TMI Blog2018 (3) TMI 2022X X X X Extracts X X X X X X X X Extracts X X X X ..... d 281 Cr.P.C., Section 4 (2) of the Oaths Act, 1969 as well as Article 20 (3) of the Constitution of India. This is to ensure not only that the accused person is absolutely insulated from being compelled into self-incrimination but also to see that the accused not effected and not pressured by any external influences is willing to confess a crime committed by him which would be accepted as evidence against him. It would be strange that the Magistrate so empowered, to ensure its truthfulness and voluntariness himself commits an illegality which is prohibited giving reason to doubt not only of a failure of proper application of mind but also as to whether the confession itself was involuntary, under pressure of illegal oath administered. It has been held that administering oath to an accused before recording his confession is prohibited, unlawful and illegal. The Magistrate while administering oath on an accused before recording the confession commits an illegality and unlawful act prohibited by law. Any information received which may be self-incriminatory in violation of the laws as well as the Constitutional guarantee, which may have compelled the accused to self-incriminate can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icacies of the laws. It is also evident that on examination of Section 164(5) Cr.P.C. administering of oath to an accused while recording confession without anything more may lead to an inference that the confession was not voluntary. However, there could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 Cr.P.C and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused. If the Court before which such document is tendered finds that it was so, Section 463 Cr.P.C would be applicable and the Court shall take evidence of non-compliance of Section 164 and 281 Cr.P.C. to satisfy itself that in fact it was so and if satisfied about the said fact is also satisfied that the failure to record the otherwise voluntary confession was not in the proper form only and did not injure the accused the confession may be admitted in evidence. Let the said appeal be placed before the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed is squarely applicable. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. 3. Mr. J.B. Pradhan, learned Public Prosecutor, appearing for the Appellant would commence his arguments stating that section 164 Cr.P.C. was in three parts. The first part i.e. sub section (1) thereof dealt with empowering certain Magistrates to record any confession or statement. The second part i.e. sub section (2), (3) and (4) thereof are safeguards for recording confessions and therefore mandatory. The provisions of sub section (2), (3) and (4) of section 164 Cr.P.C. would make it amply clear that the guidelines prescribed therein are for the purpose of safeguarding the accused and to ensure that the confession is voluntary and not made on account of any extraneous influence. He would submit that onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an admit such an evidence if it has not injured the accused in his defence on the merit. He would draw reference of the judgment of the Supreme Court in re: Singhara Singh Ors. (supra) and in re: Ram Singh v. Sonia Ors. (2007) 3 SCC 1 and submit that section 463 permits oral evidence to be given to prove that the procedure laid down in section 164 Cr.P.C. had in fact been followed and if the confession is not recorded in proper form as prescribed by section 164 Cr.P.C. read with section 281 it is a mere irregularity and curable under section 463 Cr.P.C.. 5. Mr. J.B. Pradhan would refer to the judgment of the Supreme Court in re: Babubhai Udesinh Parmar v. State of Gujarat (2006) 12 SCC 268 and submit that it was held that a judgment of conviction can also be based on confession if it is found to be truthful, deliberate and voluntary and if clearly proved. He would submit that the Supreme Court also held that the voluntarily nature of the confession depends upon whether there was any inducement, threat or promise and its truth is judged on the basis of the entire prosecution case. Mr. J.B. Pradhan would also draw the attention of this Court to the judgment of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astava (supra) and would submit that the Supreme Court had clearly held that there is always a concealed threat to the accused when oath is administered to him even if it is his voluntarily statement under section 164 Cr.P.C. and that section 164 (5) Cr.P.C. prohibits administration of oath in cases of confession. Drawing the attention of this Court to the judgment of the Division Bench of the Kerala High Court in re: Haridasan Palayil v. Speaker of 11th Kerala Legislative Assembly AIR 2003 Kerala 328, he would submit that taking confession on oath involves the idea of calling God to witness what is averred as truth which itself amounts to invoking fear in the mind of the confessor taking the oath. He would further submit that Article 20 (3) of the Constitution of India prohibits self-incrimination and therefore recording of confession would violate the said constitutional safeguard. He would submit that section 164 (5) of Cr.P.C., Section 281 Cr.P.C. and section 4 (2) of the Oaths Act, 1969 specifically prohibits administration of oath to an accused person in a criminal proceeding. 9. Mr. A. Moulik would submit that confessional statement taken on oath is not at all curable und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh 1976 Cri LJ 96; by the High Court of Bombay in re: Atmaram Namdeo v. State of Maharashtra AIR 1969 Bom 189 is good law and the moment oath is administered to an accused before recording his confession under section 164 Cr.P.C. it shakes the very purpose of recording such a confession of an accused. Such confession being under compulsion is not admissible in evidence and therefore not curable under section 463 Cr.P.C. Mr. A Moulik would further submit that in view of the judgment of the Supreme Court in re: Mohd. Ajmal Amir Kasab (supra) the right against self-incrimination under Article 20(3) of the Constitution of India does not proscribe voluntary statements made in exercise of free will and volition and further the right against self-incrimination under Article 20(3) has been statutorily incorporated in the provisions of Cr.P.C. (i.e. Sections 161, 162, 163 and 164) and the Evidence Act, 1872, as manifestations of enforceable due process, and thus compliance with statutory provisions is also compliance with the constitutional requirements. 11. Mr. N. Rai, learned Senior Advocate and also assisting this Court as Amicus Curiae would rely upon the judgment of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilized systems of jurisprudence. In this particular case, it might well have aroused hopes in the mind of Mangu Lal that he would escape punishment if he spoke the truth, which according to his judgment, affected by the surroundings in which he stood, was to be a narrative of the complicity of the appellants. 16. I agree with my learned colleague that the appeal of Mahadeo and Gokaran be allowed and that the appeal of Mangu Lal be dismissed. (Emphasis supplied) 14. Way back in 1920 the Oudh Judicial Commissioner's Court would hold that administering an oath to an accused person is contrary to all civilized systems of jurisprudence and having taken oath it might well have aroused hopes in the mind of the accused that he would escape punishment if he spoke the truth, which according to his judgment, affected by the surroundings in which he stood, was to be a narration of the complicity of the Appellants. 15. A Division Bench of the Calcutta High Court speaking through Lodge, J. in re: Nandalal Ghose v. King-Emperor AIR 1944 Cal 283 would in the year 1943, while setting aside a conviction and sentence passed under section 193 and 199 of the Indian Penal Code and exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature, in effecting amendment of the scheme of the Code, would have intended such a violent departure in the matter of investing any Magistrate, be he a Magistrate of the third class, or even an Executive Magistrate, with powers of recording statements and confessions under Section 164. The reason for restricting the investment of powers under Section 164 to experienced Magistrate is obviously that the Magistrate must have enough experience to judge whether a statement is being made voluntarily or otherwise. The Magistrate must be competent to understand why a person is making a confession and more or less convicting himself out of his own mouth. The detailed and elaborate provision made to ensure that the confession is made in a free and fair manner and without any duress of restraint or under pressure or for any reward, requires that such powers should be exercised by experienced and competent Magistrates. Before investing a Magistrate with such important functions, the authority concerned, which, in our opinion, is the State Government alone, will apply its mind to find out whether the person recommended for being invested with such powers deserves to be entrusted with such f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements as good evidence or reliable evidence in criminal prosecutions. 19. In the year 1975 the same question arose before the Jammu and Kashmir High Court. In re: State v. Suram Singh (supra) while deciding an appeal against acquittal of the accused of the offence under sections 302 and 451 R.P.C. a Division Bench of the Jammu Kashmir High Court would examine the confessional statement vis- -vis section 164 Cr.P.C., section 24 of the Indian Evidence Act and Article 20 (3) of the Constitution of India. Mufti, J. would hold:- 8. Assuming that the confessional statement was voluntary, it would still be inadmissible because it was made under compulsion, of oath. Here it may not be violative of Section 24 of the Evidence Act in its not having been proceeded from threat promise or inducement. But it does violate Article 20 (3) of the Constitution according to which no person accused of an offence shall be compelled to be a witness against himself. That the accused made a confessional statement before a Magistrate which could be read against him at the trial cannot be disputed. That he did so when he stood in the character of an accused person cannot also be disputed. The c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the purview of compulsion as contemplated by clause (3) of Article 20 of the Constitution and amount to compelled testimony. 21. In re: Brijbasi Lal Shrivastava (supra) the Supreme Court would deal with an appeal against conviction and sentence under section 409, 467 and 477-A, Indian Penal Code and section 5(2) of the Prevention of Corruption Act. The appellant was a Principal of a School. A case was started against the appellant on a basis of a complaint made by a clerk who had actually drawn the amount on the orders of the appellant and who was later on dismissed from service by the appellant for some irregularities. The central evidence against the appellant consisted of a sort of a confession made by the appellant to the Assistant Divisional Superintendent, Education who further took the abundant caution of taking a written statement signed by him from the appellant. In this statement the appellant admitted to have falsely drawn up ₹ 500/- towards the salary of a chowkidar which was re-deposited into the treasury subsequently. The High Court and the Special Judge relied heavily on this document which formed the sheet-anchor of the prosecution case. The Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Session Judge had chosen not to act on this confession on three grounds. The two questions put to the accused had not been put on record, the accused had been administered oath while recording the confessional statement and the Magistrate had recorded the confession knowing he himself was the committal Magistrate and therefore ordinarily ought not to have proceeded to record the confessional statement of the accused. The Division Bench would observe that the First Additional Session Judge had not taken trouble of adverting to section 463 Cr.P.C. The Division Bench, thereafter, would examine the said provision of section 463 Cr.P.C. in detail and would hold:- 8.............. The First Additional Sessions Judge has not weighed the evidence of P.W. 1 to find out whether he had stated the truth about putting those two questions to the accused but had not recorded those questions in the proceedings he held on 17-12-1977. It was his duty to apply his mind to the evidence of P.W. 1 in regard to this aspect and come to a conclusion one way or the other. If his conclusion was that P.W. 1 had stated the truth, then in view of Section 463, Cr.P.C., it would have been incumbent on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence by an officer of the Court appointed by him in that behalf (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, 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. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who 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. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial. 11. It is clear from the above that there is no provision for administering oath to an accused who is making a confessional statement before a Magistrate, When this specific provision is made, the other provisions of the Indian Evidence Act etc., regarding recording of statements, will not operate. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the foregoing, we hold that administering oath to the accused by P. W. 1 before recording Ex. P. 4 the confessional statement, is an illegality and hence, Ex. P. 4 loses its evidentiary value. It is of course true that the learned First Additional Sessions Judge had reached the same conclusion, but what we have observed is in regard to the reasoning put forth by him and the manner in which he has exhibited his ignorance of the provisions of law and the rules, which he is expected to know; (Emphasis supplied) 24. The Karnataka High Court in the year 1980 would hold that administration of oath to an accused person while recording the confessional statement deprives the statement of any evidentiary value and is an illegality and therefore it is not necessary to go into the evidence of the Magistrate to find out whether he had recorded the confession as per Section 164 Cr.P.C in the light of Section 463 Cr.P.C. 25. In re: Akanman Bora v. State of Assam a Division Bench of the Gauhati High Court would examine a confessional statement taken on administration of oath by the Magistrate vis- -vis section 164 and 281 Cr.P.C. and Article 20 (3) of the Constitution of Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath for recording confession will only mean that recording of evidence of the maker for use in subsequent stage against the maker and which is prohibited in law. Such confession is bad in law, and is inadmissible in the evidence. 7. This subject was dealt by a Division Bench of Karnataka High Court in Philips v. State of Karnataka 1980 Cri. L.J. 171. It was held that the manner of recording confession has provided under section 281 for the purpose of memorandum as laid down by Section 164(4), there is no provision for administering oath to an accused making a confessional statement before a Magistrate. When such specific provision is made, the other provision of the Evidence Act etc, regarding recording of statement, will not operate. Therefore, no question of administering oath arises and in fact if oath is administered; it will be contrary to the provision of Section 281. It is an illegality and as a such the confessional statement loses its evidentiary value. The object behind Section 164(4) is clear on the face of it. The concerned accused should not be made to feel that he is bound down to a particular statement, and if he later stated something contrary to that, he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after removing all fears from the mind of the accused and by explaining to him that he was not bound to confess and that, if he did so, it would be used as evidence against him. He must fully satisfy himself that the confession was made voluntarily. Sub-section (5) of Section 164 of the Code provides as follows:- Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner herein after provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case: and the Magistrate shall have power to administer oath to the person whose statement is so recorded. 16. It is clear from the words of this sub-section that a Magistrate should not administer oath/solemn affirmation for recording the confession. Apparently this was considered necessary because the accused has the liberty to retract the confession either at that time itself or at the trial and the prosecution has to prove the confession by giving evidence that the accused had made it voluntarily. Oath is meant to bind down the maker of statement. Therefore if a Magistrate administered the oath before recording confession, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion came up for consideration before the Division Bench of the Karnataka High Court in Philips v. State of Karnataka 1980 Cri LJ 171. In that case the Magistrate administered oath on the accused while recording the confessional statement. On reading of S. 164(4) and S. 281, Cr. P.C. the Bench observed as follows: It is clear from the above that there is no provision for administering oath to an accused who is making a confessional statement before a Magistrate. When this specific provision is made, the other provisions of the Indian Evidence Act etc., regarding recording of statements will not operate. Therefore, no question of administering oath arises, and in fact if oath is administered, it will be contrary to the provisions of S. 281, Cr. P.C. ................................................ Therefore, recording of Ex. P. 4 by P.W. 1 confessional statement by the Magistrate after administering oath to the accused, is not as provided by S. 281, Cr. P.C. and as such Ext. P. 4 loses its evidentiary value. Moreover, the object behind this provision viz. S. 164(4), Cr. P.C. is clear on the face of it. The concerned accused should not be made to feel that he is bound down to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te shall have the power to administer oath to such person. Therefore the expression statement recorded other than a confession provides key to the question. It means that if he records the statement of a person other than the accused he shall have the power to administer oath to him but if it is a case of recording a confession, he shall not administer oath to such person (accused). At that stage, we may have a look at sub-section (2) of S. 4 of the Oaths Act, 1969 which states inter alia that nothing in the said section shall render it lawful to administer, in a criminal proceeding oath or affirmation to the accused person unless he is examined as a witness for the defence. Therefore recording of confession of the accused by administering oath or affirmation to him is illegal and, therefore, is inadmissible. 16. In the case at hand, the learned Magistrate did administer oath to the appellant before she recorded his confessional statement. For the reasons foregoing, we have no hesitation to hold that the confessional statement (Exhibit P8) is inadmissible and the same is not available to be considered.'' (Emphasis supplied) 29. In re: Arjun Rai (supra) the Divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court would go on to examine in detail the confessional statement recorded. The Supreme Court would find inconsistencies appearing in the prosecution case vis- -vis the confessional statement. The Supreme Court would also hold in paragraph 10 thereof: 10. We do not appreciate as to why oath had to be administered to the accused while recording confession. Taking of a statement of an accused on oath is prohibited. It may or may not be of much significance. But, it may assume significance when we examine that a purported deposition of the accused was taken on 10-3-2003 wherein also his evidence on oath is recorded in the following terms: I hereby state on oath that: My name: Babubhai My father's name: Udesing Parmar My age about: 27 years My occupation: Labour work Village of residence: Native Umrav Tadia Pura, at present Karamsad Question: Have you received copy of documents of police investigation? Answer: Yes. Question: Is the charge-sheet, Ext. 4 read over to you? Do you admit the offence? Or you want to proceed further the judicial proceedings? Answer: I do not admit the offence. Question: Have you engaged private advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxxxx 20. There is another aspect of the matter which must be taken into consideration. The same being the manner in which the case has been dealt with by the courts below. 21. The judgment of the learned trial Judge gives an impression that he had proceeded on the basis that the appellant is guilty of commission of crime in large number of crimes. The High Court although taken note of the propositions of law, while pointing out the corroborative pieces of evidence, repeated only the evidences brought on record which proved the commission of offence. The purported corroborative evidence brought on record by the prosecution and as noticed by the High Court did not indicate that the appellant was guilty of commission of the offence. The circumstances were not such which formed links in the chain and point out only to the guilt of the accused and the accused alone. 22. We, therefore, with respect, are constrained to record disagreement with the ultimate findings of the learned Sessions Judge as also the High Court. We, however, may observe that we have only considered the merit of the present appeal. Each case against the appellant must be judged on the basis of the leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case inasmuch as oath was administered, it was violative of section 164(5) of Criminal Procedure Code, it may not be fatal. The evidentiary value of such confessional statement is required to be considered and Court is required to find that such non-compliance has injured the accused in his defence on merits and whether he duly made statement recorded. In our opinion, such statement may be admitted in case it has not caused prejudice on merit in the facts of the case to the accused. In the instant case accused Shamim had retracted the confession (PW-59) by way of filing application (D-4), after 6 days it was recorded. He never felt boundan (sic bounden) by oath which was administered wrongly to him and oath has to be simply ignored. The administering the (sic of) oath simpliciter cannot be said to have injured the accused in his defence on merit in the instant case. We disagree with the finding recorded by the Court below that due to administering of the oath the confessional statement (P-59) was rendered inadmissible. We respectfully disagree with the view expressed in Philips v. State of Karnataka (supra) by Karnataka High Court and State v. Suram Singh (supra) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath to each accused before recording their confessional statement. Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.'' (Emphasis supplied) 35. The Allahabad High Court in the year 2012 would hold that administration of oath to an accused in his confessional statement is violative of the mandatory provisions of Article 20 (3) of the Constitution of India as well as Section 281 Cr.P.C and such statement being illegal should be excluded from consideration. 36. The Division Bench of the Madras High Court in re: N. Senthil @ Senthilkumar v. State Rep. by the Inspector of Police, South Gate Police Station, Madurai City would hold: 13. The Trial Court has relied on the judicial confession made by the second accused to PW-15, the then learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imma and Thimma Raju v. State of Mysore (1970) 2 SCC 105, the Supreme Court would hold:- 9. ........ An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24 of the Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used........... (Emphasis supplied) 42. In re: Kanda Padayachi alias Kandaswamy v. State of Tamilnadu (1971) 2 SCC 641, the Supreme Court would hold:- 9. Sections 24 to 26 form a trio containing safeguards against accused persons b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any evil of a temporal nature in reference to the proceedings against him . (Emphasis supplied) 45. In re: Satbir Singh v. State of Punjab (1977) 2 SCC 263, the Supreme Court would hold:- 28. In deciding whether a particular confession attracts the frown of Section 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind. (Emphasis supplied) 46. In re: State (NCT of Delhi) v. Navjot Sandhu (Supra) the Supreme Court would summarize the law regarding confession and hold thus: 26. We shall, now, deal with certain legal issues, which have been debated before us in extenso. These issues have a bearing on the admissibility/relevancy of evidence and the evidentiary value or weight to be attached to the permissible evidence. Law regarding confessions 27. We start with the confessions. Under the general law of the land as reflected in the Evidence Act, no confession made to a police officer can be proved against an accused. Confessions which is a terminology used in criminal law is a species of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of Section 162 makes it explicit that the embargo laid down in the section shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the provisions of Section 27 of the Evidence Act. 28. In the Privy Council decision of Pakala Narayana Swami v. Emperor [AIR 1939 PC 47 : 40 Cri LJ 364] Lord Atkin elucidated the meaning and purport of the expression confession in the following words: (AIR p. 52) [A] confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession.... 29. Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law. (Vide Taylor's Treatise on the Law of Evidence, Vol. I.) However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e substantially all the facts which constitute the offence. As abundant caution the Courts have sought for corroboration of the confession though. As per Taylor's Treaties on the law of Evidence, Vol. I a confession is considered highly reliable because no rational person would make admission against his own interest prompted by his conscience to tell the truth. If the Court finds that the confession was voluntary, truthful and not caused by any inducement, threat or promise it gains a high degree of probability. To insulate such confession from any extraneous pressure affecting the voluntariness and truthfulness the laws have provided various safeguards and protections. A confession is made acceptable against the accused fundamental right of silence. A confession by hope or promise of gain or advantage is equally unacceptable as a confession by reward or immunity, by force or fear or by violence or threat. As held by the Supreme Court in re: Navjot Sandhu (supra) the authority recording the confession at the pre-trial stage must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the tracing of its origin takes us so far afield, in our survey, as the administrative policy of William the Conqueror and the criminal procedure of Louis XIV and the French Revolution, but particularly because the woof of its long story is woven across a tangled warp composed in part of the inventions of the early canonists, of the momentous contest between the courts of the common law and of the church, and of the political and religious issues of that convulsive period in English history, the days of the dictatorial stuarts. To disentangle these various elements, while keeping each in sight and unbroken, is a complicated task. To begin with, two distinct and parallel lines of development must be kept in mind - the one an outgrowth of the other, succeeding it, and yet beginning just before the other comes to an end. The first is the history of the opposition to the ex officio oath of the ecclesiastical courts; the second is the history of the opposition to the incriminating question in the common law courts - i.e., of the present privilege in its modern shape. Let us remember that there is, in the first part of this history, no question whatever of the subject of the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finite limits; it was enacted that the royal officers should not permit quod aliqui laici in ballione sua in aliquibus locis conveniant ad aliquas recognitiones per sacramenta sua facienda, nisi in causis matrimonialibus et testamentariis. Such are the preliminary data at the opening of this first part of the history. What was their significance for the relation of the parties to the contest? First of all, we may note that the opposition therein reflected has nothing to do with any objection to the general process of putting a man on his oath to declare his guilt or innocence; they concerned only the questions (a) who should have the right to do this, and (b) how it should be done. Moreover, the former of these things is alone at first concerned: later, the second comes to dominate in importance. Three stages are fairly well marked, namely, (1) to Elizabeth I's time, (2) to Charles I's, (3) and afterwards. (I) [To Elizabeth I's time.] (a) Who should have the rights of jurisdiction? This was in the 1200s and 1300s the great question. The statute De Articulis Cleri settled the line of ecclesiastical jurisdiction over laymen by confining it to causes matrimoni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lawyers cared nothing about it) this procedure of Otho's and Boniface's, the jusjurandum de veritate dicenda (which we may call the inquisitional oath, as distinguished from the compurgation oath) was then, for the church, an innovation. Hitherto, the trial by compurgation, or formal swearing of the party with oath helpers, and the trial by ordeal, had been the common methods of ecclesiastical trial and decision. But in the early 1200s, under the organizing influence of Innocent III, one of the first great canonists in the papal chair (1198-1216), new ideas were rapidly germinating in church law. The trial by ordeal was formally abolished by the church in 1215. The trial by compurgation oaths was already becoming little better than a force. There was a decided need of improvement in method. One of the marked expedients in this improvement was the inquisitional or interrogatory oath, introduced and developed in the early 1200s, chiefly by the decretals of Innocent III. The time-worn compurgation oath had operated as a formal appeal to a divine and magical test or Gottesurtheil ; there was no interrogation by the tribunal; the process consisted merely in daring and succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the affirmative. Nevertheless, the matter was complicated by the varieties of detail in procedure, and there were differences of phrasing in the various decretals that served as authority. It is enough here to note that the third method of trial - the inquisitor, or proceeding ex officio mero - became a favorite one for heresy trials; and that is canonical lawfulness in some shape was supported by clear authority. About the year 1600, there came to be in England much pamphleteering anent this; and a formal opinion of nine canonists declared the lawfulness of putting the accused to answer on these conditions: Licet nemo tenetur seipsum prodere [i.e., accuse], tamen proditus per famam tenetur seipsum ostendere utrum posit suam innocentiam ostendere et seipsum purgare . Thus, on the one hand, it was easily arguable that, in ecclesiastical law, the accused could not be put to answer ex officio mero without some sort of witnesses or presentment or bad repute; and in this sense on oath ex officio (as it came to be called) might be claimed (as it was claimed) to be a distinct thing from the same oath when exacted on proper conditions, and to be therefore canonically unlawfu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il they do canonically purge him or themselves, the diocesan to determine that same business according to the canonical decrees. Here is no objection to the oath or to the ex officio procedure, but a sanction of the church's usual rule. Under this statute Archbishop Arundel, with renewed vigor, conducted his campaigns against heretics; and under it were all subsequent prosecutions conducted for more than a century.. After a long period, however, there finally appears the little rift within the lute. In 1533, under Henry VIII, the old statute of Henry IV, of 1401 was repealed by a statute which did not take away the church's jurisdiction over heresy, nor yet oppose its power to put the accused on inquisitional oath, but did not insist on something more than ex officio proceedings; it provided that every person presented or indicted of any heresy, or duly accused by two lawful witnesses, may be ... committed to the ordinary [of the church] to answer in open court. Here was the first portent of the new phase of the contest. Under the brief liberality of Edward VI, in 1547, this whole jurisdiction over heresy was taken away; but under Mary, in 1554, the extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined to crush heresy wherever its head was raised. He proceeded immediately to examine clergymen and other suspected persons, upon oath, after the extremest ex officio style. From this time onwards there is much concerning this oath. That it was canonically and statutably lawful was at least arguable. The repealed statute of 25 Hen. VIII, c. 14, in 1533 (quoted supra), which might otherwise have been urged against its methods, was now of doubtful validity. Furthermore, the royal courts of common law, early in the agitation, had plainly declared these things lawful on certain conditions. In 1589, the question had been first raised in the Common Pleas, in Collier v. Collier. In 1591, in Dr. Hunt's Case, the King's Bench refused to sustain an indictment for administering the oath on a charge of incontinency since the oath cannot be ministered to the party but where the offence is presented first by two men, 'quoted fuit concessum'; and it was said, it was so in this case. So also, in the same year, when the case of the preacher Cartwright and his followers, for refusing to take Whitgift's oath and make answer, was brought up for a final settlement, all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remained still to be faced. What had been settled was (in effect) merely that the ecclesiastical courts (including that of High Commission) could not, as a matter of jurisdiction and procedure, put laymen to answer, ex officio , to penal charges. But this did not touch the Court of Star Chamber. Its conceded jurisdiction was ample enough to fine and imprison for almost any offense that it chose to pursue. The very statute that sanctioned it, in 1487, expressly vested in it the authority to examine the accused on oath in criminal cases, without naming even such restrictions as the ecclesiastical law conceded; and its right to examine in this fashion, wherever the case was within its jurisdiction, seems to have been conceded under Henry VIII and Elizabeth, all through the 1500s. But as James' reign went on, and its practices became arrogant and obnoxious, so its use of the ex officio oath came to share the burden of criticism and discontent which that procedure in the ecclesiastical courts excited. The common law courts seem to have found no handle against its oath procedure, even after Coke's accession to the bench. But though there was no explicit judicial condemnation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not belong unto me; and withal I perceived the oath to be an oath of inquiry, i.e., ex officio, and of the same nature as the High Commission oath, which was against the law of the land, the Petition of Right, and the law of God as shown in Christ's and Paul's trials; yet, if I had been proceeded against by a bill, I would have answered . Then the Council condemned him to be whipped and pilloried, for his boldness in refusing to take a legal oath, without which many offenses might go undiscovered and unpunished ; and in April 1638, 13 Car. I, the sentence was executed. On Nov. 3. 1640, he preferred a complaint to Parliament; and on May 4, 1641, the Commons (having not yet abolished the Star Chamber Court) voted that the sentence was illegal and against the liberty of the subject, and ordered reparation. But, the petition going for a while no further, he applied once more, and on Feb. 13., 1645 (1646), the House of Lords heard his petition by counsel, Mr. Bradshaw urging for him the sentence's illegality. The ground whereof being that Mr. Lilburn refused to taken an oath to answer all such questions as should be demanded of him, it being contrary to the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the common law, and of jury trial? Thus far the controversy here examined had been purely one of ecclesiastical jurisdiction and ecclesiastical methods of presentment. The common law courts had concerned themselves with it simply by virtue of their superior authority to keep the church courts and other courts to their proper boundaries. In their enforcement of these restrictions, one thing seems plain: There is no feature of objection to the compulsion, in itself, on answering on oath; the objection is as to who shall require it, and how it shall be required. On the very eve of the statute of 16 Car. I, and of the disappearance of the Star Chamber forever, John Lilburn, the stoutest of recusants, is willing to answer all matters properly charged against him, and objects only to such things as do not belong unto me. He seems to have known no broader defensive principle to fall back upon, more substantial or inclusive than a conceded rule of ecclesiastical procedure. Was there in fact, at the time, any available principle known in the common law courts in jury trials? (I) [Before the seventeenth century.] Down to the early 1600s, at any rate, it was certainly lacking. If we l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next recorded trial, the accused's previous examination before the Chief Justice was offered and read at the outset, without a shadow of objection. Furthermore, as the trial goes on, the accused, in all this period of 1500-1620, is questioned freely and judged by the judges to answer; he is not allowed to swear, for the reasons already noted, but he is pressed and bullied to answer. A striking example is found in the jury trial of Udall, in 1590, for seditious libel; and the significant circumstance is that Udall, who before the ecclesiastical High Commission Court, a few months previously, had plainly based his refusal on the illegality of making a man accuse himself by inquisition, has here, before a common law jury with witnesses charging him, no such claim to make: Udall's Trial, 1. How. St. Tr. 1271, 1275, 1289 (1590): Udall pleaded not guilty; and after argument made and witnesses testifying, Judge Clarke: What say you? Did you make the book, Udall, yes or no? What say you to it, will you be sworn? Will you take your oath that you made it not? declaring this to be a favor; Udall refused, and the judge finally asked: Will you but say upon your honesty that yo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y) are explainable the cases refusing to compel an answer as to a forfeiture. In the next place, the Chancellor had almost no jurisdiction over criminal charges, hence, in cases of this nature, cognizance might be declined by refusing to compel an answer. But, where this jurisdiction was not disputable, there seems to have been no objection to compelling the answer. Finally, the chancery practice is to be interpreted by the rules of the ecclesiastical courts, already examined. The Chancellor was forming his procedure (hardly organized until Bacon's time, in the early 1600s) almost precisely after that of the ecclesiastical courts. So far as he could take cognizance at all of a case involving a criminal fact, he would of course employ this ecclesiastical rule, as he did others, and not require the defendant to answer without due accusation by two witnesses or by presentment; that is to say, a plaintiff, upon his unsworn bill alone, could not put the defendant to answer to a criminal fact. The close affinity between the Chancellor's and the church's courts makes it plain that we need not look to the former for light upon the common law notions of the time-especially when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bare rule of law, which the judges would recognize on demand. The spirit of it was wanting in them. The old habit of questioning and urging the accused died hard - did not disappear, indeed until the 1700s had begun. So the interesting question is, How did this result come about? How did a movement which was directed, originally and throughout, against a method of procedure in ecclesiastical courts, produce in its ultimate effect a rule against a certain kind of testimony in common law courts? The process of thought, popular and professional, is to be accounted for. Now, for our history of legal ideas we do not ordinarily expect to go to Bentham. But he was the first to search into this history, and to maintain that this common law privilege did not antedate the Restoration; and, in this instance, his explanation of the process of thought by which the transmutation took place seems fairly to represent the probabilities. That explanation (as indeed the foregoing details exhibit) lies in the principle of the association of ideas - an association which began to operate immediately in the reactionary period of the Restoration and the Revolution, when the growth and ascendancy of W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rong was the popular agitation. The Third Estate in every district, in their cahiers sent up to Paris, had voted to abolish compulsory sworn interrogation of the accused, and the clergy in ninety-one districts had done the same. The decree of 1789 (though keeping the interrogation) abolished the oath de veritate ; art. 12: For this interrogatory, and for all others, the oath shall not be required from the accused ; and the Instructions of 1791 added: Mere good sense suffices to convince of the uselessness and immorality of such an oath . But an examination of the contemporary French literature shows that this was not the correct explanation, and that the process of inspiration was in fact just the reverse, i.e., from the American example to the French legislation. The Colonies had had their own experiences with highhanded prerogative courts. In the course of time they had developed the privilege in their own history, fortified no doubt by the legal learning brought back by the Colonial lawyers who had gone over to the Inns of Court for their education. So the proposals agitated in France in the 1780s were based explicitly on an acquaintance with the constitution of the prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vilege against self-incrimination be made a constitutional privilege may possibly be traced to the proceedings of the prerogative courts of Governor and Council, which constituted the Supreme colonial courts, and the proceedings instituted to enforce the laws of trade in the colonies. (Emphasis supplied) 51. The Supreme Court in re: Selvi (supra) would examine the historical origins of the right against self-incrimination which perhaps is required to be reiterated and thus the following paragraphs from the rendition of the Supreme Court is quoted herein below:- 92. The right of refusal to answer questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to the right to fair trial . There are competing versions about the historical origins of this concept. Some scholars have identified the origins of this right in the medieval period. In that account, it was a response to the procedure followed by English judicial bodies such as the Star Chamber and the High Commissions which required the defendants and suspects to take ex officio oaths. These bodies mainly decided cases involving religious non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue that even after common law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of due process of law which had been stated in the Magna Carta. 96. John H. Langbein (1994) has offered more historical insights into the emergence of the right to silence . [John H. Langbein, The Historical Origins of the Privilege against Self-Incrimination at Common Law [92(5) Michigan Law Review 1047-1085 (March 1994)].] He draws attention to the fact that even though ex officio oaths were abolished in 1641, the practice of requiring the defendants to present their own defence in criminal proceedings continued for a long time thereafter. 97. The Star Chamber and the High Commissions had mostly tried cases involving religious non-conformists and political dissenters, thereby attracting considerable criticism. Even after their abolition, the defendants in criminal courts did not have the right to be represented by a lawyer ( right to counsel ) or the right to request the presence of the defence witnesses ( right of compulsory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of the right to counsel that the accused's right to silence became meaningful. With the consolidation of the role of the defence lawyers in criminal trials, a clear segregation emerged between the testimonial function performed by the accused and the defensive function performed by the lawyer. This segregation between the testimonial and defensive functions is now accepted as an essential feature of a fair trial so as to ensure a level playing field between the prosecution and the defence. In addition to a defendant's right to silence during the trial stage, the protections were extended to the stage of pre-trial inquiry as well. With the enactment of the Sir John Jervis Act of 1848, provisions were made to advise the accused that he might decline to answer questions put to him in the pre-trial inquiry and to caution him that his answers to pre-trial interrogation might be used as evidence against him during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected. Compare, e.g. (1) requiring the witness to make a verbal communication of an incriminating fact (testimonial cooperation), with (2) requiring him to write a sample of his handwriting for comparison purposes (non-testimonial cooperation). The history of the privilege (2250 supra) - especially the spirit of the struggle by which its establishment came about - suggests that the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence. That is, it was intended to prevent the use of legal compulsion to extract from the person a sworn communication of his knowledge of facts which would incriminate him. Such was the process of the ecclesiastical court, as opposed through two centuries - the inquisitorial method of putting the accused upon his oath in order to supply the lack of required two witnesses. Such was the complaint of Lilburn and his fellow objectors, that he ought to be convicted by other evidence and not by his own forced confession upon oath. Such, too, is the main thrust of the policies of the privileg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el such statements-often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, the right against self-incrimination is a vital safeguard against torture and other third-degree methods that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will be more inclined to extract information through such compulsion as a matter of course. The frequent reliance on such short cuts will compromise the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges levelled against the defendant and the right against self-incrimination is a vital protection to ensure that the prosecution discharges the said onus. (Emphasis supplied) 56. In re: State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 the Supreme Court would hold:- 11. The matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blished that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a personal testimony . The giving of a personal testimony must depend upon his volition. He can make any kind of statement or may refuse to make any statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore extorted. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment which, in the circumstances of the case, would lend itself to the inference that compulsion was in fact exercised. In other words, it will be a question of fact in each case to be determined by the court on weighing the facts and circumstances disclosed in the evidence before it. 16. In view of these considerations, we have come to the following conclusions: (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled testimony as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. (Emphasis supplied) 59. While examining the question what constitutes incrimination for the purpose of Article 20 (3) of the Constitution of India the Supreme Court in re: Selvi (supra) would hold :- 133. We have already referred to the language of Section 161 CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation.............................................. (Emphasis supplied) 60. In conclusion and in answer to the pivotal question posed the Supreme Court in re: Selvi (supra) would hold:- 262. In our considered opinion, the compulsory administration of the impugned techniques violates the right against self-incrimination . This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Section 161(2) Cr.P.C. is a parliamentary gloss on the constitutional clause. The Supreme Court would hold that the rule against self-incrimination found expression in Indian law much before the advent of the Constitution of India under Article 20(3) and a facet of such rule is seen in Section 161 Cr.P.C., 1898 which corresponds to Section 161 Cr.P.C., 1973. It was held another facet of the rule against self-incrimination finds expression in Sections 25 and 26 and the proviso to Section 132 of the Evidence Act, 1872 which existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. 64. It is settled that in the Indian context, Article 20(3) should be construed with due regard for the interrelationship between rights. Hence, we are required to examine the right against self-incrimination in respect of its relationship with the multiple dimensions of personal liberty under Article 21, which include guarantees such as the right to fair trial and substantive due process . It has been made amply clear that Articles 20 and 21 have a non-derogable status within Part III of the Constitution of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... An accused person; (ii) his being compelled to be a witness and (iii) such compulsion being against himself. 68. As held by the Supreme Court to be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. The phrase used in Article 20 (3) is to be a witness and not to appear as witness . It follows that the protection afforded to an accused in so far as it is related, to the phrase to be a witness is not merely in respect of testimonial compulsion in the Court room but may well extend to compelled testimony previously obtained from him. To be a witness in its ordinary grammatical sense means giving oral testimony in court. It has been held and accepted that the case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. 69. A bare perusal of Article 20(3) of the Constitution of India makes it abundantly clear that compulsion to be a witness against himself is the sine-qua-non of the fundamental guarantee. Compulsion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inite conclusion of violation of Article 20(3) of the Constitution of India. As held in re: Brijbasi Lal Shrivastava (supra) administration of an oath to the accused by a person in authority before taking a statement is by itself a concealed threat. We are of the view that threat in any form be it concealed or otherwise directly affect voluntariness of the confession and render the same inadmissible in evidence. As pointed out by Mr. J.B. Pradhan, it is true that the object of criminal law process is to find out the truth and not to shield the accused from the consequences of his wrong doings. However, it is equally true that the process of finding out the truth must be undertaken keeping paramount Article 21 of the Constitution of India and the fundamental guarantee that no person shall be deprived of his life or personal liberty except in accordance to procedure established by law. In no circumstances can it be said that administration of oath to an accused before recording a confession which is prohibited by law and therefore illegal and unlawful (as we shall explain later) pursuant to which the confession is recorded was done by a procedure established by law. We are, thus, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record 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. (Signed) A. B. Magistrate . (5) Any statement (other than a confession) made under subsection (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. [5A)(a) In cases punishab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to writing. For the appellant, it was said that the magistrate was in a case very different from that of a private person, and that his case and his powers were dealt with and delimited by the Criminal Procedure Code, and that if this special Act dealing with the special subject-matter now in question set a limit to the powers of the magistrate the general Act could not be called in aid so to allow him to do something which he was unable to do, or was expressly or impliedly forbidden to do, by the special Act. The argument was that there was to be found by necessary implication in the Criminal Procedure Code a prohibition of that which was here attempted to be done: in other words that the magistrate must proceed under s. 164 or not at all. To this contention it was answered that there was no ground for reading the word may in s. 164 as meaning must on the principle described in Julius v. Lord Bishop of Oxford. There is no need to call in aid this rule of construction-well recognized in principle but much debated as to its application. It can hardly be doubted that a magistrate would not be obliged to record any confession made to him if, for example, it were that of a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure regulating what may be asked of, or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy: it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so far as it can be avoided. Sometimes it cannot be avoided, as under s. 533; but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other. In their Lordships' view, it would be particularly unfortunate if magistrates were asked at all generally to act rather as police-officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police-officers under s. 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates, from any obligation to make records under s. 164. In the result they would ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . that it carefully and precisely defined a procedure regulating what may be asked for, or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records. The Privy Council would also observe: Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. 75. In re: Nazir Ahmed (supra) the Privy Council would also hold that it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses in so far as it can be avoided but it cannot be avoided in cases falling under Section 533 (now section 463 Cr.P.C.). 76. In re: Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 the Supreme Court while examining the provisions of Section 164 of the old Cr.P.C. would hold:- 10. ...... It is hardly necessary to emphasize that the act of recording confessions under Section 164 of the Code of Criminal Procedure is a very solemn act and, in discharging his duties under the said section, the Magistrate must take care to see that the requirements of sub-section (3) of Section 164 are fully satisfied. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance with Section 164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should sometime, in our opinion, be more intrusive than what is required in law. (See Babubhai Udesinh Parmar v. State of Gujarat [(2006) 12 SCC 268 : (2007) 1 SCC (Cri) 702 : (2006) 12 Scale 385].) (Emphasis supplied) 80. In re: Mohd. Jamiludin Nasir v. State of W.B. (2014) 7 SCC 443 the Supreme Court would hold:- 21. Going by the prescriptions contained in Section 164 CrPC, what is to be ensured is that the confession is made voluntarily by the offender, that there was no external pressure particularly by the police, that the person concerned's mindset while making the confession was uninfluenced by any external factors, that he was fully conscious of what he was saying, that he was also fully aware that based on his statement there is every scope for suffering the conviction w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Article 20(3) and as held by the Supreme Court, facets of such rule are seen in Section 161 Cr.P.C., 1898 which corresponds to Section 161 Cr.P.C., 1973, Sections 25 and 26 and the proviso to Section 132 of the Evidence Act, 1872 which existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As held by the Supreme Court in re: Mohd. Azmal Amir Kasab (supra) the right against self-incrimination under Article 20 (3) is fully incorporated in the provisions of Cr.P.C. (Section 161, 162, 163 and 164) and the Evidence Act, 1872 as manifestations of enforceable due process, and thus compliance with these statutory provisions is also equal compliance with the constitutional guarantees. 82. Section 281 Cr.P.C. reads thus: 281. Record of examination of accused.-(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non- compliance, and may, if satisfied that such non- compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of appeal, reference and revision. 85. The Supreme Court in re: Babu Singh v. State of Punjab 1964 (1) Cri.LJ. 566 would find that the confessions had not been recorded by the Magistrate in his own hands for the reason that he was not familiar with the writing in Urdu which meant that the requirement of Section 364 (3) of the old Cr.P.C. (now Section 281 Cr.P.C.) had not been complied with. In such factual narrative the Supreme Court would seek to answer: 12. If the Magistrate under whose supervision the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 364 we find that sub-section (1) provides for the recording of the confession in full in the manner prescribed therein and for explaining the contents of the same to the accused in a language which he understands, and the accused shall be at liberty to explain or add to his answers. Sub-section (2) lays down that when the whole of the confession is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate, and the Magistrate 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. Sub-section (3) is important for our purpose. It provides that 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 annexed to the record. It also says that if the Magistrate is unable to make a memorandum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate in the present case we are constrained to observe that when he got the confessions recorded in the present case he was not fully conscious of the solemnity and the seriousness of what he was doing. That is another factor which has weighed in our minds. Having regard to these features of the case we are not prepared to uphold the finding of the High Court that the confessions made by the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore excluded from consideration it is impossible to sustain the charge of murder against either of the two appellants. In a case where the charge of murder was founded almost exclusively on the confessions it was necessary that the High Court should have considered these relevant factors more carefully before it confirmed the conviction of the appellants for the offence under Section 302 and confirmed the sentence of death imposed on Babu Singh. In our opinion, if the confessions are left out of consideration the charge of murder cannot be sustained. The result is the conviction of both the appellants for the offence under Section 302 read with Section 34 is set aside and consequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n recorded by him under section 164 of the Code of Criminal Procedure. The Supreme Court would examine the provisions of section 164, 364 and 533 of the Code of Criminal Procedure and hold that:- 5. A confession duly recorded under Section 164 would no doubt be a public document under Section 74 of the Evidence Act which would prove itself under Section 80 of that Act. Mr. Dixit, who recorded the confession in this case was a Second Class Magistrate and the prosecution was unable to prove that he had been specially empowered by the State Government to record a statement or confession under Section 164 of the Code. The trial, therefore, proceeded on the basis that he had not been so empowered. That being so, it was rightly held that the confessions had not been recorded under Section 164 and the record could not be put in evidence under Sections 74 and 80 of the Evidence Act to prove them. The prosecution, thereupon called Mr. Dixit to prove these confessions, the record being used only to refresh his memory under Section 159 of the Evidence Act. It is the admissibility of this oral evidence that is in question. 6. The Judicial Committee in Nazir Ahmed v. King-Emperor [LR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat which is laid down with such minute particularity in the sections themselves . 8 . The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second ground on which Mr. Aggarwala challenged the decision in Nazir Ahmed case [LR 63 IA 372] was that the object of Section 164 of the Code is to permit a record being kept so as to take advantage of Sections 74 and 80 of the Evidence Act and avoid the inconvenience of having to call the Magistrate to whom the statement or confession had been made, to prove it. The contention apparently is that the section was only intended to confer a benefit on the prosecution and, therefore, the sole effect of the disregard of its provisions would be to deprive the prosecution of that benefit, for it cannot then rely on Sections 74 and 80 of the Evidence Act and has to prove the confession by other evidence including the oral evidence of the Magistrate recording it. It was, therefore, said that the principle adopted in Nazir Ahmed case [LR 63 IA 372] had no application in interpreting Section 164. 12. A similar argument was advanced in Nazir Ahmed case [LR 63 IA 372] and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to make a record of the confession made by an accused which may be used in evidence against him and at the same time it pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 164 on certain Magistrates of higher classes. Obviously, it was not intended to confer the power on Magistrates of lower classes. If, therefore, a proper construction of Section 164, as we have held, is that a Magistrate of a higher class is prevented from giving oral evidence of a confession made to him because thereby the safeguards created for the benefit of an accused person by Section 164 would be rendered nugatory, it would be an unnatural construction of the section to hold that these safeguards were not thought necessary and could be ignored, where the confession had been made to a Magistrate of a lower class and that such a Magistrate was, therefore, free to give oral evidence of the confession made to him. We cannot put an interpretation on Section 164 which produces the anomaly that while it is not possible for higher class Magistrates to practically abrogate the safeguards created in Section 164 for the benefit of an accused person, it is open to a lower class Magistrate to do so. We, therefore, think that the decision in Nazir Ahmed case [LR 63 IA 372] also covers the case in hand and that on the principle there applied, here too oral evidence given by Mr. Dixit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such nonc o mp l i anc e, and may, if satisfied that such noncompliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision. (2) The provisions of this section apply to Courts of appeal, reference and revision. 90. Under Section 533 of old Cr.P.C the Court was required to take evidence that such person duly made the statement recorded when it finds that the provisions of Section 164 or 364 of old Cr.P.C have not been complied with and notwithstanding Section 91 of the Indian Evidence Act, 1872 such statement shall be admitted if the error has not injured the accused as to his defence on the merits. Under Section 463 Cr.P.C the Court is now required to take evidence in regard to such non-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, made after giving the necessary warning and after putting the required questions under section 164, and (ii) whether the confession or other statement, duly made, was properly recorded. In the first case, section 533 should not apply, because, to apply the section in such cases would defeat the very object of sections 164 and 364, thereby depriving the accused of a beneficial provision on a matter on which the law has always shown its anxious concern. It is only the second kind of defect- defect in recording - that should be curable. The Magistrate should have complied with the substantial provisions of section 164, and there can be no saving for a non-compliance on that account. If such compliance is not apparent from the record. It can be proved otherwise. That is all that section 533 is intended to provide for. As observed by the Supreme Court - Now a statement would not have been 'duly made' unless the procedure for making it laid down in section 164 had been followed. What section 533 therefore does is to permit oral evidence to be given to prove that the procedure laid down in section 164 had in fact been followed when the Court finds that the record prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the sub-section (2) of Section 164 is therefore, mandatory and imperative and non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorded evidence can be adduced to prove that in fact the requirements of sub-section (2) of Section 164 read with Section 281 have in fact been complied with. If the court comes to a finding that such a compliance had in fact been made the mere omission to record the same in the proper form will not render it inadmissible evidence and the defect is cured under Section 463 (Section 533 of the old Criminal Procedure Code) but when there is non-compliance of the mandatory requirement of Section 164(2) of the Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same might be used against him by the prosecution for his conviction. Of course, no question was put by the Magistrate to the accused as to why he wanted to make a confessional statement. It also appears from the evidence of the Magistrate, Shri Bharat Bhushan (Ex. PW 11) that the confessional statement was made voluntarily by the accused. So the defect in recording the statement in the form prescribed is cured by Section 463 of the Code of Criminal Procedure. It is indeed appropriate to mention in this connection that the defect in recording the statement in appropriate form prescribed can be cured under Section 463 of the Code of Criminal Procedure provided the mandatory provisions of Section 164(2) namely explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him, have been complied with and the same is established on an examination of the Magistrate that the mandatory provisions have been complied with.. (Emphasis supplied) 93. In re: Kehar Singh (supra) the Supreme Court would specifically examine the provision of Section 463 Cr.P.C. After a detailed and thorough analysis of the judgments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er statement under section 313 Cr.P.C. that a confession was voluntary. The Supreme Court would observe:- 400. Coming to the confession of Nalini (A-1), it was submitted by Mr. Natarajan that she, in her confession, referred to Murugan (A-3), Arivu (A-18), Bhagyanathan (A-20) and Padma (A-21) among the accused now arraigned before the Court. She also referred to Jayakumar (A-10) though he comes in the picture after the act of assassination had been completed. Nalini (A-1) who was present at the scene of the crime is the sole surviving accused of the group that had gone to Sriperumbudur in furtherance of the conspiracy to assassinate Rajiv Gandhi. Nalini (A-1) has denied in her statement under Section 313 of the Code that her confession was voluntary. She said blank papers were got signed from her. This confession does not satisfy the requirement of law under Section 15 of TADA and Rule 15(3) of the TADA Rules though it is not disputed that all the confessions are recorded by V. Thiagarajan (PW 52), Superintendent of Police. 401. It was submitted that the certificate required to be recorded under Rule 15(3) of the Rules of TADA is on the same lines as given in Section 164(4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant if each page of the confession is signed, signature has to be put on the last page at the end of the confession and only then endorsement by the police officer recording the confession has a meaning. Both the signatures at the end of the confession and the certificates of the police officer must go together. Rule 15 provided an assurance that confession recorded is as per prescribed provisions. In support of the submission Mr. Natarajan referred to a Constitution Bench decision of this Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] where this Court considered constitutional validity of the provisions of Section 15 of TADA and Rule 15 of the TADA Rules. It was submitted that the constitutional validity of TADA was upheld because of the safeguards provided by Rule 15 for recording confession by police officer which under ordinary law is impermissible. In Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] the Court said: (SCC p. 680, para 254) 254. In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that Section 15 is not liable to be struck down since that section does not offend either Article 14 or Article 21 of the Constitution. 261. Notwithstanding our final conclusion made in relation to the intendment of Section 15, we would hasten to add that the recording of a confession by a Magistrate under Section 164 of the Code is not excluded by any exclusionary provision in the TADA Act, contrary to the Code but on the other hand the police officer investigating the case under the TADA Act can get the confession or statement of a person indicted with any offence under any of the provisions of the TADA Act recorded by any Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate of whom the two latter Magistrates are included in Section 164(1) by sub-section (3) of Section 20 of the TADA Act and empowered to record confession. 262. The net result is that any confession or statement of a person under the TADA Act can be recorded either by a police officer not lower in rank than a Superintendent of Police, in exercise of the powers conferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Section 164, and in particular stating that the Magistrate believed that 'the pointing out and the statements were voluntarily made'. But it was not suggested that the Magistrate, though he was manifestly acting under Part 5 of the Code, either purported to follow or in fact followed the procedure of Sections 164 and 364 (old Code). Indeed, as 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. The Magistrate offered no explanation of why he acted as he did instead of following the procedure required by Section 164. 403. The Board did not express any opinion in this case on the question of the operation or scope of Section 533 (old) corresponding to Section 463 of the present Code. It was conceded that the Magistrate neither acted nor purported to act under Section 164 or Section 364 (old) and nothing was tendered in evidence as recorded or purporting to be recorded under either of the sections. The Board then went on to hold as under: On the matter of construction Sections 164 and 364 must be looked at and construed together, and it would be an unnatural co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession recorded by him was ineffective. 404. In the case before the Bombay High Court contention was that as per the provisions of sub-section (4) of Section 164 CrPC it is mandatory for the Magistrate, after recording the confession, to obtain the signature of the accused thereon and as in the present case the learned Judicial Magistrate failed to obtain the signature of the accused on the confession recorded by him, that confession could not be admitted in evidence and the defect could not be cured by invoking the provisions of Section 463 CrPC . This contention was upheld by the High Court relying on the aforesaid two decisions, one of the Privy Council and the other of the Nagpur High Court. We do not think the view taken by the Bombay High Court and the Nagpur High Court is correct. It may be noted that the Privy Council did not consider the scope and applicability of Section 463 in the circumstances of the case before it. In that case it was conceded that the confessions were not recorded either under Section 164 or Section 281 of the Code. The view taken by the Bombay High Court appears to us to be rather too technical and if we accept this view it would be al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e: Nalini (supra) the Supreme Court would hold that the view taken by the Bombay High Court in Abdul Razak Shaikh case (1988 Cri.LJ 382) and the Nagpur High Court in Neharoo Mangtu Satnami v. Emperor (AIR 1937 Nag. 220) relying upon the decision of the Privy Council in re: Nazir Ahmed (supra) is not correct. The Bombay High Court had held that the provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and has been specially provided for, for safeguarding the interest of the accused and, therefore, it is mandatory. The High Court also held that this omission cannot be cured by examining the Magistrate under Section 463 of the Code. The Bombay High Court also relied on a decision of the Nagpur High Court relying upon the decision in re: Nazir Ahmed (supra) had held that the evidence of the Magistrate, who recorded the confession of the accused and did not obtain his signature thereon, was inadmissible. The Supreme Court once again held that the Privy Council had not considered the scope and applicability of Section 463 of Cr.P.C. in the circumstances of the case before it. The Supreme Court would hold that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h and the same is establish from the certificate appended to the statement and from the evidence of the Magistrate. It was in this context that the Supreme Court distinguished the judgment of the Judicial Committee in re: Nazir Ahmed (supra) and observed: 18. Turning now to the next submission of learned counsel appearing on behalf of the accused as to the judicial confession (Ext. 187) made by A-1 before PW 62, it would be useful to refer to the relevant provisions in the Criminal Procedure Code that deal with the recording of a judicial confession by a Judicial Magistrate and see whether the judicial confession recorded by PW 62 of A-1 is according to the procedure prescribed by these provisions or whether any violation thereof has been made by the Magistrate while recording it. The relevant sections in CrPC are Sections 164, 281 and 463. 19. Sub-section (2) of Section 164 CrPC requires that the Magistrate before recording confession shall explain to its maker that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by Section 164. 23. On 24-8-2001, upon receipt of an application moved by Superintendent of Police for recording dying declaration of A-1 by a Magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hissar, who, in turn, marked the said application to Pardeep Kumar, PW 62. On its presentation to PW 62 by DSP Man Singh at 10 p.m. the same day, both PW 62 and DSP Man Singh left for Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW 62 first sought opinion of Dr. Anant Ram (PW 32) as to the fitness of A-1 to make the statement. As in the opinion of PW 32, A-1 was fit to make the statement, PW 62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put to A-1 that PW 62 warned A-1 that she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence. In spite of this warning, A-1 volunteered to make the statement and only thereafter the statement was recorded by PW 62. In the certificate that was appended to the said confessional statement PW 62 has very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (Ext. 187) having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence. 24. We now advert to the decisions relied upon by the learned counsel appearing on behalf of the accused. In Nazir Ahmad [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)] the accused, who was charged with dacoity and murder, was convicted on the strength of a confession said to have been made by him to a Magistrate of the class entitled to proceed under the provisions of Section 164 relating to the recording of confession. The confession was not recorded according to the procedure and the record of the confession was not available as evidence either. The Magistrate, however, appeared as a witness and gave oral evidence about the making of the confession. He stated that he made rough notes of what he was told, got a memorandum typed from the typist on the basis of the rough notes and thereafter destroyed the rough notes. The said memorandum, signed by him contained only the substance but not all of the matter to which he spoke orally. The recording Magistrate in the said memoran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter he was sent to judicial custody. Upon being produced before a Magistrate on 25-6-1973 for recording his confession, he was given two hours' time to reflect. After cautioning the accused that he was not bound to make a confession and that if he did so, it might be used against him, the Magistrate went on to record his confession. Failure of the recording Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4) was termed by this Court as flagrant violation of the provisions of Section 164(2) and in utter disregard of the mandatory requirements of the said section. Preetam [(1996) 10 SCC 432 : 1996 SCC (Cri) 1343] is a case where the accused remained in police custody for six days immediately before the recording of his confession by the Magistrate and, therefore, could be said to have been pressurised, tortured and harassed by the police. In such a situation, omission on the part of the recording Magistrate to put a question to the accused to satisfy himself that the confession was being made voluntarily can be said to be flagrant violation of law. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused under Section 302 IPC, held that the Special Court was not at all justified in entertaining the confession as a voluntary one, observing that mere endorsement would not fulfil the requirements of sub-section (4) of Section 164. This case too has no application at all to the facts of the present case for two reasons-firstly, in this case too the appellant remained in police custody for a week and secondly, it is a case in which the recording Magistrate neither explained to the accused that he was not bound to make a confession and if he did so, it might be used against him nor satisfied himself upon questioning the accused that the confession was being voluntarily made. In the case on hand, PW 62 in his evidence has stated that he did ask the accused the question whether she was under any pressure, threat or fear and only after satisfying himself that she was not under any, that he proceeded on to record her confessional statement. 27. Therefore, in view of our above discussion, the three decisions relied upon by the learned counsel for the accused in Nazir [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)], Preetam [(1996) 10 SCC 432 : 1996 SCC (Cri) 1343] and Tulsi [(1996) 6 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate who recorded the confession had taken part in assisting the investigation by attesting recovery memos in two cases, the confessional statement of the accused was excluded from consideration. It was observed at SCR p. 764 thus: Having regard to these features of the case we are not prepared to uphold the finding of the High Court that the confessions made by the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore, excluded from consideration it is impossible to sustain the charge of murder against either of the two appellants. In a case where the charge of murder was founded almost exclusively on the confessions it was necessary that the High Court should have considered these relevant factors more carefully before it confirmed the conviction of the appellants for the offence under Section 302 and confirmed the sentence of death imposed on Babu Singh. In our opinion, if the confessions are left out of consideration, the charge of murder cannot be sustained. 30. The three unusual features noticed by the Bench in Babu Singh [(1963) 3 SCR 749 : (1964) 1 Cri LJ 566] impelled the learned Judges to exclude from considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 97. In re: Ram Singh (supra) the Supreme Court would find that the certificate appended to the confession would show that it was voluntary. The Supreme Court would further notice that the Magistrate had failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement. The Supreme Court would also notice that the said Magistrate had stated in his evidence that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that he was not under any pressure from any corner; that in the room in which the confession was recorded it was only he and another witness who were present and no police officer was available even within the precincts of the hospital. In such factual narrative the Supreme Court would hold that the said effect is cured by Section 463 Cr.P.C. as the mandatory requirement provided under Section 164(2) Cr.P.C. of explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him had been complied with established by the certificate from the Magistrate. 98. In re: Ahmed Hussein Vali Mohammed Saiyed v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:- (a) all courts and persons having by law or consent of parties authority to receive evidence; (b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station. (2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, any court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf- (a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or (b) by the State Government, in respect of other affidavits.'' 100. Section 4 of the Oaths Act, 1969 reads thus: 4. Oaths or affirmations to be made by witnesses, interpreters and jurors.-(1) Oaths or affirmations shall be made by the following persons, namely:- (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. 103. Section 8 of the Oaths Act, 1969 reads thus: 8. Persons giving evidence bound to state the truth.-Every person giving evidence on any subject before any court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.'' 104. The schedule to the Oaths Act, 1969 reads thus: THE SCHEDULE (See section 6) FORMS OF OATHS OR AFFIRMATIONS Form No. 1 (Witnesses):- I do swear in the name of God/solemnly affirm that what I shall state shall be the truth, the whole truth and nothing but the truth. xxxxxxxxxxxxxxxxxxxxxxxx 105. In re: State of Rajasthan v. Darshan Singh (2012) 5 SCC 789, the Supreme Court would hold:- 24. This Court in Rameshwar v. State of Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f witnesses only other than confessions. In other words the requirement of administering oath is limited to witnesses only and not to an accused making a confession. 109. In the Criminal Procedure Code, 1893, as it stood before the amendment of 1973, the relevant provision was section 164(2); it read as follows: Section 164(2): such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. 110. The Forty First Report of the Law Commission, which preceded the introduction of Section 164(5) Cr.P.C. had stated: - The earlier Report (37th) considered the question whether the statements recorded under section 164 should be on oath or not and recommended that they should be. The actual practice, we understand varies; but it would certainly be proper if such statements are always made on oath and this should be provided in the section itself [as it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner provided by sub section (2), (3) and (4) of Section 164 and Section 281 Cr.P.C. statements other than confession are required to be recorded in the manner provided under sub-section (5) of Section 164 Cr.P.C. A reading of Section 164 (2), (3) and (4) with Section 281 Cr.P.C. makes it amply clear that there is no provision to administer oath on an accused person. The Magistrate while doing so must, before recording any such confession, explain to the accused that he is not bound to make a confession and that, if he does so it may be used as evidence against him. Under Section 281 Cr.P.C. the record of examination of accused is to be made by the concerned Magistrate and signed by the accused as well as the Magistrate who is required to 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. A reading of Section 164 (5) Cr.P.C. makes it evident that a statement other than confession is to be recorded by the Magistrate in the manner provided for recording of evidence and the said Magistrate shall have power to administer oath to the person whose statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers conferred upon them by law. Thus, as a natural corollary a Magistrate while recording a confession would not be recording evidence and thus would not have the necessary power to administer oath on accused under Section 3 of the Oaths Act, 1969. Under Section 4 of the Oaths Act, 1969 oath or affirmation shall be made by witnesses, that is to say, all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examined such persons or to receive evidence. Section 4(2) of the Oaths Act, 1969 specifically provides that nothing in this section shall render in lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties. Section 4 of the Oaths Act, 1969 makes it clear that oath shall not be administered to an accused and it would be unlawful to do so in a criminal proceeding unless the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would prejudice his defence. Under the Indian system of criminal jurisprudence the burden of proof is always on the prosecution except of course where the law creates a specific exception. Thus, even under the scheme of the Oaths Act, 1969 it is amply clear that administration of oath to an accused, unless he is being examined as a witness for the defence, is prohibited. The mandate of Section 4 (2) of the Oaths Act, 1969 also reflects a clear desire of the Legislature to insulate the accused from self-incrimination. 117. Let us now examine whether administration of oath on accused while recording a confession under Section 164 Cr.P.C. which is prohibited, unlawful and illegal can still be cured under Section 463 Cr.P.C.? Section 463 Cr.P.C. provides that the Court before which a confession or other statement of an accused person is recorded, or purporting to be recorded under Section 164 or Section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, take evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voluntariness of the confession recorded by the Magistrate is established the failure or the defect or the irregularity or the error of the Magistrate in recording the said confession in the manner provided by Section 164 and 281 Cr.P.C. is curable under Section 463 Cr.P.C. 119. It was argued before us that Section 463 Cr.P.C. falls under chapter XXXV under the head irregular proceedings and thus what Section 463 Cr.P.C. permits is the curing of irregularities and not illegalities. 120. The Supreme Court in re: Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 would hold:- 47. So far as the heading of the chapter is concerned, it is well settled that heading or title prefixed to sections or group of sections have a limited role to play in the construction of statutes. They may be taken as very broad and general indicators or the nature of the subject-matter dealt with thereunder but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. In Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185], this Court has observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not apply in the first case because to do so would be to defeat the very object of Section 164 and 281 Cr.P.C. It is only the second kind of defect i.e. defects in recording the confession or other statement, duly made, that was curable. Section 463 Cr.P.C. thus sought to clarify that the evidence given should relate to apparent non-compliance with the statutory provisions. It is also clear that substantial illegality of not recording a confession as mandated by Section 164 Cr.P.C. as opposed to mere irregularity in the procedure in recording the same cannot be cured under Section 463 Cr.P.C. The question therefore is whether administration of oath on an accused person is a substantial illegality or a curable irregularity? 123. We have already held that administration of oath on an accused while recording his confession is unconstitutional, prohibited, unlawful and illegal. Section 164 Cr.P.C. has been meticulously designed in great detail to ensure voluntariness and truthfulness. The rationale as to why oath ought not to be administered on an accused while recording confession seems to date back to the period in England when the accused were administered oath and confessions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oath he is now compelled to self-incriminate. We thus hold that not only administration of oath on an accused while recording his confession is prohibited, unlawful and illegal but also that the said act cannot be cured under Section 463 Cr.P.C. Administration of Oath upon an accused while recording confession has a direct bearing on the voluntariness of the confession and voluntariness is sacrosanct. Let us look at the problem from yet another perspective. Under the scheme of Cr.P.C. the accused has a right to remain silent. In fact it is a fundamental guarantee under Article 20 (3) of the Constitution of India. Under the scheme of Cr.P.C. it is only at the stage of examination of an accused under Section 313 Cr.P.C. an accused is asked to explain any circumstance appearing in evidence against him by the Court. Even at this stage sub-section (2) of Section 313 Cr.P.C. requires that no oath shall be administered to the accused when he is examined and under subsection (3) thereof accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. The recording of a statement of an accused under Section 313 Cr.P.C. cannot eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. Whether administration of oath on an accused person compelled the accused to incriminate himself is a question only the accused can answer. Under the scheme of Cr.P.C. we do not see any provision by which the evidence of the accused can be taken as required under Section 463 Cr.P.C. except under Section 315 Cr.P.C. and that too only if the accused so chooses. The illegal act of administering oath on an accused before recording his evidence would therefore take away the choice given to the accused under Section 315 Cr.P.C. and compel the accused to be a witness for the defence. We are thus of the view that this was not the eventuality contemplated under Section 463 Cr.P.C. Section 463 Cr.P.C. provides that the Court can notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 take evidence in regard to such non-compliance as an exception to taking oral evidence to prove the contents of a document. Section 80 of the Indian Evidence Act, 1872 provides that:- Whenever any record is produced before the Court, purporting to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforcing fundamental right. Violation of fundamental right itself renders the impugned action void. The Supreme Court has also held that compulsion must be understood to mean duress and that compulsion in this sense is a physical objective act and not the state of mind of the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore extorted. The Magistrate while administering oath on an accused before recording the confession commits an illegality and unlawful act prohibited by law. Any information received which may be self-incriminatory in violation of the laws as well as the Constitutional guarantee, which may have compelled the accused to self-incriminate cannot but be termed duress or undue influence . While it is true that the demand or requirement for speaking truth is absolute both by a witness after he is administered oath and by an accused while making a confession, administering oath upon an accused while recording his confession would lead to disastrous consequences. A perusal of Section 164 read with Section 281 Cr.P.C. makes it evident that the recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 20(3) of the Constitution of India to be cured. It must always be remembered that under the doctrine of Constitutional supremacy the Constitution is the paramount law to which all other laws must conform. The Constitution of India must ever remain supreme and deemed written in every statute. We are, therefore, of the firm view that the substantial illegality of administering oath upon an accused before taking a confession which is prohibited cannot be termed as a curable irregularity under Section 463 Cr.P.C. Answering the first question referred by the Division Bench in the affirmative we hold that the confessional statement recorded under the provision of Section 164 Cr.P.C. on oath is fatal and cannot be protected by the provision of Section 463 Cr.P.C. In the circumstances and consequently we hold that the judgment of the Division Bench of this Court in re: Arjun Rai (supra) is good law. We reiterate, as already held by the Supreme Court in re: Brijbasi Lal Shrivastava (supra), that administration of oath while recording statements of the accused under section 164 Cr.P.C. would amount to a concealed threat. If this be so then to permit further evidence to disprove what has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
