Sting-operations legally valid: High Court

Upholding the legality of sting-operations, the Delhi High Court in a recently reported decision [Aniruddha Bahal v. State, (2010) 172 DLT 269] has declared that "it is built-in duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to remove corruption at all levels more so at higher levels of management of the State".

Justice Shiv Narayan Dhingra of the Delhi High Court, quashing the criminal charges for  having "conducted a sting operation to expose the practice prevalent amongst some of the Members of Parliament of taking money for asking question in the Parliament", opined as under;

6. The question that arises in these petitions is whether a citizen of this country has a right to conduct such sting operation to expose the corruption by using agent provocateurs and to bring to the knowledge of common man, corruption at high strata of society.

7. The Constitution [Part-IVA] lays down certain fundamental duties for the citizens of this country and Article 51A(b) provides that it is the duty of every citizen of India to cherish and follow the noble ideals which inspired our national struggle for freedom. I consider that one of the noble ideals of our national struggle for freedom was to have an independent and corruption free India. The other duties assigned to the citizen by the Constitution is to uphold and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity and integrity of this country cannot be protected and safeguarded if the corruption is not removed from this country. Another duty of every citizen is to defend the country and render national service when called upon to do so. I consider that a country cannot be defended only by taking a gun and going to border at the time of war. The country is to be defended day in and day out by being vigil and alert to the needs and requirements of the country and to bring forth the corruption at higher level. The duty under Article 51A(h) is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A(j) is to strive towards excellence in all spheres so that the national constantly rises to higher level of endeavour and achievements I consider that it is built-in duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to remove corruption at all levels more so at higher levels of management of the State.

8. This Court can take judicial notice of the fact that of widespread corruption on a large scale which was unheard of before was now a common place. In 1988 (2) SCC 602 (Antulay’s case), Justice Sabyasachi Mukharji observed as under:

“Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is common place today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters.”

These observations were made in 1988. Situation today is much worse.

9. I consider that it is a fundamental right of citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he finds it and to expose it if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people when time comes people are able to take action either by rejecting them as their representatives or by compelling the State by public awareness to take action against them.

10. This Court had considered as to whether a person making complaint regarding corruption can be considered as an accomplice or not in State v P.K. Jain and another 2007 Crl. L. J 4137 and observed as under:

10. I consider that observations of learned A.S.J brandishing the complainant in a trap case as accomplice amounts to discrediting the criminal justice system itself and portrays that the criminal justice system cannot respect the witnesses. This country is facing unprecedented rise in corruption. Situation has come to a stage that MCD officials, due to the corrupt practices, have turned the whole city into a slum by allowing all types of unauthorized construction, encroachment, squatting over public land. Engineers of local body who were supposed to check the unauthorized construction and encroachment of the public land, encroachment of roads, encroachment of pavements, turn a blind eye to all this, since their pockets are warmed and palms are greased. Similarly the observation of the trial Court that complainant and his son are interested witnesses and not trust worthy, is unfortunate. In case of a legitimate trap, the persons and police officials taking part in trap, in no sense can be said to be accomplice or un-credit worthy witnesses so that their evidence would require, under law to be corroborated by independent witness. The rule of corroboration is not a rule of law. It is only a rule of prudence and the sole purpose of this rule is to see that innocent persons are not unnecessarily made victim. The rule cannot be allowed to be a shield for corrupt. Moreover, the corroboration need not be by direct oral evidence and can be gathered from circumstantial evidence. The sole evidence of a complainant is sufficient to convict a person, if it is reliable, acceptable and trust worthy. There was a stage under our criminal justice system when the victim of rape was also considered as an accomplice. However, the law rectified itself over the time and gradually it was realized that it was unjust to consider and brand, a victim as an accomplice and seek corroboration of her testimony. Ultimately, Supreme Court laid down that sole testimony of a victim of rape, if trustworthy, was sufficient to convict the accused. In case of bribe giving and taking, normally people do not report the instances of bribe because it suits them to give bribe as they get their illegal works done. Only few persons come forward who either do not believe in giving bribe or who are on the right track or who are fed up by giving bribe. It requires great courage to report a matter to the Anti Corruption Branch in order to get a bribe taker caught red handed. In our judicial system complainant sometime faces more harassment than accused by repeatedly calling to police stations and then to court and when he stands in the witness box all kinds of allegations are made against him and the most unfortunate is that he is termed as an accomplice or an interested witness not worthy of trust. I fail to understand why a witness should not be interested in seeing that the criminal should be punished and the crime of corruption must be curbed. If the witness is interested in seeing that there should be corruption free society, why Court should disbelieve and discourage him. The witness who reported the demand of bribe so as to trap the culprits cannot be considered as an accomplice or non-trust worthy or interested witness. There is no reason for the court insisting upon an independent corroboration of the complainant's evidence in regard to the demanding of bribe before the trap was laid. When a given complainant first visits a public servant for doing or not doing some task for him, he does not go to him as a trap witness. He goes there in a natural way for a given task. To require him to take a witness with him at that stage would amount to attributing to the complainant a thought and foreknowledge of the fact that the accused would demand bribe. (Rajinder Kumar Sood Vs. State of Punjab, 1982 Cr. LJ 1338 (PandH). The necessity for court to search for independent witness in case of charges for corruption cannot be insisted upon. Such crimes are committed in secrecy and normally bribe are not taken openly (although there are bold public servants who do even that). In case of trap where accused has not been lured and goaded in some form to accept bribe but the accused himself has created a situation so that he gets bribe money or the accused indulges in the harassment of the complainant to compel the complainant to give bribe and the complainant reports the matter, the absence of independent witnesses to support the version of the complainant cannot be a ground to acquit the accused”.

11. It is argued by learned counsel for the State that the petitioners in this case in order to become witnesses should have reported the matter to CBI rather conducting their own operation. I need not emphasize that in cases of complaints against the persons, in powers how CBI and police acts. The fate of whistle blowers is being seen by the people of this country. They are either being harassed or being killed or roped in criminal cases. I have no doubt in my mind that if the information would have been given by the petitioners to the police or CBI, the respective MPs would have been given information by the police, before hand and would have been cautioned about the entire operation.

12. It is also argued by the counsel for the State that the petitioners did not act as a complainant in this case but they indulged into offering bribe and thereby committed offence under Prevention of Corruption Act. They can apply for becoming approver only under the said Act and they cannot be discharged. I consider that in order to expose corruption at higher level and to show to what extent the State managers are corrupt, acting as agent provocateurs does not amount to committing a crime. The intention of the person involved is to be seen and the intention in this case is clear from the fact that the petitioners after conducting this operation did not ask police to register a case against the MPs involved but gave information to people at large as to what was happening. The police did not seem to be interested in registration of an FIR even on coming to know of the corruption. If the police really had been interested, the police would have registered FIR on the very next day of airing of the tapes on TV channels. The police seem to have acted again as ‘his master’s voice’ of the persons in power, when it registered an FIR only against the middlemen and the petitioners and one or two other persons sparing large number of MPs whose names were figured out in the tapes.

13. The corruption in this country has now taken deep roots. Chanakaya in his famous work ‘Arthshastra’ advised and suggested that honesty of even judges should be periodically tested by the agent provocateurs. I consider that the duties prescribed by the Constitution of India for the citizens of this country do permit citizens to act as agent provocateurs to bring out and expose and uproot the corruption.

14. The prosecution in this case before filing charge-sheet was obliged to see as to what was the role and intention of the petitioners. The intention of the petitioners was made clear to the prosecution by airing of the tapes on TV channels and then by deposing truthfully before the two Committees of Parliament. The two committees of Parliament did not doubt the genuineness of the tapes or the intention of the petitioners. Under these circumstances, charging the petitioners with the offence under Prevention of Corruption Act would amount to travesty of justice and shall discourage the people of this country from performing their duties enjoined upon them by the Constitution of India as well as Criminal Procedure Code.

Have a look at the decision.

Limitations to Law against self-incrimination: Supreme Court delineates

On this blog we had earlier reported the decision of the Supreme Court in Selvi v. State of Karnataka wherein the Court had refused to allow narcotic analysis and use of truth-serum against the accused in according to the Court it violated the Right against self-incrimination available to all citizens in terms of Article 20(3) of the Constitution of India. In a recent decision, the Supreme Court however has delineated the limitations of this provision in much as it declared that this right is not available to a person to avoid answering questions in a matter where he has not been charged for an offence. 

Called upon to decide the question as to "whether protection under Article 20(3) of the Constitution is available to the appellant, who though not an accused in the police case in which he has been asked to depose as a witness but figures as an accused in the complaint case filed later on in relation to the same incident", the Supreme Court in Balasaheb v. State of Maharashtra declared the law in the following terms;

5. ... Protection under Article 20(3) of the Constitution does not extend to any kind of evidence but only to self-incriminating statements relating to the charges brought against an accused. In order to bring the testimony of an accused within the prohibition of constitutional protection, it must be of such character that by itself it tend to incriminate the accused. Appellant is not an accused in the Police case and in fact a witness, whose statement was recorded under Article 161 of the Criminal Procedure Code, and, therefore, not entitled to a blanket protection. However, in case of trial in the Police case answer to certain question if tends to incriminate the appellant he can seek protection at that stage. Whether answer to a question is incriminating or otherwise has to be considered at the time it is put. Reference in this connection can be made to a decision of this Court in the case of State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it has been held as follows:

“In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself.”

6. We are of the opinion that for invoking the constitutional right under Article 20(3) a formal accusation against the person claiming the protection must exist. Simply because the appellant figures as the accused in the complaint case, a blanket protection as claimed by him cannot be granted. Reference in this connection can be made to a decision of this Court in the case of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry and Another, AIR 1961 SC 29, wherein it has been held as follows:

“The effect of this decision thus appears to be that one of the essential conditions for invoking the constitutional guarantee enshrined in Article 20(3) is that a formal accusation relating to the commission of an offence, which would normally lead to his prosecution, must have been levelled against the party who is being compelled to give evidence against himself; and this conclusion, in our opinion, is fully consistent with the two other decisions of this Court to which we have already referred.

7. Referring to the decision of this Court in the case of Ramanlal Bhogilal Shah (supra), relied on by the appellant, the same in spite of supporting his case goes against him which would be evident from the following paragraph of the said judgment: 

“24. Although we hold that the petitioner is a person accused of an offence within the meaning of Article 20(3), the only protection that Article 20(3) gives to him is that he cannot be compelled to be a witness against himself. But this does not mean that he need not give information regarding matters which do not tend to incriminate him.

...

9. As observed earlier the appellant is not an accused in the Police case and in fact a witness whose statement was recorded during the course of investigation under Section 161 of the Code of Criminal Procedure. In the Police case he utmost can be asked to support the case of the prosecution but no question intented to incriminate him can be asked and in case it is done the protection under Article 20(3) of the Constitution shall spring into action. What question shall be put to this appellant when he appears as a witness is a matter of guess and on that basis he does not deserve the blanket protection under Article 20(3) of the Constitution. Even at the cost of the repetition we may observe that in the Police case when he appears and asked to answer question, the answer whereof tends to incriminate him, he can refuse to answer the same pleading protection under Article 20(3) of the Constitution. In such eventuality the Court would decide the same. Therefore, at this stage the blanket protection sought by the appellant is not fit to be granted. 

10. As regards the authority of this Court in the case of Nandini Satpathy (supra) the same has no bearing in the facts and circumstances of this case. There the question was as to whether the protection under Article 20(3) of the Constitution shall apply at the stage of Police interrogation and in answer thereto this Court held that it shall go back to the stage of Police interrogation and not in Court only. 

Have a look at the decision.

Delimitation of Constituencies not subject to challenge: Supreme Court

Holding that the manner in which delimitation of constituencies was carried out was not subject to challenge, the Supreme Court in its recent decision in J & K National Panthers Party v. Union of India declared that while "right to caste vote is a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right."

Dismissing the appeal of the political party against the decision of the High Court of Jammu and Kashmir, the Supreme Court inter alia observed as under;

17. In the judgment impugned herein, the High Court held that our Constitution never contemplated equality in the value of vote in view of the several other provisions of the Constitution. Supporting the judgment, the learned Solicitor General of India drew the attention of this Court to the various provisions of the Constitution of India namely, Articles 81, 82 and 170. The learned Solicitor General also referred to a decision of the Constitution Bench of this Court in R. C. Poudyal and others vs. Union of India and others, (1994) Supp 1 SCC 324, wherein this Court examined Article 170 (2) while dealing with the reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the State of Sikkim. One of the main questions which were raised in that case is as follows: 

“Whether Section 7(1-A) and Section 25-A of the Representation of the People Act, 1950 [as inserted by Election Laws (Extension to Sikkim) Act, 1976 and Representation of the People (Amendment) Act, 1980 respectively] and section 5-A (2) of the Representation of the People Act, 1951 [as inserted by the Representation of the People (Amendment) Act, 1980] providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias-Lepchas, are unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution?” (Para 85, page 373 of the report)

18. While deciding the said issue, this Court took into consideration the decisions of the Supreme Court of the United States in Charles W. Baker [supra], and B. A. Reynolds etc. vs. M. O. Sims - 377 US 533. 19. This Court relied on the opinion of Chief Justice Earl Warren in B.A. Reynolds (supra). At page 536 of the report the learned Chief Justice held as follows:-

“……We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.” 

20. The learned Chief Justice also relied on historical factors in support of his opinion and held:-

“History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.” (page 537 of the report)

21. After relying on the aforesaid judgments and noticing the position in Australian Constitution the majority opinion of this Court was rendered by Justice Venkatachaliah (as His Lordship then was). By a remarkably erudite formulation of principles, His Lordship held:- 

“It is true that the right to vote is central to the right of participation in the democratic process. However, there is less consensus amongst theorists on the propriety of judicial activism in the voting area. In India, the Delimitation Laws made under Article 327 of the Constitution of India, are immune from the judicial test of their validity and the process of allotment of seats and constituencies is not liable to be called in question in any court by virtue of Article 329 (a) of the Constitution.” (Para 119, page 383 of the report)

22. It was repeatedly held in Poudyal (supra) that “a perfectly arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and, secondly, that even if the impugned provisions make a departure from tolerance limits and the constitutionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evolution of Sikkim’s political institutions.”

23. In this case the same is true of the evolution of the political institutions of Jammu and Kashmir. This position has been again reiterated in para 126 in Poudyal’s case in the following words:

“An examination of the constitutional scheme would indicate that the concept of ‘one person one vote’ is in its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement. The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision…The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degree of political development in different parts of India, might supply the justification for even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy.” (Page 385 of the report)

24. Even Justice S.C. Agrawal, who partly dissented with the majority, agreed with the majority opinion on this aspect of the matter by holding as under:-

“The principle of one man one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of constituencies, it often happens that the population of one constituency differs from that of the other constituency and as a result although both the constituencies elect one member, the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population…”. (para 182, page 402 of the report)

25. On a perusal of the aforesaid principles as laid down by this Court in the Constitution Bench judgment, we are of the opinion that a right to caste vote is a valuable right but to demand any uniform value of one’s voting right through the process of delimitation, disregarding the statutory and constitutional dispensation based on historical reasons is not a justiciable right.

26. In the context of this question we must keep in mind the constitutional scheme in Part XV relating to election. Article 327 of the Constitution empowers the Parliament to make a law relating to delimitation of constituencies. The mandate of Article 329A is that any law relating to the delimitation of constituencies or the allotment of seats to such constituencies shall not be called in question in any Court. Identical provisions have been made in Section 142 of the Constitution of J & K. Section 142(a) is set out below:-

“142. Bar to interference by courts in electoral matters. – Notwithstanding anything in this constitution- (a) the validity of any law relating to the delimitation of territorial constituencies for the purpose of electing members of the Legislative Assembly or the allotment of seats to such constituencies, made or purporting to be made under section 141, shall not be called in question in any court;”

27. It is, therefore, clear that there is an express constitutional bar to any challenge being made to the delimitation law which is made under Constitutional provisions. Therefore, the substantial challenge of the appellant in this proceeding is not to be entertained by any Court, including this Court. The other aspect of the question is that the amendment to Section 47(3) of the Constitution of J & K violates Basic Structure of the Constitution. This challenge is also not based on a sound principle.

28. The judgment of this Court in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another, (1973) 4 SCC 225, which introduced the concept of Basic Structure in our constitutional jurisprudence is the spontaneous response of an activist Court after working with our Constitution for about 25 years. This Court felt that in the absence of such a stance by the constitutional Court there are clear tendencies that the tumultuous tides of democratic majoritarianism of our country may engulf the constitutional values of our nascent democracy. The judgment in Kesavananda Bharti (supra) is possibly an “auxiliary precaution against a possible tidal wave in the vast ocean of Indian democracy”.

29. But we must have a clear perception of what the Basic Structure is. It is hazardous to define what is the Basic Structure of the Constitution as what is basic does not remain static for all time to come. However, the basic features have been culled out from various pronouncements of this Court. In the 14th Edition of Shorter Constitution of India by D.D. Basu, these features have been noted as under:-

“(a) Supremacy of the Constitution. 

(a) Rule of law.

(b) The principle of Separation of Powers.

(c) The principles behind fundamental rights.

(d) The objectives specified in the Preamble to the Constitution.

(e) Judicial review; Art.32.; Arts.226/227.

(f) Federalism

(g) Secularism.

(h) The sovereign, democratic, republican structure.

(i) Freedom and dignity of the individual.

(j) Unity and integrity of the Nation.

(k) The principle of equality; not every feature of equality, but the quintessence of equal justice

(l) The rule of equality in public employment.

(m) The ‘essence’ of other Fundamental Rights in Part III.

(n) The concept of social and economic justice-to build a welfare State; part IV in toto.

(o) The balance between Fundamental Rights and Directive Principles.

(p) The Parliamentary system of government.

(q) The principle of free and fair elections.

(r) Limitations upon the amending power conferred by Art. 368.

(s) Independence of the judiciary; but within the four corners of the Constitution and not beyond that.

(t) Independent and efficient judicial system.

(u) Powers of the Supreme Court under Arts. 32, 136, 141, 142.

(v) Effective access to justice.” (see page 2236-2238)

30. Of these features ‘free and fair election’ in Clause (r) comes closest with the question discussed in this case.

31. This Court has already held relying on the Constitution Bench judgment in Poudyal (supra) that ensuring uniformity in the value of votes is not a constitutionally mandated imperative of free and fair election under our constitutional dispensation. Therefore, the argument on the question of Basic Structure is also without substance and is rejected.

Have a look at the decision.

Desertion of matrimonial relationship: The concept understood

Called upon to decide upon the validity of a decree of divorce given by a trial court in favour of the husband on grounds of desertion by the wife, the Delhi High Court in a recent decision [Vimal Kanta v. J.M. Kohli] revisited the law on the issue to affirm the decision of the trial court. The High Court referred to the decisions of the Supreme Court to hold that the concept had received extensive enunciation to be fairly settled in the context of the Indian law.

The High Court observed the position the law on this aspect in the following terms;

9. The appellant has filed the present appeal on the ground that the findings of the learned trial court with regard to desertion are perverse. The question as to what precisely constitutes “desertion” has been elaborately discussed in a catena of judgments of the Hon’ble Supreme Court as well as various High Courts and also in several English cases. “Desertion” in a sense means the intentional permanent abandonment of a spouse by the other, without consent and without reasonable cause. It is a settled legal position that desertion is not a physical withdrawal from a place, but from a state of things, from which one can easily draw a conclusion that it is not a physical separation alone but there is a complete withdrawal on the part of the deserting spouse to bring cohabitation permanently to an end between them. The learned trial court referred to the judgment of the Apex Court in Bipin Chander’s case (Supra) where the concept of desertion has been defined in the following words:

"For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.”

10. The above legal position was reiterated by the Apex Court in the Constitution Bench decision in Lachman UtamChand Kirpalani vs. Meena Alias Mota (1964) 4 SCR 331 and other subsequent judgments. Hence to establish desertion the two essential elements to be proved by  the petitioner are the factum of separation and animus deserendi. xxx

11. xxx It is a settled legal position that the factum of separation and animus deserendi are not to always co exist and that the animus can be inferred from the subsequent conduct of the deserting spouse. Here it would be pertinent to refer to the judgment of the Apex Court in the case of Bipin Chander (supra) where it was held that: 

“Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain facts which may not in another case be capable of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention, both anterior and subsequent to the actual acts of separation. If, in fact, there has been a separation the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus deserendi coincide in point of time.”

Therefore, though the parties separated on 24.12.1979 temporarily but the animus for bringing the cohabitation to end was later developed and can be inferred from the subsequent events in the present case as the appellant made no efforts for reconciliation or did any act to restore the wrecked relationship. Also in the case of Savitri Pandey vs. Prem Chandra Pandey (2002) 2 SCC 73 after referring to judgments in Bipin Chander and Lachman Utamchand, the Apex Court held that :

“8. "Desertion", for the purpose of seeking divorce under the Act, means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. In other words it is a total repudiation of the obligations of marriage. Desertion is not the withdrawal from a place but from a state of things. Desertion, therefore, means withdrawing from the matrimonial obligations, ie.., not permitting of allowing and facilitating the cohabitation between the parties. The proof desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. 

12. Clearly in the present case, the appellant is the deserting spouse and her intention can be inferred from her conduct. The very fact that the appellant did not make any efforts to restore the matrimonial relations would show that she did not want to live with the respondent husband after she separated from him temporarily and hence that lent an element of permanence to the temporary separation. xxx 

13. xxx Paradoxically, however both the events, that is opening of the bank account and attending the Kriya ceremony go on to show that the respondent was fulfilling his duties as a husband and was still willing to live with the appellant and their daughter but it is the appellant who did not respond to his efforts. Here it would be useful to refer to the judgment of the Apex Court in the case of Adhyatma Bhattar Alwar vs. Adhyatma Bhattar Sri Devi (2002) 1 SCC 308 where it was held that :

“The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately proceeding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include 'willful neglect' of the petitioning spouse by the respondent. It status that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage.

Hence, it would be clear from the law settled by the Apex Court that the explanation to Section 13 talks about willful neglect of the petitioner by the respondent in case of desertion. In the present case as well the appellant never bothered about the whereabouts of the respondent husband and hence such conduct of the appellant further strengthens the case of the respondent to claim divorce on the ground of desertion.

14. The court in the case of Adhyatma Bhattar (supra) further observed:

11. This Court in the case of Smt. Rohini Kumari v. Narendra Singh,: [1972]2SCR657 , while considering the case of judicial separation on the ground of desertion under Section 10(1)(a) of the Act read with the Explanation, held:

"...The two elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his or her intention to bring cohabitation to an end. The requirement that the deserting spouse must intend to bring cohabitation to an end must be understood to be subject to the qualification that if without just cause or excuse a man persists in doing things which he knows his wife probably will not tolerate and which no ordinary woman would tolerate and then she leaves, he has deserted her whatever his desire or intention may have been. The doctrine of "constructive desertion" is discussed at page 229. It is stated that desertion is not to be tested by merely ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home it may be that the spouse responsible for the driving out is guilty of desertion. There is no substantial difference between the case of a man who intends to cease cohabitation and leaves the wife and the case of a man who with the same intention compels his wife by his conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena alias Mota, this Court had occasion to consider the true meaning the ambit of Section 10(1)(a) of the Act read with the Explanation. Reference was made in the majority judgment to th e earlier decision in Bipin Chander Jaisinghbhai Shah v. Prabhawati, in which all the English decisions as also the statement contained in authoritative text books were considered. After referring to the two essential conditions, namely, the factum of physical separation and the animus deserendi which meant the intention to bring the cohabitation permanently to an end as also the two elements so far as the deserted spouse was concerned i.e.(1) the absence of consent and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the intention aforesaid, it was observed while examining how desertion might come to an end:

"In the first place, there must be conduct on the part of the deserted spouse which affords just and reasonable cause for the deserting spouse not to seek reconciliation and which absolves her from her continuing obligation to return to the matrimonial home. In this one has to be regard to the conduct of the deserted spouse. But there is one other matter which is also of equal importance, that  is, that the conduct of the deserted spouse should have had such an impact on the mind of the deserting spouse that in fact it causes her to continue to live apart and thus continue the desertion. But where however, on the facts it is clear that the conduct of the deserted spouse has had no such effect on the mind of the deserting spouse there is no rule of law that desertion terminates by reason of the conduct of the deserted spouse."

Hence in the face of the above settled law, it is evident that the conduct of the respondent in visiting the appellant at Munirka would not dislodge the fact of desertion. 

xxx

16. Before parting with the judgment, this court is constrained to observe that this is an unfortunate case where the parties have spent more than half of their lives in the alleys of the courts. Marriage is a union where the husband and wife spend their entire life building a bond of trust, love and friendship which would be their support during the last years of their lives. Having the other spouse by the side at the fag end, to cherish the moments of their times spent together, is an asset which clearly the parties were devoid of in the present case. The parties were involved in mud slinging at each other for so many years that they did not realize that they would not have the time to start their lives afresh. At this juncture of 80 years, the appellant wanted the decree of divorce to be set aside which made me inquisitive to know the reason behind it. Was it because that the appellant wanted to be a legally wedded wife till her last breath with the pride of the red vermillion adorning her or was it because she had her eyes on the enrichments that would ensue if she still has the status of the wife of the respondent or was it because there was nothing but pure vengeance to settle the score with the respondent that propelled the appellant to fight this arduous legal battle when practically her marital life turned catastrophic long back. However, the answer to this is still shrouded in mystery. In any case, the irresistible conclusion is that it is a dead and ominous marriage, and adjudicating it has led this court to have a grave concern over the time taken to decide matrimonial cases. This court would not shy away from observing that the years which should have been spent by the parties to start on a clean slate have been spent with the lawyers and in the court rooms. When parties approach the portals of law for dissolving their matrimony, it should be the endeavour of the courts to expeditiously decide these matters so that parties can get on with carving out their future plans. But more often the situation arises, like in the present case, that the grueling litigative voyage leaves the parties helpless and hapless. The vicious circle of litigation has contributed to the demise of their hopes, promises and dreams. This case has indeed left me with a bitter aftertaste.

Have a look at the decision.

Life imprisonment for Dara Singh correct: Supreme Court

Dismissing the appeal against the decision of the Orissa High Court, the Supreme Court in Rabindra Kumar Pal @ Dara Singh v. Republic of India declared that "in a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large". Thus the Supreme Court declined to reduce the punishment of life-imprisonment meted to Dara Singh by the High Court for the live-burning of the Australian Christian Missionary - Graham Stuart Staines and his two minor sons in an incident which rocked the nation in 1999.

On the aspect of religious freedom in the country, the Bench of Justice P. Sathasivam and Justice B.S. Chauhan observed as under;

46) In a country like ours where discrimination on the ground of caste or religion is a taboo, taking lives of persons belonging to another caste or religion is bound to have a dangerous and reactive effect on the society at large. It strikes at the very root of the orderly society which the founding fathers of our Constitution dreamt of. Our concept of secularism is that the State will have no religion. The State shall treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual right of religion, faith and worship.

47) The then President of India, Shri K R. Narayanan once said in his address that “Indian unity was based on a tradition of tolerance, which is at once a pragmatic concept for living together and a philosophical concept of finding truth and goodness in every religion“. We also conclude with the hope that Mahatma Gandhi’s vision of religion playing a positive role in bringing India’s numerous religion and communities into an integrated prosperous nation be realised by way of equal respect for all religions. It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.

We have also made an attempt to cull out the legal principles emanating from the observations of the Court. These are as under;

13) Now let us discuss the evidentiary value of photo identification and identifying the accused in the dock for the first time. Learned Addl. Solicitor General, in support of the prosecution case about the photo identification parade and dock identification, heavily relied on the decision of this Court in Manu Sharma (supra). It was argued in that case that PW 2 Shyan Munshi had left for Kolkata and thereafter, photo identification was got done when SI Sharad Kumar, PW 78 went to Kolkata to get the identification done by picking up from the photographs wherein he identified the accused Manu Sharma though he refused to sign the same. However, in the court, PW 2 Shyan Munshi refused to recognise him. In any case, the factum of photo identification by PW 2 as witnessed by the officer concerned is a relevant and an admissible piece of evidence. In para 254, this Court held: 

“Even a TIP before a Magistrate is otherwise hit by Section 162 of the Code. Therefore to say that a photo identification is hit by Section 162 is wrong. It is not a substantive piece of evidence. It is only by virtue of Section 9 of the Evidence Act that the same i.e. the act of identification becomes admissible in court. The logic behind TIP, which will include photo identification lies in the fact that it is only an aid to investigation, where an accused is not known to the witnesses, the IO conducts a TIP to ensure that he has got the right person as an accused. The practice is not borne out of procedure, but out of prudence. At best it can be brought under Section 8 of the Evidence Act, as evidence of conduct of a witness in photo identifying the accused in the presence of an IO or the Magistrate, during the course of an investigation.”

It was further held:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. 

It was further held that “the photo identification and TIP are only aides in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath”.

14) In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, AIR 1999 SC 2562, the following conclusion is relevant:

“12. In the present case prosecution does not say that they would rest with the identification made by Mr. Mkhatshwa when the photograph was shown to him. Prosecution has to examine him as a witness in the court and he has to identify the accused in the court. Then alone it would become substantive evidence. But that does not mean that at this stage the court is disabled from considering the prospect of such a witness correctly identifying the appellant during trial. In so considering the court can take into account the fact that during investigation the photograph of the appellant was shown to the witness and he identified that person as the one whom he saw at the relevant time” 

15) In Jana Yadav vs. State of Bihar, (2002) 7 SCC 295, para 38, the following conclusion is relevant: 

“Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. It is clear that identification of accused persons by witness in dock for the first time though permissible but cannot be given credence without further corroborative evidence. Though some of the witnesses identified some of the accused in the dock as mentioned above without corroborative evidence the dock identification alone cannot be treated as substantial evidence, though it is permissible.

Further, the Court also formulated the principles under Section 164 of the Code of Criminal Procedure which relate to recording of confessional statements in the following terms;

21) Before analyzing the confessional statements of various accused persons and its applicability and the procedure followed by the Magistrate in recording the statement, let us consider various decisions touching these aspects. 

22) In Bhagwan Singh and Ors. vs. State of M.P. (2003) 3 SCC 21, while considering these issues, it was held:

“27……The first precaution that a Judicial Magistrate is required to take is to prevent forcible extraction of confession by the prosecuting agency (see State of U.P. v. Singhara Singh, AIR 1964 SC 358). It was also held by this Court in the case of Shivappa v. State of Karnataka, (1995) 2 SCC 76  that the provisions of Section 164 CrPC must be complied with not only in form, but in essence. 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.

28. It has also been held that the Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. Unfortunately, in this case, the evidence of the Judicial Magistrate (PW 1) does not show that any such precaution was taken before recording the judicial confession.

29. The confession is also not recorded in questions-and-answers form which is the manner indicated in the criminal court rules.

30. It has been held that there was custody of the accused Pooran Singh with the police immediately preceding the making of the confession and it is sufficient to stamp the confession as involuntary and hence unreliable. A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted. It is not safe to rely on such judicial confession or even treat it as a corroborative piece of evidence in the case. When a judicial confession is found to be not voluntary and more so when it is retracted, in the absence of other reliable evidence, the conviction cannot be based on such retracted judicial confession. (See Shankaria v. State of Rajasthan, (1978) 3 SCC 435 (para 23)”

23) In Shivappa vs. State of Karnataka (1995) 2 SCC 76, while reiterating the same principle it was held:- 

“6. From the plain language of Section 164 CrPC and the rules and guidelines framed by the High Court regarding the recording of confessional statements of an accused under Section 164 CrPC, it is manifest that the said provisions emphasise 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 Section 164 CrPC. The failure of the Magistrate to put such questions from which he could ascertain the voluntary nature of 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 Section 164 CrPC and the rules framed by the High Court is imperative and its noncompliance goes to the root of the Magistrate’s 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 Section 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 the 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 Section 164 CrPC and the rules framed by the High Court for 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.

8. From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had been influenced by anyone to make the confession. PW 17 stated during his deposition in court: “I have not stated to the accused that I am a Magistrate” and further admitted: “I have not asked the accused as to whether the police have induced them (Chithavani) to give the statement.” The Magistrate, PW 17 also admitted that “at the time of recording the statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or police officials were present in the vicinity of the court”. From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in court it is further 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. Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector and the police station are situated in the same premises. No contemporaneous record has been placed on the record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986 and that he was out of the zone of influence by the police keeping in view the location of the sub-jail and the police station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-1986 before the Magistrate. That apart, neither on 21-7-1986 nor on 22-7-1986 did the Munsif Magistrate, PW 17 question the appellant as to why he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the confessional statement. 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 Section 164 CrPC was voluntary. The cryptic manner of holding the enquiry to ascertain the voluntary nature 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…..”

24) In Dagdu and Others vs. State of Maharashtra, (1977) 3 SCC 68, the following paragraph is relevant:-

“51. Learned Counsel appearing for the State is right that the failure to comply with Section 164(3) of the Criminal Procedure Code, 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 any one of the conditions operative under Sections 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. 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 Section 164 of the Code and with the instructions 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.”

25) Davendra Prasad Tiwari vs. State of U.P. (1978) 4 SCC 474, the following conclusion arrived at by this Court is relevant:-

“13….. It is also true that before a confessional statement made under Section 164 of the Code of Criminal Procedure can be acted upon, it must be shown to be voluntary and free from police influence and that the confessional statement made by the appellant in the instant case cannot be taken into account, as it suffers from serious infirmities in that (1) there is no contemporaneous record to show that the appellant was actually kept in jail as ordered on September 6, 1974 by Shri R.P. Singh, Judicial Magistrate, Gorakhpur, (2) Shri R.P. Singh who recorded the so called confessional statement of the appellant did not question him as to why he was making the confession and (3) there is also nothing in the statement of the said Magistrate to show that he told the appellant that he would not be remanded to the police lock-up even if he did not confess his guilt. It cannot also be gainsaid that the circumstantial evidence relied upon by the prosecution must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused.”

26) In Kalawati & Ors. vs. State of Himachal Pradesh, 1953 SCR 546 at 631, this Court held:

“…In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right.”

27) In State thr. Superintendent of Police, CBI/SIT vs. Nalini and Others (1999) 5 SCC 253 at 307, the following paragraphs are relevant which read as under:-

“96. What is the evidentiary value of a confession made by one accused as against another accused apart from Section 30 of the Evidence Act? While considering that aspect we have to bear in mind that any confession, when it is sought to be used against another, has certain inherent weaknesses. First is, it is the statement of a person who claims himself to be an offender, which means, it is the version of an accomplice. Second is, the truth of it cannot be tested by cross-examination. Third is, it is not an item of evidence given on oath. Fourth is, the confession was made in the absence of the co-accused against whom it is sought to be used.

97. It is well-nigh settled, due to the aforesaid weaknesses, that confession of a co-accused is a weak type of evidence. A confession can be used as a relevant evidence against its maker because Section 21 of the Evidence Act permits it under certain conditions. But there is no provision which enables a confession to be used as a relevant evidence against another person. It is only Section 30 of the Evidence Act which at least permits the court to consider such a confession as against another person under the conditions prescribed therein. If Section 30 was absent in the Evidence Act no confession could ever have been used for any purpose as against another co-accused until it is sanctioned by another statute. So, if Section 30 of the Evidence Act is also to be excluded by virtue of the non obstante clause contained in Section 15(1) of TADA, under what provision can a confession of one accused be used against another coaccused at all? It must be remembered that Section 15(1) of TADA does not say that a confession can be used against a co-accused. It only says that a confession would be admissible in a trial of not only the maker thereof but a coaccused, abettor or conspirator tried in the same case. 

98. Sir John Beaumont speaking for five Law Lords of the Privy Council in Bhuboni Sahu v. R., AIR 1949 PC 257 had made the following observations:

“Section 30 seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in Section 3, Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”

99. The above observations had since been treated as the approved and established position regarding confession visà- vis another co-accused. Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P., AIR 1952 SC 159 had reiterated the same principle after quoting the aforesaid observations. A Constitution Bench of this Court has followed it in Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184.”

28) In State of Maharashtra vs. Damu (2000) 6 SCC 269, the same principles had been reiterated which read as under:-

“19. We have considered the above reasons and the arguments addressed for and against them. We have realised that those reasons are ex facie fragile. Even otherwise, a Magistrate who proposed to record the confession has to ensure that the confession is free from police interference. Even if he was produced from police custody, the Magistrate was not to record the confession until the lapse of such time, as he thinks necessary to extricate his mind completely from fear of the police to have the confession in his own way by telling the Magistrate the true facts. 

25. We may make it clear that in Kashmira Singh this Court has rendered the ratio that confession cannot be made the foundation of conviction in the context of considering the utility of that confession as against a co-accused in view of Section 30 of the Evidence Act. Hence the observations in that decision cannot be misapplied to cases in which confession is considered as against its maker. The legal position concerning confession vis-à-vis the confessor himself has been well-nigh settled by this Court in Sarwan Singh Rattan Singh v. State of Punjab as under: 

“In law it is always open to the court to convict an accused on his confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances of each case.” 

This has been followed by this Court in Kehar Singh v. State (Delhi Admn.)”

29) The following principles emerge with regard to Section 164 Cr.P.C.:-

(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.

(ii) 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. 

(iii) A Magistrate should ask the accused as to why he wants  to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. 

(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court. 

(x) Confession of a co-accused is a weak type of evidence. 

(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.

Have a look at the decision.