1. Ram Baran Shukla was rations clerk in the District Jail of Aligarh. He was charged before the Additional Sessions Judge of Aligarh. under Sections 409 and 218, Penal Code, for criminal breach of trust, and for making false entries in his ledgers in order to cover up his defalcations. The learned Additional Sessions Judge found Ram Baran Shukla guilty on both charges sentenced him under Section 409 to one year's rigorous imprisonment, but did not sentence him at all under Section 218. Ram Baran Shukla appeals. The evidence against Ram Baran Shukla was in the first place a confession purporting to have been made by him and to have been recorded under Section 164, Criminal P.C., and secondly, evidence of a shortage of 37 maunds of ata, which ata was under his control, and of falsification of the accounts by him. There was also a statement by him made in the Magistrate's Court that he had made alterations in the registers and that he had done this to avoid departmental action against himself and the jailor. It is admitted that there was a shortage of 37 maunds 26 seers of ata during the months of September and October. It was admitted that Ram Baran Shukla was in charge of the ata, and it was further admitted by Ram Baran Shukla that he had falsified the accounts. The first point taken by the appellant is that the confession made under Section 164, Criminal P.C., ought not to have been admitted against him by the learned Additional Sessions Judge. It appears that this confession was made under somewhat unusual circumstances. While Ram Baran Shukla was under the control of the police he reduced his confession into writing and signed it. Thereafter he was taken before the Magistrate to record his confession under Section 164, Criminal P.C. The Magistrate warned Ram Baran Shukla according to the procedure laid down, and thereafter Ram Baran Shukla handed over the written document to the Magistrate saying:
Whatever I want to state in my confession is in writing before you and is marked by you as Ex. 1. I shall say nothing beyond that.
2. The written confession was then read over to the accused and he stated:
I have hoard this statement. It is correct. I do not want to make any alteration in it. It is in my handwriting and the signatures on it are mine.
3. Section 164 enacts as follows.
Any presidency Magistrate, any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Local Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this chapter or at any time afterwards before the commencement of the inquiry or trial.
4. The learned Additional Sessions Judge admitted this confession against the prisoner on the analogy of a written statement tendered by an accused person to the Court during the hearing of the trial. Such a written statement would be admissible. The learned Additional Sessions Judge goes on to say:
The mere fact therefore that such delivery took place at a time when the Magistrate was under the impression that the accused would make a verbal statement to him, but the accused instead of making a verbal statement delivered the document in question to the Magistrate, would not make the proof of such document inadmissible because under a mistaken notion that the accused was going to make a verbal statement, the Magistrate may have first gone through the procedure which is laid down by Section 164 for recording such statement.
5. In my opinion, the learned Additional Sessions Judge has completely misdirected himself in law. There is no analogy between a written statement made during the course of the trial in the presence of the Court and a written confession handed in to a Magistrate in proceedings under Section 164. The learned Judge could not have noticed the last part of Section 164, which only allows confessions to be recorded:
in the course of an investigation under this chapter or at any time afterwards before the commencement of the inquiry or trial.
6. It is further to be noted that the learned Magistrate who received this confession must have known that he was proceeding illegally, for he records, as is usual, at the end of the confession in his own handwriting that:
it was written by me and read over to the person making it, and it was admitted by him to be correct.
7. It is perfectly clear that this confession was not written by the learned Magistrate. Section 164 must be construed strictly. The section enacts that the Magistrate must 'record' any statement or confession. It is playing with words to suggest that the procedure in this case amounted to 'recording' a confession. 'Recording,' in my opinion, means, and must mean, writing down the confession. It does not mean merely filing it. Further it is to be noted that one of the essential rules is that the Magistrate should draw the attention of the confessing accused to the fact that there1 are no police present while the confession is being recorded, the reason being that there may be a less risk that the confession is made under the influence of the police. If the confession is written down when the accused is under the control of the police and then handed to the Magistrate the reason for insisting upon this precaution is destroyed. The law enacts that a confession should be recorded by a Magistrate himself. When an accused is making an oral confession it is much easier for the Magistrate who records to make up his mind whether that confession is voluntary or not.
8. It is of the utmost importance that the strict rules laid down by the Criminal Procedure Code and the High Court for the recording of such confessions should be strictly followed in every respect. For a criminal to confess Jus guilt is an unnatural proceeding. It is possible that remorse may produce a confession in a very small number of cases, but material advantage or fear is at the root of most confessions. Either the accused thinks that he will obtain some benefit from making a confession by being made an approver or getting a lesser sentence: or he may even be induced or compelled to make such a confession. Self interest or fear are not sound foundations for a true confession: this the Criminal Procedure Code, the Evidence Act and the Court recognize, and therefore the greatest care is insisted on in the recording of such confessions. If a confession already written out when the accused is under the control of the police was once allowed to be admitted as evidence, the door would be opened wide to the grossest forms of abuse. The difficulties that Courts now have with regard to confessions would be very largely increased. If interested parties were inclined to bring pressure to bear on an accused, or to induce him to make a confession, it would be a simple matter for false statements to be introduced into a written confession. There would then be no necessity even for 'tutoring.'
9. I have not been referred to any authority on this point. But it appears to me that it cannot be too clearly laid down that such a confession is admissible as evidence. Omitting therefore the confession as evidence against the accused it has to be seen if there is sufficient evidence on the record to justify the conviction. In my opinion, there is. When a public servant is in charge of goods and it has been proved or admitted that there is a large shortage in those goods, and it is also proved or admitted that the accused, in order to hide the loss, has falsified the books, it seems to me that there is only one inference possible, that of guilt. In a case like this the onus would be on the accused-the facts being admitted or proved-to give some reasonable explanation for the facts. Such an onus, in my opinion is almost impossible to discharge. It is further contended for the appellant that where there may be another inference equally possible, a conviction would not be justified. The accused himself says in his statement that he did this knowing that there was a shortage, in order to avoid departmental action. Counsel contends that a possible inference to be drawn is that the accused being negligent with regard to the goods under his control, merely falsified the accounts in order to escape departmental punishment. Apart from the fact that this is an admission of guilt under Section 218, Penal Code, I do not think that such an inference can possibly be drawn in this case. Thirty seven maunds 26 seers of ata cannot disappear through mere negligence. The accused blames the kitchen warders for making these defalcations. In my opinion, it is impossible for anyone to have made these defalcations without the accused knowing all about them. There is therefore sufficient evidence on the facts proved apart from the confession in this case to justify conviction.
10. An appeal has also been made to me to reduce the sentence of one year's rigorous imprisonment. I cannot see' my way to alter the sentence though it is perfectly true that a good many other people in the jail as well as the accused must have been implicated in this fraud. The result is that both the conviction and sentence are upheld and the appeal is dismissed.