Nazir Ahmad v. King-Emperor

Facts

A confession was allegedly made to a Magistrate but was not recorded in the manner mandated by Section 164 of the Code; instead the prosecution sought to prove the confession through the Magistrate's oral testimony of what the accused had said. The validity of relying on such oral evidence in place of a properly recorded confession was challenged.

Issues

• Whether a confession made to a Magistrate during investigation must be recorded strictly in accordance with the procedure in Section 164 CrPC?
• Whether, where Section 164 was not complied with, the Magistrate may prove the confession by his own oral evidence?
• Whether Section 164 is exhaustive of the law on admissibility of confessions?

Arguments

The Crown contended that even if the formal Section 164 procedure was not followed, the substance of the confession could be proved by the Magistrate deposing orally to what he heard. The defence argued that the statute lays down the only permissible manner of recording such a confession and that allowing oral proof would defeat the safeguards Parliament had enacted.

Held

The Privy Council laid down the now-classic principle 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, and other methods of performance are necessarily forbidden. A confession recorded under Section 164 must comply with the prescribed manner; if it is not so recorded, the Magistrate cannot give oral evidence of it. The Board also clarified that Section 164 is not exhaustive of the conditions of admissibility, which must be read with Sections 24-30 of the Evidence Act, and that where a confession is duly recorded by a competent Magistrate it is admissible without examining him.

Ratio decidendi

A statutory power to record a confession in a particular manner must be exercised in that manner and no other; non-compliance cannot be cured by oral evidence of the Magistrate, and Section 164 operates together with Sections 24-30 of the Evidence Act.

Significance

A foundational authority both for confession law and for the general administrative-law maxim on prescribed statutory procedure. It governs the recording of confessions under Section 164 CrPC, now Section 183 BNSS, and is universally cited for the rule that mandatory procedural safeguards for confessions cannot be bypassed.

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