EMPEROR Vs. WAHIDUDDIN HAMIDUDDIN (NO2)

JUDGEMENT

(1.) MR. Velinker tenders, in corroboration of the evidence of a certain witness for the prosecution, oral evidence of what that witness had said on the occasion of an identification parade hold by the police in the course of the investigation. The previous statement relied on is recorded in a Panchnama written on that occasion in the presence of a competent police-officer. It is objected that evidence, whether oral or written, of that statement is not admissible. The position is that a witness may, under Section 157 of the Indian Evidence Act, be corroborated by proof of any former statement made by him at or about the time when the fact deposed to took place or before any authority legally competent to investigate the fact. Here there is no question of the first alternative but the statement objected to was certainly made before an authority legally competent to investigate. The power to investigate, however, would ordinarily rest on the powers conferred on the police by Chapter XIV of the Criminal Procedure- Code, and it is argued that the terms of Section 162 of that Code, as amended in 1923, exclude the evidence now tendered. There is no doubt as to the effect of the amended section, and I need only refer in this connection to the case of Emperor V/s. Vithu Balu (1924) 26 Bom. L.R. 965. This does not, however, conclude the present case, as the investigation with which I am concerned was one conducted by the Bombay police. I had understood that the distinction was recognised, but I find there is no direct decision on the point. Section 1, Sub-section (2), of the Criminal Procedure Code, specifically lays down that nothing contained in the Act shall apply to the police in the town of Bombay, and it cannot, therefore, be said that the provision in Section 162 of the Code excluding statements "made to a Police Officer in the course of an investigation under this chapter" applies to any statement made to a Bombay police-officer. Such a statement remains unaffected except in so far as it may be excluded by anything in the City of Bombay Police Act, 1902. The objection of the defence must, therefore, be based on Section 63 of that Act, and the terms of that section have remained unamended, being still identical with the terms of the corresponding section in the old Code. As such they have been judicially interpreted, by decisions which it is now too late to question and which are certainly binding on me, to mean that, although the use of the written record of the statement of the witness is prohibited, the general provisions of the Indian Evidence Act as to proof of such statement by oral evidence are not overridden, and the statement can be proved by oral evidence and is admissible under Section 157 of the Act. I, therefore, allow the evidence.