PROCEDURE RELATING TO RECORDING OF CONFESSION OF ACCUSED & STATEMENT OF WITNESSES U/S 164 CR.P.C., AND THEIR RELEVANCY IN CRIMINAL TRIAL.

 

PROCEDURE RELATING TO RECORDING OF CONFESSION OF ACCUSED & STATEMENT OF WITNESSES U/S 164 CR.P.C., AND THEIR RELEVANCY IN CRIMINAL TRIAL.

I. INTRODUCTION :-

The term confession has not been defined in the Indian Evidence Act. As per the Black Law Dictionary, the meaning for confession is “a voluntary statement made by a person charged with the commission of a crime or misdemeanor, communicated to another person, wherein he acknowledges himself to be guilty of the offences charged, and discloses the circumstances of the act….”

The term Confession is nothing but admission of Guilt.

II. Discussion :-

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 & 30 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 authorise 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 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.

III. The points to be borne in mind at the time of recording of confession of an accused 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 be 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]

IV. 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 also..

(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

V. 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 has been given voluntarily 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 Dyaram S/o. Hemraj] -;

- 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 be a base for 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 Vs State of Haryan] - 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.

VI. Reflection time :-

Before recording the confession of an accused, the learned Magistrate has to give reasonable time to the accused. The reflection time the accused is mandatory. also letter and spirit he has to give time to the accused.

          [Gundauran Vs State 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 Rajastha] -- 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.

VII. 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.

a) 14[The Assistant Collector of Central Excise Rajmurthy Vs Buncan Agro India] - - 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.

 

VIII. 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 Karnataka] - - If a Magistrate administers oath to an accused before recording confession, the confession is vitiated and cannot be utilized.

b) [Abdul Ralak Shaikh Vs State of MP-- 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.

IX. 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 an 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 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 and others 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.

X. Statement u/s. 164 Cr.P.C. :-

(i) Before recording the statement u/s.164 of Cr.P.C., the learned, Judicial Magistrate shall administer Oath.

(ii) Any statement other than a confession shall be recorded in the manner provided for recording of evidence. No need to record memorandum as in the case of recording confession.

A statement may be recorded in the manner prescribed for recording evidence, while in the matter of recording of confession; the requirement of Section must be complied with.

XI. Maker of the statement – died – whether admissible u/s. 32 of Evidence Act :-

The maker of the statement recorded u/s. 164 Cr.P.C., if died, the same cannot be admitted u/s. 32 of Indian Evidence Act –– [T.S. John Vs. State of Kerala].

XII. Whether statement under Section 164 Cr.P.C., - sufficient to convict :-

No, the accused cannot be convicted only on the basis of statement recorded u/s. 164 Cr.P.C. – [Jevvadhi Sesha Rao Vs. State].

 

 

XIII. Statement to Magistrate u/s. 164 (4) Cr.P.C – Scope :-

[Mottaiyan @ Angamuthu & others Vs. State].

The Magistrate has not recorded footnote – Whether he believed that the confession was voluntary or not. No evidence that the Judicial Magistrate appraised the accused of the fact that the confession would be used against him during trial.

The law laid down in [Chandran Vs. State of Madras] –– regarding 164 (4) Cr.P.C – footnote. Whether hope or belief of the learned Magistrate is necessary in the footnote. According to the law laid down in the said case, there must be footnote indicating the clear compliance of Section 164 (4) Cr.P.C.

In a similar case, 2017(1) TNLR 484 (Mad) (MB) and 2017(1) TNLR 313 (Mad) (MB), the same view has been recorded and found that it is illegal on the part of the Magistrate to administer oath on the accused since the same amounts to testimonial compulsion.

XIV. CONCLUSION

From the above discussions, it is made clear that at the time of recording statement from the witnesses and recording confession from the accused, the learned Judicial Magistrates have to take more care and to comply Section 164 Cr.P.C., in letter and spirit.