Har Singh v. State of U. P. — 1969 DIGILAW 118 (ALL)

JUDGMENT D.S. Mathur, J. - I agree with brother Lokur, J. that the appeal of Har Singh be dismissed and the sentence of death awarded to him confirmed, but shall like to make additional comments on the admissibility of the confession made by Hat Singh before the Sub-Divisional Magistrate, Sri Janardan Singh (P. W. 6). 2. Section 164 (1) of the Code of Criminal Procedure runs as below :- "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." The sub-section does not apply to all the statements or confessions recorded b. Magistrates, it merely applies to the recording of the statement or confession made (1) in the course of an investigation under Chapter XIV of the Code of Criminal Procedure or under any other law for the time being in force, (2) at any stage afterwards before the commencement of the inquiry or trial. The rule laid down in Section 164 must, therefore, apply to the above two categories of statements or confessions and not to a statement or confession made at any other state. It does not apply to a statement or confession made before the investigation of the crime bathe police, i.e. not in the course of an investigation, nor does it apply to the re-cording of a statement or confession after the commencement of the inquiry or trial. 3. On the application of the rule 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 menthods of performance are necessarily forbidden, it has been laid down that where a statement or confession made in the course of an investigation has not been recorded in accordance with the provisions of Section 164 of the Code of Criminal Procedure, it is inadmissible in evidence and, further; no oral evidence on the alleged statement or confession, can be permitted to be brought on the record. See Nazir Ahmad v. King-Emperor, A.I.R. 1946 Privy Council 253 (2) and State of Uttar Praedsh v. Singhara Singh, AIR SC 358. This rule cannot, however, be applied to cases where the Legislature has not laid down how an act shall be done. In such cases written confession of the accused or oral evidence on the confession made by him, whether before the Magistrate or before others, can be admitted in evidence and used against the accused provided the courts of law are satisfied as to the genuineness of the confession and the confession having been made without an inducement or threat. In other words, a voluntary true confession made by the accused can be brought on the record if made at stages not covered by Section 164 of the Code of Criminal Procedure even though not recorded in accordance with the provisions thereof. 4. We are at present considering a case investigated by the police under the provisions of the Code of Criminal Procedure and hence comments need not be made with reference to the provisions of Chapter XIV of the Code of Criminal Procedure only. Naturally, what has to be considered is the meaning and scope of the expression "in the course of an investigation under this Chapter." A thing can be said to have been done in the course of an investigation only if it is done after the commencement of the investigation. If investigation has not started, an act done by any authority or person, cannot be said to have been done in the course of an investigation. The Meaning of the above expression shall have to be deduced from the provisions of Chapter XIV and not from other extraneous considerations. It is not necessary that a confession admissible in evidence would be acted upon and used against the maker thereof. If the Court is not satisfied as to the circumstances in which the confession was made or if it appears that the confession is not a true one or had not been made voluntarily, the courts of law shall disregard it. The admissibility of a confession and whether any weight can be attached to it, are two distinct matters and it will be wrong to interpret the law on the supposition that or keeping in mind that, it may sometimes be abused by some officer or authority. The admissibility of a confession and whether any weight can be attached to it, are two distinct matters and it will be wrong to interpret the law on the supposition that or keeping in mind that, it may sometimes be abused by some officer or authority. Where it appears that any authority ,officer or person has abused the process of law, the Court shall dis-regard the confession and not use it against the accused though the confession, if admissible in evidence, shall be brought on the record. 5. The expression "in the course 01 an investigation under this Chapter" has also been used in Section 162 (1) of the Code of Criminal Procedure. Ordinarily, an expression must be given the same meaning throughout the enactment. A departure can be made only in those cases where the application of the above rule shall cause any injustice or hardship not intended or would negative the intention of the Legislature. 6. For the purposes of Chapter XIV of the Code of Criminal Procedure, offences have been divided in two categories: cognizable and non-cognizable. Non-cognizable cases cannot be investigated by the police without the order of a Presidency Magistrate or a Magistrate of the 1st Class or 2nd Class having power to try such cases or commit the same for trial. On receipt of the order of the Magistrate. the police officer can, in respect of that case, exercise the same powers in respect of the investigation as the officer inchargo of a Police station can exercise in a cognizable case. (See Section 155 Cr. P. C.) When a non-cognizable case cannot automatically be investigated by the police, that is, under Chapter XIV of the Code there would be a time-, between the recording of the report of a non-cognizable offence and the investigation thereof. The investigation cannot, in such circumstances, be deemed to have commenced on the making of the report or on the commission of a non-cognizable offence, and if any act is- done before the Magistrate has passed an order directing the police to investigate a non-cognizable case, it cannot be said to have been done in the course of an investigation under Chapter XIV. 7. The police have the power to investigate a cognizable case but it is not necessary that each and every case shall be investigated by the police. 7. The police have the power to investigate a cognizable case but it is not necessary that each and every case shall be investigated by the police. It is also act necessary that the investigation of a congniable offence must commence soon after the making of the report. Clause (b) of the proviso to Section 157 (1) of the Code of Criminal Procedure, gives power to the officer incharge of.a police station not to enter on an investigation if there exists sufficient grounds for not investigating the case. Once the officer incharge takes such a decision, he shall not investigate the case unless ordered by his superior or by a Magistrate. Section 159 Cr. P. C. clearly lays down that on receiving a report under Section 157 the Magistrate may direct an investigation or, if he thinks fit at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into or otherwise to dispose of the cat,e in a manner provided in the Code. Where the Magistrate directs the police to investigate the case, the investigation can be deemed to have commenced from the date such a direction is given, but where the same Magistrate, or a Magistrate subordinate to him, holds a preliminary inquiry or otherwise dispose; of the case, there shall be no investigation and all the acts done shall not be in the course of an investigation under Chapter XIV. 8. The wording of Section 157 (1) also suggests that the investigation cannot be deemed to have commenced from the time the report is registered at the police station under Section 154 Cr. P. C. What the sub-section provides is that if from information received or otherwise, the officer incharge of the police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the competent Magistrate and shall proceed in person, or shall depute one of his subordinate officers to proceed, to the spot, to investigate the facts and circumstances of the case. The investigation' thus commences after the police officer reaches the spot, or has actually commenced the investigation. The investigation' thus commences after the police officer reaches the spot, or has actually commenced the investigation. In case the police officer has not taken any steps in the investigation of the crime be-fore reaching the spot, the investigation under Chapter XIV shall commence from the time he reaches the spot. 9. Clause (a) of the proviso to Section 157 (1) lays down the circumstances in which the officer in charge of a police station need not proceed in person or depute a subordinate officer to make an investigation on the spot. In such cases the investigation may be done at the police station itself or the investigation may be delayed. 10. Keeping in mind the various provisions of Chapter XIV of the Code of Criminal Procedure, it must be held that the investigation does not necessarily commence on the receipt of information and the registration of the crime at the police station. There can be a period during which no investigation is made. Hence the expression "in the course of an investigation under this Chapter" has reference to the period subsequent to the commencement of the investigation, and does not include the period between the receipt of information or the registration of the crime and the commencement of the investigation. It cannot also include the period prior to the receipt of information, that is, from the commission of the crime to the receipt of information by the police. 11. The Supreme Court had the occasion to consider the meaning of "in the course of an investigation" used in Section 162 of the Code of Criminal Procedure in the case of Baleshwar Rai v. The State of Bihar, 1963 (2) SCR 433 and the material observations are as below: "The two things, that is, "the period of investigation" and "course of investigation" are not aynonymous. Section 162 is aimed at statements recorded by a police officer while investigating into an offence ...... They speak only of statements made to a police officer during the course of investigation. This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigation officer and not one which is de hors the enquiry." 12. They speak only of statements made to a police officer during the course of investigation. This implies that the statement sought to be excluded from evidence must be ascribable to the enquiry conducted by the investigation officer and not one which is de hors the enquiry." 12. Even if it be possible to give a somewhat different meaning to the expression "in the course of an investigation under Chapter XIV" when used in Section 164 of the Code of Criminal Procedure, it cannot include the period prior to the commencement of the investigation. Further, the statements or confessions contemplated by Section 164 of the Code of Criminal Procedure, are those which are recorded in the course of an investigation under Chapter XIV, that is, during the investigation into an offence by a police officer. Such statements or confessions must, therefore, be such as are connected with the investigation by a police officer under Chapter XIV and not one which is de hors such investigation. In the circumstances, Section 164 of the Code of Criminal Procedure cannot govern: a statement or confession recorded by a Magistrate prior to the commencement of the police investigation. 13. Where the accused surrenders before the Magistrate and himself makes a confession of his guilt, prior to the receipt of information by the officer in charge of the police station, that is, the registration of the crime, it would undoubtedly be a confession.made before the commencement of the investigation and compliance of Section 164 ( f the Code of Criminal Procedure is not obligatory. Consequently, if the Magistrate records the confession of the accused without complying with the provisions of Section 164 of the Code of Criminal Procedure, or the confession is recorded by a Magistrate not authorised thereunder, the confession miswriting shall be admissible in evidence. In the instant case, Har Singh had voluntarily appeared before the Sub Divisional Magistrate, who was ignorant of the fact that Har Singh's wife had been murdered. It was after the recording of the confession that the Sub Divisional Magistrate to-k the accused into custody and directed the Patwari to register the crime and to take other steps necessary for the investigation of the crime. The confession so recorded is in no way connected with the investigation subsequently conducted by the Patwari. It was after the recording of the confession that the Sub Divisional Magistrate to-k the accused into custody and directed the Patwari to register the crime and to take other steps necessary for the investigation of the crime. The confession so recorded is in no way connected with the investigation subsequently conducted by the Patwari. Such a confession cannot be said to have been recorded in the course of an investigation under Chapter XIV and hence is relevant and admissible in evidence even though compliance of Section 164 Cr. P. C. had not been made. 14. The Andhra and Madras High Courts have taken a similar view. In Re.: Yendra Narasimha Murthy, A.I.R. 1966 AP 131 the Madras view was adopted. After making a reference to a few decisions of the Madras High Court, it was held that where a person after killing the deceased went to a Magistrate of his own accord and made statement saying that he killed the deceased, and the statement was taken down by the Magistrate and read over to the person who signed to same, the statement was admissible against him when he was made an accused and charged with the murder. 15. In Re.: Nainamuthu Kannappan, A.I.R. 1940 Madras 138, an objection was raised to the admission in evidence of the statement made by the accused to a Joint Magistrate, a statement which was not recorded after observing the formalities prescribed by that section. It was held that objection would be just if the Magistrate had been investigating the case but he was net investigating the case or any of the facts connected with the case. The information given by the accused was held to be the first information of the crime. If this observation is interpreted to mean that if the Magistrate was making a preliminary inquiry under Section 159 Cr. P. C., the compliance of the provisions of Section 164 Cr. P. C. is obligatory, otherwise neither the confession or the statement of the accused nor the oral evidence thereof, shall be admissible in evidence, I would with respect disagree. A comparison of the various provisions of the Code of Criminal Procedure shall make it clear that investigation is by the police while an enquiry is by a Magistrate and hence if the Magistrate holds a preliminary enquiry under Section 159 Cr. A comparison of the various provisions of the Code of Criminal Procedure shall make it clear that investigation is by the police while an enquiry is by a Magistrate and hence if the Magistrate holds a preliminary enquiry under Section 159 Cr. P. C., it is not, in the eye of law, an investigation under Chapter XIV of the Code of Criminal Procedure. It must, however, be observed that neither in that case nor in the present one was the confession recorded while the Magistrate was holding an enquiry. 16. A. I. R. 1940 Madras 138 (supra) was followed in a subsequent decision In Re.: Ramachandran, A.I.R. 1960 Madras 191 where it was also observed that the weight to be given to such an extra-judicial confession depended entirely upon the circumstances under which it was made. Therein the confession made by an accused not known to the Magistrate, and also unaware of the crime, spontaneously, was regarded as good evidence against the accused sufficient for his conviction. 17. In Re.: Ramaswami Reddiar, A.I.R. 1953 Madras 138 it was observed as below:- "This however does not mean that a Magistrate of the second class not empowered under Section 164 Cr. P. C. and a, Magistrate of the third class can under no circumstances record or gave oral evidence of a confession made to them." 18. Similarly, In Re.: Natesan, A.I.R. 1960 Madras 443 statement made by an accused person to a Magistrate before the commencement of the investigation, or falling outside the scope of the investigation was held admissible in evidence notwithstanding noncompliance with Section 164 Cr. P. C. 19. A single Judge of the Oudh Chief Court expressed a similar opinion in Chhutkannoo Singh v. Rex, AIR (36) 1949 Oudh 84. It was held that oral evidence by a Magistrate of an admission of the offence by the accused, not in the course of investigation but when the Magistrate had gone to trap the accused while committing the offence, was admissible in evidence. 20. Observations to the contrary have been made in the Division Bench case of Noor Uddin v. Slate, A.I.R. 1965 Alld. 40. The following observation shall suggest that a statement or confession made after the commission of the crime can be recorded only by a Magistrate authorised under Section 164 Cr. 20. Observations to the contrary have been made in the Division Bench case of Noor Uddin v. Slate, A.I.R. 1965 Alld. 40. The following observation shall suggest that a statement or confession made after the commission of the crime can be recorded only by a Magistrate authorised under Section 164 Cr. P. C., after due compliance thereof, and if there is non-compliance of this provision, neither the written confession nor the oral evidence as to the confession, shall be admissible. "To our mind, the section is wide enough to authorise recording of confessions by the Magistrate whenever after the commission of the crime the accused wanted to make a confession which would ultimately be used in the trial of that offence ......... This precaution was obviously taken as a safe-guard to prevent forcible extortion of confession from the accused by the prosecuting agency. An accused person for fear of police may not like to go into their hands and make an independent confession at the time of surrendering himself so that he may be sent directly to jail. If such an independent confession is made before a Magistrate, who is empowered to record confessions and the Magistrate is satisfied that the crime has been committed and the accused ought to be sent to jail, he is perfectly authorised to record that confession after following the safe-guards mentioned in the section.- At another place it was observed that "the phrase" in the course of an investigation "in this section appears only to refer to the period of time when the investigation had started and was still going on." As already indicated above, investigation tinder Chapter XIV does not necessarily follow the registration of a crime at the police station. In any case, the investigation starts long after the commission of the crime. In this view of the matter the two sets of the observations quoted above shall appear to be contrary to each other. The first set of the observations suggests that compliance of Section 164 is necessary whenever a statement or confession of the accused is recorded after the commission of the crime. The second observation, on the other hand, suggests that the compliance of Section 164 becomes obligatory after the commencement of the investigation. 21. The first set of the observations suggests that compliance of Section 164 is necessary whenever a statement or confession of the accused is recorded after the commission of the crime. The second observation, on the other hand, suggests that the compliance of Section 164 becomes obligatory after the commencement of the investigation. 21. Had the facts of the above case not been different it would have been necessary for us to refer the question to a larger Bench. Therein the accused had surrendered before the Magistrate at 4.50 P. M. while the First Information Report was dictated at the police station the same day at 3.45 P. M. and the Investigating Officer started for the scene of occurrence and reached there at 4.25 P. M. It can be assumed that on reaching the spot the police officer commenced the investigation. Hence the confession of the accused was recorded about 20 minutes after the start of the police investigation. If the expressions "in the course of an investigation" and "during the period of investigation" are held to be anonymous. it would mean that in this case the confession was recorded during the period of investigation. In the present case, however, the First Information Report was registered long after the making of the confession before the Sub Divisional Magistrate. Hence the confession was not made during the period of the investigation and was not in the course of the investigation. 22. The facts of Noor Uddin v. State (supra) being different, the observations can be regarded to be obiter dicts, not binding in a case the facts of which are materially different. In the circumstances, the observations quoted above, are not binding on us while deciding the present case. Hence, we can form our own independent opinion. 23. To sum up, the expression "in the course of an investigation under Chapter XIV," cannot include the period prior to the commencement of the investigation. As the present confession was made prior to the registration of the crime, it was admissible in evidence. The confession was made by the accused voluntarily, on his own, and not at the instance of others and was made before a Magistrate who was unacquainted with the accused and was unaware of the commission of the crime. As the present confession was made prior to the registration of the crime, it was admissible in evidence. The confession was made by the accused voluntarily, on his own, and not at the instance of others and was made before a Magistrate who was unacquainted with the accused and was unaware of the commission of the crime. The confession could thus be treated as a good evidence to prove the guilt of the accused and, if necessary, conviction could be based upon such a confession even if not supported by. other evidence or circumstances. Lokur, J.-This is a jail appeal by Har Singh, who has been convicted by the Sessions Judge of Kumaun under Section 302 of the Indian Penal Code for the murder of his wife, Durga Devi, on the morning of 13th September, 1967, and sentenced to death. Sri P. N. Lal, Advocate, appeared for Har Singh as amicus curiae. There is also a reference made by the Sessions Judge for confirmation of the sentence of death. 2. Har Singh originally belonged to Nepal and while in service in India as a police constable, he married the deceased Durga Devi about twelve years ago. Durga Devi was already married to one Kalu Singh but was abandoned by him. She was living alone in village Haira until she married Har Singh and Har Singh settled down in Haira after retirement from service vice a couple of years prior to the occurrence. The prosecution case is that Har Singh developed illicit relations with the widow of the elder brother of Durga Devi and this led to friction between Har Singh and Durga Devi who were quarrelling over the matter off and on. It is said that at about 10 a. m. on 13th September, 1967, Dungar Singh (P. W. 2) was working in his field about 40 yards away from the house of Har Singh and he heard some noise in Har Singh's house. He guessed that Har Singh and Durga Devi were quarrelling as usual, but he saw a litile while later Har Singh coming out of the house of returning to the house with an axe; he also heard shrieks coming from the house, where-upon he became suspicious. He guessed that Har Singh and Durga Devi were quarrelling as usual, but he saw a litile while later Har Singh coming out of the house of returning to the house with an axe; he also heard shrieks coming from the house, where-upon he became suspicious. Har Singh then came out and announced that he had killed his wife and was going to Champawat to surrender himself 'and that the dead-body should be looked after and the Patwari be informed. Trilok Singh (P. W. 5) the brother of Durga Devi, had also come out of his house and heard the announcement made by Har Singh. Har Singh then went towards Champawat. Trilok Singh asked Dungar Singh to inform the Sabahpati, while he himself stood guard at the house.Dungar Singh went to the Sabhapati, Lachhman Singh (P. W. 3) , and narrated to him what had occurred. Lachhman Singh got a report written out by Trilok Singh (P. W. 4) the Secretary of the Panchayat, who was present then and asked Dungar Singh to take the report to the Patwari at his headquarters at Dubbar. Dungar Singh did not, however, find the Patwari at Dubbar and was told that he had gone to Simba, another village within his jurisdiction. Dungar Singh then went to Simba but could find the Patwari there also. He stayed for the night at Simba, came over to Dubbar next day and submitted the report to the Patwari at 12 noon. The Patwari, after registering the case, left for the scene of occurrence which he reached at G p. m. He held an inquest on the dead body of Durga Devi in the house of Har Singh and sent it for post mortem examination. Blood-stained and plain earth was recovered from the place where the dead body was lying and a site-plan was prepared. 3. Meanwhile, Har Singh approached Janardan Singh (P. W. 6) , Sub-Divisional Magistrate, at Champawat where he was camping and, in the presence of Triloki Nath (P. W. 7) , Tahsildar of Champawat, stated to the Sub-Divisional Magistrate that he had murdered his wife and that the dead body was lying in his house. The Sub-Divisional Magistrate made a note of what Har Singh had stated and ordered that Har Singh be taken into custody and the Patwari be asked to take up the investigation of the case immediately. The Sub-Divisional Magistrate made a note of what Har Singh had stated and ordered that Har Singh be taken into custody and the Patwari be asked to take up the investigation of the case immediately. The, note was recorded by the Sub-Divisional Magistrate at 3.15 p. m. on the 13th September, 1967. However, by the time the orders of the Magistrate reached the Patwari investigation had already commenced on the report given by Dungar Singh. 4. The post-mortem examination was conducted by Dr. Kishan Singh Bisht (P. W. 1) at 10 a. m. on the 16th of September, 1967, and revealed four incised wounds, two being on the head, and SOM,2 abrasions. According to Dr. Bisht, the death was due to injuries to the brain and hemorrhage from other wounds which were caused by a heavy sharp edged weapon like an axe. 5. Har Singh pleaded not guilty to the charge of murder of Durga Devi. He admitted that he had married Durga Devi and was living with her after his retirement from service. He denied having any illicit relations with the widow of Durga Devi's brother and that he and Durga Devi were quarrelling on that account. He contended that he bad taken his cattle to give them' water and when he returned home he found Durga Devi murdered. He denied having made any statement to the Sub-Divisional Magistrate as alleged by the prosecution; according to him, he made a report to the Sub-Divisional Magistrate about the murder of his wife. He further contended that Dungar Singh (P. W. 2) had asked him for a loan of Rs. 200/- for the treatment of his injured hand with the assurance that he would give to Har Singh his land in return for the loan, but Dungar Singh neither repaid the loan nor gave the land and hence Dun-gar Singh has deposed against him. He also claimed to have paid Rs. 600/- to one Dan Singh to have a land redeemed from mortgage and on the redemption of the mortgage with his money he and his wife were cultivating it but Trilok Singh (P. W. 5) took forcible possession of the land and gave it over to Dan Singh and hence Trilok Singh also has given false evidence against him. 600/- to one Dan Singh to have a land redeemed from mortgage and on the redemption of the mortgage with his money he and his wife were cultivating it but Trilok Singh (P. W. 5) took forcible possession of the land and gave it over to Dan Singh and hence Trilok Singh also has given false evidence against him. He also pleaded that the two witnesses were not happy that Durga Devi was married to a Nepali and were always instigating Durga Devi that Har Singh should be turned out of the village. No evidence was adduced in defence. 6. There is no doubt that Durga Devi died an unnatural death and she, according to the post mortem report, died of violence caused by a heavy sharp edged weapon like an axe. The statement of Dungar Singh (P. W. 2) supports the prosecution case that Har Singh was quarrelling with his wife in the house on the morning of 13th September, 1967, and he came out of the house, picked up an axe and returned to the house, shrieks were heard from within, Har Singh came out of the house again and announced that he had killed Durga Devi and that her dead body should be looked after and the incident reported to the Patwari while he himself proceeded to Champawat to surrender himself. Trilok Singh (P. W. 5) merely heard the above announcement, i. e. Har Singh making an extra-judicial confession of his guilt. To this extent only Dungar Singh is supported by Lachhman Singh (P. W. 3) and the First Information Report, Ex. Ka. 10, Dungar Singh was then working in his field about 40 yards away from Har Singh's house while Trilok Singh who is brother of Durga Devi, was in his house close-by. Both are natural witnesses. It was urged that the statements of these two witnesses are contradictory, in our opinion, they can be reconciled, Dungar Singh saw and heard from his field; Trilok Singh heard from his house and called Dungar Singh and merely told him what he had heard. 7. Both the witnesses are relations of the deceased but they cannot be said to be hostile to Har Singh. They have, on the whole, made a straight-forward statement; and their version is corroborated by the statement made by Har Singh before the Sub-Divisional Magistrate. 8. 7. Both the witnesses are relations of the deceased but they cannot be said to be hostile to Har Singh. They have, on the whole, made a straight-forward statement; and their version is corroborated by the statement made by Har Singh before the Sub-Divisional Magistrate. 8. Keeping in mind the status of the Witnesses, the most important evidence against Har Singh can be said to be the statement made by him before the Sub Divisional Magistrate, Janardan Singh (P. W. 6), in the presence of Triloki Nath Tahsildar (P. W. 7) . Both of them have stated that Har Singh came to Janardan Singh at Champawat wished to make a statement, and the Magistrate, Janardan Singh made a record of his statement and after reading it over to him obtained his signature and himself signed it. That record is Ex. Ka. 9. The confession made by Har Singh is that he had killed his wife Durga Devi at 10 a. m. in the morning at village Haira, that the deed-body was still lying in his house and that he had come to surrender himself. Ex. Ka. 9 also contains the order of the Magistrate that Har Singh should be arrested and investigation undertaken immediately by the Patwari. As mentioned above, the confession was recorded at 3.15 p. m. on 13-71967. Har Singh has denied having made the statement, as recorded in Ex. Ka. 9, and according to him, he merely purported to report about the murder of his wife. His contention cannot be accepted in the face of the testimony of Magistrate Janardan Singh and Tahsildar Triloki Nath whom we see no reason to disbelieve regarding the substance of the statement made by Har Singh. 9. The learned counsel for Har Singh contended that the statement made by Har Singh before the Magistrate is confessional in nature and the formalities prescribed by Section 164 of the Code of Criminal Procedure not having been complied with, it is not admissible in evidence. Reliance was placed for the proposition on the decision of a Division Bench of this High Court in Nooruddin v. State, where certain observations seem to indicate that a confession made before a Magistrate whether before or during or after the investigation ought to be recorded in the manner provided by Section 164 of the Code of Criminal Procedure. Reliance was placed for the proposition on the decision of a Division Bench of this High Court in Nooruddin v. State, where certain observations seem to indicate that a confession made before a Magistrate whether before or during or after the investigation ought to be recorded in the manner provided by Section 164 of the Code of Criminal Procedure. In that case, however, the confession was made before a Magistrate after the First Information Report was lodged and the investigation had commenced. The learned Judges held that since the confession was made by the accused in the course of investigation the safeguards mentioned in Section 164 of the Code of Criminal Procedure ought to have been taken even though the accused was not brought before the Magistrate by the police for making a confession and made use confession to the Magistrate by himself. In the present case, however, the confessional statement was made before Magistrate Janardan Singh even, before the First Information Report was lodged and the investigation started. The decision in Nooruddin's case does not, therefore, apply to the present case. In our opinion Section 164 of the Code of Criminal Procedure has prescribed certain conditions for recording confessions by Magistrate in the course of investigation or at any time afterwards before the commencement of the enquiry or trial and those conditions need not be complied with where an accused makes a confessional statement before a Magistrate prior to the commencement of the investigation. Incidentally, it appears to us that the decision in Nooruddin's'' case is not consistent with the observations of the Supreme Court in Baleshwar Rai v. State of Bihar that the expressions "course of investigation" and "period of investigation" are not synonymous and a statement made to a police officer during the period of investigation is not hit by Section 162 of the Code of Criminal Procedure if it is one de hors the enquiry conducted by the Investigating Officer. In Nooruddin'sio case, however, the following observations were made by the learned Judges:- "To our mind the Sec. (164 Cr. P. C.) is wide enough to authorise recording of confessions by the Magistrate whenever after the commission of the crime the accused wanted to make a confession which would ultimately be. used in the trial of that offence. In Nooruddin'sio case, however, the following observations were made by the learned Judges:- "To our mind the Sec. (164 Cr. P. C.) is wide enough to authorise recording of confessions by the Magistrate whenever after the commission of the crime the accused wanted to make a confession which would ultimately be. used in the trial of that offence. The phrase 'in the course of an investigation' in this section appears only to refer to the period of time when the investigation had started and was still going on." With respect, we regard these observation as obiter and we are of the view that the formalities prescribed in Section 164 of the Code of Criminal Procedure need not be followed when a Magistrate records a statement of confessional nature before the investigation started and a statement made to a Magistrate before the investigation is admissible in evidence. A similar view has been held by Andhra Pradesh High Court in In Yendra Narasimha Murthy and by the Madras High Court in In re. Ram Chandra. 10. Accordingly, we hold the statement made to Magistrate Janardan Singh by Hal. Singh and duly proved by Magistrate Janardan Singh and Tahsildar Triloki Nadi is admissible in evidence and can be treated as an extra-judicial confession. We have already held above that there is no reason to disbelieve that Har Singh made a statement to the Magistrate that he had killed his wife Durga Devi and that the dead body was lying in his house. The fact that the dead body was actually lying in his house as found by Lachhman Singh (P. W. 3) and Patwari Narendra Pratap Singh (P. W. 9) lends some corroboration to the extra-judicial confession made by Har Singh. It is also corroborated by the testimony of Trilok Singh to whom too Har Singh made a confession before he proceeded to Champawat immediately after the murder and also by what Dungar Singh saw and heard. That Har Singh was near his house soon after the murder of his wife is also a circumstance pointing to his guilt. 11. We are satisfied for the reasons mentioned above that the murder of Durga Devi was committed by Har Singh himself and we maintain his conviction under Section 302 of the Indian Penal Code. 12. That Har Singh was near his house soon after the murder of his wife is also a circumstance pointing to his guilt. 11. We are satisfied for the reasons mentioned above that the murder of Durga Devi was committed by Har Singh himself and we maintain his conviction under Section 302 of the Indian Penal Code. 12. As regards the sentence, there is no extenuating or mitigating' circumstance why the extreme penalty of death should not be awarded to Har Singh and maintain the sentence of death imposed by the learned Sessions Judge. 13. The result is that the appeal is dismissed and the reference is accepted. The sentence of death awarded to Har Singh shall be carried out in accordance with law.