The Jodgment of the Court was as follows:—

Maclean, C.J:— I have had the advantage in this case of reading the judgment of Mr. Justice Banerjee, and of discussing it fully with him, and he has stated so fully the charges against the present accused, the history of the trial, the result of that trial, the circumstances under which the present appeal has been presented, and the only conditions, under which having regard to those circumstances, this Court can interfere, that I feel it is unnecessary for me to recapitulate what he had said on those several points. He has also set out in marked detail the various heads of misdirection upon which the Appellants rely, and do not propose, nor do I think it necessary, that I should re-state these in my own judgment.

In respect to what I may call the question of oral misdirection, as opposed to the question of misdirection, in the refusal to admit the statements of the three accused, which were so often referred to during the course of the argument, I concur in the views which Mr. Justice Banerjee is about to express and subject to one or two observations, which I am about to make, I do not think that I can usefully add anything to what he has said.

I desire, however, to point out one difficulty in which this Court is placed in dealing with questions of oral misdirection by the Sessions Judge in the course of his charge to the jury, and it is this:—We have not unfortunately before us the precise language he used in his charge. We do not know what his words actually were; all we have before us is what is styled “Heads of charge to the jury”—I need scarcely point that the actual language used to the jury might be different from that contained in the “heads of charge,” and that even a slight variation in the language used might place quite another aspect upon the meaning of the charge I think then as I said before that we approach the question of any oral misdirection under some difficulty; but if we are to take the language in the heads of charge as representing the ipsissima verba used by the Sessions Judge—as I suppose we must—the only head of oral misdirection upon which I have felt some little doubt is the second. I do not propose to say anything about the others, because I think that all that need be said about them has been said about them in my colleague's judgment, except that I cannot but feel that the arguments of the Crown rest upon a somewhat too minute criticism of the Judge's language, and that, looking at the charge as a whole, I do not think there has been any misdirection on those points.

As regards the second head, I feel that it was at least unfortunate that the Sessions Judge should have used the expression “if you think these three Hindus were no better than accomplices of the present accused and others, their evidence cannot be accepted as satisfactory, unless it is corroborated in material particulars.” But adopting the reasons given by my learned colleague, and especially, having regard to some of the other remarks of the Sessions Judge, upon the evidence given by these witnesses, though I feel it would have been better if he had been more specific in his direction to the jury on this point, and though the case is one very near the line, I am of opinion looking at the charge as a whole that he has, in effect, indicated to the jury pretty plainly that there was 110 real ground for regarding these witnesses as accomplices, and I scarcely think we should be justified in holding that there has been a misdirection on this head within the meaning of sec. 423 of the Code of Criminal Procedure. This disposes then of what I have called the various oral misdirections upon which the Appellants rely.

I now pass to the question of whether the three statements made by the three accused which are to be found at pages 36 and 37 of the Paper-book, were or were not admissible in evidence against them.

As appears from the order-sheet, the Sessions Judge held those statements to be inadmissible, but it is again unfortunate that he has given no reasons as to the grounds upon which he arrives at that conclusion. I do not propose to lay down any general principle as to the admissibality or otherwise of statements made by accused persons, as it seems to me that the admissibility of a statement in each particular case must depend upon its nature and the circumstances under which it was made. The three statements, here, though not amounting to confessions, are, to my mind, of an incriminating character, and that being so, they cannot in my judgment be admissible unless they are shown to be voluntary. To revert for a moment to the law of England upon this point from which in a great measure the law of India derives its source—any such statement, to be admissible against an accused, must be free and voluntary, and this principle appears to me to find expression, in substance, in secs. 21, 24, 25 and 26 of the Evidence Act coupled with sec. 164 of the Code of Criminal Procedure, though secs. 25 and 26 of the Evidence Act are apparently peculiar to this country, and the safeguards in India, in favour of the accused, are, in some sense, more pronounced than in England.

The statements themselves—and I shall refer more particularly in a moment to the circumstances under which they were made—were made to the Deputy Magistrate, who had been directed to investigate the case and record the evidence of the witnesses for the purposes of a preliminary enquiry.

Now, the Code of Criminal Procedure appears to me to provide for the recording of only two classes of statements by an accused person: (1) confessions which, I think, would include an admission of criminating circumstances (see Imperatrix v. Pandharinath (1); and (2) statements in reply to examination under sec. 364. In my opinion the Code only allows confessions to be recorded against the accused, if the primary requirement—as the primary requirement under English law—be complied with, viz.: that it was voluntary that is clear from sec. 164 of the Code of Criminal Procedure. The Crown here does not ask us to treat these statements as confessions not to receive them as made under sec. 364.

The case for the Crown is that these are statements, not confessions within the meaning of sec. 164 of the Code of Criminal Procedure, and that, even if that were not so, they are admissible as admissions, and that the document itself would be relevant under sec. 21 of the Evidence Act. I do not think the statement is a statement within the meaning of sec. 164; I think ‘statement’ there means the statement of a witness, as opposed to the confession of the accused. The method, prescribed for recording such statement, is strongly confirmatory of that view. The case of Empress v. Malka , though it turned upon the construction of a section differing in language from sec. 164 tends to support this construction of the latter section. As regards the argument, based on sec. 21 of the Evidence Act, that section must, in my opinion, be read with secs. 24, 25 and 26 of the same Act, and secs. 164 and 364 of the Criminal Procedure Code, and if so read unless the statements be statements within the meaning of sec. 164 as opposed to confessions—which I have said I do not think they are—I do not see how, having regard to their contents, they can be admissible against the accused, unless recorded as voluntary by the Magistrate, when he took them. They are not so recorded, there is no such expression of belief by the Magistrate, and when one looks at the circumstances under which the statements were made, I think it is impossible to hold they could have been made voluntarily. In other words, I do not think that these statements, containing as they do incriminating matter and made to a Magistrate by the accused when in the custody of the Police, can be admissible as an admission under sec. 21 of the Evidence Act unless they be shown to be voluntary.

The statements upon the face of them contain the replies of the accused to questions put to them by the Deputy Magistrate, who was purporting to hold an examination under sec. 364 of the Code of Criminal Procedure.

Counsel for the accused contends that the Deputy Magistrate had no power at that stage to make any such examination and that if he had no power to make any such examination, the replies to his questions which he had no authority to put, cannot be admissible against the accused. The statements purport to be, and were intended to be, examinations under sec. 364 of the Code. In my opinion, the Magistrate, at that stage of the proceedings, had no power, whatever, to examine the accused in the way he did. As I have pointed out above, all that he was directed to do was to investigate the case, and record the evidence of the witnesses for the purposes of a preliminary enquiry. I do not think that he was entitled to institute the examination contemplated by sec. 364. This, to my mind, is reasonably clear on perusal of secs. 209 and 342 of the Code. I think, therefore, that the Magistrate was acting illegally in putting these questions to the accused, the first of which strikes me as quite unwarrantable. This view is supported by the case of Queen-Empress v. Viran ; I allude especially to the passage in the judgment at page 228. That, perhaps, is sufficient to dispose of the case, but if I am correct in my view that the principle upon which such statements as these are admissible at all, is that they must be, and they must be shown to be, voluntary, there is no evidence to show that these statements were such—for the counsel for the Crown, so far as the record shows, never proposed to put the Magistrate into the box with the view of proving that the statements were voluntary—and the circumstances under which the examination was taken, appear to me to preclude the supposition that they could have been. The accused had been arrested; they were in the police-station; the Police, the Inspector and Sub-Inspector were there, as also the Magistrate, and apparently some of the witnesses who were there to give their depositions. Again it was apparently the Inspector of Police, according to the evidence of one of the witnesses for the Crown, Ananda Lal Missir, who questioned the accused, the Magistrate recording the answers, a circumstance which trenches somewhat closely upon the spirit of sec. 162 of the 1 Code of Criminal Procedure. In my opinion, the Inspector had no right to question and ought not to have questioned the accused, and it was an irregular proceeding on his part.

It is not within our province to say whether we agree or not with the verdict or with the Sessions Judge in accepting it. On this appeal we have nothing to do with the merits of the case, but simply with the questions of law which have been submitted to us. It is not an easy matter, having regard to the language of sec. 423 of the Code, for this Court to interfere it then a jury has given a unanimous verdict, and the Sessions Judge has not thought fit to submit the case. The questions of law in this case we decide against the Crown, and the appeal must be dismissed.

Banerjee, J.:— The accused Bhairab Chunder Chuckerbutty, Surendra Nath Banerjee and Khetter Nath Ganguly were tried by jury before the Sessions Court of the 24-Pergunnahs on charges of murder, culpable homicide not amounting to murder and abetment of those offences for causing, or abetting the causing of, the death of Ibrahim Shaikh and Jadu Shaikh. The jury unanimously returned a verdict of not guilty, and the learned Sessions Judge has accepted that verdict and acquitted the accused.

Against this order of acquittal the present appeal has been preferred by the Local Government under sec. 417 of the Code of Criminal Procedure.

The trial having been by jury, the appeal lies on a matter of law only under sec. 418 of the Code of Criminal Procedure. And as provided in secs. 423 and 537 of the same Code, the verdict of the jury and the order of acquittal based thereon cannot be altered or reversed unless it is shown that the verdict is erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him, and the misdirection has occasioned a failure of justice.

The grounds upon which we are asked to set aside the verdict of the jury and the order of acquittal based thereon are:—

First—That the learned Sessions Judge had misdirected the jury in saying in his charge to the jury that the principal witnesses to the occurrence, Sarat Mahanti, Sripati and Ananda “were somehow connected with that disturbance and they went or were taken to the police-station that same night just after the occurrence,” when there is nothing to show that they were so connected.

Second— That the learned Judge had further misdirected the jury in telling them with reference to the same three witnesses. “If you think these three Hindus were no better than accomplices of the present accused and others, their evidence cannot be accepted as satisfactory unless it is corroborated in material particulars,” when there is nothing to show that they could possibly be regarded as accomplices.

Third.—That the learned Judge had further misdirected the jury in making the following observation in his charge:

“Then with regard to the three Hindus' statement at the thanah at I a.m, do you believe that they were recorded by the Daroga? I can hardly imagine that any police-officer would waste his precious time in making a record of this kind before going to the spot and looking after the dead and wounded.”

Fourth—That the learned Judge had also misdirected the jury in saying that “witness cannot corroborate himself,” and thus excluding from their consideration the previous statements made by some of the witnesses to the police-officers during the investigation by them.

Fifth.—That the learned Judge had also misdirected the jury in saying with reference to the evidence of Jogendra Nath, witness No. 7, that “his evidence implies that none of the Mahomedans knew the names of the assailants.”

Sixth.—That the learned Judge had also misdirected the jury in saying with reference to some of the witnesses, “the only general remark I need make is that if these men had known (seen) the details of the assault, the first information would have been different and not limited to the outlines of the quarrel as it is.”

Seventh.—That the learned Judge had further misdirected the jury in saying with reference to the evidence on the question of the enmity arising between the deceased and the accused out of a dispute at the School Theatre on the last Jubilee night, that the evidence was “at all events insufficient.”

Eighth.—That the learned Judge had committed an error of law in excluding the statements made by the accused before Babu Charu Chunder Chatterjee, Deputy Magistrate, as inadmissible in evidence.

Ninth.—That the learned Judge had also committed an error in law in calling Kamjiban Mittra as a witness; and

Tenth—That the learned Judge had further misdirected the jury in saying that the first information “does not mention that Ibrahim was stabbed in the cheek,” and in not referring to the police-station diary, which supplied the omission referred to.

These grounds might have been arranged in a different order, and some of them might have been grouped together. But I shall consider them in the order in which they are stated above, that being the order in which they were urged in the argument before us.

In support of the first ground it is argued that as Sarat Mahanti, Sripati and Ananda are three of the most important witnesses for the prosecution, any remark in the learned Sessions Judge's charge to the jury unjustly detracting from their credibility must amount to a material misdirection vitiating the verdict arrived at; and it is contended that the remark quoted above, namely, that they “were somehow connected with that disturbance and they went or were taken to the police-station that same night just after the ??? currence” was calculated to detract from the credibility of those witnesses unjustly, because there was nothing on the record to justify the remark. In my opinion this contention is not sound, for we have it on the evidence of these three witnesses themselves, that the disturbance resulted immediately from a quarrel which arose in consequence of certain improper remarks made by the accused to the deceased in the course of conversation at an apparently friendly gathering in the house of the witness Sarat, at which all the three witnesses were present. Then as to the remark relating to the witnesses going or being taken to the thanah, Sarat says: “I went willingly, being told by the Police.” Sripati says: “The Jamadar took down the four names on paper. He said ‘you must go to thanah.’ We three went to the thanah in Ranigunj;” and Ananda says “after that we were taken to the thanah by Osman Gain. The Jamadar was with us.”

The remark to which exception is taken in the first ground was, therefore, in my opinion, fully justified.

The second ground relates to a remark in the learned Judge's charge which is very much stronger against the same three witnesses and which would have amounted to a misdirection if it had been uncalled for and had stood alone. But in the first place, I do not think that the learned Judge made a wholly uncalled-for remark when he told the jury (with the qualification presently to be noticed): “If you think these three Hindus were no better than accomplices of the present accused and others, their evidence cannot be accepted as satisfactory unless it is corroborated in material particulars.” According to the evidence of the three witnesses referred to in the remark, the occurrence resulted from a quarrel which arose in the house of one of them, Sarat, in the course of conversation at a friendly meeting at which all three were present. The occurrence took place in front of the house of Sarat, who says “the Police saw marks of blood on the walls of my house and on the verandah and steps,” and though he says “I tried to stop the quarrel but both sides became angry;” yet after the occurrence, and after two men had been mortally wounded before his eyes, he did nothing to help them, or to give information to the Police, but “told Sripati to close the door.” “We then,” he adds, “sat on the taktaposh, namely, I, Ananda, and Sripati,” and he did not open his door until he was called by the Police. Sripati says: “I saw the four accused run away to the west. I bolted the door.” The witness Ananda says: “I was asked by my father and through fear I said I ‘know nothing.’ Next day, till the Police came to my house I went on saying ‘I know nothing’” And the Head Constable, Ibrahim Khan, says that when he was taken to the place of occurrence, “Sarat Mahauti was then sitting inside with his door shut. I called twice, but no reply came. I asked Osman Gain 10 call. He did so, and they opened the door.” In this state of the evidence the Sessions Judge was not in my opinion wrong in saying what he did say. But in the second place, the remark does not staud alone. It must be taken with what precedes it and with what follows it; and so taken, it loses all the effect it might have otherwise had in the minds of the jurors against the credibility of the witnesses referred to. For towards the conclusion of the third paragraph preceding that in which the remark in question occurs, the learned Judge has said, speaking of the witness Sarat: “He impressed me favourably” and in the passage immediately following that to which exception is taken, he adds “But remember there is no evidence that the three Hindus were ever charged; and they bore no marks of assault. This reluctance to depose and the frequent interrogative by the Police to which they seem to have been subjected, may be explained by the hypothesis already indicated; but it is for you to form your own conclusions.”

The remark to which exception is taken in the second ground does not, therefore, in my opinion, amount to any misdirection.

The third ground is directed against a remark which, I think, was a perfectly fair remark to make. It is argued that as special Police arrangements had been made for the town on the night of the occurrence which was the night of a Hindu festival, the Daroga might well have gone on recording details of statements made to him, thinking that the dead and wounded would be taken care of by the police-officers stationed at the spot. He might have thought so; but the probability is in favour of the view taken-in the Judge's remark, that he would much rather hasten to the spot where the dead and the wounded were.

In support of the fourth ground it is urged that by sec. 157 of the Evidence Act the testimony of a witness may be corroborated by any statement made by him relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact, and that the previous statements made by the witnesses to the Police were therefore admissible in evidence. But sec. 157 of the Evidence Act, which lays down the general rule, must be taken subject to the exception contained in the special rule enacted by sec. 162 of the Code of Criminal Procedure which makes statements to the Police other than dying declarations inadmissible in evidence against the accused.

It was argued by the learned counsel for the Crown that sec. 162, Cr. P.C, only excludes statements made to a police-officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure; but the police-officer to whom the statements in question were made was not holding, and was not authorized to hold, any such investigation. To this the answer is that the statements were clearly made in the course of a Police investigation, and the question whether the police-officer was or was not authorized to hold the investigation, is immaterial, regard being had to sec. 156, Cr. P.C

The fifth ground takes exception to a remark in the Judge's charge, which even if it was incorrect, is of an immaterial character and cannot constitute a misdirection such as would justify our interfering with the verdict of the jury. Nor do I think that it was altogether incorrect. For Jogendra Nath Banerjee the witness with reference to whose evidence the remark is made, says, “when Bistu and Osman Gain came to call me, they did not say who had committed khun. On the way no one told me who had committed the khun.”

With reference to the sixth ground, it is enough to say that the remark which is taken exception to is in my opinion fully borne out by a comparison of the first information with the evidence given at the trial. For, while the first information which is lodged by the witness Kader Buksh alias Bistu Sheik omits all mention of the accused Surendra stabbing Ibrahim with a knife, and of the natires of the assistants of Jadu Sheikh, Kader Buksh in his deposition states that he saw Sufendra strike Ibrahim in the cheek with a dagger and then plunge the dagger into different parts of Jadu's body. It is quite true that the first information may omit many details which are brought out by the more careful examination in Court; but it is somewhat singular that the omission should be in respect of important points like those noted above.

The seventh ground relates to a matter of very small importance and the remark to which exception is taken appears to me to be free from objection. The Judge was quite right in saying that the evidence on the question of enmity was insufficient. But any adverse, effect of the remark was quite counteracted by the passage following it, in which be observed “A quarrel of course may arise without any previous distinct enmity.”

The eighth ground urged before us is a really important one, and requires careful consideration. If the statements of the accused which have been excluded as inadmissible, be really admissible in evidence, then it would be difficult to hold that their exclusion has not vitiated the verdict of the jury. The question, then, that arises for consideration is, whether the statements that have been excluded were admissible in evidence.

The statements on the face of them are not confessions of guilt, but contain admissions of certain facts from which inference adverse to the accused may be drawn. They were made before the Deputy Magistrate, Babu Charu Chunder Chatterjee, who was deputed by the District Magistrate under sec. 159, Cr. P.C, to hold the police investigation, and they were made before the preliminary enquiry had commenced. They were made by the accused not of their own motion, but in answer to questions put to them. They were recorded, not as confessions under sec. 164, Cr. P.C, but as statements under sec. 364, the certificate at the foot of each showing only that it was taken in the presence and hearing of the Magistrate and contains a true account of the statement made by the accused, without stating that it was voluntarily made. And they were tendered in evidence before-the Sessions Court, as the order-sheet of that Court shews, not as confessions but is statements only. They were rejected as inadmissible by the order of the Sessions Court, dated the 1st February 1898. The prosecution then wanted to examine the Deputy Magistrate, Babu Charu Chunder Chatterjee, before from these statements had been made, not with a view to prove that the statements recorded had been duly made—a matter which can under sec. 533, Cr. P.C, be established by oral evidence notwithstanding that the record may not show that certain of the required formalities had been observed; but with a view to prove by oral evidence that the accused made statements similar to those recorded. This course sec. 533, Cr. P.C, does not authorize and the examination of the witness Charu Chunder Chatterjee for that purpose was disallowed by an order, dated the 1st February 1898.

No exception is now taken to this last-mentioned order. But the learned counsel for the Crown contends that the earlier order of the 1st February 1898 rejecting the statements of the accused as inadmissible, is a wrong order, and that those statements were admissible in evidence against the accused under sec. 21 of the Evidence Act and secs. 164 and 364 of the Code of Criminal Procedure. On the other hand it is contended by the learned counsel for the accused, that the statements in question are inadmissible in evidence, sec. 21 of the Evidence Act being controlled by secs. 164 and 364 of the Code of Criminal Procedure, and the statements not being recorded in accordance with these last-mentioned sections.

After a careful consideration of the arguments on both sides the conclusion I come to is that the learned Sessions Judge was right in holding that these statements were inadmissible in evidence.

sec. 21 of the Evidence Act no doubt lays down the general rule that admissions are relevant and may be proved as against the person who makes them; but that rule must be taken subject to the special provisions relating to confessions and statements of accused persons, enacted in secs. 24, 23 and 26 of the Evidence Act, and secs. 164 and 364 of the Code of Criminal Procedure. Were it Otherwise, confessions and statements of accused persons which are not recorded in accordance with the requirements of secs. 164 and 364 of the Code of Criminal Procedure, might nevertheless be proved as admissions by the accused, and the wholesome provisions elaborately laid down in those two sections practically reduced to a nullity. This could never have been intended. Nor can sec. 533 of the Code of Criminal Procedure be construed to favour that view. That section, as I understand it, means only this, that where a confession or other statement of an accused person is duly made that is made in accordance with the provisions of the law, but in recording it, those provisions have not been fully complied with, oral evidence is admissible to prove that the confession or other statement was duly made; or in other words, when the defect in recording the confession or other statement of an accused person is one not of substance but of form only; as for instance, when the Magistrate had through inadvertence omitted to state in the certificate that the statement was taken in his hearing though it was so taken, or when he has omitted to sign the certificate through mere inadvertence, oral evidence may be taken to remedy the defect by proving that the statement recorded was duly made. This view is supported by several cases of which I need only refer to Queen-Empress v. Viran and Jai Narayan Rat v. Queen-Empress .

I shall next examine secs. 164 and 364 of the Code of Criminal Procedure to see if the statements in question are admissible under either of them.

Sec. 164 runs thus:—“Any Magistrate, not being a police-officer, may record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.”

“Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is in his opinion best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in sec. 364, and shall then be forwarded to the Magistrate by whom the case is to be enquired into or tried.”

“No Magistrate shall record any such confession, unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession he shall make a memorandum at the foot of such record to the following effect:”—

“I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.”

“(Signed) A.B,

Magistrate”

The statements here were recorded by a Magistrate not being a police-officer in the course of an investigation under Chapter XIV, the Chapter in which sec. 164 occurs, and at first sight it might seem that the statements came under the first paragraph of the section. But the second paragraph of the section clearly shows that view cannot be correct, and that the “statement” which the section contemplates is the statement of a witness and not of an accused. For, the second paragraph requires that the statement contemplated by the section should be recorded in the manner prescribed for recording evidence, and that confessions should be recorded in the manner provided by sec. 364; and the mode prescribed for recording evidence (secs. 355 to 363) can only relate to the statements of witnesses, while the manner provided by sec. 364 relates to all statements of accused persons whether amounting to confession or not. If the section had intended the term ‘statement’ as used in it to include statements of accused persons as well as those of witnesses, it must have directed the former class of statements to be recorded in the manner prescribed in sec. 364 instead of directing as it does, that-statements within the meaning of the section are to be recorded in the manner in which evidence is recorded while confessions are to be recorded in the manner prescribed in sec. 364. The reason why sec. 164 provides only for recording that class of statements of the accused which are or purports to be confessions and does not provide for the recording of statements of accused persons other than confessions, is that the section relates to a stage of the case, namely, the police investigation stage, at which statements of the accused which are other than voluntary confessions, and which are to be elicited by his examination are not intended to be obtained from him. Secs. 209 and 342, which are the only provisions of the Code authorizing the examination of the accused by the Magistrate, clearly showing that, the object of such examination is not to obtain criminating statements from the accused, but is only to enable him to explain circumstances appearing against him in the evidence adduced. This view is supported by the cases of Empress v. Malka and Queen-Empress v. Vtran . It was said that the first mentioned case was under the Code of 1872 and that sec. 122 of that Code which corresponded to sec. 164 of the present Code, was different in its terms. No doubt there was some difference in the language of the first sentence of sec. 122 which made its meaning clear in favour of the view taken above; but the language of the second sentence which corresponded to the second paragraph of sec. 164 was in effect the same.

The case of Queen-Emprsss v. Viran was, however, under the present Code of Criminal Procedure, and the view taken of sec. 164 is exactly the one I take.

It was then argued by the learned counsel for the Grown that secs; 364 and 533 of the Code of Criminal Procedure which speak of statements of accused persons other than confessions, go to disprove the correctness of this view. I do not consider this argument sound. It is quite true that accused persons may make statements other than confessions; but they are required by sec. 364 to be recorded in the manner therein prescribed, and so they cannot come within the description of statements in sec. 164 which are by that section required to be recorded in the manner prescribed for recording evidence, as contradistinguished from the manner prescribed by; sec. 364. Moreover, though the accused may make a confession of his guilt at any stage of the case before the enquiry or trial commences, and during the police investigation, the time for his making statements other than a confession does not, as I have already indicated, arrive until after the enquiry or trial has commenced, as a reference to secs. 209 and 342 of the Code of Criminal Procedure will clearly show. The two last-mentioned sections point out that our law authorizes the examination of the accused to obtain statements from him only “for the purpose of enabling the accused to explain any circumstance appearing in the evidence against him,” and not for the inquisitorial purpose of making him confess his guilt or assist the prosecution - by admitting facts which may go to criminate him, which is the only purpose that can be served by examining - him before any evidence is recorded. Such a course has always been severely condemned; see In the matter of Chinibash Ghosh and Queen v. Virabhadra . In the present case the examination; of the accused which led to the statements; in question being recorded is open to objection not only because is was commenced with the question “Did you murder Ibrahim and Sheikh Jadu last night?” but also because the examination as we learn from one of the witnesses for for the prosecution, Ananda Lall Misir, was allowed to be conducted by the Police. Inspector, a course which ought never to have been tolerated, and which practically made these statements of the accused no better than statements made to the police, which are expressly declared to be inadmissible against the accused by sec. 162.

If these statements are treated as confessions, they are clearly inadmissible under sec. 164, the appended certificate not shewing that they were voluntarily made, there being nothing to show that they were so made or that the Magistrate inquired whether they were so, made, and the nature of the questions which elicited them and the fact just referred to above, being against the view that they were voluntarily made. And if they are statements other than confessions under sec. 364, they are equally inadmissible they having been made before; the case reached the stage at which the examination of the accused, is authorized. They are therefore in my, opinion inadmissible in evidence under the letter, as well as the spirit of our law. The view 1 take is fully supported by the case of Queen-Empress v. Viran already cited.

In that case, referring to certain answers given by the accused on the 5th of June which were tendered in-evidence against the accused and which were given under circumstances similar to those under which the statements now under consideration were made, Parker, J., observes “on the 5th June when the prisoners were placed before the Magistrate there, was no evidence on the record against them. Such evidence, as was afterwards obtained was not obtained till later in the month and all previous proceedings appear to have been under the Mapilla Act. The statements, which they had previously given, had not been made legal evidence against them; nor, as it appears from the examination itself, had they up to the time been brought on to the record of the preliminary enquiry. Under sec. 342 of the Criminal Procedure Code, therefore, the Deputy Magistrate was not justified; in putting any question at all to the accused since it is only for the purpose of enabling an accused person to explain circumstances appearing in the evidence against him that a question ever can be put; and still less of course was the Magistrate justified in putting questions for the purpose of getting the accused to incriminate themselves—a procedure which sec. 342 was specially designed to prevent. Had the accused on the 5th June offered to confess, such confess on could no doubt have been taken and recorded before the commencement of the inquiry under sec. 164, and after the Magistrate had satisfied himself upon questioning the accused that they were going to make voluntary confessions. Such confessions could then have been recorded with the declaration prescribed by sec. 164. But these statements were not given, and do not profess to have been given under sec. 164, but under sec. 364 in answer to questions put by the Magistrate; and not only did the Magistrate put questions to each accused, when there was no evidence on that record against him which he could be asked to explain, but he actually cross-examined each prisoner at great length with regard to the part supposed to have been taken by the other prisoners—a course of proceeding most unjustifiable and which has often been noticed with censure by this Court. I am of opinion that the procedure of the Deputy Magistrate on the 5th June was illegal and that the questions put to and answers then obtained from the prisoners must be excluded from the record of this trial.”

The ninth ground is completely met by Sec. 540, Cr. P.C, which empowers the Court to examine any person as a witness at any stage of a trial; and I do not understand how the prosecution can be justified in opposing the exercise of that power.

It remains now to consider the tenth ground. The learned Judge is quite right when he tells the jury that the first information does not say that Ibrahim was stabbed in the cheek. Nor does the diary, the omission to mention which constitutes this ground of objection, say so, though it days that Ibrahim was murdered with knife and lathis. But in any view of the matter, the omission to refer to the diary cannot constitute a material misdirecttion in the charge to the jury when it is borne in mind that the learned Judge in his subsequent remarks pointed out to the jury that the first information was a bonâ fide document and was not one that was subsequently concocted.

In my opinion, therefore, it has not been made out that the Earned Sessions Judge's charge to the jury is vitiated by any material such as would justify our ??? with the verdict of the jury and the order of ??? based thereon. That being so, it is not open to us to enquire whether the verdict is right on the merits or not.

It is be doubt much to be deplored that two persons were mortally wounded on a bright moonlight night in a public thoroughfare in the town of Burdwan and the perpetrators of the crime have not been brought to justice yet. But so far as the present case goes, the prosecution cannot have much reason to complain. To ensure fair and impartial trial an application was made on behalf of the prosecution for transfer of the case from Burdwan to Alipur, and that application was granted. The trial was held before a special jury. The learned Sessions Judge charged the Jury in a careful and elaborate summing up in which no material misdirection has in my opinion been shewn. The jury unanimously returned a verdict of not guilty. And the learned Judge accepted the verdict and acquitted the accused.

In my opinion the order of acquittal must, therefore, stand and this appeal must be dismissed.

H.E.A.C

Appeal dismissed.