Criminal Procedure-Evidence Respondents accused of mur- der-Magistrate not empowered to record a confession records a con- fession-Records of confession not held to be admissible by the trial Court-The Magistrate gives oral evidence of confession-The records used to refresh his memory-Whether the oral evidence is admissible Code of Criminal Procedure, 1898 (Act 5 of 1898), 54. 164,364, 533-Indian Evidence Act, 1872 (1 of 1872), 55. 74 80 and 159.

By sub-sec. (1) of s. 164 of the Code of Criminal Procedure it was provided, "Any Presidency Magistrate, any Magistrate of the first class and any Magistrate of the second class specially em- powered in this behalf by State Government may, if he is not a police officer record any statement or confession made to him in the course of an investigation under this Chapter or under any other law for the time being in force or at any time afterwards before the commencement of the inquiry or trial." " In a case where a confession had been recorded under s. 164(1) by a Magistrate of the second class not specially empowered,