EMPEROR Vs. RAMA KARIYAPPA PICHI

JUDGEMENT

(1.) [His Lordship dealt with the case of accused Nos. 1 to 8 and 22 and came to the conclusion that their conviction was correct and should be upheld. The judgment then proceeded:] The convictions of accused Nos. 9 and 10 are mainly based upon their retracted confessions. It has been contended by Mr. Thakor before us that the confession of accused Nos. 9 and 10 were not recorded by the Magistrate in accordance with the requirements of Secs.164 and 364 of the Criminal Procedure Code and of the High Court Criminal Circulars in that behalf, and are, therefore, inadmissible in evidence. In both these confessions the Magistrate has recorded the necessary certificate at the end to the effect that they were voluntarily made; but he has not recorded the questions he put and the answers given, the perusal of which would satisfy the Court that the confessions were voluntarily made, and there was no inducement held out by the police by which the confessions could be said to be prompted. In order to remedy the defect the Magistrate was examined as a Court witness before the Sessions Court. It was contended by Mr. Thakor that the defect in recording the questions and answers amounts to an infraction of the law and is not a mere omission which can be cured under Section 533 of the Criminal Procedure Code. Section 164(3) of the Criminal Procedure Code inter alia pro-vides that no Magistrate shall record a 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 effect that the confession was voluntarily made. Section 364 of the Criminal Procedure Code inter alia provides that whenever an accused person is examined by a Magistrate, the whole of such examination including every question put to him and every answer given by him shall be recorded in full and such record shall be shown or read or interpreted to him and he shall be at liberty to explain or add to his answers. There are certain exceptions to this general rule, but they would not apply here. The High Court has by its Criminal Circulars issued certain instructions for the guidance of the Magistrates recording confessions and statements under Section 164 ofthe Criminal Procedure Code. These are set out in para. 3 of Chap. I at p. 2, of the printed Criminal Circular Orders, 1925. Paragraph 3 (i) requires thatthe Magistrate should invariably question the accused person as to the length of time during which he has been in the custody of the police, and that it is not sufficient to note the date and hour recited in the police papers at which the accused person is said to have been formally arrested.

(2.) Section 533 of the Criminal Procedure Code provides that whenever the Court finds that any of the provisions of either Section 164 or Section 364 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 Section 91 of the Indian Evidence Act such statement shall be admitted if the error has not injured the accused as to his defence on the merits. In Queen-Empress V/s. Visram Babaji (1896) I.L.R. 21 Bom. 495 Strachey J. at p. 501 reviewed the earlier authorities and came to the conclusion that neither the language nor the object of 8, 533 would justify a distinction between an "omission" which would be curable by Section 533 and an "infraction"or"direct violation" which would not be curable by that section. The learned Judge lays down the test that as long as the irregularity does not injure the accused as to his defence on the merits it can be cured under the provisions of Section 533. This ruling was followed by a Divisional Bench of our Court in Queen-Empress V/s. Raghu (1898) I.L.R. 23 Bom. 221 The learned Judges there observe that the true principles which should govern such cases are those which are laid down in Queen- Empress V/s. Viran (1886) I.L.R. 9 Mad, 224 viz., that Section 533 merely gives legal sanction to the maxim omnia prcesumuntur rite case acta. The test laid down is that whenever no attempt has been made to comply with the provisions of the law, Section 5ii3 would not render a confession admissible. Section 533 is intended, according to this ruling, to apply to all cases in which the directions of the law have not been fully complied with, and would apply to omissions to comply with the law as well as to infractions of the law. We are bound by this ruling. To the same effect are the rulings of the Allahabad High Court in Emperor V/s. Deo Dat (1922) I.L.R. 45 All. 166 and of the Patna High Court in Ramai Ho V/s. King-Emperor (1924) I.L.R. 3 Pat. 872

(3.) The evidence of the Magistrate has satisfactorily proved that the confessions made by both accused Nos. 9 and 10 were voluntarily made and that he had as a matter of fact satisfied himself by putting questions and getting answers that the confessions were being voluntarily made by both accused.