JUDGMENT

Walsh, J. - This conviction cannot stand. As an Appellate Court one would be bound to overrule it without hesitation. There is certainly a strong element of doubt. The fact that this is a revision application does make a difference and compels me to express an opinion about the procedure as well as about the actual findings.

2. The case is so exceptional that nothing like it will probably occur, at any rate, for some time, and I am not doing more than expressing an opinion, although I have had the advantage of arguments from two of the leading members of the Bar and have been referred to one or two cases. The case against Mahadeo was built upon two statements of one of the original thieves, a man named Jhit, who has already been sentenced to a well-merited thrashing which I hope he has received These two statements must be clearly differentiated. The theft took place on the 14th of August. On the 16th, J hit. who was only a carrier, confessed and made a formal confession u/s 164. There is not a word against the present applicant, Mahadeo, in that statement. Jhit was not made an approver, but was put upon his trial together with the receiver, and evidence was called, which, if you accept a subsequent story told by Jhit, contained certain statements tending to support parts of Jhit's statement though also tending, to support Mahadeo's defence. But the evidence of the witnesses at the trial before the Magistrate contained not one word tending to show that Mahadeo had bought or taken possession of these goods knowing them to be stolen. That being so, the case for the prosecution closed without a scrap of evidence against Mahadeo. Nobody seems to have noticed this singular fact, but the Magistrate's duty undoubtedly was to dismiss the case against Mahadeo at the close of the case for the prosecution. The trial proceeded and the defence was opened and the statements of the accused were taken u/s 364, and then, for the first time, Jhit made a statement implicating Mahadeo, as a matter of tact treating Mahadeo as the principal person concerned in purchasing the goods. This statement has all along been called a confession and has been treated as a confession admissible against the co-accused Mahadeo u/s 30 of the Evidence Act. In other words, the legal proposition may be simply stated in these words, that where there is no evidence at all against a receiver, at the close of the case for the prosecution a statement made by the thief in his own defence may be taken into account even against the receiver u/s 30. To my mind that is an untenable proposition. It is certainly contrary to the fundamental principles upon which Criminal haw is administered in England and, I believe" also in India, where the procedure, though different in detail, is largely based upon English ideas. In the first place an accused is entitled to know what the evidence against him is before he is called upon for a defence at all, and the closing of the case for the prosecution is no mere form but, with certain exceptions, closes the door to any further evidence against the accused. In the second place, the prosecutor cannot re-open his case and make additions to it except such voluntary additions as the accused may make himself. Now, according to the established practice in England and the established practice consistent with the first principles of Criminal Law, evidence cannot be received against an accrued person which he has no power to submit to cross-examination. Secondly, an accused person cannot himself give evidence. Nobody could pretend that the administration of justice would be assisted if upon one accused making a confession implicating his colleague in the dock, his colleague were thereupon allowed to cross-examine him, and there is nothing in the Procedure Code suggesting such a proceeding. Every Judge in such a case in England, where statements are made from the dock after the case for the prosecution is closed, warns the Jury that they mast n