State of Uttar Pradesh vs Singhara Singh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 31 of 1962

Decision Date: 16 August 1963

Coram: A.K. Sarkar, M. Hidayatullah, J.C. Shah

In the matter titled State of Uttar Pradesh versus Singhara Singh and Others, decided on 16 August 1963, the Supreme Court of India rendered its judgment through a bench comprising Justice A.K. Sarkar, Justice M. Hidayatullah, and Justice J.C. Shah. The petition was filed by the State of Uttar Pradesh and the respondents were Singhara Singh and several others. The citation for this decision appears in the 1963 All India Reporter at page 358 and in the 1964 Supreme Court Reports (Fourth Series) at page 485, with additional references listed in various law reports and case law digests.

The factual backdrop involved an accusation of murder against the respondents. During the investigation, a magistrate of the second class recorded a confession from the accused. The magistrate, however, was not specially empowered by the State Government to record such a confession under the specific provision of the Code of Criminal Procedure. The trial court subsequently admitted the written record of the confession as evidence under sections 74 and 80 of the Indian Evidence Act. The magistrate also gave oral testimony alleging that the confession had been made, and this oral evidence was used to refresh his memory of the written record. The central question before the Court was whether the written record, obtained without proper statutory authority, could be admitted, and whether the magistrate’s oral evidence describing the confession was admissible.

The Court examined sub‑section (1) of section 164 of the Code of Criminal Procedure, which authorises “any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by State Government” to record any statement or confession made to him in the course of an investigation. The Court observed that the magistrate in the present case was a second‑class magistrate but lacked the special empowerment required by the provision. Consequently, the confession could not be said to have been recorded under section 164, and therefore could not be admitted as evidence under sections 74 and 80 of the Evidence Act. The Court further held that the magistrate’s oral testimony intended to prove the confession was likewise inadmissible, because the statute prescribed a specific method of recording that must be strictly followed.

The Court reinforced the principle that when a statute confers a power to perform an act and also prescribes the manner in which that power must be exercised, the statute implicitly forbids the act from being performed in any other way. The Court cited the English case Taylor v. Taylor (1875) 1 Ch. D. 426 and the Indian precedent Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372, to underscore this rule. It reiterated that a magistrate who records a confession under section 164 is bound to adhere to the procedure laid down in that section. The Court noted that section 533 of the Code does not waive the mandatory nature of the procedure prescribed by section 164; rather, the purpose of the provision is not to grant the prosecution an advantage under sections 74 and 80 of the Evidence Act, but to ensure that confessions are obtained and recorded in a legally sanctioned manner. Accordingly, the Court affirmed the correctness of the decision in Nazir Ahmed, holding that the failure to comply with the statutory procedure resulted in the exclusion of both the written confession and the magistrate’s oral evidence.

In the present matter, the Court referred to the authorities Bahadur Singh v. State of Vindhya Pradesh, [1954] S.C.R. 1908 and Deep Chand v. State of Rajasthan, [1962] 1 S.C.R. 662, and observed that the principle articulated in Nazir Ahmed’s case, which concerned the recording of a confession by a first‑class magistrate without adhering to the procedure mandated by section 164 of the Code of Criminal Procedure, likewise governs the case before it. The Court further explained that when a statute confers a power on certain judicial officers, that power may be exercised only by those officers and cannot be exercised by any other officer. In arriving at this conclusion, the Court reviewed a number of decisions: Ashraf v. State, I.L.R. [1960] 2 All. 488, which was distinguished; Ram Sanchi v. State, A.I.R. 1963 All. 308, also distinguished; Ghulam Hussain v. The King, L.R. 77 I.A. 65, distinguished; Brij Bushan Singh v. King Emperor, L.R. 73 I.A.; Bhubori Sahu v. The King, L.R. 76 I.A. 147; Emperor v. Ram Naresti, I.L.R. [1939] All 377; Re: Natesan, A.L.R. 1960 Mad. 433; and Willie Slaney v. State of Madhya Pradesh, [1955] 2 S.C.R. 1140. The judgment was rendered in the Criminal Appellate Jurisdiction as Criminal Appeal No. 31 of 1962, arising by special leave from the judgment and order dated 31 May 1961 of the Allahabad High Court in Criminal Appeals Nos. 2017 and 2109 of 1960 and Reference No. 142 of 1960. Counsel for the appellant were C. B. Agarwala, G. C. Mathur and C. P. Lal, while counsel for the respondents were Nuruddin Ahmed and V. D. Misra. The opinion was delivered on 16 August 1963 by Justice Sarkar. The factual backdrop involved the murder on 20 March 1959 of Raja Ram, a shopkeeper of Afzalgarh in Uttar Pradesh, who was shot to death in his shop. The trial before the learned Additional Sessions Judge of Bijnor resulted in the conviction of Singhara Singh for murder under section 302 of the Indian Penal Code, with a death sentence, and the conviction of Bir Singh and Tega Singh for abetment of murder under section 302 read with sections 120B, 109 and 114, the former receiving death and the latter life imprisonment, while the remaining accused were acquitted. The three respondents appealed the convictions to the Allahabad High Court, and the State appealed the acquittals. The High Court also considered the usual reference for confirmation of the death sentences. It allowed the respondents’ appeals, dismissed the State’s appeal and rejected the reference. The State subsequently obtained special leave to appeal the High Court’s judgment, but the leave was limited to the portion concerning the three respondents, leaving the acquittal of the other accused undisturbed. The sole issue raised in the present appeal concerned the admissibility of certain oral evidence, and the parties conceded that, had that evidence been excluded, no other evidence existed upon which the respondents could be convicted, thereby rendering the High Court’s decision to acquit them unchallengeable.

It was conceded that, if the oral evidence in question were held to be inadmissible, there would be no other material on which the respondents could be found guilty. In other words, the parties did not dispute that, were the oral evidence to be excluded, the High Court’s finding acquitting the respondents could not be challenged. Consequently, the Court found it unnecessary to set out the factual matrix in detail. The matter before the Court concerned evidence that had been supplied by a learned magistrate, Mr Dixit, who had recorded confessions of guilt made by the respondents. Those confessions were said to have been recorded by him in accordance with section 164 of the Code of Criminal Procedure. The determination of the case therefore hinged upon the terms of that section and of certain other provisions of the Code, the interpretation of which the Court was required to consider.

Section 164 of the Code of Criminal Procedure provides that any Presidency Magistrate, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf by the State Government may, if he is not a police‑officer, record any statement or confession 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. Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. A 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 no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he 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.” The memorandum shall be signed by the Magistrate. Section 364(1) further states that whenever the accused is examined by any Magistrate, or by any Court other than a High Court for a Part A State or a Part B State, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the Court or in English.

The Court explained that the written record of an accused’s examination had to be shown or read to the accused, and if the accused could not understand the language in which it was written, it had to be interpreted for him in a language he understood. The accused was then free to explain or add to his answers. When the entire record was made consistent with what the accused declared to be the truth, the document had to be signed by both the accused and the Magistrate or judge who conducted the examination. That Magistrate or judge also had to certify, in his own handwriting, that the examination had been taken in his presence and hearing and that the record contained a full and true account of the statement made by the accused.

The Court further noted that if the examination of the accused was not recorded by the Magistrate or judge himself, the officer presiding over the examination was required to prepare a memorandum of the proceedings in the language of the Court, or in English if he was sufficiently familiar with English. This memorandum had to be written and signed by the Magistrate or judge with his own hand and then attached to the record. In the event that the Magistrate or judge was unable to prepare such a memorandum, he was obligated to note the reason for his inability in the record.

The Court clarified that nothing in this provision was to be deemed applicable to the examination of an accused person under section 263, nor to examinations conducted during a trial held by a Presidency Magistrate.

Regarding section 533, the Court held that if any Court, before which a confession or other statement of an accused person recorded or purported to be recorded under section 164 or section 364 was presented or received as evidence, found that any of the procedural requirements of those sections had not been complied with by the Magistrate who recorded the statement, that Court was to take evidence that the accused had indeed made the statement. The Court further stated that, notwithstanding the provisions of section 91 of the Indian Evidence Act, such a statement would be admitted provided that the procedural error had not injured the accused’s defence on the merits. The Court added that the provisions of this section applied equally to Courts of Appeal, Reference and Revision.

The Court observed that a confession duly recorded under section 164 would be a public document under section 74 of the Evidence Act and would prove itself under section 80 of that Act. In the present case, the magistrate who recorded the confession, identified as Mr. Dixit, was a second‑class magistrate, and the prosecution could not demonstrate that he had been specially empowered by the State Government to record a statement or confession under section 164 of the Code. Consequently, the trial proceeded on the basis that he had not been so empowered. The Court therefore held that the confessions had not been recorded under section 164, and the record could not be admitted as evidence under sections 74 and 80 of the Evidence Act. The prosecution subsequently called Mr. Dixit to prove those confessions, the record being…

In this case the only purpose of calling the magistrate to testify was to refresh his memory under section 159 of the Evidence Act, and the admissibility of that oral testimony was the issue before the Court. The Judicial Committee, in Nazir Ahmed v. The King Emperor (1), held that when a first‑class magistrate records a confession under section 164 but does not follow the procedure prescribed in that section, the oral evidence of the confession is not admissible. The decision in Nazir Ahmed’s case (1) – reported in L.R. 63 I.A. 372 – featured prominently in the arguments presented to this Court as well as to the Courts below. The learned trial judge, relying on Ashrafi v. The State (1), which will be referred to later, concluded that the holding in Nazir Ahmed’s case (2) did not apply where, as here, a magistrate who was not authorised to record a confession under section 164 pretended to do so, and on that basis allowed the oral evidence. The learned High Court judges observed that the present matter was governed by the decision in Nazir Ahmed’s case (2) and that Ashrafi’s case (1) was inapplicable because it concerned the question of identification parades conducted by magistrates and never addressed confessions recorded before magistrates. Accordingly, the High Court held the oral evidence inadmissible and acquitted the respondents. It is necessary to state for the record that the argument in Nazir Ahmed’s case (2) did not raise the question of whether section 533 of the Code could render any oral evidence admissible, and the same position obtains in the present case; consequently there was no need to examine whether that provision had any effect on admissibility. In Nazir Ahmed’s case (2) the Judicial Committee observed the principle applied in Taylor v. Taylor (3), namely that where a statute confers a power to be exercised in a particular manner, the act must be performed in that manner or not at all, and any alternative method is prohibited. Applying that principle to judicial officers making a record under section 164, the Committee held that a magistrate could not give oral evidence of a confession that he purported to record under that section. It was emphasized that otherwise the safeguards contained in sections 164 and 364, which must be read together, would become of such trivial value as to be almost idle, and that it would be an unnatural construction to permit any procedure other than that which is laid down with such minute particularity in the statutes themselves. The rule adopted in Taylor v. Taylor (3) is well‑recognised and founded on sound principle, and its result is that if a statute has

The Court observed that when a statute confers a power to perform an act and at the same time prescribes the exact manner in which that power must be exercised, the statutory scheme inevitably excludes the performance of the act by any other method. The underlying logic, the Court explained, is that if the statute allowed a different mode of performance, the provision would be rendered pointless and effectively superfluous. Accordingly, a magistrate engaged in an investigation is prohibited from recording a confession in any way other than that prescribed by section 164 of the Code. The statutory intent behind granting the power to record a confession was clearly to enable the confession to be proved through the record made in the manner laid down. If the confession could be proved by alternative means, the safeguards and procedural requirements embedded in section 164, which are meant to protect the accused, would become meaningless. By therefore vesting in magistrates the authority to record statements or confessions, the provision implicitly barred magistrates from giving oral evidence of those statements or confessions. Counsel for the respondent did not dispute the validity of this principle; rather, he contended that the decision in the case of Nazir Ahmed had been erroneously decided because the principle was inapplicable to its factual circumstances. He advanced two grounds of challenge. The first ground asserted that the rule articulated in Taylor v. Taylor was irrelevant where the statutory provision conferring the power was not mandatory, and that section 164 was not mandatory as suggested by the wording of section 533. The Court found this contention to be unfounded. It noted that the power under section 164 to record a statement or confession is not a compulsory power, a point expressly affirmed by the Judicial Committee in Nazir Ahmed’s case, and the Court did not interpret the counsel’s argument as questioning that aspect of the judgment. Instead, the counsel argued that section 533 indicated that, while recording a statement or confession under section 164, the magistrate was not obligated to follow the procedure set out therein. Section 533 provides that if a court, before which a statement or confession purporting to have been recorded under section 164 or section 364 is tendered in evidence, discovers that any of the provisions of those sections have not been complied with by the magistrate who recorded the statements, the court shall take evidence that the accused did indeed make the statement recorded. However, a statement could not be deemed “duly made” unless the procedure prescribed in section 164 had been observed. Consequently, the effect of section 533 is to permit oral evidence to establish that the procedural requirements of section 164 were actually fulfilled in cases where the documentary record fails to demonstrate such compliance. If the oral evidence successfully shows that the procedure was followed, only then can the record be admitted as evidence.

The Court explained that a record of a statement or confession could be admitted only when it was shown that the procedure prescribed in section 164 had actually been complied with; consequently, section 533 does not indicate that the procedure in section 164 is optional, but rather stresses that the procedure must be observed. Section 533 merely allows oral testimony to establish that the required procedure was followed in situations where the documentary record, which ought to demonstrate compliance, fails to do so on its face. The second ground raised by counsel for the petitioner in challenging the decision in Nazir Ahmed’s case was the contention that the purpose of section 164 of the Code was solely to create a written record so that the prosecution could rely on sections 74 and 80 of the Evidence Act and avoid the inconvenience of producing the magistrate who had taken the statement or confession. According to that argument, the provision was intended only to benefit the prosecution, and a failure to follow its requirements would merely deprive the prosecution of that benefit, because the prosecution would then be unable to invoke sections 74 and 80 and would have to prove the confession by other means, including the magistrate’s oral testimony. It was therefore submitted that the principle laid down in Nazir Ahmed’s case had no relevance to the interpretation of section 164. A similar line of argument had been advanced in Nazir Ahmed’s case and had been rejected by the Judicial Committee, a position with which the Court respectfully agreed. The Court observed that section 164 empowers the making of a written record of an accused’s confession that may be used against him, while simultaneously providing safeguards for the accused’s protection by prescribing the procedure that must be complied with before such a record may be admitted. The record, if properly made, may undoubtedly be admitted without further proof; however, if the record was not properly made and other evidence was allowed to prove that the statements had been made, the safeguards would become meaningless. Those safeguards were not created without purpose, and it could not have been intended that they be bypassed at the prosecution’s discretion. Allowing oral evidence to prove a confession that was purportedly recorded under section 164 would defeat the safeguards. Accordingly, the Court concluded that the object of section 164 was not merely to give the prosecution the advantage of sections 74 and 80 of the Evidence Act, but to make evidence available to the prosecution only while ensuring adequate protection of the accused’s interests. The Court further noted that the correctness of the decision in Nazir Ahmed’s case has been affirmed by this Court in at least two other decisions, namely Rao Shiv Bahadur Singh v. State of Vindhya Pradesh and Deep Chand v.

The Court observed that the earlier judgment in State of Rajasthan (3) gave no reason to depart from the view previously expressed. Counsel for the State, Mr Aggarwala, then argued that the precedent set in Nazir Ahmed’s case (1) should be distinguished. He explained that the Judicial Committee in that case held only that when a Presidency Magistrate, a Magistrate of the first class, or a Magistrate of the second class who was specially empowered under section 164 recorded a statement or confession, and the procedure prescribed by that section was not complied with, such a magistrate could not resort to oral evidence to prove the statement or confession. According to Mr Aggarwala, that holding did not imply that a magistrate of a class not mentioned in the provision— for example, a magistrate of the second class who had not been specially empowered by the State Government—could not give oral evidence of a confession that he had purported to record under section 164 of the Code. He further observed that the Judicial Committee had not been confronted with a factual scenario like the present one, where a magistrate of the second class without special empowerment attempted to record a confession under section 164. Nevertheless, the Court noted that the principle applied in that decision, as set out in (1) L.R. 63 I.A. 372, (2) [1954] S.C.R. 1098 and (3) [1962] 1 S.C.R. 662, would equally preclude such a magistrate from offering oral evidence of the confession. The Court explained that when a statute confers a power on particular judicial officers, that power can be exercised only by those officers; no other officer may exercise it because the power has not been granted to him. Section 164, therefore, confers the power only on certain magistrates of higher classes, and it was not intended to extend that power to magistrates of lower classes. Consequently, a proper construction of section 164, as previously held, is that a magistrate of a higher class is barred from giving oral evidence of a confession made to him, lest the safeguards created for the benefit of an accused under section 164 be rendered nugatory. To read the provision otherwise—allowing a lower‑class magistrate to give oral evidence while higher‑class magistrates are prohibited—would be an unnatural construction that defeats the purpose of the safeguards. The Court could not accept an interpretation of section 164 that would create the anomaly whereby higher‑class magistrates could not abrogate the safeguards, yet a lower‑class magistrate could do so. Accordingly, the Court concluded that the decision in Nazir Ahmed’s case (1) also applied to the present matter, and that, based on the principles articulated therein, the oral evidence offered by Mr Dixit concerning the confession made to him must be held inadmissible. The Court then turned to consider the authorities on which Mr Aggarwala relied in support of his argument.

In addressing the contention, the Court first referred to Asharfi’s case (1). That case dealt with an identification‑parade memorandum that had been prepared by a magistrate of the first class. The Court noted that the earlier decision in Nazir Ahmed’s case (2) was cited as authority for the principle that a magistrate who belongs to a class specified in section 164 must either comply with that provision or not act under it at all. Conversely, when proceedings were before a magistrate of any other class, the statement was regarded as being made under the unwritten general law, and the precedent set by Nazir Ahmed’s case was not applicable. The Court further observed that an identification memorandum qualified as a statement recorded under section 164 only when it was made by a magistrate of a class mentioned in that section; where the memorandum was prepared by a magistrate of a different class, it did not constitute a record made under section 164, and the magistrate who prepared it was permitted to give oral evidence to prove the contents of the memorandum. The Court expressed uncertainty about the precise rule that Asharfi’s case attempted to lay down regarding section 164. Moreover, the Court found that the report did not make clear how the cited observations were essential to the decision, because, as previously noted, the memorandum in question had been prepared by a first‑class magistrate. The Court indicated that it was not necessary in the present judgment to determine whether, and to what extent, an identification memorandum is a statement recorded under section 164, and it did not wish to be interpreted as endorsing the view expressed on that issue in Asharfi’s case (1). The Court simply stated that, for the reasons already mentioned, it could not adopt the view—if that indeed was the view expressed in Asharfi’s case—that a statement or confession made during the investigation to a magistrate who does not belong to one of the classes named in section 164 may be proved by oral evidence. The Court also mentioned that a later judgment of the same High Court, Ram Sanchi v. State (2), had expressed some doubt about the correctness of Asharfi’s decision. The next authority cited by counsel for the State was Ghulam Hussain v. The King (3). That case examined whether a statement recorded under section 164, which did not amount to a confession, could be used against its maker as an admission under sections 18 to 21 of the Evidence Act. The Judicial Committee held that such a statement could indeed be used as an admission. It further observed that the fact that an admission is made to a magistrate while he is acting under section 164 of the Code of Criminal Procedure does not place the admission outside the scope of the Evidence Act. The decision in that case was limited to the relevance of a statement recorded under section 164.

The Court observed that the question of whether a statement recorded under section 164 of the Code of Criminal Procedure is relevant must be decided by applying the relevant provisions of the Evidence Act, and that it had no role in determining the mere relevance of evidence. Accordingly, the Court clarified that the issue before it was not whether a confession was relevant, but whether a confession that is already deemed relevant could be proved by oral testimony in spite of the requirements of section 164. The matter noted in Ghulam Hussain’s case (1) was of a different nature and therefore did not influence the present question. The Court further explained that the passage quoted earlier from Ghulam Hussain’s case (1) could not be used, as argued by counsel for the State, to sustain the proposition that a confession supposedly recorded under section 164 by a magistrate who does not fall within the classes listed in that provision may still be admitted through oral evidence under the Evidence Act. The Judicial Committee, in the earlier decision, merely held that an admission contained in a statement properly recorded under section 164 constituted substantive evidence of the facts asserted in that statement pursuant to sections 18 to 21 of the Evidence Act. That observation was made solely for that purpose, and it was intended to counter the assertion that the rulings in Brij Bhushan Singh v. King Emperor (2) and Bhuboni Sahu v. The King (3) demonstrated that an admission made in a section 164 recording could not be used as substantive evidence against an accused.

The Court pointed out that the Judicial Committee had explicitly remarked that the cases it considered involved the question of whether a witness’s statement taken under section 164 could be employed against an accused as substantive evidence of the facts stated, and it had concluded that such use was not permissible. The Court also referred to the decision in Emperor v. Ram Naresh (4), where two accused individuals voluntarily attended a magistrate’s court, expressed a desire to make a confession, and were assisted by a petition‑writer who transcribed their dictated application, which the accused then signed. That petition was admitted as evidence under section 21 of the Evidence Act. The Court held, and rightly so, that the judgment in Nazir Ahmed’s case (5) did not preclude the admission of the petition because it only prohibited certain oral evidence, whereas the facts in that case were entirely distinct and therefore of no assistance here. Additionally, the Court noted a reference to In re Natesan (1), where it was observed that the decision in Nazir Ahmed’s case (2) might need reconsideration in light of the observations made by this Court in Willie Slaney v. The State of Madhya Pradesh (3). However, the Court concluded that the subsequent decision in In re Natesan (4) did not affect the issue before it, and that the observation made therein could not be accepted as correct on the present occasion.

In this case, the Court observed that the decision rendered in In re Natesan does not have any bearing on the question that was before it for determination. Regarding the specific observation that had been made in that earlier decision, the Court stated that, on the facts and circumstances before it in the present matter, it could not accept that observation as being correct. The Court further expressed the view that the High Court, in the proceedings now before it, had rightly refused to admit the oral evidence offered by Mr Dixit. On the basis of those conclusions, the Court held that the appeal could not succeed. Consequently, the Court ordered that the appeal be dismissed, and it formally recorded the dismissal of the appeal.