Administering Oath To Accused While Recording Confessional Statement Unconstitutional: Sikkim HC (FB) [Read Judgment]

Not only administration of oath on an accused while recording his confession is prohibited, unlawful and illegal but also that the said act cannot be cured under Section 463 CrPC. Administration of Oath upon an accused while recording confession has a direct bearing on the voluntariness of the confession and voluntariness is sacrosanct, the bench observed.A full bench of Sikkim High Court,. A full bench of Sikkim High Court, in State of Sikkim v Suren Rai, answering a reference to it by the division bench, has held that administering oath to an accused while recording his confessional statement under Section 164 CrPC violates Article 20 of the Constitution of India. While doing so, if the Magistrate goes on to administer oath upon the accused it cannot be said that the said Magistrate complied with the statutory requirement of the law to ensure the voluntariness of the confession.” The court also referred to various judgments of Supreme Court and High Court and said under the scheme of Section 164 CrPC as well as Section 281 CrPC there is no provision for recording a confession on oath. With regard to question whether mere administering of oath to an accused while recording his confessional statement keeping in mind subsection 5 of Section 164 CrPC, without anything more, lead to an inference that the confessional statement is not voluntary and thus in violation to the fundamental requirement of Section 164 CrPC and thus fatal, the bench said: “There could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 CrPC and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused.