EMPEROR Vs. BIRAM SARDAR

JUDGEMENT

(1.) IN this case the accused, other than accused No.6, who were convicted by the Additional Sessions Judge of East Khandesh under Section 395 of the INdian Penal Code, appeal against their convictions. We are indebted to Mr. R.R. Desai, who has represented the accused as amicus curix for the industry he has devoted to the case and the ability with which he has presented it.

(2.) THE case has some peculiar features. All the accused, except accused No.18, are from the village of Savkheda in taluka Yaval, and it appears that on March 5, 1940, the Sub-Inspector of Police of Yaval received information that a dacoity was contemplated that night at the village of Shirsoli, taluka Jalgaon. So he went to Jalgaon and reported to the Sub-Inspector of Police there and put in a written report, which is exhibit 8, in which he mentioned the names of the nineteen men who, he was informed, were going to commit the dacoity. THE Sub-Inspector of Police of Jalgaon and the City Sub-Inspector of Police of Jalgaon accordingly went to Shirsoli with a party of police, some of them armed and some unarmed. Unfortunately they did not arrive at Shirsoli until about 11 o'clock at night, when the dacoity was in progress, and instead of blocking the exits from the village, the police seem to have entered the village at one end, and, when the dacoits started to throw stones at them, the police fired, whereupon all the dacoits ran away from the other end of the village. THE result was that full advantage of this information, which at any rate was good as to the fact that a dacoity was contemplated, was not taken and no arrests were made. But the police suspecting that the dacoits would go back to Savkheda, and realizing that for that purpose they would have to cross the river Tapti at one or other of the fordable places at Kolnhavi or Thorgaon, posted police at those places. But the police did not arrive at Kolnhavi until about 6 o'clock in the morning by which time there had been ample opportunity for any of the dacoits to get across the river. Accused No.1 and; accused No.2 were arrested at Jalgaon. Accused Nos. 8 and 10, among the present appellants, were arrested at Savkheda, and the other appellants were arrested at Thorgaon trying to cross the river. All the arrests were made on the 6th, that is to say, in the early morning after the dacoity. None of the stolen property was recovered, and the evidence against the various accused consists primarily of evidence of identification, and experience shows that evidence of identification of those taking part in dacoities at night is apt to be unreliable.

(3.) MOST, if not all, of the learned Judges agree that Section 27 of the Indian Evidence Act is a special law in force at the date of the passing of the amended Section 162, and that point seems to me beyond question. It is a law applicable to a particular subject within Section 41 of the Indian Penal Code. But the view accepted in Lahore and Allahabad is that Section 162 amounts to a "specific provision to the contrary", because the prohibition therein is expressed in the most clear and emphatic terms. But surely much more than that is required. Section 1(2) enacts a rule of construction to be applied in the interpretation of the Code. That rule is that where there is a conflict between the Code and a special law, the special law is to prevail in the absence of a specific provision to the contrary. But the provision must be to the contrary of the rule of construction, and not merely of the special law. The section presupposes a conflict, and a conflict is none the less a conflict because it is clear for all to see. Reliance has been placed on the use of the word "specific" rather than "express." I am myself inclined to think that "specific provision" is a stronger expression than "express provision," and means a provision clearly expressed. I do not see how a provision arising by implication only can be said to be specific. But if this is going too far, I am clearly of opinion that 'the language of the Code giving rise to the implication must at any rate be so directly contradictory to the special law that it can be affirmed with certainty that the legislature intended to override the special law. There is, however, nothing in the language of Section 162 which suggests that the legislature had in mind Section 27 of the Indian Evidence Act. The language of the two sections is quite distinct, and to a large extent the respective subject-matters are not identical. Section 162 deals with all statements made tq a police-officer in the course of an investigation; Section 27 of the Indian Evidence Act merely deals with information received from a person accused of an offence in the custody of a police-officer which leads to a discovery. The two sections only overlap in respect of statements made to a police-officer in the course of an inquiry which lead to a discovery. It seems to me impossible to hold that Section 162 contains a specific provision that Section 27 of the Indian Evidence Act is not to prevail over it.