EMPEROR Vs. ANANDRAO GANGARAM PHANSE

JUDGEMENT

(1.) It is abundantly clear that the Indore official who recorded this statement (Mr. Mital) was acting under rule 11 of the Indore Extradition Rules. For the purposes of that rule it was necessary for him to ask the accused if he had any explanation to offer on the facts upon which his extradition was sought. That explanation he was bound to record in accordance with the provisions of Section 346 of the Code of Criminal Procedure in force in Indore. Mr. Mital did that which the law of Indore enjoined upon him.

(2.) Now, as I understand the matter, Mr. Mital is not a Magistrate for the purposes of the Criminal P. C. in force in British India. Therefore he was not bound to comply with the provisions of that Code. His failure to do so- assuming there be such failure-cannot by any conceivable process of reasoning render a statement made to him by an accused person inadmissible in evidence. Further, any failure on his part to comply with the requirements of the law of the Indore State-assuming there be such failure-is a matter with which this Court is in no way concerned, for the plain reason that the law of the Indore State is not in force in British India. The statement recorded by Mr. Mital is, in my opinion, so far as procedure goes, on no other footing than an extra-judicial statement. If that is so, the position is clear, Mr. Mital's evidence proves the statement. I wish to make it clear that I am dealing now with those objections which are based either on the Criminal P. C. or the Indore Criminal law. I am in no way considering the provisions of the Indian Evidence Act which are relevant first on the question of the proof of such a statement (as. 74 and 80), and, secondly, as affecting the admissibility of the contents of the statement,

(3.) In Queen-Empress V/s. Nagla Kala (1898) I.L.R. 22 Bom. 235 this Court has held that the words " police officer " and " Magistrate " in Section 26 of the Indian Evidence Act include the police officers and Magistrates of Native States, and following Queen-Empress V/s. Sundar Singh (1890) I.L.R. 12 All. 595 that the word "Magistrate" in Section 80 includes a " Magistrate " of a Native State. In Emperor V/s. Dhanka Rama a bench of this Court appears to have taken a contrary view so far as Section 80 is concerned. In neither case has Section 74 been considered. That, in my opinion, is the section applicable to the proof of such statements. Here, however, the Magistrate has been called and the question of proof does not arise. So far as concerns the interpretation of Section 26 I am bound by this decision though I doubt its correctness, and it follows that Section 25 would have to be similarly construed. But as regards the question of procedure it has never been held, nor do I think it could be held, that a Magistrate of a Native State is bound by the Criminal P. C., or that any failure by such Magistrate to follow the provisions of the local law could affect the admissibility of any record in a Court in British India.