N. Ibotombi Singh, J
1. Six accused were put on trial for offences punishable under Sections 120B, 302, 201 and 302/34, Penal Code, before the learned Sessions Judge, Goalpara, in Sessions Case No. 3 (K)/74. The learned Sessions Judge convicted 4 accused, namely, Cendra, Brahma, appellant in Criminal Appeal No. 47 (J) of 1975, Karendra Nath Brahma, appellant in Criminal Appeal No. 48 (J) of 1975, Shri Magon Basumatary, appellant in Criminal Appeal No. 49 (J) of 1975 and Shri Janaki Basumatary, appellant in Criminal Appeal No. 50(J) of 1975 for offence of murder of one Abhiram Barguari of village Singimari punishable under Section 302 read with Section 34, Penal Code and sentenced each of them to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000 each, in default, to undergo further rigorous imprisonment of one year each. They were also convicted for offence punishable under Section 201, Penal Code and sentenced each to rigorous imprisonment for two years and to pay a fine of Rs. 200, in default, to further rigorous imprisonment for two months. The substantive sentences were to run concurrently, but the default sentencing were to run consecutively. But the accused Lakhan Basumatary appellant in Criminal Appeal No. 51 (J) of 1975 was convicted for the offence punishable under Sections 302 read with Section 109, Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000, in default, to undergo further rigorous imprisonment of one year. The accused Magon Basumatary was, however, acquitted of the charges under Sections 302/34 and 201, Penal Code. All the six accused were acquitted of the offence under Section 120B, Penal Code.
2. All the five accused who were convicted and sentenced as aforesaid preferred appeals separately. As the appeals arose out of a common judgment and order, they were heard together. As against accused Magan Basumatary and Janaki Basumatary, appellants in Criminal Appls. Nos. 49 (J) of 1975 and 50 (J) of 1975 respectively there was no other evidence to base their conviction except the confessional statements of the three accused implicating them to the alleged crime. On the first day of the hearing by a common judgment, we allowed their appeals and acquitted them. In the case of the above three appellants whose conviction was based on their retracted confessions, after hearing learned Counsel of both the sides at length, we were also of the view that there was no evidence to warrant their conviction. We allowed their appeals also and acquitted them of all the offences with which they were charged, reserving our reasoned judgment. We now give reasons of our judgment.
3. The facts of the case giving rise to these appeals may be stated as follows:
Abhiram Bargayari, deceased, of village Singimari within Gossaigaon Police Station, left his house on 10-8-71 at about 1/l1/2 O'clock at noon for Garuphela market to bring medicine. His house is about l1/2 miles from the market. He did not return home till late at night. In the next morning, his brother Kabiram Bargayari went out in search of the deceased. On the way, near Garufela river he found some blood marks, a Gamcha (towel) used by the deceased and a stick nearby. He went then to his brother-in-law's house, P.W. 3, Subhas Narzari, told him that the deceased came to his house in the previous night at about 7/8 P.M. and that he left his house with Karendra Nath Brahma, accused. His brother-in-law gave the deceased a stick also. He returned home and called in Raiju (village public), after which he lodged a report written by one Hari Ram at his dictation with the Officer-in-Charge of the Gossaigaon Police Station on 11-8-71 at about 7-30 P.M. The Police Station is about 6 kilometres north from the house. The Officer-in-Charge of the Police Station registered a case under Sections 302 and 201, Penal Code on the basis of the above report. P.W. 10, Arun Chandra Bora, who was in-charge of the Police Station, took up the investigation of the case himself. He visited the spot on 12-8-71 and seized one Gamcha and some blood stained earth from nearby Garufela river. He discovered the dead body of the deceased in the south-east bank of Garufela river, held the inquest on the dead body and sent it to Dhubri for post-mortem examination. The Police arrested 6 accused persons named above of whom 3 made confessional statements on 13-8-71 before Shri O. M. Maheswari, Magistrate (Executive) of Kokrajhar. After completion of the investigation, he submitted charge-sheet against six accused under Sections 120B, 302 and 201, Penal Code. The committing Magistrate after preliminary enquiry committed them to the learned Sessions Judge to stand their trial for offences under Sections 120B, 302 and 201, Penal Code.
4. Before the Sessions Judge, the accused were further charged with offence under Sections 302/34, Penal Code. The accused pleaded not guilty to the charges. The prosecution examined 10 witnesses to prove its case. The defence was of total denial. No evidence had been adduced by the defence. The learned Sessions Judge convicted five of the accused and awarded sentences aforementioned. Hence, these appeals.
5. There is no eye-witness to the occurrence. As against the appellants Karendra Nath Brahma, the conviction is based (i) on his retracted judicial confession, Ext. 5, (ii) the evidence that the deceased left together with the accused the house of P.W. 3, Subhas Narzari on 10-8-71 at about 8/8-30 P.M. and (iii) recovery of the dead body from inside the Garufela river at the instance of the accused and (iv) the confessional statements of the two accused Karendra Nath Brahma and Lakhan Basumatary in which, he was implicated in the alleged crime. As against the other remaining two accused, Karendra Nath Brahma and Lakhan Basumatary, the conviction was based on (i) their judicial confessions Exts. 3 and 4 respectively and (ii) Judicial confession of the accused, Karendra in which they were implicated.
6. Dr. D. N. Sarma, Sub-Divisional Medical Health Officer, Dhubri, who held autopsy on the dead body, found the following injuries:
One incised wound- 9' X 3' X 5' on the anterior aspect of neck more towards the right, vertebra divided at the neck and spinal cord divided at the neck.
He also found trachea, vessels and essophagus divided at the neck.
The Medical Officer opined that the injuries were ante-mortem in nature and death was due to shock and haemorrhage as a result of the injuries sustained.
7. It is proved beyond doubt that death was due to unlawful violence caused by a sharp weapon. The only question for our determination is as to whether the accused are responsible for the murder of the deceased. As the conviction is based on the retracted confession, it is necessary to examine whether the confessions were voluntary and true.
8. It is well settled that when prosecution demands conviction of an accused primarily on the basis of his confession, the Court must apply double tests- (i) whether the confession is perfectly voluntary, (ii) if so, whether it is true and trustworthy. Satisfaction of the first test is a sine qua non for its admissibility in evidence; and if the confession appears to the Court to have been caused by any inducement, threat or promise, such as mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. In such a case a question of proceeding further to apply the second test does not arise.
9. We shall consider the question as to whether the accused made the confessions Exts. 3, 4 and 5 voluntarily or not. Before examining this question, it will be pertinent to discuss the general principles which are to be kept in view in determining this question.
10. In Kathu Goala v. State of Assam in Criminal Appeal No. 154 of 1975 : 1981 Cri LJ 424 of this Court, one of us, learned brother Lahiri, J., while dealing with this question, observed:
A confession must be 'perfectly voluntary' otherwise the Court should reject it. The term 'voluntary' means one who does anything of his own free will. It must be made spontaneously on his own volition. After commission of such a crime the existence of state of mind cannot be normal. Thus arises the need to establish that the state of mind of the author was fit enough to make a voluntary incriminatory statement comprehending the implications of his admission. The warnings set-forth in Section 164 of the Code are merely illustrative and not exhaustive. In my opinion, a Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. Penitence qualms of conscience, remorse etc. might be the ready and prepared answers. He must find out the real motive behind making the confession. If he finds that the reason to be well-grounded and the prisoner has a real, genuine and impelling motive to make a clean breast of his crime, he must proceed to record the confession.
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The basic object to entrust the serious business of recording confession upon the Judicial Officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not. To adjudge voluntariness, in my opinion, two basic factors should be taken note of. First, the existing mental condition of the prisoner. The Magistrate ought to proceed with the assumption that the prisoner is labouring under mental agony or disorder having arrayed as an accused of a crime, a man in peril undergoing distress and torture, worry and strain is ordinarily not mentally fit person to make a statement to endanger his life and liberty. The prosecution must confirm that the judicial mind of the recording officer was satisfied, by some objective tests; that a mentally disabled person coming from a Criminal Class was mentally fit enough to understand the implications of the warnings and to make a fatal statement. Secondly, the Magistrate must satisfy the Court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession. Failing, a confession ought not to be accepted as voluntary. (Underlining supplied).
11. In the said case, I made the following observations:
The act of recording confession under Section 164, Cr. P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164, Cr. P.C. must be fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the questions intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in. The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24 of the Evidence Act..It is true, whether the confession was made voluntarily or not is a question of fact; and the Appellate Court would be slow to interfere with such a finding unless the Court itself is satisfied that the impugned finding has been reached without complying with the true and legal test in the matter. In this case, the Magistrate has not put any pointed and searching question to the accused to ensure that the confession was made voluntarily. No doubt, the Magistrate asked the accused about the date of arrest and the period of detention in the police custody but the Magistrate has not asked him as to how he was treated in the police custody. The Magistrate also did not question the accused as to why he was making the confession and there was nothing in the statement of the Magistrate or from the questions on record to show that he told the accused that he would not be remanded to the Police later on even if he did not confess his guilt. Such questions by the nature of the circumstances are pertinent and important. (See Devendra Prasad Tiwari v. State of Uttar Pradesh : 1978CriLJ1614 .
12. In the light of the above principles, we proceed to consider if the confessions of the 3 appellants are voluntary or not. It is in the evidence from the testimony of P.W. 9, Shri Ankermal Mahesri, who recorded the confessions of the 3 accused on 13-8-71, that the accused were produced before him from the police custody for recording their confessions. According to his testimony, he questioned all 3 accused at a time, and after explaining the accused that he was a Magistrate, 1st Class and not Police Officer and also the consequences of their confessional statements, he kept the accused, Gendra Brahma, under the custody of his peon. Similarly after giving preliminary caution and explaining the consequences of the confessional statement, he kept accused, Lakhan Basumatary, under the custody of his Peskar (Bench Assistant) and accused Karendra Nath Brahma was similarly kept under the custody of another peon after due warning and the consequneces of the confessional statement as in case of the other accused. All of them were given 4 hours time for reflection. As revealed from their confessional statements, after 4 hours' time for reflection, they were brought for recording their confessions. The confession of accused, Karendra Nath Brahma, was recorded first and it was completed at 2-30 P.M.; next the confession of accused, Gendra Brahma was recorded which was completed at 3 P.M. and the confession of accused Lakhan Basumatary was recorded last which was completed at 3-30 P.M.
13. All the 3 confessing accused were arrested by the Police in the early morning between 1' A.M. and 3 A.M. on 12-8-71; and they were produced on the next date on 13-8-71 before P.W. 9, Ankermal Mahesri, at about 10 A.M. for recording their confessions. The Magistrate stated in cross-examination that his Chamber was small and accused Gendra Brahma was kept in his room and the other two accused were in his Ejlash (Court room). But he deposed- 'I cannot say in what position the two accused were kept in the Court. If there had been Police Officer, I cannot say it.'
14. From a reading of the deposition of this witness as a whole, it appears to us that the Magistrate had not taken due care enjoined by law to see if the state of mind of the accused was fit enough to make a voluntary incriminatory statement comprehending the implication of his admission. It may be noticed that after giving them time for reflection, only a few questions were put to the accused as a matter of mechanical enquiry. The questions and answers rendered into English in each case are almost same, and they are as follows:
(1) Do you know that I am a Magistrate and not a Police Officer?- Yes, I know.
(2) Do you know that you are not bound to confess?- Yes, I know.
(3) Do you like to state at your own accord?- Yes, I will.
(4) Do you know that your confessional statement will be treated as evidence against you?- Yes, I know.
(5) Do you state as tutored by others? - No, I will not state.
(6) Do you tell the true fact?- Yes, I will.
Thereafter their confessional statements were recorded.
15. There can be no doubt that the Magistrate has not put any pointed and searching question to the accused to ensure that the confession was made voluntarily. He has not asked the accused as to how he was treated in Police custody, nor has he questioned the accused as to why he was making the confession; and from the questions on record there is nothing to show that he told the accused that he would not be remanded to the Police custody later on if he did not confess his guilt. Such questions by nature of the circumstances under which they were kept for reflection as pointed out above are pertinent and important. (See Devendra Prasad Tewari 1978 Cri LJ 1614 (SC) (supra)).
16. As observed by my learned brother Lahiri, J. in Kuthu Goala 1981 Cri LJ 424 (supra), warnings set forth in Section 164 of the Code are merely illustrative and not exhaustive, and the Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. There must be materials on record that he had exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession. The prosecution must confirm that the judicial mind of the recording officer was satisfied by some objective test and that a mentally disabled person coming from Criminal Class was mentally fit enough to understand the implication of the warning and to make a fatal statement. In the present case, there are no adequate materials which answer the test for voluntariness of the confessions. In our view, it is difficult to accept the confessions, which suffer from the infirmity discussed above to be voluntary.
17. Apart from the infirmity of the confessions discussed above, the confession of accused Gendra Brahma differs from that of the accused Karendra Nath Brahma. According to the confession of Gendra Brahma, accused Magon, since acquitted, told the accused that Lakhan Basumatary would pay Magon accused if Magan could kill the deceased. He stated that he was threatened by accused Magon that he would be killed if he did not accompany Magon in committing the crime. The four persons, namely, Gendra Brahma, Janaki, Magon and Karendra killed Abhiram at 7 O'clock on 10-8-71. At first accused Janaki assaulted the deceased with a lathi, after which they caught him and accused Magon cut his throat with Khukri (Nepali dao). Thereafter they all removed the dead body and felled it into the Garufela river. First, according to the confession of accused Karendra Brahma, accused Magon since acquitted told him that Lakhan Basumatary would pay them Rs. 200, if they could kill Abhiram, whereas according to the confession of accused Gendra, the amount was to be paid only to accused Magon. Secondly, according to the confession of Karendra all of them drank 'Lowpani' with Abhiram, the deceased, on 10-3-71 before the accident took place, This fact was not mentioned in the confession of accused Gendra Brahma,
18. According to confession of Lakhan Basumatary he told accused Magon that he could pay him Rs. 200 if he could kill Abhiram. His confession proceeded further that on 10-8-71, the 4 accused Magon, Janaki, Karendra and Gendra in a bodv killed Abhiram. On that day his son Balu gave Rs. 15 to Magon for drink (Lowpani) as per his direction. He stated in his confession that none of the 4 accused reported to him about the killing of Abhiram, but he came to know of it from others. Though he mentioned that he paid them money after selling jute in the market on 13-8-71, none of the confessing accused has mentioned about the payment of Rs. 200 after killing Abhiram. The confessions do not corroborate each other ; rather they are conflicting.
19. It is well settled that so far as the confessional statement of accused is concerned it may be taken into consideration against the other accused under Section 30 of the Evidence Act if it fulfils the conditions laid down therein. Confession of co-accused is not an evidence as defined under Section 3 of the Evidence Act.
20. In the case before us, the confession of accused Gendra Brahma, Ext. 3, is not corroborated by the independent evidence. Where there are confessions of several accused and the confessions are retracted subsequently, the proper approach is to consider his confession as a whole on its merits and use it against the maker thereof, provided the Court is in a position to come to a unhesitating conclusion that the confession was voluntary and true.
21. Though it was stated in the confession of Gendra Brahma and Karendra Nath Brahma that the lathi blow was given first by Janaki on Abhiram, the medical evidence of Dr. D. N. Sarma, who held autopsy on the dead body did not disclose any lathi injury on the body of the deceased. Though a Khukri was said to have been used by Magon and a Nepali Khukri was seized which had marks like blood from the house of accused Karendra Nath Brahma, there is no evidence to show that it was sent to the serologist and chemical examiner of Government of India to prove that the stains were of human blood. The prosecution only sent two materials, cloth cuttings and a portion of dried vegetable leaves to the Serologist and Chemical Examiner.
22. Dealing with the confession of the accused Karendra Nath Brahma, Ext. 5, it is seen that it is not corroborated by any independent evidence. According to the testimony of P.W. 3, Subhas Narzari, on 10-8-71 at about 8-30 P.M. the deceased came to his house. Accused Karen was with him. He and his wife told the deceased not to return home as it was late and stay in their house that night, but accused Karen induced the deceased to come away saying 'Mama-Bhagin' (uncle and nephew) and then they left his house together. The witness gave the deceased a lathi at the time of leaving his house. On the following day at about 10-30/11 O'clock when P.W. 1 along with two others came to his house to enquire about the deceased, he narrated about the incident of the previous night. The witness and P.W. 1 went to the place of occurrence and saw the lathi, gamosa and blood marks at the spot. After they had visited the place of occurrence, a report Ext. I was lodged with the Police Station. But in the report it is not mentioned that the deceased came to the house of P.W. 3 along with accused in the evening at about 8/8-30 P.M. on 10-8-71 and that they left together his house. What was stated in the report is that accused Karendra took the responsibility to escort the deceased when he would return from the market. It is difficult to accept the prosecution story that the deceased came together with the accused in the previous night of 10-8-71 to the house of P.W. 3 Subhas Narzary and they left his house together. Moreover, there is a long gap between the time when they were together and the time of the recovery of the dead body of the deceased on 12-8-71 at 1 O'clock. This piece of evidence alone, in any event, is not sufficient to link the accused with the alleged crime. In the second place, prosecution sought to lead evidence through P.W. 1 Kabiram Bar-goari that the dead body of deceased Abhiram was recovered from inside the Garuphela river on the information of the accused Karendra to the Investigating Officer, P.W. 10 Arun Chandra Bora. But the evidence of the Investigating Officer Arun Chandra Bora, P.W. 10, is silent on this point. He simply deposed that on receipt of the report, he took charge of the investigation and went to the place of occurrence. He found the dead body from inside the river at about 1 O'clock noon on 12-8-71. He had not stated that the dead body was recovered at the instance or on the information of the accused, Karendra Nath Brahma; nor he has stated in his deposition that the accused accompanied him when the dead body was recovered from inside the river. He deposed that on 12-8-71 on receipt of the report at the Police Station from P.W. 1, Kabiram Bargoari, he went to the place of occurrence in a truck at 2 A.M. but he did not find the dead body. Then he arrested the accused Karendra Brahma at about 5-15 A.M. of 12-8-71. P.W. 1, Kabiram Bargoari, on the contrary, has made improvement in his evidence stating that the Police took him and accused Karen in a truck in the morning on 12-8-71; and after inspection of the place where blood marks were found, the accused told the Police, when asked by the Police, that the dead body had been thrown into the river. He further stated that thereafter the body was found at a distance of half a mile from the place of occurrence. The implication of this statement of this witness is that the dead body was recovered on the information of the accused, Karendra Nath Brahma, to the Police. If the accused had made a statement to the Police as deposed to by P.W 1, Kabiram Bargoari, in this respect, the Investigating Officer, Shri Arun Chandra Bora, P.W. 10, would have stated so in his deposition. A reading of Section 27 of the Evidence Act makes it clear that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact thereby discovered. The information would consist of a statement made by the accused to the Police Officer and the Police Officer is obviously precluded from proving the information or pari thereof unless it comes within the four corners of the section. If the Police Officer wants to prove the information or part thereof, the Court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. In the instant case as already stated, the Police Officer has not even stated that the dead body was recovered at the instance or in consequence of the information supplied to him by the accused. The statement of the accused was recorded at 8-30 A.M. on 12-8-71. If the accused had supplied the information in consequence of which the dead body was recovered, such a statement ought to have been mentioned by the Police Officer in his statement but he has not done so. It suggests, therefore that the accused had not made any such statement to the Investigation Officer, Shri Arun Chandra Bora, P.W. 10, as deposed to by P.W. I, Kabiram Bargoari, in regard to the discovery of the dead body. The statements of P.W. 1 Kabiram Bargoari on this fact are nothing but tissues of falsehood. The dead body was not recovered at the instance or on the information of the accused Karendra Nath Brahma, as alleged.
23. There remains only his own retracted confession, Ext. 5, as against the accused Karendra Nath Brahma. As discussed already there is no independent evidence to corroborate his confession. It is unsafe to convict the accused solely on the basis of the retracted confession.
24. With regard to the other two appellants Gendra Brahma and Lakhan Basumatary, there is also no independent evidence to corroborate their confessional statements. The confessional statements of the other co-accused is not an independent evidence but are fainted evidence. On the principle of law already discussed above, as no independent evidence is forthcoming to corroborate their retracted confessions, Exts. 3 and 4, it is unsafe to convict them solely on the retracted confessions. The result of the discussion is that, all the accused are acquitted of the offences with which they were charged. The conviction and sentences of all the appellants are set aside.
25. In view of the foregoing discussions, all the three appeals are allowed, and the three appellants are set at liberty, unless they are required in connection with any other case.
K. Lahiri, J.
26. 'Law' and 'Justice' although two distinct concepts, are intertwined so much so that, we cannot conceive one without the other. Genesis as well as the end of law is justice. We can conceive administration of justice without law but we cannot envision 'administration of justice' dehors justice. There are certain basic 'norms' of justice like equality, fairness and impartiality in all spheres of human activities, Quest for optimum justice is a continuous process and the theory of justice is not a static concept. Fundamental rights enshrined in Part III of our Constitution are grounded on 'the basic norms of justice'. Apart from the guaranteed rights in the Constitution or law, every litigant is entitled as of right to the basic norms of justice from those who administer justice. Even Government, its instrumentalities and agencies discharging 'public duties' are bound to follow the basic norms of justice. That is why in Ramana Dayaram Shetty v. The International Airport Authority : (1979)IILLJ217SC , the Supreme Court has ruled that apart from the constitutional mandate of Article 14, 'the judicially evolved rule of administrative law' compel such administrative authorities to conform the norms of justice like fairness, equality and impartiality. The moot question is whether an indigent accused socially, economically and/or educationally backward, can demand the basic norms when He figures as an accused and placed in the dock to record his confessional statement? Is it not imperative to inform the accused about the protective shields contained in Articles 22(1), 20(3) of the Constitution and Section 303 of the Criminal Procedure Code, 1973? Is he not entitled to get legal aid at the stage? In Kuthu Goala v. State of Assam, Criminal Appeal No. 154 of 1975 decided on 6-5-1980 : 1981 Cri LJ 424, I had the opportunity to discuss on the subject and express my view in the affirmative. In the instant case, the accused are indigent persons and belong to socially, economically and educationally backward class. Free legal aid was provided to them during their trial. Herein, this Court provided them similar aid by engaging counsel at the expense of the State. Section 164, Cr. P.C. 1973 enjoins certain conditions precedent or warnings. 'The Judges Rules' or 'the Executive Instructions' for recording confessions require fore-warnings and cautions to inform the prisoner that the recorder of a confession is a Magistrate and not a Police Officer, that the maker is not bound to make confession, if any incriminating statement is made the same may be used against him during his trial. These and many other warnings are obvious and simple questions, which any wordly person is supposed to know. Is it not imperative to inform the accused about the Constitution and statutory protections and to provide legal aid to him? Dealing with confession vis-a-vis Section 303, Cr. P.C. and Articles 22(1) and 20(3), I made certain observations in Kuthu Goala (supra) and I still stick to it. I would quote the relevant portions.
Experience shows that ordinarily affluent persons do not make confession whereas almost cent per cent of the confessions come from those who are economically, educationally and/or socially backward. The reason is not far to seek. The rich get readymade legal assistance. What happens to a person like the present appellant-a poor little Indian! He does not know his rights guaranteed under Article 20(3)-no person accused of an offence can be compelled to be a witness against himself nor does he know that there is a provision under Article 22(1) that a prisoner has a fundamental right to consult and to be defended by legal practitioner of his choice. He is uninformed about the salutary provision like Section 303 of the Cr. P.C. which provides that person against whom proceedings are instituted under the Cr. P.C. has a right to be defended by a pleader of his choice. The term 'investigation' defined in Section 2(h) of the Code includes all the proceedings under the Code for the collection of evidence conducted by Police. Recording of confession under Section 164 of the Code is a part of the Police Investigation and falls in Chapter XII of the Code. Such recording of confession is a part of the Police investigation and is a proceeding under the Code. The accused has fundamental rights under Article 20(3) as well as Article 22(1) of the Constitution to get legal aid. He has a similar statutory umbrella under Section 303, Cr. P.C.
In Nandini Satpathy v. P.L. Dani : 1978CriLJ968 their Lordships recognised the right of an accused to consult his lawyer in the course of Police investigation under Section 161 of the Code. In my opinion, the right of an accused to consult his lawyer, when he in interrogated by Police, is equally applicable in the case of an accused brought by the Police to cause his confession recorded by a Magistrate under Section 164 of the Code. I am of the firm opinion that it is absolutely essential for all Magistrates to explain to accused before proceeding to record confession, his fundamental rights under Article 22(1) and Article 20(3) of the Constitution as well as the provision of Section 303 of the Code. In the absence of clear explanation of the provision to a poor economically and socially backward accused like the appellant, recording of the confession should be abjured. When the rich and educated by dint of their wealth or education can safeguard their own interest why should those who are educationally, socially and economically backward not be afforded similar opportunities. In my opinion, in the absence of due explanation of the provisions to a handicapped person, like the present appellant, confession should not be accepted. I am constrained to observe that if free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to a needy person it should begin from the moment when a poor and needy person is apprehended by the Police. It is useless to allow the roots to dry and thereafter to water the plant Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality ....If persons economically, socially and educationally advance can get the advantage of legal aid why should 99 per cent of the Indians be deprived of the opportunities?
27. Is it fair, just and equal treatment not to inform the uninformed about the constitutional and statutory right? Is it meeting out justice? I say emphatically that the non-performance of the basic duties to inform the requisite safeguards and not to provide an indigent person with free legal aid at that stage is violative of the basic and fundamental norms of justice and no court of justice ought to act upon such confessions.
28. For the reasons set out in the judgment of my learned brother as well as for the reasons set out above I cannot accept and act upon the confessions which were recorded in violation of the principles enunciated in our Constitution and law.
29. In fine, I conclude that the provisions of Section 164, Cr. P.C. require a second look and 'the Judges Rules'' or 'the Executive Instructions' issued by the High Court to the Magistrates about recording of confessions require modifications and alterations, provided my observations made above are just and timely. I entirely agree with my learned brother that the appeals must be allowed.