Power of Judicial Magistrate to Record Confessions and Statements (Section 164 of Cr.P.C)

Introduction - 

          Section 164 of the code of criminal procedure provides the special procedure for the recording of confessions and statements made during the course of investigation by competent judicial magistrates.

What is Confession - 

              The expression confession means a statement made by an accused admitting his guilt. It is an admission as to the commission of an offense. If a person accused of an offense makes a statement against himself, it is called confession or confessional statement. Confessions are the special form of admissions. Thus it is popularly said that "All Confessions are admissions, but all Admissions are not confessions."

Must Read... Confession and Kinds of Confession

Any confession made to a police officer is totally inadmissible evidence because of the police, by and large, is not ate considered trustworthy. It is apprehended that any power given to the police to record confessions or statements is more likely to be misused and that the over Zealous Police officers might, in the apparent exercise of Sach power, extort fabricate confessions and manipulate statements. Therefore the code of criminal procedure provides Section 164 a special procedure for the recording confessions and statements made during the course of investigation by competent judicial Magistrates.

Power of Judicial Magistrate to Record Confessions and Statements - 

        Chapter XII Information to the Police and their powers to investigate, Section 164 of the code of criminal procedure provides that -

              (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 this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

    Provided that no confession shall be recorded by 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.

       (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 authorize 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 the power to administer oath to the person whose statement is so recorded.

       (5A) - (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, [section 376A, section 376AB, section 376B, section 3760, section 376D, section 376DA, section 376DB], section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offense has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offense 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 videographed.

                     (b) 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-examined on such statement, without the need for recording the same at the time of trial.".

(6) 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. 

See also...

Privileged Communication under the Indian Evidence Act 1872

What is Admission and who can make Admissions under the Indian Evidence Act 1872