EMPEROR Vs. SAVLIMIYA MIYABHAI

JUDGEMENT

(1.) AFTER setting out the facts, the judgment proceeded: The prosecution had examined the Mamlatdar in the committing Magistrate's Court and he had produced certain correspondence to the effect that accused No. 2 was suspected of having committed several defalcations as the talati of Lambha. This Mamlatdar was not examined in the Sessions Court, and the Sub-Inspector stated in his evidence that the Mamlatdar was not in Ahmedabad when the trial was going on before the Sessions Court as he had gone to Bombay for training in rationing and that he would not be able to return for a week. It was only on the strength of' that evidence that the learned Sessions Judge brought on record the Mamlatdar's evidence before the committing Magistrate under Section 33 of the Indian Evidence Act, 1872, and he seems to have; done so readily because the defence advocates had no objection to its being brought on the record. Along with the evidence of the Mamlatdar the learned Judge admitted in evidence also the various documents which he had produced in the committing Magistrate's Court. The prosecution mainly relied on that evidence for proving motive for the crime, viz. the defalcations committed by accused No. 2.

(2.) IT is at this stage necessary to examine whether the deposition of the Mamlatdar was legally admissible in evidence in the Sessions Court. Under Section 33 of the Indian Evidence Act evidence given by a witness in' a judicial proceeding is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states when the presence of the witness cannot be obtained, among other reasons, without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. Now, the only ground on which the learned Judge admitted the evidence of the Mamlatdar was that he had gone to Bombay for taking training in rationing and would not return within a week. That ground is, in my opinion, utterly inadequate for satisfying the provisions of Section 33. The Mamlatdar could have been summoned to appear at Ahmedabad for a day. IT is only a night's journey from Bombay to Ahmedabad and there is nothing to show that he would not have been released from his work in Bombay for a day. In any case the case could have been adjourned for a week. The accused had not cross-examined him in the committing Magistrate's Court and they lost that opportunity at the trial. As a result, his untested deposition and the correspondence became part of the evidence against the accused. The learned Judge did not record any reasons to show that he was satisfied that the Mamlatdar's presence could not be procured without undue expense or delay. In my opinion, he ought to have recorded the reasons if he was so satisfied so that the appellate Court could see whether the section was properly applied. The fact that the advocates for the defence consented to the deposition of the Mamlatdar being brought on the record cannot make it admissible if it is not otherwise so. An apposite authority on this point, with which I agree, is the decision in Re Annavi Muthiriyan (1915) I. L. R. 39 Mad. 449. Certain evidence was there admitted under Section 33 without its provisions being complied with. IT was held that before admitting a deposition given on a previous occasion, a Judge must satisfy himself that the presence of the witness cannot be obtained without an amount of delay or expense which he considers to be unreasonable; that it is not enough to have the statement of the Public Prosecutor to that effect and even consent or want of objection on the part of the accused's pleader to the reception of such evidence will not, in spite of Section 58 of the Indian Evidence Act, entitle the Court to admit it under Section 33. That is exactly the circumstance in the present case also. IT was further held in that case that where a Sessions Judge convicted the accused relying mainly upon such inadmissible evidence as above described and did not warn the jury against acting on the same, the conviction would be set aside as illegal. In the present case also the learned Judge in his summing up to the jury placed before them the Mamlatdar's evidence and also the correspondence which he had produced in proof of the prosecution case about motive. We do not know that the jurors did not act upon this evidence when they brought in a verdict of guilty. IT is most probable that their minds were influenced by the Mamlatdar's deposition and the correspondence showing defalcations by accused No. 2, because as against him the only evidence worth the name was that of the confession of accused No. 1, and the evidence of motive mainly consisting of the deposition of the Mamlatdar and the documents which he produced. As regards accused No. 1 also the question of the motive for the crime would be a relevant fact, and it is therefore probable that the verdict against him also might have been influenced by that evidence. In these circumstances the only result, in my opinion, is that as held in Re Annavi Muthiriyan, the conviction based upon such a verdict is illegal and must be set aside.

(3.) IN all cases where the investigation by the police is either conducted or continued after the accused expresses his desire to confess, and if ultimately after the investigation is over the accused does make a confession, there would not be an unreasonable ground for apprehension that the confession was made to fit in with the result of investigation so that it may be regarded as having been corroborated. For that reason it is necessary that the accused should be sent to the Magistrate as soon as he expresses his desire to confess. The learned Government Pleader has contended that the police kept the accused with them because they thought that once he was sent to the Magistrate for recording his confession, he would not be returned to the police custody. But that is not so. The Circular Orders issued by our High Court contain a provision that after a prisoner had made a confession, he should ordinarily be committed to jail, and that the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned that the prisoner had made a confession. It is further provided that- it is not feasible absolutely to prohibit the return of a prisoner to police custody after he had made a confession. An absolute prohibition of remands to police custody in such cases is impracticable, since the prisoner may be required to identify persons or property, to assist at the discovery of property or, generally, to be present while his statement is being verified. But it is desirable that discrimination should be used in the exercise of the power to remand. IN a proper case therefore it would be certainly open to the police to request the Magistrate to hand over the accused to the police custody for conducting or continuing the investigation. We think it necessary that the attention of the Magistrates as well as police-officers should be drawn to the desirability of sending the accused before the Magistrate as soon as he expresses his desire to make a confession, and that the Magistrate, at the time of recording the confession, should ascertain when the accused first expressed his willingness to confess and to record it in the confession. [After dealing with evidence against accused No. 1 the judgment concluded :]