CII. XXXIII. witness in the form of a narrative, and shall sign it when taken down, and that the evidence so taken down shall form part of the record. If the magistrate or judge does not take down the evidence in his own hand (which usually happens if it is not given in his own language), it must be taken down in his presence and hearing, and he must, as the evidence is given, make a memorandum of the substance of it. The evidence is also to be read over to the witness in a language which he understands, and if he wishes to make any correction, the judge may either correct it accordingly or note the fact that the witness desired to correct it. The judge is also to make such remarks as he thinks fit as to the demeanour of the witness.

I have often heard officers complain of the stiffness of the Code of Criminal Procedure and of its not being suitable to the purposes of rough and wild districts; and in such cases I have invariably made the following remarks,—first that the complainants, on being asked which parts of the Code they objected to, always referred to the provisions as to taking evidence in their own hands and signing it; next that these complaints were usually made by the less energetic officers. 2 In former times the evidence of witnesses in criminal and other cases was not taken by magistrates, though it was taken in their presence. The magistrate might hear what the witness said, but three or four mohurrirs (native clerks) would take down simultaneously the evidence of as many witnesses, and the notes of the mohurrirs put together made up the record. Of course this saved the magistrates infinite trouble, and enabled them to get through an immense number of trials, but it was practically a denial of justice. A careful record of the evidence by the person responsible for acting upon it is an absolutely indispensable security for the justice of the decision, and it seems to me that if a trial takes place in a wild district, and amongst rough, uncivilized people, the necessity for such a record is greater than it would be under other circumstances, for the chance of injustice is greater.

1 C.C.P. s. 363.

2 There is a curious and vivid account of this in Sir John Shore's Notes.

2

At all inquiries or trials 1" for the purpose of enabling the CH. XXXIII. "accused to explain any circumstances appearing in the "evidence against him, the court may at any stage of the "inquiry or trial, without previously warning the accused," question him. The court must, "for the purpose aforesaid, "question him generally on the case after the witnesses have "been examined." The examination must (except in the High Courts and the Chief Court of the Punjab) be recorded in question and answer, and read over to the accused, who may explain or add to his answers. His examination is to be signed by the magistrate or judge, who, if he does not actually record the examination, is at all events to take a memorandum of it as it proceeds.

The words specifying the purpose for which questions are to be asked were not in the Code of 1872, which authorised the examination of the accused without assigning any reason for it. Perhaps the expression was introduced in the Code of 1882 in order to soften what many people consider a harsh. proceeding. For my own part I regret the alteration. It will either be inoperative or most embarrassing, and it looks like an apology for what does not require one. It is, however, hypocritical, for the Code contains no provision as to what is to happen if the questioning does not conform to the directions of the Code, and it specifically enacts that "the "court and jury (if any) may draw such inference from" the refusal of the accused to answer or from his answers as they please. Besides, in practice, every question any one could want to ask might be justified by the terms of the section; e.g." The witnesses say they saw you at this place. "Were you there or not, and, if not, where were you?" The words thus make hardly any difference.

The effect of the evidence given before the magistrate may differ according to the nature of the offence imputed.

The case may be one which the magistrate is competent to dispose of himself, and which he thinks would be sufficiently punished on conviction by the exercise of his judicial powers. In this event he may proceed to try the case. The trial of

1 C.C.P. s. 312.

2 C.C.P. s. 364.

CH. XXXIII. summons cases and warrant cases is provided for in 1 separate chapters of the Code, but the only differences between them are, that a formal charge is made in warrant cases and not in summons cases, and that in summons cases but not in warrant cases if the magistrate regards the charge as frivolous and vexatious he has power, not only to dismiss it, but to award compensation up to R50 against the person by whom it is made. The trial itself takes the same course as an English trial. The case is opened, the witnesses for the prosecution are heard, the prisoner examined as above mentioned. He is then heard in his defence. His witnesses are called, and the prosecutor replies, after which the magistrate acquits or convicts and sentences.

In some cases of minor importance the magistrate of the district is allowed to try in what is called a summary way. In such cases the evidence is not recorded, but a short form is filled up, similar to those in use in small cases in Ireland. Sentence may not be passed of more than three months' imprisonment, accompanied, if the law permits it, by fine or whipping. If the sentence is simple, there is no appeal. If it is compound, there is an appeal, and, in order that there may be something to appeal from, a judgment, "embodying "the substance of the evidence" and also certain particulars specified, must in such cases be recorded before sentence is passed.

4 The magistrate, however, may not be competent to try the charge brought against the accused, or may consider that the case ought to be sent for trial before the court of sessions. If so, he hears the evidence on both sides, examines the accused, and either dismisses him or commits him for trial.

I pass over many details provided for in the Code as to the manner in which the prisoner's witnesses are to be summoned, and other matters of no general interest. The only point which I need notice is that in India there are no grand juries. There used to be such bodies in the High Courts till 1865, when they were abolished by an act which was introduced by Sir Henry Maine. The committing magistrate is now the 1 Summons cases, ch. xx. ss. 241-250; warrant cases, ch. xxi. ss. 251-259. 2 C.C.P. ss. 260-265. 3 C.C.P. s. 264. 4 C. C. P. ss. 206-220.

accuser, and it is his duty to draw and forward the charge, CH. XXXIII. which answers to our indictment. 1 The law relating to charges is laid down at considerable length in the Code. Its provisions are intended to provide that the charge shall give the accused full notice of the offence charged against him, but that the only result of any defect in the charge shall be an amendment in terms as to delay, or a new trial if the accused seems to have been misled.

Various matters as to the joinder of different charges, variances between the charge and the evidence, and the charging of more persons than one, are dealt with, which I pass over as too detailed to be here noticed. The following is a specimen taken from the schedule of forms of an Indian indictment for high treason:

(a) "I" (name and office of magistrate) "hereby charge you (name of accused person) "as follows

waged war against Her Majesty the Queen, Empress of India, and thereby committed an offence punishable under Section 121 of the Indian Penal Code, and within the cognizance of the Court of Session.

(c) And I hereby direct you to be tried by the said Court on the said charge."

When committed, the prisoner is tried by the High Court if the committal is by a Presidency magistrate, or by the Court of Session as the case may be. The trial must be either by jury or with the aid of assessors.

Much the commoner case of the two is trial with the aid of assessors. I am unable to say how matters stand at present, but when I left India in 1872 trial by jury was unknown, except in the Presidency towns, in a few districts, principally in Bengal, in which it applied only to minor cases, and in the case of European British subjects. The local governments may introduce it in such districts and with regard to such classes of cases as they think fit. In both cases the trial follows the same course as in England. The prisoner pleads guilty or not guilty, or if he refuses to plead

2

1 Ss. 221-240. I drew these sections in the Code of 1872. They are reenacted with little alteration. 2 C.C.P. ss. 266-307.

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CH. XXXIII. the court proceeds without a plea-a more rational course than entering a plea of not guilty. He may also, I suppose, plead that he has been previously convicted or acquitted, in terms similar to those in force in England as to pleas of autrefois acquit and convict. The prosecutor opens his case and calls his witnesses. The prisoner is examined. If he does not call witnesses, the prosecutor sums up. The prisoner makes his defence and calls his witnesses, and the prosecutor replies. If there is a jury the judge sums up. If there are assessors he may sum up, and must require the opinion of the assessors, which is recorded, but does not bind the judge. There are two assessors.

2 The number of the jury is in the High Courts nine, and in the Courts of Session where there are juries, three, five, seven, or nine, as the local government may direct. Eight peremptory challenges are allowed to both the prosecutor and the prisoner, and any number for cause. 3 The functions of the judge and jury respectively are the same as in England, but are expressed with more emphasis than would be considered right in England. "It is the duty of the jury (a) to decide which view of the facts is true, and then to return the verdict which under such view ought, according "to the direction of the judge, to be returned."

ILLUSTRATION.

A. is tried for the murder of B.

It is the duty of the judge to explain to the jury the distinction between murder and culpable homicide, and to tell them under what view of the facts A. ought to be convicted of murder, or of culpable homicide, or to be acquitted.

It is the duty of the jury to decide which view of the facts is true, and to return a verdict in accordance with the direction of the judge, whether that direction is right or wrong, and whether they do or do not agree with it.

If the jury are unanimous in the High Court, their verdict must be taken. If six of them agree, and the judge agrees with the six, the judge must give judgment accordingly. If the judge disagrees with the six, or if a

1 C.C. P. s. 403. This section seems misplaced. It is put in a chapter by itself after Execution and Pardon. There ought to be a chapter, or at least provisions, as to Pleas following the provisions as to Charges. S. 403 says that persons previously acquitted or convicted are not to be tried again, but it does not say, as it ought, how this defence is to be made.

2 C.C. P. ss. 274-283.

3 C.C.P. s. 299.

C. C. P. ss. 303-305.