Wednesday 19 May 2021

Whether Special court should examine the Magistrate who has recorded the confession of the accused for proof of confession?

 b the 164 Cr.P.C. confession statement of the accused:

63. The recording of confession by a Magistrate under Section 164 Cr.P.C. stands on a slightly different footing in view of Section 463 Cr.P.C. The confession of an accused cannot be treated on par with the statement of a witness under Section 164 of the Code. To highlight this aspect, it may be necessary to extract two associated provisions relating to confessions, viz., Section 463 Cr.P.C. and Section 80 of the Evidence Act.

“463 Non-compliance with provisions of Section 164 or Section 281:

1 If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.

2 The provisions of this section apply to Courts of appeal, reference and revision.”

80 Presumption as to documents produced as record of evidence:

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law,and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid,

the Court shall presume—

“that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.”

64. Our experience shows that the Trial Courts are in a State of oblivion as to the two provisions extracted above and as a matter of routine, the Magistrate recording the confession of an accused is summoned as a witness. This has been frowned upon by the Privy Council in Nazir Ahmad (supra) in the following words:

“As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy; it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses insofar as it can be avoided. Sometimes it cannot be avoided, as under S. 533, but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the legislature designed that it should be made available in that form and no other. In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under S. 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates from any obligation to make records under S. 164. In the result, they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. Their Lordships are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.”

Therefore, a Magistrate who had recorded the confession statement of an accused can be summoned as a witness, only if it is found by the Trial Court that there has been an infraction of Section 164 or Section 281 of the Code and not otherwise. The Trial Courts should bear in mind this salutary aspect before unnecessarily summoning a judicial officer and putting him in the witness box at the cost of judicial time.

67. Since there may be a possibility of a Magistrate recording the confession of an accused under Section 164 Cr.P.C. being examined as a witness for infraction of Section 164 or 281 Cr.P.C. we are of the view that it will not be desirable for the jurisdictional Magistrate to record the confession of an accused under Section 164(4) Cr.P.C. This would apply to the Special Courts as well. In other words, though a Special Judge has the power to record the confession statement of an accused, yet, demands of propriety require that he should refrain from recording the confession of an accused in order to avoid the embarrassment of being examined as a witness in that case. We are also aware that the Magistrates come under the administrative control of the CMM/CJM and not under the Special Judges. Therefore, in order to save time, whenever the investigating agency wants the statement of an accused to be recorded under Section 164 Cr.P.C. it should file an application before the CMM/CJM for nominating a Magistrate other than the jurisdictional Magistrate for the purpose of recording such a statement. The investigating agency need not approach the Special Court and obtain a direction from the Special Court to the CMM/CJM for this purpose.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

CRl. O.P. No. 12148 of 2017

Decided on September 15, 2017, [Reserved on: 01.08.2017]

Citation: 2017 SCC OnLine Mad 37658 : (2017) 2 LW (Cri) 345 : (2017) 5 CTC 561 : (2017) 180 AIC (Sum 22) 10

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