Latest Judgments on Section 164 of CrPC

A confession refers to the acknowledgment of guilt, either directly or indirectly implying one’s culpability, made by an accused person while in custody. According to Justice Stephen, a “confession” is an admission made by a person charged with a crime, at any given time, stating or suggesting that they committed the said crime.

Section 164 of CrPC Simplified
Section 164 of CrPC Simplified

In the case of State (NCT of Delhi) v. Navjot Sandhu, the honorable Supreme court observed that confessions are highly regarded as reliable since it is unlikely for a rational individual to confess against oneself unless driven by their conscience to speak the truth.

What statements can be considered confessions?

A confession is a statement made by an accused person admitting their guilt. Therefore, if the maker of the statement does not incriminate themselves, it cannot be considered a confession. Additionally, a statement that combines both a confessional element and self-exculpatory content may lead to an acquittal, as it does not constitute a confession. It should be noted that a statement containing self-exculpatory information that is false and contradicts the offense cannot be deemed a confession. This is because a confession must be accepted or rejected in its entirety, and the court lacks the authority to accept only the incriminating part while disregarding the exculpatory section (statement of self-defense).

Recording Statements by Magistrate under CrPC

Reasons for Recording The recording of witness statements under Section 164 of the Code of Criminal Procedure serves two purposes:

  1. Preventing witness tampering: By recording statements, it discourages witnesses from altering their versions later on.
  2. Overcoming prosecution immunity: It helps overcome the protection against prosecution provided to witnesses under Section 162 of the code. Additionally, recording witness statements under Section 164 of the code also aims to reduce the likelihood of witnesses changing their versions out of fear of being accused of perjury.

Legal Provisions

Section 164 of the Code of Criminal Procedure (CrPC) pertains to the recording of statements by Magistrates:

Section 164(1) of CrPC empowers the Magistrate to record the statement or confession of a person, regardless of whether they have jurisdiction over the case. In cases where the Magistrate lacks jurisdiction, section 164(6) of CrPC is applicable. The term “statement” is not limited to statements given by witnesses but also includes statements made by the accused that do not amount to a confession.

According to Section 164(1) of CrPC: Any Metropolitan Magistrate or Judicial Magistrate, regardless of their jurisdiction in the case, is authorized to record any confession or statement made to them during an investigation under this chapter or any other prevailing law. This can be done either during the investigation or at any time prior to the commencement of the inquiry or trial.

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Warning under Subsection 2

Section 164(2) of CrPC specifies a warning that must be given by the Magistrate. According to this statutory provision, the Magistrate is required to first explain to the accused that they are not obligated to make a confession. Furthermore, if they choose to do so, the confession may be used against them. This warning is a prerequisite for recording a confession. Another mandatory requirement is that the Magistrate must ask questions to satisfy themselves that the confession is voluntary, which enables them to provide the necessary certificate under section 164(4) of CrPC.

In the case of Mahabir Singh v. State of Haryana, the court observed that if the Magistrate fails to explain to the accused that they are not bound to make a confession and that such a confession may be used as evidence against them, the recorded confession cannot be taken into consideration.

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It is crucial for the Magistrate to ensure that no pressure or force was exerted on the accused while making the confession. Any indication of coercion or duress that affects the voluntary nature of the confession renders it inadmissible under the section. Furthermore, it cannot be utilized as evidence under other provisions of the Indian Evidence Act, such as sections 21 and 29.

Bar against Police Pressure

Section 164(3) of CrPC provides a safeguard against police pressure being exerted on individuals who are unwilling to make a confession. It ensures that no undue influence or coercion is placed on the person. In cases where the accused has been in judicial custody for more than two days before making a confession, it has been held that this period is sufficient for the person to overcome any fear or influence from the police. Consequently, the confession may be deemed voluntary by the accused.

The interval between preliminary questioning and the recording of the confession does not necessarily have to be a 24-hour duration. Furthermore, a confession should not be rejected solely on the grounds that the Magistrate failed to assure the accused that they would not be returned to police custody in the event of their refusal to make the confession.

Manner of Recording Confession, Signatures, etc.

According to Section 164(4) of CrPC, a confession should be recorded in the manner prescribed under Section 281 and must be signed by the person making the confession. The Magistrate is then required to create a memorandum at the bottom of the confession. Merely signing a printed instruction supplied to the Magistrate would violate this section. If a confession is made voluntarily and recorded accurately in a different language, it can be considered as an irregularity. The complete confession must be brought on record, and its voluntary nature must be established before it can be acted upon.

It is essential for the accused to sign the confession. If the confession is not signed, it will not be admissible as evidence. In such a case, the absence of the accused’s signature would render the confession devoid of vitality. However, this irregularity can be rectified under Section 463. The attestation of the accused is not necessary when a confession is made in court to the officer presiding over the trial.

A confession without a memorandum declaring its voluntary nature is legally invalid and cannot be admitted as evidence.

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Manner of Recording Statements other than Confessions

Section 164(5) of CrPC specifies the procedure for recording statements other than confessions. Under this section, the statement of a witness can be recorded even after the submission of the charge sheet in the case. This provision allows for the recording of witness statements at a later stage as well.

Recording the Statement of a Rape Victim

Section 164(5A) of CrPC establishes a mandatory provision for the recording of the statement of a prosecutrix (female complainant/victim) under Section 164(5A) of the Code of Criminal Procedure (CrPC) by a Magistrate. As soon as the crime is brought to the attention of a police officer, it becomes their duty to accompany the victim to the nearest Judicial Magistrate for the purpose of recording her statement. The victim, feeling distressed and dissatisfied with the attitude of the investigating agency, seeks the intervention of the court to have her statement recorded. Therefore, it becomes the responsibility of the Magistrate to duly record her statement.

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Transfer of Confession to Magistrate of Jurisdiction

Section 164(6) of the CrPC states that the Magistrate who records a confession or statement under this section is required to forward it to the Magistrate who will be in charge of the inquiry or trial of the case.

In simple terms

A statement made by an accused, even if recorded in the presence of a Magistrate, is not admissible as evidence if it does not comply with the provisions of Section 164 of the Code of Criminal Procedure (CrPC). A Magistrate has the discretion to decide whether or not to record a confession. If the Magistrate chooses to record it, this section requires them to fulfill four requirements:

  1. The confession should be recorded and signed according to the procedure specified in Section 281 and then forwarded to the relevant Magistrate.
  2. The Magistrate must give a statutory warning to the accused, stating that they are not obligated to make a confession.
  3. The Magistrate must be satisfied that the confession is being made voluntarily.
  4. A memorandum should be added at the bottom of the confession.

Therefore, it is sufficient if the Magistrate asks the necessary questions required by that section to the accused before commencing the recording of the confession. It is not mandatory for the Magistrate to repeat those questions to the accused after every break in the recording of a long confession.

Are the Recorded Statements Public Documents? Statements recorded by a Judicial Magistrate or Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure (CrPC) are considered public documents under Section 74 of the Indian Evidence Act, 1872. Such evidence is admissible under Section 80 of the Indian Evidence Act, 1872.

In the case of Guruvind Palli Anna Roa and others v. State of Andhra Pradesh, the High Court held that the statement of a witness recorded under Section 164 of the CrPC is a public document that does not require formal proof, and there is no need to summon the Magistrate who recorded it.

Established Principles U/S 164 of CrPC

In the case of RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA, the Supreme Court of India established the following principles:

  1. Compliance in form and essence: The provisions of Section 164 of the Code of Criminal Procedure (CrPC) must be followed not only in form but also in essence.
  2. Searching enquiry: Before recording a confessional statement, a thorough inquiry must be conducted by the Magistrate, questioning the accused about the custody from which they were produced and the treatment they received in such custody. This ensures that there is no room for doubt regarding any external influence coming from a source with an interest in the prosecution.
  3. Inquiry into motive: The Magistrate should inquire why the accused wishes to make a statement that will work against their own interest in the trial.
  4. Sufficient time for reflection: The accused should be given adequate time for contemplation before making a statement.
  5. Protection assurance: The accused should be assured protection from any anticipated torture or pressure from the police if they choose not to make a confessional statement.
  6. Voluntary nature of judicial confession: A judicial confession that is not given voluntarily is unreliable, especially when it is retracted. A conviction cannot be based solely on a retracted judicial confession.
  7. Non-compliance and jurisdiction: Failure to comply with Section 164 of the CrPC affects the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credibility.
  8. Reflection period without police influence: During the time of reflection, the accused should be completely free from any influence by the police. The judicial officer responsible for recording the confession must apply their judicial mind to ensure that the accused’s statement is not influenced by any external factors.
  9. Absence of police presence: No police or police officer should be present in the open court while recording the accused’s statement.
  10. Co-accused confession: Confessions made by co-accused individuals are considered weak evidence.
  11. Corroboration requirement: Typically, the court requires some corroborative evidence to support a confessional statement before convicting the accused based solely on that statement.
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Latest Judgements on Section 164 of CrPC

In the case of Hazrat Deen v. State of Uttar Pradesh, the Supreme Court of India made the following observations:

The court held that discrepancies between the First Information Report (FIR) and any subsequent statement under Section 164 of the Code of Criminal Procedure (CrPC) cannot be a ground for discharge without the initiation of a trial. Such discrepancies may be considered as a defense during the trial itself. The case involved the filing of a charge sheet against the accused, implicating him under various sections of the Indian Penal Code (IPC) including Sections 354 and 376, as well as Sections 5 and 6 of the Protection of Children from Sexual Offences Act, 2012.

The allegation against the accused was that he sexually abused the prosecutrix. The Allahabad High Court had dismissed the accused’s revision petition against the Trial Court’s order, which also dismissed his revision petition. The accused contended before the Supreme Court that the FIR did not disclose an offense under Section 376 of the IPC. The court noted that although the FIR is the initial document, the statement given by the prosecutrix under Section 164 of the CrPC made allegations that amounted to an offense under Section 376 of the IPC. As a result, the bench upheld the order dismissing the discharge petition.

In the case of Rohit @ Mirchi v. State of Haryana:

The Punjab and Haryana High Court addressed a petition seeking regular bail for the accused in an FIR related to physical abuse and abduction, which eventually led to the suicide of the complainant’s brother. The court held that the compromise between the parties cannot be considered as a ground for granting bail at this stage.

The bench, presided over by Justice Avneesh Jhingan, noted that the allegations in the FIR were serious and there were possibilities of the complainant being influenced, particularly since the other co-accused were yet to be arrested.

The court observed that although the petitioner was not named in the FIR, he was identified by the victim in a statement recorded under Section 164 of the Code of Criminal Procedure (CrPC). The evidentiary value of such a statement would be determined during the trial. The court stated that the issue of whether the FIR, which involved offenses of abduction and snatching, could be quashed based on a compromise would be subject to debate.

Considering these factors, the court concluded that the compromise between the parties could not be accepted as a ground for granting bail at that stage. Bail was denied, taking into account the seriousness of the allegations and the potential influence on the complainant.