The mode of recording a confession is different from that of other statements. This section applies only to confessions which are made out of free will and voluntarily.
It is now a settled law that Section 164 does not merely deal with the manner of recording the confession and statements, but it also deals with their admissibility and relevancy as evidence in the trial.
The Supreme Court has ruled that the confession or statement made to a Magistrate in course of police investigation must be reduced to writing and by virtue of Section 90 of the Evidence Act; the Magistrate would not be competent to give oral evidence of such statement having been made by the accused.
Sub-section (1) provides that a Metropolitan Magistrate or a Judicial Magistrate may record a confession or a statement. If any Executive Magistrate or any other Magistrate not having power under Section 164 (1) records a confession, it cannot be used in evidence. The object of this provision is to create a safeguard for the benefit of the accused person.
Confessions or statements under this section can be recorded in course of an investigation or any time afterwards but before the commencement of inquiry or trial.
Sub-section (2) makes it clear that before recording any confession, the Magistrate is duty bound to explain to the person making the confession that he is not bound to make such a confession, and if he still prefers to do so, it may be used in evidence against him. These warnings are merely illustrative and not exhaustive. Where recording of confession is continued or postponed to another day, a fresh warning is deemed necessary before recording the confession.
It has been held by the Apex Court in a catena of cases that recording of confessions under Section 164 of Cr. P. C. is a very solemn act and in discharging his duties under the said section, the Magistrate should take care that the requirements of sub-sections (2) and (3) are fully satisfied. It is necessary in every case to put questions as intended to be asked under Section 164 (3).
The Supreme Court in M. A. Antony v. State of Kerala, held that a confession could not be rejected merely on the ground that the Magistrate used the expression ‘evidence’ instead of ‘confession’ while warning the accused, of the consequences before recording his confession.
The Supreme Court has held in Shankaria v. State of Rajasthan, that Magistrate should not record a confession, unless after questioning the person, he has reason to believe that it is being made voluntarily and out of free will.
The Magistrate, after having warned the person making confession that it may be used against him in evidence, should also give him adequate time to think over his decision. Although no statutory period for interval between questioning of the accused and the recording of his confession is laid down in the section but generally it should be an interval of 24 hours or more as the circumstances of the case may warrant.
The accused should be freed from the possible police influence at the time of making a confession. He “Should also be asked the reason as to why he is going to make a confessional statement which may go against him and lead to his punishment. Failure on the part of the Magistrate to ask the reason would amount to non-compliance of the requirement of subsection (2) which is curable under Section 463 of the Code.
A confession which is not made voluntarily is liable to be rejected. Where the voluntariness of confession has not been ascertained by the Magistrate at the time of recording confession it amounts to non-compliance of Section 164, Cr PC and the same defect could not be cured, by examination of Magistrate as a witness.
It is only the Magistrate is fully satisfied that there is real, genuine impelling motive behind making a confession; he should proceed to record it. Where the person making a confession is a literate person, he should be asked to write the confessional statement in his own handwriting.
The Magistrate recording the confession of an accused person should also explain to him that he has constitutional right under Article 22 (1) and also under Section 303 of Cr PC to consult a lawyer of choice before recording his confession. Where the person happens to be indigent and poor, he is also entitled to seek recourse to free legal aid services.
In Ram Singh v. Sonia the certificate was appended to the confessional statement under Section 164 by Magistrate certifying that statement was made voluntarily though he had failed to record question as to whether there was any pressure on accused (a woman) to give such a statement.
But this defect was cured as the Magistrate stated in his evidence before Court that he had asked such question to her and there was nobody else present in room while statement was recorded. Held that confessional statement recorded according to procedure set out in Section 164 read with Section 281 was admissible in evidence.
The confession shall be recorded in question-answer form and read out to the accused it the end of such recording. It should also be signed by the person making the confession.
The section nowhere provides that a confessional statement should be recorded after administering oath to an accused. In fact, if an oath is administered for this purpose, it would be contrary to the provisions of Section 281 of the Code and such a confession would lose is evidentiary value.
The Apex Court in Babubhai Udesinh Parmar v. State of Gujarat held that oath administered to accused while recording his confessional statement under Section 164 was not proper as taking of a statement of an accused on oath is prohibited. In the instant case, the accused was involved in rape and murder case. He had made confession of series of offences.
Two confessions were recorded one after another in quick succession. The first confession was recorded in just 15 minutes. No legal aid was provided to the accused. Held, conviction could not be based on such confession as there was no other material to establish the guilt of the accused.
The Court pointed out that Section 164 provides adequate safeguards for an accused and, therefore, the provisions contained therein are required to be strictly complied with. The section does not envisage compliance of the statutory provisions in a routine or mechanical manner. Therefore allowing the appeal the conviction of the accused was set aside.
The confessional statement of the accused should be recorded in open Court during the Court hours, although this has not been specifically mentioned in Section 164 of the Code.
Sub-section (5) contains provisions relating to recording of statements other than a confession. Such statements may be recorded by the competent Magistrate in course of investigation or at any time before the inquiry or trial. The Magistrate can administer oath to the person before recording such statement. But the statement made under this sub-section cannot be used as substantive evidence. They can only be used for contradicting or corroborating the person under Sections 145 and 157 of the Evidence Act.
The Supreme Court in Joginder Nahak v. State of Orissa has expressed a view that the Magistrate is under no obligation to record statements of strangers who approach him with the request that their statement be recorded in connection with the crime. In the instant case, some stranger persons approached the Magistrate with the request that their statement be recorded under Section 164 with a view to support the plea of alibi set up by the accused. Giving reasons for rejecting the plea of stranger persons the Supreme Court observed that, if a Magistrate is obliged to record the Statements or all such stranger persons who approach him “the situation would become anomalous and every Magistrate’s Court will be further crowded with a number of such intending witnesses brought up at the behest of the accused person.”
Sub-sector (6) requires that the Magistrate recording a confession or a statement under this section should send the record directly to the Magistrate by whom the case is being inquired into or tried. Such record shall be admissible in evidence even though the Magistrate who recorded the confession/statement is not called as a witness as per the provisions of Section 80 of the Evidence Act.
When a confession made by an accused person is subsequently retracted, it does not mean that there is no evidence on the record to support the confession, and therefore, the confession must be rejected outright. The credibility of such confession shall be decided by the Court according to the circumstances of each particular case.
As regards retracted confession, the following generalisations may be laid down—
1. A confession is not to be regarded as involuntary merely because it is subsequently retracted.
2. As against the maker of the confession, the retracted confession may form the basis of conviction if it is proved to be true and voluntarily made.
3. There is no rule of law that a retracted confession must be supported by independent reliable evidence corroborating it in material particulars.
4. A retracted confession may be used against a co-accused only if it is corroborated in material particulars. But the corroboration should not only confirm the incident of alleged crime, but must connect the co-accused with it.
5. The requirement of retracted confession to be corroborated is not a rule of law but a rule of prudence.
A retracted confession may form the basis of conviction of the person making it, even without any corroborative evidence. But it cannot form the basis of conviction of a co-accused unless it is supported by any corroborative evidence.
Distinction between Confession and Admission:
A mere admission is quite different from that of a confession. The acid test which distinguishes a confession from an admission is that where conviction can be based on the statement alone, it is a confession, but where some supplementaly evidence is needed to authorise a conviction, then it is an admission.
A confession is an admission made any time by a person charged with an offence suggesting that he has committed the offence. But a mere declaration is not a confession if it is not made with an intention to confess.
Some Relevant Cases:
The Supreme Court in M. Somashekar v. State of Karnataka, held that merely because the statement of witnesses is recorded under Section 164 of Cr. P.C. does not automatically dilute the worth of his evidence.
In Mangalbai W/o Vijay Singh Patil v. State of Maharashtra, there was a confessional statement and from the nature of injuries, it was proved that intention was to cause death. It was held that under these circumstances accused was liable to be punished for the offence of murder on the basis of the confession.
In Sanjay Goel v. State of U.P., the Magistrate ordered the accused to give handwriting in course of investigation so as to enable investigating agency to compare such writing under Section 164 Cr PC The Court held that the handwriting opinion, so obtained during investigation, could be read into evidence despite the bar created by Section 73 of the Evidence Act.
[164-A. Medical examination of the victim of rape.—(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:—
(i) The name and address of the woman and of the person by whom she was brought;
(ii) The age of the woman;
(iii) The description of material taken from the person of the woman for D.N. A. profiling;
(iv) Marks of injury, if any, on the person of the woman;
(v) General mental condition of the woman; and
(vi) Other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement and completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay, forward the report to the investigation officer who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in Clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering any examination without the consent of the woman or of any person competent to give such consent on her behalf.
For the purposes of this section “examination” and “registered medical practitioner” shall have the same meanings as in Section 53.]