Art. 20(3) – Administration of oath to accused in his confessional statement is violative of mandatory provisions of Art. 20(3) of Constitution and S. 281 of Cr.P.C. The learned Magistrate has committed gross illegality in administering oath to each accused before recording their confessional statement. Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.
Citation: 2013(2)ACR1916, 2013(3) ALJ 266., 2013 (81) ALLCC 166
IN THE HIGH COURT OF ALLAHABAD
Decided On: 20.12.2012
Hon'ble Judges/Coram:Rakesh Tiwari and Anil Kumar Sharma , JJ.
1. Challenge in this appeal is the judgment and order dated 10.5.2002, passed by learned Sessions Judge, Lalitpur in S.T. No. 45 of 2001, under section302, 120-B IPC, P.S. Jakhaura, District Lalitpur, whereby appellant Baldeo has been convicted under section 302 IPC and Smt. Deoki alias Devki has been convicted under section 302/34 IPC and each had been sentenced to undergo imprisonment for life. Smt. Deoki @ Devki has further been convicted under section 120-B IPC and sentenced to undergo RI for a period of two years. The facts germane to the appeal are that on 19.3.2001 at about 10.30 a.m. complainant Chhotey Lal son of Mauzi Aharwar resident of Rajpur submitted a written report to the police station Jakhaura, wherein he has stated that his cousin Ramoo son of Daulati aged about 32 years used to go to Khaliyan for guarding the crop near Gulkunda Kua. In the night of 18/19-3-2001 he was at the aforesaid field. On 19.3.2001 at 8.00 a.m. when the complainant reached at the aforesaid Kua, he found that Ramoo is lying dead on the cot. There were injuries on his neck. He has been done to death with axe by some unknown persons in the night. On the basis of this report, case No. 56 of 2001 under section 302 IPC was registered at police station Jakhaura against unknown persons, investigation whereof was taken up by S.O. Sri J.P. Pandey. He reached at the spot and interrogated the complainant there. The inquest on the dead body of the deceased was conducted and in sealed cover it was sent for postmortem examination along with usual papers. He inspected the spot, prepared site plan and seized plain and blood stained earth as also blood stained Kathri, Rassi of the cot, Sira Patti and its legs through memo Ext. 19. Thereafter he interrogated other witnesses. During investigation complicity of accused Baldeo was revealed. On 21.3.2001 accused Baldeo was interrogated and he allegedly confessed to have killed the deceased and on his pointing out blood stained axe used in the crime was recovered. Thereafter the I.O. recovered the blood stained axe, blood stained wearing apparels of Baldeo through Memo Ext. Ka-4. It was also revealed that accused Baldeo was having illicit relations with accused Smt. Deoki and both of them conspired together to eliminate the deceased. Accused Deoki was also arrested and at her instance the old clothes with which blood stains of axe were removed was recovered through Memo Ext. Ka-5.
2. Dr. R.P. Gupta, PW 6 conducted autopsy upon the cadaver of the deceased on 20.3.2001 at 1.30 p.m. He found that 32-years old deceased was having average built body. Rigor mortis had passed of from the neck but partially present over both upper and lower limbs, abdomen was distended, decomposition blisters were present over the lower abdomen and both inguinal region. Genitals swollen, greenish particles at places over lower abdomen, Both eyes were half open. The doctor found the following ante mortem injuries on the person of the deceased:
1. An incised wound 9.0 cm x 2.0 cm x bone deep, over posterior lateral aspect of right side neck, 7.0 cms below right ear, edges clean cut, in which 1.0 cm long tailing was present posterior and underline (SIO) vessels, muscles, vertebrae C-3 spinal cord had blood clots and dried blood. The wound was slightly oblique directing posteriorly and upward;2. An incised wound, 12.0 cms x 2.5 cms x bone deep over posterior lateral aspect of right side neck direction obliquely and slightly upwards and posteriorly, edges of which were clean cut, 1.5 cms tailing present posteriorly. Underlying SIO, vessels, muscles, C-2 vertebrae and spinal cord were cut, 1.0 cm above injury No. 1. Lower SIO of right mandible was also cut. Blood clot and dried blood present over the wound and around.3. An incised wound 5.0 cms x 2.0 cms x muscle deep, overlapping injury No. 2 posteriorly, underlying S.I.O. vessels, muscles were cut obliquely, directed posteriorly and upwards.
In the opinion of doctor the duration of death of the deceased was about 1-1½ day before due to shock and hemorrhage as result of ante mortem injuries.
3. The investigating officer submitted his report to the C.J.M. Lalitpur for recording the confessional statements of both the accused persons. The CJM directed the Special Judicial Magistrate, Sri K.K. Devlia to record statements of the accused persons.
4. On 23.3.2001 Sri K.K. Devlia, Special Judicial Magistrate Ist Class, Lalitpur recorded the confessional statements of accused Baldeo and Deoki @ Devkia, which are being reproduced as under:
(Vernacular matter omitted....... Ed.)
I have explained to Baldev that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and believe that this confession was voluntary made it was taken in my present hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Vernacular matter omitted....... Ed.)
The confessional statement of Smt. Deoki, reads as under:
(Vernacular matter omitted...... Ed.)
I have explained to Smt. Devki that she is not bound to make confession and that, she does so, any confession she may make may be used as evidence against her and I believe that this confession was voluntarily made. It was taken in any presence and hearing and read over to persons making it and admitted by him to be correct, and contains a full and true account of the statement by her.
(Vernacular matter omitted....... Ed.)
5. On 3.4.2001, the investigating officer interrogated Nirman and Suresh and also prepared site plan of the place from where the accused persons got aforesaid articles recovered. Thereafter the case property was sent for examination to the Forensic Science Laboratory. The investigation of the case culminated in charge-sheet against the accused persons.
6. After committal of the case to the Court of Session, charge for the offence punishable under section 302 IPC against accused Baldeo and under section 302/34 and 120-B against accused Deoki @ Deokia were framed. The accused persons abjured the guilt and claimed trial.
7. In support of the charges the prosecution had examined complainant Chhotey Lal PW-1, Hari Ram PW-2, Khoob Chand PW-3, Dr. R.P. Gupta PW-6, Sri K.K. Devlia PW-8, SI Jwala Prasad Pandey PW-9. The prosecution has also tendered in evidence the affidavits of Ramesh Kumar Sharma PW-4, Suresh PW-5 and Shiv Narain PW-7.
8. In their separate statements under section 313 Cr.P.C. both the accused persons have again denied the entire prosecution story. They have also retracted their judicial confession stating that they were beaten by the police and so they have confessed their guilt. Both the accused have denied any recovery stating that the police has fabricated evidence against them. Accused Baldeo has stated that when his statement was being recorded by the Magistrate, the Sub Inspector was standing at the out side gate and had threatened him to confess the guilt. In defence B.D. Pal DW-1 and Khoob Chand DW-2 have been examined.
9. We have heard learned counsel for the parties and perused the entire record of the case carefully.
10. Admittedly there is no direct evidence of the incident and the prosecution case solely rests on circumstantial evidence. The law on circumstantial evidence is well settled, which is as under:
(1) Circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.(2) Those circumstances must be of a definite tendency unerringly pointing towards guilt of the accused.(3) The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else.(4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused but should be in consistent with his innocence in other words, the circumstances should exclude every possible hypothesis except the one to be proved.
The gist of the above proposition is that the facts and circumstances on which the prosecution relies must be fully established. They must be fully and firmly established. It would not be enough to say that a particular circumstance may be possible in a given case. The circumstances, taken cumulatively should form a chain so complete that there is no escape from conclusion that within all human probability the crime was committed by the accused and none else. These facts must lead to one conclusion and one only namely the guilt of the accused and lastly it must exclude all reasonable hypothesis consistent with the innocence of the accused. In other words we must conclude that by all human probability, it must be the accused and the accused only who must have committed the crime.
11. In the instant case following circumstances are appearing against the accused-appellants from the evidence adduced by the prosecution during trial:
(i) that 2-3 months prior to the incident fish was prepared in the house of deceased and Hari Ram PW-2 had gone to take meals. When he reached at the house of the deceased, accused Baldeo was ironing the clothes and accused Deoki was talking to him. She did not serve the food to the deceased in spite of his asking. Then enraged deceased told Hari Ram that he is fed up with Deoki, she does not obey him and follows the commands of Baldeo;(ii) that in the evening of 18.3.2001 Baldeo accused came at the house of PW-1 where his younger brother Suresh was taking food. Accused asked Suresh whether he would take liquor, on which he declined. Thereafter Baldeo took some liquor from polythene packet and sealed with the help of flame of lamp and after taking meals, he left the house;(iii) that on 18.3.2001 at about 10 p.m. accused Baldeo was seen by Hari Ram PW-2 near the culvert carrying axe and he was going towards well of the deceased and when PW-2 asked as to where was he going, he replied that he is going for guarding the field;(iv) that in the night of incident at about 9 p.m. when Suresh PW-5 came out from his house for urination he saw both the accused talking together and Deoki saying to Baldeo to finish the work today;(v) that on 20.3.2001 accused Baldeo made extrajudicial confession before Hari Ram PW-2 and Daru;(vi) that on 21.3.2001 at about 6.30 p.m. accused Baldeo was arrested by PW-9 from his house and on interrogation he confessed to have killed the deceased at the instance of accused Deoki and handed over the axe from his house to the police with which he had killed the deceased. He also gave his blood stained shirt and pant, which he was wearing at the time of incident;(vii) that on 21.3.2001 accused Deoki was arrested at about 8.00 p.m. from her house and before that at about 7.00 p.m. she allegedly confessing her guilt handed over an old cloth with which she had cleaned the blood of axe, with which accused Baldeo had killed the deceased;(viii) that on 23.3.2001 Special Judicial Magistrate, K. K. Deolia PW-8 recorded judicial confessions of both the accused persons.
On perusal of the record we find that circumstances No. (i) to (v) were not put to any of the accused in their respective statements u/S. 313 Criminal Procedure Code. Further accused Smt. Deoki was not confronted with circumstance No. (vii) in her aforesaid statement. The recovery memo Ex. Ka-4 and Ka-5 show that accused Baldeo and Deoki were arrested by the police on 21.3.2001 from their respective residences at 6.30 p.m. and 8.00 p.m. and before arrest accused Baldeo handed over the blood stained axe (weapon of offence) and his shirt and pant having blood stains while Deoki prior to her being taken in custody gave a piece of cloth with which she had cleaned the blood from the axe. Both these arrest and recoveries are quite distinct, but the learned trial Court has framed not only composite but factually incorrect question no. 6, which is as under:
(Vernacular matter omitted....... Ed.)
Asking of such question from the accused in his or her examination u/S. 313 Cr.P.C. defeats the very purpose of provisions of this section. The learned Sessions Judge has placed heavy reliance on these circumstances which were not confronted to any of the accused in their separate statements u/S.313 Cr.P.C. In the case of Basavaraj R. Patil v. State of Karnataka. MANU/SC/0632/2000 : AIR 2000 SC 3214, the Apex Court has observed that where the evidence against an accused consists of circumstantial evidence only, it is of the utmost important that the various circumstances which clinch the issue against him should be put to him and an explanation called for from him. It was further observed that it is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. The object of Section 313 Cr.P.C. is to establish a direct communication between the Court and the accused. If a fact or circumstance in evidence is important against the an accused and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. In the case of Naval Kishore v. State of Bihar, MANU/SC/0659/2004 : (2004) 7 SCC 502 : (AIR 2004 SC 4421), the Apex Court has observed that various items of evidence which have been produced by the prosecution should be put to the accused in the form of question and he should be given opportunity to give his explanation. Such an opportunity given to the accused is part of a fair trial and if it is done in slipshod manner, it may result in imperfect appreciation of evidence. In the case of Nirmal Pasi v. State of Bihar, MANU/SC/0731/2002 : 2003 (1) Cri 244 (246) (SC), the Hon'ble Supreme Court has held that incriminating evidence when not put to the accused in examination under section 313 Cr.P.C., has to be eschewed from consideration. Thus, we find that improper and illegal examination of accused u/S. 313 Cr.P.C. has materially prejudiced them in their defence and the learned Sessions Judge has grossly erred in taking into consideration those circumstances for convicting the accused persons which were not confronted to each of them in statements u/S. 313 Cr.P.C.
12. The learned Sessions Judge has described the alleged judicial confession of the accused persons as most important evidence against them. On perusal of the confessions, we find that they too suffer from material irregularities and illegalities. Section 164 of Code of Criminal Procedure provides guidelines for recording of confessions of accused or statement of witnesses in a criminal case. It reads as under:
164. Recording of confessions and statements.(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any, time afterwards before the commencement of the inquiry or trial:Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.(2) The 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 the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is bear, made voluntarily.(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect.I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.(Signed) A.B.Magistrate(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
13. Learned Amicus Curiae appearing for the appellants has placed heavy reliance on the case of Rabindra Kr. Pal @ Dara Singh v. Republic of India,MANU/SC/0062/2011 : (2011) 2 SCC 490 : (AIR 2011 SC 1436), wherein the Apex Court has summarized the principles for compliance with procedure under Section 164 Cr.P.C. to be followed by the Judicial Magistrate entrusted with the task of recording confessional statement of an accused in a criminal case. In para 64 of the report, the Hon'ble Court has listed the principles as under:
64. The following principles emerge with regard to Section 164 Cr.P.C.:--(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.(iii) A Magistrate should ask the accused as to why he want to make a statement which surely shall go against his interest in the trial.(iv) The maker should be granted sufficient time for reflection.(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.(x) Confession of a co-accused is a weak type of evidence.(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.
14. While elaborating non-compliance of mandates of Section 164 Cr.P.C., learned counsel appearing for the accused cited various instances. The judicial confessions of both the accused were recorded by Special Judicial Magistrate K. K. Deolia PW-8 on 23.3.2001, which have been referred in earlier part of the judgment. Accused Baldeo in his statement under Section 313 Cr.P.C. has stated that the said statement was given by him under threat and duress by police. Both the accused have retracted from their alleged confessions. In order to prove these confessional statements, the prosecution has examined the Magistrate PW-8. Sri Deolia has stated that he had recorded the confessional statements of accused under orders of the CJM in his chambers. He has stated in his examination in chief that before recording statement of Smt. Deoki, he has made her to understand that she is free to make statement; there is no pressure of any one on her and her statement can be read against her. Thereafter he recorded her statement in questions and answers. As regards Baldeo, PW-8 has stated that after completing above formalities he recorded his statement. The statements have been proved by this witness as Ex. Ka-7 and Ka-9. He has further stated that after administering oath he recorded the statements of accused persons. In cross-examination, Sri Deolia has stated that by writing questions he did not write the answer of the accused that they are not giving statement under pressure of any one, but by orally asking questions and satisfying himself, he gave certificate. It means that he did not warn the accused that they were not bound to make confession and that any statement made by him would be read against him. He did not told the accused that they were giving statement before a Magistrate I Class. In his statement Sri Deolia has not stated that the accused persons have gave statements to him of their own free will and there was no pressure by police or any persons.
15. The Magistrate has given a certificate below the statement of the accused as required under Section 164 Cr.P.C. Learned Amicus Curiae has, however, contended that the record does not indicate the basis on which the learned Magistrate had reason to believe that the statement was given voluntarily and there was no pressure on the accused from any side. Before recording confession of an accused under Section 164 Cr.P.C. it is the duty of the Magistrate to satisfy himself that the accused was giving statement voluntarily and for this he has to put certain questions to the accused and from the answers given to the questions, the Magistrate would come to the conclusion as to whether the confession which the accused is going to make would be voluntary or under some duress or inducement. The questioning of the accused before recording confession as to whether it was voluntary is a matter of substance and not a mere formality. A Magistrate should ascertain at the beginning of the statement and not at the end whether the confession made is voluntary. In the instant case before us, from the statement of the learned Magistrate, it is clear that he had not put any question to the accused before making confession, but he had given only warning as has been given in the certificate. It is, therefore, clear that before recording the confession, the learned Magistrate had not at all made any enquiry by putting question to the accused for satisfying himself that the confession made by the accused was voluntary and not under duress and inducement. Further, the learned Magistrate has committed gross illegality in administering oath to each accused before recording their confessional statement. Section 164(5) Cr.P.C. specifically provides that no oath shall be administered to an accused while recording his confession. Administration of oath to the accused in his confessional statement is violative of mandatory provisions of Article 20(3) of the Constitution and Section 281 Cr.P.C. Thus, the Magistrate cannot administer oath to the accused before recording his confessional statement and if he does so, the statement is illegal and should be excluded from consideration.
16. In this case no foundation or basis has been laid by the Magistrate for this Court to judge that the Magistrate had satisfied himself that the confession was made voluntarily and he also did not put questions to the accused as to why he was making confession and he had also not informed the accused that he would not be remanded to the police custody even if he did not confess his guilt. Similar question had arisen before the Hon'ble Supreme Court in a case of Devendra Prasad Tewari Vs. State of U. P. reported in MANU/SC/0076/1978 : 1978 Cri LJ 1614 : (AIR 1978 SC 1544). In that case also the Magistrate who recorded the alleged confessional statement did not put questions to the accused as to why he was making confession and the Magistrate had also not told the accused that he would not be remanded to the police lock up even if he did not confess his guilt. The Hon'ble Supreme Court, therefore, did not rely on the alleged confessional statement. The mere certificate given by the Magistrate as required under Section 164 Cr.P.C. would not, in our opinion, be sufficient.
17. It is noteworthy that the accused were arrested on 21.3.2001 and their 1st judicial remand was granted on 22.3.2001 and the same day an application of investigating officer was put up before CJM wherein request was made to record confessional statements of accused persons. The CJM passed the following order on the two applications submitted by PW-9:
(Vernacular matter omitted....... Ed.)
The order of the CJM does not indicate whether he has enquired from any of the accused whether they are willing to make any judicial confession? B. D. Pal, DW-1 has brought the Gate Book of District Jail, Lalitpur and on its basis he has stated that accused Baldeo and Deoki were admitted in jail on 22.3.2001 at 4.46 p.m. and left the jail for Court on 23.3.2001 at 9.55 a.m. Thus, only about 16 hours time was given to them for reflection and ponder over the situation leading to their confession. In the case of Sarwan Singh v. State of Punjab MANU/SC/0038/1957 : AIR 1957 SC 637, the Apex Court observed that 'Speaking generally, it would be reasonable to insist upon giving an accused person atleast 24 hours to decide whether or not he should make a confession. Where there may be reason to suspect that the accused has been persuaded or coerced to make a confession even longer period may have to be given to him before his statement is recorded.' This circumstance also, in our opinion, creates doubt regarding voluntariness of the confession.
18. Taking all these infirmities together in the retracted judicial confession, we do not propose to place absolute reliance on the said confession. Even if for the sake of argument, it is accepted that the said judicial confession which was subsequently retracted, was voluntary one, (to which we do not agree) conviction cannot be based solely on the said retracted judicial confession, though there appears to be no bar for basing conviction on the retracted judicial confession, but as a rule of prudence which has sanctified itself to the rule of law, the courts to look for corroboration before acting upon and accepting the retracted confession. In the case of Paramananda Pegu v. State of Assam MANU/SC/0696/2004 : 2004 Cri L J 4930 (SC) : (AIR 2004 SC 4197) the Hon'ble Supreme Court has observed that retracted confession cannot be acted upon unless corroborated. The courts have held that apart from the statement being voluntary it should be true and should receive sufficient corroboration in material particulars by independent evidence. What amount of corroboration would be necessary in a case would be a question of fact to be determined by the Court in the light of the circumstances of the case.
19. Now we may examine if the said alleged retracted judicial confession finds corroboration from any other material or circumstances on record. We have already seen that most of the incriminating circumstances appearing in evidence against the accused persons were not put to them in their respective statements u/s 313 CrPC, so, for reasons stated earlier, they are out of consideration. Further the fact which had emerged from confessional statements of the accused that there were illicit relations among them for one year, is not spoken by any of the witness of fact. Accused Baldeo had accompanied the complainant to the police station when he went then to lodge the report. Both of them were found in their respective house after the incident. Their post-incident conduct does not implicate them in the case. They very well knew that there was no eye witness of murderous assault on the deceased, then why they would confess their guilt, if at all they had committed the crime? This riddle remains answered from the evidence led by the prosecution. The alleged recovery of the articles at the instance of each accused is not under Section 27 of the Evidence Act, simply because at the time of their alleged interrogation and recovery they were not in custody of the police.
20. Taking all these facts and circumstances of the case, therefore, we are of the view that the proved circumstances are not at all complete so as to establish that it was the accused and the accused alone who have committed the murder of the deceased. The prosecution has utterly failed to prove that there illicit relations among the accused persons. The judicial confessions made by both the accused-appellants before the Magistrate, which were subsequently retracted cannot undoubtedly be said that the same were made voluntarily without any pressure or duress, The Magistrate has not observed the precautions which were required to be taken by him before recording confession under Section 164 Cr.P.C. and he has violated the provisions of sub-section (5) of this section.
21. For the reasons stated above, therefore, we are not inclined to endorse the finding of the learned Sessions Judge convicting and sentencing the accused persons namely Baldeo and Deoki. The appeal is, therefore, allowed. The order of conviction and sentence is set-aside. The accused persons are in jail. They be released forthwith if not wanted in any other case.
22. We record our appreciation for the able assistance rendered by Mrs. Durga Tiwari who has argued the case for the appellants as Amicus Curiae in this case. She would be paid Rs. 2,100/- by the State within 4-weeks from today.
23. Before parting with the case, we deem it just and proper that certain guidelines in consonance with the provisions of Section 164 Cr.P.C. and the principles laid down by the Apex Court in this regard be issued by the Court for observance by the Judicial Magistrates in the State while confessional statement of any accused is recorded in any criminal case. In instant case we have found that the Chief Judicial Magistrate had directed the Special Judicial Magistrate to record the confessional statements of both the accused-appellants, who had failed to observe the mandate of law. This task should be taken up either by the Chief Judicial Magistrate himself or by the senior-most Addl. Chief Judicial Magistrate, as in the present set up the Special Judicial Magistrate in any district may not be a former member of Judicial Service of the State. Further, the provisions of Section 313 Cr.P.C. are not being followed by criminal courts in its literal sense. The questions are formulated in a very casual manner without mentioning the evidence adduced by the prosecution in support of the charge(s) thereby defeating the very object of the provision of Section 313 Cr.P.C. causing injustice to any of the party in the case. In the interest of justice, we deem it just and proper that this judgment be circulated among all criminal Courts in the State and direct the Registrar General to place it before Hon'ble Chief Justice for obtaining necessary directions from His Lordship. Let certified copy of the judgment be sent to the Court concerned and the Chief Judicial Magistrate, Lalitpur for compliance, which should be reported to the Court in 4-weeks.
No comments:
Post a Comment