The admissibility of evidence given before a Special Referee is subject to the provisions of the Evidence Act and relevant orders, and the procedure for recording evidence must comply with the applicable provisions of the Civil Procedure Code.

JUDGMENT

Panckridge, J. - This application is made in a family partition suit which was instituted in 1929. The parties agreed to terms of settlement on 13th February 1930. In pursuance of those terms, an order was made on 28th July 1930, that Mr. J.M. Ghose, Barrister-at-law, should be appointed Special Referee to take the accounts and should also be appointed Commissioner of Partition. The order proceeded to give the commissioner liberty to examine witnesses upon oath or solemn affirmation, and to take depositions in writing and return the same with the commission. The order further directed the Special Referee to report whether or not there were any fluid assets belonging to the joint estate in the hands of the defendant which ought to be invested. The Special Referee entered upon the reference both as to accounts generally, and as to the fluid assets specified in the order. I understand that the evidence with regard to the fluid assets is now complete, but the reference, so far as it concerns the accounts generally, has not been concluded, and at the moment there is a witness of the defendant named Surajmull Kesriwal, who is still under examination.

2. It appears that, while the reference has been proceeding, Surajmull has been prosecuted before the Presidency Magistrate u/s 163 read with Section 120-B I.P.C, that is to say, of conspiracy to give illegal gratification to a public servant. He was convicted by the Chief Presidency Magistrate, and he appealed against his conviction and sentence. This Court in its criminal appellate jurisdiction set aside the conviction and sentence and acquitted Surajmull. I have had an opportunity of perusing the judgment of the Court, from which it appears that the learned Judges dealt with the case on the merits, but, at the same time, they expressed the opinion that certain important evidence, which was relied on by the prosecution, was of doubtful admissibility. This evidence consisted of statements made by Surajmull in his deposition before the Special Referee. The learned Judges were inclined to hold that, inasmuch as the depositions had not been read over and explained to the witnesses, they were not admissible u/s 80, Evidence Act. They were further inclined to the view, for which there is considerable authority, that Section 91, Evidence Act, was a bar to the witness's statement being proved aliunde as, for example, by the Special Referee or by one of the officers assisting him in the reference. The observations of the learned Judges have had the effect of causing the plaintiff to take out this summons, asking for various directions, and the matter has also been raised by a special report of the Special Referee made at the instance of the plaintiff.

3. The plaintiff asks for certain directions upon the shorthand writers who have been by consent employed to record the evidence. There is no difficulty as regards this, and the Special Referee is prepared to direct the shorthand writers, if he has not already done so, to sign and initial the depositions in the way which the plaintiff suggests. The plaintiff also asks that the whole of the evidence given in what is called the "fluid assets" reference and in the main reference should be read over and explained to the witnesses by a sworn interpreter, who, in his turn, should certify that he has correctly interpreted the evidence.

4. A point of practice has to be decided as to the procedure that Mr. J.M. Ghose ought to adopt in recording the evidence. Mr. Ghose himself takes the view that it is not necessary for the evidence to be read over to the witnesses, and he bases this view on Chapter 14, Rule 1 of the Rules and Orders. I do not agree with Mr. Ghose in this respect, for Chapter 14,. deals with proceedings at the hearing of suits, and Rule 1 begins "upon the hearing of any suit or matter in Court or before a Judge." The rule is therefore cleary not applicable to proceedings before a Special Referee.

5. With regard to civil Courts generall