Secs. 188-190.

Such withdrawal from the prosecution shall have the effect of an acquittal of the accused person.

In the debate on the Bill, and on the motion that certain paragraphs be inserted before this section 188 as part of this section, the LieutenantGovernor of Bengal remarked that, "You might go through hundreds of cases that would fall within the provisions of Section 148, and ought not to be compounded, and there might be many other cases which were not included in the amendment, but which ought to be compoundable." And Mr. Stephens remarked "the fact was that, until a law was introduced which defined actionable wrongs in the way in which we had tried to define contracts, you would not be in a position to say what offences were compoundable and what offences were not compoundable. The only other way of doing the thing was to go through the schedule to the Code of Criminal Procedure, case by case, and add a column stating what offences were compoundable and what offences were not compoundable.

CHAPTER XV.

This chapter contains the provisions of Chapter XII, Act XXV of 1861, as amended by Act VIII of 1869, Sections 193, 194, 201, 202, 224 225, 226, 227, 230, 231, and Section 233, Chapter XIII, Act XXV

of 1861.

OF INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR HIGH COURT.

189. The following procedure shall be adopted in inProcedure in preli- quiries before Magistrates in cases triable by a Court of Session or High Court.

minary inquiries.

Examination of com

for prosecution.

190. When the accused person appears or is brought before the Magistrate, or, if his personal plainant and witnesses attendance is dispensed with, when the Magistrate thinks fit, the Magistrate shall take the evidence of the complainant and of such persons as are stated to have any knowledge of the facts which form the subject-matter of the accusation and the attendant circumstances.

There is nothing to prevent a person, who has been suspected and apprehended for an offence, from being examined as a witness on his discharge by the Magistrate, Beharydal Bose, 7 W. R. 44. Where there is no community of interest, any one of a number of accused persons jointly charged with the commission of an offence, may be called as a witness for or against his fellow prisoners; but where they all stand charged with the same offence, and have each a similar interest in obtaining a discharge, their evidence cannot be received. Ashreef Sheik, 6 W. R. 91, Bhekoo Sing, 7 W. R. 72.

The Rule, in both Civil and Criminal Cases in England, is that a witness sworn and examined, though even for the formal proof of a document, becomes a witness for all purposes. 8 W. R. 1 19.

191. The complainant and the witnesses for the proseExamination to be cution shall be examined in the presence of in presence of accused. the accused person, or of his agent when his personal attendance is dispensed with and

he appears by agent.

The accused person or his agent shall be permitted to examine and re-examine his own witnesses and to cross-examine the complainant and his witnesses.

Accused may crossexamine.

In the presence of the accused person.-It is necessary that the examination. of witnesses should be held de novo in the presence of the subsequently apprehended prisoners in the same case, as if the case were entirely new, and the witnesses had not been examined before. Letter No 613 of 1863, p. 236, vol. I., R. J. P. J.

The accused must be present as an accused party, and must be allowed to cross-examine the witnesses against him, and make his defence. (V., R. C. C. R., p. 41). Witnesses for the prosecution should not be allowed to give evidence as to prisoner's bad character. II, Bom. H. C. R., p. 131).

Where the complainant and witnesses for the prosecution were not examined in the presence of the accused or his agent, it was held that the proceedings were irregular, and the commitment was quashed. XI, W. R., p. 22. Upon trial of a prisoner it is illegal to read over to witnesses their depositions taken at a former trial, and ask them if they are true. Queen vs. Kalundar Doss. Criminal Appeal, 25th February, 1870. H. C. N. W., P. R., vol. 2, Part II, p. 100.

192. The Magistrate may at any stage of the proPower of Magistrate ceedings summon and examine any person to summon and exa- whose evidence he considers essential to mine any person. the inquiry, and recall and re-examine

any person already examined.

Any person. This section gives the Magistrate power to summon the prosecutor, if he does not voluntarily appear, and his evidence is necessary. W. R. C. R., No. 778, 1867.

The words "recall, and re-examine any person already examined," have been added by Act X of 1872.

Examination of ac

193. The Magistrate may from time to time, at any stage of the inquiry and without previously warning the accused person, examine him, and put such questions to him as he con

cused.

siders necessary.

The accused person shall not render himself liable to punishment for refusal to answer such questions, or for giving false answers to them, but the Magistrate shall draw such inference as may to him seem just from such refusal.

Explanation.-The answer given by an accused person may be put in evidence against him, not only in the case under inquiry, but also in trials for any other offences which his replies may tend to show he has committed.

See notes under Section 250 post regarding non-responsion or false responsion.

At any stage. Although the Criminal Procedure Code does not make it imperative on a Magistrate to examine an accused person at any stage of the inquiry before committing him to stand his trial at the Court of Session, the Court think it necessary to impress upon all Magistrates the expediency of the general adoption of this course at some stage or other of the inquiry. High Court Circular No. 13, 1864. Neither examination nor defence of an accused person should be recorded before the deposition of the complainant. Letter No. 627 of 1863, p. 236, vol. I., R. J. P. J.

The discretionary power here given should be used to ascertain from accused how he can explain facts adduced in evidence against him, and not to drive or entrap him into making self-criminatory statements. I.,

570

CODE OF CRIMINAL PROCEDURE.

Madras H. C. R., p. 199.

CHAP. XV.
Sec. 193.

Questions must not be put to the prisoner in the middle of the case for the prosecution, so as to supplement their case when it is defective. III., Bom., H. C. R., p. 51.

The procedure to be observed in the examination of European British subjects charged with the commission of any criminal offence is laid down in 11 and 12 Vic., c. 42, Section 18, which is here quoted for ready reference :—

"After the examination of all the witnesses on the part of the prosecution as aforesaid shall have been completed, the Justice of the Peace, or one of the Justices by or before whom such examination shall have been so completed as aforesaid, shall, without requiring the attendance of the witnesses, read or cause to be read to the accused, the depositions taken against him, and shall say to him these words, or words to the like effect; 'Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything, unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you upon your trial;' and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said Justice or Justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards, upon the trial of the said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the Justice or Justices purporting to sign the same did not in fact sign the same: provided always that the said Justice or Justices before whom such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission on confession of his guilt, and that whatever he shall then say may be given in evidence against him upon his trial, notwithstanding such promise or threat." But by the provisions of this section 193, it is apparent that the magistrate may make enquiry of the accused without previously warning him: this is a departure from the general policy of English Law, accordingly I have given the Lieutenant Governor of Bengal's reasons for this departure.

Not render himself liable to punishment.-Nemo tenetur se ipsum accusare. No man can be compelled to criminate himself. The general policy of our law is in accordance with the rule above stated. A Justice of the Peace, therefore, before receiving the statement of the accused is required under Statutes 11 and 12 Vict. c. 42, s. 18, to administer him the caution therein specifically set forth. A witness also is privileged from answering not merely where his answer will criminate him directly, but where it

CHAP. XV.

Secs. 193-194.

CODE OF CRIMINAL PROCEDURE.

571

may have a tendency to criminate him. (Ex. B. L. M., 4th Edition, p. 931).

A Magistrate is not wrong in telling a prisoner that he is not bound to answer, but that if he objects to answer the fact will be noted; this amounts to neither threat nor inducement. Nabadwip Gowsami, 1 B. L. R., 23.

The following are Mr. Campbell's views on the subject of this section and Section 250 post, as contained in his reported speech on the C. C. P. Bill:-"The criminal law was, as the Honourable Member had said, a law of overwhelming importance in this country; he meant not only the law for the administration of criminal justice, but the executive administration as carried on through the Magistrates. The prevailing ideas on the subject of criminal law had been somewhat affected by the English law; and the departures from the rules of the English law which the Committee recommended were founded on this ground, that many of the prominent parts of the English law were based on political considerations, the object of those familiar rules of criminal law being not to bring the criminal to justice, but to protect the people from a tyrannical Government, and the functions of juries of the people having been for many centuries principally directed to the protection of the interests of the people. Not only were those provisions now unnecessary in England, but they were especially out of place in a country where it was not pretended that the subject enjoyed that liberty which was the birth-right of an Englishman; and it was not intended to introduce rules into the criminal law which were designed with the object of securing the liberties of the people. That being so, His Honour thought they might fairly get rid of some of the rules the object of which was to secure for the people that jealous protection which the English law gave to the accused. It seemed to him that they were not bound to protect the criminal according to any code of fair play, but that their object should be to get at the truth, and anything which would tend to elicit the truth was regarded by the Committee to be desirable for the interests of the accused if he was innocent, for those of the public if he was guilty. That being so, he would say that he had no sympathy whatever for some of those things which his honourable friend, Mr. Stephen, had called superstitions. For instance, His Honour did not see why they should not get a man to criminate himself if they could; why they should not do all which they could to get the truth from him; why they should not cross-question him, and adopt every other means, short of absolute torture, to get at the truth."

194. If, from the absence of a witness or from any other Adjournment of in- reasonable cause, it becomes necessary or advisable to defer the examination, or

quiry and remand.