Confessions made to a Magistrate during an investigation are inadmissible unless they are recorded in accordance with the provisions of Section 164 of the CrPC.

Imam, J.

1. There are two petitioners, namely, Eishi alias Rishi Padda Dutta and Thakur Kishku. They were tried and convicted by Mr. J. N. Sinha, Magistrate, first class, at Jamtara under Section 7, Essential Supplies (Temporary Powers) Act, 1946, and sentenced to undergo rigorous imprisonment for six months each. They preferred an appeal against their conviction and sentence to the court of the Sessions Judge at Dumka. The learned Sessions Judge maintained the sentence, but altered the conviction under Section 7 of that Act to one under Section 8 of the same Act.

With the exception of this modification, the appeal was dismissed. Against the order of the learned Sessions Judge dismissing these petitioners appeal, the petitioners moved this Court in revision.

2. The prosecution case, in short, is that on 15-2-1952 at about 7 p.m. the learned Sub-divisional Magistrate of Jamtara, namely, Sri As Haseeb was returning in a jeep from Maithon dam and was crossing the Barakar river. It is alleged that he found two carts proceeding towards the said river and that each cart contained four bags of rice, each bag weighing about two maunds. The prosecution case further is that Khare Kisku and Thakur Kisku were the cartmen and that Khare Kisku had given put when questioned by the Sub-divisional Magistrate that the bags containing rice were loaded on his cart and that the bags belonged to Rishi Dutta of Panjania.

Thakur Kisku also gave out that the rice in the bags in his cart belonged to Haripada Dutta of Panjania village. These cartmen alleged that these bags of rice were being taken to one Charan Maira of village Bhagabandh in the district of Manbhum which is on the other side of the river. It is alleged that at the time there was inter-district ban on movements of rice at certain places. That being so, the said bags of rice were seized by the Sub-divisional Magistrate. The Sub-divisional Magistrate not being content with this questioned Rishi Dutta at Panjania, and he too admitted that he had sent the quantity of rice in payment of the Deorhia loan taken by him from the person, mentioned above, of Bhagabandh in Manbhum District. Thereafter the said Sub-divisional Magistrate submitted a report on the basis of which the learned Magistrate Mr. J. N. Sinha took cognizance.

Khare Kisku, Thakur Kisku and Rishi Dutta were tried in the court below jointly along with Haripada Dutta concerning the offence under Section 7, of the Essential Supplies (Temporary Powers) Act, 1946. Haripada Dutta was acquitted and the remaining accused persons were convicted.

3. The defence case on behalf of Rishi Dutta was that the rice in question did not belong to him, nor did he cause it to be carried to the other side of the" river in the district of Manbhurn. Khare Kisku and Thakur Kisku, however, admitted that they were carrying the rice in the carts and further stated that the rice belonged to a man of Bhagabandh who had obtained it in village Panjania and that they had been asked to carry the rice upto Birgaon Ghat on the river Barakar and in the Sub-division of Jamtara, alleging, at the same time that from that place the said rice would be carried to the other side of the river by labourers on their heads.

4. The first point raised before us was that the confessional statements were not admissible in evidence and that being so, the conviction based mainly on the confessions should be set aside as also the sentence. It will be necessary to consider the case of the petitioner Rishi Dutta separately from the case of the petitioner Thakur Kisku. The first point to be determined is whether the confessional statements made before the Sob-divisional Magistrate were one under Sec.164 or 364 of the Criminal P.C. or not.

In order that these confessions to the Magistrate to be treated as statements coming under Sec.164 of the Criminal P. C., it is necessary for the prosecution to prove that the said confessional statements were in the course of investigation or