All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-III]

Read the First Part HereRead the Second Part HerePROCEDURE 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 ...

All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-III]

Justice V. Ramkumar

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