Holding

A confession recorded by a magistrate without satisfying the mandatory requirements of Section 164(2) CrPC is inadmissible, and consequently a conviction cannot be based solely on such a confession or on recoveries derived from it.

Summary

Preetam and his brother Ishwar Lal were tried for the murder of Chhita. The trial court acquitted both, but the State appealed. The High Court set aside Preetam’s acquittal, relying on a confession recorded by a magistrate and on property recoveries allegedly made pursuant to that confession, while rejecting eye‑witness testimony. The Supreme Court held that the magistrate’s recording of the confession violated the mandatory requirements of Section 164(2) of the Criminal Procedure Code because he failed to ask any questions to ascertain voluntariness, rendering the confession inadmissible. Consequently, the recoveries could not, on their own, constitute a basis for conviction under Sections 302 and 404 of the Indian Penal Code. The Court allowed the appeal, set aside the High Court’s conviction, and acquitted Preetam, also discharging his bail bond.

Issues considered

Whether a confession recorded by a magistrate without complying with the mandatory provisions of Section 164(2) CrPC is admissible as evidence.
Whether evidence of property recoveries made pursuant to an inadmissible confession can alone sustain a conviction under IPC Sections 302 and 404.

Legislation cited

Code of Criminal Procedure, 1973s. 164(2), s. 164(4)
Indian Penal Code, 1860s. 302, s. 379, s. 404

Subjects

confessionSection 164 CrPCadmissibilitymurderacquittalrecovery of propertyevidentiary standardscriminal appeal

Judgment

PREETAM A
v.
STATE OF MADHYA PRADESH
···.
MARCH 26, 1996

[M.K. MUKHERJEE ANO G . B. PATANAIK, .I.I.]· B

Indian Penal Code, 1860:
'.'
Ss.302 and 404-Trial of two accused for offei1ces-Acquittal by trial
court-High Cowt concuning with the trial court in disbelieving the eye C
witnesses but convicting one. of the accused relying upon the confession a1id
evidence relating to recove1y--Held, confession having been recorded by the
'Magistrate in utter disregard ofprovision of s. 164(2) Cr. P.C. High Court w.as
not justified in relying upon it..J..consequen"tly the recoveries made pwiuant lo
the statement of the accused cannot be made ihe sole basis for conviction.
D
Oiminal Procedure Code, 1973 :
. ' . .
Ss.164(2), .(4) and 379--Confession-Recording of by Magistrate-,1?.e-
. quirements lo be colnplied with-;-ileld, omission by Magistrate to ask ques- .
lions to asce1tain whether <iccused was making confession voluntarily. resulted E
in iion-conipliance of the man~ato1y require1nent.

CRIMINAL APPELLATE JURISDICTION : Criminal appeal No.
110 of 1986:' ·. · · · .

From the J udgmcnt ~nd Order dated 3.8.84 of the Madhya Pradesh F·
High Court in Crl. A. No 97 of 1976. · . .
~ '·.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija; for the Appellant.
'·
K.N. Shukla, Prashant Kumar, S.K. Sinha and U.N. Singh for the
Respondent. ,, , ·' G
. _. • ""i . '~ '. . . : ! . .• . . ./
, The following Order of the Court was delivered :
. . . ' ' - '' ,.. ..
Preetam, the. appellant herein and his brother Ishwa~·\.al were''
placed on trial "before ·the Sessioris Jlldge, Morena, for' commit'ting the
murder of one Chhita on .Tune 1s·, 1973 ·and removing ornaments fron\' his H
939
940 SUPREME COURT REPORTS [1996] 3 S.C.R.

A person. The trial ended in an acquittal and aggrieved thereby the respon-
dent-State preferred an appeal. The High Court dismissed the appeal so
far as it related to Jshwar Lal but set aside the acquittal of the appellant
and convicted and sentenced him under Sections 302 and 404 of the Indian
Penal Code. The above order of reversal is under challenge in this appe<J.

B To prove its case the prosecution relied upon three eye witnesses,
the doctor who held the autopsy, a judicial confession of the appellant and
some recoveries made pursuant to his statement. While accepting the
evidence of the prosecution so far as it sought to prove that Chhita met
with a homicidal death, the trial Court rejected the entire evidence ad-
C duced by the prosecution to prove that the appellant was the author of the
crimes. The High Court concurred with the finding of the trial Court that
the three eye witnesses could not be relied upon but found the confession
voluntary and true and as, according to it, the evidence relating to recovery
corroborated the confession reversed the order of acquittal relying upon
D the same.

Since the reasons given by the learned courts below for disbelieving
the eye-witnesses are cogent and convincing we must leave their evidence
out of our consideration'. We, therefore, proceed to consider whether the
High Court was justified in making the confession the basis for conviction
E of the appellant.

It appears from the record that the appellant was arrested on .June
17, 1973 and on his production before the Magistrate on the following day
was directed to be sent to police custody, as prayed for by the investigating
F officer. He remained in such custody till June 22, 1973 when he was sent
to judicial custody under orders of the Magistrate. Thereafter he was
produced before the Magistrate on June 25, 1973 for recording his confes-
sion. On his production, the Magistrate gave him two hours' time to reflect
and then recorded the confession. From the confessional statement (exhibit
P.11) we find that the Magistrate (p.w. 8) first disclosed his identity am!
G told him that he was not bound to make any confession and if he did so,
it might be used as evidence against him. After administering the above
caution the Magistrate recorded the confession and then made the
memorandum required .under Sub-section (4) of Section 164 Cr. P.C. Jn
our considered view, the.confession so recorded is in utter disregard of the
H statutory provisions of Sub-section (2) of Section 164 Cr. P.C. Under the
PREETAM1•. STATE 941

above sub~section the ·Magistrate is first required to explain to the accused A
that he was not bound to make· a confession and that if he did so it might
he used against him. Though this requirement has lieen complied with in
the instant case, the other requiren1ent \Vhich obligates the Magistrate to
put questions to the accused to satisfy hi111self that the confession was
voluntary so as to enable him to give the requisite.certificate under Sub- B
Section (4). has not been fulfilled for, the learned Magistrale did not ask
any question, whatsoever to ascertain whether the appellant was making
the confession voluntarily. In view of such llagrant omission to comply with
the mandatory requirement of Section 164(2) Cr. P.C. we must hold that
the High Court was not at all justified in entertaining the confession as a
piece of evidence, much less, a reliable. one. Once the confession is left out C
l
of consideration - as it has got to be - the only other piece of evidence to
connect the appellant with the alleged offences are the recoveries allegedly
made pursuant to his statement. Even if we proceed on the assumption that
the evidence led by the prosecution in this behalf is reliable, still, co~sider-
ing its nat~re, we are unable to hold that it can made the sole basis D
conviction even for the offence under Section 404 I.P.C.

On the conclusions above, we allow ihis appeal, set· aside (h.e im-
pugned order of the High Court and acquit the appellant of the charges
levelled against him. The appellant who is on bail is discharged from his
bail bonds. E
R.P .. • ·Appeal allowed .

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