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2018 (3) TMI 2022
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....n mind sub section 5 of section 164 Cr.P.C, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 Cr.P.C and thus fatal? (iii). Whether administering oath to an accused while recording the confessional statement of an accused under Section 164 Cr.P.C violates Article 20 (3) of the Constitution of India?'' Rival Contentions: 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 j....
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....hd. Ajmal, Amir Kasab v. State of Maharashtra (2012) 9 SCC 1 and draw the attention of this Court to paragraph 457 thereof:- "457. The object of the criminal law process is to find out the truth and not to shield the accused from the consequences of his wrongdoing. A defence lawyer has to conduct the trial on the basis of the materials lawfully collected in the course of investigation. The test to judge the constitutional and legal acceptability of a confession recorded under Section 164 CrPC is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary. If a doubt is created regarding the voluntariness of the confession, notwithstanding the safeguards stipulated in Section 164 it has to be trashed; but if a confession is established as voluntary it must be taken into account, not only constitutionally and legally but also morally.'' He would submit that the Supreme Court has held that right against self-incrimination under article 20 (3) does not exclude any voluntarily statement made in exercise of free will and vol....
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.... accused which can be done during the proceedings under section 313 Cr.P.C. and if the learned Trial Judge comes to the conclusion that the said confession of the accused was voluntarily without any inducement, threat or promise the learned Trial Judge can always accept and admit the confession in evidence. However, during the trial if the accused retracts or in his examination under Section 313 Cr.P.C submits otherwise then the probative value of such evidence would be little. 7. Mr. J.B. Pradhan would rely upon the Supreme Court judgment in re: State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru (2005) 11 SCC 600 would submit that the confessions are considered highly reliable because no rational person would make admission against his interest prompted by his conscience to tell the truth. He would hasten to add though that a confession of an accused recorded under section 164 Cr.P.C. is not a substantive piece of evidence. He would submit that in spite of oath having been administered if the Court would find substantive material establishing the guilt of the accused then even such a confession could have corroborative value although its probative value would be diminished ....
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....r section 463 Cr.P.C. Relying upon a full Bench decision of the Orissa High Court in re: Shanti v. The State AIR 1978 Orissa 19 (FB) Mr. A. Moulik would submit substantial non compliance of the provision of section 164 Cr.P.C. is not curable. He would further argue that Article 20 (3) of the Constitution of India is a fundamental right and therefore could not be violated by administering oath even if no prejudice is caused to the accused person. He would rely upon the judgment of the Supreme Court in re: A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 in which it was held: "No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void." 10. Mr. A Moulik would submit that the Supreme Court in re: Babubhai Udensing Parmar (supra) had clearly held that section 164 Cr.P.C. prohibits administration of oath and that there should be strict compliance of the provisions of section 164 Cr.P.C. He would respectfully submit that the Supreme Court was not called upon to consider the provision of section 463 Cr.P.C. He would therefore submit that the law laid down by this Court in re: Arjun Rai (supra); by the High Court....
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....with section 8 thereof. Read together, Mr. N. Rai would submit that the Oath's Act, 1969 specifically makes the administration of oath to an accused, unlawful. Appreciation of the Judgments in re: Administration of oath on an accused person:- 13. In the judgment rendered by a Division Bench of the Oudh Judicial Commissioners Court in re: Mahadeo & Anr. v. King Emperor AIR 1924 Oudh 65 : 1923 SCC OnLine Oudh 124; Wazir Hasan, A.J.C. held as under:- "Having regard to the circumstances in which Mangu Lal gave evidence and in the absence of any reliable and independent corroborative evidence as to the material particulars of the story for the prosecution, it would not be safe to accept his statement as to the complicity of the appellants in the act of murdering Ram Lal. 15. There is one matter to which I wish to make a particular reference. Mangu Lal stated in the witness box "When I was in dock and before I had made my plea of guilty my pleader and also the Court had carefully explained to me that I should speak the truth and that I wanted to." There is no note by the Court that the above is untrue. This to my mind is a serious thing. Now Mangu Lal was an a....
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....igh Court in re: Atmaram Namdeo (supra) while examining a conviction under section 302 of the Indian Penal Code would examine the amendments made to the Cr.P.C. by the State to various provisions including section 164 of the old Cr.P.C. whereby the Magistracy in the State had been divided into two distinct categories. The contention of the State on the construction of section 37 of the old Cr.P.C. as amended was that the State Government could authorize a District Magistrate to invest any Magistrate subordinate to him with the powers under section 164 of the old Cr.P.C. amongst others and on the issuance of the notification the said Executive Magistrate subordinate would ipso facto get authority to record the statement under the said section. Repelling the said construction the Division Bench would hold:- "14. In this division of function with regard to the powers enumerated in Part II of the fourth Schedule, we see a clear legislative intent and scheme. The powers under Section 164 are ordinarily required to be exercised by a Magistrate of experience. Even in the original Code, it will be seen that the only Magistrate other than the Magistrate of the first class, who is e....
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....ed and non-observance of which imperils the acceptance of the statements as good evidence or reliable evidence in criminal prosecutions.'' (Emphasis supplied) 17. The Division Bench of the Bombay High Court would also hold in 1969 that administration of oath to an accused would violate the most elementary principle that statements have to be voluntarily made. The Division Bench of the Calcutta High Court would hold that under Section 5 of the Oaths Act there is no authority to administer oath to an accused and that no oath ought to have been administered on such an accused. The Oudh Judicial Commission and the Calcutta High Court would hold so much before the people of India gave themselves the Constitution of India in the year 1951. 18. The Bombay High Court in the year 1969 would hold that the reason why oath is not to be administered to a person coming forward to make a statement in the nature of confession is that there should be no kind of pressure either of oath or of affirmation or of any other kind operating on the mind compelling him to disclose something which ordinarily that person would not disclose or state. The manner in which the confession is to be ....
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....in the last paragraph of the judgment that even assuming that the confessional statement was voluntary, it was still violative of cl. (3) of Article 20 of the Constitution as it was made under compulsion of oath. Cl. (3) of Art. 20 of the Constitution provides that no person would be compelled to be a witness against himself. As held in State of Bombay v. Kathi Kalu (1961 (2) Cri LJ 856) the compulsion contemplated by this clause means duress which in the context means physical objective act and not the state of mind of the person making the statement, and unless duress is exercised against an accused, he cannot be held to have been compelled to be a witness against himself If that be so, I doubt if the mere administration of oath to an accused by a Magistrate while recording his statement under Section 164 of the Criminal P.C. can fall within the purview of compulsion as contemplated by clause (3) of Article 20 of the Constitution, and amount to a compelled testimony.'' (Emphasis supplied) 20. In re: Suram Singh (supra) while Mufti, J. would hold that even if the confessional statement is voluntary, it would still be inadmissible because it was made under compu....
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....ivisional Superintendent, Education who was his superior officer and was, therefore, a person in authority. The Supreme Court would also note that the appellant in his statement under section 342 of the old Cr.P.C. (now section 313 Cr.P.C.) while answering the question put to him regarding the said document has stated that the Assistant Divisional Superintendent, Education and his party had forced him to write the said confession. In such factual circumstances the Supreme Court would observe:- "10. The evidence of PW 10 the officer who had taken the statement of the appellants shows that he had administered an oath to the appellant before taking his statement although he was not empowered to administer any oath. This circumstance by itself would amount to a concealed threat, because if the statement was found to be false the appellant may have entertained a genuine belief that he might be prosecuted." (Emphasis supplied) 22. The Supreme Court in the year 1979 would hold that the circumstance of administration of oath to an accused person by itself would amount to a concealed threat, because if the statement was found to be false the accused may have entertained a gen....
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....ecause Indian Oaths Act, 1873, has been repealed by the Indian Oaths Act, 1969. Section 5 of the Indian Oaths Act, 1969 is not in parimateria with Section 5 of the Indian Oaths Act, 1873. Section 5 of the Indian Oaths Act 1969, has no application in regard to this question. 10. Section 164 (4) Cr. P. C, lays down that such confession shall be recorded in the manner provided in Section 281 of the Code for recording the examination of an accused person and shall be signed by the person making the confession and so on. In view of this provision, it was incumbent on P. W. 1 to record the confessional statement of the accused by following the manner and method laid down in Section 281 Cr. P.C. Section 281 reads as follows: "281. Record of examination of Accused.- (1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole ....
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....w. In fact similar is the object in regard to the manner and method of recording the statements of witnesses during the investigation by the police, under Section 161 Cr. P.C. There, it is provided that the signatures of the persons are not expected to be taken below their statements so recorded. If this aspect viz., recording of examination of the accused is gone deeper into by looking into the provisions of the Code of Criminal Procedure, it will be clear that there are three stages at which examination of the accused is provided. First stage is Section 232 Cr. P.C. That would be during a sessions trial when the prosecution closes its case. The next is Section 239 of the Code. That is the stage at which in a trial of warrant case on police report a Magistrate has to decide whether he should frame charge or pass an order of discharge. The third is Section 313 of the Code which is a general provision because it states that an accused may be examined at any stage in any enquiry or trial, to enable him to explain personally any circumstances appearing in evidence against him, Section 313 (2) Cr. P. C. specifically lays down that no oath shall be administered to the accused when he is....
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....accused at any stage of investigation, inquiry or trial. Exception to this general rule is to be made applicable under the provision of Section 315 of the Code of Criminal Procedure when the accused offers himself as a defence witness. At such stage he is characterized not as an accused but as a competent witness. Administering oath is barred in the recording of confessional statement by the clear provision of Sub-Section (5) of Section 164 of the Criminal Procedure Code which runs as:- "Any statement (other than a confession) made under sob-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. 6. Confession should be recorded in the manner provided for recording statement of an accused/suspect and not in the manner provided for recording evidence. If it is recorded in the manner provided for recording evidence by administering oath, then it loses its character in so far the maker is concerned. The fact of administering oath at the record....
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.... reflects lack of legal equipment and merit of the trial Judge. Learned Sessions Judge committed illegality in convicting the accused appellant on the basis of an illegal and inadmissible confession. xxxxxx xxxxxx xxxxxx 11. In a criminal trial, an accused can be examined by court at different stages under the provisions of Cr. P.C. and his statement can be recorded, such as, under section 329 before the charge, section 240(2) and 251 at the framing of charge and stating particulars of the offence respectively, and sections 227/228 at the hearing and framing of charges and finally section 313 after close of the evidence. The accused is also examined and his statement can be recorded under section 248(2) and section 235(2) at the trial on the question of sentence. The manner of examination and recording statement of an accused by courts have also been prescribed under section 282 Cr. P.C. At no stage, administering oath is required to be made to an accused. The accused is at liberty to make statement or complain before the Court at any stage of the trial and recording such statement need not require administering oath." (Emphasis supplied) 26. J. Sangma....
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....stitution of India read with sub-section (5) of Section 164 Cr.P.C. and further administration of oath for recording confession will only mean that recording of evidence of the maker for use in subsequent stage against the maker which is prohibited in law and inadmissible in evidence. 28. In re: Arjun Rai (supra) a Division Bench of this Court would examine a confession statement recorded on oath vis-à-vis section 164 (5) and 281 Cr.P.C., Article 20(3) of the Constitution of India as well as section 4(2) of the Oaths Act, 1969 and hold:- "12. It is evident from the confessional statement (Exhibit P8) that the learned Magistrate administered oath to the appellant before his statement was recorded. The question as to what is the effect of administering oath to an accused before his confessional statement is recorded came up for consideration before a Division Bench of the Lahore High Court in Karam Ilahi v. Emperor (AIR 1947 Lah 92) : (1946 Cri LJ (47) 772). Considering S. 164 of the old Code and S. 5 of the Indian Oaths Act, 1873 the Bench held that a person becomes an accused soon after his arrest by the police for an offence which forms the subject-matter of inv....
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....ainst him, placing him in the status of a witness at the stage of investigation in violation of Art. 20(3) of the Constitution of India read with subsection (5) of S. 164 of the Code of Criminal Procedure. Administering oath for recording confession will only mean the recording of evidence of the maker for use in subsequent stage against the maker and which is prohibited in law. Such confession is bad in law, and is inadmissible in evidence." 15. May it be stated that sub-section (1) of S. 164, Cr. P.C. empowers a Metropolitan, Magistrate or a Judicial Magistrate, whether or not he has Jurisdiction in the case, to record any confession or statement made to him in the course of an investigation or at any time afterwards before the commencement of any inquiry or trial. Sub-section (2) requires that before recording any confessional statement the Magistrate to explain to the person making confession that he is not bound to make any confession and that, if he does so it may be used against him. The said provision further mandates the Magistrate not to record any such confession unless, he is satisfied that it is being made voluntarily. Subsection (4) states that such confessio....
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....t the confession was found not only to be true but having been voluntarily being made, opined that the same could be relied upon. At the same time, the High Court proceeded on the basis that the accused was free to make retraction of his confession when his statement under section 313 Cr.P.C. was recorded. The High Court further noticed that oath should not have been administered to the accused but opined that the same is not of much significance but proceeded on the basis that the decisions of the Supreme Court have often said that the Court cannot solely rely on the retracted confession and make it a foundation for convicting the accused. But, while purporting to keep the confessional statement of the appellant aside, examined the purported circumstances used against him. The Supreme Court would observe that nothing had been brought on record to show the existence of any circumstance which would lead to the conclusion that the appellant alone is guilty of commission of the offence. The Supreme Court would also note that it was not disputed that apart from the purported judicial confession there is no other material which can be said to be sufficient to establish the guilt of the ....
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....th. But, it does not envisage compliance with the statutory provisions in a routine or mechanical manner. 16. The court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The appellant was produced from judicial custody but he had been in police custody for a period of 16 days. The learned Magistrate should have taken note of the said fact. It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance with spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance with the provisions of Section 164 of the Code of Criminal Procedure which would mean compliance with the statutory provisions in letter and spirit. We do not appreciate the manner in which the confession was recorded. He was produced at 11.15 a.m. The first confession was recorded in 15 minutes' time which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free ....
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....atement of an accused on oath is prohibited. It is also clear that one of the reasons why the Supreme Court set-aside the judgment of conviction was the act of the Magistrate administering oath on the accused which was held to be prohibited. 33. In contra, the Division Bench of the Madhya Pradesh High Court in re: Madhu (supra) has respectfully disagreed with the view expressed by the Karnataka High Court in re: Philips (supra) and by the Jammu and Kashmir High Court in re: State v. Suram Singh (supra) and held:- "20. It is apparent from the aforesaid exposition of law in the aforesaid decisions that administering of oath to an accused is prohibited. However, at the same time the Apex Court has not laid down in Babubhai Udesinh Parmar v. State of Gujarat (supra) and Brijbasi Lal Shrivastava v. State of M.P. (supra) that if oath is administered, statement will be rendered wholly inadmissible. Considering the provisions of section 463 of Criminal Procedure Code, it is apparent that if any Court before which a confession or other statement is made evidence against an accused person is recorded, or purporting to be recorded under section 164 or section 281, finds that any o....
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.... section 164 (5) and 281 Cr.P.C. as well as Article 20 (3) of the Constitution of India and hold:- "15. The Magistrate has given a certificate below the statement of the accused as required under Section 164 Cr.P.C. Learned Amicus Curiae has, however, contended that the record does not indicate the basis on which the learned Magistrate had reason to believe that the statement was given voluntarily and there was no pressure on the accused from any side. Before recording confession of an accused under Section 164 Cr.P.C. it is the duty of the Magistrate to satisfy himself that the accused was giving statement voluntarily and for this he has to put certain questions to the accused and from the answers given to the questions, the Magistrate would come to the conclusion as to whether the confession which the accused is going to make would be voluntary or under some duress or inducement. The questioning of the accused before recording confession as to whether it was voluntary is a matter of substance and not a mere formality. A Magistrate should ascertain at the beginning of the statement and not at the end whether the confession made is voluntary. In the instant case before us,....
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....erious reservations about the manner in which the confession was recorded. The High Court would hold that administering oath to an accused was illegal and amount to compulsion which is unconstitutional as it would amount to testimonial compulsion. Answers to the three questions referred by the Division Bench vide order 03.07.2017 38. For clarity and to avoid prolixity we would address the third question referred by the Division Bench of this Court on 03.07.2017 first i.e.:- (iii). Whether administering oath to an accused while recording the confessional statement of an accused under Section 164 Cr.P.C. violates Article 20 (3) of the Constitution of India? 39. Section 17 of the Indian Evidence Act, 1872 defines "admission" as: "17. Admission defined.- An admission is a statement, oral or documentary or contained in electronic for, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned." 40. Section 24 of Indian Evidence Act, 1872 reads thus: "24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding. A....
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....a police officer is admissible unless made in the immediate presence of a Magistrate. (Emphasis supplied) 43. In re: Bharat v. State of U.P. (1971) 3 SCC 950 the Supreme Court would hold:- "7. The law as to confessions is perhaps too widely stated. Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker........" (Emphasis supplied) 44. In re: Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302, the Supreme Court would hold:- "14. To attract the prohibition enacted in Section 24 of the Evidence Act, these facts must be established: "(i) that the statement in question is a confession....
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....ther and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression "appears" connotes that the court need not go to the extent of holding that the threat, etc. has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a police officer. Confessions leading to discovery of a fact which is dealt with under Section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of....
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...., must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognising the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a confession made to the police officer. 30. Section 164 CrPC is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police." (Emphasis supplied) 47. "Confessions" are one species of the genus "admission" consisting of a direct acknowledgement of guilt by an accused in a criminal case. "Confessions" are thus "admissions" but all admissions are not confessions. A confession can be acted upon if the Court is satisfied that it is voluntary and true. Judgment of conviction can also be based on confession if it is found to be truthful, deliberate and voluntary and if clearly prov....
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.... conscience to speak the truth and confess the crime. In deciding whether a particular confession attracts the frown of Section 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or promise proceeding from a person in authority would operate in his mind. 48. A confession is a direct admission or acknowledgment of guilt by the person committing the crime. A possible inducement, threat or promise in reference to an alleged confession leads to a presumption that the confession may become irrelevant. A confession made by accused person become irrelevant in criminal proceedings, if the making the confession appears to the Court to have been caused by any inducement, threat or promise. The inducement, threat or promise is directly relatable to a person in authority. If the Court would come to an opinion that the confession is a result of inducement, threat or promise which in the opinion of the Court would give the accused reasonable ground for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him then such confes....
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....[ecclesiastical] causes according to the ecclesiastical law [, not according to the law of the hundred, and not in the hundred courts]; whence sprang up a separate system and a double judicature. By a century later, the papal power and the regal power were in hot conflict over the delimitation of their jurisdictions; in the great Constitution of Clarendon, in 1164, Henry II temporarily gained the advantage. By another century, Stephen and John had lost ground; and under Henry III the influence of the leaders of the church, foreign born and foreign educated, was in the ascendant. When Henry married his French wife, in 1236, there came over four uncles with her, one of whom, by name Boniface, was placed in the see of Canterbury as archbishop (or perhaps archdeacon). In the same year, 1236 (Matthew Paris said 1237), there came over also a Cardinal Otho. These two men were active in developing the local church law of England. First to be noted is a constitution of Otho, promulgated at a Pan-Anglican council in London, 1236: "Jusjurandum calumniae in causis ecclesiasticis et civilibus de veritate dicenda in spiritualibus, quo utveritas facilius aperiatur, et causae celeries terminentur,....
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....ed. Under Mary, for a moment, in 1554, the statute of Henry was repealed; but Elizabeth I, in 1558, took care promptly to restore it. Thenceforward the struggle of jurisdiction is against Elizabeth's own High Commission Court, and not against a foreign and papal power. (b) In the other important respect, namely, how the church courts should proceed, there is, as yet in the 1200s and 1300s, apparently no interference or hostile feeling at all in relation to the methods that here concern us. It does not appear that the decrees of Otho and Boniface above quoted, authorizing certain oaths to be employed, met with anymore opposition than other acts done in assertion of the church's jurisdiction. The oath was plainly permitted, by the statute "De Articulis Cleri," in causes matrimonial and testamentary; there was no objection to it as such. How could there be, in a community where the compurgation system was still in full force in the popular and the royal courts, and men might be forced to clear themselves by their oaths with oath helpers - where they even struggled for the privilege of it, for centuries afterward, against the innovation of jury trial? The writs of proh....
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..... This was an epochal difference of method. Indeed, the radical part played, for the progress of English procedure, by the new jury trial in the 1200s and 1300s, was paralleled, in a near degree, not only for ecclesiastical procedure but also for the secular criminal procedure of the Continent, by this inquisitional oath of the 1200s. There were, to be sure, as time went on, several varieties of form to the oath. The chief forms were the simple "juramentum de veritate dicenda, "used in Boniface's English Constitution of 1272 (quoted supra [at note 7]), and the broader "jusjurandum calumniate de veritate dicenda", used in Otho's English constitution of 1236 (quoted supra [at note 6]; but their unity consisted in the subjection of the accused to a rational specific interrogation for the purpose of informing the judge. (ii) Yet there was a distinction of real consequence (upon which everything came later to turn), regarding the different preliminary conditions upon which a party could be put to this or any other oath. There must be some sort of a presentment, to put any person to answer. But must that come from accusing witnesses or private prosecutors or the....
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....eeding led to the matter being argued, in English courts and in popular discussion, as if this oath were either wholly lawful or wholly unlawful, though, in truth, by the theory of the cannon law, it might be either, according to the circumstances of presentment. (c) But (to take up again the story of Otho's and Boniface's decrees) all these distinctions, it must be clearly understood, did not trouble the lay powers in their controversy of earlier days with the church on English soil. At the time of Edward's statute "De Articulis Cleri," in the early 1300s, the royal powers is not at all concerned, in this respect, with the method of ecclesiastical procedure, but only with the limits of that jurisdiction. Otho's and Boniface's constitutions of the 1200s were issued under a new and improved procedure in the church; if the king's lawyers had thought about it at all, they would probably have welcomed the better methods, for they certainly were dissatisfied with the church's old-fashioned compurgation methods. But the jurisdictional controversy was the vital one, as the "Articuli Cleri," show in every paragraph. Wherever the king and his co....
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....jurisdiction of the ordinary church courts; it was confined, in its control of laymen, to causes "matrimonial and testamentary"; and it was constantly prohibited from holding them to answer in other classes of cases. So also the Court of High Commission in Causes Ecclesiastical, which Elizabeth, as head of the church, now constituted, in 1558, as an extraordinary instrument for carrying out her church policy, worked under similar limitations, though it constantly strove to exceed them, and though it perhaps had jurisdiction over heresy. So, too, that offshoot of the Privy Council, known as the Court of the Star Chamber (first sanctioned by statute in 1487, but not beginning until Elizabeth's time to exercise actively its great and for some time useful powers), had by its charter so broad jurisdiction that little dispute could be made on that score. (b) Thus, the emphasis of controversy now shifted. It had in the 1300s concerned jurisdiction; it now concerned methods. The objection portended in 1533, in the statute of 25 Hen. VIII, c. 14 (quoted supra), was now to be the vital one. The Court of High Commission of course followed ecclesiastical rules; the Court of Star C....
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....heologian, and would be prone to favor so useful an engine against heretics as the proceeding "ex officio". In the first scenes of his career, he appears plainly vouching for it. So, too when Bancroft succeeds Whitgift as Archbishop, bringing a like zealotry to the office, the common law judges seem to have been still complaisant. But in 1606 Sir Edward Coke comes to be Chief Justice of the Common Pleas, and a change begins gradually. Coke had been counsel for Collier in 1589, and had perhaps thus acquired his convictions. It is well known that he set himself, as judge, against the ecclesiastical courts' pretensions in general. At first, however, he avoided a direct issue on the "ex officio" oath. His first case in 1609, he decided on other points. His next, in 1615, was allowed to drag on for a year or more, with repeated adjournments and other expedients intended to induce either the accused or the Court of High Commission to yield a point and avoid the direct issue. The plain opinion of Coke, and apparently, the final decision of the court, was that the oath was improperly put by the ecclesiastical court; yet the objectionable thing seemed to be not that the accused....
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....drawing to an end; and the trial which seems to have precipitated the crisis came in 1637,- a case full of instruction for our present history. John Lilburn, an obstreperous and forward opponent of the Stuarts (popularly known as "Freeborn John"), constituted somewhere between a patriot and a demogogue, had the obstinacy to force the issue. A decade later, he came into a similar collision with the Parliament's government, but he makes his entrance as a victim of the King's Star Chamber: "Lilburn's Trial, 3 How. St. Tr. 1315 (1637-45) [the following is a summary prepared by Dean Wigmore of the report]: John Lilburn was committed to prison by the Council of the Star Chamber, including the Chief Justice of the King's Bench, on a charge of printing or importing certain heretical and seditious books; on examination, while under arrest, by the Attorney General, having denied these charges, he was further asked as to other like charges, but refused, saying: "I am not willing to answer you to any more of these questions, because I see you to about by this examination to ensnare me; for seeing the things for which I am imprisoned cannot be proved against me, you wil....
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....1, 1648, he was finally granted GBP 3000 in reparation. Lilburn's case, together with those of Prynne and Leighton (whose grievances were of another sort), were sufficiently notorious to focus the attention of London and the whole country. The Long Parliament (after eleven years of no Parliament) met on Nov. 3, 1640. Lilburn was on the spot that day with his petition for redress. In March 1641, a bill was introduced to abolish the Court of Star Chamber, as well as (then or shortly after) a bill to abolish the Court of High Commission for Ecclesiastical Causes. These were both passed July 2-5 of the same year, and in the latter statute was inserted a clause which forever forbade, for any ecclesiastical court, the administration ex officio of any oath requiring answer as to matters penal. This clause was in substance reenacted as soon as the Restoration of the Stuarts was effected. But was the oath hereby totally abolished in ecclesiastical courts - that is, was it the "ex officio" proceeding only that was abolished, and could a man still be put to answer in a penal matter, in a cause lying within the court's jurisdiction and begun by proper canonical presen....
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....roved as a trial so much more effective that the defendant's oath in wager of law became, indeed, rather a privilege than a burden. In jury trial, to be sure, the oath was not administered to the defendant, because it would, in those days, still be regarded as a decisive thing, and as a method of summary self-exoneration which would be entirely too facile; it was the jurors' oaths that were to "try" him, not his own; and so, in jury trial proper, either in civil or in criminal cases, the oath of the party does not appear. But wherever, in other proceedings, it was thought appropriate to have the defendant's oath, there was no hesitation in requiring it. All through the 1500s the stature book records the sanction of oaths to accused persons. The Star Chamber statute of 1487 (3 Hen.VII, c. I) had expressly sanctioned the examination of the accused on oath at the trial, because "little or nothing may be found by inquiry" of the ordinary sort. The statute of Hen. VIII, in 1533, authorized the common law officers to turn over indicted heretics for examination by the ordinaries upon oath. Wherever a party is committed to jail by the judges for fraud or other misconduct done i....
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....uisitorially, he denies his liability to answer; but, tried on indictment before a common law jury and the chief common law judges, he is questioned and urged, he answers or refuses to answer, as it suits him, but says never a word of the illegality of such questions or an immunity from answer. And such indeed, beyond a reasonable doubt, was the common law, as well as the common practice, of the time. It is true that precedents apparently to the contrary have been alleged to exist - by Coke, for example, who invokes two common law cases to support his ambiguous and shifting arguments. But neither these, nor any others hinted at, indicate in any way the existence of any common law rule. Even Coke himself, whose writings have since served as the chief source of information on this subject, does not actually go so far as to apply his arguments to any effect but the limitation of the ecclesiastical courts' proceedings. He is willing to stop them from requiring answers "which may be an evidence against him at the common law upon the penal statute"; but he says nothing about a common law illegality; indeed, this argument of his seems rather to assume the contrary. He freely ....
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.... been kept within bounds; but here were as yet no bounds in common law proceedings. With 1620 begin indications; that some impression was being transferred into that department. Nevertheless, in the parliamentary remonstrances to Charles I, and the discussion over ship money and forced loans and the Petition of Right, in the Parliament which ended in 1629, there is nothing about such a privilege". (3) [The recognition of the privilege in the middle 1600s.] Finally, however, in 1637-41, comes Lilburn's notorious agitation; and in 1641, with a rush, the Courts of Star Chamber and of High Commission are abolished, and the "ex officio" oath to answer criminal charges is swept away with them. With all this stir and emotion, a decided effect is produced and is immediately communicated, naturally enough, to the common law courts. Up to the last moment, Lilburn had never claimed the right to refuse absolutely to answer an incriminating question; he had merely claimed a proper proceeding of presentment or accusation. But now this once vital distinction comes to be ignored. It begins to be claimed, flatly, that no man is bound to incriminate himself on any charge (no matter how ....
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.... appears by no means to have been regarded in England as the constitutional landmark that the later American legislation has made it. In all the parliamentary remonstrances and petitions and declaration that preceded the expulsion of the Stuarts, it does not anywhere appear. Even by 1689, when the courts had for a decade ceased to question it, and at the English Revolution the fundamental victories of the past two generations' struggle were ratified by William in the Bill of Rights, this doctrine is totally lacking. Whatever it was worth to the American constitution-makers of 1789, it was not worth mentioning to the English constitution-menders of 1689. (4) [The appearance of the privilege in the American Bill of Rights.] How then did it come to make its appearance in the constitutional discussions and the Bill of Rights to 1787-89? The novelty and recentness of it all in common law tradition is apparent not only in the very gradual progress of the recognition in criminal trials after 1641 but also in the fact that it remained an unknown doctrine for that whole generation in the colony of Massachusetts - a colony not only familiar enough with common legal proc....
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.... seven [765] American States before 1789; namely, Virginia (June 1776), Pennsylvania (Sep. 1776), Maryland (Nov, 1776), North Carolina (Dec. 1776) Vermont (July 1777), Massachusetts (Mar. 1780), and New Hampshire (1784). French editions of these American constitutions were published in Paris as fast as they came from the separate State conventions. [Franklin writes (May 1777) "They (the French) read the translations of our separate colony constitutions with rapture,"] The demand for them became so great that Franklin was induced to get out an official edition of all the American constitutions in 1783. Sir Samuel Romilly, upon visiting the American Envoy in Paris, while these constitutions were being distributed by the thousands, expressed surprise that they were not suppressed by the government, and observed that they "certainly produced a very great sensation at Paris, the effects of which were probably felt many years afterwards." In fact, the greater part of those who were demanding a Declaration of Rights in 1789 had "imbibed their principles in America." [La Fayette heard Gen. Greene extend the privilege to Major Andre in 1780.] Nowhere was this American influence tes....
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....he failure to do so would attract punishments that often involved physical torture. It was the resistance to this practice of compelling the accused to speak which led to demands for a "right to silence". 93. In an academic commentary, Leonard Levy (1969) had pointed out that the doctrinal origins of the right against self-incrimination could be traced back to the Latin maxim nemo tenetur seipsum prodere (i.e. no one is bound to accuse himself) and the evolution of the concept of "due process of law" enumerated in the Magna Carta. [Refer Leonard Levy, "The Right against Self-Incrimination: History and Judicial History" [84(1) Political Science Quarterly 1-29 (March 1969)].] 94. The use of the ex officio oath by the ecclesiastical courts in medieval England had come under criticism from time to time, and the most prominent cause for discontentment came with its use in the Star Chamber and the High Commissions. Most scholarship has focussed on the sedition trial of John Lilburne (a vocal critic of Charles I, the then monarch) in 1637, when he refused to answer questions put to him on the ground that he had not been informed of the contents of the written complaint a....
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.... would face a high risk of conviction if he/she did not respond to the charges by answering the material questions posed by the Judge and the prosecutor. In presenting his/her own defence during the trial, there was a strong likelihood that the contents of such testimony could strengthen the case of the prosecution and lead to conviction. 98. With the passage of time, the right of a criminal defendant to be represented by a lawyer eventually emerged in the common law tradition. A watershed in this regard was the Treason Act of 1695 (c. 3) which provided for a "right to counsel" as well as "compulsory process" in cases involving offences such as treason. Gradually, the right to be defended by a counsel was extended to more offences, but the role of the counsel was limited in the early years. For instance the defence lawyers could only help their clients with questions of law and could not make submissions related to the facts. 99. The practice of requiring the accused persons to narrate or contest the facts on their own corresponds to a prominent feature of an inquisitorial system i.e. the testimony of the accused is viewed as the "best evidence" that can be gather....
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....gh a long period of progressive revulsion against the inquisitorial methods adopted and the barbarous sentences imposed by the Ecclesiastical Court and ultimately resulting in the abolition of the Court of Star Chamber after the final revolt by John Lilburn (3 State Trials 1315) resulting in the firm recognition of the principle that the accused should not be put on oath and that no evidence should be taken from him. The Lilburn trial dates back to the year 1637 and the abolition of the Court of the Star Chamber in the year 1641. 53. Wigmore on Evidence, (Tillers revision, 1983) Volume VIII (S. 2263 at page 362-363 states:- "Form of Disclosure Protected 2263. General Principle. In the interpretation of the principle, nothing turns upon the variations of wording in the constitutional clauses; this much is now conceded (2252 supra). It is therefore immaterial that the witness is protected by one constitution from "testifying," or by another from "furnishing evidence," or by another from "giving evidence," or by still another from "being a witness." These various phrasings have a common conception, in respect to the form of the protected disclosure. What is that c....
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....nd private thoughts and beliefs of the individual - and therefore the fundamental sentiments supporting the privilege - are involved. In other words, it is not merely any and every compulsion that is the kernel of the privilege, in history and in the constitutional definitions, but testimonial compulsion. The latter idea is as essential as the former." (Emphasis supplied) 54. The doctrinal origins of the right against self-incrimination is traced back to the latin maxim "nemo tenetur seipsum prodere" (i.e. no one is bound to accused himself) and the evolution of the concept of "due process of law" enumerated in the Magna Carta. 55. The Supreme Court in re: Selvi (supra) would underline the rationale of the right against self-incrimination and hold:- "Underlying rationale of the right against self-incrimination 102. As mentioned earlier "the right against self-incrimination" is now viewed as an essential safeguard in criminal procedure. Its underlying rationale broadly corresponds with two objectives-firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily. I....
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....ng, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said "to be a witness" to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma case [(1954) SCR 1077] that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may ....
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....not change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness". 12. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based another pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of m....
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....ody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion". (3) "To be a witness" is not equivalent to "furnishing evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression "to be a witness". (5) "To be a witness" means imparting knowledge in respect o....
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....lative of Article 20(3). 58. A police officer is clearly a person in authority. Insistence on answering is a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Article 20(3). Legal penalty may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion." (Emphasis supplied) 58. In re: Selvi (supra) the Supreme Court would have occasion to examine the question whether the involuntary administration of Narcoanalysis, polygraph test (lie-detector test) and BEAP (Brain Electrical Activation Profile) test violates the "right against self- incrimination" enumerated in Article 20 (3) of the Constitution. While doing so the Supreme Court would hold:- "88. In the Indian context, Article 20(3) should be construed with due regard for the interrelationship between rights, since this approach was recognised in Maneka Gandhi case [Maneka Gandhi v. Union o....
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....his Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible "conveyance of personal knowledge that is relevant to the facts in issue". The results obtained from each of the impugned tests bear a "testimonial" character and they cannot be categorised as material evidence." (Emphasis supplied) 61. In re: Selvi (supra) the Supreme Court would hold that the compulsory administration of certain scientific techniques, namely narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) bare a "testimonial character" and thereby triggers the protection of Article 20(3) of the Constitution. 62. ....
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....le 20(3) of the Constitution of India embodies the right against self-incrimination. It is a fundamental right. The privilege against self-incrimination is said to be a fundamental canon of common-law jurisprudence and this principle characteristics features are:- (i) that the accused is presumed to be innocent; (ii) that it is for the prosecution to establish his guilt, and (iii) that the accused need not make any statement against his will. Article 20(3) of the Constitution of India mandates a fundamental guarantee that no person accused of any offence shall be compelled to be a witness against himself. The prohibitive umbrella of Article 20(3) protects the accused back to the stage of police interrogation. A testimony by an accused person may be said to have been self-incriminatory when the compulsion comes within the prohibition of the constitutional provision and it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. As held by the Supreme Court the right against self-incrimination is now viewed as an essential safeguard in criminal procedure and its underlying rationale broadly corresponds with....
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....ial ingredient of Article 20 (3) of the Constitution of India and covers a confession not made voluntarily. To compel is to cause or bring about by force, threats or overwhelming pressure. As held by the Supreme Court in re: Kathi Kalu Oghad (supra) compulsion in the context of Article 20(3) of the Constitution of India means what in law is called "duress". As held by the Supreme Court in re: Nandini Satpathi (supra) "We are disposed to read "compelled testimony" as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3)". As held by the Supreme Court in re: Selvi (supra) "When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the "rule against involuntary co....
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....administering oath to an accused violates Article 20(3) of the Constitution of India and accordingly answer the first question in the affirmative. 70. We shall now attempt to answer the first two questions referred by the Division bench of this Court vide order dated 03.07.2017. As the first two questions referred are inter-related we shall seek to answer both together. The first two question seeking judicial determination are:- (i). Whether the confessional statement recorded under the provisions of Section 164 Cr.P.C on oath, is fatal or could it be still protected by the provisions of Section 463 Cr.P.C and if so protected, then whether the judgment of the Division Bench of this Court reported in re: Arjun Rai (supra) is good law? (ii) Whether the mere administering of oath to an accused while recording his confessional statement keeping in mind sub-section (5) of section 164 Cr.P.C, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 Cr.P.C and thus fatal? 71. Section 164 Cr.P.C. reads thus: "164. Recording of confessions and statements.(....
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....atement is so recorded. [5A)(a) In cases punishable under section 354, section 354A, section 354B, section 354C, Section 354D, sub-section (1) or sub-section (2) of section 376, section 376B, section 376C, section 376D, section 376E, or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed; (b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-c....
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....rate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing madman, or for any other reason the magistrate thought it to be incredible or useless for the purposes of justice. Whether a magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognized rule-namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts-Taylor v. Taylor -and although the magistrate acting under this group of sections is not acting as a Court yet he is a judicial officer, and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to s. 164. On the matter of construction ss. 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. Upon the construction adopted by th....
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....ion as magistrates, from any obligation to make records under s. 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses, and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. Their Lordships are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case. The evidence of Mr. Vasisht should therefore, in the opinion of their Lordships, have been rejected by the Court. The admission in evidence of Mr. Vasisht's memorandum, such as it was, is a minor point. It does not appear to have been used by him merely to refresh his memory, but to have been put in as a document. This is of no great importance, because if the oral evidence was allowed perhaps no more mischief was done by the admission of the memorandum; but it has always to be re....
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....must take care to see that the requirements of sub-section (3) of Section 164 are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under sub-section (3) of Section 164 should not be allowed to become a matter of a mere mechanical enquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. Incidentally, we may invite the attention of the High Court of Punjab to the fact that the circulars issued by the High Court of Punjab in the matter of the procedure to be followed, and questions to be put to the accused, by Magistrates recording confessions under Section 164 may be revised and suitable amendments and additions side in the said circulars in the light of similar circulars issued by the High Courts of Uttar Pradesh, Bombay and Madras. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any induc....
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....onscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) Usually the court requires some corroboration from the confessional statement before convicting the accused person on such a statement.'' (Emphasis supplied) 78. In re: Shivappa v. State of Karnataka (1995) 2 SCC 76 the Supreme Court would observe:- "6. .............it is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same............." "7. ..........
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....e confession was uninfluenced by any external factors, that he was fully conscious of what he was saying, that he was also fully aware that based on his statement there is every scope for suffering the conviction which may result in the imposition of extreme punishment of life imprisonment and even capital punishment of death, that prior to the time of the making of the confession he was in a free state of mind and was not in the midst of any persons who would have influenced his mind in any manner for making the confession, that the statement was made in the presence of the Judicial Magistrate and none else, that while making the confession there was no other person present other than the accused and the Magistrate concerned and that if he expressed his desire not to make the confession after appearing before the Magistrate, the Magistrate should ensure that he is not entrusted to police custody. All the above minute factors were required to be kept in mind while recording a confession made under Section 164 CrPC in order to ensure that the confession was recorded at the free will of the accused and was not influenced by any other factor. Therefore, while considering a confession ....
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.... the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, 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. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was tak....
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.... writing in Urdu which meant that the requirement of Section 364 (3) of the old Cr.P.C. (now Section 281 Cr.P.C.) had not been complied with. In such factual narrative the Supreme Court would seek to answer: "12. If the Magistrate under whose supervision the confessions were recorded has not complied with the provisions of S. 364 (3) of the Code of Criminal Procedure, can it be said that the said confessions are not proved or that the making of the confessions and their recording is vitiated so as to make them inadmissible. .......". To answer the said question the Supreme Court would examine Section 164, Section 364 and Section 533 (now Section 463) of the Code of Criminal Procedure and hold:- "12. If the Magistrate under whose supervision the confessions were recorded has not complied with the provisions of Section 364(3) of the Code of Criminal Procedure, can it be said that the said confessions are not proved or that the making of the confessions and their recording is vitiated so as to make them inadmissible. The decision of this question would naturally take us to three sections of the Code of Criminal Procedure. Section 164 of the Code confers power on the Magistrat....
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....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 annexed to the record. It also says that if the Magistrate is unable to make a memorandum as required, he shall record the reason of such inability. It would thus be clear that if a confession is recorded not by the Magistrate himself as required by Section 364(1) it is necessary that the Magistrate should make a memorandum as the examination proceeds and the memorandum should be signed by him. It is conceded that in the present case, the confessions were not recorded as required by Section 364(1) and yet the safeguard prescribed by Section 364 (3) has not been complied with. Mr. Rana contends that the failure to comply with the requirements of Section 364(3) makes the confessions inadmissible. 14. In dealing with this question we must consider the provisions of Section 533 of the Code. It is on the provisions of this section that Mr. Khanna, for the respondent, relies. Section 533(1) lays down that if any court before which a confession recorded or purporting to be recorded under Section 164 or....
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....tence of death imposed on Babu Singh. In our opinion, if the confessions are left out of consideration the charge of murder cannot be sustained. The result is the conviction of both the appellants for the offence under Section 302 read with Section 34 is set aside and consequently the sentence imposed on them for that offence is also set aside." (Emphasis supplied) 86. In re: Babu Singh (supra) the Supreme Court would find some force in the contention of the learned Counsel for the State of Punjab that in view of Section 533 of the old Cr.P.C. unless it is shown that prejudice had been caused to the accused the irregularity committed by the Magistrate in not complying with Section 364 (3) of the old Cr.P.C. will not vitiate the confessions nor will it make them inadmissible based on the premise that the Magistrate had in fact given evidence in the Trial Court and the evidence of the Magistrate showed that statement had been duly recorded. Section 364 (3) of the old Cr.P.C. provided that 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 lan....
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....e prosecution, thereupon called Mr. Dixit to prove these confessions, the record being used only to refresh his memory under Section 159 of the Evidence Act. It is the admissibility of this oral evidence that is in question. 6. The Judicial Committee in Nazir Ahmed v. King-Emperor [LR 63 IA 372] held that when a Magistrate of the First Class records a confession under Section 164 but does not follow the procedure laid down in that section, oral evidence of the confession is inadmissible. Nazir Ahmed case [LR 63 IA 372] naturally figured largely in the arguments presented to this court and the courts below. The learned trial Judge following Ashrafi v. State [(1960) 2 ILR 488] to which we will have to refer later, held that Nazir Ahmed case [LR 63 IA 372] had no application where, as in the present case, a Magistrate not authorised to do so purports to record a confession under Section 164, and on that basis admitted the oral evidence. The learned Judges of the High Court observed that the present case was governed by Nazir Ahmed case [LR 63 IA 372] and that Ashrafi case [(1960) 2 ILR 488] had no application because it dealt "with the question of identification parades held ....
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....ble, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on Magistrates the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. 9. Mr. Aggarwala does not question the validity of the principle but says that Nazir Ahmed case [LR 63 IA 372] was wrongly decided as the principle was not applicable to its facts. He put his challenge to the correctness of the decision on two grounds, the first of which was that the principle applied in Taylor v. Taylor [(1875) 1 Ch D 426, 431] had no application where the statutory provision conferring the power was not mandatory and that the provisions of Section 164 were not mandatory as would appear from the terms of Section 533. 10. This contention seems to us to be without foundation. Quite clearly, the power conferred by Section 164 to record a statement or confession is not one which must be exercised. The Judicial Committee expressly said so in Nazir Ahmed case [LR 63 IA 372] and we did not u....
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....on 164. 12. A similar argument was advanced in Nazir Ahmed case [LR 63 IA 372] and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to make a record of the confession made by an accused which may be used in evidence against him and at the same time it provides certain safeguards for his protection by laying down the procedure subject to which alone the record may be made and used in evidence. The record, if duly made may no doubt be admitted in evidence without further proof but if it had not been so made and other evidence was admissible to prove that the statements recorded had been made, then the creation of the safeguards would have been futile. The safeguards were obviously not created for nothing and it could not have been intended that the safeguards might at the will of the prosecution be bypassed. That is what would happen if oral evidence was admissible to prove a confession purported to have been recorded under Section 164. Therefore it seems to us that the object of Section 164 was not to give the prosecution the advantage of Sections 74 and 80 of the Evidence Act but to provide for evidence being made available ....
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....rogate the safeguards created in Section 164 for the benefit of an accused person, it is open to a lower class Magistrate to do so. We, therefore, think that the decision in Nazir Ahmed case [LR 63 IA 372] also covers the case in hand and that on the principle there applied, here too oral evidence given by Mr. Dixit of the confession made to him must be held inadmissible; xxxxxxxxxxxxxxxxxxxxxx "21. The result is that the appeal fails and is dismissed." (Emphasis supplied) 88. In re: Singhara Singh (supra) the Supreme Court would notice that in re: Nazir Ahmed (supra) it had not been argued that Section 533 of the old Cr.P.C. had any operation in making in any oral evidence admissible and therefore it would not be necessary to consider in re: Singhara Singh (supra) whether that section had any effect in that case in making any evidence admissible. Further, in re: Singhara Singh (supra) the Supreme Court would hold that a statement would not be "duly made" unless the procedure for making it as laid down in Section 164 Cr.P.C. had been followed. The Supreme Court would further hold that Section 533 of the old Cr.P.C. emphasizes that the procedure provided for ....
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....dian Evidence Act, 1872 such statement shall be admitted if the error has not injured the accused as to his defence on the merits. Under Section 463 Cr.P.C the Court is now required to take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. The historical perspective to this legislative change is that there were conflicting decisions rendered by different Courts on the scope and applicability of Section 533 of the old Cr.P.C. The Law Commission of India vide its Forty-First Report dated September, 1969 recommended that sub-section (1) of Section 533 of the Old Cr.P.C. be amended. The said recommendation was accepted and Section 463 Cr.P.C enacted. Details of the said recommendation is quoted hereunder:- "Law Commission of India, Forty-First Report (The Code of Criminal Procedure, 1898), September, 1969 (Vol.I), Government of India, Ministry of Law. Chapter XLV Irregular Proceedings Introductory. 45.1 Chapter 45 deals with the effect of irregularities in procedure on the validity of the....
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....ly made' unless the procedure for making it laid down in section 164 had been followed. What section 533 therefore does is to permit oral evidence to be given to prove that the procedure laid down in section 164 had in fact been followed when the Court finds that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore, far from showing that the procedure laid down in section 164 is not intended to be obligatory, section 533 really emphasizes that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the record which ought to show that does not on the face of it do so." 45.7. We would, therefore, recommend that sub-section (1) of section 533 be amended as follows to clarify that the evidence given should relate to the apparent non-compliance with the statutory provisions:- "(1) If any Court before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is rendered or ha....
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.... (Section 533 of the old Criminal Procedure Code) but when there is non-compliance of the mandatory requirement of Section 164(2) of the Criminal Procedure Code and it comes out in evidence that no such explanation as envisaged in the aforesaid sub-section has been given to the accused by the Magistrate, this substantial defect cannot be cured under Section 463, Criminal Procedure Code. xxxxxxxxxxxxxxxxxxxxxxxx 124. In the instant case the accused Satwant Singh who was in police custody was produced before the Magistrate Shri S.L. Khanna on 29-11-1984. On that day the accused made an application (Ex. PW 11-A) stating that he wanted to make a statement about the facts concerning Indira Gandhi Assassination Case. The Magistrate directed the remand of the accused in judicial custody till 1-12-1984 giving the accused time to reconsider and reflect. The Magistrate also told him that he was not bound to make any statement and if any statement is made the same might be used against him. The Magistrate also directed to send a letter to the Secretary, Legal Aid Committee to provide legal assistance to the accused at the expense of the State. On 1-12-1984, the Magistrate en....
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....tablished on an examination of the Magistrate that the mandatory provisions have been complied with.." (Emphasis supplied) 93. In re: Kehar Singh (supra) the Supreme Court would specifically examine the provision of Section 463 Cr.P.C. After a detailed and thorough analysis of the judgments of the Supreme Court and various High Courts it would categorically hold that on a consideration of the decisions it is manifest that if the provisions of Section 164(2) Cr.P.C. which requires the Magistrate before recording confession to explain to the person making confession that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reason to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. It was held by the Supreme Court that the compliance of sub-section (2) of Section 164 is therefore, mandatory and imperative and non compliance of it renders the confession inadmissible in evidence. Section 463 (old Section 533) of the Code of Criminal Procedure provides that where the questions and answers regarding the confession have not been recorde....
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....15 of TADA and Rule 15(3) of the TADA Rules though it is not disputed that all the confessions are recorded by V. Thiagarajan (PW 52), Superintendent of Police. 401. It was submitted that the certificate required to be recorded under Rule 15(3) of the Rules of TADA is on the same lines as given in Section 164(4) of the Code. Section 164(4) of the Code is as under: "164. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record 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. (Signed) A.B. Magistrate.' " 402. It is unnecessary to refer to the provisions ....
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....ce officer which under ordinary law is impermissible. In Kartar Singh case [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] the Court said: (SCC p. 680, para 254) "254. In view of the legal position vesting authority on higher police officer to record the confession hitherto enjoyed by the judicial officer in the normal procedure, we state that there should be no breach of procedure and the accepted norms of recording the confession which should reflect only the true and voluntary statement and there should be no room for hypercriticism that the authority has obtained an invented confession as a source of proof irrespective of the truth and creditability as it could be ironically put that when a Judge remarked, 'Am I not to hear the truth', the prosecution giving a startling answer, 'No, Your Lordship is to hear only the evidence'." This is how this Court analysed Section 15 and Rule 15: (SCC pp. 681-82, paras 257-62) "257. As per Section 15(1), a confession can either be reduced into writing or recorded on any mechanical device like cassettes, tapes or soundtracks from which sounds or images can be reproduced. As rightly pointed out by the learned....
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....by sub-section (3) of Section 20 of the TADA Act and empowered to record confession. 262. The net result is that any confession or statement of a person under the TADA Act can be recorded either by a police officer not lower in rank than a Superintendent of Police, in exercise of the powers conferred under Section 15 or by a Metropolitan Magistrate or Judicial Magistrate or Executive Magistrate or Special Executive Magistrate who are empowered to record any confession under Section 164(1) in view of sub-section (3) of Section 20 of the TADA Act." Reference was also made to a Division Bench decision of the Bombay High Court in Abdul Razak Shaikh v. State of Maharashtra [1988 Cri LJ 382 : 1987 Mah LJ 863 (Bom)] which relying on a decision of the Privy Council in Nazir Ahmad v. King-Emperor [AIR 1936 PC 253 (2) : 63 IA 372] held "that the provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and has been specially provided for, for safeguarding the interest of the accused and, therefore, it is mandatory". The High Court said that this omission cannot be cured by examining ....
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....n 533 (old) corresponding to Section 463 of the present Code. It was conceded that the Magistrate neither acted nor purported to act under Section 164 or Section 364 (old) and nothing was tendered in evidence as recorded or purporting to be recorded under either of the sections. The Board then went on to hold as under: "On the matter of construction Sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. Upon the construction adopted by the Crown, the only effect of Section 164 is to allow evidence to be put in a form in which it can prove itself under Sections 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank....
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....e do not think the view taken by the Bombay High Court and the Nagpur High Court is correct. It may be noted that the Privy Council did not consider the scope and applicability of Section 463 in the circumstances of the case before it. In that case it was conceded that the confessions were not recorded either under Section 164 or Section 281 of the Code. The view taken by the Bombay High Court appears to us to be rather too technical and if we accept this view it would be almost making Section 463 of the Code ineffective. Confession of Nalini (A-1) runs into 18 pages. The certificate as required by Rule 15(3) of the TADA Rules in the form prescribed has been appended by V. Thiagarajan (PW 52), SP, at the end of the confession. Signatures of Nalini (A-1) appear on pp. 1 to 16. In his testimony V. Thiagarajan (PW 52) has submitted that his not getting signatures of Nalini (A-1) at the end of the confession is an omission. There is no cross-examination of V. Thiagarajan (PW 52) as to why the omission occurred. It has not been suggested that the omission was deliberate. Statement of V. Thiagarajan (PW 52) is forthright. There could certainly be a human error but that would not mean tha....
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.... The Bombay High Court also relied on a decision of the Nagpur High Court relying upon the decision in re: Nazir Ahmed (supra) had held that the evidence of the Magistrate, who recorded the confession of the accused and did not obtain his signature thereon, was inadmissible. The Supreme Court once again held that the Privy Council had not considered the scope and applicability of Section 463 of Cr.P.C. in the circumstances of the case before it. The Supreme Court would hold that the view taken by the Bombay High Court was too technical and if that view was accepted it would be almost making Section 463 of the Code ineffective. While holding so the Supreme Court would examine the confession of Nalini intricately. It would examine as to why the Magistrate had failed to obtain the signature of the accused on the confession recorded by him. The Supreme Court would then hold:- "404. ..........In his testimony V. Thiagarajan (PW 52) has submitted that his not getting signatures of Nalini (A-1) at the end of the confession is an omission. There is no cross-examination of V. Thiagarajan (PW 52) as to why the omission occurred. It has not been suggested that the omission was delibe....
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....visions or whether any violation thereof has been made by the Magistrate while recording it. The relevant sections in CrPC are Sections 164, 281 and 463. 19. Sub-section (2) of Section 164 CrPC requires that the Magistrate before recording confession shall explain to its maker that he is not bound to make a confession and if he does so it may be used as evidence against him and upon questioning the person if the Magistrate has reasons to believe that it is being made voluntarily then the confession shall be recorded by the Magistrate. Sub-section (4) of Section 164 provides that the confession so recorded shall be in the manner provided in Section 281 and it shall be signed by its maker and the recording Magistrate shall make a memorandum at the foot of such record 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 s....
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....A-1 was fit to make the statement, PW 62 proceeded to record it, which is in question and answer form. It appears from Ext. 187 as well as from the questions and answers which were put to A-1 that PW 62 warned A-1 that she was not bound to make any confessional statement and in case she did so, it might be used against her as evidence. In spite of this warning, A-1 volunteered to make the statement and only thereafter the statement was recorded by PW 62. In the certificate that was appended to the said confessional statement PW 62 has very categorically stated that he had explained to A-1 that she was not bound to make a confession and that if she did so, any confession she would make, might be used as evidence against her and that he believed that the confession was voluntarily made. He further stated that he read over the statement to the person making it and admitted by her to be correct and that it contained a full and true account of the statement made by her. It has been further stated by PW 62 in his evidence that at the time of recording of the confession it was he and PW 32, who were present in the room and there was neither any police officer nor anybody else within the h....
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.... was not recorded according to the procedure and the record of the confession was not available as evidence either. The Magistrate, however, appeared as a witness and gave oral evidence about the making of the confession. He stated that he made rough notes of what he was told, got a memorandum typed from the typist on the basis of the rough notes and thereafter destroyed the rough notes. The said memorandum, signed by him contained only the substance but not all of the matter to which he spoke orally. The recording Magistrate in the said memorandum just above his signature appended a certificate somewhat to the same effect as that prescribed in Section 164 and, in particular, stating that the Magistrate believed that the statements were voluntarily made. As there was no record in existence at the material time, there was nothing to be shown or to be read to the accused and nothing he could sign or refused to sign. The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible. The Magistrate offered no explanation as to why he acted as he did instead of following the procedure required by Section 164. When questioned by the Sessions ....
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....ard of the mandatory requirements of the said section. Preetam [(1996) 10 SCC 432 : 1996 SCC (Cri) 1343] is a case where the accused remained in police custody for six days immediately before the recording of his confession by the Magistrate and, therefore, could be said to have been pressurised, tortured and harassed by the police. In such a situation, omission on the part of the recording Magistrate to put a question to the accused to satisfy himself that the confession was being made voluntarily can be said to be flagrant violation of law. However, in the case on hand, A-1 was removed by the police from the place of occurrence to the hospital in the morning of 24-8-2001 where she remained until her arrest by the police in the evening of 26-8-2001. It was at 10.58 p.m. on 24-8-2001 i.e. during her hospitalisation, that PW 62 recorded her confessional statement after cautioning her that she was not bound to make any confession and that if she did so, it might be used as evidence against her. PW 62 in his evidence has stated that it was only after administering the above caution and satisfying himself that A-1 was making the statement voluntarily that he proceeded on to record her ....
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.... that the confession was being voluntarily made. In the case on hand, PW 62 in his evidence has stated that he did ask the accused the question whether she was under any pressure, threat or fear and only after satisfying himself that she was not under any, that he proceeded on to record her confessional statement. 27. Therefore, in view of our above discussion, the three decisions relied upon by the learned counsel for the accused in Nazir [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)], Preetam [(1996) 10 SCC 432 : 1996 SCC (Cri) 1343] and Tulsi [(1996) 6 SCC 63 : 1996 SCC (Cri) 1118] are of no help to the accused. 28. In Babu Singh [(1963) 3 SCR 749 : (1964) 1 Cri LJ 566] reliance on which has been placed by Mr. Tulsi, appearing on behalf of the appellant in Crl. Appeal No. 895 of 2005, a three-Judge Bench of this Court, while dealing with the question whether non-compliance with the provisions of Section 164 or Section 364 (Section 281 of the new Code) is a defect which could be cured by Section 533 (Section 463 of the new Code) observed at SCR pp. 759-60 thus: "Section 533(1) lays down that if any court before which a confession recorded or purporting to ....
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....case where the charge of murder was founded almost exclusively on the confessions it was necessary that the High Court should have considered these relevant factors more carefully before it confirmed the conviction of the appellants for the offence under Section 302 and confirmed the sentence of death imposed on Babu Singh. In our opinion, if the confessions are left out of consideration, the charge of murder cannot be sustained." 30. The three unusual features noticed by the Bench in Babu Singh [(1963) 3 SCR 749 : (1964) 1 Cri LJ 566] impelled the learned Judges to exclude from consideration the confessional statement made before the Magistrate by the accused after having observed that the confession was inadmissible in evidence. As the charge of murder was founded exclusively on the confession, both the accused persons were acquitted of the charge under Sections 302/34 IPC. 31. In our view, the factual matrix in Babu Singh [(1963) 3 SCR 749 : (1964) 1 Cri LJ 566] was distinct from the one with which we are dealing. In Babu Singh [(1963) 3 SCR 749 : (1964) 1 Cri LJ 566] both the accused remained in police custody for a long time and even after the substantial por....
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....ny corner; that in the room in which the confession was recorded it was only he and another witness who were present and no police officer was available even within the precincts of the hospital. In such factual narrative the Supreme Court would hold that the said effect is cured by Section 463 Cr.P.C. as the mandatory requirement provided under Section 164(2) Cr.P.C. of explaining to the accused that he was not bound to make a statement and if a statement is made the same might be used against him had been complied with established by the certificate from the Magistrate. 98. In re: Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat (2009) 7 SCC 254 a three Judge Bench of the Supreme Court would examine statutory appeals under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 against the order passed by the Designated Court whereby the learned Designated Judge convicted the appellants under Section 302 read with Section 120-B IPC, Section 25 (1) (c) and 27 of the Arms Act and Section 5 of the TADA Act. The appellant's main contention was that the conviction based on confessional statements of the appellants without any corroborative evidence is....
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....ce, any court, Judge, Magistrate or person may administer oaths and affirmations for the purpose of affidavits, if empowered in this behalf- (a) by the High Court, in respect of affidavits for the purpose of judicial proceedings; or (b) by the State Government, in respect of other affidavits.'' 100. Section 4 of the Oaths Act, 1969 reads thus: "4. Oaths or affirmations to be made by witnesses, interpreters and jurors.-(1) Oaths or affirmations shall be made by the following persons, namely:- (a) all witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence; (b) interpreters of questions put to, and evidence given by, witnesses; and (c) jurors: Provided that where the witness is a child under twelve years of age, and the court or person having authority to examine such witness is of opinion that, though the witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing pr....
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....g evidence bound to state the truth.-Every person giving evidence on any subject before any court or person hereby authorised to administer oaths and affirmations shall be bound to state the truth on such subject.'' 104. The schedule to the Oaths Act, 1969 reads thus: "THE SCHEDULE (See section 6) FORMS OF OATHS OR AFFIRMATIONS Form No. 1 (Witnesses):- I do swear in the name of God/solemnly affirm that what I shall state shall be the truth, the whole truth and nothing but the truth. xxxxxxxxxxxxxxxxxxxxxxxx " 105. In re: State of Rajasthan v. Darshan Singh (2012) 5 SCC 789, the Supreme Court would hold:- "24. This Court in Rameshwar v. State of Rajasthan [AIR 1952 SC 54 : 1952 Cri LJ 547] has categorically held that the main purpose of administering of oath is to render persons who give false evidence liable to prosecution and further to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, further such matters only touch credibility and not admissibility. However, in view of the provisions of Section 7 of the Oaths Act, 1969, the omission of admini....
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....escribed 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 section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried." 110. The Forty First Report of the Law Commission, which preceded the introduction of Section 164(5) Cr.P.C. had stated: - "The earlier Report (37th) considered the question whether the statements recorded under section 164 should be on oath or not and recommended that they should be. The actual practice, we understand varies; but it would certainly be proper if such statements are always made on oath and this should be provided in the section itself [as it has been done by the new sub-section (5).]" 111. The new Cr.P.C. came into force on the 1st of April 1974. The Objects and Reasons of Section 164 Cr.P.C. is as follows:- "The Law Commission in its 41st Report (page 75, para.14, 17) had remarked thus while recommending re-arrangement of the provisions of sub-sections (2) and (3): The earlier Report (37th), considered the question whether ....
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....strate while doing so must, before recording any such confession, explain to the accused that he is not bound to make a confession and that, if he does so it may be used "as evidence" against him. Under Section 281 Cr.P.C. the record of examination of accused is to be made by the concerned Magistrate and signed by the accused as well as the Magistrate who is required to 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. A reading of Section 164 (5) Cr.P.C. makes it evident that a statement other than confession is to be recorded by the Magistrate in the manner provided for recording of evidence and the said Magistrate shall have power to administer oath to the person whose statement is so recorded. The word 'evidence' used in Section 164 (5) Cr.P.C. is defined in Section 3 of the Indian Evidence Act, 1872. The word "evidence" as defined means and includes "(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry, such statements are called oral evidence; (2) all documents i....
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....lly be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examined such persons or to receive evidence. Section 4(2) of the Oaths Act, 1969 specifically provides that nothing in this section shall render in lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties. Section 4 of the Oaths Act, 1969 makes it clear that oath shall not be administered to an accused and it would be unlawful to do so in a criminal proceeding unless the accused is examined as a witness for the defence. In fact, Section 4(2) of the Oaths Act, 1969 not only prohibits the administration of oath to an accused person but also prohibits and renders it unlawful to administer oath even to the official interpreter of any Court, after he has entered on the execution of the duties of his office. Under Section 6 of the Oaths Act, 1969 all oaths and....
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....te of Section 4 (2) of the Oaths Act, 1969 also reflects a clear desire of the Legislature to insulate the accused from self-incrimination. 117. Let us now examine whether administration of oath on accused while recording a confession under Section 164 Cr.P.C. which is prohibited, unlawful and illegal can still be cured under Section 463 Cr.P.C.? Section 463 Cr.P.C. provides that the Court before which a confession or other statement of an accused person is recorded, or purporting to be recorded under Section 164 or Section 281, 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 may notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. 118. The judicial pronouncements of the Supreme Court quoted hereinabove makes it clear that:- (i) That the provision of Section 164 Cr.P.C. must be complied with....
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....C. falls under chapter XXXV under the head "irregular proceedings" and thus what Section 463 Cr.P.C. permits is the curing of irregularities and not illegalities. 120. The Supreme Court in re: Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 would hold:- "47. So far as the "heading" of the chapter is concerned, it is well settled that "heading" or "title" prefixed to sections or group of sections have a limited role to play in the construction of statutes. They may be taken as very broad and general indicators or the nature of the subject-matter dealt with thereunder but they do not control the meaning of the sections if the meaning is otherwise ascertainable by reading the section in proper perspective along with other provisions. In Frick India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC (Tax) 185], this Court has observed as under: (SCC p. 405, para 8) "8. It is well settled that the headings prefixed to sections or entries cannot control the plain words of the provision; they cannot also be referred to for the purpose of construing the provision when the words used in the provision are clear and unambiguous; nor can they be used....
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....d relate to apparent non-compliance with the statutory provisions. It is also clear that substantial illegality of not recording a confession as mandated by Section 164 Cr.P.C. as opposed to mere irregularity in the procedure in recording the same cannot be cured under Section 463 Cr.P.C. The question therefore is whether administration of oath on an accused person is a substantial illegality or a curable irregularity? 123. We have already held that administration of oath on an accused while recording his confession is unconstitutional, prohibited, unlawful and illegal. Section 164 Cr.P.C. has been meticulously designed in great detail to ensure voluntariness and truthfulness. The rationale as to why oath ought not to be administered on an accused while recording confession seems to date back to the period in England when the accused were administered oath and confessions extracted in the ecclesiastical courts. The revulsion against this practice came to a head in the case of John Lilburn before the Court of Star Chamber and was ultimately abolished in 1641. Thereafter, it was firmly recognized that accused should not be put on oath and that no evidence should be taken from him.....
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....has a direct bearing on the voluntariness of the confession and voluntariness is sacrosanct. Let us look at the problem from yet another perspective. Under the scheme of Cr.P.C. the accused has a right to remain silent. In fact it is a fundamental guarantee under Article 20 (3) of the Constitution of India. Under the scheme of Cr.P.C. it is only at the stage of examination of an accused under Section 313 Cr.P.C. an accused is asked to explain any circumstance appearing in evidence against him by the Court. Even at this stage sub-section (2) of Section 313 Cr.P.C. requires that no oath shall be administered to the accused when he is examined and under subsection (3) thereof accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. The recording of a statement of an accused under Section 313 Cr.P.C. cannot equate to taking of evidence as envisaged in Section 463 Cr.P.C. for on the basis of such evidence taken in regard to such non-compliance, the Court is required to come to a definite finding whether the accused was injured or not. At no stage of a criminal trial can an accused be compelled to be a witness against....
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....Under the scheme of Cr.P.C. we do not see any provision by which the evidence of the accused can be taken as required under Section 463 Cr.P.C. except under Section 315 Cr.P.C. and that too only if the accused so chooses. The illegal act of administering oath on an accused before recording his evidence would therefore take away the choice given to the accused under Section 315 Cr.P.C. and compel the accused to be a witness for the defence. We are thus of the view that this was not the eventuality contemplated under Section 463 Cr.P.C. Section 463 Cr.P.C. provides that the Court can notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872 take evidence in regard to such non-compliance as an exception to taking oral evidence to prove the contents of a document. Section 80 of the Indian Evidence Act, 1872 provides that:- "Whenever any record is produced before the Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law....
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.... the person making the statement, except where the mind has been so conditioned by some extraneous process as to render the making of the statement involuntary and, therefore extorted. The Magistrate while administering oath on an accused before recording the confession commits an illegality and unlawful act prohibited by law. Any information received which may be self-incriminatory in violation of the laws as well as the Constitutional guarantee, which may have compelled the accused to self-incriminate cannot but be termed "duress" or "undue influence". While it is true that the demand or requirement for speaking truth is absolute both by a witness after he is administered oath and by an accused while making a confession, administering oath upon an accused while recording his confession would lead to disastrous consequences. A perusal of Section 164 read with Section 281 Cr.P.C. makes it evident that the record of the examination of the accused is required to be done in a question and answer format. Section 281 Cr.P.C. mandates that whenever an accused is examined by any Magistrate the whole of such examination, including every question put to him and every answer given by him, sh....
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....ten in every statute. We are, therefore, of the firm view that the substantial illegality of administering oath upon an accused before taking a confession which is prohibited cannot be termed as a curable irregularity under Section 463 Cr.P.C. Answering the first question referred by the Division Bench in the affirmative we hold that the confessional statement recorded under the provision of Section 164 Cr.P.C. on oath is fatal and cannot be protected by the provision of Section 463 Cr.P.C. In the circumstances and consequently we hold that the judgment of the Division Bench of this Court in re: Arjun Rai (supra) is good law. We reiterate, as already held by the Supreme Court in re: Brijbasi Lal Shrivastava (supra), that administration of oath while recording statements of the accused under section 164 Cr.P.C. would amount to a concealed threat. If this be so then to permit further evidence to disprove what has been held to be a concealed threat would be to dilute the fundamental protection given to an accused under Article 20 (3) of the Constitution of India which we are not inclined to in today's context where the accused due to social conditions, lack of knowledge or advise ....