EMPEROR Vs. GARIB HARI

JUDGEMENT

(1.) This is a Reference by the Second Additional Sessions Judge of Burdwan under the provisions of Section 307, Cr. P.C. The accused Garib Hari was tried for an offence under Section 304, Indian Penal Code, for having caused the death of one Kiranbala Harini who is said to have been his mistress and to have been in his keeping for a number of years. The prosecution case is that on the day of the alleged occurrence there was a quarrel of some sort between the accused and the deceased and that on account of the provocation which the accused received in the course of the quarrel he struck her with a knife, the result of which was that she died. The Jury brought in a unanimous verdict of not guilty and the learned Judge being of opinion that that verdict should not be accepted but that the accused should be convicted under Section 335, Indian Penal Code, has made this Reference to us.

(2.) The learned Judge in his letter of reference has very clearly and carefully set out the different items of evidence upon which the prosecution relied for the purpose of showing that the accused was guilty of the offence. The first item of evidence relates to the confession which the accused is said to have made on the day shortly after his arrest. The accused was arrested about 4 or 4-30 in the afternoon of the 16 April 1925. He was thereafter taken to the Jorasanko thana and the Police Officer in charge of that thana took him to the residence of an Honorary Presidency Magistrate, Mr. B. N. Mitter, and at his house the confession was recorded. The evidence of the Police Officer is to the effect that at the time when he was so taken the accused was smelling of liquor but that he was not in a drunken state. The confession was not recorded in the form prescribed for recording confessions and it does not contain the questions which were put by the Magistrate to the accused; nor the answers which the accused gave to those questions but the whole confession was put down in a narrative form. The warnings, such as they are said to have been administered to the accused, also do not appear on the record of the confession. The Honorary Magistrate is a Bengali gentleman, and the accused spoke in Bengali and yet the confession was recorded in English. No explanation also appears to have been given as to why instead of waiting till the next day and producing the accused before a Magistrate who was sitting in Court, the accused was produced before the Honorary Magistrate that very night at his residence and the confession was recorded there. Under these circumstances it is necessary to scrutinise the evidence of the Magistrate with some degree of care in order to find out what he exactly did or whether he did really comply with those formalities which have been from time to time laid down for the guidance of Magistrates in the matter of recording confessions. The Magistrate in the course of his evidence stated that he remembered only the gist of the confession, and that the accused did not say for what time he had been in Police custody. The Magistrate also stated that he does not remember what the exact words were that were used by the accused; nor does he profess to remember the exact questions that were put to the accused or the order in which they were put. The only warning that he gave to the accused appears to have been this that he asked him whether the accused was willing to make a voluntary confession and that if he made a confession that might be used against him. He does not appear to have even informed the accused that he was a Magistrate and he certainly did not put to the accused questions in order to find out whether the confession which the accused was about to make was a voluntary one or not. Under these circumstances it is difficult for us to hold that there was such enquiry as was necessary for the Magistrate to make in order to enable us to form an opinion as to whether the confession was voluntary or not. This is the view that I take of the confession apart from the provisions of Section 164, Cr. P.C. But, in my opinion, the learned Magistrate has failed in the present case to record the confession strictly in accordance with the provisions of that section. The accused was arrested in Calcutta in pursuance of a request made by the Police at Burdwan who evidently were holding the investigation with regard to this matter under the provisions of Ch. XIV of the Cr. P.C. The arrest of the accused by the officer of the Calcutta Police and his production by that officer before the Magistrate must be taken to have been an act done in the process of the investigation that was being held; and if that is so, the Magistrate was bound to comply with the provisions of Section 164, Cr. P.C., in the matter of the recording of the confession. Though he may have given the warnings required by the first part of Clause (3) of Section 164, Cr. P. C, he has done nothing which he is bound to do under the latter part of that clause which provides that "no Magistrate shall record any such confession, unless upon questioning the person making it he has reason to believe that it was made voluntarily." It has been urged by the learned Deputy Legal Remembrancer that although there was an investigation which was being held by the Burdwan Police the arrest of the accused and his production before the Magistrate in Calcutta must be considered as something done not in the course of that investigation but apart and quite detached from the investigation that was being so held. I am unable to accept this contention as I think the proper view of the matter is that the officer of the Calcutta Police merely lent his services to the Burdwan Police who were holding the investigation. But assuming for a moment that that was so and that the Police Officer had authority to act in this matter apart from the investigation that was being held by the Police at Burdwan there was no reason whatsoever why the Magistrate who has got to record the confession made by the accused should not comply with those statutory rules which have been embodied in Section 164, Cr. P.C., and why he should not proceed on the lines indicated in that section and in conformity with the Rules and Circular Orders issued by this Court.

(3.) On the whole, we are not satisfied that the record of the confession that is before us is one upon which we can act, nor is the record such as would enable us to say in disagreement with the verdict of the Jury that it was a confession made by the accused person voluntarily and that it should be acted upon.