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1917 Supreme(SC) 16
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT HALDANE, LORD ATKINSON, LORD SHAW OF DUNFERMLINE, LORD PARMOOR, AND MR. AMEER ALI.
DAL SINGH - Appellant
Versus
THE KING-EMPEROR - Respondents
On Appeal From The Court of The Judicial Commissioner, Central Provinces.
Decided On : March 8, 1917.
Solicitors for appellant:T. L. Wilson & Co. Solicitor for respondent: The Solicitor, India Office.
The Judicial Committee interferes in criminal cases only upon proof of substantial injustice or grave procedural violations. Improper use of police diaries to discredit witnesses is a legal error, but it does not warrant interference if the conviction is otherwise supported by adequate, proper evidence.
Headnote:(A) Code of Criminal Procedure - Section 172 - Use of police diaries - Police diaries are intended to aid the court in inquiry or trial and cannot be used as substantive evidence to discredit witnesses, except when the officer who made the entry is confronted with it. (Paras 24-25)
(B) Criminal Appeal - Scope of review by the Sovereign in Council - Interference is restricted to cases involving injustice of a serious and substantial character or a grave disregard of legal process. A mere mistake in the admission of improper evidence does not suffice for interference if it has not led to injustice of a grave character and the result could have been reached independently of such evidence. (Paras 10-12, 27-28)
Facts of the case:
The appellant was convicted of murder and sentenced to death. The prosecution alleged the appellant killed a woman with an axe during an altercation. The defence contended that the victim's husband committed the murder to frame the appellant. The trial court convicted the appellant based on witness testimony and a signed report. The appellate court confirmed the conviction, utilizing police diaries to discredit the defence witnesses.
Findings of Court:
The trial court's conviction was based on adequate and proper evidence. While the appellate court erred by using police diaries as evidence to discredit witnesses, this procedural irregularity did not result in a substantial miscarriage of justice as the conviction was sustainable based on the proper evidence already on record.
Issues: Whether the improper use of police diaries by the appellate court to discredit witnesses constitutes a grave enough error in legal process to warrant the reversal of the conviction and sentence.
Ratio Decidendi: The court held that where an error in procedure consists of the improper admission of evidence that was not essential to a result which could have been reached independently, and substantial justice has been done, the result will not be interfered with.
Result: Appeal dismissed.
Legal Category Hierarchy
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crime and sentencing
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offences against the person
- murder
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offences against the person
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practice and procedure
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evidence
- police diaries
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appellate jurisdiction
- review of criminal convictions
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evidence
Judgement
Appeal by special leave from a judgment of the Court of the Judicial Commissioner (April 19, 1916) affirming the judgment of the Sessions Court of Jubbulpore, by which the appellant was convicted of murder, and confirming the sentence of death pronounced.
The facts of the case are fully stated in the judgment of their Lordships.
1917. Feb. 5, 6, 7, 8. De Gruyther, K.C., Parikh, and J. N. Misra, for the appellant. The appellate Court, and to some extent the Sessions Judge, used the police diaries to point out discrepancies in the evidence for the defence. That was clearly contrary to s. 172, sub-s. 2, of the Code of Criminal Procedure and improper Queen-Empress v. Mannu. (I. L. R. 19 Allah. 390.) The decision of the appellate Court was influenced by that irregularity, and it is impossible to say that in its absence the Court would have come to the same conclusion. The proceedings should therefore be set aside In re Dillett (( 1887) 12 App. Cas. 459.); Vaithinatha Pillai v. King-Emperor (( 1913) L. R. 40 Ind. Ap. 193.); Arnold v. King-Emperor , (( 1914) L. R. 41 Ind. Ap. 149, 173.) The confirmation of the sentence stands upon a different footing from the conviction. Under 8. 374 of the Code the appellant had a statutory right to have the sentence submitted to the appellate Court, which under s. 376 might annul or reduce it, and under 8. 367 was bound to express its reasons. Even if the Board considered that, apart from the police diaries, there was evidence to warrant the conviction, that test should not be applied by the Board to the confirmation of the sentence, but the matter should be remanded for rehearing by the Court appealed from, differently constituted. [Reference was also made to ss. 31,154,156, 161, and 162 of the Code.]
Sir Erle Richards, K.C., and Sir W. Garth, for the respondent. The appellant has not satisfied the conditions for interference laid down in In re Dillett (1), and formulated in Arnolds Case. (2) The appellant must establish (12 App. Cas. 459..) a violation of natural justice, and (L. R. 41 Ind. Ap. 149, 173..) that in the absence of the irregularity both the Board and the Court below would have decided differently. It is admitted that the appellate Court made an irregular use of the police diaries. That irregularity, under the circumstances of this case, did not amount to a violation of natural justice. In any case it cannot be said that the second condition is satisfied, having regard to the evidence properly before the Courts. The question is whether, looking at the whole proceedings, there has been a substantial miscarriage of justice Ibrahim v. Rex , ([ 1914] A. C. 599, 617.) The contention that the confirmation of the sentence rests upon a different footing from the conviction is fallacious. The statutory right of the accused to have the sentence submitted to the appellate Court is no greater than his statutory right to be tried by a particular Court. To remand a case for a rehearing would be contrary to the practice, and would cause great inconvenience in the administration of justice. [Reference was also made to Reg. v. Coote (( 1873) L. R. 4 P. C. 599.) and to the Indian Evidence Act, 1872, s. 167.]
De Gruyther, K.C., replied.
March 8. The judgment of their Lordships was delivered by VISCOUNT HALDANE. In this case the appellant was convicted of murder by the Sessions Court of Jubbulpore, and was sentenced to death. The Court of the Judicial Commissioner of the Central Provinces heard an appeal and dismissed it, and confirmed the sentence under the provisions of the Indian Code of Criminal Procedure.
A petition for leave to appeal was presented to the King in Council. It was argued before this Board in support of the petition that the judgments in the Courts in India have been vitiated by an illegal and prejudicial use of the police diaries in the case, and that the credibility of the witnesses had been thereby wrongly estimated. What had taken place, it was alleged, had led to su
