TMI Blog1963 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... the murder under S. 302 read with ss. 120B, 109 and 114 of the said Code and sentenced Bir Singh to death and Tega Singh to imprisonment for life. He acquitted the other accused persons. The respondents appealed from the conviction to the High Court at Allahabad and the State from the acquittal. The High Court had also before it the usual reference for Confirmation of the sentences of death. The High Court allowed the appeals of the respondents, dismissed the appeal of the State and rejected the, reference. The State has now filed this appeal against the judgment of the High Court by special leave. This Court however granted the leave only so far as the judgment of the High Court concerned the three respondents. We are not, therefore, concerned with the other accessed persons and the order acquitting them is no more in question. The only point argued in this appeal was as to the admissibility of certain oral evidence. It is conceded that if that evidence was not admissible, then there is no other evidence on which the respondents can be convicted. In other words, it is not in dispute that if that evidence was not admissible the High Court's decision acquitting the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or judge of such Court, and such Magistrate or judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (3) In cases in which the examination of the accused is not recorded by the Magistrate or judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter.language; and such memorandum shall be written and signed by the Magistrate or judge with his own hand, and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zir Ahmed's case(2) had no application where, as in the present case, a magistrate not authorised to do so purports to record a confession under s. 164, and on that basis admitted the oral evidence. The learned judges of the High Court observed that the present case :was governed by Nazir Ahmed's case(2) and that Askarfis case(I.L.R. [1960] 2 All. 488) had no application because it dealt "with the question of identification parades held by Magistrates, There was no occasion to discuss the question of confessions recorded before Magistrates." In this view of the matter the learned judges of the High Court held the oral evidence inadmissible and acquitted the respondents. It would help to clear the ground to state that it had not been argued in Nazir Ahmed's case(2) that s. 533 of the Code had any operation in making any oral evidence admissible and the position is the same in the present case. It would not, therefore, be necessary for us to consider whether that section had any effect in this case in making any evidence admissible. In Nazir Ahmed's case(L.R. 63 IA. 372) the Judicial Committee observed that the principle applied in Taylor v. Taylor ([1875] 1 Ch. D. 426, 431) to a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not mandatory as would appear from the terms of s. 533. This contention seems to us to be without foundation. Quite clearly, the power conferred by s. 164 to record a statement or confession is not one which must be exercised. The Judicial Committee expressly said so in Nazir Ahmed's case(3) and we did not understand Mr. Aggarwala to question this part of the judgment. What he meant was that s. 533 of the Code showed that in recording a statement or confession under s. 164, it was not obligatory for the magistrate to follow the procedure mentioned in it. Section 533 says that if the court before which a statement or confession of an accused person purporting to be recorded under s. 164 or s. 364 is tendered, in evidence, "finds that any of the provisions of either of such sections have riot been complied with by -the magistrate recording the' statements it shall take evidence, that such person duly made the statement recorded." Now a statement would not have been "duly made" unless the procedure for, make in it, laid down in s. 164 had been followed. What s. 533 therefore does is to permit oral evidence to be given to prove that the procedure laid down in s. 164 had, in fact-be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 164. Therefore it seems to us that the object of s. 164 was not to give the prosecution the advantage of ss. 74 and 80 of the Evidence Act but to provide for evidence being made available to the prosecution subject to due protection of the interest of the accused. We have to point out that the correctness of the decision of Nazir Ahmed's case (L.R. 63 I.A. 372) has been accepted by this Court in at least two cases, namely, Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh ([1954] S.C.R. 1098) and Deep Chand v. State of Rajasthan ([1962] 1. S.C.R. 662). We have found no reason to take a different view. Mr. Aggarwala then contended that Nazir Ahmed's case(1) was distinguishable. He said that all that the Judicial Committee decided in Nazir Ahmed's case was that if a Presidency Magistrate, a Magistrate of the first class or a Magistrate of the second class specially empowered in that behalf records a statement or confession under s. 164 but the procedure laid down in it is not complied with, he cannot give oral evidence to prove the statement or confession. According to Mr. Aggarwala, it does not follow from that decision that a Magistrate of a class not mentioned in the secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity for the proposition that where a magistrate belongs to a class mentioned in s. 164, be must act in terms of it or not at all, but where the proceedings are held before any other magistrate the statement is one under the unwritten general law and Nazir Ahmed's case had no application. It was also observed that an identification memorandum was a statement recorded under s. 164 when the record was made by a magistrate of a class mentioned in it but where the memorandum was prepared by a magistrate of another class it was not a record made under that section and the magistrate making the record can give oral evidence in proof of the statements in the memorandum. We are not very clear as to what exactly was intended to be laid down in this case about s. 164. Furthermore it does not appear to us from the report how the observations referred to above were necessary for the decision of the case, for, as earlier stated, the identification memorandum considered there had been prepared by a magistrate of the first class. It is not necessary for us in this judgment to decide whether or how far a memorandum of identification proceeding is a statement recorded under s. 164 and we do not wish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of Brij Bhushan Singh v. King Emperor (L.R. 73 I.A.I), and Bhuboni Sahu v. The King (L.R. 76 I.A. 147) showed that the admission made in the statement recorded under s. 164 could not be used against an accused person as substantive evidence of the fact stated. The judicial Committee pointed out that "In these cases the Board was considering whether a statement made by a witness under s. 164 of the Code of Criminal Procedure could be used against the accused as substantive evidence of the facts stated, and it was held that such a statement could not be used in that way." Another case cited was Emperor v. Ram Naresh (I.L.R. [1939] All. 377). What had happened there was that two accused persons walked into the court of a magistrate and wanted to make a confession. The magistrate called a petition-writer and the accused persons dictated an application to him and that was taken down by the petition-writer and signed by them. That petition was admitted in evidence under s. 21 of the Evidence Act. It was held, and we think rightly, that Nazir Ahmed's case (L.R. 63 I.A. 372) did not prevent the petition being admitted in evidence because it only forbade certain oral evidence being gi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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