Petitioner – Mohammed Rahamathulla
Respondent – State Of Mysore
Decided on – 21 September, 1967
Equivalent citations: AIR 1968 Mys 95, 1968 CriLJ 521, ILR 1967 KAR 1194
Bench: K Bhimiah
Statues Referred:
The Code Of Criminal Procedure
The Official Secrets Act, 1923
Case Referred
Purshottam Ishvar Amin v. Emperor, AIR 1921 Bom 3
Queen-Empress v. parshram Raysing, (1884) IRL 8 Bom 216
Queen Empress v. Alagu Kone, (1893) ILR 16 Mad 421
Suppa Tevan v. Emperor, (1906) ILR 29 Mad 89
Facts:
The petitioner is an accused standing trial before the IInd Additional Sessions Judge, Bangalore. In this revision petition, he has challenged the order passed by the learned Sessions Judge on I. A. No. IV in Bangalore Sessions Case No. 22/1967.
The accused was arrested on 9-9-1965 and was produced before the Magistrate on 10-9-1965. He was remanded to police custody till 23-9-1965. He was produced by the Police before the Magistrate on 20-9-65 with a request to record his confession statement under Section 164 of the Code.
The Magistrate remanded the accused to judicial custody till 21-9-1965. When the accused was produced before the Magistrate, he felt that it was necessary to record the confession in open Court and, therefore, remanded the accused to judicial custody with a direction to produce him on 29-9-1965.
The accused was produced before him on that day and he recorded the confession statement in open Court. Subsequently, the Central Government accorded sanction to lay complaint against the accused.
The petitioner in a revision petition stated that the confession statement recorded by the Magistrate under Section 164 of the Criminal Procedure Code, to be hereinafter called the ‘Code’ in not hit by the proviso to Section 13(3) of the Official Secrets Act, 1923, to be herein after called the ‘Act’.
Issue:
Whether the confession statement recorded by the Magistrate under Section 164 of the Code in this case is inadmissible in evidence.
Arguments Raised by petitioner:
Firstly, the petitioner argued that a Magistrate is prohibited under the provision to Section 13(3) from exercising any general powers under the code until the complaint is duly made under the Act.
Further he argued that the Magistrate is prohibited from exercising the power to record the confession under Section 164 of the Code if a request is made by the police to that effect in the course of investigation.
Respondent’s contentions
Mr. Shankara Chetty, the learned State Public prosecutor, contended that the investigating officer got the confession of the accused recorded by a Magistrate under Section 164, Cr. P. C. by way of collection of evidence.
He states out that the word ‘Magistrate’ is used in Section 164 and not the word “Court”.
He further urged that the recording of a confession by a Magistrate is not a judicial proceeding but it is a proceeding during the course of investigation.
Judgement:
“In the present case, the proceedings in the course of which evidence is or may be legally taken on oath begins only after cognizance is taken by the Magistrate on a complaint duly made against the accused. Therefore, confession recorded by the Magistrate under Section 164 of Cr. P. C. during the course of investigation is not a judicial proceeding as the Magistrate is not duly authorised by law to record the same as evidence. In a Full Bench decision of the Bombay High Court in Purshottam Ishvar Amin v. Emperor, AIR 1921 Bom 3, it is held as follows:–
“A statement recorded by a magistrate of a witness in the course of police investigation under Chapter XIV is, I think, not evidence in a stage of judicial proceeding.”
“The decisions in Queen-Empress v. parshram Raysing, (1884) IRL 8 Bom 216, Queen Empress v. Alagu Kone, (1893) ILR 16 Mad 421 and Suppa Tevan v. Emperor, (1906) ILR 29 Mad 89, dissented from. Therefore, the words “further or other proceedings” used in the provision to Section 13(3) of the Act are relatable only to those proceedings which a Court is empowered to take under the code after taking cognizance of the offence on a compliant duly made to it. Further, a Magistrate is not prohibited under Section 13(3) of the Act from exercising the power to record the confession of an accused under Section 164 of the Code, if the request is made by the police to that effect in the course of investigation. This is, in my humble opinion, the intendment of the Legislature. A confession recorded by a Magistrate under Section 164of the Code in respect of offences coming under the Act is admissible in evidence in the course of inquiry or trial of the accused. Therefore, both the contentions raised by Mr. Devadas are legally untenable and so they fail.”
Held:
It is held that this revision petition fails and the same is dismissed. The stay order passed in Cr. P. No. 428 of 1967 stands cancelled. Revision dismissed.
Prepared by – Devyansh Narula
