ALL YOU WANT TO KNOW ABOUT RECORDING OF CONFESSIONS (SECTION 164 CRPC)

ALL YOU WANT TO KNOW ABOUT RECORDING OF CONFESSIONS (SECTION 164 CRPC) [PART-1 - INTRODUCTION]

PROLOGUE

What prompted me to write this Article is an observation made in a recent judgment dated 25-02-2019 rendered by a Division Bench of the Kerala High Court in Criminal Appeal No. 794 of 2014 (Ali K.B. v. State of Kerala 2019 (1) KHC 898).

2. The case before the High Court was a murder case. The learned Judges were considering the testimony of PW2 the sole eye witness in the case and who is none other than the daughter of the person who was murdered. This witness was aged 11 years when the occurrence took place in the year 2008 and during the stage of investigation her statement under Section 164(5) of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) was recorded by a Magistrate who did not administer oath to the girl who was aged only 11 years then. She was aged 18 years when she gave evidence before the Trial Court. Dealing with the defence contention that since no oath was administered by the Magistrate to the child witness, her testimony before Court lacks credence, the Division Bench rightly observed that in view of the proviso to Section 4(1) of the Oaths Act, 1969 administration of oath was not necessary in the case of a child under 12 years of age if the Court was of the opinion that though the child understands the duty of speaking the truth, he or she does not understand the nature of oath or affirmation. The Judges also adverted to Rule 55 of the Criminal Rules of Practice, Kerala, 1982 obliging the Court to hold a preliminary enquiry for the purpose of deciding the testimonial competence of a witness under a disability. The examination of the child witness during such preliminary enquiry is known as voir dire examination which is a French word which means "to speak the truth". The Judges also referred to Section 7 of the Oaths Act, 1969 which inter alia indicates that omission to take oath or any irregularity in taking oath, will not invalidate either the proceedings or the evidence. The Judges were then discussing the probative value of a statement under Section 164 Cr.P.C. This is what the Division Bench has observed:-

 "19. It is settled law that even a statement recorded by the Magistrate in terms of Section 164(5) can only be used for the purpose of contradiction. The statement recorded under Section 164(5) cannot have any validity as such and cannot be treated as evidence before a Court. It has the same characteristics of a statement recorded by the Police under Section 161 and can be utilized only for the purpose as provided in the proviso to Section 162 r/w Section 145 of the Indian Evidence Act, 1872. Therefore, no prejudice will be caused to the accused even if there is any irregularity in recording the statement under Section 164 by the learned Magistrate. In the case on hand, the argument is with reference to statement given by PW2, a child witness to the Magistrate under Section 164 of Cr.P.C."

3. I am afraid that the above observation does not reflect the true legal position. The observation that a statement recorded under Section 164(5) Cr.P.C is analogous to a statement recorded by the Police under Section 161 Cr.P.C. and it can be used only for the purpose of contradiction as provided under the proviso to Section 162 Cr.P.C. read with Section 145 of the Evidence Act, is, with due respect, an erroneous statement of the law as will be shown in the course of this Article. Such a statement under Section 164 Cr.P.C. can be used not only for contradicting the maker under Section 145 of the Evidence Act but also for corroborating his statement by recourse to Section 157 of the Evidence Act. The proviso to Section 162(1) Cr.P.C. also cannot have any application for eliciting a contradiction in the statement recorded under Section 164 Cr.P.C. since such a statement is one recorded by a Magistrate and not by a Police officer. Similarly, the further observation in the extracted portion of the reported verdict that a statement recorded under Section 164(5) Cr.P.C. cannot have any validity as such and cannot be treated as evidence before Court, may not also be fully correct in the wake of the legislative intervention in the form of insertion of clause(b) to sub-section (5A) of Section 164 Cr.P.C. with effect from 03-02-2013. As per the said clause(b) the statement recorded under clause(a) of sub-section (5A) of a person who is temporarily or permanently mentally or physically disabled, can be treated as examination-in-chief as provided under Section 137 of the Evidence Act during the trial of the case. Thus, at least for the aforesaid limited purpose, the 164 statement of a person can be treated as evidence. Since I have also come across other judicial verdicts either misconstruing or not properly construing the sweep and amplitude of Section 164 Cr.P.C., I propose to deal with the subject in some depth.

SECTION 164 Cr.P.C. REPRODUCED

4. Section 164 Cr.P.C. after the Criminal Law (Amendment) Acts 13/2013 and 22/2018, reads as follows:-

164. Recording of confession and statement

 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 any confession or statement made under this sub-Section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:

 PROVIDED FURTHER 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.

 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 confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

 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 authorise the detention of such person in policecustody.

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"

Any statement (other than a confession) made under sub-Section (1) shall be recorded in such manner hereafter 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 power to administer oath to the person whose statement is so recorded.

 5A)

 In cases punishable under Section 354, Section 354 A, Section 354 B, Section 354 C, Section 354 D, sub-Section (1) or sub-Section (2) of Section 376, Section 376 A, Section 376 A B, Section 376 B, Section 376 C, Section 376 D, Section 376 D A, Section 376 D B, Section 376 E or Section 509 of the Indian Penal Code (45 of 1860), the Judicial magistrate shall record the statement of the person against whom such an offence has been committed in the manner prescribed in the sub-Section (5), as soon as the Commission of the offence 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 a person making statement is temporarily or permanently or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.

 A statement recorded under clause (a) of a person who is temporarily or permanently 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 (1 of 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.

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.

 A. WHO CAN RECORD A "CONFESSION" OR "STATEMENT" UNDER SECTION 164 Cr.P.C. ?

5. Section 164(1) empowers any Metropolitan Magistrate or other Judicial Magistrate to record any confession or statement made to him.

(This provision, therefore, indicates that a Judicial Magistrate alone is invested with the power to record a confession or statement under Section 164(1) Cr.P.C. A confession recorded by an Executive Magistrate under Section 164(1) Cr.P.C. is thus totally inadmissible in evidence (vide Asst. Collector of Central Excise v. Duncan Agro Industries Ltd. AIR 2000 SC 2901. 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. What is not permissible is only the recording by a person other than a Judicial Magistrate of 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 (1994) 3 SCC 569 = 1994 Cri.L.J 3139 – 5 Judges, 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 criminal Court, they are entitled to record a confession in relation to a case involving an offence under the TADA Act.)

 B. SHOULD THE MAGISTRATE BE THE JURISDICTIONAL MAGISTRATE?

 6. No. The 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.)

Justice V Ramkumar is a former Judge Of Kerala High Court.

 Topics : Section 164 Cr.P.C  |  Section 164(5) of the Code of Criminal Procedure  |  Section 4(1) of the Oaths Act  |  administration of oath  |  sole eye witness  |  Section 157 of the Evidence Act  |  Section 164(1) Cr.P.C  |  Judicial Magistrate 

ALL YOU WANT TO KNOW ABOUT RECORDING OF CONFESSIONS (SECTION 164 CRPC) [PART-II]

PART-II

STAGE AT WHICH A "CONFESSION" OR "STATEMENT" CAN BE RECORDED

7. Such "confession" or "statement" can be recorded either during the course of an 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.

D. CAN A NON-CONFESSIONAL STATEMENT OF AN ACCUSED BE RECORDED UNDER SECTION 164 Cr.P.C.?

8. Yes. Section 164 Cr.P.C. only says that a Judicial Magistrate may record a confession or a statement. In other words, the Section does not say that in the case of an accused person the Magistrate can only record his confession. The Section empowers the Magistrate to record the confession of an accused person and also to record the statement of any person (which can include an accused person as well). Thus, a non-confessional statement made by an accused can also be recorded by the Magistrate under Section 164 Cr.P.C. (vide Rao Shiv Bahadur Singh and Another v. State of Vindhya Pradesh AIR 1954 SC 322 = 1954 KHC 472 – 3 Judges; Varghese M.U. v. CBI, Cochin 2015 (3) KHC 417 (Kerala).

A statement under Section 164 Cr.P.C. not amounting to a confession can be used against to the maker as an admission under Sections 18 to 21 of the Evidence Act. (vide Ghulam Hossain v. The King(1950) 51 Cri.L.J. 1552 (PC).

The State of Kerala had witnessed the request by a custody prisoner by name Saritha Nair made to a Magistrate to record her statement and the arguments both in the media as well as elsewhere for and against such request. The controversy in that connection had even resulted in disciplinary proceedings pending enquiry against the Judicial Magistrate concerned and he was eventually exonerated by the High Court of Kerala.

E. HOW TO RECORD A "CONFESSION" UNDER SECTION 164 Cr.P.C.?

9. Let us now consider the modalities of recording the "confession" of an accused person by a Magistrate under Section 164 Cr.P.C. during the stage of the investigation.

E1. WHAT IS A CONFESSION?

10. A confession is an admission of the offence by the accused. Admission is a statement, oral or documentary which enables the Court to draw an inference as to any fact in issue or relevant fact. There is a clear distinction between "admission" and "confession". The term "admission" is of wider connotation and can be used to include a confession. Thus, all confessions are admissions but all 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.)

E2. CONFESSION DEFINED

11. After the authoritative pronouncement by 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; Om Prakash v. State AIR 1960 SC 409; Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302; Jameel Ahmed v. State of Rajasthan AIR 2004 SC 588.

Confessions are considered to be highly reliable because no rational person would make an admission against his own interest unless prompted by his conscience to tell the truth. (vide para 29 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.)

E3. CLASSIFICATION OF CONFESSION

12. 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,

2. and 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 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. In all these cases the Court concerned is taking the plea of the accused either to the substance of accusation or to the charge. If the accused voluntarily pleads guilty to the substance of accusation or to the charge, it is an instance of judicial confession during trial. 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 "persons in authority", the validity of such confessions will have to be decided with reference to Section 163 Cr.P.C. and Section 24 of the Evidence Act.

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.

Justice V Ramkumar is a former Judge Of Kerala High Court.

Topics : Recording Of Confessions  |  Section 164 CrPC  |  NON-CONFESSIONAL STATEMENT  |  confession  |  extra judicial confession  |  judicial confession  |  Section 229 Cr.P.C  |  Section 252 Cr.P.C  |  Classification of Confession

MANISHANKAR

CEO-ANTI-CORRUPTION AND HUMAN RIGHTS MOVEMENT®-CHENNAI

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