1. A preliminary point has been raised in this case that the confession of accused No. 1 Tukaram Khandu, is inadmissible in evidence because the provisions of the Criminal Procedure Code governing the recording of confessions have not been complied with. Three points have been raised by the learned advocate for the appellant, viz., that the memorandum which is necessary to be made under Section 164 of the Code of Criminal Procedure does not show that the accused was warned before his confession was recorded that he was not bound to make a confession. The second point is that the Code requires that the memorandum under 9. 164 should be in the Magistrate's own hand, whereas in the present, case it is a typed form signed by the Magistrate, and the third point taken is that this memorandum is attached not to the confession of the accused in vernacular, but to the English memorandum of the substance of it made by the Magistrate.
2. As regards the first point, under Section 164 of the Code of Criminal Procedure, before recording a confession a Magistrate is bound, under Sub-section (3), to explain to the person making the confession that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and no Magistrate should record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily, and when he records any confession, he should make a memorandum at the foot of such confession to the following effect:-
I have explained to (name) that he is not bound to make a confession and that, if he does sO, any confession he may make may be used as evidence against him, and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
The memorandum in its present form was substituted for the old form by Section 35 of the Code of Criminal Procedure Amendment Act, XVIII of 1923. Before that the memorandum began with the words, 'I believe that the confession was voluntarily made.' Under the Code it is necessary that the Magistrate before recording the confession should warn the accused that he is not bound to make a confession. The Code does not provide for this warning being recorded otherwise than in the memorandum at the foot of the record. When the Code was amended in 1923, if the Legislature had intended that this warning or explanation should be written out on the form of the confession before the accused began to confess, I cannot see any reason why it should not have stated so. But all that the Code requires is that this memorandum should appear at the foot of the record. Now clearly there would be no object in warning the accused that he was not bound to make a confession if this warning was not given until after the confession had been made. Therefore it is to be presumed that this warning was given before the accused began to confess; otherwise the memorandum signed by the Magistrate does not correspond with the actual facts. The presumption is that judicial and official acts are regularly performed, and as a matter of fact, in one of the cases which have been quoted by the learned advocate for the appellant, the existence of the memorandum provided by Section 164 of the Code has been held to be prima facie evidence that the warning was given at the appropriate time, that is before the confession was recorded. In Partap Singh v. The Crown I.L.R. (1925) Lah. 415 it is stated (p. 427) :-
If, when a document is tendered in evidence at a trial purporting to be a confession of the accused, it is found to contain the memorandum required by Section 164 (3) above set out, a presumption arises under Section 80 of the Evidence Act that all the necessary formalities purporting to have been performed have in fact been performed, and the document is admissible in evidence without further proof.
The memorandum of the confession in English is in the form prescribed by the High Court under the Criminal Circulars, and Sub-section (3) refers to the accused being asked if he is disposed to make a confession of his own free will. He has replied, 'Yes'. He was given to understand that the evidence may be used against him, and in spite of that he was willing to give the confession. The memorandum provided by Section 164 appears at the foot of the English record. It begins by saying, 'I have explained to Tukaram Khandu Gadhavi that he is not bound to make a confession.' The requirements of the law are, therefore, complied with, and in the absence of anything to the contrary, I do not see why it should be assumed that no warning was given to the accused before the confession was recorded. The learned advocate for the appellant has referred to a recent case of this Court, Emperor v. Housabai : (1932)34BOMLR1240 , in which a bench of this Court had come to a somewhat different conclusion. The head-note to that case says :-
A failure by a Magistrate to convey the caution, required by Section 134(3) of the Criminal Procedure Code, 1898, to a confessing accused, that he is not bound to make a confession and that if he does so it may be used as evidence against him, invalidates the confession and renders it inadmissible in evidence against the accused. Such a failure cannot be cured under Section 533 of the Code.
3. In that case, which was somewhat similar to the present case, it is stated at p. 1243 that:-
Section 164 (3), however, requires that a Magistrate shall, before recording a confession, explain to the person making it that ho is not bound to make a confession etc. That question was not put to her according to the record, and the Magistrate failed to record the warning, namely, that ho had explained to her that she was not bound to make a confession.
4. And the fact that the warning appeared in the certificate appended at the end of the confession, but that certificate was written out by the clerk and signed by the Magistrate, was held to invalidate the confession. With all respect, where the section distinctly lays down that all that is necessary is that the Magistrate shall append a memorandum containing inter alia a clause to the effect that he has explained to the accused that he is not bound to make a confession, and the Magistrate has in accordance with the law appended this memorandum, I am unable to understand why this should be held to be an insufficient compliance with the law. As I have already said, if the legislature at the time when this section was amended intended that this warning should be written down before the confession commences, they could have said so, and when the Magistrate has certified that he has given this caution, I do not know why it should be assumed that his statement is incorrect. With respect, therefore, I differ from the views expressed in this ruling, and this is sufficient for the first point.
5. The second point argued is that the memorandum provided by Section 164 (3) must, under the law, be in the handwriting of the Magistrate him self. There is no authority for this view except one sentence in the case just quoted, Emperor v. Housabai, viz. 'but that certificate was written out by the clerk and was signed by the Magistrate.' It may be pointed out that where the Code requires anything to be written by the Magistrate in his own hand, it says so, and in connection with the point we are now discussing, Section 164 refers to Section 364. Under Section 364, Sub-section (3), where the Magistrate or Judge does not record the examination of the accused himself, he is bound to make a memorandum thereof in the language of the Court or in English in his own hand. But the Code does not say that the memorandum referred to in Section 164 (3) shall be in the Magistrate's own hand. I am of opinion that it is a sufficient compliance with the law if the memorandum is signed by the Magistrate. It has been held in Queen v. Rezza Hossein (1867) 8 W.R. 55 that the words 'under his hand' mean 'signed by him.'
6. The third point which has been raised is one in which there is really no substance. It is that the memorandum or certificate referred to in Section 164 (3) must be at the foot of the record, and as by record is meant the original confession made by the accused in the vernacular, the present confession is invalidated by the fact that the certificate is gummed on to the English memorandum. There is a note on the vernacular confession that the memorandum under Section 164 (3) is appended to the English record of the confession. I do not think it is necessary to consider this point seriously. Once the memorandum has been made in accordance with Section 164 (3), the mere fact that it was attached to the English memorandum of the original vernacular confession, the English memorandum also forming part of the record, is a sufficient compliance with law. It is easy to reduce such an argument to absurdity, e. g., if the memorandum were not pinned or gummed to the particular document or if it became by accident separated from it, it might be contended that the confession would be invalidated, which seems to me unsustainable. I am, therefore, of opinion that the confession in question was taken in a manner which is a sufficient compliance with the law as laid down in Section 164 and Section 364 of the Code of Criminal Procedure, and with the High Court Circulars on the subject, and that if the case of Emperor v. Housabai lays down a view different to that which we have taken, that case was not correctly decided and should be overruled.
7. I agree.
8. The objections to the admissibility of the accused's confession have been based mainly on the decision of a bench of this Court in Emperor v. Housabai : (1932)34BOMLR1240 . To the head-note in this case no exception can possibly be taken. It is in fact merely a paraphrase of the language of the Code. But in the course of their judgment the learned Judges who decided that case appear to have laid down the following propositions:-
(1) The caution required by Section 164 (3) of the Criminal Procedure Code is to be conveyed by means of questions to the confessing accused, which with the answers are to form part of the record of the confession, or at any rate the fact that the necessary caution has been given to the accused before recording the confession 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 foot of the record.
(2) The said memorandum at the foot must be written by the Magistrate in his own hand as well as signed by him.
(3) A confession, though it is recorded in the form sanctioned and prescribed by the High Court and bears at the foot of it the memorandum prescribed by Section 164 (3) signed by the Magistrate, is defective and prima facie inadmissible in evidence, if it does not also comply with the first proposition aforementioned, and if the memorandum at the foot is not written out in the Magistrate's own hand.
9. The learned Judges in that case were not satisfied that the preliminary caution had been given, though the Magistrate had deposed on oath that he had done so. The existence of any reasonable doubt upon that point would of course invalidate the confession. We are not concorned with the question whether the confession in that case ought or ought not to have been accepted, but we are very seriously concerned with the propositions on which the judgment in Emperor v. Housabai was based, since, if we must accept them as correct, the confession of the accused in the present case and in a very large number of other cases might also have to be rejected, and that, in my opinion, would lead to a grave miscarriage of justice, With the greatest deference to the learned Judges who decided that case, 1 hold that the propositions laid down are not warranted by the language of the Code. The Magistrate must explain to the accused before the confession is recorded that he is not bound to make it. He may ask questions on the point if he thinks his explanation is not understood, but Section 164 does not require him to ask any such questions. Nor does that section require that there should be any note at the beginning of the confession reciting the fact that the explanation has been made. It is sufficient if that fact is recorded in the memorandum which is required to bo made at the foot and I can see no reason why in an ordinary case the Magistrate's memorandum at the foot should not be accepted as correct. 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. Section 164, Sub-section (2), contains a reference to Section 364, and provides that a confession shall be recorded and signed in the manner provided in the latter section. But the memorandum which is referred to in Section 364 is the memorandum of the examination of the accused, that is, the statements made by the accused. It is that which is to be written in the Magistrate's own hand. It cannot reasonably be inferred from Section 364 that the memorandum at the foot of the confession prescribed by Section 164 (3) must also be in the Magistrate's own hand. He has only to make the memorandum and that is sufficiently done by signing it. The form of the memorandum being prescribed by the Code itself, it would surely be futile to require the Magistrate to copy the words from the book, and to make the admissibility of the confession depend upon his having done so.
10. As regards the third point urged by Mr. Rele, independently of the judgment in Emperor v. Housabai, namely, that the memorandum, was appended at the foot of the English record of the confession and not at the foot of the vernacular record of it, I agree with my learned brother Baker that if this is an irregularity at all, it is a mere technicality and of no consequence. In the present case I am satisfied by the record of the confession and the Magistrate's certificate at the foot thereof that the precautions prescribed by the Code were duly taken, that the accused was warned that he was not bound to confess, and that the Magistrate satisfied himself by all reasonable and necessary means that the confession was voluntary. I hold, therefore, that it is admissible. [Their Lordships then dealt with the case on its merits and confirmed the conviction and sentence.]