TaxTMI 
TaxTMI 
2018 (3) TMI 2022
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....ing 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 judgment of the Supreme Court in re: State of Uttar Pradesh v. Singha....
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....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 volition. 4. Mr. J.B. Pradhan would further submit that the bare reading of secti....
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....e 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 by the administration of oath. 8. Mr. A. Moulik, learned Senior Advocate assisting thi....
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....anti 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 of Gauhati in re: The State of Assam v. Akanman Bora; by the High Court of Karnataka in re: ....
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....ifically 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 accused person standing his trial for the offence of murder when he was told by the Court to speak the truth. It was....
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....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 eligible to be invested with the powers under Section 164, is a Magistrate of the second class and that investment has to be at the instance of the State Gov....
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....s 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 recorded, the preferable form being questions and answers, and the whole record being in the language of the deponent, are all salutary safeguards which have to b....
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....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 compulsion of oath and violated Article 20(3) of the Constitution of India, Jaswant Singh, C.J. would express doubt whether mere administration of oath to an accused by a Magistrate while reco....
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....42 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 genuine belief that he might be prosecuted. 23. In re: Philips (supra) the Karnataka High Court would examine the judicial confession said to have been made by the accused vis-à-vis section 164, 281 ....
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....t 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 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 ....
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....atements 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 examined under Sub-section (1) of that Section. It is easy to see that it has no application to the recording of a confession of an accused under Section 164 (4) Cr. P. C. and in that behalf only the provisions in Section 281 of the Code are specifically made applicable. 1....
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....etent 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 recording of confession virtually means that the maker is compelled to give evidence against him, placing him in the status of a witness at the stage of investigation in violation of Article 20(3) of the Constitution of India read with sub-section (5) of Section 164 of the Code of Criminal Procedure. Administering oath ....
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....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 J. while concurring with S. Haque J. in re: Akanman Bora (supra) would hold:- "15. ............ A Magistrate has to record the confession of accused in accordance with the provisions made in Sections 164 and 281 of the Code of Criminal Procedure. Those Sections, among other things, require a Magistrate to record the confession only after removing all fea....
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....ded 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 investigation and a confession made by him in the course of an investigation comes within the ambit of S. 5 of the Indian Oaths Act, 1873 and the Magistrate acted illegally in recording such a confession on solemn affirmation. The Bench however held such confession is admissible in evidence in absence of any proof of occasioning miscarriage of Justice. 13. The same question came up for considerat....
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....ssible 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 confession shall be recorded in the manner provided in S. 281, Cr. P.C. and the Magistrate has to append a note of memorandum at the foot of the confession. Subsection (5) has direct bearing on the point at issue. A close reading of it would indicate that any statement other than a confession made under sub-section (1) shall be recorded in the manner prescribed for recording of evidence and the Magistrate shall have the power to administe....
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....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 appellant. The Supreme Court would note the various discrepancies in the recording of the confessional statement including the administration of oath on the accused which is prohibited and ultimately disagreeing with the ultimate findings of the learned Sessions judge as also the High Court and considering the merit of the appeal set-aside the judgment of conviction and sentence. In such fact situation the Supreme Court would go on to examine in d....
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....iance 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 from threat, coercion or undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter. Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant.'' xxxxxx xxxxxx xxxxxx 20. There is another aspect of the matter which must be ta....
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....t 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 of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, 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 provisions of section 463(1) makes it clear that non-compliance of the provision is fatal in case it has caused injury to the accused in his defence on merit. Though there was non-compliance in the instant case inasmuch as oath was administered, it was violative of section 164....
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....y 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, from the statement of the learned Magistrate, it is clear that he had not put any question to the accused before making confession, but he had given only warning as has been given in the certificate. It is, therefore, clear that before recording the confession, the learned Magistrate had not at all made any enquiry by putting question to the accused for satisfying himself that the confession made by the accused was voluntary and not under duress and inducement. Further, the learned Magistrate has committed gross illegality in administering oath to each accused before recording their confessional statement. Section 164(5) Cr.P....
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....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 confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, 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.'' 41. In re: Thimma and Thimma Raju v. State of Mysore (1970) 2 SCC 105, the Supreme Court would hold:- "9. ........ An unambiguou....
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....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; (ii) that such confession has been made by an accused person; (iii) that it has been made to a person in authority; (iv) that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority; (v) such inducement, threat or promise, must have reference to the charge against the accused person; (vi) the inducement, threat or promise must in the opinion of the court be sufficient to give the accused person grounds, which would appear to him reasonable, 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"." (Emphasis supplied) 45. In re: Satbir Singh v. State of Punjab (1977) 2 SCC 263, the S....
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.... 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 a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by Section 30. Briefly and broadly, this is the scheme of the law of evidence vis-à-vis confessions. The allied provision which needs to be noticed at this juncture is Section 162 CrPC. It prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by Section 145 of the Evidence Act. Sub-section (2) of Section 162 makes it explicit that the embargo laid down in the section shall not be deemed to apply to any statement falling within clause (1) of Section 32 or to affect the prov....
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....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 proved. An unambiguous confession, as held by the Supreme Court, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possess a high probative force because it emanates directly from the person committing the offence. To act on such confessions the Court must be extremely vigilant and scrutinize every relevant factor to ensure that the confession is truthful and voluntary. Although the word confession has not been defined in the Evidence Act, 1872 the Privy Council in re: Pakala Narayanaswami v. King Emperor 66 IA 66 has clearly laid down that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. As abundant caution the Courts have sought for corroboration of the confession though. As per Taylor's Treaties on the law of Evidence, ....
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....t 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 confession would become irrelevant. 49. Article 20 (3) of the Constitution of India reads thus: "20. (3) No person accused of any offence shall be compelled to be a witness against himself." 50. Wigmore on Evidence, (Tillers revision, 1983) Volume VIII (S. 2250) gives a detailed historical perspective of the history of privilege against self-incrimination. It states that:- "2250. History of the privilege. The history of the privilege against self-incrimination has something more than the ordinary interest of a rule of evidence - not only because the privilege has been given a constitutional sanction in nearly every one of our jurisdiction, nor merely because the tracing of its origin takes us so far afield, in our survey, as the administrative policy of William the Conqueror and the criminal procedure of Louis XIV and the French Revolution, but particularly beca....
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.... 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, statuimus praestari de caetero in regno Angliae secundum canonicas et legitimas sanctiones, obtenta consuetudine in contrarium non obstante." Next, in 1272, came a similar constitution from Boniface: "Statuimus quod laici, ubi de subditorum peccatis et excessibus corrigendis per praelatos et judices ecclesiasticos inquiritur, ad praestandum de veritate dicenda juramentum per excommunicationis sententias, si opus fuerit, compellantur." Meanwhile, the general struggle between papal and royal claims of jurisdiction had gone on. Under Edward I, the statute of "Circumspecte Agatis" (1285) favored the former's rights. But by the early 1300s the statute "De Articulis Cleri" set fairly definite limits; it was enacted that the royal officers should not permit "quod aliqui laici in ballione sua in aliquibus locis conveniant ad aliquas recognitiones per sacramenta sua facienda, nisi in causis matrim....
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....till 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 prohibition, set forth by Britton and Fitzherbert, mentioned an oath, to be sure; but, in the first place, this might equally be the compurgation oath (not the "jusjurandum calumniate" or "de veritate"); and, in the next place, and chiefly, it was mentioned simply as a descriptive feature of the forbidden jurisdiction as if one should forbid writs of habeas corpus to be issued by a probate judge, not meaning in the least to strike at that sort of writ, but at the particular judge's power and jurisdiction. There is no valid reason to believe that the statute "De Articulis Cleri" had among its motives any animus against the church's imposition of an oath as such. (i) Nevertheless (thought the king's lawyers cared nothing about it) this procedure of Otho's and Boniface's, the "jusjurandum de veritate dicenda" (which we may call the inquisitional oath, as distinguished from the compurgation oath) was then, ....
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....rding 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 like (corresponding to our notion of a "qui tam" or a grand jury)? Or might it be begun by an official complaint (somewhat like our information "ex relatione" by the attorney general)? Or might the judge "ex officio mero" summon the accused and put him to answer in hopes of extracting a confession which would suffice? And in the last method, must the charge at least be brought first to the judge's notice "per faman," or per clamosam insinuationem," "common report" or "notorious suspicion"? Such were the questions of procedure which later formed the essential subject of dispute. The last question became in the subsequent history the most important one; and it was apparently to be answered, in the strictness of the law, in the affirmative. Nevertheless, the matter was complicated by the varieties of detail in procedure, and there were differences of phrasing in the various decretals that served as authority. It is enough here to note th....
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....y 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 counselors concede this jurisdiction, there they are found ready enough to concede to the fullest the usual ecclesiastical procedure. In this very statute, indeed, "De Articulis Cleri," they concede the church's oath procedure where jurisdiction is conceded, i.e., in matrimonial and testamentary causes. As time goes on and the church becomes occupied with heresy trials, the same complaisance is equally plain. Toward the end of Richard II's time, during the Lollard agitation, the church began, in 1382, to receive temporal sanction for its claims in the field of heresy; finally, in 1401, Henry IV's statute gave to the church the punishment of heretics; these were to be arrested and detained by the diocesan when "defamed or evidently suspected," until they "do canonically purge him or themselves," the diocesan to "determine that same business according to the canonical decrees." Here is no objection to the oath or to the "ex officio" procedure, but a sanction of the ch....
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.... 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 Chamber did likewise, in what concerned the procedure of trial. No one is going yet to object to their general process of putting the accused to answer upon oath; but there is to be much opposition to the preliminary methods, to the lack of a presentment, to charging a person "ex officio mero." There was here some room (as we have seen) for uncertainty as to the proper canonical methods; and these courts were to strain all the possibilities, and even to exceed them. The Court of Star Chamber seems to have raised no special antagonism during the 1500s, nor until James' time, in the next century. Nor did the Court of High Commission, under the first five commissions. But in 1583, the sixth was issued, with Archbishop Whitgift at the head - a man of stern Christian zeal, determined to crush heresy wherever its head was raised. He proceeded immediately to examine clergymen and other suspected persons, upon oath, after the extremest "ex officio" style. From this time onwards there is much concerning thi....
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.... 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 should be compelled to answer but that he should be charged ex officio, in a cause not testamentary or matrimonial but penal. In the meantime (in 1610, 1611 and 1615), three other cases had come before the common law courts, presumably the King's Bench, and from their imperfect reports it may be inferred that a similar view was now prevailing there. The change had thus substantially been effected. Archbishop Abbott, a man of less rabid views, had in 1610 succeeded Bancroft; Coke had carried his views to the King's Bench, as Chief Justice, in 1613; and the matter seems to have been so far settled (in respect to the ecclesiastical claims) that no more cases occurred, until in 1640, statute (quoted later [in note 69]) put an end, for the time, to further doubt. But the Star Chamber claims remained still to be faced. What had been settled was (in effect) merely that the ecclesiastical courts (including that of High Commission) could not, as a matter of jurisdiction and procedure, put laymen to answer, "ex officio", t....
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....e 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 will get other matter out of my examination; and therefore, if you will not ask me about the thing laid to my charge, I shall answer no more; ... and of any other matter that you have to accuse me of, I know it is warrantable by the law of God, and I think by the law of the land, that I may stand upon my just defence and not answer to your interrogatories". Afterwards, "some of the clerks began to reason with me, and told me every one took that oath, and would I be wiser than all other men? I told them, it made no matter to me what other men do". Then, when examined before the Chamber itself, he again refused, saying, "I had fully answered all things that belonged to me to answer unto," but as to things "concerning other men, to insnare me, and get further matter against me," he was not bound "to answer such things as do not belong unto me; and withal I perceived the oath to be an oath of inquiry," i.e., ex officio, "and of the same nature as the High Commission oath," which was against the law of the land, the Petition of Right, and the law of Go....
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.... be put to answer in a penal matter, in a cause lying within the court's jurisdiction and begun by proper canonical presentment? This question fairly remained open under the first statute, though less plausibly under the second one. During the next twenty years after the enactment of the second statute, the matter came often before the courts, in applications for prohibitions. The various rulings are hardly to be reconciled. But, by the end of the 1600s, professional opinion apparently settled against the exaction of an answer under any form of procedure, in matters of criminality or forfeiture. Such, at any rate, beginning with the 1700s, was the application of the law ever after, without question. The statutes had abolished, in those courts, all obligation to answer on oath to such matters, without regard to the form of presentment or accusation. II. [History of the principle in common law courts in jury trials.] But what, in the meantime, of the common law, and of jury trial? Thus far the controversy here examined had been purely one of ecclesiastical jurisdiction and ecclesiastical methods of presentment. The common law courts had concerned themselves with it simply by ....
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....aries upon oath. Wherever a party is committed to jail by the judges for fraud or other misconduct done in the course of trial, by forging writs or the like, he appears to have been put to his examination on oath to disclose it. Persons charged as bankrupts, as Jesuits, as abusers of warrants were to be examined on oath by common law officers. Most notably, every accused felon was required to be examined by the justices of the peace, and his examination to be preserved for the judges at the trial, and, so far as appears, not a murmur was ever heard against this process till the middle of the 1700s and no statutory measure was taken to caution the accused that his answer was not compellable until well on in the 1800s. The everyday procedure in the trials of the 1500s and the 1600s, and almost the first step in the trial, was to read to the jury this compulsory examination of the accused; in 1638, the year after Lilburn's imprisonment, in the very next recorded trial, the accused's previous examination before the Chief Justice was offered and read at the outset, without a shadow of objection. Furthermore, as the trial goes on, the accused, in all this period of 1500-1620, is ....
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....gality; indeed, this argument of his seems rather to assume the contrary. He freely quotes, in mutilated form, the canon law phrase (whose origin has been examined above) "nemo tenetur seipsum prodere"; but there is nothing to show, down to the end of his life, that he believed in or knew of any privilege of refusal in the king's common law proceedings. The only source of doubt that can be found arises from certain scantily reported chancery rulings of the late 1500s. Some of these, at first sight, might be supposed to indicate the existence, as early as Elizabeth's reign, of a general privilege against self-incriminating. Other explanations, however, lie open with fair plainness. In the first place, it is a long-established maxim of jurisdiction that equity will not lend its aid, even by relief, apart from discovery, to enforce a forfeiture; on this ground (and remembering that an "answer" in chancery is a pleading as well as testimony) are explainable the cases refusing to compel an answer as to a forfeiture. In the next place, the Chancellor had almost no jurisdiction over criminal charges, hence, in cases of this nature, cognizance might be declined by refusing to com....
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....n is bound to incriminate himself on any charge (no matter how properly instituted) or in any court (not merely in the ecclesiastical or Star Chamber tribunals). Then this claim comes to be conceded by the judges - first in criminal trials, and even on occasions of great partisan excitement; and afterwards, in the Protector's time, in civil cases, though not without ambiguity and hesitation. By the end of Charles II's reign, under the Restoration, there is no longer any doubt, in any court; and by this period, the extension of the privilege to include an ordinary witness, and not merely the party charged, is for the first time made. It is interesting to note, in passing, that the privilege, thus established, comes into full recognition under the judges of the restored Stuarts, and not under the parliamentary reformers. Moreover, the privilege as yet, until well on into the time of the English Revolution, remained not much more than a bare rule of law, which the judges would recognize on demand. The spirit of it was wanting in them. The old habit of questioning and urging the accused died hard - did not disappear, indeed until the 1700s had begun. So the interesting ques....
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....nough with common legal proceedings, but knowing enough to send over for Sir Edward Coke's reports and other law books to inform its court and keep abreast of the times. In this colony the privilege (which had begun its career in England after the departure of its founders from England) was unrecognized till at least as late as 1685: more, they formally sanctioned the ecclesiastical rule by which the inquisitional oath was allowed. It might be supposed that the explanation of the Colonial conventions' insistence on it in the 1780s was to be found in the agitation then going on in France against the inquisitional feature of the Ordonnance of 1670. There appears no allusion, in Elliot's Debates on the Constitution, to the contemporary French movement: but the delegates who had been over there must have known of it. The proposals of reforms laid before the French Constitutional Assembly from the Provinces, in 1787, show how strong was the popular agitation. The Third Estate in every district, in their "cahiers" sent up to Paris, had voted to abolish compulsory sworn interrogation of the accused, and the clergy in ninety-one districts had done the same. The decree of 1789....
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....tified to more strongly than upon the floor of the National Convention. For example, in August 1789, Rabaut de Saint Ettienne, speaking from the floor said: "You have resolved upon a Declaration of Rights because your Cashiers impose it as your duty, and your Cahiers mentioned it because France has had America as its model." The records of those Assembly debates reveal conclusive evidence of the fact that the stream of influence was running towards France and not towards America at this time. If we attempt to ascribe the influence upon America to the writings of the French political philosophers, we are faced with [766] the fact that those who cried loudest against the inquisitional feature of the Ordinance of 1670, such as Voltaire and Montesquieu, had all made their studies on this question in England. So the facts drive us to seek other grounds of explanation. ... [783] The real reason for the American insistence that the privilege against self-incrimination be made a constitutional privilege may possibly be traced to the proceedings of the prerogative courts of Governor and Council, which constituted the Supreme colonial courts, and the proceedings instituted to enforce the....
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....tly oppose the use of ex officio oaths, and the Parliament of the time relented by abolishing the Star Chamber and the High Commission in 1641. This event is regarded as an important landmark in the evolution of the "right to silence". 95. However, in 1648 a Special Committee of Parliament conducted an investigation into the loyalty of Members whose opinions were offensive to the army leaders. The Committee's inquisitional conduct and its requirement that witnesses take an oath to tell the truth provoked opponents to condemn what they regarded as a revival of the Star Chamber tactics. John Lilburne was once again tried for treason before this Committee, this time for his outspoken criticism of the leaders who had prevailed in the struggle between the supporters of the monarch and those of Parliament in the English Civil War. John Lilburne invoked the spirit of the Magna Carta as well as the 1628 Petition of Right to argue that even after common law indictment and without oath, he did not have to answer questions against or concerning himself. He drew a connection between the right against self-incrimination and the guarantee of a fair trial by invoking the idea of "due proces....
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.... testify on their own behalf. This approach was followed in the inquisitional procedure of the ecclesiastical courts and had thus been followed in other courts as well. The obvious problem with compelling the accused to testify on his own behalf is that an ordinary person lacks the legal training to effectively respond to suggestive and misleading questioning, which could come from the prosecutor or the Judge. Furthermore, even an innocent person is at an inherent disadvantage in an environment where there may be unintentional irregularities in the testimony. Most importantly the burden of proving innocence by refuting the charges was placed on the defendant himself. In the present day, the inquisitorial conception of the defendant being the best source of evidence has long been displaced with the evolution of adversarial procedure in the common law tradition. 100. Criminal defendants have been given protections such as the presumption of innocence, right to counsel, the right to be informed of charges, the right of compulsory process and the standard of proving guilt beyond reasonable doubt among others. It can hence be stated that it was only with the subsequent emergence of th....
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...., or assertive) in nature? Or (2) to self-incriminating disclosures which, whether or not testimonial, involve cooperative participation by the witness? Or (3) to all evidence obtained from a witness which incriminates him, whether or not his cooperation is involved? It should be agreed, at least, that evidence satisfying only the third description - evidence obtained from a witness without compelling his cooperation, testimonial or otherwise, is not within the privilege, E.g, viewing, measuring, placing a hat on and even moving a limb of the relaxed body of the individual do not offend the policies of the privilege (2251 supra) and are not the sort of things which historically gave rise to the privilege (2250 supra). There is an understandable difference of opinion, however, as to whether it is the first or the more inclusive second description which correctly circumscribes the form of disclosure protected. Compare, e.g. (1) requiring the witness to make a verbal communication of an incriminating fact (testimonial cooperation), with (2) requiring him to write a sample of his handwriting for comparison purposes (non-testimonial cooperation). The history of the privilege (2250 s....
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....investigative stage. 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 confessions" is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the Judge and the prosecutor, thereby resulting in a miscarriage of justice. Even during the investigative stage, false statements are likely to cause delays and obstructions in the investigation efforts. 103. The concerns about the "voluntariness" of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements-often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense,....
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....against him, he may be called upon by the court to produce that document in accordance with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this court in Sharma case [(1954) SCR 1077] that Section 139 of the Evidence Act has no bearing on the connotation of the word "witness" is not entirely well-founded in law. It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a ....
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....that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement, but also that he was compelled to make that statement. "Compulsion" in the context, must mean what in law is called "duress". In the Dictionary of English Law by Earl Jowitt, "duress" is explained as follows: "Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment (sometimes called duress in strict sense) or by the threat of being killed, suffering some grievous bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per mines). Duress also includes threatening, beating or imprisonment of the wife, parent or child of a person." The compulsion in this sense is a physical objective act and not the state of mind of 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. Hence, the mere asking by a police officer investigating a crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3). ....
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....sion which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made." (Emphasis supplied) 57. In re: Nandini Satpathy v. P.L Dani (1978) 2 SCC 424, the Supreme Court speaking through Krishna Iyer J. would hold:- "57. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation - not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure....
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....asised that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (Forty-fourth Amendment) Act, 1978 mandated that the right to move any court for the enforcement of these rights cannot be suspended even during the operation of a Proclamation of Emergency. In this regard, Article 359(1) of the Constitution of India reads as follows: "359. Suspension of the enforcement of the rights conferred by Part III during Emergencies.-(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." (Emphasis supplied) 59. While examining the question what constitutes incrimination for the purpose of Article 20 (3) of the Constitution of India the Supreme Court in re: Selvi (supra) would hold :- "133. We have already referred to ....
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....ll and volition. We also accept that the right against self-incrimination under Article 20(3) is fully incorporated in the provisions of CrPC (Sections 161, 162, 163 and 164) and the Evidence Act, 1872, as manifestations of enforceable due process, and thus compliance with these statutory provisions is also equal compliance with the constitutional guarantees." (Emphasis supplied) 63. In re: R. Dineshkumar v. State (2015) 7 SCC 497, the Supreme Court while examining the provision of Section 132 of the Indian Evidence Act, 1872, would hold that the Supreme Court has held in re: Nandini Satpathy (supra) that the protection afforded by Section 161 (2) is wider than the protection afforded by Article 20(3) of the Constitution in some respects and that terminological expansion apart, Section 161(2) Cr.P.C. is a parliamentary gloss on the constitutional clause. The Supreme Court would hold that the rule against self-incrimination found expression in Indian law much before the advent of the Constitution of India under Article 20(3) and a facet of such rule is seen in Section 161 Cr.P.C., 1898 which corresponds to Section 161 Cr.P.C., 1973. It was held another facet of the rule against s....
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....purpose of the "rule against involuntary confessions" is therefore to ensure that the testimony considered during trial is reliable and worthy of credence. It has been conclusively held that Article 20(3) of the Constitution of India 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) of the Constitution of India aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. 66. The question, therefore, is would administration of oath to an accused, in the circumstances, make the confession testimonial? 67. Three things are absolutely necessary to invoke Article 20 (3) of the Constitution of India viz (i) An accused person; (ii) his being compelled to be a witness and (iii) such compulsion being against himself. 68. As held by the Supreme Court to be a "witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. The phrase used in Article 20 (3) is "to be a witness" and not to "appear as witness". It follows that the protection ....
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....accused person while recording his confession is a Constitutional mandate to be zealously protected under Article 20 (3) of the Constitution of India. An accused person when brought before a Magistrate or appears before a Magistrate to record a confession is required to explain to the accused 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 under Section 164 Cr.P.C. It is, therefore, evident that the confession may be taken as evidence against the accused once made in compliance with Section 164 Cr.P.C. We are of the view that whether the accused was compelled to be a witness against himself can only be a question of fact requiring proof thereof. Compulsion, if proved would lead to a definite conclusion of violation of Article 20(3) of the Constitution of India. As held in re: Brijbasi Lal Shrivastava (supra) administration of an oath to the accused by a person in authority before taking a statement is by itself a concealed threat. We are of the view that threat in any form be it concealed or otherwise directly affect voluntariness of the confession and render the same inadmissible in evidence. As poin....
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....-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (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 ....
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....(2), it was held at page 588:- "The matter to be considered and decided is one of plain principle and first importance-namely, is such oral evidence as that of the magistrate, Mr. Vasisht, admissible? It was said for the respondent that it was admissible just because it had nothing to do with s. 164 or with any record. It was argued that it was admissible by virtue of ss. 17, 21, 24 and 26 of the Evidence Act, 1872, just as much as it would be if deposed by a person other than a magistrate. It was also said, and with this argument their Lordships agree, that if the oral evidence was admissible then s. 91 of the Evidence Act requiring evidence in writing did not apply, because the matter would in such a case not be one which had to be reduced to writing. For the appellant, it was said that the magistrate was in a case very different from that of a private person, and that his case and his powers were dealt with and delimited by the Criminal Procedure Code, and that if this special Act dealing with the special subject-matter now in question set a limit to the powers of the magistrate the general Act could not be called in aid so to allow him to do something which he was unable to....
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.... could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and without showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of s. 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case. As a matter of good sense, the position of accused persons and the position of magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of, or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy: it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so far ....
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....t at all. Other methods of performance are necessarily forbidden. The proposition of law stated first in re: Taylor (supra) and adopted later by the Judicial Committee in re: Nazir Ahmad (supra) has been followed by the Supreme Court in a series of Judgments including Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322, Singhara Singh (supra), Chandra Kishore Jha v. Mahavir Prasad (1999) 8 SCC 266, Dhananjaya Reddy v. State of Karnataka (2001) 4 SCC 9, Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltd. (2008) 4 SCC 755 and State of Rajasthan v. Mohinuddin Jamal Alvi & Anr. (2016) 12 SCC 608 74. In re: Nazir Ahmed (supra) the Privy Council would also hold on examination of Section 164 of the old Cr.P.C. that it carefully and precisely defined a procedure regulating what may be asked for, or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records. The Privy Council would also observe: "Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath." 75. In re: Nazir Ahmed (supra) the Privy Council would also hold that it is for ob....
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....nd the other accused made a confession when he was on bail and in no case the Magistrate had assured the accused persons that if they decline they would not be sent to police custody. In such fact situation the Supreme Court would hold thus:- "64. The following principles emerge with regard to Section 164 Cr.P.C.: (i) The provisions of Section 164 CrPC must be complied with not only in form, but in essence. (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreli....
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....ubject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration. 104. Section 164, however, makes the confession before a Magistrate admissible in evidence. The manner in which such confession is to be recorded by the Magistrate is provided under Section 164 of the Code of Criminal Procedure. The said provision, inter alia, seeks to protect an accused from making a confession, which may include a confession before a Magistrate, still as may be under influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. Although, Section 164 provides for safeguards, the same cannot be said to be exhaustive in nature. The Magistrate putting the questions to an accused brought before him from police custody, should sometime, in our opinion, be more intrusive than what is required in law. (See Babubhai Udesinh Parmar v. State of Gujarat [(2006) 12....
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....urt while examining such a reliance placed upon for the purpose of conviction should see whether the perception of the courts below in having accepted the confession as having been made in its true spirit provides no scope for any doubt as to its veracity in making the statement by the accused concerned and only thereafter the contents of the confession can be examined." (Emphasis supplied) 81. In India the privilege against self-incrimination appears in various relevant statutory provisions as stated above. The rule against self-incrimination seem to have found expression in Indian law much before the advent of the Constitution of India under Article 20(3) and as held by the Supreme Court, facets of such rule are seen in Section 161 Cr.P.C., 1898 which corresponds to Section 161 Cr.P.C., 1973, Sections 25 and 26 and the proviso to Section 132 of the Evidence Act, 1872 which existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As held by the Supreme Court in re: Mohd. Azmal Amir Kasab (supra) the right against self-incrimination under Article 20 (3) is fully incorporated in the provisions of C....
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....used, or, if he does not understand the language in which it is written, to be interpreted to him in a language which he understands, and the accused shall be at liberty to explain or add to his answers. Thereafter the said record is required to be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. 84. Section 463 Cr.P.C. reads thus:- "463. Non-compliance with provisions of section 164 or section 281.-(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 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 (1 of 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 a....
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....3) then proceeds to provide further safeguards, it lays down that the Magistrate shall before recording, any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and it provides that when the confession is recorded after following the procedure prescribed by it the Magistrate shall make a memorandum at the foot of such record to the following effect. 13. When we turn to Section 364 we find that sub-section (1) provides for the recording of the confession in full in the manner prescribed therein and for explaining the contents of the same to the accused in a language which he understands, and the accused shall be at liberty to explain or add to his answers. Sub-section (2) lays down that when the whole of the confession is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate, and the Magistrate shall certify under his own hand that the examination was taken in his presence a....
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....it make them inadmissible. There is some force in this contention. xxxxxxxxxxxxxxxxxxxxxxxx 19. We have also been disturbed to notice that in recording the confessions the Magistrate has adopted a somewhat casual attitude. It is unnecessary to emphasise that the safeguards provided by Section 164(3) and Section 364(3) are valuable safeguards intended to protect the interest of innocent persons. The recording of a confession is a solemn and serious act, and so any Magistrate who records confessions must see to it that a tone of casualness does not enter in the transaction. Having regard to the evidence given by the Magistrate in the present case we are constrained to observe that when he got the confessions recorded in the present case he was not fully conscious of the solemnity and the seriousness of what he was doing. That is another factor which has weighed in our minds. Having regard to these features of the case we are not prepared to uphold the finding of the High Court that the confessions made by the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore excluded from consideration it is impossible to sustain the charge of....
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....supra) would examine a case in which a Second Class Magistrate not specially empowered by the State Government to record a statement or confession under section 164 of the Code of Criminal Procedure had purported to record the confession of the accused under section 164. The only point argued before the Supreme Court in appeal was as to the admissibility of certain oral evidence, which evidence if held not admissible, there would be no other evidence to convict the respondents. This oral evidence was given by the Magistrate of the confessions of guilt made to him by the respondents and purported to have been recorded by him under section 164 of the Code of Criminal Procedure. The Supreme Court would examine the provisions of section 164, 364 and 533 of the Code of Criminal Procedure and hold that:- "5. A confession duly recorded under Section 164 would no doubt be a public document under Section 74 of the Evidence Act which would prove itself under Section 80 of that Act. Mr. Dixit, who recorded the confession in this case was a Second Class Magistrate and the prosecution was unable to prove that he had been specially empowered by the State Government to record a statement or con....
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....ay or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under Section 164 and, therefore, held that the Magistrate could not give oral evidence of the confession made to him which he had purported to record under Section 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Sections 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "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". 8. The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot i....
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....een 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 emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually had been followed in certain cases where the record which ought to show that does not on the face of it do so. 11. The second ground on which Mr. Aggarwala challenged the decision in Nazir Ahmed case [LR 63 IA 372] was that the object of Section 164 of the Code is to permit a record being kept so as to take advantage of Sections 74 and 80 of the Evidence Act and avoid the inconvenience of having to call the Magistrate to whom the statement or confession had been made, to prove it. The contention apparently is that the section was only intended to confer a benefit on the prosecution and, therefore, the sole effect of the disregard of its provisions would be to deprive the prosecution of that benefit, for it cannot then rely....
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.... true that the Judicial Committee did not have to deal with a case like the present one where a Magistrate of the Second Class not specially empowered had purported to record a confession under Section 164. The principle applied in that decision would however equally prevent such a Magistrate from giving oral evidence of the confession. When a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him. Now the power has been conferred by Section 164 on certain Magistrates of higher classes. Obviously, it was not intended to confer the power on Magistrates of lower classes. If, therefore, a proper construction of Section 164, as we have held, is that a Magistrate of a higher class is prevented from giving oral evidence of a confession made to him because thereby the safeguards created for the benefit of an accused person by Section 164 would be rendered nugatory, it would be an unnatural construction of the section to hold that these safeguards were not thought necessary and could be ignored, where the confession had been made to a Magistrate of a lower....
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....idence that such person duly made the statement recorded and, notwithstanding anything contained in the Indian Evidence Act, 1872, Section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits. "463. Non-compliance with provisions of section 164 or section 281.--(1) If any Court before which a confession or other statement of an accused person recorded, or purpo rti ng 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 (1 of 1872), take evidence in regard to such nonc o mp l i anc e, and may, if satisfied that such noncompliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement. (2) The provisions of this section apply to Courts of Appeal, Reference and Revision." (2) The provisions of this section apply to Courts of appeal, reference and revision." 90. Under Section 533 of old Cr.P.C the ....
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....provisions of such sections have not been complied with by the Magistrate recording the statement, it shall "take evidence that such person duly made the statement recorded". This expression seems to have created some difficulty in interpretation, as is evidenced by the conflicting decisions of the various Courts. One has to distinguish between two questions, (1) whether the confession or other statement was "duly made", that is to say, made after giving the necessary warning and after putting the required questions under section 164, and (ii) whether the confession or other statement, duly made, was properly recorded. In the first case, section 533 should not apply, because, to apply the section in such cases would defeat the very object of sections 164 and 364, thereby depriving the accused of a beneficial provision on a matter on which the law has always shown its anxious concern. It is only the second kind of defect- defect in recording - that should be curable. The Magistrate should have complied with the substantial provisions of section 164, and there can be no saving for a non-compliance on that account. If such compliance is not apparent from the record. It can be prov....
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....complied with the mandate of sub-section (2) of Section 164 of Cr.P.C. and the curability of non-compliance of such a mandate under Section 463 Cr.P.C. and hold:- 119. On a consideration of the above decisions it is manifest that if the provisions of Section 164(2) which require that the Magistrate before recording confession shall 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 reasons to believe that it is being made voluntarily then the confession will be recorded by the Magistrate. The compliance of the 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 recorded evidence can be adduced to prove that in fact the requirements of sub-section (2) of Section 164 read with Section 281 have in fact been complied with. If the court comes to a finding that such a compliance had in fact been made the mere ....
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....n the certificate appended to the said confessional statement it had been stated that there was no pressure upon the accused and there was neither any police officer nor anybody else within the hearing or sight when the statement was recorded. Therefore, it appears that the accused was put the necessary questions and was given the warning that he was not bound to make any statement and in case any statement is made, the same might be used against him by the prosecution for his conviction. Of course, no question was put by the Magistrate to the accused as to why he wanted to make a confessional statement. It also appears from the evidence of the Magistrate, Shri Bharat Bhushan (Ex. PW 11) that the confessional statement was made voluntarily by the accused. So the defect in recording the statement in the form prescribed is cured by Section 463 of the Code of Criminal Procedure. It is indeed appropriate to mention in this connection that the defect in recording the statement in appropriate form prescribed can be cured under Section 463 of the Code of Criminal Procedure provided the mandatory provisions of Section 164(2) namely explaining to the accused that he was not bound to make a ....
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....f the mandatory provision of Section 164 (2) had been complied with. 94. A similar question arose before the Supreme Court in re State v. Nalini (1999) 5 SCC 253 while examining the case relating to the assassination of former Prime Minister of India, Rajiv Gandhi by a human bomb while dealing with the death reference of accused Nalini the Supreme Court would examine the confession of Nalini who had denied in her statement under section 313 Cr.P.C. that a confession was voluntary. The Supreme Court would observe:- "400. Coming to the confession of Nalini (A-1), it was submitted by Mr. Natarajan that she, in her confession, referred to Murugan (A-3), Arivu (A-18), Bhagyanathan (A-20) and Padma (A-21) among the accused now arraigned before the Court. She also referred to Jayakumar (A-10) though he comes in the picture after the act of assassination had been completed. Nalini (A-1) who was present at the scene of the crime is the sole surviving accused of the group that had gone to Sriperumbudur in furtherance of the conspiracy to assassinate Rajiv Gandhi. Nalini (A-1) has denied in her statement under Section 313 of the Code that her confession was voluntary. She said blank papers....
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....W 52), who recorded the confession, merely stated in the examination-in-chief that his not getting the signatures of Nalini (A-1) was an omission. No explanation has been given as to why the omission occurred and it was not for the accused to bring out in cross-examination as to the circumstances under which signatures of Nalini (A-1) could not be obtained at the end of the confession. It is also not relevant if each page of the confession is signed, signature has to be put on the last page at the end of the confession and only then endorsement by the police officer recording the confession has a meaning. Both the signatures at the end of the confession and the certificates of the police officer must go together. Rule 15 provided an assurance that confession recorded is as per prescribed provisions. In support of the submission Mr. Natarajan referred to a Constitution Bench decision of this Court in Kartar Singh v. State of Punjab [(1994) 3 SCC 569 : 1994 SCC (Cri) 899] where this Court considered constitutional validity of the provisions of Section 15 of TADA and Rule 15 of the TADA Rules. It was submitted that the constitutional validity of TADA was upheld because of the safeguar....
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....ry confession recorded under Section 15 should be sent forthwith either to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and the Magistrate should forthwith forward the recorded confession received by him to the Designated Court taking cognizance of the offence. 260. For the foregoing discussion, we hold that Section 15 is not liable to be struck down since that section does not offend either Article 14 or Article 21 of the Constitution. 261. Notwithstanding our final conclusion made in relation to the intendment of Section 15, we would hasten to add that the recording of a confession by a Magistrate under Section 164 of the Code is not excluded by any exclusionary provision in the TADA Act, contrary to the Code but on the other hand the police officer investigating the case under the TADA Act can get the confession or statement of a person indicted with any offence under any of the provisions of the TADA Act recorded by any Metropolitan Magistrate, Judicial Magistrate, Executive Magistrate or Special Executive Magistrate of whom the two latter Magistrates are included in Section 1....
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....typist memorandum from the rough notes, destroyed them. The Board then noticed: "He produced, and there was put in evidence, a memorandum, called a note, signed by him, containing the substance but not all of the matter to which he spoke orally. The note was signed by him and at the end, above the signature, there was appended a certificate somewhat to the same effect as that prescribed in Section 164, and in particular stating that the Magistrate believed that 'the pointing out and the statements were voluntarily made'. But it was not suggested that the Magistrate, though he was manifestly acting under Part 5 of the Code, either purported to follow or in fact followed the procedure of Sections 164 and 364 (old Code). Indeed, 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 refuse to sign. The Magistrate offered no explanation of why he acted as he did instead of following the procedure required by Section 164." 403. The Board did not express any opinion in this case on the question of the operation or scope of Section 533 (old) corresponding to Section 463 of the present C....
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....d care and formality. He also did not record the certificate as required by Section 164 and also failed to obtain the signature of the accused. The Magistrate subsequently went into the witness box for the prosecution and deposed that the confession was made by the accused voluntarily. In these circumstances the High Court held that the evidence of the Magistrate was inadmissible and the confession recorded by him was ineffective. 404. In the case before the Bombay High Court contention was that "as per the provisions of sub-section (4) of Section 164 CrPC it is mandatory for the Magistrate, after recording the confession, to obtain the signature of the accused thereon and as in the present case the learned Judicial Magistrate failed to obtain the signature of the accused on the confession recorded by him, that confession could not be admitted in evidence and the defect could not be cured by invoking the provisions of Section 463 CrPC". This contention was upheld by the High Court relying on the aforesaid two decisions, one of the Privy Council and the other of the Nagpur High Court. We do not think the view taken by the Bombay High Court and the Nagpur High Court is correct.....
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....or them to reflect if they wanted to make confession. Merely because confession was recorded a day or so before the police remand was to expire would not make the confession involuntary. No complaint was made before the trial court that confession was the result of any coercion, threat or use of any third-degree methods or even playing upon the psychology of the accused." 95. In re: Nalini (supra) the Supreme Court would hold that the view taken by the Bombay High Court in Abdul Razak Shaikh case (1988 Cri.LJ 382) and the Nagpur High Court in Neharoo Mangtu Satnami v. Emperor (AIR 1937 Nag. 220) relying upon the decision of the Privy Council in re: Nazir Ahmed (supra) is not correct. The Bombay High Court had 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 also held that this omission cannot be cured by examining the Magistrate under Section 463 of the Code. The Bombay High Court also relied on a decision of the Nagpur High Court relying upon the decision i....
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....ficer was available even within the precincts of the hospital. On such fact situation the Supreme Court would hold that the said defect is cured by section 463 as the mandatory requirement provided under section 164 (2), namely, explaining to the accused that he was not bound to make a statement and if a statement was made the same might be used against him had been complied with and the same is establish from the certificate appended to the statement and from the evidence of the Magistrate. It was in this context that the Supreme Court distinguished the judgment of the Judicial Committee in re: Nazir Ahmed (supra) and observed: "18. Turning now to the next submission of learned counsel appearing on behalf of the accused as to the judicial confession (Ext. 187) made by A-1 before PW 62, it would be useful to refer to the relevant provisions in the Criminal Procedure Code that deal with the recording of a judicial confession by a Judicial Magistrate and see whether the judicial confession recorded by PW 62 of A-1 is according to the procedure prescribed by these provisions or whether any violation thereof has been made by the Magistrate while recording it. The relevant sections in....
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....d to be unfit to make any statement. In our view, the prosecution rightly sent for PW 62 for recording dying declaration of A-1. 22. Before adverting to the three decisions relied upon by the learned counsel for the accused, we shall first analyse the judicial confession (Ext. 187) recorded by PW 62 and see whether it has been recorded according to the procedure prescribed by Section 164. 23. On 24-8-2001, upon receipt of an application moved by Superintendent of Police for recording dying declaration of A-1 by a Magistrate, DSP Man Singh, who partly investigated the case, approached the Chief Judicial Magistrate, Hissar, who, in turn, marked the said application to Pardeep Kumar, PW 62. On its presentation to PW 62 by DSP Man Singh at 10 p.m. the same day, both PW 62 and DSP Man Singh left for Janta Hospital, Barwala. After reaching the hospital and before recording the statement, PW 62 first sought opinion of Dr. Anant Ram (PW 32) as to the fitness of A-1 to make the statement. As in the opinion of PW 32, 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 whi....
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....y, 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 has been complied with and the same is established from the certificate appended to the statement and from the evidence of PW 62. Therefore, in the light of our discussion above, we have no hesitation in holding that the judicial confession (Ext. 187) having been recorded according to the procedure set out in Section 164 read with Section 281 and the defect made while recording the same being curable by Section 463, it is admissible in evidence. 24. We now advert to the decisions relied upon by the learned counsel appearing on behalf of the accused. In Nazir Ahmad [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)] the accused, who was charged with dacoity and murder, was convicted on the strength of a confession said to have been made by him to a Magistrate of the class entitled to proceed under the provisions of Section 164 relating to the recording of confession. The confession 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 evi....
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....ven in the confessional statement has not caused prejudice to the accused in her defence and is a defect that is curable under Section 463. 25. In Preetam [(1996) 10 SCC 432 : 1996 SCC (Cri) 1343] the accused was arrested on 17-6-1973 and when produced before the Magistrate on the following day he was sent to police custody, where he remained until 22-6-1973 and, thereafter he was sent to judicial custody. Upon being produced before a Magistrate on 25-6-1973 for recording his confession, he was given two hours' time to reflect. After cautioning the accused that he was not bound to make a confession and that if he did so, it might be used against him, the Magistrate went on to record his confession. Failure of the recording Magistrate to put questions to the accused to satisfy himself that the confession was voluntary so as to enable him to give the requisite certificate under sub-section (4) was termed by this Court as flagrant violation of the provisions of Section 164(2) and in utter disregard 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 be....
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....make a confession and that if he did so, it might be used against him, nor did he put any question to him to satisfy that the confession was being voluntarily made although, an endorsement to this effect was made by him in the certificate that was appended to the confessional statement. This Court, while setting aside the conviction and sentence recorded against the accused under Section 302 IPC, held that the Special Court was not at all justified in entertaining the confession as a voluntary one, observing that mere endorsement would not fulfil the requirements of sub-section (4) of Section 164. This case too has no application at all to the facts of the present case for two reasons-firstly, in this case too the appellant remained in police custody for a week and secondly, it is a case in which the recording Magistrate neither explained to the accused that he was not bound to make a confession and if he did so, it might be used against him nor satisfied himself upon questioning the accused 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....
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.... and taking note of three unusual features qua the confession recorded, namely, (1) that the accused was kept in the police custody even after the substantial part of the investigation was over; (2) that the confession so recorded did not indicate as to how much time the accused was given by the Magistrate before they made their confessions, and (3) that the Magistrate who recorded the confession had taken part in assisting the investigation by attesting recovery memos in two cases, the confessional statement of the accused was excluded from consideration. It was observed at SCR p. 764 thus: "Having regard to these features of the case we are not prepared to uphold the finding of the High Court that the confessions made by the appellants can be safely treated to be voluntary in the present case. If the confessions are, therefore, excluded from consideration it is impossible to sustain the charge of murder against either of the two appellants. In a 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....
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.... 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." 33. In the light of the above discussion, we are of the view that Ext. 187 is admissible, having been recorded according to the procedure prescribed under law and the same is voluntary and truthful." 97. In re: Ram Singh (supra) the Supreme Court would find that the certificate appended to the confession would show that it was voluntary. The Supreme Court would further notice that the Magistrate had failed to record the question that was put by him to the accused whether there was any pressure on her to give a statement. The Supreme Court would also notice that the said Magistrate had stated in his evidence that he had asked the accused orally whether she was under any pressure, threat or fear and he was satisfied that he was not under any pressure from any 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 i....
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....f confession recorded under Section 15 of the TADA Act." 99. Section 3 of the Oaths Act, 1969 reads thus: "3. Power to administer oaths.-(1) The following courts and persons shall have power to administer, by themselves or, subject to the provisions of sub-section (2) of section 6, by an officer empowered by them in this behalf, oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law, namely:- (a) all courts and persons having by law or consent of parties authority to receive evidence; (b) the commanding officer of any military, naval, or air force station or ship occupied by the Armed Forces of the Union, provided that the oath or affirmation is administered within the limits of the station. (2) Without prejudice to the powers conferred by sub-section (1) or by or under any other law for the time being in force, 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....
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....mself, or, in the case of a Bench of Judges or Magistrates, by any one of the Judges or Magistrates, as the case may be.'' 102. Section 7 of the Oaths Act, 1969 reads thus: "7. Proceedings and evidence not invalidated by omission of oath or irregularity.- No omission to take any oath or make any affirmation, no substitution of any one for any other of them, and no irregularity whatever in the administration of any oath or affirmation or in the form in which it is administered, shall invalidate any proceeding or render inadmissible any evidence whatever, in or in respect of which such omission, substitution or irregularity took place, or shall affect the obligation of a witness to state the truth. " 103. Section 8 of the Oaths Act, 1969 reads thus: "8. Persons giving 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/solemnl....
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....ds "other than a confession" within brackets after the words "any statement" is to limit the mandate of sub-section (5) of Section 164 Cr.P.C. to recording of statement only and not confessions. Therefore, it is also limiting the requirement of sub-section (5) of Section 164 Cr.P.C. to the recording of statements of witnesses only other than confessions. In other words the requirement of administering oath is limited to witnesses only and not to an accused making a confession. 109. In the Criminal Procedure Code, 1893, as it stood before the amendment of 1973, the relevant provision was section 164(2); it read as follows: Section 164(2): "such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in 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 ....
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....by witness in Court on oath in presence of accused whereas statement recorded under Section 164 is not substantive evidence. 114. Under the scheme of Section 164 Cr.P.C. confessions by an accused persons and statements of persons can be recorded. Whereas confessions are required to be recorded in the manner provided by sub section (2), (3) and (4) of Section 164 and Section 281 Cr.P.C. statements other than confession are required to be recorded in the manner provided under sub-section (5) of Section 164 Cr.P.C. A reading of Section 164 (2), (3) and (4) with Section 281 Cr.P.C. makes it amply clear that there is no provision to administer oath on an accused person. The Magistrate 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 th....
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....t is vital to examine the effect of administration of oath. Under Section 3 of the Oaths Act, 1969 all Courts and persons having by law or consent of parties authority to receive evidence shall have power to administer oaths and affirmations in discharge of the duties imposed or in exercise of the powers conferred upon them by law. Thus, as a natural corollary a Magistrate while recording a confession would not be recording evidence and thus would not have the necessary power to administer oath on accused under Section 3 of the Oaths Act, 1969. Under Section 4 of the Oaths Act, 1969 oath or affirmation shall be made by 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 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 ente....
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....pecific bar under Section 4 (2) of Oaths Act, 1969 against administration of oath to an accused person in a criminal proceedings unless he himself is a defence witness is based on well founded criminal jurisprudence that accused cannot be forced to make any incriminatory statement on oath which would prejudice his defence. Under the Indian system of criminal jurisprudence the burden of proof is always on the prosecution except of course where the law creates a specific exception. Thus, even under the scheme of the Oaths Act, 1969 it is amply clear that administration of oath to an accused, unless he is being examined as a witness for the defence, is prohibited. The mandate 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 o....
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....would not render the confession inadmissible and the defect is cured under Section 463 Cr.P.C. (viii) Under Section 463 Cr.P.C. evidence could be led as to why the provision of Sections 164 and 281 Cr.P.C. could not be complied with while recording the confession. (ix) When the voluntariness of the confession recorded by the Magistrate is established the failure or the defect or the irregularity or the error of the Magistrate in recording the said confession in the manner provided by Section 164 and 281 Cr.P.C. is curable under Section 463 Cr.P.C. 119. It was argued before us that Section 463 Cr.P.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 the....
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....whether the confession or other statement was "duly made" after giving the necessary warning and after putting the required questions under Section 164 and (b) whether the confession or other statement, duly made, was properly recorded. Section 533 of the old Cr.P.C would not apply in the first case because to do so would be to defeat the very object of Section 164 and 281 Cr.P.C. It is only the second kind of defect i.e. defects in recording the confession or other statement, duly made, that was curable. Section 463 Cr.P.C. thus sought to clarify that the evidence given should 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 meticulous....
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....accused while recording confession. To allow the said prohibition and illegality to be cured under Section 463 Cr.P.C. would perhaps expose the accused to self-incrimination which may not always be voluntary if the accused were to believe that having been administered oath he is now compelled to self-incriminate. We thus hold that not only administration of oath on an accused while recording his confession is prohibited, unlawful and illegal but also that the said act cannot be cured under Section 463 Cr.P.C. Administration of Oath upon an accused while recording confession 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 th....
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....he so chooses as held by the Supreme Court in re: P.N. Krishna Lal v. Government of Kerala 1995 Supp. (2) SCC 187. To cure the irregularity under 463 Cr.P.C. the Court is required to take evidence in regard to such non-compliance and be 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. Whether administration of oath on an accused person compelled the accused to incriminate himself is a question only the accused can answer. 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 Ac....
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....egal. It has been held that administering oath on an accused infringes the fundamental guarantee against self-incrimination under Article 20 (3) of the Constitution of India. The Supreme Court has in no uncertain terms held that no prejudice may be proved for enforcing fundamental right. Violation of fundamental right itself renders the impugned action void. The Supreme Court has also held that compulsion must be understood to mean "duress" and that compulsion in this sense is a physical objective act and not the state of mind of 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 h....
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.... administering oath upon him to extract truth. Section 463 Cr.P.C. permits evidence of non compliance of Section 164 and 281 Cr.P.C. to be taken to examine if it has injured the accused. It does not permit violation of a fundamental right guaranteed under Article 20(3) of the Constitution of India to be cured. It must always be remembered that under the doctrine of Constitutional supremacy the Constitution is the paramount law to which all other laws must conform. The Constitution of India must ever remain supreme and deemed written 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 b....