1. This is a rule against an order of conviction under Section 19 (f), Arms Act, and a sentence of one year's rigorous imprisonment passed by a Magistrate of the First Class at Barpeta, Assam Valley Districts. The accused was arrested along with others in an outhouse of one Danki where some arms were found. He was tried along with others including Danki and he was the only one to be convicted. The main evidence to fix him with guilt and differentiate his case from that of the others was that he confessed to a Magistrate Mr. G. Phukan. When the case was tried the Magistrate who recorded the confession was examined on commission. Certain interrogatories and cross-interrogatories appear on record. Apparently, there was defect in the procedure of issue and moreover the cross-interrogatories were never sent at all. When the case came on appeal to the Sessions Judge he directed the issue of a fresh commission and Mr. Phukan was duly examined. We have not on the record what were the interrogatories issued but we have his deposition.
2. There was a defect in the record of the confession made under Section 164 read with Section 364, Criminal P.C. The former section requires that before recording the confession the Magistrate shall question the person making it and as a result of such questioning the Magistrate shall have reason to believe that the confession was made voluntarily. The Magistrate used the form provided under the rules of this Court for recording confessions but para 6 thereof which provides for the questioning of the accused as required under Section 164 of the Code was left blank. In para. 8 of the form, namely, 'brief statement of the Magistrate's reason for believing that the statement was voluntarily made', the Magistrate has recorded: 'From his answers I consider the confession voluntary,' but these answers should have appeared in para. 6 of the form. Under Section 164 Magistrate was required to question the accused, and under Section 364 he was required to record all his questions and the answers made by the accused. There was thus certainly an irregularity on the record of the confession. This might have been remedied by the evidence of the Magistrate having regard, to the provisions of Section 533, Criminal P.C., but unfortunately in none of the relevant papers does it appear that attention was directed to the particular defect in the record which was sought to be remedied by the evidence of the recording Magistrate. A copy of the interrogatories sent by the Magistrate shows one question: 'Why do you say that the confessions are voluntary'? This might have produced an illuminating answer from the Magistrate to the effect that he believed the confession to be voluntary because he had asked such and such questions and received such and such answers, but it was not a very precise manner in which to formulate the interrogatories to obtain such an answer. In any case the record of his examination on the commission issued at the instance of the Sessions Judge shows no such answer. The result is there is nothing on the record to show that the Magistrate ever did question the present petitioner to ascertain that he was making his confession voluntarily. The provisions of Sections 164 and 364 not having been complied with and the defect not having been remedied by the Magistrate's evidence under Section 533, Criminal P.C., the record of the confession is inadmissible.
3. The result is that since the remaining evidence is not sufficient to support the conviction, the rule, accordingly, must be made absolute. The conviction and sentence passed on the accused are set aside. He is acquitted of the charge under Section 19 (f), Arms Act, and directed to be released from his bail.