Statements to Police and

Magistrate
(s.161-s.164)
Konina Mandal, Assistant Professor, JGLS
POLICE POWER TO REQUIRE WITNESS ATTENDANCE
s.160

Conditions to be satisfied :-
• Order must be in writing
• Person should be one who appears to be acquainted with the facts and
circumstances of the case
• Person is within the limits of the P.S of the investigating officer or limits of
n adjoining p.s.
Exception – Children, Elderly, Woman or Disabled person

Person is duty bound to attend – if he intentionally omits –s174 IPC

punishment – the police however cannot force or compel
attendance/arrest/detain.
POLICE POWER TO EXAMINE WITNESSES s.161

• Object – Obtain evidence for production in trial – Charge maybe

framed based on the statements recorded by police.
• Statement copies to be shared with the accused before trial so he
knows the volume and nature of evidence against him.
• Statement maybe used for contradiction if person who made it is
called as a Prosecution Witness.
• “Any person supposed to be familiar with facts and circumstances”
can include the accused as police may suspect him to have
committed a crime. Even post remand in judicial custody police may
question him with permission from the Magistrate where he will have
the right to silence. Anywhere other than police custody.
• Whenever questions are put to the person being examined – he must answer them
truthfully. However, he is NOT BOUND to answer any question which may have
the tendency to incriminate him. What if he chooses not to answer? Or provides
a false answer? S.177,179,193 IPC.
• Even though 161(2) requires even an accused person to answer truthfully to
questions put forth by the police, the section as well as Article 20(3) of the
Constitution gives protection to the person against self-incrimination.
• Z has murdered X, and there is sufficient evidence pointing towards it. With
respect to this incident it is also suspected that Y might have been involved by
helping Z to hide the murder weapon. Y is being examined by the Police Officer
regarding the incident and the murder weapon by virtue of § 161 of the CrPC.
During the examination the Police Officer asked whether Y had touched the
murder weapon immediately after the incident occurred. Y can choose to not
answer this question because if he did, it means that he did help in hiding the
weapon, then there is very reasonable possibility that if he says yes he may be
charged for abetment, since the only reason he touched the murder weapon
immediately after the murder was probably to hide it.
Nandini Satpathy v. PL Dani (1978) 2 SCC 424

• The appellant is Mrs. Nandini Satpathy who was the former Chief Minister of Orissa. She had
been called to the Vigilance Police Station, Cuttack in connection with the case registered
against her and her sons under Prevention of Corruption Act.
• An FIR had been filed against these persons on the grounds of acquisition of disproportionate
assets during the time of the public position she was in. Regarding this she was to be examined
by way of a questionnaire that was handed to her, which she was supposed to answer
orally.
• She refused to answer certain questions and remained silent regarding them, since they were
self-incriminatory in nature. Upon her refusal she was charged under § 179 of the Indian Penal
Code, 1860 that deals with refusal to answer a public servant on the subject matter.
• She further challenged herself being booked under § 179 of the IPC on the ground that she had a
right to remain silent under § 161(2) of the CrPC and Article 20(3) of the Constitution.
• She initially approached the High Court, which did not hold in her favour and did not consider
her to have a right to remain silent, upon which she appealed to the Supreme Court
• "Art. 20(3)-No person accused of any offence shall be compelled to be
a witness against himself".
• "Section 161(2) Cr. P.C. enjoins : "such person shall be bound to
answer truly all questions relating to such ease put to him by such
officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or
forfeiture."
ANY PERSON “Suspected -accused”
• 36…We hold that “any person supposed to be acquainted with the facts and circumstances
of the case” includes an accused person who fills that role because the police suppose him to
have committed the crime and must, therefore, be familiar with the facts. The supposition may
later prove a fiction but that does not repel the section.
• Nor does the marginal note “examination of witnesses by police” clinch the matter. A marginal
note clears ambiguity but does not control meaning.
• Moreover, the suppositions accused figures functionally as a witness. “To be a witness”, from
a functional angle, is to impart knowledge in respect of a relevant fact, and that is
precisely the purpose of questioning the accused under Section 161 CrPC.
• The dichotomy between “witnesses” and “accused” used as terms of art, does not hold good
here.….The appellant squarely fell within the interrogational ring. To hold otherwise is to hold
up investigative exercise, since questioning suspects is desirable for detection of crime and even
protection of the accused….
• 50. We, however, underscore the importance of the specific setting of a
given case for judging the tendency towards guilt. Equally
emphatically, we stress the need for regard to the impact of the plurality
of other investigations in the offing or prosecutions pending on the
amplitude of the immunity.
• “To be witness against oneself” is not confined to particular offence
regarding which the questioning is made but extends to other
offences about which the accused has reasonable apprehension of
implication from his answer. This conclusion also flows from
“tendency to be exposed to a criminal charge”.
• “A criminal charge” covers any criminal charge then under
investigation or trial or which imminently threatens the accused
• 51. The setting of the case or cases is also of the utmost significance in
pronouncing on the guilty tendency of the question and answer. What
in one milieu (environment or setting) may be colourless, may, in
another be criminal.
• “Have you fifty rupees in your pocket?” asks a police officer from a
PWD engineer.
• He may have. It spells no hint of crime.
• But if, after setting a trap, if the same policeman, on getting the
signal, moves in and challenges the engineer, “have you fifty rupees in
your pocket?”
• The answer, if “yes”, virtually proves the guilt.
• “Were you in a particular house at a particular time?” is an innocent
question; but in the setting of a murder at that time in that house,
where none else was present, an affirmative answer may be an
affirmation of guilt.
• While subjectivism of the accused may exaggeratedly apprehend a guilty
inference lingering behind every non-committal question, objectivism reasonably
screens nocent from innocent answers.
• Therefore, making a fair margin for the accused's credible apprehension of
implication from his own mouth, the court will view the interrogation objectively
to hold it criminatory or otherwise, without surrendering to the haunting
subjectivism of the accused
• 57. We hold that Section 161 enables the police to examine the accused during
investigation. The prohibitive sweep of Article 20(3) goes back to the stage of
police interrogation — not, as contended, commencing in court only.
• In our judgment, the provisions of Article 20(3) and Section 161(1) substantially
cover the same area, so far as police investigations are concerned.
• The ban on self-accusation and the right to silence, while one investigation or
trial is under way, goes beyond that case and protects the accused in regard to
other offences pending or imminent, which may deter him from voluntary
disclosure of criminatory matter.
• We are disposed to read “compelled testimony” as evidence procured not merely
by physical threats or violence but by psychic torture, atmospheric pressure,
environmental coercion, tiring interrogative prolixity (too many words used),
overbearing and intimidatory methods and the like — not legal penalty for
violation.
• So, the legal perils following upon refusal to answer, or answer truthfully,
cannot be regarded as compulsion within the meaning of Article 20(3).
• The prospect of prosecution may lead to legal tension in the exercise of a
constitutional right, but then, a stance of silence is running a calculated risk.
• On the other hand, if there is any mode of pressure, subtle or crude, mental or
physical, direct or indirect, but sufficiently substantial, applied by the policeman
for obtaining information from an accused strongly suggestive of guilt, it becomes
“compelled testimony”, violative of Article 20(3).
• 58. A police officer is clearly a person in authority. Insistence on answering is a
form of pressure especially in the atmosphere of the police station unless certain
safeguards erasing duress are adhered to. Frequent threats of prosecution if there is
failure to answer may take on the complexion of undue pressure violating Article
20(3).
• Legal penalty may by itself not amount to duress but the manner of mentioning it
to the victim of interrogation may introduce an element of tension and tone of
command perilously hovering near compulsion.
• We have already explained that in determining the incriminatory character of an answer the
accused is entitled to consider — and the Court while adjudging will take note of — the setting,
the totality of circumstances, the equation, personal and social, which have a bearing on
making an answer substantially innocent but in effect guilty in import. However, fanciful
claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground
for an accused person. He is bound to answer where there is no clear tendency to
criminate.
• 60. We have no doubt that Section 179 IPC has a component of mens rea and where there is no
willful refusal but only unwitting omission or innocent warding off, the offence is not made out.
• When there is reasonable doubt indicated by the accused's explanation he is entitled to its
benefit and cannot be forced to substantiate his ground lest, by this process, he is constrained to
surrender the very privilege for which he is fighting.
• What may apparently be innocent information may really be nocent or noxious viewed in the
wider setting.
• 78. The appellant, through her Counsel, undertakes to abide by the above direction, to answer all
police interrogations relevant but not self-incriminatory (as explained earlier). The police officer
shall not summon her to the police station but examine her in terms of the proviso to Section
160(1) of the Criminal Procedure Code
• Is a person likely to be accused of crimes i.e. a suspect accused, entitled to the sanctuary of silence as one 'accused of
any offence' ? Is it sufficient that he is a potential-of course, not distant-candidate for accusation by the police ?
The scope of Section 161 does include actual accused and suspects. The Hon’ble Court held that: The appellant
shall undertake to answer all questions put to her which do not materially incriminate her in the pending or
imminent investigations or prosecutions. If she claims immunity regarding any questions she will, without
disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self-
incrimination by her refused answers.
• Does the bar against self-incrimination operate not merely with reference to a particular accusation in regard to
which the police investigator interrogates, or does it extend also to other pending or potential accusations outside the
specific investigation which has led to the questioning ? That is to say, can an accused person, who is being
questioned by a police officer in a certain case, refuse to answer questions plainly non-criminatory so far as that case
is concerned but probably exposes him to the perils of inculpation in other cases in posse or in esse elsewhere ?
The ban on self-accusation and the right to silence, while one investigation or trial is- under way, goes beyond that case and
protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of
criminatory matter.
• Does the constitutional shield of silence swing into action only in Court or can it barricade the 'accused' against
incriminating interrogation at the stages of police investigation ?
We hold that section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art.
20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment, the
provisions of Art. 20(3) and section 1 61 ( 1 ) substantially cover the same area, so far as police investigations are concerned.
• 4. What is the ambit of the cryptic expression 'compelled to be a witness against himself' occurring
in Article 20(3) of the Constitution ?
• While deciding the ambit of article 20(3) of the Constitution with regard to the fourth issue, the Hon’ble
Court held that insistence on answering is a form of pressure especially in the atmosphere of the police
station unless certain safeguards erasing duress are adhered to. Frequent threats of prosecution if there
is failure to answer may take on the complexion of undue pressure violating Article 20(3). Legal penalty
may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may
introduce an element of tension and tone of command perilously hovering near compulsion.
• Does 'compulsion' involve physical or like pressure or duress of an unlawful texture or does it cover also the
psychic coercion, given a tense situation or officer in authority interrogating an accused person, armed with
power to insist on an answer ?
• We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but
by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and
intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to
answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of
prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is
running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical,
direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused
strongly suggestive of guilt, it becomes 'compelled testimony', violative of Art. 20(3).
Guidelines :
• If an accused person expresses the wish to have his lawyer by his side when
his examination goes on, this facility shall not be denied.
• The police need not wait more than for a reasonable while for an advocate's
arrival. But they must invariably warn--and record that fact about the right
to silence against self-incrimination; and where the accused is literate take
his written acknowledgement.
• After an examination of the accused, where lawyer of his choice is not
available, the police official must take him to a magistrate, doctor or other
willing and responsible non-partisan official or non-official and allow a
secluded audience where he may unburden himself beyond the view of the
police and tell whether he has suffered duress, which should be followed by
judicial or some other custody for him where the police cannot teach him.
That collocutor may briefly record the relevant conversation and
communicate it-not to the police-but to the nearest magistrate
EVIDENTIARY VALUE OF STATEMENTS TO POLICE s.162
• Statements to police neither given on oath nor tested by cross-examination. It is not
considered substantive evidence.
• “statement” refers to all facts narrated by the person to the investigating officer – not
confined to a single statement.
• Prohibits the use of statements made to the police DURING THE COURSE OF
INVESTIGATION for purposes of corroboration. However, the defence is not deprived of
an opportunity to discover what a particular witness said at the earliest opportunity
• OBJECT – protect the accused from overzealous police and untruthful witnesses.
• Note that the BAR created by 162 in respect of use of statement recorded by the police
during the course of the investigation is applicable only where such statement sought to
be used “at any inquiry or trial in respect of any offence under investigation at the time
when such statement was made” If any such statement is sought to be used in any
proceeding other than an inquiry or trial or even at an inquiry or trial but in respect of an
offence OTHER than that which was under investigation at the time when such
statement was made, the bar under section 162 would not be attracted.
 STATEMENTS NOT TO BE OBTAINED BY PRESSURE OR
INDUCEMENTs.163

No inducement to be offered.—(1) No police officer or other person in

authority shall offer or make, or cause to be offered or made, any such
inducement, threat or promise as is mentioned in section 24 of the
Indian Evidence Act, 1872 (1 of 1872).
(2) But no police officer or other person shall prevent, by any caution or
otherwise, any person from making in the course of any investigation
under this Chapter any statement which he may be disposed to make of
his own free will:
Provided that nothing in this sub-section shall affect the provisions of
sub-section (4) of section 164.
RECORDING OF CONFESSIONS AND STATEMENTS BY
MAGISTRATE- S.164

• Confessions or statements by the accused person to a police officer

have no evidentiary value. If the police were given the power to record
confessions, the possibility of misuse, fabrication and extortion would
loom large.
• Therefore 164 provides a special procedure for a competent Magistrate
to record confessions and statements.
• The mode of recording a confession is much more elaborate than
recording a statement. This is to ensure free and voluntary confessions
alone are recorded.
• Provisions of 164 is safety valve meant to muzzle involuntary
confessions.
ESSENTIAL CONDITIONS

• WHO CAN RECORD? Only a Metropolitan Magistrate or a Judicial Magistrate.

• WHEN? During the course of the investigation or any time afterwards BEFORE
commencement of inquiry or trial.

• Before recording confession, the Magistrate has to explain to the person making
the confession – i) he is not bound to make it and ii) if he does so, it may be used
as evidence against him. This warning is essential. He also must disclose his
identity as a magistrate to assure the confessor knows he is no longer in the hands
of the police.

• Magistrate MUST satisfy himself that the confession was made VOLUNTARILY.
How to ensure voluntariness?
• After the warning the Magistrate must give the confessor adequate time to think and
reflect – the persons mind must be freed from any possible police influence. Before such
a confession usually the person is sent to judicial custody for a day. No hard and fast rule
as to how long he must wait to record the confession.
• There must be an inquiry about his condition in custody to rule out any scope of
extraneous influence from a source interested in the prosecution.
• The accused must not be handcuffed and police should be directed to stay out.
• Accused should be thoroughly assured of no torture or pressure from extraneous agents
therefore as a safeguard there is a prohibition on remand to police custody.
• The accused should be particularly asked the reason behind his confession and that even
if he retracts his confession, it will still be used as evidence. Non-compliance with this
requirement is a curable irregularity which does not vitiate trial.
• The magistrate in exercise of his judicial function must apply his judicial mind to
ascertain whether the statement made by accused is of his own accord. The
voluntariness of the confession must be confirmed. It should not be a mechanical
enquiry.
• Confession MUST be perfectly VOLUNTARY or else the Magistrate may refuse
to record it. To adjudge voluntariness the mental condition of the accused must be
taken into account and by documentary or oral evidence the magistrate has to
satisfy the court that he applied his judicial mind to understand the motive and
reason behind the confession.
• Confession can also be taken in a written form.
• It is imperative for the accused to be explained his rights under Article 22 of the
Constitution and 303 of the Code about the right to consult a lawyer before the
confession.
• The prisoner has a constitutional right to secure legal service if he doesn’t have a
lawyer – in default of compliance with the obligation by Magistrate the confession
is vitiated.
• Confession must be recorded in the manner provided in Section 281. Whole
confession must be recorded including all questions and answers either in the
language in which it was given or the language of the court. It should be shown or
read to the accused and he must sign the confession.

• No oath to be administered.

• Magistrate to make memorandum at foot of the record.

• No mention of time or place of recording the confession, however preferably in

open court.

• If the accused makes a statement other than a confession he may record it in a

manner in which evidence is generally recorded and he can administer oath to the
person before recording such statement.
Legal consequences of non compliance with
164
• Section 463 was designed to cure to some extent defects and irregularities in
recording confessions or statements under 164.
• Where Magistrate fails to follow procedure in recording
statement/confession oral evidence of the confession is totally inadmissible.
164 by necessary implication prohibits the magistrate from giving oral
evidence of the confession made 463 only permits oral evidence to prove
procedure in 164 has been followed where the record doesn’t do so.
• Mere absence of warning doesn’t make confession inadmissible, provided
the court is satisfied that the accused knew he was not bound to make the
confession and that it would be used against him. However, if on the face of
the record the Magistrate does not certify his satisfaction as to voluntariness
, nor testifies orally as to such satisfaction it would be fatal to accept the
confession.
Shivappa v. State of Karnataka (1995) 2 SCC 76

• According to the prosecution case Smt Sudha (A-1) was working as a nurse in the primary health center at Ullagaddi Khanapur.
She was married to the deceased Suresh Singhi. The deceased used to live at Belgaum but used to visit his wife, A-1, at
Ullagaddi Khanapur, where she was working, quite often.
• The appellant Shivappa was working as a health guide at the primary health centre at Ullagaddi Khanapur. The husband of
Sudha was addicted to drinking and there used to be frequent quarrels between the couple. In order to raise money for buying
liquor, the deceased used to sell household articles, if he could not get cash from his wife. The deceased also suspected his wife
to be having illicit relations with Ramchanda Hanamant Pujari (A-4) who was working as a basic health worker and with Dr
Ashok Madhukar (A-6), who was working as a Medical Officer at the primary health centre Ullagaddi Khanapur at the relevant
time.
• The deceased, after consuming liquor, shortly before the day of occurrence went to the house of A-4 and accusing him of having
illicit relations with his wife (A-1) abused him. He thereafter went to the house of A-6 and abused him also in the presence of
some of his patients accusing him that he was having illicit relations with his wife. On account of these accusations, the relations
between the deceased, A-1, A-4 and A-6 had become strained.
• It is alleged that on 10-10- 1985, the appellant along with A-4, A-5 and A-6 met in the Gotur Inspection Bungalow and hatched
a conspiracy to do away with the deceased by causing his murder. It was planned that the murder would be committed during
the night and the dead body would be thrown on Poona-Bangalore Road to give it the complexion of an accident. It was also
decided that A-1 would thereafter file a complaint with the police saying that her husband had died in a motor accident and
when the dead body would be brought for postmortem examination before the Medical Officer, A-6, he would certify that the
death had been caused by an accident
• On 2-12-1985, the appellant along with A-1, A-4,A5 worked out the plan for committing
the murder of the deceased. On 3-12-1985 the deceased came to visit his wife, A-1 at
Ullagaddi Khanapur. As per the plan in the early hours of the morning of 4-12-1985, A-3
went to the house of A-1 and asked her to come for a delivery case. A-1 along with her
husband (deceased) and A-3 went towards Henchinal and on the way the appellant, along
with A-4 and A-5 met them. A-4 informed A-1 and A-3 that the patient had already
delivered the baby and they could go back to their house.
• Thereupon, the appellant along with A- 1, A-3, A-4, A-5 and the deceased proceeded
towards Ullagaddi Khanapur. When they had reached near the footpath leading from
Henchinal cross to Ullagaddi Khanapur, the deceased was caught hold of by A- 1 to A-5.
A rope was tied round the neck of the deceased and his wife A-1 pulled the rope thereby
causing the death of the deceased. As per the original plan, the dead body was brought
and laid on Poona-Bangalore Road, To lend authenticity to the story of an accident, A-1
went to the house of PW 2, located nearby, to bring water telling him about the accident
of her husband. Thereafter, she prepared the complaint Exh. P-52 and went to the
police station at 7.15 a.m. and lodged the report with PW 18, the In-charge of the
police station.
• An FIR in crime Case No. 221/85 for the offence punishable under Sections 279/304-
A IPC and Section 89 of the Motor Vehicles Act was registered on the basis of the said
complaint. The dead body was sent for postmortem examination to A-6. However, A-6
informed PW 18 that the case being a complicated one, the postmortem examination may
be got done through some other doctor.
• Consequently, a requisition was made to the Medical Officer, Primary Health Centre,
Daddi to get the postmortem of the dead body conducted. The investigating officer during
the course of investigation recorded the statements of various witnesses. After the receipt
of the postmortem report, which disclosed that the death had not been caused as a result
of injuries received in any road accident, the viscera of the deceased was sent for
chemical examination to Bangalore
• After the receipt of the postmortem report an offence under Section 302 IPC was
registered. It was during further investigation that A-1 volunteered to show the place
where offence had been committed and later on the appellant volunteered to show the
place where the rope had been burnt. Both A-1 and the appellant also volunteered to make
confessional statements
• The investigating officer PW 25 sent a request report to the Judicial Magistrate, 1st Class,
Hukkeri to record the confessional statements of A-1 and the appellant. The appellant was
produced before the Magistrate on 21-7- 1986 and the Magistrate adjourned the recording of
the statement till 22-7-1986, so that the appellant could reflect in the meantime. The
appellant was remanded to the sub-jail after the Magistrate had recorded preliminary
statement of the appellant after asking him various questions. The confessional statement of
the appellant was thereafter recorded by the Magistrate PW 17 on 22-7-1986. Six weeks
later appellant retracted the same by addressing a communication Ex. D-1 to the Magistrate.
• The confessional statement of the appellant, recorded under Section 164 CrPC by PW
1'/ on 22-7-1986, was the only piece of evidence on which the trial court relied upon
and convicted the appellant.
• In the High Court,. The Highthe submission made on behalf of the appellant that the
confessional statement recorded by PW 17 was neither voluntary nor true and
trustworthy was repelled Court found that the confessional statement, even though
retracted at a later stage, was voluntary and true and held that the trial court had rightly
relied upon the same. Consequently, the conviction and sentence of the appellant for the
offence under Section 302 IPC was upheld. Hence this appeal.
• A confession, if voluntary and truthfully made is an "efficacious proof
of guilt". It is an important piece of evidence and therefore it would be
necessary to examine whether or not the confession made by the
appellant was voluntary, true and trustworthy.
• The statutory provisions dealing with the recording of confessions and
statements by the Metropolitan Magistrate and Judicial Magistrates are
contained in Section 164 CrPC and the rules framed by the High Court
containing guidelines for recording of confessions. Unless the Court is
satisfied that the confession is voluntary in nature, it cannot be acted
upon and no further enquiry as to whether it is true and trustworthy
need be made.
• From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though he had
administered the caution to the appellant that he was not bound to make a statement and that if he did make a statement
that may be used against him as evidence but PW 17 did not disclose to the appellant that he was a Magistrate and
that the confession was being recorded by him in that capacity nor made any enquiry to find out whether he had
been influenced by anyone to make the confession. PW 17 stated during his deposition in court: "I have not stated to
the accused that I am a Magistrate" and further admitted: "I have not asked the accused as to whether the police have
induced them (Chithavani) to give the statement." The Magistrate, PW 17 also admitted that "at the time of recording the
statement of the accused no police or police officials were in the open court. I cannot tell as to whether the police or
police officials were present in the vicinity of the court'.'. From the memorandum prepared by the Munsif Magistrate, PW
17 as also from his deposition recorded in court it is further revealed that the Magistrate did, not lend any
assurance to the appellant that he would not be sent back to the police custody in case he did not make the
confessional statement
• Circle Police Inspector Shivappa Shanwar, PW 25 admitted that the sub-jail, the office of the Circle Police Inspector
and the police station are situated in the same premises. No contemporaneous record has been placed on the
record to show that the appellant had actually been kept in the sub-jail, as ordered by the Magistrate on 21-7-1986
and that the was out of the zone of influence by the police keeping in view the location of the sub- jail and the police
station. The prosecution did not lead any evidence to show that any jail authority actually produced the appellant on 22-7-
1986 before the Magistrate.
• That apart, neither on 21-7-1986 nor on 22-7- 1986 did the Munsif Magistrate, PW 17 question the appellant as, to why
he wanted to make the confession or as to what had prompted him to make the confession. It appears to us quite obvious
that the Munsif Magistrate, PW 17 did not make any serious attempt to ascertain the voluntary character of the
confessional statement.
• The, failure of the Magistrate to make a real endeavour to ascertain the voluntary
character of the confession, impels us to hold that the evidence on the record does not
establish that the confessional statement of the appellant recorded under Section
164 CrPC was voluntary.
• The cryptic manner of holding the enquiry to ascertain the voluntary nature of the confession
has left much to be desired and has detracted materially from the evidentiary value of the
confessional statement.
• It would, thus, neither be prudent nor safe to act upon the confessional statement of
the appellant.
• Under these circumstances, the confessional statement was required to be ruled out of
consideration to determine the guilt of the appellant. Both the trial court and the High
Court, which convicted the appellant only on the basis of the so-called confessional
statement of the appellant, fell in complete error in placing reliance upon that statement
and convicting the appellant on the basis thereof. Since, the confessional statement of the
appellant is the only piece of evidence relied upon by the prosecution to connect the
appellant with the crime, his conviction cannot be sustained.
Joginder Nahak v. State of Orissa (2000) 1 SCC 272
Whether a witness can, on his own motion, approach a magistrate with a request that his statement may be recorded under Section
164 of the Code?
• there is no set or stage at which a magistrate can take note of a stranger individual approaching him directly with a prayer that his
statement may be recorded in connection with some occurrence involving a criminal offence. If a magistrate is obliged to record the
statements of all such persons who approach him the situation would become anomalous and every magistrate court will be
further crowded with a number of such intending witness brought up at the behest of accused persons.
• It is not necessary that the Magistrate should be moved by the police in order that he might record a statement. There may be instances
where the police may not desire to have recorded, the statement of a witness for some reason or other. In such a case, there is nothing
preventing the witness to go to the Magistrate and request him to record the statement and if a Magistrate records his statement and
transmits the same to the court where the enquiry or the trial is to go on, there is nothing wrong in his action.
• But such a thing will be very exceptional, as there is always a discretion in the Magistrate to refuse to record the statement. Ordinarily,
when a police officer requests the Magistrate to record the statement of a witness such a request will not be refused by the Magistrate.
But when a private party seeks to invoke the powers of a Magistrate under Section 164, Cr.P.C. the Magistrate has got a very
wide discretion in acting or refusing to act.
• On the other hand, if door is opened to such persons to get in and if the magistrates are put under the obligation to record their
statements, then too many persons sponsored by culprits might throng before the portals of the magistrate courts for the purpose
of creating record in advance for the purpose of helping the culprits. In the present case, one of the arguments advanced by accused
for grant of bail to them was based on the statements of the four appellants recorded by the magistrate under Section 164 of the Code . It
is not part of the investigation to open up such a vista nor can such step be deemed necessary for the administration of justice.
• We are disinclined to interpret Section 164(1) of the Code as empowering a magistrate to record the statement of a person unsponsored by
the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case.
Mahabir Singh v. State of Haryana (2001) 7 SCC 148

• The case relates to the murder of a twenty-year old youth by name Anand, on the evening of
11.10.1991 by stabbing him all over his body, practically sparing no limb left unwounded.
Prosecution has traced out the backdrop that the said deceased was responsible for the untimely
death of an adolescent girl, the sister of Ranbir Singh, as the aftermath of that lass being
ravished. Though Ranbir Singh described to others that his sister died due to cardiac arrest he
was harbouring in his mind an unstable vengeance towards the deceased.
• On the date of occurrence the deceased visited his sisters house at Gangeswar Village.
According to the prosecution, while he and his nephew (Sandeep) were on an evening stroll he
was buttonholed by the appellant who suggested to the deceased to have a walk with him but the
deceased did not respond to the said suggestion. Then the appellant Ranbir Singh caught him
and stabbed with a knife on his abdomen. He wriggled out of the grip of the assailant and made
a bid to escape from the scene, but he was intercepted by all the four appellants and they all
inflicted blows on him. He fell down after sustaining a large number of injuries and died on the
spot itself.
• Prosecution examined PW-1 (Sandeep) as the solitary eye witness to the occurrence. His father
Nafe Singh (PW-10) was examined to speak to the version reported to him by PW-1 soon after
the occurrence. It was PW-10 who lodged the FIR on the basis of the information supplied by
Sandeep. The Judicial Magistrate who recorded the confession of Ranbir Singh was examined
as PW-2.
• The appellants when examined under Section 313 of the Code, denied their involvement in the
occurrence altogether. The Sessions Judge placed reliance on the testimony of PW-1 and also on
the confession of the appellant Ranbir Singh besides the evidence of PW-10 as a piece of
corroboration.
• The trial judge reached the conclusion that the deceased was incessantly stabbed by Ranbir
Singh alone. He was not satisfied with the evidence against the remaining appellants. He
pointed out that PW-1 when interrogated by the police on 14.10.1991 did not mention anything
to the Investigating Officer regarding the role played by the other appellants. Hence the Sessions
Judge convicted Ranbir Singh alone under Section 302 IPC and acquitted the others.
• This Ranbir Singh barged into a courtroom on his own during the
morning hours, exhibiting a knife and wanting the Magistrate to
record his confession. The Magistrate obliged him to do so and
after administering oath to him the Magistrate recorded the
confession and got it signed by the confessor.
• A Sessions Judge and Division Bench of the High Court Punjab and
Haryana accepted the said confession as legally admissible, found it to
be genuine and voluntary and acted upon it, among other things, and
convicted the confessor of a murder-charge and sentenced him to life
imprisonment.
• Ranbir Singh filed this appeal by special leave.
• The Sessions Judge placed reliance on the testimony of PW-
1(Sandeep, the nephew) and also on the confession of the appellant
Ranbir Singh besides the evidence of PW-10 (the father of the
deceased)as a piece of corroboration.

• The Trial judge reached the conclusion that the deceased was
incessantly stabbed by Ranbir Singh alone. He was not satisfied with
the evidence against the remaining appellants. He pointed out that PW-
1 when interrogated by the police did not mention anything to the
Investigating Officer regarding the role played by the other appellants.
Hence the Sessions Judge convicted Ranbir Singh alone under Section
302 IPC and acquitted the others.
• Learned Judges of the High Court while confirming the conviction and sentence
passed on the appellant Ranbir Singh made a scathing attack on the Sessions
Judge for the reasoning advanced in support of the order of acquittal of the other
three accused.
• One of the reasoning which the Division Bench pointed out was that PW-1 was
confronted only with the statement recorded under Section 161 of the Code
which was recorded 2 days later, despite earlier interrogation by the officer in
charge. The earlier interrogation record should have been traced out by the trial
judge from the Case diary of the police, according to the learned Judges of the
Division Bench.
• The High Court expressed the view that the Sessions Judge had a duty to peruse
the case diary prepared as per Section 172 of the Code for satisfying himself
whether the witness had stated any particular fact during the interrogation. The
High Court took pains to scrutinise the case Diary and learned Judges copiously
used the entries therein for driving the point home
• Should the confession of Ranbir Singh as recorded by PW-2
as Magistrate not have been received in evidence?

• The Magistrate said in her deposition that as a matter of fact she

did not know Ranbir Singh personally and that she did not verify
whether the person appearing before her was really Ranbir Singh.
In this context the SC reproduced Section 164(1) of the Code.
• The sub-section makes it clear that the power of the Magistrate to
record any confession or statement made to him could be exercised
only in the course of investigation under Chapter XII of the Code.
The section is intended to take care of confessional as well as non-
confessional statements. Confession could be made only by one who is
either an accused or suspected to be an accused of a crime.
• A three Judge Bench of this Court in Jogendra Nahak v. State of
Orissa has held that so far as statements (other than confession) are
concerned they cannot be recorded by a Magistrate unless the person
(who makes such statement) was produced or sponsored by
investigating officer. But the Bench has distinguished that aspect from
the confession recording for which the following observations have
been specifically made
• An accused person can appear before a Magistrate and it is not
necessary that such accused should be produced by the police for
recording the confession. But it is necessary that such appearance
must be "in the course of an investigation" under Chapter XII of the
Code.
• If the Magistrate does not know that he is concerned in a case for
which investigation has been commenced under the provisions of
Chapter XII it is not permissible for him to record the confession. If
any person simply barges into the Court and demands the Magistrate
to record his confession as he has committed a cognizable offence, the
course open to the Magistrate is to inform the police about it. The
police in turn has to take the steps envisaged in Chapter XII of the
Code.
• It may be possible for the Magistrate to record a confession if he
has reason to believe that investigation has commenced and
that the person who appeared before him demanding
recording of his confession is concerned in such case.
• Otherwise the Court of a Magistrate is not a place into which all
and sundry can gatecrash and demand the Magistrate to
record whatever he says as self-incriminatory.
• As the confession recorded by PW-2. cannot be brought under Section 164 of the
Code it is an idle exercise to consider whether it was voluntary or true.
• PW-2, The Magistrate has not stated that before taking down the confession he
explained to Ranbir Singh that he was not bound to make the confession, and that
if he did so, such confession might be used as evidence against him. This is sine
qua non for recording a confession.
• Further a Magistrate is forbidden from recording any such confession until he gets
satisfaction that the person is going to make a voluntary confession. There is
nothing in the evidence of PW-2 that he had adopted such precaution. For all those
reasons we keep that document out of the ken of consideration in this case.
The Court confirmed the conviction and sentence passed on appellant Ranbir
Singh. But it allowed the appeals filed by the other three appellants and the conviction
and sentence passed on them as per the impugned judgment of the Division Bench of
the High Court was set aside and the order of acquittal passed in their favour by the
trial Court was restored.
POLICE TO MAINTAIN DIARY OF INVESTIGATION s.172

• Every investigating officer must maintain what is called a CASE DIARY. Here he
must enter day by day his proceedings of the investigation
• OBJECT – to avoid concoction of evidence or changing chronology, ensure
transparency.
• Any criminal court can send for this case diary and may use it as an aid but not
substantive evidence. The case diary is not evidence of any date, fact or statement
in the diary.
• These entries must be made promptly, in detail mentioning all significant facts,
chronologically and with complete objectivity.
• S.172 (3) bars the accused from calling for or using the case diary as the informer
conveying information to the police would be deterred. However, he may use it for
contradicting the police officer who made it on two accounts – i) if police officer
refreshes his memory accused can see relevant entries or ii) if court uses the diary
to contradict the police – relevant portions.
PROCEDURE ON COMPLETION OF INVESTIGATION

s.169 – no sufficient evidence

Release of accused on execution of
s. 170 – if sufficient evidence
bond with direction that he may have
Forwards accused to the Magistrate
to appear before the Magistrate if
required to try him.
Till the chargesheet is not
filed investigation remains
pending. Once, it is filed – it
would mean the investigation s.173 – CHARGE SHEET/POLICE REPORT
is complete and ready to be Upon completion report to be sent to
forwarded to the Magistrate. Magistrate along with all documents
prosecution chooses to rely upon other
CAN THE POLICE STILL than ones supplied during investigation and
CONTINUE statements recorded under 161 of all
INVESTIGATING
persons whom the prosecution proposes to
FURTHER?
examine as a witness.
ROLE OF MAGISTRATE ON POLICE REPORT

Magistrate may accept Magistrate may feel

Magistrate may even Magistrate may
the report and proceed conclusion reached by the
post-cognizance even decide to
to take cognizance of police is incorrect and direct
straightaway issue drop the case
the same. FURTHER INVESTIGATION u/s
process and summon based on
156(3)
the accused u/s 204 closure report.

What happens if
the complainant is
not satisfied with
the closure of the
case?
DISCOVERY AND ARREST OF ACCUSED

1. The code classifies all criminal cases into summons cases and warrant
cases
2. Warrants Case: A case relating to an offence punishable with death,
imprisonment for life, or imprisonment for term exceeding two years:
Section 2(x)
3. Summons Case: A case relating to an offence, and not being a warrant
case: Section 2(w)
4. Owing to the relative seriousness of a warrants case, the chances of the
accused absconding are higher. As such, while in a summons case,
summons are issues at the first instance to procure the presence of the
accused, in a warrant case, a warrant of arrest is issued for the arrest of the
accused. (Section 204)
5. Issue of warrant in a summons case: S. 87