TADI GANIREDDY Vs. STATE

JUDGEMENT

(1.) In this petition, the 8th accused in C.C. No.1552 of 1953 on the file of the Stationary Sub-Magistrate, Parvatipuram seeks a revision of his conviction under section 379, Indian Penal Code, and sentence of three months rigorous imprisonment.

(2.) There was a theft of ghee tins from a goods train bound for Calcutta between Vizayanagaram and Palasa stations on the 7th of March, 1952. In connection with this crime, 11 persons were charge-sheeted before the Stationary Sub-Magistrate, Parvatipuram. Accused 2 to 4, members of the engine crew, were discharged by the Magistrate. After full trial, the ist accused, the guard of the train was acquitted. The petitioner, i.e. the 8th accused and four others were convicted under section 414 of the Indian Penal Code by the learned Magistrate and were awarded a sentence of three months. The Sub-Divisional Magistrate, Srikakulam altered the conviction into one under section 379, Indian Penal Code, but confirmed the sentence. Hence this petition is filed only by the 8th accused.

(3.) It was urged by the counsel for the petitioner that the main piece of evidence against the petitioner, which was the confession made by him, ought to have been rejected by the Courts below as the Magistrate that recorded it did not comply with all the formalities required of him under rule 85, Criminal Rules of Practice. It may be stated here that on 18th of June, 1952, the house of this petitioner was searched and an account book, a wrist watch, Rs. 336 in cash and a promissory note for Rs. 1,200 in his favour were recovered. He was produced before the Stationary Sub-Magistrate, Vizayanagaram on the next day for recording his confession. That day the Magistrate gave him time for reflection. Again, the next morning, he was taken before the Magistrate and certain questions were put to the accused that day and his confession was recorded (in Exhibit P-36). The complaint is that at that time a warning that he was not bound to make a confession, that if he does so it may be used as evidence against him and that it was not intended to take him as an approver, was not administered. It is argued that this renders the confession inadmissible. In support of this submission, Mr. Chennakesava Reddi called my attention to Venkata Reddi v. State, 1950 MWN. 896, where Subba Rao, J. (as he then was) and Panchapakesa Ayyar, J. have held that such an omission was fatal to the admissibility of the confession. In Karunthambi v. State, (1950) 1 M.L.J. 659, another Bench of the same High Court expressed the opinion that the Magistrate should satisfy himself that the confession that he was recording was a voluntary one, and that it should be done by putting questions required by Rule 85 of the Criminal Rules of Practice and it was not sufficient that this was done a day previous to that when the accused was produced for the first time before him ; the learned Judges also enunciated the view that the irregularity was not such as could be cured under section 533, Criminal Procedure Code. On the analogy of this decision, it is argued that though the Magistrate in the instant case has warned the accused that any statement made by him would be used against him and it was not intended to take him as an approver, this was not done before the confession was actually recorded and this has vitiated the confession.