W. Comer Petheram, C.J.
1. The only fact which it is necessary to mention beyond that stated by the learned Judge is that the document, the admissibility of which is in question, was put in on Monday, May 21st, as being a document made under the provisions of Section 164 of the Criminal Procedure Code, and admissible in evidence without proof under the provisions of Section 80 of the Evidence Act, and that Baboo Kalinath Mitter was not called until the following Friday.
2. Several questions have been raised and argued before us as being necessary to the decision of the general question whether the document upon the facts proved at the trial was properly admitted as evidence against the prisoner. They were: 1st, does Section 164 apply to a statement made by a person in custody, to a Magistrate in Calcutta in the course of an investigation, made by the police in the town of Calcutta, into the circumstances of a crime committed in Calcutta? Secondly, if it does not, was the document; in question properly admitted upon the evidence of Baboo Kalinath Miter under the provisions of Sections 21 and 26 of the Evidence Act? Thirdly, if Section 164 does apply to this case, was the statement of the prisoner recorded in accordance, with the provisions of that section coupled with Section 364 ? and, fourthly, if it was not so recorded, is the defect cured by Section 533 of the same Act?
3. The first question depends on the construction to be placed on Section 1 of the Criminal Procedure Code. That section, so far as it is material to the present question, is as follows: In the absence of any specific provision to the contrary, nothing herein contained shall affect * * * * * the police in the town of Calcutta.
4. Section 164 deals with statements made to a Magistrate in the course of an investigation under Chapter XIV of the Act, and the point for consideration is whether the investigation, in the course of which the statement in question was made, was an investigation under that chapter.
5. The investigation was by the Calcutta Police in the town of Calcutta, and unless there is some specific provision making Chapter XV applicable to the police in Calcutta, the section does not apply, as the statement was not made in the course of an investigation under the chapter.
6. The chapter is headed "Information to the police, and their powers to investigate." It is clear that many sections of the chanter cannot refer to Calcutta, and the only section which must apply to the police in Calcutta is Section 155. But we do not think that that section is sufficient to amount to a provision that the whole chapter is to apply to the police in Calcutta, or to give them any power to make investigations under it, and it follows that the present ease is not in any way affected by Section 164 of the Code, or, as a necessary consequence, by Section 364 or Section 553.
7. The second question then arises, whether the document in question was properly admitted under the provisions of the Evidence Act?
8. Baboo Kalinath Mitter was called, and he stated that he questioned the prisoner in English, that the prisoner understands and speaks English, and sometimes answerel him in English and sometimes in Bengali; that when his answers were in English he wrote them down, when in Bengali he wrote them in English, and read over what he had written to the prisoner; that the whole document contains the prisoner's deposition, and that the prisoner signed it in his presence.
9. If the contents of the document did not amount to a confession, the document itself would be relevant as an admission under Section 21 of the Evidence Act; and though it is a confession, it is relevant and may be proved, unless it is excluded by Section 26 of that Act. That section is as follows: "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."
10. At the time when the prisoner made the statement be was in the custody of the police; but it was made to, and in the immediate presence of, Baboo Kalinath Mitter, who has stated what is undoubtedly the fact, that he is a Magistrate to Calcutta, and consequently it is obvious that the confession is not excluded by Section 26, and this being so, and it being proved that the whole of the statements contained in the document were either the actual words spoken by the prisoner, or were accepted by him as representing the true meaning of what he had said, and as the whole document is signed by him with his own hand, the whole of the admissions contained in the document were strictly proved to have been made by him, and were admissible against him under the Indian Evidence Act.
11. In this view of the law, the third and fourth questions become immaterial in the present case, but we wish to guard ourselves from being supposed to hold that when answers are made by an accused person in one language and written down in another, unless it is shown that it was impracticable to write them in the language in which they were spoken, Section 164 would be complied with; on the contrary, we think that when such a proceeding is adopted the statement of the accused would not be recorded under that section, read with Section 364, and we have very grave doubts whether the defect could be cured under the provisions of Section 533.
12. The question as to whether or not Section 164 has force in Calcutta was not raised at the trial. The document was put in by the prosecution, and admitted in accordance with the practice which has been followed since the passing of the Criminal Procedure Code of 1882 at Sessions held in Calcutta.
13. In this Court the point has for the first time been raised, and argued by the Crown.
14. On the whole, for the reasons given in our answers to the first and second questions, we think that the confession was in the present case admissible in point of law, and we answer the question reserved by the learned Judge in the negative .