Mack, J.—The two appellants, who incidentally bear the same name, have been found guilty under S 302 I. P. C. of the murder of Sellappa Reddiar, an elderly man in the early hours of the 17th of May 1951 on a pathway leading from Paravoi village to Ariyalur, the nearest centre with a District Munsif's Court and regular lawyers.
The prosecution case is that the 1st accused and the deceased were proceeding' together from their village of Vedakkalur to Ariyalur via Paravoi where they halted for some hours on the night of the 16th of May 1951. They left Paravoi together in the early hours of the 17th of August when about 1½ miles from Paravoi, the 2nd accused with implements for murder and burial by prior arrangement with the 1st accused came on the scene. Sellappa Reddiar was killed on the pathway and then buried about half a furlong away. It was not till the 24th of May, seven days later, that his body was dug up.
Quite apart from the confessions, Exs. P-5 and P-6, there is, therefore, a good deal of evidence both against accused 1 and 2 to prove their participation in this murder. Accused 1's total denial of all the evidence against him and his taking refuge in the unproved assertion that he never left Vadakkalur at all in the company of the deceased reinforces the prosecution case, once the evidence of accused 1's own relations P. Ws. 4 and 5 is accepted. So far as motive is concerned, that animating the 2nd accused is clear cut, solicitude for his sister and the preservation of the property settled on her. The motive so far as the 1st accused is concerned appears to be pure infatuation for Bangaru Ammal, as he had nothing very much to gain himself by killing this old man, who did not, according to the evidence, object to his amorous association with P. W. 2. The motive against the 1st accused is rendered weaker by the existence of P. W. 3 as another paramour of P. W. 2. But it may well be that the 1st accused did not know of this relationship, which P. W. 2 also denied, in the witness box. So far as motive is concerned we are satisfied that the prosecution evidence discloses adequate motive so far as both the accused are concerned.
We now come to the admissibility of the confessions Exs. P-5 and P-6. These are two long statements recorded by a Magistrate empowered to hold inquests under S. 176(1) Cr. P. C. who, in any case mentioned in S. 174 (a), (b) or (c), “may hold an enquiry into the cause of death either instead of or in addition to the investigation held by the police officer and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence. The Magistrate holding such an enquiry shall record the evidence taken by him in connection therewith in any of the manners hereinafter prescribed according to the circumstances of the case.” The Magistrate examined other witnesses at the inquest on oath. When he came to the examination of accused 1 and 2, it would appear that on becoming aware that they were making confessions, he administered no oath to them in correct conformity with S. 342 (4), Cr. P. C. After he completed the statements they were read out to the two accused, who signed them in the usual manner. The statements and confessions were recorded on Police case diary paper.
An extreme but, in our opinion, quite untenable position has been taken that no Magistrate can ever record a confession from an accused person except in strict conformity with S. 164 Cr. P. C. This section empowers all Magistrates of the First Class and any Magistrate of the second class, specially empowered under it to record statements and confessions made in the course of an investigation in a particular manner. This however does not mean that a Magistrate of the second class not empowered under S. 164 Cr.P.C and a Magistrate of the third class can under no circumstances record or give oral evidence of a confession made to them.
The extreme position taken is sought to be founded on what appears to us to be a clear misinterpretation of the Privy Council decision, Nazir Ahmad v. The King Emperor [1936] M.W.N 745. In that case the facts restricted the Magistrate clearly to the confines of S. 164 Cr.P.C The investigating Police took with them a First Class Magistrate and one, therefore, empowered under S. 164 Cr. P. C. to investigate a case of dacoity. The accused in hand-cuffs accompanied the partty in another car. After sending the Police to some distance, the Magistrate deposed that each of the accused pointed places out. He made rough notes of a full confession the convicted appellant made, destroyed them after dictating a memorandum to his typist and gave evidence in court on the basis of the memorandum which apparently also was filed. This was not even read out to the accused and not even signed by him. This was very obviouly a case to which S. 164 Cr P. C. had clear application, the provisions of which were rather blatantly disregarded by the Magistrate. It was in this background of fact that their Lordships of the Privy Council made the following dictum reproduced in the head-note reporting the decision:
“It is a well-recognised rule of construction 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.”
The effect of this decision was that a Magistrate, who was empowered to record a confession under S. 164 Cr. P. C. and grossly violated the requirements of that section, could not ignore such violation and give oral evidence of a confession he heard from an accused person in Police custody in the course of an investigation. This decision was considered by Burn and Stodart JJ. in Nainamuthu v. Emperor [1939] M.W.N 1132. In that case, the accused after killing his concubine, appeared before a Magistrate and made a confession that he had killed her. The Magistrate took down the confession without observing any of the formalities required by S. 164 Cr. P. C. and it was held to be admissible in evidence as a first information of the crime, it was also a statement not recorded “in the course of an investigation” even to attract the operation of S. 164 Cr.P.C
The point for determination before us is really a simple one. In this case, the Magistrate who recorded these confessions could not have proceeded under S. 164 Cr. P. C. as he was not empowered to record confessions in cases to which that section applied. S. 164 is, therefore, for determination of the admissibility of these two confessions, quite irrelevant. The simple point we have to determine is whether this Magistrate who was holding an inquest empowered as he was to hold one under S. 176 (2) Cr.P.C recorded these confessions within the scope of these special powers. This inquest was held by him as “an inquiry into the cause of death” in addition to the investigation held by the Police officers, who were, while the inquest was in progress, making their own investigation. Under S. 176 (1) Cr.P.C the Magistrate shall have all the powers in conducting it which he would have in holding an inquiry into an offence. These powers, in our opinion, include the power of taking down any statement, whether it be a confession or not from any person who knows anything about the cause of death. Under this section, the Magistrate shall record the evidence in any of the manners prescribed by the Code. The only defect in the procedure adopted by this Magistrate holding the inquest appears to be that as soon as he was aware that these two accused were making confessions, he should have recorded their statements in the form of questions and answers as required by S. 364 Cr.P.C We are unable to see any other defect in the procedure adopted by this Magistrate within his powers of holding inquest. Nor can we see how S. 164 Cr. P. C. which specifically empowers certain Magistrates to record statements or confessions under other circumstances can have the effect of destroying the powers of the Magistrate holding an inquest under S. 176 Cr. P. C. In this case the Magistrate could not have acted at all under S. 164 Cr.P.C nor was it necessary for him even to look into the provisions of that section to guide him. Mr. Raghavan has urged that as soon as the Magistrate realised that a confession was being made to him at the inquest, which he was not empowered to record, or even listen to, he should have immediately sent these accused to a Magistrate empowered to record confessions. Any such interpretation of S. 176 (1) Cr.P.C in conjunction with S. 164 Cr. P. C. would reduce the postition of a Magistrate holding an inquest to one of helpless absurdity. In the case of a Police officer holding an inquest on a confession being made before him, he can and does record it nor is he bound, as a Magistrate is, by the procedure prescribed by S. 176 (1) Cr. P. C., but a confession made at an inquest held by a Police officer is unfortunately clearly inadmissible in evidence under Ss. 25 and 26 of the Evidence Act. Where the Magistrate holds the inquest, the position is, of course entirely different.
The only relevant decision amongst many which have been placed before us is a Full Bench decision of the Bombay High Court, Government of Bombay v. Ramnivas Misra I.L.R[1945] Bom. 614. That was a case in which a Coroner appointed under Act IV of 1871, applicable only to Calcutta and Bombay, recorded a confession under S. 19 of the Coroners Act without observing the formalities laid down in S. 164 Cr.P.C and some High Court circulars. In an appeal against an order of acquittal at the High Court Criminal Sessions a Full Bench set it aside and ordered a retrial holding inter alia that the remark of the trial Judge that the Coroner ought to have complied with the formalities of S. 164 Cr. P. C., when he was not in law bound to do so, would amount to a misdirection because it was not improbable that the jury was led to think that the confession was not properly recorded and therefore not voluntary. It is significant in this connection that under S. 20 of the Coroners Act for the purpose of S. 26 of the Evidence Act, a coroner shall be deemed to be a Magistrate. According to S. 26, no confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The Coroner was therefore deemed to be a Magistrate for the explicit purpose of being able to record a confession made to him at an inquest, which could ha proved at a subsequent trial. We can see no difference in the position of a Coroner under the Coroners Act and, a Magistrate holding an inquest under S. 176(1)Cr. P. C. in the matter of recording confessions.
There is also a provision of law which is apt to be completely forgotten in excessive concentration on S. 164 Cr. P. C. and that is S 163 (2) Cr. P. C., which is to the following effect,:
“No Police officer or other person shall prevent by any caution or otherwise any person from making in the course of any investigation under this chapter any statement which he may be disposed to make of his own free will.”
The extreme untenable position based on S. 164 Cr. P. C. would seek to make Magistrates of all persons guilty of a violation of S. 163(2) Cr.P.C by stopping such persons making statements of their own free will by unnecessary cautions, nowhere contemplated by law. If, for instance, the Magistrate holding the inquest had also been a first class magistrate or one specifically empowered to record confessions under S. 164 Cr. P. C. and had in fact acted under this section, and adopted the procedure usually followed in these cases of giving the accused time to reflect after removing him from all police influence without taking any statement immediately from him, he would have acted in direct violation of the positive requirements of S. 176 (2) Cr. P. C. and also from a minor standpoint in violation of S 163 (2) The admissibility of a confession rests fundamentally on its spontaneous and voluntary-nature, and is irrelevant under S. 24 of the Evidence Act, if it appears to have been caused by any inducement, threat or promise having reference to the charge against an accused person proceeding from a person in authority, and sufficient in the opinion of the court to give the accused person reasonable grounds for thinking that by making it, he would gain some advantage or avoid some evil. The type of case to which S. 164 applies is that in which an accused person is produced not at an inquest but in the course of a police investigation, after he has made a confession to the police or has declared his desire to confess while in police custody before a Magistrate. Sarkar in his Law of Evidence (8th Edition) page 241 has an interesting commentary on the effect of the Privy Council decision, Nazir Ahmed…Accused— v. Emperor…. and on the extent to which previous decisions have been affected by that decision. We find ourselves in complete agreement with the following observation of his:
“It may however be observed that S. 164 Cr. P. C. comes into play when during an investigation an accused is formally brought before a Magistrate for the purpose of recording his confession.”
This being in accordance with our opinion, we would like to give it judicial endorsement. We are also in agreement with his further opinion to the following effect:
“Admission of guilt or of an incriminating fact may be made by an accused to a Magistrate in the course of a statement to him on occasions other than when he is so brought for recording his confession and such statements appear to stand at least on the same footing as an extra-judicial confession to a third person or an admission under S. 21.”
The extreme position, which seeks to push the Privy Council decision, Nazir Ahmed v. The King Emperor to logical conclusion on the basis of the head note to which we have referred and one, which in our respectful opinion, their Lordships of the Privy Council never contemplated, would in fact reduce a Magistrate to a far lower level than an ordinary citizen in the matter of deposing to confessions made to him. A confession may be made to a Village Magistrate and be admissible but made to a Third Class Magistrate, it should be unconditionally ruled out, nor should he make any record of it. If made to a First Class Magistrate or one empowered under S. 164 Cr. P. C. whether in his personal or official capacity, he cannot depose to it unless he has recorded the confession in strict conformity with S. 164 Cr. P. C. and produced the document required by law to be reduced to a particular form under S. 91 of the Indian Evidence Act in strict conformity with S 164 Cr. P. C. We have taken the opportunity to dispel with the able assistance of the learned Public Prosecutor to the best of our ability erroneous notions of the interpretation of the decision, Nazir Ahmed…Accused— v. Emperor…. in a manner which we think their Lordships of the Privy Council never contemplated, the observations relied on there having been made in a totally different and particular background to which S. 164 Cr. P. C. was exclusively applicable.
The legal point for determination, a really simple one, can be answered out of the Acts themselves, which create no difficulty. No decision has been placed before us which lays down that a confession before a Magistrate holding an inquest but not empowered under S. 164 Cr. P. C. has been held to be inadmissible. We can only, as we stated supra, find one technical defect in the procedure of the Sub Magistrate, i.e, in his failure to record the confessions of accused 1 and 2 in question and answer form in compliance with S. 364 Cr. P. C. We consider this however in the circumstances of this case a technical defect which is curable under S. 533 (1) Cr. P. C. We do not think that the omission of the Magistrate to put and record preliminary questions to these accused asking them whether they knew anything about the cause of death has injured their defence on the merits. We have no reason to doubt that the result of such questions being recorded would have been the same and that the accused would have made to the Magistrate before the panchayatdars the same confessions they did. There was absolutely no time for these two long detailed confessions, Exs. P-5 and P-6 independently made before the Magistrate and the Panchayatdars, to have been induced in any manner contemplated by S. 24 of the Evidence Act. They are only explicable on the basis of their being substantially true and voluntarily made by these two accused in sudden consternation at the discovery of the corpse and their interrogation by the police. The two confessions have been set out in extenso in the trial court judgment. Except that the 1st accused sought to fasten culpability for the actual attack on the deceased on the 2nd accused and the 2nd accused on the 1st accused, the long confessions are in conformity with the salient facts and evidence in the case. We have no hesitation in finding on the abundant evidence in this case that accused 1 and 2 jointly murdered the deceased and disposed of his body. The learned Sessions Judge has seen fit to pass on the two accused the lesser punishment for a rather curious reason which cannot have the seal of our approval viz., that as there were no eye witnesses to the actual murder, it was not certain from the evidence as to who dealt the fatal blows and played the leading role. With the observation that the appellants have been fortunate in being awarded the lesser sentence, we confirm the convictions and sentence and dismiss the appeals.
We would like to place on record our appreciation of the arguments of Mr. R. V. Raghavan who has appeared for the appellants amicus curiae. Unfortunately existing rules do not permit the payment to him of any remuneration.
Chandra Reddi, J.—I am in general agreement with the conclusions of my learned brother. But I like to add a few words on the admissibility of the two cofessions, Exs. P-5 and P-6 made by the two appellants, having regard to the importance of the question. In the judgment of my learned brother, the contents of these two confessions and the circumstances under which they came to be made are set out. The two documents are very important as the convictions of the appellants to a large extent depend on them. If the confessions are receivable in evidence and if they have been found to be voluntarily made, the guilt of the appellants can be said to have been established beyond reasonable doubt.
Counsel for the appellants contends that these confessions are not admissible in evidence as they were recorded by a Magistrate who was “not empowered under S. 164 of the Code of Criminal Procedure to record statements and confessions in the course of investigation. Although this contention is not altogether without substance, I am afraid I cannot give effect to it. The Magistrate who recorded Exs. P-5 and P-6 did not purport to act under S. 164 of the Code of Criminal Procedure as he was not one of those who was specially empowered to do so under that section and therefore they are outside the scope of S. 164 of the Code of Criminal Procedure. These statements were recorded by the Magistrate at the inquest which be was holding under S. 176 of the Code of Criminal Procedure. My learned brother has adverted to some of the cases bearing on the subject. However I will refer to one decision of the Privy Council, viz., Ghulam Hussain v. King Emperor [1951] M.W.N 610 which in my opinion gives support to our view. There, it was ruled that a statement made to a magistrate which did not amount to a confession being a self-exculpatory one could be used against the maker of it under Ss. 18 to 21 of the Evidence Act. This seems to be an authority for the position that statements of accused falling outside the purview of S. 164 of the Code of Criminal Procedure are admissible as admissions within Ss. 18 to 21 of the Evidence Act. On the principle contained therein I must hold that a statement made to a Magistrate holding an inquest under S. 176 Cr. P. C. is admissible under S. 21 of the Evidence Act. It follows that Exs. P-5 and P-6 are admissible in evidence and can be used against the accused as they fall within the scope of S. 21 of the Evidence Act. In the result I agree that the appeals should be dismissed.
N.T.RAppeals dismissed