form out side. He was informed by some neighbours that his sister Parkash
Kaur and her husband Man Singh had shifted their residence to their farm
house about a month earlier. He had then gone to the farm house, which was
at a distance of 1-1/2 kilometers and on reaching there he found that the door of the Kotha of the tube well was locked from out side and foul smell was
coming from the tube well. He returned to the village and after collecting
some residents returned to the tube well. On reaching the tube well and
breaking open the door of the Kotha, he found the dead bodies of his sister
and brother in law lying inside with sharp edged injuries on the head and
face. On the basis of the statement of Jaswinder Singh formal F.I.R. Ex.PA/2
was recorded. Inspector Harjinder Singh PW.5 the Investigating Officer after
recording the statement of Jaswinder Singh went to the spot, prepared
inquest reports and forwarded the dead bodies for post mortem. The
accused was arrested in the case and during interrogation he made a
disclosure statement Ex.PC that he had kept concealed a Kassi by the side of
the canal minor and could get the same recovered. Subsequent there to he
had led the police party to the specified place and got discovered the Kassi.
Thereafter he had made a statement under Section 164 of the Code of
Criminal Procedure, 1973 (in short `the Code') before the Judicial Magistrate
Ist Class, Batala admitting the fact that he had been responsible for killing
his parents. On the completion of the investigation, a challan was put in the
Court of the Illaqa Magistrate, who after going through the papers committed
the case to the Court of Session. The trial Court was of the view that prima
facie case under Section 302 IPC was made out against the accused. It
accordingly, framed the charge. When the accused pleaded not guilty to the
charge, the prosecution was called up to examine its witnesses.
Primarily prosecution relied on several factors to contend that the
accused was guilty of the offence. They are (1) on extra judicial confession made by the writ petitioner; (2) judicial confession in terms of Section 164 of
the Code made before the learned Judicial Magistrate. The trial Court
accepting the prosecution version observed that both the extra judicial
confession in terms of Section 24 and 26 of the Indian Evidence Act, 1872 (in
short `the Act') as well as the judicial confession before the Magistrate under
Section 164 of
the Code clearly established the guilt of the accused. An appeal was preferred by the respondent herein questioning the correctness of the
judgment of the trial Court. Primarily two stands were taken before the High
Court. It was first submitted that no statement was given under Section 164
of the Code as envisaged and also there was no extra judicial confession.
The High court recorded a finding that PW.3 before whom purportedly the
extra judicial confession was made did not support the prosecution.
Additionally, it was held that the requisite procedure which was to be
observed for recording confession under Section 164 admissible in evidence
was not followed. Further it was held that the charge is defective as the
requirements of Section 218 of the Code were not followed. Accordingly,
acquittal was directed.
Learned counsel for the appellant State submitted that all the
conclusions of the High Court are erroneous in law as well as in fact. Firstly,
PW.3 clearly supported the prosecution version. It is true as observed by the
High Court that PW.2 did not support the prosecution version but that was not
the case so far as PW.3 is concerned. Reference is made to the conclusions of the trial Court which recorded that
Mohinder Singh PW.3 in deposition stated that on 2.7.1994 accused
confessed that he had killed his father and mother and the accused wanted
his help in order to produce him before the SHO as the then SHO of the police
station was friendly with him. The stand taken by the accused before the trial
Court was that PW.3 was a resident of another village and there was no
occasion for making extra judicial confession. That is not the same as saying that PW.3 did not support the prosecution version.
Coming to the observance of necessary procedure relating to
recording the statement under Section 16LL of the Code, the Magistrate,
P.W.9, has categorically stated that he has observed the requisite procedure.
He has referred to the questions that were put to the accused and the warning
given to him clearly stating that the confession could be used as evidence
against him. Nowhere in the cross-examination of this witness even a
suggestion was made that there was no statement recorded under Section
164 before him. It is not that, as has been observed by the High Court that
statement under Section 164 of the Code has not been recorded in the
requisite manner.
Confessions may be divided into two classes i.e. judicial
and extra-judicial. Judicial confessions are those which are made
before a Magistrate or a court in the course of judicial proceedings.
Extra-judicial confessions are those which are made by the party
elsewhere than before a Magistrate or court. Extra-judicial
confessions are generally those that are made by a party to or before
a private individual which includes even a judicial officer in his
private capacity. It also includes a Magistrate who is not especially
empowered to record confessions under Section 164 of the Code of
Criminal Procedure, 1973 (for short the `Code') or a Magistrate so
empowered but receiving the confession at a stage when Section
164 of the Code does not apply. As to extra-judicial confessions,
two questions arise: (i) were they made voluntarily? and (ii) are they
true? As the section enacts, a confession made by an accused
person is irrelevant in criminal proceedings, if the making of the confession appars to the court to have been caused by any
inducement, threat or promise, (1) having reference to the charge
against the accused person, (20 proceedings from a person in
authority, and (3) sufficient, in the opinion of the court to give th
accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the proceedings against
him. It follows that a confession would be voluntary if it is
made by the accused in a fit state of mind, and if it is not caused by
any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would
not be involuntary, if the inducement, (a) does not have reference to
the charge against the accused person or (b) it does not proceed
from a person in authority; or © it is not sufficient, in the opinion of
the court to give the accused-person grounds which would appear
to him reasonable for supposing that, by making it he would gain
any advantage or avoid any evil of temporal nature in reference to
the proceedings against him. Whether or not the confession was
voluntary would depend upon the facts and circumstances of each
case, judged in the light of Section 24 of the Indian Evidence Act,
1872 (in short `Evidence Act'). The law is clear that a confession
cannot be used against an accused person unless the court is
satisfied that it was voluntary and at that stage the question whether
it is true or false does not arise. If the facts and circumstances
surrounding the making of a confession appear to cast a doubt on
the veracity or voluntariness of the confession, the court may refuse
to act upon the confession, even if it is admissible in evidence. One
important question, in regard to which the court has to be satisfied
with is, whether when the accused made the confession, he was a
free man or his movements were controlled by the police either by themselves or
through some other agency employed by them for the purpose of
securing such a confession. The question whether a confession is
voluntary or not is always a question of fact. All the factors and all
the circumstances of the case, including the important factors of the
time given for reflection, scope of the accused getting a feeling of
threat, inducement or promise, must be considered before deciding
whether the court is satisfied that in its opinion the impression
caused by the inducement, threat or promise, if any, has been fully
removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow form the highest sense of
guilt. (See R.V. Warickshall) It is not to be conceived that a man
would be induced to make a free and voluntary confession of guilt,
so contrary to the feelings and principles of human nature, if the
facts confessed were not true. Deliberate and voluntary confessions
of guilt, if clearly proved, are among the most effectual proofs in law.
An involuntary confession is one which is not the result of the free
will of the maker of it. So where the statement is made as a result of
harassment and continuous interrogation for several hours after the
person is treated as an offender and accused, such statement must
be regarded as involuntary. The inducement may take the form of a
promise or of a threat, and often the inducement involves both
promise and threat, a promise of forgiveness if disclosure is made
and threat of
prosecution if it is not. (Seen Woodroffe's Evidence, 9th Edn. ,p.
284). A promise is always attached to the confession alternative
while a threat is always attached to the silence alternative; thus, in
one case the prisoner is measuring the net advantage of the
promise, minus the general undesirability of a false confession, as
against the present unsatisfactory situation; while in the other case
he is measuring the net advantages of the present satisfactory
situation, minus the general undesirability of the confession against
the threatened harm. It must be borne in mind that every
inducement, threat or promise does not vitiate a confession. Since
the object of the rule is to exclude only those confessions which are
testimonially untrustworthy, the inducement, threat or promise must
be such as is calculated to lead to an untrue confession. On the
aforesaid analysis the court is to determine the absence or presence
of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement,
promise or threat is sufficient in the opinion of the court, to give the
accused person grounds which would appear to him reasonable for
supposing that by making it he would gain any advantage or avoid
any evil, it is enough to exclude the confession. the words “appear
to him” in the last part o the section refer to the mentality of the
accused.”
So far as the recording of statements and observance of the norms
relating to recording a statement, this Court in JT (2007) SC 287 observed as
follows:
“19. Sub-section (2) of Section 164 Cr.P.C. requires that
the magistrate before recording confession shall explain to its
maker that he s 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 confession shall be recorded by the magistrate.
Sub-section(4) of Section 164 provides that the confession so
recorded shall be in the manner provided in Section 281 and it shall
be signed by its maker and the recording 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.”
20 Sub-section (1) of Section 463 provides that in case the Cort
before whom the confession so recorded
is tendered in evidence finds that any of the provisions of either
of such sections have not been complied with by the recording
magistrate, it may, notwithstanding anything contained in Section
91 of the Indian Evidence Act, 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.”
It is hardly necessary to emphasize that the act of recording
confessions under Section 164 of the Code is a very solemn act and in
discharging his duties in the said Section, the Magistrate is required to take
care to see that the requirements of sub-section (3) of Section 164 of the Code
are fully satisfied. It is necessary in every case to put questions as intended
to be asked under Section 164(3).
A bare perusal of the evidence of PW.9 shows that necessary
questions were asked and due care was taken before recording the statement
of the accused. It was specifically told to him that the statement could be
used in evidence
against him. Time was given to the accused to ensure that he was making the
statement voluntarily without any pressure and it was specifically indicated to
him that the statement could be used against him. Therefore, the High Court
was not justified in holding that the requisite procedure for recording
statement under Section 164 has not been followed.
Coming to Section 218 of the Code, the High Court obviously is not
justified to say that the charge is defective. Section 463 of the Code deals with
non-compliance with provisions of Section 164. The provisions make it
clears that it has to be established that because of the non-compliance an injury has been occasioned to the accused in his defence on merits. So far as
Section 164 is concerned the same reads as follows:
“164. Recording of confessions and statements:(1) Any
Metropolitan Magistrate or Judicial Magistrate may, whether or not
he has jurisdiction in the case, record any confession or statement
made to him in the course of an investigation under this Chapter or
under any other law for the time being in force, or at any time
afterwards before the commencement of the inquiry or trial:
Provided that no confession shall be recorded by a police
officer on whom any power of a Magistrate has been conferred
under any law for the time being in force.
2 the Magistrate shall, before recording any such confession,
explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence
against him; and the Magistrate shall not record any such
confession unless, upon questioning the person making it, he has
reason to believe that it is being made voluntarily.
3 If at any time before the confession is recorded, the person
appearing before the Magistrate states that he s not willing to
make 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 for 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, nay
confession he may make may be used as evidence
against him and I believe that this confession was
voluntarily made. It was taken in may 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 sub-
section (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.
6 The Magistrate recording a confession or statement under this
section shall forward it to the Magistrate by whom the case is to be
inquired into or tried.
The above position makes it clear that if there is any error or irregularity in the charge which had its relevance on the case it shall be clear
from the bare perusal thereof that
no finding by Court of competent jurisdiction shall be deemed to be invalid
merely on the ground that no charge was framed or on the ground of any
error in relation to the charge, including any misjoinder of charge, since in the opinion of the Court of appeal confirmation of relative failure of justice
has in fact been occasioned thereby. It is not the case of the respondent that
any mitigating factor existed. Judgment of the High Court is in default and is
set aside. Accused surrender to custody forthwith to serve out the remainder
of sentence.
The appeal is disposed of accordingly.
(ASOK KUMAR GANGULY) New Delhi, April 22, 2009.