EVIDENTIARY VALUE OF SECTION 164 OF CRPC

Project made by

JOJO RABBIT (1878) , IV SEMESTER

Submitted to

DR. MEETA MOHINI, FACULTY OF EVIDENCE LAW

RESEARCH PAPER SUBMITTED IN THE PARTIAL FULFILMENT OF THE

COURSE EVIDENCE LAW FOR ATTAINING THE DEGREE OF BA.L.L.B.

(Hons.)

MARCH 2019

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 CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA

(800001), BIHAR, INDIA.

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 CONTENTS
ACKNOWLEDGEMENT.............................................................................................3

DECLARARTION.......................................................................................................4

INTRODUCTION........................................................................................................5

Objective of the study...........................................................................................5

Hypothesis..............................................................................................................5

Research Methodology..........................................................................................5

Sources of Data.....................................................................................................6

Review of Literature...............................................................................................6

Limitations of the research....................................................................................6

Chapterization.........................................................................................................6

CHAPTER 1..............................................................................................................7

Confessions and Statements: an overview..........................................................7

CHAPTER 2............................................................................................................10

POWER OF JUDICIAL MAGISTRATE TO RECORD CONFESSION....................................10

CHAPTER 3............................................................................................................12

ANALYSIS OF S.164 OF CRPC.................................................................................12

PC

CHAPTER 4............................................................................................................16

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 Evidentiary value of S.164..................................................................................16

CHAPTER 5............................................................................................................19

Constitutionality of S.164: Landmark Judgments...............................................19

BIBLIOGRAPHY.......................................................................................................23

ACKNOWLEDGEMENT

I would like to take this opportunity to express my profound gratitude and deep

regard to Ms. MEETA MOHINI ma’am for her exemplary guidance, valuable

feedback and constant encouragement throughout this project. Her valuable

suggestions were of immense help throughout the making of this project. I

would also like to thank my friends and my seniors without whom the making

of this project would not have been successful. I would also like to extend my

gratitude to my parents and all those unseen hands that have helped me

throughout this project.

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 DECLARARTION

I hereby declare that the work reported in the B.A., LL.B (Hones.) Project

Report entitled “EVIDENTIARY VALUE OF SECTION 164 OF CRPC” submitted

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at Chanakya National Law University is an authentic record of my work carried

out under the supervision of Ms. Meeta Mohini. I have not submitted this work

elsewhere for any other degree or diploma. I am fully responsible for the

contents of my Project Report.

NAME OF CANDIDATE: JOJO RABBIT.

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 INTRODUCTION

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Human life is very precious and therefore the justice system of civilized nations

have devised various mechanisms so as to ensure that no one is convicted

wrongfully and hence it is the responsibility of the prosecution to prove the guilt

of the accused beyond all the reasonable doubts. In the Indian justice system

one such section that is a special provision for recording the statement of a

witness is S.164 of Cr.P.C.

Statement in its dictionary meaning is the act of stating or reciting. The term

statement is not defined anywhere in the Act. However, it has got whole

connotations. Generally, statements are recorded in criminal procedure code in

section 161 and 162. under section 164 of Crpc the confession statements of

accused will be recorded. The object behind S.164 Cr.P.C. is to have a hold

over the witness supports the prosecution version in his statement under S.

161 Cr.P.C. and where there are chances that the witness may change his

statement in future. There is no other circumstance wherein the statement of

any witness may be recorded under S.164 CrPC. In this paper, the researcher

will delve deep into the scope of S.164 and all other provisions intertwined with

it to find the evidentiary value and constitutionality of S.164.

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 OBJECTIVE OF THE STUDY

The researcher through this paper aims to study the jurisprudence behind the

concept of confessions and statements and the evidentiary value of S.164 of

CrPC.

HYPOTHESIS

The provisions of S. 164 do not violate the provisions of A.21 of the

Indian Constitution.

Section 164 of CrPc is a protective measure, as it contains warning to

the accused by the Magistrate before making a confession.

RESEARCH METHODOLOGY

The researcher will employ the doctrine method of research for the purpose of

this research paper.

SOURCES OF DATA

The primary sources of data that will be used for this paper will be

judgements, statutes, bare acts etc. The secondary sources of data will be

commentaries, reference books, case laws, newspaper articles and websites.

REVIEW OF LITERATURE

The following books will be used for this research paper:

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  Ratanlal and Dhirajlal’s CrPC.

 Batuk Lal, The law of evidence.

LIMITATIONS OF THE RESEARCH

The researcher will face the paucity of time and money while carrying out the

research

CHAPTERIZATION

 Confessions and Statements: an overview.

 Power of judicial magistrate to record confession

 Analysis of S.164 of CrPC.

 Evidentiary value of S.164.

 Constitutionality of S.164: Landmark Judgements.

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 CHAPTER 1

CONFESSIONS AND STATEMENTS: AN OVERVIEW

CONFESSIONS

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

1

“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”.

 Forms of confession

There are four types of confession as follows

1. Judicial confession

2. Extra- judicial confession

1
AIR 1939 P.C. 47.

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3. Retracted confession

4. Confession by co-accused

1. Judicial confession- Are those which are made before a magistrate or

in court in the due course of legal proceedings. A judicial confession

has been defined to mean “plea of guilty on arrangement (made before

a court) if made freely by a person in a fit state of mind.

2. Extra-judicial confessions- Are those which are made by the accused

elsewhere than before a magistrate or in court. It is not necessary that

the statements should have been addressed to any definite individual. It

may have taken place in the form of a prayer. It may be a confession

to a private person. An extra-judicial confession has been defined to

mean “a free and voluntary confession of guilt by a person accused of

a crime in the course of conversation with persons other than judge or

magistrate seized of the charge against himself.

A man after the commission of a crime may write a letter to his relation

or friend expressing his sorrow over the matter. This may amount to

confession. Extra-judicial confession can be accepted and can be the

basis of a conviction if it passes the test of credibility. Extra-judicial

confession is generally made before private person which includes even

judicial officer in his private capacity. It also includes a magistrate not

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 empowered to record confessions under section 164 of the Cr.P.C. or a

magistrate so empowered but receiving the confession at a stage when

section 164 does not apply.

2

3. Retracted confession- The Accused character who confessed in

advance and later denied such confession does now not smash the

evidentiary price of the confession as in the beginning recorded. The

superb court has stated that a Retracted confession may also form the

premise of a conviction if it gets a few preferred corroborations from

other independent proof. however if the court docket reveals that the

confession in the beginning recorded changed into voluntary, it should

be acted upon.

4. Confession by co accused- Section 30, attention of proved confession

affecting individual making it and others together below trial for the

same offense. when greater individuals than one are being attempted

mutually for the equal offense, and a confession made through certainly

one of such folks affecting himself and some other of such persons is

proved, the court docket may additionally think about such confession

as in opposition to such different character in addition to against the

person that makes such confession.

3

2
Ravi Singh, “Confessions-kinds, difference, admissibility under Indian Evidence Act”,
Lawnn( March 01, 2019) https://lawnn.com/confession/
3
Supra note 2.

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Confession is not evidence as defined under S. 3 of the Evidence Act. The

confession of an accused person is not evidence in the ordinary sense of the

terms as defined in S. 3 of the Evidence Act. It cannot be made the

foundation of a conviction and can only be used in support of other evidence. 29

The statements recorded under this section are not substantive evidence in a

case and cannot be made use of except to corroborate or contradict the

witness. An admission by a witness that a statement of his was recorded under

this section and that what he had stated there was true would not make the

entire statement admissible much less that any part of it could be used as

substantive evidence in the case.

4

STATEMENTS

The term “statement” is not defined anywhere in the Act. However, it has got

wide connotation. Section 164 itself contemplates that statement which is either

written by the witness himself or reduced to writing by someone else and so,

the statement recorded under section 164 of the Code is previous statement of

the witness. The section speaks of “In his confession or statement”.

It may be the statement of an accused person which is a non-confessional

statement or of a witness capable of giving useful information relating to an

offence. The word statement means a statement of a witness does not mean a

4
Indian Evidence Act, Section 3.

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statement of the accused person. Section 164 of the code does not provide for

recording of any statement of an accused person other than a confession. This

section specifically provides record of two clauses of a thing i.e.

(1) the statement of the witnesses and

(2) confession of a person accused of an offence. The word statement in sub-

clause (1) has been used in wider sense and may include statement either of

a person or even of a different person and they would have recorded in course

of the Chapter XII if they were intended to be a statement made during the

course of investigation. The statements which were made by the persons at

identification parade are nothing but the statement under section 164 of the

Code.

A statement made under section 164 of the code is not inadmissible in the

evidence and may be used o corroborate or contradict a statement made in

the Court in the manner provided under section 157 and 145 of the Evidence

Act. The statement made under this section cannot be used as a substantive

piece of evidence. But it can be used for the purpose of corroboration. It can

be used to cross-examine the persons who made it to show that the evidence

of the witness is false but that does not establish that what he stated out of

court under this section is true. A statement made by a witness under section

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164 of the Code can be used for the purpose of cross-examining him and

discrediting his evidence in the session’s court.

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 CHAPTER 2

POWER OF JUDICIAL MAGISTRATE TO RECORD CONFESSION

Section 164
5
of Chapter XII of Criminal Procedure Code bestows upon a

Magistrate the power to record confessions and statements. It reads as follows:

“(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he

has jurisdiction in the case, record any confession or statement made to him in

the course of an investigation under Chapter XII 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 a police officer on whom any

power of a Magistrate has been conferred under any law for the time being in

force.

(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 may be 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 .

5
Indian Evidence Act, Section 164.

17 | P a g e
(3) If at any time before the confession is recorded , the person appearing

before the Magistrate states that he is not willing to make the confession , the

Magistrate shall not authorise the detention of such person in police custody.

(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:--

"I have explained to (name) that he is not bound to make a confession and

that, if he does so, any confession he may make may be used as evidence

against him and I believe that this confession was voluntarily made. It was

taken in my presence and hearing, and was read over to the person making it

and admitted by him to be correct, and it contains a full and true account of

the statement made by him.

(Signed) A.B.. Magistrate"

(5) Any statement (other than a confession) made under sub-section (1 ) shall

be recorded in such manner hereinafter provided for the recording of evidence

as is, in the opinion of the Magistrate, best fitted to the circumstances of the

case; and the Magistrate shall have power to administer oath to the person

whose statement is so recorded.

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The Magistrate recording a confession or statement under this section shall

forward it to the Magistrate by whom the case is to be inquired into or tried.

(5A) (a) In cases punishable under section 354, section 354A, section 3548,

section 354C, section 3540, sub-section (I) or sub-section (2) of section 376,

section 376 A, section 3768, section 376C, section 376D, section 376E or

section 509 of the IPC 45 of 1860 . Indian Penal Code, the Judicial Magistrate

shall record the statement of the person against whom such offence has been

Committed in the manner prescribed in sub-section (5), as soon as the

commission of the offence is brought to the notice of the police: Provided that

if the person making the statement is temporarily or permanently mentally or

physically disabled, the Magistrate shall take the assistance of an interpreter or

a special educator in recording the statement: Provided further that if the

person making the statement is temporarily or permanently mentally or

physically disabled, the statement made by the person, with the assistance of

an interpreter or a special educator, shall be video graphed.

(6) A statement recorded under clause (a) of a person, who is temporarily or

permanently mentally or physically disabled , shall be considered a statement

in lieu of examination-in-chief, as specified in section 137 of the Indian

Evidence Act, 1872 such that the maker of the statement can be cross-

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examined on such statement, without the need for recording the same at the

time of trial.".

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 CHAPTER 3

ANALYSIS OF S.164 OF CRPC

Section 164 of the code gives power to the Metropolitan Magistrate or judicial

magistrate to record confession and statements during the course of

investigation under chapter 12 or under any law for the time being in force, or

at any time afterwards before the commencement of the inquiry or trial. The

magistrate may record confession or statement made to him. But before doing

so he is enjoined by sub section(2) thereto to explain to the person making it

that he is not bound to make confession and that, if he does so it may be

used as evidence against him.

In case Kartar Singh Vs state of Punjab , it was observed what section 164(2)
6

of the code requires as amplified by rule 32 of Criminal Rules of Practice, is

that as soon as the accused intending to make confession is produced and

before he is told he would be allowed time for reflection, the magistrate should

explain him that it is not intended to make him an approver and that, he is not

bound to make confession and warn him that, if he does so, anything said by

him will be taken down and thereafter be used as evidence against him as

evidence in relation to his complicity in the offence at the trial, that is to follow.

6
1994 Crl.L.J. 3139.

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Compliance of sub- section (2) being mandatory and imperative, its

noncompliance renders the confession inadmissible in evidence.

 Object of recording 164 statements

A question may arise as to why there is need to record the statement under

section 164 of the code in addition to statement recorded under section 162 of

the Code. The object of recording of statements of witnesses under section 164

of the Code is twofold; (1) to deter witnesses from changing their versions

subsequently and (2) to get over the immunity from the prosecution in regard

to information given by the witnesses under section 162 of the code. The other

reason of recording statement of witnesses under section 164 of 17 the code is

to minimize the chances of changing the versions by the witnesses at the trial

under the fear of being involved in perjury. The object behind it that when

during the course of investigation police records the statements under section

162 of the Code they cannot administer oath to the person making statement

and cannot obtained his signature, but under section 164 of the Code, a

magistrate recording statement of a person can administer oath to him and

obtain his signature over the statement Certainly if a person makes and signs

a statement then naturally he comes under moral obligation and chances of his

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turning hostile will be reduced. . But the evidence of witness whose statement

is recorded under section 164 of the Code must be approached with caution.
7

 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.

A confession under this section must be either in the course of an investigation

under Chapter XII or after it has ceased and before the commencement of an

inquiry or trial. If the confession be made before a Magistrate having

jurisdiction to deal with the matter, it will be the commencement of a trial or

7
5 International Journal of Pure and Applied Mathematics Vol 120, 147, 147-156 ISSN: 1314-
3395.

23 | P a g e
inquiry under Chapter XIII and treated as a confession under S. 281, whether

or not the case be still under the investigation of the police.

8

An accused himself can appear before Magistrate for the purpose of recording

confession, it is not necessary that he should be produced by police for

recording confession. It is however, necessary that appearance of accused

must be "in the course of an investigation" under Chapter XII of Code. 46

Merely

because the statement of a witness is recorded under S. 164 after the

submission of the charge-sheet in the case, it cannot be said that the

investigation of the case is still pending.

The statement of a witness under S 164 Cr.P.C. can be recorded when a

person is sponsored by the investigating agency. When it is not sponsored by

9

the investigating agency the concerned Magistrate should look to the Police

Diary and give sufficient time for reflection and also ascertain the bona fides of

the parties concerned. Statement of the witness recorded under S. 164 Cr.

P.C. at the instance of the informant was set aside.

 Warning

Under the statutory provisions of Sub-section (2) the Magistrate is first required

to explain to the accused that he was not bound to make a confession and

8
Supra at 7.
9
Tahhan, Z. India: More than 34,000 cases of rape reported in 2015. Aljazeera (1 September
2016).

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that if he did so, it might be used against him. This is sine qua non for

recording confession. The other mandatory requirement is that the Magistrate

must put questions to the accused to satisfy himself that the confession was a

voluntary so as to enable him to give the requisite certificate under Sub-section

(4). The Magistrate cautioned the accused that he was not bound to make the

confession, but did not put questions to the accused to satisfy himself that the

accused was making confession voluntarily, the confession could not be relied

on. Absence of warning does not per se make the confession inadmissible.
10

Where the Magistrate fails to explain to accused that he was not bound to

make the confession and that if he did so, such confession might be used as

evidence against him, the confession so recorded, cannot be taken into

consideration. 62
A confessional statement recorded without any warning to the

dependent cannot be held to voluntary and hence cannot be used. Failure to 63

give warning to accused before recording a confession takes away much of the

value of such statement and the Courts cannot act on it.

 Statement of Rape Victim

Upon receipt of information relating to the commission of offence of rape, the

Investigating Officer shall make immediate steps to take the victim to any

Metropolitan/preferably Judicial Magistrate for the purpose of recording her

10
J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January
2013).

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statement under S. 164(5) of Code of Criminal Procedure 1973. The Section

states The Investigating Officer shall as far as possible take the victim to the

nearest Lady Metropolitan/preferably Lady Judicial Magistrate. The Investigating

Officer shall record specifically the date and the time at which he learnt about

the commission of the offence of rape and the date and time at which he took

the victim to the Metropolitan/preferably Lady Judicial Magistrate as a for the

statement of the prosecutrix.

 Proof

A statement of a witness recorded by a Magistrate under S. 164 , CrPC is a

public document, and it does require any formal proof; it is not necessary to

summon the Magistrate recording the prior statement to prove the contents

thereof. 77
Non-examination of the Magistrate who recorded the statement under

S. 164Cr.P.C. cannot be the ground for disbelieving the said statement of the

accused.
11

11
J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January
2013).

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 CHAPTER 4

EVIDENTIARY VALUE OF S.164

Evidentiary value of statement recorded under section 164 Cr.P.C, is that, the

statement cannot be treated as substantive evidence when the maker does not

depose of such facts on oath during trial before acting on a confession made

before a judicial magistrate in terms of section 164, the court must be satisfied

first that the procedural requirements laid down in sub section (2) to (4) are

complied with. These are salutary safeguards to ensure that the confession is

made voluntarily by the accused after being apprised of the implications of

making such confession. The endeavour of court should be to apply its mind to

the question whether the accused was free from threat duress or inducement at

the time of making confession .

12

Parmananda Vs state of Assam13: The confession would not be ordinarily

considered the basic for conviction. However, it is admissible, and conviction

may also be based upon it if it is found truthful and voluntary and in a given

case some corroboration is necessary. Confession which is not retracted even

at the stage of trial and even accepted by the accused in the statement under

section 313 Cr.P.C. can be fully relied upon. So, the conviction based thereon

12
5 International Journal of Pure and Applied Mathematics Vol 120, 147, 147-156 ISSN: 1314-
3395.
13
2004(2) ALD Crl 657

27 | P a g e
together with other circumstantial evidence is sustainable. The accused in his

statement under section 313 Cr.P.C. or during cross-examination never

suggested that his statement under section 164 Cr.P.C. is false. Allegation of

presence of police officers at the time of recording the confession was without

any material. Requirement of section 164(2) Cr.P.C. have been complied with.

Such a confession statement was fit to be accepted.

Harbans Singh v. State of Punjab14, the court held that: A statement under

Section 164 of the Code of Criminal Procedure is not substantive evidence. It

can be used to corroborate the statement of a witness.

 USE OF PROVISIONS OF SECTION 145 OF EVIDENCE ACT.

As stated in the foregoing paras that the statement recorded under section

164 of the code is not substantive piece of evidence but corroborative, the

same can be used with reference to section 145 of Evidence Act. Section

145 of the Act states that –

“Cross- examination as to previous statements in writing- A witness may be

cross-examined as to previous statements made by him in writing or reduced

into writing, and relevant to matters in question, without such writing being

shown to him or being proved, but if it is intended to contradict him by the

14
Chugh, B. (2016). . Retrieved from http://delhicourts.nic.in/ejournals/ROLEOFAMAGISTRATE-
FINAL-BHARATCHUGH.pda

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writing, his attention must before the writing can be proved, be called to those

parts of it which are to be used for the purpose of contradicting him.”

15

The Section 145 of the Act does not speak about as to which statement

recorded under section 162 of the code or 164 of the Code is to be

considered as a previous statement in writing. Thus both the statements

recorded under section 162 and 164 of the Code are the previous statements

to invoke section 145 of the Act.

Section 145 of the Act is consisting of two parts –

The first part enables the opponent to cross-examine a witness as to previous

statement made by him in writing or reduced to writing, without such writing

being shown to him;

The second part gives restriction on the opponent. If the opponent intends to

contradict him by the writing, his attention must before the writing can be

proved, be called to those parts of it which are to be used for the purpose of

contradicting him.

It will be needless to mention that while dealing with section 145 of the Act,

the case of Tahsildarsingh V/s.State of Uttar Pradesh

16
has been a milestone of

15
Indian Evidence Act, Sec. 145.
16
A.I.R. 1959 S.C. 1012

29 | P a g e
judicial business. Without touching the ratio laid down in Tahsildar Singh case

no criminal case can accelerates.

“The basic requirement of section 145 of the Act is that there must be two

contradictory statements of the same person available on record. It is a matter

of right of a party to cross-examine a witness as to his previous statement if it

is relevant to the matter in question. A court cannot refuse to allow the cross-

examination of a witness with reference to his previous statement on the

ground that the document which contains statement is not being produced at

the time of cross-examination. If a person is not examined as a witness in a

case, his previous statement cannot be used to contradict the other evidence.”

Section 145 of the Act makes it necessary to put the previous statement to a

witness, if a witness does not go to the witness box the process cannot be

adopted. But that does not entitle a court to use the previous statement to

contradict him in his present case.

17

A witness whose previous statement is recorded under section 164 of the Code

not entered in the witness box and subsequently introduced as a defence

witness then he cannot be contradicted under section 145 of the Act with his

previous statement. The previous statement of a witness can be proved

ordinarily by the admission of the witness himself or by the evidence of a

17
Chugh, B. (2016). . Retrieved from http://delhicourts.nic.in/ejournals/ROLEOFAMAGISTRATE-
FINAL-BHARATCHUGH.pda

30 | P a g e
person who has recorded it. Section 145 of the Act specifically provides cross -

examination of the previous statement of the witness himself but not of the

statement of third parties. Thus in the day to day activities in a Criminal Court

the statements of witnesses recorded under section 164 of Code can be used

to cross-examine the persons under section 145 of the Act.

18

CHAPTER 5

18
J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January
2013).

31 | P a g e
 CONSTITUTIONALITY OF S.164: LANDMARK JUDGMENTS

S. 164 is a protective measure, as it itself contains warning to the accused by

the Magistrate before making any confessional statement. The provisions of S.

164Cr.P.C. do not violate the provisions of Art. 21 of the Constitution.

19

This section is not exhaustive and does not limit the generality of S. 21 of the

Evidence Act as to the relevancy of admission.

20
The effect of this section,

when read with Ss. 24, 25, 26 and 29 of the Evidence Act, is that (1) a

confession made by an accused person to a police-officer is inadmissible in

evidence, (2) if a person in police custody desires to make a confession, he

must do so in the presence of a Magistrate (but not before a police officer

having magisterial power), (3) a Magistrate shall not record it unless he is,

upon inquiry from the person making it, satisfied that it is voluntary, (4) when

the Magistrate records it, he shall record it in the manner provided for in this

section, and (5) only when so recorded the confession becomes relevant and

admissible in evidence.
21

19
Ramchit Rajbhar v. State of W.B., 1992 CrLJ 372 (Cal-DB).
20
Ramanand Pandey v. State, 2008 CrLJ (NOC) 68 (DB): Ramanand Pandey v. State, 007
(5) AIR Bom R 584 (Bom).
21
Ishwar Behra v. State, 1976 CrLJ 611, 615 (Ori-DB).

32 | P a g e
S. 164 provides for safeguards for an accused. The provisions contained

therein are required to be strictly complied with. But, it does not envisage

compliance of the statutory provisions in a routine or mechanical manner.

22

The statement of an accused though recorded in the presence of the

Magistrate but not in accordance with the provisions of S. 164Cr.P.C., is

inadmissible in evidence.
23

A Magistrate has the discretion to record or not to record a confession. If he

elects to record it, this section requires him to comply with four provisions, e.g.,

(1) It should be recorded and signed in the manner provided in S. 281 and

then forwarded to the Magistrate concerned,

(2) he should give a statutory warning that the accused is not bound to make

a confession,

(3) he should be first satisfied that it is being made voluntarily, and

(4) he should add memorandum at the foot of the confession.

24

There is nothing in this section which requires a Magistrate to put all those

questions again after any break in the recording of a confession, say after a

22
Kusta Balsu v. State, 1986 CrLJ 662 (Bom).
23
Bhaskar Behera v. State of Orissa, 1999 (4) Crimes 1 (Ori) ; Pintu Singh v. State of Bihar,
2006 (2) Pat LJR 226 (Pat).
24
Tahhan, Z. India: More than 34,000 cases of rape reported in 2015. Aljazeera (1 September
2016).

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lunch interval, or on the next day. It is sufficient if, before commencing to

record a confession, a Magistrate puts the necessary questions required by that

section to the accused, and it is not mandatory that he should keep on

repeating those questions to him after every break in the recording of a long

confession. Where proceedings are not pending before any Court of law and

the accused denies his writing/signatures on his confession, the Magistrate can

direct the accused to give his specimen writing/signatures for comparison by

the expert.
25
The recording of statement under S. 161 is a condition precedent

for recording statement under S. 164.

26

In case of Kasmira Singh v/s. State of M.P.

27
it is observed that –

“In case witness denies the fact of recording of his statement by Magistrate or

if he denies specific portion of his statement to be not told by him examination

of Magistrate is not necessary to prove contradiction which is unlike the case

of statement recorded by police under section 162”.

In the above authority the Apex court has endorsed the judgment of Privy

Council in Nazir Ahmed v/s. King Emperor. In case of Guruvind palli Anna Rao

- of A.P. reported in 2003 Cri. L.J. 3253, it has been specifically observed that

25
Chugh, B. (2016). . Retrieved from http://delhicourts.nic.in/ejournals/ROLEOFAMAGISTRATE-
FINAL-BHARATCHUGH.pdf
26
J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January
2013).
27
A.I.R. 1952 S.C. 159

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– “Statement of witness recorded under section 164 of the code is a public

document which does not require any formal proof. Hence summoning of

Magistrate by Sessions Court to prove contents of the said statement is

improper. 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 dully taken.

28

STATE OF MAHARASHTRA v. MOHD. AJMAL MOHD. AMIR KASAB

29

The Court held that reliance can be placed even on retracted confession if it is

satisfactorily established that the confession is true and voluntary and

corroborated on all material particulars – It is open for the Court to reject

28
J.S. Verma, L. S. Report of the Committee on Amendments to the Criminal Law. (23 January
2013).
29
AIR 2012 SC 3635.

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exculpatory facts and take into consideration inculpatory facts out of the same.

Principles as regards evidentiary value of confessional statement:

 A confession can be acted upon, if the court is satisfied that it is true

and voluntary.

 It must fit into the proved facts and must not run counter to it.

 The court may take into account the retracted confession, if the court is

satisfied that retraction was an afterthought.

 A retracted confession may form the legal basis of a conviction, if the

court is satisfied that it was true and voluntarily made.

 It is not the rule of law, but a rule of prudence that a court shall not

base a conviction on a retracted confession without corroboration.

 It cannot, however, be laid down as an inflexible rule of practice or

prudence that under no circumstances can such conviction be made

without corroboration.

 In a given case, a court may be convinced of the absolute truth of a

confession and prepared to act upon it without corroboration.

 It is, however, unsafe to rely upon a confession much less a retracted

confession, unless the court is satisfied that it is true and voluntarily

made and has been corroborated in material particulars.

 Corroboration in material particulars does not imply that there should be

meticulous examination of the entire material particulars. It is enough that

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 there is broad corroboration in conformity with the general trend of the

confession.

 If after examining and comparing the confession with the rest of the

evidence, in the light of surrounding circumstances and probabilities of

each case, the confession appears to be a probable catalogue of events

and it naturally fits in with the rest of the evidence and the surrounding

circumstances, it can be taken to be true and trustworthy.

 The whole of the confession should be tendered in the court. It is not

the law that it can either be taken as a whole or not at all. It may be

open to the court to reject the exculpatory part and take into

consideration the inculpatory part. Where a confession or an admission is

separable, there can be no objection to taking one part into consideration

which appears to be true and reject the other part which is false.

 Whether a confession is voluntary or not is a question of fact and such

a finding should not be interfered with unless the court is satisfied that it

has been reached without applying the true and relevant tests in the

matter.

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 BIBLIOGRAPHY

Books:

 Sarkar S.C.,The Code of Criminal Procedure, 10th Edition-2012, Vol. 1,

Lexis Nexis Butterworths Wadhwa, Nagpur.

 Singh Dr. Avatar, Principles of the law of evidence, 19th Edition-2011,

Published by Central Law Pubplications.

Websites:

● https://lawlex.org/lex-bulletin/evidentiary-value-of-confession/3545

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 ●http://www.shareyouressays.com/knowledge/section-26-of-the-indian-

evidence-act1872/120414

● https://indiankanoon.org/doc/497457/

● https://www.srdlawnotes.com/2017/02/confession-and-kinds-of-

confession.html?m=1 ●http://www.shareyouressays.com/knowledge/power-

of-judicial-magistrate-to-recordconfessions-and-statements-section-164-of-

crpc/119480

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