Section 164.

Recording of
confessions and statements.
Section 164 of the Code of Criminal Procedure (CrPC) in India
pertains to the recording of confessions and statements made by
accused persons before a Magistrate.

According to this section, any Metropolitan Magistrate or Judicial

Magistrate can record the statement or confession of an accused
person who is in police custody or is otherwise detained. The
Magistrate must first inform the accused that they are not obliged
to make any statement or confession, and that anything they say
may be used against them in court.

If the accused wishes to make a statement or confession, the

Magistrate must record it in writing and read it back to the
accused. The accused must then sign the statement or
confession, after which the Magistrate must also sign it and
include the date and time of recording.

It is important to note that confessions and statements made

under Section 164 are admissible as evidence in court, provided
they are made voluntarily and without any coercion or
inducement. The Magistrate must ensure that the accused has
made the statement or confession of their own free will, and not
as a result of any threat or promise made by the police or any
other person.

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Q. Who can record a “confession” or “statement” under
Section 164 Cr.P.C. ?

Ans. Section 164(1) empowers any Metropolitan Magistrate or

other Judicial Magistrate to record any confession or statement
made to him.

A confession recorded by an Executive Magistrate under Section

164 (1) Cr.P.C. is thus totally inadmissible in evidence

Second proviso to Section 164(1) clarifies that a Police Officer on

whom the power of a Magistrate has been conferred under any
law also cannot record a confession under Section 164(1) Cr.P.C.

It is not permissible to anyone to record a confession, only a

judicial magistrate can record a confession by recourse to Section
164 Cr.P.C.

But, anybody including an Executive Magistrate is entitled to

record an extra judicial confession. However, a Police Officer
cannot record a confession in view of the interdict under Section
25 of the Indian Evidence Act, 1872.

In Kartar Singh v. State of Punjab, the Supreme Court held that

since an Executive Magistrate or a Special Magistrate authorised
under Section 20(3) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (“TADA Act” for short) was acting as a

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criminal Court, they are entitled to record a confession in relation
to a case involving an offence under the TADA Act.)

Conclusion

This provision indicates that a Judicial Magistrate alone is

invested with the power to record a confession or statement under
Section 164 (1) Cr.P.C.

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Q. Should the Magistrate be the jurisdictional Magistrate?

Ans. No, even though going by the wording of Section 164 (1)
Cr.P.C. it will not be illegal if a jurisdictional Magistrate records a
“confession” or “statement” under Section 164 Cr.P.C.

Any Metropolitan or other Judicial Magistrate can record the

confession or statement under Section 164 (1) Cr.P.C. whether or
not he has jurisdiction in the case.

Thus, the Judicial Magistrate who records a confession or a

statement under Section 164 (1) Cr.P.C. need not necessarily be
the jurisdictional Magistrate. This is further clear from sub-section
(6) of Section 164 as per which the Magistrate after recording a
confession or statement is obliged to forward the same to the
Magistrate who is inquiring into or trying the case.

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Q.What is the stage at which a “confession” or “statement”
under Section 164 Cr.P.C. can be recorded?

Ans. Such “confession” or “statement” can be recorded either

during the course of investigation or at any time thereafter but
before the commencement of inquiry or trial.

The investigation referred to under Section 164(1) can either be

under Chapter XII of Cr.P.C. or under any other law for the time
being in force.

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Q. What is the significance of Section 164(2) of the Code of
Criminal Procedure (CrPC) in relation to the recording of
confessions and statements by Magistrates during
investigations or trials?

Ans. Section 164(2) of the Code of Criminal Procedure (CrPC)

pertains to the recording of confessions and statements by
Magistrates.

According to this section, any confession or statement made by

an accused person to a Magistrate during an investigation or trial
cannot be used as evidence against them unless it has been
recorded by the Magistrate himself, and the Magistrate has
certified that the statement was made voluntarily, without any
coercion or inducement.

This section is intended to prevent the use of confessions

obtained through torture or other forms of coercion and ensure
that statements made by accused persons are obtained in a fair
and just manner. The Magistrate must also ensure that the
accused person fully understands the implications of making a
statement, and that they are not under any pressure or influence
to make a confession or statement.

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In Siva v. State by Inspector of Police The Madras High Court
recently overturned a conviction for murder after finding that the
trial court had been misled into relying on witness statements
recorded under Section 164 of the CrPC to corroborate the
medical evidence, despite all the independent witnesses having
turned hostile. The court reiterated that statements recorded
under Section 164 of the CrPC are not substantive evidence and
can only be used to corroborate or contradict the statement of a
witness. The court also noted that a long delay in recording the
statements of witnesses was suspicious, and that presumption
under Section 80 of the Indian Evidence Act was not applicable to
the statements recorded by a Magistrate under Section 164
CrPC. The court found that the prosecution had not proved its
case beyond all reasonable doubt and set aside the order of
conviction, acquitting the accused of all charges.

In Deepak Kumar Vs State of Bihar The Patna High Court has

acquitted an accused under the POCSO Act, reiterating that if the
defence is denied the opportunity to cross-examine a witness
whose statement is recorded under Section 164 or Section 161
CrPC, then such statements cannot be treated as evidence of
substantive character. The court found that the prosecution failed
to prove, beyond all reasonable doubts, that the victim was a
minor, and made no effort to establish the victim's age in
accordance with the statutory provisions. The court noted that

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evidence given in court on oath coupled with the opportunity of
cross-examination to the accused has great sanctity and that
such evidence is called substantive evidence. The entire
prosecution story was full of doubt, and the statement of the
victim did not inspire confidence. The court set aside the
conviction, ordered the appellant in custody to be released, and
found the trial court to have fallen in error of law and appreciation
of facts of the case.