This article was written by Sushant Pandey and further updated by Pujari Dharani. This article explains the step-by-step procedure laid down in Section 164 of the Code of Criminal Procedure to record the confessions and statements and answer all questions surrounding them.

It has been published by Rachit Garg.

Introduction 

Section 164 of the Code of Criminal Procedure, 1973 (hereinafter mentioned as “CrPC”) deals with the powers available to a Judicial Magistrate or Metropolitan Magistrate with respect to the recording of confessions and statements. This provision is mentioned under chapter XII of the Code, namely, information to the police and their powers to investigate. This provision provides a detailed procedure that has to be followed by the competent Judicial Magistrate while recording confessions and statements during the course of investigations. The whole object of prescribing such a procedure is to ensure that the person who is making a confession or giving a statement is doing so freely and voluntarily, without any coercion or undue influence.

What is a 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.

In State (NCT of Delhi) v. Navjot Sandhu (2005), the apex court observed that confessions are considered highly reliable because no rational person would make an admission against himself unless prompted by his conscience, to tell the truth. For more (see here).

What statements may be called a confession

A confession is a statement made by the 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 statements will lead to acquittal is no confession. Thus, a statement that contains self-exculpatory matter which is not true would negatively the offence and cannot amount to a confession. This is so because a confession must either be  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-defence).

Statements recorded by Magistrate under Section 164 CrPC

Need for recording

The need for recording statements of a witness under section 164 of the code is two-fold:

1. To deter witnesses from changing their versions subsequently: and
2. To get over the immunity from the prosecution in regard to the information given by the witness under section 162 of the code. Another reason for recording statements of witnesses under 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.
3. If the statement made by any witness was recorded immediately after the incident occurred, such a statement has more evidentiary value as it is deemed to be more trustworthy compared to later narrations made by a witness.

Types of confession under Section 164 CrPC

There are broadly two types of confession, namely, judicial confession and extra-judicial confession. Judicial confessions are those confessions that are either made before a qualified Magistrate or in front of the court during trial proceedings, whereas extra-judicial confessions refer to those made outside the court, i.e., not before the Magistrate or Court.

Therefore, judicial confessions are made by the accused person before the Judicial Magistrate during the investigation or before the Jurisdictional Magistrate in the court proceedings. Section 164 of the CrPC deals with the former instance, that is, those confessions made during the course of the investigation.

Legal provisions under Section 164 CrPC

Section 164 CrPC talks about the statements recorded by the Magistrate:

Sub Section (1) authorizes the Magistrate to record the statement of a person or his confession, no matter whether he possesses jurisdiction in the case. If he does not possess such jurisdiction Sub Section (6) will apply. The word statement is not limited to a statement by a witness but includes the 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 any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial.

From the afore-mentioned Sub-Section (1) of Section 164 of the CrPC, it is understood that the provision instructs the competent Magistrate to record any confession or statement only during the course of an investigation or afterwards, but before the beginning of an inquiry or trial. In Re: Yendra Narasimha Murthy v. Unknown (1965), the High Court of Andhra Pradesh held that the confession should not be considered valid evidence if it is recorded by the Magistrate when there is no investigation carried out by police or charges framed against the person who made a statement before the Magistrate.

Warning under Section 164 Subsection 2 CrPC

Sub Section (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 he 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 Sub Section (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 a confession voluntarily.

In Mahabir Singh v. State of Haryana (2001), the court observed that Where the Magistrate failed to explain to the 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.

Sub-section (2) also provides at the end that the Magistrate, who is recording the confession, has reason to believe that the accused is voluntarily giving such a confession. In this context, the meaning of the phrase “has reason to believe” is that the Magistrate must perceive and believe that the accused confessed voluntarily with a very high degree of expectation fulfilled with reason, a deep-rooted satisfaction and free from all doubts. In Chandran v. State of Tamil Nadu (1978), the Supreme Court did not take into consideration the memorandum in which the Magistrate, a judicial officer, advisedly chose to use the word “hope”, instead of “believe” because he was not fully convinced that the confession had been voluntarily made and his mind was troubled by suspicion and doubt as to the voluntariness of the confession. In view of this, the retracted confession should be excluded from consideration. Thus, the confidence of the Magistrate in the voluntariness of the accused’s confession is much more significant.

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 provisions of the Indian Evidence Act, 1872 such as Sections 21 and 29. 

Bar against police pressure

Sub Section (3) guarantees 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 by the Gauhati High Court in the case of Debaru Hemram @ Bohira Hamron v. The State of Assam (2019) 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 be rejected merely because the Magistrate had failed to assure the accused that he would not be sent back to police custody in the event of his failure to make the confession.

Manner of recording confessions, signatures, etc

The manner in which confessions are to be recorded under Section 164 of the CrPC is different, and more care has to be taken by the Judicial Magistrate when compared with the recording of statements. The reason why the procedure for recording confessions is more elaborate is to ensure that confessions are freely and voluntarily given and recorded accurately.

Sub Section (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 violative of this section. The confession which was made voluntarily 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.

The provision instructs the Magistrate to mention in the memorandum that he or she gave an afore-mentioned warning to the accused that he is not obligated to confess and should give voluntarily. However, by virtue of Section 29 of the Indian Evidence Act, 1872, the record of the confession will be admissible even if the Magistrate did not give a warning, provided that the court inquiring on it has to satisfy that the accused person has knowledge that there is no compulsion on him to make a confession and that it was absolutely voluntarily and according to his will and wish.

In addition to this, the provision also requires the accused person to sign the memorandum. Nevertheless, apparently, it is neither obligatory to record the satisfaction of the Magistrate nor to take the signature of the accused in the memorandum. For instance, in the case of State of Rajasthan v. Darbara Singh (2000), the application for recording confession was signed by a police officer instead of the accused. However, the Rajasthan High Court held that the value of the confession would not be reduced just because it was recorded by the Magistrate at the request of the police officer. Further, the Court said that it is immaterial on whose request the confession was recorded;   it is important to examine whether the Magistrate followed all the procedures that are mentioned in Section 164 of the CrPC before such a confession is recorded.

It is necessary that the confession should be signed by the accused. If it is not, will be admissible in evidence, the commission will not 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 a memorandum that it is voluntary is bad in law and cannot be admitted in evidence.

Manner of recording statements other than confession

In Section 164(5) of the CrPC, one can find the manner in which the Magistrate has to record the statement of the accused or any other witnesses. It states that the procedure, which is followed for recording evidence under Section 272 to 299 of the CrPC, should also be followed by the Metropolitan Magistrate or any other Judicial Magistrate for recording the non-confessional statement, during an investigation or anytime before the trial has begun. This provision also conferred the Magistrate with the power to administer an oath before a statement is recorded.

Recording the statement of a rape victim

Sub Section 5A was inserted in the CrPC in the year 2013 because of the recommendation made by a Committee chaired by J.S. Verma. The Section reads as a mandatory provision for recording the statement of the prosecutrix under Section 164(5A) of the CrPC by the Magistrate when the offence in question falls under Section 354, Section 354A, Section 354B, Section 354C, Section 354D, Section 376(1) or 376(2), Section 376A, Section 376AB, Section 376B, Section 376C, Section 376D, Section 376DA, Section 376DB, Section 376E or Section 509 of the Indian Penal Code, 1860.. As soon as the crime is brought to the knowledge of the police officer, he is duty–bound to take the victim to the nearest Judicial Magistrate for recording her statement. The victim approaches the court for recording her statement being distressed and aggrieved with the attitude of the investigating agency. Thus, it is the duty of the Magistrate to record her statement. Any professional, like interpreters or special educators, can assist the Magistrate in recording her statement, which will be videographed. This obligation on the part of the police officer is also mentioned under Section 154(1)(c) of the CrPC. For more click here.

Transfer of confession or statement to Magistrate of jurisdiction

This Sub Section (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.

Such a confession made by the accused or a statement made by the accused or witnesses that was recorded by a Magistrate shall, according to Section 80 of the Indian Evidence Act, 1872, be considered valid evidence, even if said Magistrate did not appear before the court as a witness during the trial or inquiry.

Step-by-step procedure for recording confession under Section 164 CrPC

Usually, the Magistrate will follow certain steps one by one while recording a confession from the accused. Those steps are as under:

Making the accused’s mind free from police influence

The Magistrate shall give a warning to the accused as mentioned under Section 164(2) of the CrPC before the confession is recorded. Thereafter, the Magistrate should give time and space to the accused to think and reflect on the same. In Sarwan Singh v. the State of Punjab (1957), the accused was unreasonably kept in police custody for four days and brought before the Magistrate to make a confession. The injured accused was given only half an hour to think about whether he had to make any confession, and the police officer was at the verandah of the Magistrate’s office. By considering all the aforesaid circumstances, the Supreme Court held that the confession is not voluntarily made on the ground that the accused has not been given enough time to think over the matter. The Court, further, said that there is no hard and fast rule to be followed by the Magistrate while recording confessions, but advised that the accused should be transferred to judicial custody 24 hours before the confessional statement is made so as to ensure that all possible pressure and influence from police is absent while recording the confession. If the Magistrate believes that the accused was trained or made a confessional statement under fear of the police, much more time should be given to him.

Knowing how the accused was treated in police custody

The Magistrate should inquire about the accused in order to know how he or she was treated by police officers in custody prior to recording the confession. The Magistrate shall also know from the authorities regarding the accused previous custody and future custody. The reason behind knowing the aforesaid details by the Magistrate, who is authorised to record confession, is to ensure that the police officer or any other person who was interested in proving the case of the prosecution is not exerting any undue influence or threatening the accused person to make a confessional statement. In the above-mentioned Sarwan Singh case, the Supreme Court mandated the Magistrates to enquire from those accused who possessed marks of injuries on him. In the case of Gurubaru Praja and Anr. v. The King (1948), Orissa High Court affirmed that “Magistrates should bear in mind that they have no jurisdiction to record until they satisfy themselves on making proper enquiries from the accused that he is making the statement voluntarily.”

Removal of handcuffs, if any

If the accused is handcuffed, then the Magistrate should order the police personnel concerned to remove the same and ensure the accused is free from all possible influence that comes from the investigating officers. The Magistrate can also order the police officers to leave his office or court in order to create an atmosphere free from threat and influence for the accused to make a voluntary confession.

Remit the accused to judicial custody after recording a confession

Firstly, the Magistrate should ask whether the accused is willing to make a confessional statement or not. The accused have every right to accept or reject it. If he or she denies confessing, such a person should not be sent back to police custody, as per Section 164(3) of the CrPC, because the accused, in this case, has a greater threat of torture from police or any individual who wants the prosecution to prove the guilt of the accused. In these cases where the accused denies making a confessional statement,  the Magistrate should guarantee that he or she will be given all possible safeguards from such extraneous agents. Even in cases where the accused made a confession and the Magistrate recorded the same, he or she should be remitted to judicial custody, not police lock-up.

Knowing the reason behind the confession

It is well-known to everyone, including the accused, that the confession will go against him, as he or she may even be convicted based on the confession if made voluntarily and following all requirements mentioned under Section 164 of the CrPC. Even after knowing this fact, it would, usually, be most likely for an accused to make a confessional statement to the Magistrate. Hence, the Magistrate should ask all reasonable questions to the accused and know the reasons behind making a confession in order to maintain the voluntary character of the same. Furthermore, the Magistrate shall let the accused know about the substantial nature of the confession as evidence against him in the trial proceedings, even if he takes back the statement he made and pleads not guilty.

The confession shall include all the replies of the accused

The Magistrate, being a judicial officer, shall ask, by applying his judicial mind, all reasonable questions which are required to determine the voluntariness of the confession by the accused. All those questions should be recorded and noted in the confession itself. Thus, the record of confession shall include the questions asked by the Magistrate as well as the replies to those questions and the confessional statement of the accused. 

Language of the record of the confession

The record shall have, as far as possible, the same language in which the accused answered. If that is not possible, then the court’s language should be used. In earlier cases, the Magistrate should read over the contents of the record to the accused before signing it; and, in later cases, where the accused could not understand the language of the court, the Magistrate must translate into the language known to the accused and let him know what the record contains. The accused should also be at liberty to make changes or add more statements to the same.

Memorandum at the end of the confession

Whatever procedure has been followed by the Magistrate, the accused, as per Section 164(4) of the CrPC, should sign the record of the confession. After this, the said provision instructs the Magistrate to make a memorandum at the end of the record of the confession in the following format:

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed) A. B. 

Magistrate”

Furthermore, as mentioned before, if the language of the accused is practicable to be used in the record of the confession, the Magistrate uses such language. But if the Metropolitan Magistrate is the one who is recording the confession, the contents of the memorandum should be in the language of the court, not the language of the accused, as mandated in Section 281(1) of the CrPC.

Putting things simply

• The statement of an accused though recorded in the presence of the Magistrate but not in accordance with the provision of Section 164 CrPC is inadmissible in evidence.
• A Magistrate has the discretion to record or not to record a confession. If he elects to record it, this is section requires him to comply with four provisions:
  • It should be recorded and signed in the manner provided in Section 281 and then forwarded to the Magistrate concerned.
  • He should give a statutory warning that the accused is not bound to make a confession.
  • He should be first satisfied that it is being made voluntarily,
  • He should add a memorandum at the foot of the confession.
• Thus it is sufficient if before commencing to record the confession, a Magistrate puts the necessary questions required by that section to the accused and it is not mandatory that he should keep on repeating those questions to him after every break in the recording of a long confession.

Are the recorded statements a public document

Statement recorded by a Judicial Magistrate or Metropolitan Magistrate under Section 164 CrPC, is a public document under Section 74 of the Indian Evidence Act,1872. This evidence is admissible under Section 80 of the Indian Evidence Act, 1872. In Guruvind Palli Anna Roa & Ors. v. State of Andhra Pradesh (2003), the 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.”

SC principles for Section 164 CrPC

In Rabindra Kumar Pal alias Dara Singh v. Republic of India (2011), the Supreme Court of India laid down the following principles:

1. The provisions of Section 164 Cr.P.C. must be complied with not only in form but in essence.
2. 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.
3. 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.
4. The maker should be granted sufficient time for reflection.
5. 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.
6. 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.
7. 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.
8. 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.
9. At the time of recording the statement of the accused, no police or police officer shall be present in the open court.
10. Confession of a co-accused is a weak type of evidence.
11. Usually, the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement

Who is a qualified person for recording statements under Section 164 CrPC

According to Section 164(1) of CrPC, Judicial Magistrate or the Metropolitan Magistrate, whether or not having jurisdiction in the matter can record the confession or statement made to him in the course of the investigation. The proviso added to the Subsection also removed those confessions recorded by a police officer in whom any power of magistrate has been conferred under the law for the time being in force. Hence only a judicial magistrate or Metropolitan Magistrate has the power to record the statement under section 164 of the Code.

From Section 164(1) of the CrPC, we can infer that the competent person to record the confession of the accused or statement made either by the accused or witness is a Metropolitan Magistrate or a Judicial Magistrate, not an investigating officer, irrespective of whether the Magistrate has jurisdiction in the said matter. Besides this, an Executive Magistrate or any other Magistrate, who is not empowered under Section 164(1) to record confessions or statements is not allowed to record them. Even if such Magistrate recorded confessions or statements, those cannot be adduced as evidence before a court of law, and, also, the oral evidence of the said Magistrate to support the confession of the accused is not admissible in the trial proceedings. Moreover, the Supreme Court, in State of Uttar Pradesh v. Singhara Singh and Ors. (1964), said that when particular officers like the Judicial Magistrate First Class are empowered to record confessions or statements under Section 164, such powers have to be performed only by those officers. If a Judicial Magistrate Second Class records, the same must be inadmissible.

For the Union Territories of Andaman and Nicobar Islands, Dadra and Nagar Haveli, and Lakshadweep Islands, there is a variation in the law for recording confessions or statements. A provision, i.e., Sub-Section (1A), was added after Sub-Section (1) of Section 164 in 1974. The provision gave relaxation to the above-said rule and allowed Executive Magistrates to record the confession, provided the following conditions were fulfilled:

1. Any Judicial Magistrate qualified to record the confession was absent for the time being;
2. The State Government opines that recording the confession of a particular accused is necessary and expedient;
3. After consulting the High Court which has jurisdiction to deal with the matter, the State Government shall confer powers, which are mentioned under Section 164(1) of the CrPC, to an Executive Magistrate, not a police officer, to record the confession of a particular accused.

Discretionary power of the Magistrate under Section 164 CrPC

If a police officer requests a Magistrate to record a statement from any witness, such a Magistrate is not obligated to do it. The Magistrate has full discretion to record statements under Section 164 of the CrPC, and his denial will not affect the fair trial and principles of natural justice because the Magistrate should apply his or her judicial mind when deciding upon this matter, and if he does not satisfy himself on voluntariness or veracity of the statement, he can deny recording the same. The Supreme Court, in Jogendra Nahak and Ors. v. State of Orissa and Ors. (1999), cautioned those Magistrates to be vigilant enough when accepting to record, under Section 164, any statements of the witness who approached without an investigating officer, because such witnesses may be sent by the accused in order to use them as defence witnesses. However, it does not mean that the Magistrate can refuse to record the confession, even in cases where he has reason to believe that the circumstances and statements of the accused are genuine and credible.

Where can a confession be recorded

Nowhere in the CrPC is it mentioned as to where and at what time the Magistrate shall record the confession made by the accused. However, the confession will, normally, be recorded by the Magistrate in the open court and during court hours. However, there is no hard and fast rule regarding the venue for recording the confession. The most essential requirement is to ensure that the confession is free and voluntary. If the accused freely and willingly made the confession in jail, they cannot deny the same. For instance, in the case of Hem Raj v. the State of Ajmer (1954), the Supreme Court made the confession of a prisoner admissible even if it was recorded in jail because it was voluntarily made and no threat was inflicted by anyone on such a prisoner.

Form of recording a confession

Delhi High Court has prescribed the proper format for writing down the confession. For more click here.

Evidentiary value

According to Section 25 of the Indian Evidence Act, 1872, any confession made by an accused before a police officer cannot be used as evidence against the accused in a court of law. Hence, it is said that a confession made to a police officer is inadmissible as evidence in court. Not only confessions but also statements made by the accused or witness and recorded by the police officer during the investigation cannot be adduced as evidence before courts. Such restrictions were made in the provisions of the CrPC because the police personnel in India are not yet considered trustworthy. If the police officers are empowered with recording confessions or statements and using them against the person who made them, it is believed that such officers are more likely to misuse the power and even go to the extent of extorting or fabricating the confessions and manipulating the statements while exercising their power. Therefore, the CrPC came with a provision, Section 164, in which not the investigating officers but the Judicial Magistrates are empowered to record the confessions and statements made during the stage of the investigation.

Furthermore, any confession which was duly recorded by the Judicial Magistrate by following the procedure mentioned in Section 164 of the CrPC, can be adduced as substantive evidence before the court. Even if the Judicial Magistrate, who recorded such a confession, is not called as a witness for formally proving it by making a statement before the court during the trial of the accused, the record of such a confession is admissible as evidence. The rationale behind this was stated under Section 80 of the Indian Evidence Act, 1872. This section mandates that the court should presume that records of confession or statements produced are genuine, that the circumstances under which such statements are made are true, and that the same was duly recorded by the Judicial Magistrate. However, such presumptions made by the court can be disproved by the defence counsel in a criminal case.

Besides this, a non-confessional statement, which was recorded by the Judicial Magistrate as per Section 164 of the CrPC, cannot be used as substantial evidence. Nevertheless, the same statement can be adduced to corroborate or contradict his later testimony in court under Section 157 or Section 145 of the Indian Evidence Act, 1872, respectively, if the person who made such a statement was called a witness in the trial. However, a statement made by a woman victim recorded under Section 164(5A)(a) of CrPC can be used as an examination-in-chief, in accordance with Section 137 of the Indian Evidence Act, 1872 and the said woman can also be cross-examined regarding the said recorded statement.

What is the procedure to be followed while recording statements under Section 164 CrPC

The procedure to be followed while recording the statement is mentioned in Sub Section (5) of Section 164. This subsection states that any Statement (excluding confession) made under Sub Section shall be recorded in a manner hereinafter provided for the recording of evidence as is, in the opinion of the magistrate, best fitted to the circumstances of the case. The magistrate shall also have the power to administer an oath to the person whose statement is so recorded.

Delhi High Court while citing Punjab Government Circular Letter No. 6091-J.-36/39329 (H.—Judl.), dated the 19th December 1936, to all District Magistrates in the Punjab, in Delhi High Court Rules said that, before the Magistrate proceeds to record the confession, he should arrange so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner—that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him, in order to ensure that the statements made are voluntary.

Hence there is no such procedure prescribed and it is left to the magistrate to deal with the matter in the best-suited way, keeping in mind the circumstances of the cases.

Places where the recorded statements are 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 Sections 157 and 145 of the Evidence Act,1872. It can be used for the purpose of corroboration. It can be used to cross-examine 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.

The Supreme Court in Kashmira Singh v. State of Madhya Pradesh (1952). answered the question of the use of the statement in the trial. The court observed that “In case of witness denies the fact of recording of his statement by Magistrate or if he denies a specific portion of his statement to be not told by him, examination of Magistrate is not necessary to prove contradiction which is unlike the case of the statement recorded by police under section 162”.

Additionally, in the case of Ramprasad v. State of Maharastra (1999), the Supreme Court held that any statement recorded by the Judicial Magistrate under Section 164 of the CrPC can be relied upon for the purpose of either corroborating the testimonies made by a witness as provided in Section 157 of the Indian Evidence Act, 1872, or contradicting a witness as provided in Section 155 of the said Act.

Relevance of statements recorded by Police during investigation 

Section 162 CrPC contains a prohibition Against the singing of the witness’s statement recorded during the investigation. It has  its origin in the historical distrust about the faithful recording of statement by the investigation officers. This practice helps untruthful police officers to mould in the way they like, sometimes to the utter dismay of the witnesses. This is only possible because of the validity of Section 162 CrPC which helps the accused to contradict the witness if during the trial in a court the witness comes to make a contradictory statement. This is impossible for the police to record contradictory statements even in the case of the truthful witness who must have said the same thing to the police as well as in the court. This statement in the case of Dairy often helps the accused to get acquitted if the court does not handle the issue carefully.

10 important concluding points

• The statement recorded under Section 164 of the code focuses on the statement of the witness by the magistrate which is under this section recorded under this section on oath.
• 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.
• The statement recorded under section 164 of the code can be used for the corroboration of the witness’s testimony at the trial.
• The application for recording the statement under this section is usually filed by the prosecution.
• The magistrate has to ensure before recording the statement the voluntariness of a confession made before the magistrate is too well established for reiteration.
• The magistrate has ought to be extremely careful as regards the identity of the witness/ complaint before proceeding to record the statement.
• 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.
• Sub Section (1) of Section 164 CrPC authorizes the Magistrate to record the statement of a person or his confession, no matter whether he possesses jurisdiction in the case. If he does not possess such jurisdiction Sub Section (6) will apply
• 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.
• Only a judicial magistrate or Metropolitan Magistrate has the power to record the statement under Section 164 of the Code

Non-compliance of the procedure

Non-compliance with the procedure as mentioned under Section 164 was provided under Section 463 of the CrPC. This provision states that the court, which received the record of confession or statement as evidence, can consider them even though the Magistrate did not follow due procedure while recording, provided the following two requirements are fulfilled:

1. The said non-compliance of the procedure under Section 164 by the Magistrate does not harm the accused person in his defence on the merits.
2. The accused person had duly recorded the statement.

The above provision is an exception to the rule laid down under Section 91 of the Indian Evidence Act, 1872, which necessitates the litigants to submit the document itself, not any other proof when it was made into a document as required by the law. According to this section, the recording of the confession shall not be considered evidence when it was not duly recorded as per the procedure in Section 164. However, Section 463 removes this rule in the case of recording the confession and makes it admissible in courts. It also allows the litigants to place oral evidence to prove that the procedure mentioned in Section 164 is abided by the Magistrate, as observed by the Supreme Court in the case of Kehar Singh and Ors. v. State (Delhi Administration) (1988). Besides this, if the Magistrate does not follow the prescribed manner while recording the confession, his oral evidence stating that the accused confessed to him is not admissible. If made admissible, the very object of Section 164, i.e., the confession of the accused can be proved if made in the prescribed manner, which also includes protection to the accused, will defect. Hence, proof of the confession by any other means is not permissible. Therefore, in State of Uttar Pradesh v. Singhara Singh and Ors. (1963), the Supreme Court made the oral evidence given by the Magistrate inadmissible.

Important case laws

K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise Collector (1997)

In this case, the Supreme Court held that it is a well-settled legal position that a voluntary confession made under Section 164 of the CrPC can stand solely as a basis for the conviction of its maker or the accused. However, if the confession is retracted by the accused at a later stage, such as during court proceedings, the burden of proving that the confession was not freely made is on the accused, and a reasonable doubt is enough to prove the same. After this, the burden of proof shifts to the prosecution to prove the voluntariness of the confessional statement. If the prosecution succeeds in the same, such retracted confessions can be utilised for the purpose of corroborating any other independent evidence. The Court further observed that “the retracted confession could be used as evidence corroborative to satisfy the conscience of the Court that the prosecution has proved its case beyond reasonable doubt from other evidence on record.” In the present case, the Supreme Court convicted the accused based on the confession and other evidence provided by the prosecution witnesses.

Mahabir Singh Etc. v. State of Haryana (2001)

In this case, the Supreme Court stated that if an accused person is willing to confess, then he or she can approach a qualified Magistrate and request a recording of the confession. For this, there is no requisite that the accused shall be sponsored ‘or produced by the police officer, unlike in the case of recording the statement of the witness or victim. Nonetheless, the Court further observed that the only requisite that a Magistrate shall consider and know before recording the confession is whether the person requesting to record the confession is concerned with the case and such accused is voluntarily giving the statements or is under fear and other extraneous influence. In the present case, because the Magistrate did not take all precautions to warn the maker of the confession that the same is not mandatory and made known to him its consequences, the Supreme Court did not consider the recording of the confession.

Babubhai Udesinh Parmar v. State of Gujarat (2006)

In this case, the accused person made a confession before the Magistrate under Section 164 of the CrPC. However, the facts in the testimonies of the witnesses and the confession differed and were inconsistent with each other. It was later known by the Supreme Court that the accused person made the confession on the administration of the oath. The Supreme Court held that the practice of administering an oath before or while taking a confession or statement from the accused is forbidden.

Varghese M.U. v. Central Bureau of Investigation, Cochin (2015) 

In this case, the Supreme Court directed the Magistrates who took the duty of recording the statements of a witness or victim to take all due care not to share the same with anyone except police personnel in charge of investigating the said case. However, if the said witness or victim himself made the statement before the media or general public, the said Magistrate is not responsible for the same. The Supreme Court further gave a direction to Magistrates to record the non-confessional statements made by witnesses, victims or anyone excluding the accused person in camera under Section 164 of the CrPC. The confidentiality of such statements shall be maintained by the concerned Magistrates. If not done, the defence, knowing something may be done with the statements, such as tampering or destroying evidence, may mislead and hamper the investigation, which is detrimental to the prosecution and leads to the injustice of the victim. The Court cautioned not just magistrates but also investigating officers to take all steps for non-disclosure of the statements made by witnesses or victims under Section 164 of the CrPC.

Conclusion

Thus, it is a false notion that the confession of the accused is not admissible in any case because, usually, any accused cannot make statements that are against his interests. However, there are a few situations in which the conscience of the accused persons makes them tell the truth and accept the guilt of the commission of the offence through confessions. It will be valid and substantial evidence if the confession is made before the Judicial or Metropolitan Magistrate freely and voluntarily without any undue influence and the same is recorded in a prescribed manner as provided under Section 164 of the CrPC. Voluntary confessions are deemed to be the most effective proof in law. Although, on the face, it appears to be against the accused, it does not violate the principles of natural justice and fair trial as there is a detailed procedure and reasonable manner prescribed under Section 164 of the CrPC, which also provides safeguards to the accused persons. The Magistrate can also record statements by the accused or any witnesses. However, the same cannot be considered to be substantial evidence.

Frequently Asked Questions (FAQs)

Whether the retracted confession made under Section 164 of the CrPC be reliable?

The retracted confession refers to the confession made by an accused person that was duly recorded as per the procedure under Section 164 of the CrPC during the investigation, which was, however, withdrawn or denied as committing the crime by the accused during the trial proceedings. Such a retracted confession can be relied upon by the court if it is strongly corroborated with circumstantial evidence as to the voluntary nature of the confession, irrespective of the maker’s subsequent retraction from his confession. This was observed by the Supreme Court in Henry Westmuller Roberts, Etc. etc. v. State of Assam and Ors. Etc. (1985).

Can a dying declaration be considered as a statement under Section 164 of the CrPC?

The Supreme Court answered this question in the case of Sunil Kumar and Ors. v. State of Madhya Pradesh (1997) where it was stated that the dying declaration recorded by the Magistrate by following the prescribed manner can be considered by the court as a statement under Section 164 of the CrPC and be used for corroboration or contradiction, even if the death of the maker of such a declaration did not take place. After much consideration by the court, such a dying declaration will no longer be a statement made under Section 32 of the Indian Evidence Act, 1872.

Whether the statement of the victim made as per Section 164 of the CrPC enough to frame charges?

Yes, solely based on the recording of the victim’s statement, which was recorded as per the requirements and procedure laid down under Section 164 of the CrPC, the court can frame charges against the accused because, in rape cases, the witnesses are, generally, victims and, hence, their statements must be given due weightage and relied upon for the purpose of framing charges. In State v. Mohd. Javed Nasir and Ors. (2022), the victim made a statement alleging the commission of rape by the accused that was duly recorded under Section 164 of the CrPC. However, the same statement was made by the victim in the FIR and, on this ground, the Trial Court erroneously discharged the accused. In the appeal, the Delhi High Court set aside the order made by the Trial Court and charged the accused under Section 376 of the Indian Penal Code, 1860 on the ground of the statement of the victim under Section 164 of the CrPC.

Can a victim request to record his or her statement several times?

Section 164 of the CrPC, for valid reasons, allows a police officer in charge of investigating the case to make several applications to a Judicial or Metropolitan Magistrate to record a statement because the subsequent statement by the victim or witness might be crucial due to the latest developments in the case or new findings. But, a victim cannot do so, if there is no reasonable cause, because such multiple requests lead to the rise of doubts as to the veracity of such statements. Recently, in the case of Smt. Manorama Singh v. State of U.P. and 3 Others (2023), where the petitioner/victim made a request for the third time for a video-graphed recording of her statement alleging that her previous statements were wrongly recorded by judicial officers, the Allahabad High Court observed, in this regard, that “doing so, will destroy the sanctity of such statements and in my view, shall frustrate the very purpose behind such statements”. In addition to this, the Court, in order to discourage such practices on the part of victims, imposed a penalty of Rs.20,000 on the petitioner that shall be paid to the State.

Whether someone can know the contents of the confession or statement made under Section 164 of the CrPC?

No, the contents of the confession or statement that was recorded by the Judicial or Metropolitan Magistrate under Section 164 of the CrPC shall not be revealed to anyone and the concerned authority must take all due care to keep the recording in a sealed cover adduce the same during trial proceedings as a disposition of witnesses or confession of the accused so that the defence can cross-examine it. The Supreme Court said in the case of State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014), in case of commission of the crime of rape, the Judicial or Metropolitan Magistrate shall give a copy of the statement made by the victim to him to the concerned investigation officer with a condition that the information in that document should not be revealed to anyone till chargesheet was filed in the criminal court. Despite such authorisation guidelines made by the Supreme Court in the Shivanna case, the confidentiality of the victim’s statement is repeatedly not being maintained by a few careless investigating officers and, thus, the rights of the victims are not preserved. These observations were made by the Supreme Court in A v. State of Uttar Pradesh and Anr. (2020) and Eega Soumya v. M. Mahender Reddy (2022).

References

• https://districts.ecourts.gov.in/sites/default/files/GAnusha%20Prl%20JCJ%20Husnabad.pdf
• https://www.livelaw.in/high-court/allahabad-high-court/allahabad-high-court-rules-against-multiple-requests-for-victim-statement-under-section-164-crpc-240174
• https://www.scconline.com/blog/post/2023/03/28/164-statement-a-judicial-cloak-of-justice-for-victims/
• https://www.scconline.com/blog/post/2022/11/25/delhi-high-court-statement-made-under-sec-164-crpc-disclosing-commission-of-rape-is-sufficient-to-frame-charges-under-sec-376-ipc/
• “R.V. Kelkar’s Lectures on Criminal Procedure” by Dr. K.N. Chandrasekharan Pillai.

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