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Report No. 28

Clause 4

(Existing section 5)

1. No changes are recommended in section 5. Certain points relating to the section have been dealt with.1

2. As to the admissibility of unworn testimony of a child witness, the existing provision makes the position quite clear. In a Privy Council case,2 from Somaliland, (where the Indian Evidence Act and Oaths Act applied), reliance was placed on section 13 to support the conclusion that such unworn testimony of a girl of 10 years is admissible and that corroboration goes only to weight and value.

Before the proviso was inserted, there was some controversy as to the value of the unsworn evidence of a child.3-4-5 That cannot survive now.

3. Paragraph (c) of section 5 requires oaths to be made by jurors. If and when the provisions regarding jury in the Code of Criminal Procedure, 1898, are deleted,6 consequential changes may become necessary in this part of the section. In the meantime, the provision may stand.

4. Section 5, last paragraph, provides that "nothing herein contained shall render it lawful to administer in a criminal proceeding oath or affirmation to an accused person." It has been held,7 that the expression "criminal proceeding" denotes a proceeding before a criminal court, and does not mean a proceeding relating to a case pending in a criminal court; accordingly, it was decided that a confession made under section 164, Code of Criminal Procedure, 1898, cannot be recorded on oath. (However, applying section 537 of the Code of Criminal Procedure, the court admitted the confession in evidence on the ground that no failure of justice had been occasioned.) No change need be made in this respect.8

5. Section 5 and statements under section 164, Criminal Procedure Code.-The question how far section 5 of the Oaths Act empowers Magistrates .acting under section 164, the Code of Criminal Procedure, 1898 to administer oaths is one on which uncertainty now prevails. A recent decision of the Allahabad High Court9holds, that a Magistrate has no jurisdiction to administer oath to a person before recording his statement under section 164. Such Magistrate, it was stated, was not authorised by law to take "evidence", because he is not charged with the duty of deciding any case, and there is no matter to be "proved" or "disproved" before him. The matter (it was held) stood at the stage of investigation, during which no authority had been conferred upon any court to "receive evidence", and, therefore, an oath could not be administered. The Magistrate is not a "court". He does not record any "evidence", and the person examined is not a "witness". The proceeding is not a "judicial proceeding".

Decisions of the Madras,10 Bombay11 and Andhra Pradesh12 High Courts to the contrary were dissented from, on the ground, that they did not give any detailed reasons for holding that investigation is a stage of "judicial proceeding", and also on the ground that when a person makes a statement under section 164, he has not the status of a "witness" (that is, a person who may lawfully be examined or be required to giveevidence). The statement of such a person is made voluntarily, and he may refuse to be examined or to make a statement. It was also pointed out, that the Magistrate is not a "court"13, and that such statement is not "evidence" in a stage of "judicial proceeding".14

6. In the undermentioned decisions15-16-17 however, the power to administer oath in such cases was assumed, and a person making a false statement under section 164 was held guilty under sections 191 and 193 (second para.), I.P.C. of giving false "evidence".

7. The offence would not, perhaps, amount to giving false evidence in a "judicial proceeding"18.

8. The question of inserting a provision on the subject in the Oaths Act has been considered19.

9. It is, however, felt that the matter should be considered when the Code of Criminal Procedure is revised.

1. See the body of the Report, paras. 55-56.

2. Mahomed Sugal v. King, AIR 1946 PC 3.

3. See Queen Empress v. Maru, (1888) ILR 10 All 207.

4. Queen Empress v. Sahai, ILR 11 All 183; also see ILR 16 Mad 105.

5. See also Ah Puhi v. Emp., AIR 1939 Rang 402.

6. The question of amendments to the Code of Criminal Procedure for abolition of the Jury system is under consideration of the Law Commission. Seealso the 14th Report of the Law Commission, Vol. 2.

7. Karam Ilahi v. Emperor, AIR 1947 Lah 92 (96), para. 17 (DB).

8. As to witnesses whose statements are recorded under section 164, Cr PC, see App 2, Notes on Clauses, section 5 and statements under section 164, Cr PC.

9. Sheo Raj v. State, AIR 1964 All 294, para. 8 (FB) (July 1964).

10. Queen Empress v. Alagu Kone, (1898) ILR 16 Mad 421 (The word "Court" includes all Magistrates, and section 164 "permits" the statement by a witness; the person examined is a "witness" within section 5, Oaths Act.); Suppa v. Emp., 1906 ILR 29 Mad 89.

11. Emp. v. Vishwanath, (1906) 8 Born LR 389.

12. Public Prosecutor v. Nagalinga Reddi, ILR 1958 AP 614: AIR 1959 Al' 250.

13. Relying on Nazir Ahmed v. King Emperor, 63 IA 372: AIR 1936 PC 253.

14. Citing Emperor v. Parshottam, ILR 45 Born 834: AIR 1921 Born 3.

15. Emp. v. Parmanand, ILR 14 Lah 507: AIR 1933 Lah 321.

16. A.T. Krishnamachari, AIR 1933 Mad 767.

17. Rambharose, AIR 1944 Nag 105 (112, 119).

18. Sajawal v. Emp., AIR 1932 Lah 254.

19. A tentative draft would be-

"A Magistrate recording the statement of a person under section 64 of the Code of Criminal Procedure, 1898, shall be deemed to be a court within the meaning of section 4, and the person whose statement is so recorded shall be deemed to be a witness within the meaning of section 5."

Indian Oaths Act, 1873 Back

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