Report No. 69

III. Relationship with section 164, Code of Criminal Procedure

It remains now to deal with the latter half of section 29, which possesses certain special features. The latter half provides that a confession, otherwise relevant, does not cease to be so merely because "the accused was not warned that he was not bound to make such confession and that the evidence of it might be given against him"

11.69. Section 29, later half, and section 164, Cr. P.C.-

It remains now to deal with the latter half of section 29, which possesses certain special features. The latter half provides that a confession, otherwise relevant, does not cease to be so merely because "the accused was not warned that he was not bound to make such confession and that the evidence of it might be given against him"

At the first reading, this part of the section would seem to conflict with section1 164 of the Code of Criminal Procedure, 1898-now section 164, Code of Criminal Procedure, 1973. Section 164 lays down, inter alia, an elaborate procedure for warning the accused where the confession is recorded by the Magistrate.

The material part of section 164 of the Code reads2-

"(2) The Magistrate shall, before recording any such confession, ex-plain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him, and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily".

1. The conflicting decisions are collected in Rangappa v. State, AIR 1954 Born 285 (291, 292)

2. Section 164(2), Cr. P.C., 1973.

11.70. Diverse views.-

In judicial decisions, different views have been expressed on the question whether section 29 of the Evidence Act over-rides section 164 of the Cr.P.C. The decisions were rendered with reference to section 164 of the Code of 1898, but, in this respect, the section in the Code of 1973 makes no difference.

The first view on the subject is that section 29 is an overriding provision. This is the Bombay view. It was observed in the Bombay case that the Legislature, fully aware of the clear and unambiguous words used in section 29 of the Evidence Act, while introducing section 164(3) in the Criminal Procedure Code (by amendment Act 18 of 1923), did not think it necessary to provide for the supersession or modification of section 29. According to the Bombay view1therefore, non-compliance with section 164(3) [now section 164(2)] does not exclude the confession, and the court is free to accept or reject the confession, if it is voluntary or involuntary, as the case may be. To the same effect are decisions of the Madras2 and Rajasthan3 High Courts, and also of the Allahabad High Courts.4

The opposite view was taken by Ray C.J. and Narasimham J. (as he then was), in the Orissa High Court.5 The judgment of the Orissa High Court contains a full discussion of all aspects. The Mysore High Court6 takes a middle view, treating the confession recorded without the statutory warning as inadmissible only if the accused is prejudiced hereby. It is desirable that the matter should be clarified, one way or the other. We are of the view that as a matter of policy, section 164 of the Code of Criminal Procedure must prevail, because it embodies a rule inherently good, and it should not be open to a trial court to disregard non-compliance therewith and admit, a confession recorded in circumstances; showing such non-compliance. Hence an exception saving section 164(2), Cr. P.C.7 should be introduced in section 29.

1. Rangappa v. State, AIR 1954 Born 285 (290, 292), paras. 14, 21.

2. Vellamoonji Goundam Iin re;), AIR 1932 Mad 431.

3. Dhuula v. State, AIR 1957 Raj 141 (143), para. 9.

4. Emp. v. Nanua, AIR 1941 All 145 (147).

5. Bala Majhi v. State of Orissa, AIR 1951 Ori 168 (169, 175, 177), para. 1 and paras. 26, 34.

6. Madegowden (in re:), AIR 1957 Mys 50 (52), para. 8 (section 29, however, was not considered).

7. Para. 11.69, supra.

11.71. Reason for giving overriding effect to section 164.-

We have come to this conclusion for the reason that while the absence of a warning by itself may not, in general, be treated as a non-vitiating factor (in regard to a confession which is extra-judicial), the case of a confession purporting to be recorded under section 164 of the Code of Criminal Procedure is different, The confession is recorded judicially. We have in this section, a statutory provisions specifically providing for warning.

The whole object of the section is to ensure, as far as is practicable, the voluntariness, or at least circumstances conducive to voluntariness, in the making of confessions and of these circumstances, the requisite warning is an integral part. Irregularities in the record of compliance with the statutory requirements will, no doubt, be taken care of by the provision in this regard in the Code of Criminal Procedure.1 But the broad requirement of warning under section 164 is no idle formality. It symbolises the disinterestedness which one has come to associate with the judicial Magistracy.

1. Section 463, Cr. P.C., 1973 (see infra).

11.72. Section 29 Should override section 164.-

We, are therefore, of the view that it would be better to amend Section 29 so as to provide that it will be subject to section 164(2), Cr. P. C. override sec. 164. which deals with the requirement of warning. Such an amendment will be faithful to the proper import of section 164 as interpreted by the Privy Council. The Privy Council in Nazim Ahmed v. K. E., AIR 1936 PC 253, observed,-

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods are necessarily forbidden.

"Although the Magistrate acting under this group of sections is not acting as a court, yet he is a judicial Magistrate and both as a matter of construction and of good sense there are strong reasons for applying the rule in question to section 164. Upon the construction ad-opted by the Crown, the only effect of section 164 is to allow evidence to be put in a form in which it can prove itself under sections 74 and 80 of the Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this and that it is a section eon' ferring powers on Magistrates and delimiting them.

It is also to be observed that if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by sections 164 and 364 would be of such trifling value as to be almost idle. The range of Magistrate confessions would be so enlarged by this process that the provisions of section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case".

11.73. It may be noted that the actual judgment in the Privy Council case cited above was delivered by Lord Roche, and the other members of the Judicial Committee in this case were Sir John Wallis, Ex-Chief Justice of the Madras High Court, Sir Lancelot Sanderson, Ex-Chief Justice of the Calcutta High Court, Sir Shadi Lal, Ex-Chief Justice of the Lahore High Court, and Sir George Rankin, Ex-Chief Justice of the Calcutta High Court.

11.74. In consonance with the above approach, we recommend that a suitable amendment should be made in section 29, so as to ensure that the section does not render relevant a confession which is recorded by a Magistrate which is inadmissible by virtue of non-compliance, with section 164(2) of the Code of Criminal Procedure. We, therefore, recommend that section 29 should be revised as follows:-

Revised section 29

"29. If a confession is otherwise relevant, it does not become irrelevant merely because-

(a) it was made

(i) under a promise of secrecy, or

(ii) in consequence of a deception practised on the accused person for the purpose of obtaining it, or

(iii) when he was drunk, or

(iv) in answer to questions which he need not have answered, or

(b) the accused person was not warned that he was not bound to make such confession and that the evidence of it might be given against him. Exception.-Nothing in this section shall affect the provisions of sub-section (2) of section 164 of the Code of Criminal Procedure, 1973, as to the recording of confessions by Magistrates."

11.75 & 11.76. Recommendation in 14th Report, as to retracted confession.-

It is now necessary to refer to a recommendation made in the 14th Report1 of the Law Commission, to the effect that the rule of practice and prudence which requires corroboration of a retracted confession, should be given statutory recognition, since the rule has achieved the status of a principle of law and has been universally recognised and acted upon. We quote below the relevant passage from that Report.:

"There is no statutory requirement that the confession of an accused person. later retracted should be corroborated before it is acted upon. In a large number of cases, prisoners who have made lengthy and detailed confessions duly recorded under section 164, Criminal Procedure Code, and have reiterated them in the committing magistrate's court, resile from these confessions in the court of session.

The task of the Judges in such cases is made very difficult. Judicial decisions have therefore laid down the rule that while a conviction on a retracted confession is not illegal, yet prudence dictates that a conviction should be "based on such a confession, only if it is corroborated by independent testimony. The rule of practice and prudence requiring corroboration of a retracted confession has achieved the status of a principle of law and has been universally recognised and acted upon. We would suggest that this rule might be given statutory recognition".

1. 14the Report (Reform of Judicial Administration),Vol. 2.

11.77. We have, however after careful consideration, come to the conclusion that it is better to leave the matter as it is, so that the court may decide the matters on a consideration of all evidence before it, giving such credence to the confession as it thinks fit in the circumstances of the case.

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