Divatia, J.:—

This is an appeal by the Government of the Province of Bombay against an order of acquittal and discharge passed by Sen J. in a Sessions trial agreeing with the majority verdict of not guilty by the jury. The charge against the accused was that he committed the murder of a Police Constable, Yeshwant Bhikaji, on February 5, 1943, at about 10 p.m by stabbing him with a knife on Lakshmi Napoo Road at Matunga in Bombay. The prosecution relied upon the evidence of two alleged eye-witnesses, one person having seen, the accused running away with a knife in his hand soon after the offence was alleged to have been committed, the accused having washed his blood-stained hands on the same night in the room of witness Ambikabai and having concealed the knife in the compound of the Cutchi Visha Hall situated in Laxmi Narayan Lane which the accused was alleged to have entered after committing the offence. The prosecution also relied upon a statement of an incriminating nature made by the accused before the Coroner on March 19, 1943, when he held inquest proceedings over the body of the deceased.

The defence was that the accused had not committed the alleged offence, that the eye-witnesses were on inimical terms with him and were telling a false story as they were members of a gambling den and a ganja club which were carried on in the hut of one Mulji, that Ambikabai was induced by the Police to make an incriminating statement against the accused under a promise that her husband, who was in Police custody, would be released if she made the statement, that he had not concealed any knife in the compound of the Cutchi Visha Hall, that the accused was taken before the Chief Presidency Magistrate on February 27 and 28, 1943, but he had not made any statement before the learned Magistrate, and that the accused, was harassed and tortured by the Criminal Investigation Department Police to make the alleged incriminating statement before the Coroner.

In his charge to the jury the learned Judge dwelt upon the alleged confession made by the accused before the Coroner, and it is important to consider that question first because Mr. Daphtary on behalf of the prosecution principally relies upon what the learned Judge told the jury on that part of the case in asking us to hold that there was a misdirection. The Coroner was examined in the lower Court and he said that when the suspect was before him no Police-officer had suggested to him that he would make any statement, but the accused volunteered to make it and the accused, further said, that he wished his statement to be recorded as the statements of witnesses had been recorded, and after taking care to see that there were no policemen in his room including those in mufti, he asked the suspect to make any statement that he wished to make, but after warning him that any statement that he would make might be used against him at the trial. The accused insisted, however, that the Coroner should take down his statement. Thereupon the statement was taken down and the Coroner has recorded the questions and answers. At the end of the statement the Coroner added a certificate that the suspect had made the above statement voluntarily after the Court was cleared of all Police constables and province of Police-officers. After the evidence of the Coroner was over, the learned counsel for the accused objected to the alleged confession going in on the ground that the accused was in police custody for a long time, and there was possibility of the policemen remaining inside the Court in mufti, and making signs to the accused from outside. The learned Judge, however, held that it did not appear to him that the statement of the accused was caused by any inducement, threat or promise sufficient to give the accused ground for supposing that by making it he would gain any advantage or avoid any evil, and being of that opinion he admitted the statement in evidence.

In his charge to the jury the learned Judge began by observing that he had in admitting that statement taken the view that it was a voluntary statement, but that was only for the purpose of admitting it in evidence, and then he proceeded to tell the jury that ultimately the question whether it was voluntary or true was a question for them to decide. At the end of the charge he again made the following remarks:—

“In other words, you will have to consider the probabilities in the case and to see whether this can be regarded as a voluntary statement. If you think that this was a voluntary statement, then the next point you will have to consider is whether this is a true statement; and for that purpose you will have to see what amount of corroboration there is to this statement.”

As regards the nature of the statement the learned Judge also told the jury that although the Coroner was not strictly speaking bound to comply with all the formalities which this Court has laid down for Magistrates while recording confessions under s. 164 of the Criminal Procedure Code, he ought to have observed those formalities because it is expressly enacted in s. 19 of the Coroners Act that for the purposes of s. 26 of the Indian Evidence Act a Coroner shall be deemed to be a Magistrate. With this observation the learned Judge left it to the jury to decide whether in their opinion the confession was made voluntarily.

There is one additional circumstance connected with this point and that is this: The Sub-Inspector of Police had stated in his deposition that the accused wanted to make a certain statement and he was taken before the Chief Presidency Magistrate on two consecutive days, i.e on February 27 and 28, 1943, the Magistrate asked him to leave the Court on both the days, and the accused sat there for five hours on each day, but no statement was recorded by the Chief Presidency Magistrate. On this evidence the learned Judge told the jury as follows:—

“In this connection it will be important to remember that on two previous occasions the accused was taken before the Chief Presidency Magistrate and he had refused to make any statement though on one occasion he had stayed in the said Magistrate's Court for about five hours.”

It is urged by the learned counsel for the prosecution that there is no evidence to show that the accused had refused, to make any statement before the Chief Presidency Magistrate, and that the remarks of the learned Judge must have led the jury to believe that the accused refused to make a statement because the police asked him to make a false statement which he was not going to do.

For all these reasons it is urged that there have been misdirections to the jury on these points, with the result that the mind of the jury must have been to a certain extent influenced by the view that the confession was involuntary and was not properly recorded. In considering this argument, it is first necessary to examine what are the respective functions of the Judge and the jury in determining the voluntary and true nature of a confession.

Under s. 298 of the Criminal Procedure Code the Judge has to decide whether a confession is admissible in evidence and under s. 299 the jury has to decide whether it is true. Under s. 24 of the Indian Evidence Act a confession is irrelevant if it appears to the Court to have been caused by any inducement, threat or promise proceeding from a person in authority. Therefore, where it is proved that it has been so caused, it becomes irrelevant and therefore inadmissible in evidence. It is for this reason that the Judge has to hold on the evidence that it is voluntary in order to admit it in evidence. After it is so admitted, it is for the jury to decide whether it is true. In ascertaining its truth, a number of facts have got to be taken into consideration, e.g whether it is corroborated by other reliable evidence, whether it is natural and probable and also whether it is a free and voluntary statement. This last factor is an ingredient in ascertaining the truth of the confession because, although an involuntary confession may be true as when, under a promise of pardon, the accused makes a confession which may be corroborated by other reliable evidence, still the fact that a confession has been taken from the accused by inducement, threat or promise may make it likely that it was not true, especially when there is insufficient evidence to corroborate it. To that extent the jury has to consider, among other things, whether it is voluntary and they may hold that it is not voluntary even though it has been admitted in evidence. Thus the voluntary character of a confession is a mixed question of law and fact. It is to be decided by the Judge for the admissibility of the confession and the jury also may consider it in determining the weight to be attached to it. It is possible that the Judge may admit it in evidence after holding that it was voluntary and the jury may think it was not voluntarily made and therefore attach little or no weight to it. Whether the jury thought so or not cannot be known because no reasons are to be given for the verdict. The Judge cannot tell the jury that it was no part of their duty to consider whether the confession was made voluntarily or not. That would amount to a misdirection as held in Badan Ali v. Emperor. At the same time the Judge cannot ask the jury to decide whether the confession was voluntary and then to decide whether it was true. The jury has not to consider only the volitional character of the confession as detached from its credibility as the Judge has to do, but it has primarily to determine its truth and as a part of it to consider whether it was voluntary. To ask the jury to detach these two aspects and decide whether it was true if and after they are satisfied that it was voluntary amounts to a misdirection, because a confession may be involuntary and still true. That is exactly what has taken place in this case when the jury were told that if they thought that the confession was a voluntary statement, then the next point was whether it was a true statement. This, in my opinion, is contrary to law as well as authorities. The observations of Heaten J. in Emperor v. Kesari Dayal Kanji are pertinent on the point before us. He says (pp. 334-35):—

“If it is objected to, then it is for the Judge to decide whether it should be admitted in evidence or not. He ought not in any circumstances to throw on the Jury the duty of saying whether the confessions are voluntarily made or not. It may be that the Jury in considering all the circumstances of a case will take the question of the voluntariness of a confession into their consideration and it may influence their decision. But it is not for the Judge in his charge to the Jury to ask them to decide whether the confessions are voluntarily made or not. All he has to do, so far as I can understand, is to tell the Jury that in the exercise of the duty imposed on him he has allowed the confession to go in as evidence and it is for them to determine how much weight is to be attached to it, and to decide whether it is true or not.”

In Khiro Mandal v. The Emperor it was held that where the Judge left it to the jury to determine whether the confession was or was not voluntarily made, he is guilty of a serious error of law. In my opinion, in asking the jury to decide first whether the confession was voluntary or not, the jury were assigned the function of the Judge. There was, therefore, a misdirection to the jury on this point.

Moreover, there are two other circumstances in this case which bear upon this question. The learned Judge told the jury that although it may not be strictly speaking necessary for the Coroner to comply with all the formalities laid down by the High Court Circular with regard to confessions recorded by Magistrates under s. 164 of the Criminal Procedure Code, it was very desirable that the Coroner ought to have complied with those formalities, and he asked the jury to consider the circumstance of the Coroner not having done so in ascertaining the voluntary as well as true character of the confession. Now, the formalities prescribed in the High Court Circular relate to a confessional statement recorded under s. 164 of the Criminal Procedure Code. It has been held by our Court in King-Emperor v. Ramnath Mahabir* that s. 164 of the Criminal Procedure Code does not apply to investigations made by the police in the City of Bombay. It is true that in s. 19 of the Coroners Act it is stated that for the purposes of s. 26 of the Indian Evidence Act a Coroner shall be deemed to be a Magistrate. But that is for the purpose of enabling the Coroner to record a statement of a confessional nature made before him by a suspect in inquest proceedings, because under s. 26 of the Indian Evidence Act all confessions by persons in police custody must be made in the immediate presence of a Magistrate. It does not mean that because a Coroner is a Magistrate for the purposes of s. 26, he has got to comply with the formalities for recording confessions under s. 164 of the Criminal Procedure Code. Whether it is desirable that all officers recording confessions should observe similar formalities and precautions and that therefore the Coroner should also comply with all the directions given in the High Court Circular apart from the requirements of s. 19(2) of the Coroners Act, may be worth considering but according to the law as it stands at present, it cannot be said that the Coroner ought to have done what he was in law not bound to do. It is not improbable that the remarks made by the learned Judge about the desirability of complying with the directions in the High Court Circular by the Coroner led the jury to think that the confession was not properly recorded and therefore not voluntary. That also amounts to a misdirection.

Then there is the additional circumstance about the accused's alleged refusal to make a statement before the Chief Presidency Magistrate. There is nothing to show on the evidence as to why the statement of the accused was not recorded by the Chief Presidency Magistrate on the two days when he was taken to his Court. It may be that the learned Magistrate had no time to record it or that he was of the opinion that he had no power to do so. But, in any case, there was no evidence to show that the accused had refused to make any statement before the learned Magistrate. When the learned Judge told the jury that the accused had refused to make a statement, it might have led them to infer that the police pressed the accused for two days to make a confession but the accused did not desire to do so. In my opinion this also amounts to a misdirection.

It seems to me that on these directions by the learned Judge, the jury thought that the confession was not voluntary and that it was, therefore, not necessary to consider whether it was true. It is also likely that the view that the confession was not voluntary might have influenced their appreciation of the evidence of the prosecution witnesses. That seems to me to be sufficient reason for setting aside the verdict of the jury and the order of acquittal based thereon. Although this Court has the power to decide this appeal on facts after setting aside the verdict, it is not, in my opinion, desirable to do so because on account of the misdirection the jury had no opportunity to appreciate the evidence in its true perspective. It seems to me that in such a case the accused should not ordinarily be deprived of his valuable right to be tried again by a new jury.

As a result, the order acquitting and discharging the accused is set aside and, it is directed that he should be tried before another jury. The accused is before us and he will remain in custody till his trial before another jury.

We direct that as far as possible the accused should be tried in the current Sessions.

Lokuk, J.:—I agree. The accused was tried for the murder of a police constable by stabbing him in the back with a knife in the darkness of the night. The constable, was a stranger to him and there was no ill-feeling between them. The evidence disclosed no motive for such a dastardly crime, but in the statement which the accused made before the Coroner at the inquest, he made a confession and disclosed the reason why he stabbed the constable. The learned Judge held that confession to be voluntary and admitted it in evidence, but in his charge to the jury, after pointing out certair circumstances tending to throw doubt on the voluntary nature of the confession, he observed:—

“I have in admitting that statement taken the view that it is a voluntary statement, but that is only for the purpose of admitting the statement into evidence. It will be your business to see whether it is a true statement and for that purpose it may be necessary for you also to see whether it is a voluntary statement. … But ultimately the question whether it was voluntary or true will be a question for you to decide … You will have to consider the probabilities in the case and to see whether this can be regarded as a voluntary statement. If you think that this was a voluntary statement, then the next point you will have to consider is whether this is a true statement…”

Mr. Daphtary urges on behalf of the Crown that this is a misdirection which has affected the verdict of the jury. Under s. 24 of the Indian Evidence Act, an accused person's confession, which is not voluntary, is irrelevant in criminal proceedings. In a trial by jury, s. 298 of the Criminal Procedure Code requires the Judge to decide all questions as to the admissibility of evidence, and hence when a confession is tendered in evidence, he must decide whether it was voluntarily made and leave it to the jury to decide whether it is true. Both these are questions of fact, which it is the province of the jury to decide. But the question that initially arises is the admissibility of the confession in evidence, and s. 298, sub-s. (1)(c), of the Criminal Procedure Code lays on the Judge the duty of deciding upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matter to be given. In other words, to determine the admissibility of the confession, the Judge has to decide whether it is voluntary. But this does not preclude the jury from taking a different view when considering whether the confession is true. A confession that is voluntary is not necessarily true, nor is a confession that is not voluntary necessarily untrue. Yet the two questions have a bearing on each other. Hence though the Judge may decide the question of voluntariness in its bearing on admissibility, it is open to the jury to consider the question of voluntariness in its bearing on the truth of that confession. It would be a misdirection on the part of the Judge to tell the jury that he has already held that the confession is voluntary, and it is no concern of theirs to consider whether it is voluntary or not. As observed in Kishori v. Emperor, to charge the jury that they must accept the question of the voluntariness of the confession as concluded and to ask them to decide on that basis whether the confession is true or not and what value should be attached to it is a serious misdirection, inasmuch as it withdraws from the jury an issue of fact that has an important bearing on the question of the truth of the confession. This does not mean that if the jury find the confession to be not voluntary, they can leave it out of consideration and not see whether it is true or not. Mr. Gordhandas for the accused contends that the Judge may hold the confession to be voluntary before he has all the evidence before him and admit it, and therefore the jury may subsequently come to a different conclusion after hearing all the evidence. But though the Judge may have admitted the confession, if from subsequent evidence it transpires that it is defective according to law or is proved to be not voluntary, it is open to the Judge to withdraw the confession from the jury. But if the Judge does not do so and it remains on record as evidence, the jury cannot ignore it. It is quite conceivable that the Judge and the jury may differ on the question of the voluntary nature of the confession. Suppose the accused alleged that he had made the confession as the Police Sub-Inspector promised to obtain pardon for him if he told the whole truth. If the Judge believed that allegation, then the confession would be inadmissible in evidence under s. 24 of the Indian Evidence Act. But if the Judge finds that no such promise had been held out to the accused, he would admit the confession in evidence. Yet it is open to the jury to take into consideration the allegation of the accused for the purpose of finding out the truth of the confession. Assuming that the jury hold that the Police Sub-Inspector did induce the accused to make the confession by a promise of pardon, and that the confession is, on that account, not voluntary, yet they are bound to consider whether it is true or not. An accused person may, on a promise of pardon, tell the whole truth incriminating himself. In that case the jury may hold that the confession is not voluntary, and yet it is true. In such a case their finding that it is not voluntary does not debar them from acting upon the confession, since the Judge has admitted it in evidence. From this point of view it would be wrong for the Judge to ask the jury to decide first whether the confession is voluntary, and then to proceed to consider its truth only if they found it to be voluntary. This is exactly what the learned Judge directed the jury to do when he said— “If you think that this was a voluntary statement, then the next point you will have to consider is whether this is a true statement”. The proper direction to the jury would be to tell them that in the exercise of the duty imposed upon him he has found the confession to be voluntary and allowed it to go in as evidence, that it is for them to determine whether it is true or not and what weight is to be attached to it, and that for the purpose of doing so they are at liberty to consider how far the confession is voluntary. Such a direction is quite in consonance with the ruling in Emperor v. Kesari Dayal Kanji.

The learned Judge further pointed out to the jury two circumstances bearing on the question of the voluntariness of the confession, viz., that the Coroner, when recording the confession, did not observe all the formalities laid down in s. 164 of the Criminal Procedure Code, and the High Court Criminal Circulars, and that the accused was twice produced before the Chief Presidency Magistrate for confession but he refused to make a confession. The Coroner did not record the statement of the accused as a confession under s. 164 of the Criminal. Procedure Code, but as a statement made by the accused of his own accord, after giving him the warning required by s. 19(2) of the Coroners Act. Under s. 19(3) a Coroner is to be regarded as a Magistrate when recording such a statement only for the purposes of s. 26 of the Indian Evidence Act, so that the confession made by the accused when he was in custody may not be inadmissible on the ground that it was not made before a Magistrate. But that does not mean that as soon as the accused insists upon making a statement, the Coroner becomes a Magistrate and proceeds to record his confession under s. 164 of the Criminal. Procedure Code. It is no doubt desirable that the High Court Criminal Circular, which prescribes the formalities to be observed when recording a confession under s. 164 of the Criminal Procedure Code, should be extended also to confessions recorded by the Coroner. But as the circular now stands the Coroner is not required to observe those formalities. and in this case he has observed such formalities as he was bound to do under s. 19(2) of the Coroners Act.

The second circumstance pointed out to the jury is the refusal of the accused to make a confession before the Chief Presidency Magistrate. In this connection the learned Judge observed:—

“It will be important to remember that on two previous occasions the accused was taken before the Chief Presidency Magistrate and he had refused to make any statement though on one occasion he had stayed in the said Magistrate's Court for about five hours.”

This is not borne out by the evidence. All that is on record is that as the accused wanted to make a certain statement, the Police Sub-Inspector took him to the Chief Presidency Magistrate on two consecutive days and sat there for five hours on each day, but no statement of the accused was recorded by the Chief Presidency Magistrate. This does not mean that the accused was not prepared to make a statement or that he refused to state anything before the Chief Presidency Magistrate. It is quite possible that the Chief Presidency Magistrate was too busy to attend to the accused, and at last when he was free on the second day, he found that the accused had been brought for a confession, but he had no power to record it under s. 164 of the Criminal Procedure Code as held by Fawcett J. in King-Emperor v. Ramnath Mahabir*. Hence it was inaccurate to tell the jury that the accused refused to make a statement before the Chief Presidency Magistrate. That must have considerably influenced the jury in deciding whether the subsequent confession before the Coroner was voluntary or not.

These serious misdirections in the charge to the jury have materially affected their verdict and occasioned a failure of justice. The verdict and the acquittal of the accused must, therefore, be set aside, and I agree with the order for retrial passed by my learned brother.

Weston, J.:—I agree. I have only a few words to add. On first impression it appeared to me that the learned Judge was perfectly justified in drawing the inference he did and in directing the jury to draw the same inference, namely that when prior to the proceedings before the Coroner the accused had been taken on two consecutive days to the Chief Presidency Magistrate for the purpose of having his confession recorded and no confession was recorded then the accused should be presumed at that time to have refused to make a confessional statement. But it has been pointed out that in King-Emperor v. Ramnath Mahabir* it was suggested that, notwithstanding the amendment in the year 1923 of s. 164 of the Criminal Procedure Code to include Presidency Magistrates among Magistrates authorised to record confessional statements under that section, the power of the Presidency Magistrates under that section must be confined to cases where the investigation pending is not an investigation being carried out by the Bombay City Police. Whether this somewhat surprising result was intended by the Legislature or is required by the wording of s. 164 read with s. 26 of the Indian Evidence Act, it is not necessary to consider. It does appear that the fact that no confessional statement was recorded by the Chief Presidency Magistrate, although the accused was sent to him for the purpose of such statement being recorded, may be explained on grounds other than the then reluctance of the accused to make such a statement. There can be no doubt, I think, that the inference which the learned Judge drew influenced him considerably in his view of the value of the confessional statement made later before the Coroner, and I think equally that it must be presumed to have influenced, the jury.

I also agree that unless and until this Court has issued directions similar to those issued for the instruction of Magistrates recording confessions under s. 164 of the Criminal Procedure Code, the omission by the Coroner to comply with what are usually called the formalities of the existing High Court Circular is not of itself a factor to be taken into account when considering a confessional statement made to the Coroner. Both the voluntary nature and the truth of the confession must be judged in the light of the questions asked by and the answers given to the Coroner, of his fulfilment of the requirements of s. 19 of the Coroners Act, and of the evidence, if any, given by the Coroner. I agree, therefore, that the confessional statement made to the Coroner, which is one of the main pieces of evidence in this case, cannot be said to have been placed properly before the jury for their appreciation. I agree that we should allow this appeal, and I agree with the order proposed.

Appeal allowed.

A.J.P