Mukerji, J.
1. The confession of the prisoner Jibaiikrishna Sircar was recorded by the Honorary Presidency Magistrate, Rai Bahadur Dr. Haridhan Dutt on the 15th and the 16th December 1923. It was not retracted at any time during the commitment enquiry. In his statement before the Committing Magistrate at the close of the enquiry on the 10th April 1924, the prisoner said 'I have said whatever I had to say to Dr. Haridhan Dutt in my statement before him.' On the 19th May 1924 a petition, purporting to have been filed by the prisoner and bearing that date, was put up before me, retracting the confession.
2. The confession of the prisoner Haripada Mookerjee was recorded by the Honorary Presidency Magistrate Mr. S.N. Roy on the 13th, 14th and 15th December 1923. On the 17th December 1923, the prisoner along with his co-accused was put up before a Stipendiary Magistrate with a charge sheet submitted on that day and the case was adjourned to the 27th December 1923. On the last mentioned day a petition purporting to have been written by Haripada on the 23rd December 1923 on paper evidently supplied to him by the jail authorities was presented before the Magistrate, retracting the confession made and recorded as aforesaid. The 23rd of December was a Saturday and I am told that Saturday is the only day of the week on which prisoners in Jail are allowed to write letters.
3. In the petitions of retraction most of the grounds alleged for the confessions amount to charges of ill-treatment, torture, threat and coercion of the vilest and most brutal character, directed against Inspector Hemchandra Lahiri, the chief investigation officer in the case. Having heard the evidence in the case and taking into consideration all the circumstances disclosed therein, I have not the slightest doubt in my mind that these charges are unfounded. There is not a tittle of evidence in support of these charges; and no circumstances have been disclosed which might afford the remotest suggestion or inference of such conduct as having been likely on the part of this Police Officer; On the other hand, the circumstances which are proved in this case are utterly inconsistent with these charges. I most unhesitatingly state that now-a-days no Police Officer whatever his nationality or creed may be and however much he may happen to value his appointment or its emoluments would think of stooping so low as to resort to means of the description alleged for getting a confession from an accused person. I cannot but think that the story of coercion which these retractions tell is a pure invention; and it was really gratifying to find that not much use was made of it while this Police Officer was in the witness-box under cross-examination and that the learned Counsel appearing for the prisoners in the course of their arguments on the question of admissibility of the confessions made only the faintest allusion to the misconduct which the prisoners so graphically and emphatically portrayed in their retractions, These retractions are somewhat amusing too, in view of the manner in which acts and conduct on the part of the Inspector, which ultimately appeared to be the dictates of pure humanity or gentlemanliness, have been sought to be misconstrued and attributed to ulterior motives which must have been far away from his mind. It is unfortunate that the accused thought of resorting to these allegations, but I shall say no more of them as I disbelieve them in toto.
4. In his petition of retraction referred to above Jibankrishna-Sircar also makes a statement to the effect that he made the confession as tutored by the Inspector and as his mind was unhinged because the Inspector had threatened to send his wife to jail and ill treat her. Haripada Mookerjee in his petition of retraction further suggested that he had been induced to make the confession on the promise that he would be made an approver. With regard to these matters, as rightly pointed out by the learned Standing Counsel, there is no proof on the record in the sense in which the word ' proof ' is defined in the Indian Evidence Act; and judging from the way in which the cross-examination of the Inspector was conducted it would seem that no very special reliance was placed upon them. In considering the question as to whether these confessions are admissible or not, I do not think, however, that I am confined to the grounds for the confessions as contained in these retractions; nor do I think that it would be just to pin the confessing prisoners down to the allegations which they have made in the fond hope of exciting suspicion or sympathy in the mind of the tribunal. It is true, as the learned Standing Counsel has argued, that the grounds alleged by the prisoners themselves in their retractions and sought to be made out by them in cross-examination should be primarily examined. The question involving a state of mind of the prisoners themselves as being due to circumstances within their special knowledge must be investigated from the point of view put forward by them; but that does not mean that the duty of the Court in deciding on the question of admissibility of the confessions ends there. In fact, I am called upon first to decide whether the confessions are admissible; the question as to the value of the retractions will only come in afterwards. I may mention that one of my duties sitting as a Judge in a trial held with the aid of a jury is to prevent the production of inadmissible evidence whether it is or is not objected to by the parties. That is expressly laid down in Section 297, Cr. P.C.; and if that is so the fact that the accused puts forward some particular ground for holding that the evidence is inadmissible would not relieve] me of my duty to look into all the circumstances in order to judge whether it is admissible or not. Not to speak of such important pieces of evidence as confessions, even with regard to evidence of much less important character which might suggest criminality or guilty knowledge on the part of the accused, the necessity on the part of the Judge to bear in mind the provisions of Section 297, Cr. P.C. has been emphasized in the case of Abbas Pada v. Queen-Empress (1898) 25 Cal. 736.
5. I am not concerned with the question of the truth or falsity of the confessions; that is a matter entirely for the jury. I am only concerned with the question as to whether they are admissible in evidence. If they are voluntary, they are admissible; of course if prima facie they are false, inconsistent, improbable or absurd that might suggest that they are not voluntary; but I can see none of these characteristics in these two confessions. The contents of these confessions therefore do not help me at all in determining the question one way or the other. On the other hand, instances are not unknown-in fact they are not uncommon in a certain class of cases'-of voluntary confessions being absolutely false. If the present confessions were of that character, that is to say, they were voluntarily made I would be bound to admit them in evidence and put them before the jury, coupled with such directions as I should think necessary as to their falsity, for appraisement of their worth. Again, even if I am perfectly satisfied as to the truth of a confession but if I doubt its voluntary character, I am bound to exclude it under the law. It is true that such rejection amounts to excluding truth from a Court of Justice, but it cannot be helped. As Williams, J., observed in R. v. Mansfield [1884] 14 Cox. C.C. 639: 'It is not because the law is afraid of having the truth elicited that these confessions are excluded, but because the law is joalous of not having the truth.' The reason is well put by Lord Campbell, C.J., in R. v. Scott Dears and B.C.C. 47 that 'because under such circumstances the party may have been influenced to say what is not true and the supposed confession cannot be safely acted upon.' In Emperor v. Bhagi Vedu : (1906)8BOMLR697 Beaman, J,, very correctly summarised the position thus: 'If upon weighing all the circumstances, the prisoner's denial and the probabilities, it appears to the Judge that the confession has been improperly induced; no matter how true it may be, he is bound to exclude it.'
6. The question as to the admissibility of these confessions may very well be discussed from two distinct points of view: the first, relating to their voluntary character; and the second, as to the records that have been made of them.
7. The second point may be dealt with first. It has been contended on behalf of the defence that the confessions were not recorded in accordance with the provisions of Section 164 read with Section 364 of the Code of Criminal Procedure, and the requirements of those sections which are of a mandatory character not having been complied with the records of the so-called confessions are inadmissible in evidence. In support of this contention reference has been made to the amendments introduced by Act XVIII of 1923, and reliance has been placed upon the decisions in the cases of Jainarain Lal v. Queen Empress [1890] 17 Cal. 862 and Queen-Empress v. Sagal Samba Sajao [1893] 21 Cal. 642. It has been argued also that Section 533, Cr. P.C., was never meant to cure defects of such serious character as appear in the present case and which may lead to far reaching consequences. It is unnecessary to discuss the aforesaid decisions or the decisions in the cases of Queen-Empress v. Raza Mia [1895] 22 Cal. 817 and Queen-Empress v. Visaram Babaji [1896] 21 Bom. 465 in so far as they purport to take a somewhat different view. A Full Bench of this Court in the case of Queen-Empress v. Nilmadhub Mitter [1888] 15 Cal. 595 (F.B.) expressed grave doubts whether a non-compliance with the provisions of Section 164 read with Section 364 of Cr. P. Code could be cured under the provisions of Section 533, Cr. P. Code. It is not profitable to enter upon a discussion as I am of opinion that Section 164, Cr. P.C., inspite of the alteration that it has undergone by the amendment introduced by Act XVIII of 1923, does not apply to the confessions recorded In the present case. Sub-section 2 of Section 1 of the Code enacts that nothing contained in the Code, in the absence of any specific provision to the contrary, shall apply to the Police in the town of Calcutta. As observed in the Full Bench decision in the case of Queen-Empress v. Nilniadhub Mitter [1888] 15 Cal. 595 (F.B.) the only section in Chap. XIV of Act X of 1882 applicable to the Police in Calcutta was Section 155. It is true that by Act V of 1898 a new sub-section, namely, Sub-section (3) was introduced into Section 156. That in my opinion has not made any substantial alteration in the state of the law. The Police investigation that took place in the present case was neither an investigation in a non-cognizable case held under the orders of a Presidency Magistrate as contemplated by Section 155, Cr. P. Code nor an investigation into a cognizable case held under the orders of a Presidency Magistrate empowered under Section 190, Cr. P.C., as contemplated by Section 156, Cr. P.C. The Police investigation that took place in the present case was not therefore an investigation held under Chap. XIV. Section 164, Cr.P.C., expressly refers to a record made by a Presidency Magistrate of a confession made to him in the course of an investigation under that Chapter or at any time afterwards before the commencement of the trial. The section therefore is not applicable to the present confessions. It has been argued by Mr. Bose with his usual pertinacity and ability that there can be no conceivable reason for the legislature to have omitted to prescribe with reference to confessions made in the course of investigations held by the Calcutta Police, those elementary and essential safe-guards which have been so jealously provided for in other cases. I may say, I deplore the condition of things as they stand at present; but I am unable to hold that the section, in the way in which it is worded, can be taken to apply to the present confessions. I am clearly of opinion that even if the legislature meant to include the recording of all confessions to be governed by Section 1(54, Cr. P.C., they have failed to express such intention in the terms they have used. It is interesting to note however that the forms used for recording these confessions are the printed forms, being High Court Criminal Form No. (m) 184 approved in letter No. 282, dated 21st August 1917, and headed as follows:- 'Form of recording Confessions or Statements, Section 164 of the Code of Criminal Procedure'. These forms were also used by the Presidency Magistrate when the Code of 1898 was in force though Section 164 of that Code was unquestionably not applicable to them, and they have also been used in recording the present two confessions. Why the legislators have permitted this anomaly to continue is not for me to enquire and I refrain from saying anything further with regard to that matter. That these forms have been supplied for the use of Presidency Magistrates for recording these confessions clearly suggests that it was intended that they must not over-look the spirit of the salutary provisions contained in that section. In view of my conclusions as to the applicability of Section 164 to the present case, the arguments based on the supposed defects in the recording of the confessions must fail.
8. I now turn to the question of admissibility of the confessions from the point of view of their character as such.
9. For this purpose it is first of all necessary to refer to the provisions contained in Section 24 of the Indian Evidence Act. Section 24 runs thus:
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, having reference to the charge against the accused person, proceeding from a person in authority, and 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.
10. There are words and expressions in this section to which one must pointedly direct his attention in order to construe the section. There occurs the word ''appears'; the 'inducement, threat or promise having reference to the charge against the accused person' must proceed from a person in authority, but nothing is said as to the person to whom it is to be directed; it is enough if such inducement, threat or promise would in the opinion of the Court be sufficient to give the accused person grounds which would appear to the accused person (and not to the Court) reasonable for supposing that by making the confessions he would gain an advantage or avoid an evil of the nature contemplated in the section. It will be seen therefore that the mentality of the accused has to be judged rather than that of the person in authority. That being so, not merely actual words, but words accompanied by acts or conduct as well on the part of the person in authority, which may be construed by the accused person, situated as he then is, as amounting to an inducement, threat or promise, will have to be taken into account. A perfectly innocent expression, coupled with acts or conduct on the part of the person in authority, together with the surrounding circumstances may amount to inducement, threat or promise. In scrutinising a case from the point of view of Section 24 of the Evidence Act the Court will have to perform a threefold function. It will have, as a Court, to determine the sufficiency of the inducement, threat or promise as affording certain grounds; it will have again to clothe itself with the mentality of the accused to see whether the grounds would appear to the accused reasonable for a supposition that is mentioned in the section; lastly, it will have to judge as a Court if the confession appears to have been caused in consequence of the inducement, threat or promise. The use of these vague expressions has been deliberately made with the object of securing absolute fairness in the matter of admitting confessions in judicial proceedings. It is indeed very difficult to lay down a hard and fast rule as to the sufficiency of the circumstances which would make the confession irrelevant under the provisions of this section. Reported decisions afford us little help in this direction. A study of the cases, bearing upon the question, which are too numerous to mention, would show that anything ranging between the barest suspicion on the one hand and absolute certainty on the other has been held to be sufficient to satisfy the requirements of the section. In this connection reference may be made to Reg. v. Balvant Pendharkar (1804) 11 Bom. H.C. 137, Empress v. Mukhun Kumar (1877) 1 C.L.R. 275 Queen-Empress v. Dada Ana (1839) 15 Bom. 452, Queen-Empress v. Gharya (1894) 19 Bom. 728, Ghatu Pramanik v. King-Emperor (1901) 28 Cal. 613, Emperor v. Bhagi : (1906)8BOMLR697 and Ashutosh Dutt v. King-Emperor A.I.R. 1921 Cal. 458. The true view seems to have been taken in the case of Queen Empress v. Basvanta (1900) 25 Bom. 168, where it was said that the section does not require positive proof (as defined in Section 3 of the Act) of improper inducement to justify the rejection of the confession, the word ''appears' indicating a lesser degree of probability than would be necessary if 'proof' had been required. There is some diversity of judicial opinion on the question regarding the onus of proof as to the voluntary character of a confession, viz., whether the prosecution will have to prove affirmatively that it was voluntarily made or they should do so only in the event of a doubt arising in the mind of the trial Judge [see for instance the observations of Parke B in R. v. Wamngham (1851) 2 Den. C.C. 447 (n) and of Cave, J., in R. v. Thompson (1893) 2 Q.B. 12]. It is unnecessary to go into this matter, with regard to which there was for some time a diversity of judicial opinion in this country as well for having regard to the wording of Section 24 of the Indian Evidence Act and also to the presumption attaching to certain recorded confessions, and arising under Section 80 of the Act, the true and generally recognised view is that a confession duly recorded by a Magistrate with the proper certificate appended to it will be admitted in evidence subject to the provisions and restrictions contained in Section 24; that under the latter section a well-grounded conjecture, reasonably based upon circumstances disclosed in the evidence, is sufficient to exclude the confession, because it would be idle to expect the accused to prove the inducement, threat or promise, for in most cases such proof cannot be available.
11. So far as these confessions are concerned, if I am right in the view that I have taken, viz., that Section 164, Cr. P.C., has no application to them then there is no other law that I know of under which the Honorary Presidency Magistrates could record these confessions. Section 80 of the Evidence Act, speaking as it does of confessions ' taken in accordance with law,' does not apply to these confessions. They come before the Court without any presumptive force of their own and their admissibility must be judged as that of any other evidence adduced in the case. The Honorary Presidency Magistrates, I take it, would undoubtedly not have recorded the confessions unless they considered them as being voluntraily made; but my duty is to investigate into the circumstances in order to ascertain whether the confessions were voluntary.
12. In order to ensure the voluntariness of a confession the questioning of the accused before he makes the confession forms a factor, the importance of which can seldom be overestimated. It has been enjoined in decisions of which the number is legion that the Magistrate must question the accused with a view of discovering whether the prisoner confesses voluntarily, and this questioning must be in pursuance of a real endeavour to find out the object of it, the requirement not being satisfied by putting a few formal questions [Thein Maung v. King Emperor (1905) 3 L.B.R. 173 see also Jogjiban Ghose v. King-Emperor (1909) 13 C.W.N. 86, Emperor v. Kadar Ghulam Mahmad : (1906)8BOMLR950 , Emperor v. Jiubodhan (1917) 1. P.L.W. 388 and Emperor v. Ragho Laya (1917) 18 Cr. L.J. 721]. Let us for a moment advert to the present confessions and see how they came to be recorded. With regard to the confession of the prisoner Jibankrishna Sircar, his confession was recorded on the 15th and 16th December 1923. So far as the latter date is concerned the Magistrate is not sure that he put any questions to the accused to ascertain whether he was making the confession of his free will. His memorandum with regard to that date runs as follows:-['Jibankrishna Sircar was brought to me by Ram Kritartha Misser. Head Constable G. D. at 3 15 P.M. to-day when he continued to make his statements as recorded below. This was done at my office No. 81, Harrison Road, where none except Jiban and myself were present, the Police being asked to leave.'] The accused had been sent away the day before in the custody of the Police and was produced by the Police again on the 16th. It is clear that the Magistrate should have warned the accused and questioned him. This he did not do and therefore there is nothing to show, nor does it appear that there was anything before the Magistrate to satisfy him, that the confession which the accused was making on that date was voluntary. It is clear that the statements made on the 16th cannot be received in evidence as having been voluntarily made. As for the part of the confession recorded on the 15th December 1923, the questions and answers recorded by the Magistrate run in these terms:
Q.- Can you tell me the time during which and the places where you have been under the control of the Police?
A.-I was arrested at 162, Cornwallis Street at 4-30 P.M. on 1st December 1923, in the City of Calcutta. I was taken to my house No. 124, Musjidharee Street at 6 p.m. on 1st December 1923. I was sent to you from Lall Bazar look-up at 11 P.M. on 15 th December 1923 and after remaining in the Bankshall Court house for sometime I came before you at about 2-30 P.M., when the Police left me.
Q.-I have to explain to you that you are not bound to make a confession and if you do so it may be used as evidence against you. Are you still prepared to make a confession.
A.-Yes, I intend to do so.
Q,-Yes do so voluntarily?
A.-Yes.
Q.-You realise that I am Presidency Magistrate and am recording your confession voluntarily made?
A.-Yes.
Q.-If you are prepared to tell me anything in connection with the case for which you have been arrested please do so in the form of a narrative.
(Then follows the narrative.)
13. With regard to the first of these questions the answer given by the accused did not inform the Magistrate where the accused had been between the 1st December 1923, when he was arrested, till he was produced at the Bankshall Street Police Court at 11-30 A.M. of the 15th. Could the Magistrate from this answer judge in what sort of custody he was during that time or whether he was in custody at all? If the Magistrate was to form an opinion as to the character of the confession which the accused was about to make-that is to say, whether it was voluntary or not-he could, I venture to think, form none from this answer. The next question assumes that the accused was ready to make a confession when he was produced, a fact which the accused had not admitted till then; and after warning the accused the question aims at ascertaining whether he is still prepared to make a confession. That is quite a different thing from trying to ascertain whether the confession was voluntary. The 3rd question, if it is question at all, proceeds on the same assumption; and it is more an assertion than a question. The fourth is objectionable as it shows that the Magistrate has already made up his mind to record the confession and assumes a knowledge on the part of the accused which assumption is wholly unwarrantable. The third and the fourth questions, moreover, scarcely called for an answer from the accused. The last question is hardly a question, being rather a direction given to the accused as to how he should proceed to make his statement, I am not at all satisfied that these questions and answers afforded the Magistrate any sufficient data for arriving at his conclusions. It may be that there were other questions and answers, but even then I do not know what they were, and I am not prepared therefore to act upon the opinion of the Magistrate that the confession was voluntaryan opinion for which it may be that he had ample justification.
14. As to the confession of the accused Haripada Mookerjee, the same was recorded by the Magistrate Mr. S.N. Roy on the 13th, 14th and 15th of December 1923. On the 13th December the questions and answers recorded ran as follows:
Q.-When were you first arrested by the Police?
A.-I was arrested at 4 A.M. on Tuesday, the 4th December 1923, in the town of Calcutta, 11, Goalapara Lane.
15. I was taken to Burtola Thana at 4 A.M., on Saturday, the 1st December 1923. I was sent to you from Lalbazar Police Office at 2 P.M., on the 13th December 1923.
Q....Are you willing to make a statement voluntarily?
A.-Yes.
Q.-You must know that any statement you might make might be used as evidence against you. Bearing this in mind, are you willing to make a statement?
A.-Yes, I am willing to make a statement.
Q.-Are you implicated in any crime?
A.-Yes, I am (then follows the narrative).
16. The first question only enquires how many days before the accused had been arrested and the answer gives him no idea where he had been during the interval, not even if he had been out on bail in the meantime or not. The second question wants to know from the accused the answers which the Magistrate will have to give on a consideration of the facts and circumstances; and the 3rd question involves a warning, omitting the most important information that he was a Magistrate, a fact which the accused must know in order to relieve him of the influence, if any, under which he may have decided to confess. The last question is useless for this purpose.
17. The memorandum relating to the 14th December 1923 runs as follows:
Before I began, I asked all Police Officers to leave my room and the room was clear of all such persons. The accused was placed in charge of a personal servant of mine. I again warned the accused that he was not bound to make a statement and any statement which he was going to make must be made voluntarily. The accused said that he was making all statements voluntarily. 14-12-23.
18. It is sufficient to say with regard to this memorandum that the Magistrate did not think it necessary to enquire where the accused had been since he had left the day before and it does not appear the accused was told that he was before a Magistrate. The direction by the Magistrate to make the statement voluntarily is quite a different thing from questioning him to find out whether he is making the statement voluntarily: Farid v. Emperor A.I.R. 1922 Lah. 237.
19. The memorandum relating to the 15th December 1923 rues as follows:
Before I began to record the statement of the accused, I cleared the room of all Police Officers and men. The accused was placed in charge of a personal servant of mine.
' I again warned the accused that he was not bound to make a statement: and any statement which he was going to make must be made voluntarily. The accused said that he was making all statements voluntarily.
15-12-23.
20. Similar observations apply to this memorandum as have been made with regard to the memorandum of the 14th, and further it is open to this objection that it directs the accused to make the statement voluntarily. The Magistrate, in my opinion wholly misunderstood his function in advising the accused as he seems to have done. An opinion formed by the Magistrate upon materials such as are disclosed by the record that he made-and 1 do not know what other materials he may or may not have elicited in the course of his conversations with the accused-is not such as I would be justified in acting upon as well founded. I may say that I do not agree with the contention put forward on behalf of the defence based on the dictum of Roe, J., of the Patna High Court in the cases of Emperor v. Ragho Laya (1917) 18 Cr. L.J. 721 and Emperor v. Jiubodhan (1917) 1. P.L.W. 388 that there must always be an inquiry as to the motive of the accuser] in making the confession-a dictum which has not been approved of by the same Court in the cases of Emperor v. Dewan Kahar A.I.R l923 Pat. 13 and Thibu Bhogta v. Emperor A.I.R. 1923 Pat. 356 and the Full Bench decision in Ghinua Oraon v. Emperor (1917) 3 P.L.J. 291, but it is clear to my mind that the questions put to the accused must be directed to eliciting facts which will enable the Magistrate to judge of the character of the confession that the accused is about to make, and not merely repeat some set formulae which the accused can scarcely appreciate, and merely ask him whether his confession is voluntary, a question which he will answer in the affirmative the more readily the greater the influence, if any, that he may be labouring under.
21. Punctiliousness and care in the recording of confessions being of the utmost importance and it being essential that the Magistrate should satisfy himself in every reasonable way that the confession is made voluntarily, certain safe-guards have been provided in the shape of rules framed in 1917 by the Calcutta High Court for the guidance of the Magistrates and they were amended in 1919. These rules, I am informed, were issued to all Subordinate Courts including the Court of the Chief Presidency Magistrate, Calcutta, in the shape of Agenda and Corrigenda to the Court's General Rules and Circular Orders, Criminal. These rules run thus:
1. Where at any place or station there are present more Magistrates than one, confessions should in general be recorded by the Magistrate specially selected for this purpose by the District Magistrate, or, failing such selection, by the Magistrate senior in rank or class.
2. Confession should be ordinarily recorded in open Court during Court hours, provided that if the Magistrate is satisfied, for reasons to be recorded in writing on the form of confession, that the recording of a confession in open Court should be liable to defeat ends of justice, the confession may be recorded elsewhere.
3. The immediate examination of an accused person directly after the Police bring him into Court should be deprecated, and when feasible a few hours for reflection in circumstances in which he cannot be influenced by the Police should be given him before his statement is recorded.
4. During the examination of the accused and the record of his statement, unless in the opinion of the Magistrate the safe custody of the prisoner cannot otherwise be secured, Police Officers should not be present. In particular the Police Officers concerned in the investigation of the case or in the arrest or production of the accused should be excluded.
5. When the accused is produced, the Magistrate should ascertain when and where the alleged offence was committed and by questioning the accused should further ascertain when and where the accused was first placed under Police observation, control or arrest.
6. The Magistrate should next question the accused in order to ascertain whether he is about to speak voluntarily. It should be made clear to the prisoner that he is free to speak or to refrain from speaking as he pleases, and he should be warned that if he chooses to speak, anything he says will be used in evidence against him.
7. When, upon questioning the prisoner and from observation of his demeanour, the Magistrate has reason to believe that the prisoner is speaking or is about to speak voluntarily, the Magistrate should then proceed to record his statement. While carefully avoiding anything in the nature of cross-examination the Magistrate should endeavour to record his statement in the fullest detail, and to do this he may properly put such questions, not being leading questions, as may be necessary to enable the prisoner to state all that he desires to state and to enable the Magistrate clearly to understand his meaning.
22. It will be seen that Clauses (2) and (3) of the said rules were ignored in this base by the two learned Magistrates. One of the learned Magistrates admitted not having any knowledge of the rules and the other was not asked about them, but the way in which he too proceeded can only be attributed to his ignorance of them. A contravention of the Circular Orders deplorable though it is, would not, however, render the record bad if otherwise I am satisfied that the confessions were voluntary. In the case of The Public Prosecutor v. Sarabu Cheimayya (1910) 33 Mad. 413, it was held that the non-compliance with an order of Government as to the formalities to be observed in recording confessions does not render the confession inadmissible in evidence and the Court has to determine whether the confession was voluntary. But at the same time I must say that when the proper precautions and safeguards have not been taken in making the record, I am not prepared to place implicit reliance upon the recollection or opinion of the Magistrates, for to do so would be to surrender my own judgment to theirs. The position would have been quite different if the confessions did not stand before me divested of the presumption under Section 80 of the Evidence Act and had been duly recorded under some provisions of the law, or at any rate if I was able to hold that all proper precautions had been taken in recording them.
23. Leaving then out of account the opinions which the learned Honorary Magistrates formed as to the voluntary character of these confessions and taking the confessions stripped of a presumption which would attach to them if they had been recorded under any provision of law, let us examine the situation in the light of the circumstances which appear upon the evidence. The circumstances may for the sake of convenience, be noted down categorically:
1. By the 8th of December 1923, both the prisoners had finished making their statements before the Police, and in fact if I appreciate the evidence correctly, both were ready from before that date to have their confessions recorded. Jiban's statement had been finished by the 6th December and his confession was recorded on the 15th and 16th December. Haripada's statement had been finished on the 8th December and his confession was recorded on the 13th, 14th and 15th December. This delay in placing the prisoners before Magistrates for having their confessions recorded has been accounted for by Inspector Lahiri by stating that a day or two was taken up in consulting legal advisers and the rest of the period was wasted in an endeavour to Set hold of Magistrates who would do the work. He has graphically described the difficulties he experienced and how he tried stipendiary Magistrates first and failing to get one who would take up the work, he went from door to door to avail of the services of Honorary Magistrates. The explanation to my mind is perfectly true and the state of affairs perhaps lamentable. But I do not understand why legal advise has to be taken in the matter at all; for I am not aware that there is any option in the matter or justification to withhold from a prisoner an opportunity to make his statement before a Magistrate when he has expressed his willingness to do so. It has been observed by this Court on more occasions than one that the Police have nothing to do with the question whether a statement was satisfactory or inconsistent, and if a prisoner wishes to make a voluntary statement the Police must produce him before a Magistrate and let him do it whatever might be its character. Delay in producing prisoners who are willing to have their confessions recorded has been always held to affect the value of the confessions [Emperor v. Noni Gopal Dutt (1911) 88 Cal. 55] and that is so because of the principle that such confessions cannot safely be regarded as voluntary. As I have said the delay is deplorable; and the fact remains that for eight days at least in the case of one prisoner, and for four days at least in the case of the other the recording of the confessions was delayed.
2. The prisoners were in the custody of the Police, Jiban from the 1st December 1923 and Haripada from the 4th December 1923, until they were produced before the Magistrates for recording their confessions. According to the evidence of Inspector Lahiri the accused persons used to be taken to the Deputy Commissioner of Police for being present at the 'Reports' and for that purpose were in or near his office for about three hours every day, thereafter such of them as were required to accompany the investigating Police Officers for the purpose of pointing out places or other similar purposes were sent out in their company and on their return all together were sent to the Lal Bazar lock-up where they remained during the night. A question has been raised as to the legality of this custody. On a consideration of relevant provisions of the Calcutta, Police Act (Bengal Act V of 1866), 1 am disposed to take the view that there is no power of detention for an unlimited period, such as is claimed on behalf of the prosecution in the Deputy Commissioner by virtue of his being a Justice of the Peace. It is said that it is understood generally that there is such a power, there being, in fact, no limitation prescribed anywhere, and Section 61 of the Criminal Procedure Code not being applicable to the Calcutta Police. That no doubt is so, but I am aware that in the matter of Mohamed Ramjan v. King-Emperor decided on 18th September 1922 Walmsley, J., held a detention under similar circumstances as improper, presumably on the ground that no such unlimited power exists. So far as the present case, however, is concerned, I do not think there was any such detention as would justify me in drawing an inference against the prosecution on that account. It is true that illegal or improper detention by the Police has always been held as vitiating a confession and has in some cases been held to lead to a presumption that there was ill-treatment. In this connection reference may be made to the cases of Queen-Empress v. Sagal Samba [1893] 21 Cal. 642, Queen-Empress v. Narayan [1901] 25 Bom. 513, Mobarakoli v. King-Emperor [1919] 23 C.W.N. 886, Amir Khan v. King-Emperor [1902] 7 C.W.N. 457, Jogjiban Ghose v. King-Emperor (1909) 13 C.W.N. 86, Queen-Empress v. Gobardhan [1887] 9 All. 528, Queen Empress v. Mohabir [1895] 18 All. 78, and Queen-Empress v. Appabin Bapu [1899] 1 Bom. L.R. 35. I am however unable to assent to the proposition so broadly suggested by Candy, J., in the case of Queen-Empress v. Narayan [1901] 25 Bom. 513 that pressure was to be presumed from Police custody where he observes, 'Is it reasonable to suppose that during all that time (meaning the period of custody) no pressure was put upon the accused by the Police to induce them to confess?' I am unable to bold also that the custody and detention in the present case was of such a character as would lead to such a presumption. Were it necessary for my purposes to rest my decision on the question of legality of this detention, I would have felt inclined to reserve the question as a point of law for decision by a larger Court.
3. The confessions were recorded without proper safe-guards in the shape of compliance with the statutory rules framed by this Court. They were recorded partly in open Court and partly in the private residences of the Magistrates without any sufficient grounds for doing so. Moreover there was no time given to the prisoners to reflect.
4. The confessions were recorded piecemeal, the prisoners being during the intervals in Police custody as they were before. This, in my opinion, is to be seriously deprecated. Once a prisoner has begun to confess, be places himself in a position from which it is difficult for him to extricate himself, and thereafter the slightest hint from his prosecutor is sufficient to induce him to say anything and everything that may suit the prosecution.
5. The questions put to the prisoners and the warnings given to them in my opinion were not at all sufficient as I have indicated above.
6. Since their arrest and prior to the confessions, the prisoners were practically all along in Police custody, and that for a sufficiently long period. During this long period they were very often in the company of Police Officers and it is idle to expect that the Police Officers would be able to tell us exactly all the conversations that must have taken place between them and the prisoners during the same.
7. It is admitted that rebukes were administered to one of the prisoners at the time of the search. These rebukes, it is true, were not objectionable for the particular purpose for which they were administered; but their effect might linger on the mind of the prisoner and lead him to believe that unless he confessed the consequences might be serious.
8. Twice at least the prisoners were taken to the barracks attached to the quarters of the investigating officer, and kindly treated to dinner. There may be nothing really objectionable in this; but it undoubtedly creates a feeling of obligation in the mind of the accused.
9. Some law books, including a copy of the Criminal Procedure Code, which admittedly contains provisions relating to the granting of pardon to approvers, were given to the prisoners to study, though I am prepared to believe it was given with a perfectly genuine desire that they should know all the consequences of making confessions. Results indirectly attained in similar circumstances without precautions being taken to remove the impression created in the mind of the prisoner have sometimes been treated as results of inducement [R. v. Boswell 6 Car. and M. 584, R. v. Blackburn (1853) 6 Cox. C.C. 333 and R. v. Dingley (1845) 1 Car. and K.637].
10. The two co-accused Nilmadhab and Lalit who were subsequently made approvers and who, judging from what took place afterwards, it is difficult to believe did not know from before that they would be made such, were not segregated from these prisoners and had been together in the lock-up for several nights.
11. Radharani Dasi, the wife of Jiban-krishna Sircar, was arrested on the night of the 1st December; and although the Deputy Commissioner of Police had, and if I may say so, very rightly in the exercise of his discretion, made up his mind not to proceed against her within a day or two after her arrest, she was kept on bail and her surety had to appear every day before the Police; and in point of fact Radharani Dasi has not yet been formally discharged.
12. It was suggested by the defence that the co-accused Mahadeb was put up before the Honorary Presidency Magistrate Mr. G.C. Mandal on the 15th December, that he was then asked to be made an approver, that the learned Magistrate having told him that he had nothing to do with that matter, Mahadeb refused to make a confession and was sent to jaiil-hajat at his own request. It was suggested that two days after when he appeared again he expressed unwillingness to confess. This, as I have said, is only a suggestion; but it is not possible to verify it as the learned Magistrate has, I am informed, no recollection of the matter at all, and the records relating thereto are not available and could not be traced.
13. There was an epidemic of a desire to confess such as would suggest a race for a pardon which not uncommonly occurs in this country when a number of persons are suspected of an offence and some of whom have already confessed and are being taken out for verification.
24. Each one of these circumstances may be susceptible of an explanation and some indeed are capable of satisfactory explanations; but the cumulative effect of all these circumstances throws a cloud of distrust over the confessions sufficient to bring them within the purview of Section 24 of Evidence Act.
25. The learned Standing Counsel has urged that so far as Jiban's confession is concerned, he never thought of his confessions during the long period from the 15th December to the 10th April during which he was in jail custody, that far from repudiating his confession or resiling from it, he referred to and stuck to it even on the 10th April on which date he was examined before the Committing Magistrate, that he only retracted the confession in this Court only two days before the trial commenced. I have taken these facts seriously into my consideration; but I am not satisfied, having regard to the position which his wife still occupies that any very great weight should be attached to his failure to retract the confession earlier than he has done. With reference to the confession of Haripada, the learned Standing Counsel has urged that he did not retract his confession on the 18th December when he was placed before the Magistrate, but filed on the 26th, which was the next date that he-appeared before him, a petition of retraction purporting to have been dated the 23rd. It is significant, however, that on the 18th the two approvers were also placed before the Magistrate along with him, and judging from the wording of the petition that was filed on that day on behalf of the prosecution for segregating them from the other accused on the ground that they had made full disclosures in their confessions, Haripada cannot be blamed if he waited to see whether he would be lucky enough to be made an approver. It may be surmised that when he found that the choice had fallen on Nilmadhab and Lalit he hastened to retract his confession.
26. My findings therefore are that the grounds contained in the retractions put forward by the two prisoners are utterly unfounded and untrue, but that there are circumstances in the case which make me hesitate to hold that they are not such as should be excluded, as coming within Section 24 of the Evidence Act; and acting on the: principle that in a case of doubt on the question of admissibility of evidence when it is of such vital importance to the prisoners as their own confessions, one should not bold them as admissible unless one is affirmatively satisfied as to their relevancy-a principle upon which Parke, B., proceeded in the case of Queen-Empress v. Warring ham (1851) 2 Den. C.C. 447 (n)-and as it is the duty of the prosecution to prove that the confessions were voluntarily made as was laid down in the case of Asutosh Dutt v. King-Emperor A.I.R. 1921 Cal. 458 and they have 'failed to do so, I rule the confessions out as irrelevant.