JUDGMENT Oak, J. - These three connected appeals relate to the murder of one Raja Ram. Singhara Singh has been convicted by the learned Additional Sessions Judge, Bijnor u/s 302, I.P.C. Bir Singh and Tega Singh have been convicted u/s 302, IPC read with Ss. 120B, 109 and 114, IPC. Singhara Singh and Bir Singh have been sentenced to death; while Tega Singh has been sentenced to imprisonment for life. 2. According to the prosecution, Raja Ram deceased was a businessman of Afzalgarh in district Bijnor. He had a shop in the main market of Afzalgarh. For a long time Abdul Rashid accused had enmity with Raja Ram. Zamir and Khalil accused are related to Abdul Rashid accused. These men decided to get Raja Ram murdered. The three man secured the services of four Sikhs for murdering Raja Ram. The four Sikhs are Kundan Singh, Singhara Singh, Bir Singh and Tega Singh. The seven men entered into a criminal conspiracy to murder Raja Ram. 3. One evening Raja Ram was sitting at his shop. The four Sikh accused visited the shop at about 7-30 p.m. Three accused stood near the shop; while the fourth accused stood at a short distance from the shop. The three Sikh accused made some purchases from Raja Ram deceased. One of the Sikhs asked Raja Ram to supply certain other things. Raja Ram replied that he would attend to him after the price for things already purchased had been paid up by his companion. On receiving this reply, the accused who had purchased certain articles retorted that he would settle his account forth with. So saying, that accused pulled out his pistol, and fired towards Raja Ram. The pistol, however, misfired. Another accused received a signal from his companions. That accused also pulled out his pistol, and fired at Raja Ram. That accused was Singhara Singh. Raja Ram was hit in the neck, collapsed, and died instantaneously. Some neighbours heard the report of the fire, and saw the Sikh accused running away from Raja Ram's shop. These people chased the four Sikh accused for some distance. But another fire was made by the miscreants. So the chase had to be abandoned. One Chandra Prakash handed over a written report at police station Afzalgarh the same evening. 4. Abdul Rashid, Zamir & Khalil accused absconded. These people chased the four Sikh accused for some distance. But another fire was made by the miscreants. So the chase had to be abandoned. One Chandra Prakash handed over a written report at police station Afzalgarh the same evening. 4. Abdul Rashid, Zamir & Khalil accused absconded. They could not by arrested till several months had elapsed after Raja Ram's murder. The four Sikh accused were arrested upon suspicion. They were put up for identification in jail. Three accused, Singhara Singh, Bir Singh and Tega Singh made confessions before a Magistrate admitting having participated in Raja Ram's murder. The seven accused were committed to sessions for criminal conspiracy and murder. 5. All the seven accused pleaded not guilty. Abdul Rashid accused denied that he had enmity with Raja Ram deceased. The Sikh accused said that they were shown to witnesses before the identification parades. Singhara Singh, Bir Singh and Tega Singh denied having made confessions before a Magistrate. 6. The learned Additional Sessions Judge held that no offence had been established against four accused, Abdul Rashid, Zamir, Khalil and Kundan Singh. These four accused were, therefore, acquitted. It was held that the charge of murder was proved against three accused, Singhara Singh, Bir Singh and Tega Singh. It was found that Singhara Singh was personally responsible for Raja Ram's murder. These three accused were, therefore, convicted and sentenced as mentioned above. 7. Cr.A. No. 2017 of l960 has been filed by Singhara Singh and Bir Singh. Cr.A. No. 2109 of I960 has been filed by Tega Singh. G.A. No. 247 of 1961 is directed against the acquittal of Kundan Singh, Abdul Rashid, Zamir and Khalil. The learned Sessions judge has referred the case to this Court for confirmation of death sentences awarded to Singhara Singh and Bir Singh. 8. Raja Ram was murdered in Afzalgarh town at about 7-30 p.m. on 20-3-1959. Chandra Prakash lodged the first information report (Ex. Ka. 10) the same evening at 8 p.m. The report was made promptly. It was noted in the report that, names of the culprits were not known. But they could be identified. The report made mention about enmity (between Raja Ram and Rashid accused). The prosecution has produced a number of residents of Afzalgarh, who were present near the scene of murder. It was noted in the report that, names of the culprits were not known. But they could be identified. The report made mention about enmity (between Raja Ram and Rashid accused). The prosecution has produced a number of residents of Afzalgarh, who were present near the scene of murder. There is ample evidence to prove that Raja Ram was murdered at his shop at about 7-30 p.m. on 20-3-1959. 9. Post-mortem examination was held next day. The deceased had several gunshot wounds. Death was due to shock and haemorrhage resulting from gunshot wounds on the lower jaw. * * * 10. The main contention of Mr. P.C. Chaturvedi appearing for the accused persons was that, the alleged confessions are not admissible in evidence. He pointed out that, Sri Dixit vas only a second class Magistrate. He purported to record the confession's u/s 164, CrPC. Section 164, Code of Criminal Procedure runs thus: (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 record any statement or confession made to him in the course of an investigation under this Chapter.... 11. Sri Dixit could record the confession under S. 164, Code of Criminal Procedure only if he was specially empowered by the State Government in this behalf. In his deposition, Sri Dixit maintained that, he was so empowered. But he could not refer to the relevant Government notification. The District Govt. Counsel conceded before the trial court that, the prosecution was unable to prove that, Sri Dixit was specially empowered by the State Government u/s 164, CrPC. The learned Deputy Government Advocate also could not refer to any Government notification, by which Sri Dixit was specially empowered. We, therefore, take it that, Sri Dixit was not specially empowered by the State Government for recording confessions u/s 164, Code of Criminal Procedure during October, 1959. 12. Mr. P.C. Chaturvedi strongly relied upon AIR 1936 253 (Privy Council) . In that case the prosecution sought to prove that the accused had made a confession before a first class Magistrate, Mr. Vashisht. Mr. Vashisht did not record any confession, as laid down in Section 164, CrPC. However, Mr. Vashisht appealed in the witness box in order to prove the alleged confession. In that case the prosecution sought to prove that the accused had made a confession before a first class Magistrate, Mr. Vashisht. Mr. Vashisht did not record any confession, as laid down in Section 164, CrPC. However, Mr. Vashisht appealed in the witness box in order to prove the alleged confession. He went on to state that, some rough notes of the confession were prepared on the spot. The rough notes were subsequently destroyed. He, however, prepared a memorandum containing the substance but not all the matter to which the accused had referred. "The sole question for consideration before their Lordships was whether the evidence tendered, by Mr. Vashisht on the question of the confession was admissible. After referring to the language of Sections 164 and 364, CrPC, their Lordships held 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. Other methods of performance are necessarily forbidden. 13. Mr. Vashisht's evidence was, therefore, excluded. 14. In that case it was urged for the Crown that, although the confession could not be admitted u/s 164, Code of Criminal Procedure Mr. Vashisht's oral statement was admissible, because it had nothing to do with Section 164, CrPC. This contention was repelled by their Lordships. They observed on pages 257 and 258: On the matter of construction Section 164 and 364 must be looked at and construed together, and 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. Upon the construction adopted by the Crown the only effect of Section 164 is to allow evidence to be put in a form in which it can prove itself under Sections 74 and 80, Evidence Act. Their Lordships are satisfied that the scope and extent of the section is far other than this, and that it is a section conferring powers, on Magistrates and delimiting them. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. It is also to be observed that, if the construction contended for by the Crown be correct, all the precautions and safeguards laid down by Sections 164 and 364 would be of such trifling value as to be almost idle. Any Magistrate of any rank could depose to a confession made by an accused so long as it was not induced by a threat or promise, without affirmatively satisfying himself that it was made voluntarily and with out showing or reading to the accused any version of what he was supposed to have said or asking for the confession to be vouched by any signature. The range of magisterial confessions would be so enlarged by this process that the provisions of Section 164 would almost inevitably be widely disregarded in the same manner as they were disregarded in the present case . In their Lordships view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers u/s 162 of the Code; and to be at the same time freed, notwithstanding their position as Magistrates, from any obligation to make records u/s 164. In the result they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever.........the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by Magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case. 15. The learned Deputy Government Advocate relied on Section 533, CrPC. 15. The learned Deputy Government Advocate relied on Section 533, CrPC. Section 533, Code of Criminal Procedure states: (1) If any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded u/s 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 merits. 16. In Emperor Vs. Kommoju Brahman, AIR 1940 Patna 163 it was pointed out at page 169 that, u/s 533, Code of Criminal Procedure a defect of form can be removed, but not a defect of substance. In the present case we have seen that, Sri Dixit was not competent to record any confession u/s 164, CrPC. In other words, he had no jurisdiction to act under that section. That is a matter of substance, and not merely one of form. Section 533 Code of Criminal Procedure contemplates a case, where an accused person duly made a statement or a confession before a Magistrate. The word 'duly' means in accordance with law or as contemplated by law. If Sri Dixit was not competent to record a confession u/s 164 Code of Criminal Procedure it cannot be said that an accused duly made a confession, before Sri Dixit. Such a basic defect cannot be cured by Section 533, CrPC. 17. A reference was also made to Section 537, CrPC. That section lays down that, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed on appeal or revision on account of certain irregularities. That section is applicable only in those cases, where the impugned order has been passed by a Court of competent jurisdiction. If a Court acts without jurisdiction, Section 537, Code of Criminal Procedure has no application. Section 530, Code of Criminal Procedure lays down that, if any Magistrate, not being empowered by law in this behalf, does certain things, his proceedings shall be void. It is true that confessions have not been expressly mentioned u/s 530, CrPC. If a Court acts without jurisdiction, Section 537, Code of Criminal Procedure has no application. Section 530, Code of Criminal Procedure lays down that, if any Magistrate, not being empowered by law in this behalf, does certain things, his proceedings shall be void. It is true that confessions have not been expressly mentioned u/s 530, CrPC. But if the principle of Section 530 is applied, it would mean that the proceedings before Sri Dixit were void. 18. The Learned Counsel for both the parties relied upon Section 26, Indian Evidence Act. Section 26, Indian Evidence Act states: No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 19. The impugned confessions were made before a Magistrate. It was, therefore, urged for the State that the confessions are admissible in evidence u/s 26, Indian Evidence Act. 20. In Noukar Mouledino v. Emp AIR 1937 Sind 212 t it was pointed out that, the words of S; 26, Evidence Act, are very wide, and there is nothing in that section that limits its operations to Magistrates specially empowered u/s 164, CrPC. Section 26), Indian Evidence Act, lays down a rule that no confession made by any person while he is in the custody of a police officer shall be proved against such person. To this rule there is an exception. That exception is provided by the presence of Magistrate. For purposes of Section 26, Indian Evidence Act, any Magistrate is good enough. But that is not the position as regards Section 164, CrPC. The latter part of Section 26, Indian Evidence Act, merely explains how the bar created by the section may be got over. That section does not lay down how a Magistrate should record a confession. That point has been dealt with in S 164, CrPC. 21. The learned Deputy Government Advocate realised the difficulty of treating the confessions as confessions recorded u/s 164, Code of Criminal Procedure by a Magistrate. It was, therefore, suggested that the confessions may be treated as confessions recorded by an ordinary person. The place, where the accused of the present case where kept, has been described as a judicial lock up. But for all practical purposes, these men were in the custody of police officers. It was, therefore, suggested that the confessions may be treated as confessions recorded by an ordinary person. The place, where the accused of the present case where kept, has been described as a judicial lock up. But for all practical purposes, these men were in the custody of police officers. So the situation attracts the bar created by Section 26, Indian Evidence Act. In order to get over that bar, the prosecution had to prove the presence of a Magistrate. In order to get over the prohibition contained in Section 26, Indian Evidence Act the prosecution had to urge that Sri Dixit was a Magistrate. On the other hand, in order to get over the prohibition contained in Section 164, Code of Criminal Procedure the prosecution suggested that Sri Dixit may be treated as in ordinary person. Such a position is untenable. This was the view taken by the Kerala High Court in Noor Muhammed Abdul Samad Vs. The State, AIR 1959 Ker 46 . 22. The learned Sessions Judge recognized that, Sri Dixit was not competent to record confessions u/s 164, CrPC. But the learned Judge expressed the view that, the confessions in question may be treated as extra judicial confessions. Now, one cannot overlook the fact that Sri Dixit was a second class Magistrate. He claimed before the Court that he recorded the confessions by virtue of his special powers u/s 164 CrPC. The confessions of Singhara Singh and Tega Singh accused make a pointed reference to Section 164, CrPC. The confession of Bir Singh accused has also been recorded in the same form. It is, therefore, obvious that Sri Dixit purported to record the confessions under Ss. 164| Code of Criminal Procedure in his capacity of a second class Magistrate. Under the circumstances, it is difficult to see how these confessions can be accepted as extra-judicial confessions. We have already pointed out that, if Sri Dixit is treated as an ordinary person, the prosecution would have to face the difficulty created by Section 26, Indian Evidence Act. We are, therefore, unable to treat these confessions as extra judicial confessions. 23. The learned Sessions Judge has relied on Asharfi and Another Vs. The State, AIR 1961 All 153 . In that case a Division Bench of this Court observed on p. 159 thus: Any person can conduct a test identification, but Magistrates are preferred. We are, therefore, unable to treat these confessions as extra judicial confessions. 23. The learned Sessions Judge has relied on Asharfi and Another Vs. The State, AIR 1961 All 153 . In that case a Division Bench of this Court observed on p. 159 thus: Any person can conduct a test identification, but Magistrates are preferred. His identification memo is a record of the statement which the identifier expressly or impliedly made before him. If the person holding the identification is a Magistrate of the first class, or one of the second class specially empowered. Section 164, Code of Criminal Procedure applies, and his identification memo is admissible in evidence u/s 80 of the Evidence Act without proof. But if other Magistrates or private persons hold it, they must be called in evidence to prove their memo. 24. Then again: Where the proceedings have been held before a Magistrate of a second class not specially empowered, or a Magistrate of a third class, the statement is one under the unwritten general law. There is a difference between the legal status of the two kinds of the statements. Nevertheless the statement, irrespective of the powers of the Magistrate before whom it is made, remains a formal statement of the witness, and can be used, not only for the purpose of contradicting him u/s 145 or 155 of the Evidence Act, but for corroborating him u/s 157 of that Act.... 25. In Asharfi and Another Vs. The State, AIR 1961 All 153 the learned Judges were dealing with the question of identification parades held by Magistrates. There was no occasion to discuss the question of confessions recorded before Magistrates. 26. The learned Deputy Government Advocate contended that, if the contention advanced on behalf of the accused persons were to be accepted, the Magistrate would be placed in a position inferior to that of ordinary persons. Such situations are not unknown to law. According to Section 25, Indian Evidence Act, no confession made to a police officer shall be proved as against any accused. According to that provision, an ordinary person would be in a better position than a Superintendent of Police. Public policy requires that inexperienced Magistrates should not undertake the task of recording confessions. When a confession is recorded by a Magistrate, there is a feeling that the confession must have been made voluntarily. According to that provision, an ordinary person would be in a better position than a Superintendent of Police. Public policy requires that inexperienced Magistrates should not undertake the task of recording confessions. When a confession is recorded by a Magistrate, there is a feeling that the confession must have been made voluntarily. But that sense of security is not fully justified, when a confession is recorded by a junior Magistrate. That may be the reason why the Legislature decided that, only experienced Magistrates should be entrusted with the responsible work of recording confessions, and inexperienced Magistrates should not be permitted to undertake that task. 27. In Ram Singh Vs. State, AIR 1959 All 518 , it was held by a Division Bench of this Court that, the provisions of Sections 164 and 364, Code of Criminal Procedure are to be strictly followed by Magistrates. Unless they follow the provisions of these two sections, the statements recorded by them cannot be admitted in evidence. 28. The learned Deputy Government Advocate distinguished the present case from AIR 1936 253 (Privy Council) referred to above. He pointed out that, in AIR 1936 253 (Privy Council) their Lordships of the Privy Council had to deal with a first class Magistrate, who had not recorded a confession as required by Section 164, CrPC. On the other hand, in the present case we have to deal with a second class Magistrate, who purported to act u/s 164, CrPC. It is true that, in AIR 1936 253 (Privy Council) , the question of a confession recorded by a second class Magistrate did not directly come up for consideration. It may, however, be pointed out that, in considering the true scope of Sections 164 and 364, Code of Criminal Procedure their Lordships considered the general problem of confessions recorded by Magistrates. It may be that their Lordships' observations as regards powers of second class and third class Magistrates were obiter. None the less their Lordships' observations are entitled to great weight. 29. The learned Deputy Government Advocate contended that, although Privy Council decisions were binding on Indian High Courts up to 1950, those decisions are no longer binding on these Courts after the commencement of the Constitution. This contention is not correct. None the less their Lordships' observations are entitled to great weight. 29. The learned Deputy Government Advocate contended that, although Privy Council decisions were binding on Indian High Courts up to 1950, those decisions are no longer binding on these Courts after the commencement of the Constitution. This contention is not correct. In AIR 1955 293 (Nagpur) , it was pointed out that, Article 225 of the Constitution lays down that, the law administered in any existing High Court remains the same as immediately before the commencement of the Constitution. So the law laid down by the Privy Council which does not conflict with any decisions of the Supreme Court would be binding on Indian High Courts. In Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, AIR 1954 SC 379 , their Lordships of the Supreme Court observed on page 387 that, a decision by the Privy Council was an authority binding on Indian Courts. They could not refuse to follow such a decision. In Dass Bank Ltd. Vs. Smt. Kali Kumari Debi and Another, AIR 1958 Cal 530 , it was held on page 532 that, an obiter dictum of the Privy Council containing as it does an enunciation of principle of exposition of a rule of law, the statement would be binding on the Courts in India unless and until the law is held to be different by the Supreme Court. Similarly in State of Bombay Vs. Chhaganlal Gangaram Lavar, AIR 1955 Bom 1 it was held by a Full Bench of that Court that, so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are binding on Indian High Courts. We are not aware of any Supreme Court decision, in which the Privy Council decision in AIR 1936 253 (Privy Council) was dissented from. On the contrary, in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, AIR 1954 SC 322 , their Lordships of the Supreme Court quoted AIR 1936 253 (Privy Council) with approval, on page 333. We, therefore, take it that, the Privy Council decision in AIR 1936 253 (Privy Council) is still good law. 30. On the contrary, in Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, AIR 1954 SC 322 , their Lordships of the Supreme Court quoted AIR 1936 253 (Privy Council) with approval, on page 333. We, therefore, take it that, the Privy Council decision in AIR 1936 253 (Privy Council) is still good law. 30. It was emphasized in AIR 1936 253 (Privy Council) that, Section 164, Code of Criminal Procedure is a provision conferring powers on Magistrates and delimiting them Section 164, Code of Criminal Procedure empowers Magistrates of certain classes to record statements and confessions. By implication, Magistrates falling within the residuary classes have been prohibited from recording confessions. If a Magistrate records a confession against the implied prohibition contained in Section 164, CrPC, such a confession would be inadmissible in evidence. We, therefore, hold that, if a second class Magistrate, who is not specially empowered u/s 164, CrPC, purports to record a confession u/s 164, CrPC, the confession is inadmissible in evidence. Consequently. Exs. Ka 34, Ka-35 and Ka-36 arc inadmissible in evidence. These confessions cannot be used either against the persons who made them, or against the co-accused named in the confessions. These confessions cannot be used for any purpose whatsoever. 31. The prosecution has led evidence on the following points: (a) previous enmity between Abdul Rashid accused and Raja Ram deceased; (b) Abdul Rashid's attempt some two months before Raja Ram's murder to get him murdered through Mahendra Singh; (c) conspiracy among the seven accused on the day of the recurrence about two hours before the murder; (d) identification of the Sikh accused in jail and before the Court; (e) confessions of Singhara Singh, Bir Singh and Tega Singh; and (f) the fact that Rashid and Zamir accused absconded. Now, the prosecution evidence on the question of conspiracy is unreliable. The evidence of identification does not inspire confidence. The confessions are inadmissible in evidence. The only points, which the prosecution has been able to establish, are these Relations between Abdul Rashid accused and Raja Ram deceased were strained for some time before Raja Ram's murder. Rashid and Zamir accused were absconding in October, 1959. This evidence is not sufficient for proving any offence against any accused. There was previous enmity between Abdul Rashid accused and Raja Ram deceased. Abdul Rashid's name was prominently mentioned in the report (Ex-Ka 10). Rashid and Zamir accused were absconding in October, 1959. This evidence is not sufficient for proving any offence against any accused. There was previous enmity between Abdul Rashid accused and Raja Ram deceased. Abdul Rashid's name was prominently mentioned in the report (Ex-Ka 10). Zamir is said to be related to Abdul Rashid accused. That may be the reason why Abdul Rashid and Zamir accused got panic stricken, and absconded. The evidence on the record is not sufficient for establishing any offence against any one among the seven accused. 32. In the result, Cr.A. Nos. 2017 and 2109 of 1960 are allowed. Singhara Singh, Bir Singh and Tega Singh are acquitted of the various offences, for which they were convicted by the learned Sessions Judge. These three persons shall be realised immediately, unless they are required any other case. Government Appeal No. 247 of 1961 is dismissed. The reference is rejected.