Kolhatkar, A.J.C:— The appellant, Gola and one Ramdas—appellant in appeal No. 204 of 1927—were convicted of the offence of murder under S. 302, I.P.C by the Sessions Judge of Saugor, for having killed one Gouri Shankar and his wife Mt. Sukhrani, and both were sentenced to death on 15th October 1927. These two appeals were heard together by a Bench of this Court consisting of Hallifax and K.B Mohiuddin, A.J.Cs Both of them agreed about the correctness of Gola's conviction under S. 302, I.P.C, but differed in regard to the guilt of Ramdas, Hallifax, A.J.C, being of opinion that the guilt of Ramdas was clearly established, and that the case against him was strongerthan that against Gola, and K.B Mohiuddin, A.J.C, being of opinion that the evidence against Eamdas was not sufficient for his conviction. The appeal of Ramdas was thereupon referred, under Section 429 of the Cr PC, to Prideaux, A.J.C, who held that the evidence against Ramdas was not sufficient. Ramdas was consequently acquitted. After his acquittal Hallifax, A.J.C, reconsidered his judgment in view of the opinion already expressed by him to the effect that the case against Ramdas was stronger than that against Gola and arrived at the conclusion that, if the statement made by the appellant Gola Khangar to the police officer was excluded from the evidence, as it must be, there was not sufficient evidence on record to justify Gola's conviction, and that therefore he should be acquitted. As regards the admissibility of the aforesaid statement of Gola, he was of opinion that it was inadmissible in evidence on the ground that Section 27 of the Evidence Act, had been repealed by Section 162 of the Cr PC, as amended by the amending Acts of 1923; while K.B Mohiuddin, A.J.C, expressing his agreement with Hallifax, A.J.C, in the view taken by the latter in regard to the effect of the amended Section 162 of the Cr PC, on the provisions of Section 27 of the Evidence Act, was of opinion that apart from the aforesaid statement of the appellant Gola made to a police officer, there was sufficient evidence on record to establish his complicity in the murder of Gouri Shankar. The two Judges being thus divided in opinion in regard to Gola's guilt, the case has been referred to me under Section 429 of the Cr PC, for recording my opinion on the said point.

2. In view of the conflicting decisions of the Judges of this Court in regard to the applicability of Section 27 of the Evidence Act, the learned Government Advocate requests that the matter should be referred to a Full Bench. His request is opposed by the appellant's learned counsel. I have been referred by the former to the decision of a Bench of this Court consisting of Findlay, J.C, and Macnair, A.J.C, in Sheobalakprasad v. Emperor(1), in which it was held that Section 27 of the Evidence Act was not repealed by the amended Section 162 of the Cr PC, The same view was expressed by Mitchell, A.J.C, in Rama v. Emperor(2), decided by a Bench consisting of Hallifax, A.J C, and Mitchell, A.J.C, while on the other hand the contrary view has been expressed by Hallifax, A.J.C, in the latter case, as Well as in the present case, and it has been adopted by K.B Mohiuddin, A.J.C As at present inclined my personal view is that Section 162 of the Cr PC has no reference to a statement made by an accused while in police custody, and that it does not repeal nor in any way affect the provisions of Section 27 of the Evidence Act. Gola's statement made to the police at Gunjora, in consequence of which a blood stained are was found concealed in bhusa, constitutes an important piece of incriminating evidence against him. Its admissibility or otherwise rests solely on the legal question whether Section 27 of the Evidence Act, has been repealed by the amended Section 162 of the Cr PC. Although Hallifax, A.J.C, has not expressed in clear terms that there would be sufficient evidence to sustain Gola's conviction under S. 302, I.P.C, if his statement made to a police officer at Gunjora were admitted in evidence, the conclusion reached by him, referred to above, however, involves the necessary implication of the sufficiency of the evidence against Gola, if it be held to include the aforesaid statement made by him to a police officer. Having regard to these facts and the divergence of judicial opinion expressed by the Judges of this Court, it seems to me to be necessary, in order to ensure uniformity in the administration of criminal justice, to refer the following question to a Full Bench:

“Does the amended Section 162 of the Cr PC, appeal or in any way affect Section 27 of the Evidence Act?”

3. As the present appeal out of which this question arises was heard by a Bench of two Judges, the question will have, in view of Section 9 of the Central Provinces Civil Courts Act, to be referred to a Full Bench. ‘I would therefore request that if the Judicial Commissioner thinks that the aforesaid question is a fit one for being referred to a Full Bench, it may be so referred, and the said Bench may be constituted.

OPINIONS

Kolhatkar, A.J.C:— The question referred to the Full Bench is:

“Does the amended Section 162 of the Cr PC, repeal or in any way affect Section 27 of the Evidence Act?”

4. The question involves a construction of Section 162 of the Cr PC, and especially the expression “any person” used therein. Although words are to be interpreted according to their ordinary and natural meaning:

“general words admit of indefinite extension or restriction, according to the subject to which they relate, and the scope and object in contemplation. They may convey faithfully enough all that was intended, and yet comprise also much that was not; or, be so restricted in meaning as not to reach all the cases which fall within the real intention”: vide Maxwell on the Interpretation of Statutes, sixth edition, p. 38.”

5. Further it is an elementary rule of construction vide p. 36 of the same book:

“that a thing which is within the letter of a statute will generally be construed as not within the statute unless it be also within the real intention of the legislature, and the words, if sufficiently flexible, must be construed in the sense which, if less correct grammatically, is more in harmony with that intention.”

6. It follows therefore that:

“every clause of a statute should be construed, with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the, whole statute or series of statutes relating to, the subject-matter”: vide p. 40 of the same book.”.

7. Thus the intention of the legislature is to be gathered from the ordinary meaning of the clause used in the statute, as well as from the context in which that clausal appears in the statute. In other words words used in a section of the Act are to be read and construed in the light of the context. Now Sections 160, 161 and 162 of the Cr PC, form a group by themselves dealing with investigation, the summoning and examination of the persons to be examined in the course of the investigation, and the extent to which the statements of such persons, are to be used in an enquiry or trial held by a Magistrate or a Judge after the completion of the investigation. The next thing to be noted is that the expression “any person” is used in all the three sections. On a perusal of the three sections it seems to me that the expression “any person” used therein has one and the same meaning and denotes one and the same class of persons. That class is described with sufficient accuracy in S. 160, in which the expression is for the first time used. Every person belonging to that class must be a person who is within the limits of the station of the police officer making the investigation, or in an adjoining station, who from the information given or otherwise appears to be acquainted with the circumstances of the case, and who is bound to attend on an order in writing being issued to him by the said officer. Now an accused person who is in police custody cannot fall under this class of persons, for the simple reason that the question of a summons being issued to him and of the obligation to attend, cannot possibly arise in his case, he being in police custody. It has accordingly been held in Queen-Empress v. Saminatha(3) and in Emperor v. Ratan(4), that Section 160 of the Cr PC, does not empower the investigating officer to require the attendance of an accused person to answer the complaint made against him. It is observed in the former case that:

“The intention of the legislature seems to have been only to provide a facility for obtaining evidence, and not for procuring the attendance of the accused, who may be arrested at any time, if necessary, without a warrant.”

8. The construction of Section 160 of the Cr PC, adopted in these cases has my full concurrence. This section aims at Securing the attendance of persons who would supply the necessary information in regard to the commission of the offence, and who would be examined as witnesses in the enquiry or trial to be held in regard to the said offence. It admit of no reasonable doubt therefore that S. 160 has reference to the persons to be examined as witnesses in the trial or enquiry to be held after the completion of the investigation. As an accused cannot be examined as a witness either for or against himself, he cannot be included in the class of persons referred to in the section. The next S. 161 provides for the examination of persons who are to be summoned under S. 160, and whose attendance before the investigating officer is made obligatory thereunder. It thus refers to the same class of persons which is referred to in the preceding section. As regards the marginal notes, although they are not ordinarily referred to for the purposes of construing an Act, the rule regarding their rejection for the purposes of interpretation is now of imperfect obligation: vide Maxwell on the Interpretation of Statutes, p. 76. Collins, M.R observes in the case Bushell v. Hammond(5):

“The side note, although it forms no part of the section, is of some assistance, inasmuch as it shows the drift of the section.”

9. The marginal note of Section 161 of the Cr PC runs as follows:

“Examination of witnesses by police.”

10. Similarly the marginal note of S. 160 refers to the police officer's power to require attendance of witnesses. Both the notes make mention of witnesses as the persons referred to in the two sections. Although a marginal note-does not form part of the section, it is of some assistance in properly construing a section. It has been held in Empress; v. Jadab Das Accused.(6), that it is not permissible for the investigating officer to examine an accused person under Section 161 of the Cr PC. The next S. 162 deals with the very limited extent to which statements made by persons examined under S. 161 in the course of the investigation can be used in the course of enquiry or trial held by a Magistrate or a Judge. Although the expression “any person” used in S. 162 is a very general one and admits, according to its ordinary meaning, of including an accused person, the context leaves no doubt that it denotes the class of persons who are bound under S. 160 to attend on a summons being issued by the investigating officer, who are examined under S. 161, and who are intended to be examined as witnesses in the enquiry or trial following the investigation, and that it cannot consequently have any reference to an accused person.

11. There are several other considerations which warrant the construction adopted by me. There are no explicit words in Section 162 of the Cr PC, indicating that the legislature intended to repeal the provisions of Section 27 of the Evidence Act. As observed in Maxwell on the Interpretation of Statutes at p. 296:

“Repeal by implication is not favoured………. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the statute-book, or on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which affords an escape from it is more likely to be in consonance with the real intention.”

12. Maxwell further observes at p. 149:

“It is in the least degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning when used either in their widest or usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive they may be in their literal sense, must, usually, be construed as being limited to the actual objects of the Act, and as not altering the law beyond.”

13. All these observations hold good in the present case. I find it hard to believe that the legislature intended to repeal the substantive law embodied in Section 27 of the Evidence Act, by mere implication by enacting Section 162 of the Cr PC, which is an adjective law dealing with procedure. The desirability of avoiding, as far as possible, a conflict between the provisions of two different Acts has been emphasirzed in Ranga Charya v. Dasacharya(7) and in Jogetidra Chandra Roy v. Shyam Das(8). Again the question under consideration admits of being looked at and considered from another standpoint. A general Act is to be so construed as not to repeal a particular one, that is one directed towards a special object. A general later law does not abrogate a special one by mere implication. It is remarked by Lord Selborne in the case of Mary Seward v. The Vera Cruz(9):

“Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation you are not to hold that earlier and special legislation indirectly repealed, altered or derogated from merely by force of general words, without any indication of a particular intention to do so.”

14. Now Section 27 of the Evidence Act, is confined in its operation to an incriminating statement by an accused person while in police custody; while Section 162 of the Cr PC, contains a general provision embracing all statements made by persons examined in the course of an investigation. It is clear, therefore, in view of the rule of interpretation underlying the above remarks of Lord Selborne that as a general statute is to be so construed as not to repeal a particular one directed towards a special object, the provisions of Section 27 of the Evidence Act, must be held to be not overridden nor in any way affected by those of Section 162 of the Cr PC.

15. It is no doubt true that prior to his arrest and detention in police custody, an accused person will answer the description of the class of persons referred to in Section 160 of the Cr PC, and will consequently be liable to be examined by the investigation officer under Section 161 of the Cr PC. But Section 27 of the Evidence Act, relates to a statement made by an accused person while in police custody, and not to a statement made by him prior to his arrest and detention is such custody. The question whether a statement made by an accused person prior to his arrest in the course of the police investigation is governed by S. 162 does not therefore properly arise in the present case, being beyond the scope of this reference.

16. Having dealt so far with the question of the construction of Section 162 of the Cr PC in the light of the context, I shall now proceed to consider the views expressed by the several High Courts on the point under consideration. The view taken by me in regard to the construction of S. 162 is affirmed by the High Courts of Rangoon, Calcutta, Patna, Lahore and Madras, as well as by the Court of the Judicial Commissioner of Sind. It has been held in Emperor v. Maung Tha Din(10), by a Full Bench of the Rangoon High Court (Heald, J., dissenting) that Section 27 of the Evidence Act, is neither repealed nor affected by the amended Section 162 of the Cr PC, because a person accused of an offenee is not “any person being within the limits of” the station of the police officer making the investigation under Ch. 44, or any adjoining station,

“who from the information given, or otherwise appears to be acquainted with the circumstances of the case,”

and that consequently

“information received from a person accused of any offence in the custody of a police officer”

is not a statement within the meaning of Section 162, Clause (1) of the Cr PC. The dissenting Judge admitted that the interpretation of the majority of Judges was in accordance with what was in fact the intention of the legislature. He seems to have attached more weight to the ordinary meaning of the words used in S. 162 than to the context in which the section appears and the bearing it has on the interpretation of the section. A Bench of the Calcutta High Court has affirmed in Azimuddy v. Emperor(11), that Section 162 of the Cr PC applies to witnesses and not to accused persons under trial, and that it does not repeal Section 27 of the Evidence Act, or render inadmissible statements relevant under the latter section; while it is observed by a Bench of the Patna High Court in Jagwa Dhanuk v. King-Emperor*(12), that the main object of the amendment of Section 162 of the Cr PC is to prevent the use of the statement of prosecution witnesses as corroboration under Section 157 of the Evidence Act, and that the section does not override the general provisions of the law with regard to the admissibility of the statements made by accused persons, as laid down in Section 27 of the Evidence Act. Similarly a Bench of the Lahore High Court has ruled in Rannun v. Emperor(13), that Section 162 of the Cr PC, applies to statements of persons examined as witnesses in the course of a police investigation, and not to the statement of an accused person, and that it does not override or modify the provisions of Section 27 of the Evidence Act. In the course of his judgment, Sir Shadilal, C.J, referred to the observations appearing at p. 149 in Maxwell on the Interpretation of Statutes, which have been already quoted. The same view has been taken by the Madras High Court in In re, Semalai Goundan, A.I.R 1925 Mad. 574, while it has been affirmed by the Court of the Judicial Commissioner of Sind in Umer Duraz Munshi v. Emperor(14), that the words “statement of any person” in Section 162 of the Cr PC, refer to the statement of any witness in the course of a police investigation, and not to the statement of an accused person in respect of whom such investigation is held.

17. So far as I am aware there is only one case of the Rangoon High Court, Bawa Rowther v. Emperor(15), decided by a single Judge in September 1924 affirming the opposite view. The effect of that decision is however, nullified by the decision in the recent Full Bench case, Emperor v. Maung Tha Din, in which the former case was referred to. There are also some observations made by the Judges constituting the Bench, who decided the case Venkata Subbiah v. Emperor(16), favouring the view that Section 162 of the Cr PC, applies to statements of witnesses, as well as to those of accused persons. It would, however, appear from the remarks of Madhavan Nair, J., at p. 651, that he adhered to the view that Section 27 of the Evidence Act, was not affected by the provisions of Section 162 of the Cr PC, and that the legislature did not contemplate to repeal the former when it amended the latter section. This view however, is founded on the narrow basis resting on the assumption that S. 162 is limited to the use of written statements only, whether of witnesses or of accused persons, and that consequently it would in no way affect Section 27 of the Evidence Act. Ins this Court opinion is divided. Both, the Judges who decided the unreported case, Sheobalakprasad v. Emperor, are in favour of the view that Section 27 of the Evidence Act, is unaffected by the amended Section 162 of the Cr PC, while on the other hand the opposite view is maintained by the two Judges who decided the case Dadi Lodhi v. Emperor, A.I.R 1926 Nag. 368, and heard the case giving, rise to the present reference. As for the unreported case Rama v. Emperor, there was a difference of opinion between the two Judges who decided it.

18. For all the reasons set forth above I feel no hesitation in concluding that the provisions of Section 27 of the Evidence Act are quite independent of those of Section 162 of the Cr PC, and that when the latter section was amended in 1923, the legislature did not intend that it should repeal or in any way affect Section 27 of the Evidence Act. I would, therefore, answer in the negative the question referred to the Full Bench.

Prideaux, A.J.C:— I concur.

Kinkhede, A.J.C:— The whole of the reasoning adopted and all the deductions drawn by Kolhatkar, A.J.C, have my complete concurrence. Since I was a party to the decision in Dadi Lodhi v. Emperor, A.I.R 1926 Nag. 368, in, which the following observations occur, I think, a word of explanation is due from me:

“Some inadmissible evidence of what the appellant told the police about the “balua” concealed in his house has been let in. The terms of Section 162 of the Cr PC are perfectly clear, and no statement made to the police by “any person,” whether accused or witness, during an investigation can be even, mentioned in evidence except to the extent and under the circumstances and conditions, stated in that section. The fact that the ??? was found concealed in Dadi's house can betaken into consideration, but the fact that he or anybody else said so to the police must be entirely excluded.”

19. Without meaning any disrespect to the learned colleague with whom I than sat, I must frankly admit that on that occasion the matter was not so fully thrashed out; and in the absence of any satisfactory arguments to the contrary I fell in with the view of my senior colleague on the point as expressed above. But whereas, I have since had some fresh opportunities of considering the question, independently for myself, in the light of the reported decisions of the other High Courts as also the unreported decision of another Bench of this Court in Sheobalakprasad v. Emperor, and had the opportunity of perusing the well reasoned opinion of my colleague Kolhatkar, A.J.C I have no hesitation in endorsing the view so ably expressed. My reply, therefore, to the reference is in the same terms in which it is given by Kolhatkar, A.J.C

(At this stage Kolhatkar, A.J.C proceeded on leave, and the appeal was transferred to Prideaux, A.J.C, who recorded the following opinion:)

Prideaux, A.J.C:— The present appellant Gola and one Ramdas, appellant in Criminal Appeal No. 204 of 1927, were convicted by the Sessions Judge, Saugor, of offences under S. 302, I.P.C, they being found guilty of having killed one Gourishankar and his wife Mt. Sukhrani, and both were sentenced to death on 15th October 1927. The two appeals were heard together by a Bench consisting of Hallifax and Khan Bahadur G. Mohiuddin, A.J Cs. Both Judges agreed in the conviction of Gola under S. 302, I.P.C, but as they differed as to the guilt of Ramdas the case came to this Court by a reference under Section 429 of the Cr PC, and I held, agreeing with K.B.G Mohiuddin, A.J.C, that the evidence against Eamdas was insufficient to warrant his conviction, and on the return of the case to the Bench Ramdas was acquitted. After this acquittal, Hallifax, A.J.C, reconsidered his judgment as regards Gola, and he has come to the conclusion that, if the statement made by the appellant Gola Khangar to the police officer, which led to the discovery of the blood-stained are under some bhusa where the double murder was committed, was excluded from evidence, there was not sufficient evidence on record to justify Gola's conviction. Khan Bahadur G. Mohiuddin, A.J.C, agreed with Hallifax, A.J.C, that Gola's statement to the police could not be taken into account, but was of opinion that excluding this statement the evidence was sufficient to convict Gola of murder. The case was therefore referred to Kolhatkar, A.J.C He asked for a Full Bench to decide the question:

“Does the amended Section 162 of the Cr PC repeal or in any way affect Section 27 of the Evidence Act.”

20. A Full Bench consisting of myself, Kinkhede and Kolhatkar, A.J.Cs, have unanimously-held that the provisions of Section 27 of the Evidence Act, are quite independent of those of Section 162 of the Cr PC, and the question referred to the Full Bench was answered in the negative. This finding permits Gola's statement to the police, which led to the discovery of the blood-stained are in Gourishankar's house being proved against him. There is no doubt that the are was used to commit the murders. Its handle was broken and the broken piece was found in the morning near the murdered bodies. Besides this evidence against Gola there is the fact that he absconded from Patmohna directly after the murder and that clothes stained with human blood were found with him. It is argued here that the evidence regarding the finding of these clothes is not conclusive, but it seems to me that the evidence of P.Ws 13, 14 and 15 conclusively proves that these articles were found with the appellant Gola. There is the evidence of the Sub-Inspector to show that a dhoti (Article Z) found in Gola's house forms part of the blood-stained dhoti (Article H) found in his bundle. Further, there is no doubt that after absconding Gola attempted to conceal himself in his brother's house at Ganjora where he was actually found. This evidence seems to me to conclusively prove the guilt of Gola. I find accordingly that he is guilty of the offence of murder.

21. I return the case to the Bench for the passing of the sentence.

A.L/R.K

22. Order accordingly.