Baldeo Musahar vs Emperor

Agarwala, J.—Pour persons, Bauk Abir Bhagrasan Ahir, Baldeo Musahar (the appellant), and his father-in-law Dallu Musahar, were tried jointly in the Court of the Sessions Judge at Chapra, the first three on charges u/s 395, Penal Code, and Dallu Musahar u/s 412. They were all convicted, Dallu Musahar being sentenced to three years'' rigorous imprisonment, and the remaining accused to seven years'' rigorous imprisonment each. This appeal has been preferred by Baldeo Musahar only. None of the identifying witnesses purport to have identified this appellant as one of those who participated in the dacoity which took place on the evening of 14-2-1945, at the house of Deocharan Pandey in village Khagram Chhapor. The appellant was arrested on 19th February and produced before the Subdivisional Officer on that date when he was remanded to jail. On 21st he is said to have signed a petition addressed to the Subdivisional Magistrate (Ex. 5), admitting that he had participated in a dacoity on 14-2-1945, and that he was anxious to produce before the Magistrate his share of the booty. From the Magistrate''s order-sheet it appears that on 2-3-1945, a petition of the appellant Baldeo Musahar dated 28th February was put up before him, and that he directed the appellant to be produced before another Magistrate, Mr. Shafi, for the purpose of having his confession recorded. Accordingly, the appellant was produced before Mr. Shafi, who recorded in the order sheet that the appellant had no statement or confession to make. What the petition of 28th February was, is not clear because at least one of the dates in the original petition appears to have been tampered with. At the bottom of the petition the date is 21st February, but an endorsement on it forwarding it to the Subdivisional Magistrate now bears date 28th February. The figures "28" appear to be in different ink from the rest of the endorsement and to be written over some other date. No explanation has been tendered with regard to the various dates on the petition, or the reason why the original date of the endorsement was subsequently altered to the 28th. I will, however, assume that Ex. 5 is the petition which was sent to the Sub-divisional Magistrate as the petition of the appellant. When he was questioned about this in the Court of the Committing Magistrate the appellant stated that be wrote it at the instance of the Sub-Inspector of Police, but that he had not taken part in the dacoity. With regard to a durree which had been found in the house of his father-in-law Dallu, he stated to the Committing Magistrate that the durree was his own. Although this petition was the only evidence of any value against the appellant, he was not asked what his explanation with regard to it was when examined by the Sessions Judge u/s 842 at the trial. The first question which the Sessions Judge put to him was: "You have heard the evidence of the prosecution witnesses. Have you anything to state?" It is not surprising that the appellant''s reply was that he had nothing to state with regard to the evidence of the prosecution witnesses, the reason being that none of the prosecution witnesses had stated anything implicating the appellant in the charge. The next question that was put to him was: "Did you commit such an offence?" that is to say, the offence with which he was charged, the charge having been read and explained to him. The appellant''s reply was that he had not committed dacoity, that the durree was his own, that he had kept it at the house of Dallu, but that there was ill-feeling between himself and his father-in-law owing to some misunderstanding about his wife having not been sent to his home. The only evidence that the petitioner is responsible for the petition (EX. 5) is a statement of Tej Pratap Singh (P.W. 16). He is the clerk of the jail in which the petitioner was detained at the time that the petition was sent. This witness says that he read the petition and that Baldeo Musahar admitted it to be correct and put his left thumb mark on it in his presence. The witness does not state who wrote the petition, or at whose dictation it was written, or whether it was written at the request of the appellant, or that the contents were as suggested by the appellant. The petition, of course, is not in the handwriting of the appellant. The evidence of the jail clerk, therefore, does not carry the case of the appellant any further than the petition itself, and that is not very far. The appellant''s admission in the petition that he took part in a dacoity, however, is sought to be corroborated by statements made by his father-in-law Dallu. Dallu was produced before a Magistrate during the course of the investigation to have his confession recorded u/s 164, Criminal P.C. Had the confession of Dallu so recorded been admissible in evidence, it would have provided a very strong piece of evidence against the appellant. As is usual, however, the ignorance or carelessness of the Magistrate who recorded the confession, Mr. Shafi, renders the document inadmissible in evidence. Although this is by no means the first time that this Court has found it necessary to invite the attention of the magistracy to the provisions of Section 164, Criminal P.C., I will do so in some detail once more. Sub-section (3) of Section 164, provides as follows:

A 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.

This Sub-section, therefore, clearly enjoins upon the Magistrate recording a confession the duty of warning the accused in the manner stated in the Sub-section itself, and prohibits the Magistrate from proceeding with the recording of the confession until he has questioned the person making it, and, from the answers given, has satisfied himself that the confession that is about to be made will be a voluntary statement. In the present instance, as in other cases which have been coming to this Court for some time, in the form prescribed for the recording of the confession the space intended for the warning and questions referred to in Section 164(3) contains only a warning. In the space provided for the answer to the questions the only answer recorded is: "I have understood everything, I would voluntarily make a statement." To what question that is an answer does not appear on the record for, as I have already stated, the column intended for recording the questions contains no questions whatsoever, but merely the warning which the Magistrate gave the deponent. There has, therefore, been no compliance with that part of the statute which requires the Magistrate to question the deponent for the purpose of satisfying himself that the statement about to be made will be a voluntary one. The effect of the omission to comply with the requirement has been pointed out by their Lordships of the Privy Council, and, perhaps, if I now quote rather fully from the judgment in which that was done, peradventure it may catch the eye of some one who will induce the Magistrate to comply with the law. The case is that in AIR 1936 253 (Privy Council) , and it is there said:

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, other methods of performance being necessarily forbidden.... Sections 164 and 364 must be construed together on these lines. Consequently, no other procedure than that which is laid down with such minute particularity in the section is permissible. The sections confer powers on Magistrates and delimit them.

The confession of Dallu Musahar not having been recorded in the manner required by the Legislature is not admissible, and, therefore, cannot be used against the appellant. The other corroboration of the statement attributed to the appellant that he took part in the dacoity on the night of 14th February is a statement that his father-in-law Dallu Musahar made when examined u/s 842 at the trial. When asked whether he had committed the offence with which he was charged, namely, dacoity, he said:

I did not commit dacoity. In the month of Katick my son-in-law had kept the durree in my house. The Sub-Inspector of police of Kataya recovered it from my house in the month of Chait. That durree was stolen in a dacoity.

He then identified the durree in question. Now, whether an admission made by an accused person when examined u/s 342, Criminal P.C., is admissible against a co-accused is a point of some nicety on which the High Courts are by no means agreed. But, even if an admission made by one accused when examined u/s 842 is admissible against a co-accused, all that is admissible is the admission. The only admissions that Dallu Musahar made in the answer to which I have referred are that he knew the durree had been stolen in a dacoity and that it had been recovered from his house. The rest of the statement are merely assertions and not admissions. Now, the admissions that the durree was recovered from Dallu''s house and that it was stolen property do not in the least implicate Baladeo Musahar, the appellant, who was not a resident of the house from which the durree was recovered. It is true that Dallu. himself claims the durree as his own, but he does not admit that it was stolen property, and there is no reference to the durree in his petition. There is, therefore, on the record of this case no corroboration of the statement attributed to the appellant in Ex. 5 that he participated in the dacoity, although there would have been such corroboration if the confession of his father-in-law Dallu Musahar had been properly recorded. The result is that the conviction and sentence of the appellant must be set aside.

Das, J.

I agree. I should like to add a few words about the confession of Dallu. Sub-section (8) of Section 164, Criminal P.C., is in three parts. The first part enjoins upon the Magistrate recording the confession the duty of giving certain cautions to the person about to make the confession. The second part contains a prohibition to the effect that no Magistrate shall record any such confession unless upon questioning the person making it, he has reason to believe that it is being made voluntarily. The third part deals with a memorandum which the Magistrate recording the confession has to make to show that he has complied with the first two parts. In the particular case under our consideration, the Magistrate has clearly failed to comply with part 2 of Sub-section (3) of Section 164, Criminal P.C. He had not asked any questions whatsoever of the person about to make the confession, in order to satisfy himself that the person was going to make the confession voluntarily. It is obvious that without asking any questions whatsoever the Magistrate was not in a position to be satisfied that the confession was being made voluntarily; yet in the memorandum the Magistrate states that he is satisfied that the confession was voluntarily made. Therefore, it is not a case where there has been a defect of mere form only, which has caused no prejudice and which can be cured under the provisions of Section 588, Criminal P.C. It is a case where there has been a disregard or violation of the mandatory provisions of Section 164, Criminal P.C., and this makes the confession inadmissible in evidence.

As to the admission made by Dallu in answer to the question put to him under the provisions of Section 342, Criminal P.C., the only relevant admission is that the durree in question was stolen property. This admission of Dallu is, however, considerably weakened by what he had said before the Committing Magistrate. Before the latter, Dallu had stated that he did not know that the durree was stolen property. Therefore, Dallu''s statement has varied from time to time. In such circumstances, one cannot rely on the statement of Dallu, apart from the question if the statement is admissible in evidence against a co-accused u/s 30, Evidence Act, about which there is some divergence of opinion: see Mahadeo Prasad v. Emperor AIR 1923 All. 322, Ganpat v. Emperor AIR 1931 Nag. 169, William Cooper v. Emperor AIR 1930 Bom. 354, Dial Sing v. Emperor AIR 1936 Lah. 337, and AIR 1940 287 (Nagpur) .