Holding

An omission in a Section 161 statement can be a material contradiction that must be explained by the public prosecutor under the proviso to Section 162(1); the court cannot use Section 172 CrPC to explain such contradiction, case‑diary entries are not evidence but may aid the court, and a magistrate’s confession recorded without the required warnings and satisfaction of voluntariness is inadmissible, leading to the upholding of Ranbir Singh’s conviction and restoration of the acquittals of the other three accused.

Summary

The Supreme Court examined the murder trial of Ranbir Singh and three co‑accused, where the trial court convicted Ranbir Singh under Section 302 IPC and acquitted the others, but the High Court reversed the acquittals. The Court held that an omission in a statement under Section 161 CrPC can constitute a material contradiction, which must be explained by the public prosecutor under the proviso to Section 162(1) and cannot be clarified by the court using its power under Section 172 CrPC. It clarified that case‑diary entries are not evidence and may be used only to aid the court, and any contradiction must follow the procedure of Section 145 Evidence Act. The Court also ruled that a confession recorded by a magistrate without the mandatory warnings and satisfaction of voluntariness under Section 164 CrPC is inadmissible. Consequently, Ranbir Singh's conviction was upheld, while the acquittals of Mahabir Singh, Sultan and Sis Pal were restored.

Issues considered

Whether an omission in a statement under Section 161 CrPC amounts to a material contradiction and how it must be dealt with under the proviso to Section 162(1).
Whether the court may use its power under Section 172 CrPC to explain a contradiction when the public prosecutor fails to do so.
Scope and evidentiary status of case‑diary entries under Section 172 CrPC and the procedure for using them to contradict a police officer.
Admissibility of a confession recorded by a Judicial Magistrate under Section 164 CrPC when statutory safeguards are not complied with.
Whether statements made "at or about the time" under Section 157 Evidence Act are admissible in the present facts.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 164, s. 172, s. 313, s. 379
Indian Evidence Act, 1872s. 145, s. 157
Indian Penal Code, 1860s. 302, s. 34
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970s. 2

Subjects

murderconfessioncase diarycontradictionSection 162 CrPCSection 172 CrPCSection 164 CrPCSection 145 Evidence ActSection 157 Evidence Actappeal against acquittalSection 34 IPCSection 302 IPC

Judgment

MAHABIR SINGH A
V.

STATE OF HARYANA

JULY 26, 200 I

[K.T. THOMAS AND R.P. SETHI, JJ.] B

Evidence Act, 1872 :

Section 145-Previous statements in writing-Cross-examination as to--
Entries in Case Diary-Contradicting a police officer-Manner in which it is C
to be done-Held, Author of the entries to be given an opportunity to explain
the contradiction after drawing his attention to those entries intended to be so
used for contradiction.

Code of Criminal Procedure, 1973 :
D
Section 172-Proceedings in investigation-Diary of-Contradiction-
Failure by public prosecutor to explain-Power of court under-Held, Court
cannot use power under S.172 to explain the contradiction.

Case Diary-Scope and ambit of-Held, Entries in such diaries cannot E
be used as evidence and ure only meant to aid the court to decide on a point.

Section 164-Confessions and statements-Recording of-By a-
Magistrate-Scope and power of-Held, Accused need not be produced by
police/or recording his confession-But his appearance must be in the course
of an investigation-Even if the Magistrate believes· that investigation has F
commenced and the person is concerned in such a case his confession may be
recorded-Otherwise all and sundry cannot demand recording of confession
by a Magistrate.

Confession-Recording of-Pre-requisites of-Held, Magistrate must
explain to the person making a confession that he is not bound to do so, and G
that if he does so, such confession may be used as evidence against him-
Further, the Magistrate has to be satisfied that the confession is a voluntary
one.

Words and Phrases :
37
H
38 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A "At or about the time"-Meaning of-In the context of S.157 of the
Evidence Act, 1872.

The appellant-accused (A-1) was arraigned for the offence under Section
302 of the Penal Code, 1860 along with the appellants-accused (A-2 to A-
4) for the offence of murder of the same deceased with the aid of Section 34
B IPC. The trial court convicted A-1 and acquitted A-2 to A-4. But the High
Court, while confirming the conviction of A-1, convicted A-2 to A-4 also on
the ground that the trial court had the duty to peruse the case diary prepared
as per Section 172 of the Code of Criminal Procedure, 1973 for satisfying
itself whether PW-I had stated any particular fact during the interrogation.
C Hence these appeals.

According to the prosecution, A-1 caught hold of the deceased and
stabbed him with a knife on his abdomen. When the deceased made a bid to
escape from the scene, he was intercepted by all he four accused persons and
they all inflicted blows on him. The deceased died on the spot itself.
D Subsequently, A-1 barged into the courtroom of PW-2, Judicial Magistrate of
I st Class, who recorded the confession of A-1. PW-I, the solitary eyewitness
to the occurrence, reported the incident to his father, PW-I 0, soon after the
occurrence, on the basis of which PW-10 lodged the FIR. However, PW-I in
his statement under Section 16 I of the Code did not mention anything
regarding the role played by A-2 to A-4.
E
Disposing of the appeals, the Court

HELD : I.I. The omission in the statement under Section 161 of the
Code of Criminal Procedure, 1973 regarding the role attributed to A-2 to A-
4 relates to a very material aspect and hence it amounted to contradiction.
F When any part of such statement is used for contradicting the witness during
cross-examination, the Public Prosecutor had the right to use any other part
of the statement, during re-examination, for the purpose of explaining it. The
said right of the Public Prosecutor is explicitly delineated in the last part of
the proviso to Section 162(1) of the Code.
G
Tahsildar Singh v. State of UP., AIR (1959) SC 1012, relied on.

1.2. If a Public Prosecutor failed to get the contradiction explained as
permitted by the last limb of the proviso to Section 162(1) of the Code, it is
not permissible for the Court to invoke the powers under Section 172 of the
H Code for explaining such contradiction.
MAHABIR SINGH v. STATE OF HARY ANA 39
2.1. The discretion given to the court under Section 172 to use case A
diaries is only for aiding the court to decide on a point. The court is forbidden
from using,the entries of such diaries as evidence. What cannot be used as
evidence against the accused cannot be used in any other manner against him.
If the court uses the entries in a ·case diary for contradicting a police officer
it should be done only in the manner provided in Section 145 of the Evidence B
Act, 1872 i.e. by giving the author of the statement an opportunity to explain
the contradiction, after his attention is called to that part of the statement
which is intended to be so used for contradiction. In other words, he power
conferred on the court for perusal of the diary under Section 172 of the Code
is not intended for explaining a contradiction, which the defence has winched
to the fore through the channel permitted by law. The interdict contained in C
Section 162 of the Code, debars the court from using the power under Section
172 of the Code of the purpose of explaining the contradiction. (45-E-GJ

2.2. The assertion of PW-I that A-2 to A-4 had given blows to the
deceased thus stands contradicted by his own previous statement. Such a
contradiction is on a crucial aspect pertaining to the complicity of A-2 to A- D
4. The trial court was well justified in holding that the evidence of PW-I is
not sufficient to convict those three accused for the offence under Section 302
with the aid of Section 34 IPC. That apart, there should have been strong
and good reasons for the High Court for converting an order of acquittal
into one of conviction. (45-H] E
Dhanna v. State of MP., (1996] 10 SCC 79, relied on.
,
3.1. An accused .person can appear before a Magistrate and it is not
necessary that such accused should be produced by the police for recording
the confession. But it is necessary that such appearance must be "in the course F
of an investigation" under Chapter XII of the Code. If the Magistrate does
not k~ow that he is concerned in a case for which investigation has been
commenced under the provisions of Chapter XII it is not permissible for him
to record the confession. If any person simply barges into the court and
demands the Magistrate to record his confession as he has committed a G
cognizable offence, the course open to the Magistrate is to inform the police
about it. The police·in turn has to take the steps envisaged in Chapter XII of
the Code. It may be possibly for the Magistrate to record a confession if he
bas reason to believe that investigation has commenced and that the person
who appeared before him demanding recording of his confession is concerned
in such a case. Otherwise the court of a Magistrate is not a place into which H
40 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A all and sundry can gatecrash and demand the Magistrate to record whatever
he says as self-incriminatory. [48-8-D[

.fogendra Nahak and Ors. v. State of Orissa and Ors., [2000) l SCC 272,
referred to. -
B 3.2. PW-2 has not stated that before taking down the confession she
explained to A-1 that he was not bound to make the confession, and that if
he did so, such confession might be used as evidence against him. This is sine
qua non for recording a confession. Further, a Magistrate is forbidden from
recording any such confession until he gets satisfaction that the person is going
C to make a voluntary confession. There is nothing in the evidence of PW-2 that
she had adopted such a precaution. [48-E-F[

4. Section 157 of the Evidence Act permits the court to use any former
statement made by a witness before any person relating to a fact if it was
made "at or about the time when the fact took place." The interval between
D the occurrence and the time of PW-1 's reporting to his father, did not cross
the boundaries envisaged by the words "at or about the time when the fact_
took place" in Section 157 of the Evidence Act. [48-H; 49-A, BJ

State of Tamil Nadu v. Suresh, [19981 2 SCC 372, relied on.

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
471 of 1998.

From the Judgment and Order dated 10.10.97 of the Punjab and Haryana
High Court in Crl. A. No. 640-DBA of 1995.
WITH
F
Crl. A. No. 472/98 And Crl. A. No. 380/98 And Crl. A. No. 1067/98.

Dr. K.S. Chauhan, Dr. K.P.S. Dalal, Chand Kiran, Vinay Garg, S.K.
Verma, K. Sarada Devi and Pragyan Sharma for Mahabir Singh for the
appearing parties.
G
The Judgment of the Court was delivered by

THOMAS, J. An accused in a murder case barged into a courtroom on
his own during the morning hours, exhibiting a knife and wanting the
Magistrate to record his confession. The Magistrate obliged him to do so and
H after administering oath to him the Magistrate recorded the confession and
MAHABIR SINGH v. STATE OF HARYANA [THOMAS, J.] 41

got it signed by the confessor. A Sessions Judge and Division Bench of the A
High Court of Punjab and Haryana accepted the said confession as legally
admissible, found it to be genuine and voluntary and acted upon it, among
other things, and convicted the confessor of a murder-charge and sentenced
him to life imprisonment. He is Ranbir Singh - the first accused - who filed
this appeal by special leave.
B
There were three other accused arraigned along with Ranbir Singh for
the offence of murder of the same deceased with the aid of Section 34 ofIPC.
The Sessions Court found them not guilty and acquitted. But the Division
Bench of the High Court, on appeal filed by the State, reversed the acquittal
and convicted them also under Section 302 read with Section 34 IPC and C
sentenced them to imprisonment for life. They have filed this appeal as of
right under Section 379 of the Code of Criminal Procedure (for short 'the
Code') and Section 2 of the Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970. All the appellants were heard together.

The case relates to the murder of a twenty-year old youth by name D
Anand, on the evening of 11.10.1991 by stabbing him all over his body,
practically sparing no limb left unwounded. Prosecution has traced out the
backdrop that the said deceased was responsible for the untimely death of an
adolescent girl, the sister of Ranbir Singh, as the aftermath of that lass being
ravished. Though Ranbir Singh described to others that his sister died due to
cardiac arrest he was harbouring in his mind an unstable vengeance towards E
the deceased.

On the date of occurrence the deceased visited his sister's house at
Gangeswar Village. According to the prosecution, while he and his nephew
(Sandeep) were on an evening stroll he was buttonholed by the appellant who
F
suggested to the deceased to have a walk with him but the deceased did not
respond to the said suggestion. Then the appellant Ranbir Singh caught him
and stabbed with a knife on his abdomen. He wriggled out of the grip of the
assailant and made a bid to escape from the scene, but he was intercepted by
all the four appellants and they all inflicted blows on him. He fell down after
sustaining a large number of injuries and died on the spot itself. G
Dr. S.S. Punia (PW-9) conducted the autopsy of the dead body of the
deceased. He noticed as many as 3 I stab injuries on different parts of the
trunk of the body, 4 on the face, 6 on the neck, 5 on the chest, 5 on the
abdomen and 5 on the back and the remaining on other portions of the body.
The description of the ante-mortem injuries as narrated by the doctor in the H
42 SIJPREME COURT REPORTS [2001] SUPP. 1 S.C.R.

A post-mortem report reflects the intensity of the wrath of the assailants towards
the victim.

Prosecution examined PW-I (Sandeep) as the solitary eye witness to
the occurrence. His father Nafe Singh (PW-10) was examined to speak to the
version reported to him by PW-I soon after the occurrence. It was PW-I 0
B who lodged the FIR on the basis of the information supplied by Sandeep. The
Judicial Magistrate who recorded the confession of Ranbir Singh was examined
as PW-2. The other prosecution witnesses were mostly officials. The appellants
when examined under Section 313 of the Code, denied their involvement in
the occurrence altogether. The Sessions Judge placed reliance on the testimony
C of PW-I and also on the confession of the appellant Ranbir Singh besides the
evidence of PW-I 0 as a piece of corroboration. The trial judge reached the
conclusion that the deceased was incessantly stabbed by Ranbir Singh alone.
He was not satisfied with the evidence against the remaining appellants. He
pointed out that PW- I when interrogated by the police on 14.10. I 991 did not
mention anything to the Investigating Officer regarding the role played by
D the other appellants. Hence the Sessions Judge convicted Ranbir Singh alone
under Section 302 !PC and acquitted the others.

The State filed appeal before the High Court challenging the acquittal
of the three appellants while Ranbir Singh filed a separate appeal challenging
E the conviction and sentence passed on him. The Division Bench of the High
Court which heard the arguments recorded that a senior advocate had argued
for all the appellants together. We mention this because of a grievance voiced
before us by one of the appellants that he did not engage any advocate in the
High Court as he did not get any notice of the appeal filed by the State
against him. We choose to go by minutes recorded by the learned Judges of
F the High Court in the prefatory portion of the impugned judgment that
arguments of the senior advocate were addressed on behalf of all the accused.

Learned Judges of the High Court while confirming the conviction and
sentence passed on the appellant Ranbir Singh made a scathing attack on the
Sessions Judge for the reasoning advanced in support of the order of acquittal
G of the other three accused .. One of the reasoning which the Division Bench
pointed out was that PW-I was confronted only with the statement recorded
under Section 161 of the Code on 14.10.1991, whereas that witness was
interrogated by the Investigating Officer on 12. l 0.1991; The earlier
interrogation record should have been traced out by the trial judge from the
H Case Diary of the police, according to the learned Judges of the Division
MAHABIR SINGH v. STATE OF HARYANA [THOMAS. J.] 43
Bench. The High Court expressed the view that the Sessions Judge had a A
duty to peruse the Case Diary prepared as per Section 172 of the Code for
satisfying himself whether the witness had stated any particular fact during
the interrogation. The High Comt took pains to scrutinise the Case Diary and
learned Judges copiously used the entries therein for driving the point home.
V.K. Bali, J., who authored the judgment of the Division Bench has made the B
following remarks:

"The statement of Sandeep dated October 12, 1991 has been separately
annexed with the entry and the same is in tune with the statement
made by him in the court. The statements of other persons under
Section 161 Cr.P .C. were also recorded on the same. From the oral C
statement of Sandeep and that of the investigation officer, supported
by the police case diaries, we are certain that statement of Sandeep
was actually recorded in the morning of October 12, 1991, and the
findings recorded by the learned trial Judge to the contrary are
absolutely erroneous."
D
Learned Judges of the High Court further expressed that the crif!Jinal
court has 'unfettered power to examine the entries in the diaries' and hence
the trial judge was supposed lo go through the police diaries with a view to
find out whether any statement was made by PW- I Sandeep on 12.10.1991
to the Investigation Officer. In that context the High Court made the following
observations: E
"We are quite convinced that i:iot only the police had let off the co-
accused ofRanbir but even the magistracy (sic) has failed in imparting
justice and falling prey to the evil propensities of police indulged by
the higher officers, as is well made out from the statement of
investigation officer, who clearly stated that the higher officers thought F
that co-accused of Ranbir were innocent."

It would have been desirable that the High Court did not make such
strong remarks castigating the police and the subordinate judiciary, when the
situation did not warrant such castigation. Judicial restraint should have G
dissuaded the High Court from making such unnecessary castigation. That
apart the legal proposition propounded by the High Court regarding the use
of Section 172 of the Code is erroneous. The whole exercise made by the
High Court on that aspect was in the wake of what PW-1 said that he was
. questioned by the Investigating Officer on 12. I 0.1991. That might be so but
the defence counsel used the statement as recorded on 14.10.1991 under H
44 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A Section 161 of the Code for the purpose of contradicting PW-I. The said
portion of the evidence of PW-I is extracted below:

"I had also stated before the police that all the accused had further
started beating Anand (Confronted with statement Ex.DA wherein
except for the knife blow wielded by Ranbir there is no other role
B Bttributed to the remaining accused)."

The omission in Ext.DA (the statement ascribed under Section 161 of
the Code by PW-I dated 14.10.1991) regarding the role attributed to A-2 to
A-4 relates to a very material aspect and hence it amounted to contradiction.
When any part of such statement is used for contradicting the witness during
C cross-examination the Public Prosecutor had the right to use any other part
of the statement, during re-examination, for the purpose of explaining it. The
said right of the Public Prosecutor is explicitly delineated in the last part of
the proviso to Section 162(1) of the Code. The first limb of the proviso says
that any part of the statement (recorded by the Investigating Officer) may be
D used to contradict such witness in the manner provided by Section 145 of the
Indian Evidence Act. The next limb of the proviso reads thus:

"And when any part of such statement is so used, any part thereof
may also be used in the re-examination of any witness but for the
purpose only of explaining any matter referred to in cross-
E examination.'

Explanation added to the section is also extracted below:

"Explanation.- An omission to state a fact or circumstance in the
statement referred to in sub-section (I) may amount to contradiction
F if the same appears to be significant and otherwise relevant having
regard to the context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context shall be
a question of fact.'

The said explanation was inserted into the statute book when Parliament
-
G approved the legal position propounded by a Constitution Bench of this Court
regarding the legal implication of an omission to state any fact in the statement
under Section 161 vide Tahsi/dar Singh and Anr. v. State of U.P., AIR
(1959) SC 1012.

If a Public Prosecutor failed to get the contradiction explained as
H permitted by the last limb of the proviso to Section 162(1) of the Code, is it
MAHABIR SINGH v. STATE OF HARY ANA [THOMAS, J.] 45
permissible for the court to invoke the powers under Section 172 of the Code A
for explaining such contradiction? For that purpose we may examine the
scope of Section 172 of the Code. That section deals with the diary of
proceedings in investigation. Sub-section (I) enjoins on the Investigating
Officer to enter in a diary the time at which he began and the place or places
visited by him during the course of investigation. Such entries should be B
made on a day-to-day basis. Sub-sections (2) and (3) of Section 172 read
thus:

"(2) any Criminal Court may send for the police diaries of a case
under inquiry or trial in such Court, and may use such diaries, not as
evidence in the case, but to aid it in such inquiry or trial. C
(3) Neither the accused nor his agents shall be entitled to call for such
diaries, nor shall he or they be entitled to see them merely because
they are referred to by the Court; but, if they are used by the police
officer who made them to refresh his memory, or if the Court uses
them for the purpose of contradicting such police officer, the provisions D
of Section 161 or Section 145, as the case may be, of the Indian
Evidence Act, I 872 (I of 1872), shall apply."

A reading of the said sub-sections makes the position clear that the
discretion given to the court to use such diaries is only for aiding the court
to decide on a point. It is made abundantly clear in sub-section (2) itself that E
the court is forbidden from using the entries of such diaries as evidence.
What cannot be used as evidence against the accused cannot be used in any
other manner against him. If the court uses the entries in a Case Diary for
contradicting a police officer it should be done only in the manner provided
in Section I 45 of the Evidence Act i.e. by giving the author of the statement
an opportunity to explain the contradiction, after his attention is called to that F
part of the statement which is intended to be so used for contradiction. In
other words, the power conferred on the court for perusal of the diary under
Section 172 of the Code is not intended for explaining a contradiction which
the defence has winched to the fore through the channel permitted by Jaw.
The interdict contained in Section 162 of the Code, debars the court from G
using the power under Section 172 of the Code for the purpose of explaining
the contradiction.

The assertion of PW-I that A-2 to A-4 had given blows to the deceased
thus stands contradicted by his own previous statement. Such a contradiction
is on a crucial aspect pertaining to the complicity of A-2 to A-4. The trial H
46 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A court was well justified in holding that the evidence of PW- I is not sufficient
to convict those three accused for the offence under Section 302 with the aid
of Section 34 !PC.

That apart, there should have been strong and good reasons for the
High Court for converting an order of acquittal into one of conviction. The
B legal position on that score has been stated by this Court time and again.
Suffice it to reproduce what is stated by the Court in the decision of this
Court in Dhanna V. State of MP., (1996) 10 sec 79.

"Though the Code does not make any distinction between an appeal
from acquittal and an appeal from conviction so far as powers of the
c appellate court are concerned, certain unwritten rules of adjudication
have consistently been followed by Judges while dealing with appeals
against acquittal. No doubt, the High Court has full power to review
the evidence and to arrive at its own independent conclusion whether
the appeal is against conviction or acquittal. But while dealing with
D an appeal against acquittal the appellate court has to bear in mind:
first, that there is a general presumption in favour of the innocence
of the person accused in criminal cases and that presumption is only
strengthened by the acquittal. The second is, every accused is entitled
to the benefit of reasonable doubt regarding his guilt and when the
trial court acquitted him, he would retain that benefit in the appellate
E court also. Thus, the appellate court in appeals against acquittals has
to proceed more cautiously and only if there is absolute assurance of
the guilt of the accused, upon the evidence on record, that the order
of acquittal is liable to be interfered with or disturbed.'

When we scrutinised the evidence we were not satisfied of the reasons
F set out by the High Co, rt for disturbing the order of acquittal of A-2 to A-
4. Nonetheless, while dealing with the appeal of A-I Ranbir Singh we have
to point out that both the trial court and the High Court relied on evidence
of PW- I Sandeep after scanning the evidence from different angles. The
witness has clearly spoken to the role of that accused. We have no reason to ...,_
G dissent from the said finding regarding reliability of the testimony of PW-I
so far as the first appellant is concerned.

Learned counsel for the appellant, however, contended that the evidence
of PW- I has not been corroborated and that the confession of Ranbir Singh
as recorded by PW-2 as Magistrate should not have been received in evidence.
H She elaborated her contention that his confession was not protected under
MAHABIR SINGH v. STATE OF HARY ANA [THOMAS, J.] 47
Section 161 of the Code. A
PW-2 Mrs. Yivek Bharti Sharma was the Judicial Magistrate of I st
t'
Class, Hissar. She deposed that on 12. I 0.1991 a person calling himself Ranbir
Singh had rushed into the court at I 0.05 A.M. when the Magistrate was
sitting on the dais and that person produced a knife from a sealed packet. As
he wanted his confession to be recorded by the Magistrate PW-2 administered B
oath to him and recorded the confession. The Magistrate said in her deposition
that as a matter of fact she did not know Ranbir Singh personally and that
she did not verify whether the person appearing before her was really Ranbir
Singh. In this context we reproduce Section 164(1) of the Code here:

"164. Recording of confession and statements.- (1) Any Metropolitan C
Magistrate or Judicial Magistrate may, whether or not he has
jurisdiction in the case, record any confession or statement made to
him in the course of an investigation under this Chapter or under any
other law for the time being in force, or at any time afterwards before
the commencement of the inquiry or trial; D
Provided that no confession shall be recorded by a police officer
on whom any power of a Magistrate has been conferred under any
law for the time being in force.

The sub-section makes it clear that the power of the Magistrate to E
record any confession or statement made to him could be exercised only in
the course of investigation under Chapter XII of the Code. The section is
intend<.!d to take care of confessional as· well as non-confessional statements.
Confession could be made only by one who is either an accused or suspected
to be an accused of a crime. Sub-sections (2), (3) and (4) are intended to
cover confessions alone, de hors non-confessional statements whereas sub- F
.,,,.. section (5) is intended to cover such statements. A three Judge Bench of this
Court in Jogendra Nahak and Ors. v. State ofOrissa and Ors., [2000) I SCC
272 has held that so far as statements (other than confession) are concerned
they cannot be recorded by a Magistrate unless the person (who makes such
statement) was produced or sponsored by investigating officer. But the Bench G
has distinguished that aspect from the confession recording for which the
following observations have been specifically made:

"There can be no doubt that a confession of the accused can be
recorded by a Magistrate. An accused is a definite person against
whom there would be an accusation and the Magistrate can ascertain H
48 SUPREME COURT REPORTS [2001] SUPP. I S.C.R.

A whether he is in fact an accused person. Such a confession can be
used against the maker thereof. If it is a confessional statement, the
prosecution has to rely on it against the accused.'

We have no doubt that an accused person can appear before a Magistrate
and it is not necessary that such accused should be produced by the police
B for recording the confession. But it is necessary that such appearance must
be 'in the course of an investigation' under Chapter XII of the Code. If the
Magistrate does not know that he is concerned in a case for which investigation
has been commenced under the provisions of Chapter XII it is not permissible
for him to record the confession. If any person simply barges into the court
C and demands the Magistrate to record his confession as he has committed a
cognizable offence, the course open to the Magistrate is to inform the police
about it. The police in turn has to take the steps envisaged in Chapter XII of
the Code. It may be possible for the Magistrate to record a confession if he
has reason to believe that investigation has commenced and that the person
who appeared before him demanding recording of his confession is concerned
D in such case. Otherwise the court of a Magistrate is not a place into which
all and sundry can gatecrash and demand the Magistrate to record whatever
he says as self-incriminatory.

As the confession recorded by PW-2 cannot be brought under Section
E 164 of the Code it is an idle exercise to consider whether it was voluntary
or true. We may again point out, PW-2 has not stated that before taking down
the confession he explained to Ranbir Singh that he was not bound to make
the confession, and that if he did so, such confession might be used as
evidence against him. This is sine qua non for recording a confession. Further
a Magistrate is forbidden from recording any such confession until he gets
F satisfaction that the person is going to make a voluntary confession. There is
nothing in the evidence of PW-2 that he had adopted such precaution. For all
those reasons we keep that document out of the ken of consideration in this
case.

What remains as corroboration for the evidence of PW- I Sandeep is the
G testimony of his father PW-10 Nafe Singh. That witness has said that soon
after the occurrence PW-I Sandeep rushed to him and told him about the
occurrence. PW-10 has narrated the details of what he heard from his son. In
fact PW- IO narrated them in the First Information Statement which he has
lodged with the police. It gives the court an assurance that PW- I0 really
H heard those details from his son San deep (PW- I). Section 157 of the Evidence
MAHABIR SINGH v. STATE OF HARY ANA [THOMAS, .l.J 49

Act permits the court to use any former statement made by a witness before A
any person relating to a fact if it was made 'at or about the time when the
fact took place'. The interval between the occurrence and the time of PW-1 's
reporting to his father, did not cross the boundaries envisaged by the words
"at or about the time when the fact took place" in Section 157 of the Evidence
Act. It is useful to refer to the decision of this Court in State of Tamil Nadu B
V. Suresh, [1998] 2 sec 372. Following passage in that decision will be

apposite:

"We think that the expression "at or about the time when the fact
took place" in Section 157 of the Evidence Act should be understood
in the context according to the facts and circumstance of each case. C
The mere fact that there was an intervening period of a few days, in
a given case, may not be sufficient to exclude the statement from the
use envisaged in Section 157 of the Act. The test to be adopted,
therefore, is this: Did the witness have the opportunity to concoct or
to have been tutored? In this context the observation of Vivian Bose,
1. in Rameshwar v. State of Rajasthan is apposite: D
'There can be no hard and fast rule about the 'at or about' condition
in Section 157. The main test is whether the statement was made as
early as can reasonably be expected in the circumstances of the case
and before there was opportunity for tutoring or concoction'."
E
The upshot of the above discussion is that we have to confirm the
conviction and sentence passed on appellant Ranbir Singh. We do so. We
dismiss the appeal filed by him. But we allow the appeals filed by the other
three appellants (Mahabir Singh, Sultan and Sis Pal), and the conviction and
sentence passed on them as per the impugned judgment of the Division
Bench of the High Court will stand set aside and the order of acquittal passed F
in their favour by the trial court will stand restored.

v.s.s. Appeal dismissed.