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The FIR filed under Section 154 holds significant weight, being the earliest report provided promptly after the commission of a cognizable offence, ensuring that there's little chance for memories to fade, facts to be fabricated, or details to be embellished.
Likewise, any confession or statement given by an accused individual to the police immediately following the incident carries considerable evidentiary value.
However, Section 25 of the Evidence Act stipulates that confessions made to a police officer are inadmissible as evidence against the confessor.
Additionally, Section 162 of the Code essentially prohibits the use of any confessional statement made to a police officer during the investigation process.
Generally, there's a lack of trust in the integrity of the police force. There's a concern that granting the police authority to record confessions could lead to potential misuse, with overzealous officers possibly resorting to coercion or fabrication of confessions under the guise of exercising such power.
Consequently, Section 164 establishes a specific procedure for recording confessions by competent Magistrates, ensuring that confessions are obtained freely and voluntarily, devoid of any coercion or influence.
Section 164 CrPC
Section 164 reads as follows:
164. (1) Any Metropolitan Magistrate or Judicial Magistrate, irrespective of jurisdiction in the case, is empowered to record any confession or statement made to them during an investigation under this Chapter or any other prevailing law, or at any time thereafter 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 accused person's advocate:]
Additionally, it's stipulated that no confession shall be recorded by a police officer who has been conferred any powers of a Magistrate under prevailing laws.
(i) Before recording any such confession, the Magistrate must elucidate to the confessor that they are under no obligation to confess and that any confession made may be used against them as evidence. The Magistrate is prohibited from recording such a confession unless, after questioning the confessor, there's a reasonable belief that the confession is being made voluntarily.
(ii) If at any point before the confession is recorded, the individual before the Magistrate expresses unwillingness to confess, the Magistrate is obliged not to authorise the detention of such individual in police custody.
Recording Confessions under Section 164
The section primarily addresses the recording of confessions and other statements that are not confessions. While a confession recorded under this section can serve as substantive evidence, a non-confessional statement does not hold the same weight.
If the maker of a non-confessional statement, recorded pursuant to this section, is summoned as a witness during the trial, their earlier statement can be utilised to corroborate or contradict their testimony in court under Section 157 or Section 145 of the Evidence Act.
Furthermore, the wording of Section 157 is crucial for the court's interpretation. The Supreme Court has clarified that the phrase "at or about the time when the fact took place" in Section 157 should be interpreted in light of the facts and circumstances of each case.
Merely having an intervening period of a few days, in certain instances, may not suffice to exclude the statement from being used as envisioned in Section 157.
The procedure for recording a confession differs from that of recording a statement. The method for recording a confession is more intricate to ensure that only free and voluntary confessions are documented under the section. Section 164's provisions act as a safeguard against involuntary confessions.
In line with this, a new proviso has been added under Section 164(1) effective from December 31, 2009, allowing confessions or statements to be recorded by audio-video electronic means in the presence of the accused person's advocate, thus reinforcing the role of Section 164 as a safeguard.
The purpose of Section 164, coupled with the "Judges Rules" or executive instructions of the High Court, is to ascertain whether the statement sought to be made by an accused is entirely voluntary. Therefore, the act of recording a confession under Section 164 is a solemn duty, and the Magistrate must ensure that all legal requirements under Section 164 are fully met.
An examination of the section reveals the following key points:
1. Only a Metropolitan Magistrate or a Judicial Magistrate can record a confession or statement. The proviso to subsection (1) clarifies that a police officer empowered with the powers of a Magistrate by any law is not competent to record a confession under Section 164.
If any Executive Magistrate or other Magistrate not authorised under subsection (1) records a confession, the record of the confession cannot be admitted as evidence, and no oral evidence of the Magistrate to prove the confession in such a case shall be admissible. This provision is designed to safeguard the rights of the accused person.
The fundamental objective of entrusting the responsibility of recording confessions to judicial officers is to ensure that they employ their judicial knowledge and wisdom to determine the voluntariness of the confession.
2. Confessions or statements can be documented under Section 164 either during an investigation or at any point before the commencement of an inquiry or trial. Even if the confession is recorded after the start of an inquiry or trial, it remains admissible as evidence; however, Section 164 would not apply to such a confession, and it would be recorded by the trial court or the court conducting the inquiry.
3. Before recording any such confession, the Magistrate must inform the confessor that (i) they are not obligated to make such a confession, and (ii) if they choose to do so, it can be used as evidence against them. These provisions outlined in Section 164(2), if implemented properly, are highly beneficial. They should not be reduced to mere formalities. The section does not specify the form in which the warning should be given by the Magistrate.
However, it is crucial that the Magistrate ensures the warning is clearly understood by the confessor. The warnings detailed in Section 164 are illustrative and not exhaustive.
4. It is also essential for the Magistrate to reveal their identity to the individual, assuring them that they are no longer under police custody. The significance of this warning cannot be overstated. It has been established that if recording of a confession is postponed to another day after the warning, or if the recording continues on another day, a fresh warning is necessary before recording any confession or part thereof.
5. In the memorandum required by the Magistrate recording the confession, it is imperative under subsection (4) to include, among other things, the fact that the aforementioned warning was given to the confessor.
6. Subsection (2) of Section 164 further mandates the Magistrate not to record any confession unless, upon questioning the individual making it, there is reason to believe that it was made voluntarily. For the jurisdiction to record a confession under Section 164, it is essential that the Magistrate has "reason to believe that the confession is being voluntarily made."
Guidelines for Ensuring Voluntary Confessions under Section 164
Magistrates typically adhere to certain guidelines to ensure the voluntary nature of confessions:
(a) After issuing warnings to the individual making a confession under subsection (2), the Magistrate should allow ample time for reflection. There's no strict rule regarding the duration, but it's crucial that the confessor's mind is free from any potential police influence. Typically, if the individual is transferred from police custody, they are held in jail custody for at least a day before their confession is recorded.
It's worth noting that there's no statutory provision mandating a specific interval between preliminary questioning and confession recording. The duration for reflection depends on the circumstances of each case, aiming to eliminate any police influence.
(b) In every inquiry, the accused must be questioned about their custody prior to appearing and their custody afterward, as well as the treatment they received. This inquiry ensures no external influence, particularly from sources favouring the prosecution, is lingering in the accused's mind. If there are any injuries on the accused, they should be asked how they sustained them.
(c) If the accused is handcuffed, the Magistrate should order their removal, and any individuals likely to influence the accused should be asked to leave, creating a free atmosphere.
(d) The accused should be assured, explicitly, of protection from any potential torture or pressure from external agents such as the police if they decline to make a statement. Additionally, subsection (3) prohibits remanding the accused to police custody if they express unwillingness to confess when brought before the Magistrate.
However, this doesn't imply remand is required if the accused desires to confess. After confession, as a general practice, the accused should be sent to judicial lock-up and not returned to police custody under any circumstances.
(e) The accused should be asked about the reason for making a statement that goes against their self-interest during the trial. They should also be informed that even if they retract the confession later, it remains admissible as evidence against them. Failure by the Magistrate to inquire about the accused's reason for confessing was deemed a non-compliance, curable under Section 463.
(f) The Magistrate recording the confession must understand their role as a judicial officer, ensuring the statement is made voluntarily. They should pose questions to ascertain voluntariness, and the record of the confession should reflect these inquiries. While it's necessary to ask the questions prescribed by the High Court Circular, it's crucial that the inquiry isn't mechanical, and there's no hint of casualness. The Magistrate must be fully satisfied that the confession is truly voluntary, ensuring it's not induced by threats, promises, or inducements referenced in Section 24 of the Evidence Act.
(g) A confession must be entirely voluntary; otherwise, the court should reject it. The Magistrate should make an inquisitorial inquiry to understand the prisoner's compelling reason to confess. If the reason appears well-grounded, genuine, and compelling, the confession should be recorded. However, if the answers are hesitant, incoherent, or lack cogency, the recording Magistrate should stop the process.
(h) To assess voluntariness, the Magistrate should consider two factors: the accused's mental state and the Magistrate's own judicial assessment of the motive behind the confession. The Magistrate must ensure that mentally disabled individuals understand the implications of the warnings and the confession they're making.
Additionally, the Magistrate must provide documentary or oral evidence demonstrating their full exercise of judicial mind to understand the motive behind the confession.
(i) If the prisoner can write, they may be asked to write their own confession. This ensures the confession is in the prisoner's own words and confirms their mental capability to translate thoughts into writing. The inability to write the confession, despite being otherwise capable, suggests mental incapacity to express thoughts in writing, a point emphasised in the Kuthu Goala case.
Non-Compliance with Section 164
Questions may arise regarding the legal ramifications of non-compliance with the provisions of Section 164. Such non-compliance could involve various scenarios:
the Magistrate recording the confession may not fall under the category of Magistrates specified in Section 164(1);
the individual making the confession might not have been cautioned as required by Section 164(2);
the Magistrate might have failed to record the confession or statement in accordance with Section 164(4) or in the manner provided by Section 281;
or the Magistrate might have omitted to make a memorandum as required by Section 164(4). Section 463 aims to address some of these defects and irregularities in the recording of confessions or statements of the accused under Section 164.
Section 463 stipulates:
(1) If any Court, before which a confession or other statement of an accused person recorded or purportedly recorded under Section 164 or Section 281, is tendered or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, take evidence regarding such non-compliance. If satisfied that such non-compliance has not prejudiced the accused in his defence on the merits and that he indeed made the recorded statement, the Court may admit such statement.
(2) The provisions of this section apply to Courts of appeal, reference, and revision.
According to Section 91 of the Evidence Act, 1872, if any matter is required by law to be reduced to the form of a document (such as recording of a confession or a statement under Section 164 of the CrPC), no evidence shall be given in proof of such matter except the document itself.
Hence, when a Magistrate records a confession under Section 164 but fails to document compliance with the section's requirements, no evidence can be presented to demonstrate that such confession was indeed made to the Magistrate.
However, Section 463 allows admission of such evidence if: (a) the non-compliance with Section 164 did not prejudice the accused in his defence on the merits, and (b) the accused did indeed make the recorded statement. The phrase "duly made the statement recorded" holds significant importance. It has been established that if a Magistrate neglects to follow the procedure prescribed by that section;, oral evidence of the confession is totally inadmissible.
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