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It has been argued on behalf of ,lie accused-appellant that confessional statement Ex. PH is not admissible in evidence. In this connection it is pointed out that Shri Mahajan was a second class magistrate and there is nothing on the record to indicate that he was specially empowered by the State Government to record a confession. The confession, it is further stated, was recorded during, the investigation of the case and as it was not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure, the same is inadmissible in evidence. In this contexts we find that according to sub-section (1) of section 164 of the Code of Criminal Procedure, any Presidency Magistrate, and Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the State Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this chapter (Chapter XIV of the Code) be under any other law for the time being in force or at any time afterwards before the commencement of the enquiry of trial. 'Mete is no material on the record to indicate that Shri Mahajan was a second class magistrate who had been specially empowered by the State Government to record a confession. Indeed, Mr. Khanna on behalf of the respondent State has argued the care on the assumption that Shri Mahajan was not specially empowered in this behalf. question as to whether a confession recorded during the investigation of a case by a second class magistrate not specially empowered was admissible in evidence was considered by this Court in the case of State of Uttar Pradesh v. Singhara Singh and Others.(1) It was held that the record of such a confession could not be put in evidence under sections 74 and 80 of the Indian Evidence Act. Reliance in this connection was placed upon the decision of the Judicial Committee in the case of Nazir Ahmed v. King Emperor. ( 2 ) Argument was further advanced in Singhara Singh's case that oral evidence of the magistrate to prove the confession was admissible. This contention was rejected by this Court in the following words :

Mr. Khanna on behalf of the State concedes that in view of the a decision, a confession recorded by a second class magistrate (1) [1964] 4 S.C.R. 485.

(2) L.R.63 I.A. 372.

not specially empowered during the investigation of a case is not admissible in evidence and no oral evidence in respect of that confession can also be led at the: trial. Mr. Khanna, however, contends that the restriction on the admissibility of the above evidence would operate only if the confession is recorded during the course of investigation. If, however. the confession is recorded at a stage prior to the commencement of investigation, there would be no bar to the admissibility of such a confession. Reference in this connection has been made to the case of In re Yondra Narasimha Murthy. (1) In that case an accused after committing murder went to a second class magistrate and made a statement that he had killed the deceased. The statement was recorded by the magistrate and was signed by the accused. It was held that the aforesaid statement was admissible in evidence. Dealing with the contention that there had not been compliance with sect-ion 164 of the Code of Criminal Procedure, the court observed that the person making the confession was not an accused at the time he went to the magistrate and no investigation of a crime registered against him was in progress at that time.