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T.M. Hassan Pillai, J.—While giving evidence as PW.1 in C.C.No. 100/1999 on the file of the Judicial first Class Magistrate, Court Ponnani, one Aboobacker deposed in examination in chief that the motor bike bearing Engine No. 325089 and chassis No. 5B 325089 (valued Rs. 30,000/-), was stolen after 8 P.M. on 23-1-1999 and when he want on 10th February, 1999 to Amala Hospital, Thrissur for seeing a patient, a close relative of that patient told him that he saw one Mubarack, who has been arraigned as an accused after trial started by the learned Magistrate u/s 319 Cr.P.C. on allowing an application filed by the Assistant Public Prosecutor has been undergoing treatment at that hospital for the injury sustained by him in a motor accident. PW.1 visited Mubarack, who was undergoing treatment as an indoor patient and the said Mubarack told him that the injuries were sustained by him while he was riding a motorcycle and that he sustained injuries as a result of hitting of motor cycle on a bus. When PW.1 asked Mubarack whether any motorcycle was owned by him, he made a clean breast saying that motorcycle belonging to the brother of PW.1 was stolen jointly by Mubarack, Muhammed & Shaji and Sainudheen. PW.1 deposed that guilty conscience made Mubarack to make the confession. It is also his evidence that Mubarack confessed that they have changed the number, silencer and handle to conceal the identity of the motorcycle. PW.1 asserted that the had informed about the making of confession by Mubarack to the investigation officer and it is his evidence that the investigation officer asked him not to disclose the fact to anyone and promised to make investigation.
Before examination in chief of PW.1 was completed, the Assistant Public Prosecutor who conducted the prosecution filed an application u/s 319 Cr.P.C. for arraigning Mubarack as an accused and that application was allowed by the learned Magistrate arraigning petitioner as an accused.
Learned counsel for the petitioner submitted that the power u/s 319 Cr.P.C is an extraordinary power and should be used very sparingly. Counsel relied on the decision of the Supreme Court in Michael Machado v. C.B.I. 2000 SCC (Cri) 609 to content that no material is available to arraign the petitioner as an accused invoking the powers u/s 319 Cr.P.C. There cannot be any quarrel with the proposition that the power u/s 319 Cr.P.C. has to be exercised sparingly. Learned counsel also contended before me that extrajudicial confession is a weak piece of evidence and the trial court ought not have relied on that weak piece of evidence to exercise its powers u/s 319 Cr.P.C. Counsel also submitted that there is not reliable evidence to prove that the confession made was voluntary and true and the facts admitted in the confessional statement are true.
Section 319 of the Code of Criminal Procedure, 1973 read thus:
Power to proceed against other persons appearing to be guilty of offence. (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the court, although not under arrest or upon a summons, may be detailed by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under Sections (1) then-
(a) the proceedings in respect of such person shall be commended afresh, and the witnesses re-heard;
(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced."
Section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused.
This provision was also the subject-matter of a decision by the Supreme Court in Joginder Singh v. State of Punjab (1979) SCC (Cri) 295 where Tulzapurkar, J. speaking for the court observed thus (p. 299)
A plain reading of Section 319(1), which occurs in Ch. XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the courts including a Sessions court and as such a Sessions court will have the power to add any person) not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused, ....
The prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. The power conferred u/s 319 is really an extraordinary power and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken (see MUNICIPAL CORPORATION OF DELHI v. RAM KISHAN ROHTAG AND ORS. 1983 SCC (Cri) 115 . Section 351 of the former Code of 1898 is the provision corresponding to the provision of Section 319 of the new Code of 1973. Section 351 of the old Code provided that any person attending a criminal court, although not under arrest or upon a summons, might be detained by such Court for the purpose of inquiry into or trial of any offence of which such Court could take cognizance and which, from the evidence, might appear to have been committed, and might be proceeded against as though he had been arrested or summoned. That section further provided that when such detention took place in the course of an inquiry under Chapter XVIII of the old Code or after a trial had begun, the proceedings in respect of such person should be commenced afresh, and the witnesses re-heard. It was not open to the Court under that Section to summon a person, who was not attending the Court and join him in a pending Criminal proceedings even though it appeared to the Court that evidence in that proceedings disclosed that such person was also involved in the commission of any offence connected with the one for which the accused already before the court was on trial. To empower the criminal courts to take action against such persons also, Parliament, on the recommendation of the Law Commission in its 41st report, introduced Section 319 in the present Code. The Supreme Court in S.S. Khanna v. Chief Secretary 1983 SCC (Cri) 552 held that even when an order the Magistrate declining to issue process u/s 202 Cr.P.C. is confirmed by a higher Court, the jurisdiction of the Magistrate u/s 319 remains unaffected if the other conditions are satisfied.
Even persons not attending the Court can be arrested or summoned as the circumstances of the case may require and by deleting the words ''of which such court can take cognizance'' and by adding Clause (b) it is clarified that the impleadment of a new person as a an accused in the pending proceedings will not make any difference insofar as taking of cognizance is concerned. In other words it is made clear that cognizance against the added person would be deemed to have been taken as originally against the other co-accused. It is thus clear that the difficulty in regard to taking of cognizance which would have been experienced by the court has been done away with. The section comes into operation at the post-cognizance stage when it appears to the court from the evidence recorded at the trial that any person other than those named as offenders appears to have committed any offence in relation to the incident for which the co-accused are on trial. (see Kishun Singh v. State of Bihar 1993 SCC (Cri) 470 . On a plain reading of Sub-section (1) of Section 319 there can be no doubt that it must appear from the evidence tendered in the course of any inquiry or trial that any person not being the accused has committed any offence for which he could be tried together with the accused. This power can be exercised only if it so appears from the evidence at the trial and not otherwise. The Sub-section contemplates existence of some evidence appearing in the course of trial wherefrom the court can prima facie conclude that the person not arraigned before it is also involved in the commission of the crime for which he can be tried with those already named by the policy. Even a person who has earlier discharged would fall within the sweep of the power conferred by Section 319 of the Code. It is worthwhile to extract here the following observation made by the Supreme Court in the above cited decision.
"12. But then it must be conceded that Section 319 covers the post cognizance stage where in the course of an inquiry or trial the involvement or complicity of a person or person not named by the investigating agency has surfaced which necessitates the exercise of the discretionary power conferred by the said provision. Section 319 can be invoked both by the court having original jurisdiction as well as the court to which the case has been committed or transferred for trial. The sweep of Section 319 is, therefore, limited, in that, it is an enabling provision which can be invoked only if evidence surfaces in the course of an inquiry or a trial disclosing the complicity of a person or persons other than the person or persons already arraigned be fore it. If this is the true scope and ambit of Section 319 of the Code, the question is whether there is any other provision in the Code which would entitle the court to pass a similar order in similar circumstances. The search for such a provision would be justified only on the premise that Section 319 is not exhaustive of all post-cognizance situations. Now as pointed out earlier Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the inquiry or trial. Thus the section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the court.
The crucial words in the Section 319 Cr.P.C. are, ''any person nt being the accused'' and Section 319 empowers the court to proceed against persons not being the accused appearing to be guilty of offence. Sub-sections (1) and (2) of Section 319 provide for a situation when a court hearing a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in the commission of the very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the purpose. It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused. It naturally deals with a matter arising from the course of the proceeding already initiated. The scope of the Section 319 is wide enough to include cases instituted on private complaint (see Sohanlal v. State of Rajasthan (1990) SCC (Cri) 650).
In the decision cited supra Supreme Court further held that on the plain reading of Section 193, as it presently stands once the case is committed to the court of Session by a Magistrate under the Code, the restriction placed on the power of the court of Session to taken cognizance of an offence as a court of original jurisdiction gets lifted. On the Magistrate committing the case u/s 209 to the court of Session the bar of Section 193 is lifted thereby investing the court of Session complete and unfettered jurisdiction of the court of original jurisdiction to take cognizance of the offence which would include the summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material available on record. The above stated view expressed in Kishun Singh''s case (cited supra) has been dissented by a three Judge Bench of the Supreme Court in Ranjit Singh v. State of Punjab 1998 SCC (Cri) 1554 and the Supreme court held thus:
"20. THUS, once the Session court takes cognizance of the offence pursuant to the committal order, the only other stage when the court is empowered to add any other person to the array of the accused is after reaching evidence collection when powers u/s 319 of the Code can be invoked. We are unable to find any other power for the Sessions court to permit addition of new person or persons to the array of the accused. Of course it is not necessary for the court to wait until the entire evidence is collected for exercising the said powers."
The power u/s 319(1) can be exercised only in those cases where the involvement of persons other than those arraigned in the charge sheet comes to light in the course of evidence recorded during the enquiry or trial (Nissar v. State of Utter Pradesh 199 SCC (Cri) 306 . "Evidence" envisaged in Section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a court of Session. The Supreme Court in Ranjit Singh v. Stage of Punjab 1998 SCC (Cri) 1554 held thus:
"........ we find it difficult to support the observations in Kishun Singh case that powers of the Sessions court u/s 193 of the Code to take cognizance of the offence would include the summoning of the person or persons whose complicity in the commission of the trial can prima facie be gathered from the materials available on record.
The following observation made by the Supreme Court in the above cited decision is also worthy of extraction here.
"23. Though such situations may arise only in extremely rare cases, the Sessions court is not altogether powerless to deal with such situations to prevent a miscarriage of justice. It is then open to the Sessions court to send a report to the High court detailing the situation so that the High court can in its inherent powers or revisional powers direct the committing Magistrate to rectify the committal order by issuing process to such left-out accused. But we hasten to add that the said procedure need be resorted to only for rectifying or correcting such grave mistakes.
Once the statement of a witness is recorded by the court, it would be part of the evidence. Finally at the time of trial the accused is to be given an opportunity to cross-examine the witness to test its truthfulness. But that stage would not arise while exercising court''s power u/s 319 Criminal Procedure Code. Once the deposition is recorded, no doubt there being no cross-examination, it would be a prima facie material which would enable the court to decide whether powers u/s 319 should be exercised or not. Sub-section (1) of Section 319 itself provides that in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any persons not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. In case of inquiry there may not be any question of cross-examining the witness. The right to cross-examine would arise only at the time of trial (see Rakesh v. State of Hariyana 2001 SCC (Cri) 1090 . The question of testing the evidence by cross-examination would arise only after addition of the accused. There is not question of cross-examining the witness prior to adding such person as accused. Section 319 does not contemplate an additional stage of first summoning the person and giving him an opportunity of cross-examining the witness who has deposed against him and thereafter deciding whether such person is to be added as accused or not. Word "evidence" occurring in subsection is used in comprehensive and broad sense which would also include the material collected by the investigation officer and the material or evidence which comes before the Court and from which the Court can prima facie conclude that person not arraigned before it is involved in the commission of the crime. The following observation made by the Supreme Court in the decision cited supra is also relevant.
In State of H.P. v. Surinder Mohan and Ors. 2000(1) RCR (Crl.) 618 (SC) : 2000(2) SCC 396, this Court dealt with the contention that before the granting pardon u/s 306 of the Criminal Procedure Code., accused should be permitted to cross examine such person whose evidence is recorded by the Magistrate. The court negatived the said contention by holding that at the time of investigation or inquiry into an offence, the accused cannot claim any right under law to cross-examine the witness. The right to cross-examine would arise only at the time of trial. During the course of investigation by the police, the question of cross-examination by the accused does not arise. Similarly, u/s 200 Criminal Procedure Code, when the Magistrate before taking cognizance of the offence, that is, before the issuing process holds the inquiry, the accused has no right to be heard, and, therefore, the question of cross-examination does not arise. Further, the person to whom pardon is granted, is examined but is not offered for cross-examination and thereafter during trial if he is examined an cross-examined then there is no question of any prejudice caused to the accused. In such cases, at the most the accused may lost the chance to cross-examine the approver twice, that is to say, once before committal and the order at the time of trial. Similar would be the position u/s 319 Criminal Procedure Code.
The Supreme Court, laying down the law, made the following observation in Michael Machado v. CBI, 2000 SC (Cri) 609) :
"11. The basic requirements for invoking the above section is that it should appear to the court from the evidence collection during trial or in the inquiry that some other person, who is not arraigned as an accused in that case, has committed an offencd for which that person could be tried together with the accused already arraigned. It is not enough that the court entertained some doubt, from the evidence, about the involvement of another person in the offence. In other words, the court must have reasonable satisfaction from the evidence already collected regarding two aspects. First is that the other person has committed an offence. Second is that for such offence that other person could as well be tried along with the already arraigned accused.
But even then, what is conferred on the court is only a dicretion as what is conferred on the court is only a discretion as could be discerned from the words "the court may proceed against such person". The discretionary power so conferred should be exercised only to achieve criminal justice. It is not that the court should turn against another person whenever it comes across evidence connecting that another person also with the offence. A judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has proceeded already and the quantum of evidence collected till then, and also the amount of time which the court had spent for collecting such evidence. It must be remembered that there is not compelling duty on the court to proceed against other persons.
xxx xxx xxx
The court while decideing whether to invoke the power u/s 319 of the Code, must address itself about the other constraints imposed by the first limb of Sub-section (4), that proceedings in respect of newly added persons shall be commenced afresh and the witnesses re-examined. The whole proceedings must be recommenced from the beginning of the trial, summon the witnesses once again and examine them and cross-examine them in order to reach the stage where it had reached earlier. If the witnesses already examined are quite a large in number the court must seriously consider whther the objects sought to be achieved by such exercise in worth wasting the whole laboour already undertaken. Unless the court is hopeful that there is reasonable prospect of the case as against the newly brought accused ending in conviction of the offence concerned we would say that the court should refrain from adopting such a course of action."
I have dealt with the legal position enunciated by the Supreme Court while considering Section 319 Cr.P.C. and next I shall consider the contention of the learned counsel for the petitioner tha extrajudical confession is a weak piece of evidence and can not form basis for a conviction.
Confession is one of the species of admission dealth with u/s 24 to 30 of the Indian Evidence Act and Section 164 of the Code of Criminal Procedure. Confession is an admission against the maker of it. In Criminal law confession have been characterised to be judical or extra-judical. Confession can form sole basis for conviction. Extra-judicial confession can be relied on to convict the accused for the commission of the crime, if true and voluntary,
Let me consider the legal position enumerated by the Apex Court regarding evidencd of extra-judicial confession and judicial confession.
Before acting upon a confession it must be establish to have been voluntarily made and is true (see Mahabir Biswas v. State of W.B. 1995 SCC (Cri) 308 ) . The Supreme Court has held, in Sarwan Singh Vs. The State of Punjab, thus:
"... in law it would be open to the court to convict him on his confession itself though he has retracted his confession at a later stage. Nevertheless to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a cause would always be a question of fact to be determined in the light of the circumstances of each case."
The same principle has been reiterated by the Supreme Court in Kehar Singh v. State (Delhi Admn.) 1988 SCC (Cri) 711 .
Supreme Court held in Sahoo Vs. State of Uttar Pradesh, that an extra judical confession may be an expression of conflict of emotion, a conscious effort to stifle the pricked conscience; an argument to find excuse or exaggeration of his part in the crime.
Before the Court will act on extra-judicial confession, the circumstances under which the confession is made, the manner in which it is made, the person to whom it is made will be considered along with the two rules of caution. First, whether the evidence of confession is reliable and secondly whether it finds corroboration. (Wakil Nayak v. State of Bihar 1972 SCC (Cri) 9. The Supreme Court held that evidence of extra-judicial confession is a weak piece of evidence (see Rahim Beg v. State of U.P. (1972 SCC (Cri) 827), Jagtha v. State of Haryana (1974 SCC (Cri) 657) and State of Punjab v. Began Singh 1975 SCC (Cri) 584) .
An Extra Judicial confession even if believed is considered a very weak piece of evidence and ordinarily is not accepted without independent corroboration. (Balbir Singh v. State of Punjab, 2000 SCC (Cri) 236). It is well-settled that the retracted extra judicial confession is a very weak type of evidence and strong corroborating circumstances should be there (see Chittar v. State of Rajasthan, 1995 SCC Cri) 248) . The same view was taken by the Supreme Court in MAKHAN SINGH v. STATE OF PUNJAB 1988 SCC (Cri) 916) and the Supreme Court held that extra-judicial confession is a very weak piece of evidence and is hardly of any consequence.
An extra judicial confession by its very nature rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. The courts generally look for independent reliable corroboration before placing any reliance upon an extra judicial confession (Balwinder Singh v. State of Punjab 1996 SCC (Cri) 59). Confession of the accused has to be taken as a whole and the exculpatory part cannot be thrown aside (Devku Bhikha v. State of Gujarat, 1997 SCC (Cri) 278).
It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstance,s the time when the confession was made and the credibility of the witnesses who speak about such a confession (Narayan Singh v.State of M.P., 1985 SCC (Cri) 460).
The Supreme Court held in Gura Singh v. State of Rajastha, 2000 SCC (Cri) 323) as follows:
It is settled position of law that extra judicial confession, if true and voluntary, it can be relied upon by the Court to convict the accused for the commission of the crime alleged.Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. relying upon an earlier judgment in Rao Shiu Bahadur Singh v. State of Vindhay Pradeshi, this Court again in Mahan Singh v. State of Punjab held that the evidence In the form of extra judicial confession made by the accused to witnesses cannot be always termed to be a tainted way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence along. In Narayan Singh v. State of M.P. this Court cautioned that it is not open to the court trying the criminal case to start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The restriction of extra-judicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. 4 this Court held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise envisaged u/s 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Sections 25 and 26. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any Improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinized. To the same effect is the judgment in Baldev Raj v. State of Haryana. After referring to the judgment in Piara Singh v. State of Punjab this Court in Madan Gopal Kakkad v. Nauat Dubey and Anr. held that the extra judicial confession which is not obtained by coercion, promise of favour of false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.
In State of U.P. v. M.K.Anthony (1985 SCC Cri 105) the Apex Court observed thus:
"Before evidence regarding extra-judicial confession is accepted, it must be established by cogent evidence what were the exact words used by the accused. Even if so much was established, prudence and justice demand that such evidence cannot be made the sole ground of conviction. it may be used only as a corroborative piece of evidence. Extra judicial confession appears to have been treated as a weak piece of evidence, but there is no rule of law nor rule of prudence that it cannot be acted upon unless corroborated. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have an motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then, after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon."
The following observation has been made by the Supreme Court in Kishore Chand v. State of Himachal Pradesh'' (1991 SCC (Cri) 172):
"An unambiguous extra-judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity. But in the process of the proof of the alleged confession t he court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged u/s 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act. Therefore, the court has to look into the surrounding confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. Extra-judicial confession if found to be voluntary, can be relied upon by the court along with other evidence on record. Therefore, even the extrajudicial confession will also have to be proved like any other fact. The value of the evidence as to the confession depends upon the veracity of the witness of whom it is made and the circumstances in which it came to be made and the actual words used by the accused. Sometimes it may not be possible to the witness to reproduce the actual words in which the confession was made. For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.
Law is laid down by the Supreme Court in BALDEV RAJ: V. STATE OF HARYANA 1991 SCC (Cri) 659) thus:
"An extra-judicial confession, if voluntary, can be relied upon by the court along with other evidence in convicting the accused. The value of the evidence as to the confession depends upon the veracity of the witnesses to whom it is made. It is true that the court requires the witness to give the actual words used by the accused as nearly as possible but it is not an invariable rule that the court should not accept the evidence, if not the actual words but the substance were given. It is for the court having regard to the credibility of the witness to accept the evidence or not. When the court believes the witness before whom the confession is made and it is satisfied that the confession was voluntary, conviction can be founded on such evidence."
Apex Court observed in State of Punjab v. Gurdeep Singh, 1999 SCC (Cri) 1368) that while it is true that in Narayan Singh''s case (supra) this court expressly observed that it is not open to any court to start with a presumption that extra judicial confession is a weak type of evidence, a later decision of this court in Kavita v. State of Tamilnadu (JT 1998 (5 SC 151] stated that in the very nature of things it is a weak piece of evidence. In paragraph 4 of the Report this court in Kavita''s case (supra) observed:
"THERE is no doubt that convictions can be based on extra judicial confession but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon the veracity of the witness to whom it is made. It may not be necessary that the actual words used by the accused must be given by the witness but it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses."
Apparently there may seem to be some expression of divergence but on the totality of the situation, question there being any difference of expression of opinion does not arise, since Kavita''s case (supra) in no uncertain terms laid down that the evidentiary value of the extra judicial confession depends upon the veracity of the witnesses to whom it is made and it is for the court to decide on the acceptability of the evidence having regard to the credibility of the witnesses.
Observations made by the apex court in STATE OF TAMIL NADU v. KUTTY ALIAS LAKSHMI NARASIMHAN, 2001 SCC (Cri) 1177) is also appropriate in this context:
it is not the law that once a confession was retracted the court would presume that the confession is tainted. As a matter of practical knowledge we can say that non-retracted confession is a rarity in criminal cases. To retract from confession is the right of the confessor and all the accused against who confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The twin test of a confession is to ascertain whether it was voluntary and true. Once those tests are found to be positive the next endeavour is to see whether there is any other reason which stands in the way of acting on it. Even for that, retraction of the confession is not the ground to throw the confession overboard.
In Pyare Lal Bhargava v. State of Rajasthan (AIR 1963 SC 1094) Supreme Court observed thus:
"A retracted confession may from the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration, but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars."
A retracted confession by an accused may from the basis of a conviction of that accused if it receives some general corroboration from other independent sources. It cannot however, be the basis for convicting a co-accused though it may be taken into consideration against a co-accused also (Shrishail Nageshi Pare v. State of Maharashtra (1985 SCC (Cri) 235).
A confession can also be used against a co-accused, in view of Section 30 of the Evidence Act. Which reads as under:
"When more persons than one are being tried jointly for the same offence, and confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession."
The next question that naturally arises is how far and in what way the confession can be used against a co-accused, who has faced the trial for the same offence with the maker thereof. This was pithily answered by the Supreme court in Kashmira Singh v. State of M.P. with the following words:
"THE proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."
In K.I. PAVUNNY v. Collector (HQ) Central Excise Collectorate, 1997 SCC (Cri) 444 Supreme Court held thus:
The evidence may consist of direct evidence, confession or circumstantial evidence. In a criminal trial punishable under the provisions of the Indian Penal Code it is now well-settled legal position that confession can from the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with u/s 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker, of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab. If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the accused is able to prove the facts creating reasonable doubt that the confession was not voluntary or it was obtained by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the court for ordering conviction. However, the rule of prudence and practice does require that the court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of a given set of facts. The high degree of proof and probative value is insisted in capital offences.
It would thus be seen that there is no prohibition under the Evidence Act to rely upon he retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require the court would seek assurance getting corroboration from other evidence adduced by the prosecution.
Confessions in criminal law have been characterised to be either judicial or extra judicial. The prosecution is obliged to refer and rely on the alleged confession of the accused in any one of the aforesaid categories. As extra judicial confession cannot be treated as judicial confession, similarly an alleged judicial confession prove to have not been legally recorded cannot be used as extra judicial confession. Otherwise also such an approach would result in dragging the judicial officers into uncalled for and unnecessary controversies. In AIR 1936 253 (Privy Council) it was observed:
".....IT would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons, to be by reason of their position freed from the disability that attaches to police officers u/s 162 of the Code, and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records u/s 164. In the result they would indeed be relegated to be position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever."
Relying upon Nazir Ahmad''s case and applying the principles laid down in Taylor v. Taylor [(1876) 1 Ch.D 426] Supreme Court in Singhara Singh''s case (supra) held thus:
"THE rule adopted in Taylor v. Taylor [(1876) 1 Ch.D 426] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A Magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The Section, therefore, by conferring on Magistrates the power to record statements on confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confession made to him."
It is settled principle of law that where a power is given to do a certain thing in a certain manner, the thing must be done in that way or not at all. Supreme Court in State of Uttar Pradesh Vs. Singhara Singh and Others, held "a Magistrate, therefore, cannot, in the course of investigation, record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down".
Observations made by the Supreme Court in State of A.P. v. Gangula Satya Murthy (1997 SCC (Cri) 325) also very much relevant. It is true any confession made to a police officer is inadmissible u/s 25 of the Act and that ban is further stretched through Section 6 to the confession made to any other person also if the confessor was then in police custody. Such ''custody'' need not necessarily be post-arrest custody, The word ''custody'' used in Section 26 is to be understood in a progmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person be he not a police officer, such confession would also be hedged within the banned contours outlined in Section 26 of the Evidence Act.
At this stage it is not possible to hold that the extra-judicial confession made to PW.1 is not true and voluntary. It cannot be said that no materia is available before the trial court prima facie connection petitioner''s involvement in the alleged commission of offence.
On going through the materials on record I am also of the view that a prima facie case has been made out against the petitioner for arraigning him as an accused exercising the powers u/s 319 Cr.P.C. and I do not find any infirmity in the order passed by the learned Magistrate. Hence, this revision is dismissed.