EMPEROR Vs. WILLIAM COOPER

JUDGEMENT

(1.) The appellant, original accused No. 1, was tried along with two others, original accused Nos 2 and 3, before the Chief Presidency Magistrate, Bombay, for offences under Section 468 read with Section 109, p. 420 read with Section 109, ands. 420 road with Section 120 B of the Indian Penal Code, was convicted of those offences and sentenced to eighteen months rigorous imprisonment. In convicting the appellant the Magistrate has relied on a written statement which accused No. 3 put in after the close of the prosecution case in answer to the question put by the Magistrate : " What do you wish to say with reference to the evidence given and recorded against you " ? He said : " I got these false Goa lottery tickets printed at No. 1's press. Cooper (accused No. 1) made all the tracings. I have stated in full in my written statement the circumstances in which I got these tickets printed." The written statement gives a full and detailed account of how the offences charged against the accused were committed by all the accused and one Coutinho who was not before the Court. Accused No. 3 pleaded guilty to all the charges and has inculpated himself and the other accused in the commission of the offences by his statement before the trial Magistrate.

(2.) The question we have first to consider is whether it would be permissible under the provisions of Section 30 of the Indian Evidence Act to take accused No. 3's statements into consideration against accused No. 1 and, secondly, if these statements are admissible in evidence, what value we should attach to them against accused No. 1. Section 30 of the Indian Evidence Act provides that- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persona is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

(3.) This provision of the Indian Evidence Act is against the general rule of English law and also the rule which prevailed in India prior to the passing of this Act. The general rule of English law on this subject is that the confession of an accused person is evidence only against himself and cannot be used against others. On this account this section has always been strictly construed. It is clear in this case that this was a joint trial and if the statement made by accused No. 3 can be said to be a confession which was " proved " at the trial it would be permissible to take it into consideration against accused No. 1 under the provisions of Section 30 of the Indian Evidence Act. Mr. Thakor on behalf of the appellant relies upon a dictum of Garth C. J. in Empress V/s. Ashootosh Chuckerbutty (1878) I.L.R. 4 Cal. 483, 488 for the view that a confession under Section 30 must not be one made at the trial. The learned Chief Justice has observed : " The word proved in Section 30 must refer to a confession made beforehand." Mr. Thakor has also relied on Emperor V/s. Mahadeo Prosad (1923) I.L.R. 45 All, 323, where Mr. Justice Walsh has held that (p. 326; "the expression proving a confession is...inapplicable to the procedure where the Judge asks questions and an accused person gives explanations under a special section provided for that purpose." The questions which the Magistrate put to accused No. 3 were so put under the provisions of Section 342 of the Criminal Procedure Code. There is no indication in the language of that section that the answers given by one accused could be taken into consideration against his co-accused in their joint trial for the same offence. The learned Government Pleader has argued that although the language of Section 342 speaks of an accused person in the singular it must be held to apply equally to cases where the number of the accused is more than one. Although that is so there is no provision in Section 342 which would seem to allow the statement made by one accused person to be taken into consideration against the other accused in the same trial as contended for by the Government Pleader before us. For that provision of the law we can rely only upon Section 30 of the Indian Evidence Act.