Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1936 Supreme(SC) 38

PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ROCHE, SIR JOHN WALLIS, SIR LANCELOT SANDERSON, SIR SHADI LAL, AND SIR GEORGE RANKIN.
NAZIR AHMAD - Appellant
Versus
THE KING-EMPEROR - Respondents
On appeal from the High Court at Lahore.
Decided On : June 16, 1936.

Advocates:
Solicitors for appellant:Hy. S. L. Polak & Co. Solicitor for respondent: Solicitor, India Office.

When a statute prescribes a specific procedure for a magistrate to record a confession (Section 164 CrPC), that procedure must be strictly followed. Oral evidence of a confession not recorded in the prescribed manner is inadmissible, as the statutory safeguards are mandatory.

Headnote:(A) Code of Criminal Procedure, 1898 - Sections 164 and 364 - Recording of confessions - Admissibility of oral evidence - Where a magistrate is empowered to record a confession under Section 164, but fails to follow the prescribed procedure, oral evidence of such confession given by the magistrate is inadmissible - The legal principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, applies to the recording of confessions by judicial officers - Safeguards provided under Sections 164 and 364, including warnings to the accused and certification of voluntariness, are mandatory and cannot be bypassed by allowing oral testimony.

(B) Code of Criminal Procedure, 1898 - Section 162 - Distinction between police officers and magistrates - Magistrates acting in an official capacity are bound by the statutory rules of procedure for recording confessions to maintain judicial integrity and avoid being relegated to the position of ordinary witnesses for official acts.

Facts of the case:
An accused was convicted of dacoity with murder primarily based on a confession made to a First Class Magistrate. The magistrate did not record the confession according to the procedure laid down in Section 164 of the Code of Criminal Procedure. Instead, the magistrate provided oral evidence during the trial and produced a memorandum of the confession. The trial court and the High Court admitted this evidence, leading to the conviction and a sentence of death.

Findings of Court:
The oral evidence of the magistrate regarding the confession was inadmissible because the mandatory procedure for recording confessions under the Code of Criminal Procedure was not followed.

Issues: Whether oral evidence of a confession alleged to have been made to a magistrate, and memoranda made by him, are admissible in trial when the provisions of Section 164 of the Code of Criminal Procedure regarding the recording of confessions have not been complied with.

Ratio Decidendi: The court held that Sections 164 and 364 of the Code of Criminal Procedure prescribe a specific and minute procedure for recording confessions to ensure voluntariness and protect the accused. Following the legal principle that when a power is granted to perform an act in a specific manner, it must be performed in that manner or not at all, any confession not recorded as per the statutory requirements is inadmissible. Allowing oral evidence would render the statutory safeguards idle and inappropriately place judicial officers in the role of witnesses for official acts.

Result: Appeal allowed and the conviction of the appellant set aside.

Judgement Key Points

What is the admissibility of oral confessions made to a magistrate who did not record under s. 164?

What is the proper construction and interaction of sections 164, 364, and 533 in admitting such confessions?

What are the consequences for conviction when a magistrate’s confession is not recorded under s. 164, and what is the effect of s. 533 on admissibility?

Legal Category Hierarchy

Judgement

Appeal (No. ii of 1936) in forma pauperis, by special leave, from a judgment of the High Court (October 10, 1935) which affirmed the judgment of the Additional Sessions Judge of Lyallpur (April 16, 1935) convicting the appellant of dacoity with murder under s. 396 of the Indian Penal Code and sentencing him to death.

The main question arising on this appeal was whether, when the provisions of s. 164 of the Code of Criminal Procedure regarding the recording of confessions have not been complied with by a magistrate empowered to record confessions under that section, oral evidence of a confession alleged to have been made to him might be given by such magistrate, and memoranda made by him of the confession exhibited, on the trial of the person said to have made the confession.

The facts and the material provisions of the Code of Criminal Procedure appear from the judgment of the Judicial Committee.

The Additional Sessions Judge, acting on the alleged admissions, found the appellant guilty.

On appeal, the High Court (Young C.J. and Monroe J.) said that the confession had not been recorded under s. 164 of the Code of Criminal Procedure, but that the magistrate was called and gave evidence in the Sessions Court, and that " it has long been held in this Court that evidence of this nature is admissible,” and that " we are therefore satisfied that all the accused have been properly convicted on their own confessions."

1936. May 15, 18, 19. Sidney Smith for the appellant.

Dunne K.C. and Wallach for the Crown.

[The argument and the relevant authorities appear from the judgment of the Judicial Committee.]

In addition to the cases referred to in the judgment the following authorities were also cited in the course of the argument Partap Singh v. The Crown (( 1925) I. L. R. 6 Lah. 415.); Vellamoonji Goundan, In re (( 1931) I. L. R. 55 M. 711.); Arunachala Reddi, In re (Ibid. 717.); Barindra Kumar Ghose v, Emperor (( 1909) I. L. R. 37 C. 467.) ; Emperor v. Gulabu (( 1913) I. L. R. 35 A. 260.); Emperor v. Deo Dat (( 1922) I. L. R. 45 A. 166.); Queen-Empress v. Venkataramanna (( 1899) I. L.

R. 23 B. 223.); Ramai Ho v. King-Emperor (( 1924) I. L. R. 3 Pat. 872.) ; Norendra Nath Sircar v. Kamalbasini Dasi (( 1896) L. R. 23 I. A. 18, 26.) ; Kheman v. The Crown (( 1924) I. L. R. 6 Lah. 58.) ; Karam Singh v. The Crown (( 1934) I. L. R. 16 Lah. 454.); and Emperor v. Sidheshwar Nath . (( 1933) I. L. R. 56 A. 730.)

June 16. The judgment of their Lordships was delivered by

Lord Roche. This is an appeal in forma pauperis, by special leave, from a judgment of the High Court of Lahore, dated October 10, 1935, which affirmed a judgment of the Additional Sessions Judge of Lyallpur, dated April 16, 1935, convicting the appellant of dacoity with murder under s. 396 of the Indian Penal Code, and sentencing him to death.

The appellant was convicted mainly, if not entirely, on the strength of a confession said to have been made by him to a magistrate of which evidence was given by the magistrate but which was not recorded under s. 164 of the Criminal Procedure Code. It was not contended before their Lordships that the conviction could be supported if the evidence of the confession was inadmissible. Nor was it disputed that if the evidence was inadmissible, then, in the circumstances of this case, by well recognized principles laid down by this Board, it would be proper humbly to advise His Majesty to interfere see Vaithinatha Pillai v. The King-Emperor (( 1913) L. R. 40 I. A. 193.), following In re Dillet . (( 1887) 12 App. Cas. 459) Therefore the sole question for decision is whether such evidence was or was not admissible. The answer ultimately depends upon the meaning and effect of certain sections of the Criminal Procedure Code, 1898. The most material sections are in the following terms—

" In Part V.—Information to the Police and their powers to investigate —

157.—(1.) If, from information received or otherwise, an officer in charge of a polic

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