The New Nation - Internet Edition

K.M. Mukta

Introduction: “Who knows the truth better than the person who did it?” Confession through creation of inner sanction, modern technological or any other device devoid of undue influence, torture is a milestone for the criminal administration of justice. But in the zigzag path of evolution of confession, we discover confession has retreated from its spirit and philosophy. Nowadays, it is considered as the surname of torture and tyranny-driven extraction which is false and the third degree method of police made the accused to do so due to save his life for the time being in maximum cases. But in an independent country, this kind of illegal confession through inhumane so-called third degree method of police violates every norm of human rights and constitution.

Outline of confession: The term “Confession” has not been expressly defined in any statute; this finds mentioned in the Code of Criminal Procedure and the Evidence Act. According to the dictionary meaning confession is “an acknowledgement of offence”. As defined, in a very wider sense, by Stephen in his Digest of the Law of Evidence, confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime. Confession is a statement which is a direct acknowledgement of guilt. M.H. Rahman J. in State Vs. Lalu Miah and another, 39 DLR (AD) 117 stated that “A confession must either admit in terms of the offence, or at any rate substantially all the facts which constitute the offence”.

Laws and principles governing recording of confessional statement:

Sections 164 and 364 of the Code of Criminal Procedure provide how the confession should be recorded and signed. Sections 24 to 30 of the Evidence Act deal with admissibility and inadmissibility of confessional statement. Also in a plethora of judicial pronouncements the principles have been laid down for governing the recording of confessional statement, its admissibility and use as evidence and the norms of appreciation as to its reliability and forming the basis of conviction.

Legal requirements for recording the confessional statement: Recording of confessional statement is a matter not only of form but also substance. The recording Magistrate should make his real endeavour for ascertaining that the accused is making the statement voluntarily and should record the confessional statement by strictly following the provisions of sections 164 and 364 Cr. P.C.

Section 164(2) of the Code provides- “Such statement shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion best fitted for the circumstances of the case. Such confessions hall be recorded and signed in the manner provided in section 364tt .” Sub section (3) of the same section provides- “A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record”.

The requirements of section 364 of the Code of Criminal Procedure, amongst others, are-

The whole of the examination of an accused, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined, or, if that is not practicable, in the language of the court or in English.

Such record shall be shown or read over to the confessing accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands.

The accused shall be at liberty to explain or add to his answers.

When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate.

In cases in which the examination of the accused is not recorded by the Magistrate himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hard, and shall be annexed to the record. If the Magistrate or Judge is unable to make a memorandum as above require, he shall record the reason of such inability.

According to the letters and spirit of sections 164 and 364 of the Code of Criminal Procedure, section 24 of the Evidence Act, and according to a number of judicial pronouncements in the leading cases the following, amongst others, may be identified as the duties of the recording Magistrate:

The recording Magistrate should disclose his identity before examining the accused brought before him. He must disclose that he is a Magistrate and not Police Officer.

The Magistrate should make real endeavor to place the accused person at ease, dispel all the fear, inducement and hope from accused’s mind enabling him to make the confession of his own volition, absolutely free and voluntary to the best dictates of his own inner conscience. The magistrate should assure that the accused would not be remanded to the police custody. A held in State Vs. Abul Hashem, 3 MLR (HCD) 30, when the accused is produced from the police custody, it is the duty of the Magistrate to remove fear of police torture from the mind of the accused. When the accused was produced from police custody and again he was sent back to the police Custody after recording the confessional statement, conviction basing upon such confession was held to have suffered from legal infirmity. But, according to the decision in [ Dipok Kumar Sarkar V. State, 8 BLD (AD) 109] there is no legal requirement to inform the accused that he would not be remanded to police custody even if he does not make any confession. But of course, if the Magistrate has any reason to believe that the accused is under apprehension of police, he may assure him so. Therefore, for mere omission in informing the accused that he would not be remanded to police, the confessional statement will not take away the voluntary character of the statement.

A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him.

The Magistrate should record the questions put to and answers obtained from the accused person. The following (Phraseology of questions may be different) may be some of the relevant questions:-

Have you understood that you are not bound to make confessional statement?

Have you understood that if you make confession it can be used against you as incriminating evidence?

Why are you making the confession?

Has anybody threatened or induced you or given you any hope or compelled you in any manner for making the confessional statement?

Are you willing to make the confessional statement voluntarily?

If you are willing to make the confession, will you make the true statement?

The phraseology of questions is not material. Important is whether by those questions, the accused person understands the consequence of his confessional statement and he is made conscious of the fact that he is not bound to make confession and if he makes such confession it can be used as evidence against him. The object of putting questions and obtaining answers is to be satisfied that the confession is not a result of inducement, threat, hope, promise or torture.

The above questions and answers recorded in the prescribed Forms may be one of the important considerations for the courts in arriving at the conclusion as to the voluntary nature or otherwise of the confession.

The Magistrate should record the particulars as to when and wherefrom the accused was arrested and wherefrom the accused was placed before him.

The Magistrate should ask the accused persons whether he has been mentally or physically tortured while in police custody and record the answer. The Magistrate should make a note on whether or not any mark of physical torture is found on any part of the body of the accused.

After making examination as above the accused should be given a reasonable time for reflection to ponder over the matter and during that time the accused should be placed under care of a person who is under control of the Magistrate. At that place no police should be allowed to stay. (Reasonable time is at least 3 hours).

After the time given for reflection is over, the Magistrate should again ask the accused whether he is willing to make the confession voluntarily and if the answer is yes, the accused should be warned again that his confessional statement may be used against him as incriminating evidence.

Inside the room or within sight no police officer should be allowed to remain present and all the police officers should be turned out from that room.

No oath should be administered to the accused before recording the confessional statement.

Confession should be recorded in the words of the accused, but it is not always correct to say that confession not recorded exactly in the words of the accused is inadmissible [Nausher Ali Sarder and others Vs. State, 39 DLR (AD) 194-paragraph-9].

The recorded statement should be read out and explained to the confessing accused.

When the accused confirms that the confessional statement has been recorded correctly, it shall be signed by the accused and by the Magistrate.

The Magistrate must make a memorandum at the foot of the recorded statement to the following effect-

“I have explained to (name) that he is not 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 hearing, 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” [Section 164(3), Cr.P.C.].

Making of the above memorandum is mandatory; its non compliance affects voluntary character of the confession.

Again it is unavoidable duty of the magistrate that he shall certify under his own hand that the examination was taken in his presence and hearing and the record contains a full and true account of the statement made by the accused [Section 364(2), Cr.P.C.].

Other General Guidelines: The Form (M-84) used for recording the confessional statement by the Magistrate itself is a small guiding booklet. The left margin of the form contains certain instructions. The Form states, inter alia: “Magistrates should clearly understand the great importance of giving their closest attention to the procedure to be followed, from first to last, in the recording of confessions. This procedure should be followed without haste, with care and deliberation, it being understood that this duty is not a distasteful and minor, appendage or addition to their normal functions, but one which is of consequence to the confessing accused, his co-accused and court responsible for the administration of criminal justice. A confession which is recorded perfunctorily and hastily is a source of embarrassment to the trial court, the prosecution and the defence.” Along with the above guidelines all other guidelines given in the prescribed Form should be carefully gone through by the recording Magistrate and thereafter the following duties are to be performed:

The Magistrate should fill in all the blanks in the Form ; He should put his signature at all the places shown in the Form;

Under paragraph 3 of the Form the name of the Peon and the place where the accused is kept to wait should be specifically mentioned;

The name, address and particulars of the accused as required under Column 7 of the Form must be specifically written;

Where and at what time the accused is forwarded should be mentioned under Column 10 of the Form;

As required under Column 9 of the Form, if during recording of the statement it appears to the Magistrate that the statement made or about to be made is not voluntary, forthwith the Magistrate shall stop recording of confession stating reasons thereof; and

Under Column 8 of the Form the Magistrate should give reasoning, in brief, why he has believed that the statement made before him is voluntary;

The Magistrate should specifically note in the Form whether there is any mark of physical torture on any part of the body of the accused. Also the allegation of the accused of mental or physical torture, it must be noted in the Form.

When the accused is not given any time for reflection, no question was put to him to ascertain whether he was prepared to make the statement of his own free will, it cannot be said that the Magistrate has made any genuine effort to find out the real character of the confession. If the Magistrate does not fill up the important paragraphs of the Form, the manner of recoding the confession is not acceptable. Recording of the confession in such manner casts serious doubt as to the voluntary character of the confessional statement [ Md. Azad Shaikh Vs. State 1988 BLD (HCD) 505].

Impediments: There are multidimensional causes behind ramshackling /illegal reality of confession. Such as-

Torture as panacea of investigation and for credit of police without investigation.

For credit of police without challenging and troublesome investigation in other manoeuvre.

Ignorance / lackadaisical reality of the magistrate.

Lack of profound training in this regard is also a tremendous problem.

The complexity and nuances of Form (M-84) is itself a problem as even many first class magistrates do not understand how to work with it.

Lack of commitment and accountability to justice seekers

Sometimes pressure from vested group

Lack of right-based approach

Soaring ignorance about constitutional rights /human rights

There is no guideline nor is there any practice to separately dispose of the retraction upon any inquiry into the allegation of torture for compelling an accused to make the confessional statement.

Probable recommendations: To alleviate though expected to eliminate, the devastating denial of justice through extraction of confession the following areas should be pondered over and taken dynamic initiatives.

There should be launched a torture-free criminal administration of justice system. In this regard the guidelines of BLAST vs. Bangladesh should be mulled over and materialized on the basis of priority. At remand or just after remand, confession should not be taken. The aforesaid guideline for remand should be followed without any exception.

Creation of independent investing wing of police.

The concerned magistrates should be properly trained and equipped in this regard.

Easily understandable Form for recording confession should be introduced and it should be inevitably written in Bengali language.

Magistrates should be justice oriented with the accountability to self sanction, to the people through constitution rather whims.

There should be explicit framework to dispose of retraction petition.

Zinat Ara and Sheikh Abdul Awal, JJ

MIS. F.R. GARMENTS (PVT.) LTD.

v.

ARTHA RIN ADALAT NO.1, DHAKA AND OTHERS·

An application under Article 102 of the Constitution does· not lie against the judgment and decree of the Artha Rin Adalat since there being specific provision in the statute for filing appeal against the judgment and decree passed by the Artha Rin Adalat.

Section 28(1) of the Artha Rin Adalat Ain, 2003 provides that the execution case shall be filed within 180 days. Section 48 of the Ain, 2003 provides that in order for counting the days under the provision of this Ain, only the working days of the Court shall be counted. Although, In this case we find from the chart for calculation of time as given in the writ petition that the petitioner did not minus so far it relates to non working days of the Court the execution case is not barred by limitation. If a suit is a mortgage suit and brought for foreclosure, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated final decrees. (Para-14 & 18)

Mr. Md. Asrarul Hoque, Advocate, For the Petitioner

Mr. Akram H-Chowdhury, Advocate, For the Added Respondent No. 3

Judgment delivered on April 23,2008.

Judgment

Sheikh Abdul Awal, J: In this Rule Nisi the respondents have been called upon to show cause as to why the impugned order dated 1.10.2006 (Annexure-E) passed by respondent No. 1 rejecting the application for dismissing the Money Execution Case No. 658 of 2005 arising out of judgment and decree dated 3.3.2005 passed by the Artha Rin Adalat No. 1, Dhaka in Artha Rin Suit No. 914 of 2004 should not be declared to have been passed without lawful authority and is of no legal effect.

2. Material facts leading to this Rule are that the respondent No.2, Agrani Bank as plaintiff instituted Artha Rin Suit No. 914 of 2004 in the Artha Rin Adalat No.1, Dhaka impleading the· petitioner and others for realisation of its outstanding dues amounting to Taka 2,20,33,779/- as stood on 31.7.2004. The defendant did not turn to contest the suit in which the suit was decreed ex parte vide judgment and decree dated 3.3.2005 (preliminary decree was signed on 9.3.20(5).

3. In usual course the decree-holder Bank (respondent No. 2) put the decree into execution by filing Artha-Jari Case No. 658 of 2005.

4. The defendant-petitioner (judgment debtor) entered appearance in the said ArthaJari case by filing power and on 17.9.2006 filed an application for dismissal of the Money Execution Case on the ground that the execution case is barred by limitation as per provision of sections 28(1) and 29 of the Ain, 2003 and also on the ground the decree is hit by section 47 of the Ain, 2003. The Adalat on considering the materials on record rejected the said application by his order dated 1.10.2006.

5. Being aggrieved by the aforesaid order dated 1.10.2006 (Annexure-E to· the writ petition) the petitioner approached this Court and obtained the present Rule.

6. Mr. Md. Asrarul Hoque, the learned Advocate appearing for the petitioner submits that execution case is barred by limitation, inasmuch as in view of the provision of sub-section (1) of section 28 of the Artha Rin Adalat Ain, 2003 (hereinafter called the Ain, 2003) the execution case has to be filed within 180 days but in the present case tlie exparte judgment and decree was passed on 3.3.2005 (decree signed on 9.3.2005) and the Money Execution case was filed on 9.11.2005 which is beyond 180 days. He next submits that the Artha Rin Suit No. 914 of 2004 was also barred by limitation, inasmuch as the respondent Bank filed the same beyond the limitation period of 3 years as laid down in section 47 of the Ain. 2003 although, the learned Judge of Artha Rin Adalat under misconception of law and facts most illegally and mechanically rejected the application for dismissal of the execution case in a summary manner by the impugned order dated 1.10.2006 and as such, the same should be declared to have been passed without lawful authority and is of no legal effect.

7. On the other hand, Mr. Akram H. Chowdhury, the learned Advocate appearing for the added respondent No. 3, Bangladesh Shilpa Bank (BSB), supports the impugned judgment and decree and order dated 1.10.2006 passed by. the Artha Rin Adalat No.1, Dhaka which were, according to hirn correct, just and proper. He submits that the instant writ petition has filed by the petitioner chalIenging the impugned judgment and decree passed by the Artha Rin Adalat which is misconceived and not maintainable in law, inasmuch as by now it has been welI settled that no writ petition lies against the judgment and decree passed by the Artha Rin Adalat since there is a specific provision in the Ain for seeking remedy against the judgment and decree passed by the Artha Rin Adalat. The learned Advocate next on referring the provisions of sub-section 1 to section 28 and 48 of the Ain. 2003 submits that the execution case is not barred by limitation which was filed well within 180 working days and as such, the Rule is liable to be discharged. Mr. Akram H-Chowdhury in support of his submissions relied on the decisions reported 46 DLR(AD)191, 54 DLR(AD)6 and 2001 DLR(AD)6.

8. These are the points which were argued . by the learned Advocates for the respective parties.

9. We' have perused the writ petition, affidavit-in-opposition, supplementary affidavit and other materials on record. In order to appreciate the submissions of the learned Advocates for the respective parties from a correct angle, it would be convenient for us to decide first of ~ll as to the question of maintainability of the writ petition.

10. In the case of Zahirul Islam Vs National Bank Limited and others reported in 46 DLR(AD)191, where it has been decided as follows:

"The petitioner, without filing any appeal, filed an application under Article 102. of the Constitution, namely, Writ Petition No. 892 of 1991 which was dismissed summarily by a Division Bench of the High Court Division. on 30.6.91 on the ground that the petitioner has an alternative and efficacious remedy by way of appeal.::::. The petition is dismissed. "

11. In the case of Gazi M Towfic Vs Agrani Bank reported in 54 DLR(AD) 6, where the principles has been laid down in the following terms:

"The law is now settled that since specific provision for appeal has been made against the judgment and decree passed by the Artha Rin Adalat no application under Article 102 lies against such judgment and decree."

12. In the case of Bangladesh Agricultural Development Corporation (BADC) Vs Artha Rin Adalat reported in 59 DLR(AD) 6, it has been decided:

"In view of the decisions quoted above we are led to irresistible conclusion that there being specific remedy in the statute for filing appeal against the judgment and decree of the Artha Rin Adalat in the present case the defendant not availing of the aforesaid remedy cannot maintain the writ petition."

13. From a reading of the above quoted uniform decisions of our Apex Court, we find a clear view of the law as it stands today that an application under Article 102 of the Constitution does not lie against the judgment and decree of the Artha Rin Adalat since there being specific provision in the statute for filing appeal against the judgment and decree passed by the Artha Rin Adalat. Therefore, we find substance in the submission of the learned Advocate for the respondent-bank that the instant writ petition is a misconceived one and not maintainable.

14. To meet the contention of Mr. Md. Asrarul Hoque that the Execution Case No. 658 of 2005 arising out of judgment and decree dated 3.3.2005 passed by the Altha Riri Adalat No.1, Dhaka in Artha Rin Suit No. 914 of 2004 is barred by 11 days from the judgment and 5 days from the date of signing decree. We have examined the execution case as well as the provisions of sections 28, 29 and 48 of the Ain, 2003. Section 28(1) of the Ain, 2003 provides the execution case shall be filed within 180 days. Admittedly, ex parte judgment and decree was passed on 3.3.2005 (preliminary decree signed on 9.3.2005) with a direction for payment of money to the defendant within 60 days and the execution case was filed by the respondent Bank on 9.11.2005 in order to execute the decree. Section 48 of the Ain, 2003 provides that in order to count the days under the provision of this Ain, only the working days of the Court shall be counted. Although, in this case (we find from the chart for calculation of time as given in the writ petition that the petitioner did not minus so far it relates to non working days of the Court. So, on this point, we are of the view that the execution case is not barred by limitation.

15. Mr. Md. Asrarul Hoqu e, the learned Advocate appearing for the petitioner at the end of the day submits that in this case the s decree-holder bank started the execution proceeding on the basis of the preliminary decree which is ex-facie illegal.

16. In deciding this question we feel it necessary to reproduce the provision of section 5 (3) of the Artha Rin Ain, 2003.

17. Section 5(3) of the Artha Rin Adalat

Ain, 2003 reads as follows:,

(3) Dc aviv (2) Gi Aaxb Avw_©K cÖwZôvb KZ©"K `v‡qiK…Z gvgjv wbw®Œq mgvwßi (Foreclosure ) D‡Ï‡k¨ GKwU eÜKx gvgjv (Mortgage suit) nB‡j, GKwU eÜKx gvgjv (Mortgage suit ) nB‡j, †KejgvÎ †mB †‡Î Av`vjZ KZ…©K cÖ`Ë wWwµx cÖv_wgK wWµx (Preliminary decree) nB‡e Ges Ab¨vb¨ mKj †‡Î FY Av`vqv_© `v‡qiK…Z gvgjvq Av`vjZ KZ…©K cÖ`Ë wWwµ PzovšÍ wWµx (Final decree) nB‡e|Ó

18. From a reading of the above quoted provision, it manifests that if a suit is a mortgage suit and brought for foreclosure, in that case, the decree pronounced by the Adalat shall be a preliminary decree and the decrees of the Adalat for recovery of loans in other cases are to be treated as final decrees. Therefore, we find no merit in the submission of the learned Advocate for the petitioner on this point.

19. As to the question that the Artha Rin Suit No. 914 of 2004 was barred by limitation, we have already indicated that Artha Rin Suit No. 914 of 2004 was decreed by the Artha Rin Adalat by judgment and decree dated 3.3.2005 against which there being specific provision in the statute for seeking remedy by way of appeal. This venture under the writ jurisdiction is not permissible.

20. In view of our discussions made in· the foregoing paragraphs vis-a-vis the uniform decisions of our Apex Court as cited above by now it is clear that the instant Rule must fail.

21. In the result, the Rule is discharged with a cost of Taka 5,000/- (five thousand). " The order of stay granted by this Court stands vacated.

22. The Artha Rin Adalat No.1, Dhaka is 11 directed to proceed with the Execution Case
23. Communicate the judgment at once.