SAHEDALI MIRDHA Vs. EMPEROR

JUDGEMENT

(1.) The appellants have been convicted of rioting; one of them, in addition, has also been convicted under Section 326, another under Section 325 and another under Section 324, I.P.C. The case was a very ordinary one. The rioting was owing to one of those disputes over land which so frequently happen in the district of Faridpur. In view of the order, which we propose to make, it is not necessary to go into the facts of the case in any detail. P.W. 10, Imendi Choukidar, arrived at the thana and reported the occurrence to P.W. 21, the Sub- Inspector of Police. That officer did not record the statement of the Choukidar in writing. Later on another witness named Sukur, P.W. 1, also arrived at the thana. His statement which was recorded in writing was regarded by the prosecution as the first information report and was allowed to go in full before the jury. It has, therefore, been contended that this statement was inadmissible in evidence in view of the provisions of Section 162, Criminal P.C., and that the case ought to be retried. Now, in my opinion, it would be perfectly idle to contend that the conduct of the Sub-Inspector is above suspicion. It was the duty of the P.W. 10 to report a cognizable offence at the thana and he did so. The reasons given by this officer for not recording his statement as the first information are so flimsy that I cannot possibly accept them as genuine reasons and I can only suppose that for reasons best known to himself this officer preferred to wait, with the result that a statement was eventually taken from P.W. 1. But although the Police Officer did not record the statement of the Choukidar, he started the investigation and had done a good deal in connexion with it before the statement of Sukur was recorded. Whatever may be the technical legal position, there can be no doubt whatever that this statement of Sukur was recorded in the course of the de facto investigation.

(2.) On behalf of the Crown it is contended by the learned Deputy Legal Remembrancer that the legal investigation did not really start until Sukur's statement was recorded, because under Section 154, the officer-in-charge of the thana was bound to reduce the substance of the information into writing. In support of this, reliance was placed on certain observations of the learned Judges in Dargahi V/s. Emperor . That decision has been disapproved of by the Judicial Committee of the Privy Council with regard to the point upon which the case was actually decided and is, therefore, no longer good law. The present matter was never anything more than obiter dictum. The learned Judges in dealing with it based their opinion upon the special facts of the case and I am by no means convinced that they intended to lay down that the investigation did not commence, because the Sub-Inspector did not comply with the provisions of Section 154. If they did, I can only say with great respect to them that I should not be able to concur in such an opinion. If we were to give effect to the contention of the learned Deputy Legal Remembrancer, there can be no doubt that startling results would follow.

(3.) In the first place, it would be open to any investigating officer to render the provisions of Section 162 entirely nugatory by refusing to take down any statement in writing until the investigation was completed. In the second place, he would not have any of the powers without which the investigation could not be carried at all. Witnesses could refuse to answer questions and so forth. I have no doubt myself that when an information is given orally under Section 154 and a Police Officer does not reduce it into writing, he is doing what he ought not to do and has acted in an irregular way. But it is going too far to say that while investigating the truth or otherwise of the information, he is not carrying on an investigation within the meaning of Ch. 14 of the Code. He obviously is, and if he is, Section 162 applies to the statements made by persons examined by him. It is obvious that each case must depend on its own facts and in the course of his argument the learned Deputy Legal Remembrancer indicated that in his opinion the test of common sense ought to be applied. If we are going to apply that test here, I imagine that everybody would agree that the information given by the Choukidar was the first information report in this case. That being so, the learned Judge was wrong in allowing the statement made by Sukur to go to the jury. It was, however, urged on behalf of the Crown that no harm has been done by the improper admission of this evidence. I am bound to say that in my opinion Mr. Basu was rather unkind to the learned Judge when dealing with the way in which he put this part of the case before the jury. It is really the prosecution who are entitled to complain about it. All that the learned Judge did was to urge in repetition after repetition that in view of the information the jury ought to view the prosecution case with suspicion. He says this: The defence pointed out that this conduct on the part of the Daroga in such a heinous offence to wait for the arrival of Sukur was objectionable and that this conduct led to concoction of a case against the accused persons as well as the story of the place of occurrence.