All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-III]
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PROCEDURE FOR RECORDING "CONFESSION" UNDER SECTION 164 Cr.P.C.
If what is sought to be recorded is a "confession", then the Magistrate has to abide by the following rules:-
ACCUSED ON HIS OWN ACCORD CAN MAKE A CONFESSION TO A JUDICIAL MAGISTRATE
An accused himself can appear before a Judicial Magistrate for recording his confession. Such accused person is free to make a voluntary confession before the Magistrate and he need not be sponsored by the Police unlike in the case of a witness or victim. This is a Judge-made law. The only rider is that before recording the confession the Magistrate should be satisfied that the person who proposes to confess is an accused and that investigation against him is in progress. (vide Mahabir Singh v. State of Haryana (2001) 7 SCC 148 = AIR 2001 SC 2503; Jogendra Nahak and Others v . State of Orissa and Others - AIR 1999 S.C. 2565 = 2000 (1) SCC 272; Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406 = AIR 2013 SC 633).
ACCUSED TO BE FREE FROM POLICE INFLUENCE
The Magistrate should be satisfied that the accused is not sponsored by the Police and is free from any Police or other extraneous influence.
The provisions of Section 164 Cr.P.C. must be complied with not only in form but also in essence. Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's Jurisdiction to record the confession and renders the confession unworthy of credence. At the time of recording the statement of the accused no Police or Police official shall be present in the open Court. The Magistrate should ask the accused as to why he wants to make a statement which will surely go against his interest in the trial. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (vide Rabindra Kumar Pal @ Dara Singh v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436.)
Section 24 of the Evidence Act lays down the obvious rule that a confession made under inducement, threat or promise becomes irrelevant in a criminal proceeding. The expression "appears" in Section 24 connotes that the Court need not go to the extent of holding that the threat etc has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the Court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a Police officer. Further, the confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the Court should eschew the confession from consideration. Recognising the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in Police custody, the Evidence Act has excluded the admissibility of a confession made to the Police officer (vide paras 27 and 29 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.)
Merely because a person is produced from Police custody before the Magistrate for recording his confession, such confession cannot be discredited. Taking into consideration the fact that there was an interval of about a month after the accused was removed from Police custody to judicial custody when his confession was recorded, the Supreme Court accepted the confession as voluntarily made. (vide paras 19 and 20 of State of Maharashtra v. Damu (2000) 6 SCC 269 = AIR 2000 SC 1691.)
Mere fact that the sub-jail in which the accused was interred, was located adjacent to the Police station is not sufficient to infer Police control over the accused. (vide paras 19 and 20 of State of Maharashtra v. Damu (2000) 6 SCC 269 = AIR 2000 SC 1691.)
NOTE: One aspect to be borne in mind is that as per Section 26 of the Evidence Act a confession made while in Police custody is not bad if it is made in the immediate presence of a Magistrate.
ACCUSED TO BE WARNED AGAINST MAKING THE CONFESSION
Before recording the confession the Magistrate shall explain to the person making the confession that he is not bound to make a confession and that if he does so, his confession may be used as evidence against him. (vide Section 164(2) Cr.P.C.)
The above provision emphasises the need for warning and caution before recording a confession.
In this connection it is pertinent to note that as per Section 29 of the Evidence Act, a confession which is otherwise relevant does not become irrelevant merely because the person was not warned that he was not bound to make a confession.
Failure to warn does not by itself necessarily render a confession inadmissible if it is otherwise proved to have been made voluntarily. (vide Dagdu v. State of Maharashtra AIR 1977 SC 1579.)
The impact of Section 463 Cr.P.C. also should not be lost sight of in this connection.
MAGISTRATE'S SATISFACTION ABOUT VOLUNTARINESS OF THE CONFESSION
The Magistrate shall not record the confession unless, after questioning the person making the confession, the Magistrate has reason to believe that it is being made voluntarily. (vide Section 164(2) Cr.P.C.)
Voluntariness of the confession being the foundation of a Magistrate's jurisdiction to record the confession, it is imperative that the Magistrate should, before recording the confession, ascertain through intelligent questioning whether the statement is spontaneous and voluntary, or some influence or false impression has been at work to induce him to make the statement.
The Magistrate should disclose his identity to the accused so as to assure him that he is no longer in the hands of the Police. The accused should be told that he is before a Magistrate who is independent of the Police and he should be given the assurance of protection against any apprehended inducement, pressure, threat or oppression if he does not confess. (vide Sanatan v. State AIR 1953 Orissa 149; Paramhansa Jadab v. The State AIR 1964 Orissa 144.)
The Magistrate should ensure the voluntary nature of the confession for which compliance of the provisions of sub-sections (2), (3) and (4) of Section 164 Cr.P.C. is mandatory. (vide Dara Singh alias Rabindra Kumar Pal v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436.)
If the accused person who offers to make a confession is in Police custody, he should be removed from Police custody and should be sent to judicial custody. After recording the confession he must invariably be sent to judicial custody and should on no account be returned to Police custody.
Recording of confession under Police influence should be avoided. (vide Dara Singh alias Rabindra Kumar Pal v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436.)
If the confession is recorded while the accused is in Police custody and there are Police officers all around him and the recording is by a Police Officer on the dictation given by the Magistrate and it is not read over and explained to the accused, it can hardly be accepted as a voluntary confession. (vide Shivarajan v. State 1959 KLT 167.)
The accused was produced from prolonged Police custody. But 15 to 30 minutes' time alone was given to the accused for reflection before recording the confession. It was held that sufficient cooling off time was not given to the accused and, therefore, the confession could not be taken into consideration for recording the conviction against the accused. (vide State of Rajasthan v. Ajit Singh (2008) 1 SCC 601 = 2008 Cri.L.J. 364.)
The Magistrate should take precautions to ensure that the Police influence, if any, is removed before recording a confession. The sooner it is made, the better. (vide H.P. Administration v. Shiv Devi AIR 1959 H.P. 3; Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri. L.J. 1014 – 3 Judges; Shankaria v/ State of Rajasthan (1978) 3 SCC 435 = AIR 1978 SC 1248 – 3 Judges.)
If marks of injuries are found on the person of the accused, the Magistrate should ask him as to how he received those injuries. (vide Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri.L.J. 1014 -3 Judges.)
Before an accused is asked to make his confession the Magistrates ordinarily allow a period for reflection and remand him to jail custody so as to put him out of the reach of the investigating officer. (vide Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217; Sarwan Singh v. State of Punjab AIR 1957 SC 63.)
The object of keeping the accused/suspect in judicial custody and giving him sufficient time for reflection and necessary warnings reinforces the voluntariness since with the sufficient time given for reflection, the accused frees himself from the pressure of Police interrogation. Before making the confession (vide para 386 of Kartar Singh v. State of Punjab (1994) 3 SCC 569.)
Recording of confession is a "proceeding" within the meaning of Section 303 Cr.P.C. and hence the accused has a right to consult a lawyer of his choice. Before recording the confession, the Magistrate should, therefore, explain this to the accused. If the accused is poor or belongs to an economically or socially backward class, the Magistrate should inform the accused about his right to free legal aid under Section 304 Cr.P.C. (vide Nandini Satpathy v. P.L. Dani AIR 1978 SC 1025; Kuthu Goala v. State of Assam 1981 Cri.L.J. 424 (Gouhati).
Recording of confession should ordinarily be after explaining to the accused the consequences as indicated in (ii) above and after giving the accused person sufficient time for reflection.
Generally atleast 24 hours' time should be given to the accused to consider whether he should make a confession. Where there is reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given (vide Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri. L.J. 1014 – 3 Judges (rendered under the old Code).
There is no hard and fast rule regarding the time for reflection to be granted for recording the confession. But the time of 5 or 10 minutes granted was held to be utterly inadequate (vide para 184 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.
Under Section 164 Cr.P.C. the first precaution that a judicial Magistrate is required to take is to prevent forcible extraction of a confession by the prosecuting agency. The Magistrate in particular should ask the accused as to why he wants to make a statement which surely will go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the Police in case he declined to make a confessional statement. (vide Bhagwan Singh v. State of M.P. (2003) 3 SCC 21 = AIR 2003 SC 1088 -3 Judges.)
5 to 10 minutes given as time for reflection was held to be utterly inadequate (vide para 184 of State (NCT of Delhi v. Navjot Sandhu (2005) 11 SCC 600.)
There is no statutory provision that the accused should be given 24 hours for reflection. How much time should be given for reflection depends on the circumstances of each case. But what is important is that the Magistrate recording the confession should be satisfied that the confession was being made voluntarily. It is true that the accused was given by the Magistrate 15 to 20 minutes for reflection before recording his confession. But the accused was for more than 30 hours in judicial custody free from fear or influence by the Police. The accused was not, after his confession was recorded, handed over to the Police and hence there was no violation of Section 164(3) Cr.P.C. The Magistrate had also given cogent reasons for recording the confession of the accused. (vide Shankaria v/ State of Rajasthan (1978) 3 SCC 435 = AIR 1978 SC 1248 – 3 Judges.)
The confession must be recorded with great care and circumspection. The Magistrate must record the questions put the accused in order to –
- ascertain whether the confession was of a voluntary nature .
- assure the accused that he will not have to go back to Police custody after his statement is recorded.
- warn him of the consequences which would ensue if the confession turns out to be false.
- ascertain whether it was in the hope of release that he is implicating himself.
- ask the accused whether the Police or any other person had subjected him to ill-treatment. (vide Kartar Singh v. State of Punjab (1994) 3 SCC 569 = 1994 Cri.L.J. 3139- 5 Judges.)
Enquiry under Section 164(2) Cr.P.C. should not be conducted in a casual or mechanical manner(vide Ayyub v. State of U.P. (2002) 3 SCC 510.)
Where the mandatory requirements provided under Section 164(2) Cr.P.C. namely, explaining to the accused that he was not bound to make any statement and if a statement is made the same might be used against him, had been complied with, then the defect of failure by the Magistrate to record the question as to whether there was any pressure on the maker of the confession, will stand cured by Section 463 Cr.P.C., particularly when the Magistrate in the certificate appended to the statement has inter alia stated that he believed the confession to be voluntary. (vide Ram Singh v. Sonia (2007) 3 SCC 1 = AIR 2007 SC 1218.)
Mere stereotyped endorsement repeating the words of the memorandum in sub-section (4) will not fulfil the requirement of the said sub-section if the confession recorded by the Magistrate did not indicate anywhere as to whether, before recording the same, he gave the accused the requisite caution and put questions to satisfy himself that the confession was being made voluntarily. Held that the confession was not voluntary and cannot be acted upon. (vide Tulsi Singh v. State of Punjab (1996) 6 SCC 63 = AIR 1996 SC 3477.)
The Magistrate certifying that he "hoped" (and not that he "believed") that the confession of the accused was voluntary, would suggest a lingering doubt and hence not accepted. (vide Chandran v. State of T.N. (1978) 4 SCC 90 = AIR 1978 SC 1574.)
UPON UNWILLINGNESS OF THE ACCUSED TO CONFESS, MAGISTRATE TO LIBERATE HIM FROM POLICE CUSTODY
If before recording the confession the person appearing before the Magistrate states that he is not willing to make the confession, then the Magistrate shall not authorise the detention of the accused in Police custody. (vide Section 164(3) Cr.P.C.)
PROCEEDINGS TO BE IN OPEN COURT
The Magistrate should record the confession only in open Court and during Court hours (vide Ram Chandra v. State of U.P. AIR 1957 SC 381 = 1957 Cri.L.J. 559 – 3 Judges.)
MANNER OF RECORDING CONFESSION
The confession should be recorded in the manner provided by Section 164 and Section 281 Cr.P.C. It has to be signed by the person making the confession and the Magistrate has to make a memorandum at the foot of the 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.
(vide Section 164(4)
CONFESSION TO BE SIGNED BY THE ACCUSED AND THE MAGISTRATE
The record of confession shall be signed by the accused and the Magistrate. (vide Section 281(5) Cr.P.C.)
The requirement of obtaining the signature of the person making the confession is mandatory and non-compliance renders the entire confessional statement inadmissible. Signature of the accused is also mandatory . But, such non-compliance may not be very material if the making of the confessional statement is not disputed by the person concerned. (vide Dhanajaya Reddy v. State of Karnataka (2001) 4 SCC 9 = AIR 2001 SC 1512.)
Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence (vide Dara Singh v. Republic of India (2011) 2 SCC 490.)
The confession shall be recorded in the language in which the accused is questioned or if that is not practicable, in the language of the Court. (vide Section 281(3) Cr.P.C.)
OATH NOT TO BE ADMINISTERED
The procedure for recording of evidence or administration of oath to the accused, should not be resorted to while recording a confession. (vide Section 164(5) Cr.P.C.)
Administering oath to the accused while recording a confession is prohibited. (vide para 10 of Babu Bhai Udesinh Parmar v. State of Gujrath (2006) 12 SCC 268 = AIR 2007 SC 420.)
NO NEED FOR IN CAMERA PROCEEDINGS
Confessional statement of an accused person need not be recorded in camera. But, statements of persons including witnesses and non-confessional statements of accused persons should be recorded in camera (vide Varghese M.U. v. CBI, Cochin 2015 (3) KHC 417 (Kerala).
RECORD TO BE TRANSMITTED TO THE JURISDICTIONAL MAGISTRATE
After recording the confession the Magistrate shall forward the same to the Magistrate by whom the case is to be inquired into or tired. (vide Section 164(6) Cr.P.C.)
Justice V Ramkumar is a former Judge Of Kerala High Court.