Making a Confession or Statement under 164 CrPC

Synopsis: The paper will be talking about the procedure of recording of a confession and statement under section 164 CrPC. The paper will try to answer the question regarding why confession alone is not sufficient for conviction and statements are not substantive evidence.

Magistrate can record confession or statement

Any Metropolitan Magistrate or Judicial Magistrate, not even having jurisdiction in the case, has the authority to record a confession or statement made to him by a person, in the course of an investigation or after it, but invariably prior to the inquiry or trial. This is provided for under Section 164 of the Criminal Procedure Code, 1973 ( CrPC).  

The Section allows the recording of both confessions and other non-confessional statements. It provides a special provision to record confessions when they are made freely and voluntarily but not under any pressure or influence.  A confession so recorded is more of substantive nature than a non-confessional statement. The mode of recording confessions is different from that of statements.

Any confession or statement made before the Magistrate under Section 164 CrPC may be recorded by audio-video means in the presence of the advocate of the accused person.

Confession is admission of guilt

Confession is admission suggesting the inference that the person making it committed the crime. If the maker of the statement does not admit himself to be guilty, the statement will not be a confession. However confession cannot be used for conviction when the prosecution case itself is inconsistent with it.

An accused person can appear before a Magistrate to make a statement under the above mentioned provision, without him being produced by the police when the investigation is going on.

Magistrate has discretion in recoding statement

Recording of statement under Section 161 CrPC by Police is a condition precedent for recording statement by Magistrate under Section 164 CrPC when the police officer produces the person to make a statement.

Even a private party or victim's pleader can request the Magistrate to record the statement of a person but the Magistrate has enough discretion to refuse to do so.

In fact nothing prevents a person from going to a Magistrate requesting him to record his statement in regard to an offence when the investigation is going on.

But a Magistrate has enough discretion to refuse to record a statement if the police report and other records already can disclose the fact, which the person intends to record, at trial.

Statement of the victim

The Magistrate should record the statement of the victim of sexual offences listed under Section 164 (5A) CrPC, as soon as the offence is brought to the notice of the police.

The statements of the victim shall be used in lieu of the examination in chief which need not be recorded again during trial. But the maker can be cross examined on such statements.

Procedure of recording confession or statement

The Criminal Rules of Practice in Kerala, in its Sections 70 and 71, prescribe how the confession should be recorded. 

The Magistrate should first record his reason for believing that the accused is prepared to make the statement voluntarily. Until he has explained to the accused that he is under no obligation to answer any question at all and has warned the accused that it is not intended to make him an approver and that anything he says may be used against him, he should not record any statement at all.

Before recording a statement, the Magistrate shall question the accused in order to ascertain the exact circumstances in which his confession is made and the extent to which the police have had relations with the accused before the confession is made.

The Magistrate may put to the accused some questions as follows:

• Do you understand that the statement which you are going to make may be used against you?
• Were you detained by the police anywhere? If so, under what circumstances?
• Were you urged by the police to make a confession?

The Magistrate should record such questions put to the accused and the answer they received, before he turns to record the statement of the accused.

The recording of the statement of the accused, the administering of warning as above, and putting the questions as stated above, should never be done in the presence of the police officer or the co-accused.

Actual recording of the confession

The recording of confession shall be made in the manner examination of accused is done, as provided for in the Section 281 of the CrPC.

Recording of confession is a solemn act in which the Magistrate must satisfy himself by observing the requirements prescribed for such an act. The person confessing should be asked why he is making a statement against him.  All the questions and answers should be recorded in the first person. The Magistrate should reveal his identity to the accused as well.

In Regard to the procedure of recording, the Section 281 of the CrPC says whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such certificate shall be signed by the Magistrate. The memorandum shall form part of the record.

Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate or by a Court of Session, the whole of such examination including every question put to him and every answer given by him should be recorded. This recording should be done in full by the judge or magistrate. If he is unable to do so it should be done under his direction and under the superintendence of the court officer. The record shall be shown or read to the accused or to be interpreted to him, if his language is different.

No oath is needed prior to making confession, as the Section 281 CrPC does not prescribe it. Normally, the Magistrate must hear the confession first without recording it and shall then put questions to ascertain whether it is voluntary and then he may record it if he believes that it is voluntary.

While recording confession the whole of the confession made by him including every question put to him and every answer he gave, should be recorded in the style it was given. In recording the question-answer form can be used. The person making the confession shall also sign it.

The Magistrate should tell the accused that he is before a Magistrate independent of police and give assurance that he would not be under threat for not making a confession or a statement and if he makes any, it can be used against him.  This should be made clear to him in the plainest words possible rather than in a ritualistic manner.

The Magistrate shall make a memorandum at the foot of such record stating that he had explained the person that the statement he wanted to make was a voluntary statement which he was not bound to make and such a statement would liable to be used against him. The Magistrate should also sign it.

The format of the memorandum to be appended at the foot of the record of confession, as provided under Section 164 (4) 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'.

If there is non-compliance of mandatory procedure while recording confession under Section 164 (4) CrPC, such confession is not reliable. When a power is given to do a certain thing in a certain way the thing must be done in the way. Other ways of performance is forbidden.

Confession may be recorded in open court

Confession should ordinarily be recorded in open court during court hours unless there are specific reasons for doing it at Magistrate's residence, jail or other such other place. But recording a confession after court hours for want of time is not necessarily bad.

A confession recorded by the Magistrate at the police station would be inadmissible in evidence. If a person coming for recording confession from police custody he should be sent to jail custody at least for a day before his confession is recorded so as to ensure the free nature of confession, as per the criminal rules f practice mentioned above.

Oath necessary for non-confessional statements

The recording of the non-confessional statement of a person concerned can be made in the manner evidence is recorded.

The Magistrate can administer oath to the person before recording the statement. The recording shall be signed by the person making it. Mere failure to get signature may not be fatal but in controversy the omission in regard to the signature is fatal.

The Magistrate recording a confession or statement shall forward it to the Magistrate who would inquire into or try the case.

The recorded statement is a public record

Statement recorded under section 164 CrPC, is a public document under Section 74 of Indian Evidence Act, 1872 (IEA). Such statement shall presume to be genuine, true and duly taken. It is admissible in evidence under Section 80 of the IEA.

In Guruvind Palli Anna Rao and Others v State of Andhra Pradesh, it was held that the statement of witness recorded under the Section 164 CrPC, is a public document. It does not require any formal proof and there is no necessity to summon the Magistrate who records it.

Since the statement under Section 164 assumes the character of a public record, an application made by any person to obtain a copy of the statement cannot be denied. Accused is entitled to get a copy of it.

Confession alone is not sufficient for conviction

The confession alone is not sufficient to convict an accused unless the court is wholly satisfied that it is voluntary and true. The court must require corroboration in the case of a retracted confession. A confession by an accused can be used as a substantive piece if it is quite satisfying to the court in accordance with the prosecution case but a non-confessional statement by a witness cannot be used as a substantive piece.

The whole of the confessional statement is to be brought into evidence, not only the circumstances in favour of the accused but also those against him. The court can reject the improbable part if there are sufficient grounds for not to accept it or the prosecution has contradicted it.

The accused has no right to seek copy of the confessional statement at any stage before filing of charge sheet through it is not prohibited.

A statement made by an accused person under Section 164 CrPC, which does not amount to confession, can be used against the maker as an admission under Sections 18 to 21 of the IEA, if it is voluntary.

The statements are no substantive evidence

The statements made under Section 164 CrPC by any person including the accused cannot be treated as substantive evidence as the defence has no opportunity to cross examine the witnesses on the statements. The statement therefore is just like a previous statement given during investigation under Section 161 CrPC.

The statement under 161 CrPC can be used only to contradict the witness as provided under Section 162 CrPC. But the 164 statement can be used either to contradict or corroborate the witness as provided under Sections 145 and 157 of IEA. Under Section 145 of the IEA both statements under 161 and 164 of the CrPC are mere previous statements. However the Section 164 CrPC statement has some higher value than the Section 161 CrPC statement.

When a 164 CrPC statement is retracted by the person during trial it is the judge who should decide which version is true. After making the statement under Section 164 CrPC, if the witness turns hostile, the only course available to the judge is to prosecute the witness for perjury.

Principles to be followed

The essential principles that must be followed while recording 164 statements are:

1. The procedures prescribed must be complied with not in form but in substance
2. Magistrate should make a searching enquiry to ensure that there is absolutely no extraneous influence on the maker
3. Magistrate must enquire the motivation in making a confession or statement which may go against him
4. The maker must get sufficient time for reflection
5. The maker should be protected from possible threat for not making a statement
6. A non- voluntary confession is unreliable and a retracted confession cannot lead to conviction
7. Non- compliance of procedure will render confession unworthy of credence
8. During the time of reflection the maker must be wholly free from police influence
9. When recording the statement no police officer be in sight in the court
10. The court must corroborate from the confessional statement before relying on it for conviction.

Defects or irregularities in confession

In the recording of confession the Magistrate must follow all the procedural formalities. The defects and irregularities crept in while recording the confession cannot be easily rectified by any other means. So strict compliance of the procedures prescribed under Sections 164 and 281 CrPC is imperative to make a statement of confession admissible.

It should be borne in mind that the only thing that can be cured when there are defects and irregularities is its form but not its substance.

Court wants training on evidentiary value of 164 statement

A Division Bench of the High Court of Kerala in a recent judgment in Aneesh & another v State of Kerala ( Crl. A. No 95 of 2016 delivered on 28th January 2010) warned that if we unduly rely on unreliable pieces of evidence, such as statements recorded under Sections 161 and 164 of CrPC, natural consequence will be miscarriage of justice. Therefore more effective judicial training shall be scientifically structured for Sessions Judges for their effective performance. The court adds that in a significant number of cases, trial judges have been awarding severe punishment to the accused for commission of a crime that merely exists in the Judge's imagination and nowhere else.

The court points out that the above case is an excellent example in which wrongful conviction was meted out without any evidence on record and it is necessary to give appropriate training to judicial officers to analyse evidence in sessions cases with reference to the ground level facts and law. Therefore the High Court directed the Registry to send a copy of the above judgment to the Director, Kerala Judicial Academy for corrective measures in this regard.

The author, now with Thrissur Bar, can also be reached at rajankila@gmail.com.