NAZIR AHMAD Vs. KING-EMPEROR

JUDGEMENT

(1.) This is an appeal in forma pauperis by special leave from a judgment of the High Court of Lahore dated 10 October 1935 which affirmed a judgment of the Additional Sessions Judge of Lyallpur dated 16 April 1935 convicting the appellant of dacoity with murder under S.396, I. P. C., and sentencing him to death. The appellant was convicted mainly, if not entirely, on the strength of a confession said to have been made by him to a Magistrate of which evidence was given by the Magistrate but which was not recorded under S. 164, Criminal P. C. It was not contended before their Lordships that the conviction could be supported if the evidence of the confession was inadmissible. Nor was it disputed that if the evidence was inadmissible, then, in the circumstances of this case, by well recognised principles laid down by this Board, it would be proper humbly to advise His Majesty to interfere [see Vaithinatha Pillai V/s. Emperor, (1913) 36 Mad 501, following In re Dillet, (1887) 12 AC 459.] Therefore the sole question for decision is whether such evidence was or was not admissible. The answer ultimately depends upon the meaning and effect of certain sections of the Criminal Procedure Code, 1898. The most material sections are in the following terms: In Part 5. - Information to the police and their powers to investigate : 157.-(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under S. 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognisance of such offence upon a police report. 159. Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code. 162.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made. 164.-(1) Any Presidency Magistrate, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf by the Local Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter, or at any time afterwards before the commencement of the inquiry or trial. (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 S. 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A 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 no Magistrate shall 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 shall make a memorandum at the foot of such record to the following effect:

(2.) 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. (Sd.) A. B., Magistrate. Explanation.-It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case. S. 364 occurs in Part 6, Proceedings in Prosecutions, Ch. 25 of the mode of taking and recording Evidence in Inquiries and Trials.' It reads as follows: 364.- (1) Whenever the accused is examined by any Magistrate, or by any Court other than a High Court, established by Royal Charter . . . the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined; or, if that is not practicable, in the language of the Court or in English: and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound .... as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability. (4) Nothing in this section shall be deemed to apply to the examination of an accused person under S. 263 or in the course of a trial held by a Presidency Magistrate.

(3.) The remaining section to be quoted is S. 533 which is in the following terms : 533.-(1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under S. 164 or S. 364 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 shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Indian Evidence Act, 1872, S. 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision.