In observing the matter of State of Sikkim v Suren Rai, a full bench of Sikkim High Court observed that administration of oath on an accused while recording his confession is such an act which is prohibited, unlawful and illegal and not curable under Sec. 463 of the Criminal Procedure Code. Administration of Oath upon an accused while the confession is being recorded is a doubt on the voluntariness of the confession. Thus the provision of administration on oath under Sec. 164 CrpC is in violation of Art. 20(3) of the Constitution of India.
The bench led by Chief Justice Of Sikkim High Court, Satish K Agnihotri observed that the confessions which are recorded by administration of oath upon the accused indicate a suspicion on the voluntariness of the accused, when speaking the truth is absolutely necessary for both the witness and an accused.
Speaking on behalf of the bench, Justice Bhaskar Raj Pradhan said that when a Magistrate records the confession, it is mandatory to ensure that the accused is free from any kind of external pressure on him. But for such purpose, if the Magistrate makes the confession on an oath, it shall be wrong to say that the Magistrate complied with the statutory requirement of the law.
Referring various judgement by the Supreme Court and High Court and said under the provision of Sec. 164 and Sec. 281 CrPC, it is never said to record a confession on oath; while Sec. 4 of the Oaths Act 1969 clearly stated that oath shall not be administered to an accused and it would be unlawful to do so in a criminal proceeding, except when the accused is examined as a witness for the defence.
The bench said that there can be some cases in which the confessions are recorded completely under the provisions of Sec. 164 and Sec. 281 CrPC, and are totally voluntary, and recorded in the prescribed form for the witnesses and the confession of the accused was administered on oath. If the Court records a confession not administering on oath, and it is satisfied that it has served its purpose of voluntary confession of the accused, then such confession can be admitted in evidence.
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