Judgement

Appeal (No. ii of 1936) in forma pauperis, by special leave, from a judgment of the High Court (October 10, 1935) which affirmed the judgment of the Additional Sessions Judge of Lyallpur (April 16, 1935) convicting the appellant of dacoity with murder under s. 396 of the Indian Penal Code and sentencing him to death.

The main question arising on this appeal was whether, when the provisions of s. 164 of the Code of Criminal Procedure regarding the recording of confessions have not been complied with by a magistrate empowered to record confessions under that section, oral evidence of a confession alleged to have been made to him might be given by such magistrate, and memoranda made by him of the confession exhibited, on the trial of the person said to have made the confession.

The facts and the material provisions of the Code of Criminal Procedure appear from the judgment of the Judicial Committee.

The Additional Sessions Judge, acting on the alleged admissions, found the appellant guilty.

On appeal, the High Court (Young C.J. and Monroe J.) said that the confession had not been recorded under s. 164 of the Code of Criminal Procedure, but that the magistrate was called and gave evidence in the Sessions Court, and that " it has long been held in this Court that evidence of this nature is admissible,” and that " we are therefore satisfied that all the accused have been properly convicted on their own confessions."

1936. May 15, 18, 19. Sidney Smith for the appellant.

Dunne K.C. and Wallach for the Crown.

[The argument and the relevant authorities appear from the judgment of the Judicial Committee.]

In addition to the cases referred to in the judgment the following authorities were also cited in the course of the argument Partap Singh v. The Crown (( 1925) I. L. R. 6 Lah. 415.); Vellamoonji Goundan, In re (( 1931) I. L. R. 55 M. 711.); Arunachala Reddi, In re (Ibid. 717.); Barindra Kumar Ghose v, Emperor (( 1909) I. L. R. 37 C. 467.) ; Emperor v. Gulabu (( 1913) I. L. R. 35 A. 260.); Emperor v. Deo Dat (( 1922) I. L. R. 45 A. 166.); Queen-Empress v. Venkataramanna (( 1899) I. L.

R. 23 B. 223.); Ramai Ho v. King-Emperor (( 1924) I. L. R. 3 Pat. 872.) ; Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 I. A. 18, 26.) ; Kheman v. The Crown (( 1924) I. L. R. 6 Lah. 58.) ; Karam Singh v. The Crown (( 1934) I. L. R. 16 Lah. 454.); and Emperor v. Sidheshwar Nath. (( 1933) I. L. R. 56 A. 730.)

June 16. The judgment of their Lordships was delivered by

Lord Roche. This is an appeal in forma pauperis, by special leave, from a judgment of the High Court of Lahore, dated October 10, 1935, which affirmed a judgment of the Additional Sessions Judge of Lyallpur, dated April 16, 1935, convicting the appellant of dacoity with murder under s. 396 of the Indian Penal Code, and sentencing him to death.

The appellant was convicted mainly, if not entirely, on the strength of a confession said to have been made by him to a magistrate of which evidence was given by the magistrate but which was not recorded under s. 164 of the Criminal Procedure Code. It was not contended before their Lordships that the conviction could be supported if the evidence of the confession was inadmissible. Nor was it disputed that if the evidence was inadmissible, then, in the circumstances of this case, by well recognized principles laid down by this Board, it would be proper humbly to advise His Majesty to interfere see Vaithinatha Pillai v. The King-Emperor (( 1913) L. R. 40 I. A. 193.), following In re Dillet. (( 1887) 12 App. Cas. 459) Therefore the sole question for decision is whether such evidence was or was not admissible. The answer ultimately depends upon the meaning and effect of certain sections of the Criminal Procedure Code, 1898. The most material sections are in the following terms—

" In Part V.—Information to the Police and their powers to investigate —

157.—(1.) If, from information received or otherwise, an officer in charge of a police stat