REPORTABLE

              IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

 CRIMINAL APPEAL NO.  817      OF 2009 (Arising out of SLP(Cr.)No. 5741/2006)

STATE OF PUNJAB ..  APPELLANT

vs.

HARJAGDEV SINGH ..  RESPONDENT

J U D  G M E N T

Dr.  ARIJIT  PASAYAT,J.

Leave granted.

Challenge in this appeal is to the judgment of a Division Bench of  

Punjab and Haryana High Court  directing  acquittal  of  the respondent  who  

faced trial for alleged commission of offence punishable under Section 302 of  

the Indian Penal  Code,  1860  (in short `IPC').   Learned Additional  Sessions  

Judge,  Gurdaspur found the accused guilty and directed his conviction.

According  to  the  prosecution  case,  which  was  registered  on  the

statement made by Jaswinder Singh, the maternal uncle of the accused on  

6.7.1994 is that when he had gone to village Mann Sandwal to see his sister  

he had found the house locked  

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form out side.  He was informed by some neighbours that his sister Parkash  

Kaur and her husband Man Singh had shifted their residence to their farm  

house about a month earlier.  He had then gone to the farm house, which was  

at a distance of 1-1/2 kilometers and on reaching there he found that the door

of the Kotha of the tube well  was locked from out side and foul smell was  

coming from the tube well.   He returned to the village and after collecting  

some residents  returned to the tube well.   On reaching the tube well  and  

breaking open the door of the Kotha, he found the dead bodies of his sister  

and brother in law lying inside with  sharp edged injuries on the head and  

face.  On the basis of the statement of Jaswinder Singh formal F.I.R. Ex.PA/2  

was recorded.  Inspector Harjinder Singh PW.5 the Investigating Officer after  

recording  the  statement  of  Jaswinder  Singh  went  to  the  spot,  prepared  

inquest  reports  and  forwarded  the  dead  bodies  for  post  mortem.   The  

accused  was  arrested  in  the  case  and  during  interrogation  he  made  a  

disclosure statement Ex.PC that he had kept concealed a Kassi by the side of  

the canal minor and could get the same recovered.  Subsequent there to he  

had led the police party to the specified place and got discovered the Kassi.  

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Thereafter  he  had  made  a  statement  under  Section  164  of  the  Code  of  

Criminal Procedure, 1973 (in short `the Code') before the Judicial Magistrate  

Ist Class, Batala admitting  the fact that he had been responsible for killing  

his parents.  On the completion of the investigation, a challan was put in the  

Court of the Illaqa Magistrate, who after going through the papers committed  

the case to the Court of Session.  The trial Court was of the view that prima  

facie  case  under  Section  302  IPC   was  made  out  against  the  accused.  It  

accordingly, framed the charge.  When the accused pleaded not guilty to the  

charge, the prosecution was called up to examine its witnesses.

Primarily prosecution relied on several factors to contend that the  

accused was guilty of the offence.  They are  (1) on extra judicial confession

made by the writ petitioner; (2) judicial confession in terms of Section 164 of  

the  Code    made  before  the  learned  Judicial  Magistrate.   The  trial  Court  

accepting  the  prosecution  version  observed  that  both  the  extra  judicial  

confession in terms of Section 24 and 26 of the Indian Evidence Act, 1872 (in  

short `the Act') as well as the judicial confession before the Magistrate under  

Section 164 of  

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the  Code  clearly  established  the  guilt  of  the  accused.   An  appeal  was

preferred  by  the  respondent  herein  questioning  the  correctness  of  the  

judgment of the trial Court. Primarily two stands were taken before the High  

Court.  It was first submitted that no statement was given under Section 164  

of the Code as envisaged and also there was no extra judicial  confession.  

The High court recorded a finding that PW.3 before whom purportedly the  

extra  judicial  confession  was  made  did  not  support  the  prosecution.  

Additionally,  it  was  held  that  the  requisite  procedure  which  was  to  be  

observed for recording confession under Section 164 admissible in evidence  

was  not followed.   Further it  was  held that the charge is defective as the  

requirements  of  Section 218 of  the Code were  not followed.   Accordingly,  

acquittal was  directed.   

Learned  counsel  for  the  appellant  State  submitted  that  all  the  

conclusions of the High Court are erroneous in law as well as in fact.  Firstly,  

PW.3 clearly supported the prosecution version.  It is true as observed by the  

High Court that PW.2 did not support the prosecution version but that was not  

the case so far as PW.3 is concerned.  Reference is made to the conclusions

of the trial Court which recorded that  

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Mohinder  Singh  PW.3  in  deposition  stated  that  on  2.7.1994  accused  

confessed that he had killed his father and mother and the accused wanted  

his help in order to produce him before the SHO as the then SHO of the police  

station was friendly with him. The stand taken by the accused before the trial  

Court  was  that  PW.3  was  a  resident  of  another  village  and  there  was  no  

occasion for making extra judicial confession.  That is not the same as saying

that PW.3 did not support the prosecution version.     

Coming  to  the  observance  of  necessary  procedure  relating  to  

recording  the  statement  under  Section  16LL  of  the  Code,  the  Magistrate,  

P.W.9, has categorically stated that he has observed the requisite procedure.  

He has referred to the questions that were put to the accused and the warning  

given to him clearly stating that the confession could be  used as evidence  

against  him.  Nowhere  in  the  cross-examination  of  this  witness  even  a  

suggestion was made that there was no statement recorded under Section  

164 before him. It is not that, as has been observed by the High Court that  

statement  under  Section  164  of  the  Code  has  not  been  recorded  in  the  

requisite manner.

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Confessions may be divided into two classes i.e.  judicial  

and extra-judicial.  Judicial  confessions are those which  are made  

before a Magistrate or a court in the course of judicial proceedings.  

Extra-judicial  confessions are those which  are  made by the party  

elsewhere  than  before  a  Magistrate  or  court.   Extra-judicial  

confessions are generally those that are made by a party to or before  

a  private  individual  which  includes  even  a  judicial  officer  in  his  

private capacity. It also includes a Magistrate who is not especially  

empowered to record confessions under Section 164 of the Code of  

Criminal Procedure,  1973 (for short the `Code') or a Magistrate so  

empowered  but receiving the confession at a stage when Section  

164 of the Code does not apply.  As to extra-judicial  confessions,  

two questions arise: (i) were they made voluntarily? and (ii)  are they  

true?   As  the  section  enacts,  a  confession  made  by an  accused  

person is  irrelevant in  criminal  proceedings,  if  the making  of  the

confession  appars  to  the  court  to  have  been  caused  by  any  

inducement,  threat  or promise,  (1)  having reference to the charge  

against  the  accused  person,  (20  proceedings  from  a  person  in  

authority, and (3)  sufficient,  in the opinion of the court to give th  

accused person grounds which would appear to him reasonable for  

supposing that by making it he would gain any advantage or avoid  

any evil of a temporal nature in reference to the proceedings against  

him. It follows that a confession would be  voluntary if it is  

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made by the accused in a fit state of mind, and if it is not caused by  

any  inducement,  threat  or  promise  which  has  reference  to  the

charge against him, proceeding from a person in authority.  It would  

not be involuntary, if the inducement, (a) does not have reference to  

the charge against the accused person or (b) it does not proceed  

from a person in authority; or © it is not sufficient, in the opinion of  

the court to give the accused-person grounds which would appear  

to him reasonable for supposing that, by making it he would gain  

any advantage or avoid any evil of  temporal nature in reference to  

the proceedings against  him.  Whether  or  not the confession  was  

voluntary would depend upon the facts and circumstances of each  

case, judged in the light of Section 24 of the Indian Evidence Act,  

1872 (in short `Evidence Act').   The law is clear that a confession  

cannot  be  used  against  an  accused  person  unless  the  court  is  

satisfied that it was voluntary and at that stage the question whether  

it  is  true or  false  does not arise.   If  the facts  and circumstances  

surrounding the making of a confession appear to cast a doubt on  

the veracity or voluntariness of the confession, the court may refuse  

to act upon the confession, even if it is admissible in evidence.  One  

important question, in regard to which the court has to be satisfied  

with is, whether when the accused made the confession, he was a  

free man or his movements were controlled by the police either by

themselves or  

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through some other agency employed by them for the purpose of  

securing such a confession.  The question whether a confession is  

voluntary or not is always a question of fact. All the factors and all  

the circumstances of the case, including the important factors of the  

time given for reflection, scope of the accused getting a feeling of  

threat, inducement or promise, must be considered before deciding  

whether  the  court  is  satisfied  that  in  its  opinion  the  impression  

caused by the inducement, threat or promise, if any, has been fully  

removed. A free and voluntary confession is deserving of the highest

credit,  because it  is  presumed to flow  form the highest  sense  of  

guilt.  (See R.V.  Warickshall)  It  is  not  to be conceived that  a  man  

would be induced to make a free and voluntary confession of guilt,  

so contrary to the feelings and principles  of human nature,  if  the  

facts confessed were not true.  Deliberate and voluntary confessions  

of guilt, if clearly proved, are among the most effectual proofs in law.  

An involuntary confession is one which is not the result of the free  

will of the maker of it.  So where the statement is made as a result of  

harassment and continuous interrogation for several hours after the  

person is treated as an offender and accused, such statement must  

be regarded as involuntary.  The inducement may take the form of a  

promise  or  of  a  threat,  and  often  the  inducement  involves  both  

promise and threat, a promise of forgiveness if disclosure is made  

and threat of

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prosecution  if  it  is  not.   (Seen Woodroffe's  Evidence,  9th Edn.  ,p.  

284).  A promise  is  always  attached  to  the  confession  alternative  

while a threat is always attached to the silence alternative; thus, in  

one  case  the  prisoner  is  measuring  the  net  advantage  of  the  

promise, minus the general undesirability of a false confession, as  

against the present unsatisfactory situation; while in the other case  

he  is  measuring  the  net  advantages  of  the  present  satisfactory  

situation, minus the general undesirability of the confession against  

the  threatened  harm.   It  must  be  borne  in  mind  that  every  

inducement, threat or promise does not vitiate a confession.  Since  

the object of the rule is to exclude only those confessions which are  

testimonially untrustworthy, the inducement, threat or promise must  

be such as is calculated to lead to an untrue confession.  On the  

aforesaid analysis the court is to determine the absence or presence  

of an inducement, promise etc. or its sufficiency and how or in what

measure it worked on the mind of the accused.  If the inducement,  

promise or threat is sufficient in the opinion of the court, to give the  

accused person grounds which would appear to him reasonable for  

supposing that by making it he would gain any advantage or avoid  

any evil, it is enough to exclude the confession. the words “appear  

to him” in the last part o the section refer to the mentality of the  

accused.”

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So far as the recording of statements and observance of the norms  

relating to recording a statement, this Court in JT (2007) SC 287 observed as  

follows:

“19.  Sub-section (2)  of Section 164  Cr.P.C.  requires  that  

the  magistrate  before  recording  confession  shall  explain  to  its  

maker that he s not bound to make a confession and if he does so it  

may be used as evidence against  him and upon questioning the  

person if the magistrate has reasons to believe that it is being made  

voluntarily then the confession shall be recorded by the magistrate.  

Sub-section(4)  of  Section  164  provides  that  the  confession  so  

recorded shall be in the manner provided in Section 281 and it shall  

be signed by its maker and the recording magistrate shall make a  

memorandum at the foot of such record to the following effect:

“I have explained to [name] that he is not bound  to  make  a  confession  and  that,  if  he  does  so,  any  confession he may make may be used as evidence against  him  and  I  believe  that  this  confession  was  voluntarily  made.  It was taken in my presence and hearing, and was  read over to the person making it and admitted by him to

be correct, and it contains a full and true account of the  statement made by him.”

20 Sub-section (1) of Section 463 provides that in case the Cort  

before whom the confession so recorded

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is tendered in evidence finds that any of the provisions of either  

of such sections have not been complied with by the recording  

magistrate, it may, notwithstanding anything contained in Section  

91 of the Indian Evidence Act,  1872, take evidence in regard to  

such  non-compliance,  and  may,  if  satisfied  that  such  non-

compliance  has not injured the accused  in  his  defence  on the

merits and that he duly made the statement recorded, admit such  

statement.”

It  is  hardly  necessary  to  emphasize  that  the  act  of  recording  

confessions  under  Section  164  of  the  Code  is  a  very  solemn  act  and  in  

discharging his duties in the said Section, the Magistrate is required to take  

care to see that the requirements of sub-section (3) of Section 164 of the Code  

are fully satisfied.  It is necessary in every case to put questions as intended  

to be asked under Section 164(3).  

A  bare  perusal  of  the  evidence  of  PW.9  shows  that   necessary  

questions were asked and due care was taken before recording the statement  

of the accused.  It  was  specifically told to him that the statement could be  

used in evidence

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against him.  Time was given to the accused to ensure that he was making the  

statement voluntarily without any pressure and it was specifically indicated to  

him that the statement could be used against him.  Therefore, the High Court  

was  not  justified  in  holding  that  the  requisite  procedure   for  recording  

statement under Section 164 has not been followed.   

Coming to Section 218 of the Code, the High Court obviously is not  

justified to say that the charge is defective. Section 463 of the Code deals with  

non-compliance  with   provisions  of  Section  164.   The  provisions  make  it  

clears that it has to be established that because of the non-compliance an

injury has been occasioned to the accused in his defence on merits.  So far as  

Section 164 is concerned the same reads as follows:

“164.  Recording  of  confessions  and  statements:(1)  Any  

Metropolitan 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:

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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.

2 the  Magistrate  shall,  before  recording  any  such  confession,  

explain 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  the  Magistrate  shall  not  record  any  such  

confession unless, upon questioning the person making it, he has  

reason to believe that it is being made voluntarily.

3  If  at  any time before  the confession is  recorded,  the person  

appearing before the Magistrate  states  that  he s not  willing to  

make  the  confession,  the  Magistrate  shall  not  authorise  the  

detention of such person in police custody.

4 any such confession shall be recorded in the manner provided  

in section 281 for recording the examination of an accused person  

and shall be signed by the person making the confession; and the  

Magistrate shall make a memorandum at the foot for such record to

the following effect:-

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“I  have  explained  to  (name)  that  he  is  not  bound to make a confession and that, if he does so, nay

confession  he  may  make  may  be  used  as  evidence  against  him  and  I  believe  that  this  confession  was  voluntarily  made.  It  was  taken  in  may  presence  and  hearing, and was read over to the person making it and  admitted by him to be correct, and it contains a full and  true account of the statement made by him.

(Signed) A.B.

Magistrate”.

5 Any  statement  (other  than  a  confession)  made  under  sub-

section  (1)  shall  be  recorded  in  such  manner  hereinafter  

provided for the recording of evidence as is, in the opinion of the  

Magistrate, best fitted to the circumstances of the case; and the  

Magistrate  shall  have power  to administer  oath to the person  

whose statement is so recorded.

6  The Magistrate recording a confession or statement under this  

section shall forward it to the Magistrate by whom the case is to be  

inquired into or tried.

The  above  position  makes  it  clear  that  if  there  is  any  error  or

irregularity in the charge which had its relevance on the case it shall be clear  

from the bare perusal thereof that  

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no finding by Court of competent jurisdiction shall be deemed to be  invalid  

merely on the ground that no charge was  framed or on the ground of any  

error in relation to  the charge, including any misjoinder of charge, since in

the opinion of the Court of appeal confirmation of relative failure of justice  

has in fact been occasioned thereby.  It is not the case of the respondent that  

any mitigating factor existed. Judgment of the High Court is in default and is  

set aside.  Accused surrender to custody forthwith to serve out the remainder  

of sentence.

The appeal is disposed of accordingly.

                          ................ .J.

             (Dr. ARIJIT PASAYAT)

     ...................J.                                         (ASOK KUMAR GANGULY) New Delhi, April 22, 2009.