Procedure of Confession before the Magistrate
under Section 164 of Cr.P.C.
Presented by
Tiyas Raha,
BBA L.L B 4th Semester,
Adamas University
CONTENT
Introduction ………………………………………………………………………………… 3
What is Confession………………………………………………………………………..3
Statements may be called as a confession……………………………………..3
Types of confessions………………………………………………………………………4
From of confession………………………………………………………………………..4
Who can record confession statements………………………………………...4
Objective for recording 164 statements…………………………………………4
Statements recorded by Magistrate ……………….…………………………….5
Are the recorded statement, a public document……………………………7
Principles based upon sec 164……………………………………………………….7
Evidentiary value………………………………………………………………………....8
Places where the recorded statements can be used………………………8
Important case laws………………………………………………………………………9
Conclusion…………………………………………………………………………………….9
Introduction
Statement in its dictionary meaning is the act of stating or reciting. The term statement is not
defined anywhere in the Act. However, it has got whole connotations. Generally, statements
are recorded in criminal procedure code in section under section 164 of Crpc the confession
statements of accused will be recorded. As per section 164(1) of Crpc, Judicial Magistrate or
Metropolitan Magistrate whether or not having jurisdiction in the case can record any
statement or confession made to him in the course of investigation. Section 164(5) of code
empowers judicial magistrate to record statement (other than confession statement) which is
in the opinion of Magistrate a best titled to the circumstances of the case.
What is Confession
Confession is the admission of guilt, stating or suggesting an inference as to guilt by an accused
made in custody. According to Justice Stephen, a “confession”, is an admission made at any
time by a person charged with a crime stating or suggesting the inference that he committed
that crime.
Case
Pakala Narayana Swami Vs emperor AIR 1939 P.C. 47
The question before the court was whether statements from which the guilt of an accused can
be inferred 15 amounts to a confession or not. It was held that “A confession must either admit
in terms the offence, or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a
confession, for example, an admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused death with no explanation of any other man’s
possession”.
Can Statements may be called as a confession?
A confession is a statement made by accused admitting his guilt. Thus if the maker does not incriminate
himself, the statement will not be a confession. Further, a mixed statement which even though contains
some confessional statement will stand lead to acquittal is no confession. Thus a statement that a contain
self-exculpatory matter which is not true would negative the offence cannot amount to a confession. This
is so because a confession must either as a whole or rejected as a whole, and the court is not competent to
accept only the inculpatory part and reject the exculpatory part( statement of self-defense).
Types of confessions
(a)Inculpatory confessions
The confession to something wrong or which involves the accused of the guilt is inculpatory
confession.
(b) Exculpatory confessions
The confession which absolves the accused of any guilt is exculpatory confession.
From of confession
A confession may occur in any form it may be made to the ocurt itself, when it will be known as
judicial confession or to anybody outside the court, in which case it is called an extra judicial
confession. It may even consist of conservation to oneself, which may be produced in evidence
of overheard by another.
Record confession statement
Section 164 of the code gives power to the Metropolitan Magistrate or judicial magistrate to
record confession and statements during the course of investigation under chapter 12 or under
any law for the time being in force, or at any time afterwards before the commencement of the
inquiry or trial. The magistrate may record confession or statement made to him. But before
doing so he is enjoined by sub section(2) thereto to explain to the person making it that he is
not bound to make confession and that, if he does so it may be used as evidence against him. n
case Kartar Singh Vs state of Punjab, 1994 Crl.L.J. 3139 it was observed what section 164(2) of
the code requires as amplified by rule 32 of Criminal Rules of Practice, is that as soon as the
accused intending to make confession is produced and before he is told he would be allowed
time for reflection, the magistrate should explain him that it is not intended to make him an
approver and that, he is not bound to make confession and warn him that, if he does so,
anything said by him will be taken down and thereafter be used as evidence against him as
evidence in relation to his complicity in the offence at the trial, that is to follow. Compliance of
sub- section (2) being mandatory and imperative, its noncompliance renders the confession
inadmissible in evidence. Such defect cannot be cured under section 463 of the Cr.P.C.
Objective for recording 164 statements
The need for recording statements of a witness under section 164 of the code is two-fold:
(a) To deter witness from changing their versions subsequently: and
(b) To get over the immunity from the prosecution in regard to information given by the
witness under section 162 of the code. Another reason for recording statement of
witnesses under the section 164 of the code is to minimize the chance of changing the
versions by the witness at the unit under the fear of being involved in perjury.
Statements recorded by Magistrate under CrPC
Legal provisions
Section 164 Crpc talks about the statements recorded by Magistrate:
Sub Section (1) authorizes the Magistrate to record the statement of a person or his confession,
no matter whether he possess jurisdiction in the case. If he does not possess such jurisdiction
sub s (6) will apply. The word statement is not limited to statement by a witness but includes
accused and not amounting to a confession.
Sub Section (1) states that: any Metropolitan Magistrate or Judicial Magistrate may, whether or
not he has jurisdiction in the case, record any confession or statement 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.
Warning under Subsection 2
Subsection 2 of Section 164 mentions a warning. Under the statutory provision, the Magistrate
is first required to explain to the accused that he was not bound to make a confession and that
it did so, it might be used against him. This is the sine qua non for recording confession. The
other mandatory requirement is that the Magistrate must put questions to the accused to
satisfy himself that the confession was a voluntary so as to enable him to give the requisite
certificate under subsection(4). The Magistrate cautioned the accused that he was not bound to
make a confession, but did not put questions to the accused to satisfy himself that the accused
was making confession voluntary.
In Mahabir Singh v. State of Haryana court observed that, Where the Magistrate fails to
explain to accused that he was not bound to make the confession and that if he did so, such
confession might be used as evidence against him, that confession so recorded, cannot be
taken into consideration.
The Magistrate must satisfy himself that no pressure or force was used on the accused who
makes the confession. Any mark of the person of the accused to vitiate the voluntary character
of the confession. When was held not only inadmissible under the section but it could not be
used under the other provision of Indian Evidence Act such as sections 21 & 29.
Bar against police pressure
The Sub Section 3 guarantee that police pressure is not brought on the person who is unwilling
to make a confession. Where the accused was in judicial custody for more than 2 days prior to
the giving of confession it was held that the period is sufficient to shed fear and influence of the
police, if any and therefore the confession could be made voluntary by the accused. The
interval between preliminary questioning and recording of the confession need not necessarily
be 24 hours duration. A confession was held not to reject merely because the Magistrate had
failed to assure the accused that he would not be sent back to the police custody in the event
of his failure to make the confession.
Manner of recording Confession, signatures etc.
Subsection (4) says that the confession should be recorded in a manner provided under section
281 and shall be signed by the person making it. The Magistrate shall then make the
memorandum at the foot of such confession. The Magistrate cannot merely sign a printed
instruction supplied to him. This will be violated by this section. The confession which was
made voluntary and recorded correctly in a different language can be said to have amounted to
an irregularity. The entire confession must be brought on record. The confession must be
shown to be voluntary before it can be acted upon.
It is necessary that the confession should be signed by the accused. If it is not, will be admissible
in evidence, the commission would no vitality the confession and the irregularity is curable
under section 463. The attestation of the accused is unnecessary when a confession is made in
court to the officer trying the case at the time of trial.
The confession without memorandum that it is voluntary is bad in law and cannot be admitted
in evidence.
Manner of recording statement other than confession
Subsection (5) lays down any statement (other than a confession) made under subsection (1)
shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the
opinion of the Magistrate, best fitted to the circumstances of the case ; and the Magistrate shall
have power to administer oath to the person whose statement is so recorded.
Transfer of confession to Magistrate of jurisdiction
This subsection (6) states that the Magistrate recording a confession or statement under this
section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
Are the recorded statement, a public document?
Statement recorded by a Judicial Magistrate or Metropolitan Magistrate under section 164 Cpc,
is a public document under section 74 of Indian Evidence Act, 1872. This evidence is admissible
under Section 80 of the Indian Evidence Act, 1872. In Guruvind Palli Anna Roa And others v.
State of Andhra Pradesh, Hon’ble High Court held that” The statement of witness recorded
under section 164 Crpc, is a public document which does not require any formal proof and
there is no necessity to summon the magistrate who records the same”.
Principles based upon sec 164
In RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA, Supreme Court of India
laid down the following principles:
(a) The provisions of Section 164 Cr.P.C. must be complied with not only in form but in
essence.
(b) Before proceeding to record the confessional statement, a searching enquiry must be
made from the accused as to the custody from which he was produced and the
treatment he had been receiving in such custody in order to ensure that there is no
scope for doubt of any sort of extraneous influence proceeding from a source interested
in the prosecution.
(c) A Magistrate should ask the accused as to why he wants to make a statement which
surely shall go against his interest in the trial.
(d) The maker should be granted sufficient time for reflection.
(e) He should be assured of protection from any sort of apprehended torture or pressure
from the police in case he declines to make a confessional statement.
(f) A judicial confession not given voluntarily is unreliable, more so, when such a confession
is retracted, the conviction cannot be based on such retracted judicial confession.
(g) Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate’s
jurisdiction to record the confession and renders the confession unworthy of credence.
(h) During the time of reflection, the accused should be completely out of police influence.
The judicial officer, who is entrusted with the duty of recording confession, must apply
his judicial mind to ascertain and satisfy his conscience that the statement of the
accused is not on account of any extraneous influence on him.
(i) At the time of recording the statement of the accused, no police or police officer shall
be present in the open court.
(j) Confession of a co-accused is a weak type of evidence.
(k) Usually, the Court requires some corroboration from the confessional statement before
convicting the accused person on such a statement.
Evidentiary value of 164 statements
Evidentiary value of statement recorded under section 164 Cr.P.C, is that, the statement cannot
be treated as substantive evidence when the maker does not depose of such facts on oath
during trial. Before acting on a confession made before a judicial magistrate in terms of section
164, the court must be satisfied first that the procedural requirements laid down in sub section
(2) to (4) are complied with. These are salutary safeguards to ensure that the confession is
made voluntarily by the accused after being apprised of the implications of making such
confession. The endeavor of court should be to apply its mind to the question whether the
accused was free from threat duress or inducement at the time of making confession.
Case
Parmananda Vs state of Assam (2004(2) ALD Crl 657
The confession would not be ordinarily considered the basic for conviction. However, it is
admissible, and conviction may also be based upon it if it is found truthful and voluntary and in
a given case some corroboration is necessary. Confession which is not retracted even at the
stage of trial and even accepted by the accused in the statement under section 313 Cr.P.C. can
be fully relied upon. So, the conviction based thereon together with other circumstantial
evidence is sustainable. The accused in his statement under section 313 Cr.P.C. or during cross-
examination never suggested that his statement under section 164 Cr.P.C. is false. Allegation of
presence of police officers at the time of recording the confession was without any material.
Requirement of section 164(2) Cr.P.C. have been complied with. Such a confession statement
was fit to be accepted.
Places where the recorded statements can be used
A statement made under section 164 of the Code of Criminal Procedure may be used to
corroborate or contradict a statement made in the court in the manner provided under section
157 & 145 of the Evidence Act,1872. It can be used for the purpose of corroboration. It can be
used to cross-examining the person who made it show that the evidence of the witness is false
but that does not establish that what he started out in the court under this section is true. A
statement made by the witness under section 164 CrPC can be used for the purpose of cross-
examining him and discrediting his evidence in the session’s court.
Important Case Laws
Balak Ram v/s. State of U.P. A.I.R. 1974 SC 2165, and Ram Charan v/s. State of U.P. A.I.R.
1968 SC 1270:
Evidence of witness cannot be discarded merely because there statements were recorded
under section 164 of the Code. All that is required as a matter of 20 caution is a careful analysis
of the evidence.
I.B.B.Rao v/s. State – 1985 Cr.L.J. 32:
When it is disclosed that a witness whose statement has been recorded under section 164 was
kept in police custody for several days and his whereabouts are not disclosed to the relatives,
the evidence tendered by that witness in Court should not be relied upon.
Ramchander v/s State A.I.R. 1981 SC 1036:
1981 Cr.L.J. 609: - When a witness whose statement under section 164 of the Code was
recorded was not sticking to his statement so recorded, the Court should not rebuke him nor
threaten him that he should be prosecuted of perjury.
Haladhar v/s State 1979 Cr.L.J. NOC 128 :
Recording of statement under section 164 of the Code sometimes becomes very much
necessary in the interest of a case if the police seeks to weaken or demolish a case or refusing
to take steps for recording the statement of the witness at the earliest opportunity, the
magistrate may record the statement of the witness and de facto complainant under section
164 (5) of the Code.
Conclusion
(a) The object of recording the statement is to preserve the evidence, to get the account of
the testimony of the witness at the first instance and while it is still fresh and to
preserve retraction of the testimony at the later stage.
(b) The statement recorded under section 164 of the code can be used for the
corroboration of the witness’s testimony at the trail.
(c) The application for recording the statement under this section is usually filed by the
prosecution.
(d) The magistrate has to ensure before recording the statement the voluntariness of a
confession made before the magistrate are too well established for reiteration.
(e) The magistrate has to ought to extremely careful as regards the identity of the witness/
complaint before proceeding to record the statement.
(f) The statement of a witness recorded under section 164 Crpc, is a public document
which does not require any formal proof and there is no necessity to summon the
magistrate who records the same.
(g) Sub Section (1) of section 164 CrpC authorizes the Magistrate to record the statement of
a person or his confession, no matter whether he possess jurisdiction in the case. If he
does not possess such jurisdiction sub s (6) will apply.
(h) The confession recorded under section 164 CrPC, should be recorded in a manner
provided under section 281 and shall be signed by the person making it. The Magistrate
shall then make the memorandum at the foot of such confession.
(i) Only a judicial magistrate or Metropolitan Magistrate has the power to record the
statement under section 164 of the Code.
(j) The purpose of contradiction between evidence of a witness before the court and the
statement recorded under section 161 and 164 of Cr.P.C is primarily to shake credit of
the witness, it is only to put the court on guard, to scrutinise the evidence with great
care.
