Report No. 69

III. Dying Declarations

38.6. During Declarations.-

Our mention of statements recorded under Section 164 of the Code of Criminal Procedure and of statements made by witnesses in general, brings us to an important question concerning what are popularly known as dying declarations. It may be pointed out that dying declarations do not fall within any of the three categories into which the statements covered by section 80 can be divided. They do not constitute "evidence given in judicial proceeding", and therefore do not fall within the first category.1 or are they recorded by an officer authorised by law "to take such evidence". Since they are not made by a prisoner or accused person, they do not fall within the second and third categories also.

1. Para. 38.3, supra.

38.7. Notwithstanding this position, it would appear that some High Courts1 have given the benefit of section 80 to dying declarations, sometimes without an analysis of the various categories in the section. These High Courts, with respect, have not paid sufficient attention to the fact that except for section 164 of the Code of Criminal Procedure, there is no other general provision in Indian Statute Law permitting or requiring a magistrate to record a dying declaration.

1. Para. 38.8, infra.

38.8. Case law.-

Thus, the Madras High Court1 has held that where the dying declaration has appended to it a certificate that it has been read over to the deponent and declared to be correct and signed by the Magistrate, section 80 creates a presumption that the circumstances stated are true, "the investigation by the Magistrate being a judicial proceeding.". There is, however, no detailed discussion of the meaning of the expressions "judicial proceeding" or "evidence",-the two expressions of importance used in section 80. The Allahabad High Court2 has held that section 80 is applicable to all dying declarations recorded by a Magistrate. Unfortunately, however, the judgment does not analyse the various ingredients forming part of section 80.

1. Karuppan Sampan (in re:), AIR 1916 Mad 121 (Spencer and Phillips, 11.).

2. Emp. v. Suraj Bali, ILR 56 All 750: AIR 1934 All 340 (Bennet, J.).

38.9. The Bombay view is to the contrary. In a Bombay case1 the Government Prosecutor argued that a dying declaration before a Magistrate on solemn affirmation could be admitted without proof under section 80. His point was that may be treated as a memorandum of evidence by a witness, before an officer authorised by law to take evidence". One of the judges-West, J.-observed, in his comment on this argument, that "the Magistrate was not the committing Magistrate, and the prisoners were not present, and had no opportunity of cross-examining the dying man".

1. Reg. v. Fata Adji, (1874) 11 Born HCR 247.

38.10. Criticising this reasoning, the Allahabad High Court,1 in the case already referred to, said that of all these reasons, not one reason could be altered if the Magistrate who recorded the dying declaration, were called. This is true, but it may be pointed out that in the Bombay case, the Judge observed in the judgment that the person who took the statement should be subject to cross-examination so that the Court may know the condition of the declarant and other circumstances. The reasoning on which the Bombay decision is based-though not stated in so many words-is that a dying declaration, even when made on solemn affirmation, does not fall within section 80, nor does it fall within section 33.

1. Emp. v. Suraj Bali, ILR 56 All 750: AIR 1934 All 340 (342) (Bennet, J.) (supra).

38.11. In the Allahabad case, reliance has been placed on the definition of "court" given in the Act-a definition which includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence. Since the Magistrate who recorded the dying declaration was legally authorised to do so and the inquiry which he was making was an inquiry directed for the purpose of recording a particular statement, the High Court seems to have taken the view that he was a "court". But the really important point does not seem to have been discussed in the Allahabad case, namely, what is the exact scope of the expressions "judicial proceeding" and "evidence" as used in section 80. These two expressions are crucial, and, as we have already shown while discussing1 section 3, the meaning of the expression "judicial proceeding" is not certain, and the matter is a difficult one.

1. See discussion as to section.-"Judicial Proceeding".

38.12. The Rangoon High Court1 has categorically held that a dying declaration has to be proved, for it is not a record of the "evidence" given by a "witness" before an officer authorised by law to take such evidence. Therefore, the presumption under section 80, Evidence Act, could not arise. In passing, however, the High Court observed that if the Magistrate "is empowered to record the evidence", it would have been unnecessary for him to prove that he took the statement, because "evidence" includes all statements which the court permits or requires to be made by witnesses and "court" includes judges and Magistrates.

1. Sulaiman v. King, AIR 1941 Rang 301 [304 (Case law discussed, Mosely, J.) and 303 (specific point discussed) (Bennet, J.)1.

38.13. Conclusion as to dying declarations.-

It may be pointed out that a Magistrate acting under section 164 of the Code of Criminal Procedure does not determine any jural relation, and it is difficult to see how the proceeding could be assumed to be a "judicial proceeding". If statements of witnesses recorded before trial do not satisfy the requirement of "judicial proceeding", then dying declarations cannot be covered by section 80.

Thus, with respect, the correctness of the Allahabad view is debatable, on the present language. However, from the practical point of view, it seems desirable to make some provision ensuring that section 80 can be used in such cases. Magistrates are frequently transferred from one place to another; and under the present law, every trying Magistrate would have to call the recording Magistrate to prove dying declaration. This position should be altered, as it causes inconvenience in practice. We believe that the amendment of section 80, which we are amending in relation to statements made under section 164, Cr. P.C.1 substantially achieve the object.

1. See the point relating to section 164, Cr. P.C. supra.

38.14. Dying declarations recorded by magistrates and other dying declarations-Distinction.-

The position regarding dying declarations will be clearer if the analogous situations are borne in mind separately.

(a) On a proper reading, the section would not apply, if the dying declaration was not recorded by a Magistrate. In such cases, there is no judicial proceeding.

(b) Where the dying declaration was recorded by a Magistrate, two situations require to be considered-

The first is where the Magistrate does not purport to act under section 164 of the Code of Criminal Procedure. In this case also, section 80 would not apply, there being no judicial "proceeding", whatever view one may take of section 164.

(ii) Where, however, the Magistrate purports to act under section 164, the question whether section 80 applies or not, depends on the other question, namely, whether section 80 applies to statements under section 164, Code of Criminal Procedure. We are, as stated above, proposing separately a clarification1 in relation to statements recorded under section 164. That should take care of most dying declarations recorded by Magistrates, and, in our view, section 80 ought not to apply to other dying declarations. This will not, of course, render other dying declarations irrelevant; but they will have to be proved by calling the person who recorded the declaration.2

1. See discussion relating to section 164, Cr. P.C. supra.

2. Rehman v. Emperor, AIR 1932 Lah 14.

IV. Meaning of the Expression "Duly Taken"

38.15. Meaning of "duly taken".-

This disposes of that part of section 80 which deals with various categories of documents covered by it. Where a document falls within any of these categories, the presumptions provided for in the latter half of the section apply. We have comments only on one of the presumptions under which (so far as is material) the confession taken down in the circumstances set out in the section shall be presumed to be "duly taken". This provision is to be found in the last words of the section. What we would like to emphasise is that these words do not rule out any defence to the effect that the confession was involuntary. This is, perhaps, obvious, but we think it proper to mention it here in order to emphasise an important limitation on the scope of the section.

V. Recommendation

38.16. Recommendation.-

As a result of the above discussion, we recommend that in section 80, the words and figures "or to be a statement recorded by a Magistrate under section 164 of the Code of Criminal Procedure 1973", should be added after the words "taken in accordance with law."

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