Confessions recorded under Section 164 can only be proved by the record itself, and oral evidence of such confessions is inadmissible.

Headnote:
admissibility - oral evidence - confessions - Section 164 - Code of Criminal Procedure - confessions recorded under Section 164 can only be proved by the record itself - oral evidence of confessions is inadmissible - safeguards in Section 164 would be rendered nugatory if oral evidence of confessions was allowed
Fact of the Case:
Raja Ram, a shopkeeper, was murdered in his shop. Three respondents were prosecuted for the murder. The trial court convicted one respondent of murder and the other two of abetment of murder. The High Court acquitted all three respondents. The State appealed against the acquittal.
Finding of the Court:
The only point argued in this appeal was the admissibility of certain oral evidence. The evidence in question was confessions of guilt made to a magistrate and recorded under Section 164 of the Code of Criminal Procedure. The magistrate who recorded the confessions was not specially empowered by the State Government to do so. The trial court admitted the oral evidence, but the High Court held it inadmissible.
Ratio Decidendi: The Supreme Court held that confessions recorded under Section 164 can only be proved by the record itself, and oral evidence of such confessions is inadmissible. The Court relied on the principle that when a power is given to do a certain thing in a certain way, it must be done in that way or not at all. The Court also noted that the safeguards in Section 164 would be rendered nugatory if oral evidence of confessions was allowed.
Result: The Supreme Court dismissed the appeal and upheld the acquittal of the respondents.

Judgment

SARKAR, J. - On March 20, 1959 Raja Ram, a shopkeeper, of Afzalgarh in the State of Uttar Pradesh was murdered by gunshot in his shop. Seven persons including the three respondents, Singhara Singh, Bir Singh and Tega Singh were prosecuted for this murder. The learned Additional Session Judge of Bijnor before whom the trial was held, convicted the respondent Singhara Singh of the murder under S. 302 of the Indian Penal Code and sentenced him to death. He convicted the respondents Bir Singh and Tega Singh of abetment of the murder under S. 302 read with Ss. 120B, 109 and 144 of the said Code and sentenced Bir Singh to death and Tega Singh to imprisonment for life. He acquitted the other accused persons.

2. The respondents appealed from the conviction to the High Court at Allahabad and the State from the acquittal. The High Court had also before it the usual reference for confirmation of the sentences of death. The High Court allowed the appeals of the respondents dismissed the appeal of the State and rejected the reference. The State has now filed this appeal against the judgment of the High Court by special leave. This Court however granted the leave only so fat as the judgment of the High Court concerned the three respondents. We are not, therefore, concerned with the other accused persons and the order acquitting them is no more in question.

3. The only point argued in this appeal was as to the admissibility of certain oral evidence. It is conceded that if that evidence was not admissible, then there is no other evidence on which the respondents can be convicted. In other words, it is not in dispute that if that evidence was not admissible the High Court s decision acquitting the respondents cannot be questioned. It is therefore not necessary to state the facts in detail.

4. Now, the evidence with which this case is concerned was given by a learned magistrate, Mr. Dixit, of confessions of guilt made to him by the respondents and purported to have been recorded by him under S. 164 of the Code of Criminal Procedure. The terms of that Section and certain other sections of the Code on the interpretation of which this case depends are, as follows :

S. 164. (1) Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police-officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial.

(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confession shall be recorded and signed in the manner provided in S. 364, and such statements or confession shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.

(3) A Magistrate shall, before recording any such confession, explain to the person making it that is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect :-

I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B.

Magistrate.

S. 364. (1) Whenever the accused is examined by any Magistrate, or by any Court other than a High Court for a

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1963 Supreme(SC) 200

Confessions recorded under Section 164 can only be proved by the record itself, and oral evidence of such confessions is inadmissible.

Cases Referred (3)