Emperor vs Mahomed Hasan Ghanchi on 25 November, 1927

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Bombay High Court
Emperor vs Mahomed Hasan Ghanchi on 25 November, 1927
Equivalent citations: (1928) 30 BOMLR 86
Author: Fawcett
Bench: Fawcett


Fawcett, J.

1. The Coroner of Bombay, in an inquest upon the deceased Ahmed, allowed the accused to make a statement after warning him that he was not bound to make any statement and that if he did so, it might be used against him in the High Court. The statement was taken on oath. Mr. Oliveira for the defence objects to this statement being put in evidence and relies upon the ruling of Mr. Justice Taraporewala in Emperor v. Kazi Dawood (1925) 28 Bom. L.R. 79. He contends that Section 19 of the Coroners’ Act of 1871 makes it clear that the accused should not be examined on oath, as if he were a witness, because it enacts that “the Coroner shall be bound to receive evidence on behalf of the party (if any) accused of causing the death of the deceased person”, and does not mention any evidence being given by the accused himself. The statement having been made on oath is, he contends, inadmissible in evidence, in spite of the provisions of the last paragraph of Section 20 under which, for the purposes of Section 26 of the Indian Evidence Act, 1872, a Coroner shall be deemed to be a Magistrate. Shortly after Mr. Justice Taraporewala gave his decision on this point, I had the same question before me, when presiding in this Court, and Mr. Justice Taraporewala’s decision was cited to me, but I differed for reasons given in Emperor v. Ramnath Mahabir (1925) Bom. L.R. 111. After hearing what Mr. Oliveira has to say, I still adhere to that opinion. I have given reasons there for my view, which I do not think it necessary to repeat. As regarda the point I have mentioned about Section 19, it is, I think, to be noted that the first paragraph of that section is restricted to the taking of evidence, and it naturally says that all evidence given under the Act shall be on oath. The subsequent words that “the Coroner shall be bound to receive evidence on behalf of the (suspect) party”, to put the thing briefly, is natural, having regard to the fact that the paragraph is dealing with the question of evidence. Therefore, it naturally says “evidence on behalf of the party (if any) accused” instead of including “evidence by any party”, because there is nothing in the section to prevent the accused giving evidence on his own behalf, just as a plaintiff or a defendant in a civil suit is allowed to give evidence on his own behalf. It must be remembered that an inquest is not the same thing as a trial before a Court, where under a special provision of the Criminal Procedure Code the- accused is not to be examined on oath. Accordingly, in the absence of any similar provision in the Coroners’ Act, I am inclined to say that a person, who is accused of causing the death of the subject of the inquest, can give evidence on his own behalf. But, even supposing that this view is wrong, in my opinion, there is nothing in the Act to prevent such an accused being allowed to make a statement after due warning, as was done in this case; and supposing that an oath ought not to have been administered, the mere fact that such additional sanction has been given to the statement does not, in my opinion, exclude the statement from those that can be made to the Coroner as a Magistrate in accordance with the provisions of Section 20 of the Coroners’ Act. The statement, which is in question here, contains some incriminating admissions in regard to the charge against the accused and so comes under the provisions of Section 26 of the Indian Evidence Act. For these reasons I hold that the statement is admissible in evidence.

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