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25. Learned counsel for the appellant attacks the validity of Ex.P4 , mainly on two grounds namely; (1) that Ex.P4 would not have come into existence as indicated in the document, and it must be the handy work of the investigating officer, (2) that the extra judicial confession is hit by not only under Rule 72 of the Criminal Rules of Practice, but also under section 162 Cr.P.C. In this case F.I.R. was registered on 29.9.91 itself, thereby indicating investigation commenced on the same day, and it is the case of the prosecution also. The Criminal Rules of Practice are framed by the High Court, in exercise of the powers conferred by Article 227 of the Constitution of India, with the previous approval of the Governor and therefore, generally it should have the enforcing effect. Rule 78 says "Village Magistrates are absolutely prohibited from reducing to writing any confession or statement whatever made by an accused person after the police investigation has begun." Thus it is seen, a prohibition is imposed upon the Village Magistrates from recording any statement that too, confession also. Admittedly in this case as spoken by PW7 the extra judicial confession was recorded on 30.9.91 at about 6 am, that is, after the investigation has begun. Therefore, Ex.P4 is hit by Rule 72. On this basis, the learned counsel for the appellant submits, that no reliance could be placed upon Ex.P4. On the other hand, learned Government Advocate relying upon a decision in Sakthivel v. State {(2003) M.L.J. (Crl.)

29. The main thrust of the learned counsel for the appellant is, that even assuming that the Village Administrative Officers are not totally barred from recording an extra judicial confession by Rule 72, if the statements are recorded, after the investigation has begun, then it should be hit by section 162 Cr.P.C. Section 162 Cr.P.C. prohibits, totally the use of any such statements or any record thereof, whether any police diary or otherwise or any part of such statement or record to be used for any purpose save as provided under the proviso. Certainly Ex.P4 would not come under the proviso to section 162. It is the specific submission of the learned cou nsel for the appellant that Ex.P4 comes within the four walls of section 162 Cr.P.C. and for that purpose, much reliance is placed upon the decision in Kali Ram' s case cited supra {(1973) 2 SCC 808}. In the case involved in the above decision, a letter containing narration of facts relating to the crime addressed to a police officer, during the course of investigation was sought to be relied upon, to prove the guilt of the accused, where it seems he had confessed the crime. The letter was not obtained by the police, whereas it seems it was addressed from elsewhere to police officer but during the course of investigation. The Apex Court considering the effect of Section 162 Cr.P.C. laid down the law, which reads thus:

"The prohibition contained in Section 162 related to all statements made during the course of an investigation. The letter which was addressed by 'S' to Station House Officer was in the nature of narration of what, according to 'S' he had been told by the accused. Such a letter would constitute statement for the purpose of section 162, Cr.P.C. The prohibition relating to the use of statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in Section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in Section 162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement."

According to the submission of the learned senior counsel for the appellant, the same analogy is applicable to the statement recorded by the Village Administrative Officer also, since Ex.P4 was recorded during the course of investigation. This view is to be taken, in order to prevent the investigating agency to circumvent the prohibition contained in section 162 Cr.P.C. In this view, though Ex.P4 was not recorded by the police officer, since the extra judicial confession is said to have been recorded during the course of investigation, we are of the opinion, Ex.P4 is hit by section 162 Cr.P.C. and in this view it is inadmissible in evidence which should follow, this could not be the strong piece of evidence, to inflict a conviction or to sustain the same.