# State of Uttar Pradesh v. Singhara Singh and Others

- **Citation:** [1964] 4 S.C.R. 485
- **Court:** Supreme Court of India
- **Decided:** 1963-08-16
- **Bench:** A. K. Sarkar, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttar-pradesh-v-singhara-singh-and-others-3169
- **Pages:** 13

## Headnote

Crin1inal Procedure-Evidence-Respondents accused of murder-A1agistrate not empo1vered to record a confession records a con~
fession-Records of confession not held to be
admissible by the
trial Court-T/1e .Vagistrate gives oral evidence of confession-The
n:lords H.ied to refresh !1is rnen1ory-T-Vhether the oral evidence is
aa'inissible-Code of Crilnh1at Procedure, 1898 (Act 5 of 1898),
ss. 164. 364. 533-lndian Evidence Act, 1872 (! of 1872), ss. 74
80 and 159.
By sub-sec. ( 1) of s. 164 of the Code of Criminal Procedure
it \Y~s provided, '\<\ny Presidency Magistrate, any Wlagistrate of the
first class and any I'vfagistrate of the second
class specially ernpowered in this behalf by State c;overn1nent nlay, if he is not a
police -officer record any state1nent or confession made to him in
the course of an investigation under this Chapter or under any other
la\v for the ti1ne being in force or at any time afterwards before the
c01nmencen1ent of the inquiry or trial." In a case \\'here a confession
had been recorded under s. 164(1) by a Magistrate of the second
class not specially e1npo\vered,
Held, the confession had not been recorded under s. 164 of
the (~ode and the record could not be put in evidence under ss. 74
and 80 of the Evidence Act to prove confes:iiion.
Oral evidence of the Magistrate to prove the confession \Vas not
a<l1nissible.
If a statute has conferred a power to do an act and
ha<l laid <lo\Vn thr" method in which that power has to be exercised,
it necessarily prohibits the doing of the act in any other manner than
thJt lvhich has been prescribed.
Taytur v. Taylor, (1875) 1 Ch. D. 47.6 and Nazir Ahmed v.
King Emperor, L.R. 63 LA. 372.
A ?vfagistrate recording a confession under s. 164 of the Code
is bound to follow
the procedure laid <lo'\Vn in it.
Section 533
of the (~ode does not shovv that the procedure prescribed by s. 164
of the Code was not mandatory. The object of s. 164 of the Code
\Vas not to give the prosecution the advantage of ss. 74 and 80
ot the "EviJence Act so that the only result of the disregard of these
pro,·isions \Vas to deprive the prosecution of that advantage. Nazir
Ahmed's case was rightly decided.
Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372 Rao Shiv
Bah•dur Singh ,-. State of Findhya Pradesh, [1954 J S.C.R. 1908 and
Dap Chand \'. State of Rajasthan, [1962/ 1 S.C.R. 662.
'The principle of Nar::ir Ahmed's case which dealt '\Vith the re~
cording of a confession by a Magistrate of the first class without
c;om!Jlying \Vith the procedure laid down in s. 164 of the Code
!llie coYers the present case.
\Vhen a statute confers a power on
1963
August 16
1963
State of Uttar
Pradesh
v.
Singhara Singh
and Others.
Sarkar /.
486
SUPREME COURT REPORTS
[1964]
certain judicial officers, that pow~r can obviously be exercised only
by those officers and no other officer can exercise it.
Case Law reviewed.
Ashraf v. State, l.L.R. [1960] 2 All. 488, distinguished.
Ram Sanchi v. State A.LR. 1963 AIL 308 and Ghulam Hns·
Jazn v. 1'he King, L.R. 77 I.A. 65, distinguiseJ.
Brij Hushan Singh v. King Emperor, L.R. 73 I.A. J Hhubor:
Sahu v. The King, L. R. 76 I.A. 147 Emperor v. Ram Nares!:,
l.L.R. [1939 J All 377. Re, Natcsan, A.LR. 1960 Mad. 433.
Willie Slaney v. State of Madhya Pradesh, [1955] 2 S.C.R. 114<:.
CRIMINAL APPELLATE JuRJsDic'floN : Criminal Appeal
No. 31 of 1%2.
Appeal by special leave from the judgment and order
dated May, 31, 1961, of the Allahabad High Court in Criminal Appeals Nos. 2017 and 2109 of 1960 and Refere11ce
No. 142 of 1%0.
C. B. Agarwala, G. C. Mathur 'and C. P. Lal, for the
appellant.
Nuruddin Ahmed and V. D. Misra, for the respondents.
August 16, 1963. The Judgment of the Court was delivered by
SARKAR J.-On March 20, 1959 Raja Ram,
a shopkeeper, of Afzalgarh in the State of Uttar Pradesh was
murdered by gunshot in his shop. Seven persons including the three respondents, Singhara Singh, Bir Singh and
Tega Sin;;h were prosecuted for this murder. The learned Additional Sessions Judge of Bij

## Text

1
~
-
4 S.C.R.
SUPREME COURT REPORTS
485
ST A TE OF UTT AR PRADESH
ti.
SINGHARA SINGH AND OTHERS
(A. K. SARKAR, M. HIDAYATULLAH AND J. c. SHAH, JJ.)
Crin1inal Procedure-Evidence-Respondents accused of murder-A1agistrate not empo1vered to record a confession records a con~
fession-Records of confession not held to be
admissible by the
trial Court-T/1e .Vagistrate gives oral evidence of confession-The
n:lords H.ied to refresh !1is rnen1ory-T-Vhether the oral evidence is
aa'inissible-Code of Crilnh1at Procedure, 1898 (Act 5 of 1898),
ss. 164. 364. 533-lndian Evidence Act, 1872 (! of 1872), ss. 74
80 and 159.
By sub-sec. ( 1) of s. 164 of the Code of Criminal Procedure
it \Y~s provided, '\<\ny Presidency Magistrate, any Wlagistrate of the
first class and any I'vfagistrate of the second
class specially ernpowered in this behalf by State c;overn1nent nlay, if he is not a
police -officer record any state1nent or confession made to him in
the course of an investigation under this Chapter or under any other
la\v for the ti1ne being in force or at any time afterwards before the
c01nmencen1ent of the inquiry or trial." In a case \\'here a confession
had been recorded under s. 164(1) by a Magistrate of the second
class not specially e1npo\vered,
Held, the confession had not been recorded under s. 164 of
the (~ode and the record could not be put in evidence under ss. 74
and 80 of the Evidence Act to prove confes:iiion.
Oral evidence of the Magistrate to prove the confession \Vas not
a<l1nissible.
If a statute has conferred a power to do an act and
ha<l laid <lo\Vn thr" method in which that power has to be exercised,
it necessarily prohibits the doing of the act in any other manner than
thJt lvhich has been prescribed.
Taytur v. Taylor, (1875) 1 Ch. D. 47.6 and Nazir Ahmed v.
King Emperor, L.R. 63 LA. 372.
A ?vfagistrate recording a confession under s. 164 of the Code
is bound to follow
the procedure laid <lo'\Vn in it.
Section 533
of the (~ode does not shovv that the procedure prescribed by s. 164
of the Code was not mandatory. The object of s. 164 of the Code
\Vas not to give the prosecution the advantage of ss. 74 and 80
ot the "EviJence Act so that the only result of the disregard of these
pro,·isions \Vas to deprive the prosecution of that advantage. Nazir
Ahmed's case was rightly decided.
Nazir Ahmed v. King Emperor, L.R. 63 I.A. 372 Rao Shiv
Bah•dur Singh ,-. State of Findhya Pradesh, [1954 J S.C.R. 1908 and
Dap Chand \'. State of Rajasthan, [1962/ 1 S.C.R. 662.
'The principle of Nar::ir Ahmed's case which dealt '\Vith the re~
cording of a confession by a Magistrate of the first class without
c;om!Jlying \Vith the procedure laid down in s. 164 of the Code
!llie coYers the present case.
\Vhen a statute confers a power on
1963
August 16
1963
State of Uttar
Pradesh
v.
Singhara Singh
and Others.
Sarkar /.
486
SUPREME COURT REPORTS
[1964]
certain judicial officers, that pow~r can obviously be exercised only
by those officers and no other officer can exercise it.
Case Law reviewed.
Ashraf v. State, l.L.R. [1960] 2 All. 488, distinguished.
Ram Sanchi v. State A.LR. 1963 AIL 308 and Ghulam Hns·
Jazn v. 1'he King, L.R. 77 I.A. 65, distinguiseJ.
Brij Hushan Singh v. King Emperor, L.R. 73 I.A. J Hhubor:
Sahu v. The King, L. R. 76 I.A. 147 Emperor v. Ram Nares!:,
l.L.R. [1939 J All 377. Re, Natcsan, A.LR. 1960 Mad. 433.
Willie Slaney v. State of Madhya Pradesh, [1955] 2 S.C.R. 114<:.
CRIMINAL APPELLATE JuRJsDic'floN : Criminal Appeal
No. 31 of 1%2.
Appeal by special leave from the judgment and order
dated May, 31, 1961, of the Allahabad High Court in Criminal Appeals Nos. 2017 and 2109 of 1960 and Refere11ce
No. 142 of 1%0.
C. B. Agarwala, G. C. Mathur 'and C. P. Lal, for the
appellant.
Nuruddin Ahmed and V. D. Misra, for the respondents.
August 16, 1963. The Judgment of the Court was delivered by
SARKAR J.-On March 20, 1959 Raja Ram,
a shopkeeper, of Afzalgarh in the State of Uttar Pradesh was
murdered by gunshot in his shop. Seven persons including the three respondents, Singhara Singh, Bir Singh and
Tega Sin;;h were prosecuted for this murder. The learned Additional Sessions Judge of Bijnor before whom the
trial was held, convicted the respondent Singhara Singh
of the murder under s. 302 of the Indian Penal Code and
sentenced him to death. He convicted the respondents
Bir Singh and Tega Singh of abetment of the
murder
under s. 302 read with ss. 120B, 109 and 114 of the said
Code and sentenced Bir Singh to death and Tega Singh
to imprisonment for life. He acquitted the other accused
persons.
yThe respondents appealed from the conviction to the
High Court at Allahabad and the State from the acquittal.
The High Court had also before it the usual reference for
confirmation of the sentences of death. The High Court
allowed the appeals of the respondents, dismissed the appeai
of the State and rejected the reference. The State has now
filed this appeal against the judgment of the High Court
4-,....
by special leave. This Court however granted the leave
-
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-
•
4 S.C.R.
SUPREME COURT REPORTS
487
only so far as the judgment of the High Court concerneJ
the three respondents. We are not, therefore, concerned
with the other accussed persons and the order acquitting
them is no more in question.
The only point argued in this appeal was as to the
admissiblity of certain oral evidence. It is conceded that
if that evidence was not admissible, then there is no other
evidence on which the respondents can be convicted. In
other words, it is not in dispute that if that evidence
was not admissible the High Court's decision acquitting
the respondents cannot be questioned.
It is therefore
not necessary to state the facts in detail.
Now, the evidence with which this case is concerned
was given by a learned magistrate, Mr. Dixit, of confessions of guilt made to him by the respondents and purported to have been recorded by him under s. 164 of the Code
of Criminal Procedure. The terms of that section and
certain other sections of the Code on the interpretation of
which this case depends, are as follows:
S. 164 (1) 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.
( 2) 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.
(3) 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
1963
State of U ttar
Pradesh
v.
Singhara Singh
and Others.
Sarkar f.
1963
State of U ttRr
Pradesh
v.
Singhara Sini:h
and Others.
488
SUPREME COURT REPORTS
[1964)
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:-
! 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 m 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.
(Signed) A.B.
Magistrate.
S. 364 (1) Whenever the accused is examined by any
Magistrate, or by any Court other than a High Court
for a Pan 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; and such record shall be shown or read to
him, or, if he does not understand the language in
which it is written, shall be interpreted to him in a
language which he understands, and he shall be at
liberty to explain or add to his answen.
(2) When the whole is made conformable to what
he declares is the truth, the record shall be signed
by the accused and the Magistrate or Judge of such
Court, and such Magistrate or Judge shall certify under
his own hand that the examination was taken in his
presence and hearing and that the record contains a
full and true acount of the statement . made by the
accused.
(3) In cases in which the examination of the accused is nqt recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds,
to make a memorandum thereof in the language of
tlie Court, or in English, if he is sufficiently acquainted
with the latter language; and such memorandum shall
be written and signed by the Magistrate or Judge with
his own hand, and shall be annexed to the record. If
the Magistrate or Judge is unable to make a memo-
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-
4 S.C.R.
SUPREME COURT REPORTS
489
randum as above required., he shall record the reason
of such inability.
(4) Nothing in this section shali be deemed to apply to the examination of an accused person under
section 263 or in the course of a trial held by a Presidency Magistrate.
S. 533 (1) If any Court, before which a confession or
other statement of an accused person recorded or purporting to be recorded under section 164 or section
364 is tendered or has been received in evidence, finds
that any of the provisions of either of such sections
have not been complied with by the Magistrate recording the statement, it shall take evidence that such
person duly made the statement recorded; and, notwithstanding anything contained in the Indian Evidence Act, 1872, section 91 such statement shall be admitted if the error has not injured the accused as to
his defence on the mems.
(2) The provisions of this section appiy to Courts
of Appeal, Reference and Revision.
A confession duly recorded under s. 164 would
no
doubt be a public document under s. 74 of the Evidence
Act which would prove itself under s. 80 of that Act.
Mr. Dixit, who recorded the confession in this case was a
second class magistrate and the prosecution was unable to
prove that he had been specially empowered by the State
Government to record a statement or confession under
s. 164 of the Code. The trial, therefore, proceeded on the
basis that he had not been so empowered. That being so,
it was rightly held that the confessions had not been recorded under s. 164 and the record could not be put in
evidence under ss. 74 and 80 of the Evidence Act to prove
them. The prosecution, thereupon called Mr. Dixit to prove
these confessions, the record being used only to refresh his
memory under s. 159 of the Evidence Act. It is the admissibility of this oral evidence that is in question.
The Judicial Committee in Nazir Ahmed v. The KingEmperor(') held that when a magistrate of the first class
records a confession under s. 164 but does not follow the
procedure laid down in that section, oral evidence of the
confession is inadmissible. Nazir Ahmed's(') case natu-
(1) LR. 63 I.A.. 3n.
32-2 S. C. lnct:aj64
JJ63
S:a1e of {)ttc;r
Jlntdes.-i
v.
. Sing/;.ua Si:i:;h
and (Jtlu:r~·.
/
State of U t!ar
Pradesh
'.
Singhara Singh
and Others.
Sarf(ar /.
490
SUPREME COURT REPORTS
[1964]
rally figured largely in the arguments presented to this
Court and the Courts below. The learned trial Judge following Ashrafi v. The State(') to which we will have to
refer latter, held that Nazir Ahmed's case(') had no application where, as in the present case, a magistrate not authorised to do so purports to record a confession under s. 164,
and on that basis admitted the oral evidence. The learned
Judges of the High Court observed that the present case
was governed by Nazir Ahmed's case(2 ) and that Ash:arfi's
case(') had no application because it dealt "with the
question of identification parades held by Magistrates.
There was no occasion to discuss the question of confessiom
recorded before Magistrates." In this view of the matter
the learned Judges of the High Court held the oral evi··
dence inadmissible and acquitted the respondents. It would
help to clear the ground to state that it had not been argued
in Nazir Ahmed's case(
2
) that s. 533 of the Code had any
operation in making any oral evidence admissible and the
position is the same in the present case.
It would not,
therefore, be necessary for us to consider whether that section had any effect in this case in making any evidence
admissible.
In Nazir Ahmed's case(') the Judicial Committee observed that the principle applied in Taylor v. Taylor(') to
a Court, namely, that where a power is given to do a certain
thing in a certain way, the thing must be done in that way
or not at all and that other methods of performance are
necessarily forbidden, applied to judicial officers making a
record under s. 164 and, therefore, held that magistrate could
not give oral evidence of the confession made to him which
he had purported to record under s. 164 of the Code.
It was said that otherwise all the precautions and safeguards laid down in ss. 164 and 364, both of which
had to be read together, would become of such trifling
value as to be almost idle and that "it would be an
unnatural construction to hold that any other procedure
was permitted than that which is laid down with such
minute particularity in the sections themselves."
The rule adopted in Taylor v. Taylor(') is well recognised and is founded on sound principle. Its result is
( 1 ) I.L.R. [1960] 2All. 488.
(2) L.R. 63 I.A. 372.
( 3) [18751 1 Ch. D. 426, 431.
,.
..
-
-
4 S.C.R.
SUPREME COURT REPORTS
491
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 s. 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 s. 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 or confessions, by necessary implication, prohibited a magistrate
from giving oral evidence of the statements or confessions
made to him.
Mr. Aggarwala does not question the validity of the
principle but says that Nazir Ahmed's case(') was wrongly
decided as the principle was not applicable to its facts.
He put his challenge to the correctness of the decision on
two grounds, the first of which was that the principle applied in Taylor v. Taylor(
2
) had no application where the
statutory provision conferring the power was not mandatory and that the provisions of s. 164 were not mandatory
as would appear from the terms of s. 533.
This contention seems to us to be without foundation.
Quite clearly, the power conferred by s. 164 to record a
statement or confession is not one which must be exercised.
The Judicial Committee expressly said so in Nazir Ahmed's
case(') and we did not understand Mr. Aggarwala tc
question this part of the judgment. What he meant was
that s. 533 of the Code showed that in recording a statement or confession under s. 164, it was not obligatory for
the magistrate to follow the procedure mentioned in it.
Section 533 savs that if the court before which a statement
or confession ~f an accused person purporting to be recorded under s. 164 or s. 364 is tendered, in evidence, "finds
that any of the provisions of either of such sections have
-----(i)L.R. 63 T.A.372-:-
(2) ll875] 1 Ch. 426.
1963
State of Uttm
Pradesh
v.
Si11p,;ha:·a Singh
and Others.
Sarkur /
1963
S~ate of Uttar
Prctdesh
\'.
Si11ghu, .. n SiJ,'gh
and Others.
492
SUPREME COURT REPORTS
[1%4]
not been complied with by the magistrate recording the
statement, it shall take evidence that such person duly
made the statement recorded." Now a statement would
not have been "duly made" unless the procedure for making it laid down in s. 164 had been followed. What s. 533,
therefore, does is to permit oral evidence to be given to
prove that the procedure laid down in s. 164 had in fact
been followed when the court finds that the record produced hefore it does not show that that was so. If the
oral evidence establishes that the procedure had been followed, then only can the record be admitted. Therefore,
far from showing that the procedure laid down in s. 164
is not intended to be obligatory, s. 533 really emphasises
that that procedure has to be followed. The section only
permits oral evidence to prove that the procedure had
actually been followed in certain cases where the record
which ought to show that does not on the face of it do so.
The second ground on which Mr. Aggarwala challenged the decision in Nazir Ahmed's case(') was that the
object of s. 164 of the Code is to permit a record being
kept so as to take advantage of ss. 74 and 80 of the Evidence Act and avoid the inconvenience of having to call
the magistrate to whom the statement or confession had
been made, to prove it. The contention apparently is that
the section was only intended to confer a benefit on the
prosecution and, therefore, the sole effect of the disregard
of its provisions would be to deprive the prosecution of
that benefit, for it cannot then rely on ss. 74 and 80 of
the Evidence Act and has to prove the confession by other
evidence including the oral evidence of the magistrate
recording it. It was, therefore, said that the principle adopted in Nazir Ahmed's case(') had no application in interpreting s. 164.
A similar argument was advanced in Nazir Ahmed's
case(') and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to
make a record of the confession made by an accused which
may be used in evidence against him and at the same
time it provides certain safeguards for his protection
by laying down the procedure subject to which alone
the record may be made and used in evidence.
The
-C1) L.R. 63 I.A. 37-Z:---
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' '
'
4 S.C.R.
SUPREME COURT REPORTS
493
record, if duly made, may no doubt be admitted in
evidence without further proof but if it had not been
so made and other evidence was admissible to prove
that the statements recorded had been made, then the
creation of the safeguards would have been futile. The
safeguards were obvious! y not created for nothing and it
could not have been intended that the safeguards might
at the will of the prosecution, be bypassed. That is what
would happen if oral evidence was admissible to prove a
confession purported to have been recorded under s. 164.
Therefore it seems to us that the object of s. 164 was not
to give the prosecution the advantage of ss. 74 and 80 of
the Evidence Act but to provide for evidence being made
avai:able to the prosecution subject to due protection of
the interest of the accused.
We have to point out that the correctness of the decision of Nazir Ahmed's case(') has been accepted by this
Court in at least two cases, namely, Rao Shiv Bahadur
Singh v. The State of Vindhya Pradesh(') and Deep
Chand v. State of Rajasthan('). We have found no reason
to take a different view.
Mr. Aggarwala then contended that Nazir Ahmed's
. case(') was distinguishable. He said that all that the Judicial Committee decided in Nazir Ahmed's case was that
if a Presidency Magistrate, a Magistrate of the first class or
a Magistrate of the second class specially empowered in
that behalf records a statement or confession under s. 164
but the procedure laid flown in it is not complied with,
he cannot give oral evidence to prove the statement or
confession. According to Mr. Aggarwala, it does not follow
from that decision that a Magistrate of a class not mentioned in the section, for example, a magistrate of the
second class not specially empowered by the State Government cannot give oral evidence of a confession made to
him which he had purported to record under s. 164 of
the Code.
It is true that the Judicial Committee did not have to
deal with a case like the present one where a magistrate
of the second class not specially empowered had purported
to record a confession under s. 164. The principle applied
~- -(1jLJi.. 63 I.A. 372.
( 2 ) [1954] S.C.R. 1098.
(') [1962] I S.C.R. 662.
'.963
Sta!c i)i [ .' t:ar
l'r.:r!c1-:
\'.
Singhara .\;11;:h
and Others,
1963
State of Uttar
Pradesh
v.
Singhara Singh
and Others.
Sarkar f.
494
SUPREME COURT REPORTS
[1964]
in that decision would however equally prevent such a
magistrate from giving oral evidence of the confession.
When a statute confers a power on certain judicial officers,
that power can obviously be exercised only by those officers.
No other officer can exercise that power, for it has not been
given to him. Now the power has been conferred by
s. 164 on certain magistrates of higher classes. Obviously,
it was not intended to confer the power on magistrates of
lower classes. If, therefore, a proper construction of s. 164,
as we have held, is that a magistrate of a higher class is
prevented from giving oral evidence of a confession made
to him because thereby the safeguards created for the benefit of an accused person by
s.
164 would be rendered
nugatory, it would be an unnatural construction of the section to hold that these safeguards were not thought neces-·
sary and could be ignored, where the confession had been
made to a magistrate of a lower class and that such a
magistrate was, therefore, free to give oral evidence of the
confession made to him. We can.not put an interpretation
on s. 164 which produces the anomaly that while it is not
possible for higher class magistrates to practically abrogate
the safeguards created in s. 164 for the benefit of an accused person, it is open to a lower class magistrate to do
so. We, therefore, think that the decision in Nazir Ahmed's
case(') also covers the case in hand and that on the principles there applied, here too oral evidence given by Mr. Dixit
of the confession made to him must be held inadmissible.
It remains now to notice some of the decisions on
which Mr. Aggarwala relied in support of his contention.
First of all we have to refer to Asharfi's case(2 ). That was
" case which was concerned with the memorandum of an
identification parade prepared by a magistrate of the first
class. It was observed in that case that Nazir Ahmed's
case(') was authority for the proposition that where a
magistrate belongs to a class mentioned in s. 164, be
must act in terms of it or not at all, but where the
proceedings are held before any other magistrate the
statement is one under the unwritten general law and
Nazir Ahmed's case had no application.
It was also
observed that
an
identification memorandum was a
st~rement recorded under s. 164 when the record was
-(1) L.R. 63 I.A. 372.
(2). J.L.R. [1960) 2 All. 488.
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.,
)
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-.
4 S.C.R.
SUPREME COURT REPORTS
495
made by a magistrate of a class mentioned in it but where
the memorandum was prepared by a magistrate of another
class it was not a record made under that section and the
magistrate making the record can give oral evidence in
proof of the statements in the memorandum. We are
not very clear as to what exactly was intended to be
laid down in this case about s. 164. Furthermore it does
not appear to us from the report how the observations
referred to above were necessary for the decision of the
case, for, as earlier stated, the identification memorandum
considered there had been prepared by a magistrate of
the first class. It is not necessary for us in this judgment
10 decide whether or how far a memorandum of identification proceeding is a statement recorded under s. 164
and we do not wish to be understood as lending our support to the view expressed on that question in Asharfi' s
case('). We think it enough to state that for the reasons
earlier mentioned, we are unable to share the view-if
that was the view expressed in Asharfi's case-that where a
statement or confession is made in the course of investigation to a magistrate not belonging to one of the classes
mentioned in s. 164,
he
can
prove the
statement
or confession by oral evidence.
We may state here
that a later judgment of the same High Court has e:tpressed some doubt about the correctness of that case: see
Ram Sanehi v. State(').
The next case to which reference was made bv
Mr. Aggarwala was Ghulam Hussain v. The King(').
That case dealt with the question whether a statement recorded under s. 164 which did not amount to a confession
could be used against the maker as an admission by him
within ss. 18 to 21 of the Evidence Act and it was held,
that it could. The Judicial Committee observed that "the
fact that an admission is made to a Magistrate while he
is functioning under s. 164 of the Code of Criminal Procedure cannot take it outside the scope of the Evidence Act."
That case only held that the relevancy of a statement recorded under s. 164 had to be decided by the provisions
of the Evidence Act. We have nothing to do with anv
question as to relevancy of evidence. The question before
---(i)TL.R:[T96of"2-A:u. 488.
( 2) A.LR. [1963] All. 308.
(8 } L.R. 77 LA. 65.
1963
State of U ttar
Pradesh
v.
Smghars Singh
and Others.
Sarkar /.
1963
Sra:c of Ut:ur
Prcd(·s'i
Sing!1a:·a Singh
and Others.
Sar,~(i[r f.
496
SUPREME COURT REPORTS
[1964]
us is whether a confession which is relevant can be proved
by oral evidence in view of the provision of s. 164 of tbe
Code. The question dealt with in G hulam Hussain's
case(') was quite different and that case has no bearing
on the question before us.
it is clear that the observation qaoted earlier from
Ghulam Hussain's case(') does not, as argued by Mr. Aggarwaia, support the contention that where a confession
has been purported to be recorded under s. 164 bur
by a magistrate who is not one of those mentioned in
it, the
Evidence Act can still be called in aid to
admit oral evidence to prove the confession.
All that
the Judicial Committee did in that case was to hold
that an admission in a statement duly recorded under
s. 164 was substantive evidence of the facts stated in
it under ss. 18 to 21 of the Evidence Act.
The Judiciai Committee made that observation for this purpose
only and to reject an argument that the cases of Bri;
Bhushan Singh v. King Emperor('), and Bhuboni Sahu
v. The King(') showed that the admission made in
the statement recorded under s.
164 could not be used
against an accused person as substantive evidence of the
fact stated.
The Judicial Committee pointed out that
"In these cases the Board was considering whether a
statement made by a witness under s. 164 of the Code of
Criminal Procedure could be used against the accused a•
substantive evidence of the facts stated, and it was hdd
that such a statement could not be used in that way."
Another case cited was Emperor v. Ram Naresh(').
What had happened there was that two accused persons
walked into the court of a magistrate and wanted to make
a confession. The magistrate called a petition-writer and
the accused persons dictated an application to him and that
was taken down by the petition-writer and signed by them.
That petition was admitted in evidence under s. 21 of the
Evidence Act.
lt was held, and we think rightly, that
Nazir Ahmed's case(') did not prevent the petition being
admitted in evidence because it only forbade certain oral
( 1 ) L.R. 77 I.A. 65.
( 3 ) L.R. 76 I.A. 147.
(') L.R. 63 I.A. 372.
( 2) L.R. 73 I.A. I.
(') I.L.R. [1939] All. 377.
-
•
'
-
4 S.C.R.
SUPREM:E COURT REPORTS
497
evidence being given. This case turned on wholly different facts and is of no assistance.
We may also refer to, In re N atesan (1 ) where it was
observed that the decision in Nazir Ahmed's ca.<e(')
might require reconsideration in view of the observations
of this Comt in Willie Slaney v. The State of Madhya
PradeshC). The actual decision in In re Natesan(") does
not affect the question before us and with regard to the
aforesaid observation made in it we think it enough on
the present occasion to say that we are unable to accept
it as correct.
We think that the High Court in the present case
rightly rejected the oral evidence of Mr. Dixit.
The result is that the appeal fails and is dismissed.
Appeal dismissed.
GURAMMA BHRATAR
CHANBASAPPA
DESHMUKH AND ANOTHER
v.
MALAPPA
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MunHOLKAR,
JJ.)
Hindu
LatV-foint family-Manager,
powers of-Gifts of
property to stranger and to daughter aftC1· marriage, validity ofAdoption-Whether existence of son in embryo £nvalidates adoption-partition-Sudras of Bombay Presidency-Share of adopted
son vis-a-vis natural born son.
'A' died on Jwuary 8, 1944. He left behind him three wives
and t\vo wido\vcd daughters, children of his pre-deceased wife.
The senior most widow filed a civil suit for partition and possession
of l/6th share after setting aside the alienations n1ade by her husband on January 4 and 5, 1944.
It was alleged that at the time
of the death of '/\' his youngest \.vife \.Vas pregnant and that she
gave birth to a male child on October 4, 1944. On January 30, 1944,
the senior most widow took her sister's son in adoption. A few days
before his death 'A' executed two deeds of maintenance in favour
of his two wives (defendant Nos. 1 and 2) and also executed deeds
of gift in favour of widowed daughter, a son of an illegitimate
son and a relative.
Long before his death he also executed two
deeds viz on,t a deed of maintenance and a deed of gift in favour of
the senior most wido\.\' (the plaintiff). To this suit the two widows
were made defendants 1 and 2; the alleged adopted son, defendant 3,
(') A.LR. 1960 Mad. 443.
,,___,
(2) L. R. 63 !. A. 372.
( 3 ) [1955] 2 S.C.R. 1140.
1963
State of l:tt.:r
Pradc:1i
v
ShiS:,·h1<'1·a Singh
and OtlicrJ.
August 19,
1963