Section 164 of the Criminal Procedure Code deals with the magistrate’s power to record a confession and other statements. The confession so recorded can be used as substantive evidence. In this law note, let us study the statements and confessions under section 164 CrPC.
What is a Confession and what is a Statement?
A confession is a statement in which the suspect acknowledges his guilt of a crime.
A statement is the declaration of matter of fact.
Who is Competent to Record a Confession or Statement?
Irrespective of the fact whether they have jurisdiction or not, a confession or a statement can be recorded by a Metropolitan Magistrate or by a Judicial Magistrate.
The proviso to section 164 of the Criminal Procedure Code provides that the police officer to whom the powers of the magistrate have been conferred is not competent to record confessions.
When can a Confession or Statement be Recorded by the Magistrate?
A confession of a statement under section 164 of the Criminal Procedure Code can be recorded:
(i) either in the course of the investigation.
(ii) or anytime afterwards but before the commencement of inquiry or trial.
Manner of Recording a Confession under CrPC
Before recording a confession, the magistrate has to explain to the person confessing that:
(i) he is not bound to make such confession
(ii) and if he makes such a confession, it can be used against him as evidence.
Provisions of section 164 of the Criminal Procedure Code act as a safety valve to prohibit involuntary confession. To ensure that the confession is made voluntarily following directions are to be followed by the magistrate:
1. After giving the above-said warning, the magistrate should provide adequate time to the accused to think so that he is free from police influence (when he comes from police custody).
2. The accused will be asked about the treatment that he received in custody.
3. If there are any marks or injuries on the accused person’s body, he will be asked how he received them.
4. If the accused is handcuffed, his handcuffs will be ordered to be removed.
5. If the accused expresses his unwillingness to make a confession, then he will not be remanded to police custody.
6. Accused will be asked the reason as to why he is making such a statement which is against his self-interest.
7. The magistrate has to apply his judicial mind to ascertain that the accused confessing is not under any kind of influence, threat or promise.
8. The court can reject a confession if it is not found to be perfectly voluntary.
9. To determine the voluntariness of the confession, the prisoner’s mental state must be considered.
10. If the prisoner knows how to write, he may be asked to give his confession in writing to derive the real version from the prisoner himself.
11. The magistrate can explain to him his right to consult a lawyer before recording his confession under Article 22(1) of the Constitution and section 303 of the Criminal Procedure Code.
How a Confession is Recorded under CrPC?
Section 164(4) of the Criminal Procedure Code provides that confession shall be recorded in the manner provided under section 281 of the Criminal Procedure Code.
Section 281 of the Criminal Procedure Code is related to the mode of recording the examination of the accused and the language of such record and examination.
It is to be noted that no oath shall be administered to the accused while making the record. The record shall be read over to the accused in the language which he understands.
A memorandum of substance will be prepared by the magistrate recording the confession, and it will be signed by the accused and the magistrate.
The magistrate who records the confession statement shall then send the record directly to the magistrate by whom the case is to be tried.
Format of Memorandum.
The format of the memorandum is 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”
Non-compliance of Section 164 or 281 of CrPC
If the provisions of section 164 or section 281 of the Criminal Procedure Code are not followed, then the evidence can be taken for such non-compliance. Such a statement may be admitted if the magistrate is satisfied that the non-compliance has not injured the accused in his defence on the merits and that the statement was duly made.
Manner of Recording Statement under Section 164
Section 164(5) of the Criminal Procedure Code lays down that if the accused desires to make any statement other than a confession, it can be recorded by the magistrate. Such statements will be recorded in the manner evidence is recorded.
Here the magistrate can administer an oath to the person making such a statement.
Statement by Mentally or Physically Disabled Person
In recording the statement, an interpreter or a special educator’s assistance shall be taken by the magistrate if the person making the statement is temporarily or permanently mentally or physically disabled. Such recording shall be video graphed.