Who is 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.

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.

Evidentiary value
Confession is a weak kind of evidence and hence needed to be corroborated. It may be used
to corroborate or contradict a statement made in the court in the manner provided under
section 157 and 145 of Indian Evidence Act. The statement cannot be used a substantive
piece of evidence but it can be used for the purpose of corroboration and can be used to
contradict by cross-examining the person who made.

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.

Parmananda Vs State of Assam (2004(2) ALD Crl 657 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 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.

What is the procedure to be followed while recording statements?

The procedure to be followed while recording the statement is mentioned in Subsection 5 of

section 164. This subsection states that any Statement (excluding confession) made under
subsection shall be recorded in a manner hereinafter provided for the recording of evidence as
is, in the opinion of the magistrate, best fitted to the circumstances of the case. The magistrate
shall also have the power to administer oath to the person whose statement is so recorded.

Delhi High Court while citing Punjab Government circular Letter No. 6091-J.-36/39329
(dated the 19th December 1936, to all District Magistrates in the Punjab, in Delhi High Court
Rules said that, before the Magistrate proceeds to record the confession, he should arrange so
far as is compatible with his safety and that of his staff and with the safe custody of the
prisoner—that the latter is left for some time (say, for half an hour) out of the hearing of
police officers or other persons likely to influence him, in order to ensure that the statements
made are voluntary.

Hence there is no as such procedure prescribed and it is left to the magistrate deal the matter
with the best-suited way, keeping in mind the circumstances of cases.

Places where the recorded statements are used

A statement made under section 164 of the Code of Criminal Procedure may be used to
corroborate or contradict a statement made in the court in the manner provided under section
157 & 145 of the Evidence Act,1872. It can be used for the purpose of corroboration. It can
be used to cross-examining the person who made it show that the evidence of the witness is
false but that does not establish that what he started out in the court under this section is true.
A statement made by the witness under section 164 CrPC can be used for the purpose of
cross-examining him and discrediting his evidence in the session’s court.

Supreme Court in Kashmira Singh v. State of M.P answered the question as of the use of the
statement in the trail. The court observed that “In case of witness denies the fact of recording
of his statement by Magistrate or if he denies a 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 the statement recorded by police under section 162”.

Relevance of Statements Recorded by police during investigation

Section 162 Crpc contains a prohibition against the singing of the witness’s statement
recorded during the investigation. It has the origin in the historical distrust about the faithful
recording of statement by the investigation officers. This practice helps the untruthful police
officers to mould in the way they like, sometimes to the utter dismay the witnesses. This is
only possible because of the validity of the section 162 CrPC which helps the accused to
contradict the witness if the during the trial in a court the witness come to make a
contradictory statement. This is impossible for the police to record contradictory statement
even in the case of the truthful witness who must have said the same thing to the police as
well as in the court. This statement in the case of dairy often help the accused to get acquitted
of the court does not handle the issue carefully.

Are the recorded statement, a public document?

Statement recorded by a Judicial Magistrate or Metropolitan Magistrate under section 164

CrPC, is a public document under section 74 of Indian Evidence Act,1872. This evidence is
admissible under Section 80 of the Indian Evidence Act, 1872. In Guruvind Palli Anna Roa
And others v. State of Andhra Pradesh, Hon’ble High Court held that” The statement of
witness recorded under section 164 Crpc, is a public document which does not require any
formal proof and there is no necessity to summon the magistrate who records the same”

Principles

In RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA, Supreme

Court of India laid down the following principles:

1. The provisions of Section 164 Cr.P.C. must be complied with not only in form but
in essence.
2. 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.
3. A Magistrate should ask the accused as to why he wants to make a statement
which surely shall go against his interest in the trial.
4. The maker should be granted sufficient time for reflection.
 5. He should be assured of protection from any sort of apprehended torture or
pressure from the police in case he declines to make a confessional statement.
6. A judicial confession not given voluntarily is unreliable, more so, when such a
confession is retracted, the conviction cannot be based on such retracted judicial
confession.
7. Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate’s
jurisdiction to record the confession and renders the confession unworthy of
credence.
8. During the time of reflection, the accused should be completely out of police
influence. The judicial officer, who is entrusted with the duty of recording
confession, must apply his judicial mind to ascertain and satisfy his conscience
that the statement of the accused is not on account of any extraneous influence on
him.
9. At the time of recording the statement of the accused, no police or police officer
shall be present in the open court.
10. Confession of a co-accused is a weak type of evidence.
11. Usually, the Court requires some corroboration from the confessional statement
before convicting the accused person on such a statement

10 Important concluding points

 The statement recorded under section 164 of the code focus on the statement of the
witness by the magistrate which is under this section recorded under this section
on oath.
 The object of recording the statement is to preserve the evidence, to get the
account of the testimony of the witness at the first instance and while it is still
fresh and to preserve retraction of the testimony at the later stage.
 The statement recorded under section 164 of the code can be used for the
corroboration of the witness’s testimony at the trail.
 The application for recording the statement under this section is usually filed by
the prosecution.
 The magistrate has to ensure before recording the statement the voluntariness of a
confession made before the magistrate are too well established for reiteration.
 The magistrate has to ought to extremely careful as regards the identity of the
witness/ complaint before proceeding to record the statement.
 The statement of a witness recorded under section 164 Crpc, is a public document
which does not require any formal proof and there is no necessity to summon the
magistrate who records the same.
 Sub Section (1) of section 164 CrpC authorizes the Magistrate to record the
statement of a person or his confession, no matter whether he posses jurisdiction in
the case. If he does not possess such jurisdiction sub s (6) will apply
 the confession recorded under section 164 CrPC, should be recorded in a manner
provided under section 281 and shall be signed by the person making it. The
Magistrate shall then make the memorandum at the foot of such confession.
 Only a judicial magistrate or Metropolitan Magistrate has the power to record the
statement under section 164 of the Code