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 such a