EMPEROR Vs. MHABLI RAMA SAIL

JUDGEMENT

(1.) The accused by name Mhabli Rama Sail from Majali, a British village, on the boundary between British and Portuguese territory in the Kanara District was charged with having committed the murders of three persons on or about September 27, 1917, at Lolliem in Goa territory. The Portuguese authorities commenced the preliminary investigation at once but it does not appear that any names were mentioned in connection with the crime. At any rate it was not suggested that the name of the accused was mentioned in any official record, or that any request was made to the British authorities, as the accused belonged to a British village, to make a search for him. At the present trial Exhibit 13 said the news of the murder spread in a few days and it was rumoured that accused might have committed it He was going from Mahali side to Lolliem on the day of the murder when the witness met him about 11 a. m. and asked him where he (accused) was going. He said he was going to purchase cocoanuts. It is certainly very strange, if this witness had told the investigating officer that he had seen the accused on the day of the murder going towards Lolliem and that the accused actually told him that he was going to purchase cocoanuts, that suspicion did not arise against the accused, and that no attempt was made to discover whether he was present in his own village at Majali or any other place in British territory. If the evidence of Exhibit 13 is now given for the first time it is of very little value. It appears that nothing further was done in the matter till 1922 when the accused was arrested by the Portuguese authorities as being connected with a murder that had been committed at a place called Thalna. He was brought before a Portuguese official called Administrator whose duty it was to investigate cases although he was not empowered to try them. The Administrator in this evidence at the present trial said:-- The accused was arrested in connection with a murder committed at Thalna. I was investigating that case as I am empowered to investigate into such offences. I did not do it as a Police officer. I have nothing to do with the police. They are not under me but under the commandant. The accused was brought into my office to be questioned in connection with the Thalna murder. When I was inquiring into the Thalna murder, as I knew of the temple murder of Shedi, I asked him about id on April 17 and on two successive days. What he stated was taken down in writing.

(2.) While the proceedings were pending the accused escaped from the Portuguese authorities. He was arrested again in September 1922 in British territory, but the extradition proceedings fell through as the Portuguese Government did not produce evidence. However the Portuguese Government then approached the Bombay Government to sanction the prosecution of the accused in British territory, and sanction was given under the provisions of Section 188, Criminal Procedure Code. The Kanara police were not willing to proceed with the case without a guarantee from the Portuguese Government that the latter would produce the necessary witnesses who were not subject to the process oil the British Courts, and this guarantee was not obtained till December 1923. It is certainly remarkable that although the Portuguese Government would not produce the necessary evidence to secure the extradition of the accused, they asked the British authorities to sanction the prosecution of the accused in British territory, and laid the responsibility on them to collect sufficient evidence to justify a commitment order. The Sessions Judge said:-- The evidence against accused consists of his confession (now retracted and retracted also in the District Court of Quepem in 1922) before the Administrator of Kankon in April 1922 and the statement of Rosa Costa a maid servant working but not resident in Ramchandra's house, who states that accused and another came to the house on she day in question to buy cocoanuts and remained there till witness left after finishing her work late in the evening, still shelling cocoanuts which they made a pretext for staying so late an hour. Evidence of the confession was given by the Administrator (Exhibit 5) and his clerk (Exhibit 8) who both refreshed their memories by referring to a copy of the document recorded at the time .

(3.) The first question to be answered is whether the evidence of the confession tendered by the prosecution was admissible under the Indian Evidence Act? There is a further difficulty in this case, because the proceedings taken by the Portuguese authorities were not in any way in accordance with criminal procedure in British territory, where there is no office corresponding to the office of an Administrator. The Government Prosecutor at the trial conceded that the Administrator was not a Magistrate and that his inquiry was an extra-judicial proceeding. The real question then was whether the confession was made while the accused was in Police custody. Because if he was in the custody of the police and the Administrator was not a Magistrate, clearly the confession was not admissible in evidence under Section 26 of the Indian Evidence Act. There seems to have been an argument before the Sessions Judge whether the Administrator was a Police officer and if he was, whether a statement made to him could be proved under Section 25. The learned Judge on this point remarks:-- It appears that witness as Administrator is an officer with general executive duties; in criminal matters it is apparently left to his discretion what cases he should investigate; but he is not technically a police officer nor as a matter of substance does he appear to be so, any more than the District Judge who actually went to the spot in 1917 and conducted a far more active investigation