- (1.) The allegations made in this Habeas Corpus Petition against the respondents are that on 7-8-1998, respondent Nos. 5 to 14 came in a jeep in the late night hour at about 1.00 a.m. with arms and forcibly kidnapped Mst. Chando daughter of Shri Ramkaran, by intruding in the petitioner's premises. It has further been contended in the petition that soon after the solemnisation of marriage of petitioner's daughter, there were dowry demands by her in-laws. Thereafter, the petitioner lodged a report with the police vide F.I.R. No. 248/1998 with Police Station. Nangal Rajasthan, District. Dausa, registered for offence under Sections 147, 366 and 498-A, I.P.C. that her daughter has unlawfully kidnapped by the accused respondents and is in their custody. The petitioner also filed a complaint before the learned ACJM Dausa, on 18-8-1998, against the accused respondent Nos. 5 to 14 for offence under Sections 147, 149, 363, 379, 354 and 498-A, I.P.C. The said complaint was forwarded by the learned Addl. Chief Judl. Magistrate, Dausa, to Police Station, Dausa, for investigation as per the requirement of Section 156(3), Cr. P.C. on the basis of which respondent No. 4, lodged first information report No. 248/1998, on 22-8-1998, as referred to above. It has also been brought to our notice during the course of hearing that pursuant to the investigation in the above matter, the statement of Mst. Chando, was recorded by the learned Magistrate. Dausa. before whom she was produced on 24-9-1998, under Section 164, Cr. P.C. In the said statement, she had deposed voluntarily that she had gone to join the society of her husband Hemraj, respondent No. 10, entirely of her consent and free will and there was no pressure or undue influence in this regard from anyone else.
(2.) In this matter the relevant aspect to be considered is as to whether the requirements of Section 164, Cr. P.C. were complied with by the learned Magistrate, Dausa, while recording the statement of Mst. Chando. Section 164, Cr. P.C. mandates as under:- Section 164 :- (1) "Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the enquiry or trial :- Provided that no confession shall be recorded by a Police Officer, on whom any power of Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a concession and that, if he does so, it may be used as evidence against him, and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If any time before the confession is recorded the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281, for recording the examination of an accused person and shall be signed by the person making the confession, and the Magistrate shall make a memorandum at the foot of such record to the following effect :- "I have explained to (name) that he is no bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and herein, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. Magistrate." (5) Any statement (other than a confession) made under sub-section (1), shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case, and the Magistrate shall have power to administer oath to the person whose statement is so, recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be enquired into or tried."
(3.) As per the requirement of Section 164 Cr. P.C. as referred to above, what is expected of a learned Magistrate, is to see that when the statement is recorded it should be the free and voluntary act of the person appearing before the Magistrate and if that person stated that he/she is willing to make the confession, the learned Magistrate, before recording any such confession or explanation of the person making it should administer warning to that person that it is not obligatory to make a confession and if in spite of this the statement is made by said person before the Court, it may be used as evidence against him provided it was recorded in presence and hearing of the person making the confessional statement as referred to above and admitted by him to be true and correct. ;