1. The appellant Atmaram has been convicted under Section 302 of the Indian Penal Code and sentenced to the imprisonment for life on the allegation that he killed his own father on the night between the 5th and 6th of March, 1967 at village Hingne-Karegaon.
2. Briefly, the prosecution case was that the appellant Atmaram was demanding his share from his father, Namdeo, and there were disputes and friction between the father and son for some time. The deceased, Namdeo, owned about 25 acres of land at village HingneKaregaon, and besides the appellant, Namdeo had two other sons, Shaligram and Janardan, all of them apparently staying together in the village. One of the fields of Namdeo, survey No. 123, was known as 'Chambharkhori' and the appellant worked in that field with his father. They had establishment on the land and there was a Mandav as well as a hut and the bullocks used to be tethered on the land. On the date of the incident, the appellant had carried bread for himself and for his father from his house as usual and that was at night. After taking meals, Namdeo had retired, and according to the appellant, he had gone out to visit a Tamasha. There were persons sleeping or working in the neighbouring fields and Sukhdeo (P. W. 3) and Chatar Singh (P. W. 4) were among them. According to Sukhdeo, when he was about to go to sleep, he heard shouts of the appellant calling him by name 'Sukhdeo' and he gave answering shouts that they were coming and Sukhdeo and Sakharam went towards Atmaram's field. When they got there, they found Atmaram near the cot of his father and his father was lying dead on the cot, and when they asked Atmaram, 2he told them that his father was murdered. Sukhdeo says that he could see the injury to the abdomen and the deceased's intestines having come out. After some time, Fulsingh (P. W. 5) and Chatarsingh (P. W. 4) also came there and they, on similar questions, received similar answers from the appellant. It was the appellant who asked them to go to his house and inform his brother. Accordingly, Fulsingh and Sakharam went to the village and informed Shaligram who came to the field. The body was brought home, but on an advice that it had better not be removed from the place where the deceased was found in an injured condition, it was again brought back. A report about this occurrence was made at the Police station through Amarsingh Patel (P. W. 1) and the Patel's report (Ex. 6) shows that Namdeo was found dead and the body was lying in the field. No one is indicated as suspected to be responsible for the death. Thereafter the Police arrived and it is alleged that the appellant discovered a sickle as a result of his statement, lying under the grass. That sickle was sent for Chemical Analyser's report and the report did not show the presence of any human blood on the sickle. Most of the investigation was apparently complete by 7th or 8th March, 1967, the accused himself being taken in custody on 7th March. Thereafter, the appellant was sent to the Taluka Magistrate Mr. Mohod, for recording his judicial confession; Ex. 48 is the record of the Judicial confession by Mr. Mohod. Mr. Mohod administered oath to the appellant and thereafter recorded his statement. The record of the confession shows that probably Mr. Mohod was not very familiar with the procedure inasmuch as many of the instructions do not seem to have been adhered to in recording the Judicial confession. On the basis of the Judicial confession, the alleged discovery of the weapon of offence and the presence of the appellant in the field when the deceased might have met his death, were relied upon as the principal plank in the prosecution case. The learned Judge accepted the Judicial confession and also the evidence relating to the discovery of the sickle as the weapon of offence. The defence of the appellant that he was not present when Namdeo was attacked or received injury, and that he had gone to see tamasha was rejected apparently on ground that there was no evidence to corroborate this statement of the appellant. The fact that there were disputes between the appellant and his father over the property has also been taken into consideration as furnishing adequate motive to do away with his father. On these findings the appellant is convicted for killing his father and sentenced as already stated.
3. In support of this appeal, three principal contentions are raised:-
(1) That the alleged discovery of the Sickle is not a circumstance tending towards proof of criminality of the accused because it is not connected with the crime, there being no blood or human blood found on the weapon;
(2) That the confession is vitiated on account of administration of oath which robs it its voluntary nature and is otherwise invalid because it had been brought about under Police pressure as alleged by the appellant;
(3) That the Magistrate, Mr. Mohod, had no jurisdiction to record the judicial confession, inasmuch as he was not a Magistrate validly empowered under the Code of Criminal Procedure to record statements under Section 164 of the Code and the confession recorded by such an authority is not admissible in evidence.
(4) If it were necessary for us to go into the merits of the confession and the manner in which it came to be recorded, there is no doubt that we would not have been inclined to accept the confession, especially on account of administration of oath, and the failure of the Magistrate to follow some essential safeguards to ensure that the confession was voluntary. But apart from that aspect, we have come to the conclusion, after hearing counsel on both sides, that the Taluka Magistrate in the instance case, did not have the powers duly invested in him to record statements or confessions under Section 164 of the Code of Criminal Procedure. If the Magistrate did not have the power, then it is not seriously disputed, in view of the recent pronouncement of the Supreme Court in State of Uttar Pradesh v. Singhara Singh : 4SCR485 , that a confession recorded by a Magistrate not empowered as required by law is not admissible in evidence.
5. The State relies on a notification of the Home Department of the Government of Bombay, of which a copy was made available at the hearing, in support of its contention that a Taluka Magistrate, duly authorised by the District Magistrate to exercise powers under Section 164 of the Code of the Criminal Procedure, would have the necessary jurisdiction to record confession under Section 164. It is not apparently disputed in this case that the District Magistrate, Buldana, had empowered the Taluka Magistrate concerned, Mr. Mohod, to exercise the powers under Section 164. Even so, argument urged on behalf of the appellant is that the Taluka Magistrate could not have been empowered by the District Magistrate, inasmuch as according to the learned counsel for the appellant, the State Government itself could not delegate the power of investing a Taluka Magistrate with powers under Section 164, on a proper construction of the relevant provisions of the Code. The notification relied upon on behalf of the State is as follows:-
Sachivalaya, Bombay No. 1
1st September 1959
Code of Criminal Procedure, 1898
No. SRO. 1057/5329-III-(ix). In exercise of the powers conferred by Section 37 of the Code of Criminal Procedure, 1898 (V of 1898), in its application to the State of Bombay, the Government of Bombay hereby authorises all District Magistrates in the Vidarbha region, and the Hyderabad, Saurashtra and Kutch areas of the State of Bombay to invest Taluka Magistrates subordinate to them with powers under Sections 107 and 164 of the said Code.
By the order arid In the name of the Governor of Bombay.
Sd/- A. L. Dias,
Secretary to Government.'
6. Before we proceed to consider the out the sp3ecial features of the provisions rival contentions, it is necessary to point of the Code of Criminal Procedure as amended in this State in 1951 and 1953. The particular Sections with which we are concerned are Section 6-A, Section 13, Section 37, Section 164, and the fourth Schedule to the Code of Criminal Procedure. The Bombay Act No. 23 of 1951 introduced the principle of separation of judiciary and executive functions in criminal court. That Act effected comprehensive and far-reaching amendments in the Code of Criminal Procedure, (1898) so far as they applied to the State. The Magistracy in the State has been divided into two district categories, namely, 1st Judicial Magistrates, and 2nd, Executive Magistrates. This is provided by the new Section 6-A. The Judicial Magistrates are (i) Presidency Magistrates, (ii) Magistrates of the first class, (iii) Magistrates of the second class, (iv) Magistrates of the third class, and (v) Special Judicial Magistrates. On the other hand, the Executive Magistrates are (i) District Magistrates, (ii) Sub-Divisional Magistrates, (iii) Taluka Magistrates, (iv) Presidency Magistrates specially empowered by the State Government, and (v) Special Executive Magistrates. Section 13 of the original Code has been amended so as to empower the State Government to appoint as many persons as it thinks fit to be Sub-Divisional Magistrates and Taluka Magistrates in any district, and further empowered the District Magistrates, subject to the control of the State Government, to appoint one or more Sub-Divisional Magistrates in charge of a Sub-Division or one or more Taluka Magistrates in charge of a Taluka, as the case may be.
7. Then follows the important amendment in Section 37. For the original Section 37, the new Section 37 was first substituted by the Bombay Act No. 23 of 1951, as follows:
'37. Additional powers conferrable on Magistrates.
In addition to his ordinary powers, the State Government may invest any Magistrate with the powers as specified in the fourth schedule;
Provided that in the case of Judicial Magistrates such powers shall be conferred in consultation with the High Court:
Provided further that the State Government may authorise a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in part II of the fourth Schedule.'
Further amendments made in this section by the Bombay Act No. 34 of 1953 will be noticed a little later.
8. Thus, Section 37 gives the power to the State Government, and in certain cases to the District Magistrates, to invest any Magistrate with any of the powers specified in Part II of the 4th Schedule. Now, the Fourth Schedule to the original Code has been completely substituted by Bombay Act No. 23 of 1951. A perusal of the original form of the Fourth Schedule will show that under the scheme of the Code as it applied to other parts of India, the power to invest a Magistrate with additional powers is conferred on two distinct authorities, namely, (i) in some cases, on the State Government, and (ii) in other cases, on the District Magistrate, where the Magistrate who is to be invested with such power is a Magistrate of the first class, or of the second class, or of the third class, or a Sub-Divisional Magistrate. We may here also notice that in the fourth Schedule as it stands, there apparently is no power given to the District Magistrate to invest any Magistrate of any class with powers under Section 164 of the Code of Criminal Procedure.
9. The amended form of the fourth schedule which is the governing provision of law, so far as this State is concerned, divides the fourth schedule into two parts. In Part I the State Government has been given the power to invest Magistrates of the first class, of the second class, and of the third class with additional powers. In Part II of the amended schedule, there is a division made in the enumeration of powers with which a Sub-Divisional Magistrate may be invested with powers by the State Government and the powers with which any Executive Magistrate may be invested by the District Magistrate; and so far as the District Magistrate is concerned, it would appear that only the powers under Sections 143, 144 and 174 of the Code are the powers with which a District Magistrate may prima facie invest any Executive Magistrate.
10. The fourth schedule was further amended by the Bombay Act No. 34 of 1953, which also effected amendment in Section 37 of the Code. But the principal feature of this later amendment is that power is given to the Sessions Judge to invest any Judicial Magistrate within their local jurisdictions with powers specified in sub-part (B) of Part I of the fourth schedule. By another amendment in Section 37, the power of the State Government to invest a Judicial Magistrate with any of the powers as specified in the fourth schedule is made subject to consultation with the High Court and similar exercise of a similar power by the Sessions Judge is to be made with the approval of the High Court. We are not really concerned with this later amendment effected by the Bombay Act No. 34 of 1953. But it is relevant and material to note that elaborate provisions have been made by the Legislature in indicating distinct authorities which may exercise the power of investing subordinate Magistrate with powers under different Sections of the Code.
11. In this case, we are principally concerned with the construction of Subsection (3) of Section 37 of the Code as it stands by reason of the Bombay amendment. But it will be useful to reproduce the whole of Section 37:
'37. (1) In addition to his ordinary powers, -
(a) the State Government may invest any Magistrate with any of the powers as specified in the Fourth Schedule, and
(b) a Sessions Judge may invest any Judicial Magistrate within his local Jurisdiction with the powers specified in Sub-part (B) of part 1 of the Fourth Schedule.
(2) (i) The power under clause (a) of Sub-section (1) shall be exercised by the State Government in the case of Judicial Magistrate in consultation with the High Court.
(ii) The power under clause (b) of sub-section (1) shall be exercised by the Sessions Judge with the approval of the High Court.
(3) The State Government may authorise a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in Part II of the fourth Schedule.'
The contention on behalf of the State Is that the State Government can authorise a District Magistrate to invest any Magistrate subordinate to him with any of the powers specified in Part II of the fourth Schedule, and once such a notification is issued, the District Magistrate concerned ipso facto gets authority to invest any Executive Magistrate subordinate to him not only with powers under Section 143, 144 or 174, but also with powers under Sections 145, 147, 164 and also under S. 524 or even under S. 107 of the Code of Criminal Procedure. We are unable to accept this construction either of S.37 (3) or of Section 164 of the Code or Part II of the fourth Schedule in which the powers to be exercised in investing subordinate Magistracy are differently and distinctly stated one by the State Government and the other by the District Magistrate.
12. If we were to accept the construction sought to be placed on sub-section (3) of Section 37 by the learned Additional Government Pleader, there is no reason why in Part II of the fourth Schedule, the Legislature should have distinctly and separately provided for (a) the powers which may be invested by the State Government, and (b) the powers which may be invested by the District Magistrate.
13. It will also be seen that there is an indication in the wording of sub-section (3) of Section 37 itself that the only powers with respect to which the State Government can authorise the District Magistrate to invest any Magistrate subordinate to him are the powers specified in Part II of the fourth Schedule. The word 'specified' is relevant and important in this context and it can only mean the powers specified in Part II of the fourth Schedule with which the District Magistrate may invest an Executive Magistrate subordinate to him and cannot possibly refer to all the enumerated powers which are really the powers of the State Government. If we were to accept the interpretation urged before us on behalf of the respondent, it will make the division of the powers in Part II of the fourth Schedule redundant and meaningless. Moreover, even a casual reference to Section 164, of the Code which is really the governing section creating power in the appropriate Magistrate to record statements under that section, would show that, that section controls Section 37. Under sub-section (1) of Section 164 as amended in this state, any Presidency Magistrate, any District Magistrate, any Sub-Divisional Magistrate, any Magistrate of the first class or 'any other Magistrate specially empowered by the State Government in this behalf' is empowered to record any statement or confession made to him in the course of an investigation under the Chapter. We are unable to see how a Magistrate only empowered by the District Magistrate investing him with the powers under Section 164 could at all claim to exercise the powers under Section 164 if such a Magistrate is not empowered by the State Government in that behalf. The section limits the authority of Magistrate other than the Presidency Magistrates, District Magistrates, Sub-Divisional Magistrates and Magistrates of the first class to record statements or confessions only to those Magistrates who are empowered by the State Government and not by any other authority. In view of this clear limitation in Section 164 itself, we fail to see how it could reasonably be claimed either that the State Government could empower a District Magistrate to invest a Magistrate subordinate to him with powers under Section 164, or that no such empowerment is necessary because of the wording of sub-section (3) of Section 37. The only manner in which the provisions of sub-section (3) of Section 37, the arrangement and division of powers and separate enumeration in Part II of the fourth Schedule, and the provisions of Section 164 can be reconciled in a harmonious manner is to hold that the powers with which a District Magistrate can invest a Magistrate subordinate to him on being authorised by the State Government, are only the powers under Sections 143, 144, and 174. But even the State Government in exercise of its authority under sub-section (3) of Section 37, has not been granted the necessary power to delegate to the District Magistrate or to authorise the District Magistrate to exercise the power to invest any Magistrate subordinate to him with any powers other than those enumerated in Sections 143, 144 or 174 of the Code.
14. In this division of function with regard to the powers enumerated in Part II of the fourth Schedule, we see a clear legislative intent and scheme. The powers under Section 164 are ordinarily required to be exercised by a Magistrate of experience. Even in the original Code, it will be seen that the only Magistrate other than the Magistrate of the first class, who is eligible to be invested with the powers under Section 164, is a Magistrate of the second class and that investment has to be at the instance of the State Government and not the District Magistrate. We are unable to hold that the State Legislature, in effecting amendment of the scheme of the Code, would have intended such a violent departure in the matter of investing any Magistrate, be he a Magistrate of the third class, or even an Executive Magistrate, with powers of recording statements and confessions under Section 164. The reason for restricting the investment of powers under Section 164 to experienced Magistrate is obviously that the Magistrate must have enough experience to judge whether a statement is being made voluntarily or otherwise. The Magistrate must be competent to understand why a person is making a confession and more or less convicting himself out of his own month. The detailed and elaborate provision made to ensure that the confession is made in a free and fair manner and without any duress of restraint or under pressure or for any reward, requires that such powers should be exercised by experienced and competent Magistrates. Before investing a Magistrate with such important functions, the authority concerned, which, in our opinion, is the State Government alone, will apply its mind to find out whether the person recommended for being invested with such powers deserves to be entrusted with such functions. The very instance in this case shows the danger of investing all and sundry with powers under Section 164. The learned Taluka Magistrate in this case administered oath to the accused and thus violated the most elementary principle that statements have to be voluntarily made. The argument that in spite of the oath, the voluntary nature of the confession may not be affected is difficult to understand. The reason why oath is not to be administered to a person coming forward to make a statement in the nature of confession is that there should be no kind of pressure either of oath or of affirmation or of any other kind operating on the mind compelling him to disclose something which ordinarily that person would not disclose or state. The manner in which the confession is to be recorded, the preferable form being questions and answers, and the whole record being in the language of the deponent, are all salutary safeguards which have to be observed and non-observance of which imperils the acceptance of the statements as good evidence or reliable evidence in criminal prosecutions.
15. We have therefore come to the conclusion that under the scheme of the Code brought about by the two amendments in this State as adumbrated above, it is not permissible for a Taluka Magistrate to be invested with powers under Section 164 of the Code of Criminal Procedure at the instance of the District Magistrate, nor can the State Government empower a District Magistrate to invest a Taluka Magistrate with these powers even if it were inclined to do so. That power is exclusively vested in State Government itself, and unless the State Government so chooses to invest a Taluka Magistrate with powers under Section 164, any statement recorded by such a Magistrate will be inadmissible in evidence. We must hold accordingly.
16. Thus, the result is that the only plank in the case, namely, the judicial confession, being recorded by a Magistrate not empowered to do so, must be excluded from consideration. It is not seriously disputed that except the confessional statement, there is no evidence to bring home the charge to the accused. The result is that the conviction of the accused under Section 302 of the Indian Penal Code is set aside and the sentence is quashed, and the appellant is acquitted. If he is in jail, he shall be set at liberty forthwith.
17. Appeal allowed.