Section 164 of Cr.P.C

S.164:- Recording of confession and statements

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.

Ingredients of Section 164 Statement:-

1. That, any confession or statement may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.
2. 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.
3. That, 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 may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
4. 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
5. That, if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.
6. That, 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 authorize the detention of such person in police custody.
7. That, 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

Objective of 164 Statement:-

The object of Section 164, Criminal Procedure Code, is to provide a method of securing a reliable record of statements or confessions made during the course of the Police investigation, which could be used, if necessary, during the enquiry or trial. Under Section 25 of the Indian Evidence Act, a confession to a Police Officer is inadmissible in evidence, and hence when an accused person confesses during the Police investigation, the Police frequently get it recorded by a Magistrate under Section 164, Criminal Procedure Code, and it can then be used to the extent to which it may be admissible under the Indian Evidence Act.

Some important points:- 

1. Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the first class or a Magistrate of the second class who has been specially empowered by the State Government.
2. Confessions must be recorded and signed in the manner provided in Section 364.
3. Before recording any such confession the Magistrate shall explain to the person making it that he is not bound to make a confession, and that if he does so it may be used in evidence against him.
4. No Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily; failure to question has been held to vitiate the confession. (I.L.R. 2 Lahore 325).
5. The memorandum set forth in Section 164(3) must be appended at the foot of the record of the confession.
6. It is not necessary that the Magistrate receiving or recording a confession or statement should be a Magistrate having jurisdiction in the case.

Instructions for recording confessions:-

1. Unless there are exceptional reasons to the contrary, confessions should be recorded in open Court and during Court hours. Police officers investigating the case should not be present.
2. Accused who has made a confession should not be kept in Police custody, but should be kept in Judicial lock-up separate from other prisoners.
3. An accused person who has made confession before a Magistrate should be sent to the judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application.
4. If an accused person, who has been produced before a Magistrate for the purposes of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution, he should not be remanded to Police custody.
5. When remanding to the lock-up an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable

Difference between confession and statements:-

Statement: Any verbal communication that might implicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.)

Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.

Type of Confession:-

A confession may occur in many forms.

• When it is made to the court itself then it will be called judicial confession.
• When it is made to anybody outside the court, in that case it will be called extrajudicial confession.

It may even consist of conversation to oneself, which may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P. the accused who was charged with the murder of his daughter-in-law with whom he was always quarreling was seen on the day of the murder going out of the house, saying words to the effect “I have finished her and with her the daily quarrels.” The statement was held to be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it should be communicated to some other person.

1. Judicial confession – Are those which are made before a magistrate or in court in the due course of legal proceedings. A judicial confession has been defined to mean “plea of guilty on arrangement (made before a court) if made freely by a person in a fit state of mind.
2. Extra-judicial confessions – Are those which are made by the Accused elsewhere than before a magistrate or in court. It is not necessary that the statements should have been addressed to any definite individual. It may have taken place in the form of a prayer. It may be a confession to a private person. An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt by a person accused of a crime in the course of conversation with persons other than judge or magistrate seized of the charge against himself. A man after the commission of a crime may write a letter to his relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. Extra-judicial confession is generally made before private person which includes even judicial officer in his private capacity. It also includes a magistrate not empowered to record confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a stage when section 164 does not apply.

Difference Between 164, 313 & 281:-

Conclusion:-

1. When an Accused of any offence give statement to the Magistrate under section 164 of Cr.P.C, he/she becomes the witness of the court and those statements which are recorded by the Magistrate can be used against them. Example: – Yakub Abdul Razak Memon V/s. State of Maharashtra, he gave the confession to the court and become the witness of the court.
2. The relief of section 164 of Cr.P.C can be done by cross examination of the witness of the Magistrate under section 145 of the Indian Evidence Act.
3. Section 145 in The Indian Evidence Act, 1872  – Cross-examination as to previous statements in writing. —A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
4. While recording section 164, Police officer should not be present in the court and should be done in the open court in court working hours.
5. The statement given by the Accused can former statement and it cannot be relied upon.
6. The statement given by the Accused can be under pressure of the Police Officer and thus, it cannot be true and correct.
7. If the statement is not recorded as per the procedure.
8. If the statement is given by the accused who is mentally or physically not fit & proper or not video-graph it will be not a valid statement.
9. If the statement given by the Accused under the pressure or coercion it will be not a valid or correct statement.
10. If the Magistrate or the Court does not have the power or Jurisdiction, the statement recorded U/s. 164 of the Cr.P.C cannot be relied upon.
11. Thus, the statement given by the Accused Under Section.164 of the Cr.P.C can be cross-examine and be used against himself.

Judgements relating to the relief of 164 Statement are as follow:-

1. Bisipati Padhan v/s. State in A.I.R. 1969 Orissa 289 : Ram Kishan –vs- Harmit A.I.R. 1972 SC 468, State v/s. Shriram Lohiya A.I.R. 1960 SC 490 :- A statement of a witness U/s 164 of the Code is not substantive evidence, but it is a former statement made before an authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness u/s 157 of the Act or for contradiction thereof u/s 145 of the Act.
2. Sita Ram Patil v/s. Ramchandra Patil in A.I.R. 1977 SC 1712 :- Even if written admission is proved, it can be used as substantive evidence if the witness is so confronted with his previous admission in writing as per section 145 of the act.
3. Balak Ram v/s. State of U.P. A.I.R. 1974 SC 2165, and Ram Charan v/s. State of U.P. A.I.R. 1968 SC 1270 :- Evidence of witness cannot be discarded merely because there statements were recorded under section 164 of the Code. All that is required as a matter of caution is a careful analysis of the evidence.
4. Thumallapally –State of A.P. 1993 (2) Crimes 179 :- There is no rule of law that an earlier statement should be treated as correct and the subsequent contrary statement shall be discarded.
5. State v/s. Kartar in A.I.R. 1970 SC 1305 :1970 Cr.L.J. 1144 :- Statements under Section 164 of the Code are not substantive evidence. But it can be used to corroborate or contradict the maker under section 145 and 157 of the Act.
6. A.I.R. 1980 SC 628 : 1980 Cr.L.J. 439, A.I.R. 1974 SC 2165. : 1974 Cr.L.J. 1486, A.I.R. 1968 SC 1270, 1985 Cr.L.J. 367 (Cal), 1987 Cr.L.J. 242 (Allahabad) :- The evidence of a witness in a court whose statement has been previously recorded by a magistrate under section 164 of the code is always suspect, cannot be accepted as universally true and without any reservation.
7. I.B.B.Rao v/s. State – 1985 Cr.L.J. 32 :- When it is disclosed that a witness whose statement has been recorded under section 164 was kept in police custody for several days and his whereabouts are not disclosed to the relatives, the evidence tendered by that witness in Court should not be relied upon.

Reference:-

1. Criminal Procedure Law
2. Evidence
3. Indin Kanoon
4. Manupatra

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