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Madras High Court
Chinna Thimmappa And Ors. vs Talukunta Timmappa on 25 April, 1928
Equivalent citations: (1928) 55 MLJ 351
Author: Ramesam


Ramesam, J.

1. The question referred to the Full Bench in this case relates to the construction of Section 162 of the Criminal Procedure Code, that is, whether the words “any such statement” in the first paragraph of Clause (1) of the section cover only written statements or oral statements as well. The section has been the subject of consideration in a Full Bench decision of the High Court at Rangoon reported in King-Emperor v. Maung Tha Din (1926) I.L.R. 4 R. 72 (F.B.). One may begin the consideration of the section by assuming that, at first sight, two different constructions are possible. The two possible constructions are stated by Rutledge, C.J., at page 80. They are (1) a statement made by any person to a police officer in the course of an investigation under Chapter XIV, and (2) a statement made to a police officer in the course of an investigation under Chapter XIV and reduced into writing. The difference between the two meanings consists in that the second meaning contains an additional qualification, namely “being reduced into writing.” The question is, which of these is to be adopted?

2. The pronominal use of the word “such” is a very common expedient in legislation to avoid repetition of a long descriptive phrase or clause used earlier. We have to ascertain what are the words the repetition of which is intended to be avoided by the use of the word “such”. The phrase “such statement” is intended to avoid a repetition of the statement already described. What are the words descriptive of the statement already used? The words are, “made by any person to a police officer in the course of an investigation under this Chapter”. These are the only words descriptive of the word “statement” earlier in the section, and presumably it is to avoid the repetition of such description that the word “such” is used in the next clause. The words “reduced into writing” are not parts of the description of the word “statement” in the opening clause. If the word “such” is intended to cover also the words “reduced into writing” the earlier part of the section would have run as follows:

No statement made by any person to a police officer in the course of an investigation under this Chapter and reduced into writing shall. . . .

3. The legislature has instead of using this form deliberately avoided it and chosen to introduce the words “reduced into writing” into a conditional clause qualifying the verb “shall be signed” and not into a clause descriptive of the word “statement”. It seems to me therefore that, looking at the grammatical form chosen by the legislature, the supposed ambiguity vanishes and the clause is capable of only one meaning, namely, the first of the two mentioned. This conclusion is strengthened by the phrase “or any record thereof” as pointed out by Rutledge, C. J., in the case already quoted and by the learned Chief Justice in the referring judgment. The opposite conclusion was arrived at by Wallace and Madhavan Nair, JJ., in the decision in Venkata-subbiah v. King-Emperor (1924) I.L.R. 48 M. 640 : 48 M.L.J. 195. One of the considerations which weighed with our brother Wallace, J., in that decision was that the provisos refer only to written statements. In the first proviso the words “such writing” make the matter clear beyond any ambiguity and the words “such statement” used further on in the proviso and in the second proviso obviously could refer only to written statements. But it does not follow that, because the provisos clearly refer only to written statements, the main paragraph of Section (1) may not be wide enough to cover both oral and written statements. Another argument relied on by Wallace, J., has reference to Section 27 of the Evidence Act. He thought that, if Section 162 includes also oral statements, then the information given by the accused in custody to a police officer leading to the discovery of some fact would be inadmissible under Section 162. But it has always been held to be admissible under Section 27 read as a proviso to Section 25 of the Evidence Act. This is one of the points considered by the decision in Rangoon above referred to and it was there held that Section 27 is not controlled by Section 162. It is not one of the points referred to us; but we have got to deal with it as an argument relied on by Wallace, J., in Venkatasubbiah v. King-Emperor (1924) I.L.R. 48 M. 640 : 48 M.L.J. 195. It seems to me that Section 162 relates generally to the admissibility of statements and it says that statements described in that section are inadmissible. Section 27 relates to a more particular matter. It creates an exception to the general inadmissibility of statements made to a police officer, namely, where the statement consists of information received from the accused in custody in consequence of which a certain fact is discovered. On the principle that a general rule is affected by a special rule and not the special by the general rule, I am of opinion that Section 27 is not affected by Section 162 of the Criminal Procedure Code, but Section 162 (Cr. P. C.) is affected by Section 27 of the Evidence Act. The result is not that the construction of Section 162 which I indicated above cannot stand but that a special exception to it exists in the circumstances mentioned in Section 27 of the Indian Evidence Act. In cases not covered by the exception Section 162 as interpreted by me above continues to operate. The view indicated above is also the view taken in all the other High Courts besides Rangoon. Vide Labh Singh v. The Crown (1924) I.L.R. 6 Lah. 24, Rakha v. The Crown (1925) I.L.R. 6 Lah. 171, Bahadur Singh v. The Crown (1926) I.L.R. 7 Lah. 264, Emperor v. Vithu Balu Kharat (1924) 26 Bom. L.R. 965 and Azimuddy v. Emperor (1926) I.L.R. 54 C. 237.

4. It is unnecessary to refer to cases on the section as it stood prior to the amendment in 1923. If it is strictly permissible to consider all those cases, one would probably come to the conclusion that the legislature has redrafted the section so as to avoid the conflict that existed prior to the amendment. But it is unnecessary to pursue this line of argument any further. My opinion is that the words “shall any such statement … be used” in the first paragraph of the section apply to both oral and written statements.

Waller, J.,

5. I agree and have nothing to add.

Jackson, J.,

6. I agree and would only add that the law as now determined leaves room for several anomalies.

7. Suppose a Sub-Inspector has questioned a witness early in the investigation, and on his replying that he knew nothing, has put nothing in writing. This witness subsequently appears for the prosecution; but the accused cannot prove his oral statement to the Police that he knew nothing. Proviso 1 to Section 162 only covers a written statement.

8. Suppose a witness depose at the preliminary inquiry and then die. His deposition is evidence under Section 33 of the Indian Evidence Act. But if the accused wish to compare that evidence with what the Police recorded from this witness in the course of the investigation, he cannot do so. Because the witness is not “called”, as provided in Section 162.

9. Suppose a Police Inspector wants corruptly to prove a false confession. Under Section 25 of the Indian Evidence Act, he cannot. But under Section 27, he can always say, the accused told me where he had hid such and such property or implement and the confession goes in. In fact as regards safeguarding an accused from Police machination, Section 27 renders Section 25 nugatory.

10. Suppose an Inspector learns from a person hitherto unsuspected that property is hidden somewhere, finds the property and arrests his informant. He cannot under Section 162 prove that information. He must be careful to arrest the man first and then, under our ruling, Section 27 will specially apply. So the statement of a man at liberty and free of Police control is withheld from the Court, while that of a man in custody who may well have been himself led as much as he led others to the place of discovery is acceptable evidence. The worse goes in and the better is ruled out. The remedy lies, in my opinion, in the legislature ceasing to erect artificial barriers in the way of evidence. At one time apparently it was assumed that Courts in India could not be trusted to handle Police evidence. A confession may be good evidence and a corroborative statement may have force; how far such evidence may be believed if it rests upon Police testimony is a question of fact which is left for the Courts, except in India, to decide for themselves. It seems unnecessary any longer to make an exception of India and to keep her Courts in statutory tutelage. There is no likelihood that undue deference will be paid to Police evidence, the tendency is all the other way; nor any probability that the Courts will be flooded with confessions and corroborative statements. But occasionally the ends of justice are furthered by evidence of this sort, and whether in each particular case the evidence is credible, Indian Courts, at least in this Presidency, are quite competent to decide. I would allow a Policeman to prove anything which under the ordinary law of evidence is relevant, just as he does in England, and I presume, in the Dominions.

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