A. Pasayat, J.
1. Background facts preceding the presentation of this application for revision according to the petitioner are as follows:
On the basis of information lodged by petitioner Ranjan Kumar Pati, described as informant, law was set into motion. According to the informant, he had ready-made garments cloth store at Haldipal bazar in Balasore district. About mid-night of 9-7-1S90, some unknown culprits secretly entered into his shop by breaking open its wall and committed theft of ready-made garments and clothes. On the next day the informant came to know the incident, verified the stock and found that articles worth about twenty to twenty-five thousand rupees were stolen. He went to the Basta Police Station and presented a written report regarding the incident. Subsequently on 16-7-1990 the stolen articles were recovered from the possession of present opp. party Nos. 2 to 4 on the basis of their voluntary confession. The articles were seized on production by the father of informant, and were given in his zima. On completion of investigation charge-sheet was submitted against aforesaid opposite parties (described as 'accused').
2. The accused pleaded their innocence. Their specific plea was that there was no confession whatsoever as claimed, and there was also no recovery of stolen articles from their possession.
3. In order to establish offence under Sections 457 and 380 of the Indian Penal Code, 1860 (in short, IPC) with which the accused-opp. party Nos. 2 to 4. were charged evidence of 16 witnesses was assessed along with documents adduced by the prosecution by the learned Judicial Magistrate, first class, who found that the foundation of the proceeding against accused-opp. party Nos. 2 to 4 was the alleged confession before Pws 1 to 13 and 15. He on evaluation of evidence came to hold that the evidence of PWs 9, 13, 14 and 15 was widely discrepant from stage to stage. Evidence of PW 9 shows that the confession of accused Manguli was not voluntary. For coming to this conclusion he referred to the statement of PW 9 to the effect that the accused Manguli was told that he would be made over to the Police In case he did not speak the truth. Thereafter; he confessed the guilt. It was. therefore, held that the confession was not voluntary and in view of discrepant nature of evidence of the witnesses accused opposite party Nos. 2 to 4 wer6 entitled to an order of acquittal.
4. In support of the revision application filed by the informant, it was submitted that the (earned Magistrate failed to notice that there was nothing involuntary in the confessional statement of Manguli and therefore, the conclusion that the same was not voluntary is untenable. Learned counsel for accused-opposite party Nos. 2 to 4 on the other hand, submitted that the scenario as described by the witnesses clearly shows that the so-called statement of Manguli before the witnesses, cannot by any stretch of imagination be said to be voluntary in addition, confession if any made by Manguli cannot be pressed into service against others.
5. Section 24 of the Indian Evidence Act, 1872 (in short, the 'Evidence Act') deals with confession caused by inducement, threat or promise, which is irrelevant in criminal proceedings. The expression 'confession' has not been defined in the Evidence Act. A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure. 1893 (described hereinafter as told Code) corresponding to identical provisions of 1973 Code described as 'Code' hereinafter). Confession is a species of admission; and is dealt with in Sections 24 to 30 of the Evidence Act. A confession or an admission is evidence against the maker of it. if its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstance is admissible in evidence against the accused The section covers a confession made when he was free and not in police custody, as also the one made before any investigation has begun. The expression 'accused of any offence' covers a person accused of an offence at the trial whether or not he was accused of the offerce when he made the confession. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. The absolute ban imposed by Section 25 on a confession made to a police officer is not qualified by Section 26. Section 27 is in the form of a proviso. It partially lifts the ban imposed by Sections 24, 25 and 26. The words of Section 162 of the Code are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the evidence Act, Section 25 of the Act absolutely protects a confession by an accused to a police officer and it is also protected by Section 162 of the Code if it is made in the course of an investigation, And a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions proceed upon the view . that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted and should not be used in evidence against him; The provisions are based upon grounds of public policy, and they should be given fullest effect. This position was succinctly stated by the apex Court in Aghnee Nagesial V. State of Bihar : AIR 1966 SC 119.
In Pakala Narayanswami v. Emperor : AIR 1999 PC 47 the Privy Council had occasion to define the term 'confession' and observed that no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. The observations of the Privy Council were approved by the Supreme Court in Balvinder Kaur v. State of Punjab AIR 1952 SC 354om Prakash v. State of U. P AIR I960 SC 40 Jaddi v. State of M. P. : AH 1964 SC 1350 and Kanda Padavachi v. State of Tamil Nadu : AI8 1972 SC 66. To be a confession, admission should contain an acknowledgement of guilt. Therefore all confessions are admission, but every admission may not be a confession. It was observed by the apex Court in Nishi Kar.ta Jha v. State of Bihar : AIR 1969 SC 422, that if the exculpatory portion is found to be inherently improbable after rejecting that portion the Courts may act on the inculpatory portion, A confession admitting in terms an offence and substantially all facts constituting that offence does not by the addition of a plea of justification become self-exculpatory.
6. Confessions may be divided into two classes i. e. judicial and extrajudicial. Judicial confessions are those which are made before Magistrate or Court in the course of judicial proceedings. Extrajudicial confessions are those which are made by the party elsewhere than before a Magistrate or Court. Extrajudtcial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply As to extrajudicial confessions two questions arise were they made voluntarily and (ii) are they true As the section enacts, a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority and (3) sufficient, in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person or (b) it does not proceed from a person in authority; or (c) it is not sufficient in the opinion of the Court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24. The law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. One important question, in regard to which the Court has to be satisfied with is, whether when the accused made confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the Court is satisfied that in its opinion the impression caused by the inducement, threat or promise if any has been fully removed. A free and voluntary confession is deserving of highest credit, because it is presumed to flow from the highest sense of guilt. (See R v. Warwick shall : (1783) 1 Leach 263. It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt so contrary to the feelings and principles of human nature, it the facts confessed were not true. Deliberate and-voluntary confessions of guilt if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of the harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of threat, and often the inducement involves both promise and threat -a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (Sea Woodroffa Evidence 9th Edition, page 284), A promise is at ways attached to the confession, alternative while a threat is always attached to the silence-alternative thus in the one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession -as against the present unsatisfactory situation while in the other case ha is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the theatened harm. must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy the inducement threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the Court is to determine the absence or presence of inducement promise etc or its sufficency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words appear to him in the last part of the section refer to the mentality of the accused.
7. An extrajudicial confession, if voluntary and true, and made in a fit state of mind, can be relied upon by the Court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence dependes upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depands on the reliability of the witness who gives the evidence. It is not open to any Court to start with a presumption that extrajudicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded-their on if the evidence about the confession comes from the mouth of 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 a 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. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extrajudicial confession can be accepted and can be the basis of a conviction if it passed the test of credibility.
8. The evidence of Pw9 is very significant. According to him, on 16-7-1990 seeing a gathering near the house of the accused Manguli alias Babula he went there. Several people were questioning the said accused. In response, although he first of all denied his complicity being further persuaded confessed to have committed the crime along with accused Kamal Lochan and Dhoria alias Kaitash Pradhan. Being insisted upon, accused Manguli gave recovery of certain articles in cross-examination PW 9 accepted that when at the first instance Manguli denied his complicity, he was told that in case he did not speak the truth, he was to do made over to police whereupon he confessed his guilt. As rightly observed by the learned trial Magistrate the evidence of PWs 9, 13, 15 and 17, who deposed about the alleged confession is so discrepant and at variance with each other that no reliance can be placed on it. The statement of PW 9 about manner of confession does not leave a shadow of doubt that the confession if any made was not voluntary. The learned trial Magistrate has not rightly acted upon it. Additionally even if one of the accused made a statement that per se cannot be used against the other accused persons. In the ultimate analysis it is not a fit case which calls for interference by this Court.
The revision application is accordingly dismissed.