Lawwatch

Making a Confession or Statement under 164 CrPC

Magistrate can record confession or statement

Any Metropolitan Magistrate or Judicial Magistrate, not even having
jurisdiction in the case, has the authority to record a confession or
statement made to him by a person, in the course of an investigation or
after it, but invariably prior to the inquiry or trial. This is provided
for under Section 164 of the Criminal Procedure Code, 1973 ( CrPC).

The Section allows recording of both confessions and other
non-confessional statements. It provides a special provision to record
confessions when they are made freely and voluntarily but not under any
pressure or influence. A confession so recorded is more of substantive
nature than a non-confessional statement. The mode of recording
confessions is different from that of statements.

Any confession or statement made before the Magistrate under Section 164
CrPC may be recorded by audio-video means in the presence of the
advocate of the accused person.

Confession is admission of guilt

Confession is admission suggesting the inference that the person making
it committed the crime. If the maker of the statement does not admit
himself to be guilty, the statement will not be a confession. However
confession cannot be used for conviction when the prosecution case
itself is inconsistent with it.

An accused person can appear before a Magistrate to make a statement
under the above mentioned provision, without him being produced by the
police when the investigation is going on.

Magistrate has discretion in recoding statement

Recording of statement under Section 161 CrPC by Police is a condition
precedent for recording statement by Magistrate under Section 164 CrPC
when the police officer produces the person to make a statement.

Even a private party or victim’s pleader can request the Magistrate to
record the statement of a person but the Magistrate has enough
discretion to refuse to do so.

In fact nothing prevents a person from going to a Magistrate requesting
him to record his statement in regard to an offence when the
investigation is going on.

But a Magistrate has enough discretion to refuse to record a statement
if the police report and other records already can disclose the fact,
which the person intends to record, at trial.

Statement of the victim

The Magistrate should record the statement of the victim of sexual
offences listed under Section 164 (5A) CrPC, as soon as the offence is
brought to the notice of the police.

The statements of the victim shall be used in lieu of the examination in
chief which need not be recorded again during trial. But the maker can
be cross examined on such statements.

Procedure of recording confession or statement

The Criminal Rules of Practice in Kerala, in its Sections 70 and 71,
prescribe how the confession should be recorded.

The Magistrate should first record his reason for believing that the
accused is prepared to make the statement voluntarily. Until he has
explained to the accused that he is under no obligation to answer any
question at all and has warned the accused that it is not intended to
make him an approver and that anything he says may be used against him,
he should not record any statement at all.

Before recording a statement, the Magistrate shall question the accused
in order to ascertain the exact circumstances in which his confession is
made and the extent to which the police have had relations with the
accused before the confession is made.

The Magistrate may put to the accused some questions as follows:

  • Do you understand that the statement which you are going to make may
    be used against you?

  • Were you detained by the police anywhere? If so, under what
    circumstances?

  • Were you urged by the police to make a confession?

The Magistrate should record such questions put to the accused and the
answer they received, before he turns to record the statement of the
accused.

The recording of the statement of the accused, the administering of
warning as above, and putting the questions as stated above, should
never be done in the presence of the police officer or the co-accused.

Actual recording of the confession

The recording of confession shall be made in the manner examination of
accused is done, as provided for in the Section 281 of the CrPC.

Recording of confession is a solemn act in which the Magistrate must
satisfy himself by observing the requirements prescribed for such an
act. The person confessing should be asked why he is making a statement
against him. All the questions and answers should be recorded in the
first person. The Magistrate should reveal his identity to the accused
as well.

In Regard to the procedure of recording, the Section 281 of the CrPC
says whenever the accused is examined by a Metropolitan Magistrate, the
Magistrate shall make a memorandum of the substance of the examination
of the accused in the language of the court and such certificate shall
be signed by the Magistrate. The memorandum shall form part of the
record.

Whenever the accused is examined by any Magistrate other than a
Metropolitan Magistrate or by a Court of Session, the whole of such
examination including every question put to him and every answer given
by him should be recorded. This recording should be done in full by the
judge or magistrate. If he is unable to do so it should be done under
his direction and under the superintendence of the court officer. The
record shall be shown or read to the accused or to be interpreted to
him, if his language is different.

No oath is needed prior to making confession, as the Section 281 CrPC
does not prescribe it. Normally, the Magistrate must hear the confession
first without recording it and shall then put questions to ascertain
whether it is voluntary and then he may record it if he believes that it
is voluntary.

While recording confession the whole of the confession made by him
including every question put to him and every answer he gave, should be
recorded in the style it was given. In recording the question answer
form can be used. The person making the confession shall also sign it.

The Magistrate should tell the accused that he is before a Magistrate
independent of police and give assurance that he would not be under
threat for not making a confession or a statement and if he makes any,
it can be used against him. This should be made clear to him in the
plainest words possible rather than in a a ritualistic manner.

The Magistrate shall make a memorandum at the foot of such record
stating that he had explained the person that the statement he wanted to
make was a voluntary statement which he was not bound to make and such a
statement would liable to be used against him. The Magistrate should
also sign it.

The format of the memorandum to be appended at the foot of the record of
confession, as provided under Section 164 (4) as follows:

“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”.

If there is non-compliance of mandatory procedure while recording
confession under Section 164 (4) CrPC, such confession is not reliable.
When a power is given to do a certain thing in a certain way the thing
must be done in the way. Other ways of performance is forbidden.

Confession may be recorded in open court

Confession should ordinarily be recorded in open court during court
hours unless there are specific reasons for doing it at Magistrate’s
residence, jail or other such other place. But recording a confession
after court hours for want of time is not necessarily bad.

A confession recorded by the Magistrate at the police station would be
inadmissible in evidence. If a person coming for recording confession
from police custody he should be sent to jail custody at least for a day
before his confession is recorded so as to ensure the free nature of
confession, as per the criminal rules f practice mentioned above.

Oath necessary for non-confessional statements

The recording of the non-confessional statement of a person concerned
can be made in the manner evidence is recorded.

The Magistrate can administer oath to the person before recording the
statement. The recording shall be signed by the person making it. Mere
failure to get signature may not be fatal but in controversy the
omission in regard to the signature is fatal.

The Magistrate recording a confession or statement shall forward it to
the Magistrate who would inquire into or try the case.

The recorded statement is a public record

Statement recorded under section 164 CrPC, is a public document under
Section 74 of Indian Evidence Act, 1872 (IEA). Such statement shall
presume to be genuine, true and duly taken. It is admissible in evidence
under Section 80 of the IEA.

In Guruvind Palli Anna Rao and Others v State of Andhra Pradesh,
it was held that the statement of witness recorded under the Section 164
CrPC, is a public document. It does not require any formal proof and
there is no necessity to summon the Magistrate who records it.

Since the statement under Section 164 assumes the character of a public
record, an application made by any person to obtain a copy of the
statement cannot be denied. Accused is entitled to get a copy of it.

Confession alone is not sufficient for conviction

The confession alone is not sufficient to convict an accused unless the
court is wholly satisfied that it is voluntary and true. The court must
require corroboration in the case of a retracted confession. A
confession by an accused can be used as a substantive piece if it is
quite satisfying to the court in accordance with the prosecution case
but a non-confessional statement by a witness cannot be used as a
substantive piece.

The whole of the confessional statement is to be brought into evidence,
not only the circumstances in favour of the accused but also those
against him. The court can reject the improbable part if there are
sufficient grounds for not to accept it or the prosecution has
contradicted it.

The accused has no right to seek copy of the confessional statement at
any stage before filing of charge sheet through it is not prohibited.

A statement made by an accused person under Section 164 CrPC, which does
not amount to confession, can be used against the maker as an admission
under Sections 18 to 21 of the IEA, if it is voluntary.

The statements are no substantive evidence

The statements made under Section 164 CrPC by any person including the
accused cannot be treated as substantive evidence as the defence has no
opportunity to cross examine the witnesses on the statements. The
statement therefore is just like a previous statement given during
investigation under Section 161 CrPC.

The statement under 161 CrPC can be used only to contradict the witness
as provided under Section 162 CrPC. But the 164 statement can be used
either to contradict or corroborate the witness as provided under
Sections 145 and 157 of IEA. Under Section 145 of the IEA both
statements under 161 and 164 of the CrPC are mere previous statements.
However the Section 164 CrPC statement has some higher value than the
Section 161 CrPC statement.

When a 164 CrPC statement is retracted by the person during trial it is
the judge who should decide which version is true. After making the
statement under Section 164 CrPC, if the witness turns hostile, the only
course available to the judge is to prosecute the witness for perjury.

Principles to be followed

The essential principles that must be followed while recording 164
statements are:

  1. The procedures prescribed must be complied with not in form but in
    substance

  2. Magistrate should make a searching enquiry to ensure that there is
    absolutely no extraneous influence on the maker

  3. Magistrate must enquire the motivation in making a confession or
    statement which may go against him

  4. The maker must get sufficient time for reflection

  5. The maker should be protected from possible threat for not making a
    statement

  6. A non- voluntary confession is unreliable and a retracted confession
    cannot lead to conviction

  7. Non- compliance of procedure will render confession unworthy of
    credence

  8. During the time of reflection the maker must be wholly free from
    police influence

  9. When recording the statement no police officer be in sight in the
    court

  10. The court must corroborate from the confessional statement before
    relying on it for conviction.

Defects or irregularities in confession

In the recording of confession the Magistrate must follow all the
procedural formalities. The defects and irregularities crept in while
recording the confession cannot be easily rectified by any other means.
So strict compliance of the procedures prescribed under Sections 164 and
281 CrPC is imperative to make a statement of confession admissible.

It should be borne in mind that the only thing that can be cured when
there are defects and irregularities is its form but not its substance.

Court wants training on evidentiary value of 164 statement

A Division Bench of the High Court of Kerala in a recent judgment in
Aneesh & another v State of Kerala ( Crl. A. No 95 of 2016 delivered
on 28^th^ January 2010) warned that if we unduly rely on unreliable
pieces of evidence, such as statements recorded under Sections 161 and
164 of CrPC, natural consequence will be miscarriage of justice.
Therefore more effective judicial training shall be scientifically
structured for Sessions Judges for their effective performance. The
court adds that in a significant number of cases, trial judges have been
awarding severe punishment to the accused for commission of a crime that
merely exists in the Judge\’s imagination and nowhere else.

The court points out that the above case is an excellent example in
which wrongful conviction was meted out without any evidence on record
and it is necessary to give appropriate training to judicial officers to
analyse evidence in sessions cases with reference to the ground level
facts and law. Therefore the High Court directed the Registry to send a
copy of the above judgment to the Director, Kerala Judicial Academy for
corrective measures in this regard.