ASSIGNMENT OF CODE OF CRIMINAL PROCEDURE, 1973

CONFESSION UNDER SECTION 164, CrPC,1973 AND IT’S

EVIDENTIARY VALUE

SUBMITTED TO: SUBMITTED BY:

MRS. SEEMA SHARMA APOORVA
ASSISTANT PROFESSOR 17FLICDDN01024
ICFAI LAW SCHOOL BBA LL.B (H)-III
DEHRADUN SECTION- A
CONFESSION UNDER SECTION 164, CrPC,1973 AND IT’S
EVIDENTIARY VALUE

CONFESSION UNDER EVIDENCE ACT, 1872:-

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of
the law of Evidence defines confession as “confession is an admission made at any time by a
person charged with a crime stating or suggesting the inference that he committed that crime.”

In Pakala Narayan Swami v Emperor Lord Atkin observed:

“ A confession must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council
decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admits the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement
which even though contains some confessional statement will still lead to acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would negate
the matter or offence, cannot amount to confession.

THE PROVISION

EC-164(1) of the Criminal Procedure Code, 1973 states that “Any metropolitan magistrate or
judicial magistrate may, whether or not he has jurisdiction in the case, record any confession or
confession made to him in the course of an investigation under this chapter or under any other
law for the time being in force, or at any time afterwards before the commencement of the
inquiry or trial:Provided that no confession shall be recorded by the police officer on whom any
power of magistrate has been conferred under any law for the time in force.
Here , the word “confession” is not taken in by the definition of “evidence” under Section 3 of
the Indian Evidence Act, 1872 it can fall under the expression “matters” referred to in the
definition of the word “proved” in Section 3 of the Evidence Act . Thus, “confession”, “notings”
made by the presiding judge upon the local inspection, “material objects” etc are covered by the
said expression “matters”. A confession is admissible without examining the magistrate who
recorded the same. If the confession is not in conformity with law, even the examination of the
magistrate will not cure the illegality.

EVIDENTIARY VALUE OF CONFESSION

Confession or statement under Section 164 CrPC is not a piece of substantive evidence and it’s
only use(as in the case of a First Information statement under Section 154 of CrPC) is to
contradict or corroborate the maker. The contradiction can be elicited by having recourse to
Section 145 of the Evidence Act. Therefore, a confession is ordinarily admissible in evidence. It
is a relevant fact, it can be acted upon . Under certain circumstances, it can form the basis for a
conviction. A Confession, judicial or extra- judicial if found to have been voluntarily made can
form the basis of conviction of the accused.

THE RELEVANCE OF RETRACTED CONFESSION

Merely, because the confession was retracted later, it does not mean that the confession was not
voluntary in nature. The issue as to whether the accused was willing to give confession
voluntarily or not is to be determined from his mental state at the time when he gave the
confession.

It is not the law that once a confession is retracted the court should presume that the confession is
tainted. A court may take into account the retracted confession but it must look for the reasons
for the making of the confession as well as for it’s retraction and must weigh the two to
determine whether the retraction affect the voluntary nature of the confession or not. If the court
is satisfied that it was retracted on account of an afterthought or advise ,the retraction may not
weigh with the court.

LEGAL STATUS UNDER THE EVIDENCE ACT OF A “CONFESSION”

OR “STATEMENT” RECORDED UNDER SECTION 164 OF CrPC
It is a public document under Section 74 of the Evidence Act as was stated in the case- State of
Madras v. G. Krishna:

Victim or witness to be sponsored by the police – A person who is neither an accused nor
sponsored by the police has no locus standi to apply to the magistrate to record his statement
under Section 164 CrPC. This is because the magistrate should not be burdened with the
additional task of recording the statements of sundry.

COMPULSORY RECORDING OF STATEMENT IN CERTAIN CASES

In the case of certain erotic offences against women as enumerated in Section 164(5A)a there is a
statutory obligation on the judicial magistrate to record the statement of the victim. If such victim
happens to be temporarily or permanently mentally or physically disabled, the magistrate is
obliged to take the assistance of an interpreter or special educator for recording the victim’s
statement which has also be video graphed. Sub-section (5A) (b) treats such statement to be
“chief examination” dispensing with the need for further chief examination during trial.

CONCLUSION

In respect of those cases, covered by sub-section 5(a) (b) of Section 164 of CrPC the statement
of persons suffering from the disability referred to therein, will have to be treated as substantive
evidence which, of course can attain the status of acceptable evidence only when an opportunity
to test the same by cross-examination is given.