Section 164 Crpc deals with the recording of confessions, and other statements that are not confessions. While a confession so recorded can be used as substantive evidence, a non-confessional statement is not Substantive evidence. If the maker of a non-confessional statement recorded under this section is called as a witness in the trial, then his earlier statement can be used for corroborating or contradicting his testimony in the court under Section 157 or Section 145 of the Evidence Act.
And the wordings in Section 157 clearly helps the court. The Supreme Court has pointed out that the expressions “at or about the time when the fact took place” in Section 157 should be understood in the context according to the facts and circumstances of each case. The mere fact that there was an intervening period of a few days, in a given case, may not be sufficient to exclude the statement from the use envisaged in Section 157.
The mode of recording a confession is not the same as in case of recording a statement. The mode of recording confession is much more elaborate so as to ensure that free and voluntary confessions alone are recorded under section 125 crpc.
The provisions of 164 crpc is a safety valve meant to muzzle involuntary confession. The object of Section 164 crpc read with the “Judges Rules” i.e. the Executive instructions of the High Court, is to find whether the statement sought to be made by an accused is perfectly voluntary or not.
An analysis of the section will bring out the following points:-
Sub-section 1 of 164 crpc
A confession or a statement can be recorded only by a metropolitan magistrate or a judicial magistrate. The proviso to sub-section (1) makes it clear that a police officer on whom the powers of a magistrate have been conferred by any law, will not be considered competent to record confession under Section 164.
If any executive magistrate or any other magistrate not empowered under sub-section (1) records a confession, the record of the confession cannot be put in evidence, and further, no oral evidence of the magistrate to prove the confession in such a case shall be admissible. Because, when a statute confers power on certain judicial officers, that power can be exercised only by those officers. No other officer can exercise that power.
The object in enacting such a provision is to create a safeguard for the benefit of the accused person.“ The basic object to entrust the serious business of recording confession upon the judicial officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not.
164(2) CRPC OF PROVISION
Sub-section (2) of Section 164 further enjoins the magistrate not to record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily. For the exercise of jurisdiction to record confession under Section 164, it is a sine qua non that the magistrate must have “reason to believe that the confession is being voluntarily made.
OTHER IMPORTANT POINTS
- Section 164 crpc does not mention the place and time of the recording of a confession. However, it has been held that the magistrate should record the confession in open court and during court hours.
- If an accused person desires to make a statement other than a confession, it can be recorded by a magistrate under “sub-section (5) of 164 crpc”. According to that sub-section, any statement other than a confession made to a competent magistrate by any person during the course of the investigation or at any time before the inquiry or trial can be recorded by the magistrate in the manner in which evidence is generally recorded. However, the manner of recording such statements can suitably be modified by the magistrate if he, in the circumstances of the case considers it desirable to do so. The magistrate can administer an oath to the person before recording his statement.
- The Magistrate recording a confession or statement under 164 crpc is required to send the record directly to the magistrate by whom the case is to be inquired into or tried. Such a record is admissible in evidence even though the magistrate making the record is not called a witness to formally prove it at the trial of the accused person. Because, according to Section 80 of the Evidence Act, the Court is required to presume-that the record is genuine, that any statement as to the circumstances under which it was made are true and that such confession or statement of the accused was duly recorded.
- Questions may arise to the legal consequences of non-compliance with the provisions of 164 crpc. The magistrate recording the confession may not belong to the class of magistrates mentioned in Section 164(1) CRPC; the person making the confession might not have been cautioned as required by Section 164(2); or the magistrate might have failed to record the confession or the statement in accordance with Section 164(4) i.e. not in the manner provided by Section 281; or the magistrate might have failed to make a memorandum as required by Section of 164(4). Section 463 is designed to cure to some extent the defects and irregularities in the recording of the confession or another statement of the accused under SECTION 164 CRPC.
Sub-section (4) requires that a confession shall be recorded in the manner provided in Section 281 for the recording of the examination of an accused person. Accordingly, the whole of the confession, including every question put to the accused and every answer given by him shall be recorded in full.
The record shall, if practicable, be in the language in which the accused gave the confession or if that is not practicable, in the language of the Court.
The record shall be shown or read to the accused, or if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. The confession so recorded shall be signed by the accused person making the confession.
There is no provision in Section 281 for administering oath to an accused. Therefore no oath can be administered to the accused who is making a confessional statement before a magistrate, and if oath, in fact, is administered it will be contrary to the provisions of Section 281 and as such the confessional statement would lose its evidentiary value.
Before recording any such confession, the magistrate is required to explain to the person making the confession that-
- he is not bound to make such a confession, and
- if he does so it may be used as evidence against him. These provisions contained in Section 164(2), if administered in the proper spirit, are most salutary. They should not degenerate into idle formalities.
THIS ARTICLE IS WRITTEN WITH THE HELP OF R.V KELKAR ON CRIMINAL PROCEDURE CODES