2018 (3) TMI 2022 - HC - Indian Laws

Confessional statement recorded under the provisions of Section 164 Cr.P.C on oath - protected by the provisions of Section 463 Cr.P.C or not - whether the judgment of the Division Bench of this Court reported in re Arjun Rai v State of Sikkim 2004 (4) TMI 663 - SIKKIM HIGH COURT is good law? - whether mere administering of oath to an accused while recording his confessional statement keeping in mind sub section 5 of section 164 Cr.P.C, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 Cr.P.C and thus fatal? - violation of Article 20 (3) of the Constitution of India or not. HELD THAT - A bare perusal of Section 164 Cr.P.C. ought to make it clear to the Magistrate that the entire exercise to be meticulously conducted by the Magistrate while recording the confession is to ensure its truthfulness and voluntariness. These are paramount safeguards provided in the law under Section 164 and 281 Cr.P.C., Section 4 (2) of the Oaths Act, 1969 as well as Article 20 (3) of the Constitution of India. This is to ensure not only that the accused person is absolutely insulated from being compelled into self-incrimination but also to see that the accused not effected and not pressured by any external influences is willing to confess a crime committed by him which would be accepted as evidence against him. It would be strange that the Magistrate so empowered, to ensure its truthfulness and voluntariness himself commits an illegality which is prohibited giving reason to doubt not only of a failure of proper application of mind but also as to whether the confession itself was involuntary, under pressure of illegal oath administered. It has been held that administering oath to an accused before recording his confession is prohibited, unlawful and illegal. The Magistrate while administering oath on an accused before recording the confession commits an illegality and unlawful act prohibited by law. Any information received which may be self-incriminatory in violation of the laws as well as the Constitutional guarantee, which may have compelled the accused to self-incriminate cannot but be termed duress or undue influence . While it is true that the demand or requirement for speaking truth is absolute both by a witness after he is administered oath and by an accused while making a confession, administering oath upon an accused while recording his confession would lead to disastrous consequences. A perusal of Section 164 read with Section 281 Cr.P.C. makes it evident that the record of the examination of the accused is required to be done in a question and answer format. Section 281 Cr.P.C. mandates that whenever an 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 by the Presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in his behalf. The administration of illegal oath upon the accused at the first instance and thereafter questioning the accused person and seeking information which is self-incriminatory cannot but fall squarely within the ambit and scope of testimonial compulsion . The substantial illegality of administering oath upon an accused before taking a confession which is prohibited cannot be termed as a curable irregularity under Section 463 Cr.P.C. Answering the first question referred by the Division Bench in the affirmative we hold that the confessional statement recorded under the provision of Section 164 Cr.P.C. on oath is fatal and cannot be protected by the provision of Section 463 Cr.P.C. In the circumstances and consequently the judgment of the Division Bench of this Court in re Arjun Rai 2004 (4) TMI 663 - SIKKIM HIGH COURT is good law. Supreme Court in re Brijbasi Lal Shrivastava 1979 (1) TMI 250 - SUPREME COURT , held that administration of oath while recording statements of the accused under section 164 Cr.P.C. would amount to a concealed threat. If this be so then to permit further evidence to disprove what has been held to be a concealed threat would be to dilute the fundamental protection given to an accused under Article 20 (3) of the Constitution of India which we are not inclined to in today's context where the accused due to social conditions, lack of knowledge or advise may not be in a position to understand the nuances and intricacies of the laws. It is also evident that on examination of Section 164(5) Cr.P.C. administering of oath to an accused while recording confession without anything more may lead to an inference that the confession was not voluntary. However, there could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 Cr.P.C and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused. If the Court before which such document is tendered finds that it was so, Section 463 Cr.P.C would be applicable and the Court shall take evidence of non-compliance of Section 164 and 281 Cr.P.C. to satisfy itself that in fact it was so and if satisfied about the said fact is also satisfied that the failure to record the otherwise voluntary confession was not in the proper form only and did not injure the accused the confession may be admitted in evidence. Let the said appeal be placed before the appropriate Bench for final disposal.

Summary

Issues Involved:

1. Whether a confessional statement recorded under Section 164 Cr.P.C on oath is fatal or curable under Section 463 Cr.P.C.
2. Whether administering an oath to an accused while recording a confessional statement implies the confession is not voluntary.
3. Whether administering an oath to an accused while recording a confessional statement violates Article 20(3) of the Constitution of India.

Detailed Analysis:

Issue 1: Whether a confessional statement recorded under Section 164 Cr.P.C on oath is fatal or curable under Section 463 Cr.P.C.

The judgment emphasizes that the provisions of Section 164 Cr.P.C. must be complied with in both form and essence. Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confessions and renders the confession unworthy of credence. Section 463 Cr.P.C. allows the Court to take evidence regarding non-compliance with Sections 164 and 281 Cr.P.C. and may admit such a statement if it is satisfied that the non-compliance has not injured the accused in his defense on the merits and that he duly made the statement recorded. However, administering an oath to an accused while recording a confession, which is prohibited by law, is considered a substantial illegality and cannot be cured under Section 463 Cr.P.C. This is because administering an oath to an accused person may lead to an inference that the accused was compelled to make a self-incriminatory statement under duress, which affects the voluntariness of the confession. The judgment concludes that a confessional statement recorded on oath is fatal and cannot be protected by Section 463 Cr.P.C.

Issue 2: Whether administering an oath to an accused while recording a confessional statement implies the confession is not voluntary.

The judgment discusses that administering an oath to an accused while recording a confessional statement is prohibited and unlawful. It is held that such an act by the Magistrate may lead to an inference that the confession was not voluntary. The rationale is that administering an oath imposes a concealed threat on the accused, which may compel the accused to make a self-incriminatory statement. This affects the voluntariness of the confession, which is a fundamental requirement for its admissibility. However, it is also noted that there could be cases where the confession was recorded in full compliance with the mandate of Section 164 and 281 Cr.P.C., and no actual oath was administered, but the confession was recorded in a form that gave an impression that an oath was administered. In such cases, Section 463 Cr.P.C. may be applicable, and the Court can take evidence to satisfy itself that the confession was voluntary and the failure to record it in the proper form did not injure the accused.

Issue 3: Whether administering an oath to an accused while recording a confessional statement violates Article 20(3) of the Constitution of India.

The judgment extensively discusses the historical and legal context of the right against self-incrimination under Article 20(3) of the Constitution of India. It is emphasized that Article 20(3) embodies the privilege against self-incrimination, which is a fundamental right. The privilege is intended to ensure the reliability and voluntariness of statements made by an accused and to protect the accused from being compelled to testify against themselves. The judgment concludes that administering an oath to an accused while recording a confessional statement violates Article 20(3) of the Constitution of India. This is because the act of administering an oath imposes a concealed threat on the accused and may compel them to make a self-incriminatory statement, thereby infringing their fundamental right against self-incrimination.

Conclusion:

The judgment concludes that administering an oath to an accused while recording a confessional statement is prohibited, unlawful, and illegal. Such an act violates Article 20(3) of the Constitution of India and affects the voluntariness of the confession. The substantial illegality of administering an oath cannot be cured under Section 463 Cr.P.C. The judgment of the Division Bench in re: Arjun Rai is affirmed as good law, holding that a confessional statement recorded on oath is inadmissible and cannot be protected by Section 463 Cr.P.C.