There can be no escaping from the irrefutable fact that the Jammu and Kashmir and Ladakh High Court in a recent, refreshing, robust, rational and remarkable judgment titled Rayees Ahmad Dar Vs Union Territory of J&K in Bail App No. 05/2022 and cited in 2022 LiveLaw (JKL) 151 that was reserved on May 9 and then finally pronounced on May 21, 2022 has minced just no words to hold unequivocally that the term ‘Magistrate’ appearing in Section 26 of the Evidence Act refers only to a Judicial Magistrate of first class or a Metropolitan Magistrate and no other class of Magistrates.

The Single Judge Bench comprising of Hon’ble Mr Justice Sanjay Dhar who authored this brief, brilliant, bold and balanced judgment observed that:
Giving it any other construction would defeat the provisions contained in Section 164 of the Cr.P.C., which provides for safeguards for ensuring recording of confessions of the accused in a free and fair environment. The Bench was hearing a plea in terms of which the petitioner had invoked the Court’s jurisdiction under Section 439 CrPC seeking bail for offences under Section 8/21, 29 of NDPS Act registered with Police Station, Bijbehara.

At the very outset, this extremely laudable, learned, landmark and latest judgment first and foremost puts forth in para 1 that:
The petitioner has invoked the jurisdiction of this Court under Section 439 of the Cr. P. C seeking bail in FIR No.50/2021 for offences under Section 8/21, 29 of NDPS Act registered with Police Station, Bijbehara.

To put things in perspective, the Bench then envisages in para 2 that:
As per the prosecution case, on 17.03.2021, Police Station, Bijbehara, received information that one person, namely, Sabzar Ahmad Dar has concealed some contraband substance in his residential house with a view to sell the same to the youth. On the basis of this information, FIR No.50 of 2021 was registered and investigation was set into motion. During investigation of the case, residential house of accused Sabzar Ahmad Dar was searched and from there 2600 bottles of Welcyrex containing Codeine Phosphate came to be recovered and seized. The samples of the recovered contraband were sealed and sent to FSL, Srinagar, for chemical examination. On 04.11.2021, accused Sabzar Ahmad Dar came to be arrested. During his custodial interrogation, he disclosed that the said contraband drug was kept in his house by accused Zahid Ahmad Dar and Mudasir Ahmad Dar.

Accused Zahid Ahmad Dar came to be arrested on 19.11.2021 and during his custodial interrogation, he made a disclosure statement that he along with Mudasir Ahmad Dar had concealed the contraband drugs in the residence of co-accused Sabzar Ahmad Dar. Accused Zahid Ahmad Dar made a further statement that the said contraband drugs were actually purchased by him from accused Rayees Ahmad Dar, the petitioner herein. The petitioner/accused Rayees Ahmad Dar was arrested on 20.11.2021. It appears that the petitioner herein had approached the Court of learned Principal Sessions Judge, Anantnag, for grant of bail but the application came to be dismissed by the said Court in terms of its order dated 01.02.2022.

Needless to say, the Bench then states in para 5 that:
I have heard learned counsel for the parties and perused the material on record including the Case Diary.

Be it noted, the Bench then observes in para 6 that:
A perusal of the Case Diary reveals that 2600 bottles of Welcyrex (Codeine Phosphate) have been recovered by the Investigating Agency from the house of co-accused Sabzar Ahmad Dar. The quantity recovered is, admittedly, a commercial quantity. The Case Diary further reveals that role of the petitioner in the alleged crime has surfaced when statement of co-accused Zahid Ahmad Dar was recorded who has stated that in March, 2021, he, along with co-accused Mudasir Ahmad Dar, purchased 50 boxes of contraband drugs from petitioner Rayees Ahmad Dar. He has further stated that a total of 6000 bottles (100 ml each) of Welcyrex were purchased @ Rs.150/ per bottle, whereafter these 6000 bottles of contraband drugs were kept in the house of co-accused Sabzar Ahmad Dar at two different places. He has further gone on to state that the petitioner Rayees Ahmad Dar is also involved in the illicit drug trade with him and the co-accused. He further stated that the petitioner Rayees Ahmad Dar has been paid an amount of Rs.9.00 lacs by them as cost of 6000 bottles whereas an amount of Rs.1.00 lac is still outstanding. Lastly, he has stated that the petitioner Rayees Ahmad Dar supplies the illicit drugs.

It must be borne in mind that the Bench then mentions in para 7 that:
Excepting the aforesaid statement of accused Zahid Ahmad Dar, there is no other material on record of the Case Diary which shows the involvement of the petitioner in the alleged crime. Although the investigating agency has, during the investigation of the case, obtained the statement of bank accounts of the accused yet there is nothing in these statements which reflects any financial transaction between petitioner herein and the co-accused.

As we see, the Bench then stipulates in para 8 that:
The question which falls for consideration is whether on the basis of a statement of a co-accused, the petitioner herein can be roped in the alleged crime. It is to be borne in mind that the statement of co-accused Zahid Ahmad Dar which is the only link between petitioner and the alleged crime has been recorded in the presence of Executive Magistrate, 1st Class, Bijbehara, while the said accused was in police custody. The statement besides bearing signature of accused Zahid Ahmad Dar also bears the signature of various police officials as witnesses and the signature of Executive Magistrate, 1st Class, Bijbehara.

It is worth noting that the Bench then enunciates in para 10 stating that, Before going into the legal contentions raised by the learned counsel for the parties, it would be apt to notice the undisputed facts which have emerged from a perusal of the Case Diary. As already noted, there is no material on record against the petitioner except the confessional statement of co-accused Zahid Ahmad Dar which has been recorded while he was in custody in presence of police officials and Executive Magistrate, 1st Class. Section 25 of the Evidence Act provides that no confession made to a police officer can be proved against a person accused of any offence, meaning thereby that confession made before a police official is inadmissible in evidence. Section 26 of the said Act carves out an exception to the provisions contained in Section 25 of the Act. It reads as under:

26. Confession by accused while in custody of police not to be proved against him.:
 No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation: In this section Magistrate does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure.

A bare perusal of the foresaid provision reveals that a confession made by a person while in custody of a police officer is admissible if it has been made in the immediate presence of a Magistrate.

While dwelling on Section 3 of CrPC in para 15, the Bench then most brilliantly points out in para 16 that:
A bare perusal of the aforesaid provision of the Code reveals that without qualifying words, reference to a Magistrate unless context otherwise requires, means reference to a Judicial Magistrate outside a metropolitan area or to a Metropolitan Magistrate in relation to a metropolitan area. Thus, unless it is specifically provided in any provisions of the Code that expression ‘Magistrate’ connotes anything contrary, the same has to be construed as Judicial Magistrate in an area outside metropolitan area. Sub-section (3) of Section 3 provides that in any enactment passed before the commencement of the Code, reference to ‘Magistrate’ of the first class in an area which is situated outside the metropolitan area has to be construed as reference to a Magistrate of first Class and it has to be construed as reference to a Metropolitan Magistrate in a metropolitan area.

More to the point, the Bench then states in para 17 that:
Sub-section (4) of the aforesaid provision makes things more clear by providing that under any law other than the Cr. P. C, if functions exercisable by the Magistrate relate to matters which involve the appreciation or sifting of evidence or formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, the same shall be exercisable by a Judicial Magistrate whereas if the functions are administrative or executive in nature, such as granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, the same shall be exercisable by an Executive Magistrate.

Briefly stated, it would be worthwhile to note that the Bench then propounds in para 18 that:
In the instant case, we are dealing with a situation where confessional statement of an accused is under consideration. The confessional statement of an accused recorded during investigation or inquiry or trial of a case exposes such person to punishment, penalty or detention in custody and has the effect of sending him to trial before the court. Therefore, unless the context otherwise suggests, the expression ‘Magistrate’ appearing in any law other than the Code of Criminal Procedure has to be construed as Judicial Magistrate.

This view is further strengthened from the fact that the provisions contained in Section 164 of the Cr. P. C, which deals with the recording of confessions and statements, clearly provides that it is only a Metropolitan Magistrate or the Judicial Magistrate who is empowered to record the confession or statement made in the course of an investigation or even afterwards before the commencement of the inquiry or trial.

Most remarkably, the Bench then holds in para 19 that:
From a perusal of the aforesaid provision, it is clear that it is only a Judicial Magistrate of first class or a Metropolitan Magistrate who is empowered to record confessions. These confessions are to be recorded in the manner provided in the aforesaid provision.

The said provision, inter alia, seeks to protect an accused from making a confession under duress, undue influence of police as also from being recorded under the influence, threat or promise from a person in authority. It takes into its embrace the right of an accused flowing from Article 20(3) of the Constitution of India as also Article 21 thereof. The provision provides the safeguards for ensuring that confession of an accused is recorded without any coercion and pressure.

Thus, the expression ‘Magistrate’ appearing in Section 26 of the Evidence Act refers only and only to a Judicial Magistrate of first class or a Metropolitan Magistrate. Any other interpretation, if given to the said expression, would defeat the aim and object of recording a confession of an accused in an atmosphere free of coercion, pressure or undue influence of the police/ investigating agency.

Most significantly, what forms the cornerstone of this notable judgment is then spelt out in para 24 wherein it is unambiguously held that:
Having held that the confession recorded before a Magistrate other than a Judicial Magistrate/Metropolitan Magistrate is not admissible in evidence, it becomes clear that the statement of the co-accused Zahid Ahmad Dar recorded in the presence of Executive Magistrate while he was in police custody and in presence of police officials, is clearly inadmissible in evidence.

There is no other material on record of the Case Diary to connect the petitioner with the alleged crime. Even though the quantity of contraband drugs recovered by the investigating agency from the co-accused falls under the category of commercial quantity, yet, prima facie, there is no admissible evidence on record to connect the petitioner to the recovery of the aforesaid quantity of contraband drug or to suggest that he is a party to the conspiracy.

For sake of clarity, the Bench then hastens to add in para 25 that:
Section 37 of the NDPS Act is not a complete bar to the grant of bail in a case where the recovery of contraband drug falls under the parameters of commercial quantity. It only provides that bail in such cases cannot be granted unless the prosecutor has been given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

Quite ostensibly, the Bench then expounds in para 26 holding that:
In the instant case, as already noted, prima facie, there appears to be no material on record of the Case Diary that can be converted into legal evidence to connect the petitioner with the alleged crime. The respondents have not placed on record anything to show that the petitioner, if enlarged on bail, would commit similar offences. Thus, the petitioner has been able to carve out a case for grant of bail in his favour.

Adding more to it, the Bench then stipulates in para 27 stating that:
For the foregoing reasons, the application is allowed and the petitioner is admitted to bail subject to the following conditions:

1. That he shall furnish personal bond in the amount of Rs.1.00 lac (rupees on lac) with one surety of the like amount to the satisfaction of the Investigating Officer;
2. That he shall appear before the Investigating Officer, as and when required.
3. That he shall not leave the territorial limits of Union Territory of J&K without prior permission of the Investigating Officer;
4. That he shall not tamper with the prosecution evidence;
5. That he shall not indulge in similar activities as are subject matter of the instant case;

For clarity, the Bench then further adds in para 28 that:
It is made clear that if during investigation of the case any material which is admissible in evidence is assembled by the investigating agency implicating the petitioner in the alleged crime, the investigating agency shall be free to approach this Court for cancellation/revocation of the bail granted in favour of the petitioner.

Furthermore, the Bench then directs in para 29 that:
The bail application shall stand disposed of.

Finally, the Bench then concludes by holding in para 30 that:
The Case Diary be returned to the learned counsel for the respondent.

In summation, the Jammu and Kashmir and Ladakh High Court has thus made it pretty clear that for recording confession in police custody, the Magistrate under Section 26 of the Evidence Act does not include the Executive Magistrate. It cited in para 20 the case of a Full Bench of the Gauhati High Court in the case of Kartik Chakraborty and Ors. vs. State of Assam, (2018) 2 Gauhati Law Reports, in para 21 the case of Zwinglee Ariel vs. State of M. P., AIR 1954 SC 15 and in para 22 the case of State of Uttar Pradesh vs. Singhara Singh and Ors, AIR 1964 SC 358 where a three Judge Bench of the Apex Court considered this aspect of the matter.

We thus see that the Jammu and Kashmir and Ladakh High Court ably substantiates its judgment by citing most relevant case laws and also ably assisted by most pragmatic reasoning as discussed hereinabove! There is not even a single reason to differ with what has been held so very briefly, brilliantly and boldly in most balanced manner! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh