Judicial confession

 JU                            JUDICIAL CONFESSION:

Confession of an accused recorded u/s. 164 Cr.P.C., is known as judicial confession and the confession recorded by other person is known as extra-judicial confession. If the confession of an accused is recorded by the Investigation Officer, the same is governed by Sections 24 to 27 of the Indian Evidence Act, 1872. 

If the confession of an accused has been recorded by the Village Administrative Officer, the same is governed by Rule 72 of Criminal Rules of Practice framed by the Hon’ble Madras High Court. 

For easy reference, Section 164 Cr.P.C., is extracted hereunder. 

Section 164 in the Code of Criminal Procedure, 1973 

164. Recording of confessions and statements. 

(1) 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: Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. 

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. 

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody. 

 

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-" 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". 

(5) Any statement (other than a confession) made under sub- section (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. 

(6) 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. 

  A. The points to be borne in mind at the time of recording confession under Section.164 Cr.P.C is given below :- 

Before recording the confession, the learned Judicial Magistrate has to explain the person making it. 

  a) That he is not bound to make confession. 

  b) If he confesses, the same will be used against him. c) The learned Judicial Magistrate has to satisfy that the confession has been made voluntarily. d) If the person is not willing to make confession, the learned Judicial Magistrate shall not detain him under police custody. e) The learned Judicial Magistrate has to make a Memorandum at the foot of the confession as contemplated under Sub Section 4 of Section 164 Cr.P.C. f) Before recording confession the Learned Judicial Magistrate has to borne in mind the principles given by the Hon’ble Apex Court in [Chandran Case] and [Rabindra Kumar Pal v. UOI] g) At the time of recording confession of an accused, the learned Judicial Magistrate shall not administer Oath [Sec.164(5) of Cr.P.C] 

  B. Whether statement of accused recorded under special statute is confession or not? Statement of Accused recorded under special statute is not confession. Statements of detenu and accomplices recorded under Section 108 of Customs Act 1962 are not confession and as such there is no requirement to comply with the provisions of Section 164 Cr.P.C. – [Usha Rani Vs. Government of A.P].. What are the important points to be borne in mind by the Judicial Magistrate while recording confession?                            The Hon’ble Supreme Court in [Rabindra Kumar Pal Vs. Republic of India] has given principles to record confession and statement recorded u/s. 164 Cr.P.C. The same is given below:                               (i) The provisions of Sec. 164 Cr.P.C., must be complied with not only in form, but in essence.  AIR 1978 SC 1574 , (2011) 2 SCC 490 – Para 64 , 1994 Crl.L.J. 112 , (2011) 2 SCC 490; AIR 2011 SC 1436                                                                      (ii) 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 any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) 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. (iv) The maker should be granted sufficient time for reflection. (v) 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. (vi) A judicial confession not given voluntarily is unreliable, more so when such a confession is retracted, the conviction cannot be based on such a confession. (vii) Non-compliance with Sec. 164 Cr.P.C., goes to the very root of the Magistrate’s jurisdiction to record the confession and render the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer shall apply his mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police officials shall be present in the open court. (x) Confession of a co-accused is a weak type of evidence. (xi) The Court requires some corroboration from the confession of statement before convicting the accused person on such a statement.  C. Confession – whether voluntary or not? How to find out?    Before recording the confession of an accused, the learned Judicial Magistrate has to ascertain whether the confession is voluntary or not. In order to find out the confession is voluntary or not, the learned Judicial Magistrate ought to have put leading questions, but it should not be like cross-examination.                                       (a) – [Dagdu Vs. State of Maharashtra] – While recording confession, the Magistrate not caring to ascertain – whether it was voluntary or not –thus violating Sec. 164 (3) Cr.P.C. (b) [State of MP Vs Dayaram Hemaraj ]-; – Confession recorded by putting leading question and accused is found to be virtually cross examined – confession cannot be relied upon. (c) [Tilak Vs State of MP] -– Magistrate on perusal of CD putting questions and eliciting answer – the initiative did not come from the accused and so the confession cannot base conviction. (d) [Ayyub Vs State Of UP] -:: - The confessional statement must be shown to have been voluntarily made. The question intended to be put under sub-section (4) of 164 Cr.P.C. should not be allowed to become a matter of mere casual and mechanical enquiry. The Magistrate should be fully satisfied that it is in fact and in substance voluntary. (e) [Mahabir Singh etc. Vs State of Haryana] - When it is proved that the compliance of requirements under sub-section (2) of 164 Cr.P.C., have not been made by the Magistrate – cannot be treated as a voluntary confession. D.Reflection time:-                                             Before recording the confession of an accused, the learned Magistrate has to give reasonable time to the accused. The reflection time to the accused is mandatory. The learned Judicial Magistrate not only to record that reflection time is given to the accused, but also in letter and spirit he has to give time to the accused. (a) [Gundauran Vs Stated of Assam] - - Noting the time given for reflection is mandatory – mere noting that sufficient time was given for reflection is not enough. (b) [Kartar Singh Vs. State of Punjab]-– The confession must be recorded with great care and circumspection. No hard and fast rule could or should be laid down as to the procedure which would be adopted when the accused is brought before the Magistrate to record the statement. (c) [Ramesh Vs State] - - When the mandatory provision of Sec. 164 (4) Cr.P.C., was not adhered to by the Judicial Magistrate while recording the confession of the accused, such confession cannot be acted upon to convict the accused. (d) [Bheru Singh Vs State of Rajasthan] - - When the Magistrate had taken all the necessary precaution to ensure that the accused had sufficient time to reflect before he made confessional statement and that he was not under fear, or threat or inducement to make the statement. Then the confession can be acted upon.                                      E. Whether Executive Magistrate can record confession u/s. 164 Cr.P.C.? The term Magistrate used in Section 164 Cr.P.C., is clearly Judicial Magistrate and not the Executive Magistrate. Hence, confession u/s. 164 Cr.P.C. cannot be recorded by the Executive Magistrate. [Asst Collector of Central Vs Duncan Agro Ltd - - The confession statement of an accused must be recorded by a Judicial Magistrate, if the confession of an accused is recorded by the Executive Magistrate, such confession is inadmissible.                F. Difference between the confession of accused and statement of witness                                                           The difference between the confession and statement recorded u/s. 164 Cr.P.C., is that when the Oath is administered it is the statement from the witnesses. So, before recording the confession and the statement, the learned Judicial Magistrate has to strictly follow Section 164 Cr.P.C. (a) [Philips Vs State of Karnatak] - - If a Magistrate administers oath to an accused before recording confession, the confession is vitiated and cannot be utilized. (b) [Abdul Razak Shaikh Vs State of Maharastra] - - It is mandatory on the part of the Magistrate recording the confession to obtain signature of the person whose confession has been recorded. The omission in this behalf cannot be cured by examining the Magistrate.                                  G. Whether the accused must be sponsored by the investigating agency to record confession u/s. 164 Cr.P.C? It has been made clear that as per Section 164(1) Cr.P.C., in the course of investigation under Chapter XII, the Judicial Magistrate can record confession of an accused. So, the Investigating agency alone can forward the accused to the Judicial Magistrate for the purpose of recording confession. Unless the accused is sponsored by the Investigating Officer, confession u/s. 164 Cr.P.C cannot be recorded.  (a) [Jogendra Nahak & others Vs State of Orissa]- - A person who is neither an accused nor sponsored by the Investigating Agency has no locus standi to apply to the Magistrate to record the statement u/s. 164 Cr.P.C. (b) [Mahabir Singh Vs State of Haryana] - - The Magistrate is not bound to record the statement of the  accused on mere asking by accused himself to record the statement, unless he has reason to believe that the investigation is commenced. (c) [Johendra Nanak and others Vs State of Orissa & others] -– A person who is neither an accused nor sponsored by the investigating agency has no locus standi to apply to the Magistrate to record his statement under Section.164 Cr.P.C.