The Queen vs Radhu Jana and Others

Sir Barnes Peacock, Kt., C.J.—We have heard this case in the absence of the accused. I am not sure that we could make an order for a new trial in their absence; but it is unnecessary to consider that question now, because it appears to me that we ought not to set aside the judgment of acquittal and order a new trial. Section 129 of the Code of Criminal Procedure, to which reference has been made, relates to the examination of witnesses, and does not apply to the examination or confession of prisoners. The sections applicable to this branch of the subject, in the old Code of Criminal Procedure, which was in force when these prisoners were tried, are sections 202 to 208 inclusive.

Section 205 enacts "that the examination shall be attested by the signature of the Magistrate, who shall certify, under his own hand that it was taken in his presence and in his hearing, and contains accurately the whole of the statement made by the accused person." The examination in this case did not follow the directions of that section. There is no certificate that it was taken in the hearing and in the presence of the Magistrate (although no doubt it was so); nor is there any statement that it contains the whole of the statement made by the accused persons. It was admitted by the learned pleader for the Government that the examination was not strictly accurate. It appears to me that it was wholly wanting in the requisites of section 205.

Section 366 enacts "that the examination of the accused person before the Magistrate shall be given in evidence at the trial. The attestation of the Magistrate shall be sufficient prima facie proof of such examination, and such attestation shall be admitted without proof of the signature to it, unless the Court shall see reason to doubt its genuineness." That section makes the examination of an accused person taken before the Magistrate admissible in evidence, but that is when the examination is taken down and certified by the Magistrate in the manner required by the Act. The attestation mentioned in this section must mean an attestation in conformity with section 208. There was no certificate in compliance with the requirements of section 305, and therefore the confession was not admissible in evidence, and the Judge was right in rejecting it and not allowing it to go to the assessors or acting on it himself.

But it is said that the Judge was wrong in not postponing the trial, and sending for the Deputy Magistrate to make good by his evidence that which was deficient in the record of examination. Whether the Judge exercised a sound discretion or not in not postponing the trial, and not sending for the Deputy Magistrate, it is not necessary for the Court to decide.

Section 367 enacts "that it shall be in the discretion of the Court (that is, the Court of Session) at any stage of a trial, to summon and examine any witness whose evidence it shall consider essential to the just decision of the case."

But the fact of the Judge not having postponed the case and not having summoned the Deputy Magistrate is not an error in point of law, but an error, if it is an error at all, in the exercise of his discretion. This Court as a Court of Revision cannot say that the Sessions Judge was wrong in point of law in not postponing the trial or in the exercise of his discretion in not summoning the Deputy Magistrate. Under these circumstances, it appears to me that this Court as a Court of Revision has no power to interfere with the decision of the Judge passed in accordance with the opinion of the assessors.

It is said that the Judge simply says that the case was in the nature of unproved rather than not guilty, hut still there was a verdict of acquittal. The parties were put on their trial, and were acquitted. There is no point of law on which we can say that the Judge was wrong in acquitting the prisoners, and therefore as a Court of Revision we cannot set aside the acquittal.

With reference to the general suggestions of the Judge to the Magistrate, it appears to me that that is not a judicial matter which can be decided by this Court judicially; but it is a matter which ought to be referred to the English Department of the Court, in order that they may give such directions with reference to that order and with reference to what the Magistrate may have done under it, as they may think just and proper. The application is refused, and the letter of the 17th day of June 1869, containing general suggestions of the Judge to the Magistrate, is referred to the English Committee for orders.