Confession

&
Cr.P.C.-I
Retracted

Submitted By:
Shikhar Agarwal
B.A., LL.B. (Hons.), Section B
Jamia Millia Islamia, New Delhi
 Acknowledgement

Firstly, I would like to express my profound sense

of gratitude towards the almighty for providing me with
the authentic circumstances which were mandatory for
the completion of my project.

Secondly, I am highly indebted to Dr. Mohammad

Asad Malik at Faculty of Law, Jamia Millia Islamia
University, New Delhi for providing me with constant
encouragement and guidance throughout the
preparation of this project.

My cardinal thanks are also for my parents, friends

and all teachers of law department in our college who
have always been the source of my inspiration and
motivation without which I would have never been able
to unabridged my project.

Shikhar Agarwal

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 Contents
 Introduction……………………………………………………………………..3-4
 Confession……………………………………………………………………..5-20
 Section 24, Indian Evidence Act………………………………………...5-
6
 Relevancy of Confession……………………………………………..6
 Section 25, Indian Evidence Act………………………………………….6
 Section 26, Indian Evidence Act………………………………………….6
 Section 27, Indian Evidence Act………………………………………...6-
7
 Confession to Police Officer…………………………………………….7-
9
 Section 163, Code of Criminal Procedure…………………………………
9
 Extra-Judicial Confession……………………………………………...9-
10
 Power of Judicial Magistrate under Section 164, Cr.P.C……………………..11-
20
 Procedure of Recording Statement under Section 164………………..12-
18
 Power of Recording by
Magistrate……………………………………….18
 Effect of Non-Compliance with the Provision of Section 164………..18-
19
 Retracted Confession…………………………………………………………….21
 Bibliography……………………………………………………………………..22


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 Introduction
The law of criminal procedure is intended to provide a mechanism for the
enforcement of criminal law, without proper procedural law, the substantive criminal law
which defines offences and provides punishments for them, would be almost worthless.
Because, in the absence of an enforcement machinery, the threat of punishment heed out of
the law breakers by the substantive criminal law would be a hollow shell of bullet.

Thus, a criminal law procedure is sought to be complementary to criminal law and has
been designed to ensure the process of its administration. In view of this objective, the law of
criminal procedure creates the necessary machinery for the detection of crimes, arrest of
suspected criminals, collection of evidence, determination of guilt or innocence of accused,
and the imposition of proper punishment on the guilty.

The law of criminal procedure also aims at safeguard of people against possible harms
and violation of human rights in its process of shifting criminals from non-criminals. It
further attempts to strike a balance between the need to give discretionary power to the
functionaries under the Code to make the investigative and adjudicatory process strong and
effective and the need for controlling the probable misuse or abuse of these powers.

It is, therefore, right to say, as the Supreme Court has also confirmed, that it is the
procedure that spells much of the difference between the rule of law and rule of whim &
caprice.1

While the general purpose of the criminal procedure is to provide a mechanism for the
administration of criminal law, its core object is “to ensure fort he accused a full and fair trial
in accordance of the principles of natural justice.”2

Therefore, the trial procedure becomes pivotal part of the scheme of criminal
procedure. Another important segment of procedure is investigation which is pre-cursor of
trial procedure. It includes information as to the commission of any offence or crime,
detection and arrest of the suspected offender, collection of evidence relating to the
commission of the offence which may consist of:

a) Examination of various persons.

b) Search and seizure

1
Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140.
2
Ibid.

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 The term “investigation” has been given a somewhat limited meaning when it is
defined as including all the proceedings for the collection of evidence by the police officer, or
by any private person authorised by a Magistrate. 3 Even in Vijayaraghavan v. CBI4 and in
Pappa Rao v. State5, Kerala and Calcutta HCs respectively has held that investigation
includes formation of opinion as to the existence of case and drawing up of investigation
report.

3
Section 2(h) of Cr.P.C.
4
(1984) CriLJ 1277 (Kerala)
5
(1989) CriLJ 546 (Cal.)

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 Confession
Confession in criminal law refers to any admission of “inculpatory” nature. It is an
admission of certain facts which constitute an offence committed by a person charged with
the offence which is the subject matter of confession.

It cannot be constituted as a statement of accused suggesting the inference that he has

committed the crime. The confession must either admit in terms of offence or at any rate
substantially are the facts which constitute the offence.

The term “admission” used above has been defined under section 17 of Indian
Evidence Act as:

“An admission is a statement, oral or documentary or contained in electronic

form, which suggests any inference as to any fact in issue or relevant fact, and
which is made by nay of the persons and under the circumstances, hereinafter
mentioned.”

A “confession” is an admission made at any time by a person charged with an offence

stating or suggesting the inference that he has committed the offence.6

A declaration is not confession if it is not made with an animus ‘confidenti’, that it is

with an intention to confess or if does not amount to an admission of facts from which guilt is
directly deductible.

The acid test which distinguishes a confession from an admission is that where
conviction can be based on the statement alone, it is a confession and where some
supplementary evidence is needed to authorize a conviction, then it is an admission.7

Section 24, Indian Evidence Act:

It classifies confessions made/caused by inducements, threats or promises, when irrelevant in

a criminal procedure. It bestows that if it appears to the court that the confession has been
made by nay person accused of any offence, caused by any inducement, threat or promise,
then such will be inadmissible. For the purpose of this provision, the confession should be
inculpatory and the deploring factors should appear to the court as the cause of such
statement, not the free will.

6
Stephen’s Digest on Law of Evidence.
7
Ram Singh v. State AIR 1959 All. 518.

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Relevancy of Confession:

A confession made by an accused will be rendered irrelevant in criminal proceedings if the

making of the confession appear to have been created by any deploring factor with reference
to charge against him. However, a confession, if it is voluntary, truthful, reliable and beyond
reproach is an efficacious piece of evidence to establish guilt of accused.8

A statement in order to amount to confession must either admit in terms of offence, or at any
rate substantially all the facts which constitute the offence.9

Section 25, Indian Evidence Act:

The provision makes confessional statement of

accused before police officers inadmissible in
evidence which cannot be brought on record by
prosecution to obtain conviction.10

Even if the FIR is given to the police by the

accused and amounts to a confessional statement,
it is prohibited by Section 25.11

Section 26, Indian Evidence Act:

Confession made while in police custody is not to be proved against the accused as the
provisions of Section 25 and 26 do not permit it. Unless such a confession is made before a
Magistrate.12

Further, the statements made in police custody are considered unreliable unless they have
been subjected to cross-examination or judicial scrutiny.13

Section 27, Indian Evidence Act:

The provision permits the derivative use of the custodial statement in the ordinary course of
events. In Indian law, there is no automatic presumption that the custodial statements have
been extracted through compulsion.14

8
Ram Singh v. CBI (2011) SC 2490.
9
Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167.
10
Supra note 8.
11
Aghnu Nagesia v. State of Bihar AIR 1966 SC 119.
12
Kamal Kishore v. Delhi Administration (1997) 2 Crimes 169.
13
Sehr v. State of Karnataka (2010) SC 1974.
14
Smt. Selvi v. State of Karnataka (2010) SC 1974

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For the applicability of the provision, the statement must be split into its components and to
separate the admission portion. Only those components which were the immediate cause of
the discovery would be legal evidence and not the rest which must be exercised and rejected.15

A fact discovered in an information supplied by the accused in his disclosure is a relevant fact
and is admissible if something new is discovered.16

Confession to Police Officer

In order to facilitate the conviction of evidence, the investigating officer has been given power
to examine orally any person supposed to be acquainted with the facts and circumstances of
the case, as per Section 161(1) of Cr.P.C.

The statement made to the police are of 3 categories:

1) A statement which has been recorded as an FIR.

2) Statement recorded by police in course of investigation.
3) Statement recorded by police not falling under (1) and (2).

None of the above statements can be considered as substantive evidence, that is to say, as
evidence of facts stated therein. Because it is not made during trial, it is not given on oath nor
is it tested by cross examination. If person making any such statement to police subsequently
appears and gives evidence in court at the time of trial, his former statement can be used
pursuant to Section 145 and 157 of the Indian Evidence Act.

Further, the statements given before the police satisfying Section 27 of Evidence Act are
admissible.

As regards the statements recorded by police during the course of investigation, the purpose
of Section 162 of Cr.P.C. is to protect the accused both against overzealous police officer and
untruth witness.17 Analysis of the provision brings out:

a) Any statement made by any person to a police officer in the course of the investigation
can be used only for the purpose as hereinafter provided and for no other purpose at
any inquiry or trial.
b) Such a statement can be used in a trial as hereinafter provided if the person making the
statement is examined as prosecution witness. That means such as statements cannot

15
Mohd. Snayatullah v. State of Maharashtra (1976) SC 483.
16
Supra note 12.
17
Khatri v. State of Bihar (1981) 2 SCC 493.

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 be used for any purpose whatsoever if the person making the same is examined as
defence witness.
c) The statement can be used for the purpose of contradicting witnesses, as per Section
145 of Evidence Act. The statement is not to be used for the purpose of cross-
examination.
d) The statement can be used for the above contradictory purpose to refute prosecution
witness by defence or with permission of court by prosecution.18
e) If any part of the previous statement is used for contradiction, any part of the
statement can be used in re-examination of witness for the only purpose of explaining
any matter referred to in his cross-examination. If a public prosecutor failed to get the
contradiction explained as permitted by the last limb of the proviso to Section 162(1)
of Cr.P.C., it is not possible for him to use powers under Section 172 for explaining
contradictions.19
Here, the expression ‘previous statement’ constitute the entirety of the facts stated by a
witness when he was examined on different dates by the same investigating officer or
different officers.
f) The provision implicitly prohibits the use of the statements made to the police during
the course of the investigation for the purpose of corroboration. That is based on the
assumption that the police cannot be relied on by the prosecution for the corroboration
of their witnesses as the statement recorded might be a self-serving nature.
The provision only places bar on use of statement made during the course of
investigation, made to an investigation officer. The section does not say that every
statement made during the investigation comes within the ambit of prohibition.

A statement is a narration addressed to some person for whom it is meant and not to the others
who may overhear or who may happen to read it when written.

Thereby, every statement made to a person assisting police in investigation cannot be treated
as statement to the police.20

The term “in course of” in the Section 162(1) imply that the statement must be made as a step
in a pending investigation.

18
Roli Nana Bhana v. State of Gujarat (1986) CriLJ 571.
19
Mahabir Singh v. State of Haryana (2001) 7 SCC 148.
20
V.K. Belurkar v. State of Maharashtra (1975) CrLJ 517.

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The restriction imposed by Section 162 of the Code on the use of statements as are “made to
the police during the course of investigation”. Any other statement though made during the
time of investigation, is not hit by the prohibition of Section 162. Therefore, such can be used
for corroboration or contradiction according to Sections 157 and 145 of Evidence Act.

An anonymous letter written by the accused to police complaining about the acts of
chowkidar, it was held that the statement contained in the letter was not hit by Section 162
and admissible by virtue of Section 21 of Evidence Act.21

Recently, on April 15, 2015, Vipin Sanghi, J. relying on the decision22 of Gujarat High Court
said “The important words in Section 162 of the Code are ‘No statement made by any person
to a police officer’. Therefore the statement must be one to a police officer and unless it is to a
police officer, it does not fall within the mischief of Section 162 of the Code. Therefore it is
necessary that the statement in question must have the element of communication to a police
officer.” In the present case, the panchnama/ seizure memo was primarily concerned with the
seizure of the relevant papers pertaining to the complainant's application to obtain the OBC
certificate. So, the court held that “The later part of the said panchnama, no doubt, contains an
inculpatory statement - though it does not in clear terms purport to be a statement attributed to
the appellant.”23

Section 163, Cr.PC.

The provision further prohibits a police officer or person in authority for offering or making
any inducement, threat or promise as is mentioned in Section 24 of Evidence Act.

Extra-Judicial Confession

Any extra judicial confession by its very nature is a weak piece of evidence and requires
appreciation with a great deal of care and caution. Where an extra judicial confession is
surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its
importance. The court generally looks for independent reliable corroboration before placing
any reliance upon an extra judicial confession.24

It is difficult to rely upon the extra judicial confession as the exact words or even the words as
nearly as possible have not been reproduced. Such statement cannot be said to be voluntary so

21
Baleshwar Rai v. State of Bihar (1963) 2 SCR 433.
22
Valibhai Omarji v. The State, AIR 1963 Guj 145.
23
Rajpal v. State (Govt. of NCT of Delhi), Crl.A. 276/2009, Judgment delivered on 15.04.2015.
24
Balwinder Singh v. State of Punjab (1999) SC 215.

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that the extra judicial confession has to be excluded from the purview of consideration for
bringing home the charge.

Normally, the extra judicial confession is made before a person, in whom, accused reposes
confidence. The evidence of extra judicial confession, in the very nature of the thing, is a
weak piece of evidence. If evidence adduced in respect of its lack of plausibility, and does not
inspire confidence in the court, it cannot be acted upon.

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 Power of Judicial Magistrate under Section 164,
Cr.P.C.
This section is not exhaustive and does not limit the generality of Section 21 of the Evidence
Act as to the relevancy of admission. The effect of this section, when read with Sections 24,
25, 26 and 29 of the Evidence 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 will 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.
5) Only when so recorded the confession becomes relevant and admissible in evidence.
The statement can be recorded only by a Judicial Magistrate.

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.,

a) It should be recorded and signed in the manner provided in Section 281 and then
forwarded to the Magistrate concerned,
b) He should give a statutory warning that the accused is not bound to make a confession,
c) He should be first satisfied that it is being made voluntarily, and
d) He should add memorandum at the foot of the confession.

The admission recorded in accordance with the special procedure prescribed under Section
164 can be used as substantive evidence. The record of such a confession is admissible in
evidence though the Magistrate recording it is not called as witness during the trial.

Because by Section 80 of Evidence Act, the court is required to presume that the record is
genuine, that any statement as to the circumstances under which it was made is true and that
such a confession or statement of accused has been duly recorded.

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A non-confession recorded under Section 164 is not substantive evidence. But if the maker of
such a statement is called as witness in trial, then his earlier statement can be used for
corroboration and contradiction under Section 157 or 145 of Evidence.25

The apex court has liberally construed that a statement recorded by Magistrate under Section
164 of Code becomes reliable for corroboration as provided in Section 157 of Act or
contradict under Section of same Act.26

Procedure of Recording Statement under Section 164

The mode of recording a confession is not the same as in case of recording a statement . The
mode of recording confession is much more elaborate so as to ensure that free and voluntary
confessions alone are recorded under the section. The provisions of Section 164 is a safety
valve meant to muzzle involuntary confession. The object of Section 164 read with the
“Judges Rules” i.e. the Executive instructions of the High Court, is to find whether the
statement sought to be made by an accused is perfectly voluntary or not. Therefore the act of
recording confession under S. 164 is a solemn act, and in discharging his duties under the
section, the magistrate must take care to see that the requirements of law under Sec. 164 must
be fully satisfied. An analysis of the section will bring out the following points—

1. A confession or a statement can be recorded only by a metropolitan magistrate or a

judicial magistrate. The proviso to sub-sec. (1) makes it clear that a police officer on
whom the powers of a magistrate have been conferred by any law, will not be
considered competent to record confession under S. 164. If any executive magistrate
or any other magistrate not empowered under sub-sec. (1) records a confession, the
record of the confession cannot be put in evidence, and further no oral evidence of the
magistrate to prove the confession in such a case shall be admissible.
2. Confessions or statements can be recorded under S. 164 either in the course of an
investigation, or at any time afterwards before the commencement of inquiry or trial.
Even if the confession is recorded after the commencement of enquiry or trial, it can
still be used in evidence; but sec. 164 would not relate to such a confession and the
same would be recorded by the trial court or the court making the inquiry.
3. Before recording any such confession, the magistrate is required to explain to the
person making the confession that
(i) He is not bound to make such a confession, and
25
Kali Ram v. State (1973) 2 SCC 808.
26
Ram Prasad v. State of Maharashtra (1999) 2 SCC 30.

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 (ii) If he does so it may be used as evidence against him.
These provisions contained in S. 164(2), if administered in the proper spirit, are most
salutary. They should not degenerate into idle formalities. The warnings set forth in S.
164 are merely illustrative and not exhaustive. It is also very necessary that the
magistrate should disclose his identity to such person so as to assure him that he is no
longer in the hands of the police. It has been held that if after the warning, the
recording of confession is postponed to another day or if the recording continues on
another day, a fresh warning is necessary before a confession or part of a confession is
recorded on the other day.
4. Sub-section (2) of S. 164 further enjoins the magistrate not to record any such
confession unless, upon questioning the person making it, he has reason to believe that
it was made voluntarily. Failure to convey the caution invalidates the confession and
renders it inadmissible in evidence [Kehar Singh v. State (Delhi Admn.)27]. The record
must show the warning given to the accused. It would not be enough to state “after due
warning”. Where warning has actually been given but has not been recorded, the
Magistrate may be examined on the point.

In Shivappa v. State of Karnataka28, it was held that the Magistrate must satisfy himself that
no pressure or force used on the accused.

In Chandran v. State29, it was held that the expression reason to believe” imports a very high
degree of expectation wrought by reason, a satisfaction fast-rooted in terra firma, free from
doubt as to the truth of the fact perceived and believed.

In Shankaria v. State of Rajasthan30, it was held that a confession recorded under Sec. 164
becomes ‘voluntary’ when it is made by the accused out of repentance after due caution with
reasonable time for reflection in order to remove completely any threat or torture, inducement
or promise by the arresting agency and when it precludes the possibility of tutoring.
For the exercise of jurisdiction to record confession under S. 164, it is a sine qua non that the
magistrate must have “reason to believe that the confession is being voluntarily made”.

The following directions are normally followed by magistrates in order to ensure that a
confession is made voluntarily—

27
AIR 1989 SC 683.
28
1995 SCC (Cri.) 3231.
29
1978 CrLJ 1693 (SC).
30
1978 CrLJ 1251 SC.

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a) After giving warnings to the person making a confession under sub-sec. (2), the
magistrate should give him adequate time to think and reflect. Normally such person,
if coming from police custody, is sent to jail custody at least for a day before his
confession is recorded. It may be put that there is no statutory provision in S. 164 or
elsewhere, or even an executive direction issued by the High Court that there should
be an interval of 24 hours or more between the preliminary questioning of the accused
and the recording of his confession. How much time for reflection should be allowed
to an accused person before recording his confession, is a question which depends on
the circumstances in each case.
b) Every enquiry must be made from the accused as to the custody from which he was
produced and as to the custody to which he was to be consigned and the treatment he
had been receiving in such custody in order to ensure that there is no scope for any
sort of extraneous influence proceeding from a source interested in the prosecution
still lurking in the accused’s mind. If marks of injuries are found on the person of the
accused, he should be asked how he received them.
c) The accused should be assured, in plain terms, of protection from any sort of
apprehended torture or pressure from such extraneous agents as the police or the like
in case he declines to make a statement. As a further safeguard to ensure that the
confession is voluntary, sub-sec. (3) prohibits a remand to police custody of the
accused if he expresses his unwillingness to make the confession when produced
before the magistrate; this does not of course mean or imply that remand has to be
made if the accused wants to confess. It has been held that after confession the
accused, as a matter of rule, should be sent to judicial lock-up and on no account be
returned to police custody.
d) The accused should particularly be asked the reason why he is going to make a
statement which would surely go against his self-interest in course of trial and he
should further be told in order to remove any lurking suspicion in his mind that even if
he contrives subsequently to retract the confession, it will be evidence against him
still. The magistrate’s failure to ask why the accused wanted to confess was however
held to be a noncompliance of form curable under S. 463.
e) The magistrate recording the confession must appreciate his function as one of a
judicial officer and he must apply his judicial mind to the task of ascertaining that the
statement the accused is going to make is of his own accord and not on account of any
influence on him. The magistrate must put questions to the accused in order to

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 ascertain the voluntariness of the confession, and the record of the confession must
show that questions were so asked to ascertain voluntariness. It would be necessary in
every case to put the questions prescribed by the High Court Circular, but the question
should not be allowed to become a matter of mere mechanical enquiry and no element
of casualness should be allowed to creep in.
f) A confession must be “perfectly voluntary” otherwise the court should reject it. The
term “voluntary” means one who does anything of his own free will A magistrate
recording confession must make inquisitorial enquiry and make adequate exercise to
ascertain the impelling reason of the prisoner to confess his guilt.
g) To adjudge voluntariness, the magistrate should take note of two basic factors: First,
the existing mental condition of the prisoner. Secondly, the magistrate must satisfy the
court by documentary oral evidence that he had fully exercised his judicial mind to get
the real motive or the impelling factor which prompted the prisoner to make the
confession.
h) There is no requirement that the magistrate should make a separate statement of
reasons for believing that the confession was made voluntarily. It was sufficient that
his statement was recorded in the memorandum. It was further held that it was illegal
for the trial court to compare the confessional statement with the record of Accused’s
statement in the police case diary.

In Lokeman Shah v. State of West Bengal 31, it was observed that voluntariness is the essence
of the confession. This is the material substance behind any confession. The rest part of the
requirements under Section 164 relates to the form. Where the Magistrate failed to ask any
question to the accused whether he was under any inducement from police it indicated that the
Magistrate failed in searching voluntariness before recording the confession and thus the very
essence of the confession was not made out.

5. Sub-section (4) requires that a confession shall be recorded in the manner provided in
S. 281 for the recording of the examination of an accused person. Accordingly, the
whole of the confession, including every question put to the accused and every answer
given by him shall be recorded in full. The record shall, if practicable, be in the
language in which the accused gave the confession or if that is not practicable, in the
language of the Court. The record shall be shown or read to the accused, or if he does
not understand the language in which it is written, shall be interpreted to him in a

31
AIR 2001 SC 1760.

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 language which he understands, and he shall be at liberty to explain or add to his
answers. The confession so recorded shall be signed by the accused person making the
confession. There is no provision in S. 281 for administering oath to an accused.
Therefore no oath can be administered to the accused who is making a confessional
statement before a magistrate; and if oath in fact is administered it will be contrary to
the provisions of S. 281 and as such the confessional statement would lose its
evidentiary value.
6. Section 164 does not mention the place and time of the recording of a confession.
However it has been held that the magistrate should record the confession in open
court and during court hours.
7. The magistrate recording a confession or statement under S. 164 is required to send
the record directly to the magistrate by whom the case is to be inquired into or tried.
Such record is admissible in evidence even though the magistrate making the record is
not called as a witness to formally prove it at the trial of accused person. Because,
according to Section 80 of the Evidence Act, the Court is required to presume—that
the record is genuine, that any statement as to the circumstances under which it was
made are true and that such confession or statement of the accused was duly recorded.
8. Questions may arise to the legal consequences of non-compliance with the provision
of sec 164. The magistrate recording the confession. may not belong to the class of
magistrates mentioned in S. 164(1); the person making the confession might not have
been cautioned as required by S. 164(2); or the magistrate might have failed to record
the confession or the statement in accordance with S. 164(4) i.e. not in the manner
provided by S. 281; or the magistrate might have failed to make a memorandum as
required by S. 164(4). Section 463 is designed to cure to some extent the defects and
irregularities in the recording of the confession or other statement of the accused under
Section 164.
9. Section 164 is applicable to confessions and statements recorded by magistrates during
the course of an investigation or at any time afterwards before the commencement of
the inquiry or trial. If the confession is recorded by a magistrate when no investigation
had begun, the mandatory procedure laid down in S. 164 is not applicable in such a
situation. In a case where the accused after committing murder went to a magistrate
and made a confessional statement and the magistrate recorded the statement and the
accused signed it, it was held that though the procedure laid down in S. 164 was not
followed, yet as no investigation of crime registered against the accused was in

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 progress, the confession was admissible in evidence. There is nothing in the language
of S. 164 to enable us to go to the extent of converting a mode of performance of duty
of certain magistrates during a certain period into a disability of all those who may
hold magisterial office to give evidence of confessional statements even other than
those covered by S. 164. However, where the accused is induced to make a statement
or confession to a person other than a magistrate or the police merely as a colourable
pretence for the purpose of avoiding the letter of the law, such a statement or
confession must be held to have been made “in the course of an investigation” within
the meaning of Ss. 162 and 164, and it must be rejected, as in its spirit it is in violation
of the provisions of those sections.

Thus, the whole confession, including every question put to the accused and every answer
given by him shall be recorded in full. The record shall, if practicable, be in the language in
which the accused gave the confession or if that is not practicable, in the language of the
court. The record shall be shown, read or interpreted to him, and he shall be at liberty to
explain or add to his answers.

If the confession is properly recorded and is otherwise free from any infirmity it cannot be
discarded merely on the ground that it was recorded not in the open court but in the chamber.
Confession should be recorded in open court and during court hours (though Sec. 164 does
not mention the place and time of recording of confession) unless there are exceptional
reasons to the contrary.

In Ammini v. State of Kerala32, it was held that where the confession is recorded by a
Metropolitan Magistrate, then in view of Sec. 164(4) read with Sec. 281(1), it shall be enough
if he makes a memorandum of the substance of the confession in the language of the court and
signs the same. In practice, the M.M. prefers to follow the elaborate procedure of questions
and answers for the recording of confessions under Sec. 164. In the absence of any
requirement that separate reasons were required to be recorded for believing that the
confession was made voluntarily, it was not proper for the trial court to doubt its genuineness
on the ground that reasons were not recorded separately though the satisfaction was recorded
in the memorandum.

32
1998 CrLJ 481 (SC).

Page | 17
However, a mere failure to get the signature of the person making the confession may not be
very material if the making of such statement is not disputed by the accused, but in cases
where the making of the statement itself is in controversy, the omission to get the signature is
fatal, as was held in Dhananjaya Reddy v. State of Karnataka33.

Power of Recording by Magistrate [Sec. 164(5)-(6)]

Any statement (other than a confession) made under sub-sec.(1) shall be recorded in the
manner provided in the Code (Sections 272-280) for the recording of evidence as is, in the
opinion of the Magistrate, best fitted to the circumstances of the case [Sec. 164(5)]. Further,
the Magistrate shall have power to administer oath to the person whose statement is so
recorded.

Administering of oath is barred in the recording of a confessional statement by the clear

provision of sub-section (5). The confession should be recorded in the manner provided for
recording the statement of an accused and not in the manner provided for recording of
evidence by administering an oath. If it is so recorded, it loses its character of a confessional
statement in so far as the maker is concerned

Though the Magistrate is empowered to record the statement of any person during the course
of the investigation or before the inquiry/ trial, the apex court in Joginder Nayak v. State of
Orissa34 has opined that the Magistrate is under no obligation to record the statements of
strangers, otherwise every Magistrate’s court will be further crowded with a number of such
intending witnesses brought up at the behest of accused person.

Effect of Non-Compliance with the Provisions of Section 164

The special procedure laid down under Section 164 is mandatory. However, Section 463 of
the Code lays down that if any of the provisions of Section 164 have not been complied with
by the Magistrate recording the statement, the court may (notwithstanding anything contained
in Section 91, Evidence Act) take evidence in regard to such non-compliance and may, if
satisfied that such non-compliance has not injured the accused in his defence on the merits
and that he duly made the statement recorded, admit such a statement.

Section 91 of the Evidence Act provides that if any matter is required by law to be reduced to
the form of a document (viz., recording of a confession/statement under Sec. 164, Cr.P.C.), no
evidence shall be given in proof of such matter except the documents itself. Sec. 463 permits

33
2001 CrLJ 1712 (SC).
34
(2000) 1 SCC 272.

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oral evidence by the Magistrate to prove that the procedure laid down in Sec. 164 had actually
been followed, where the record which, ought to show that, does not do so.

The Magistrates failure to ask why the accused wanted to confess has been held to be a non-
compliance of form curable under Sec. 463 [Kehar Singh’s case 35]. Where the Magistrate
lacks jurisdiction to record a confession under Sec. 164 (viz, an Executive Magistrate) and he
records it, it cannot be said that the accused duly made the statement under Sec. 164; this
basic defect cannot be cured by Sec. 463 [State of UP v. Singhara Singh36].

The Law Commission of India in its 37th Report noted that “the provisions contained in Sec.
164, if administered in the proper spirit, are most salutary. They should not degenerate into
idle formalities.”37 From a perusal of the various judgments of the higher courts in India, it is
clear that the procedural or technical non-compliance would not make a confession/statements
inadmissible, if there is a ‘substantive’ compliance with the provisions of Sec. 164.

In a landmark decision in Dara Singh’s case38, the Supreme Court held the following
principles emerging with respect to recording of any confession:

I. The provisions of Section 164 Code of Criminal Procedure must be complied with not
only in form, but in essence.
II. 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.
III. 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.
IV. The maker should be granted sufficient time for reflection.
V. 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.
VI. 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.

35
Supra note 25.
36
AIR 1964 SC 358.
37
Thirty-Seventh Report on The Code of Criminal Procedure Code, 1889, Law Commission, December 1967.
38
Rabindra Kumar Pal @ Dara Singh v. Republic of India, AIR 2011 SC 1436.

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VII. Non-compliance of Section 164 Code of Criminal Procedure goes to the root of the
Magistrate's jurisdiction to record the confession and renders the confession unworthy
of credence.
VIII. 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.
IX. At the time of recording the statement of the accused, no police or police official shall
be present in the open court.
X. Confession of a co-accused is a weak type of evidence.
XI. Usually the Court requires some corroboration from the confessional statement before
convicting the accused person on such a statement.

Recently on February 12, 2015, in Madhuri Devi v. State of Bihar & Others 39, Ashwani
Kumar Singh, J. held that “Section 164 of the Code of Criminal Procedure empowers any
Judicial Magistrate, whether he has or not jurisdiction in the case, to record any confession or
statement made to him in the course of an investigation by the police or (when the
investigation has been concluded) at any time afterwards but before the commencement of the
inquiry or trial. The statement of the witness under section 164 of the Code of Criminal
Procedure can be recorded only when a person is sponsored by the investigating agency and
not otherwise. When the witness is not sponsored by the investigating agency, the concerned
Magistrate has no jurisdiction to record the statement under section 164 of the Code of
Criminal Procedure.”

39
Criminal Writ Jurisdiction Case No.619 of 2014.

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 Retracted Confession
The apex Court has laid down that it is not an inflexible rule of practice or prudence that in no
circumstances conviction can be based without corroboration on a retracted confession.
However such corroboration is required not as rule of law but rule of practice.40

It is unsafe to rely on and act upon retracted confession unless upon a consideration of the
whole of the evidence in the case, the court is in a position to come to the unhesitating
conclusion that a confession was true. It is often very difficult, if not possible, to come to such
a conclusion unless “there is”, in words of Kerman J., in Queen v. Rangi41 “reliable
independent evidence to corroborate to a material extent and in material particulars the
statement contained in the withdrawn confession statement”.

A retracted confession is of little value against a co-accused and fullest corroboration is

necessary for more than would be demanded for the sworn testimony of an accomplice on
oath.42

The mere fact that a confession is retracted does not render it in admissible in evidence, but
the Court has to scrutinise any such confession with the utmost care and accept it with the
greatest caution. It is a settled rule of evidence that unless a retracted confession is
corroborated in material particulars it is not prudent to base a conviction in a criminal case on
its strength alone, (vide A.I.R. 1953 SC 459) unless from the peculiar circumstances under
which it was made or judging from the reasons alleged or apparent, of retraction, there
remains a high degree of certainly that the confession, notwithstanding its having been resiled
from, is genuine. [vide 30 P.R. 1914 (Cr.) and A.I.R. 1954 SC 4]. Calcutta High Court ruled
that it is unsafe to rely on retracted confession standing by itself uncorroborated.43

A retracted confession should carry practically no weight as against a person other than the
maker, it is not on oath, it is not tested by cross-examination, and its truth is denied by the
maker himself, who has thus lied on one or other of the confession or occasion. The very
fullest corroboration would be necessary in such a case, for more than would be demanded for
the sworn testimony of an accomplice on oath.44

Bibliography
40
Parmanand v. State of Assam AIR 2004 SC 4197; Hukma v. State of Rajasthan (1976) CrLJ 1480.
41
(1886) 10 Mad 295.
42
In re, Kamsala Muneyya ILR (1938) Mad 348.
43
Queen-Empress v. Jadub Das (1900) ILR 27 Cal 295.
44
Yasin and Ors. v. King-Emperor (1901) ILR 28 Cal 689.

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Books Referred:

 Ratanlal & Dhirajlal, with a Foreword Justice M.N. Venkatachaliah, The Code of Civil
Procedure, Jain Book Agency, 19th Edition, 2014.
 M. C. Thakker, C. K. Thakker Takwani, Criminal Procedure (English), 4th Edition,
Lexis Nexis, 4th Edition, 2014.
 Kelkar, The Code of Civil Procedure, 21st Edition, 2014.

Articles Referred:

 Confessions and Statements of Accused Persons, available at

<http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_bhx4lv6d.p
df>
 Investigation and Criminal Justice System, available at
< http://shodhganga.inflibnet.ac.in/bitstream/10603/7860/10/10_chapter%203.pdf >

Report Referred:

 Thirty-Seventh Report on The Code of Criminal Procedure Code, 1889, Law

Commission, December 1967.

Websites Referred:

 http://lawlex.org/lex-bulletin/evidentiary-value-of-confession/3545
 http://hanumant.com/LOE-Unit4-Confession.html
 http://solumevidentia.blogspot.in/

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