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2013 DIGILAW 862 (GAU)

Kartik Chakraborty and Ors v. State of Assam

2013-12-12

K.SREEDHAR RAO, P.K.SAIKIA

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K. Sreedhar Rao, J.:- 1. Heard Mr. B. K. Mahajan, learned counsel for the appellants, and Ms. S. Jahan, learned Addl. Public Prosecutor, Assam. 2. The material facts of the prosecution case disclose that one Smt Anita Chakraborty is the deceased and Ms. Gita Das, sister of the deceased, is the complainant who lodged the FIR. Accused No.1 is appellant in Criminal Appeal No.8/2008 and husband of the deceased. Appellant No.1 in Criminal Appeal No.7/2008, who is accused No.2, is brother of accused No.1 in Criminal Appeal No.8/2008. The appellant Nos.3 and 4 in Criminal Appeal No.7/2008 are said to be hired mercenaries engaged by accused No.2 at the instance of accused No.1 to cause murder of the deceased. There were matrimonial disputes between accused No.1 and the deceased. Before the incident, accused No.1 had requested accused No.2 to make arrangement for causing murder of the deceased. But for some reasons, the murder could not be done. Accused No.1 reminded the accused No.2 about the murder to be caused. Accused No.2 thereupon engaged accused Nos.3 and 4 to cause the murder. On 09.10.1999 in the morning, accused No.1 brought the deceased to the house of PW2 and left the deceased at the house of PW2 and he went away. PW2 was present at the house but husband of PW2 was not at the house. Accused Nos.3 and 4, who were supposed to be strangers to the deceased and PW2, caused the death of the deceased by stabbing and fled away. 3. PW2 lodged the complaint before the police on the ensuing day. Police conducted the inquest and the dead body is also subjected to post mortem. Post mortem report discloses that death is due to shock and hemorrhage as a result of the abdominal injury. Death is homicidal and injuries are ante mortem. 4. The investigating officer, in the course of investigation, apprehended accused Nos.3 and 4 on 25.10.1999 and makes a requisition to Additional District Magistrate, Bongaigaon, for magisterial assistance in the conduct of investigation. The Additional District Magistrate deputes PW25, an Executive Magistrate, to participate and assist the investigating officer in the investigation. Accused Nos. 3 and 4 were interrogated by PW20 in presence of PW25 and, in course of interrogation, they confessed that they had been engaged by accused Nos.1 and 2 to cause the murder and that they were paid Rs.8,000/- for causing the murder. Accused Nos. 3 and 4 were interrogated by PW20 in presence of PW25 and, in course of interrogation, they confessed that they had been engaged by accused Nos.1 and 2 to cause the murder and that they were paid Rs.8,000/- for causing the murder. Accused Nos.3 and 4 voluntarily led the police to the spot where they had concealed the dagger used for commission of the offence and the blood stained clothing. 5. The investigating officer arrested accused Nos.1 and 2 on 25.10.1999 and made a request to the Judicial Magistrate for police custody for two days. That was granted. Further extension of two more days was also granted on the request of the investigating officer. Even before the expiry of the extended period of two days of police custody, accused Nos.1 and 2 were produced before the Judicial Magistrate for recording confessional statement under section 164, Cr.PC. Accordingly, on 29.10.1999, the Magistrate, after giving three hours time for reflection, recorded the confessional statement of accused Nos.1 and 2. 6. On the voluntary instance of the accused, the weapon used for committing the offence and the blood stained cap was recovered. The investigating officer, after expiry of the period of two days of police custody, again made a requisition for extension of police custody by two more days and that was granted. The investigating officer, even before the expiry of the extended period of police custody, produced accused Nos.1 and 2 before the Magistrate for recording confessional statement under Section 164 Cr.PC. Accordingly, on 29.10.2009, the Magistrate, after giving three hours time for reflection, recorded the confessional statement of accused Nos.1 and 2. 7. On the next day, accused Nos.3 and 4 were also produced and their confessional statements have been recorded under Section 164 by the Judicial Magistrate. The investigating officer, upon completion of investigation, has filed final report against the accused persons. The accused were charged for committing offences under Sections 120B/460/302 read with Section 34 IPC. 8. The prosecution relied on the following circumstances to prove the guilt of the accused: (i) The motive being matrimonial dispute between the accused No.1 and the deceased; (ii) Conspiracy between accused Nos.1 and 2 to engage accused Nos.3 and 4 to cause the murder of the deceased; (iii) The circumstance of confession made by accused Nos.3 and 4 while in police custody to PW25. The confessional statements made by accused Nos.1 to 4 before PW25 under Section 164 Cr.PC; (iv) Post mortem report reflects that death is homicidal; (v) Recovery of the weapons at the voluntary instance of accused Nos.3 and 4. 9. The trial Court, upon consideration of the evidence, has convicted accused Nos.1 to 4 under Sections 120B/460/302 read with Section 34 IPC. 10. Being aggrieved, accused Nos.2 to 4 have filed Criminal Appeal No.07/2008 and accused No.1 has filed Criminal Appeal No.08/2008. 11. During the course of hearing of the arguments, Mr. Mahajan, learned counsel for the appellants, relied upon the decision of the Division Bench of this Court in State of Assam Vs Anupam Das, 2007 (3) GLT 697, (2008) 1 GLR 681 to contend that the expression Magistrate used in Section 26 of the Evidence Act would mean a Judicial Magistrate and not an Executive Magistrate. Therefore, the circumstance of accused Nos.3 and 4 making any confession while in police custody to PW25 would not be an admissible confession in law and that cannot be used as an effective piece of evidence to prove the guilt of accused Nos.3 and 4 and also to avail the same as a corroboration to prove the guilt of accused Nos.1 and 2. The arguments were also canvassed about flouting of mandatory procedures while recording confessional statements under Section 164 by a Magistrate. 12. This Court, in Anupam Das (supra), in para 28 and 29 has made the following observations: “28. The Legislature was obviously of the view that any kind of confession by an accused while he is under the custody of police is not to be used as evidence against the accused at the time of the trial of any offence of which the accused is charged. A principle based on the experience of the lawmakers and the history of mankind. However, the Legislature recognized an exception to the rule contained under Sec 26, i. e., a confession made by an accused, who is in the custody of the police, to some person other than a police officer, if such a confession is made in the immediate presence of a Magistrate. However, the Legislature recognized an exception to the rule contained under Sec 26, i. e., a confession made by an accused, who is in the custody of the police, to some person other than a police officer, if such a confession is made in the immediate presence of a Magistrate. The only reason we can imagine is that having regard to the separation of powers between the Executive and the Judiciary and the requirement, belief and expectation that the Judiciary functions absolutely independent and uninfluenced by the authority of the Executives and, therefore, the presence of a Judicial Magistrate eliminates the possibility of confession being extracted from the accused by a police officer by methods which are not permissible in law. The presence of an independent Magistrate by itself is an assurance against the extraction of confession by legally impermissible methods. Even if any such impermissible influences are exercised on the accused before producing the accused before the Magistrate for recording the confession the Legislature expected that the accused would have the advantage to complain to the Magistrate that he was being compelled to make a confession and on such a complaint the Magistrate is expected to protect the accused from the tyranny of police. A very sacred duty cast on the Magistrates, which must always be kept in mind by the Judicial Magistrates who are required to record or to be present at the time of recording the confessional statement by an accused while he was in the custody of the police. In the final analysis, any kind of compelled testimony by an accused person would be squarely violative of Article 20 of sub-Article 3 of the Constitution. It is precisely for the above mentioned reasons the Parliament expressly stipulated certain duties under section 164 (2), Cr. PC on the Judicial Magistrate recording statement under section 164, Cr.PC. In the final analysis, any kind of compelled testimony by an accused person would be squarely violative of Article 20 of sub-Article 3 of the Constitution. It is precisely for the above mentioned reasons the Parliament expressly stipulated certain duties under section 164 (2), Cr. PC on the Judicial Magistrate recording statement under section 164, Cr.PC. It would be strange logic that while a statement recorded by a Judicial Magistrate under section 164 Cr.PC would be vitiated for non-compliance of the conditions stipulated under section 164 (2) and (4) of the Cr.PC and cannot, therefore, be used against the maker of the statement, but the Magistrate contemplated under section 26 of the Evidence Act need not even be a Judicial Magistrate and, therefore, is under no obligation to comply with the requirements of Sec 164 (2) and (4) of the Cr.PC, but the confession recorded by such a Magistrate can be proved against the accused for establishing his guilt. 29. From the foregoing discussion we have no alternative but to reach an irresistible conclusion that the expression "Magistrate" occurring in Section 26 of the Evidence Act can only mean a Judicial Magistrate but not an Executive Magistrate.” (Emphasis is added) 13. There appears to be some confusion in the observations made in para 28 and 29. In para 28, it is held that Magistrate under Section 26 need not even be a Judicial Magistrate but in para 29, it is held that Magistrate under Section 26 of the Evidence Act would only mean a Judicial Magistrate but not Executive Magistrate. 14. The provisions of Section 26 of the Evidence Act read as follows: “26. Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst the 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. Explanation.--In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882.” 15. The scheme of the Code of Criminal Procedure does not envisage participation of a Judicial Magistrate along with the police in the course of investigation. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882.” 15. The scheme of the Code of Criminal Procedure does not envisage participation of a Judicial Magistrate along with the police in the course of investigation. The role of the Magistrate during the course of investigation is specifically defined. Firstly, he has to receive the FIR submitted and make a note of the date and time of submission of the FIR. Secondly, the accused after arrest have to be produced before a Magistrate within 24 hours and the Magistrate has to deal with the accused so produced either by giving police remand or judicial custody or bail. Thirdly, the Magistrate has to deal with the extension of the period of judicial remand under Section 167 Cr.PC. Further, in case of summons trials, if investigation is not completed within a period of six months, the Magistrate can direct stoppage of the investigation. Fourthly, the Magistrate can record the confessional statement of the accused under Section 164 and statement of any witness under Section 164(5). After completion of investigation, when final report is filed, judicial trial has to take place. 16. The role of an Executive Magistrate in the Code of Criminal Procedure is also envisaged under Sections 174 and 176. In a case of suicide or unnatural death, the Executive Magistrate can conduct inquest and in specific cases, inquest have to be conducted mandatorily by the Executive Magistrate. An Executive Magistrate, under Section 174, can enquire into the cases of death under such circumstances as envisaged in the proviso. The Magistrate shall also have to conduct exhumation proceedings. 17. In the scheme of the Code of Criminal Procedure, an Executive Magistrate do co-ordinate with the police effectively in conducting investigation. However, the Judicial Magistrates only pass judicial orders like remand, bail, recording confession under Section 164 but, while doing so, they would not associate with the police in any manner in the course of investigation. While recording confessional statement under Section 164, the Magistrate has to take precaution to keep away the presence of police. However, the Judicial Magistrates only pass judicial orders like remand, bail, recording confession under Section 164 but, while doing so, they would not associate with the police in any manner in the course of investigation. While recording confessional statement under Section 164, the Magistrate has to take precaution to keep away the presence of police. In the context of said legal settings, the expression Magistrate used in Section 26 of the Evidence Act cannot be construed and understood as a Judicial Magistrate because Judicial Magistrate can never co-ordinate with the police in the course of interrogation or investigation for collecting evidence. 18. The Explanation in Section 26 helps in a way to understand the expression Magistrate appearing in Section 26. In the Explanation, there is a reference to village Head discharging Magisterial functions in the Presidency town or village Headman exercising powers of Magistrate under the Code of Criminal Procedure, 1882, is not deemed a Magistrate within the meaning of Section 26. Be that as it may, the Code of Criminal Procedure, 1882, is repealed. The Explanation part of Section 26 has become obsolete and irrelevant. Nonetheless, the intention of the legislature could be gathered from the said Explanation to mean that the expression Magistrate would mean an Executive Magistrate and not a Judicial Magistrate. That apart, under the Coroners Act, 1871, Coroners are appointed to conduct inquest with regard to the cause of death of a person and should draw up inquest reports. The Coroners appointed are not Judicial Magistrates under the Act. However, Section 20 of the Coroners Act declares that the Coroner appointed is deemed to be a Magistrate within the meaning of Section 26 of the Evidence Act, 1872. When a non-judicial person appointed as a Coroner is deemed to be a Magistrate within the meaning of Section 26 of the Evidence Act, it would not stand to reason that why an Executive Magistrate cannot be a Magistrate within the meaning of the expression Magistrate under Section 20 of the Evidence Act. On the other hand, the reasons stated above amply establish that Judicial Magistrate has to be excluded from the expression Magistrate appearing in Section 26. 19. On the other hand, the reasons stated above amply establish that Judicial Magistrate has to be excluded from the expression Magistrate appearing in Section 26. 19. We, under the circumstances, without hearing the appeals on merit, direct the Registry to place the matter before the Hon’ble Chief Justice to refer the following question to be decided by a larger Bench: Whether the expression Magistrate appearing in Section 26 of the Evidence Act would mean Judicial Magistrate or an Executive Magistrate?