J. C. MISHRA, J. ( 1 ) THE accused-appellant, Naresh, was convicted by Sri Kamta Prasad Mishra, XIII Additional Sessions Judge, Meerut, under S. 302, I. P. C. and sentenced to death. He was further convicted under S. 201, I. P. C. and sentenced to rigorous imprisonment for two years and to fine amounting to Rs. 5000. 00 and in default to undergo further rigorous imprisonment for one year. ( 2 ) THE learned Additional Sessions Judge while convicting the appellant and sentencing him to death made a reference to the High Court for confirmation of the death sentence under S. 366, Cr. P. C. which was registered at Reference No. 1 of 1996. ( 3 ) THE appellant preferred an appeal which was registered as Capital Case No. 30 of 1996. ( 4 ) THE appellant was not in a position to engage a lawyer. Therefore, Sri Dileep Kumar was appointed by us amicus curie to conduct his case at the expenses of the State Government. ( 5 ) THE following pedigree would disclose the relation of the deceased Gajendra Singh, a child aged 7-8 years and other family members, who were examined by the prosecution. ( 6 ) THE informant, Preetam Singh, and other members of the family live in village Tatiri under the police station Baghpat in district Meerut. Their tubewell was installed in village Jungle Mila, at a distance of 11/2 kms. from the house, for irrigating the adjacent agricultural plots. ( 7 ) THE prosecution case is that on 8-4-1990 Mangat Singh (P. W. 3), informant-Preetam Singh (P. W. 1), his son Pranjal and nephews, Virendra and Gajendra alias Tinku, had gone at their tubewell. In the noon some quarrel took place among the children. The deceased, therefore, left the tubewell. The children thought that he would have gone to his house. In the evening the informant and other family members went to their house at about 5 Oclock and found that the deceased had not reached there. The informant tried to search the deceased at all probable places but he could not be traced. The villagers were also informed by beat of drums but without any result. The informant also gave information to Agarwal Mandi Outpost, Tatiri and ultimately lodged a report in night at P. S. Baghpat at 9. 40 p. m. (Ext. The informant tried to search the deceased at all probable places but he could not be traced. The villagers were also informed by beat of drums but without any result. The informant also gave information to Agarwal Mandi Outpost, Tatiri and ultimately lodged a report in night at P. S. Baghpat at 9. 40 p. m. (Ext. Ka-1) Constable Clerk Sheeshu Pal Singh (P. W. 4) made its entry in the G. D. report No. 23, a photostat copy of which was brought on record. ( 8 ) DESPITE best possible efforts neither the family members nor the police could find the deceased. On 12-4-1990 accused Naresh informed Mangat Singh that a foul smell was emanating from the field of Radhey Shyam. Mangat Singh passed on this information to Chhatar Singh (P. W. 2), father of the deceased, who along with his cousin Sri Niwas, went near the field of Radhey Shyam and found the dead body of the deceased lying in his sugarcane field, which is adjacent to the field of the accused Naresh. He identified the body and then dictated a report (Ext. Ka-2) to Tika Ram and lodged it at P. S. Baghpat on 12-4-1990. Then the Head Constable Clerk, Genda Lal Yadav (P. W. 5) made an entry in the G. D. report No. 41 at 5. 40 p. m. An extract of the G. D. is Ext. Ka-8. ( 9 ) S. S. I. P. C. GUPTA (P. W. 14) was then posted at P. S. Baghpat. On receipt of this information regarding the discovery of the dead body, he went to the spot, inspected the dead body of Gajendra, held inquest and prepared inquest report (Ext. Ka-9), challan lash (Ext. Ka-10), photo lash (Ext. Ka-11), a report for conducting post-mortem examination (Ext. Ka-12) and got the body sealed up. He despatched the dead body along with impression of seal and police papers with Constable, Kamta Prasad and Constable Om Veer Singh (P. W. 13) for post-mortem examination. The post-mortem examination was conducted by Dr. P. N. Khanna (P. W. 11), who was posted as Professor in Medical College, Meerut on 13-4-1990 at 10. 30 a. m. He found the following ante-mortem injuries on the dead body, which was decomposed with bloated features and disbanded abdomen. 1. M. abrasion, contusion present on both sides and middle of front of neck both lips and gums. 2. P. N. Khanna (P. W. 11), who was posted as Professor in Medical College, Meerut on 13-4-1990 at 10. 30 a. m. He found the following ante-mortem injuries on the dead body, which was decomposed with bloated features and disbanded abdomen. 1. M. abrasion, contusion present on both sides and middle of front of neck both lips and gums. 2. Sugarcane stick 12 cm x 13/4 cm. present in trachea extending up to oesophagus. Hyoid bones fractured. 3. Brain, lungs, liver, and both kidneys were found soft and some organs pulpy. Spleen was soft and liquified. ( 10 ) DEATH was due to asphyxia as a result of throttling and suffocation. ( 11 ) ON receipt of the copy of the post-mortem report, the then Head Constable Clerk, Genda Lal Yadav (P. W. 3) altered the case under Ss. 302/201, I. P. C. on 14-4-1990 at 9. 05 a. m. vide G. D. report No. 17, a photostat copy of which is Ext. Ka-4. Inspector R. R. B. Singh was posted as S. H. P. Baghpat. He himself took over the investigation after alteration of the case under Ss. 302/201, I. P. C. He went to the spot, inspected the site and prepared its plans (Ext. Ka-5 ). He made efforts to find the culprit but could not succeed. He sent 8 parchas disclosing the investigations made by him during the period from 14-4-1990 to 31-7-1990. After disclosing the investigation made by him, including recording of the statements of the witnesses he ultimately submitted final report, which was accepted by the Magistrate and the case was closed. ( 12 ) THE incident resulting in murder of Gajendra alias Tinku was followed by a series of murders in similar circumstances of young boys of the locality. ( 13 ) THE prosecution case is that in the second week of March, 1992, Ishwar Singh (P. W. 6) and Vinay Kumar (P. W. 7) who were residents of village Tatiri, were talking in front of the house of Ishwar Singh on the khadanja, where accused Naresh appeared and requested them to arrange his marriage. Ishwar Singh expressed his inability as he was a lame person and he doubted whether any person would agree to marry his daughter to him. Ishwar Singh expressed his inability as he was a lame person and he doubted whether any person would agree to marry his daughter to him. The accused remarked that if his marriage was not solemnised, boys will continue to disappear and as per statement of P. W. 7 Vinaya Kumar he said that he would continue to commit unnatural offence with them. The witnesses did not believe the accused and they left the place smiling. ( 14 ) THEN the prosecution is that accused Naresh was arrested while he was attempting to kidnap a boy on 11/03/1992. He was interrogated by S. I. Kali Ram. He made confession regarding murder of deceased-Gajendra and other boys. In view of his confession a request was made to the CJM to reopen this case by S. H. O. Baghpat on 15-3-1992. On 16/03/1995 the then C. J. M. Sri P. N. Tewari accorded the permission. ( 15 ) THE investigation was entrusted to S. I. Kali Ram (P. W. 12 ). He was contacted by Ishwar Singh (P. W. 6) and Vinay Kumar (P. W. 7) and on their request he recorded their statements. ( 16 ) IT appears that in view of his confession made to police the accused admitted his involvement in all the cases, in which young boys of the locality were murdered. In Crime No. 86 of 1992 under Ss. 302/201 and 377, I. P. C. S. S. I. J. C. Yadav made a report to C. J. M. on 11/03/1992 with the request to record statement of the accused under S. 164, Cr. P. C. The C. J. M. directed this application to be put before A. C. J. M. , who allowed it on 17-3-1992. ( 17 ) THE accused was brought before Sri J. N. Kardam, (P. W. 10) who was then posted as A. C. J. M. Baghpat. He recorded his statement (Ext. Ka-6) under S. 164, Cr. P. C. in his chamber. ( 18 ) S. I. KALI Ram, who was investigating the case obtained custody warrant of the accused, in this case on 23-3-1992 and with the permission of the Court recorded the statement of the accused. After his retirement on 31-3-1992, the investigation was taken over by S. I. Subedar Singh Chauhan (P. W. 9), who completed the investigation and submitted charge-sheet, (Ext. Ka-15) against him. After his retirement on 31-3-1992, the investigation was taken over by S. I. Subedar Singh Chauhan (P. W. 9), who completed the investigation and submitted charge-sheet, (Ext. Ka-15) against him. ( 19 ) THE case was committed to session by Sri P. N. Tiwari, the then C. J. M. Meerut. The case was transferred to the Court of XIII Additional Sessions Judge, who framed charges under S. 302, I. P. C. for committing murder of Gajendra and under S. 201, I. P. C. for causing disappearance of the dead body, for screening himself from punishment. ( 20 ) TO prove its case the prosecution examined the informant, Preetam in Singh (P. W. 1), Chhatar Singh (P. W. 2) and Mangat Singh (P. W. 3) who proved that the deceased had gone to his tubewell along with the other family members and on account of quarrel with his brother and cousin, he had left the tubewell. A report about his disappearance was lodged by Preetam Singh on 8-4-1990 and discovery of dead body was reported by Chhatar Singh (P. W. 2 ). ( 21 ) THE prosecution examined Ishwar Singh (P. W. 6) and Vinay Kumar (P. W. 7) before whom, the deceased had made confession that until his marriage was solemnised, the children would continue to disappear from the locality and he would continue to commit unnatural offence against them. ( 22 ) THE prosecution examined Dr. P. N. Khanna (P. W. 11) who had conducted the post-mortem examination on the dead body. He opined that the death was caused due to asphyxia as a result of strangulation. The prosecution also examined Sri J. N. Kardam, the then A. C. J. M. , Meerut, who had recorded the confession of the accused on 17-3-1992. Constable Sheeshu Pal Singh (P. W. 4) stated that a report (Ext. Ka-1) was lodged in 8-4-1992 and he had made an entry in the G. D. P. W. 5 Head Constable Genda Lal Yadav had altered the case under Ss. 302/201, I. P. C. He has proved the relevant G. Ds. constable Om Veer Singh (P. W. 13) had carried the dead body from the place of occurrence of offence and produced it in the Medical College, Meerut, for post-mortem examination. 302/201, I. P. C. He has proved the relevant G. Ds. constable Om Veer Singh (P. W. 13) had carried the dead body from the place of occurrence of offence and produced it in the Medical College, Meerut, for post-mortem examination. ( 23 ) S. I. P. H. C. GUPTA had held inquest on the dead body and after preparing necessary police papers had dispatched it for post-mortem examination. ( 24 ) S. H. O. R. R. B. SINGH had made investigation of the case from 14-4-1990 to 31-7-1990. He had submitted final report as the crime could not be worked out. ( 25 ) S. I. KALI Ram took over investigation of this case on 16-3-1992, after transfer of S. H. O. R. R. B. Singh. He interrogated Ishwar Singh and Vinay Kumar and also the accused. S. I. Subedar Singh Chauhan had taken over the investigation after the retirement of S. I. Kali Ram and he had submitted the charge-sheet against the accused. ( 26 ) THE learned Additional Sessions Judge relying on the confession made by the accused, which was proved by Sri J. N. Kardam (P. W. 10) as also on the evidence of Ishwar Singh (P. W. 6) and Vinay Kumar (P. W. 7) held that the case was proved to the hilt. He, therefore, convicted the accused under Ss. 302/201, I. P. C. He found that the murder was of a shocking character and, therefore, he sentenced the accused to death. ( 27 ) AS aforesaid the learned Additional Sessions Judge made reference for confirmation of the death sentence while the accused preferred this appeal. ( 28 ) WE have heard Sri Dileep Kumar, learned amicus-curie and Sri S. P. Tiwari, learned Additional Government Advocate. ( 29 ) THE learned amicus-curie contended that the confession recorded by the learned A. C. J. M. cannot be taken into consideration as it was not made voluntarily and if this evidence is excluded there is no evidence available on the record to warrant a conviction. The learned amicus-curie further contended that since the evidence of previous convictions was not put to him, it could not be considered for awarding death sentence. The learned amicus-curie further contended that since the evidence of previous convictions was not put to him, it could not be considered for awarding death sentence. ( 30 ) THE Learned Additional Sessions Judge has based the conviction of the appellant on the confession recorded by the A. C. J. M. and sought corroboration from the extra-judicial confession made by the accused, before Ishwar Singh and Vinay Kumar and also by the medical evidence. Before considering the reliability of the confession it would be worthwhile to consider how far the extra-judicial confession can be relied on for corroborating the confession recorded by the Magistrate. It may be pointed out that the extra-judicial confession, as stated by the witness, Ishwar Singh and Vinay Kumar, is by itself insufficient to prove the prosecution case as the appellant had not admitted that he had committed the murder of Gajendra. ( 31 ) BOTH Ishwar Singh and Vinay Kumar had stated that the accused, a week prior to his arrest, had stated to them that the boys would continue to disappear from the village until his marriage was arranged. This statement does not indicate the involvement of the appellant in commission of the murder of Gajendra. It only, in a general way, indicates that the disappearance of the boys was directly related to the appellant, who was living a bachelors life and he gave an assurance, that in case he is married the disappearance of the children will stop. 31a. Vinay Kumar while supporting the aforesaid statement further added that the appellant had stated that he would continue to commit sodomy with the children and they would continue to be murdered. This part of the statement has not been supported by Ishwar Singh and does not appear to be reliable. Had the appellant made such a direct confession, this witness must have furnished information to the police. Both these witnesses have stated that they had informed the police about the confession, only after the arrest of the appellant and has having confessed his guilt before police. ( 32 ) VINAY Kumar has stated that he did not believe the truthfulness of the confession made by the appellant. This statement further strengthens the inference that the appellant had not made a confession regarding sodomy and therefore there was no direct confession of his guilt. ( 32 ) VINAY Kumar has stated that he did not believe the truthfulness of the confession made by the appellant. This statement further strengthens the inference that the appellant had not made a confession regarding sodomy and therefore there was no direct confession of his guilt. ( 33 ) WE find that at the best only this part of the evidence of Ishwar Singh and Vinay Kumar may be believed that the accused had stated that unless and until his marriage was arranged the children would continue to disappear from the village. It needs no repetition that conviction cannot be based solely on this extra-judicial confession but certainly it can be utilised for corroborating the confession made before the Magistrate, if it is found to be true and voluntary. ( 34 ) IT may be recalled that the case was investigated on the report of Peetam Singh that this nephew Gajendra alias Tinku was missing since 2. 00 p. m. on 8-4-1990. ( 35 ) THE dead body was discovered on 12-4-1990 and thereafter Chhatar Singh (P. W. 2), father of the deceased had lodged a report. On receipt of the post-mortem report a case was registered in Crime No. 118 of 1990 under Ss. 302/201, I. P. C. The Investigating Officer could not find any clue and, therefore, he submitted final report, which was accepted by the Magistrate. The case was closed. ( 36 ) THE boys of the locality continued to be murdered and the modus operandi employed by the culprit was similar. The prosecution case is that the accused was arrested, while he was attempting to commit a crime has in a similar way and on his interrogation by the police he confessed that he had committed murders after satisfying his lust. Therefore, the Investigating Officer made report before the C. J. M. for permission to reopen the case. The C. J. M. allowed the application and granted the prayer. ( 37 ) IT appears that on the basis of the confession made by the police the various cases, which were registered earlier were re-investigated. In Crime No. 86 of 1992 S. S. I. J. C. Yadav made a report before the C. J. M. for recording the statement of the accused under S. 164, Cr. P. C. As aforesaid the C. J. M. directed A. C. J. M. Baghpat to record the statement. In Crime No. 86 of 1992 S. S. I. J. C. Yadav made a report before the C. J. M. for recording the statement of the accused under S. 164, Cr. P. C. As aforesaid the C. J. M. directed A. C. J. M. Baghpat to record the statement. ( 38 ) THE prayer for recording the statement of the accused was granted on 17-3-1992. His statement was recorded by Sri J. N. Kardam A. C. J. M. on 18-3-1992. The appellant, according to the prosecution, made confession regarding the murder of several boys. Prosecution has proved this statement which is Ext. Ka-?. The relevant part of the confession relating to the murder of Gajendra is reproduced below : ( 39 ) LEARNED counsel for the appellant contended that it was the duty of the Magistrate to have satisfied by questioning the accused that the confession was being made voluntarily and he should have also assured the accused that he would not be sent to police custody, even if he did not make the confession and in view of these infirmities the confession cannot be relied on. ( 40 ) SECTION 164, Cr. P. C. permits any Metropolitan or Judicial Magistrate to record any confession in the course of investigation or at any time afterwards, before the commencement of the inquiry or trial. Sub-Section (2) of S. 164, which is being reproduced below provides precautions to be taken before recording the confession. "sub-SECTION (2) :- The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. " ( 41 ) SUB-SECTION (3) of S. 164 prohibits the Magistrate to authorise the detention of the person in police custody, if he states that he is not willing to make confession. ( 42 ) THE aforesaid provisions would show that before recording confession it is the duty of the Magistrate to question the person, making the confession to ensure that the confession is being made voluntarily. This provision is mandatory. It is not an idle formality. ( 42 ) THE aforesaid provisions would show that before recording confession it is the duty of the Magistrate to question the person, making the confession to ensure that the confession is being made voluntarily. This provision is mandatory. It is not an idle formality. The Legislature has introduced this mandatory provision to ensure that an accused does not make a confession on account of any fear or favour. ( 43 ) THE learned Additional Government Advocate contended that even if no questioning is made by the Magistrate but from the record if it transpires that the confession was voluntary, it can be considered for the conviction. He also contended that confession without any corroboration, is itself sufficient to convict the accused. ( 44 ) THE learned counsel for the appellant relied on a decision of Gauhati High Court in Benar Singh Tanti v. The State of Assam, reported in 1977 Cri LJ 296. It was held that"in order that a confessional statement may be admissible and used against an accused, it must be proved to be voluntary. The voluntary nature of the evidence can be judged from the internal evidence of the document and also from the evidence of the Magistrate, recording the confession. " ( 45 ) THE learned Additional Government Advocate contended that the Magistrate has stated before the trial Court that before recording the confession he had warned the accused that he was not bound to make confession and in case he makes any confession it would be read against him. He also stated that the accused had voluntarily made the confession. ( 46 ) THE learned Additional Government Advocate placed reliance on a decision of the Supreme Court in Dagdu v. State of Maharashtra, AIR 1977 SC 1579 : (1977 Cri LJ 1206), wherein in para 50 the Supreme Court considered the arguments advanced by the learned counsel appearing for the State (at page 1217 of Cri LJ) :"learned counsel appearing for the State is right that the failure to comply with S. 164 (3), Cr. P. C. or with the High Court circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. P. C. or with the High Court circulars will not render the confessions inadmissible in evidence. Relevancy and admissibility of evidence have to be determined in accordance with the provisions of the Evidence Act. Section 29 of that Act lays down that if a confession is otherwise relevant it does not become irrelevant merely because, inter alia, the accused was not warned that he was not bound to make it and the evidence of it might be given against him. If, therefore a confession does not violate under Ss. 24 to 28 of the Evidence Act, it will be admissible in evidence. But as in respect of any other admissible evidence, oral or documentary, so in the case of confessional statements which are otherwise admissible, the Court has still to consider whether they can be accepted as true. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the confession even if it is admissible in evidence. . . . . . . . . " ( 47 ) THE learned counsel for the appellant contended that the Supreme Court in the aforesaid pronouncement has not done away with the due observance of the mandatory provision of Sub-Section (2) of S. 164 of the Code of Criminal Procedure. He referred to the following observation made in the aforesaid case. ". . . That shows how important it is for the Magistrate who records the confession to satisfy himself by appropriate questioning of the confessing accused, that the confession is true and voluntary. A strict and faithful compliance with S. 164 of the Code and with the instruction issued by the High Court affords in a large measure the guarantee that the confession is voluntary. The failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional statements. " ( 48 ) IN view of this decision it emerges that though it is permissible to consider the confession recorded under S. 164, Cr. P. C. , despite failure to comply with S. 164 (3), Cr. P. C. , but there is no doubt that the evidentiary value of this confessional statement is impaired. " ( 48 ) IN view of this decision it emerges that though it is permissible to consider the confession recorded under S. 164, Cr. P. C. , despite failure to comply with S. 164 (3), Cr. P. C. , but there is no doubt that the evidentiary value of this confessional statement is impaired. ( 49 ) THE learned Counsel for the appellant contended that the effect of non-observance of the safeguards laid down under Sub-Section (2) of S. 164 was not considered in the aforesaid case. In the case before us the learned A. C. J. M. had not questioned the accused for verifying, whether he was making the confession voluntarily. ( 50 ) THE learned counsel of the appellant contended that it was the duty of the Magistrate to have questioned the accused in order to reach a conclusion whether he could reasonably believe that the confession was being made voluntarily. He contended that if the Magistrate had recorded the questions asked by him and answers given by the accused the Sessions Judge, could have formed his own opinion whether the accused had made confession voluntarily. He contended that in absence of such questions and answers neither the Sessions Judge nor this Court can form its opinion regarding the voluntariness of the confession and, therefore, it is left to rely on the statement of the Magistrate that the confession was voluntary. He vehemently argued that the non-recording of the questions and answers has materially prejudiced the accused as he has been prevented to challenge the confession on the ground that it was not voluntary. . ( 51 ) THE aforesaid question arose for consideration before a Division Bench of this Court comprising Honble K. C. Bhargava and Honble R. K. Agarwal, JJ. in Maharaj Deen v. State, reported in 1996 Cri LJ 506. The Bench relied on an earlier decision in Badri Prasad v. State of U. P. , 1973 Cri LJ 1478 : (1973 All LJ 251) in which a single Judge of this Court has come to the conclusion that if the Magistrate, who had recorded the confession under S. 164, Cr. The Bench relied on an earlier decision in Badri Prasad v. State of U. P. , 1973 Cri LJ 1478 : (1973 All LJ 251) in which a single Judge of this Court has come to the conclusion that if the Magistrate, who had recorded the confession under S. 164, Cr. P. C. had not put questions to the accused before recording statement in order to satisfy himself that the statement was being made voluntarily, the said omission, according to the Court, would not go to fill up the lacuna even if the learned Magistrate in his statement in Court deposed that he had put questions to the accused. It was also held that the certificate which the Magistrate has given as required under S. 164, Cr. P. C. was only in compliance to the instructions given in S. 164, Cr. P. C. and that would not go to indicate that the Magistrate had put questions to the accused before recording statement under S. 164, Cr. P. C. to satisfy himself that the statement was voluntary. ( 52 ) THE Bench observed that similar view was taken by Orissa High Court in a case reported in 1977 Cri LJ 2053 (FB) Shanti v. State and by the Honble Supreme Court in a case reported in 1989 Cri LJ 1 : ( AIR 1988 SC 1883 ) Kehar Singh v. State. ( 53 ) THE Bench observed that"in this case no foundation or basis has been laid by the Magistrate for this Court to Judge that the Magistrate had satisfied himself that the confession was made voluntarily and he also did not put questions to the accused as to why he was making confession and he had also not informed the accused that he would not be remanded to the police custody even it he did not confess his guilt. Similar question had arisen before the Supreme Court in a case reported in AIR 1978 SC 1544 : 1978 Cri LJ 1614, Devendra Prasad Tiwari v. State of U. P. In that case also the Magistrate who recorded the alleged confessional statement did not put questions to the accused as to why he was making confession and the Magistrate had also not told the accused that he would not be remanded to the police lock up even if he did not confess his guilt. The Honble Supreme Court, therefore, did not rely on the alleged confessional statement. The mere certificate given by the Magistrate as required under S. 164, Cr. P. C. , would not, in our opinion, be sufficient. "it further observed that"in this case we do not have any material on record to indicate the circumstances under which the question of confession first arose and how the accused expressed his willingness to be placed before the Magistrate and his readiness to make confession. " ( 54 ) SIMILAR question was considered in Shivappa v. State of Karnataka, reported in 1996 SCC (Cri) 323. The relevant paragraphs Nos. 5, 6 and 7 are reproduced below. "5. The only piece of evidence relied upon against the appellant is the confessional statement recorded by P. W. 17 on 22-7-1986. A confession, if voluntary and truthfully made is an "efficacious proof of guilt. " is an important piece of evidence and therefore it would be necessary to examine whether or not the confession made by the appellant was voluntary, true and trustworthy. The statutory provisions dealing with the recording of confessions and statements by the Metropolitan Magistrate and Judicial Magistrates are contained in S. 164, Cr. P. C. and the rules framed by the High Court containing guidelines for recording of confessions. Unless the Court is satisfied that the confession is voluntary in nature, it cannot be acted upon and no further enquiry as to whether it is true and trustworthy need be made. ""6. From the plain language of S. 164, Cr. P. C. and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under S. 164, Cr. P. C. , it is manifest that the said provisions emphasize an inquiry by the Magistrate to ascertain the voluntary nature of the confession. This inquiry appears to be the most significant and an important part of the duty of the Magistrate recording the confessional statement of an accused under S. 164, Cr. P. C. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature the confession detracts so materially from the evidentiary value of the confession of an accused that it would not be safe to act upon the same. Full and adequate compliance not merely in form but in essence with the provisions of S. 164, Cr. Full and adequate compliance not merely in form but in essence with the provisions of S. 164, Cr. P. C. and the rules framed by the High Court is imperative and its non-compliance goes to the root of the Magistrates jurisdiction to record the confession and renders the confession unworthy of credence. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for such supposition he should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence. An accused should particularly be asked the reason why he wants to make a statement which would surely go against his self-interest in course of the trial, even if he contrives subsequently to retract the confession. Besides administering the caution, warning specifically provided for in the first part of Sub-Section (2) of S. 164 namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complicity in the offence at the trial that is to follow, he should also, in plain language, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or like in case he declines to make a statement and be given the assurance that even if he declined to make the confession, he shall not be remanded to police custody. ""7. The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of S. 164, Cr. P. C. and the rules framed by the High Court or the guidance of the subordinate Courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the Court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with. " ( 55 ) IN the aforesaid case the Magistrate had not disclosed to the appellant that he was a Magistrate and the confession was being recorded by him in that capacity. From the memorandum, prepared by the Magistrate as also from his deposition recorded in Court it was revealed that the Magistrate did not lend any assurance to the appellant that he would not be sent back to the police custody in case he did not make the confessional statement. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22/07/1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Magistrate question the appellant as to why he wanted to make the confession. The Magistrate prompted him to make the confession. The Magistrate did not make any serious attempt to ascertain the voluntary character of the confessional statement. ( 56 ) THE Supreme Court observed that the failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the confession, impels us to hold that the evidence on the record does not establish that the confessional statement of the appellant recorded under S. 164, Cr. P. C. was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary character of the confession has left much to be desired and has detracted materially from the evidentiary value of the confessional statement. It would, thus "neither be prudent nor safe to act upon the confessional statement of the appellant. " ( 57 ) IN the case before us the confessional statement suffered with all the infirmities, which were found by the Supreme Court, in the case before it. The accused in his statement under S. 313, Cr. It would, thus "neither be prudent nor safe to act upon the confessional statement of the appellant. " ( 57 ) IN the case before us the confessional statement suffered with all the infirmities, which were found by the Supreme Court, in the case before it. The accused in his statement under S. 313, Cr. P. C. stated that the Sub-Inspector was present and he was dictating the confession. In the absence of any material supporting this plea we are not prepared to believe that the confession was recorded on the dictation of the Sub-Inspector. However, in order to repose confidence it was the duty of the Magistrate to have disclosed that he was Magistrate and was recording the statement in that capacity. ( 58 ) THE prosecution has not led any evidence to show as to when the accused was brought before the A. C. J. M. , who recorded the confession. No such material is available from which this Court can verify, whether the accused was in police custody or judicial custody, prior to the recording to the statement. It may be pointed out that the warrant authorising the detention of this accused in connection with this case, was issued on 23/03/1992, a week after the recording of the statement. It was the duty of the prosecution to have brought the relevant orders passed in Crime No. 86/92, on record or the warrants should have been produced to indicate the dates on which the accused was brought from the jail. ( 59 ) THE learned A. C. J. M. did not make any attempt to ascertain the voluntary character of the confession. He did not discharge the mandatory duty of questioning the accused to ensure that he had reason to believe that the confession was being made voluntarily. In view of these infirmities it is not possible to rely on the confession recorded by the learned A. C. J. M. ( 60 ) THE learned Additional Government Advocate contended that the confession was retracted at a very late stage, when the statement of the accused was recorded under S. 313, Cr. P. C. He contended that unless the confession is retracted at the earliest stage i. e. on the date the charge is read over and explained to the accused, the confession can be relied on for even basing conviction. This contention is no doubt true. P. C. He contended that unless the confession is retracted at the earliest stage i. e. on the date the charge is read over and explained to the accused, the confession can be relied on for even basing conviction. This contention is no doubt true. As held in Wariyam Singh v. State of U. P. , 1995 SCC (Cri) 1124 a retracted confession may form the legal basis of conviction, if the Court is satisfied that it was true and was voluntarily made. We have seen that the confession relied on by the prosecution does not appear to be voluntary and, therefore, it cannot be relied on despite the fact that it was not retracted at the earliest opportunity. ( 61 ) BEFORE parting with this judgment we feel constrained to remark that the non-observance of the mandatory provision of the Sub-Section (2) of Section 164, Cr. P. C. has resulted on the one hand the appellant suffering mental agony for remaining, under fear of death for about 10 months and on the other in acquittal of a criminal. If after due observance of the mandatory provisions a similar confession had been made by the accused it would have inspired confidence. If the Magistrate had performed his duty properly and ensured the voluntary character of the confession, either the accused would not have suffered this agony or the psychiatric criminal who had committed the murders of helpless children would not have escaped unpunished. Our enquiry from the Registry has revealed that the High Court has not issued any guidelines to the Magistrate for recording the confession. We, therefore, direct the Registrar to bring this fact to the notice of Honble the Chief Justice so that the High Court may issue necessary instructions or guidelines to the Magistrate for a strict observance of the instructions, in light of decisions of the Supreme Court in Shivappas case, referred to above to ensure that the confessions are recorded in accordance with the law laid down by the Supreme Court. We also recommend that a proforma be introduced either in General Rules (Criminal) or in High Court circulars. ( 62 ) A copy of this judgment be sent to the Inspecting Judge concerned, who may in his discretion point out the mistake committed by Sri J. N. Kardam to him for future guidance. We also recommend that a proforma be introduced either in General Rules (Criminal) or in High Court circulars. ( 62 ) A copy of this judgment be sent to the Inspecting Judge concerned, who may in his discretion point out the mistake committed by Sri J. N. Kardam to him for future guidance. ( 63 ) THE appellant was convicted on the sole basis of the so-called confessional statement and as the confession has been found to be not reliable there is no evidence to connect, the appellant with the crime. The conviction, therefore, cannot be sustained. ( 64 ) THE assistance given by Sri Dileep Kumar advocate, amicus curie, in placing the relevant case laws is appreciated. He shall get Rs. 2,500. 00 as fee. The Registrar is directed to ensure the payment within a month. ( 65 ) THE appeal consequently succeeds and is allowed. The convictions and sentence of the appellant are set aside. The appellant is directed to be released from custody forthwith unless required in any other case. ( 66 ) THE reference is rejected. Appeal allowed. .