QUEEN Vs. RADHU JANA AND ORS

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.