1. In this case two persons were charged in connection with the murder of a Forest-guard named Aba Gudhan, accused No. 1, with the murder under Section 302, Indian Penal Code, and accused No. 2 with the abetment thereof under Sections 302, and 114, Indian Penal Code and with causing the evidence of murder tO disappear under Section 201, Indian Penal Code. They were tried by the Additional Sessions Judge of Satara with the aid of assessors. The assessors were of opinion that accused No. 1 was guilty of murder and that accused No. 2 was not guilty of the abetment thereof; but they were divided in opinion as to the guilt of accused No. 2 on the charge under Section 201, Indian Penal Code. The learned Judge found that the charge against accused No. 1 was not established, and accordingly acquitted him. He also found that the charge of the abetment of murder against accused No. 2 was not proved and acquitted him of that charge; he found him guilty under Section 201 and sentenced him to rigorous imprisonment for four years.
2. The Government of Bombay have appealed against the acquittal of accused No. 1 and we are now concerned with his case only.
3. It is not necessary to set forth the prosecution case in detail. The general outlines of the story have been stated in the second paragraph of the judgment of the lower Court at page 51 of the print which I adopt for the purpose of this judgment.
4. It is found by the trial Judge that the deceased Aba left Umberkanchan on the 23rd November 1917 for Kolekarwadi and was murdered on his way to that place on the very day, and this is not now disputed. The question in this appeal is whether the accused No. 1 is shown to be the murderer as alleged by the prosecution.
5. It is urged in support of the appeal, first, that the oral confession made by the accused No. 1 to the 2nd Class Magistrate of Patan on the 1st January 1918 has been wrongly excluded from consideration and that the said confession is true and voluntary; secondly, that the lower Court is wrong in treating the evidence of certain witnesses (Exhibits 21-25) as unreliable as regards accused No. 1; thirdly, that the accused No. 1 pointed out the scene of offence where some blood stains and the upper end of an umbrella which it is suggested is the broken end of the deceased's umbrella, were found, and, lastly, that the confession of accused No. 2 supports the prosecution case.
6. The first point relating to the admissibility of the oral confession raises an important question of law. In the lower Court the Public Prosecutor did not rely upon this confession, It has been relied upon by the learned Government Pleader here, and the question of its admissibility has been fully argued before us.
7. The facts which led up to the confession are these. The murder was committed on the 23rd November 1917. The fact of the murder was known on the 4th December when the dead body was discovered in the limits of Karale some miles away from Kolekarwadi. The police investigation commenced on the 20th December and until 30th December apparently nothing was known about the offenders. On the 31st December the accused No. 1 was arrested, and on the following day he was sent to the Second Class Magistrate at Patan for a remand. The evidence of the Magistrate is as follows:" The Sub-Inspector of Malhar Peith sent to me accused No. 1 Maruti Santu on 1st January 1918 for a remand. I understand that report to mean that the police wanted that the accused No. 1 should be remanded to their custody. Then I questioned accused No. 1. I also asked him if he was ill-treated or tortured by the police. Accused No. 1 complained of no torture or ill-treatment. I questioned accused No. I in respect of some property referred to in the Police Sub-Inspector's report. I did not reduce that statement to writing as there is a circular order of the District Magistrate prohibiting Magistrates from recording confessions in cases which are not triable by them. The statement which accused No. 1 made to me was voluntary statement on his part. I refused to hand over accused No. 1 to Police custody and kept him in my custody until he was sent to the Sub Divisional Magistrate, on the 9th January 1918."
8. It is clear that the alleged confession was made in the course of the police investigation and before the inquiry or the trial commenced. It could have been recorded under Section 164, Criminal Procedure Code, but was not recorded. The question is whether any oral evidence in proof of the confession is admissible or in other words whether the confession is required by law to be reduced to the form of a document within the meaning of Section 91 of the Indian Evidence Act.
9. At the outset I may mention that in my opinion the reason assigned by the Magistrate for not recording the confession does not affect the question of law. The circular of the District Magistrate referred to by the witness is not before us; and I am not prepared to accept the statement of the witness as accurately representing the effect of the circular. If what he states be right the District Magistrate has issued a circular which is directly opposed to the explanation to Section 164, Criminal Procedure Code, which provides that it is not necessary that the Magistrate recording a confession should be a Magistrate having jurisdiction in the case. It is quite possible that the so-called circular is merely a recommendation to the Magistrates to see that the directions contained in Supplemental Criminal Circular No. 17, Clause 2 C for the guidance of the police are duly followed. But whatever the circular may be, it cannot change the provisions of Section 164 and it has no legal effect so far as the present point is concerned.
10. I shall first consider the provisions of the Indian Evidence Act and the Code of Criminal Procedure bearing on this point without any reference to the reported cases. The generality of the provisions of Section 21 of the Indian Evidence Act relating to admissions is qualified by the provisions of Sections 24 to 29 relating to confessions. Section 25 renders any proof of a confession made to a Police Officer inadmissible Section 26 provides that no confession made by a person while he is in police custody can be proved against him unless it be made in the immediate presence of a Magistrate. This is subject to the provisions of Section 91 which provides that no evidence shall be given in proof of any matter which is required by law to be reduced to the form of a document except the document itself or secondary evidence of its contents when that is admissible. In the present case it is clear that no evidence is admissible to prove the contents of the confession if the confession is a matter required by law to be reduced to writing. This brings me to the provisions of Section 164 which provides for the recording of confessions in the course of an investigation under Chapter XIV or thereafter before the commencement of the inquiry or trial. It is urged that the provisions of Section 164 are merely permissive and have no compulsory force as the expression used in Sub-section. (1) is "may record". The confession in question was such as could have been recorded under Section 164 by the Magistrate. On a consideration of the provisions of the section and its obvious purpose it seems to me to be clear that such a confession is a matter required by law to be reduced to writing within the meaning of Section 91 of the Indian Evidence Act. Sub-section (2) provides that such confessions (i. e., confessions referred to in Sub-section (1) shall be recorded and signed in the manner provided in Section 364. The words of Section 364 are mandatory. Sub-section (3) requires that no confession shall be recorded unless the Magistrate has reason to believe that it is voluntarily made. The terms of the memorandum which the Magistrate is required to make at the foot of the record show the anxiety of the Legislature not only to see that a confession is voluntarily made and that it is accurately recorded but to convey an assurance with the record that the Magistrate making it was in fact satisfied at the time both as to its voluntary nature and as to its containing a full and true account of the statement. Taking the provisions of the section as a whole it seems to me that though the Magistrate has the power to refuse to record it if he is not satisfied that it is voluntarily made, he has no such option where he is satisfied that it is voluntarily made. The expression "may record" appears to have been used as the Magistrate has to ascertain whether the confession is voluntarily made. The section is no doubt permissive in that sense. But it is obligatory in the sense that it must be recorded if it is found to be voluntarily made. It is hardly consistent with the purpose and terms of this section to hold that the Magistrate has the option of refusing to record it, even when he is satisfied that it is voluntarily made, if it is to be proved as a confession later on.
11. The provisions of Section 583 have no direct application to the present case. But both its terms and its existence indicate, if at all, that a confession under Section 164 requires to be made in writing. Under this section oral evidence is admissible under certain circumstances when the record of the confession does not satisfy the requirements of Section 164. But the section has no application where there is no record of the confession and no attempt whatever has been made to comply with the provisions of Section 164. The fact that a provision is made to admit evidence within certain defined limits tends to indicate that no evidence outside those limits is intended to be admitted. Further the last clause of Section 533 which refers to Section 91 of the Indian Evidence Act also tends to show that the Legislature has impliedly acquiesced in the view that the record of a confession would be a matter required by law to be reduced to the form of a document.
12. In my opinion this construction of Section 164 is permissible in view of the observations in Maxwell on the Interpretation of Statutes, pp. 388,389 (5th Edition): "Statutes which authorise persons to do acts for the benefit of others or as it is sometimes said for the public good or the advancement of justice have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that 'they may' or 'shall if they think fit' or 'shall have power' or that 'it shall be lawful' for them to do such acts a Statute appears to use the language of mere permission; but it has been so often decided as to become an axiom that in such cases such expressions may haveto say the leasta compulsory force and so would seem to be modified by judicial exposition. On the other hand in some oases the authorised person is invested with a discretion and then those expressions seem divested of that compulsory force and probably that is the prima facie meaning." It is needless to cite instances of other Statutes, in which the word 'may' is held to have a compulsory force as after all whether the word 'may' has a compulsory force in a particular Statute must depend upon the terms and the purposes of that Statute,
13. An examination of the corresponding provisions of the Code of 1872 in the light of the decisions under that Code appears to me to support the same inference. Sections 122 and 346 of that Code correspond roughly to the provisions of SectionS 164 and 364 in the Code of 1382 and in the present Code. In the Code of 1872 there was no separate section corresponding to Section 533 of the Codes of 1882 and 1898; but the last para of Section 316 contained provisions of a limited scope which in the Codes of 1882 and 1898 took the wider form of Section 533. Under the Code of 1872 it was held by a Full Bench of this Court, and the view was followed in other cases, that where the record of a confession was inadmissible in evidence owing to some defect in recording it no evidence was admissible to prove the terms of that record and that a confession was a document that was required by law to be reduced to writing for the purpose of Section 91 of the Indian Evidence Act: see Reg. v. Bai Ratan (1873) 10 B.H.C.R. 166; Reg. v. Daya Anand (1874) 11 B.H.C.R. 44; Reg. v. Shivya (1876) I.L.R. 1 Bom 219; and Empress v. Daji Narau (1882) I.L.R. 6 Bom 288. In each of these cases there was some record of the confession which was held to be inadmissible. But the point of these decisions, as I read them, so far as it is relevant to this case, is that in spite of the use of the word ' may ' in Section 22 the confession was held to be a document required by law to be reduced to writing within the meaning of Section
91. It is likely that Section 533 was enacted to relax the rigour of this view. This section is more comprehensive than the last para of Section 346 of the Code of 1872. The history of these provisions suggests an inference in favour of the view which I take of Section
14. I may refer here to two decisions of the Chiof Court of the Punjab which the learned Government Pleader has invited our attention to. That Court held in Shere Singh v. The Empress (1881) P.R. No. 21 of 1881 and Buta v. Empress (1887) P.R. No. 52 of 1887 in effect that Section 164 merely authorised but did not require the Magistrate to reduce the confession to writing and that oral evidence to prove it was admissible. The later decision was under the Code of 1882 and there was some record, though a defective record, of the confession. The evidence sought to be admitted was clearly within the scope of Section 533 of the Code of 1882.
15. The earlier decision was under the Code of 1872 and in this case also there was some defective record of the confession. But there the learned Judges did not accept the view taken by the Full Bench in Bai Ratan's case. I do not see any reason why now we should be asked to ignore the view taken by this Court and to accept the view taken in the Punjab cases as a correct interpretation of Section 122. It is quite possible that Section 533 represents a compromise by the legislature between the two conflicting views. In the Code of 1882 the provisions of Sections 122 and 346 were reproduced with some modifications which do not affect the present point. The change effected by Section 533 does not touch this case. All that I feel concerned to point out is that a confession under Section 164 of the Codes of 1882 and 1898 requires no less to be in writing than one under the Code of 1872.
16. It is significant that the learned Government Pleader has not been able to cite a single instance in which a confession that could have been but was not in fact recorded under Section 64 was allowed to be proved by the oral evidence of the Magistrate to whom it might have been made. The case of Emperor v, Gulabu (1913) I.L.R. 35 All. 260 is against the contention urged on behalf of the Crown. 1 do not think that the fact that the Magistrate was conducting an inquiry in that case is sufficient to differentiate it from the present case. Here the accused was produced before the Magistrate for a remand apparently under Section 167 of the Code of Criminal Procedure and the provisions of Section 364 apply through Section 164. The ratio decidendi of that case would apply to the present case.
17. It is argued that it is anomalous that an oral confession made to any third person should be provable whereas such a confession made to a Magistrate should not be capable of proof. It is also urged that at any rate the evidence of the Magistrate in his private capacity should be held to be admissible. This argument ignores the distinction which the legislature has recognised between a confession made when the accused is free ( not in police custody ) and that made to a Magistrate in the course of an investigation under Chapter XIV. For reasons which it is not difficult to conjecture the legislature has provided a a special rule as to the recording of confessions made in the course of an investigation under Chapter XIV before the inquiry or the trial has commenced. And that rule must be given effect to. Besides the accused appeared before the witness as a Magistrate and the accused was questioned by the Magistrate in his official capacity and not as a private individual. 1 do not think it proper to draw a distinction which is not based on facts and which has the effect of defeating the pro-visions of law. It seems to me that the contention on behalf of the Crown is directly opposed to the policy of Section 64 and of the Criminal Circulars issued from time to time by this Court as to the recording of confessions.
18. Even if the oral evidence were admissible I do not see how it would be prudent to rely upon it, when such strict safeguards as are indicated by Section 164, Criminal Procedure Code, and the Criminal Circular No. 17 are considered desirable to ensure that the confession is voluntary and that it accurately represents what the accused has said. The oral evidence necessarily given after many days would lack that degree of assurance which the written record is expected and required to give. Anyhow as I feel clear that the confession said to have been made before the Magistrate of Patan cannot be proved, I need not consider any further the value of that confession.
19. The next thing relied upon by the Government Pleader is the evidence of the witnesses Exhibits 21-25 This is really the most important evidence against the accused; and I have given very anxious consideration to all that has been urged in favour thereof on behalf of the Crown. It is urged not without force that there is nothing to show why these five witnesses should falsely implicate accused No. 1. At the same time there are certain general considerations which cannot be ignored and which tell in favour of the accused. In the first place there is the broad consideration that a Court of Appeal has not the advantage of seeing the witnesses which the trial Court has, and when that Court has not been able to trust certain witnesses the Court of appeal should be slow to differ from that Court in its appreciation of that evidence. With regard to two out of these five witnesses the learned Judge has made definite remarks. One of them (Exh. 21) is said to have given his evidence in a reckless manner and the other (Exh. 24) did not favourably impress the learned. Judge. Generally speaking these witnesses failed to inspire the confidence of the trial Court and we have to give due weight to that fact. Secondly, all these witnesses knew about this murder if their evidence is true, on the 23rd November. They said nothing about it until the 30th December. The police investigation commenced on the 20th December and even then for ten days they did not break their silence. It must have been known in the village that the investigation was going on, and if any of the real culprits were minded to concoct a story to save themselves they had ample time and opportunity to do so. This circumstance derives some support from the fact that accused No. 2 adopted the unusual and rather suspicions course of going to Karad and surrendering himself to the Police there who had nothing to do with the investigation OR the 3lst December and of making a confession before the Magistrate at Karad on the 2nd. Accused No. 2 is a relation of Babaji and Laxman who are witnesses in the case. Thirdly, we have the fact that though these witnesses except Dhondi speak of the presence of accused No. 2 their evidence on that point has not been relied upon and that view of their evidence has been accepted or at least acquiesced in by the Crown, as there is no appeal against his acquittal on the charge of the abetment of murder Fourthly, we have the fact that three out of these five witnesses, viz., Aba, Laxman and Dhondi admittedly took part in the removal of the dead body; and it is obvious that they are interested in saving themselves from the suspicion which would otherwise attach to them as regards this murder. Lastly, there is nothing to show as to how these persons came to be known to the Police for the first time as witnesses who knew of the murder but were not concerned with it. They came rather suddenly on the scene on the 30th and 31st December and all of them except Dhondi said that accused No. ] had murdered the deceased in the presence of accused No. 2. These are in my opinion weighty considerations and while apparently there is a bulk of evidence in favour of the prosecution, its quality is open to question.
20. Now it is important to remember that the motive such as it is equally affects accused No Section and 2. It seems to me that the evidence in the case points rather to the general unpopularity of the deceased in the village of Kolekarwadi and not to any particular enmity with accused No. 1. It appears from the evidence of the witness Dnyanu (Ex. 18) that the deceased had conveyed a takid through him to the villagers to assist him in removing weeds from the forest plantation, and on the day of the murder he had asked the witness to inform one Govinda Taral of Kolekarwadi that he was going to Kolekarwadi that very day and that the villagers were wanted for removing the weeds. The witness bad conveyed the intimation. Thus it was probably known that he was going to the village that day, and the prospect of his presence for further work must have quickened the feelings against him in connection with the impounding of cattle. I do not see any particular force in the suggestion that the motive for the crime was probably the circumstance that the accused No Section and 2 had a special grievance against him in respect of the compensation which they along with two others had to pay to the Forest Department. But however that may be I do not see how accused No. 1 can be particularly singled out as having a special motive to commit this crime as distinguished from the witnesses or accused No. 2. The murder was committed in the field of the witness Laxman ( Ex. 23 ) whom the Judge suspects as being probably concerned in the murder. Such property as is identified is produced by the witness Laxman and accused No 2 Laxman produced the umbrella with the broken end belonging to the deceased and accused No. 2 produced the axe and the penknife which belonged to the deceased. The explanation which the three witnesses who helped in the removal of the dead body have given as to how they came to be called by accused No. 1 to help him is entirely unsatisfactory. There is nothing on the record beyond the fact that he is the son-in-law of the Patil to show that accused No. 1 is a man with any particular influence in the village. Under these circumstances the evidence of these witnesses must be viewed with great caution and suspicion when they say that accused No. 1 alone murdered the deceased. It is needless to discuss this evidence in detail. I do not attach any importance to minor discrepancies in their evidence. I have considered this evidence with care and I am not satisfied that they state the truth when they attribute the whole responsibility for the actual murder to accused No. 1; no doubt the assessors have believed them as to accused No. 1; but they find on that evidence that accused No. 2 is not guilty. I am unable to accept that appreciation as either consistent or satisfactory.
21. The learned Judge was not prepared to rely upon this evidence and I cannot say that he was wrong in withholding his confidence from this evidence as regards accused No. 1.
22. I have no doubt in this case that the deceased was murdered on his way to Kolekarwadi by the villagers; and it is possible that the accused No. 1 may have been the murderer or one of the murderers. I have considered the theory that accused No. 1 is at least one of the murderers, But on the evidence which is led to show that he was the murderer, it is difficult to accept that theory. On this evidence it is as likely as not that he was concerned only in the removal of the dead body like some of the witnesses and not with the murder. I do not think that the evidence is sufficient to establish his guilt on the charge of murder.
23. The circumstance that he pointed out the scene of offence where the broken end of an umbrella, probably the umbrella of the deceased, was found at some distance does not carry the case against him any further. It shows his knowledge of the place of murder; but there are several witnesses who have that knowledge and if they can possess that knowledge without being guilty of murder 1 do not see any reason why in the case of accused No. 1 any further inference should be drawn. This knowledge is consistent with his innocence on the charge of murder.
24. Lastly, the confession of the co-accused made before the Magistrate at Karad is relied upon as showing the guilt of accused No. 1. Apart from the obvious infirmity of such a confession when it is retracted before the Committing Magistrate and at the trial, as in this case, I do not see how this confession can be any better evidence than the evidence of the witnesses which I have already dealt with. It would be rather anomalous that a confession made by a person which is not good enough to establish his own guilt, should be relied upon to establish the guilt of a co-accused. Even treating him as a witness, which he is not, I would not trust him as regards accused No. 1 having regard to his subsequent retractations and his suspicious conduct in going to Karad, and in making the confession there. I have dealt with these items of evidence separately. But taking them all together I am not satisfied that accused No. 1 is shown to be guilty of murder.
25. I would therefore dismiss the appeal. The bail bonds to be cancelled. It is to be regretted that the brutal murder of the forest officer remains unpunished. It may be possible, however, to initiate proceedings, if they have not been already initiated, against the persons concerned in the removal of the dead body under Section 201, Indian Penal Code.
26. The accused Maruti Santu has been acquitted of the charge of the murder on the 23rd November 1917 of the forest beat guard Aba Gudhan in Kolekarwadi, a forest village in the Taluka of Patan, The two assessors were of opinion that the accused was guilty but a different view was taken by the Additional Sessions Judge of Satara Hence this appeal by the Government of Bombay.
27. The accused Maruti had suffered together with other villagers for grazing cattle without permission in the forest of Kolekarwadi which was in the beat of Aba Gudhan and no love was lost between the villagers and the forest guards as explained by witness No. 6, the forest round guard Laxman Dhondi, and witness No. 2, the range forest officer Mr. Lobo. On the 23rd November 1917 Aba Gudhan sent word through the witnesses No Section and 9, Dnyau and Govinda Mahars, that he wanted the villagers to help in weeding the forest plantation and the same day set out for Kolekarwadi. He carried his axe of office and his umbrella and was helped by the witness No. 10, Daji Mahar, on his way to Kolekarwadi. It is alleged that the accused Maruti Santu and another Maruti named Maruti Raoji met Aba Gudhan that same afternoon and that Maruti Santu struck him on the head with an axe while Maruti Raoji was struggling with him. This was seen from ninety yards off by witness No. 12, Aba Santu, and from a greater distance by witness No. 11, Babaji Baloo. The two Marutis were also seen standing besides the prostrate man by the other men who were attracted by their cries namely witnesses No Section 3 and 14, Laxman and Daulata. This occurred in the Nagli fields in the hills of the village of Kolekarwadi. It is further alleged that the two Marutis that same night forced the witnesses Aba Santu and Laxman and witness No. 15, Dhondi, to help them take the dead body seven miles off into the forest of the village of Karale. It was there found on the 3rd December 1917 and showed three axe-wounds on the head upon examination by the Sub-Assistant Surgeon. The two Marutis were implicated by an informer on the 30th December 1917. Maruti Santu pointed out the scene of the murder, on the 31st December 1917, where blood was found and the broken end of the umbrella of Aba Gudhan. He was arrested and admitted his guilt but the admission was not recorded in writing on the 1st January 1918 by the 2nd Class Magistrate of Plan. The rest of the umbreila was produced the same day by the witness Laxman and a two anna piece removed from the dead body was also produced by the witness Dhondi, Maruti Raoji subsequently produced the penknife and axe of Aba Gudhan. He had admitted his guilt after surrender and the admission had been recorded in writing on the 2nd January 1918 by the. First Class Magistrate of Karad. The Assessors were both satisfied on this evidence of the guilt of Maruti Santu but not of the guilt of Maruti Raoji. They were divided as to the guilt of Maruti Raoji of the minor offence of getting rid of evidence of the murder. The Additional Sessions Judge disagreed with them as to the guilt of Maruti Santu and agreed with one of them as to the guilt of Maruti Raoji of the minor offence of getting rid of evidence of the murder. This appeal relates to the acquittal of Maruti Santu of the murder. No appeal as regards Maruti Raoji has been made by the Government of Bombay.
28. It is clear on these facts that the decision depends mainly on the weight to be given to the evidence of the witnesses Aba, Babaji, Laxman, and Daulata. Aba was certainly a direct witness and some of the criticisms in the judgment would hardly appear justified on the record but at the same time he was himself implicated in the removal of the dead body and has given an improbable explanation of his help in that matter. Babaji was no doubt an unsatisfactory witness, He denied any direct knowledge of the matter until cross-examined as to what he had stated to the Committing Magistrate. Laxman and Daulata were again not entirely satisfactory. They both gave rather improbable explanations of their help being sought for the removal of the dead body and it was Laxman who produced the umbrella while the witness Dhondu, who also assisted in the removal of the body produced the two anna piece said to have belonged to the deceased. It ought not moreover to be forgotten that these witnesses did not relate their version of the matter till more than a month after the murder. The Assessors believed these witnesses and their statements have indeed left the impression on my own mind of substantial truth but they no doubt laboured under the infirmities indicated and it would not be possible therefore profitably to press this view against those held both by the Additional Sessions Judge and my learned brother.
29. The confessions do not materially modify the position. The confession of Maruti Santu was oral and not entitled to great weight in view of the fact that it was not thought worth while to take the usual steps to have it formally recorded in writing. It was, however, prirna facie relevant under Section 1 and 24 to 26 though it had to be proved by oral testimony and not by the production of any writing duly recorded by any Magistrate under Section 80 of the Indian Evidence Act The confession of Maruti Raoji on the other hand though recorded in writing was not one " affecting himself " as regards the murder. It really exonerated himself from the murder. It was, therefore, not relevant against any other person tried jointly for the murder under Section SO though it had been duly proved by the production of the writing recorded by the First Class Magistrate under Section 0 of the Indian Evidence Act. It is not strictly necessary in this view to discuss whether the oral statement was not irrelevant as matter required by law to be reduced to writing within the meaning of Section 91 of the Indian Evidence Act by reason of the provisions of Sections 164 and 533 of the Criminal Procedure Code. It seems desirable however to point out that oral statements during investigations have nowhere expressly been required to be reduced to writing. It was, therefore, held in Reg. v. Uttamchand Kapurchand (1874) 11 B.H.C.R. 120 that oral statements were not rendered irrelevant under Section 91 of the Indian Evidence Act by reason of the reference to the writing in Section 162 of the Criminal Procedure Code; though it was assumed on the other hand in Reg. v. Bai Ratan (1873) 10 B.H.C.R. 166, 179 that oral statements were rendered irrelevant under Section 91 of the Indian Evidence Act by the permission to record them in writing given to Magistrates under Section 164, Criminal Procedure Code. The assumption though subsequently repeated requires scrutiny as the word used was 'may' record and not 'shall' as in the provision relating to record of evidence on enquiries and trials, and 'may' could never mean 'shall' so long as the English language should retain its meaning as declared in In Re Baker: Nichols v. Baker (1890) 44 Ch.D. 262, 270 by Cotton L. J. If the statements should be recorded in writing under the permissive power, then no doubt they 'shall' be recorded in a particular manner and 'shall' have a memorandum at the foot as to the manner in which they were recorded and no doubt the manner in which they were recorded would be matter required by law to be in writing and no other proof of that matter would have been relevant but for the exclusion of Section 91 of the Indian Evidence Act by Section 533 of the Criminal Procedure Code. But if the statements should not be recorded in writing under the permissive power, then they would be unaffected either expressly or impliedly by reference to the provisions of Section 91 of the Indian Evidence Act in provisions relating to proof of the recorded writings under Section 533 of the Criminal Procednre Code. If, moreover, it was intended to make oral statements, which would be relevant when made to private persons, irrelevant when made to Magistrates, then there would surely have been express provision that such statements should not be proved except by writings duly recorded by Magistrates. It would not have been left to mere implication from the provisions relating to the manner of pro of of such writings when recorded by Magistrates under Section 533 of the Criminal Procedure Code. This was no doubt urged without, success in Emperor v. Gulabu (1913) I.L.R. 35 All. 260 before a bench of the Allahabad High Court. But it should in my opinion be given further reflection with due deference to those learned Judges should the matter hereafter be brought up in this Court.