A comparison of the memorandum, Ex. P-28, recorded by the Magistrate with the one prescribed by Section 164(3) will ~how at the former (Ex. P-28) suffers from two patent defects. Firstly, m- stead of certifying that he believed that this confession (Ex. P-27) was voluntarily made, the Magistrate has merely said : "I hope that this statement was made by him voluntarily''. Secondly, he omitted to certify that 'this confession was taken in his presence and hearing, and was read over to the person making it and it is admitted by him to be correct, anQ it contains a full and true account of the statement made by him.' The latter was obviously a defect of form. In the case of the former, it was open to the prosecution to show that the use of the word 'hope' was merely due to an inadvertent error. although in substanc1 and reality, the Magistrate was fully satisfied that the confession (Ex. P-27) was voluntarily made by the accused. The best informed person who could explain whether the use of the word 'hope' in Ex. P-28, was inadvertent or deliberate, was the Magistrate who recorded it. Although the Magistrate was examined as a witness (P.W. 28) at the trial, yet no attempt was made by the prosecution to establish from his word of mouth that the use of the word 'hope' by him was inadvertent or accidental. In the witness-box, also, the Magistrate did not go whole hog to vouch for the voluntariness of the confession. He did not go further than saying that on February 8, 1974, when he repeated the warning to the accused, the latter was found "in a position" to give a voluntary statement. To say that the accused was "in a position" or mood to give a voluntary statement, falls far short of vouching that upon questioning the accused, he (Magistrate) had "reason to believe that the confession is being voluntarily made", which under Section 164 is a sine qua non for the exercise of jurisdiction to record the confession. But that Section does not make it obligatory for the Magistrate to append at the end of the record the prelin1inary questioning, a certificate as to the anticipated voluntariness of the confession about to be recorded. But the law does peremptorily require that af1er recording the confession of the accused, the Magistrate must append at the foot of the recoril a memorandum certifying that he believes that the confession was voluntarily made. The reason for requiring compliance with this mandatory requirement at the close of the recording of the confession, appears to be that it is only after hearing the confession and observing the demeanour of the person making it, that the Magistrate is in the best position to append the requisite me1D01'andum certifying the voluntariness of the confession made . before him. If, the Magistrate recording a confession of an accused person produced before him in the course of police investigation,
