COX CJ

Our course in this case seems so clear that we have decided to give judgment at once. The whole question turns on the construction of s. 120 Criminal Procedure Code. This is very clear and says simply no statement other than a dying declaration made by any person to a police officer in the course of a police investigation under this chapter shall, if reduced to writing, be signed by the person making it or be used otherwise than to prove that the witness made a different statement at a different time or to prove an offence under s. 26 of the "police Force Ordinance, 1872," as amended by Ordinance X. of 1899. The meaning is evidently this, that on a person giving information to the police that information may be put in writing, and if that same person is afterwards called as a witness at a trial, what he has said may be used for the purpose of checking the evidence given by him. It very clearly prohibits, while allowing that to be done, any other use to be made of it. Here we find that what a witness had said to the police was brought before a magistrate and used against him as the groundwork of a criminal prosecution for giving false evidence. That appears to be absolutely in contradiction of the provisions of s. 120. The statement has been made use of in a way different to that laid down, and I am of opinion that this statement ought not to have been used, and the conviction must be quashed and the prisoner discharged.

HYNDMAN-JONES J

I am of the same opinion. It has appeared to me from the first that there has been some slip on the part of the framers of the Code. If s. 120 is to remain then it seems clear that the word "truly" should be expunged from s. 119 subsection 2. It seems to me an extraordinary thing to hold that this word being in the section, a man who spoke what was not true should not be liable to any penalty for so doing. now that the matter has been argued it appears clear that a slip has arisen through the framers not having sufficiently followed the provisions of the Indian Code. I concur with the Chief Justice's decision.