1. The two appellants were charged in the Court of the Additional Sessions Judge, Bijapur, with having committed an offence punishable under Section 302 read with Section 34, Penal Code. The charge against them was that on 28th August, 1952, at about midnight, at Vantigod, the two accused, in furtherance of their common intention to murder Lakkappa, caused his death whilst he was sleeping in front of the temple of Kamdev by letting down a stone on his left side which caused injuries to him and by cutting him with an axe with the intention of causing his death or such bodily injuries as were sufficient in the ordinary course of nature to cause his death. The accused denied the charge and pleaded innocence.
2. The assessors with whose help the trial was held were unanimously of the opinion that the charge had not been proved beyond a reasonable doubt against both the appellants. But the learned Judge did not agree with this opinion and came to the conclusion that the prosecution had proved their case against both the appellants beyond a reasonable doubt. That is why he convicted bothof them of the offence charged and sentenced each of them to transportation for life. Accused No. 1 has been directed to be kept in the juvenile section of the ordinary prison. It is this order of conviction and sentence which is challenged before us by Mr. Reddi on behalf of the appellants.
3. The houses in which the two accused and the deceased Lakkappa resided were all situated in Madargeri, the Harijan locality of the village Ventigod. On a Saturday preceding the day of the offence, Tippawa, the wife of the deceased Lakkappa, was taking her bath in the lane between her house and that of accused No. 1. Just then accused No. 1 and accused No. 2 came near Tippawa and began to abuse her. This led to a quarrel between the deceased Lakkappa and the two accused. This quarrel brought on the scene a number of neighbours. Amongst them were Pendappa and Venkappa. The mother of accused No. 1 went to these witnesses and appealed to them to stop the quarrel that was proceeding between her son and Lakkappa.
These two witnesses and others then proceeded to the houses of accused No. 1 and the deceased Lakkappa. They Intervened and separated the quarrelling parties from each other. In the end accused Nos. 1 and 2 went to their respective places of residence and Lakkappa and his wife likewise went home. Thereafter Lakkappa had gone to the village of Mudalgi to attend the bazar there. He returned on Thursday following at about 3 P. M. As usual, after night-fall he went to sleep in Kamdev's temple.
4. It was while Lakkappa was asleep in front of Kamdev's temple that accused Nos. 1 and 2 murdered him. Lakkappa was then lying on a mat & his head was placed on a pillow. He had taken off both his shirt and underwear and kept them near the pillow. Soon after he had fallen asleep, Sadashiv, who used to sleep by the side of Lakkappa, came to the temple, spread his own bed and went to sleep. About midnight Sadashiv felt the touch of Lakkappa's hand on his body. He was awakened and when he got up he saw the deceased Lakkappa struggling as a result of bleeding injuries. One of the accused was then standing near the head of Lakkappa and the other by his side. Accused No. 2 was armed with an axe.
Sadashiv could identify the two accused because they were known to him. As soon as Sadashiv got up, the two accused ran away. Sadashiv then ran to the house of the deceased and informed Tippanna, the maternal-uncle of the deceased, Yamnawwa, his mother and Tippawa, his wife, about the offence which had been committed by the accused. These three relatives then rushed to the scene and found that Lakkappa was dead. By this time a large crowd of villagers had assembled on the spot. Information of this offence was then conveyed to the Police Patil and at the end of the investigation a charge-sheet was submitted against both the appellants that they had committed the murder of Lakkappa in pursuance of their common intention. That is the prosecution case.
5. In support of this case the prosecution relied upon the confessions made by both the appellants. They also relied upon the evidence of Sadashiv. In the Court of Session Sadashiv was treated as hostile and the evidence given by him in the ommittal Court was taken on the record as substantive evidence under Section 288, Criminal P. C. It was on this evidence that the prosecution relied before the learned Additional Sessions Judge. According to the prosecution, this evidence and the confessions were corroborated by the evidenceof the three relatives who were called on the spot by Sadashiv and to whom Sadashiv had given the names of the appellants as the assailants of Lakkappa.
The learned Additional Sessions Judge held that the confessions were not admissible. According to him, in recording these confessions the learned Magistrate had not complied with the requirements of Section 164, Criminal P. C. and that rendered the confessions inadmissible. Even so he was satisfied that Sadashiv's evidence in the committal Court gave a true account of what Sadashiv had really seen, and since this evidence was corroborated by the evidence of the three relatives of the deceased Lakkappa, the learned Judge held that the offence charged against the two appellants had been proved beyond a reasonable doubt. Mr. Beddi contends that the learned Judge was right in rejecting the confessions as inadmissible and he argues that on the remaining evidence it would be unsafe to convict the appellants of the offence charged.
The learned Government Pleader, on the other hand, contends that the learned Judge was wrong in excluding the confessions on the ground that they were inadmissible and he argues that even without the confessions the order of conviction passed by the learned Judge is well founded. That is why the first question which we have to consider is whether the confessions alleged to have been made by the two appellants are admissible in law.
6. Both the accused were arrested on 30th August 1952. They were produced before the learned Magistrate for recording their confessions on 31st August and the confessions were in fact recorded on 1st September 1952. Both of them retracted their confessions at the committal stage and they adhered to their retraction in the Court of Session. The statements made by them are substantially identical. Both of them told the committing Court that they had not made any confessional statements as read out to them and that their thumb impressions were taken on a paper by the police. In the Court of session both pleaded that they had not made any confession before the Magistrate. The Police Sub-Inspector and the police had obtained them and it was the police that took their thumb impressions on a paper by force.
These allegations have been stoutly denied by the Sub-Inspector, and on the evidence of the learned Magistrate who recorded the confessions it is absolutely clear that the confessions were not taken by the police, but were made before the learned Magistrate under Section 164. It is also clear that both the accused persons were net in police custody for more than 48 hours and they seem to have expressed their willingness to confess very soon after they were arrested. We have, therefore, no hesitation in rejecting the theory set up by the accused in respect of these confessions and we have no doubt that these confessions were voluntarily made by both of them. That, however, does not fully dispose of the point about the admissibility of these confessions.
7. It appears that when the two accused persons were produced before the learned Magistrate on 31st August the learned Magistrate took all the precautions required by Section 164 and put to them all the relevant questions as prescribed by the High Court Circulars. He cautioned each one of them that he was not bound to make a confession and that the confession would be used as evidence against him if he were to make one He also asked each of them whether he had beencoerced or threatened and whether any promise had been held to him by any police-officer that if he made a confession he would benefit or he may escape from the case. All these questions were answered by both the accused separately & each one of them expressed his willingness to make a confession. Both stated that there hadbeen no coercion, threat or promise and that they wanted to make the confession even though it was likely to be used against them.
At that stage the learned Magistrate gave them time to consider and remanded the accused to the sub-jail at Mudhol with a direction that they should be produced before him the next day at 5 p.m. Accordingly both the accused were produced before the Magistrate the next day. The Magistrate then asked each one of them this question: 'You had been allowed time to properly consider about making a confession. Is it not?' Each one of the accused said 'Yes' in answer and proceeded to make his confessional statement. After the confession of each accused was recorded, the learned Magistrate added a certificate that he had explained to the accused that he was not bound to make a confession and that if he does so it may be used against him as evidence.
The Magistrate also stated that he believed that the confession was voluntarily made and that it was taken in his presence and hearing and was read over to the person making it who admitted it to be correct. It is, therefore, clear that the record of the confessionstaken by itself does not show that the precautions which the Magistrate had taken on the earlier occasion were taken by him the next day in the manner prescribed by the High Court Circulars. The questions which are required to be put expressly under Clauses. (d), (e), (f), (g) and (j) of Circular No. 2 issued by this Court are not shown to have been put to the accused on the day when the confessions were actually recorded and in that sense there is non-compliance with the requirements of the Circulars without any doubt.
8. The learned Additional Sessions Judge before whom these confessions were tendered, naturally proceeded to act under Section 533, Criminal P. C. and examined the Magistrate who recorded the confessions. Section 533 provides that if a Court before which a confession is tendered finds that any of the provisions of either Section 164 or Section 364 have not been complied with by the Magistrate in recording the same, it shall take evidence to show that such person duly made the statement recorded. This section also lays down that the oral evidence given by the recording Magistrate would be admissible notwithstanding the provisions contained in Section 91. Evidence Act.
There is, however, one important proviso to this section: and that is that such oral evidence can be admitted if the error committed by the recording Magistrate has not injured the accused as to his defence on the merits. Whether or not the error committed by the recording Magistrate Injures the defence of the accused on the merits would always be a question of fact to be decided in the circumstances of each case. The decision of this question would naturally depend upon the nature of the error committed by the Magistrate In recording the confession, the nature of the defence set up by the accused and the likely or possible relation between the said error and such defence which may be raised by the accused.
9. In the present case the learned Magistrate stated that on 1st September 1952. before he recorded the confessions of both the accused he had asked them whether they had considered the matter, & they had answered in the affirmative: TheMagistrate then adds:
'I was satisfied after all this inquiry that he was making a statement voluntarily. Then I recorded that statement made by him.'
In cross-examination the Magistrate denied the suggestion put to him that before recording the confessions he had put to the accused only one question as set out in the record of the confessions itself. That is how the evidence of the Magistrate stands. We are prepared to assume that the learned Magistrate was satisfied bona fide that both the accused persons were making confessions voluntarily and it may perhaps be that he had expressly told them before recording their confessions that they were not bound to make a confession, and that if they made a confession, the same would be used against them.
That is what the Magistrate has stated in the certificate appended to both the confessions and we would naturally hesitate to disbelieve the said statements. On the other hand, we cannot ignore the fact that the learned Magistrate knew what the High Court Circulars required him to do before recording a confession and he had in fact specifically and expressly put to the accused the questions as laid down by the said Circulars. It may, therefore, not be altogether unlikely that on the next day when the accused persons were produced before the Magistrate again, the learned Magistrate may not have put to the accused all the questions one after the other as he had done on the earlier occasion.
As the record shows, he reminded them that time had been given to them to consider the matter about making confessions and as his certificate points out, he may have made some other general inquiry to satisfy himself that the confessions were voluntarily made. Unfortunately, the Public Prosecutor did not ask the Magistrate what other questions he had put to the accused before he recorded their confessions. That is why in cross-examination all that the Magistrate could say was that it was not true to allege that on the second occasion he had put them only one question noted at the commencement of the confessional statements. That is a lacuna on which the accused are no doubt entitled to rely. But on the whole we would not be prepared to accept the conclusion of the learned Additional Sessions Judge that the Magistrate had made no inquiry to satisfy himself that the confessions were voluntarily made and that the certificate appended by the learned Magistrate to the said confessions is inaccurate, if not untrue.
Even so, it cannot be disputed that the Circulars Issued by this Court for the guidance of the Magistrates in recording confessions have not been complied with. There can be no doubt that the questions prescribed by the Circulars had to be put by the learned Magistrate on the second day, because Section 164, with reference to which the said Circulars have been issued, requires the precaution to be taken before recording confessions. It would not be possible to take the view that the precaution which was taken and the questions that were put to the accused on the earlier day need not have been repeated on the subsequent day at all.
There is another Irregularity which has been committed in recording these confessions and that is that the learned Magistrate has not set out the grounds on which he believed that the confession was genuine and the precautions which he took to remove the accused from the influence of the police. Thus we must deal with, the question of the admissibility of these confessions on the basis that the learned Magistrate is shown to have committed irregularities in recording the confessions inasmuch as he has not complied with the Circulars issued by this Court in that behalf; and we may assume in favour of the accused that specific and clear warning may not have been given by the Magistrate on the day when he recorded their confessions, though on general inquiry made the Magistrate was satisfied that the confessions were voluntary. The question which falls to be considered is, do these irregularities make the confessions inadmissible in law?
10. It may be convenient at this stage to consider the provisions of Section 164. Sub-section (1) mentions the Magistrates who are authorised to record any statement or confession made to them in the course of an investigation under chapter XIV of the Code or at any time afterwards before the commencement of the inquiry or trial. Sub-section (2) lays down that such confessions shall be recorded and signed in the manner provided in Section 364 of the Code and shall then be forwarded to-the Magistrate by whom the case is to be inquired into or tried. It is common ground that the requirements of both of these Sub-sections are satisfied by the confessions in the present case.
Sub-section (3), which has been added by amending Act 13 of 1923 provides that the Magistrate, before recording a confession, shall explain to the person making it that he is not bound to make a confession, and that if he does so, it may be used as evidence against him. It also adds that no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. There is a further provision in the said Sub-section by which the Magistrate is required to make a memorandum at the foot of the record of such a confession setting out that he had explained to the accused that ho was not bound to make a confession, and that if he docs so, any confession he may make would be used as evidence against him, and that he was satisfied that the confession was voluntarily made and that it was taken in his presence and hearing, and was read over to the person making it and was admitted by him to be correct.
It may incidentally be pointed out that while the Legislature added Sub-Section (3) to Section 164 by the amending Act 18 of 1923, they have not amended Section 163(2), which expressly enjoins upon the police-officers not to prevent, by caution or otherwise, any person from making any statement which he may be disposed to make of his own free will. Perhaps, the Legislature thought that since Section 27, Evidence Act allows only such portions of confessions made before the police-officers to be admitted as lead directly and immediately to the discovery of a fact, it was unnecessary to give the accused any safeguard as mentioned in Section 164 (3).
11. As I have already indicated, the argument for the accused is that the requirements of Section 164(3) are not complied with, and the learned Additional. Sessions Judge has accepted that contention. We have, however, modified the conclusion of the learned Judge by holding that the certificate issued by the learned Magistrate shows or should be deemed to show compliance with the provisions of Section 164(3), though it is clear that the material Circulars issued by this Court have not been complied with. We are also prepared to assume that the material caution wasgiven by the Magistrate only generally and not expressly and specifically on the day when he recorded these confessions.
Though this is our conclusion on facts, we would prefer to deal with the question of the admissibility of the confessions on the broader assumption that no caution was given to the accused 'at all' as required by Section 164(3) itself. If we come to the conclusion that even non-compliance with the requirements of Section 164(3) does not always or necessarily make the confession in question inadmissible, it would follow that a comparatively minor irregularity committed by the Magistrate in recording the present confessions cannot obviously make them inadmissible.
12. Now, in dealing with the question of the admissibility of these confessions we must, in the first instance, inevitably turn to the provisions of the Evidence Act itself. Primarily, it is the rules laid down by the Evidence Act that determine the question of the admissibility of evidence either oral or documentary. The question as to the admissibility of confessions is dealt with by Ss. 24 to 29, Evidence Act. Section 24 makes irrelevant any confession which is caused by inducement, threat or promise having reference to the charge against the accused person, proceeding from, a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature.
In other words, the effect of Section 24 is that before a confession becomes relevant it must be shown that it is not caused by inducement, threat or promise as mentioned in that section. Section 25 lays down the general rule that a confession made to a police-officer shall never be proved as against a person accused of any offence; under Section 26 it is only when a confession is made in the immediate presence of a Magistrate by a person whilst he is in the custody of the police-officer that can be proved against such a person. Section 27 provides for an exception to the general rule laid down in Section 25; it permits a portion of the confession to be proved even though it is made by an accused person in the custody of a police-officer, provided that the said portion relates distinctly to the fact thereby discovered. Section 28 deals with a confession which is made by an accused person after the impression caused by any inducement, threat or promise has been fully removed, and it makes such a confession relevant. Then we go to Section 29, which is material for the purpose of deciding the point in question.
13. Section 29 lays down that 'if such a confession is otherwise relevant', it does not become irrelevant, inter alia, 'merely' because before it was made the accused was not warned that he was not bound to make such a confession and that the evidence of it might be given against him. The opening words of Section 28 are 'if such a confession, as is referred, to in Section 24', and these words assist us in interpreting similar opening words of Section 29. It is true that Section 29 does not repeat the whole of the opening clause of Section 28; but that, in our opinion, does not affect its interpretation. In the context this opening clause refers to confessions which have been dealt with in the preceding sections and it postulates that they are admissible under the said sections. It is with such confessions that Section 29 deals.
Therefore, in our opinion, this clause indicates that before the provisions of Section 29 can be invoked, it must appear that the confession in ques-tion is admissible under the preceding sections of the Evidence Act. In other words, it must not have been caused by inducement, threat or promise, it must have been made in the immediate presence of the Magistrate, and if any inducement, threat or promise was held to the confessor, It must have been made after the impression of such inducement, threat or promise had been fully removed from his mind. If for any of the reasons mentioned in the preceding sections the confession is inadmissible, then there is no question of applying the provisions of Section 29 at all.
Section 29, therefore, assumes that there is no bar to the admissibility of the confession in question 'arising from any of the said earlier provisions and it then proceeds to invalidate or negative other possible objections or bars that may be raised against its admissibility. If it is urged that the confession was made under a promise of secrecy and so it should not be admitted or that if was made in consequence of a deception practised on the accused or when he was drunk or it was made in answer to questions which he need not have, answered and so it would not be admitted, the section provides an answer by saying that these objections are invalid and the confession which is otherwise admissible is not rendered inadmissible merely by the presence of circumstances on which the said objections are raised, it is in this context that Section 29 has provided that the confession in question would be admissible even though the accused was not warned that he was not bound to make the confession and that evidence of it might be given against him.
14. Now, this provision was on the statute book for many years before Sub-section (3) of Section 164 was introduced in the Code by the amending Act 18 of 1923. It seems to us that whatever else may be the effect of non-compliance with the provisions of the said amended Sub-section, it cannot override the plain words of Section 29. The rules which govern the question of the admissibility of evidence, oral and documentary, are laid down by the Indian Evidence Act, and it is by these rules alone that the question of admissibility must be determined, unless these rules are expressly or by necessary implication modified or superseded by any other provision of the law.
Even before Sub-section (3) of Section 164 was introduced in the Code, it was often enough argued in criminal trials that a confessing accused should be given a warning that he is not bound to make a confession, and though all Courts seem to have agreed in holding that it would be advisable not to tempt the accused to make a confession and even to give him a warning that he is not bound to do so, it was always thought doubtful or debatable whether failure to give such a warning makes the procedure in recording confessions irregular. That is why Legislature intervened and imposed an obligation on the recording Magistrates to give a warning to the accused and comply with the other requirements of the new Sub-section. Even so, the Legislature did not further provide that the insertion of this clause should to that extent modify or supersede the express terms of Section 29, Evidence Act, which can be said to be in conflict with the spirit of the provisions of the said Subsection.
It cannot be disputed that even while enacting procedural law it is perfectly competent to the Legislature to modify or supersede the rules of evidence laid down by the Indian Evidence Act and in fact this course has sometimes been adopted by the Legislature. Section 533 of the Code, to which I have already referred, is itself an illustration in point. While authorising a criminal Court to admit oral evidence of the recording Magistrate, the Legislature has expressly provided that this should be so done notwithstanding the provisions of Section 91, Evidence Act. If the Legislature had taken the view that non-compliance with the provisions of Section 164 (3) should render the confessions inadmissible, the Legislature would certainly have made an appropriate provision by the amending Act itself or could have made a suitable amendment in Section 29 Evidence Act.
The Legislature was fully aware of the clear and unambiguous words used in Section 29 which were inconsistent with the spirit of the provisions they were introducing by the amending Act 18 of 1943 and yet they did not think it necessary to provide for the supersession or modification of Section 29 in that behalf. In our opinion, it would, therefore, not be unreasonable to hold that the mere fact that the procedure provided by Section 164 (3) in regard to giving a warning to the accused has not been complied with in recording the confessions would. not by itself necessarily make the said confessions inadmissible. The decision of this question must depend upon the application of the rules of evidence laid down by the Evidence Act, and if the-confession is otherwise shown to be relevant under the earlier sections of the Evidence Act it cannot be said to be inadmissible merely for the reason that no warning was given to the accused.
We have already held that the confessions with which we are concerned are voluntary and no other objection against the admissibility of these confessions has been urged before us under the other provisions of the Indian Evidence Act. That is why we must hold that the learned Additional Sessions Judge was wrong in coming to the conclusion that these confessions are inadmissible.
15. We must, however, hasten to add that when we hold that the irregularity of procedure in recording the confessions does not necessarily make them invalid we do not minimise the importance of strictly complying with the provisions of Section 164(3). These provisions have been deliberately and -- if we may say so, with respect, --wisely made by the Legislature in order to] afford a safeguard in the interest of the accused. This Court has on several occasions emphasised the importance of strictly adhering to these requirements. We have always held that the acts of recording a confession is a very solemn act and the learned Magistrate who records the confession must never allow an element of casualness to creep into the recording of a confession. It is the duty of the recording Magistrate honestly and fully to satisfy himself that the confession is voluntary and is not the result of any coercion, inducement or threat practised on the accused.
It is also his solemn duty to caution him that he is not bound to make a confession and to warn him that if he makes a confession it would be used against him. All that we are holding is that, however important it may be to follow this procedure, its non-observance with regard to giving a warning to the accused has no direct effect on the admissibility of the confession itself. However, it is not at all unlikely that if the irregularity appears to the Court to introduce an element of doubt as to whether the confession was voluntary, the Court would not hesitate to reject the confession as being inadmissible on the ground that it is not voluntary. If in this case we had felt the slightest doubt about the voluntary character of the 'confessions made by the accused,we would ourselves have held that they are not admissible on that ground.
16. There is another consequence that would follow if the confessions are recorded irregularly and without fully complying with the requirements of Section 164(3). It is well settled that it is inexpedient that an accused should be convicted merely on his confession, unless his confession receives some corroboration from some other evidence in the case. The nature and extent of the corroboration that the Court would require in any case would naturally depend upon the facts and circumstances of that case. But if it appears to the Court that an irregularity has been committed in recording the confession, the Court would be slower and more reluctant than usual to act upon such a confession without sufficient corroboration.
This aspect of the matter has been emphasised by Mr. Justice Govinda Menon in 'In re Karunthambi : AIR1950Mad579 ', when he observes that though Section 29, Evidence Act makes a confession made by an accused person who has not been warned according to the provisions of Section 164, Criminal P. C. admissible in evidence, still the Court must find out how far such a confession can be acted upon in view of the irregular procedure by which it has been recorded. It now remains to consider some decisions to which our attention has been invited.
17. In -- 'Housabai v. Emperor AIR 1932 Bom 553 (B), Barlee and Wadia JJ. had construed Section 164(3) very strictly. They had held that the caution required by the said Sub-section must be conveyed by means of questions and answers and the same must be recited in the body of the confession itself as well as in the memorandum or certificate which is required to be made at the loot of the record, that the said memorandum must he written by the Magistrate in his own hand as well as signed by him, and that if these two conditions are not satisfied, a confession would be rendered inadmissible though it may have been recorded in the form sanctioned and prescribed by the High Court and though it may bear at the foot of it the memorandum prescribed by Section 164(3) duly signed by the Magistrate. If this had been the real position in law, the present confessions would obviously have been invalid and even inadmissible.
It, however, appears that the broad propositions laid down in this judgment have been reversed by a Full Bench of this Court in -- 'Tukaram v. Emperor AIR 1933 Eom 145 (C). Both Mr. Justice Baker and Mr. Justice Broomfield who delivered concurring judgments. have pointed out that the first two propositions laid down in -- 'Housabai's case (B)' were not at all warranted by the terms of Section 164(3). As Mr. Justice Broomfield has pertinently observed, at p. 148:
'....if the Magistrates cannot be trusted not to sign this declaration unless it is true, they are not likely to be rendered more trustworthy by being required to make the declaration twice over.'
Mr. Justice Broomaeld has also added that Section 164 does not require the Magistrate to ask any specific questions or that he should make a note at the beginning of the confession reciting the fact that the questions were put and that the explanation had been made by the accused.
He held that if the propositions laid down in --'Housabai's case (B)' were correct, the confessions In a very large number of criminal cases might have to be rejected and that would lead to agrave miscarriage of justice. We may incidentally point out that the attention of the Court was apparently not drawn to the Circulars issued by this Court, which require certain specific questions to be put by the Magistrate to the accused in order to give effect to the provisions contained hi Section 164(3). As I have already pointed out, in the present case, it is primarily the requirements of these Circulars that have not been complied with by the Magistrate who recorded the confessions. The head-note in -- 'Housabai's case (B)' and certain remarks made by Mr. Justice Broomfield in reference to the said head-note may seem to support the view that a confession which is irregularly recorded is inadmissible in evidence.
With respect, however, we must point out that the provisions of Section 29 of the Evidence Act were not cited before the learned Judges in both the cases and the question of admissibility of the confessions from that point of view had not been argued and does not appear to have been considered or expressly decided. This question has, however, been considered by other High Courts and conflicting views have been expressed on it.
18. The judgment of Mr. Justice Mukerji in-- 'Emperor v. Panchkari Dutt : AIR1925Cal587 has been cited by the learned Additional Sessions Judge in his judgment in support of his conclusion that the confessions in question are inadmissible, and indeed the said judgment is referred to in some of the reported judgments also for the same purpose. When we examine the judgment, however, it appears to be clear that Mr. Justice Mukerji did not decide the question as to whether a confession which is recorded Without complying with the provisions of Section 164(3) is admissible or not. The admissibility of the confession was challenged before Mr. Justice Mukerji on two grounds. The first was that the confession was involuntary and the second was that it had not been recorded as required by Section 164(3).
Dealing with the latter point, Mr. Justice Mukerji was satisfied that Section 164 did not apply to the confession before him which had been recorded in the Presidency Town of Calcutta and so he had no occasion to consider the effect of the alleged failure to comply with the requirements of Section 164(3). He then proceeded to consider whether the confession was voluntary and came to the conclusion that it was involuntary and, therefore, inadmissible. Thus, it cannot be said that Mr. Justice Mukerji's judgment lays down the proposition which has been accepted by the learned Additional Sessions Judge in excluding the confessions in this case.
19. In -- Tunia v. Emperor : AIR1946Pat169 (E), Das and Ray JJ. of the Patna High Court had occasion to consider this question. Mr. Justice Das took the view that where a confession was recorded on two dates and a warning that the confessor was not bound to make it was given on the first day only and not on the second, there was non-compliance with the requirements of Section 164(3) on the second day, and that, therefore, the confession made on that day was not admissible in evidence. Mr. Justice Ray also appears to have concurred with this conclusion. In fact, both the learned Judges have referred to : AIR1925Cal587 (D)' as one of the decisions in favour of the view which they were taking. They also relied upon the judgment of the Privy Council in -- 'Nazir Ahmed v. King-Emperor to which I will refer later.
20. In -- 'Emperor v. Jamuna Singh AIR 1947 Pat 305 (G), the Patna High Court again con-sidered the same question. This time Bennett and Ray JJ. constituted the Bench before which it was urged that if Section 164(3) is not complied with In recording a confession, the confession would become inadmissible. The admissibility of the confession was attacked also on other grounds. Mr. Justice Bennett was not prepared to accept the argument that Section 164(3) overrides or supersedes Section 29, Evidence Act. He referred to the earlier decisions of the Patna High Court in which it had been held that such confessions are inadmissible and he also mentioned the Privy Council judgment in -- 'Nazir Ahmed's case (F)', and added that in all these decisions the attention of the Court was not called to Section 29 and the provisions of Section 29 had not been considered. The learned Judge then dealt with the other objections raised against the confession and held that the said confession could not be acted upon.
Mr. Justice Ray, who was a party to the decision in -- 'Punia v. Emperor (E)', however, adhered to his earlier view and has given several reasons in support of that view. Mr. Justice Ray held that
'section 29 shall be taken to cover the field ofconfessions other than those dealt with in itspreceding sections, or in other words, extrajudicial confessions.'
The learned Judge then examined the position under the English law on this question and he held that since the rules of evidence contained in Ss. 24 to 29 are based on certain rules of procedure adopted in English jurisprudence, it would be relevant to seek for guidance from the English rules of procedure. In his opinion, these rules supported his conclusion that Section 29 docs not cover confessions recorded by Magistrates under Section 164.
He was also prepared to hold in the alternative that if Section 29, Evidence Act and Section 164, Criminal p. C. are both applicable to confessions recorded by Magistrates, then the doctrine that the later Act when contrary in matter, quality and form repeals the former Act will apply. The learned Judge concluded by relying on the observations of the Privy Council in -- 'Nazir Ahmed's case (F)' and held that he saw no reason to change the view which he had already expressed in --'Punia's case (E)'. With respect, we do not agree with the reasoning and the conclusion of Mr. Justice Ray. It seems to us that the words used in Section 29 do not warrant the limitation put by Mr. Justice Ray on the scope of Section 29 and we feel considerable hesitation in accepting the view that the rule of evidence laid down in Section 29 can be deemed to have been overruled by the provisions of Section 164(3) merely because the said provision is later in point of time and there is an apparent conflict between the spirit underlying the said section and Section 29, Evidence Act.
21. Section 164 provides for the manner in which confessions should be recorded; and whatever else may be the effect of non-compliance with its provisions, it is difficult to hold that it supersedes the relevant portion of Section 29, Evidence Act. Admissibility of the confession must, we think, be determined in the light of the provisions of Section 29, though as we have already pointed out, the value of a confession irregularly recorded would naturally be considerably impaired, and, it may be. such a confession may even be held to be involuntary and as such inadmissible under Section 24, Evidence Act. We think that if the words used in Section 29 are plain and unambiguous, it would not be necessary, desirable or safe to impose a limitation upon their meaning on the assumption that such a limited construction is In conformitywith the English procedure on this point. We would, therefore, not attempt to consider the question whether the English practice and procedure really supports the view taken by Mr. Justice Ray.
22. The Allahabad and the Madras High Courts have, on the other hand, taken the same view which we have taken of the effect of Section 29, Evidence Act. In -- 'Vellamoonji Goundan v. Emperor AIR 1932 Mad 431 (H), it has been held by Mr. Justice waller and Mr. Justice Krishnan Pandalai that a confession, which is otherwise admissible, is, by virtue of Section 29, Evidence Act, admissible even though the caution prescribed by Section 164(3), Criminal P. C. has not been administered. Section 164 of the Code does not override Section 29, Evidence Act, and it is the latter Act that must, as a rule, be considered when there is a question of the admissibility of a particular piece of evidence. In -- 'Emperor v. Nanua : AIR1941All145 , Mr. Justice Ismail and Mr. Justice Hamilton have accepted the same view.
23. Only one decision now remains to be considered and that is the Judgment of the Privy Council in -- 'Nazir Ahmad v. The King-Emperor (F)'. This judgment is cited in support of the conclusion that confessions which are irregularly recorded are inadmissible in evidence. In appreciating the effect of this judgment, it is important to bear in mind the facts with which the Privy Council had to deal and the precise nature of the point which fell to be decided by them. A dacoity had been committed on 11th October, 1934. On 14th November, 1934, on the application of the police and under the orders of the District Magistrate, a First Class Magistrate proceeded by car to the scene of the dacoity and to the places material to the events connected with it. The accused in handcuffs accompanied the Magistrate in another car,
On arrival the Magistrate excluded the police or sent them apart at a distance, and then was led round by each of the accused and the places were pointed out. The prosecution case was that at this time the appellant before the Privy Council had made a full confession of his participation in the robbery before the Magistrate. The Magistrate made rough notes of what he was told and after dictating to a typist a memorandum from the rough notes, he proceeded to destroy them. At the trial this memorandum which was called a note and which was signed by the Magistrate was produced by the prosecution as containing the substance but not all of the matter to which the Magistrate orally deposed. At the end of the note a certificate was appended somewhat to the same effect as that prescribed in Section 164.
However, it did not appear that the Magistrate either purported to follow or in fact followed the procedure of Section 164 and S, 364. Indeed, it was clear that there was no record in existence at the material time, there was nothing to be shown or to be read to the accused and nothing he could sign or refuse to sign. It was on these facts that the Privy Council had to consider the question as to whether the memorandum could be treated as a confession duly recorded by the Magistrate under Section 164, and their Lordships said that it could not be regarded as a conffession duly recorded. They also held that the Magistrate's evidence of the alleged confession was inadmissible and that in the absence of other sufficient evidence the conviction must be set aside.
It would thus be clear that this was not a case where a confession had been recorded under Section 164 but some irregularity had been committed bythe learned Magistrate in recording it. In fact, as the judgment points out, the Magistrate did not purport to act and had in fact not acted under Section 164. And yet the prosecution wanted to rely upon the evidence given by the Magistrate on the assumption that a confession had been recorded under Section 164 and the Magistrate would be competent to give evidence under Section 533, Criminal P. C. It is undoubtedly true that Lord Roche in his judgment has expressed strong disapproval of the procedure adopted by the Magistrate and has examined the question of the Magistrate's powers and obligations under Section 164 both on principle and in the light of Indian decisions which were cited before the Board.
The important fact on which the whole of the judgment can be said to rest was that investigation had commenced at the time when the Magistrate made a note of the summary of the statement made before him by the accused and Lord Roche pointed out that in their Lordships' opinion the unfortunate position with which they were confronted in the said case at p. 258:
'...... cannot in future arise because, in theiropinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.'
That is why the Privy Council held that the evidence of Mr. Vasisht, the Magistrate, should have been rejected by the Court. It was on these facts that Lord Roche expressed the conclusion of the Privy Council as to the effect of Ss. 164 and 364 taken together. According to the judgment, the effect of these two sections is to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation.
The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way, to the exclusion of all other methods of performance, or not at all, is applicable to a Magistrate, who is a judicial officer, acting, under Section 164. The question is whether this decision was intended to, and does in fact, lay down the general proposition that non-compliance with Section 164 of whatever kind or nature renders the confession itself inadmissible. With very great respect, we do not think that their Lordships of the Privy Council had occasion to consider the effect of Section 29, Evidence Act when they dealt with -- 'Nazir Ahmed's case (F)'. The only point which arose before them was whether the Magistrate's oral evidence was admissible in view of the fact that he gave evidence about a confession which he was bound to record under Section 164, since it was made to him at a time when the investigation had commenced, and the decision was that the evidence given by the Magistrate on these facts must be rejected.
Indeed, it may be pointed out that even while the Privy Council rejected the evidence of the Magistrate, they have made a pertinent observation that however undesirable it may be that Magistrates and Judges should be in the position of witnesses, sometimes it cannot be avoided as under Section 533. That shows that the Privy Council were alive to the fact that under Section 533 a Magistrate who records a confession can give evidence and if the lacunae which such evidence purports to fill in do not affect the defence of the accused on the merits, the Court can consider the Magistrate's oral evidence and decide the question as to whether the procedure under Section 164(3) had been followed or not.
Therefore, in our opinion, it would not be correct to hold that the decision in -- 'Nazir Ahmed's case (F)', or the observations made by Lord Roche in delivering the Judgment of the Board support the broad proposition that every irregularity committed by the Magistrate in recording a confession under Section 164 necessarily and without any exceptions makes the confessions inadmissible. In every case where It is alleged that an irregularity has been committed in recording a confession, the Court will have to consider the nature of the irregularity alleged and to decide whether the same can be cured by taking the evidence of the Magistrate under Section 533 of the Code. With respect, we think that the point which -- 'Nazir Ahmed's case (F)', decides is that where the Magistrate has not acted and has not even purported to act: under Section 164, when Section 164 obviously applied, Section 5331 cannot be invoked to render the Magistrate's evidence admissible.
24. Thus, the position of the judicial decisions can be summed up by saying that the majority opinion in the Patna High Court is against the view which we have taken, whereas the Allahabad and the Madras High Court support our view. (His Lordship, after considering the confessions and evidence adduced by the prosecution, concluded.)
25. Thus the evidence against the accused consists of their confessions, which we hold are voluntary and true, the statement of Sadashiv in the Court of the committing Magistrate and the corroborative evidence given by the three relations of the deceased. That being so, we must hold that the learned Judge was right in convicting the appellants of the offence charged. We may also add that in view of the character of the evidence given by Sadashiv which is corroborated by other reliable evidence we would probably have agreed with the learned Judge's conclusion even if we had excluded the confessions from consideration on the view that they were inadmissible.
26. The result, therefore, is that the appeal preferred by the appellants Is dismissed and the order of conviction and sentence passed against them is confirmed.
27. Appeal dismissed.