Punia Mallah and Others vs Emperor

Ray, J.—These two appeals arise out of the same judgment in which, out of 14 persons on trial, the 5 appellants were convicted u/s 395, Penal Code. In Cri. App. No. 314 there is a single appellant by name Punia Mallah and in Cri. App. No. 346 there are four appellants, namely, Charitar, Bansi, Deyali and Harnandan. The occurrence took place in a thakurbari in village Mehdiganj during the night between 12th and 13th August 1943, at 1 A.M. The village is under the jurisdiction of the police-station Khajekalan which is about two miles from the place of occurrence. During that night there were only two people residing in the thakurbari, namely, Mahanth Deodhari Dass, an old man aged 70, sleeping in a room, and another Ram Lal Gareri, a man aged 50, who was sleeping on the verandah. Now, the dacoits entered inside the Math by sealing over the walls. They were about 18 or 20 in number and were armed with various weapons, bhalas, swords, pistol, daggers and lathis. They woke up Mahanth Deodhari Dass and asked him to show his wealth. He said he had no wealth. Then they threatened him with death. On this he made over the keys and with the keys they opened different rooms. First of all they opened the room of the Thakur, took away the silver mukut of the Thakur, dug certain places in the thakurghar and opened other rooms and took away various things including utensils, clothes, cash, ornaments, cigarette case, dari, blankets and some papers. Then they took the Mahanth into a room, assaulted him with a karauli and left him with a bleeding injury on the chest inside the room and chained the room from outside. During the dacoity Ram Lal Gareri was also pushed inside a room and was being watched till the dacoity was finished. He was also confined in a room by chaining the room from outside. This place is an isolated one and was then partly cut off by the flood water, and the place could be reached only by the help of a boat. Therefore, these two inmates remained confined in the place and only in the early morning Ram Lal Gareri from inside the room heard the sound of one Baburam. He called Baburam, who came-and unchained the door and Eamlal Gareri came out. Going out for the search of the Mahanth, he found the Mahanth confined in a room. He was then released by Ram Lal. The Mahanth was in a very bad condition so he was carried on a khatoli to the police-station where the first information was lodged at about 9-30 A.M.

In the first information report no accused was named, nor was there any subsequent identification of the accused persons at the test identification parade. A list of some articles was given at the time of the first information report and Mahanth Deodhari Dass-further said that his grandson Kishori Pandey had deposited certain articles with him in. the Math and he could give a list of those articles later. The police arrived at the spot and carried on investigation for some time, and getting absolutely no clue, submitted a. final report on 2nd October 1943. Meanwhile certain other dacoities in the neighbourhood were committed and those cases were being investigated. In the course of that investigation on 23rd October 1943, the houses of accused Deyali and P.W. 11, Mt. Tetri, were searched. Prom the person of Deyali a cigarette case with trade mark "Bridgestone" manufactured in Japan was found. On 24th October 1943, the houses of Bansi and Charitar were searched. From the house of Bansi a lota, Ex. IV, was recovered which was later identified to be one of the stolen articles, and from the house of Charitar a tasli which is material (Ex. I) was found which was similarly later identified to be one of the stolen articles. The house of Punia Mallah was searched on 7th Nov. 1943, and from there two articles, namely, a thali and a batlohi, Exs. II and III respectively, were recovered and they were subsequently identified to be-stolen articles claimed by the complainant. On 27th and 28th October 1943, the two appellants Deyali and Harnandan confessed and their confessional statements were recorded by a Magistrate Mr. T.N. Gupta. In the confession of Deyali all the appellants including himself and excepting Charitar, and certain other accused persons, since acquitted by the learned Assistant Sessions Judge were named. But Charitar was named by Harnandan in his confession. Recording of Deyali''s confession was started on 27th October 1943, and could not be finished that day and so it was continued on the next day. On 5th December 1943, the articles seized from the houses of the appellants were identified at the test identification parade held by Mr. Rameshwar Prasad Golwar Honorary Magistrate, 2nd class. On 15th February 1944, 14 people, including the present 5 appellants, were charge-sheeted and put on trial in the Court of the Assistant Sessions Judge, Patna.

The learned Judge in the Court below acquitted 9 people and convicted these five on the evidence of the retracted confessions of the appellants Deyali and Harnandan and on recovery of articles as aforesaid from the houses or from the person of the accused persons. Now, so far as Harnandan is concerned, no article was recovered from his house. His conviction stands on his confession alone and on the confession of Deyali. The principal evidence, according to the learned trial Court, is afforded by the retracted confessions of the two persons. The eye witnesses, Deodhari Dass, P.W. 5, and Eamlal Gareri, P.W. 6, did not identify any of the accused persons at the test identification parade. The Counsel for the defence in challenging the correctness of the judgment of the trial Court has laid stress upon two points, namely, that the confessions cannot be relied upon as having not been recorded in accordance with the imperative provisions of Section 164, Sub-section (3), and for his second contention, he has taken us into the evidence regarding recovery of the articles from the respective accused persons as showing that the evidence does not conclusively establish the possession of those articles by the prisoners, nor that the articles recovered are stolen properties. With regard to the confessions, his criticism is that the warning that is necessary to be given u/s 164, has not been given; secondly, that the learned Magistrate did not put questions to the accused persons concerned to elicit answers which would satisfy him that the confessions were voluntary. Beside these two, there are certain other defects, namely, that in certain paragraphs of the form for recording confession, the names and dates have not been stated. The column which requires to record the name of the persons by whom the accused is brought before the Magistrate for the purpose of recording the confession has not been filled in, and the printed certificate at the foot of the record has also not been signed. It further appears that so far as Deyali is concerned, whatever warning the learned Magistrate gave to him, he gave it on 27th October 1943, and when the accused was again brought before him on 28th October 1943, he did not repeat the warning thinking that this confession was in continuation of the previous record and no further warning was necessary. We have carefully considered these criticisms of learned Counsel for the defence, and agree with him that the defects in the record of the confession are really fatal and make the confessional statements irrelevant for the purpose of proving the guilt of the accused persons.

It has been contended by learned Counsel for the prosecution that in consideration of the evidence given by the recording Magistrate, Mr. T.N. Gupta, it should be held that all the imperative formalities required by law had really been complied with, and the defects, if any, are merely of formal character. Section 164 Sub-section (8), consists of three parts. The first part requires that 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 doe3 so, it may be used as evidence against him. The second part is that no Magistrate shall record any such confession unless, upon questioning the person making it, he has reasons to believe that it was made voluntarily, and the third part is that when he records any confession, he shall make a memorandum at the foot of such record to the effect given in the section. Of these three parts, neither of them, in my view, has been complied with. So far as the memorandum is concerned, there is a printed memorandum at the foot of the record which has not been signed. Therefore, that part also has not been complied with, but that, at best, can be said to be a formal part. Mere non-recording of the memorandum will not vitiate the confession if the provisions of the Section have in fact been complied with and the recorded statement has been read over to the confessor and admitted by him to be correct, and may be cured u/s 533, Criminal P.C., but with regard to the other two, they are of a substantial character and not merely matters of form. Now, by way of warning, the Magistrate told the accused, before he proceeded to put the questions to elicit the statements;

Ham hakim hai. Police ko dhamkane se bahkane se hamare pas tum ko kuch kahaneko zarurat nahi hai. Tumara dil se jo aega ohi biyan karo. Tum jo biyan karoge gawahi men tumara khilaf a sakta hai. Ehi samajhke tum hamare pas biyan karo. Samajhgya?

Now, this Magistrate in his deposition (Ex. A) before the Assistant Sessions Judge, Mr. Tekanath Jha, on 2nd August 1944, said: "I have not given the warning to the accused that he was not bound to make a statement." In the trial Court he wanted to explain it away by spying that he said so because he was asked paibundi, whereas the word he used in his questions to both the confessing accused is "zarurat". We cannot accept it. The Section requires that the Magistrate shall explain to the person making it that he is not bound to make a confession. There is not a single word in the whole of his warning which conveys to the accused the sense that he is not bound to make a statement. What he says is "It is not necessary for you to make a statement at the instigation or under the threat of the police. You say what you think yourself to say." That he is not bound to say anything is not conveyed in any of these expressions. Therefore, in my view, the first part of Sub-section (3) of Section 164 has not been in fact or sub-stance complied with. As to compliance with the second part of the Sub-section, it appears quite clear from the evidence of the learned Magistrate, who recorded the confession, as well as from the record of the confession itself, that he never put any question to any of the accused persons to satisfy himself that he was making the statement voluntarily. This point is well-settled by authorities. According to their Lordships of the Privy Council in AIR 1936 253 (Privy Council) , compliance with the provisions enacted in Section 164(3) is a matter which confers jurisdiction upon the Magistrate to record a confession. Therefore, non-observance of them goes to the very root of the matter. Their Lordships have said:

It can hardly be doubted that a Magistrate would not be obliged to record any confession made to him if, for example, it were that of a self-accusing mad man or for any other reason the Magistrate thought it to be incredible or useless for the purposes of justice. Whether a Magistrate records any confession is a matter of duty and discretion and not of obligation. The rule which applies is a different and not less well recognized rule, namely, 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. Other methods of performance are necessarily forbidden. This doctrine has often been applied to Courts and although the Magistrate acting under this group of Sections is not acting as a Court, yet he is a judicial officer and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to Section 164.

The matter also came to be considered by their Lordships Varma and Meredith JJ. in Emperor v. Kommoju Brahman AIR 1940 Pat. 163. In that case Varma J. has said:

On the explicit terms of Section 164, Criminal P.C., the confession (Ex. A) is inadmissible in evidence. In Bahawala v. Emperor AIR 1925 Lah. 432 it was held that the provisions of Section 164(3), Criminal P.C., as amended, render it incumbent upon the Magistrate who is called upon to record a confession, to explain to the person who is to make it (a) that he is not bound to make a confession at all; and (b) that if he does so, it may be used as evidence against him; and further (c) the Magistrate should record the confession only if upon examination of the person making it he has reason to believe that it will be made voluntarily.

He, further down, says:

In AIR 1936 253 (Privy Council) their Lordships of the Judicial Committee laid down 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; other methods of performance being necessarily forbidden.

In this view of the settled principles of law, it is quite clear that the first part of Section 164(3), which requires a Magistrate recording a confession to give a warning to the accused that he is not bound to make a confession and that if he does so, it may be used as evidence against him, has not been complied with. Therefore, the confession must be held to be bad in law.

With regard to compliance with the second part, I cannot do better than quote the observations of Meredith J. in the same decision Emperor v. Kommoju Brahman AIR 1940 Pat. 163. This part requires that the learned Magistrate should be satisfied after questioning the accused that he was going to make the statement voluntarily. His Lordship said:

The question or questions, whatever the form, must be designed to show whether the accused is making the statement voluntarily. Such questions, for example, might be: ''Are you making your statement as a result of any threat or inducement? Are you making your statement entirely of your own free will and not as a result of anything any one has said to you? What is your motive for making a statement which must incriminate you?'' These are only examples. Others might be thought of. As I have said, the law does not compel any particular questions or any particular form of questions. There must be some question, and some question the answer to which will indicate whether the confession is a voluntary one. Where there was no such question, the Magistrate has no jurisdiction to record a confession, and it will not do to point to some question which may have been asked but was directed to some other end. All this follows from Section 164 itself, which says that in the absence of the question, the Magistrate shall not record the confession. He has no jurisdiction to record as a Magistrate so as to bring into operation the provisions of Section 80, Evidence Act, and, secondly, he has no jurisdiction to record a statement that he has satisfied himself that the confession is voluntary.

In this case, as I have already said, there is absolutely no question pointing to compliance with the second part of Section 164(3). On these grounds these confessions are bad in law and cannot be considered as evidence to bring the charge home against the accused persons. Beside these two, there are certain others, namely, the learned Magistrate did not give sufficient time to the accused to reflect, the time given, according to him, was only 15 minutes nor did he take care to see that from what custody the accused persons came to him, and particularly with regard to Deyali, to what custody was he again sent back on 27th and in what custody he was before he was brought to the Magistrate on 28th. It is further noticeable that on 28th neither any warning was given to accused Deyali nor was any question put to him in order to ascertain whether his statements were being made voluntarily. The learned Assistant Sessions Judge, however, in his judgment has said that because it was in continuation, so further warning was not necessary. In my view, further warning was necessary even on 28th October, and there is some support to this view of mine from the judgment of Meredith J. in the above-mentioned case. In that case the accused was produced the next day after a part of his confession was re-corded on the preceding day, and there the learned Magistrate recording the confession simply put the question: "Do you remember the warning given to you the previous day," and this his Lordship has held was not sufficient compliance with the provisions of Section 164(3). This certainly leads to the conclusion that his Lordship thought that a fresh warning was necessary on the subsequent day even if the men had been warned on the previous occasion. On these grounds the confessional statements must be ruled out.

Then, the question is if the conviction of these persons can rest upon recovery of what are said to be stolen articles; in this respect, I shall deal with the case of each individual accused separately. [After dealing with the case of accused Deyali his Lordship proceeded:] Charitar, as I have already said, has not been named in the confession of Deyali. The evidence against him is the recovery of one tasli (Ex. I), which was recovered from his house by the Sub-Inspector (P.W. 4). The search witnesses Ramsarup Gosain and Phudi Pahalwan have not been examined. Charitar has got his father, and he claims that the tasli belongs to his father. In cross-examination, P.W. 4 admits that Dassain is the name of Charitar''s father. His name has been written on this tasli, and he says: "It is not in my handwriting." He cannot further say which portion of the house was being occupied by Charitar and which portion by other members of the family, and he has kept no note as to from which portion of it this article was recovered. So this sort of possession is not a personal possession at all. Charitar and his father live jointly, ''and his father''s name is written on this tasli which is not claimed to have been written by the Sub-Inspector. In the circumstances, it cannot be said that any guilt can be fixed upon Charitar on account of the recovery of this article from his house. [His Lordship dealt with the cases of the remaining accused and proceeded:] For the reasons given above, I hold that the charges have not been brought home to the accused persons, and they should be acquitted. I, therefore, set aside the order of conviction and sentence''s passed by the trial Court and direct that the appellants be set at liberty forthwith. The appeals are accordingly allowed.

Das, J.

I agree, and would like to add a few observations regarding the two confessions of the appellants Deyali and Harnandan. The main criticism of the learned Counsel for the appellants is that the Magistrate, P.W. 1, who recorded the two confessions, failed to comply with the mandatory provisions of Section 164, Criminal P.C. As far as the confession of Deyali is concerned, he made his confession on two dates, that is, 27th October 1943, and 28th October 1943. The particular dacoity with which we are concerned was mentioned on 28th October 1943, that is, on the second day. The Magistrate who recorded the confession of Deyali, has admitted that he gave no further warning to Deyali on the second day, that is, 28th October 1943. This admission of the Magistrate shows a failure to comply with the mandatory provisions of Sub-section (3) of Section 164, Criminal P.C. That Sub-section requires that a Magistrate shall, be-fore recording any 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. It was, therefore, obligatory on the Magistrate to explain to Deyali on 28th October 1943, that he was not bound to make a confession, and that if he did so, it might be used as evidence against him. Admittedly, the Magistrate gave no such explanation to Deyali on 28th October 1943. In my opinion, this is a fatal defect to the admission of the confession alleged to have been made by Deyali on 28th October 1943. There is a clear and direct authority on this point. Learned Counsel for the appellants has referred to the case in In Re: Harmukhrai Dulichand, . In that case the confession was recorded on 15th and 16th December 1923. The Magistrate did not give any warning to the accused person on 16th December 1923. It was held that the statements made on 16th could not be received in evidence as having been voluntarily made. The facts of the present case are similar to the facts of the case cited above. Therefore, Deyali''s confession made on 28th October 1943, is not admissible in evidence.

Even if the statements made on 28th October 1943, be held to be in continuation of the statements on the preceding day, there is still the defect that the Magistrate, P.W. 1, who recorded the confession of Deyali, did not in fact comply with the provisions of Section 164, Criminal P.C. If the failure to comply with the provisions of Section 164, Criminal P.C., amounts merely to a defect of a formal nature, the defect may be cured u/s 533, Criminal P.C. In AIR 1936 253 (Privy Council) their Lordships of the Judicial Committee were dealing with a case in which the Magistrate had neither acted, nor purported to act u/s 164 or Section 364, Criminal P.C., and their Lordships expressly stated that no question of the operation or scope of Section 533 arose. In the decision of this Court Emperor v. Kommoju Brahman AIR 1940 Pat. 163, referred to by my learned brother, the application of Section 533, Criminal P.C., has been considered. It has been observed that Section 533, Criminal P.C., can cure a defect of formal nature and not a defect of substance. In the particular case under our consideration, the defects which are disclosed by the evidence of the Magistrate, P.W. 1, are not mere defects of form, but are defects of substance.

If the Magistrate, who recorded the confessions, had merely omitted to sign the prescribed memorandum by oversight, the defect might have been cured by giving oral evidence to the effect that the Magistrate had in fact complied with the provisions of Section 164, Criminal P.C. The Magistrate''s evidence shows, however, that he did not explain to the accused persons that they were not bound to make any confession. The Magistrate merely asked the accused persons not to make any confession under instigation or threat of the police. He did not say that, apart from any instigation or threat, the accused persons were under no obligation to make a confession. This failure to comply with the mandatory provisions of Sub-section (3) of Section 164, Criminal P.C., is a defect of substance and not merely one of form. That being the position, the confessions made by Deyali and Harnandan were not admissible in evidence. Excluding the two confessions, the only other evidence against four of the appellants was the recovery of certain articles from them.

The evidence regarding the recovery of those articles has been considered in detail by my learned brother, and I agree with his conclusion that the recovery of those articles does not prove their guilt.