Sidheshwar Nath vs Emperor on 11 December, 1933
In the cage of Emperor v. Maruti Santu More A.I.R. 1920 Bom. 322, the two learned Judges took conflicting views on this point. Shah, J., held that a confession-made to a Magistrate during the course' of an investigation which was not reduced to writing was inadmissible in evidence and could not be proved by oral testimony. Hay ward, J., on the other hand held that an oral confession made to a Magistrate is prima facie relevant under Sections 21 and 26, Evidence Act, though it has to be proved by oral testimony and not by the production of any writing duly recorded by the Magistrate under Section 80, Evidence Act. Shah, J., took the view that the effect of Section 164 of the Code is that although a Magistrate has the power to refuse to record a confession, if he is not satisfied that it is voluntarily made, he has no such option where he is satisfied that it is voluntarily made. We do not think that the section should be read in this sense. It seems to us that the language of this section does not make it necessary for a Magistrate to record a confession even if he is of opinion that it is voluntarily made. Hay ward, J., took the view that the Magistrate was not bound to record a confession under Section 164 and therefore the oral confession made to him was not a matter required by law to be reduced to the form of a document and therefore it could be proved by oral evidence.