Ray, C.J:— I have had the opportunity a privilege of reading the judgment prepared by my learned brother Narasimham, J. I am in entire agreement with him as to the answers proposed therein & associate myself with all the reasons adduced in support thereof. I also agree with the order of conviction & sentence proposed.

2. In view, however, of the practical importance of the question posed to standardization & stabilization of this branch of law in this State, I propose to add, as given below, some further reasons for my agreement with him. I have, since, seen the judgment proposed by my learned brother Das, J. He agrees with answers proposed. He, however, has added scope further reasons not for the purpose of reinforcing the correctness of the answers but for a different purpose. It seems he should approach the question with a leaning towards admissibility of a confession as a rule leaving it to the accused to be bound thereby to establish the exception by proof of circumstances that would impair its testimonial trustworthiness this approach, if correct, (with which I do not agree) will seldom make any difference in the? practical application thereof, provided the legal safeguards are not disregarded. In criminal law, the accused is entitled to keep mum casting the entire burden on the prosecution to prove his guilt, & that by legally admissible mode of proof. The further reasons that I wish to add will appear from the following paras: Before grappling with the problem, in its direct bearing on the section, I should like to treat the following as the background in which the proposition has to be considered. “Judicial confession” have been authoritatively defined to mean “pleas of guilt on arraignment if made freely by a person in a fit state to plead”. The emphasis is on the words underlined (here in inverted commas). These epithets refer to the state of mind of the accused.

3. “Extra-judicial confessions” have also similarly been defined to mean

“a free & voluntary confession of guilt made by a person accused of a crime, in the course of conversation with persons other than a Judge or Mag seised of the charge against him”.

“The testimonial trustworthiness of the confession” in one case, or, the other, is based upon the presumption that, as a free agent, no man would make a confession against himself if the facts confessed were not true. The law, in all ages, & all times, makes a discrimination in favour of judicial confessions as against extra-judicial ones. With regard to extra-judicial confessions, Blackstone, J. observed:

“Even in cases of felony at common law, they are the weakest & most suspicious of all testimony, very liable to be obtained by artifice, false hopes, promises of favour, or menaces, seldom remembered accurately, or reported with precision, & incapable in their nature of being disproved by other negative evidence”.

4. In this view of the matter, more reliance has always been placed upon a confession reduced into writing either by the prisoner or by someone else & read over to him if it be clearly shown that the confession was a spontaneous & voluntary act of the prisoner. Such a record of confession is always entitled to great weight & consideration. When a confession is proved by a witness, it rests upon his capability of understanding what was said by the prisoner, his competency to remember the very words used, & his fidelity & accuracy in relating them to Ct. & should all be received with very great caution; because, besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, & the infirmity of memory, it should be borne in mind that the mind of the accused is oppressed by the calamity of his situation & that he is often influenced by motives of hope, or fear to make an untrue confession. It should always be borne in mind that the zeal, which generally prevails to detect offenders, & the strong disposition in the person engaged in the pursuit of evidence to rely on slight grounds of suspicion, all tend to impair the value of such confessions.

5. Baron Parke said:

“Too great a weight ought not to be attached to evidence of what a party has been supposed to have said; as it very frequently happens, not only that the witness has misunderstood what the party has said, but that by unintentionally altering a few of the expressions really used, he gives an effect to the statement completely at variance with what the party really did say”.

6. The emphasis is upon the words underlined (here in inverted commas).

7. In considering the admissibility of a confession, there is a simple test which can always be employed. The Ct. will address itself to the question “Is it proved affirmatively by the prosecution that the confession was free & voluntary?”, that it was not preceded by any inducement, threat or promise held out by a person in authority: if so, whether the effect of such inducement, threat, or promise had clearly been removed before the settlement was made. In that case & that case alone, the evidence of that statement is admissible. The burden of proof always lies upon the prosecution.

8. It is a mistaken motion to hold that confessions are received in evidence or rejected as inadmissible upon consideration whether they are or are not entitled to credit. A free & voluntary confession deserves the highest credit, because it is presumed to flow from the strongest sense of guilt. It is, therefore, that a confession forced from the mind by flattery of hope, or torture of fear comes in so questionable shape, when it is to be considered as an evidence of guilt, that no credit ought to be given to it; &, therefore, it is, rejected. — (R. v. Warickshall’, (1783) I Leach 263 : (168 ER (234).

9. Spontaneity & faithful reproduction are the two vital needs in determination of admissibility of confession, & they have been sufficiently well-impressed upon the statutory provisions in relation to them. Section 24 of the Evidence Act, rules out confessions caused by inducement, threat, or promise as irrelevant in a Cri proceeding. Section 25 rules it out on the simple ground that it is made to a police officer by a person accused of any offence. The police officer is a person in authority within the meaning of S. 24 & he is the person to whom is attributed the greatest zeal to detect the offence, & who is likely to exaggerate every ground of suspicion into proof. It is not so much from consideration of credit as from consideration of public policy that law declares a confession made to a police officer as irrelevant. Section 26 deals with confession made not to police Officer but to any other person including a Mag when made while the person making it is in the custody of a police officer. This provision is based upon a consideration of abundant caution. Its enactment proceeds from, a well conjectured suspicion that a confession made in those circumstances if not made in the immediate presence of a Mag. have flowed either from the flattery of hope, or torture of any fear. In such cases, the presumption that, a free & voluntary confession flows from the strongest sense of guilt is ruled out. The exceptional factor of the presence of a Mag, while a person confessing is in police custody is insisted upon for the reason that it may dispel the extraneous influence that might be otherwise conjectured to have overcome his mind. This section, at any rate, is clear that it may cover a case of confessional statement being made to a Mag or any other person in the immediate presence of Mag. We are here concerned with a confession made to Mag. Section 26, standing by itself, would not require the Mag referred to therein being one specially authorised in that behalf nor that he should record it. But this section, however, cannot be stripped off from the context of S. 28, which insists upon the freedom of the accused's mind from the impressions caused by any such inducement, threat, or promise, as are referred to in S. 24. Suppose there is a case in which, a man in police custody making a confession in the immediate presence of a Mag & to the Mag is considered to have been still under the impressions that invalidate a confession within the purview of S. 24; it cannot be held relevant notwithstanding the provisions of Section 28 of the Cr PC, therefore, a machinery has been provided for the recording of such confession by a Mag in a particular manner. To a keen observer, it will be clear that all the requirements, the performance whereof, or the compliance wherewith have been provided for in the matter of recording, are intended to secure (i) spontaneous & voluntary character of the statement, that is, freedom from impressions supposed to have been caused in the prisoner's mind due to inducement, threat, or promise; (ii) faithful recording of the statement actually made by him — in this connection, I should advert to the caution given by some eminent Judges that any unintentional alteration of the words used by the prisoner may make the statement mean valiantly from what was actually said; & (iii) that, besides the impressions caused by threat, inducement, for promise from a person in authority, the prisoner should not also be overcome with any influence on his mind flowing from a consideration that he can with immunity make a statement in order to escape from the irksome custody or from the constant annoyance of interrogators or from any other similar cause. Hence the requirement of cautioning the accused before he is asked to make a statement. This cautioning may, be & probably is, a matter of public policy when a man in authority is responsible for taking the confession for the purpose of recording. Section 29 provides that a confession does not become irrelevant merely because, ‘inter alia’, he was not warned that he was not bound to make such confession & that evidence of it might be given against him. Even if Section 29 of the Evidence Act & Section 164 of the Cr PC are deemed to be covering the selfsame field, there is no direct impact of one against the other in relation to this point; but however, the Legislature intends, & that in the plainest possible expression, that when a Mag proceeds to record a confession he must observe this mandatory provision for the purpose of having a valid record.

10. I consider it a tragic ingenuity that it should at all be advanced seriously as a contention that in view of Section 29 of the Evidence Act, a Mag can deliberately infract the caution provision in S. 164 & the questioning provision in the selfsame section & leave a bare & made record for the purpose of being used against the accused as a binding proof of a character deserving the highest credit. A case may happen when an accused is produced before a Mag who may ask him to make his statement & listen to what he says & omit to make a record. It appears from S. 164(1) that a Mag has a discretion to record the statement. He may exercise his discretion at his option. The language of the section leaves it optional to the Mag to record the confession or not as he thinks fit; but if he proceeds to record, he is bound to do so in the manner laid down in the section. It is clear, therefore, that in the situation envisaged in the section, that is, when a confession is made to him in the course of an investigation under Chap. XIV of the Cr PC or at any time before the commencement of an enquiry, or trial, he is bound to observe the provisions of the section in as faithful a manner as possible so as to guarantee the result aimed at by such record, viz., (i) fidelity of faithful reproduction of the statement, (ii) spontaneity of the making thereof; (iii) awareness in the accused's mind of the risk that he has to incur in case he makes a confessional statement in relation to the charge in which he has been arraigned, & lastly, (iv) a sense of safety from the risk, physical or mental, if any, consequent upon his refusal to make one. The law requires the duties cast upon a Mag to be performed in a judicial manner, & that is why it picks & chooses particular classes of Mags for the task. The strictness or the laxity with which the provisions of the section should be observed must be commensurate with the achievement of the result aimed at. The intendment of the requirement under Section 164 of the Cr PC is clearly for the removal of the impressions referred to in Section 24 of the Evidence Act. I would quote a passage from Woodroffe's Law of Evidence (commentary to S. 28). The learned author says:

“This section forms an exception to the law provided by the twenty-fourth section, & as a qualification of that section should be read together with it. The impression caused by the inducement may have been removed by mere lapse of time, or by an intervening act, such as, a caution given by some person of superior authority, to the person holding out the inducement. An inducement may continue to operate on a man's mind for a considerable time after it was uttered; but, on the other hand it may be altogether removed by subsequent statements which precede the confession, & which clearly inform the deft that he must expect no temporal advantage from making one. Thus where a Mag had told a prisoner that if the latter would confess he would use his influence to obtain a pardon for him, & had afterwards received a letter from the Secretary of State refusing the pardon, which letter the Mag communicated to the prisoner; a confession subsequently made was held to be admissible. It is for the Ct. to decide under all the circumstances of the particular case whether the improper influence was totally done away with before the confession was made”.

11. From this follows the necessity of giving the prisoner sufficient time for reflection & guarding against his being influenced by the police so as to ensure that no police was present at the time of taking the confession though according to S. 26, the Mag's immediate presence is enough to destroy the polluting effect of the presence of a police officer.

12. Section 533 of the Cr PC on its very face, bears the impress that the defects, that are cured by compliance with its provisions, are not matters of substance but of form. If the matters of substance were to be cured, S. 164 will be reduced to nothingness. The section, broadly speaking, may be divided into two material parts — one defines its field of operation, that is, in what circumstances it comes into play, & the other prescribes what is the achievement it aims at.

13. It comes into operation or application when a confession recorded or purported to be recorded under S. 164 read with S. 364 is tendered or has been received in evidence. The result intended for is that the recorded statement or confession shall be admitted into evidence notwithstanding anything contained in the Section 91 of the Evidence Act, 1872, but always subject to the consideration that the error, if any, has not injured the accused in his defence on the merits. “Notwithstanding anything contained in Section 91 of the Evidence Act” is the key to its interpretation. According to S. 91, in all cases in which any matter is required by law to be reduced to the form of document, no evidence shall be given in proof of such matter except the document itself or the ‘secondary evidence’ of its contents. The law that requires that the matter, namely, confession or other statement of an accused made in specified circumstances shall be reduced to the form of a document is contained in Sections 164 & 364 of the Cr PC. Reading the two sections together, it is clear that whatever is to precede & to succeed the actual recording of the confessional statement are also to be incorporated in the document. According to S. 364, whenever the accused is examined by any Mag the whole of such examination including every question put to him & every answer given by him shall be recorded in full in the language in which he is examined. According to S. 164, the accused's confessions shall be recorded & signed in the manner provided for in S. 364. Before the confession is recorded the Mag shall caution him & shall question him in order to satisfy himself that the confessions were made voluntarily. The questioning amounts to examining the accused. This examination too shall be recorded in the form of questions & answers in the language in which they are put & given. With regard to cautioning, the Mag has to say in his memorandum, that he has complied with it. Addressing oneself to S. 91, it would be plain that the record should be received as the sole evidence in proof of the confession. The requirements that would make the confession trustworthy & receivable are of as much importance as the actual confessional statement itself. Both are required to be proved & must be proved by production of the record. Section 533, as to its bearing, has to be understood in this setting. That section furnishes an exception to S. 91 in allowing oral evidence to prove that the accused person duly made the statement recorded. The words “duly made” correlates to “duly taken” in the latter part of Section 80 of the Evidence Act. A confession is presumed under S. 80, to have been duly taken when it appears from the document produced in proof that it was taken in accordance with law. The statement therefore is said to be duly made or duly taken provided the state of things insisted upon in S. 164 as conditions precedent & subsequent to its recording was brought into existence or, in other words, the fit state of the accused's mind was either produced or assured by the questioning. The oral evidence that is permissible in S. 533 is exclusively confined to the proof thereof. The section provides:

“……it (the Court before which the confession recorded or purported to be recorded under S. 164 or S. 364 is tendered in evidence or has been received in evidence) shall take evidence that such person ‘duly made’ the statement recorded………”.

14. The evidence, therefore, will be, by way of supplementing the deficient record, that all the mandatory provisions of S. 164, such as, cautioning, questioning, making of the statement in the Mag's immediate presence, & its having been read out or explained to him & his acknowledging the same to be the faithful record of the statement made, have in fact, been complied with though there may be some lacuna in their incorporation into the document. This leaves no manner of doubt that the oral evidence should be addressed to prove what should otherwise have been proved by the record had the provisions of either of the Ss. 164 & 364 been fully complied with. This could never be a matter of substance, but must be a matter of form, viz., that there has been actual compliance with the provisions in the Mag's performance of his duty, but there are deficiencies or non-observance in relation to reducing the same into writing.

15. It is sought to be contended that S. 533 will permit production of oral evidence in proof of voluntary making of the statement independently of or otherwise than by compliance with the provisions of S. 164. This contention tantamount to say that suppose a Mag has not cautioned nor questioned nor taken any steps to see that the impression of undue influences on the accused's mind have, fully been removed at the time the accused made the statement, the recorded confession shall still be admitted into evidence if the Ct, before whom it is tendered, is otherwise satisfied by evidence adduced before it that the accused made the statement voluntarily. This sort of satisfaction, to my mind, appears to be physically incapable of production. The law requires that at the particular moment when the accused made the statement he should be free from the bias of any undue influence & inducement on his mind by extraneous agencies, such as, inducement, threat, or promise from a person in authority. How could any evidence as to his previous state of mind replace the evidence as to his state of mind at the time he made the statement? Such evidence should be simply irrelevant for the purpose. Hence it is my conclusion that any evidence other than the evidence of strict & substantial compliance with the provisions of S. 164 shall not make the recorded statement admissible in evidence. Of the confession made to a Mag in the course of investigation or thereafter before the commencement of enquiry or trial, the record by the Mag under S. 164 is the sole evidence. The question 3, in my judgment, has to be answered accordingly. This view is sufficiently borne out by the ‘dicta’ in the decision in ‘Nazir Ahmed…Accused— v. Emperor….’, AIR (23) 1936 PC 253 : (37 Cr LJ 897) being pushed to its logical deductions. Section 29 contains a residuary provision of negative character. It is codification of English law instances of what do not amount to inducement, threat, or promise though they appear to be on its border land. It does not touch the fringe of the question what polluted a confession. It is dangerous to admit into evidence confessions about which you are not sure of their freedom from such pollution as affects their spontaneity I would here quote a passage from Greenleaf on Evidence P. 250 (borrowed from Russel on Crime, p. 1999):

“The difficulty experienced in this matter seems to have’ arisen from the endeavour to define & settle, as a rule of law, the facts & circumstances which shall be deemed in all cases to have influenced the mind of the prisoner in making the confession. In regard to persons in authority there is not much room to doubt public policy, also, requires the exclusion of confession obtained by means of inducements held out by such persons. Yet even here, the age, experience, intelligence & constitution, both physical & mental of prisoners are so various, & the power of performance so different in the different persons promising, and under different circumstances of the prosecution, that the rule will necessarily sometimes fail of meeting the truth of the case. But as it is thought to succeed in a large majority of cases, it is wisely adopted, as a rule of law applicable to them all. Promises & threats by private persons, however, not being found so uniform in their operation, perhaps may, with more propriety, be treated as mixed questions of law & fact; the principle of law that the confession must be voluntary being strictly adhered to, & the question whether the promises or threats of the private individuals who employed them were sufficient to overcome the mind of the prisoner, being left in the discretion of the Judge under the circumstances of the case”.

16. This passage would, I think, go a great length to bring into relief & help clear visualization of the meaning of S. 29. It can have no reference to the act or omission of a person in authority in the matter of extracting admission of guilt from a person arraigned in a criminal charge. Accused's pleading in a trial stands on a different footing, viz., his statement under S. 342 examination. It is the pleading of a party, & distinct from his previous statement tendered in evidence against him & his plea of innocence if taken, during trial.

17. Section 29 of the Evidence Act does not, in its practical application, come in conflict with the operation of Section 164 of the Cr PC. In this connection, I would invite attention to two very recent judgments of the Madras & Bombay H. Cs viz., ‘Karunathambi Subramania Goundar v. State’, (1950 1 MLJ 659 at p. 662 : (AIR (37) 1950 Mad 579 : 51 Cr LJ 1047) & ‘Bhimappa Saibanna v. Emperor’, AIR (32) 1945 Bom 484 : (47 Cr LJ 252) respectively. With great respect, I am in perfect agreement with them.

18. Mr. M.S Mohanty, a learned counsel of this Bar, took leave of the Ct. to make some submissions in view of the public importance of the question. In his illuminating arguments, he traced the genesis of the principle governing the admissibility & user of confessions or confessional statements of an accused. He invited our attention to the former Codes of Criminal Procedure of 1372 & 1882 for the purpose of comparing or contrasting the language employed in the corresponding sections thereof, viz., Ss. 122 & 164 respectively with that of S. 164 of the present Code. He also invited our attention to the dispatch of the Govt. of India to the Secretary of State, dated, 24-7-1913, reproduced in the Gazette of India, dated, 7-2-1914, for the purpose of emphasising that the basic requirement of the voluntary character of the confession had international importance & had reference to the fundamental human right — that an accused should be tried in an atmosphere free from prejudice & should not be put under compulsion of any form whatsoever to make statements incriminating himself. He also referred to Stephen's Digest-Articles 24 & 27; Taylor's Evidence, Wigmore on Evidence Vol. III, Articles 816, 822, 825, 826, 842 & 843; Willis on Constitutional Law pp. 515 & 521; Stone's Province & Function of Law, p. 510 dealing with immunity of will & function of mind; & Cooley's Constitutional Limitations Vol. I. I have carefully considered all these references, & I am fully satisfied that even the slightest stress of compulsion, exercised in any of the remotest possible manner continuing working upon the mind of the prisoner would vitiate the testimonial trustworthiness of his confession, & that in every civilized country freedom from compulsion on the accused's mind has always been insisted upon as the basic requirement, before it could be thought of as evidence to implicate the accused. I would rest content with referring to a few passages cited by him from Cooley's Constitutional Limitations, 8th Edn., Vol. I., Chap X, “Protection to Personal Liberty”, P. 651 et seq.,

“It is the law in same States (United States of America), when a person is charged with crime & is brought before an examining Mag………he may also make a statement concerning the transaction charged against him, & that this may be used against him on the trial if supposed to have a tendency to establish guilt. But the prisoner is to be first cautioned that he is under no obligation to answer any question put to him unless he chooses & that whatever he says & does must be entirely voluntary. ‘He is also to be allowed the presence & advice of counsel & if that privilege is denied to him it may be sufficient reason for discrediting any damaging statement he may have made’ — (652). The portions underlined (here in inverted commas) have no counterpart in the law of this country………But to make it admissible in any case it ought to appear that it was made voluntarily, & that no motives of hope or fear were employed to induce the accused to confess — (652)……… Under the excitement of a charge of crime, coolness & self-possession are to be looked for in very few persons; & however strongly we may reason with ourselves that no one will confess a heinous offence of which he is not guilty, the records of Cr Cts. bear abundant testimony to the contrary — (653)”.

19. He also referred to Articles 20 & 21, Const. Ind. These Articles cannot be ruled out as wholly irrelevant to the question, at issue. As at present advised, I would refrain from expressing any opinion whatsoever in relation thereto. In my individual judgment, the Ct's time has been very usefully employed in listening to his arguments. To me personally, it has been reassuring as to such of my views on the subject as have been elaborately exposed in my judgment, as a Judge of the Patna H.C reported in Emperor v. Jamuna Singh’, AIR (34) 1947 Pat 305 : (25 Pat 612).

20. The learned Govt. Advocate, unaffected by any consideration of sponsoring one view or the contrary placed all the authorities of the Indian H. Cts. bearing upon the subject upto-date. The cases of particular importance, with reference to the question before us, the difficulty wherein arose from the apparently conflicting provisions of Section 29 of the Evidence Act, & Section 164 of the Cr PC were the very recent decisions of both Madras & Bombay H.Cts already referred to.

21. I will close, after observing a few words, with regard to what ‘substantial compliance with the provisions of’ Section 164 of the Cr PC, as is insisted upon in the judgment of my learned brother Narasimham, J., means. By citing an illustration as to how, without any direct efforts of tampering, proceeding from the investigating police officer, or any other person in authority, sufficient affectation can be caused, proceeding as it were from inducement, threat, or promise. In the case of ‘Anions v. State’, (80 Miss 592) S.C of Mississippi, 1902 (vide Wigmore on Select Cases on Evidence, p. 392), the Chief of police testified that the accused made to him a free & voluntary statement (for the purpose of receiving or recording a confessional statement — the police of that country enjoys the same privileges as a Mag does under the Indian Evidence Act or Code of Criminal Procedure). The circumstances under which he made it were these:

“There was what was known as a ‘sweat-box’ in the place of confinement. This was an apartment about five or six feet one way & about eight feet another………. The prisoner was allowed no communication whatever with human beings. Occasionally the officer, who had put him there, would appear, & interrogate him about the crime charged against him. To the credit of our advanced civilization & humanity it must be said that neither the thumbscrew nor the wooden boot was used to extort a confession. The efficacy of the sweat-box was the sole reliance………This circumstance, even after several days of obstinate denial, makes the prisoner make a confession. The officer, to his credit, says he did not threaten his prisoner, that he held out no reward to him, & did not coerce him. Everything was ‘free & voluntary. He was perfectly honest & frank in his testimony, (sic) this officer was. He was intelligent, & well up in the law as applied to such cases, & nothing would have tempted him, we assume, to violate any technical requirement of a valid confession on threats, no hope of reward, no assurance that it would be better for the prisoner to confess. He did tell him, however, ‘that it would be best for him to do what was right’, & that it ‘would be better for him to tell the truth’. In fact, this was the general custom in the moral treatment of these sweat-box patients, since this officer says, ‘I always tell them it would be better for them to tell the truth, but never hold out any inducement to them’. He says, in regard to the patient, Ammons, “went to see this boy every day, & talked to him about the case, & told him it would be better for him to tell the truth; tell everything he knew about the case.”

22. Per Calhoon, J. — held:

“The confession was not competent to be received as evidence. Defendant, unless demented, understood that the statement wanted was confession, & that this only meant release from this ‘black hole of Calcutta’. Such proceedings as this record discloses, cannot be too strongly denounced. They violate every principle of law, reason, humanity, & personal right. They restore the barbarity of ancient and medieval methods. They obstruct, instead of advance, the proper ascertainment of truth. It is far from the duty of an officer to extort confession by punishment. On the contrary, fie should warn his prisoner that every statement he may choose to make may be used against him on his trial.”

23. Though we have not sweat-boxes literally for the use of the police, but the practice of hand-cuffing, roping, & chaining them, making them walk from place to place, confining them in the police lock-ups, & interrogating them from time to time without either threatening, or inducing, or promising any favour for extraction of confession would amount to imposition of sufficient pressure to impair the mental equilibrium of the prisoner. Instances are ample that the prisoner, anticipating what was wanted of him, would make a confession in order to escape from the torture. The Mag who has the judicial task of recording the confession should keep this in mind & see that he, by his questioning, cautioning, & otherwise fulfilling the conditions pre-requisite to such recording under the law, has assured himself that he has been able to obliterate the effects thereof from the prisoner's mind so that the statement made by him can deserve the name of ‘a free & voluntary confessional statement’.

Narasimham, J.:— The three questions of law referred for the decision of the Full Bench are:

(1) Is the confession of an accused taken under Section 164 of the Cr PC to be ruled out as not being voluntary & therefore inadmissible merely for non-compliance with any of the requirements laid down in (iv) & (v) at p. 218 of ILR (1949) 1 Cut 207 : (AIR (36) 1949 Orissa 67 : 51 Cr LJ 72, Guru Baru Praja v. The King).

(2) Is the Mag recording a confessional statement under Section 164 of the Cr PC bound to record all the questions put by him to the accused & the answers given, to satisfy himself that the confession to be made is voluntary &, if so, what is the effect of the non-recording of the same?

(3) Does non-compliance with the provisions of Section 164(3) of the Cr PC by the Mag when recording a confessional statement render the same a nullity or inadmissible, if there is satisfactory evidence, ‘aliunde’, before the Ct. that the confessional statement was voluntarily made?

24. As regards question (1), there can be no doubt that the requirements of ‘Guru Baru Praja v. The King’, ILR (1949) 1 Cut 207 at p. 218 : (AIR (36) 1949 Orissa 67 : 51 Cr LJ 72) are not intended to be mandatory statutory requirements the non-observance of which would by itself without more vitiate the admissibility of a confession. The said requirements are wholesome & valuable principles to be observed by a Mag recording a confession under Section 164 of the Cr PC & a trial Ct. which is called upon to decide whether the confession has been voluntarily made in order that it may be admissible may consider the omission to put any of the questions indicated in that decision as relevant either on the admissibility of the confession or the weight to be attached to it. Moreover, the model questions suggested in that decision are only illustrative & by no means exhaustive & it is always open to a Mag to put such further questions as the circumstances of each case may require so as to satisfy himself about the voluntariness of the confession.

25. As regards question (2), Section 164(2) of the Cr PC says that a confession shall be recorded & signed in the manner provided in Section 364 of the Cr PC. Section 364 says:

“Whenever the accused is examined by any Magistrate, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full.”

26. Section 164(3) says that:

“No Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily”.

27. It is certainly arguable that the word ‘confession’ occurring in sub-ss (2) & (3) of S. 164 should be restricted to that portion of the Mag's record which contains the statement of the accused relating to the offence under investigation & not the preliminary questioning of the Mag for the purpose of satisfying himself about the voluntary character of the confession. On that footing, it is arguable that the statutory obligation to record every question & every answer, imposed under S. 364 does not attach to the preliminary questioning. It appears to me however that this could not be a reasonable construction of the relevant provision. The idea underlying S. 364 clearly appears to be that whenever an accused is examined by a Mag all the questions & answers should be on the record in order that every Mag who records it or any trial or appellate Ct. that will be called upon to deal with the matter may have the whole of what the accused says in his own words in the setting in which he gave the answers. When therefore the requirements of S. 364 for the recording were extended to the confessions to be recorded under S. 164, the statutory requirement under S. 364 may reasonably be taken to refer not merely to what the accused states relating to the offence, which alone, strictly speaking is the confession but also to everything stated by him in that connection. Ordinarily, there may not be any substantial questioning so far as the strict confessional portion is concerned & therefore if the statutory obligation under S. 364 to record every question & answer is to apply to the recording of a confession, it must apply mainly to the preliminary questioning. I am therefore of the opinion that the Mag recording a confession is bound to record every question put by him to the accused & every answer given by the accused to the same in order to satisfy himself that the confession to be made is voluntary.

28. The further question that has been raised under this heading is what is the effect of non-recording of the questions & answers. Section 533 of the Cr PC provides as follows:

“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 364 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 shall take evidence that such person duly made the statement recorded.”

29. It would therefore follow from this section that if the questions have been put & answered but no record of it has been made, evidence can be given both of the factum of the questions & answers & of the contents of the same. If the substance of the actual questions & answers can be supplied by such evidence, that cures the defect completely. As has been repeatedly pointed out in several decisions, Section 533 of the Cr PC can cure errors of form & not of substance.

30. As regards question (3), it is necessary to point out that the question itself related to non-compliance with the requisites of S. 164(3). Those requisites are the following: (1) The Mag should explain to the accused — (a) that he is not bound to make a confession; (b) that if he makes a confession, it may be used as evidence against him. (2) The Mag should question the accused with a view to ascertain whether the accused is making the confession voluntarily & on such questioning should have reason to believe that the confession is being made voluntarily. (3) He must append a certificate to the following effect:

“I have explained to………that he is not bound to make a confession & that, if he does so, any confession he may make may be used as evidence against him & I believe that this confession was voluntarily made. It was taken in my presence & hearing, & was read over to the person making it & admitted by him to be correct, & it contains a full & true account of the statement made by him”.

31. It may be noticed in this context that the Cr. Rules of Practice, Vol I, R. 11 requires that to the certificate under S. 164 the Mag should add a statement in his own hand of the grounds on which he believes that the confession is genuine.

32. There can be no doubt that the above three requirements which are statutory, must be substantially complied with by every Mag who records a confession, under Section 164 of the Cr PC. A confession to a Mag under S. 164 is one that is generally made while accused is in police custody during the investigation or thereafter before the trial, & would therefore be available as evidence at the trial only under Section 26 of the Evidence Act. It has been authoritatively held by P.C in ‘Nazir Ahmed…Accused— v. Emperor….’, AIR (23) 1936 PC 253 : (37 Cr LJ 897) that where a confession made to the Mag in the course of the investigation is sought to be brought in under Section 26 of the Evidence Act, it cannot be admitted if it is one which is wholly outside the requirements of Section 164 of the Cr PC. Though the actual decision in ‘Nazir Ahmed's case, (AIR (23) 1936 P.C 253 : 37 Cr LJ 897) related to a confession which did not purport to be under S. 164 the reasoning of the decision equally applies to a case where the confession purports to be taken under S. 164, but is not in substantial compliance with it, for it can equally be said that where the provisions of S. 164 have not been complied with in substance & in spirit, it is legally as bad as a confession outside S. 164. My answer therefore to the question would be that where the requirements of S. 164(3) have not been substantially complied with, what purports to be the confessional statement, cannot be treated as a validly recorded confession under S. 164 which could be brought in under Section 26 of the Evidence Act & that it must therefore be disregarded.

33. The difficulty, however, consists in deciding what amounts to such a substantial non-compliance as to render the record of a confession totally invalid. Of the three requirements specified above as arising under S. 164(3) the requirement as to the certificate essentially one of form & the non-compliance with it is obviously one that can be cured under Section 533 of the Cr PC if as a fact the other two requisites have been substantially complied with, though of course the absence of such a certificate may raise serious doubts as to whether the other two requirements have been intelligently & consciously complied with at all.

34. As regards (1) & (2), if the requisite explanation & questioning have in fact been done, the non-compliance with the recording thereof, is again a defect of form that can be remedied under S. 533. It would also follow from Section 80 of the Evidence Act, that where any document is produced before a Ct. purporting to be a statement made by a prisoner or accused person, in accordance with law & purporting to be signed by the Mag the Ct. shall presume that any statement as to circumstances under which it was taken purporting to be made by the person signing it is true & that the confession was duly taken. From this it would follow that if the certificate contemplated by S. 164(3) is found in a confessional statement as recorded & if by evidence taken under S. 533 the factum of the explanation & of the questioning as required under S. 164(3) is satisfactorily made out, a presumption would arise that the confession was duly taken, that is to say, after such sufficient explanation & such sufficient questioning as satisfied the recording Mag that the confession was being voluntarily made. If therefore a trial Ct. finds no material which would conflict with that presumption the statement would be admissible 6 the weight to be attached must depend on circumstances. The essence of the requirements of sub-s. (3) of S. 164 is that before the Mag records the confession he must have reasons to believe that confession to be made is voluntary. That emphatic language which the sub-section uses, namely, “no Magistrate shall record any such confession unless he has reason to believe that it was made voluntarily” is itself sufficient to show that his power to record the confession is conditional upon the pre-existence of his belief. It is also clear from that sub-section that belief in this behalf must be based upon his questioning the accused after a prior explanation to him that he is not bound so make a confession & that if he does so it will be used as evidence against him. In entertaining the belief under this sub-section, the Mag is acting judicially & therefore the belief itself must be based upon the materials indicated in the section. It follows therefore that where in fact there has been no adequate explanation or questioning by the Mag of the nature prescribed before he starts recording the confession, his record of the confession cannot be said to be in substantial compliance With the requirements of sub-s. (3) of S. 164 & no evidence ‘aliunde’ that the confession was in fact voluntarily made would be admissible. This is in accord with the cardinal principle laid down by P.C in ‘Nazir Ahmed's case” AIR (23) 1936 PC 253 : (37 Cr LJ 897) that when power is given to a certain thing in a certain way, the thing must be done in that way or not at all. Such a confession vitiated by substantial non-compliance, as indicated above, with the provisions of sub-s. (3) of S. 164 is not a valid record of the confection & cannot, therefore, be made use of under Section 26 of the Evidence Act. There is thus no scope for invoking the aid either of Section 29 of the Evidence Act or Section 533 of the Cr PC to cure such defect. It is therefore unnecessary in this reference to discuss elaborately the various decisions cited at the Bar regarding the construction & applt. ability of the aforesaid two sections.

35. Now I take up the facts of the case. The applt was charged with the murder of one-Sana Nimulia who along with several other villagers had accompanied him to the weekly Hat at Majhiguda & who on the return journey had slept along with the applt & other companions in a room in the liquor shop at Ghantidare. There was ample evidence on the record to show that in the liquor shop the applt quarrelled with his brother Arjun Majhi (P.W 2) (who was also one of the companions who accompanied the party to the Hat & on the return journey) because the latter refused to give him two annas for purchasing some more liquor. The other companions pacified the two brothers & they all went to sleep thinking that nothing serious would happen. In the middle of the night however they all awoke when Sana Nimulia while struggling at the point of death kicked Khaga Dandsana (P.W 1) who was sleeping by his side. They all found Sana Nimulia lying dead with a bleeding out injury on the left side of his head. Appellant Bala Majhi was sitting in the same room & when questioned by the companions admitted having killed Sana Nimulia mistaking him for his own brother Arjun Majhi whom he wanted to kill because of the quarrel over the giving of two annas for purchasing more liquor. The liquor vendor named Sagar Sahu (P.W 11) came there soon afterwards & the applt war said to have admitted-before him also that he killed Sana Nimulia mistaking him for his brother. A bloodstained tangia was found close by & the stains on it have been certified by the Imperial Serologist to be caused by human blood. The applt also made a judicial confession before a Mag named Mohini Mohan Mukherji (P.W 4) on 21-6-1949. The learned lower Ct. rejected the judicial confession chiefly because: (i) the applt was not warned by the Mag that even if he retracted his confession, subsequently it would still be evidence against him; & (ii) the applt was not assured of protection from any apprehended torture or pressure from police if he declined to make any confession. Apparently the learned Ses J. relied on certain observations in ‘Guru Baru Praja v. The King’, ILR (1949) 1 Cut 207 : (A.I.R(36) 1949 Orissa 67 : 51 Cr LJ 72). I have already observed that the model questions suggested in the aforesaid decision are meant to be illustrative & should not be taken as mandatory statutory requirements. The learned lower Ct. should therefore have carefully considered the other circumstances under which the confession was taken before coming to a conclusion as to whether it was voluntary or not. The applt was arrested by the police on 18-6-1949. He was produced before the Mag for the first time on 20-6-1949 for recording the confession. The latter gave him the necessary warning & remanded him to jail custody for full 24 hours. Again on 21-6-1949 he gave him the usual caution to the effect that he was not bound to make a confession & that his confession would be used as evidence against him. He also cautioned him against making a confession on the threat of the police or any other person & that he should not confess out of fear or coercion. In fact the applt's reply to the Mag's warning was that no one threatened to assault him. The Mag further put a searching question to the effect as to why the applt was making a confession & thereupon the latter replied that he was confessing because he really committed the offence. On 21-6-1949 the Mag gave him 30 minutes time for reflection. I have carefully scrutinized the evidence of the Mag (P.W 4) & I am inclined to accept his statement to the effect that the confession was voluntary. There was ample time for reflection & though every one of the “model questions suggested in ‘Guru Baru Praja v. The King’, ILR (1949) 1 Cut 207 : (AIR (36) 1949 Orissa 67 : 51 Cr LJ 72) was not put, most of the questions were put & there was substantial compliance with the requirements of Section 164 of the Cr PC.

36. Apart from the judicial confession; there is the extra-judicial confession which is of great value in the present case. It is true that ordinarily too much importance is not attached to extra-judicial confessions. But the circumstances are quite different in this case. The applt is an aboriginal & his companions were also aboriginals who had accompanied him to the Hat & who slept with him in a room of the liquor shop on the return journey. When they awoke on being disturbed by the death struggle of the victim the applt immediately told them that he killed Sana Nimulia mistaking him for his brother Arjun. The witnesses who have spoken about this are all simple aboriginals (P.W.s 1, 7, 8, 9 & 10) & there is absolutely nothing on record to show that they could have any possible motive either to implicate the applt on a false charge or else that they misunderstood what he told them then & there. The previous quarrel between the applt & his brother Arjun is well-proved & as all of them were sleeping in a row his explanation to the effect that he killed Sana Nimulia mistaking him for his brother in the darkness of the night seems very probable. The applt repeated the extra-judicial confession before the liquor vendor Sagar Sahu (P.W 11) against whom also nothing could be urged. This is not a case of any interested party coming forward with a story of extrajudicial confession with a view to implicate an innocent man on a false charge.

37. Moreover, the presence of human blood stains on the tangia is another important corroborative piece of evidence against the applt. Doubtless the tangia was not found in his hand when his companions awoke soon after the commission of the crime. But it was found lying at a distance of 5 or 6 cubits away from him & P.Ws 1, 7, 8, 9 & 10 have all stated that the applt was the only member of the party who was armed with a tangia when they left the village for the Hat. Therefore there was no difficulty in identifying the tangia. The presence of human blood-stains on his shirt is also another incriminating circumstance against him.

38. I would accordingly hold that though there is no eye-witness to the commission of the crime, the judicial confession of the applt, his extra-judicial confession to his companions & the presence of human blood stains on his tangia & his shirt, leave no room for doubt that the crime was committed by him & by none else. He was rightly convicted under S. 302, I.P.C & the lesser sentence was also rightly imposed in view of his being a young aboriginal who had some kind of provocation from his brother in the evening of the date of the commission of the crime.

39. The conviction & sentence are upheld & the appeal is dismissed.

Das, J.:— I agree with the answers given by Narasimham, J. & with the reasons therefor given by him.

40. I should have been content to leave the matter at that, since we are all agreed about the answers to the reference. But, out of respect for the different views expressed in the order of reference & somewhat different approach elaborated in the answer to the reference given by my Lord the Chief Justice & out of regard for the very strenuous arguments advanced at the bar, I consider it desirable to place briefly on record my point of view on the matters discussed, though they do not call for any final decision in this case.

41. In the Evidence Act, confessions are treated as a species of admission. Any admission by an accused of an incriminating fact falls within the scope of Sections 18 to 21 of the Evidence Act Si is relevant. (See ‘Ghulam Hussain v. The King’, 77 IA 65 : (51 Cr LJ 1552).) A confession is an admission, in terms of the offence itself, or at any rate, substantially, of all the facts which constitute the offence. (See ‘Pakala Narayanaswami v. Emperor’, AIR (26) 1939 PC 47 at p. 52, Col. II: (40 Cr LJ 364).) Sections 24, 25 & 26 provide the circumstances-under which a confession is not relevant or cannot be proved. Thus the scheme of the Evidence Act is to treat confessions ‘prima facie’ as relevant or provable under the category of admissions & to provide under Ss. 24, 25 and 26 the circumstances in which they are not relevant or provable. Sections 27, 28 & 29 are provisions indicating the limitations in the operation of Ss. 24, 25 & 26. This method of dealing with confessions adopted by the Indian Legislature shows a marked departure from the approach of the English law to the admissibility of confessions. The English law in this respect has been authoritatively pointed out by P.C in ‘Ibrahim v. The King’, 1914 A.C 599 at p. 609 : (AIR (1) 1914 PC 155) in the following terms:

“It has long been established as a positive rule of English Criminal Law, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from-him either by fear of prejudice or hope of advantage exercised or held out by a person in authority”.

42. The terms in which Section 24 of the Evidence Act, is couched seem to indicate that in the case of an ordinary confession, there is no initial burden on the prosecution to make out the negative, viz., that the confession sought to be proved or admitted is not vitiated by the circumstances stated in the section. It is the right of the accused to have the confession excluded & equally the duty of the Ct. to exclude it even ‘suo motu’ if the vitiating circumstances “appear”. While this is the general rule, Ss. 25 & 26 are special rules relating to, a confession made to a police officer & a confession made in the immediate presence of a Mag by an accused in the custody of the police officer. The former is completely excluded, thereby indicating a total distrust, (unlike in the English Law) of the police machinery, in so far as it brings out a confession by the accused. But inspite of this distrust a confession made in the immediate presence of the Mag is made provable under S. 26, though the accused is at the time in the custody of the police. The position therefore as emerges, is that confessions other than what may be called police-confessions are admissible subject to their being excluded by the “appearance” of vitiating circumstances mentioned in S. 24. The Evidence Act does not deal with how magisterial confessions are to be recorded. That is specifically dealt with in Section 164 of the Cr PC. The effect of that section, as interpreted by P.C in ‘Nazir Ahmed's case’, (AIR (23) 1936 PC 253 : 37 Cr LJ 897), is that if a magisterial confession is sought to be admitted under the Evidence Act, it can be proved only if it is a valid record of the confession under Section 164 of the Cr PC. It is to be noticed that S. 26 is in negative terms. It does not say that every confession made in the immediate presence of a Mag can be proved as against the accused. Therefore, it would follow that if there is a special statute prescribing how a Mag is to record the confession, it is only a confession so taken that can be proved & received & admitted in evidence.

43. A consideration of S. 164 however would show that what is aimed at in that section is not in the nature of an absolute guarantee that the confession is voluntary in the sense of freedom from inducement, threat, or promise, proceeding from a person in authority. What that section prescribes is not that the recording Mag should have positive proof before him about the absence of those vitiating circumstances but that he should, before recording, have “reason to believe” that the confession is voluntary, i.e, not prompted by inducement, threat, or promise, proceeding from a person in authority. It is to be noticed that the use of the phrase “he has reason to believe that it was made voluntarily” indicates that it is not the function of a trial Ct. to sit in judgment over the recording Mag to the extent of substituting its belief on the material, but to see whether he has exercised his jurisdiction in this behalf judicially & with a judicial approach. What gives the Mag jurisdiction to record is his own subjective belief based on objective reasons. This clearly shows that it is not the intent of the Legislature by Section 164 of the Cr PC to restore in respect of magisterial confessions the English Law requisite of positive proof of the absolute voluntariness of the confession as a ‘sine qua non’ for its admissibility a test which it seems to have discarded for non-magisterial confessions (other than police confessions which alone it has totally prohibited). The position, therefore as I conceive it, is that a magisterial confession can be proved only by the record of that confession & that the record cannot go in against the accused at the trial, unless it is one that is made in substantial compliance with the provisions of Section 164 of the Cr PC including the fair belief of the recording Mag as to the voluntary character of the confession, arrived at on a judicial approach. But once the record goes in, it is for the accused to make out or for the Ct. to find the appearance of vitiating circumstances mentioned in S. 24 in order to exclude it. It is also to be noticed that even in the matter of finding whether or not there has been substantial compliance with the terms of S. 164, the prosecution has the initial advantage of relying on the presumption in Section 80 of the Evidence Act & of the remedying provision of Section 533 of the Cr PC. What I wish to point out is that the Legislature has indicated two different standards for “proof” & “reason to believe”, as appears from Section 3 of the Evidence Act & S. 26, I.P.C that this distinction is not academic. Section 164 of the Cr PC cannot, therefore, be read as though the Mag's jurisdiction to record a confession depends on positive proof before him of its voluntary character. The Mag in the circumstances in which he would at the time be placed, can only make a reasonable enquiry, but must come to a well-grounded belief judicially & on a judicial approach. The Legislature has provided that & alone as sufficient for initial admissibility of a judicial confession trusting to experienced Mag to whom alone the function is by law entrusted to discharge their prescribed duty in this behalf properly & responsibly. But this is not to say that the trial Ct. is relieved of its duty under Section 24 of the Evidence Act to exclude the confession if it finds it irrelevant even after it is allowed to go in under Section 164 of the Cr PC.

44. It appears to me therefore with greatest respect that to approach the subject of confessions & particularly of judicial confessions, as though every record or evidence of confession is to be treated as ‘prima facie’ suspect & as being liable to be thrown out as inadmissible in the absence of evidence that the recording Mag had clear & positive proof before him of its voluntary character, would be to contravene the provisions of the Statute in this behalf which are delicately balanced & which provide for a self-proving & admissible record of a judicial confession if duly taken. It would also equally be contrary, to the express provisions of the Statute to allow a judicial confession to go in against the accused without substantial & adequate compliance with the provisions of S. 164 or to treat such substantial non-compliance as one affecting merely the weight of the confession or as liable to be cured under Section 533 of the Cr PC in all cases. As has been laid down by so eminent a Judge as Sir Barnes Peacock as early as in ‘Queen v. Nabadwip Chandra’, 1 Beng LR O. Cr 15 at p. 22 : (15 WR Cr 71 N),

“The object of the Criminal law is to punish the guilty for the purpose of deterring them & others from committing offences. The object of the law of procedure, including the Law of Evidence, is or ought to be that the innocent shall be protected & the guilty punished.”

45. Any view, therefore, as regards judicial confessions which proceeds on a feeling that a magisterial confession is only a few degrees less open to suspicion than a police-confession, & that therefore it is necessary to impose further exacting tests by judicial legislation than what the Statute in terms has provided, or any view that would relieve the recording Mag from the rigour of the safeguards in terms imposed by the Legislature & treat all magisterial confessions as ‘prima facie’ valid, however recorded, leaving the defects in the recording & in founding his belief as going into the weight of the same, would with very great respect not be in harmony with the letter or the spirit of the statutory provisions in this behalf. It has been pointed out by reputed text-writers & by eminent Judges on the subject that the whole subject of confessions, in its treatment under the English Law, has been deflected from its rational course by a lot of unreasonable & illogical sentiment. (See per Baron Parke in ‘R. v. Baldry’, 5 Cox's Cr. Cas 523 at p. 531). This appears to have been due to not keeping separate in their consideration two matters, which are really independent, namely, (1) The confessions as a proved fact; (2) The process of proof of an alleged confession. The great likelihood of infirmities in the latter has been allowed to affect the weight due to the former & considerations germane to the latter have sometimes got crystallized by authority as affecting the weight of the former. See Wigmore, Vol. III, para 866 at p. 356. As late as in ‘Ibrahim v. The King’, 1914 AC 599 : (AIR (1) 1911 PC 155) the judicial committee was obliged to remark that the rule of English Law on the matter before them must still be taken as unsettled. A perusal of the judgment of their Lordships in that case indicates how difficult & sometimes futile it is to lay down general rules on a branch of the law where the circumstances so greatly vary. In India, the Legislature has adopted a middle course in this respect & has laid down a few well-defined rules has left other matters to be judged according to circumstances, I think it would be hazardous for Cts to try to enunciate further rules or weaken the application of the statutory requirements by importing other considerations, I wish, therefore, to say nothing which will in any way weaken the application of the safeguards provided by the Legislature in Section 164 of the Cr PC & thereby load against an accused person ill-scrutinized confessions, irresponsibly taken, nor say anything which will unduly hamper the functions of the recording Mag by insisting on his having before him what virtually amounts to preliminary & positive proof of voluntariness, before proceeding to recording a confession which may, well nigh, be impossible in the situation in which he would then be placed, & thereby bring about likelihood of the initial exclusion of almost all judicial confessions to the detriment of the administration of criminal justice. I feel therefore bound to add that, with great respect, I am not in agreement with my Lord about the proposition enunciated in para 6 of his judgment or with his approach to the question based on English Law, but I am not to be supposed as being in total disagreement with my Lord's exposition of the subject in general. While I acknowledge, with respect, the learning thereof, I must own to a feeling of doubt whether it will help or hamper the subordinate magistracy for which it is intended.

46. In arguments before us, a very wide range of discussions & citations have been covered. It is enough to say that I have considered all of them very carefully. I refrain from noticing them because it is unnecessary to burden this judgment with the same when all of us are in the main agreed about the answers to be given to the reference. I am also conscious of the fact that no amount of elaboration in a judgment where there are differing views on matters not directly arising for decision can afford guidance except as material for further discussion when such matters actually arise later for decision. There has also been some argument that Article 20, sub-cl. (3), Const. Ind recently adopted, makes a change in the legal position. All that I need say is that I do not think it does, if the law is as indicated in the answers to this reference. On the merits of the appeal before us also I agree with the judgment & conclusions of my learned brother Narasimham, J.

K.S

47. Appeal dismissed.