those statements are not admissible, then there clearly is no evidTITU MYA, ence to warrant a conviction. 1877 APPELLANT. The question is, whether the statements made by the prisoner Case stated. on those two examinations are under the circumstances admissible. MACPHER SON, J. The first examination of the accused was on the 21st of September. The Magistrate, in his own hand, recorded fully in English each question and answer, and at the end he signed the memorandum, and added :-" Note. -The Police connected with the case were carefully excluded from the Court, and the accused was given every opportunity of correcting any of his statements. His manner was that of a person speaking the entire truth.” And this note is initialed by the Magistrate and dated the same, 21st of September. Simultaneously a mohurir, in the presence of the Magistrate, recorded in the vernacular all the answers given by the prisoner. But the questions put are not recorded in the vernacular. At the end of this vernacular record the Magistrate certifies :-" Taken in my presence and hearing, and contains accurately the whole of the statement made by the accused person,"-and this certificate is signed and dated by the Magistrate. To this the Magistrate appends a "Note: The clerk has unfortunately omitted questions. They are, however, entered fully in my memorandum,”—and this he signs. After that, a few words seem to have been added on the same day by the prisoner. They are recorded by the Magistrate in his own hand in his memorandum and simply signed by him, and they are recorded by the clerk in the vernacular and initialed by the Magistrate. On the 12th of October, the prisoner was further examined by the Magistrate. The questions and answers are fully recorded both in the English memorandum and in the vernacular, and the record is duly tested by the Magistrate. But neither the record of the examination of the 12th October, nor the previous record of the examination of 21st September, were signed by the accused person, as required by Section 346. Nor is there anything to show that the record of the examination-every question and every answer-was shown or read to the accused, as directed by the first clause of Section 346. APPELLANT. Case stated. MACPHER In this particular case we have no doubt that the examination. 1877 of the accused was in fact carefully conducted by the Magistrate, TITU MYA, and that all the questions and answers are accurately recorded, as regards the first examination in the Magistrate's English memorandum, and as regards the second examination, in both the vernacular and English. The error is one which, in our opinion, does not prejudice the prisoner, unless we are bound to hold as matter of law that the mere omission to comply with the provisions of Section 346 does prejudice him. The Bombay High Court apparently considers that such an error necessarily does prejudice the prisoner and is incurable; and that the statement of the accused, unless recorded strictly as directed by Section 346, is inadmissible (see 10 Bombay Reports, 166). But the last clause of Section 346 seems to contemplate the admissibility of such records although not strictly in form, provided the error does not prejudice the prisoner. The following cases bearing on the subject are reported, 21 W. R., 5 ; 24 W. R., 29, 42; 25 W. R., 25; 11 Bombay Reports, pp. 44 and 237; 1 Indian Law Reports, Bombay, 291. As the question is of great importance, and opinion seems divided, we think the matter should be referred for the decision of a Full Bench. The questions referred for the opinion of the Full Bench are: First.-Whether the omission to obtain the signature or attestation of the accused person, as directed by Section 346, necessarily prejudices the prisoner within the meaning of the last clause of that Section and renders the record inadmissible? Second. Whether the omission to obtain the signature, &c., of the accused person, as required by Section 346, or the omission to record in the vernacular the questions put to the accused person, or both these omissions taken together, necessarily render the record inadmissible, even although it appears from the Magistrate's certificate that taking the English memorandum, together with the vernacular, the whole of the questions and answers are fully recorded? Third. Whether the defect can be cured by taking further evidence now, supposing that it can be proved that in fact the record was duly read to the accused person? SON, J. 1877 those statements are not admissible, then there clearly is no evidTITU MYA, ence to warrant a conviction. APPELLANT. MACPHER SON, J. The question is, whether the statements made by the prisoner Case stated. on those two examinations are under the circumstances admissible. The first examination of the accused was on the 21st of September. The Magistrate, in his own hand, recorded fully in English each question and answer, and at the end he signed the memorandum, and added:-" Note. -The Police connected with the case were carefully excluded from the Court, and the accused was given every opportunity of correcting any of his statements. His manner was that of a person speaking the entire truth." And this note is initialed by the Magistrate and dated the same, 21st of September. Simultaneously a mohurir, in the presence of the Magistrate, recorded in the vernacular all the answers given by the prisoner. But the questions put are not recorded in the vernacular. At the end of this vernacular record the Magistrate certifies :-"Taken in my presence and hearing, and contains accurately the whole of the statement made by the accused person,"-and this certificate is signed and dated by the Magistrate. To this the Magistrate appends a "Note: The clerk has unfortunately omitted questions. They are, however, entered fully in my memorandum,”—and this he signs. After that, a few words seem to have been added on the same day by the prisoner. They are recorded by the Magistrate in his own hand in his memorandum and simply signed by him, and they are recorded by the clerk in the vernacular and initialed by the Magistrate. On the 12th of October, the prisoner was further examined by the Magistrate. The questions and answers are fully recorded both in the English memorandum and in the vernacular, and the record is duly tested by the Magistrate. But neither the record of the examination of the 12th October, nor the previous record of the examination of 21st September, were signed by the accused person, as required by Section 346. Nor is there anything to show that the record of the examination-every question and every answer-was shown or read to the accused, as directed by the first clause of Section 346. APPELLANT. Case stated. MACPHER In this particular case we have no doubt that the examination 1877 of the accused was in fact carefully conducted by the Magistrate, TITU MYA, and that all the questions and answers are accurately recorded, as regards the first examination in the Magistrate's English memorandum, and as regards the second examination, in both the vernacular and English. The error is one which, in our opinion, does not prejudice the prisoner, unless we are bound to hold as matter of law that the mere omission to comply with the provisions of Section 346 does prejudice him. The Bombay High Court apparently considers that such an error necessarily does prejudice the prisoner and is incurable; and that the statement of the accused, unless recorded strictly as directed by Section 346, is inadmissible (see 10 Bombay Reports, 166). But the last clause of Section 346 seems to contemplate the admissibility of such records although not strictly in form, provided the error does not prejudice the prisoner. The following cases bearing on the subject are reported, 21 W. R., 5; 24 W. R., 29, 42; 25 W. R., 25; 11 Bombay Reports, pp. 44 and 237; 1 Indian Law Reports, Bombay, 291. As the question is of great importance, and opinion seems divided, we think the matter should be referred for the decision of a Full Bench. The questions referred for the opinion of the Full Bench are: First.-Whether the omission to obtain the signature or attestation of the accused person, as directed by Section 346, necessarily prejudices the prisoner within the meaning of the last clause of that Section and renders the record inadmissible? Second. Whether the omission to obtain the signature, &c., of the accused person, as required by Section 346, or the omission to record in the vernacular the questions put to the accused person, or both these omissions taken together, necessarily render the record inadmissible, even although it appears from the Magistrate's certificate that taking the English memorandum, together with the vernacular, the whole of the questions and answers are fully recorded? Third.-Whether the defect can be cured by taking further evidence now, supposing that it can be proved that in fact the record was duly read to the accused person? SON, J. 1877 TITU MYA, The judgment of the FULL BENCH' was delivered by APPELLANT. GARTH, C.J.: Judgment. As regards the first point stated for our opinion, it now appears GARTH, C.J. that the statement made by the prisoner does purport to bear his signature; and in the absence of any evidence to the contrary, and there being no defect in the certificate endorsed by the Magistrate in compliance with the directions of Section 346, we must take it that the signature is that of the accused person. Then, secondly, as to the omission on the part of the Magistrate to record in the vernacular the questions put to the prisoner, it is clear that in this instance the prisoner is not, and cannot have been, prejudiced in any way by the omission. The questions were of such a nature that it is perfectly immaterial to the sense and meaning of the prisoner's statement whether they were recorded or not. The case will go back to the Bench which referred it for disposal. 1 GARTH, O.J., JACKSON, MACPHERSON, MARKBY and AINSLIE, J.J. i |