1932 LW 35 705 . 1932 ILR MAD 55 903 . 1932 MLJ 62 742 . 1932 AIR MAD 391 .

1932
SCC ONLINE MAD 31 . 1932 CRI LJ 418 .

Syamo Maha Patro, In Re.

Madras High Court (Feb 11, 1932)

CASE NO.

Referred Trial No. 173 of 1931. Criminal Appeals Nos. 705 and 706 of 1931.

ADVOCATES

Messrs. N. Somasundaram and C. P. Connel for the Accused.

Mr. K. N. Ganapati for The Public Prosecutor on behalf of the Crown.
JUDGES

Waller
Krishnan Pandalai, JJ.

JUDGMENT

We are of opinion that an important question of law of general application whose decision
cannot be delayed as these are appeals from sentences of death, has arisen and that in view
of the following state of the authorities it is necessary to decide it by a Full Bench.
The two appellants have been Convicted of the murder of a child Appi, for the sake of the
jewels on her person. The evidence against the appellants may be classified in three
groups: (1) Evidence that one or the other or both the appellants were seen with or near the
child shortly before her disappearance near the tank in which the body was discovered
three days later: (2) Evidence that both the appellants made statements to the Police either
directly or indirectly through strangers in the presence of the police wherefrom the police
discovered that the jewels on the child's body were secreted in the 2nd appellant's house
and were able to recover them from there and also to discover the child's body hidden
among the elephant grass in a tank called Potria tank: (3) Evidence of statements made by
both the appellants in the committing Magistrate's Court but which were retracted in the
Sessions Court. At the present stage of the case we think it would not be right to express
any other opinion about the merits except that if item two of the above classes of evidence,
to the admissibility of which objection is taken, be excluded it may make a difference to
the result of one or both of the appeals.
The objection is that as the statements of the accused above referred to were made to the
police during the investigation, they are inadmissible by reason of Sect. 162 of the

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Criminal Procedure Code. As a matter of fact they were made on the 10th of September
and the investigation had begun on the night of the 7th when the police registered the case
as one of a person missing in suspicious circumstances. But the statements were made
before the appellants were arrested and when they were therefore not in custody. Counsel
for the appellants relies upon a decision of a Bench of this Court, Sheik Kalesha v.
Emperor . That fully supports the appellant's objection and if we follow it the statements
must be ruled out. But we are unable to follow that decision. Our opinion in the matter is
supported by direct decisions of four other High Courts, e. g., King Emperor v. Maung
Tha Din , Jagwa Dhanuk v. King-Emperor* , Azimuddg v. Emperor , Newaj Ali Molla v.
The Emeror , Rannun v. The Crown , In addition, there is also a decision of a Full Bench
of our Court Thimmappa v. Thimmappa where at page 974 it was held that Sect. 27 of
the Evidence Act is not affected by Sect. 162 of the Criminal Procedure Code.
On the point arising on Sect. 162 we are of opinion that the context in which the section
occurs shows that the words “statement made by any person” in Cl. (1) mean statements
made by witnesses and not by accused persons. The general words “any person” must be
read as limited by the context where they follow other sections in which the same words
can only mean persons called by the police as being acquainted with the circumstances of
the case. See for instance Sect. 160 which enables the police to require the attendance of
any person who appears to be acquainted with the circumstances of the case and Sect. 161
which enables the police to examine such persons and oblige them to answer questions.
Immediately afterwards follows Sect. 162 which speaks of statements made by any person
to a police officer in the course of investigation. This can reasonably mean only the
statements of persons acquainted with the circumstances of the case whom the police are
empowered to summon and to question and who are bound to answer the questions.
Persons accused of the offence cannot be included in that class although in one sense, a
peculiar sense, a man guilty of the crime under investigation is the man best acquainted
with the facts of the case. This is made quite clear by Sect. 164 which expressly provides
for Magistrates recording the statements of witnesses during investigation and of
confessions made by accused persons at that stage. In brief, to construe Sect. 162 as
intended to include statements by accused persons is a forced and unreasonable
construction whose only merit, that it is literal, is discounted by the context in which the
words occur.
In view of the difference of opinion between ourselves and another Bench of this Court we
think that the question should be authoritatively determined. We therefore refer to a Full
Bench the following question.
Does the expression “statement made by any person” in Cl. 1 of Sect. 162 of the Criminal
Procedure Code include statements by person accused of the offence under investigation?
These cases coming on for hearing on the 25th and 26th days of January 1932 in pursuance
of the aforesaid order of reference to the Full Bench, and the cases having stood over for
consideration till the 29th January 1932 the Court (Reilly, J., Anantakrishna Ayyar, J., and
Sundaram Chetty, J.) expressed the following.

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OPINION.
Reilly, J.—In connection with Referred Trial No. 173 of 1931 the following question has
been referred to us, viz., “Does the expression ‘statement made by any person’ in cl. 1 of
Sect. 162 of the Criminal Procedure Code include statements by persons accused of the
offence under investigation?”
The reference has been made because objection has been taken at the hearing of the
Referred Trial to the admission of evidence that certain statements were made by the
Accused which the learned Judges, Waller and Krishnan Pandalai JJ, describe as
statements made “to the Police directly or indirectly through strangers in the presence of
the Police” in the course of the Police investigation of the case when the Accused were not
in custody. In Sheik Kalesha v. Emperor , Jackson and Cornish JJ., decided that a
statement made by an accused person to the Police in the course of their investigation of
the case could not be used at the trial, for any purpose. In that case the defence wished to
use the statement in question for the benefit of the Accused, but Jackson and Cornish JJ,
held that its use was prohibited by Sect. 162, Code of Criminal Procedure as that
section applied not only to witnesses but also to accused persons. In the present case it is
the prosecution which wishes to make use of the statements in question, and Waller and
Krishnan Pandalai JJ., differing from the interpretation of Sect. 162, Code of Criminal
Procedure adopted by Jackson and Cornish JJ, are of opinion that the statements are
admissible on the ground that the section refers only to statements made by witnesses, not
to statements made by accused persons.
Sect. 162 Code of Criminal Procedure runs as follows, viz., “(1) No statement made by
any person to a police officer in the course of an investigation under this chapter shall, if
reduced to writing, be signed by the person making it; nor shall any such statement or any
record thereof, whether in a police diary or otherwise, or any part of such statement or
record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in
respect of any offence under investigation at the time when such statement was made.”
Then follow two provisos with which we are not now concerned, to the first of which the
words in parenthesis “save as hereinafter provided” refer. It has not been suggested before
us, and indeed it could not be suggested, that, taking the part of the section which I have
quoted in its plain, literal meaning, there is any doubt that it includes statements made by
accused persons as well as statements made by witnesses. There is no ambiguity about the
words used. “No statement made by any person to a police officer” clearly and obviously
includes a statement made by an accused person. And there is nothing in the section itself,
so far as I can see, to throw any doubt upon that clear and obvious meaning. That, I should
have thought, would provide an answer to the question before us. But, if it were necessary
or permissible to look at the purpose of the section, so far as it appears in the section itself,
in order to ascertain the meaning of the words in question, the same result would be
reached. The purpose is to prevent the admission in the evidence at any inquiry or trial of
some statements made to the Police in the course of the investigation of the case.
Admittedly and incontestably these statements include statements made to the Police by
witnesses (subject to an exception allowing them to be used by the defence in cross-

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examination under certain conditions). The Legislature has thought fit to exclude
statements made to the Police by witnesses to prohibit the use of them either against or for
the accused. It appears to me in the highest degree improbable that the Legislature, while
thinking it wise to shut out statements made to the Police by witnesses, would have
allowed statements made by accused persons themselves to the Police to remain
admissible. No reason has been suggested to us why such a distinction should be drawn in
favour of admitting statements made to the Police by accused persons. I do not think it
necessary to discuss the reason or wisdom of excluding evidence of any statement made to
the Police. But, if evidence of statements made by witnesses to the Police is to be
excluded, I can conceive of no reason why it should be regarded by the Legislature as safe
or fair to allow evidence of statements made to the Police by accused persons to be
admitted. Alike in its literal meaning and its apparent purpose the section applies to
accused parsons as well as to witnesses.
The learned referring Judges have recognised that that is the literal meaning of the section.
But they conclude their remarks with the sentence “In brief to construe Sect. 162 as
intended to include statements by accused persons is a forced and unreasonable
construction whose only merit, that it is literal, is discounted by the context in which the
words occur.” With very great respect I do not understand how a literal interpretation of the
section can be a forced interpretation. But the learned Judges are of opinion that the
context shows that the literal interpretation is not the right one. Their view is that Sect. 162
is to be read with Sects. 160 and 161 and that those sections apply only to witnesses. Sect.
160 provides that any Police officer making an investigation may by order in writing
require the attendance before him of any person, living within the limits of his own or any
adjoining station, who appears to be acquainted with the circumstances of the case. That
provision appears to be intended for use in respect of persons who are not accused persons
at the time when their attendance is required, as the Police can secure the presence of
accused persons in other ways. But I see no sufficient reason to interpret Sect. 161, which
provides that a Police officer making an investigation may examine orally any person
supposed to be acquainted with the facts and circumstances of the case, as applying only to
witnesses. In its plain meaning it includes also accused persons. And I know of no other
provision under which the Police can question an accused person, as it is not disputed they
can do. It has been suggested by Mr. Ganapati for the Public Prosecutor that the meaning
of Sect. 161 is indicated by its marginal note, which mentions the examination of witnesses
only. But we are not entitled to refer to the marginal note for the interpretation of the
section, as their Lordships of the Privy Council have pointed out in Balraj Kunwar v.
Jagatpal Singh . In my opinion Sect. 161 includes accused persons. If we go beyond Sect.
162 and look at Sect. 163, I can see no reason to doubt that the latter section applies to
accused persons. The learned referring Judges have also mentioned Sect. 164 as throwing
light on the meaning of Sect. 162; but that section appears to me to deal with quite a
different matter and to be of no help to us here. If it were necessary to look at the context
of Sect. 162 to ascertain the meaning of “any person,” I do not think that the immediately
preceding and succeeding Sects. 161 and 163, are themselves not applic able to accused
persons or afford any indication that Sect. 162 does not apply to accused persons. If a

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section which is clear in itself may be affected by preceding or succeeding sections, it can
only be so when those other sections are themselves capable only of an interpretation
which is clearly repugnant to, or startling in juxtaposition with, the section in question.
Here there is no ambiguity about Sect. 162 nor any essential reason to doubt its plain
meaning, and at the very highest there is no certainty that Sect. 161 applies only to
witnesses, while to my mind there is no reason to suppose that Sect. 163 does so. With
great respect in my opinion the resort of the learned Judges to the context of Sect. 162 for
its interpretation is unjustified and their reading of the context is itself incorrect.
But, as the learned Judges have pointed out, there are a number of cases in which other
High Courts have decided that Sect. 162, as it now stands, does not apply to the statements
of accused persons. The first of them is Jagwa Dhanuk v. King-Emperor* . In that case the
question arose whether a certain statement made by an accused person, which would have
been admissible under Sect. 27 of the Evidence Act, was shut out by Sect. 162, Code of
Criminal Procedure. Mullick, J., with whom Jwala Prasad, J. agreed, expressed the opinion
that Sect. 162 did not prohibit the admission of statements made by accused persons to the
Police, provided they were not confessions. He first referred to an inference from Sect.
161, which he appears to have regarded as applying only to witnesses, a view with which I
am unable to agree. He next stated that, if Sect. 162 shut out statements made by accused
persons to the Police, Sects. 27 and 28 of the Evidence Act must be considered to have
been implicitly repealed. With great respect I do not understand the reference to Sect. 28 of
the Evidence Act, and the argument from Sect. 27 is easily answered by the application of
the principle that general provisions do not derogate from special provisions. Lastly he
argued that to apply Sect. 162 to statements made by accused persons would seriously
prejudice them by shutting out evidence that they had made exculpatory statements to the
Police at an early stage. In reply to this last argument I think it is enough to say that the
learned Judge in his anxiety to prevent evidence of statements which may be of help to the
accused from being shut out has forgotten how often statements made by the accused to the
Police may tell most seriously against them, which is the reason why the prosecution
wishes to use the statements of the accused in the present case.
In Rannun v. The Crown , again the question arose whether a statement made by the
accused, which would have been admissible under Sect 27 of the Evidence Act, was shut
out by the later provisions of Sect. 162 Code of Criminal Procedure. The learned Judges
were of opinion that, if Sect. 162 applies to accused persons, Sect. 27 of the Evidence Act
would be virtually repealed and that could not have been the intention of the Legislature.
They referred to the canon of interpretation that; a general statute must not be construed as
implicitly repealing a special one. But, though they professed to apply that canon, with the
greatest respect I must point out that they arrived at a result contrary to it. Their syllogism
appears to be as follows: Special provisions are not repealed by contrary general
provisions which verbally cover their ground: Sect. 27 of the Evidence Act is a special
provision, and Sect. 162, Code of Criminal Procedure in its plain meaning is a contrary
general provision including the field of Sect. 27 of the Evidence Act; therefore not, as we
should expect, Sect. 27 of the Evidence Act remains as an exception to Sect. 162, Code of

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Criminal Procedure—but Sect. 162, Code of Criminal Procedure, is not a general provision
which covers the field of Sect. 27 of the Evidence Act. The method by which the learned
Judges arrived at the conclusion that Sect. 162, Code of Criminal Procedure, does not
apply to accused persons appears to me, if I may say so with all respect, clearly fallacious.
Next there is a discussion of the question by a Full Bench of five Judges in King Emperor
v. Maung Tha Din . There the question before the Full Bench was whether Sect. 162,
Code of Criminal Procedure applies to oral as well as written statements. All the learned
Judges were of opinion that it applied to both kinds of statements, as was decided by a Full
Bench of this Court in Thimmappa v. Thmmappa . But in the course of King Emperor
v. Mating Tha Din , Rutledge, C.J, raised another question, viz., whether Sect. 162, as it
now stands, has in effect repealed Section. 27 of the Evidence Act. Four of the learned
Judges answered that question in the negative, and in each case the reason of their answer
was that Sect. 162, Code of Criminal Procedure does not apply or rarely applies to accused
persons. The learned Chief Justice was of opinion that Sects. 160, 161 and 162 Code of
Criminal Procedure should be read together and that Sects. 160 and 161 did not apply to
accused persons. He quoted four cases as deciding that to be so of both Sects. 160 and 161.
But it will be found on examination that the first three of these cases, Queen-Empress v.
Saminada , Queen Empress v. Lakshmigadu and Emperor v. Ratan Santharam do
not refer to Sect. 161, but only to Sect. 160, and that in the fourth case Queen Empress v.
Jadub Das , though the learned Judges remarked that it was improper of the Police officer
to examine two accused persons as if under Sect. 161 in certain circumstances, they did not
say that Sect. 161 does not apply to accused persons. So far therefore as the learned Chief
Justice based his opinion on authority, it appears to have been based on a misconception.
Chari and Maung Ba, JJ., agreed with the Chief Justice. Duckworth, J., remarked on the
grouping and wording of Sects. 160, 161 and 162 and expressed the opinion that they
could refer to an accused person only “in the rare instance in which the accused when at
first not suspected in a case may have been examined by the Police as a witness.” We have
an example of that “rare instance,” which is perhaps not so rare as the learned Judge
thought, in the first examination of Accused 1 in the present case. Heald, J., held that Sect.
162 applies to accused persons and repeals Sect. 27 of the Evidence Act, so far as Sect. 27
refers to information by statements.
It will be noticed that in these cases in the Patna, Lahore and Rangoon High Courts the
interpretation of Sect. 162, Code of Criminal Procedure, was of interest mainly in regard to
its effect on Sect. 27 of the Evidence Act . In Azimuddy v. Emperor a question arose
directly whether the Sessions Judge was right in admitting in evidence statements outside
the scope of Sect. 27 of the Evidence Act which had been made by two of the accused to
the Police and were represented to have been made in the course of investigation. Rankin,
J., with whom Duval, J., agreed held that the decisions in Jagwa Dhanuk v. King-
Emperor** were right, that Sect. 162, Code of Criminal Procedure, does not apply to
accused persons and that statements made by an accused person to the Police may be
proved against him, if not inadmissible under the Evidence Act. There is no doubt about
the conclusions of the learned Judge; but with great respect I may perhaps say that I find it

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difficult to follow his reasoning. He first mentions that in the Calcutta High Court it is
settled that Sect. 161, Code of Criminal Procedure, does not apply to accused persons,
quoting as authority for that statement Queen Empress v. Jadub Das in which that point
was not decided. I infer that there are other Calcutta cases to the effect mentioned. Next he
remarks that both the context of Sect. 162 and its contents point in the same direction, with
which I am unable to agree. The next sentence is “Any person means quivis ex populo,”
which certainly points in the opposite direction. Then the learned Judge proceeds “It is
unreasonable in view of the special law applicable to the statements of accused persons to
the Police to refuse to apply the well established rule generalia specialibus non derogant. A
contrary view involves an implied but complete repeal of Sect. 27 of the Evidence Act.”
That passage implies that the learned Judge is of opinion that Sect. 162 applies to accused
persons, as otherwise there is no need to apply the rule to save the special provision of
Sect. 27 of the Evidence Act from the general provision of Sect. 162, Code of Criminal
Procedure. But the final argument is again the other way, viz., that Sect. 162, having been
amended in the interests of accused persons, cannot be held “to deprive an accused of what
so often is the main stay of a good defence, the right to show that the moment he was
challenged he gave the explanation on which he now relies.” This is the same argument as
has been used by Mullick, J., in Jagwa Dhanuk v. King- Emperor**, J., is sure that the
section is intended to benefit accused persons, he recognises that it deprives them of the
right to prove that their witnesses made corroborative statements to the Police, but he
cannot believe that their own statements to the Police which may be helpful to them have
been shut out, forgetting that his interpretation exposes them to the risk of most damaging
statements made by them to the Police being proved against them, as would be the result in
this case. If it were justifiable to let the balance of benefit or risk to the accused affect our
interpretation of the section, I have no doubt that it would be better for the accused to read
the sentence in its plain meaning.
As in four High Courts it has been decided that Sect. 162, Code of Criminal Procedure,
does not apply to accused persons, I have thought it proper to examine those decisions in
detail. With the greatest respect I cannot agree with the reasoning in any of them. In our
own Court the balance of authority is the other way. In Venkatasubbiah v. King-
Emperor , Wallace and Madhavan Nair JJ. , held that Sect. 162 did not apply to oral
statements. One of their reasons for that view was that, if the section applied to statements
made by accused persons and embraced oral statements, it would repeal Sect. 27 of the
Evidence Act . In Thimmappa v. Thimmappa , a Full Bench, consisting of Ramesam,
Waller and Jackson JJ., over-ruled that decision in respect of oral statements and decided
that Sect. 162 applies to oral as well as written statements. But Ramesam, J., in delivering
the leading opinion said that they must deal with Wallace, J.'s argument in respect of Sect.
27 of the Evidence Act. He accepted the view that Sect. 162, Code of Criminal Procedure,
applies to statements made by accused persons but explained that Sect. 27 of the Evidence
Act is an exception to that general rule against the proof of statements made to the Police
by accused persons on the principle that a general rule is affected by a special rule, not a
special rule by a general rule. He said “I am of opinion that Sect. 27 is not affected by Sect.
162 of the Criminal Procedure Code but that Sect. 162 is affected by Sect. 27 of the

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Evidence Act.” Though the question referred to the Full Bench was not whether Sect. 162,
Code of Criminal Procedure, applies to statements made by accused persons, the view that
it does so is an important element in Ramesam, J.'s opinion and reasoning. Waller, J.,
merely said “I agree and have nothing to add,” by which I understand that he then agreed
with Ramesam's view of Sect. 162, Code of Criminal Procedure. Jackson, J., also agreed
and among his remarks made it quite clear that he read Sect. 162 as Ramesam, J., did. At
that stage therefore five Judges of this Court had expressed the opinion that Sect. 162
applies to statements made by accused persons and had done so in cases in which the
question must have been argued before them. In Sheik Kalesha v. Emperor Jackson and
Cornish, JJ., decided directly that a statement made by the accused to a Police officer, on
which the defence wished to rely, was shut out by Sect. 162, Of the six Judges of this
Court who have held the opinion that Sect. 162 applies to the statements of accused
persons Waller J., has now altered his view for reasons which I have already discussed, and
he is joined in his present view by Krishnan Pandalai, J. But the balance of authority in this
Court is clearly in favour of the plain, literal interpretation of the section as applying to
statements of accused persons. As I have indicated, I see nothing in the decisions of the
other High Courts which have been quoted to convince me that we should depart from the
plain, literal interpretation of the section, which has been adopted by the majority of the
Judges of this Court who have discussed it what appears more than anything else to have
made learned Judges of other Courts reluctant to accept the plain interpretation of the
section is the supposition that it would make Sect. 27 of the Evidence Act of no effect.
But, as Ramesam, J., has pointed out, the general rule that statements made by accused
persons to the Police in the course of an investigation cannot be proved does not affect the
special exception to that rule remaining by force of Sect. 27 of the Evidence Act .
Statements admissible under that section can still be proved; but all other statements of
accused persons made to the Police in the course of an investigation are shut out. Mr.
Ganapathi has suggested that it is an anomaly that under Sect. 27 of the Evidence Act
statements made to the Police by an accused person when in custody relating to a fact
discovered thereby may be proved but a similar statement made when the accused person
is not in custody cannot be proved. That is an anomaly which perhaps the Legislature may
consider; but in my opinion it should not influence our interpretation of Sect. 162, Code of
Criminal Procedure.
My answer to the question referred to us is that the expression “statement made by any
person” in Sect. 162, Code of Criminal Procedure, includes a statement made by a person
accused of the offence under investigation.
Anantakrishna Ayyar, J.—The question referred to the Full Bench is “Does the expression'
statement made by any person in Cl. 1 of Sect. 162 of the Code of Criminal Procedure
include statements made by persons accused of the offence under investigation?”
I agree with my learned brother Reilly, J., and would answer the question referred to us in
the affirmative.
In the first place, the words “any parson” occurring in Sect. 162 of the Code of Criminal

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Procedure are very wide, and, according to the ordinary interpretation of those words,
would include an accused person.
Those words occur in Sects. 160 and 161 also, and it was admitted before us that there are
no other specific provisions in the Criminal Procedure Code which “would authorize a
Police officer making an investigation to question the accused, if the words “any person”
occurring in those sections did not include an accused person also.
The decision of the Pull Bench of this Court in Thimmappa v. Thimmappa proceeds, in
my opinion, on the view that the words “any person” in Sect. 162 include the accused also.
See page 973 of the Report. Though the exact question now before us was not before the
Full Bench in Thimmappa v. Thimmappa , yet the Full Bench thought it necessary to
answer the question raised by Wallace, J., in Venkatasubbiah v. King Emperor , and for
that purpose had to consider the scope of Sect. 162 of the Criminal Procedure Code and
Sect. 27 of the Indian Evidence Act. The very basis of the argument of Ramasam, J., that
Sect. 27 of the Indian Evidence Act is a special provision, whereas Sect. 162 of the
Criminal Procedure Code is a general provision, proceeds on the ground that the words
“any person” in Sect. 162 include the accused person also, as otherwise, the whole
discussion on this point would be irrelevant.
If the statements made by independent persons before the Police could not be used as
evidence except as specially provided for, in Sect. 162, there is no reason why statemants
made by an accused person to the Police under the same circumstances should be treated in
a different way; the circumstance that the statement is made by an accused person and to
the Police would probably make it the less admissible in evidence, than the statement made
by an independent parson. In any case, there is no sufficient ground to treat the statement
made by an accused person as admissible in evidence when a similar statement made by an
independent parson would not be so admissible. No doubt these are considerations to be
taken into account only when the wording of the section is ambiguous.
If an accused does not come within the scope of Sect. 162, the provision that the signature
of an independent parson shall not be taken to the statement made by him would not apply
to the case of an accused, whose signature to the statement made by him might be taken by
the Police as there is no law prohibiting the same.
In the Code of 1882, in Sect. 162, there was a clause to the following effect:—” Nothing in
the section shall be deemed to affect the provisions of Sect. 27 of the Indian Evidence
Act, 1872. ” The words “any person” occurred in that section also. The inference is that
those words included an accused also, as otherwise there is no necessity to have a saving
clause like the one in Sect. 162, with reference to Sect. 27 of the Indian Evidence Act.
The marginal notes to Sects. 160 and 161 which refer to witnesses cannot be referred to for
the purpose of construing the section. The Privy Council in Balraj Kunwar v. Jagatpal
Singh observed at page 406 as follows:
“It is well settled that marginal notes to the sections of an Act of Parliament cannot be
referred to for the purpose of construing the Act. The contrary opinion originated in a

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mistake, and it has been exploded long ago. There seems to be no reason for giving the
marginal notes in an Indian Statute any greater authority than the marginal notes in an
English Act of Parliament.”
It may be that by shutting out the statements made by the accused to the Police in some
cases, some materials in favour of the accused and useful for his defence might be shut
out; but it is equally possible that the statements shut out are really against the accused and
the same being shut out might ultimately work to the benefit of the accused. But these are
considerations for the Legislature to resolve upon and not for the Courts, when the
language of an Act is clear.
When the words of a Statute are clear, it is not open to the Court to disregard the same,
whatever might be the results in particular cases. See Allkins v. Jupa where there are some
useful remarks about the Courts' duty to follow the plain provisions of a Statute
irrespective of results in particular cases. At page 385 of 2 Common Pleas Division, Justice
Grove, observed as follows:
“Whenever a Statute is free from ambiguity, it is contrary to the duty of Judges in effect to
repeal it by exercising their own judgment as to whether a particular state of facts falls
within the mischief aimed at by the Legislature,—contra when a Statute is difficult to be
interpreted.”
As observed at page 206 of I.L.R 46 Calcutta, “When the language of a statute is not
ambiguous, in interpreting the plain words of a positive enactment, any suggestion of
hardship is out of place.”
Further, the word used is “any” person. It is mentioned in Stroud's Judicial Dictionary, Vol.
I, page 92, that “any” is ‘a word, which excludes limitations or qualifications.’ Per Fry, L.J,
in Duck v. Bates “as wide as possible.” Per Chitty J., in Beckett v. Sutten ”. A remarkable
instance of this wide generality is furnished in Re Farquhar, wherein the words ‘any
soldier’ etc., in Sect. 11 of the Wills Act, 1837, were construed as including minors, so
that soldiers and sea-men within that section, can make Nuncupative Wills, though under-
age.”
Sect. 27 of the Indian Evidence Act is a special provision, whereas Sect. 162 of the
Criminal Procedure Code is general, and nothing that we say here would in any way affect
the operation of Sect. 27 of the Evidence Act when the conditions mentioned therein are
fulfilled.
The actual decision of the other High Courts except the decision in Azimuddy v. Emperor
is to the effect that Sect. 27 of the Indian Evidence Act is not repealed by Sect. 162 of the
Criminal Procedure Code, a conclusion with which I respectfully agree. The decision in
the case reported in Azimuddy v. Emperor while purporting to follow the other
decisions, proceeds much beyond the same, when the learned Judges held in Azimuddy v.
Emperor that the words “any person” in Sect. 162 of the Criminal Procedure Code do not
include the accused.

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The reference to witnesses in the proviso to Sect. 162 does not in my opinion necessitate
equally the inference that the words “any person” in that section do not include the
accused. The policy of the Legislature was to restrict the use to be made of statements
made to the Police, and the proviso enacts that such statements could be used only when
the persons who made the statements are examined as prosecution witnesses and, even
then, only to the extent mentioned in the proviso. In all other cases, such statements could
not be used as evidence whether in favour of or against the accused or prosecution, except
when they come under some other specific provision of law. Unless the Legislature
modifies the provisions of Sect. 162, I think the Courts are bound to give effect to the plain
words of the same.
For these reasons, I would answer the question referred to the Full Bench in the
affirmative.
Sundaram Chetty, J.—I agree with the judgment of my learned brother Reilly, J., and wish
to state briefly the reasons which weighed with me in coming to the same conclusion. The
question referred by the learned Judges of the Division Bench is as follows:—
“Does the expression ‘statement made by any person’ in clause 1 of Sect. 162 of Criminal
Procedure Code include statements by persons accused of the offence under
investigation?”
The answer to this question has to be arrived at on a consideration of (1) the plain and
natural meaning of the words in the expression; (2) the sense in which the expression
should necessarily be understood, having regard to the context in which the section occurs
in the Code; (3) the case law bearing on this point.
Sect. 162 is in Chapter XIV of the Code which deals with information to the police and
their powers to investigate cognizable offences. This section declares that no statement
made by any person to a police officer in the course of an investigation under the said
Chapter be used for any purpose at any inquiry or trial in respect of the offence except for
the limited purpose and in the manner specified in the proviso. What is the plain and
natural meaning of the words “any person V The word “any” is wide and general, and as
such, the expression “any person” should include not only a witness but also a person
suspected or accused of an offence, who happens to make a statement to the police in the
course of an investigation. A police officer engaged in an investigation of a cognizable
offence can question a person who appears to be acquainted with the facts and
circumstances of the case, and may reduce to writing any statement made by that person.
Even if that parson should be one suspected or accused of the offence, he can be
questioned and his statement recorded by a police officer, for the purpose of investigation
under the aforesaid chapter. Sect. 162 deals with a statement made by any person to a
police officer in the course of an investigation. The expression “any person” is
comprehensive enough to include a person treated as a witness and also an accused person
if regard be had to the plain meaning of those words. That the Legislature used the words
“any person” in the plain and ordinary sense, and not in a special or restricted sense is
indicated by the corresponding Sect. 162 of the Code of 1882 (Act X of 1882), with a

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proviso added, viz: “Nothing in the section shall be deemed to affect the provisions of
Sect. 27 of the Indian Evidence Act, 1872”. Sect. 27 of the Evidence Act refers only to
information received from an accused parson, that is, statement made by a person accused
of an offence. If the Legislature used the words ‘any person’ in Sect. 162 to denote a
witness and not an accused person, there would be no need whatever for inserting the said
proviso, in order to keep alive the provisions of Sect. 27 of the Evidence Act. Unless the
Legislature used the words, ‘any person’ in Sect. 162, in the ordinary sense, so as to
include all persons, be they witnesses or persons accused of the offence, such a proviso
would be out of place and meaningless. With this proviso, there is no difficulty whatsoever
in understanding ‘any person’ occurring in Sect. 162 of the Code of 1882, an inclusive of
an accused. If the same words “any person” are used in Sect. 162 of the present Code also,
are they not to be understood in the same sense? If not, why? It is true that the proviso
referred to above, is omitted in Sect. 162 of the present Code. The exact reason for the
omission is not clear. It is urged by the learned Public Prosecutor, that the same words any
person” may have been used in a restricted sense, so as not to include an accused person,
and therefore, the proviso has been omitted. This is a plausible explanation, but other
explanations are not unavailable, which are equally plausible. If a change was really meant
to be made in Sect. 162 of the present Code as stated by the Public Prosecutor, the easiest
course would be the substitution of the words “any witness” for the words ”any person.” It
may be, that the Legislature thought that the retention of the words “any person” in Sect.
162 of the present Code, conveying the same meaning as in the Code of 1882, even in the
absence of such a proviso, would not by implication abrogate Sect. 27 of the Evidence
Act , inasmuch as that section makes a statement made by an accused admissible in
evidence, not unconditionally, but only under two special conditions specified therein.
Sect. 162 seems to be a general rule for the exclusion of statements made by any person to
the police, and in view of the principle that a special rule is not impliedly affected by the
general rule, Sect. 27 of the Evidence Act being such a special rule or an exception to the
general rule, the Legislature may have omitted the said proviso, as being unnecessary. I do
not think that by the mere omission of that proviso in Sect. 162 of the present Code, the
Legislature should be taken to have employed the same words “any person” in a different
sense or those words have now lost the meaning which they had in Sect. 162 of the Code
of 1882.
Another aspect for consideration of this question is what the learned Judges in their
referring judgment have laid stress on. The view taken by them is, that general words,
however wide and comprehensive they may be in their literal sense, should be construed in
the light of the context indicative of their meaning and scope. Let us take the sections
which immediately precede and succeed Sect. 162. Sect. 160 enables the police officer to
require, by order in writing, the attendance before him of any person within the limits of
his own or any adjoining station, who appears to be acquainted with the circumstances of
the case. Sect. 161 enables a police officer to examine orally any person supposed to be
acquainted with the facts and circumstances of the case. Then comes Sect. 162, which
says, that no statement made by any person to a police officer, shall if reduced into writing,
be signed by the person making it. The section further prohibits the use of such statements

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in evidence at the trial, subject to an exception. Sects. 163 and 164, which follow Sect. 162
deal with statements made by any person, which obviously include statements by
witnesses as also any statements or confessions by accused persons. There is no doubt as to
the sense in which the words “any person” are used in Sect. 163, and we may safely take
them to include an accused person also. Are we to take the words “any person” in Sect.
162 as limited to witnesses only, by virtue of Sects. 160 and 161 which precede it? It is
true that the marginal notes to these sections mention “witnesses”. But the wording of the
sections is wide and general, and cannot be taken to mean witnesses only and not persons
suspected or accused of an offence. Moreover, the scope of Sect. 161 seems to be wider
than that of Sect. 160. The power of the police officer to examine orally any person under
Sect. 161 is not limited to the case of persons whose attendance before him, he may require
by an order in writing under Sect. 160. Any person (whether a witness or an accused)
whom he cannot under Sect. 160 summon to appear before him, may still be examined by
him orally under Sect. 161, if he can have access to such a man in any other way. In
construing a section, the marginal notes should not be looked into, and cannot be a
criterion for determining the meaning and scope of the section. This principle has been
clearly laid down by their Lordships of the Privy Council in Balraj Kunwar v. Jagatpal
Singh in the following passage:—
“It is well settled that marginal notes to the section of an Act of Parliament cannot be
referred to for the purpose of construing the Act. The contrary opinion originated in a
mistake, and it has been exploded long ago. There seems to be no reason for giving the
marginal notes in an Indian Statute any greater authority than the marginal notes in an
English Act of Parliament.”
That being so, the use of the word “witnesses” in the marginal notes of Sects. 160 and 161
should not be a guide for construing the wording of the sections themselves. Reference
was made to Queen Empress v. Saminada in support of the contention, that Sect. 160 does
not apply to an accused person. The exact point that was decided in that case is, that this
section does not empower a police officer to summon an accused person to appear and
answer the complaint made against him. There is nothing in this ruling to indicate that a
police officer even without having recourse to the procedure prescribed under Sect. 160,
cannot examine orally an accused person under Sect. 161. It seems to me, that the
expression “any person” in Sect. 161 does not exclude a person suspected or accused of an
offence. There is nothing repugnant in supposing such a person to be acquainted with the
facts and circumstances of the case. Thus, it may be safely taken that even from the stand-
point of context, the expression “any person” contained in Sect. 162, includes an accused
person also, and is not confined to witnesses only.
Coming now to the decisions bearing on this point, it is clear that there is a conflict of
judicial opinion. In the Full Bench decision of this High Court, in Thimmappa v.
Thimmappa , though this point was not directly the subject of reference, it was considered
incidentally. The Full Bench held that even oral statements made to the Police, not reduced
to writing, come within the purview of Sect. 162, and would be inadmissible in evidence
(except for the limited purpose specified in the proviso). Having come to that opinion, the

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allied question, as regards the effect of this section on Sect. 27 of the Evidence Act had to
be considered. The observations of Ramesam, J., on pages 973 and 974, are to the effect,
that though oral statements, made by an accused person to the Police officer are covered by
Sect. 162 and come under the general rule of exclusion contained in it, the special rule as
to the admissibility of such statements, provided for in Sect. 27 of the Evidence Act, is
not affected. If Sect. 162 of the Code were viewed as not including statements, made by
accused persons at all, there would be no need for explaining why Sect. 27 of the
Evidence Act must be treated as an exception to the rule in Sect. 162 of the Code. There is
also the distinct pronouncement of two learned Judges of this Court, in the decisions
reported in Sheik Kalesha v. Emperor wherein this question was discussed, referring to
the decisions of Patna, Lahore, Rangoon and Calcutta High Courts which have taken a
different view. The learned Judges who have made the reference to this Full Bench,
express dissent from the view taken in Sheik Kalesha v. Emperor . But there is consensus
of judicial opinion as regards the effect of Sect. 162 of the Code, on Sect. 27 of the
Evidence Act. That opinion is, that Sect. 27 remains unaffected and cannot bo taken to
have been impliedly abrogated by Sect. 162 of the Code.
I do not propose to refer to the various lines of reasoning adopted by Judges in the several
cases. I shall, however, notice an important consideration which seems to have weighed
with Rankin, J., in arriving at the decision that Sect. 162 of the Code, does not apply to
statements made to the Police by accused persons: Azimuddy v. Emperor . After
adverting to the policy of the Legislature in amending Sect. 162, in the interests of the
accused, but with some abridgement of the privileges, the learned Judge proceeds to state,
that an accused person should not be denied the right of proving a statement made by him
to the Police, unless there is express and compelling language in Sect. 162, to make the
rule of exclusion from evidence contained in it applicable to a statement by the accused
also. Such a construction seems to have been placed, in order to safeguard the interests of
an accused, for otherwise, any exculpatory statement made by him to the Police, which, if
proved at the trial, would considerably help him in his defence, may be excluded from
evidence altogether. But it is also possible, that a statement made to the Police by an
accused may at least be an indirectly incriminating one and falling short of a confession.
The prosecution may be interested in proving it. If it should be held that a statement made
by an accused person to the Police is not covered by Sect. 162, it would be open to the
prosecution also to get such an incriminating statement admitted in evidence by proving
the same. If I may say so with respect, the learned Judge in the Calcutta case seems to have
overlooked this result. I agree with respect with the observations of Jackson, J., in 1931
Madras Weekly Notes case, as to the interpretation of the language of Sect. 162.
My answer, therefore, to the question referred to us, is in the affirmative.
These cases coming on for hearing, after the expression of opinion of the Full Bench
(Reilly, J., Anantakrishna Ayyar, J., and Sundaram Chetty, J.) on the point referred to it by
Waller and Krishnan Pandalai, JJ., the Court delivered the following
JUDGMENT

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Waller, J. — The Full Bench have answered the question referred to them in the
affirmative and we are bound by their answer. They hold that the words “any person” in
Sect. 162 Criminal Procedure Code must be literally construed. The meaning and scope of
the different expression “any person supposed to be (or who appears to be) acquainted with
the facts of the case,” which occurs in other sections relating to investigations by the Police
are therefore not relevant and I feel at liberty to state, as I did not before, the reasons which
led me to think that that expression always means witnesses and never includes accused
persons. The sections in which it is used are 160, 161, 170 and 173. Reilly, J., as I
understand him, agrees that in Sect. 160 it means only witnesses. No one could, I imagine,
contend that it means anything more in Sects. 170 and 173; for those sections refer to
persons who appear to be acquainted with the facts of the case and accused persons as two
distinct classes of persons. If, then, out of the four sections which use the expression, three
restrict it to one of those classes what reason is there to suppose that, in the fourth, without
any indication of an intention to widen its scope, it was intended to include both? Apart
from that, on the face of it, the language of Sect. 161 seems to me quite irreconcilable with
the idea that it can be concerned with accused persons. The persons it is concerned with
are persons supposed to be acquainted with the facts of the case and they are “bound to
answer” all questions put to them by the Police “other than questions, the answers to which
would have a tendency to expose them to a criminal charge”. How can all this refer to an
accused person? He is already the subject of a criminal charge, in respect of which the
questions would be put to him. He is not bound to answer any questions put to him in that
regard. At one time the law went so far as to require that the questions should be truly
answered, which shows, to my mind conclusively that an accused person was never in
contemplation. I must mention another point. Railly, J., states that I have changed my
opinion on the question at issue. He has misunderstood, not unnaturally, my concurrence in
Ramesam J 's judgment in Thimmappa v. Thimmappa . The impression I had retained of
our decision was that, as we were following King Emperor v. Maung Tha Din and
Azimuddy v. Emperor which laid down that Sect. 162 did not apply to the statements of
accused persons to the Police, that was our conclusion also. I have, however, now re -read
Ramasam J's judgment and note that he did express the opinion that statements made to the
Police by accused persons during an investigation are excluded by Section 162, Criminal
Procedure Code, with a saving in favour of such as are excepted by Section 27 of the
Evidence Act. I must confess that I overlooked this at the time. Otherwise I should have
pointed out that, while we purported to approve and follow the Calcutta and Rangoon
decisions without reservation, we were, in effect, dissenting from them on a point, which
though it was not then material, was of considerable importance. I thought then, as I have
continued to think, that those decisions were correct and that the opposite view leads to
most surprising results.
To turn to the facts of the case: The appellants have been convicted and sentenced to death
for the murder of a little girl called Appi. She left her parents' house at about 5 P.M on 7th
September wearing certain jewellery but did not return. She was searched for without
success and her father then reported her disappearance to the Police. The Sub- Inspector
made enquiries on 8th and 9th and got certain information about the movements of the

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appellants, with the result that he questioned the 1st appellant on 10th. The latter told him
something which, on the ruling of the Full Bench, must be excluded from evidence and
then took him to the house of the 2nd appellant. He also made a statement which must be
excluded for the same reason, and then gave up some jewellery, which has been identified
as that which Appi had been wearing when she disappeared. Afterwards, both of the
appellants led the Police to a tank where the 1st appellant pointed out some long grass, in
which the dead body of Appi was found. Now, though the statements made by the
appellants are inadmissible, evidence of their conduct is certainly admissible under Sect. 8
of the Evidence Act. I accept that evidence as true and find it proved that the 1st appellant
took the Sub- Inspector to the 2nd appellant's house, that the 2nd appellant gave up the
murdered girl's jewels and that the 1st appellant pointed out the place where her body was
found. It was only after the discovery of the body that they were formally arrested, a
circumstance which has, on the Madras view of the law, rendered inadmissible the
statements made by them, even though they led to the discovery of material facts. In
addition to proof of conduct there is also evidence that the appellants had been seen either
near or with the girl on the evening of the 7th close to the tank where her body was found
and that the 1st was seen that evening with his cloth wet and muddy feet, although the day
was a dry one. I see no reason, on the whole, to discredit the evidence as to the movements
of the appellants that evening. That of P. W. 6 seems to have been in the hands of the
Police on 8th September and was probably the cause of the 1st appellant being suspected
and sent for by the Police. The other witnesses, no doubt, did not give information till 10th
but it is explained that they were away from the village and did not know what had
happened till then. In addition, the story told by P. W. 10, is of some importance as he saw
the 1st appellant running along the street at about 7 that night.
So far there is a strong circumstantial case against the appellants, but that is not all. When
they were examined by the Committing Magistrate, they strengthened the case against
themselves. The 1st appellant admitted that he and the 2nd appellant planned to kill the girl
and took her to the scene of the murder. He then went on to deny that he was present at the
actual commission of the murder and ended up by saying “That day we came across the
girl and caught her”. As I read the whole statement, it seems to me tantamount to a
confession, not merely of abetment, but of actual participation. Like so many other
murderers, he is ready to admit everything but the actual commission of the crime. Like
them, he leads the Court up to the scene of the murder, with everything ready set for the
performance, and then pleads that he went away and some one else did what both had
planned. The 2nd appellant retaliated with a full confession implicating both himself and
the 1st appellant in the murder. Both of these confessions were withdrawn in the Sessions
Court. The 1st appellant denied having made the statement attributed to him, which was, of
course, false. The 2nd appellant did not deny his confession, but alleged that he was
intimidated into making it. The customary arguments are put forward — that retracted
confessions are worthless as evidence and that a retracted confession cannot be used under
Sect. 30 of the Evidence Act, unless it is corroborated by other evidence. Confessions do
not become worthless as evidence merely because they have been retracted. The question
always is whether the confession was made voluntarily in the first instance and whether it

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is true. In the case of the 1st appellant's confession, it seems to have been made voluntarily
and to be true, so far as it goes. It certainly was made and he does not allege that he was
coerced into making it. It cannot, perhaps, be used against the other appellant, as it falls
short, in terms, of being a full confession of guilt. As regards the confession made by the
2nd appellant, it was made to a Magistrate in Court and I see no reason to suppose that it
was not made voluntarily. He knew that there was already very strong evidence against
him and had just heard the 1st appellant accusing him of having committed the murder
single- handed. He retaliated, I infer, by telling the whole truth and implicating the 1st
appellant further than he had implicated himself. To his retraction I attach no importance.
Accused persons usually do retract their confessions as the scaffold looms nearer. His
confession, undoubtedly, can be used against the 1st appellant under Sect. 30 of the
Evidence Act. It is not evidence, as the section itself indicates, but can be used to
corroborate the other evidence against the 1st appellant, of which there is plenty. We have
been referred to Marudamuthu Padayachi, In re . with regard to the interpretation of that
section. What that case lays down is that confessions made at the actual trial cannot be
used under the section. Here the confessions were made at the preliminary enquiry and
were filed as part of the prosecution evidence at the trial itself.
Another complication is suggested—that the 1st appellant's confession amounts to no more
than a confession of abetment and that he cannot be convicted of abetment without a
separate charge. The answer is twofold. In the first place, I read the confession as
essentially one of guilt as a principal. Taking it into account together with the
circumstantial evidence against the 1st appellant. I do not doubt that he actually
participated in the murder. The suggested complication therefore does not exist. In the next
place, it is impossible to accept such a contention in the face of the decision of the Judicial
Committee in Begu v. The King Emperor . In the result, I think that the appellants have
been rightly convicted and sentenced and would dismiss the appeals.
As regards the legal position created by the ruling of the Full Bench, it seems to me that it
cannot be left as it is. It is obviously undesirable that, in matters of procedure, the High
Courts of India should not speak with one voice. The Legislature should, I venture to
suggest, intervene at once and make its intention clear. Hera we have an important point of
procedure, on which there is an acute difference of opinion, which may very well involve
different consequences for accused parsons, according to the part of India, in which they
have the good or ill fortune to be tried. A man may be hanged in Bengal, because a
statement made by him to the Police is there held to be admissible in evidence against him,
who would have been acquitted in Madras, where the statement is ruled out as
inadmissible. In Bengal, again, an accused man is allowed to prove that at the earliest
possible opportunity, he protested his innocence. That, might, in a case that was hanging in
the balance, just turn the scale in his favour. In Madras, on the other hand, he cannot prove
what he said and might be convicted in consequence. Nor is that the only anomaly. A is
charged with having murdered B and is arrested on that charge at midday. All the Courts
are agreed that, if he says to a Police Officer at 12-5 P. M. “I buried B's body under the
floor of my kitchen” and the body is there found as a result of his information, his

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statement can be proved against him under Sect. 27 of the Evidence Act . But let him
make the same statement at 11-55 A. M. and controversy begins. Over a great part of
India, this last statement can be proved against him. In Madras it cannot, for two reasons—
that Sect. 162 Criminal Procedure Code, excludes it and that Sect. 27 of the Evidence Act
limits the exception to cases where the statement has been made while the maker is in the
custody of the Police. If the Legislature really intended to differentiate between statement
made before and after arrest, admitting proof of the latter and forbidding proof of the
former, I cannot imagine what principle or policy underlies the distinction. The Legislature
is clearly very suspicious of Police pressure; yet, under the conditions required by Sect. 27
of the Evidence Act, it allows even part of a confession made to a Police officer—which
is otherwise absolutely excluded by Sect. 25—to be proved, although the maker of it was
actually in the custody of the Police at the time. Why should it be understood to have
intended to exclude an exactly similar statement made by him at a time, when he was not
under arrest and therefore less amenable to Police pressure? To that question, I can myself
give no answer that sounds reasonable. If either statement is the more open to a suspicion
of undue influence, it would seem to be that made when the accused parson was in police
custody, but it is held to be admissible in evidence, while the less objectionable statement
is excluded.
I have since read my learned brother's observations in regard to Sect. 8 of the Evidence
Act. They are, of course, open to the same criticism that the general admissibility under
that section of statements accompanying and explaining the conduct of a criminal in
relation to his crime is subject to the special prohibition imposed by Sect. 162, Criminal
Procedure Code, against the admission of all statements made by accused persons to the
Police during investigations. It is to be regretted that the Legislature, when it sets out to
alter an evidentiary provison in the Criminal Procedure Code omits to consider the effect
of the alteration on material sections of the Evidence Act. As we pointed out the other day,
when Sect. 164 Criminal Procedure Code was altered so as to make it absolutely
obligatory on Magistrates to warn a confessing accused that he was not bound to confess
and that his confession might be used against him, with the result that Courts have been
holding since then that confessions are inadmissible in evidence in cases where the
warning has been omitted, Sect. 27 of the Evidence Act still says that the omission is not
a bar to the admissibility of confessions which are otherwise admissible. In the Procedure
Code of 1882, Sect. 162 contained a clause saving both dying declarations under Sect. 32
and statements under Sect. 27 of the Evidence Act . So that the section seemed then to
apply to the statements of accused persons as much as to those of witnesses. In the next
Code, when the section was altered and enlarged, Sect. 32 remained in the saving clause,
but Sect. 27 disappeared. For what reason? It is possible to argue, from the fact that the
saving of statements of persons, who would, if they had lived, have been witnesses, was
left in and the saving of statements made by accused persons was left out, that the
Legislature intended to exclude the statements of accused persons from Sect. 162.
Otherwise, why should it not have kept Sect. 27 in the saving clause? It would, I think, be
far better, if the Legislature made its intention clear in both Acts, instead of leaving the
Courts to themselves to work out the problem and to decide from a comparison of both

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Acts which is the general provision in one and which the special in the other, that overrides
it.
Krishnan Pandalai, J.—I wish to add a few words on the bearing, as I conceive it, of the
opinion expressed by the Full Bench fin the inadmissibility by reason of Sect. 162 of the
Criminal Procedure Code of statements by accused persons before they are arrested to the
Police during investigation accompanying and explaining acts other than statements which
acts are themselves relevant under Sect. 8 of the Evidence Act.
At the argument before us before the reference two points on the admissibility of such
statements were raised: (1) raised by the appellants' Advocate on behalf of the accused that
such statements are inadmissible by virtue of Sect. 162 of the Criminal Procedure Code
and (2) raised for the Crown that though Sect. 162 be held to cover statements by accused
in a grammatical sense, the section was not intended to make inadmissible what is
admissible by such sections as Sects. 27 and 8 of the Evidence Act. Of these, it was the
first question that was the one which was referred to the Full Bench and the opinion of the
Full Bench, which I respectfully adopt, is that the terms of Sect. 162 are wide enough to
include statements by accused persons. This however, in my opinion, does not fully
dispose of the second point raised in the case—namely, to what extent that view must be
held to affect Sect. 8 of the Evidence Act which makes statements admissible as
explaining conduct. All the members of the Full Bench have dealt with the effect of their
view of Sect. 162 on Sect. 27 of the Evidence Act, and they all say that that section is not
affected thereby. They regard the latter section as an exception to the general rule laid
down by Sect. 162 and hold that statements admissible under Sect. 27 are still admissible.
But none of the learned Judges has dealt with the case of statements admissible under Sect.
8 when made by parties so far as they explain their conduct which is relevant under that
section. I should be reluctant to attribute to their Lordships any view on a matter which is
not discussed by them and should prefer to say that they have left it open whether
statements explaining conduct admissible under Sect. 8 are not another class of exceptions
to the general rule under Sect. 162. There is, as far as I have studied the judgments, only
one sentence in them which can mean that there are no other exceptions to Sect. 162 when
applied to accused persons except Sect. 27 of the Evidence Act. It occurs in the judgment
of Reilly, J., where he says,
“Statements admissible under that section (sec. 27) can still be proved; but all other
statements of accused persons made to the police in the course of investigation are shut
out.”
There is no similar view expressed in either of the two other judgments and it therefore
cannot be taken to be the view of the Full Bench.
The second of the two questions therefore which arose as to the admissibility of these
statements is in my opinion still open. Had it been necessary to decide it, I should say
without hesitation that, although Sect. 162 of the Criminal Procedure Code be read as
including statements by accused persons, it could never have been intended to abrogate
and repeal by implication Sect. 8 of the Evidence Act and statements explaining conduct

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which are admissible under that section. All the Courts recognise that Sect. 27 of the
Evidence Act is not in any way affected by Sect. 162 of the Criminal Procedure Code. The
view approved by the Full Bench is that the former is to be regarded as an exception to the
latter and therefore saved according to a well recognised rule of interpretation. Are we then
to say that Sect. 8 of the Evidence Act, so far as it applies to accused persons, has been
abrogated by Sect. 162 or that Sect. 162 so far as it applies to accused persons is an
exception to the general rule under Sect. 8 of the Evidence Act and therefore prevails over
it? To my mind, whether you regard Sect. 162 as a general rule to which Sect. 27 of the
Evidence Act is an exception or as a special rule applicable to accused persons and
therefore itself an exception to the general rule under Sect. 8 of the Evidence Act, it is
impossible to believe that the Legislature in framing Sect. 162 of the Criminal Procedure
Code intended by a side wind to repeal or modify the effect of a general statute of such
great importance as the Evidence Act, and a general provision in it of such obvious use to
the administration of justice as Sect. 8 thereof. The result of so applying Sect. 162 would
be to produce startling, if not absurd, results. If a thief is arrested and then points out the
place where he has hidden stolen property after making a statement about it, the statement,
even though it amounts to a confession, is admissible under Sect. 27 of the Evidence Act
so far as it relates distinctly to the recovery of the property, and this is so on the
interpretation of Sect. 162 now placed on it. But, if he was not arrested and even if the
statement does not amount to a confession, it cannot be received in evidence although it
furnishes the only explanation for the man's conduct both of which would under Sect. 8 be
admissible. A construction which leads to such anomaly might be imperative if it were
unavoidable on the language of the Statute. But the Court will if possible adopt the
construction which avoids such a result and it seems to me that now that Sect. 162 has
been authoritatively held to apply to statements by accused persons, the reasonable
construction is to recognise that statements admissible under Sect. 8 as explaining conduct
which is itself admissible form another class of exceptions like those which fall under Sect.
27. I however do not think it necessary in view of the other evidence in the case to decide
this point against the appellants or to use the statements which form the subject-matter of
the reference in the way above indicated. I put them aside and omit them from
consideration.
The question then is whether there is sufficient other evidence against the appellants. As
regards the 1st appellant, it has been argued that the evidence of P. Ws. 6, 7, 8 and 9, who
speak to both the appellants being seen in the company of, or near, the deceased child Appi
on the fatal Monday evening on or near the bund of the tank where her body was found
three days later should not be believed because some of them do not mention that fact till
after the body was recovered although it was being searched for from the 7th. The
circumstances in which the child was found with the appellants were not themselves likely
to create any suspicion. The 1st appellant is a relation of the child and the 2nd appellant is
a servant in a local temple. They were well known and it would not excite any one's
suspicion to find the child and the appellants together in those circumstances. After the
disappearance of the child that night, the the 1st appellant was himself making a pretence
of accompanying its father looking for her and in those circumstances it is not surprising

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that he passed unsuspected till the jewels were found I therefore do not see sufficient
ground for discrediting the evidence of these witnesses for the reason stated P. W. 10 is a
clerk in the Local Forest Range Office and an acquaintance of the 1st appellant. I regard
his evidence as of great value. He says that he saw the 1st appellant running along from the
Tank Street (which is the way leading from the place where the body was found in the
main street) at about 7 P. M., on the 7th. The witness called the 1st appellant who did not
answer but ran on. The witness ran behind him to get a bundle of beedies which the 1st
appellant sells. P.W 11, whose evidence also is significant, says that at about 8 P.M, when
P.W 5, the child's father, and the witness were searching for the girl, the 1st appellant was
seen near the car with his waist cloth wet and his feet muddy although it was a clear day.
P.W 12 corroborates P.W 11.
The 1st appellant made a statement to the committing Magistrate on the 17th of September
1931 ten days after the offence in. which he admitted that when he and the 2nd appellant
were at Janardhana Swami Mandiram watching the feeding of elephants, the girl Appi
came there and after seeing the elephant- feeding for a time she went away to buy fish
along the bund of Neelayyabunda tank. He himself went to the tank-bed to answer calls of
nature. About 6 P.M, the girl returned. He went along the eastern bund of the tank and met
the girl half-way between the bund and Sistu street and together went towards the temple
where the 2nd accused was standing. He said that he left the girl there in the company of
the 2nd accused and himself went with a copper piece to buy fish. When asked why he left
the girl with the 2nd accused and went away, he said
“I and accused 2 planned and took the girl there. I and Ogadu Rona (accused 2) had
already decided to kill the girl. I was not present when accused 2 killed the girl. On
Wednesday night accused 2 told me that he killed the girl and threw the corpse in Potrya
Bonda and asked me not to reveal this at all.”
When asked why he joined in murdering the girl, he said that there was no cause except for
gold and that the 2nd accused had previously told him to rob the gold of any girl by killing
her and that that day he came across that girl and he caught her. It will be observed that the
1st appallant having admitted everything said that he left the actual killing to the 2nd
accused. On the same day the 2nd appellant made a statement to the Committing
Magistrate in which ha said that the 1st appallant told him that he had debts and that they
should kill some girl, that they decided at last to murder Appi, that knowing that she would
not come if the 2nd accused called her, the 1st accused on the pretext of fish sent her along
the tank bund and that when the girl returned without fish ha and the 1st appellant took the
girl to Potriya tank and killed the girl. He described the killing thus:
“While Syamo (1st appellant) was sitting on her chest, I twisted her nock and killed her.
We both carried the corpse and threw her in the Potriya Bonda. We removed the theega and
palakaserupeta and left the other jewels on the body.”
This statement of the 2nd accused clearly implicating himself and the 1st appellant is
entitled to be considerad against the 1st appellant also under Sect. 30 of the Evidence Act

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Both the appellants retracted these statements in the Session Court and it is urged that
according to the rule observed by Courts retracted confessions must not be acted upon
without corroboration. It has been held that this is not an absolute rule of law but a rule of
caution. I accept it as such. Applying it to this case I have to see first of all whether the
retraction or the statement is true, and I find that while there is nothing shown to induce me
to think that the statements before the Committing Magistrate were the result of pressure or
inducement or anything else to show that they were not voluntary and true, there is every
ground to believe that the retraction was the result of a desire to escape and not true. It is
then said that the 1st appellant's statement only shows that he was an abettor. That is so if
his statement stood alone. But it is obvious that like other criminals who confess, the 1st
appellant seems to have just stopped short of divulging the story at its critical point
because he could not screw up courage to do it. That last step which the 1st appellant left
out was stated by the 2nd appellant which may be taken into consideration against the first.
Corroboration of the story is in my opinion as ample as corroboration of such an incident
can be. Corroboration cannot possibly be expected of the actual act of killing. If that were
required that would cease to be corroboration and it would be independent evidence of the
crime. But corroboration can only be of material facts which show that confession though
retracted is in all probability true. The evidence that the two appellants were in the
company of the girl and taking her about at dusk on the 7th of September is significant.
She was not seen alive after that and in fact was missing and was being looked for very
soon afterwards. Where could she have gone in this short interval? It should have been
possible for the 1st appellant, a relation, to show that the child was left in its house or with
some other relation as it was getting dark. He has not chosen to do so. On the contrary the
evidence is clear that after the jewels were surrendered by the 2nd appellant it was he in
company with the other appellant who took the police to the place where the body lay
hidden among the elephant grass and pointed it out, I am convinced that this is as strong
corroboration as can be expected. I come to the conclusion that the conviction of the 1st
appellant was right.
As against the 2nd appellant the evidence is stronger still. In addition to the witnesses
whose evidence has already been referred to, there is the fact that he made a free and frank
confession to the Committing Magistrate which he retracted and chiefly it was from him
that the Police recovered the jewels which have been identified as those worn by Appi
when she was missed. The same observations as to corroboration apply with greater force
to the 2nd appellant as I have already made with respect to the 1st and it is unnecessary to
repeat them. I think that he also was rightly convicted of murder.
As regards sentence, only one sentence is possible in such a case—death. I agree that the
convictions and sentences should be confirmed and the appeals dismissed.
N. R. R.Appeals dismissed.

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