(1.) A Division Bench of this Court vide order dated 03.07.2017 had referred three questions for consideration before the Full Bench. The said three questions were :
(2.) Mr. B. Sharma, learned Senior Advocate appearing for the appellant would submit that administering oath to an accused person before recording a confessional statement is fatal and cannot be cured under section 463 Cr.P.C. He would submit that the prohibition is found in Article 20 (3) of the Constitution of India as well as section 164 (5) Cr.P.C. and section 4 (2) of the Oaths Act, 1969. He would rely upon the judgment of the Supreme Court in re: Rabindra Kumar Pal alias Dara Singh v. Republic of India, 2011 2 SCC 490, and submit that non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. He would further rely upon the judgment of the Supreme Court in re: State of Uttar Pradesh v. Singhara Singh & Ors, 1964 AIR(SC) 358 and submit that the rule adopted in Taylor v. Taylor,1875 1 Ch 426 is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed is squarely applicable. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164.
(3.) Mr. J. B. Pradhan, learned Public Prosecutor, appearing for the Appellant would commence his arguments stating that section 164 Cr.P.C. was in three parts. The first part i.e. sub section (1) thereof dealt with empowering certain Magistrates to record any confession or statement. The second part i.e. sub section (2), (3) and (4) thereof are safeguards for recording confessions and therefore mandatory. The provisions of sub section (2), (3) and (4) of section 164 Cr.P.C. would make it amply clear that the guidelines prescribed therein are for the purpose of safeguarding the accused and to ensure that the confession is voluntary and not made on account of any extraneous influence. He would submit that once the Magistrate complies with the above provisions and comes to the satisfaction that the accused is making the confession voluntarily without any inducement, threat or promise the Magistrate proceeds to record the confession. The third part comprising of sub section (5) of section 164 Cr.P.C. which deals with the manner in which a statement (other than a confession) was to be recorded. Mr. J. B. Pradhan, would submit that the provision of sub section (5) of section 164 Cr.P.C. makes it evident that a Magistrate cannot administer oath upon an accused and therefore the recording of a confession on oath is prohibited. However, if there was full compliance of sub section (2), (3) and (4) of section 164 Cr.P.C. by the Magistrate and the Court is assured of the voluntariness of the said statement, the administration of oath to an accused person while recording a confessional statement would be a curable defect under section 463 Cr.P.C. He would rely upon the judgment of the Supreme Court in Mohd. Ajmal, Amir Kasab v. State of Maharashtra, 2012 9 SCC 1 and draw the attention of this Court to paragraph 457 thereof:-
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