Judgement

Appeal (No.37 of 1946), by special leave, from a judgment and order of the High Court (Horwill and Bell, JJ.) (October 22, 1945) which dismissed an appeal against a judgment and order of the Court of Sessions, Guntur Division (August 2, 1945) whereby the appellants, who were accused Nos. 1 to 9, and nine others, were found guilty on charges of rioting and murder. Appellants 1, 2, 3, 4, 7 and 8 were sentenced to death, and appellants Nos. 3 and 9 were sentenced to transportation for life. There were lesser concurrent sentences which need not be noticed.

The appeal raised questions as to the effect of a failure to comply with the provisions of s. 162 of the Code of Criminal Procedure, and as to the construction of ss. 26 and 27 of the Indian Evidence Act.

The relevant facts appear from the judgment of the Judicial Committee.

By s. 162 of the Code of Criminal Procedure, 1898—

“162. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as herein-after provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made

"Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by s. 145 of the Indian Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."

Sections 25, 26 and 27 of the Indian Evidence Act, 1872, provide—

"25. No confession made to a police officer, shall be proved as against a person accused of any offence.”

"26. No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." The explanation to the section was not relevant.

"27. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

1946. Dec. 17, 18, 19. Pritt K.C. and Handoo for the appellants. The trial was so defective in regard to two points that it should not be allowed to stand. First, there was a complete disregard of the mandatory provisions of s. 162 of the Criminal Procedure Code for the supply to the defence of the statements of witnesses to be used in cross-examination. Section 162 says that the defence must have the statement for their protection; the police in this case did not provide it until it was too late to be used. The defendants are expressly entitled by statute to the statement, whether in a note-book or not; it was asked for in court three times, and it was said three times that it did not exist. The authorities say that that is more than an error, omission or irregularity; it is an illegality which vitiates the trial Baliram Tikaram v. Emperor (( 1945) A. I. R. (Nag.) 1, 3, et seq.), Emperor

v. Bansidhar (( 1930) I. L. R. 53 A. 458.), Mahadeo v The King (( 1936) A. I. R. (P. C.) 242) and Abdul Rahman v. King-Emperor (( 1926) L. R. 54 I. A. 96, 102.). Section 537 of the Criminal Procedure Code does not provide the prosecution with any relief on this point; the failure to comply with the requirements of s. 162 vitiated the trial, a