Legal provisions regarding power of Judicial Magistrate to record confessions and statements under section 164 of the Code of Criminal Procedure, 1973.
Any confession made to a police officer is totally inadmissible evidence because the police, by and large, is not as yet considered trustworthy. It is apprehended that any power given to the police to record confessing or statements is more likely to be misused and that the overzealous police officers might, in the apparent exercise of such power, extort or fabricate confessions and manipulate statements.
Therefore, the Code of Criminal Procedure provides by Section 164 a special procedure for the recording of confessions and statements made during the course of investigation by competent judicial magistrates. Section 164 of the Code provides that:
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ADVERTISEMENTS:
(1) 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. However, 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.
(2) 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.
(3) 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;
ADVERTISEMENTS:
(4) Any such confession shall be recorded in the manner provided in Section 281 of the Code 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, В
Magistrate”
ADVERTISEMENTS:
(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter 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.
(6) 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.
Section 164 has to be read together with Sections 24, 25, 26 and 29 of the Evidence Act. The main points of Section 164 of the Code are as follows:
(1) A confession shall not be made to a police officer on whom any power of a magistrate may have been conferred under any law.
(2) A confession or a statement can be recorded only by a Metropolitan Magistrate or a Judicial Magistrate.
(3) A Magistrate shall not record a confession or a statement unless he is, upon inquiry from the person making it, satisfied that it is voluntary.
(4) A confession or a statement can be recorded in the course of an investigation or at any time afterwards before the commencement of the inquiry or trial.
(5) Before recording a confession, the Magistrate is required to explain to the person making the confession that he is not bound to make such a confession, and if he does so, it might be used as evidence against him.
(6) Before recording a confession, the following directions are normally followed by Magistrates:
(i) After warning the person making a confession, the Magistrate should give him adequate time to think and reflect.
(ii) Every inquiry must be made from the accused as to the treatment he had been receiving in custody in order to ensure that there is no undue influence. If marks of injuries are found on the person of the accused, he should be asked how to receive them.
(iii) If the accused is handcuffed, the Magistrate should order to remove the handcuffs, and the police should be ordered out of court in order to create a free atmosphere.
(iv) The accused should be assured of protection from any sort of torture or pressure from the police or the like in case he declines to make a confession.
(v) The accused should be asked the reason why he is going to make a statement.
(vi) The Magistrate must put question to the accused in order to ascertain the voluntariness of the confession.
(7) The confession is to be recorded in the manner provided by Section 164 read with Section 281 of the Code for the recording of the examination of an accused person.
(8) The confession shall be signed by the person making it, and after the confession is recorded, the Magistrate is required to make a memorandum at the foot of such record as given in Section 164(4) of the Code.
(9) As there is no mention of place and time of recording of a confession in the Code, the Magistrate should record the confession in the Court and during Court hours.
(10) The Magistrate shall have the power to administer an oath to the person whose statement is so recorded.
(11) The Magistrate recording a confession or statement under Section 164 of the Code is required to send the record directly to the magistrate by whom the case is to be inquired into or tried.
(12) Such a record becomes relevant and admissible in evidence even though the Magistrate making the record is not called as a witness to formally prove it at the trial of the accused person.
(13) A Magistrate has his discretion to record or not to record a confession.
Section 164 applies to all sorts of confessions. Confession is an admission made at any time by a person charged with an offence, stating or suggesting the inference that he has committed a crime.
Confessions are made by a person who is accused of an offence or not. No statement that contains self-exculpatory matter can amount to a confession if the exculpatory statement is of same fact which, if true, would negative the offence alleged to be confessed. A confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. A declaration made without animus confitenti (intention to confess) is not a confession.
A confession recorded in accordance with the special procedure prescribed by Section 164 can be used as substantive evidence. A non-confessional statement recorded under Section 164 of the Code is not substantive evidence. But, if the maker of such a statement is called as a witness in the trial, then his earlier statement can be used for corroborating or contradicting his testimony in the Court under Section 157 of the Code of Criminal Procedure or Section 145 of the Evidence Act.
Statement of a witness may be recorded under Section 164 of the Code to fix him to it when it is feared that he may resile afterwards or may be tampered with statements recorded under this Section are to be used for a limited purpose and cannot be used as a substantive evidence.
It is well settled that a confession, if voluntary and truthfully made, is an efficacious proof of guilt. There is no rule that a confession made and subsequently retracted by an accused cannot be accepted as evidence of his guilt without independent corroborative evidence. A retracted confession should carry practically no weight as against a person other than its maker.
Medical examination of the victim of rape:
Section 164-A of the Code of Criminal Procedure provides:
(1) Where, during the stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to get the person of the woman with whom rape is alleged or attempted to have been committed or attempted, examined by a medical expert, such examination shall be conducted by a registered medical practitioner employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by any other registered medical practitioner, with the consent of such woman or of a person competent to give such consent on her behalf and such woman shall be sent to such registered medical practitioner within twenty-four hours from the time of receiving the information relating to the commission of such offence.
(2) The registered medical practitioner, to whom such woman is sent, shall, without delay, examine her person and prepare a report of his examination giving the following particulars, namely:
(i) The name and address of the woman and of the person by whom she was brought;
(ii) The age of the woman;
(iii) The description of material taken from the person of the woman for DNA profiling;
(iv) Marks of injury, if any, on the person of the woman;
(v) General mental condition of the woman; and
(vi) Other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The report shall specifically record that the consent of the woman or of the person competent to give such consent on her behalf to such examination had been obtained.
(5) The exact time of commencement of completion of the examination shall also be noted in the report.
(6) The registered medical practitioner shall, without delay forward the report to the investigation officer who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.
(7) Nothing in this section shall be construed as rendering lawful any examination without the consent of the woman or of any person competent to give such consent on her behalf.
Explanation:
For the purpose of this section, ‘examination’ and registered medical practitioner shall have the same meaning as in Section 53.