JUDGMENT

Collister, J. - This is a reference arising out of Criminal Appeal No. 563 of 1939. There are three appellants and they have appealed from their conviction u/s 302, I.P.C. Their names are Baldeo, Lakhan and Tirmal. Evidence was admitted at the trial to the effect that Tirmal, while in custody of the police, stated to the second officer that the knife with which he and the other two appellants had murdered the deceased was at his house and that he could give it to the police officer if he were taken to the house. It is in evidence that Tirmal was thereafter escorted to his house and he unearthed a knife from under a heap of rice straw. The knife had stains of blood on it which was subsequently found to be of human origin. The following question has been referred to this Full Bench:

What portion, if any, of the statement to the effect that 'the knife with which he and Baldeo and Lakhan, had murdered Maharaj Singh was at his house under a heap of pyal' alleged to have been made by the appellant Tirmal, to the Sub-Inspector or Police, Rafiq Ahmad, is admissible in evidence u/s 27, Evidence Act?

2. The order of reference gives some indication of the conflict of authority in respect to the scope, object and interpretation of Section 27, Evidence Act; but it is unnecessary to discuss those authorities because I am of opinion, for reasons which will appear, that if the relevant Sections of the Code of Criminal Procedure and the Evidence Act, are reviewed in the light of a recent decision of their Lordships of the Privy Council, it must be held that no part of the aforesaid statement is admissible in evidence. The case in question is 1. AIR 1939 47 (Privy Council) . A person who was subsequently accused of the offence under investigation had made a statement to the police which contained a damaging admission, and one of the questions before the Board was whether that statement was admissible. Their Lordships held that the words "any person" in Section 162, Criminal P.C., in their ordinary meaning would include a person who might subsequently be accused of the offence which was being investigated. It was argued before their Lordships that to give Section 162, Criminal P.C., this construction would be to repeal Section 27, Evidence Act. In this connection it was observed that the words of Section 162,

... may therefore pro tanto repeal the provisions of the Section which would otherwise apply. If they do not, presumably it would be on the ground that Section 27, Evidence Act, is a 'special law' within the meaning of Section 1(2), Criminal P.C., and that Section 162 is not a specific provision to the contrary. Their Lordships express no opinion on the topic, for whatever be the right view, it is necessary to give to Section 162 the full meaning indicated.

3. Thus, it has now been authoritatively laid down that Section 162, Criminal P.C., excludes from evidence a statement made by a person who is subsequently put on his trial; and this will apply equally to a person who at the time is actually in custody of the police. It seems to me that this pronouncement of their Lordships creates a new situation in respect to Section 27, Evidence Act, at least so far as this High Court is concerned. In the light of that decision we have to determine the question which their Lordships mentioned but did not decide, namely whether Section 27, Evidence Act, is or is not saved from the application of Section 162, Criminal P.C., by Section 1(2) of the Code, which an acts that:

It (the Code) extends to the whole of British India; but in the absence of any specific provision to the contrary nothing herein contained shall affect any special or local law now in force....

4. What we have to see, therefore, is whether a "special provision to the contrary" is or is not contained in Section 162. That Section reads as follows:

(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,