DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A. P., INDIA

PROJECT TITLE:
NON COMPLIANCE WITH PROVISIONS OF SECTION 164 AND SECTION 281

SUBJECT:
CODE OF CRIMINAL PROCEDURE

NAME OF THE FACULTY:

B. SOMA

NAME OF THE CANDIDATE:

D. SUMANTH

ROLL NO: 18LLB120

SEMESTER:4th

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 ACKNOWLEDGEMENT
I would sincerely like to put forward my heartfelt appreciation to our respected faculty of Code
of Criminal Procedure B.Soma for giving me a golden opportunity to take up this project
regarding Non Compliance With Provisions Of Section 164 And Section 281. I have tried my
best to collect information about the project in various possible ways to depict clear picture about
the given project topic.

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CERTIFICATE OF DECLARATION
I hereby declare that this project titled Non Compliance With Provisions Of Section 164 And
Section 281 undertaken by me is an original work has duly acknowledged all the sources and
relevant information. This project is free from any kind of plagiarism.

Date:
Place: Visakhapatnam

Signature of the Researcher

Signature of the Faculty

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 TABLE OF CONTENTS:

1. INTRODUCTION…………………………………………………………………………5
1.1. Section 164 : Recording Of Confessions and Statements……………………………5
1.2. Section 281 : Record Of Examination Of Accused……………………………………7
2. SCOPE AND RELEVANCE OF STATEMENTS UNDER SECTION 164 OF CR.P.C..8
3. PROCEDURAL SAFEGUARDS……………………………………………………….…..9
4. NON-COMPLIANCE WITH PROVISIONS OF SECTION-164 AND SECTION-281..9
5. EVIDENTIARY VALUE OF JUDICIAL CONFESSION………………………………10
6. GUIDELINES FOR RECORDING CONFESSION UNDER SECTION 164…………11
6.1. Manner of Recording Confession……………………………………………………12
6.2. Genuinity of Recording Confession…………………………………………………13
7. EFFECT OF NON-ADHERENCE OF PROCEDURE…………………………………14
8. CASE LAWS………………………………………………………………………………15
9. CONCLUSION……………………………………………………………………………28

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 INTRODUCTION

Section 164 Cr. P.C. : Recording of Confession and Statements

An analysis of the section will bring out the following points:
I. A confession or a statement can be recorded only by a metropolitan magistrate or a judicial
magistrate. The basic principle to entrust the serious business of recording confession upon
the judicial officer is that they must exercise their judicial knowledge and wisdom to find cut
whether it is voluntary confession or not.
II. Confession or statements can be recorded under sec 164 either in the course of an
investigation or at any time afterward before the commencement of enquiry or trial, it can
still be used in evidence, but section 164 would not relate to such a confession and the same
would be recorded by the trial court or the court making the inquiry.
III. Before recording any such confession, the Magistrate is required to explain to the person
making the confession that (i) he is not bound 78 to make it and (ii) if he does so it may be
used as evidence against him. These provisions contained in section 164(2), if administered
in the proper spirit, are most salutary. They should not degenerate into idle formalities.
Magistrate should see to it that the warning is brought home to the mind of the person
making the confession. It is also very necessary that the magistrate should disclose his
identify to such person so as to assure him that he is no longer in the hands of the police.
IV. Subsection (2) of section 164 further enjoins the magistrate not to record any such
confession unless, upon questioning the person making it, he has reason to believe that it
was made voluntary. The following directions are normally followed by magistrate in order
to ensure that a confession is made voluntarily:-
(a) After giving warnings to the person making a confession under sub section (2) the
magistrate should give him adequate time to think and reflect. Normally such person, if
coming from police custody to sent to jail custody at least for a day before his confession is
recorded. The object of giving such time for reflection to the accused is to ensure that he is
completely free from police influence.
(b) Every inquiry must be made from the accused as to the custody from which he was
produced and as to the custody to which he was to be consigned and the treatment he had
been receiving in such custody in order to ensure that there is no scope of any sort of
extraneous influences proceedings from a source interested in the prosecution still lurking in
the accuser’s mind.
(c) If accused is handcuffed, the magistrate should order to remove the handcuff, and the
police and other person who are likely to have any influence over the accused should be
ordered to sit out in order to create free atmosphere.

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 (d) The accused should be assured in plain terms of protection from any sort of apprehended
torture or pressure from such extraneous agents as the police or the like in case he declines
to make a statement. As a further safeguard to ensure that the confession is voluntary
subsection (3) prohibits a remand to police custody of the accused if he expresses his
unwillingness to make the confession when produced before the magistrate.
(e) The accused should particularly be asked the reason why he is going to make a statement
which would surely go against his self-interest in course of trial and he should further be told
in order to remove any lurking suspicion in his mind that even if he contrives subsequently
to retract the confession, it will be evidence against him still. The magistrate’s failure to ask
why the accused wanted to confess was however held to be a noncompliance of form
curable under section 463.
(f) It would be necessary in every case to put the question prescribed by the High Court
Circular, but the question should not be allowed to become a matter of mere mechanical
enquiry and no element of casualness should be allowed to creep in. The whole object of
putting question to an accused who offers to confess is to obtain an assurance of the fact that
the confession is not caused by any inducement, threat or promise, having reference to the
change against the accused, as mentioned in section 24 of the Evidence Act.
(g) A confession must be perfectly voluntary otherwise the court should reject it. The term
voluntary means one who does anything of his own free will. A magistrate recording
confession must make inquisitorial enquiry and make adequate exercise to ascertain the
impelling reason of the prisoner to confess his guilt.
(h) It is imperative for the magistrate to explain to the accused his constitutional rights under
Art. 22(1) of the Constitution as well as the provisions of section 303 of the Cr. P.C. about
his right to consult a lawyer before recording the confession.
(i) It is the constitutional right of every prisoner who is unable to engage a lawyer or secure
a legal service on account of poverty, indigence or incommunicado situation to have free
legal service. In default of compliance with the obligation by the magistrate, the confession
is vitiated as contravening Art. 21 of the Constitution.
V. Subsection (4) requires that a confession shall be recorded in the manner provided by section
281 Cr. P.C. for the recording of the examination of an accused person. Accordingly the
whole of the confessional, including every question put to the accused and every answer
given by him shall be recorded in full. There is no provision in section 281 for administering
oath to an accused. Therefore no oath can be administered to the accused who is making a
confessional statement before a magistrate, and if oath is in fact administered it will be
contrary to the provision of section 281 and as such the confessional statement would lose
its evidentiary value.
VI. Whatever be the procedure for the recording of the confession, the confession shall be
signed by the person making it, and after the confession is recorded, the magistrate is

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 required to make a memorandum at the foot of the record as mentioned in subsection (4) of
section 164 Cr. P.C.
VII. If an accused desires to make a statement other than a confession, it can be recorded by a
magistrate under sub-section (5) of section. 164 Cr. P.C.
VIII. The Magistrate recording a confession or statement under section 164 is required to send the
record directly to the Magistrate by whom the case is to be inquired into and tried. Such
record is admissible in evidence even though the magistrate making the record is not called
as witness to formally prove it at the trial of the accused person. The confession so recorded
is a substantive evidence i.e. evidence of the facts which it states.

SECTION 281 – RECORD OF EXAMINATION OF ACCUSED

I. 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 memorandum shall be signed by the Magistrate and shall form part
of the record.
II. 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, shall be recorded in full by the
Presiding Judge or Magistrate himself or where he is unable to do so owing to a physical
or other incapacity, under his direction and superintendence by an officer of the Court
appointed by him in this behalf.
III. The record shall, if practicable, be in the language in which the accused is examined or, if
that is not practicable in the language of the Court.
IV. The record shall be shown or read to the accused, or, if he docs not understand the
language in which it is written, shall be interpreted to him in a language which he
understands, and he shall be at liberty to explain or add to his answers.
V. It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who
shall certify under his own hand that the examination was taken in his presence and
hearing and that the record contains a full and true account of the statement made by the
accused.
VI. Nothing in this section shall be deemed to apply to the examination of an accused person
in the course of a summary trial.

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SCOPE AND RELEVANCE OF STATEMENTS UNDER SECTION 164 OF CR.P.C.
Confession means a formal statement admitting that one is guilty of a crime. Confession is not
defined in the Evidence Act. Confession includes admission, but an admission is not confession.
A confession either admit in terms of the offence or at any rate substantially all the facts which
constitute the offence. If a statement falls short of such a plenary acknowledgment of guilt, it
would not be a confession even though the statement is of some incriminating fact which taken
along with other evidence tends to prove the guilt of the accused. Such a statement is only an
admission but not a confession. The person making it states something against himself, therefore,
it should be made in surroundings, which are free from suspicion. Otherwise it violates the
constitutional guarantee under Article 20(3) so that person accused of an offence shall be
compelled to be a witness against himself.
A direct acknowledgement of guilt should be regarded .-as confession. In case of Pakala
Narayana Swami Vs emperor AIR 1939 P.C. the question before the court was whether
statements from which the guilt of an accused can be inferred amounts to a confession or not. It
was held that “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, for example, an admission that the
accused is the owner of and was in recent possession of the knife or revolver which caused death
with no explanation of any other man’s possession”

PROCEDURAL SAFEGUARDS
The magistrate shall record the confession in the manner provided in section 281 for recording
the examination of the accused persons. It shall not only be signed by Magistrate, but also by the
accused himself. The magistrate shall also append a memorandum at the foot of the record as
laid down in the sub section (4). if he has no jurisdiction to inquire or try the offence he shall
forward the confession so recorded to the magistrate by whom the case is to be inquired into or
tried. The provisions of the section 164 of the criminal Procedural Code and rules and guidelines
framed by the Honourable High Court in this behalf providing for procedural safeguards etc,
must be complied with not only in form, but also in essence. When a confession is not recorded
by the magistrate in the manner prescribed by the section 164 of Criminal Procedure Code, then
it is not admissible in evidence.

NON-COMPLIANCE WITH PROVISIONS OF SECTION-164 AND SECTION-281 :

Non-observance of the procedure prescribed for recording of confession or a statement of the
accused under Section 164 may result in such confession being totally inadmissible, in evidence
thereby frustrating the cause of justice.
But this section seeks to rectify the error or non-compliance with any of the provisions of Section
164 or Section 281 by providing that oral evidence by the Magistrate to prove that the procedure
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laid down in Section 164 had actually been followed is permissible for the protection of the
accused persons even though the procedure prescribed by Section 164 is not complied with.
Thus the error from the non-compliance with the provisions of Section 164 or 281 of CrPC. is
cured under this section only when the defence of the accused is not adversely affected thereby
on merits.
However, if the Magistrate is not able to show affirmatively that the confession is in fact genuine
and made by the accused voluntarily, such error will unnecessarily be detrimental to the
protection of the accused and such confession is bound to be treated as unacceptable in evidence,
as it might lead to an inference that it was procured by threat, inducement or promise.
Where, while recording the confessional statement under Section 164; some questions put to the
accused were not recorded by the Magistrate, it was held that the Sessions Judge ought to have
looked into it in order to find out whether such omission had prejudiced the accused, and if not,
the confession could have been admitted in evidence as per Section 463 of CrPC.
Section 463 also cures the irregularities as to recording of a confession in the language other than
the language in which it was actually made by the accused.
If any court before which a confession or other statement of an accused person recorded, or
purporting to be recorded under section 164 or section 281 is tendered, or has been received in
evidence finds that any of the provisions of either of such sections have not been complied with
by the magistrate recording the statement, it may notwithstanding anything contained in section
91 of the Indian Evidence Act 1872, take evidence in regard to such noncompliance, and may, if
satisfied that such non-compliance has not injured the accused in his defence on merits and that
he duly made the statements recorded, admit such statement.
Section 463 Cr. P.C.. only permits oral evidence to prove that the procedure laid down in section
164 had actually been followed, where the record, which ought to show that, does not do so.
Section 164 Cr. P.C. does not override section 29 of the Evidence Art. In view of the specific
provisions of section 29, mere absence of warning under section 164 would not make the
confession inadmissible, provided the court is satisfied that the accused knew that he was not
bound to make the confession and that if he did so it would be used as evidence against him.
It can hardly be doubted that a magistrate would not be obliged to record any confession made to
him if, for example, it were that of a self accusing mad man, or for any other reason the
magistrate thought it to be incredible or useless for the purpose of justice.
Section 165 Cr. P.C. authorities a police officer making an investigation to search a place if he
thinks fit i.e. if he has sufficient ground to believe that anything necessary for the purpose of
investigation may be found in that place which is to be searched.
An officer in charge of police station or a police officer not being below the rank of sub-
inspector making an investigation may require an officer in charge of another police station,

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whether in the same district or a different district to cause a search to be made, within the limits
of his own station.

QUALIFIED PERSON FOR RECORDING THE STATEMENT UNDER SECTION 164

OF THE CODE
According to section 164(1) of CrPC, Judicial Magistrate or the Metropolitan Magistrate,
whether or not having jurisdiction in the matter can record the confession or statement made to
him in the course of the investigation. The proviso added to the Subsection also removed those
confessions are recorded by a police officer in whom any power of magistrate has been conferred
under the law for the time being in force. Hence the Only a judicial magistrate or Metropolitan
Magistrate has the power to record the statement under section 164 of the Code.

EVIDENTIARY VALUE OF JUDICIAL CONFESSION

Under Section 80 of the Indian Evidence Act, a Court will undoubtedly assume that an averment
or confession of a blamed individual, taken as per law and indicating to be marked by any Judge
or Magistrate, is real and that the authentication or note with regards to the conditions under
which it was taken implying to be made by the individual marking it is valid, and that such
articulation or confession was properly taken.
The words “taken in accordance with law” appearing in Section 80 are significant and it signifies
that while recording the confession, the sine qua non for recording a confession under Section
164 CrPC must be cautiously pursued.
The evidentiary value of a confession relies on its voluntary character and the exactness with
which it is replicated. If the confession is made voluntarily in sound mental condition and if it is
accurate, consequently, the provision shall shield the confession from being retracted by the
accused.
These shields are vital, as confessions are regularly withdrawn at a later stage and it becomes
momentous for the Court to learn whether the alleged confession was really and intentionally
made.
The fact that a confession is withdrawn at a later stage before the court does not render the
confessional statements inadmissible in court. However, the Court needs to investigate any such
confession with the most suspicious and vigilant mind and acknowledge it with the best alert. It
is a settled rule of evidence that if the prosecutor desires to rely on a retracted confession and
wants the judge to admit it as admissible, the confession must be substantiated by several other
pieces of evidence.
In Muthu swami v. State of Madras, the apex court observed that a confession ought not to be
acknowledged just in light of the fact that it contains an abundance of detail which couldn’t have

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been created. The court should look into details such as whether the confession was made
voluntarily and if there is any discovery or any lead in the investigation through the confession.

SALIENT FEATURES OF SECTION 164

Section 164 of the Code is one of the most significant provisions of CrPC. It describes the entire
procedure and circumstances in which a confession must be recorded. The section has been
amended with the passage of time to cope with the developments. The essential features of this
provision are:
Proclamations or confessions made throughout an investigation can be recorded distinctly by a
Magistrate of the First Class or a Magistrate of the Second Class who has been distinctly
engaged by the State Government.

CONFESSIONS MUST BE RECORDED AND SIGNED IN THE WAY PROVIDED

UNDER SECTION 281.
Before recording any such confession, the Magistrate will disclose to the individual making it
that he will voluntarily make a confession and that in the event that he does so it might be
utilized in proof against him.
No Magistrate will record any such confession, except if after scrutinizing the individual making
it he has sufficient reasons to accept that it was made intentionally and with complete free will.
Inability to address the voluntary nature of a confession has been held to vitiate the confession.
The Magistrate shall lay out a memorandum mentioning that the confession was made
voluntarily without any inducement or threat and that all requirements of the law were duly
conformed to. The memorandum in Section 164(3) must be annexed at the foot of the record of
the confession.
It isn’t fundamental that the Magistrate accepting or recording a confession or proclamation
ought to be a Magistrate having jurisdiction for the situation. Any Magistrate can record the
confession for the sake of justice and later transfer it to the competent Magistrate for further
proceedings.
GUIDELINES FOR RECORDING CONFESSION UNDER SECTION 164
A denounced individual who has made confession before a Magistrate ought to be sent to the
judicial custody and not made over to the Police after the confession has been recorded. On the
off chance that the Police, in this way, requires the blamed individual for the investigation, a
written application ought to be made giving reasons in detail why he is required, and a request
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begot from the Magistrate for his conveyance to them for the particular purposes named in the
application.
If the accused person willing to make a confession, who has been produced before a Magistrate
for the reasons for making a confession, has declined to make a confession or has created an
impression which is inadmissible from the perspective of the indictment, he ought not to be
remanded to Police custody.
When the accused who has made a confession has been kept under the judicial custody, the
Magistrate shall record a request for him to be kept separate from different detainees to the
extent might be practicable. Section 313 of the Code empowers the Court to examine the accused
person at any stage during the trial to allow him to explain all the facts and circumstances in
which the offence was committed by him and/or under what circumstances he opted to confess to
his crime.
So as to guarantee that a confession under Section 164 of the Code of Criminal Procedure is
made wilfully, the accompanying safety measures ought to be taken. The judiciary has evolved
several rules that need to be followed to allow a confession to be recorded and to indicate the
authenticity of such confession.
One such measure requires that the person willing to confess is kept away from the custody of
the police officers for some time to allow him to confess deliberately and without any pressure
whatsoever.
After the confession is recorded, the Magistrate should not submit the report of the confession to
the police officer investigating the case but should directly send it to the competent Magistrate.
This is to ensure that the confession is not mishandled or tampered by the corrupt officials.
However, there can be situations when the police officers might need the confession for the
purpose of investigation and to get a lead in the case.
Moreover, there are situations when the confession of the accused can be used to interrogate the
co-accused to induce him to speak the truth. In such circumstances, the Magistrate may allow the
officers to take a duplicate of the confession by making a copy of it which can be used by the
police while the original shall be sent to the competent court by the Magistrate.

MANNER OF RECORDING CONFESSION

Section 281 of the CrPC gives the manner in which the examination of a blamed individual is
recorded. The section and its provision apply mutatis mutandis to recording confessions also.
The inquiries put to the denounced and the appropriate responses were given by him ought to be
unmistakably and precisely recorded, yet the blamed must bind himself to significant responses
to the inquiries posed by the Court.

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Section 281 of the Code does not keep a Court from declining to record insignificant responses
to questions put by it to the blamed under Section 313 of the Code. On the off chance that it
seems vital, the Court may even avert the denounced making long insignificant answers.
The assessment of the denounced ought to be recorded in the language in which he is analyzed,
and if that isn’t practicable in the language of the Court or in English. In cases in which
assessment isn’t recorded by the Magistrate or Judge himself, he should record an update, thereof
in the language of the Court or in English on the off chance that he is adequately familiar with
the last language.

The assessment must be perused to the charged and made comparable to what he pronounces to
be a reality. The Magistrate or Judge should then ensure under his very own hand that the
assessment was brought down in his essence and hearing and that the record contains a full and
genuine record of what was expressed.

GENUINITY OF RECORDED STATEMENT

Section 80 of the Evidence Act, states that Whenever any document is produced before any
court, purporting to be a record or memorandum of the evidence, or any part of the evidence,
given by a witness in a judicial proceeding or before any officer authorized by law to take such
evidence, or to be a statement or confession by any prisoner or accused person, taken in
accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the court shall presume that the document is genuine, that any statements as
to the circumstances under which it was taken, purporting to be made by the person signing it,
are true, and that such evidence, statement or confession was duly taken.
In view of the provision of 164 of the code the Magistrate has not obtained his signature on the
statement but has endorsed his certificate at the foot of the statement. Then it is very difficult to
ascertain as to whether the witness is speaking truth or false.
The part of the presumption at the foot of section 80 of the evidence act states that– that any
statement as to the circumstances under which it was taken, purporting to be made by the person
signing it. That means if the statement which bears the signature of the maker can only come
under the purview of section 80 of the Evidence Act. Hence the statement bearing the signature
of the maker then only it can be called as genuine, else not.
The Code of Criminal Procedure, 1973 contains four essential provisions that deal with
confession before a Judicial or Metropolitan Magistrate. Section 163 mandates that the accused
person or the confessing person must not be induced or threatened to confess the offence even if
evidence shows that he is the offender.
Section 164 of the Code lays down the procedure to be followed whenever a confession is being
made and its evidentiary value in a court of law. Section 281 lays down the manner in which a
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confessional statement is to be recorded and lastly, Section 463 deals with the effect of
procedural irregularity on the admissibility of a confession.
The primary purpose of Section 164 CrPC is to give a technique for examination of a person who
confesses his guilt before a Magistrate.
Under Section 25 of the Indian Evidence Act, 1872, any confessional statement made to an
Investigating Officer is forbidden in proof, and subsequently, when the accused person(s)
confesses during the Police investigation, the Police as soon as possible get it recorded by a
Magistrate under Section 164, Criminal Procedure Code, and it would then be able to be utilized
to the degree to which it might be permissible under the Indian Evidence Act as evidence in a
court of law and put forth against the accused.

EFFECT OF NON-ADHERENCE OF PROCEDURE

It was held that where statements were recorded indicating all necessary precautions prescribed
for recording the confessional statement, it was held that confession does not suffer from
procedural infirmity. However, there are circumstances where the procedure or the guidelines
under Section 164 is not conformed to.
For such situations, the CrPC provides Section 463 which states that a confession will not
become invalid if there is certain procedural irregularity.
The provision is restricted to the failure of the Magistrate to prepare a memorandum of
voluntariness of the confession required under Section 164(4). However, if it is shown that the
memorandum was intentionally omitted because the confession was obtained by fraud or
inducement, it amounts to procedural illegality and no irregularity. In such cases, the provision
ceases to apply.

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CASE LAWS:

STATE OF GUJARAT VS. BABUBHAI UDESING PARMAR1

Section 164 of the Code deals with recording of confessional statement. On a plain reading of
section 164 of the of the Code, it is clear that before acting on a confession made before a
Judicial Magistrate, the court must be satisfied first that the procedural requirement laid down
under sub-section 2 to 4 thereof are complied with. These are solid safeguards to ensure that
confessions are made voluntarily by the accused after being apprised of the implications of such
confessions.
Section 281 of the Code deals with record of examination of the accused requiring the Magistrate
to follow the procedure while examining the accused before him. Para 34 of the Criminal Manual
is also relevant for this purpose which reads as under:
Following instructions are issued for the guidance of the Magistrate recording confessional
statement under section 164 of the Code. They are not intended to be given by the law to the
Magistrate. The only object with which they are issued is to indicate in general the manner in
which the discretion may be exercised.'
The above provisions give sufficient guidelines to the Magistrate to record confession and
statements of the accused. While exercising the discretion, the learned Magistrate has to
scrupulously follow the provisions of section 164 as well as the procedure under section 281 of
the Code.
Hence the underlying idea of section 164 appears to be that the confession should be voluntary,
true and made after fully realising its implications. It is, therefore, clear that when the confession
is found to be true, voluntary and is found to have been made after administering due caution, all
the ingredients of section 164 stand satisfied.
So far recording of the confession is concerned, as already stated above, sub-section (4) provides
that the it has to be recorded in the manner prescribed under section 281 of the Criminal
Procedure Code. It reads as under:
281.Record of examination of accused - (1) 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 memorandum shall be signed by the Magistrate
and shall form part of the record.
(2) Whenever the accused is examined by any Magistrate other than 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, shall be recorded in full by the presiding Judge or Magistrate himself

1
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or where he is unable to do so owing to a physical or other incapacity, under his direction and
superintendence by an officer of the court appointed by him in this behalf.
(3) The record shall, if practicable, be in the language in which the accused is examined or, if
that is not practicable, in the language of the court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language
in which it is written, shall be interpreted to him in a language which he understands, and he
shall be at liberty to explain or add to his answers.
(5) I shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who
shall certify under his own hand that the examination was taken in his presence and hearing and
that the record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in
the course of a summary trial.'
These provisions show that section 281 does not prescribe administration of oath to the accused
who is to make confession before the Magistrate nor does it impose any specific prohibition
thereon. Of course section 164(5) authorises the Magistrate to record only the statement (other
than confession) on oath under certain circumstances and hence administration of oath can be
considered as irregularity committed in following the above provisions. The court is, therefore,
required to find out and satisfy itself that the confession is in compliance of section 164 and it is
recorded in the manner prescribed under section 281 of the Code. Non-observance of
requirements of these sections may result in having the statements or confession ruled out of
evidence. The legislature has, however, enacted section 463 in order to see that technicalities
may not succeed in defeating the ends of justice. Section 463 can be reproduced as under:
463. (1) Non-compliance with provisions of section 164 or section 281 - If any court before
which a confession or other statement of an accused person recorded, or purporting to be
recorded under section 164 or section 281 is tendered, or has been received, in evidence finds
that any of the provisions of either of such sections have not been complied with by the
Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of
the Indian Evidence Act, 1872, take evidence in regard to such non-compliance, and may, if
satisfied that such non-compliance has not injured the accused in his defence on the merits and
that he duly made the statement recorded admit such statement.'
(2) The provisions of this section apply to Courts of appeal, reference and revision.'
This section, therefore, provides that if there is non-compliance of either section 164 or section
281, the court after taking the evidence in regard to such non-compliance is satisfied that it has
not injured the defence of the accused on merits and he duly made the statement recorded, it can
act upon it.
In the present case, non-compliance is in the manner of recording the confession since it is
recorded on oath. Though strictly speaking, it cannot be covered under section 463 of the Code,
because there is no non-compliance of any of the provisions of either section 164 or section 281
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of the Code. The only defect is that it is recorded on oath. Such provision is not there in either of
the sections. To that extent it can be considered as an irregularity. However, it is required to be
seen whether in the instant case, this irregularity i.e. administering oath has rendered the
confession inadmissible in evidence. First we will have to see the nature of the irregularity or the
non-compliance, whether it is curable or incurable.

LAL BIAK SANGA VS. THE STATE2

It js not possible nor is there any reason to confine section 281 Criminal Procedure Code . only
to purposes of recording of confessions under section 164 Criminal Procedure Code . In order to
make a confession recorded under section 164 Criminal Procedure Code . admissible the
Magistrates are required to follow the procedure provided in both the sections 164 and 281
Criminal Procedure Code . The Metropolitan Magistrates are required to follow the procedure
different from the one followed by the other judicial Magistrates. Even the manner of recording
judgments prescribed in respect of them in different, vide section 355 Criminal Procedure Code .
Section 281 Criminal Procedure Code makes it clear beyond doubt that while the court of
Session and all Magistrates except the Metropolitan Magistrates are required to record in full
every question put to, and every answer given by, the accused, the Metropolitan Magistrate is
required to make a memorandum of the substance of the examination of the accused. Though the
provisions of section 281 sub-sections (2) and (5) are mandatory, vide Nazir Ahmed v. K.E. , I
am not inclined to say so in respect of sub-section 281(1).

PHILIPS VS. STATE OF KARNATAKA3

Section 463, Criminal Procedure Code, even permits a court when such statement is tendered or
received in evidence, and it is found by it that the provisions of section 281 Criminal Procedure
Code have not been complied with to take evidence in regard to the non-compliance of section
281 and may if satisfied that such non-compliance has not injured the accused in his defense on
the merits and that he made the statement recorded, admit it in evidence. But at the same time,
the memorandum prepared by the Metropolitan Magistrates should not be so inadequate as to
result in failure of justice.
Section 164 (4) Cr. P. C, lays down that such confession shall be recorded in the manner
provided in Section 281 of the Code for recording the examination of an accused person and
shall be signed by the person making the confession and so on. In view of this provision, it was
incumbent on P. W. 1 to record the confessional statement of the accused by following the
manner and method laid down in Section 281 Cr. P. C. Section 281 reads as follows:

2
1983 (1) Crimes 517, 23 (1983) DLT 144, 1983 (4) DRJ 182, 1983 RLR 5
3
1980 CriLJ 171

17 | P a g e
281. Record of examination of Accused.- (1) 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 memorandum shall be signed
by the Magistrate and shall form part of the record.
(2) 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, shall be recorded in full by the presiding Judge or Magistrate himself
or where he is unable to do so owing to a physical or other incapacity, under his direction and
superintendence by an officer of the Court appointed by him in that behalf
(3) The record shall, if practicable, be in the language in which the accused is examined or, if
that is not practicable, in the language of the Court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language
in which it is written, shall be interpreted to him in a language which he understands, and he
shall be at liberty to explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who
shall certify under his own hand that the examination was taken in his presence and hearing and
that the. record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in
the course of a summary trial.
It is clear from the above that there is no provision for administering oath to an accused who is
making a confessional statement before a Magistrate, When this specific provision is made, the
other provisions of the Indian Evidence Act etc., regarding recording of statements, will not
operate. Therefore, no question of administering oath arises, and in fact if oath is administered, it
will be contrary to the provisions of Section 281, Cr. P. C.. It is well settled by a series of
Judgments of the Privy Council as well as the Supreme Court that when the mandate of the law
is that a particular act has to be done in a particular manner, it has got to be done in that manner
or it should not be done at all. Therefore, recording of Ex. P. 4 by P. W. 1 confessional statement
by the Magistrate after administering oath to the accused, is not as provided by Section 281 Cr.
P. C. and as such Ex, P. 4 loses its evidentiary value. Moreover, the object behind this provision
viz. Section 164 (4) Cr . P. C. is clear on the face of it. The concerned accused should not be
made to feel that he is bound down to a particular statement, and if he later stated something
contrary to that he would be incurring the wrath of law. In fact similar is the object in regard to
the manner and method of recording the statements of witnesses during the investigation by the
police, under Section 161 Cr. P. C. There, it is provided that the signatures of the persons are not
expected to be taken below their statements so recorded. If this aspect viz., recording of
examination of the accused is gone deeper into by looking into the provisions of the Code of
Criminal Procedure, it will be clear that there are three stages at which examination of the
accused is provided. First stage is Section 232 Cr. P. C. That would be during a sessions trial
when the prosecution closes its case. The next is Section 239 of the Code. That is the stage at

18 | P a g e
which in a trial of warrant case on police report a Magistrate has to decide whether he should
frame charge or pass an order of discharge. The third is Section 313 of the Code which is a
general provision because it states that an accused may be examined at any stage in any enquiry
or trial, to enable him to explain personally any circumstances appearing in evidence against
him, Section 313 (2) Cr. P. C. specifically lays down that no oath shall be administered to the
accused when he is examined under Sub-section (1) of that Section. It is easy to see that it has no
application to the recording of a confession of an accused under Section 164 (4) Cr. P. C. and in
that behalf only the provisions in Section 281 of the Code are specifically made applicable.

RAM VIJAY SINGH VS. STATE OF JHARKHAND THROUGH CBI AND ANR.4
Investigation of the case was handed over to the CBI and opposite party No. 2 took up the
investigation of the case. In course of investigation, opposite party No. 2 filed an application on
13.9.2006 before the Metropolitan Magistrate, Delhi for recording the statements of two accused,
namely, Md. Ayub Khan and Kashmiri Khan under Section 164 of the Code of Criminal
Procedure. On the same day statements of both the persons were recorded under Section 164 of
the Code of Criminal Procedure.
Thereafter it was informed by the CBI to the Special Magistrate at Dhanbad through a petition
rather a rejoinder filed on 13.10.2006 that statements of the two accused persons recorded under
Section 164 of the Code of Criminal Procedure by the Metropolitan Magistrate, Delhi shall be
forwarded to the Court directly but subsequently opposite party No. 2 (Investigating Officer)
filed an application along with three sealed envelopes stating therein that the statements of the
accused Md. Ayub Khan and Kashmiri Khan and one witness Dr. D. Mishra recorded under
Section 164 of the Code of Criminal Procedure obtained from the Chief Metropolitan Magistrate,
Delhi are being filed. Thereupon, on being applied, certified copy of the statement made under
Section 164 of the Code of Criminal Procedure by Kashmiri Khan was supplied which has been
annexed as Annexure 2.
Subsequently, when the copy of the Statement made under Section 164 of the Code of Criminal
Procedure by Kashmiri Khan was supplied in terms of the provisions of Section 207 of the Code
of Criminal Procedure along with other police papers it was noted that some forgery has been
done in the statement made under Section 164 of the Code of Criminal Procedure by Kashmiri
Khan.
As against this learned Counsel appearing for the CBI submits that on 13.9.2006 learned
Metropolitan Magistrate, Delhi recorded the statements of two accused persons, namely,
Kashmiri Khan and Md. Ayub Khan and it would appear from the certificate portion of the
statement of Md. Ayub Khan which has been filed in this case, name of Md. Ayub Khan is there
but in the certificate portion of the statement of Kashmiri Khan his name was wrongly recorded
as Md. Ayub Khan due to typographical error which would be evidently clear from the fact that

4
2009CriLJ63; [2008(2)JCR557(Jhr)]

19 | P a g e
the signatures of Kashmiri Khan do appear in his statement on the first page and the last page
and similarly signatures of Md. Ayub Khan do appear over the statement made by him.
In the facts and circumstances both the elements seem to be absent in this case. Coming to the
first element, I may reiterate that the petitioner has sought enquiry in terms of Section 340 of the
Code of Criminal Procedure as according to the petitioner some forgery has been made on the
document as aforesaid but the question is as to whether offence of forgery is made out. Forgery
has been defined under Section 463 of the Code of Criminal Procedure which reads as follows:
463. Non-compliance with provisions of Section 164 or Section 281.-(1) If any Court before
which a confession or other statement of an accused person recorded, or purporting to be
recorded under Section 164 or Section 281, is tendered, or has been received in evidence finds
that any of the provisions of either of such sections have not been complied with by the
Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of
the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and
may, if satisfied that such non-compliance has not Injured the accused in his defence on the
merits and that he duly made the statement recorded, admit such statement.
(2) The provisions of this section apply to Courts of appeal, reference and revision.
From bare perusal of the aforesaid provision it appears that if a false document is made
fraudulently or dishonestly with an intent to commit fraud then one can be said to have
committed offence of forgery.
Under the circumstances as has been dealt above, one cannot be said to have made forgery by
making correction or as per petitioner 'manipulation' in Annexure 5 as such correction never
seems to have been made for playing fraud upon any one nor the said correction can be said to
have been made dishonestly or fraudulently as by such correction no injury or damage is being
caused to anyone. Thus, I do find that neither any offence as referred to under Clause (b) of
Section 195(1) of the Code of Criminal Procedure is made out nor under the circumstances it is
expedient in the interest of justice to hold enquiry.

ABDUL RAZAK SHAIKH VS. STATE OF MAHARASHTRA5

It is necessary to examine whether the confession, recorded by the Judicial Magistrate Shri
Vyavahare P.W. 10 is as per the provisions of S. 164, Cr.P.C. and could be admitted into
evidence. The learned Counsel Mr. Sakhare contends that as per the provisions of sub-section (4)
of Section 164, Cr.P.C. It is mandatory for the Magistrate after recording the confession, to
obtain the signature of the accused thereon and as in the present case the learned Judicial
Magistrate failed to obtain the signature of the accused on the confession recorded by him, that
confession could not be admitted in evidence and the defect could not be cured by invoking the
provisions of S. 463, Cr.P.C. Sub-section (4) of S. 164 reads as follows :-

5
1987 (3) BomCR 467, (1987) 89 BOMLR 408

20 | P a g e
164(4) Any such confession shall be recorded in the manner provided in S. 281 for recording the
examination of an accused person and shall be signed by the person making the confession; and
the Magistrate shall make a memorandum at the foot of such record to the following effect :-
S. 281, Cr.P.C. reads as follows :-
281. (1) 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 memorandum shall be signed by the Magistrate and shall form part of the record.
(2) 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, shall be recorded in full by the presiding Judge or Magistrate himself
or where he is unable to do so owing to a physical or other incapacity, under his direction and
superintendence by an officer of the Court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language in which the accused is examined or, if
that is not practicable, in the language of the Court.
(4) The record shall be shown or read to the accused or, if he does not understand the language in
which it is written, shall be incorporated to him in a language which he understands, and he shall
be at liberty to explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who
shall certify under his own hand that the examination was taken in his presence and hearing and
that the record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in
the course of a summary trial.
Both the Sections 164 and 281, Cr.P.C. require that the record of confession made by the
Magistrate shall be signed by the person making the confession. The learned Judicial Magistrate
who recorded the confession has failed the signature of the accused who made the confession.
According to the learned Public Prosecutor the irregularity in not obtaining the signature of the
accused on the confession is not a irregularity and it could be cured as per the provisions of S.
463, Cr.P.C. reads as follows :-
463(1) If any Court before which a confession or other statement of an accused person recorded,
or purporting to be recorded under S. 164 or S. 281, is tendered, or has been recorded or has been
received, in evidence finds finds that any of either of such sections have not been compiled with
by the Magistrate recording the statement, it may, notwithstanding anything contained in S. 91 of
the Indian Evidence Act, 1872, take evidence in regard to such non-compliance, and may, if
satisfied that such non-compliance has not injured the accused in his defence on the merits and
that he duly made the statement recorded admit such statement.

21 | P a g e
(2) The provision of this section apply to Courts of appeal reference and revision.
It is to be considered whether non-obtaining of signature of the accused on the confessional
statement recorded by the Magistrate under S. 164, Cr.P.C. is an irregularity which can be cured
by invoking the provisions of S. 463, Cr.P.C. reproduced above. The language used in sub-clause
(4) of S. 164 and sub-section (5) of S. 281, Cr.P.C. reproduced above indicates that it is
mandatory on the part of the Magistrate recording confession to obtain signature of the person
whose confession he has recorded. The omission in that behalf cannot be cured by examining the
Magistrate under S. 463, Cr.P.C. The Magistrate when examined touching the confession he has
recorded, can only say that he has recorded the confession, but by such examination the omission
to obtain his signature cannot be supplied. It appears to us that the provision that the Magistrate
after recording confession should obtain the signature of the accused thereon is a salutary
provision and has been specially provided for, for safeguarding the interest of the accused and,
therefore, it is mandatory.

MOHAN LAL VS. STATE OF H.P.

The contention of Mr. Verma is that there has been infraction of the provision of Section 281 of
the Code of Criminal Procedure in recording of the statement of accused under Section 313, Cr.
P.C.
Sub-section (5) of Section 281 specifically provides that any statement of the accused recorded
by a Magistrate or by the Court of Sessions must bear a certificate of the concerned Magistrate or
Presiding Judge to the effect that examination was taken in his presence and hearing and that the
record contains a full true account of the statement made by the accused. Admittedly in the
present case, this certificate is missing from the statement of the accused. Learned Sessions
Judge dealing with this question held that this aspect will not vitiate the trial of the accused as he
has not been prejudiced or injured by this omission in his defence.
There is no dispute that statement of the accused was recorded by the learned trial Magistrate. It
is also not in dispute that answers given by the accused to the questions were faithfully recorded
by the learned trial Magistrate. Section 463 of the Code provides that if there is non-compliance
with the provision of Section 281 or S. 164 of the Code, it may nevertheless take such statement
into consideration, if such Magistrate or Judge is satisfied that non-compliance has not injured
the accused in his defence and that such statement was duly made by the accused.
In the facts and circumstances of the case, it cannot be said that the accused was prejudiced in
any manner by non-recording of the certificate by the learned trial Magistrate. No injury is
caused to the accused particularly when it is not in dispute that statement as recorded by the
learned trial Magistrate under Section 313, Cr. P.C. was in fact made by the accused and its
authenticity is not questioned' This, irregularity will have no effect on the merits of the case
which stands cured by provisions of Section 463 of the Code.
22 | P a g e
 STATE OF ASSAM VS. ANUPAM DAS6
The submission made by the learned Counsel for the accused is that PW-18 did not faithfully
follow the procedure established by law for recording the confession under Section 164 CrPC
and, therefore, the same should be totally ignored.
Section 164(2) of the CrPC prescribes the procedure that is required to be followed by the
Magistrate recording a confession. It reads as follows:
164(2) The Magistrate shall, before recording any such confession, explain to the person making
it that he is not bound to make a confession and that, if he does so, it maybe used as evidence
against him and the Magistrate shall not record any such confession unless, upon questioning the
person making it, he has reason to believe that it is being made voluntarily.
Under Sub-section (4) of Section 164 CrPC the Magistrate is required to make the memorandum
at the foot of the statement, the content of which is stated in the said Sub-section. Sub-section (4)
of Section 164 CrPC reads as follows:
164(4) Any such confession shall be recorded in the manner provided in Section 281 for
recording the examination of an accused person and shall be signed by the person making the
confession and the Magistrate shall make a memorandum at the foot of such record to the
following effect.
Sub-section (2) of Section 164 CrPC mandates the Magistrate before whom an accused is
brought for recording of confession to explain to the accused that the accused is not bound to
make any confession and that any confession, if made, may be used as evidence against the
accused. Secondly, the Magistrate is also required to satisfy himself that the accused proposes to
make a confession voluntarily. Such a conclusion is required to be reached after appropriately
questioning the accused.
On a consideration of the above decisions it is manifest that if the provisions of Section 164(2)
which require that the Magistrate before recording confession shall explain to the person making
confession that he is not bound to make a confession and if he does so it may be used as evidence
against him and upon questioning the person if the Magistrate has reasons to believe that it is
being made voluntarily then the confession will be recorded by the Magistrate.
The compliance of the Sub-section (2) of Section 164 is therefore, mandatory and imperative and
non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section
533) of the Code of Criminal Procedure provides that where the questions and answers regarding
the confession have not been recorded evidence can be adduced to prove that in fact the
requirements of Sub-section (2) of Section 164 read with Section 281 have been complied with.
If the Court comes to a finding, that such a compliance had in fact been made the mere omission
to record the same in the proper form will not render it inadmissible evidence and the defect is

6
2008 CriLJ 1276, 2007 (3) GLT 697

23 | P a g e
cured under Section 463 (Section 533 of the Old Criminal Procedure Code) but when there is
non-compliance of the mandatory requirement of Section 164(2) Criminal Procedure Code and it
comes out in evidence that no such explanation as envisaged in the aforesaid Sub-section has
been given to the accused by the Magistrate this substantial defect cannot be cured under Section
463 Criminal Procedure Code.
The Magistrate made three memoranda after recording the confession of the accused. The
memoranda are marked as Ext-27(14), (15) and (16) which read as follows:
Ext-27(14)
I believe that this confession has 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.
Ext-27(15)
The accused has not complained of any ill treatment. No injury is noticed on his person. He was
given sufficient time for reflection and was examined on 3-2-2000 at 2 PM.
Ext-27(16)
I am of the opinion that the accused has confessed voluntarily and made his confession out of
repentance. It was taken in my presence and hearing and was read over to the accused and
admitted by him to be correct and it contains a full and true account of the statement made by
him.
A combined reading of the three memoranda shows that the Magistrate has complied with all the
statutory requirements prescribed under Section 164(2) & (4) CrPC. Therefore, we are of the
opinion that the defect, if any, in the memoranda is one of form but not of substance. Hence, we
reject the submission made by the learned Counsel for the accused that the confession Ext-27 is
inadmissible in evidence.
So, the legal position emerging there from is that even a retracted confession can form basis of
conviction, but as a rule of prudence, the Supreme Court insisted that such a confession is
required to be corroborated. A Constitution Bench of the Supreme Court in (1963) Supp. I SCR
689 : Pyare Lal v. State of Rajasthan, in this regard held as follows:
A retracted confession may form the legal basis of a conviction if the Court is satisfied that it
was true and was voluntarily made. But it has been held that a Court shall not base a conviction
on such a confession without corroboration. It is not a rule of law, but is only, a rule of prudence.
It cannot even be laid down as an inflexible rule of practice or prudence that under no
circumstances such a conviction can be made without corroboration, for a Court may, in a
particular case, be convinced of the absolute truth of a confession and prepared to act upon it
without corroboration; but it may be laid down as a general rule of practice that it is unsafe to
rely upon a confession, much less on a retracted confession, unless the Court is satisfied that the

24 | P a g e
retracted confession is true and voluntarily made and has been corroborated in material
particulars.

KEHAR SINGH V. STATE (DELHI ADMN.)7

The Supreme court in Kehar Singh V. State (Delhi Admn.) at paragraph 117 examined the
purport of Section 164 CrPC and also the effect of non-compliance with any one of the
requirements of Section 164(2) and held as follows:
On a consideration of the above decisions it is manifest that if the provisions of Section 164(2)
which require that the Magistrate before recording confession shall explain to the person making
confession that he is not bound to make a confession and if he does so it may be used as evidence
against him and upon questioning the person if the Magistrate has reasons to believe that it is
being made voluntarily then the confession will be recorded by the Magistrate.
The compliance of the Sub-section (2) of Section 164 is therefore, mandatory and imperative and
non-compliance of it renders the confession inadmissible in evidence. Section 463 (old Section
533) of the Code of Criminal Procedure provides that where the questions and answers regarding
the confession have not been recorded evidence can be adduced to prove that in fact the
requirements of Sub-section (2) of Section 164 read with Section 281 have been complied with.
If the Court comes to a finding, that such a compliance had in fact been made the mere omission
to record the same in the proper form will not render it inadmissible evidence and the defect is
cured under Section 463 (Section 533 of the Old Criminal Procedure Code) but when there is
non-compliance of the mandatory requirement of Section 164(2) Criminal Procedure Code and it
comes out in evidence that no such explanation as envisaged in the aforesaid Sub-section has
been given to the accused by the Magistrate this substantial defect cannot be cured under Section
463 Criminal Procedure Code.

SHIVAPPA V. STATE OF KARNATAKA8

Judgment of the Supreme Court reported in : Shivappa V. State Of Karnataka. In paragraphs 6
and 7 of the said judgment the Supreme Court held as follows regarding the scheme of Section
164 CrPC and the obligations of the Magistrate recording the confession Under Section 164
CrPC:
From the plain language of Section 164 CrPC and the Rules and guidelines framed by the High
Court regarding the recording of confessional statements of an accused under Section 164 CrPC,
is manifest that the said provisions emphasise an inquiry by the Magistrate to ascertain the

7
1988 AIR 1883
8
1995 AIR 980, 1995 SCC (2) 76

25 | P a g e
voluntary nature of the confession. This inquiry appears to be the most significant and important
part of the duty of the Magistrate recording the confessional statement of an accused under
Section 164 CrPC.
The failure of the Magistrate to put such questions from which he could ascertain the voluntary
nature of the confession detracts so materially from the evidentiary value of the confession of an
accused that it would not be safe to act upon the same. Full and adequate compliance not merely
in form but in essence with the provisions of Section 164 CrPC and the Rules framed by the
High Court is imperative and its noncompliance goes to the root of the Magistrates jurisdiction to
record the confession and renders the confession unworthy of credence.
Before proceeding to record the confessional statement, a searching enquiry must be made from
the accused as to the custody from which he was produced and the treatment he had been
receiving in such custody in order to ensure that there is no scope for doubt of any sort of
extraneous influence proceeding from a source interested in the prosecution still lurking in the
mind of an accused. In case the Magistrate discovers on such enquiry that there is ground for non
supposition he should give the accused sufficient time for reflection before he is asked to make
his statement and should assure himself that during the time of reflection, he is completely out of
police influence.
An accused should particularly be asked the reason why he wants to make a statement which
would surely go against his self-interest in course of the trial, even if he contrives subsequently
to retract the confession. Besides administering the caution warning specifically provided for in
the first part of Sub-section (2) of Section 164 namely, that the accused is not bound to make a
statement and that if he makes one it may be used against him as evidence in relation to his
complicity in the offence at the trial, that is to follow, he should also, in plain language, be
assured of protection from any sort of apprehended torture or pressure from such extraneous
agents as the police or the like in case he declines to make a statement and be given the
assurance that even if he declined to make the confession, he shall not be remanded to police
custody.
The Magistrate who is entrusted with the duty of recording confession of an accused coming
from police custody or jail custody must appreciate his function in that behalf as one of a judicial
officer and he must apply his judicial mind to ascertain and satisfy his conscience that the
statement the accused makes is not on account of any extraneous influence on him. That indeed
is the essence of a 'voluntary' statement within the meaning of the provisions of Section 164
CrPC and the Rules framed by the High Court for the guidance of the subordinate Courts.
Moreover, the Magistrate must not only be satisfied as to the voluntary character of the
statement, he should also make and leave such material on the record in proof of the compliance
with the imperative requirements of the statutory provisions, as would satisfy the Court that sits
in judgment in the case, that the confessional statement was made by the accused voluntarily and
the statutory provisions were strictly complied with.

26 | P a g e
 KASHMIRA SINGH V. STATE OF M.P9
It cannot be made the foundation of a conviction and can only be used in support of other
evidence. The proper way is, first, to marshal the evidence against the accused excluding the
confession altogether from consideration and see whether, if it is believed a conviction could
safely be based on it. If it is capable of belief independently of the confession, then of course it is
not necessary to call the confession in aid. But cases may arise where the Judge is not prepared
to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain
a conviction. In such an event the Judge may call in aid the confession and use it to lend
assurance to the other evidence and thus fortify himself in believing what without the aid of the
confession he would not be prepared to accept.
The learned Sessions Judge after scanning of the evidence adduced by the witnesses and also
relying on the statements made by the accused under Section 164 Cr. PC came to the conclusion
that the case against the accused was proved and accordingly he gave his verdict in the manner
indicated hereinabove.
Mr. Biswas, learned Counsel appearing on behalf of the appellant contended that a false case was
started due to manoeuvring of the investigating agency, inasmuch as it cannot be expected that
an injured person with amputated right wrist was allowed to remain in the field for the purpose
of recording his statement without sending him immediately to any hospital for treatment. Mr. R.
R. Biswas also points out the discrepancy in the evidence adduced by the witnesses as regards
the recovery of the weapons. So main argument of Mr. Biswas centred round the point that the
victim was not alive at the time of recording his statement which was treated as FIR. It is also
argued that the prosecution did not give any explanation as regards the injury that was appearing
in the person of the accused.
In this connection it should be mentioned here that the accused while in judicial custody was sent
for examination by a psychiatrist indicating that there were certain psychotic problem with the
accused. But neither the prosecution highlighted this fact properly nor the Trial Court took into
consideration the actual state of affair. His subsequent mental state and conduct are also clear
from the plea of guilt as well as the statement made under Section 164 of Cr. PC.
It appears that the learned Sessions Judge placed full reliance on the statement recorded under
Section 164 Cr. PC that formed basis of conviction inspite of noting the fact that the certificate
required under that Section was not appended after recording of the confessional statement of the
accused.
There is also no indication on the date of production of the accused before him, for the purpose
of recording confessional statement, that the accused was explained that if no statement was

9
1952 SC 214(28) 1956 SC 56(5)

27 | P a g e
made by him, would not be sent back to the police custody. Mr. Biswas on this score rightly
made forceful argument placing reliance on few of the precedences.
The learned Sessions Judge practically misdirected himself in placing full reliance on the said
confessional statement to convict the accused person under Section 302 of IPC. We take the view
that the conviction under Section 302 of IPC on the basis of the said confessional statement
cannot be upheld and accordingly, finding of the learned Sessions Judge on this score is liable to
be set aside. But the fact remains that the victim died as a result of the injuries inflicted on him.
The evidence on record also clarifies that the injuries received by the victim were at the hands of
the accused person. But at the same time, it is also to be noted that those injuries were inflicted in
course of free fight (marpit) between the accused and the victim as was reported by the children
in the field. Of course those children have not been examined in this case.10

10
1957 SC 216 (18) 1964 SC1184(12) 1973 SC1204 (14) 1987 SC 955(9)

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 CONCLUSION

Recording of statements under section 161 and 164 of Cr.P.C., plays a pivotal role in criminal
trial. The purpose of contradiction between evidence of a witness before the court and the
statement recorded under section 161 and 164 of Cr.P.C is primarily to shake credit of the
witness, it is only to put the court on guard, to scrutinise the evidence with great care. Thereby it
is duty of all judicial officers to pay special attention to the provisions of section 161, 164 of
Code with reference to Section 145 of Evidence Act, so as to enable them to have clear notions
about all relevant provisions in this regard.
Section 164 of the Code deals with recording of confessional statement. On a plain reading of
section 164 of the of the Code, it is clear that before acting on a confession made before a
Judicial Magistrate, the court must be satisfied first that the procedural requirement laid down
under sub-section 2 to 4 thereof are complied with. These are solid safeguards to ensure that
confessions are made voluntarily by the accused after being apprised of the implications of such
confessions.
Section 281 of the Code deals with record of examination of the accused requiring the Magistrate
to follow the procedure while examining the accused before him. Para 34 of the Criminal Manual
is also relevant for this purpose which reads as under:
Following instructions are issued for the guidance of the Magistrate recording confessional
statement under section 164 of the Code. They are not intended to be given by the law to the
Magistrate. The only object with which they are issued is to indicate in general the manner in
which the discretion may be exercised.'
The above provisions give sufficient guidelines to the Magistrate to record confession and
statements of the accused. While exercising the discretion, the learned Magistrate has to
scrupulously follow the provisions of section 164 as well as the procedure under section 281 of
the Code.
The provisions of section 462 to 465 of Cr.P.C. show that when any irregularity is noticed by the
Appellate Court, the Appellate Court is expected to consider these provisions and then decide the
proceeding before it. In section 465 of Cr.P.C., the general power of Appellate Court is
considered, which is subject to the previous provisions of Cr.P.C. from the same Chapter. This
provision shows that if, in the opinion of the Court, a failure of justice has been occasioned, then
the Court is expected to interfere in the matter. In order to ascertain, whether due to such
irregularity, prejudice has been caused to the defence and due to that there has been failure of
justice, the Court is expected to look into the substance and not the technicality. These sections
cover errors of procedures arising out of inadvertence. Thus, the Trial Court is expected to
ascertain whether in fact failure of justice has been occasioned by such irregularity. In view of
the facts and circumstances of the present case and the aforesaid position of law, this Court holds
that it needs to be ascertained as to whether the Sessions Court has considered the evidence

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available as against the petitioners. It also needs to be seen whether such view is possible on the
basis of the evidence.
It is a settled principle of law that the statement recorded under Section 164 of Cr. PC can never
be used as substantive evidence of truth of the facts but it may be used for contradiction or
corroboration of the person who made it. It is also a settled principle of law that the record
should show what warning was given before recording the statement. The main principle is that
the confessional statement must be proved to be voluntary. It is incumbent upon the Magistrate
to take all possible steps and precaution to ascertain whether the confession was being made
voluntarily, and such confession is to be recorded by strict observance of all formalities
prescribed in Section 164 of the Code. The law does peremptorily require that after recording the
confession, the Magistrate must append at the foot of the record a certificate as to its
voluntariness.
It is only after hearing the confession and observing the demeanour that the Magistrate is in the
best position to append the requisite certificate. Accordingly, in Sub-section (4) of Section 164 of
the Code, the language of memorandum is appended. It has been observed in many of the cases
that the confession without memorandum is bad in law. Similarly, it is also viewed that general
statement that all precautions were taken is too vague. Of course, in few other cases it was also
viewed by the different High Courts that the defects or irregularities in recording the
confessional statement are curable by Section 463 of the Cr. PC. Though there are divergent
views on this point, the principle generally adopted is that the provision under Section 463
applies only when the confession is duly made i.e. made in accordance with law.

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