Section 164 of the Criminal Procedure Code 1973 deals with recording of confession.
Meaning of confession
The term confession has not been defined in the Code. The supreme court in the case of Sahu versus state of UP has defined the confession as follows –
“Confession is a statement made by an accused admitting his guilt.”
Who may record confession ?
According to section 164 (1 ) confession may be recorded by following authorities –
1 – Metropolitan Magistrate
2 – Judicial Magistrate
For the recording of confession it is not necessary that the magistrate who records Confession/statement has the jurisdiction over the case.
If the magistrate has no jurisdiction over the case then after recording such confession statement he shall observe the procedure of clause 6 of section 164.
In other words according to Section 164 (6) such Magistrate after recording confession shall transmit such confession to the magistrate who have jurisdiction over the case.
Whether jurisdiction is sine qui non for recording of confession ?
According to Section 164 for recording of confession/statement it is not necessary that magistrate have jurisdiction over the case.
Can a police officer having magistral power record the confession ?
According to proviso to Section 164 of the CrPC 1973 a police officer having magistrial power cannot record the confession.
When to be Recorded Confessional Statement ?
According to Section 164 clause 1 confessional statement may be recorded before the commencement of enquiry or trial as the case may be.
Normally under this section confessional statement is recorded during the pendency of investigation. However Allahabad High court in the case Babulal vs State of Uttar Pradesh has observed that confessional statement may also be recorded after submission of police report but before commencement of enquiry or trial.
Mode of Recording of Confession
Metropolitan Magistrate and Judicial Magistrate in order to record confession shall follow the provisions as mentioned under Section 281 and 164(4).
In other words according to Section 281 whole confession shall recorded in question answer form. After recording of confession magistrate shall make a memorandum on foot of the confession.
Procedure of Recording
Before recording of confession Magistrate shall follow the following procedure.
1 – According to Section 164 (2) Magistrate shall satisfy himself that confessionor is free state of mind or not.
2 – if the magistrate is satisfied that confessionor is is willing to confess then according to Section 164(2) Magistrate shall warn him that –
• He is not bound to make confession and
• if he does so it may be used an evidence against him
3- According to Section 164 clause 4 such confession shall be signed by the the confessionor.
4 – Magistrate shall make a memorandum at the foot of the the confession and put his signature.
Contents of Memorandum
Memorandum shall contain the following facts –
• Statutory warning
• Free state of mind of accused.
• Presence of Magistrate
• Reading and explaining the confession
Presumption in Recording of Confession
According to Section 80 of the Indian evidence act 1872 the court shall presume that confession is recorded in the same manner as provided by law. This presumption is of irrevocable nature in other words on the ground of irregularity the defence may challenge its validity.
Golden rule of evidence is that writing must be proved by writing. Section 463 of CrPC 1973 is exception to this general rule. According to Section 463 of CrPC 1973 by an oral evidence the validity of recorded confession may be challenged.
When it is challenged the court is satisfied that such non-compliance has not injured the defence and such statement must have been duly recorded then the court shall admit such statement.