Not only administration of oath on an accused while recording his confession is prohibited, unlawful and illegal but also that the said act cannot be cured under Section 463 CrPC. Administration of Oath upon an accused while recording confession has a direct bearing on the voluntariness of the confession and voluntariness is sacrosanct, the bench observed.
A full bench of Sikkim High Court, in State of Sikkim v Suren Rai, answering a reference to it by the division bench, has held that administering oath to an accused while recording his confessional statement under Section 164 CrPC violates Article 20 (3) of the Constitution of India.
The bench headed by Chief Justice Satish K Agnihotri further observed that the confessional statement recorded under the provision of Section 164 CrPC on oath is fatal and cannot be protected by the provision of Section 463 CrPC.
The bench observed that administration of oath upon an accused while recording confession has a direct bearing on the voluntariness of the confession and voluntariness is sacrosanct. “While it is true that the demand or requirement for speaking truth is absolute both by a witness after he is administered oath and by an accused while making a confession, administering oath upon an accused while recording his confession would lead to disastrous consequences."
Justice Bhaskar Raj Pradhan, speaking for the full bench, said: “When a Magistrate takes the chair to record the confession, the mandate of the law prescribes the Magistrate to ensure that the mind of the accused is free from any external pressure. While doing so, if the Magistrate goes on to administer oath upon the accused it cannot be said that the said Magistrate complied with the statutory requirement of the law to ensure the voluntariness of the confession.”
The court also referred to various judgments of Supreme Court and High Court and said under the scheme of Section 164 CrPC as well as Section 281 CrPC there is no provision for recording a confession on oath. Also that, Section 4 of the Oaths Act, 1969 makes it clear that oath shall not be administered to an accused and it would be unlawful to do so in a criminal proceeding unless the accused is examined as a witness for the defence.
With regard to question whether mere administering of oath to an accused while recording his confessional statement keeping in mind subsection 5 of Section 164 CrPC, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 CrPC and thus fatal, the bench said: “There could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 CrPC and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused. If the Court before which such document is tendered finds that it was so, Section 463 CrPC would be applicable and the Court shall take evidence of non-compliance of Section 164 and 281 CrPC to satisfy itself that in fact it was so and if satisfied about the said fact is also satisfied that the failure to record the otherwise voluntary confession was not in the proper form only and did not injure the accused the confession may be admitted in evidence.”