The Emperor v. Zawar Rahman

Sir H.T Prinsep, Kt., O.C.J:— This reference has been made in consequence of the judgment in Empress v. Haran Ckunder Mitter (1), the learned Judge who is holding the Sessions having reason to differ from the opinion expressed in that ease, I may state at once that we learn under the authority of the reporter of that case, who is now a member of this Bench, that Mr. Justice Wilson, whose opinion is there reported, doubted the correctness of that report or expressed his opinion that it was bad inlaw: and, so far as our experience goes, we are not aware that that ease has ever been followed in this Court, and it is not certainly followed in any reported case.

2. On the point referred to us, I am of opinion that the course taken by the learned Counsel for the accused, in this case, was not correct. He was not competent to tender the entire record of the proceedings of the Magistrate's Court, for the purpose of laying before the Jury any statements which might be contained therein as he thought proper. Unless the attention of a witness is expressly directed to any particular statement previously made by him, by reading to him or allowing him to read it from the original deposition or an authenticated copy of it, any previous statement cannot be admitted in evidence in contradiction as to the statement that he has subsequently made.

3. And in admitting any statement shown to be in contradiction to a statement made at a trial, that statement alone should be put in evidence and not the entire deposition. To allow any other course would not be fair to the witness and would represent him as having made a contradictory statement or statements which he might have possibly been able to explain if he had had a proper opportunity. Our answer is in the negative.

Hill, J.:— I am of the same opinion. It appears to me that there can be no serious doubt as to the proper practice to be followed in a case such as that which has been referred to us; and, it has, I think, been accurately stated by my brother Harington in his referring order. I would, therefore, answer the question submitted to us in the negative.

Harington, J.:— I a???here to the opinion which I expressed at the hearing of the case at the Sessions. I need only add that if at the close of the case a particluar passage in any deposition had been brought to my attention, and it had been shown that that had been shown to the witness and he had been called upon to explain it, to admit it or deny it, it would then have become a question for consideration whether at that stage, after the witness had left the box, it was proper to admit the deposition under the circumstances which would not have given the learned Counsel who was prosecuting, a chance for re-examining the witness on the matter in question. That question, however, though it has been touched on in this Court, did not arise, and I need only say that I adhere to the opinion I expressed in the Sessions Court, and would answer the question which I have referred to this Court, in the negative.

Brett, J.:— I am of the same opinion as my Lord the Chief Justice, and I would answer the question referred to us in the negative.

Henderson, J.:— I would also answer the question referred to us in the negative. It seems to me that until depositions in the Court below are tendered and received in evidence, or under section 288 of the Code of Criminal Procedure are treated by the presiding Judge as evidence, they cannot be used as evidence in the case.