Confession recorded u/s 161 Cr.P.C.

The petitioner is an accused standing trial before the Second Additional Sessions Judge, Bangalore. In this revision petition, he has challenged the order passed by the learned Sessions Judge on I.A.No. IV in Bangalore Sessions Case No. 22 of 1967 holding that the confession statement recorded by the Magistrate under section 164 of the Criminal Procedure Code, to be hereinafter called the ‘Code’ is not hit by the proviso to section 13(3) of the Official Secrets Act, 1923, to be hereinafter called the ‘Act’.

The accused is tried for an offence under section 3 of the Act. In the courseof the trial, the prosecution sought admission of the confession statement recorded by the Magistrate of Doddaballapur on 22nd September, 1965, in evidence. Theaccused was arrested on 9th September, 1965, and was produced before the Magistrate on 10th September, 1965. He was remanded to police custody till 23rd September, 1965. He was produced by the police before the Magistrate on 20th September, 1965, with a request to record his confession statement under section 164 of the Code. The Magistrate remanded the accused to judicial custody till 21st September, 1965. When the accused was produced before the Magistrate, he felt that it was necessary to record the confession in open Court and, therefore, remanded the accused to judicial custody with a direction to produce him on 22nd September, 1965. The accused was produced before him on that day and he recorded the confession statement in open Court. Subsequently, the Central Government accorded sanction to lay complaint against the accused.

The short question for decision is whether the confession statement recorded by the Magistrate under section 164 of the Code in this case is inadmissible in evidence.

The answer to this question depends upon the interpretation of the proviso to sub-section (3) of section 13 of the Act. Section 13(3) of the Act reads as under:

“No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the appropriate Government or some Officer empowered by the appropriate Government in this behalf: Provided that a person charged with such an offence may be arrested, or a warrant for his arrest may be issued and executed, and any such person may be remanded in custody or on bail, notwithstanding that such complaint has not been made, but no further or other proceedings shall be taken until such complaint has been made.”

Mr. Devadas contended that the confession recorded by the Magistrate under section 164 of the Code is hit by the proviso to section 13(3) of the Act. His arguments were two fold. Firstly he argued that a Magistrate is prohibited under the proviso to section 13(3) from exercising any general powers under the Code until the complaint is duly made under the Act. Nextly, he argued that if for any reason the Court were to come to the conclusion that the Magistrate can exercise general powers under the Code, such Magistrate is prohibited under the proviso to section 13 (3) from recording a confession under section 164 of the Code which is a solemn judicial proceeding. There is no merit in the arguments advanced by Sri Devadas.

Sri Devadas emphasised the position of law that express provisions made in a special Act override the general principles laid down in the Code. There is no dispute about this proposition of law. This is clear from the provisions of section 5(2) of the Code which read as under:

“All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences”

Sri Devadas invited my attention to sections 11 and 12 of the Act. There is special provision made in the Act with regard to search warrants under section 11. Section 12 of the Act deals with the powers to arr