Presence Of Police Officer During Recording Of Section 164 CrPC Confession Renders It Inadmissible: Gauhati High Court

The Gauhati High Court has held that confessions recorded by a Judicial Magistrate under Section 164 CrPC in the presence of a police officer cannot be said to be voluntary and cannot be relied upon as substantive admissible evidence for recording conviction against the accused.

A Division Bench of Justice Michael Zothankhuma and Justice Sanjeev Kumar Sharma observed, “In the present case, the confessional statements of the appellants have been made in the presence of a police officer, who was present in the room where the confession was being recorded. The above is accordingly hit by principle no.(ix) framed by the Hon'ble Supreme Court. As such, the confessional statements cannot be said to have been properly recorded and as such, they are inadmissible as evidence.”

“Accordingly, the conviction of the appellants on the basis of the defective confessional statements made in violation of the principles provided in Rabindra Kumar Pal (supra) is liable to be set aside,” the bench further held.

Notably, the Supreme Court in Rabindra Kumar Pal alias Dara Singh v. Republic of India had laid down 11 principles governing the recording of confessional statements under Section 164 CrPC. As per principle no. (ix) of the said principles, the no police officer or police official should remain present in open Court at the time of recording the statement of an accused.

The ruling came in a Criminal Appeal filed by Jiten Engti and three others challenging the judgment passed in a Sessions Case, whereby the appellants were convicted under Sections 302/34 IPC for the murder of one person. During the pendency of the appeal, Jiten Engti was found to be a juvenile and was sent to the Juvenile Justice Board.

Before the High Court, the appellants argued that the Trial Court had convicted them solely on the basis of confessional statements recorded under Section 164 CrPC. It was contended that the confessions were not properly recorded as a police officer was present at the time of recording. It was also argued that one of the appellants had not made any confessional statement and had been convicted only on the basis of the statements of the co-accused.

On the other hand, the State argued that all procedural safeguards had been substantially followed except for the presence of a police personnel in the courtroom and further contended that the appellants had also made extra-judicial confessions before prosecution witnesses.

The High Court noted that the recording Magistrate himself had recorded that the accused persons were brought by a Sub-Inspector of Police and that the police officer remained present during recording of the confessional statements. The Court also noted that appellant nos. 2 and 3 had been kept in the charge of an armed police constable during the reflection period.

The Court held, “On considering the fact that the alleged confessions of the appellants had been made in the presence of a police officer, in the room where the confessions were being recorded, we hold that the said confessions cannot be said to be voluntary and as such, cannot be relied as substantive admissible evidence, for coming to a verdict of guilt against the appellants.”

The Court further observed that apart from the confessional statements and the alleged extra-judicial confessions, there was no other evidence against the accused persons.

The Court also observed, “we also do not find any reason to deviate from the observations and findings of the learned Trial Court, with regard to the alleged extra-judicial confessions made by the appellants, as there is no corroboration of the evidence of PW-1 and PW-2, who are the sons of the deceased.”

Accordingly, the High Court set aside the conviction of the appellants under Sections 302/34 IPC and directed their immediate release from judicial custody, provided they were not wanted in any other case.