This dispute was resolved in the case of Nazir Ahmad V King Emperor [1]these are the details


  • On the night of 11th October, 1934 theft was committed in the premises of Guran Das by housebreaking. The fellow villagers tried to inspect the dacoits who in turn fired, consequently, one of the villagers was killed.
  • Although at the time of shooting dacoits were not identified by anybody yet it was noticed that after a few days they were said to have been swan by a camel rider passing through late night.
  • On the charge of dacoity and murder, Nazir Ahmad and members along were arrested under section 302 [2]& 369 [3]of Indian Penal Code.[4]
  • The camel rider who was said to have seen the dacoits sometimes before passing through the path late-night identified nazir Ahmad as one of the dacoit’s but the high court did not rely on his evidence some stolen properties and a revolver was recovered from other accused but nothing was recovered from nazir Ahmad.
  • The additional session judge of Lyallpur convicted the appellant, Nazir Ahmad for committing dacoity and Murder
  • Nazir Ahmad filed an appeal in the high court against the above judgment which was dismissed.
  • On the basis of oral evidence of Mr Liladhar Vashistha, Ist class magistrate who was entitled to record the confessions of the accused under section 164 [5]of Cr.P.C, [6]Additional Sessions Judge and the High court convicted Nazir Ahmad.
  • At the time of recording the confession of the accused the magistrate did not warn him that he is empowered to do so under section 164[7] & 364 [8]of Cr.P.C. In fact, the magistrate neither complied with the provisions of subsections of 164 and 364 of Cr.P.C. Nor he gave any reason as to why he did not follow the procedure.
  • The Accused, Nazir Ahmad denied before the session judge that he made any admissions or confessions to the Magistrate.

The judgement of the Trial Court

On the basis of the confession recorded Additional session judge Lyallpur found Nazir Ahmad and other accused guilty of dacoity and murder. The court also drew the inference from his confessions that he was the chief of his gang and thus awarded him death sentence under section 369[9] & 302[10] of Indian Penal Code on the 16th day of April 1935.

Against the judgement of Trail court, Nazir Ahmad Filed appeal to the high court.

The judgement of the High Court

The high court decided that the evidence of camel rider is inadmissible in law but at the same time held that all the accused have been properly convicted on the basis of their own confessions. Thus, the high court confirmed the conviction and upheld the sentence of the trial court solely on the basis of their own confessions.

Against the judgement of High court, Nazir Ahmad filed an appeal to the privy council.

The judgement of Privy Council

While pronouncing the Judgement of the council Lord Roach observed that a Magistrate is not obliged to record any confession of the accused which inculpates him guilty rather it would be unjust for the purpose of doing justice with him. Where the magistrate records any confession, it is a matter of his duty and discretion and not of any obligation. The well-recognized rule of law is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are strictly prohibited most of the courts follow this doctrine. Although it is not expected from a magistrate to act as a court under the above sections of Cr.P.C yet as a judicial officer he must apply the doctrine in question to section 164 [11]of Cr.P.C.

It was also observed by the lordships of the privy council that in a sense sub-sections of 164 [12]& 364 Cr.P.C [13]should be read together and the matter should be decided accordingly. The effect of sub-section 164 of Cr.P.C is to allow evidence to be put in a form in which it can prove itself under sub-sections of 74[14]&80[15] of the Evidence Act. The lordships expressed the view that if we accept the confessions of the accused to be correct then all the precautions and safeguards provided by sub-sections 164 and 364 of Cr.P.C would be of no value any magistrate of any rank could dispose to a confession made by an accused without any fear, undue influence, allurement and promise if made voluntarily by the accused but if it is not done so, it would not be treated as a valid confession.

Pronouncing the Judgement of privy council, the lordships of the privy council held that since Mr Vashistha has not acted according to the provisions of sub-sections of 164 & 364 Cr.P.C hence his oral statement cannot be admitted in evidence, privy council, therefore, accepted the appeal of the appellants and declared him innocent.

Principles of the Law Laid Down

  1. When a magistrate records the confession of an accused it is a matter of his duty and discretion only and not of any obligation. The rule relating to this is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. All the other methods of performance are necessarily forbidden.
  2. Section 164 & 364 Cr.P.C clearly prescribe the mode in which the confessions are recorded by the magistrate when made by accused during the course of an investigation. Only that confession will be treated as valid which is made strictly in accordance with these sections and if it is made by the oral evidence of a magistrate.
  3. Where a magistrate has neither acted nor purported to act under section 164 or 364 Cr.P.C and nothing is submitted in evidence as recorded or purporting to be recorded either under section 164 or 364 Cr.P.C oral evidence of the magistrate is not admissible.


Aditya Kumar Tyagi Aditya Kumar Tyagi | Legal Editor, LawTree Club


[1] Nazir Ahmad v King-Emperor AIR 1936, P.C. 153.

[2] Indian Penal Code 1860 § 302.

[3] Indian Penal Code 1860 § 369.

[4] Indian Penal Code 1860 No. 45, Acts of Parliament, 1860 (India).

[5] The Code of Criminal Procedure, 1973 § 369.

[6] The Code of Criminal Procedure, 1973 No. 02, Acts of Parliament, 1974 (India).

[7] The Code of Criminal Procedure, 1973 § 164.

[8] The Code of Criminal Procedure, 1973 § 364.

[9] Supra Note 3.

[10] Supra Note 2.

[11] Supra Note 7.

[12] Ibid.

[13] Supra Note 8.

[14] The Indian Evidence Act, 1872 § 74.

[15] The Indian Evidence Act, 1872 § 80.


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