EMPEROR Vs. TUKARAM KHANDU KOLI

JUDGEMENT

(1.) A preliminary point has been raised in this case that the confession of accused No. 1 Tukaram Khandu, is inadmissible in evidence because the provisions of the Criminal Procedure Code governing the recording of confessions have not been complied with. Three points have been raised by the learned advocate for the appellant, viz., that the memorandum which is necessary to be made under Section 164 of the Criminal P. C. does not show that the accused was warned before his confession was recorded that he was not bound to make a confession. The second point is that the Code requires that the memorandum under 9. 164 should be in the Magistrate's own hand, whereas in the present, case it is a typed form signed by the Magistrate, and the third point taken is that this memorandum is attached not to the confession of the accused in vernacular, but to the English memorandum of the substance of it made by the Magistrate.

(2.) As regards the first point, under Section 164 of the Criminal P. C., before recording a confession a Magistrate is bound, under Sub-section (3), to explain to the person making the confession that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and no Magistrate should record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily, and when he records any confession, he should make a memorandum at the foot of such confession 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. The memorandum in its present form was substituted for the old form by Section 35 of the Criminal P. C. Amendment Act, XVIII of 1923. Before that the memorandum began with the words, "I believe that the confession was voluntarily made." Under the Code it is necessary that the Magistrate before recording the confession should warn the accused that he is not bound to make a confession. The Code does not provide for this warning being recorded otherwise than in the memorandum at the foot of the record. When the Code was amended in 1923, if the Legislature had intended that this warning or explanation should be written out on the form of the confession before the accused began to confess, I cannot see any reason why it should not have stated so. But all that the Code requires is that this memorandum should appear at the foot of the record. Now clearly there would be no object in warning the accused that he was not bound to make a confession if this warning was not given until after the confession had been made. Therefore it is to be presumed that this warning was given before the accused began to confess; otherwise the memorandum signed by the Magistrate does not correspond with the actual facts. The presumption is that judicial and official acts are regularly performed, and as a matter of fact, in one of the cases which have been quoted by the learned advocate for the appellant, the existence of the memorandum provided by Section 164 of the Code has been held to be prima facie evidence that the warning was given at the appropriate time, that is before the confession was recorded. In Partap Singh V/s. The Crown (1925) I.L.R. 6 Lah. 415, it is stated (p. 427) :- If, when a document is tendered in evidence at a trial purporting to be a confession of the accused, it is found to contain the memorandum required by Section 164 (3) above set out, a presumption arises under Section 80 of the Evidence Act that all the necessary formalities purporting to have been performed have in fact been performed, and the document is admissible in evidence without further proof. The memorandum of the confession in English is in the form prescribed by the High Court under the Criminal Circulars, and Sub-section (3) refers to the accused being asked if he is disposed to make a confession of his own free will. He has replied, "Yes". He was given to understand that the evidence may be used against him, and in spite of that he was willing to give the confession. The memorandum provided by Section 164 appears at the foot of the English record. It begins by saying, "I have explained to Tukaram Khandu Gadhavi that he is not bound to make a confession." The requirements of the law are, therefore, complied with, and in the absence of anything to the contrary, I do not see why it should be assumed that no warning was given to the accused before the confession was recorded. The learned advocate for the appellant has referred to a recent case of this Court, Emperor V/s. Housabai , in which a bench of this Court had come to a somewhat different conclusion. The head-note to that case says :- A failure by a Magistrate to convey the caution, required by Section 134(3) of the Criminal Procedure Code, 1898, to a confessing accused, that he is not bound to make a confession and that if he does so it may be used as evidence against him, invalidates the confession and renders it inadmissible in evidence against the accused. Such a failure cannot be cured under Section 533 of the Code.

(3.) In that case, which was somewhat similar to the present case, it is stated at p. 1243 that:- Section 164 (3), however, requires that a Magistrate shall, before recording a confession, explain to the person making it that ho is not bound to make a confession etc. That question was not put to her according to the record, and the Magistrate failed to record the warning, namely, that ho had explained to her that she was not bound to make a confession.