Mockett, J.

I entirely agree with the conclusions at which my learned brother has arrived and the reasons for those conclusions. There is however one matter concerning which I desire to add my views.

Except by implication, the learned Sessions Judge does not record a definite finding whether the confessions Exs. L and M, were voluntary within the meaning of S. 24 of the Evidence Act. It would however appear from his judgment that he would have held that in the circumstances of this case the confessions were vitiated by both promise and threat within the meaning of the decision in Regina v. Thompson (1893) 2 Q.B. 12). But the trial Judge took the view that the law as stated in Regina v. Thompson (1893) 2 Q.B. 12) was not in accordance with S. 24 of the Evidence Act by reason of certain observations of Horwill, J. in Public Prosecutor v. Rajulapati Basavayya (1937) M.W.N. 993). That appeal came before Horwill, J. and myself and it was an appeal against an order of acquittal by the trial Judge in the appeals now before us. In that case the evidence for the prosecution consisted of the evidence of the eye-witnesses, circumstantial evidence, and a confessional statement. The main judgment of the Court was delivered by myself and it was held that on the facts apart from the confession, the accused was manifestly guilty but that the confession was also on the facts voluntary. No question of law arose. No case was cited. In the judgment then under appeal the trial Judge had thought fit to criticise the Magistrate who had recorded the confession for translating urged in R. 85(2)(d) of the Criminal Rules of Practice as meaning forced and not induced or cajoled. My learned brother who is conversant with Telugu considered this criticism as unfair on the Magistrate and in a separate judgment, after a few remarks relating to the facts of the confession, dealt with the translation of the word urged in question (d) and it is important to emphasise that his remarks were directed to the meaning and the meaning only of the word urged only in questi on (d) and in question (d) only. It must be remembered that R. 85(2) suggests questions which the Magistrate may usefully put and that question (d) is only one of those questions. The whole spirit of R. 85 is that a Magistrate should not only satisfy himself that the contemplated confession is voluntary but should ascertain the exact circumstances in which a confession is made and the extent to which the accused had relations with the police. For such a purpose, a Magistrate may ask such questions as he thinks fit provided he records in writing the questions and answers. That the Magistrate must be satisfied is emphasised by sub-R. (3) which provides for cases where the Magistrate is in doubt as to the voluntary nature of the confession. While discussing the precise translation of the word urged in question (d), my learned brother made the following remarks:

The question does not visualize an enquiry whether the police, in a friendly way, strongly advised the accused to make a confession. The enquiry is directed as to whether the police used some kind of moral pressure to bring about a confession and for such an idea I am sure that Balavantham pettu would do well. Balavantham does not mean only physical compulsion but also undue moral suasion. I feel sure that many, if not most, Magistrates in translating the question were you urged by the police to make a confession use the expression Balavantham Chesinara

At an earlier stage of his judgment, my learned brother had stated:

What a Magistrate has to do who is asked to record a confession is to satisfy himself at the moment when he is ready to record the confession that it will be voluntarily given.

He also on the special facts of that case considered that the Magistrate need not have given that accused longer time for reflection unless he was of opinion that the accused was still suffering from the effect of police influence. On an examination of the judgment of the Court, it shows that these observations of Mr. Justice Horwill were obiter and were the views of the learned Judge himself with regard to the translation of the word in a language which he understooda subject on which I myself can express no opinion except to this extent that I find it difficult to think that urge and advise are interchangeable words in any language. There was not a word in the remarks of Mr. Justice Horwill which are a pronouncement on the general law relating to confession, a law which is embodied in the very clear words of S. 24 of the Evidence Act, which section has been the subject of numerous cases in India. Owing to the similarity of the Common Law of England numerous English decisions can also be called in aid if a difficulty arises. But the learned Sessions Judge on a reading of the judgment of Horwill, J. states as follows:

It has been held by Mr. Justice Horwill that the Indian law does not visualize an enquiry whether the police in a friendly way strongly advised the accused to make the confession. Oreven if police officers have induced Rangaiah and Rama Mohana Rao while under surveillance or in sub-jail custody to make a confession by giving them strong advice in a friendly way to make a confession, the confession would not be vitiatedIn fact the judgment almost lays it down that unless a sessions Court is satisfied that the Magistrate felt any doubt about the voluntary nature of confession or can say why it should not accept the word of the Magistrate that he was satisfied before recording the confession that it was being voluntarily made, antecedent and consequent circumstances should not be looked into with regard to the voluntary nature of the confession.

The trial Judge has disregarded the fact that this was not the judgment of the Bench and that if my learned brother had purported to state the law in the manner the trial Judge supposes, it would be prima facie in direct conflict with a large number of authorities both in England and in India. It does not appear from the trial Judges judgment that he referred to any authorities. None was cited by him except R. v. Thompson (1893) 2 Q.B. 12). The major fallacy underlying his view is to be found very clearly in the circumstance that when Horwill, J. states that the question [question (d)] does not visualize the enquiry etc., the learned Sessions Judge states that it has been held by Horwill J. that Indian law does not visualize an enquiry etc. It is sufficient to say that the learned Sessions Judge, on a wholly unwarranted interpretation of the judgment of Horwill J., has accepted a confession as technically voluntary as will be seen from his remarks referred to above. He would apparently otherwise have held on the facts that the confession came within the meaning of the decision in R. v. Thompson (1893) 2 Q.B. 12), namely, that it had been induced by a promise. There is no room for technicalities in dealing with whether a confession is voluntary or not. It is a plain question of fact and not of law and one for the trial Judge to decide and he is of course entitled to differ from the Magistrates view that the confession was voluntary if he considers on the facts that it was not. I have only to add that if in a criminal trial questions elicit information from an accused person that he had been advised by the police (whether strongly or otherwise is immaterial) to make a confession, I should be prepared to hold that such a confession was not voluntary. I do not think that Horwill, J. intended to hold otherwise and it is a matter of some surprise to me that a contrary construction has been put upon his words.