Secs. 325-326.

325. Any document purporting to be a report from the Report of Chemical Chemical Examiner or Assistant Chemical Examiner to Government, upon any matter

Examiner.

or thing duly submitted to him for examination or analysis and report, in the course of any criminal trial, or in any preliminary inquiry relating thereto, may, if it bears his signature, be used as evidence in any criminal trial.

The words given in italics have been added to this section by the present Act X of 1872, and further it has been left optional to the Court to use the report (herein referred to) as evidence; the old law had it "shall be received in evidence."

The Court may presume that the signature of any such Genuineness of sig document is genuine, and that the person nature may be pre- signing it held the office which he professed to hold at the time when he signed it.

sumed.

A Report. If the report referred to in this section is put in as evidence by the prosecution, it should be read before the prisoner is called upon for his defence. Cir. C. H. C. No. 11 of 2nd September, 1867. It must be borne in mind that the original report of The Chemical Examiner bearing his signature should be put in evidence, a copy of such report is not evidence under this section. R. vs. Bishumbur Doss, 15 W. R. 50.

326. Where a previous conviction or acquittal is to be Previous conviction proved against an accused person, applior acquittal how cation shall be made to the officer in proved. whose custody the records of such trial may be. It shall not be necessary to produce the record of the conviction or acquittal of such accused person, or a copy thereof, but an extract may be produced in proof of such conviction or acquittal if certified, under the hand of the Clerk of the Court or other officer having the custody of the records of the Court in which such conviction or acquittal was had, or by the Deputy of such Clerk or officer, to be a copy of the charge, finding, and sentence, as the case may be.

Secs. 327-329..

in the absence of the accused.

327. If an accused person abscond, and after due purRecord of evidence suit cannot be arrested, any Court competent to try or to commit such accused person for trial for the offence complained of may, in his absence, record the statements of the persons acquainted with the facts, and such depositions may, on the arrest of such person, be put in on his trial for such offence if it is not practicable to procure the attendance of such witnesses.

Convictions on evidence partly recorded partly by another.

328. Whenever any Magistrate, after having heard part of the evidence in a case, ceases to exercise by one Magistrate and jurisdiction in such case and is succeeded by another Magistrate who has and who exercises jurisdiction in such case, such magistrate last named, may decide the case on the evidence partly recorded by his predecessor and partly recorded by himself, or he may re-summon the witnesses and commence afresh.

Provided that the accused person may, when the second Magistrate commences his proceedings, demand that the witnesses shall be re-summoned and reheard, in which case the trial shall be commenced afresh.

Provided also that any Court of Appeal or revision, before which the case may be brought,

Or, in cases tried by Magistrates subordinate to the Magistrate of the District, the Magistrate of the District without appeal,

May set aside any conviction passed on evidence not wholly recorded by the Magistrate before whom the conviction was had, if such Court or Magistrate shall be of opinion that the accused person has been materially prejudiced thereby, and may order a new trial.

329.

Whenever from any cause any Magistrate making

by another valid.

Secs. 329-330.

Commitments on evi- an inquiry, under Chapter XV of this Act, dence partly recorded is unable to complete the proceedings by one officer and partly himself, any other Magistrate having jurisdiction to inquire and to commit, may complete the case and proceed as if he had recorded all the evidence himself.

may issue.

330. Whenever it appears that the attendance of a When a commission witness cannot be procured without an amount of delay, expense or inconvenience which under the circumstances of the case would be unreasonable, it shall be competent to a Court of Session or to a High Court to dispense with the personal attendance of such witness.

commission.

Such Court of Session or High Court may direct a comMode of issuing mission to the Magistrate of the District, or to a Magistrate of the first class, in whose jurisdiction such witness may be. The Magistrate to whom the commission is directed shall proceed to the place where such witness is, or shall summon such witness before himself. Such Magistrate shall take the evidence of such witness in the same manner, and shall have for this purpose and may exercise the same powers, as in trials of warrant cases.

witness.

The prosecutor and the accused person may forward inProsecutor and ac terrogatories to which the officer to whom cused may examine the commission is directed shall cause a return to be made, or the prosecutor may appear personally before the Magistrate to whom the commission is directed, or the prosecutor or accused person may so appear by authorized agent.

Procedure when com

Whenever, in the course of a trial before a Magistrate, it shall appear that a commission ought to be issued for the examination of a witness whose evidence is necessary in such trial, such Magistrate shall apply to the Court of Session, to

mission is required in Magistrate's cases.

Secs. 330-331.

which he is subordinate, stating the reasons for the application; and such Court may either issue a commission in the manner herein-before provided, or may reject the application.

CHAPTER XXV.

EVIDENCE HOW TAKEN.

331. In all Criminal Courts, complainants and witnesses Examination of com- shall be examined upon oath or affirmation, plainants and witnesses. or otherwise, according to the provisions of the law for the time being in force, in relation to the examination of witnesses.

Act VI of 1872 contains the law relating to oaths and affirmations. Section 3 declares that every person who may by law be sworn or called upon to make a solemn affirmation may, if he objects to such oath or affirmation, make a simple affirmation. The question is whether any person can by law be sworn or called upon to make a solemn affirmation in this Province (Oudh). The point is one involved in some doubt, and I deem it advisable to express my opinion on it for general information and guidance.

In Foreign Department letter of February, 1856, no express instructions were issued in regard to the administration of oaths or solemn affirmations. The broad principle on which the administration was to be conducted was that it was to conform as nearly as possible with the system which had been introduced in the Punjab. There can be but little doubt that the solemn affirmation prescribed by Act V, 1840, was universally administered in the Punjab, and that it was prior to the outbreak of 1857, similarly administered in Oudh.

In 1858, in consequence of some observation contained in a minute drawn up by the Chief Commissioner, the Government of India, in Foreign Department letter No. 3502, dated 6th October, 1858, issued the following instructions. "In regard to oaths, the Governor-General

observes that the Courts both Civil and Criminal should be allowed to administer oaths in the form which may be ascertained to be the most binding on the conscience of the witness. The Governor-General has reason to believe that the 'solemn affirmation' as it is called under Act V of 1840, is not in the least degree respected in."

VIII

. Secs. 331-332.

These instructions do not expressly direct that oaths are under all circumstances to be administered and not solemn affirmations; they rather permit the Courts to have recourse to the administration of oaths, whenever they think fit to adopt such a course. My predecessor, however, did not read the instructions in this light; for in his Circular No. 83 of 1859 (Oudh Judicial Rules page 24) he directed that all Mahomedans should be sworn on the Koran, and ordinary Hindoos on the Ganges water; and remarked that for the lowest tribes there were peculiar forms of oaths.

Under these instructions, oaths came to be generally administered in lieu of a solemn affirmation until 1864, when the Government of India, under Resolution No. 172 of 15th March 1864, introduced Act V of 1840. The correspondence which led to the issue of this Resolution, was published with Judicial Commissioner's Circular No. 20 of 1864.

At the time this Resolution was passed, Act I of 1865 had not been enacted, and it is doubtful whether the Governor-General in Council had any legal authority to extend any Act not containing an extension clause. The question however is immaterial, for in my view of the law there was no necessity for the formal extension of Act V of 1840, the administration of a solemn affirmation having been authorised by the general instructions contained in Foreign Department letter of February, 1856; those instructions not having been cancelled but merely modified by the later instructions of October, 1858.

I am of opinion, then, that the Courts both Civil and Criminal in this Province, are authorised to administer a solemn affirmation under the general instructions of February 1856, and that they are further authorised to administer oaths whenever they consider an oath will be more binding than a solemn affirmation under the instructions of October 1858. If they administer a solemn affirmation they must do so in the form prescribed by Act V of 1840; but if they administer an oath they may do so in any form which may be ascertained to be most binding on the conscience of the witness.

Under the provisions of Act VI of 1872, a person called upon to take an oath or make a solemn affirmation may, if he objects to such oath or solemn affirmation, make in place thereof a simple affirmation.

Section 4 of the Act embodies an amendment proposed by His Honor the Lieutenant-Governor of Bengal, and is much to the same effect as para. 2 of Mr. Campbell's Circular No. 83 of 1859, which Circular, together with Circular No. 20 of 1864, may now be deemed cancelled.J. C. O. Book Circular X of 1872.

332. In inquiries and trials (other than summary trials) under this Act the evidence of the wit

Manner of recording evidence.

nesses shall be recorded by the Magistrate