as one relating to jurisdiction is also amply indicated by the fact that it is not Articles 22, 23 and 24 of the Letters Patent, by which jurisdiction is given to this Court in criminal cases, that require that trials should be held by a judge and a jury ; that matter is dealt with by Article 38 which regulates the procedure in trials. The argument on which the Advocate-General lays the most emphasis is that the High Court in its extraordinary jurisdiction can only try such persons as are brought before it on charges preferred by the Advocate-General --which is not the case here-- or by any Magistrate or other officer expressly empowered by the Government in that behalf, and that in this case the Magistrate who committed the accused for trial to the High Court could not be taken to have preferred the charges within the meaning of Article 24 as he did not derive his authority to do so from the Government but from the legislature. It does not seem to me that there is any force in this contention. The Sub-Divisional Magistrate of Tinnevelly who committed this case was undoubtedly appointed to his office by the Government and it was by virtue of that office that he took cognizance of the offence and preferred charges against the accused in accordance with the provisions of the Criminal Procedure Code. Then the Local Government under Section 2 of the Indian Criminal Law Amendment Act directed that the provisions of that Act should apply to those proceedings, that is, among other matters, the Magistrate who had taken cognizance of the offence should send the accused to the High Court for trial upon charges to be framed by him. This is therefore clearly a case in which the Magistrate was expressly empowered by the Government to prefer the charges on which the accused were tried by the High Court, even giving a narrow and literal meaning to these words. But I may observe that the words expressly empowered by the Government were not in my opinion intended to be used in a narrow sense. If the contention of the Advocate-General were well-founded, there could be no doubt that when a European British subject is charged with an offence punishable with death or transportation for life and the District Magistrate enquires into it and commits the accused to the High Court under the provisions of Sections 443 and 447, Criminal Procedure Code, such Magistrate would not be deemed to be expressly empowered by the Government to prefer charges against the accused within the meaning of Article 24 of the Letters Patent but I do not think the application of Article 26 to such a case has ever been or can be doubted. I may mention that in Queen Empress v. O Hara (1890) I.L.R. 17 C. 642 which was a case of that nature, no such objection so far as it appears from the report was taken to the jurisdiction of the High Court to review the case under Article 26.



68. It has further been urged by the Advocate-General the object of the Indian Criminal Law Amendment Act is to provide for the speedy trial of offences of a particular description and if Article 26 of the Letters Patent applied this object would be frustrated. I do not think there is any force again in this argument. The mode in which a speedy trial was to be secured is specified in the Act itself, namely, by providing that the enquiry by the Magistrate should be held in the absence of the accused who is not to be represented at all during the enquiry, that the commitment is to be to the High Court instead of to the District Sessions Court so as to obviate an appeal, and the trial is not to be with a jury. If in addition, the legislature wanted to enact that it would not be open to the Special Bench to obtain the opinion of the High Court on any question of law however vital in its bearing on the trial in which such Bench may entertain a doubt, or that it should not be within the power of the High Court to prevent a miscarriage of justice due to an erroneous decision on a point of law, however manifest, one would expect such a declaration to have been made in absolutely clear and unambiguous language.



69. I over-rule the preliminary objection.

70. I purpose to consider the questions raised by the first two paragraphs of the

certificate together. The first paragraph requires us to consider what the law is on the subject of an accomplice s evidence and whether the law is correctly stated in the judgment of the majority of the Special Bench, and the second paragraph raises the question whether the majority of the Court are right in their view that the previous statements of an accomplice can be regarded as such corroboration of his evidence in court as the law requires.

71. I may observe that these two grounds of the certificate are couched in absolutely general terms but it is clear that the intention of the Advocate-General was not to raise mere abstract questions of law without reference to the circumstances of the case in which the view of law of the majority of the Special Bench which we are asked to reconsider was expressed and applied. I shall therefore briefly state the circumstances in which the various questions of law have arisen. So far as some of the prisoners are concerned, namely, those whom Sankaran Nair, J. alone has acquitted, the evidence of the Crown, apart from evidence relating to the general circumstances of the case, consisted principally of the testimony of three approvers, Arumugam, Somasundram and Ramaswami; and the statements which are said to have been wrongly admitted or used as corroborative evidence are statements made by these men on several occasions before trial. In dealing with the question whether the way in which the learned Chief Justice and Ayling, J. approached the consideration of the evidence of these approvers involves an error in law, one has to bear in mind the nature of the crime to which the approvers speak, the part which they themselves played in it and the circumstances in which they have come forward to give evidence for the Crown. As unanimously found by the Special Bench, Nilakantan alias Brahmachari (1st accused) who had been engaged for some time in journalistic work of a more or less seditious character set on foot early in April 1910 the conspiracy, the subject of the first count, for the purpose of overthrowing the British rule by means of a simultaneous massacre of all Europeans on a day to be subsequently fixed. This plan which was as original as it is startling in conception was thought of, because all other methods which had been tried before by those who have been engaged in the criminal conspiracies against the Government which have come to light in recent years in some parts of India, such as preaching, writing in newspapers and isolated assassinations, had failed. Nilakantan found some coadjutors; according to the finding of the majority of the Bench his confederates would be about twelve in number including the approvers, besides two or three more men who have not figured in the case, and in the view taken by Sankaran Nair, J. about seven. Of these, the accused Sankarakrishna Aiyar (accused No. 2), one Vanchi and the approver, Arumugam, appear to have been the most active adherents of Nilakantan. The evidence of conspiracy consists of the oaths taken by the conspirators at three distinct meetings--the first at a place called Tenkasi on the 10th April 1910, the second at Tuticorin in the middle of July and the third which was held at Punalur after the second meeting--to the effect that they would kill all white men on one and the same day when there was to be a general rising throughout the country and that they would sacrifice their lives and their properties in order to carry out the design. The oath was written in a piece of paper and all, who agreed to join the movement, pricked their thumbs and affixed their thumb impression in blood on the paper. The papers are not forthcoming. But according to the approvers, Nilakantan, Sankarakrishnan, Madathu-kadai Chidambaram Pillai (Accused Nos. 1, 2 and 3) and the approver Arumugam (6th prosecution witness) took part in the first meeting, the 1st, 2nd, 4th and 5th accused and all the three approvers took the oath at the second meeting, and the accused Nos. 1, 2, 6, 7, 8, 9 and 14, Vanchi and five other men took the oath at the third meeting which was held some time in August 1910. Nothing however, so far as it transpires in the evidence, seems to have been done to carry out the seditious design either in the shape of collecting arms or men in any other way whatsoever. Having regard to the obscure and humble position in life of the conspirators, the absolute lack of any means at their command to carry out a plan which from its magnitude, no less from its character, would be regarded by most people as one impossible of achievement, I think the majority of the Court was justified, if I may be allowed to say so, in regarding the conspiracy as something contemptible, so far as the possibility of its leading to any result is concerned. In all probability the idea would have died a natural death and would not even have been heard of except for an event which, in the language of the judgment of the majority of the Court, has little or no bearing on the charge of conspiracy. Vanchi who was an ardent follower of Nilakantan s teachings shot down Mr. Ashe, the Collector of Tinnevelly, on the 17th June 1911, and himself committed suicide on the spot. The motive of the murder was evidently political but, as pointed out in the judgments of the Special Bench, the offence was not committed in pursuance of the conspiracy with which the prisoners are charged, it was in fact an act done in direct violation of the plan decided upon at the meetings. The majority of the Bench observe the evidence as to the circumstances in which the murder was committed has very little, if any, bearing on the question whether the accused or any of them are guilty under Section 121 A of the Indian Penal Code.

72. Nevertheless, the conspiracy charged against the prisoners is a grave offence against the State and the legislature attaches to it the most serious penalties. The three approvers who admit having taken part in such a conspiracy were permitted to give evidence against the prisoners under pardon granted to them by the Magistrate under Section 337, Criminal Procedure Code, on the condition of their making a full and true disclosure of the whole of the circumstances within their knowledge relative to such offence and to every other person concerned whether as principal or abettor, in the commission thereof. These persons, if found not to have complied with the condition of pardon, whether by willfully concealing anything essential or by giving false evidence may be tried for the very offence in respect of which the pardon was tendered or for any other offence of which they appear to have been guilty in connection with the same matter and the very statements made by them may be given as evidence against them when they are placed on their trial after the pardon has been forfeited. The approvers in this case are therefore men who were giving their evidence with halters round their necks, to use an expressive phrase which I believe occurs in one of the numerous cases cited at the bar on the subject of accomplice s evidence. The probability that persons in their perilous position would attempt to purchase immunity for themselves by falsely implicating innocent men is so great, that, apart from any special rule of law that may or may not exist as to the necessity of requiring corroboration of accomplice s evidence generally, it is obvious to one s common sense that the danger of acting upon such witnesses word alone against the accused persons must be grave indeed. I would not for my part hesitate in saying that a conviction founded on evidence of this character must be wrong as being based on absolutely unsafe materials unless there are to be found in the case the amplest guarantees of its truth derived from circumstances and evidence altogether independent of these witnesses statements.



73. The certificate of the Advocate-General in its first paragraph assumes that the majority of the Special Bench have in fact acted upon Arumugam s and the other approvers evidence without any corroborative evidence ; even if that were so, we should be powerless to interfere unless it was made out that in so acting or in the way they have dealt with that evidence the learned Judges have committed an error in law. It is important at the outset to know in what light they have regarded the approvers evidence and what use they have made of it. As I read their judgment they are of opinion that this evidence from its very nature must be received with caution and care and that, though it was correct to say as contended for on behalf of the defence that it was not open to them in law to act upon it, yet, they would not feel themselves safe in accepting such evidence in so far as it affected the prisoners without corroboration. There are passages in the judgment of the majority of the Bench which go to show that they were prepared to believe the general truth of the approvers story apart from any corroborative evidence, but none from which it can be reasonably inferred that they would have accepted that evidence alone as sufficient to prove the complicity of the prisoners. On the other hand, they attach the utmost importance to certain previous statements of the approvers as corroborative of their evidence in court and when they came to consider the case of the Crown against the accused persons individually they take care to state whether the corroborative evidence, such as it is, implicates or does not implicate particular prisoners. As regards the law regarding accomplices evidence generally the majority of the Special Court lay down that the law does not prohibit the conviction of an accused person on the uncorroborated testimony of an accomplice, but that at the same time in accepting such evidence the Court must act with the greatest possible caution. These are their words. " In the case before us we are judge and jury. We have to direct ourselves. The proper direction seems to us to be--consider the evidence of the approvers, always bear in mind that it is tainted evidence, scrutinise it with the utmost care, accept it with the greatest caution, consider it in the light of the circumstances in which it is given and in the light of all the other circumstances in the case of which evidence is legally admissible. Then, if you believe it, act on it even if there is no corroboration in the strict sense of the word. If you do not believe it, reject it." So far as these statements go, I do not think they can, in my opinion, be said to contain an erroneous proposition of law. I may observe however that the learned Judges undoubtedly lay emphasis on that aspect of the law according to which a conviction founded upon the uncorroborated testimony of an accomplice is not illegal. But they do so apparently to meet the extreme arguments of the pleaders on behalf of the accused to the contrary and not because they were prepared in the case before them to act upon such evidence.

74. The first question raised by the certificate is stated in these words : " That in my judgment the opinion of the majority of the court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the court to convict on the uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true, requires to be further considered ; and it requires to be further considered whether Section 133 of the Indian Evidence Act read with Section 114, illustration (b) does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances." If we take the two statements independently of each other and the first part of the paragraph to mean that the majority of the Bench were wrong in stating as a general proposition that the law permits of a conviction on the uncorroborated testimony of an accomplice, then there can be no doubt that the Advocate-General s objection is untenable and for this purpose it is sufficient to refer to the clear language of Section 133 of the Indian Evidence Act. But I do not think that that is what the Advocate-General meant. Both parts of the first paragraph of the certificate must be read together and so read what the certificate really means is that the Judges statement that the law permitted of a conviction being based on the uncorroborated evidence of an accomplice is inaccurate inasmuch as it does not add the necessary qualification that, apart from any special circumstances, the Court ought to raise the presumption spoken of in Section 114, illustration (b), that an accomplice is unworthy of credit unless he is corroborated in material particulars, and therefore in ordinary cases the conviction would be illegal if based on such evidence. But as I have pointed out the learned Judges were of opinion that the evidence of an accomplice should prima faice be regarded with distrust, otherwise there would be no meaning in their saying that you must accept such evidence with caution. The certificate in this connection apparently proceeds upon a misconception of what is laid down by the learned Judges. In this view of the matter it would have been unnecessary to go further into the first question but for the fact that in my opinion certain statements which were relied upon by the learned Judges as corroborative evidence justifying them in acting upon the evidence of the approvers as against the accused persons have been wrongly so used: and, it will thus be necessary to, see whether we can hold that apart from any corroboration this is a case in which there are circumstances which might make the general rule relating to the untrustworthiness of an accomplices evidence inapplicable. Besides, the whole question as to the proper scope of, the law regarding the subject having been raised #y the first ground of the certificate and elaborately discussed at the bar, it is right that one should state one s opinion in the matter. The literature on the subject of accomplices evidence is very large and one with which lawyers are quite familiar. The only point that has any novelty in this case is whether this Court can interfere as a matter of law with a conviction founded upon the evidence of an accomplice in a trial held by a judge without a jury where there is no corroboration of such evidence or if the evidence which the Court has relied on as corroborative is not such as to meet the requirements of the rule, and if so, in what circumstances

75. The decisions on the subject of accomplices evidence in this country are to be found in cases tried by District and Sessions Judges with a jury or assessors or by a High Court Judge with a jury. When a trial is by a Sessions Judge with the aid of assessors, the High Court, as the Appellate Court, has plenary powers of review in order to arrive at a decision upon the evidence whether the conviction is right (see Sections 418 and 423, Criminal Procedure Code). The Sessions Jugde as a Court of appeal is given similar unlimited powers of review over convictions by Magistrates in cases triable by the latter. When there has been an appeal to the Sessions Court from a conviction of a magistrate and it has confirmed the conviction, and in certain cases of summary trial by a Magistrate in which the legislature allows no appeal, the High Court has the power of revising the case (see Sections 435 and 439 Criminal Procedure Code.) These powers are of a very wide character though the usual practice of the High Court is not to interfere in such cases except where the decision in question involves an error in law which has contributed to a miscarriage of justice. In other cases the question whether a conviction based on the uncorroborated testimony of accomplices can be regarded as erroneous in law may be of some practical importance though the fact that the High Court in any particular case did interfere in revision to set aside the conviction would not necessarily mean that it treated the question as one of law. When a case is tried by a Sessions Judge with the aid of jury the prisoner can appeal to the High Court against the verdict only on a matter of law (see Section 418, Criminal Procedure Code); if the trial was held by a Judge of the High Court in the exercise of its original criminal jurisdiction, then, as we have seen, the prisoner has no right of appeal but if the trying-Judge has reserved any point of law for the decision of the High Court or the Advocate-General has certified to an error in a decision of law, the High Court is entitled to decide that point of law and pass such judgment as the case may require.

76. Now, whether the High Court exercises its powers as an Appellate Court under Section 417, Criminal Procedure Code, in cases tried by a jury or as a court of error under Article 26 of the Letters Patent, in either case it can interfere only when the trial is vitiated by an error in law and there is no substantial difference in the conditions of interference in the two cases. In Queen Empress v. O Hara (1890) I.L.R. 17 C. 642 already referred to, a question was raised whether the words of Article 26 an error in the decision of a point or points of law decided by the court of original criminal jurisdiction are to be understood in a strictly literal sense as being applicable only to cases in which certain questions of law have been expressly raised and decided at the trial, and it was held that the language was wide enough to extend to cases where what is complained of involves a violation of the law or a failure to give effect to the injunctions of law. There can be no doubt in my opinion that this interpretation of Article 26 is correct and it has not been contended otherwise in the present case.

77. I have already said that the contention on behalf of the accused that a conviction is illegal merely because it is based on the uncorroborated testimony of an accomplice is sufficiently answered by Section 133 of the Indian Evidence Act. The law has never been otherwise either in India or in England, at least not for a very long time. On the other hand it is equally clear that the law makes special provisions as regards the treatment of an accomplice s evidence ; the reception of that evidence stands on a different footing from the evidence of other witnesses. This, because of the fact that this class of witnesses are not only men of an infamous character but are induced to give their evidence by the expectation or hope that they would not be proceeded against for the crime which they are found to have committed if their story is believed as against the prisoners. The natural tendency of men in that position is to make out a case against the prisoner in order to save themselves. Instead of trying them for the offence which they have committed, the state tenders a pardon to them in special cases with a view to obtain full information as to certain crimes which but for such evidence would not have come fully to light. But the law does not say that in such cases, because of the difficulty of detection, the court, may be satisfied with a lower degree of certainty in the evidence than in other cases. On the other hand, the rule of law that the guilt of an accused person must be established beyond all reasonable doubt applies with equal force in all cases, and the more serious the nature of the crime with which a person is charged, the more circumspect the court must be as to the evidence it acts upon. These indeed are truisms of the criminal law of the land ; it may nevertheless be useful sometimes to state them, lest they are forgotten.

78. In one part of the arguments of the learned Advocate-General on behalf of the Crown, he seemed to contend, if I followed him aright, that inasmuch as the legislature by Section 133 of the Indian Evidence Act declares that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice, it must necessarily follow that in no case where a conviction is based on such testimony by a tribunal of facts is such conviction liable to review by a superior authority whose powers of interference are limited to matters of law. There is an apparent fallacy in this argument which treats the declaration that a conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice as equivalent to a declaration that a conviction based on such testimony must necessarily be regarded as legal. It is obvious that the one does not follow as a logical consequence from the other. Section 133 does not purport to deal exhaustively with the question as to whether convictions based on an accomplice s testimony are or -are not liable to be set aside as a matter of law. For instance, suppose the law imposes on a judge certain duties as to directing the jury in the matter of an accomplice s evidence short of telling them that the law does not permit of their acting on such evidence, would that be inconsistent with anything contained in Section 133 Clearly not. Then if the judge failed to give such directions, the provisions of this section would not prevent the question of propriety of a verdict given under these circumstances being treated as a point of law. Now Section 133 must be considered along with Section 114, illustration (b), and the explanations to that illustration furnish an indication how consideration of the evidence of an accomplice should be approached by the tribunal which is asked to act upon it. Section 114 says, the courts may presume the existence of any fact which, it thinks, likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case: in other words it says that the court may make certain natural presumptions. Illustration (6) to Section 114 is an example of such natural presumption. It says that the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. Then the legislature goes on to state But the court shall have regard to such facts as the following in considering whether such maxims do or do not apply and cites two cases in explanation of illustration (6) suggesting without expressly saying so, that the maxim as to an accomplice being unworthy of credit unless he is corroborated in material particulars might not apply to those cases. Section 4 of the Indian Evidence Act lays down that wherever the phrase may presume a fact is used, it means that the court may regard such fact as proved in law until it is disproved or may call for proof of it, contrary to shall presume when the court shall regard the fact to be proved unless and until it is disproved. Presumptions of this class must therefore be regarded as presumptions of fact and not of law. The argument on behalf of the Crown then is that the question of drawing a presumption as to the untrustworthiness of an accomplice s evidence is left to the discretion of the court, and if the court has erred in this respect, it would not be an error in law. Even if it be granted that the law leaves it to the discretion of the trying courts whether the presumption in question should or should not be raised in a particular case, it is undoubtedly a judicial discretion and it would not be correct to say that no improper exercise of such discretion can be set right as a matter of law. To my mind it is quite clear from the nature of the cases cited in the illustration that, except in the special circumstances, examples of which are attached to the Section, the legislature requires that the court should make the natural presumptions referred to in the Section. For instance, there can be little doubt that in ordinary circumstances the presumptions mentioned in illustrations (c and e) viz., that a bill of exchange accepted or endorsed was accepted or endorsed for good consideration or that judicial and official acts have been regularly performed, should be made. Some indication to this effect is also furnished by the language in which the cases where the presumption may not be raised are introduced treating them as if they were exceptions to an ordinary rule. Whenever therefore the presumption is not raised or acted upon it must appear that special circumstances ,existed in the case which either negatived the presumption or rebutted it. Now the first sub-illustration (b) of Section 114 is that of a case in which the presumption of untrustworthiness which would ordinarily arise from the moral character of an accomplice and the temptation he is under to save himself at the expense of the prisoner is negatived by the supposition that the accomplice in question is a man of high and honourable character and any likelihood of his falsely implicating an innocent man in order to save himself is also negatived by that fact and by the nature of the offence to which he is speaking. The case cited as the 2nd sub-illustration shows that there need not be anything in the moral character of the accomplice and the nature of the crime which he admits having committed, to negative the distrust to which his evidence would prima facie be subject and yet extraneous circumstances such as the fact that he and two others of his companions arrested immediately after the commission of the offence gave the same account of the occurrence implicating the accused under circumstances which for all practical purposes precluded the chances of a previous concert may be regarded as vouching for the truth of the accomplice s evidence. The supposed facts of the two illustrations are such as to leave no room for any reasonable doubt as to the truth of the accomplice s story in each case. There may of course be circumstances of a similar nature which would equally clearly negative the ordinary presumption against the reliability of an accomplice s evidence and it is the function primarily of the trying court to attach due weight to those circumstances. Further, the strength of the presumption when it arises must vary in different cases having regard to the nature of the crime, the strength of the motive that may exist to tell a false story, and other similar circumstances. All this to my mind only shows what has been declared in so many words by Section 133 that the legislature did not intend to lay down a hard and fast rule that in every case the accomplice s testimony must be regarded as unworthy of credence, if not corroborated; but it does not follow therefore, as argued on behalf of the Crown, that in no case where the court refused to raise the presumption can it be said that it has erred in law. For instance, there can be no doubt that in ordinary cases an omission to raise the presumptions mentioned in illustrations (c) and (e) would be an error in law and justify a court of second appeal in interfering with the decree of the lower courts on that ground. The presumption as to the unreliability of an accomplice s evidence is placed by, the legislature on the same footing. No doubt there are cases and cases and while in doubtful cases the position contended for on behalf of the Crown may well be sound there is nothing at least in the Indian Evidence Act or in reason that in other cases in which there could be no two opinions that the presumption that an accomplice is unworthy of credit unless corroborated applies in full force not being either negatived or rebutted, an omission to raise the obvious presumption should not be treated as an error in law.

79. On the other hand, as I have pointed out the illustrations to Section 114 furnish an indication to the contrary.

80. Now if the view which I have above indicated of the effect of the provisions of the Indian Evidence Act be correct there is no foundation whatever for the suggestion that these provisions are in any respect different from what is laid down in the rulings of the Indian Courts on the subject, either since the passing of the Indian Evidence Act or before it, or of the English Courts. Before the passing of the present Evidence Act, the question of accomplices evidence was dealt with in India by Section 28 of Act II of 1855 in these terms, "Except in cases of treason, the direct evidence of one witness, who is entitled to full credit, shall be sufficient for proof of any fact in any such court or before any such person. But this provision shall not affect any rule or practice of any court that requires corroborative evidence in support of the testimony of an accomplice." Then it appears that at least in Bengal there was some uncertainty in the decisions of the courts on the question whether it was legal to convict upon the uncorroborated testimony of an accomplice and the matter was referred in 1866 to a Full Bench of the Bengal High Court. In that case Elahee Buksh s case (1866) 5 W. R. Criminal Rulings, page 80 Sir Barnes Peacock in his well-known judgment fully investigated the whole question relating to an accomplice s evidence after an elaborate survey of the English and Indian authorities, and what he then laid down has not only been since followed as the law by all the courts without question, but the Indian legislature when it came to pass the Indian Evidence Act has embodied the important principles enunciated in that judgment in Section 133 and the illustrations to Section 114 above referred to. In fact at least one of these illustrations is bodily borrowed from the judgment of Sir Barnes Peacock. It would be worse than idle on my part to refer again to the old English and Indian decisions discussed in the judgment of Sir Barnes Peacock. His conclusions are that an accomplice, being a competent witness, a conviction founded upon the uncorroborated evidence of one or more accomplices alone is valid in law. But as a general rule there is danger in acting upon the evidence of an accomplice who is admitted to give evidence for the Crown for reasons already indicated and that this danger is at least as great here as in England. The danger however disappears if the grounds which give rise to the apprehension are found to be absent in any particular case and he cites a hypothetical case which is embodied as sub-illustration to illustration (b) to Section 114. He further lays down that as a general rule it would be as unsafe to act upon the evidence of more than one accomplice as of one; otherwise two companions in guilt might get off by conspiring and falsely accusing two innocent persons. To this, there may be exceptions, and then he cites a case which has apparently suggested the second sub-illustration to illustration (6) of Section 114. As regards the duty of the judge in dealing with such evidence, he lays down with reference to the provisions of the then Criminal Procedure Code, which in this respect are the same as Section 279 of the present Code, imposing upon the judge the duty of summing up the evidence, and, also upon general principles relating to trials by jury as are to be gathered from the decisions and practice of English judges, that it is quite as necessary here, as in England, if not more so, that the evidence of accomplices should not be left to a jury without such directions and observations from the judge as the circumstances of the case may require, that the giving of improper advice by the judge or omission by him to give that advice, which the Judge in the exercise of a sound judicial discretion ought to give upon questions of fact or as to the degree of credit to be given to particular witnesses, is an error in law in the summing up. He then gives as an example an omission on the part of the judge to tell the jury that the accomplices were giving the evidence under a tender of pardon or to explain to them the position in which the witnesses were placed and the danger of acting upon the evidence unless they should find that it was corroborated. He goes even further and says that it is the duty of a judge to advise the jury not to believe the evidence of an accomplice unless he is confirmed and only so far as he is confirmed and a failure in that respect is an error in law and forms a good ground of appeal against a conviction founded on a verdict of guilty based upon such evidence alone. He also holds that it would be an error in the summing up to tell the jury that the evidence of the accomplices was corroborated by evidence of a fact which did not amount to any corroboration at all. He finally lays down that, where there is an error in the summing up of the evidence, that would warrant the court in setting aside the verdict of guilty, if the court is satisfied that the prisoner was prejudiced by the error and that there has been a failure of justice. But the verdict and conviction ought not to be set aside, if the court be of opinion that it was warranted by the evidence, and upon the evidence, they would have upheld the conviction on appeal, if the trial had been by/the judge with the aid of assessors instead of by a jury.

81. In this Presidency the ruling in Proceedings, dated 20th March 1868, reported in 4 M.H.C.R., Appendix, page VII, which was before the passing of the Indian Evidence Act of 1872, lays down that no rule of law prohibits a conviction upon the uncorroborated testimony of an accomplice but as a general rule of practice it is unsafe to convict upon such evidence and it is the duty of a judge to point out the circumstances if any which would justify the jury to rely upon such evidence. In Queen v. Nawab Jan and Ors.(1867) 8 W. R. Crl. R. p. 19 Kemp and Macpherson, JJ. set aside a verdict on the ground that the judge did not with sufficient emphasis caution the jury as to the danger of paying any respect to the testimony of the approver in the case, and wholly omitted to guide them as to what amounted to legal corroboration in some material circumstances, such circumstances, connecting and indentifying the prisoner with the offence. In Queen v. Nidheeram Bagdee and Ors. (1872) 18 W. R. Crl. R. p. 45 Couch, C.J. and Bayley, J., on the other hand upheld a verdict of a jury since the judge had properly cautioned them on the point and as the jury still found a verdict of guilty, there was no error in law. It is significant to note that the learned Judges thought that it was a proper case in which an appeal might be made to the Government. In Queen v. Nunhoo and 4 Ors. (1868) 9 W. R. Crl. R. p. 28 Kemp and Jackson, JJ. laid down that the evidence of an accomplice may be of itself evidence, but it should never be admitted as sufficient proof of guilt unless it is corroborated. In Bombay also in a case, Reg. v. Fatechand Vasta chand (1868) 5 Bom. H.C.R., C.C. p. 85 it was laid down that it was the duty of the judge to follow the ordinary rule and not to act upon the accomplices evidence without corroboration in a material part of it.



82. The first reported Case of importance decided after the coming into operation of the present Indian Evidence Act is that of Queen v. Sadhu Mundul (1874) 21 W. R. Criminal Rulings, page 69 which was heard by Phear and Morris, JJ. on appeal from a conviction on a charge of murder in a trial by a jury. The learned judges considered the effect of the enactment and their conclusion was that Section 114, illustration (b), contained a legislative declaration that, regard being had to the common course of natural events and human conduct, an accomplice is unworthy of credit so far as his testimony implicating another person is concerned, unless he is corroborated in material particulars in respect of the prisoner, but that in exceptional cases, such as those mentioned in the sub-illustrations, the Court might give credit to the accomplices testimony against the accused, if it sees good reasons for doing so upon grounds other than the personal corroboration. They go on further to observe that it is the nature of an accomplice s evidence that calls for corroboration even though such evidence was given in a process of careful examination or capable of being tested by cross-examination.



83. The earliest decision of this Court under the Indian Evidence Act brought to our notice is in Reg v. Ramasami Padayachi (1878) I.L.R. I. M. 394 where Morgan, C.J. and Kindersley, J. laid down that it was not the law that the evidence of an accomplice was irreceivable in evidence without corroboration and that Sections 133 and 114, illustration (b), coincide with the rule in England. They state the rule to be that the tainted evidence of an accomplice should be carefully scanned and received with caution and may be treated as unworthy of credit, yet if the jury or the court, as the case may be, credits the evidence, a conviction proceeding upon it is not illegal. Some reliance was placed on this ruling on behalf of the Crown, as if it laid down the law differently from the other decisions, but I find nothing to support the suggestion. The judgment does not deal with the question in what cases the manner in which an accomplice s evidence is dealt with by the court, either in directions to the jury or in laying down for its own guidance the principles for testing such evidence, may amount to an error in law. On the other hand they say that the law on this point is the same as the law in England on the point. In Reg. v. Malapabin Kapana and Ors. (1874) 11 Bom. H.C.R. 196 Nanabhai Haridas and Larpent, JJ. in considering the question whether certain evidence can be considered corroborative evidence in the sense in which judges require corroboration of an accomplice s statement within the meaning of Section 114, illustration (b), they take it for granted that the rule is to require such corroboration.



84. As for the more recent decisions of this Presidency, Collins, C.J. and Muthuswami Aiyar, J. in Queen Empress v. Arumuga (1888) I.L.R. 12 M. 196 laid down that a judge should caution the jury not to accept the evidence of an approver unless it is corroborated and the omission to do so would amount to a misdirection. In King Emperor v. Mohinddin Sahib (1901) I.L.R. 25 M. 143 Davies and Moore, JJ. held that the evidence of an accomplice ought to be corroborated in some material circumstances and in Eryperor v. Edward William Smither (1902) I.L.R. 26 M. 14 Davies and Benson, JJ. state that an accurate statement of the law on the subject will be to say that as a general rule it is unsafe to act upon the uncorroborated testimony of an accomplice but there may be especial circumstances in which it would not be unsafe to act upon such evidence. In Ramasami Gounden v. Emperor (1903) I.L.R. 27 M. 271 Subramania Aiyar, J. said that the Indian Law in this matter was borrowed from the English Law as held in Queen v. Elahee Buksh (1866) 5 W.R. Cre. R. 80 the judge ought not to direct the jury to acquit if the case against the prisoner rested mainly upon the uncorroborated evidence of an accomplice, but it was sufficient if the judge advised the jury not to convict upon such evidence as stated in Reg. v. Boyes (1861) 9 Cox s Crl. Cases 32. Boddam, J., however would go further holding that it would be the duty of the judge in such a case to direct the jury to acquit. The matter on being referred to Bashyam Aiyangar, J., he agreed with Subramania Aiyar, J. as to the proper scope of the law on the subject and pointed out that it was the duty of the judge to explain to the jury that it was not safe to convict upon the uncorroborated evidence of an accomplice and if there was no corroboration of the accomplice in a material particular to draw their attention to the fact. The Judge ought also to add, he says, that a conviction upon such testimony is perfectly legal, and if a jury bearing in mind the caution still believed the evidence it would be their duty to convict. The learned Judge observes that the practice not to convict upon the evidence of an accomplice unless there is corroboration has been so hallowed by time as to be deserving of respect and that in fact the rule of law as laid down by Section 133 of the Indian Evidence Act is practically rendered nugatory by the rule of practice. In Queen-Empress v. Kunjan Menon and Sankunni (1891) 1 M. L.J. 397 a Full Bench of this Court consisting of Collins, C.J., Kernan, Muthuswami Aiyar, Parker, and Wilkinson, JJ. observe that it has now become a general rule of practice that the judge ought to advise the jury to acquit unless the evidence of the accomplice is corroborated; and in a case, In re Kuppan (1909) 5 M.L.T.P. 355. Benson and Miller, J J. stated that it was a general rule of practice that it was not safe to convict upon the uncorroborated evidence of an accomplice. The recent rulings of the other High Courts are to the same effect. Birdwood and Jardine, JJ. in Queen Empress v. Krishna Bhat (1885) I.L.R. 10 B. 319 say that Section 114, illustration (b), lays down the ordinary rule that an accomplice is unworthy of credit unless he is, corroborated in material particulars and that it was an established rule of practice that the accomplices must be corroborated by independent evidence as to the identity of every person he impeaches. Jardine and Bayley, JJ. in Queen-Empress v. Maganlal (1889) I.L.R. 14 B. 115 also enunciate the law to the same effect saying that it is the established practice to require corroboration of an accomplice s evidence and it is for those who want such evidence to be acted upon to allege reasons why the ordinary test of the evidence of accomplices should not be applied in a particular case. In King-Emperor v. Malhar (1901) I.L.R. 26 B. 193 Fulton and Crowe, JJ. while admitting the existence of the general rule, point out that all persons coming within the category of accomplices cannot be treated as on precisely the same footing. In King-Emperor v. Shrinivasa (1905) 7 Bom. L.R. 969 Jenkins, C.J. and Russel, J. point out that the absolute rule of law on the subject of accomplices testimony is contained in Section 133 of the Indian Evidence Act, there is further a rule of guidance which is embodied in Section 114, illustration (6), and that it would be an error of law to disregard the presumption indicated in the latter rule. In Calcutta, Rampini and Pratt, JJ. in Queen-Empress v. Deodhar Singh (1899) I.L.R. 27 C. 144 point out that the presumption stated in illustration (b) to Section 114 has become a rule of practice of almost universal application and in Kamala Prasad v. Sital Prasad (1901) I.L.R. 28 C. 337 Amir Ali and Pratt, JJ. observe that ordinarily speaking the evidence of an accomplice should be corroborated in material particulars and the practice, which has been, laid down, has become, one may say, a part of the law itself. In Jatniruddi Masalli v. Emperor (1902) I.L.R. 29 C. 782 Prinsep and Stephen, JJ. observed that the Sessions Judge ought to have told the jury that though the law permits of a conviction being based upon the uncorroborated evidence of an accomplice, yet it was not the practice of our courts to convict on such evidence. It was a misdirection to tell a jury that the evidence of the accomplice was corroborated by a fact which did not amount to any corroboration at all. In Deo Nandan Pershad v. Emperor (1906) I.L.R. 33 C. 649 Brett and Stephen, JJ. recognise the rule of practice which lays down that it is generally wrong to convict upon the uncorroborated evidence of an accomplice but they agree with the proposition stated in King-Emperor v. Malhar (1901) I.L.R. 26 B. 193 that the rule does not apply in equal force to all persons coming technically within the category. In a recent important trial under the Criminal Law Amendment Act, 1908, for an offence under Section 121 A of the Indian Penal Code in the Calcutta High Court (King-Emperor v. Lalit Mohan Chuckerbutty and Ors. (1910) I.L.R. 38 C. 559 it was conceded before the Special Bench as a proposition which was not open to question that before the approver s testimony could be acted on it must be corroborated in material particulars, that the nature and extent of this corroboration was well settled, there must be corroboration not only as to the crime but also as to the identity of each one of the accused. The learned Judges observe that this is no technical rule but founded on long judicial experience.

85. In the Allahabad High Court, the law was fully considered by Straight and Tyrell, JJ. in Queen-Empress v. Rama Saran (1885) I.L.R. 8 A. 306 and they held that the law in India as contained in the Indian Evidence Act is the same as in England viz., that, though a conviction is not illegal, that is, not unlawful if it is based on accomplice s testimony alone, experience teaches us that it is not safe to rely upon such evidence unless it is corroborated, and it is the practice of judges both in England and in India when sitting alone to guard their minds carefully against the evidence of approvers. The corroboration, they observe, must extend to the identity of the accused persons. Straight, J. also points out that the tendency of late years in England is to apply the rule with great strictness, and, as I shall show, the practice of the Court of Criminal Appeal is to set aside a verdict of guilty if the judge did not advise the jury not to act upon the testimony of an accomplice. In Queen-Empress v. Gobardhan (1887) I.L.R. 9 A. 528 Edge, C.J. says that as a general rule it would be unsafe to convict an accused person on the uncorroborated evidence of an accomplice and a judge should advise the jury to that effect. It is at the same time not only open to the jury but it is their duty if they believe such evidence in spite of the caution to bring in a verdict of guilty. In Abdul Karim v. King-Emperor (1904) 1 A.L.J. 110. Banerji, J. observes that the evidence of an accomplice cannot be acted upon without corroboration in material particulars, unless it is such that the court can unhesitatingly believe it.

86. I wish to allude very briefly to the rulings in some English cases decided after the date of the judgment of Sir Barnes Peacock in Elahee Buksh s case as the English decisions prior to that judgment are exhaustively dealt with there. In Reg v. Cramp (1880) 14 Cox. C.C. 390 Denman, J. observes that there is no doubt that the evidence of an accomplice requires corroboration. In Reg v. Gallegher and Ors. (1883) 15 Cox. C.C. 291 the Lord Chief justice Coleridge in his direction to the jury observed if the jury upon the evidence of the approver himself was perfectly satisfied that he was speaking the truth there was no reason in point of law why on his evidence they should not act and find the accused guilty, but the danger of acting upon the uncorroborated statement of an approver was obvious and the wisdom of requiring that some corroborative evidence should be given before such statements are acted upon was perfectly apparent to any intelligent mind. The law was as he had stated and the practice was always to require corroboration. In In re Meunier (1894) 2 B. 415 where the question was whether the evidence of an accomplice if uncorroborated was sufficient to justify a committal for surrender to France, Cave, J. held that it was not the law that a prisoner must be acquitted in the absence of corroborative evidence and there was no power in the court to withdraw a case from the jury on that ground. In Rex v. Tate (1908) 2 K.B. 680 Lord Alverstone delivering the judgment of the Court of Criminal Appeal while pointing out that there was no definite rule of law that a person cannot be convicted upon the uncorroborated evidence of an accomplice as stated by Cave, J. in In re Meunier, observed that he ought to have added assuming that the jury was cautioned in accordance with the ordinary practice, and then cites the following passage from Taylor on Evidence, X Edition, page 688, as containing a correct exposition of the law. " Judges...in their discretion, generally advise a Jury not to convict a prisoner upon the testimony of an accomplice alone : and although the adoption of this practice will not be enforced by a court of review, its omission will, in most cases, be deemed a neglect of duty on the part of a judge. Considering too the respect which is always paid by the jury to such advice from the bench, it may be regarded as the settled course of practice not to convict a prisoner, excepting under very special circumstances." He also cites with approval a passage from Russel on Crimes, 6th Edition, Volume III, page 646. " It may be observed that the practice in question has obtained so much sanction from legal authority, that it deserves all the reverence of law, and a deviation from it in any particular case would be justly considered of questionable propriety."

87. In Rex v. Everest (1907) 73 J.P. 269 at p. 271 the Court of Criminal Appeal (Darling, Bray and Lawrence, JJ.) laid down that a judge should direct a jury to acquit if the evidence against the accused is that of a person put forward as an accomplice and his evidence is not corroborated in some material particular, that is to say, in some particular that involves the guilt of the accused. In Rex v. John Warren (1907) 73 J.P. 359 the Court of Criminal Appeal quashed a conviction on the ground that there was very little, if any, evidence of corroboration proper to go to the jury and that the judge did not adequately direct the jury that they should acquit the appellant if the accomplice s story was not corroborated in some material particular, that is, in some particular that involved the guilt of the accused. Channell, J. observed in his judgment that The rule was very clear now about the evidence of an accomplice.--It must be corroborated in some material particular. It seems to me that in the last two cases the words directing the jury to acquit should perhaps be understood in the sense of advising the jury to that effect and not in the sense of withdrawing the case from the jury.

88. It should be pointed out with reference to the judgments of the Court of Criminal Appeal in England that though under 7 Edw. VII, Cap. 23, Section 3, the prisoner is given an appeal as of right only on a question of law, the appellate court has the power in certain circumstances to review the verdict and conviction on a question of fact or of mixed law and fact. But they seem to lay down generally that it is the duty of the judge to advise the jury not to convict upon the uncorroborated testimony of an accomplice and a failure to discharge that duty would ipso facto make the conviction liable to be set aside. The power of this Court to interfere under Article 26 of the Madras Letters Patent is however confined to matters of law and in this respect it is analogous to the power which the Queen s Bench as a court of error has under 11 and 12 Vict, Cap. 78. On the question therefore what would amount to an error in law in dealing with the evidence of an accomplice the decision of the Court of Crown Cases Reserved in Queen v. Stubbs (1855) 25 L.J.M.C. 16 is much relied on by the Council for the Crown. But all that is said there is that it is not a rule of law that an accomplice must be corroborated in material particulars but is only a rule of practice and a question of practice cannot be reserved for the opinion of that court. In that case, the judge had in fact cautioned the jury as to the case of Stubbs where there was no corroboration and what the Court of Crown Cases Reserved held was that his failure to advise the jury not to convict was an omission to observe a rule merely of practice. It is clear however that the tendency of the more recent English decisions is to invest the practice with the stringency of law : that in India also, an omission to advice the jury in accordance with the practice would be an error in law is the view of Sir Barnes Peacock and many other judges as is apparent from the decisions I have referred to.

89. My conclusion is that it is well established law that except, in circumstances of an especial nature, it is the duty of the court to raise the presumption that accomplices evidence is unworthy of credit as against the accused persons unless it is corroborated in material particulars and the failure of the judge to direct the jury to that effect is an error in law. It will none the less in my opinion be an error in law if the trial was held without a jury and the Judge or the Magistrate misdirected himself on this point and treated an accomplice s evidence like that of any other witness. I do not perceive any principle on which the two cases may be distinguished. The next proposition which is also well recognised is that. If, there are any especial circumstances which would justify a disregard of this rule, those circumstances in a trial by a jury must be clearly set out in the directions of the judge, and the appellate court is entitled to consider as a matter of law whether those circumstances are such as to justify the exceptional treatment. If, in the opinion of the appellate court, the facts in this connection are that they in no sense negative the danger of acting upon the uncorroborated testimony of the accomplice but the judge told the jury otherwise, the verdict must be set aside as being due to an error in law : if the especial facts, however, are such as may reasonably be considered to take the case out of the rule even though it is possible to hold a different view, the verdict cannot be interfered with by a court of error. A similar rule would hold good in cases tried by a judge alone. This is substantially how I stated the law recently in Vyasa Rao v. Emperor (1911) M.W.N. Vol. 1, page 327.



90. As regards the nature of corroboration, the law is that corroboration must relate not only to the crime but also to the identity of the prisoner. The question whether it can be said as a matter of law that the view of the trying judge as to whether certain evidence does or does not amount to corroboration within the meaning of the rule is also governed by the same principle as I have just indicated. But the evidence given in court by an accomplice cannot be used to corroborate the evidence of another accomplice, though in exceptional circumstances (such as the second sub-illustration to illustration (b) to Section 114 of the Indian Evidence Act) the fact that the accounts given of the crime by different accomplices may be taken as corroboration of the evidence in court. On the other hand if the contention of the counsel for the Crown were well founded that, since the question whether the evidence of an accomplice is to be deemed to be untrustworthy unless it is corroborated in material particulars cannot be determined without referring to the facts of the particular case in which the evidence is given, therefore in no case, where a judge of facts has acted upon such evidence, can it be said that in failing to raise such a presumption he has erred in law, however grossly palpable the facts may be which show the danger of acting upon such evidence alone, then all that has been said hitherto by learned judges in England and India on the subject of accomplices evidence would have no meaning whatever. For it would logically follow from such an argument that the law imposes no especial duty on the court in dealing with accomplices evidence and the general rule that an accomplice s evidence should not be acted upon unless it is corroborated, the soundness of which, as Lord Chief Justice Coleridge puts it, is obvious to any intelligent mind, would lose all significance in law, if its disregard in any case cannot be set right as a matter of law, because in some cases of rare occurrence the rule may not be applicable.



91. This brings me to the second question propounded in the certificate. It is in these words:

That the opinion of the majority of the Court that the previous statements of an accomplice can legally amount to corroboration of the evidence given by him at the trial should be further considered.



92. The answer to be deduced from the above discussion of the law is that as a general rule the previous statements of an accomplice do not legally amount to such corroboration as is required to rebut the presumption as to the unreliability of an accomplice s evidence, but there may be cases in which the circumstances in which the previous statement was made by precluding the possibility of the accused having been falsely named therein by the approver would lend corroborate force to the accomplice s evidence. The only direct decision on the point is a case, Reg v. Malapa Bin Kapan and Ors. (1874) 11 Bom. H.C.R. 196 where the rule is stated in unqualified terms and in Vyasa Rao v. Emperor (1911) M.W.N., Vol. 1, page 327. in which the question arose before Ayling, J. and myself whether evidence of a co-accomplice was sufficient corroboration within the meaning of the law, I expressed my agreement with what is laid down in the Bombay case. While I still adopt generally to what is laid down in Reg v. Malapa Bin Kapana and Ors. it seems to me on further consideration that, to be quite accurate, the rule must be stated subject to the qualification, which I have suggested, and I may point out that neither the learned Judges of the Bombay High Court nor I were called upon in the cases mentioned above to consider whether the rule was subject to any qualification. Having regard to the fact that the previous statement of an accomplice is admissible in evidence, as is assumed in the second ground of the certificate, and to the nature of the cases cited by the legislature, which shows that corroboration may be furnished by previous statements of accomplices made in certain circumstances, it would be difficult to hold that the rule does not admit of exceptions. The previous statements mainly relied on by the majority of the Special Bench are those made by the approvers, Arumugam and Somasundaram respectively to the police, the first, two days, and the second, three days, after the murder of Mr. Ashe and also to some extent on the statements made by them a few days afterwards to Mr. Cox, who made a local enquiry in the case. As regards the statements to the police officer, I am of opinion that they were wrongly admitted in evidence on the ground next mentioned in the certificate and it would not therefore be necessary to consider how far, if admissible, they could be taken as amounting to corroboration of the approver s evidence in court. As regards the statements made to Mr. Cox no objection can be taken to their admissibility but so far as at present advised I fail to see how it can be held to afford corroborative evidence within the meaning of the rule. They were made long after the last meeting at which the criminal oath was taken and several days after the approvers had been in the hands of the police in connection with the murder of Mr. Ashe. The learned judges who formed the majority of the Special Court do not find that these approvers did not make the statements to Mr. Cox in the hope of being pardoned, nor do they say that the circumstances in which the statements were made precluded the possibility of their acting in concert. On the other hand it is found by Mr. Justice Sankaran Nair that the evidence points to the probability of their so acting. No doubt the learned Chief Justice and Mr. Justice Ayling say that some of the accused allege that they were strangers to Arumugam and Somasundaram and therefore their names could not have been mentioned by the approvers unless they participated in the conspiracy. That allegation has been found by the learned Judges to be untrue, but they do not find that in fact these accused came to be known to the approvers only by reason of their being members of the criminal conspiracy : on the other hand it is found in their judgment that there was an association palled the Bharata Matha Association which according to them though of a seditious tendency was not actually a criminal association and some of the accused at least were members of that association. The fact that the Police could not have concocted the earlier or the later statements of the approvers does not meet the difficulty. I am not prepared to hold upon the facts so far as they appear in the judgment of the Special Bench that the statements to Mr. Cox would be such corroborative evidence as to minimise the danger of acting upon the testimony of the approvers. I may also observe that most of the considerations which I have indicated as applicable to the statements made to the Magistrate are also applicable to those made to the Police Officer four days previously.



93. The objection taken in the third ground to the admissibility of the statements made by two of the approvers to the Inspector of the Criminal Investigation Department is, in my opinion, well founded. Those statements are admitted under Section 157 of the Indian Evidence Act, not on the ground that they were made at the time when the fact of seditious conspiracy to which they relate took place, for the last act in connection with the seditious conspiracy spoken to by the approvers had taken place months before the making of the statements, but on the ground that they were made to an authority competent to investigate, the fact. The statements were made in the course of an investigation in the case of the murder of Mr. Ashe. It is moreover the finding of the Special Bench that the murder of Mr. Ashe was not in pursuance of the criminal conspiracy, the subject of the present trial, and the one had no real connection with the other. Now supposing that the officer of the Criminal Investigation Department--P. W. 31--had authority to inquire into the murder of Mr. Ashe he would have no authority to investigate the fact of a conspiracy dealt with under Section 121 A of the Indian Penal Code which is a non-cognizable offence, without a Magistrate s warrant (see Section 155, Criminal Procedure Code). Neither P.W. 31 nor Mr. Thomas had any such warrant. Section 157 of the Indian Evidence Act says that the authority must be competent to investigate the fact, i.e., the fact, to which the statement relates. Here the fact is the conspiracy and this fact, the officers concerned in the case, had no authority to investigate at the time the statements were made. But it is said that the statements were made in the course of an investigation of an offence which was within the competency of the Police Officers. I do not however see how that makes the language of Section 157 applicable. One would not in my opinion be justified in construing Section 157 in a loose general sense having regard to the fact that it permits a statement, made in the absence of a party to a proceeding which he had no means of testing, to be used in evidence against him. Such departure from the ordinary rule relating to judicial evidence must-be confined within the strictest limits. I may mention that it was argued by the pleaders for the accused that the word investigate in Section 157 in the Indian Evidence Act is used in the technical sense of the Criminal Procedure Code. But this is clearly not so. The application of that Section of the Indian Evidence Act is not confined to criminal cases and the word investigate is obviously used in its natural and popular meaning.



94. It is further urged in support of the third ground that Veeraraghava Iyar, P.W. 31, was not even competent to investigate the murder of Mr. Ashe. The question is dealt with in the judgment of the majority of the Special Bench at page 10, and by Mr. Justice Sankaran Nair at page

66. The question is not free from difficulty, but after careful consideration of it, I am inclined to think that the weight of reasoning is decidedly in favour of the view taken by Mr. Justice Sankaran Nair. There is nothing indeed that I can usefully add to his arguments based on the provisions of the Criminal Procedure Code on which the decision of the question depends. I may observe that Section 21 of the Police Act XXIV of 1859 throws no light inasmuch as the Sections of that Act which defined the power of a police officer have been replaced by the provisions of the Criminal Procedure Code. Nor does the confidential Government Order (G.O. No. 913, Judicial, dated 2nd July 1908) adduced in evidence on behalf of the Crown make out that an Inspector of the Criminal Investigation Department is vested with the powers of investigation under the Code. The department was created to assist the ordinary police force in the detection of certain crimes and neither that fact nor the fact that a member of the Criminal Investigation Department holds the rank of an Inspector would by itself entitle him to exercise the same powers within the Presidency of Madras as an officer in charge of a police station has within the local limits of his station under Section 156, Criminal Procedure Code.



95. The fourth question raised by the certificate is whether previous statements of the two approvers, Arumugam and Somasundram, are not inadmissible in evidence against the accused persons by virtue of Section 25 of the Indian Evidence Act. That section runs thus:--" No confession made to a Police Officer shall be proved as against a person accused of any offence." I agree with the contention of Mr. Govindaraghava Aiyar that the words" a person" there, mean " any person" but the real point in connection with the applicability of the Section to the statements of the approvers is, what is the meaning in which the word confession is used in that Section It could not have been used in the wide and popular sense in which it is used in every day conversation as meaning an acknowledgment of some fault, for that would make the section ridiculous, and there can be little doubt that it is to be understood in the technical sense of the criminal law. This is apparent from the fact that the word is used in connection with criminal inquiries and trials in all the sections in which it occurs namely Sections 24 to 30. What then is that meaning It is suggested that confession in criminal law means an admission of certain facts which constitute an offence or lead to an inference of guilt. Yes, but admission by whom When the word is used in the technical sense of the criminal law, does it not always mean such an admission as above referred to when made by a person who is charged with the offence which is the subject matter of the statement That is at least how I have always understood the word. One does not talk of the confession of a witness except in a popular sense. If the word as used in Section 25 be understood--without reference to the question whether the parson making it was ever tried or not for the offence to which he confesses, then it would follow that any statement by a witness to police officer which leads to an inference of guilt under the general provisions of any Act however unconnected with the offence under inquiry would be inadmissible by reason of this section. Suppose A who does not possess the necessary license sent his servant with a quantity of opium for sale and the servant returning after having sold the opium is robbed of the money, could it be said that in a trial of persons charged with the robbery the statement of the master made to a police officer immediately after the occurrence that he had sent the servant to sell opium could not be received in evidence under Section 157 of the Indian Evidence Act, because the witness statement would amount to a confession of an offence under the Excise Act I think not. There could be no good reason for excluding such statement on the mere ground that it was made to the police officer. The fact is, whether a statement is to be called a confession or not, depends not merely upon the nature of the statement itself, but also on the use that it is sought to be made of it. Whenever the evidentiary value of a statement as against the person making it is in question, it is then that it would be properly called an admission or confession according as the proceeding in which the question arises is of a civil or criminal nature, but not when it is intended to be used as evidence against a third person. For it cannot be disputed that an admission or confession means a statement amounting to an acknowledgment of certain legal liability or of facts which give raise to such liability against the person making the acknowledgment; then how can such statement be called either admission or confession in a case where the only question for consideration is, how far the liability of a third person and not of the person making the statement, is established thereby. Much stress is laid on the fact that in Section 25 confession is not expressly mentioned as of an accused person while it is so used in Section 24 but if the word has a well-known meaning in the criminal law, as I think it has, then his argument has no force. I am fortified in the interpretation I have put on the word confession in Section 25 of the Indian Evidence Act by the definition of confession given in Stephen s Digest Article 131, which was adopted by Mahmood, J., in Queen Empress v. Babu Lal (1884) I.L.R. 6 A. 509 at p. 530. On this point, therefore, I agree with the majority of the Full Bench.



96. The last ground of the certificate is that Section 162 of the Criminal Procedure Code, which lays down No statement made by any person to a police officer in the course of an investigation under this chapter shall, if taken down in writing, be signed by the person making it, nor shall such writing be used as evidence," forbids not only the use of the writing as evidence of the statement, but of the statement itself even if it is sought to be proved without the writing. But the contention is hopeless in face of the language of the legislature. Supposing the statements made by the approvers were admissible under Section 157 of the Indian Evidence Act could it be said that Section 162 of the Code of Criminal Procedure stands in the way According to the ordinary rule of interpretation the two enactments must be reconciled with each other if possible and if we confine the declaration of the legislature in Section 162 of the Criminal Procedure Code to what is expressed there, it may well stand with Section 157 of the Indian Evidence Act. I therefore agree with the view of the Special Bench on this point which is also the view taken by Maclean, C.J. and Carnduff, J. in Fanindra Nath Banner jet v. Emperor (1908) I.L.R. 36 C. 28l Karamat Hussain, J. in Rustom v. King-Emperor (1910) 7 A.L.J. 168.

97. The result of what I have said is that those prisoners, in my opinion, must be acquitted and discharged whose convictions rest on the testimony of the approvers without any corroboration, independently of the previous statements of these witnesses made to the police officer Veeraraghava Aiyar or to Mr. Cox, unless the learned Counsel for the Crown wishes to argue that there are facts and circumstances not mentioned in the judgment of the majority of the Special Bench, which, by themselves or if considered along those noticed in the judgment of the Bench, take the case out of the general rule that an accomplice must be deemed unworthy of credit unless he is corroborated in material particulars, or that there is evidence apart from that, relied on by the majority of the Special Court, which furnishes the necessary corroboration within the meaning of the rule as I have stated it. In that event, the case must be argued further, for, under Section 26 of the Letters Patent as I read it, a sentence is not to be set aside simply because there is an error of law involved in the direction of the judge to the jury or in the judgment of a judge sitting without a jury, if such error has not occasioned a miscarriage of justice.

Sundara Aiyar, J.

98. Preliminary Objection :--With regard to the preliminary objection that the Advocate-General had no power in this case to make a certificate under Clause 26 of the Letters Patent, there can, in my opinion be no doubt that it is unsustainable. The conviction of the accused was under the Criminal Law Amendment Act, XIV of 1908. That statute entitles the Governor-General in Council or the Local Government to direct the at the special procedure prescribed therein should apply to the proceedings in respect of any offence of which a Magistrate has taken cognizance. According to the special procedure enacted by the Act, a Magistrate who arrives at the finding that the evidence adduced before him is sufficient to put the accused upon his trial for an offence specified in the schedule to the Act should commit him for trial to the High Court. Section 11 of the Act provides that " all persons sent for trial to the High Court under the Act shall be tried by a Special Bench of the Court composed of three Judges." Section 14 lays down that " The provisions of the Code of Criminal Procedure, 1898, shall not apply to proceedings taken under this part, in so far as they are inconsistent with the special procedure prescribed in this part."



99. Mr. Napier contends that cases under the Act must be governed only by the special procedure laid down therein and that there is no provision in it for any review by . this court, either upon any reservation of a point or points of law by the Bench trying the case, or on a certificate by the Advocate-General that in his judgment there is an error in the decision of a point or points of law decided by the Special Bench, or that the point or points of law which has or have been decided by it should be further considered. But it is quite clear that Act XIV of 1908 does not purport to lay down any complete rule of procedure and that the ordinary criminal procedure is applicable to proceedings under the Act, except so far as it, is inconsistent with the special procedure prescribed in the Act. Obviously, certification by the Advocate-General under Clause 26 of the Letters Patent is not inconsistent with the special procedure prescribed in XIV of 1908.

100. Mr. Napier next contends that the Advocate-General s jurisdiction to make a certificate extends only to cases coming within the purview of Clauses 23 and 24 of the Letters Patent and that these clauses do not include a case of conviction on a committal to the High Court under Act XIV of 1908 by a mofussil Magistrate, of persons beyond ordinary original jurisdiction of the High Court. I shall presently examine whether Clauses 23 and 24 would include such a case or not. But it is clear to my mind that, assuming they would not, Clause 26 is wide enough to cover the case. This clause gives power to the High Court to review (on the Advocate-General s certificate) in every case mentioned in Clause 25. The latter clause refers to " any criminal trial before the courts of original criminal jurisdiction which may be constituted by one or more judges of the said High Court." There is no reference in the clause to Clauses 23 and 24 and there is nothing in the words limiting its operation to the cases comprised in Clauses 23 and 24. There can be no doubt that a trial under Act XIV of 1908 is a trial before a court of original criminal jurisdiction constituted by one or more judges of the said High Court. The committal under Act XIV of 1908 is to the High Court as such and a court of three judges of the High Court is constituted for the trial by the Chief Justice of the High Court, acting under Section 14 of the High Court s Act, 24 and 25 Viet., Cap. 104. The fact that Act XIV of 1908 was passed long after the Letters Patent is no reason for holding that Clauses 25 and 26 do not apply to a trial before a court of original Criminal Jurisdiction constituted by judges of the High Court under that Act. They are clearly applicable to all original criminal trials by the High Court, whether under an Act existing at the time of the Letters Patent or an Act passed subsequently. Clause 23 refers to the trial of persons within the local limits of the High Court s ordinary civil jurisdiction, and of other persons beyond its limits over whom the High Court had criminal jurisdiction at the date of the publication of the Letters Patent. Clause 24 ordains that the High Court " shall have extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any court now subject to the superintendence of the said High Court and shall have authority to try at its discretion any such persons brought before it on charges preferred by the Advocate-General or by any Magistrate or other officer specially empowered by the Government in that behalf." It is admitted by Mr. Napier that the power in this section will extend to cases where Magistrate or other special officer referred to therein prefers charges under authority which they possess under any law, whether existing at the time of the Letters Patent or coming into existence subsequently. There is no reason for not placing a similar construction on Clauses 25 and 26. This would be a sufficient ground for holding that the preliminary point must fail.

101. I am, however, also of opinion that is not shown that Clauses 23 and 24 would not cover this case. Clause 24, as already mentioned, gives power to the High Court to try any person brought before it on charges preferred by any Magistrate or other special officer empowered by the Government in that behalf. For the decision of this case there are two points for consideration as to the meaning of this sentence. Does the expression specially empowered refer only to other officer, or also tp , any Magistrate And secondly, what is the meaning of the expression charges preferred by any Magistrate or other officer specially empowered by the Government The non-repetition of the word by before the words other officer is relied on as showing that both the Magistrate and other officer referred to in the clause should be persons specially empowered by Government. There is, no doubt, force in this argument, but it seems to me to be doubtful whether it is sound in this case. The powers of Magistrates are usually determined by general provisions in the Criminal Procedure Code or other statutory enactments. It does not appear that there was any provision of law at the time of the Letters Patent empowering the Government to give special authority to particular Magistrates to prefer a criminal charge. The non-repetition of the word by before other officer may be due to the fact that the legislature intended to put the Advocate-General under one category and Magistrate and other officer under another and distinct category. After all, it would only be a matter of caution to repeat the word by to show clearly that the qualification specially empowered did not apply to the noun before it. Then with respect to the expression charges preferred by, the contention on behalf of the Crown is that it means, as applied to a Magistrate, commitments made by him to the High Court. This is not the usual meaning of the expression. The preferring of a charge generally means the laying of a charge or complaint in order that it may be enquired into, and not a committal based on enquiry already made. This is certainly the meaning of the expression in this very sentence as applied to the Advocate-General. There is no apparent reason for giving it a different meaning in applying it to a Magistrate. The clause seems to authorize the High Court to try a person brought before it on a charge preferred by any Magistrate having authority to prefer it (without being specially empowered to do so by Government). There is nothing in the clause to show that the charge must be preferred directly to the High Court. Magistrates and other officers generally have no power to do so, though the Advocate-General has and always had. See Section 194, Criminal Procedure Code, and Cyclopaedia of the Laws of England, Vol. I, under the heading Attorney-General, page 624, Second Edition. It is not shown that any Magistrates or other officers besides the Advocate-General had, at the date of the Letters Patent, the power in any case to prefer a charge directly to the High Court. The clause does not seem to require more than that the charge in the case should have been preferred by a Magistrate having legal authority to do so and that the accused in the case should also be brought before the Court in a lawful manner. The charge against the accused in this case was admittedly preferred by a Magistrate, Mr. Cox. " The accused were admittedly brought before this Court in a lawful manner.

102. I am not therefore satisfied that Clause 24 does not apply to the cases. But it is unnecessary to decide this question, as it is clear to me, for the reasons already mentioned, that Clauses 25 and 26 are applicable to all cases of original criminal trials before the High Court under whatever provision of law that trial may be held.

103. The first point:

The first point that the Advocate-General s certificate states should be further considered by the Court is " the opinion of the majority of the Court that the evidence of an accomplice need not be corroborated in material particulars before it can be acted upon, and that it would be open to the court to convict on the uncorroborated testimony of an accomplice if the court was satisfied that the evidence was true." This would seem prima facie to be opposed to the very words of Section 133 of the Indian Evidence Act which lays down in positive terms that " a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." The Advocate-General s meaning however is explained by the further statement in the certificate that " it requires to be further considered whether Section 133 of the Indian Evidence Act, read with Section 114, illustration (b), does not merely intend to lay down that a conviction upon the uncorroborated testimony of an accomplice is not illegal where the presumption of untrustworthiness attaching to the evidence of an accomplice is rebutted by special circumstances." But again it is hardly possible to suppose that the Advocate-General meant to suggest that the presumption referred to is one which the court is directed by law to make in all cases of the testimony of an accomplice and requiring to be rebutted by other evidence. For, that would be directly contrary to the definition of may presume in Section 4 of the Act, according to which " whenever it is provided by this Act, that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it." The argument for the accused at the hearing was, and I take it the view suggested by the Advocate-General also was, that, notwithstanding the liberty given to the court not to regard a fact referred to in Section 114 as not proved and to call for proof of it, the meaning and intention of the section must be taken to be that ordinarily the presumption referred to in illustration (b) to Section 114 must be made and that special circumstances must be found by the court whenever it does not do so. It need hardly be observed that it is not strictly correct to express the meaning by saying that the presumption of untrustworthiness must be found to be rebutted by special circumstances. Understanding the certificate in the sense just mentioned, I may, before dealing with the question raised therein, observe that it is not clear to my mind why the learned Advocate-General considered it necessary to make a certificate on the point in this case. The majority of the Special Bench--the learned Chief Justice and Ayling, J.--no doubt observe that it would be open to them to convict the accused on the uncorroborated testimony of the accomplices, even if it stood alone, if they were satisfied that that evidence was true and they do not expressly say that special reasons must exist for not presuming its untrustworthiness. But the conviction is not based by them, as far as I am able to see, on the testimony of the accomplices alone. After laying down the proposition of the law above mentioned, the learned Judges proceed to consider the nature of the corroborative evidence that is required in the case of accomplice s testimony. They then refer to the former statements of two of the accomplices to P.W. 31 as strongly corroborating their evidence given at the trial. They deal with the objections raised by the accused to the admissibility of former statements of accomplices in evidence. They then say that the previous state-ments ,of the two approvers, Arumugam and Somasundaram, which they hold to be admissible in evidence, show that the defence theory that the evidence given by the approvers was the result of tutoring by the police or was concocted by the approvers themselves was quite unsustainable, and that, even apart from the previous statements to P.W. 31, it is impossible to accept the theory of tutoring or concoction. They say " the impression left in our minds of the three approver witnesses was favourable to the general truth of their story " and give reasons in support of that impression. They afterwards proceed to deal with the nature of the other corroborative evidence adduced in the case and of the defence set up by the accused. They then proceed to deal with all the evidence on record against each of the accused persons including both the testimony of the approvers and the corroborative evidence adduced by the prosecution, and with the evidence let in by each of the accused on his behalf, and come to a conclusion with respect to the guilt or innocence of each of the accused, on the whole of the evidence let in both for the prosecution and for the defence. The learned Judges do not say, as indeed it was unnecessary for them to say, whether they would convict any of the accused on the evidence of the approvers alone. Even if we should now come to the conclusion that the general proposition enunciated by the majority of the Special Bench that it was open to them to convict the accused on the uncorroborated evidence of the approvers is not sound, this conclusion would not affect their judgment which is not based on such uncorroborated accomplice s testimony alone. In my opinion, it would be open to us, sitting as a court of review, to decline to express any opinion on the point raised in the Advocate-General s certificate. I may further point out that the counsel for the accused did not, during the arguments before us, question the soundness of the proposition laid down by the majority that they had the power, as a matter of law, to convict the accused on the uncorroborated evidence of the approvers if they believed that evidence. They could hardly venture to do so. The argument before us was that the learned Judges should have presumed the untrustworthiness of the evidence of the accomplices unless they could refer to special circumstances justifying their not doing so, and that no such special circumstances are referred to in their judgment. They have therefore, it is urged, committed an error of law in not making the presumption. But assuming this argument is well founded, it is, as already pointed out, altogether irrelevant as the conviction is not based on the testimony of the accomplices alone.

104. Although for the reasons mentioned above, it is open to the court to decline to deal with the question raised in the certificate, I consider it desirable to state my opinion on it as it has been discussed at great length, both on behalf of the accused and the Crown. The arguments traversed a wide field dealing with the English law relating to the evidence of accomplices from very early times and the law in India both before and after the enactment of the Indian Evidence Act I of 1872. The law in India at the present day must be found in the provisions contained in the Indian Evidence Act. It is a complete code of the law of evidence applicable to this country. It purports not only to consolidate and to amend, but also to define the lav/ of evidence. See Rajib Panda v. Lakhan Sendh Mahapatra (1899) I.L.R. 27 C. 11. If the language of the provisions of the code is clear, then that language is decisive of the law. (See Bank of England v. Vagliano (1891) L.R. App. Cas. 107 and Norendranath Sircar v. Kamalbasini Dasi (1896) I.L.R. 23 C. 563, though, where the words are not clear, light may be derived as to their meaning from an investigation of the law as it was understood prior to its enactment. See Brown v. Mclachlan (1872) 4 P.C. 543 at p. 550 Robinson v. Canadian Pacific Railway Company (1892) A. C. 481 at p. 487 Jogendra Chandra Roy v. Shyam Das (1909) I.L.R. 36 C. 543. The principle laid down in Rex v. Abrahams (1904) 2 K. B. 859 with regard to the construction of statutes, which purport merely to consolidate the previous law on a subject, does not hold good in the interpretation of a statute which codifies a particular branch of law. If, then, the provisions of Sections 133 and 114 of the Indian Evidence Act express with clearness and certainty the law to be enforced with respect to the testimony of accomplices, it would be of little use to investigate whether those provisions are in accordance with the previous law either in England or in India.

105. It was urged on behalf of the accused that the majority of the Special Bench take the law in this country to be in accordance with the English law on the subject; and the opinions of judges in other cases to the same effect are also cited to induce us to hold that the question should be decided in accordance with the English law. It is not however denied that the proper conclusion on the question should really be arrived at by the construction of the provisions to be found in the Indian Evidence Act. My investigation of the English case law has not helped to make the conclusion to be arrived at on this point more certain than they would otherwise be. The counsel for the accused rest the strength of their case on Section 114, illustration (b), of the Indian Evidence Act, which, they say, materially qualifies Section 133, which declares that the conviction of an accused on the testimony of an accomplice alone is legal. There can be no doubt that Section 114 should be read along with Section 133 in order to determine the manner in which the testimony of an accomplice should be dealt with before basing a conviction on his evidence alone.

106. The Indian Evidence Act recognizes two classes of presumptions, corresponding to what are known as rebuttable presumptions of law and presumptions of fact in English law. Irrebuttable presumptions under the English law are also recognized in the Act in Sections 112 and 113, which make certain facts conclusive proof of other facts. All the three classes are explained in Section 4 of the Act. It is impossible to attach weight to any argument which is calculated to confound the two classes of presumptions which are clearly distinguished in the Act. It is not possible to countenance the view that the court is absolutely bound to regard a fact as proved, which, according to the positive language of Section 4, it may either regard as proved or may call proof of. On this point it is useless to appeal to the rules of English law to justify a departure from the provisions of the Indian Act. In English law it is by no means clear what presumptions are regarded as presumptions of law and what are regarded merely as presumptions of fact. The same presumption is regarded, sometimes as one of law and sometimes as one of fact. Another class of presumptions is also recognized in Best on Evidence as mixed presumptions or presumptions of mixed law and fact, or, presumptions of fact recognized by law. The learned author says--" These hold an intermediate place between the two former, and consist chiefly of certain presumptive inferences which, from their strength, importance, or frequent occurrence, attract, as it were, the observation of the law; and from being constantly recommended by judges and acted on by juries, become in time as familiar to the courts as presumptions of law, and occupy nearly as important a place in the administration of justice." He also observes, " Unfortunately however, the line of demarcation between the different species of presumptions has not always been observed with the requisite precision. We find the same presumption spoken of by judges, sometimes as a presumption of law sometimes as a presumption of fact, sometimes as a presumption which juries should be advised to make, and sometimes as one which it was obligatory on them to make." (Page 280 X Edition). To give only one illustration, the author regards the presumption that legal acts have been performed with the solemnities required by law as a presumption of fact--see page 308. But in Taylor on Evidence the same presumption is regarded as one of law. According to Section 114 of the Indian Evidence Act, the presumption is only one of fact. Sir James Fitzjames Stephen observes, with regard to Section 114 of the Act, " Finally, it declares in Section 114 that the court may in all cases whatever, draw from the facts before it whatever inferences it thinks just. The terms of the Section are such as to reduce to their proper position of mere maxims which are to be applied to facts by the courts in their discretion, a large number of presumptions to which the English law gives, to a greater or less extent, an artificial value. Nine of the most important of them are given by way of illustration." In applying the English law to this country it must be remembered that in England the law of Evidence had a long and laboured development. Several classes of persons were at one time regarded as incompetent to testify at all. An accomplice was one of the classes of persons regarded with disfavour as a witness. Wigmore in his learned treatise on Evidence points out (see Section 526) " It was frequently urged against an accomplice, during the 1600s and 1700s, that since by his own confession he was guilty of crime, this turpitude thus acknowledged made him as incompetent as if it were proved by conviction for the crime. This argument is only broadly related to the above maxim, (i. e., Allegans Turpitudinem Suam allegans audiendusest) and yet, this relation is frequently noticed in the opinions dealing with the other instances. It must be distinguished from the argument of disqualification as a co-indictee and of disqualification by reason of a promise of pardon. The argument, however, was judicially repudiated from the very beginning, partly on the ground of necessity, partly on the ground that turpitude, though self-confessed, was no hindrance unless there had been a conviction of crime." At common law again when two or more persons were tried upon the same charge, each was naturally. disqualified to give evidence on account of their interest. This ground of disability was also in time swept away. With regard to the value of an accomplice s testimony, Wigmore observes (Section 2056), " Through the 1600s and 1700s it had to be ruled again and again that they were to be received as witnesses. But for a long time no question was made as to the sufficiency of their testimony when admitted. The quantitative conception of an oath tended to keep this question in the back-ground. An oath, in the notions of the time, had a certain dead-weight of its own ; one oath was as good as another oath. Should a witness once get in, the harm (they thought) was done ; for there would be little weighing of the comparative quality of different persons oaths. The struggle, therefore, was made at the threshold. As time went on, and the modern conception of testimony developed, the possibility of admitting a witness and yet discriminating as to the qualitative sufficiency of this testimony became more apparent; and the way was open for the consideration of this question. In a few instances, as the 1700s wore on, and even before then, judicial suggestions are found as to the feasibility of such a discrimination. But not until the end of that century does any court seem to have acted upon such a suggestion in its directions to the jury. About that time there comes into acceptance a general practice to discourage a conviction founded solely upon the testimony of an accomplice uncorroborated. In R. v. Smith and Davies (1784) 1 L.Cr.L. IV. Ed. 479 the court thought it too dangerous to suffer a conviction under such unsupported testimony. However, it was established in R. v. Atwood (1788) 1 L. Cr. L. 464 that such a conviction was perfectly legal. But although the question of the admissibility of the evidence of an accomplice had been long settled and the legality of a conviction based on the sole testimony of an accomplice was established in R. v. Atwood, the sentiment against placing reliance on such evidence could not die out. It was bound to live and to remain strong under a system of law where questions of fact, both in civil and criminal matters, were left to the determination of juries. Reforms advoeated by advanced thinkers no doubt succeeded in abolishing both artificial rules of admissibility and antiquated conceptions of the quantitative appraisement of evidence. But so long as the settlement of facts was left to juries, judges could not but be impressed with the necessity of guiding their untrained appreciation of evidence and restraining their vagaries both by advices and directions deemed necessary for rendering justice in individual cases. The legislature itself found it necessary to enact that the evidence of highly interested witnesses should be materially corroborated by independent evidence in particular classes of cases. In the case of an accomplice, moreover, he could be called as a witness only with the sanction and under the orders of the court after complying with certain legal formalities; the opinions of individual judges regarding the unreliability of accomplices without corroboration could be enforced by refusing permission for their examination as witnesses. The result is that we find much variety and uncertainty in the manner in which accomplice evidence was treated in decided cases, while at the same time the principle is reiterated from time to time that there is no rule of law restraining the action of the judges and juries in dealing with such evidence, and judges ostensibly refrained from any attempt to set up any presumption of law against its trustworthiness. The danger of ordinarily convicting on the uncorroborated testimony of an accomplice being manifest, it came to be regarded as the duty of the presiding judge to draw their attention to the danger, in the same manner as it was his duty also to make such other comments on the evidence adduced as the nature of the case required. An examination of the decisions, however, shows much diversity in the actual practice of judges in the manner in which this duty was discharged. In R. v. Mullins (1848) 7 St. Tr.N.S. 1100, (3 Cox. C.C. 526). Maule, J. observed as follows :--" The truth of the matter is, there is no rule of law at all that an accomplice cannot be believed unless he is confirmed....It is an observation addressed, not to the court to exclude the evidence, but addressed to the jury who have to weigh the evidence, and it is for them to say whether the confirmation will satisfy them or whether they will be satisfied without any. If they are satisfied without any confirmation they may be, and their verdict may be an honest and just and true one....The directions of judges given to juries in that respect are not directions in point of law which juries are bound to adopt, but observations respecting facts, which judges are very properly in the habit of giving, because, with respect to matters of fact, the judge, as well as the counsel upon both sides, endeavour to assist the jury." The principle laid down in the above case was not always observed. Permission to examine an accomplice as a witness was sometimes refused on the ground that no corroborative evidence was forthcoming. " Where several prisoners were committed as principals, and several as receivers, but no corroboration could be given as to the receivers, against whom the evidence of the accomplice was required, Gurney, B. refused to permit one of the principals to become a witness. (R. v. Mellor (1833) Staff. Sam. Ass So in R. v. Saunders (1842) Worc. Spr. Ass on a motion to admit an accomplice, Patteson, J. said I doubt whether I shall allow him to be a witness. If you want him for the purpose of identification, and there is no corroboration, that will not do. In R. v. Salt (1843) Staff. Spr. Assizes where there was no corroboration of an accomplice, Wightman, J. refused to allow him to become a. witness. And again, in R. v. Sparks (1858) 1 F. and F. 388 where counsel for the prosecution applied for leave to call an accomplice who had pleaded guilty, Hill, J. refused to permit it until the other evidence had been given in order to see whether it was sufficient to corroborate that of the accomplice." (Roscoe s Criminal Evidence, XIII Edition, page 108). These cases proceeded certainly on the footing that the accused should not be convicted on the evidence of an accomplice alone and that there was a legal presumption against its trustworthiness. In R. v. Farler (1838) 8 C. and P. 106. Abinger, C.B. observed that the practice of requiring confirmation of such testimony has obtained so much sanction from legal authority that it deserves all the reverence of law. The learned Judge, however, did not direct the jury to acquit the accused. He said " I would suggest to you that the circumstances are too slight to justify you in acting on the evidence." This was no more than an expression of his own opinion on the facts of the case which a judge is always justified in giving. In Rex. v. Jones (1810) 2 Camp 131 Ellenborough, J. treated the advice to be given by a judge against acting on the testimony of an accomplice as resting in his discretion. In Queen v. Boyes (1861) 1 B, and Section 311 Wightman and Crompton, JJ. took the same view, Wightman J. observing. " The application of that rule, however, if a matter for the direction of the judge by whom the accused is tried and here he appears to have drawn the attention of the jury to the point." The learned Judges approved of the ruling of the Court of Crown Cases Reserved in R. v. Stubbs (1855) 25 L.J.M.C. 16 where the learned judges held that the practice of requiring corroboration of an accomplice is not a rule of law. In Reg. v. Gallaher (1855) 25 L.J.M.C. 16 the judge s statement to the jury regarding the practice is spoken of as a recommendation to them. In Queen v. Avery (1838) 1 Cox. C.C. 206 the judge refused to withdraw the case from the jury on the ground that there was no corroboration of the accomplice. In Rex v. Hastings (1822) 7. C and P. 152 the judge in giving directions on the application of the prosecution said that the evidence in the case must be adduced though it was admitted that there would be no evidence forthcoming to corroborate the accomplice in the case. Further the rule regarding the necessity for corroboration was often relaxed in the case of misdemeanours--See Archbold s Criminal Pleading, XXIII Edition, page 321. On the other hand, Patteson J., In Reg. v. Jelly man (1838) 8 C. and p. 604 and Littledale, J. in R. v. wells (1840) 1 M. and M. 326 told the jury that they ought to acquit unless they were convinced that there was sufficient corroboration. One rule alone may be regarded as established in the long run that a judge is bound to caution the jury against the danger of acting on the testimony of an accomplice without corroboration. In Rex v. Tate (1908) 2 K. B. 680 Lord Alvertson, C.J. while agreeing that there is no definite rule of law that a prisoner cannot be convicted on the uncorroborated evidence of an accomplice, said " that in his opinion it was of the highest importance that the jury should be cautioned against accepting the evidence of an accomplice without corroboration." There is nothing supporting a contrary view in In re Meunier (1894) 2 Q. B. 4

15. In that case, where the question was whether a Magistrate was right in passing an order for the surrender of the accused to the French Government under the Extradition Act, on the ground that there was no proper corroboration of the evidence of an accomplice, Cave and Collins, JJ. held that the absence of corroboration was no ground for holding that the case was not to belaid before the jury. Cave, J. observed, "The Magistrate has a discretion in each case as to whether the evidence is, or is not, sufficient to justify a committal." Cases are not wanting however even in recent years in which judges have regarded the presumption against accomplices as one of law. Wills, J. in 1895, " withdrew from the jury one of the counts in an indictment upon which there was very clear and unshaken evidence by the accomplice but nothing else." And Baron Bramwell is stated to have followed a similar course in another case. See Wills on Circumstantial Evidence , page 365, also Roscoe and Granger on Criminal Evidence, 156. In Rex v. Beauchamp (1909) 73 J.P. 223 it was held only that the jury should be cautioned. But in Rex v. Everst (1909) 73 J.P. 269 Darling, J. is reported to have said that " the direction should be to acquit unless there was corroboration connecting the accused with the offence." And in Rex v. John Warren (1909) 73 J.P. 356 Channell, J. is said to have expressed himself in similar terms.

107. A review of the English cases shows the uncertainty of the law in that country as to the nature and extent of the presumption. The learned editors of Roscoe on Criminal Evidence, XIII Edition, observe, at page 11.0, " Thus the law remains in that anamolous state in which the bare existence of a principle is acknowledged, but which principle is constantly disapproved of and frequently violated. As the law now stands, it is universally agreed by all the authorities that if the accomplice were uncorroborated a judge would be wrong who did not advise the jury not to convict, whereas the Court of Criminal Appeal would be bound to pronounce an opinion that a judge who did not advise them was right." The learned editors of Russell on Crimes , VI Edition, Vol. Ill, page 645, point out that it is only by holding that the practice of requiring corroborative evidence must rest on the discretion of the judge that it can be reconciled with the doctrine that the legal conviction may take place upon the unsupported evidence of an accomplice. This statement is scarcely in accordance with Rex v. Tate (1908) 2 K. B. 680.

108. It seems to me that having regard to the condition of the case law in England it would be safe to proceed to determine the law in this country by a consideration, mainly, if not solely, of the provisions of the Indian Evidence Act. We start with the fact that the presumption that an accomplice is unworthy of credit unless he is corroborated in material particulars is one which the court may or may not make. It is impossible to hold that the court is in all cases bound to make the presumption without regard to the particular facts and circumstances of each case; for, in that case, the legislature would have said that the court shall presume the un-trustworthiness of an accomplice. If the case is tried by a jury the judge cannot tell them that they are bound to make the presumption. It would be his duty to inform them that they are at liberty to make it or not. Taking it that it is his further duty to draw their attention to the facts which would make it proper that the presumption should be made and that he is entitled to express his own opinion that in the particular case the presumption would be a proper one, it cannot be denied that he is equally entitled to say that, in his opinion, it would be proper not to make the presumption in any particular case. If the case is tried by the judge himself without a jury, it would then be left to him whether in the circumstances of the case he would make the presumption or not. But he is of course bound to exercise his judicial discretion to presume or not to do so in a judicial and legal manner. " A presumption of fact is a rule of law that a fact otherwise doubtful may be inferred from a fact which is proved " (Lawson on the Law of Presumptive Evidence, page 639). On an appeal from his decision it would be open to the court of appeal to consider when he was right or wrong in not making the presumption in the circumstances. If the question be whether there is any error of law in his judgment, the court is entitled to consider whether the rule embodied in Section 114 was present to his mind and whether he exercised his discretion after considering the materials On record. His judgment will be examined for the purpose of enabling the court of law to decide whether the discretion was exercised in a legal manner. If he has not made the presumption and has given no reasons for not doing so, it would be open to a court of review or revision to arrive at the conclusion that the discretion has not been exercised in a legal manner. The decision of the question would depend on the consideration of his judgment as a whole. In a jury case it is the duty of the judge in charging the jury to sum up the evidence for the prosecution and the defence and to lay down the law by which the jury are to be guided, Section 297, Criminal Procedure Code. This will include the duty to draw attention to the presumptions mentioned in Section 114 of the Indian Evidence Act and also to the circumstances in the particular case having a bearing on the application of the rule. Up to this point I think there is not much room for doubt. But can it further be laid down that it is the duty of a judge deciding the facts to make the presumption that an uncorroborated accomplice is unworthy of credit unless there be special reasons which would justify the refusal to make it On this point I am of opinion that there is room for the growth of judiciary law. Judges are entitled to lay down a rule that although the legislature has given the court the discretion to make a particular presumption or not, according to the circumstances, the proper course for the court to follow is to make the presumption unless there be special occasion for not doing so. This does not deprive the court of the right given by the legislature to exercise its discretion. Whether a rule should be laid down guiding and controlling the exercise of the discretion must depend on the nature of the presumption of fact in question. If there be a course of decisions with respect to any of the nine presumptions mentioned in the section, it would be wise not to depart from what has been consistently laid down by the courts. It must be recognised that the illustrations to the section embody presumptions which are regarded as of great value in English law and some of them are regarded as presumptions of law there. Thus illustration (a) is treated as a presumption of law in England. So also illustration (e). Illustration (i) relates to a case where the onus would be regarded as shifted in consequence of the fact referred to therein. Illustration (g) also embodies a presumption of much weight. Illustration (c) has been converted into a presumption of law in the Negotiable Instruments Act. With regard to illustration (b) where the accomplice has not already been convicted of the offence in which he took part and has given evidence in the hope of a pardon, his evidence is of a particularly unworthy character. There may no doubt be circumstances in any particular case which would justify the court in not making the presumption. But I think it would be reasonable to hold that there must be some reason given for not making the presumption in such a case. The same observation will hold good with regard to illustration (e) which refers to the presumption that judicial and official acts have been regularly performed.

109. When we examine the case law on the point we find that though the rule of law embodied in Sections 114 and 133 of the Indian Evidence Act appears reasonably simple and clear, the sentiment against the testimony of accomplice has led to some extent to the importation of the indefinite practice of English judges in charging juries and to a tendency on the part of some judges to make the desirability of corroborative evidence in such cases a rule of law, notwithstanding the refusal of the legislature to treat it as such in the Indian Evidence Act. In the leading case of R. v. Elahee Buksh (1866) 5 W.R.C.R. 80 the Calcutta High Court held that it was the duty of a judge, in summing up to the jury, to make such observation as to the credit to be attached to particular witnesses as the circumstances of the case rendered necessary. Peacock C.J. observed, "That the omission to follow a practice which is universally adopted by the judges in England would be a ground of appeal against a conviction upon a verdict of guilty and would be an error of law." The learned judge could not be taken to have meant that the judge should advise the jury not to convict on accomplice s evidence, if his own opinion is that in the particular circumstances of the case it was trustworthy. In 4 M.H.C.R, Appendix, page 7, this Court laid down the proper course in such cases to be to tell the jury or the assessors " that, as a general rule of practice, it is considered unsafe to convict upon such evidence and to point out any circumstances in the particular case which in the opinion of the judge afford a sufficient reason for relying upon the evidence in that case." In Reg. v. Ramasami Padaychi (1878) I.L.R. 1 M. 394 Morgan, C.J. and Kindersley, J. held that " the court or jury is required by Section 114 to take into consideration certain facts with the view to ascertain the probability of the story told...And the rule in this Section is thus brought to coincide with the rule observed in England that though the tainted testimony of an accomplice should be carefully scanned and received with caution and may be treated as unworthy of credit, yet, if the jury in the one case or the court in the other credits the evidence, a conviction proceeding upon it is not illegal." It will be observed that all that is required according to the learned judges is that the probability of the story should be ascertained and the evidence of the accomplice should be scanned and received with caution. In Queen-Empress v. Arumuga (1888) I.L.R. 12 M. 196 Collins C.J. and Muthusami Aiyar, J. set aside a conviction on the ground that " the Sessions Judge should have cautioned the jury not to accept an approver s evidence unless it was corroborated." This observation in ray opinion went too far unless it was based on the facts of the particular case. The learned judges could hardly have meant that it was not equally the judge s duty to tell them, if he considered it proper to do so, that in the circumstances of the case the accomplice s evidence was trustworthy without corroboration. In King Emperor v. Mohiuddin Sahib (1901) I.L.R. 25 M. 143 reference is made to the English decisions laying down that the testimony of the approver ought to be corroborated in material particulars. It was held that such corroboration existed in that case. In Emperor v. Edward William Smither (1902) I.L.R. 26 M. 1 Davies and Benson, JJ. stated with more caution that a judge ought not to omit to caution the jury with respect to the credit to be attached to accomplices. In Ramasami Gounden v. Emperor (1903) I.L.R. 27 M. 271 Subrahmania Aiyar, J. observes that the rale laid down in Section 114 of the Indian Evidence Act is only a precept of caution. He says, " To claim for it greater potency in the face of Section 133 of the Indian Evidence Act would be to introduce an artificial scale of credit and nothing can be more absurd to borrow from the language of Lord Denman in King v. Harbmne (1835) 2 A. and E. 540. s.c. 111, E.R.P. 20 " than that there should be some rigid presumptions as to matters of fact where the only questions ought to be what evidence is admissible and what inferences may fairly be drawn from it." Bhashyam Iyengar, J. said " I am however unable to agree with Boddam, J. that if the first witness was only an accomplice it would be the duty of the judge to direct the jury that there was not sufficient evidence before them upon which they would be justified in finding the accused guilty and with all respect I should say that this would be misdirection. In Rex v. Boyes 9(1861) 9 Cox. C.C. 32 Cockburn, C.J., adverting to counsel s argument that Martin, B. ought to have directed the jury not to act upon the uncorroborated testimony of an accomplice, protested against its being the duty of the judge to direct the jury to acquit because the evidence of an accomplice is uncorroborated and added that the judge ought not to have told the jury to acquit if the evidence was uncorroborated. It may be that, except under very special circumstances, the settled course of practice is not to convict a prisoner upon the sole and uncorroborated testimony of an accomplice and if, in the opinion of the judge there are no special circumstances, which would induce him to give credit to the evidence of the accomplice and convict the prisoner on his sole uncorroborated testimony, he may, no doubt, under Sub-section 2 of Section 298 of the Code of Criminal Procedure, express such opinion to the jury and in that sense advise them to acquit the prisoner."

110. The latest decision of this court seems to be Vyasa Row v. Emperor (1911) 1 M.W.N. 327 I do not think that my learned brother Abdur Rahim, J. has laid down in that case any hard and fast rule that it is not open to a judge in any case to "act on the uncorroborated testimony of an accomplice. He no doubt points out the danger of doing so and refers to the practice on the part of judges in general requiring corroborative evidence. In Queen v. Sadhu Mundul (1874) 21 W.R.C.R. 69 Phear, J. held that the omission to give the usual caution to the jury was a misdirection and that he was wrong in the particular case in saying to the jury that it was not proper or necessary for him to tell them that the evidence of the accomplice was to be received with caution. The learned judge said, " that it is the duty of the court which in any particular case has to deal with accomplice s testimony, to consider whether this maxim applies to exclude that testimony or not; in other words, to consider whether the requisite corroboration is furnished by other evidence or facts proved in the case, though at the same time the court may rightly in exceptional cases, notwithstanding the maxim and in the absence of this corroboration, give credit to the accomplice s testimony against the accused, if it sees good reason for doing so, upon grounds other than, so to speak, the personal corroboration." This passage seems to show that the judge must, in order to avoid making the presumption, find good reason for doing so. In Queen-Empress v. Deodhar Singh (1899) I.L.R. 27 C. 144 it is stated that the practice of requiring corroboration is a rule of almost universal application, and in Kamala Prasacl v. Sital Prasad (1901) I.L.R. 28 C 339 it is stated to be almost a part of the law itself. The question however in both those cases was whether certain witnesses were really in the position of accomplices. In Jamiruddin Masalli v. Emperor (1902) I.L.R. 29 C. 782 Prinsep and Stephen JJ. held that the jury should have been told that it was not safe to convict on the uncorroborated testimony of an accomplice, though the Sessions Judge had charged them that corroboration was necessary. Emperor v. Lalit Mohan Chuckerbutty (1911) I.L.R. 38 C. 559 at p. 579 cannot be regarded as throwing any light on the question. Jenkins, C.J. says that admittedly the testimony of accomplices required to be corroborated in material particulars and no question arose as to whether the court was bound to make the presumption mentioned in Section 114, illustration (b). In Queen-Empress v. Ram Saran (1885) I.L.R. 8 A. 306 Straight, J. merely observed that it is a practice of judges both in England and in India to guard their minds carefully against acting upon such evidence when uncorroborated and when trying a case with a jury, to warn the jury that such course is unsafe. In Queen v. Empress Gobardhan (1887) I.L.R. 9 A 528 Edge, C.J. points out that a jury being bound to convict on the uncorroborated evidence of an approver if they believe it, a judge cannot direct them to acquit the accused in the absence of corroborative evidence. He says, " A judge would advise a jury that it would be unsafe to act upon, in other words, to believe, the uncorrroborated evidence of an accomplice, as he would advise the jury not to act upon the evidence of any other witness whose evidence might from any cause be open to suspicion. But in either case he would have to tell the jury that if they believed the evidence they might legally convict the prisoner." I entirely agree with this statemant of the law, with this addition that, it is the duty of the judge to draw the attention of the jury to any circumstance either in favour of or against the credibility of the accomplice. In Queen-Empress v. Maganlal and Motilal (1889) I.L.R. 14 B. 115 Scott, J. observes, with respect to cases tried by a judge himself, " But it much clearly appear to the court sitting in revision that the character of the witness was persent in his mind when the judge or magistrate came to such a conclusion (that is, that the evidence of the accomplice was trustworthy). But if that is so, there is no ground for interference of a revisional character. Jardine, J s. observation are not inconsistent with this. He observes " These reasons for requiring independent corroboration, so strongly insisted upon by Sir Barnes Peacock, are not expressly mentioned by the Magistrate." Bayley, J. would seem to have gone further. He said " He had nothing before him but the corrupt evidence of confessed accomplice. His omission to consider the necessity that such evidence should be corroborated by that of one or more other of untainted witnesses, is in my opinion an error by which the accused undoubtedly have been prejudiced." It is not quite clear, however, whether the learned judge intended to lay down any general rule that corroboration was necessary in all cases. In Queen Empress v. Chagan Dayaram (1890) I.L.R. 14 B. 331 Birdwood, J. was of opinion that the High Court could in revision consider whether there were good grounds to warrant the lower court in not making the presumption that an accomplice s witness was untrustworthy. Jardine J. said " The rule in Section 114 and that in Section 133 are part of one subject, and both are found in most of the greatest judgments mentioned in our judgments in that case (that is, 14 Bom. 115) and neither section is to be ignored in the exercise of judicial discretion. The illustration (b) is, however, the rule and when it is departed from, I think the court should show or that it should appear that the circumstances justify the exceptional treatment of the case." No other case of importance has been brought to our notice at the arguments. The observations of the Bombay High Court in Queen Empress v. Maganlal (1889) I.L.R. 14 B. 115 and Queen Empress v. Changan Dayaram, of Phear, J. in Queen v. Sadha Mundul (1874) 21 W.R.C.R. 69 and of Bashyam Iyengar, J. in Ramasami Gounden v. Emperor (1903) I.L.R. 27 M. 271 are authorities for the position that it would be right to require that a judge should ordinarily presume the untrustworthiness of an accomplice. When a case is tried without a jury the judgment should contain certain materials to show to a court of appeal or revision that this presumption was borne in mind by the judge and the reasons that weighed with him for not making the presumption. I would not put it, as suggested in the Advocate-General s certificate, that the presumption of untrustworthiness should be made in all cases and that a conviction without independent corroboration can be sustained only where the presumption is rebutted by special circumstances. I do not think that there is really anything in the judgment of the majority of the Special Bench to show that the learned Judges really took a different view though they do not consider the question whether special reasons should be exhibited for not requiring corroboration. Their Lordships say that it should be borne in mind that the evidence of the approvers is tainted evidence. Scrutinized with the utmost care and accepted with the greatest caution and considered in the light of the circumstances in which it is given and in the light of all other circumstances in the case of which evidence is legally admissible, then, if it is found to be trustworthy, it must be acted on. As I have already pointed out, the certificate of the Advocate-General on the question does not raise any question of practical importance in the case. The learned Judges have in fact given plenty of reasons which in their opinion were sufficient for considering the evidence of the approvers in the case generally trustworthy. This Court, dealing, as a court of review, with the question whether there is any error of law in the view taken by the majority, is not concerned to consider whether those reasons were, as a matter of fact, sufficient to justify the acceptance of the approvers evidence as generally true. That is entirely a question of fact and we have not, at this stage of the case, at any rate, to deal with it further.

111. Mr. Govindaraghava Aiyar raised a further contention on the first point in the Advocate-General s certificate, that the majority of the Special Bench were wrong in their view as to what constitutes material particulars in respect of which corroboration of an accomplice s testimony is required. But this question is not raised in the certificate of the Advocate-General. The certificate says that the opinion that the evidence of an accomplice need not be corroborated in material particulars requires to be further considered. It does not state that the opinion of the majority as to what are material particulars requires to be further considered. Mr. Govindaraghava Aiyar then claimed to. argue this question apart from the certificate of the Advocate-General. His argument is that once the Advocate-General certifies that the decision of the court on any question of law arising at the original trial is in his opinion wrong and that any question of law requires in his opinion to be further considered, the whole case is open before the court reviewing the judgment. Clause 26 of the Letters Patent provides that " on its being certified by the said Advocate-General that in his judgment there is an error in the decision of a point or points of law decided by the court of original criminal jurisdiction, or that a point or points of law which has or have been decided by the said court should be further considered, the said High Court shall have full power and authority to review the case or such part of it as may be necessary and finally determine such point or points of law, and thereupon to alter the sentence passed by the court of original jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right." It is contended that the clause gives power to the Court, whenever a certificate has been granted by the Advocate-General, to review the case or any part of it that the court may seem fit to review and that practically the whole case becomes open when a certificate is granted. This will make the review practically an appeal, while Clause 25 provides that " No appeal shall lie from any sentence or order in any criminal trial of the High court in its original criminal jurisdiction." Mr. Govindaraghava Aiyar admits that this would be the result, with the difference that the court has a discretion to decide how much and what portion of the judgment it would review. But this is not the language of the clause. The statement in it is that " the court shall have power and authority to review the case or such part of it as may be necessary", not as the court may think fit. Now what is the meaning of the expression necessary Necessary for what . Obviously, I think, for deciding the point or points of law reserved or certified as requiring consideration. No other meaning can, in my opinion, be suggested. This is rendered clearer by what follows, "end finally determine such point or points of law." The clause clearly means that the court should finally determine the points of law and for that purpose shall have power to review the whole or any part of the case that may be necessary. Then the clause proceeds to state what the court is to do after determining the point or points of law. It has then power " to alter the sentence passed by the court of original jurisdiction and to pass such judgment and sentence as to the said High Court shall seem right." If the Court confirms the decision passed at the trial on the point or points of law, then nothing further remains to be done. If, on the other hand, it reverses the decision on any point or points of law, then it has to consider what judgment it should pass. The power given to the court under Clause 26 is similar to the power given to the court of Crown Cases Reserved by 11 and 12 Vict., Cap. 78, with an important modification. It was considered that according to that statute if the decision of the trying court on a material point of law was reversed by the Court of Crown Cases Reserved that court had no power to consider whether the judgment could be upheld, notwithstanding its opinion on the question of law. and was bound to quash the conviction, Clause 26 of the Letters Patent, on the other hand empowers the court to pass such judgment as it shall deem right--a power similar to what is conferred on courts of appeal by Section 167 of the Indian Evidence Act. The court is entitled to consider whether, notwithstanding that it may reverse the opinion of the trying court on any question or questions of law, conclusion of that court on the case as a whole should be disturbed, or what is proper judgment to be passed in the case. The question of law might possibly affect only the sentence to be passed on the accused and in such a case it would be sufficient for the court of review to alter the sentence passed by the court of original jurisdiction. In other cases it would be necessary to consider whether the remaining evidence is sufficient to justify the conviction. Mr. Govindaraghava Aiyar was not able to cite any precedent in support of his contention. On the other hand, the observations of Devar, Chandavarkar and Beaman, JJ. in Emperor v. Narayan Raghunath Patki (1907) I.L.R. 32 B. 111 are against his contention. He referred to an observation in the judgment of this Court in Subrahmania Aiyar v. King-Emperor (1901) I.L.R. 25 M. 61. That was also a case under Clause 26 of the Letters Patent. An objection to the admissibility of an approver s evidence was allowed. But the Crown contended that, notwithstanding the validity of the objection, the evidence was otherwise admissible. The question was, whether the Crown was entitled to raise that question. The point was one which arose as the result of the view taken by the court on a question raised in the Advocate-General s certificate. Such question would certainly come within the purview of the court s jurisdiction on review. The case is not similar to the present one. It was further urged that the clause empowering the court to review the case or such portion of it as might be necessary was referred to in certain decisions as empowering the court to consider what course should be pursued when it reverses the finding of the court of trial on a question of law. I do not feel pressed by this argument. It is really the later clause empowering the court to pass such judgment as might be necessary, that in my opinion entitles it to consider the merits of the case when the result of its opinion on a point raised in the certificate renders this course necessary. Assuming that it was stated in the decisions relied on that the court had the right to review the case in support of the contention that it could examine the merits, I would understand such language as used in the broad sense of the term review and not as placing reliance on any power of review expressly conferred by the clause. I am of opinion that it is not open to the accused at this stage of the case to raise any question of law not included in the certificate of the Advocate-General.

112. The Second Point.---

The second point in the certificate of the Advocate-General is that the opinion of the majority of the Judges that the previous statement of an accomplice can legally amount to corroboration of the evidence given by him at the trial should be further considered. These previous statements are of two kinds, (1) the statements made by the approver, P.W. 6 and P.W. 1-2, to Veeraraghava Aiyar, P.W. 31, (2) the statements made to the Magistrate, Mr. Cox, and recorded by him under Section 164, Criminal Procedure Code. It appears from the statements made by counsel on both sides that no objection was taken at the trial to the admission of the approvers, Arumugam and Somasundaram, on the ground that they were not receivable at all as relevant under Section 157 of the Indian Evidence Act for any purpose. The objection raised at the trial on the score of relevancy appears to have been that the statements were not admissible as furnishing corroboration of the accomplices in material particulars in the sense in which that expression is used in Section 114, illustration (6). The certificate of the Advocate-General appears to be wider in terms and raises the question of the admissibility of the former statements of the accomplices as coroborative of their testimony at the trial in any manner.

113. From the judgment of the majority of the Special Bench it appears to me to be clear that the former statements of the accomplice were admitted as corroboration within the meaning of Section 114, illustration (b) of the Indian Evidence Act. The learned Judges say, " In addition to the oral testimony of independent witnesses and the documentary evidence in the case, which will be considered later, the Crown relies on certain facts as corroboration of the evidence of the informers. Among these are the facts that certain statements were made by the approvers, Arumugam and Somasundaram, to Veeraraghava Aiyar, P.W. 31, and Inspector of Police attached to the Criminal Investigation Department, statements which were substantially in accordance with the evidence before this Court....It was contended that the evidence as to the making of these statements was not admissible, and that, if it was, it did not corroborate the evidence of Arumugam given at the trial." The reference to be oral testimony of independent witnesses and the documentary evidence in the case is certainly made as corroborative evidence within the meaning of illustration (b) to Section 114 and I have no doubt that the learned Judges treated the previous statements of the approvers also as corroborative evidence according to that Section. I cannot therefore agree with the contention of Mr. Napier that the judgment does not show that the learned Judges treated the previous statements in question as supplying corroboration within the meaning of Section 114, illustration (b). Putting aside for the moment the question whether Veeraraghava Aiyar was an authority legally competent to investigate the fact, Section 157 of the Indian Evidence Act certainly enacts a general rule that the former statement of a witness may be proved in order to corroborate his testimony. No exception is expressly made of the testimony of a witness who is an accomplice. The question is whether Section 157 should not be taken with reference to its scope to be qualified by illustration (b) Section 114. According to ordinary canons of interpretation, I think it must be taken to be so qualified, the rule in Section 157 being a general provision with regard to the corroboration of the testimony of a witness and illustration (b) to Section 114 being a special rule as to the testimony of an accomplice. If, therefore, that illustration means that an accomplice should be corroborated by independent evidence of the facts spoken to by an accomplice, it follows, in my opinion, that a previous statement of the accomplice, assuming it for the moment to be admissible in evidence at all under Section 157, (a question which I shall presently consider) cannot be admitted as corroboration of the accomplice within the meaning of illustration (b) to Section 114. On this point it is proper to consider in what sense the expression " corroboration in material particulars " was understood prior to the enactment of the Indian Evidence Act. Mr. Napier does not deny that such an enquiry is proper. Section 114 itself states that, if three accomplices between whom there was no opportunity of previous concert corroborate each other, that would be a circumstance which would justify the conclusion that the accomplice is not unworthy of Credit in the particular case. But the previous statement of the same accomplice witnesses is not referred to as corroboration of the testimony given by him at the trial, though under the previous Evidence Act II of 1855 the general rule with regard to the admissibility of a previous statement of a witness to corroborate his testimony was the same as under the present Act. There is no decided case which has treated the previous statement of an accomplice as affording corroboration of his testimony within the meaning of illustration (b) to Section 114. On the other hand, in Reg. v. Malapabin Kapana (1874) 11 Bom. H.C.R.196 Queen. Empress v. Bepin Biswas (1884) I.L.R. 10 C. 970 the contrary view was held. Section 157 was considered in both the cases. In the former case, the learned judges who decided it held that the previous statement of an accomplice " can scarecly be said to answer the the purpose for which juries are advised by judges to require the evidence of an accomplice to be confirmed. From the position in which he stands it is considered unsafe to act upon his evidence alone. Hence the rule requiring confirmation of it as to the prisoners by some independent, reliable evidence. But his statement, whether made at the trial, and in whatever shape it comes before the court, is still only the statement of an accomplice, and does not at all improve in value by repetition. The force of any corroboration by means of previous statements must evidently depend upon the truth of the proposition that he who is consistent deserves to be believed. If that proposition be not universally true, what becomes of the virtue of previous consistent statements One may persistently adhere to falsehood once uttered, if there is a motive for it." It may no doubt be said, with reference to the observation that the statement of an accomplice does not improve by repetition, that the previous statement in addition to proving the consistency of the witness might be of value if it was made before any pardon was tendered to the accomplice as it might weaken the suspicion attached to his testimony as being given under the temptation created by the offer of a conditional pardon. But it can hardly be said that the infirmity attaching to his evidence is thereby satisfactorily removed. In the latter case, Princep and Macpherson, J J. observed, " The mere repetition of the same statement of facts without contradiction or material discrepancy is, no doubt, recognised by Section 157 of the Evidence Act, as some corroboration of the truthfulness of that statement, but the judge has lost sight of the fact that, from the position occupied by an approver witness his evidence is necessarily regarded with very great suspicion as, being tainted, and that although he may, on the main facts connected with the commission of the offence, be truthful and reliable, it is when he comes to implicate any particular person that his evidence should be accepted with the greatest caution." The learned Judges express their approval of the decision in Queen-Empress v. Nawab Jan (1868) 8 W.R.C.R. 19 that the corroborative testimony should be that of an independent witness of facts which show the connection of the accused with the commission of the offence with which he is charged. In Abdul Karim v. King Emperor (1904) 1 A.L.J. 110 it was held that the corroboration must be independent of the accomplice or of a co-confessing prisoner. But the question did not relate to the admissibility of previous statements of an accomplice as corroboration either in that case or in some other cases where similar opinions were expressed. In the judgment of Abdur Rahim, J. in Vyasa Row v. King-Emperor (1911) M.W.N. Vol. I, 327 the previous statement is stated to be not proper corroboration of an accomplice ; see page 332. According to English law, previous statements of a witness are not generally receivable in evidence for corroborating his testimony. But such statements seem to be admitted where a witness is charged with a design to misrepresent in consequence of some motive or friendship, the previous statement being used in such a case to show that he made a similar statement before such motive existed; and also where the witnesses is charged with having recently fabricated the story. But the previous statement, it is stated, is admissible in these cases, not to prove the truth of the facts stated, but merely, to show that the witness is consistent with himself. See The Queen v. Coll 24 L.R. Ir. 322 Previous statements are also admissible on charges of rape and similar offences against females. The fact that prosecutrix made a complaint very shortly after the outrage, together with the particulars of the statement, is admissible to confirm her testimony and disprove consent. In The Queen v. Lillymen (1896) 2 Q. B. 167 the Court of Crown Cases Reserved held that a previous statement is admitted in such a case, not as being evidence of the facts complained of but as evidence of the consistency of the conduct of the prosecutrix with the stroy told by her in the witness-box and as negativing consent on her part. Hawkins, J. in Rex v. Clarke (1818) 2 Stark. 241 said, " He only ruled, and in our opinion he correctly ruled, that they were not evidence of the truth of her complaint or of the statements of fact on which it was based. See also Rex v. Osborae (1905) 1 K.B. 551. The admission in evidence of a previous statement is strictly limited to the class of cases mentioned above. It appears to be settled that it is not admissible in an action for assault by performing a surgical operation, Beatty v. Cullingworth (1896) 60 J.P. 740. It is remarkable that there is really not a single case where the previous statement of an accomplice was admitted as corroborative to prove the consistency of the accomplice or for any other limited purpose or to prove that his story was not recently concocted although an accomplice would be seldom called upon to give evidence at the trial without having made a previous statement about the facts.

114. It was held by the courts in England before the enactment of the Indian Evidence Act that the accomplice should be corroborated by independent evidence as to the person of the prisoner against whom he speaks. See Rex v. Addis (1834) 6 C. and P. 388 Rex v. Webb (1834) 6 C. and P. 595 Rex v. Wilkes (1835) 7 C. and P. 272 Beg v. Farler (1837) 8 C. and P. 106. The Queen v. Stubbs (1855) 25 L.J.M.C. 16. And the corroboration of the evidence of one accomplice by that of another without the testimony of untainted witnesses was also regarded as insufficient in law, Rex v. Nookes (1833) 5 C. and P. 326. See Archbald s Criminal Pleadings, Evidence and Practice, 23rd Edition, page 3

91. It is perhaps doubtful whether this last rule about the corroboration of an accomplice by other accomplices can be held to be applicable in India having regard to the explanation to illustration (b) to Section 114 already-referred to above. But the evidence of another accomplice is still independent evidence although it is that of a tainted witness. It cannot be said that a previous statement of the same accomplice stands on the same footing. If, admissible, it may possibly deserve considerable weight in particular cases, but the question whether it should be admitted must be settled by considerations applicable to the large majority of cases. In Elahee Buksh s case (1866) 5 W.R.C.R. 80 Sir Barnes Peacock treated the law in this country on the question of corroboration as generally identical with the English law. It is hardly likely that the Indian Evidence Act intended to depart from the English law as to the nature of the corroborative evidence required. In The Queen v. Mohesh Biswas (1873) 19 W.R.C.R. 16 decided immediately after the passing of the Indian Evidence Act, Phear and Ainslie, JJ. held that independent evidence of corroboration was necessary. Mr. Napier placed much reliance on R. v. Ellsom (1912) 76 J.P. 38; where Darling, J. observed that the previous statement of one of the witnesses in the case, if in accordance with his testimony at the trial, would be strong corroboration of his evidence. The witness however was not an accomplice but an accessory after the fact. His evidence no doubt was regarded as tainted. But the corroboration desirable of the testimony of all tainted witnesses cannot be placed on the same footing.

1

15. In Ramasami Gounden v. Emperor (1903) I.L.R. 27 M. 271 Subrahmania Aiyar, J. dealing with the evidence of a witness who assisted in the removal of the dead body from the place of murder to the pit in which it was buried, observed," But this being all the complicity that can be attributed to him, it seems to me that that could not make his evidence against the accused that of an accomplice : for though the witness might be indictable under Section 201 of the Indian Penal Code for the concealment of the body, yet such offence on the witness s part being one perfectly independent of the murder, the witness could not rightly be held to be either a guilty associate with the accused in the crime of murder or liable to be indicted with him jointly. The learned judge refers to the observations of Baron Martin in Bex v. Boyes (1861) 9 Cox. C.C. 32 where that learned judge distinguishes between the evidence of accessories properly so-called and that of other witnesses whose evidence might also be regarded as tainted. Bashyam Aiyangar, J. concurred in the observations of Subrahmania Aiyar, J. He observed that there was no authority whatever in English law which warrants the extension of the maxim that the testimony of an accomplice should be corroborated in material particulars to witnesses who are not accomplices in the proper sense of the word. He said " I do not think it will be in furtherance of justice to regard another class of witnesses as quasi accomplices and to extend the maxim to them."

116. I cannot therefore regard R. v. Ellsom (1912) 76 J.P. 38 as authority for the position that the previous statement of an accomplice would be regarded in England as evidence corroborative of his testimony in material particulars. On the other hand, in R. v. Dimes (1912) 76 J.P. 47 where the evidence of corroboration of an accomplice who had made a previous statement was referred to, do reference was made by the same learned judge, Darling, J. to his previous statement as furnishing corroboration of his evidence at the trial.

117. Mr. Napier contends that the question " what is corroboration in material particulars" is entirely a question of fact and must depend on the circumstances of each case. This proposition is undoubtedly in one sense quite true, but requires explanation. A question may be one of fact, but there may be a rule that a certain class of evidence, is required to prove it, or that a certain class of evidence is not admissible to prove it. Or again some particular kind of evidence, though admissible, might be regarded as legally insufficient. The evidence of a co-accomplice belongs to the last class. A previous statement of the same accomplice would belong to the second class. The necessity of corroboration connecting the accused with the offence belongs to the first class. Subject to these rules of law with regard to evidence, the question whether the evidence of an accomplice has been properly corroborated is no doubt one of fact. The cases cited by Mr. Napier do not in my opinion substantiate his contention that there are no legal rules at all governing the question of corroboration of an accomplice. In re Meunier (1894) 2 Q.B. 415 merely laid down that the question whether there was sufficient corroboration to prove a prima facie case justifying the extradition of the accused was one of fact for the magistrate. There was no question raised as to the kind of evidence legally necessary for corroboration. The court found that there was a good deal of corroborative evidence adduced by the prosecution Rex v. Bo yes (1861) 9 Cox. C.C 32 and Reg. v. Gallagher (1883) 15 Cox. C.C. 291 are only authorities for the position that a conviction without corroborative evidence is not illegal. Rex Tate (1908) 2 K.B. 680 has no bearing on the question what kind of corroboration is legally required under the law. The only question as to the nature of the evidence necessary that we have to decide is whether independent evidence is not required. It is therefore unnecessary to discuss the question what other rules of law are applicable in determining whether there is proper corroborative evidence in any particular case. Section 114, illustration (b) seems to a large extent to have been based on the views propounded by Sir Barnes Peacock in Elahee Buksh s case. Subject to the possible exception with respect to the evidence of co-accomplices that learned judge accepted the English law as applicable to India and I think the Indian Evidence Act also did the same.

118. Mention must perhaps be made of the case of the Queen-Empress v. Kunjan Menon (1891) 1 M.L.J. 397 in which an application was made to the Privy Council for leave to appeal against the conviction of the accused, a Subordinate Judge, on the charge of abetment of bribery (Section 161 of the Indian Penal Code). The accused died before the application was disposed of. At the first hearing of the petition, there was some discussion as to the nature of the corroboration required of the evidence of an accomplice. Sir Richard Couch made an observation that the question was not one of pure law. The question however was not further discussed, as Mr. Mayne then urged that there was no legal evidence of the bribery itself except the testimony of the accomplice. I do not think that the observation of Sir Richard Couch can be regarded as indicating that that learned judge was of opinion that the question whether any class of evidence was admissible as corroboration would always be one of fact.

119. I am of opinion therefore that the previous statement of an accomplice cannot legally amount to corroboration within the meaning of illustration (b) to Section 114 of the Indian Evidence Act. The question whether it is admissible at all as corroborative evidence under Section 157 for any other purpose is not free from doubt. It is possible to hold that it is admissible for proving his consistency and as disproving a suggestion that it was recently concocted by him. But I am inclined to think that it would be dangerous to admit it even for this limited purpose of proving his consistency. To do so would lead to the danger of its being relied on to prove the truth of the evidence also. This is likely to defeat the object of the rule requiring independent evidence of corroboration. The safer rule in my opinion would be to hold that Section 114, illustration (b) requires the rejection of the previous statement altogether. It is however not necessary to decide this point here. I am clear that at any rate it cannot be relied on as corroborative evidence of the truth of the statements made by him at the trial. I am of opinion that the majority of the Special Bench committed an error of law in admitting the statements of the approver witnesses to P.W. 31 under Section 161, Criminal Procedure Code, and to Mr. Cox under Section 164, Criminal Procedure Code, as corroboration within the meaning of illustration (b) to Section 114 of the Indian Evidence Act.

120. The third point:

The third point raised in the certificate of the Advocate-General is whether the previous statements of P.W. 6 and P.W. 12 to P.W. 31 were made to an authority legally competent to investigate the facts within the meaning of Section 157 of the Indian Evidence Act, i.e., whether Veeraraghava Aiyar, P.W. 31, was legally competent to investigate the facts of which evidence was given at the trial by P.W. 6. and P, W. 12, that is, the existence of a conspiracy between the accused in the case and others within the meaning of Section 121 A of the Indian Penal Code. This objection, it is stated, was not specifically taken on behalf of the accused while Veeraraghava Aiyar was being examined as a witness by the prosecution but only at the time of the arguments. Mr. Napier asks us on this ground to refuse to deal with the objection, but he admits that no objection was raised to the consideration of the point by the Special Bench when it was raised by the accused. It was for the Special Bench to consider whether the objection should be entertained at a later stage of the case or not. The learned Judges allowed it to be raised and dealt with it in their judgments. We cannot hold that the accused are not entitled to have the question decided. P.W. 31 was as a matter of fact cross-examined by the accused at considerable length with a view to show that he had no authority to investigate the facts in question. At the same time the evidence on the record relating to the question is meagre and the facts have not been placed beyond dispute so as to enable us to deal with the point satisfactorily. The prosecution was bound to prove the facts necessary to show that Veeraraghava Aiyar s testimony as to the previous statements made to him by P.W. 6 and P.W. 12 would come within the purview of Section 157 of the Indian Evidence Act. The section requires that the previous statements should have been made " before any authority legally competent to investigate the fact." The expression investigate is not defined in the Indian Evidence Act. The ordinary meaning of the word is to enquire into. It is defined in the present Criminal Procedure Code ; and chapter 14 of the Code is headed " Information to the police and their powers to investigate." The corresponding chapter in the Criminal Procedure Code of 1861 (Act XXV) was headed " Preliminary enquiry by the police." The investigation referred to in Section 157 of the Indian Evidence Act is not however confined to investigation in criminal cases under the provisions of the Criminal Procedure Code. The prosecution may be justified in contending that the word should not be interpreted in the technical sense that it bears in the Criminal Procedure Code. Understanding it in the broad sense of making enquiry into , the section requires that the statement should have been made before an authority legally competent to inquire into the fact. Legally competent must, I think, mean, having power under some law, statutory or otherwise. The power need not be derived from an express provision of the law, as stated by the majority of the Special Bench, if by that expression be meant some definite statutory enactment, but it must be shown that there is power under some law or other to investigate. The words authority and competent support this view. The prosecution had therefore to prove that P.W. 31 was empowered by some law to enquire into the conspiracy. Mr. Napier has tried to show this in two ways. He relies first on Section 21 of the Police Act, XXIV of 1859, which provides as follows;--"Every Police officer shall, for all purposes in this Act, be considered to be always on duty and shall have the powers of a police officer in every part of general police district. It shall be his duty to use his best endeavours to prevent all crimes, offences, and public nuisances; to preserve the peace ; to apprehend disorderly and suspicious characters; to detect and bring offenders to justice etc Reliance is placed on the fact that it is the duty of a police officer to detect and bring offenders to justice. The expression general police district. would embrace, under the definition given in the Act, the whole Presidency. The section, it is contended, invests every police officer with the powers of a police officer in every part of the Presidency. These powers are defined in Sections 22 to 43 of the Act. But these sections were repealed by Act XVII of 1862 ; and the powers of a police officer arc now regulated by the Criminal Procedure Code. The Act therefore cannot be relied on to show that a police officer has any specific powers. But it is contended that as Section 21 is still in force which makes it the duty of a police officer to detect and bring offenders to justice he must be taken to have all powers necessary for the purpose and therefore to investigate offences, and that every police officer has these powers throughout the Presidency. I am entirely unable to accept this argument as sound. A law making it a person s duty to use his best endeavours to detect and bring offenders to justice would not by itself give him any power which he could exercise over other persons. The endeavours must be made by him means of powers given to him by the law. Some endeavours to detect and bring offenders to justice might no doubt be made by every citizen. If a police officer wishes to do anything more requiring the exercise of power over individuals, he must get the authority to do so from some law giving him the power. Act XXIV of 1859 accordingly did confer various powers on police officers, but those Sections have been repealed. The result is that they must now discharge their duties under the powers given to them by the Criminal Procedure Code or by some other law. It is quite impossible to hold that the mere imposition of duties of a comprehensive nature would authorise a person on whom they are imposed to restrain the rights and liberties of individuals or to exercise any specific powers over them. The case would be different where a statute commands a person to do a particular act, as such a command would be sufficient authority for him to do it even though it may affect other persons. The learned Judges who formed the majority of the Special Bench do not rest their judgment on Section 21 of the Police Act. I must hold that P.W. 31 was not empowered by that section to investigate the fact in question in this case.

121. Mr. Napier then argues that part from Section 21 of Act XXIV of 1859, P.W. 3, 1 had authority to investigate. The witness was an Inspector of the Criminal Investigation Department. It is urged that in that capacity he was competent to make the investigation. This argument is put in two ways. An officer in charge of a police station has the power to investigate cognizable cases which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try; and Section 551 of the Code of Criminal Procedure gives the power of investigation to police officers superior in rank to an officer jn charge of a police station in cases throughout the local area to which they have been appointed. It is contended that P.W. 31 obtained his competency under Section 551. Very little information has been placed before the court on this point. It would appear from G.O. No. 913, Judicial, dated 2nd July 1908, that the officers of the Criminal Investigation Department are placed under the control of the Deputy Inspector General of police, C.I.D. It is stated that the Deputy Inspector-General of Police "should have free discretion in sending his agents" (i. e. the C.I.D. officers) when and where he chooses " but that he should, except in the case of following up some special crime, promptly inform the District Magistrate and the District Superintendent of Police of the enquiries he is making in the district and should keep them fully informed of the progress of his investigation." It is contended that having regard to this provision in the G.O., whenever the Dy. Inspector General of the C.I.D sends out any of his agents to any local area, such an agent, if superior in rank to an officer in charge of a police station, is competent to investigate crimes within that area. The functions of the C.I.D are described in the G.O. to be " generally speaking, to watch widespread and dangerous movements, to collect and disseminate information regarding organised crimes and gangs and to assist in the investigation of crimes which are of such a special nature that the local officers are unable to deal with them adequately without help." So far as investigation of crimes is concerned, their function is stated to be to assist in the investigation in case where the local officers require help. It is not stated that they are themselves to be investigating officers. Probably the object was to maintain the responsibilities and powers of the local officers as stated in paragraph 3 of the G.O. and to make the C.I.D officers merely their assistants. The reference to enquiries and investigations of the C.I.D officers in paragraph 3 cannot therefore be assumed to import that they are themselves to be investigating officers. At any rate, a mere reference to investigations to be made by them can at best show only that the G.O. contemplates the possibility of the investigations being made by them and cannot dispense with proof of the fact that any particular officer was appointed to a certain local area within the meaning of Section 551 of the Criminal Procedure Code. The act of the Deputy Inspector General of the C.I.D in sending out an officer superior in rank to a station-house officer to a certain district or place cannot be regarded as tantamount to an appointment of that officer to a definite local area. No evidence has been adduced in this case that P.W. 31 was appointed to any local area by competent authority within the meaning of Section 551. The majority of the Special Bench observe that " as a member of the provincial C.I.D, his (i. e. P.W. 31 s) local area is the Presidency of Madras." The learned Judges go on to say that the absence (if it be a fact) of a formal order of appointment is immaterial. With all deference, I am unable to accept this view. It assumes that all officers of the C, I. D. are appointed to the whole Presidency within the meaning of Section 551 simply because they are members of the C.I.D It assumes that every officer superior in rank to an officer in charge of a police station must be deemed as appointed to some certain local area. I cannot but regard this assumption as unfounded. The contention on behalf of the accused is that the C.I.D officers are really a number of men at the disposal of the police department available for being deputed to do special duties. This view is quite as likely as that accepted by the learned Judges. It was for the prosecution to show that P.W. 31 was competent to investigate and I am constrained to hold that it failed to do so. P.W. 31 when examined as a witness did not state that he was appointed to any local area. He merely said that he was ordered to search the houses of P.W. 6 and P.W. 12. He says he inferred from that fact that he had powers of investigation. Surely his inference was entirely unwarranted. Mr. Thomas, his superior officer, also did not say that he was appointed to any local area (under Section 551). The majority of the Special Bench observe that P.W. 31 was sent to Tuticorin for the specific purpose of making certain searches. Search parties were sent out and P.W.31 belonged to one of the parties. From this specific evidence, I find it impossible to draw the inference that the party and all the members of it were appointed as investigating officers, assuming that an appointment to investigate a specific crime could be made by the Inspector-General of Police or by the Deputy Inspector-General.

122. There is again another difficulty which the prosecution has to overcome. The facts deposed to by P.W. 6 and P.W. 12 at the trial related to the existence of a conspiracy under Section 121 A of the Indian Penal Code; an offence under that section is not a cognisable one and a police officer has no power under Sections 157 and 551, Criminal Procedure Code to investigate such an offence without the orders of a magistrate in that behalf. See Section 155. The search parties were sent out to investigate the offence of the murder of Mr. Ashe, Collector of Tinnevelly. This would not, it is contended, empower any one to investigate a different offence, a non-cognisable one without the magistrate s order. It is admitted that in this case there was no such order of a magistrate. But taking it that P.W. 31 had no power under the Criminal Procedure Code to investigate the offence of conspiracy under Section 121 A of the Indian Penal Code, the question arises, whether, if he had authority to investigate the murder of Mr. Ashe, he had not power to investigate facts which might have a connection with the murder; not as disclosing another non-cognisable offence, but as facts which might have a possible bearing on the murder. I think it is possible to hold that he had such power. But as I have held that the prosecution failed to show that P.W. 31 had legal power to investigate any facts, this objection to the admissibility of the statements of P.W. 16 and P.W. 12 must be upheld, and I abstain from deciding the question whether the absence of a magisterial order is an insuperable objection. I have considered this objection to the reception of the former statements of P.W. 6 and P.W. 12 anxiously on the ground that P.W. 31 was not an authority competent to investigate the facts, and I am obliged to come to the conclusion that the objection must be upheld. It is possible that all the evidence available on the point was not adduced but the objection having been allowed to be entertained by the Special Bench, a decision has to be arrived on the evidence on record.

123. The fourth point:

The fourth point raised by the Advocate-General is whether the statements made by P.W. 6 and P.W. 12 to Veeraraghava Aiyar, P.W. 31, were not rendered inadmissible in evidence by reason of the provisions of Section 25 of the Evidence Act. It is a course conceded for the prosecution that in those statements P.W. 6 and P.W. 12 admitted they themselves were guilty of the offence under Section 121 A of the Indian Penal Code charged against the accused in the case. The question is whether they are in admissible against the accused on the ground that they are confessions made to a police officer, P.W. 31. The finding of the majority of the Special Bench is that Section 25 makes a confession to a police officer inadmissible only against the person making it, and that the statements are therefore admissible against the accused under Section 157. The learned Judges are of opinion that the mischief aimed at is the same in Section 26 relating to a confession made by a person in police custody as in Section 25 and as Section 26 makes the confession under that section inadmissible only against the person making it, the expression in Section 25 " against a person accused of any offence " must also be held to mean " against the pers6n making the confession, " The argument for the prosecution at the hearing before us is briefly as follows. Sections 24 to 27 must be taken to lay down rules of admissibility only with regard to a confession made by a person charged with an offence at the trial. One reason for so holding is stated to be that a confession is generally admissible only against the person making it though the legislature has made an exception by making it admissible also against a person who is being tried jointly with such person when the confession has been already put in evidence against the maker. The soundness of this latter proposition is unquestioned. [A confession could be used only against the accused in England--See Taylor on Evidence, X Edition, Section 904. Phipson on Evidence, page 246, IV Edition. That was also the law in this country until the Indian Evidence Act of 1872 was passed].

124. But what inference follows from this proposition The ac. cused in this case were not tried jointly with P.W. 6 and P.W. 12. Therefore the confessions of the latter should not be admissible against them. The reason given for the argument seems to me effectually to destory the argument. It comes to this:--Because a confession is admissible only against the person making it, or one who is jointly tried with him, therefore, under Section 25, the confessions of P.W. 6 and P.W. 12 were admissible against the accused who were not jointly tried with them--an apparently absurd conclusion. But it is contended that there is no such absurdity because apart from this reason the word confession has a well understood meaning, viz., an admission of guilt by a party to the criminal proceeding before the court, and therefore the previous statements of P.W. 6 and P.W. 12 who were not such parties were not confessions at all. This is not the reason given by the Special Bench for admitting the statements. The learned Judges treat them as admissions but say that Section 25 does not prevent their reception as evidence against the accused. This argument does not appear to have been urged before the learned Judges so far as their judgments show. I shall presently examine this argument as to the meaning of the word, but it is well to realise the effect of it. It amounts to this:--An admission of guilt to a police officer by a party to the proceeding cannot be proved against another accused person unless both are being jointly tried; but an admission of guilt by one who is not a party to the proceeding may be proved against such a person. Prima facie this contravenes the principle that an admission of guilt is admissible only against the person making it or one tried for an offence jointly with him. I cannot help thinking that the argument at the back of this contention, though it was not put forward directly in so many words, is that Sections 24 to 26 make an admission of guilt inadmissible only as substantive evidence. But can it be held that it may be used for corroborating the testimony of a witness as a previous statement made by him I am clearly of opinion that it cannot. In the first place, the language of the section is too clear to admit of such interpretation. It says (as also does Section 25) that the confession cannot be proved. If it cannot be proved, how can it be admitted in evidence for any purpose Secondly, when it is intended that anything not admissible under one section of the Act is not to be excluded if it be relevant under some other section, the Act has expressly taken care to say so. Thus Section 21 while enacting that an admission cannot be proved by, or on behalf of, the person making it, states in exception (3) that it may be proved if it is relevant otherwise than as an admission. Section 43 provides that " Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act." Similarly Section 8, explanation I says that a statement of a party to a proceeding not admissible under that section is not to affect the relevancy of statements under any other section of the Act. But Section 25 does not say that an admission of guilt not admissible under that section may be admitted under any other section. Thirdly, the reason why a confession made to a police officer should not be admissible is to my mind equally applicable whether it is to be used as substantive evidence or for the purpose of corroboration.

125. I must now examine the main argument for the prosecution that the word confession means an admission of guilt by a party to the proceeding before the court.

126. In Section. 148 of the Criminal Procedure Code of 1861 which contained the rule of evidence afterwards embodied in the Indian Evidence Act of 1872, the provisions were exactly the same as in Section 25 except that the phrase or admission of guilt was used after the word confession. The omission of the phrase was, I think, due to its being considered unnecessary as it merely conveyed the well-known meaning of the word confession and not to any change of intention on the part of the legislature as to the sense in which the word should be understood. Any such change would have been clearly indicated by means of a definition. The section certainly did not show that an admission of guilt to constitute a confession, should be by a party to the proceeding before court. The Century Dictionary states that at Common Law a confession means an acknowledgment of guilt. The same explanation is given in Field on Evidence, see page

83. In Bouvier s Law Dictionary, the following explanation is given :--(1) the voluntary declaration made by a person who has committed a crime or misdemeanour to another, of the agency or participation which he had in the same; (2) an admission or acknowledgment by a person, when arrigned for an offence, that he committed the crime with which he is charged. It will be observed that an extra-judicial confession does not connote according to this definition that the statement was made by a party to the trial before the court. According to American Cyclopaedia of Law and Procedure, Volume VII, a confession in criminal law is the voluntary declaration by a person, who has committed a crime or misdemeanour to another, of the agency or participation he had in the same : an acknowledgment of guilt; the acknowledgment of a crime or fraud. No doubt a confession is used in evidence only against a person charged with a crime in the case before the court and only against a person making it or a co-accused, but this does not justify the view that the word confession itself means an admission of guilt by such a person. In Queen-Empress, v. Jagrup (1885) I.L.R. 7 A. 646 where the question was whether an inculpatory admission which falls short of an admission of guilt would amount to a confession, Stephen s Digest of Evidence was cited where that learned author defines a confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Straight, J, was asked, on the authority of that definition, to hold that an admission need not amount to a complete admission of guilt. While holding that there was nothing in the definition against his view that an admission which does amount to an acknowledgment of the commission of a crime is not a confession, the learned Judge deprecated the use of a definition adopted for the purpose of an intended code in England as a guidance in construing the Indian Evidence Act. The definition is relied on by Mr. Napier to show that an admission to be a confession, must be a statement by a person charged with a crime. I do not think that the learned author means by that expression charged in the proceeding before court but charged with a crime (that is) accused of a crime at the time of the admission. But assuming that he used the expression in the former sense, I agree with Straight, J. that the author s definition is of little use in construing the Indian Evidence Act. Our attention was drawn to Mahmood, J s citation of Stephen s definition in Queen-Empress v. Babu Lal (1884) I.L.R. 6 A. 509 at p. 539 but the definition is referred to only for the purpose of considering the question whether a confession should be a complete admission of guilt or not.

127. I cannot but think that if a confession was intended to refer only to an admission made by a party to the proceeding before the court, the legislature would have said so. Moreover, there would be much redundancy in the language of Sections 24 and 25 if we adopt the meaning contended for by the prosecution. The reference in Section 25 to a person accused of an offence would be unnecessary as the word confession, by itself imports, according to the contention, a statement by the accused before the court. Similarly the expression in a criminal proceeding would be unnecessary in Section 24.

128. Apart from the fact that the Act does not say that a confession is a statement by a party to the trial before the court, I think it makes it clear that it need not be made by such a person. Section 24 renders irrelevant in certain cases a confession made by an accused person. Section 25 makes certain confessions inadmissible against a person accused of any offence The person accused of an offence in Section 25 refers of course to a party to the proceeding "before the court against whom the confession is sought to be used. But what is the meaning of the expression made by an accused person in Section 24 Does it mean made by a person accused in the proceeding before the court I think not. The meaning is in my opinion that the person must be an accused person at the time of the confession. This was the meaning put on the expression in. Empress v. Jadab Das (1899) 4 C.W.N. 129 where the court held that a person making an admission may be an accused person though he might not be under arrest at the time. No doubt the accused person making the admission would also ordinarily fee a party to the proceeding before the court; but it cannot be inferred from that fact that the accused person making the confession should be the accused in the proceeding before the court. What Section 24 therefore requires is that the admission should be by a person then accused of a crime not that he should be the accused before the court. Moreover the words by an accused person would be a mere surplusage, if a confession is always a statement made by the accused in the case. The expression made by an accused person means by one then an accused person just as proving against a person accused of an offence means proving against one who is then an accused person. It must be remembered that confessions coming under Sections 25 and 26, in order to be excluded, need not have been made by an accused person at all as those words are omitted in the sections. It was regarded apparently that it was necessary to shut out all admission of guilt made to a police officer whether the person making it was then accused of an offence or not. I am therefore of opinion that the word confession does not import that the admission of guilt should be by a party to the criminal proceeding before the court.

129. Thus far I have dealt with the arguments on behalf of the prosecution. An examination of the sections leaves no doubt in my mind that an admission of guilt made to a police officer by any person cannot be proved as against any person accused of any offence whether he be the person who made the admission or not. Under Section 24 a statement which appears to the Court to have been caused by an inducement, threat or promise, is inadmissible both against the person making it and against others such as his co-accused. A confession which was not voluntary within the meaning of Section 24 cannot be used against a co-accused while it is inadmissible against the person making it. This is really not denied, but it is argued by Mr. Napier that the exclusion is not directed by the words of Section 24, but by the provisions of Section 30. He contends that the language when a confession is proved in that section means when it is admitted in evidence. I do not think so. That is not the ordinary meaning of proved. A statement is proved when it is shown to the satisfaction of the Court that it was made. If the statement is in writing, the writing is proved in the manner in which the execution and contents of documents are required to be proved by the subsequent sections of the Act. Such proof does not include showing that the statement was not made owing to any threat of promise or inducement. It could not mean this, because the onus of proving, this would not be on the prosecution but on the accused against whom it is sought to be used. Sections 24 and 30 show that the Act makes a clear distinction between the proof of a confession and its relevancy. See also the definition of the word proved in Section 4. I must hold that so far as Section 30 goes, when a confession is proved, it is admissible under the section against a co-accused also. It is by means of Section 24 that a confession which is an improper one is excluded both against the person making it and against others-If this conclusion is right, it affords a strong argument in favour of holding that under Section 25 also the confession is inadmissible against any accused person and not merely against the maker of the confession. For my part, I require no such support from Section 24. The words are perfectly clear. The mischief of the section clearly extends to the admissibility of the confession against all persons. The one and only argument adduced against this plain construction is that Section 26 makes a confession made not to a police officer but by a person in police custody inadmissible only against him and not against others, and it is urged that there is no sufficient reason for not excluding it against others also if a statement made to a police officer is excluded against others. It may be that the legislature thought the probable extent of police pressure in the one case was likely to be less than in the other and that the fact of the maker of the statement being in police custody did not require its being excluded against others. I do not say this reason is convincing but this is not the only case where a court is unable to find convincing reasons for distinctions made by the legislature. I am bound to attach more importance to the fact that very different language has been used by the legislature in two consecutive sections ; there is no difficulty in finding a reason for the comprehensive language used in Section 25. I have no hesitation in arriving at the conclusion that the statements of P.W. 6 and P.W. 12 to 31 are inadmissible in evidence. My opinion is in accordance with the view taken by the Bombay High Court in Emperor v. Harisingh . I agree with Batchelor, J. that a confession which is inadmissible against the person making it is a fortiori inadmissible against another person implicated by it. Queen-Empress v. Tribhovan Manekchand (1884) I.L.R. 9 B. 131 was cited by Mr. Napier in support of his contention. The question admittedly did not arise for decision in that case. The question was whether a confessional statement was admissible against the maker in an inquiry under Section 523, Criminal Procedure Code as to whom certain stolen property should be returned. The court held that the word confession has reference only to criminal proceedings, that Section 25 excluded the use of the statement in question in that case only in such proceedings and that the statement was receivable in evidence as an admission in the enquiry made by the court as to the person entitled to the return of the property. Reliance is placed on the observation of West, J. that confession in Section 25 as in Section 24 means " a confession made by an accused person, which it is proposed to prove against him to establish an offence." No doubt, a confession would generally be made by an accused person and would be generally also used against him. The point made by the learned. Judge was that Section 25 did not refer to the use of a confession in other than a criminal proceeding. I do not think he addressed himself to the question whether a confession should always be a statement by a party to the proceeding.

130. Our attention was drawn to the state of the law on the point before the enactment of the Indian Evidence Act. That law was contained in Sections 148 and 149 of the Code of Criminal Procedure of 1861, which are in substantially the same terms as Sections 25 and 26 of the Indian Evidence Act. They throw no useful light on the point. We are moreover bound to construe the sections in the Indian Evidence Act which is a complete code according to the plain meaning of the words, without reference to the previous law on the subject. It has been suggested that any imperfection in the drafting of Sections 24 to 26 must be attributed to the fact that Sections 148 and 149 of the Criminal Procedure Code of 1861 were bodily imported into the Indian Evidence Act. But this does not help us, for there is the same obvious difference between the languages of Sections 148 and 149 of the Criminal Procedure Code. On the other hand the explanation of the word confession in Section 149 is against the contention for the prosecution. Our attention was drawn to the facts that Jenkins, J. commented strongly against the prosecution in Emperor v. Lalit Mohan Chuckerbutty (1911) I.L.R. 38 C. 559 at p. 582 not producing the previous confessional statements made by certain approver witnesses to police officers and it is urged that the learned judge must have regarded them as admissible. The observations do not show that Jenkins, C.J. was of opinion that the statements in question could be put in by the prosecution as corroborative evidence. The accused were entitled under Section 162, Criminal Procedure Code, to ask the court to call for them and to give them copies (if the court thought fit to do so) to be used for cross-examining the approvers. The failure of the prosecution to produce them would be good cause for the strictures passed by the learned judge. The case does not help the prosecution. My conclusion is that the previous statements in question were inadmissible on account of the provisions of Section 25 of the Indian Evidence Act,

131. The fifth point:

The fifth and last point raised in the certificate is the question whether the evidence of P.W. 31 of the previous statements made to him by P.W. 6 and P.W. 12 is inadmissible because the statements made by them to him were reduced to writing and the Writing is declared to be inadmissible in evidence on behalf of the prosecution by Section 162 of the Criminal Procedure Code. I am clearly of opinion that the evidence of P.W. 31 is not inadmissible on this ground. Section 161 of the Criminal Procedure Code empowers an officer making an investigation under Chapter XIV of the Code to examine orally any person supposed to be acquainted with the facts and cricumstances of the case and makes it obligatory on such person to answer questions put to him by the officer. Section 162 then enacts that "the statement made by any person if taken down in writing shall not be signed by the person making it, nor shall such writing be used as evidence." The language of Section 162 is too clear to my mind to justify the adoption of the argument that because the writing is declared inadmissible it must have been the intention of the legislature to shut out oral evidence also of the statement made to a police officer. Perhaps it is a sufficient answer to this argument to say that the legislature has not said so, but has deliberately restricted the inadmissibility to the writing. It is urged that the expression " such writing" is used in the section really to denote the statement made to the police officer which he is not prevented from taking down in writing. But why did not the legislature say " nor shall such statement be used as evidence" instead of using the word writing. Section 161 authorizes oral statements being taken, and there is no provision in that section that such oral statement cannot be proved. If the oral statement, when not reduced to writing, may be proved, why should its being taken down in writing be a reason for making it inadmissible It is not contended that in consequence of its being reduced to writing the oral statement would be inadmissible on account of any general rule of evidence. The statement is not one required to be reduced to writing and Section 91 of the Indian Evidence Act would not therefore prevent oral evidence of the statement being given. Oral evidence in such a case is not adduced to prove the contents of the writing. It is adduced to prove what statement the witness made to the police officer. It is contended that there could be no reason for allowing oral evidence to be adduced while the writing is excluded. But I think there was good reason for the legislature contenting itself with a provision that the writing should not be used. According to Section 35 of the Indian Evidence Act, the entry by a police officer in any record of statements made to him in the discharge of his official duty under Sections 161 and 162 of the Criminal Procedure Code would itself be relevant. The object of the legislature in Section 162 was, I think, to make an exception to the rule contained in Section 35 of the Indian Evidence Act in the case of statements made to police officers by persons examined by them at a preliminary investigation. It was apparently considered unsafe to assume that a police officer making an investigation would correctly record statements made to. him. It is therefore provided that the statements should not be signed by the witness and should not be admissible in evidence. At the same time it was regarded as proper to make the police officer s record of such statements available to the accused at the. judge s discretion for the purpose of cross-examining any witness called for the prosecution. Mr. Govindaraghava Aiyer attempted to show that the exclusion of the writing alone while admitting oral evidence would lead to hardship the accused in some cases. I do not consider it necessary to deal with them. I can easily conceive of cases where the admission of oral evidence would be a positive advantage to the accused. The non-exclusion of the written record might also lead to serious disadvantage to the accused. For instance, when it is desired to prove the statement made by a witness to the investigating officer, the prosecution might simply put in the written record without calling the officer. This it would be open to the prosecution to do according to Section 25 of the Indian Evidence Act. The result would be that the accused would be deprive of the opportunity of cross-examining the officer and proving that the statement of the witness was not correctly taken down by him. Mr. Govindaraghava Aiyar referred to Isab Mandal v. Queen-Empress (1901) I.L.R. 28 C. 348 as authority for the position that the police officer s record would not be admissible as evidence under Section 35 of the Indian Evidence Act even apart from the exclusion. But with all deference to the learned judges who decided that case, I am unable to agree with them. The decision of the case was really rested on the ground that the record in question was not admissible under Section 162 of the Criminal Procedure Code. They go on to observe, " We are unable to see that Section 35 of the Indian Evidence Act has any application in the matter, for we do not consider that a document of this nature, which moreover is not necessarily a part of the official duty of a police officer to prepare at all, comes within the description of a record within the meaning of that Section." But Section 35 does not require that the record in question should be one which it is the duty of the public officer to make or prepare. It is quite sufficient that the entry is made by him in the discharge of his official duty. I am unable to entertain any doubt that a record made by an investigating officer of statements made to him by witnesses is one prepared in the discharge of his official duty. Clause 2 of Section 162 of the Code of Criminal Procedure provides that the record made by a police officer of a dying declaration shall not be inadmissible on account of anything contained in the Section. I am unable to see under what section of the Indian Evidence Act the record of dying declaration would be admissible except under Section 35. From the necessity of the case, the legislature considered it desirable to exclude dying declarations from the general rule making the police officer s record of statements inadmissible. Fanindranath Banerjee v. Emperor (1908) I.L.R. 36. C. 281, at p. 286 is a distinct authority against the contention o the accused. I agree with the opinion o . the learned judges who decided that case, and with Karamat Husain, J. in Rustom v. King-Emperor (1910) 7 A.L.J. 468 that an examination of the corresponding sections in the previous codes of Criminal Procedure shows that the legislature deliberately restricted itself to making the writing alone inadmissible. Mr. Govindaraghava Aiyar relied on the observations of Beaman, J., in Emperor v. Narayan Raghunath Patki (1907) I.L.R. 32 B. 1111, at p. 142 and 143. That learned judge draws his conclusions from the history of the legislation on the subject. He takes it that the object of the change in the present Procedure Code was merely to confer an advantage on the accused by making the written record made by a police officer of statements made to him available to the accused for cross-examination. But the learned judge can get over the alteration in the section in making the writing alone inadmissible in evidence, only by assuming that the word writing is not used in the section in contradistinction to the word statement used previously in it. This assumption is, I think not permissible. He points out that " as the law Stands, the prosecution might have an advantage over the accused in some cases." But apart from this not being a sufficient reason for refusing to give effect to the plain words of the section, I can easily think of cases in which the adoption of a contrary view might result in disadvantage to the accused. I have no hesitation in concurring with the Special Bench in the view taken on the question by all the learned Judges who constituted the Bench.

132. The result of my findings is that, in my opinion, the statements of the approvers, Arumugam and Somasunduram, to P.W. 31 and to Mr. Cox ought not to have been admitted in evidence. With regard to the earlier statements I have entertained some doubt whether the majority of the Special Bench, have clearly stated that their conclusions from the evidence would be the same even if they were rejected, but I am not prepared to dissent from the view that such is in substance the effect of the judgment of the learned Judges. With regard to the statement to Mr. Cox, however, they do not state that their conclusions would be unaffected by their exclusion. Consequently it is in my view necessary to consider whether excluding those statements there is sufficient evidence on record to sustain the conviction of the accused.

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33. The result of our judgments is that the petitions are dismissed.