ADHIK LAL PATHAK Vs. EMPEROR

JUDGEMENT

(1.) The appellant Adhik Lal Pathak has presented one appeal from jail and a second petition of appeal has been presented on his behalf through an advocate. The two appeals have been heard together. He has been convicted of dacoity by a Magistrate exercising special powers under Section 30, Criminal P.C., and sentenced under Section 393, Indian Penal Code, to suffer rigorous imprisonment for seven years. The occurrence took place at about 8 P.M. on the evening of 16th March 1941. This was a day on which bazar was held at Mosabani. Certain traders who had been doing business at the hat were returning in four carts. The traders were sleeping inside and cartmen driving when a party of dacoits attacked them, inflicted injuries on some of them and robbed the traders of their cash. The first information was laid the same evening at 10 P.M. at police station, Ghatsila. In the course of the investigation, the Sub-Inspector arrested the appellant Adhik Lal apparently on suspicion, or on some information which has not been disclosed and according to the prosecution case Adhik Lal made a statement to the Sub- Inspector that he was with the dacoits and that one of his companions had buried some money. He took the Sub-Inspector to a certain place where Rs. 23-6-0 were found buried under the ground. The appellant had on his own person a sum of Rs. 14-5-4J. A test identification was held at which other witnesses failed to make any identification, but one witness the cartman Bhujanga Bhagat identified the suspect Adhik Lal stating that this was the man who snatched away his dhoti, assaulted him with a lathi and tore his shirt. At the trial the evidence against the appellant consisted of the direct testimony of Bhujanga Bhagat who identified him and said that this accused removed the dhoti which the witness was wearing making the witness naked, put his hand in the witness's pocket, found nothing in the pocket and tore the witness's shirt. He claimed to have identified the accused Adhik Lal with the light of the lantern which was hanging below the cart.

(2.) It is argued before us that the Magistrate would clearly not have convicted the appellant on the uncorroborated testimony of a single identifying witness in respect of an occurrence which took place at night had he not been influenced by the evidence as to a statement made by the accused and leading to the recovery of some property. It is argued that if this statement and evidence is excluded the accused was entitled to an acquittal, and it is said that the statement of the accused made to a police officer in the course of investigation is excluded from evidence by the express words of Section 162(1), Criminal P.C., and not saved by Section 27, Evidence Act. In support of this contention reliance is placed on the Privy Council decision in Pakala Narayana Swami V/s. Emperor which has clearly laid down that Section 162, Criminal P.C., is wide enough to include not only a statement made by a witness to a police officer in the course of an investigation, but also to cover any statement including a confession made by an accused person. Their Lordships, however, expressed no opinion on the question whether the words of Section 162 had the effect of repealing the provisions of Section 27 or whether the provisions of that section are to be understood to continue in force by way of an exception to the general prohibition in Section 162 as being a special law in force at the time of the enactment of the Criminal P. C. and therefore under Section 1(2) of the Code not affected by anything contained in the Code in the absence of any specific provision to the contrary. This very point has come up, since that Privy Council case was decided, before no less than six of the High Courts, in India. Of these the High Courts of Lahore and Allahabad in Full Bench decisions, namely, Hakam Khuda Yar V/s. EmperorA.I.R. 1940 Lah. 129, and Emperor V/s. Baldeo A.I.R. 1940 All. 263 have taken the view that the effect of Section 162 of the present Criminal P. C. is pro tanto to repeal Section 27, Evidence Act, so that a statement made to a police officer during an investigation is not admissible in evidence even if made by an accused person in police custody in the circumstances specified in Section 27, Evidence Act. In less than two months after the above Lahore decision, which bears date 8 March, an amendment to the Criminal P. C. was rushed through the Punjab. Legislature, on 29 April 1940, that Sec. 162 should not be deemed to affect the provisions of Section 27, Evidence Act. So the view taken in the Lahore High Court is not now the law in the place where that decision was pronounced.

(3.) On the other hand there are decisions of the Madras, Bombay and Nagpur High Courts and two decisions of this Court to the contrary effect. In Emperor v. Mayadhar Pothal A.I.R. 1939 Pat. 577 a Division Bench of this Court held following Syamo Maha Patro V/s. Emperor A.I.R. 1932 Mad. 391 and Thimmappa v. Thimmappa R.I.R. 1928 Mad. That Section 27, Evidence Act, is a special law within the meaning of Section 1(2), Criminal P.C., and is not specifically repealed by Section 162, of the Code. This was followed in King-Emperor V/s. Ramasray Thakur D.R. No. 8 of 1941. In the Madras High Court, the same view was taken by a Division Bench in In re Subbiah Tevar A.I.R. 1939 Mad. 856 following the previous Full Bench decisions of the same High Court. In Bombay the Madras decision last mentioned as well as the Patna decision in Emperor V/s. Mayadhar Pothal A.I.R. 1939 Pat. 577, were approved and followed in Biram Sardar V/s. EWmperor A.I.R. 1941 Bom. 146. In the Nagpur High Court, in Motilal Puransao V/s. EmperorA.I.R. 1940 Nag. 66 a similar result was arrived at independently, on a reading of the relevant sections of the Code and Evidence Act. Belying on the Allahabad and Lahore pronouncements, Mr. S.N. Sahay asked us to re-examine the whole question and interpret de novo the words of the sections and the observations to be found in the judgment of the Privy Council in Pakala Narayana Swami v. Emperor A.I.R. 1939 P.C. 47. We see no reason to enter into a fresh examination of the entire position at this stage when the observations of their Lordships have been already examined and there are two pronouncements of a Division Bench of this Court supported by the opinions of the majority of other High Courts. I would adhere to the view taken in the High Courts at Madras, Bombay and Nagpur and in this Court, and treat the law as settled by those decisions.