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Jai Narayan Rai v. The Queen Empress
Factual and Procedural Background
The prisoner was convicted for the murder of Mahabir Rai. The conviction rested on the testimony of a Sub-Deputy Magistrate who deposed that the prisoner confessed to him, stating that he had cut Mahabir's throat at night with a gharasa and pointing out the instrument. The trial Judge disbelieved other direct evidence implicating the prisoner, concluding that the alleged direct evidence was manufactured and that the murderer had escaped detection; the prisoner had been denounced on suspicion.
A confession had been recorded by the Sub-Deputy Magistrate under Section 164 of the Criminal Procedure Code (a five-page written record, signed and certified). When tendered at trial, the recorded confession was rejected by the Judge on the ground that the requirements of Section 164 read with Section 364 (particularly as to the language in which the confession was recorded) had not been complied with, and the Judge treated the recorded document as if it did not exist. Despite rejecting the recorded document, the Judge accepted the Sub-Deputy Magistrate's oral testimony that the prisoner had confessed.
The appellate court considered (a) whether oral testimony proving a confession is admissible when the written confession recorded under Section 164 has been rejected; and (b) whether defects in the recording (specifically that the written confession was in English though English was not the language used or understood by the prisoner) could be cured by Section 533 of the Criminal Procedure Code. The court ultimately set aside the conviction and directed that the prisoner be acquitted.
Legal Issues Presented
- Whether, if a confession recorded under Section 164 of the Criminal Procedure Code is rejected as inadmissible, oral evidence (testimony of the Magistrate who recorded it) may nevertheless be admitted to prove that the accused made the confession.
- Whether defects in compliance with Sections 164 and 364 (specifically, recording the confession in English when that was not the language used or understood by the accused) are cured by Section 533 of the Criminal Procedure Code, thereby permitting admission of the statement.
- Whether the requirements of Sections 164 and 364 as to the language and certification of a recorded confession are mandatory (imperative) or susceptible to cure under Section 533.
Arguments of the Parties
Appellant's Arguments (the prisoner)
- The prisoner contended that if the recorded confession is rejected as inadmissible, oral evidence is inadmissible to prove that he confessed; the only confession that can be proved is the confession recorded under Section 164.
Respondent's/Prosecution's Arguments
The opinion does not contain a detailed account of the prosecution's legal arguments on the question of admissibility or the application of Section 533.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Queen-Empress v. Viran, I.L.R. 9 Mad. 224 | Held that provisions of Section 164 are imperative and that Section 533 will not render a confession admissible where there was no attempt to conform to Section 164's provisions (e.g., confessions taken down in English when not otherwise compliant). | The court cited this decision to show an existing judicial view that Section 164's requirements are imperative and that Section 533 cannot be used to validate a recorded confession where there was effectively no compliance with Section 164. |
| Queen-Empress v. Nilmadhub Mitter, I.L.R. 15 Cal. 595 | The Full Bench expressed caution: when answers are made in one language and written in another without showing impracticability, Section 164 read with Section 364 may not be complied with, and there are "very grave doubts" whether Section 533 could cure such defect. | The opinion relied on the Full Bench's guarded statement to support the proposition that language requirements in Sections 164 and 364 are likely not curable by Section 533; the earlier case did not finally decide the point but expressed serious doubt about curing language non-compliance. |
Court's Reasoning and Analysis
The court proceeded through a series of legal steps grounded in the statutory framework and precedent:
- Nature of recorded confessions: The court observed that Section 164 (part of Chapter XIV) requires that a confession made to a Magistrate under specified circumstances be recorded and signed in a prescribed manner, making the confession a document. Under Section 91 of the Evidence Act, where such a document is available, the document itself is the primary evidence of the confession (i.e., secondary/oral evidence is inappropriate where the original document exists).
- Interaction with Section 533: Section 533 of the Criminal Procedure Code modifies Section 91 with respect to confessions recorded under Section 164. It requires that where a confession recorded under Section 164 is tendered and the court finds that the statutory provisions were not fully complied with, the court shall take evidence that the accused duly made the recorded statement; and, despite Section 91, may admit the statement if the error did not injure the accused's defence on the merits. The court emphasized that Section 533 does not authorize treating a recorded confession as non-existent; rather, it contemplates taking evidence to prove the very confession recorded and tendered.
- The Judge below treated the recorded confession as if it never existed and admitted oral testimony of the Magistrate instead. The appellate court concluded this course was without legal authority: the Judge effectively allowed secondary oral proof of a matter required by law to be in documentary form while having rejected the documentary record itself.
- Whether Section 533 cures the specific defects: The court considered whether the Judge was correct in holding that Section 533 did not cure the defects. The recorded statement in this case was written entirely in English though English was not the language used or understood by the prisoner. Sections 164 and 364 require recording in the language in which the accused was examined, or, if impracticable, the language of the Court or English. The court held that these provisions are imperative regarding language, and it is for the prosecution to establish impracticability if claimed. Here there was no showing of impracticability.
- Distinction between omissions and direct violations: The court drew a legal distinction between mere omissions by the Magistrate (e.g., failing to sign or to certify required matters), which Section 533 was intended to remedy by permitting evidence that the recorded statement was duly made, and direct violations of statutory prescriptions (such as recording in a language other than that in which the accused spoke when there was no impracticability). The court concluded Section 533 should be strictly construed and was not designed to cure such direct infractions of the statutory mandate.
- Practical and evidentiary concerns: The court noted the practical danger of accepting a condensed oral summary of a multi-page written confession. The written confession in this case ran to five pages and included certification and formalities; the Deputy Magistrate's oral account covered only a few lines and might not reflect the full content. Those considerations reinforced the legal conclusion that the documentary record could not be disregarded in favor of oral condensation.
Conclusion of analysis: The court agreed that the recorded confession was inadmissible for non-compliance with Sections 164 and 364. It also held that the trial Judge erred in admitting oral evidence of the confession after rejecting the recorded document. Because, apart from the confession, there was no proof against the prisoner, the conviction could not stand.
Holding and Implications
Holding: The court directed that the conviction be set aside and ordered that the prisoner be acquitted. The core ruling is summarized as: CONVICTION SET ASIDE; PRISONER ACQUITTED.
Implications (direct legal consequences as stated in the opinion):
- The recorded confession tendered under Section 164 of the Criminal Procedure Code was inadmissible because it did not comply with the mandatory language requirement of Sections 164 read with 364 (it was recorded in English though English was not the language used or understood by the accused, and no impracticability was shown).
- Section 533 cannot be used to salvage a confession recorded in direct violation of the statutory requirements as to language; Section 533 was intended to remedy omissions in compliance (such as failure to sign or to certify required particulars) by permitting evidence that the accused duly made the recorded statement, but not to validate confessions recorded in contravention of the statutory scheme.
- The trial Judge's admission of oral testimony by the Deputy Magistrate to prove the confession after rejecting the written record was unauthorized; oral evidence cannot be substituted for a document that the statute requires to exist and be produced.
- The immediate consequence for the parties: because the confession was the only admissible evidence implicating the prisoner and it could not be proved, the conviction was unsustainable and the prisoner was acquitted.
The opinion emphasizes a strict construction of Section 533 when it operates against an accused person and warns of the practical danger of accepting condensed oral proofs in place of statutorily required written records. The court did not purport to create any broader rule beyond the statutory interpretation and the disposition in this case.
1. The prisoner has been convicted of the murder of Mahabir Rai on the evidence of a Sub-Deputy Magistrate who deposes to a confession which the prisoner made. His evidence is this-
" He (the prisoner) told me that he had killed a man named Mahabir, because Mahabir had admitted to the Magistrate that he had killed his (the prisoner's) father Suroop. He said he had cut the throat of Mahabir in the night with a qharasa as he slept on a bed. He pointed out the gharasa, which lay on the ground in front of him."
2. There is no other proof against the prisoner, as the direct evidence which implicated him was disbelieved by the Judge, who says it was not relied on by the prosecution, that he has no manner of doubt it is manufactured, and that the murderer, whoever he was, got clear off without any sort of detection, the prisoner being afterwards denounced on mere suspicion. There is, however, evidence that the prisoner's father had been killed in a riot which took place some time previously, and that Mahabir, who with others had been committed to the Sessions on a charge of being concerned in it, had stated that he had inflicted the wound which caused his death. That case was still pending in the Sessions Court, and Mahabir and the other accused had been released on bail. The confession to which the Sub-Deputy Magistrate speaks was recorded by him under the provisions of Section 164 of the Criminal Procedure Code, but the recorded confession was rejected by the Judge on the ground that the provisions of that section read with section 364 as to the manner of recording it had not been complied with, and that it was therefore inadmissible. The Judge in rejecting the recorded confession treats it as if it had never been made and was not in existence.
"The position, (he says) is only thereby reduced to this, that it is the same as if no record had been made and that the Deputy Magistrate had come into the box and said 'the prisoner told me that he had killed Mahabir, but I did not write down what he had said.'"He then comes to the conclusion that the confession deposed to by the Deputy Magistrate is true and sufficiently proved
3. It is contended for the prisoner that if the recorded confession is rejected and put aside oral evidence is inadmissible to prove that he did confess. We think the contention is correct, and that the only confession (if any) which can be proved against the prisoner is the confession which was recorded under Section 164 of the Procedure Code.
4. There can he no doubt that the Deputy Magistrate was acting under Section 164. At the time when the confession was made, the Police had commenced an investigation under chapter XIV of the Procedure Code, the prisoner was in their custody, the confession was recorded in the presence of the Sub-Inspector, and the Deputy Magistrate purported to act under Section 164. That section, which is part of chapter XIV, provides that when a confession is made to a Magistrate under such circumstances, the confession shall be recorded and signed in a specified manner. It is therefore a matter which is required by law to be reduced to the form of a document; and under Section 91 of the Evidence Act, the only evidence which could be given in proof of such matter is the document itself, for, as this is forthcoming, there is of course no question of secondary evidence.
5. Section 5331 of the Criminal Procedure Code modifies, however, as regards confessions, Section 91 of the Evidence Act. It provides that when, on the tender of a confession recorded under Section 164, it is found that the provisions of that section and of section 364 have not been fully complied with, the Court shall take evidence that the accused person duly made the statement recorded. That section does not authorise the Court to proceed as if there had been no recorded confession, or to treat such confession as non-existent: it clearly means that the evidence which is to be taken shall be evidence that the accused person duly made the particular confession which was recorded and tendered. If, therefore, a document framed under Section 164 of the Procedure Code is inadmissible owing to a non-compliance with the provisions of the law, the Court must proceed under Section 533, if the defects are cured by the provisions of that section. If they are not cured, no proof of the confession can be given.
6. The Judge does not profess to have acted under Section 533: he makes no allusion to it, but apparently considers that the defects in the record of the confession are not cured by it. He has in effect, however, admitted oral evidence of a matter which is required by law to be reduced to the form of a document, although he rejected that document when it was tendered. The Deputy Magistrate does not, it is true, profess to speak to the contents of the document, but there is no pretence for saying that he spoke to any other confession than that which was made to him on the 22nd October, and which he recorded under Section 164. The course which the Judge has followed seems to us not only without authority of law, but opposed to the law as it is in this country. We might also point out the great danger attending it. The recorded confession, which the Legislature has attempted to safeguard in every possible way so as to make it a perfect record of all that the prisoner did say covers five pages of foolscap. The confession as spoken to by the Deputy Magistrate covers four or five lines. The former may or may not amount to a confession: no one can say without reading the whole of it. Yet it is not to be looked at, and the Deputy Magistrate's condensed version of it, possibly for all that is known an erroneous version, is to be accepted.
7. On this part of the case we have no doubt. But we have assumed so far that the Judge was right in holding that the defects which made the document inadmissible were not cured by the provisions of Section 533 of the Procedure Code. He can hardly have overlooked that section, and we must take it that this was what he intended to find, although he does not expressly say so. The question whether he was right in this conclusion is a much more difficult one. It does not arise on the appeal of the prisoner, who, if he can get rid of the admitted evidence, is of course content to accept the Judge's decision as to the excluded portion; but the case is before us as a whole, and we think we must deal with it.
8. The confession which was recorded under Section 164 and tendered in evidence is written entirely in English. There is only one question "Did you kill Maha-bir Roy?" Then follows a long statement covering five pages of foolscap paper. The record bears the signature of the prisoner and of the Deputy Magistrate, and has attached to it the certificate prescribed by Section 164, which is also signed by the Deputy Magistrate. The statement purports, however, on its face to be made on solemn affirmation. The first page is written on the form furnished for the depositions of witnesses, but it may be there was an omission to strike out the words inappropriate to the examination of an accused person or to a confession, although it is singular that while the word "statement has been substituted for deposition" and the words "oath or" have been struck out, the words "solemn affirmation" have been allowed to remain. This, however, is a matter which might be cleared up by evidence. Probably no questions were asked, as the recorded confession was rejected as inadmissible. The ground of the rejection was that it was written in English, which was not the language used or understood by the prisoner, although the Deputy Magistrate understood and could write such language.
9. Section 364 read with Section 164 enacts that the confession shall be recorded in full in the language in which the accused person is examined, or if that is not practicable, in the language of the Court, or English. It is clear that this provision of the law was not complied with. The question is whether the defect is cured by the provisions of section 533, which is as follows:
If any Court before which a confession or other statement of an accused person recorded under Section 164 or Section 364 is tendered in evidence finds that the provisions of such section have not been fully complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and notwithstanding any thing contained in the Indian Evidence Act, Section 91, such statement shall be admitted if the error has not injured the accused as to his defence on the merits.
10. The point, so far as we know, has not been definitely decided. In the Queen-Empress v. Viran I.L.R. 9 Mad. 224 the confessions were taken down in English, and not in the language in which they were made, but there was in other respects hardly any attempt to conform to the provisions of Sections 164 and 364. PARKER, J., held that the provisions of section 164 are imperative, and that Section 533 will not render the confession admissible when no attempt at all has been made to conform to its provisions. In the Queen-Empress v. Nilmad-hub Mitter I.L.R. 15 Cal. 595, which came before a Full Bench of this Court, the question arose but it was unnecessary to determine it. The Chief Justice in delivering the judgment of the Court said with reference to a confession:
"We wish to guard ourselves from being supposed to hold that when answers are made by an accused person in one language and written down in another, unless it was shown that it was impracticable to write them in the language in which they were spoken, Section 164 would be complied with, on the contrary, we think that when such a proceeding is adopted, the statement of the accused would not be recorded under that section read with Section 364, and we have very grave doubts whether the defect could be cured under the provisions of section 533."
11. The question, which is not free from difficulty, is therefore still an open one. In our opinion the provisions of Section 164 read with Section 364 are imperative as to the language in which a confession is to be recorded, and Section 533 does not contemplate or provide for any non-compliance with the law in this respect. It is clear from the two sections first mentioned that the confession is to be recorded in the language in which it was made, or, if that is not practicable, in the language of the Court or English. It would be for the prosecution to establish the impracticability, if any existed. Here there was obviously none.
12. The recorded confession speaks for itself, but the Magistrate is directed to do certain things in connection with it, and to render the document admissible in evidence it must appear on its face that these things have been done. He is directed to sign it, to certify that he believes the confession to be voluntary (and he is prohibited from recording a confession until he has satisfied himself by questioning the person making it that it is voluntary); he is also to certify that it was taken in his presence and hearing, that it was read over to the person making it and admitted by him to be correct, and that it contains a full and true account of the statement made by him. The provisions of the Act would not be fully complied with by the Magistrate if he failed to sign the confession and the certificate, and to certify all the facts which he is required to certify; and it is against omissions of this kind by the Magistrate that we think Section 533 was intended to provide a remedy by allowing evidence to be taken that the accused person duly made the statement recorded. The section would only come into operation when a confession or other statement of an accused person recorded under Section 164 or Section 364 was tendered, but a confession recorded, in direct violation of those sections would not be a confession recorded under them; and the recorded statement, to be proved, must mean a statement recorded in accordance with the provisions of the Act and not in violation of them. It may be argued that if the Magistrate recording the confession records it in a language other than that directed by law, there is on his part a non-compliance with the provisions of the law which is cured by Section 533, as much as non-compliance with any other provisions; but there is a difference between non-compliance, an omission to do something which a person is directed to do, and a direct violation of the law; and, as I have said, the section seems to assume that the confession has been recorded in accordance with the provisions of the law. It is a section which provides a remedy in cases in which certain provisions of the law have not been fully complied with by the Magistrate, and, operating as it does against the accused person and not in his favour, it must be strictly construed. It would, we think, be extremely dangerous so to construe it as to include not only omissions to comply with the law, but infractions of it.
13. We think, therefore, the Judge was right in holding that the recorded confession was inadmissible, and that it could not be proved; but as we have held that he was wrong in admitting evidence to prove a confession to the Deputy Magistrate, and, as apart from the confession, there is no proof against the prisoner, we must set aside the conviction and direct that the prisoner be acquitted.
1 Non-compliance with provisions of section 164 or 364.
[Section 533: If any Court before which a confession or other statement of an accused person recorded under Section 164 or Section 36i is tendered in evidence finds that the provisions of such section have not been fully complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and, notwithstanding anything contained in the Indian Evidence Act, Section 91, such statement shall be admitted if the error has no injured the accused as to his defence on the merits.]
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