CrPC
Section 164
Q1. What is confession?
Ans. A confession is an admission of the offence
by the accused.
●● The term “admission” is of wider connotation
and can be used to include a confession.
Thus, all confessions are admissions but
al admissions cannot be confessions. If the
admission is sufficient to prove the guilt of the
maker, it is a confession. (vide paras 27 and
28 of State (NCT of Delhi) v. Navjot Sandhu
(2005) 11 SCC 600).
●● The privy council in Pakala Narayana
Swamy v. Emperor AIR 1939 PC 47, a
confession has been understood as follows:-
●● A confession must either admit in terms the
offence, or at any rate substantially all the
facts which constitute the offence.
●● The above definition was approved by the
Supreme Court of India in Palvinder Kaur v.
State of Punjab AIR 1952 SC 354.
●● Confessions are considered to be highly untariness of confession.
reliable because no rational person would Ans. The Magistrate must record the ques-
make an admission against his own interest tions put the accused in order to –
unless prompted by his conscience to tell the
truth.
Q2. What are the classifications of Confessions?
Ans. Confession can be broadly classified into two,
namely, “judicial confession” and “extra judicial
confession”. A judicial confession can be further
classified into two-
1. Judicial Confession during investigation,
and
2. Judicial confession during trial.
●● Both these instances of judicial confession
are taking place inside the Court. Section
164 Cr.P.C. is the provision which deals
with judicial confession during the stage of
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Part
investigation. Instances of judicial confession
during trial are when the “substance of
accusation” is read over to the accused in a
“Summons Trial” under Section 252
Cr.P.C. or when a “charge” is framed
against accused in a “Warrant Trial” under
Sections 240(1) or 246(1) Cr.P.C. or in a
“Sessions Trial” under Section 229 Cr.P.C.
●● Extra judicial confession taking place outside
the Court can include confessions made to
persons in authority like the Police or other
non-police officers functioning under various
statutes and also confessions made to a friend
or relative or even to a stranger.
●● In the case of extra-judicial confessions made
to private persons, Courts usually examine
whether such persons have any oblique
motive and whether their testimony is cogent,
credible and free from blemishes.
Q
3. Duty of Magistrate before recording the
confession. Magistrate satisfaction about Vol-
• Ascertain whether the confession was of a
voluntary nature.
• Assure the accused that he will not have to
go back to Police custody after his state-
ment is recorded.
• Warn him of the consequences which
would ensue if the confession turns out to
be false.
• Ascertain whether it was in the hope of re-
lease that he is implicating himself.
• Ask the accused whether the Police or any
other person had subjected him to ill-treat-
ment. (Vide Kartar Singh v. State of
Punjab (1994) SC.)
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●● The Magistrate shall not record the confession
unless, after questioning the person making
the confession, the Magistrate has reason to
believe that it is being made voluntarily. (vide
Section 164(2) Cr.P.C).
●● It is imperative that the Magistrate
should, before recording the confession,
ascertain through intelligent questioning
whether the statement is spontaneous
and voluntary, or some influence or false
impression has been at work to induce him to
make the statement.
●● The Magistrate should disclose his identity to
the accused so as to assure him that he is no
longer in the hands of the Police. The accused
should be told that he is before a Magistrate
who is independent of the Police and he should
be given the assurance of protection against
any apprehended inducement, pressure, threat
or oppression if he does not confess. (vide
Sanatan v. State AIR 1953 Orissa 149;
Paramhansa Jadab v. The State AIR 1964
Orissa 144.)
●● The Magistrate should ensure the voluntary
nature of the confession for which compliance
of the provisions of sub-sections (2), (3), and
(4) of Section 164 Cr.P.C. is mandatory. (vide
Dara Singh alias Rabindra Kumar Pal v.
Republic of India (2011) 2 SCC 490 = AIR
2011 SC 1436.)
●● If the accused person who offers to make a
confession is in Police custody, he should
be removed from Police custody and should
be sent to judicial custody. After recording
the confession he must invariably be sent to
judicial custody and should on no account be
returned to Police custody.
●● The accused was produced from prolonged
Police custody. But 15 to 30 minutes’ time
alone was given to the accused for reflection
before recording the confession. It was held
that sufficient cooling off time was not given
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, DELHI 011 42988032, 88032 88032
to the accused and, therefore, the confession
could not be taken into consideration for
recording the conviction against the accused.
(vide State of Rajasthan v. Ajit Singh (2008)
1 SCC 601.)
●● The Magistrate should take precautions to
ensure that the Police influence, if any, is
removed before recording a confession. The
sooner it is made, the better.
●● If marks of injuries are found on the person
of the accused, the Magistrate should ask him
as to how he received those injuries. (vide
Sarwan Singh Rattan Singh v. State of
Punjab AIR 1957 SC 637.)
●● Before an accused is asked to make his
confession the Magistrates ordinarily allow a
period for reflection and remand him to jail
custody so as to put him out of the reach of
the investigating officer.
●● The object of keeping the accused/suspect
in judicial custody and giving him sufficient
time for reflection and necessary warnings
reinforces the voluntariness since with
the sufficient time given for reflection, the
accused frees himself from the pressure of
Police interrogation. Before making the
confession.
●● Recording of confession should ordinarily
be after explaining to the accused the
consequences as indicated in (ii) above and
after giving the accused person sufficient time
for reflection.
●● Generally atleast 24 hours’ time should be
given to the accused to consider whether he
should make a confession. Where there is
reason to suspect that the accused has been
persuaded or coerced to make a confession,
even longer period may have to be given
(vide Sarwan Singh Rattan Singh V. State
of Punjab 1957 SC 637.)
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 ●● There is no hard and fast rule regarding the
time for reflection to be granted for recording
the confession. But the time of 5 or 10 minutes
granted was held to be utterly inadequate (vide
para 184 of State (NCT of Delhi) v. Navjot
Sandhu (2005) 11 SCC 600.)
●● If the accused is handcuffed, the Magistrate
should order to remove the handcuffs, and
the police and other persons who are likely
to have any influence over the accused
should be ordered out in order to create
free atmosphere (Dikson Mali v. Emperor,
(1942) 43 Cri LJ 36).
Q4. What will be the course adopted by a
Magistrate where the accused is unwilling to
confers?
Ans. If before recording the confession the person
appearing before the Magistrate states that he is
not willing to make the confession, then the Mag-
istrate shall not authorize the detention of the ac-
cused in Police Custody. (Section 164(3) Cr.P.C.)
Q5. What is the manner of Recording Confes-
sion? Language of Confession.
Ans. The confession should be recorded in the
manner provided by Section 164 and Section 281
Cr.P.C. It has to be signed by the person making
the confession and the Magistrate has to make a
memorandum at the foot of the record.
●● The requirement of obtaining the signature
of the person making the confession is
mandatory and non-compliance renders the
entire confessional statement inadmissible.
Language—
●● The confession shall be recorded in the
language in which the accused is questioned
or if that is not practicable, in the language of
sion?
the Court. (vide Section 281(3) Cr.P.C.)
Ans. A confession, judicial or extra-judicial if
Q 6. Whether oath to be administered during
found to have been voluntarily made can form the
confession?
basis of conviction of the accused. (vide State of
Ans. Oath not to be administered—
Rajasthan v. Rajaram AIR 2003 SC 3601).
●● The procedure for recording of evidence or
administration of oath to the accused, should
not be resorted to while recording a confession.
Q7. What is effect of non-compliance of Sec.
164 & Sec. 281 Cr.P.C.?
Ans. Where the mandatory requirements pro-
vided under Section 164(2) Cr.P.C. namely, ex-
plaining to the accused that he was not bound
to make any statement and if a statement is
made the same might be used against him, had
been complied with, then the defect of failure
by the Magistrate to record the question as to
whether there was any pressure on the maker
of the confession, will stand cured by Section
463 Cr.P.C. particularly when the Magistrate
in the certificate appended to the statement has
inter alia stated that he believed the confession
to be voluntary. (Vide Ram Singh v. Sonia =
AIR 2007 SC 1218).
●● Mere stereotyped endorsement repeating the
words of the memorandum in sub-Section
(4) will not fulfil the requirement of the said
sub-section if the confession recorded by the
Magistrate did not indicate anywhere as to
whether, before recording the same, he gave
the accused the requisite caution and put
questions to satisfy himself that the confession
was being made voluntarily. Held that the
confession was not voluntary and cannot be
acted upon. (vide Tulsi Singh v. State of
Punjab = AIR 1996 SC 3477).
●● The Magistrate certifying that he “hoped” (and
not that he “believed”) that the confession of
the accused was voluntary, would suggest a
lingering doubt and hence not accepted. (vide
Chandran v. State of T.N. (1978) 4 SCC 90.)
Q 8. What is the evidentiary value of confes-
●● A confession is admissible without examining
the Magistrate who recorded the same. If the

APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, DELHI 011 42988032, 88032 88032 3
 confession is not in conformity with law, even
the examination of the Magistrate will not
cure the illegality. (Kashmira Singh v. State
of M.P. AIR 1952 SC 159).
Q9. What should the recording Magistrate do
after completion of proceeding?
Ans. After recording the confession the Magistrate
shall forward the same to the magistrate by whom
the case is to be inquired into or tired. (vide Sec-
tion 164(6) Cr.P.C.).
Q10. What is the legal status of confession or
statement recorded u/s 164 Cr.P.C.?
Ans. The “confession” of an accused or the “state-
ment” of a witness recorded u/s 164 Cr.P.C. is a
public document under Section 74 of the Evidence
Act. (Vide State of Madras v. G. Krishna AIR 1961
Madras 92 (FB).
Q11. Can copies of confession/statement u/s
164 Cr.P.C. be obtained by I.O & the accused
during investigation stage?
Ans. The accused cannot but the investigating offi-
cer can obtain copies of the “confession” or “state-
ment” during the investigation stage.
●● However, a Full Bench of the Allahabad
High Court in Raju Janki Yadav v. State
of U.P. 2013 KHC 2125 = 2013 Cri. L.J.
78 (Allahabad) has taken the view that
recording of statement of witnesses u/s 164
Cr.P.C. indicates the performance of official
and judicial function by a Magistrate and as
such the statement is a public document and
the accused is entitled to a certified copy of
the same.
●● A full bench of the Madras high Court in State
of Madras v. G. Krishna AIR 1961 Madras 92
had taken the view that although a statement
recorded under Section 164 Cr.P.C. may be
a public document under Section 74 of the
Evidence Act, the right of the accused to get
copies of the same before the filing of the
charge sheet, has been taken away by Section
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, DELHI 011 42988032, 88032 88032
173(4) of old Cr.P.C. corresponding to Section
173(7) of the present code.
●● It may be noted that a confession or a statement
recorded U/s 164(1) to (4) and Section
164(5), as the case may be, is a document to
be forwarded by the recording Magistrate to
the Jurisdictional Magistrate under Section
164(6) Cr.P.C. It is one of the documents
referred to in Section 173(5) (a) Cr.P.C. and
the Police Officer filing a charge sheet under
Section 173(2) Cr.P.C. is obliged by Section
173(7) Cr.P.C. to furnish to the accused copies
of all documents referred to in Section 173(5)
Cr.P.C.
●● The accused becomes entitled to get a copy
of the confession or statement recorded
u/s 164 Cr.P.C. only when a charge sheet
(Police Report) is filed after the conclusion of
investigation.
●● The Supreme Court in Naresh Kumar Yadav
v. Ravindra Kumar (2008) 1 SCC 632 held
that the Police papers which are to be supplied
to the accused and the stage at which they are
to be supplied have been statutorily fixed. The
Apex Court further observed that if the first
informant or the accused is found referring
to any of those documents during the crime
stage, after having obtained unauthorized
access of the case diary, a serious view has to
be taken by courts.
●● Supreme Court in State of Karnataka v.
Shivanna @ Tarkari Shivanna (2014) 8 SCC
913 = 2014 KHC 4321, ordered that a copy of
the statement recorded u/s 164 Cr.P.C. should
be handed over to the Investigating Officer
with a specific direction that the contents of
such documents should not be disclosed to
any person till the charge sheet/report under
Section 173 Cr.P.C. is filed.
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Q12. What is the role with respect to Pre- sponsored by the Police unlike in the case of a wit-
sumption of confession & statement u/s 164? ness or victim. This is a Judge-made law. The only
rider is that before recording the confession the
Ans. The presumption under Section 80 of the Evi-
Magistrate should be satisfied that the person who
dence Act is available in respect of a “Confession”
proposes to confess is an accused and that investi-
recorded under Section 164 Cr.P.C. Hence, in the
gation against him is in progress. (Vide Mahabir
case of a “Confession”, Section 80 of the Evidence
Singh v. State of Haryana (2001) 7 SCC 148.)
Act makes examination of the Magistrate who re-
corded the confession, unnecessary. Q14. The relevance of reiterated confession.
●● But, the said presumption does not apply to Ans. Merely because the confession was retracted
a “statement” recorded under Section 164 later, it does not mean that the confession was not
Cr.P.C. This is clear from Section 80 itself voluntary in nature. The issue as to whether the
which indicates that the presumption will accused was willing to give confession voluntarily
apply only if the statement was recorded in or not is to be determined from his mental state
any judicial proceeding. The “Statement” of at the time when he gave the confession. (vide pa-
a witness recorded under Section 164 Cr.P.C. ras 13 & 18 of Abdulvahab Abdulmajid Shaikh v.
is not “Evidence” given by a witness in a State of Gajrath (2007) 4 SCC 257).
“Judicial Proceeding”. ♦♦ If the confessional statement has been amply
●● Such a “Statement” recorded u/s 164 corroborated by circumstantial evidence, its
Cr.P.C. not being substantive evidence, the subsequent retraction by the maker would not
presumption under Section 80 of the Evidence make it unreliable.
Act is not applicable to it. A statement of that ♦♦ Though a conviction based on the uncorroborated
nature is only a “Previous Statement” which, confession of an accused person is not illegal but
like any other previous statement, can be used as a rule of prudence which has become a rule
to contradict or corroborate the maker which of law, Courts look for corroboration before
is possible only if the maker is examined as a accepting a retracted confession.
witness. If the maker of the statement is not Q15. What are the rules with respect to pres-
examined as a witness, there is no question of ence of counsel at the time of recording the
the statement recorded u/s 164 Cr.P.C. being confession?
used against the accused. (Vide Baij Nath Ans. Recording of confession is a “proceeding”
Sah v. State of Bihar (2010) 6 SCC 736.) within the meaning of Section 303 Cr.P.C. and
●● A statement under Section 164 Cr.P.C. is hence the accused has a right to consult a lawyer
not substantive evidence of the truth of the of his choice. Before recording the confession, the
facts stated. It can be used to corroborate or Magistrate should, therefore, explain this to the
contradict the maker. (vide Brij Bhushan accused. If the accused is poor or belongs to an
Singh v. Emperor AIR 1946 PC 38). economically or socially backward class, the mag-
Q 13. Can an accused on his own accord make istrate should inform the accused about his right
a confession to a Judicial Magistrate? to free legal aid under Section 304 Cr.P.C. (vide
Ans. An accused himself can appear before a Judi- Nandini Satpathy v. P.L. Dani AIR 1978 SC).
cial Magistrate for recording his confession. Such Q16. Conflict b/w Section 163 & Sec. 164 (4)
accused person is free to make a voluntary con- Cr.P.C.
fession before the Magistrate and he need not be

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