All You Want To Know About Recording Of Confessions (Section 164 CrPC) [Part-IV]
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EVIDENTIARY VALUE OF CONFESSION
A Confession is ordinarily admissible in evidence. It is a relevant fact. It can be acted upon. Under certain circumstances, it can form the basis for a conviction. (vide Aloke Nath Dutta v. State of W.B. (2007) 12 SCC 230.)
A confession, judicial or extra-judicial if found to have been voluntarily made can form the basis of conviction of the accused. (vide State of Rajasthan v. Rajaram AIR 2003 SC 3601.)
Although the word "confession" is not taken in by the definition of "evidence" under Section 3 of the Evidence Act, it can fall under the expression "matters" referred to in the definition of the word "proved" in Section 3 of the Evidence Act. Thus, "confessions", "notings" made by the presiding Judge upon a local inspection, "material objects" etc are covered by the said expression "matters".
A confession is admissible without examining the Magistrate who recorded the same. If the confession is not in conformity with law, even the examination of the Magistrate will not cure the illegality. (vide AIR 1969 Orissa 289 (follows Kashmira Singh v. State of M.P. AIR 1952 SC 159.)
THE RELEVANCE OF RETRACTED CONFESSION
Merely because the confession was retracted later, it does not mean that the confession was not voluntary in nature. The issue as to whether the accused was willing to give confession voluntarily or not is to be determined from his mental state at the time when he gave the confession. (vide paras 13 and 18 of Abdulvahab Abdulmajid Shaikh v. State of Gujrath (2007) 4 SCC 257.)
If the confessional statement has been amply corroborated by circumstantial evidence, its subsequent retraction by the maker would not make it unreliable. (vide Henry Westmuller Roberts v. State of Assam (1985) 3 SCC 291 = AIR 1985 SC 823 – 3 Judges.)
It is not the law that once a confession is retracted the Court should presume that the confession is tainted. To retract from a confession is the right of the confessor and all the accused against whom confessions were produced by the prosecution have invariably adopted that right. It would be injudicious to jettison a judicial confession on the mere premise that its maker has retracted from it. The Court has a duty to evaluate the evidence concerning the confession by looking at all aspects. (vide para 13 of State of T.N. v. Kutty (2001) 6 SCC 550 = AIR 2001 SC 2778.)
Though a conviction based on the uncorroborated confession of an accused person is not illegal but as a rule of prudence which has become a rule of law, Courts look for corroboration before accepting a retracted confession. (vide Shankar v. State of T.N. (1994) 4 SCC 478.)
A Court may take into account the retracted confession but it must look for the reasons for the making of the confession as well as for its retraction and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the Court is satisfied that it was retracted on account of an afterthought or advise , the retraction may not weigh with the Court. (vide paras 32 to 35 and 37 of State(NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600.)
A conviction based on retracted confession without corroboration is not illegal (vide Ram Chandra Prasad Sharma v. State of Bihar AIR 1967 SC 349.)
PROCEDURE FOR RECORDING A "STATEMENT" UNDER SECTION 164 Cr.P.C.
16. We will now examine the modalities of recording a statement under Section 164 Cr.P.C. during the course of investigation of a case. The enabling provision is sub-section (5) of Section 164 Cr.P.C. It has already been seen that in the case of an accused person, apart from recording a confession by such person, a non-confessional statement also can be recorded from him. (vide Rao Shiv Bahadur Singh and Another v. State of Vinthya Pradesh AIR 1954 SC 322 = 1954 KHC 472 – 3 Judges.
- VICTIM OR WITNESS TO BE SPONSORED BY THE POLICE
A person who is neither an accused nor sponsored by the Police has no locus standi to apply to the Magistrate to record his statement under Section 164 Cr.P.C. In other words, a witness or a victim cannot barge into a Magistrate's Court and request the Magistrate to record his statement under Section 164 Cr.P.C., unless he is sponsored by the Police. This is because the Magistrate should not be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the Court with a request to record their statements under Section 164 Cr.P.C. Otherwise, too many persons sponsored by culprits might throng before the portals of the Magistrates' Courts for the purpose of creating records in advance to help the culprits. (vide paras 19, 22, 23 and 24 of Jogendra Nahak v. State of Orissa (2000) 1 SCC 272 = AIR 1999 SC 2565 – 3 Judges.)
- OATH CAN BE ADMINISTERED
While in the case of an accused whose "confession" is recorded under Section 164 Cr.P.C., no oath can be administered, in the case of a person whose "statement" is recorded under Section 164 Cr.P.C., the Magistrate has the power to administer oath to such person. (vide Section 164(5) Cr.P.C.)
- STATEMENTS TO BE RECORDED
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).
This is done by way of protection to such persons so that the culprits may not come to know of the recording of such statements and, therefore, they will have no occasion to harbour any rancour or vengeance against such persons for giving such statements.
- NO WARNING OR CAUTION NECESSARY
For recording the "statement" under Section 164(5), the formalities and safeguards under sub-sections (2) to (4) of Section 164 Cr.P.C. need not be complied with by the Magistrate.
- COMPULSORY RECORDING OF STATEMENT IN CERTAIN CASES
In the case of certain erotic offences against women as enumerated in Section 164 (5A) (a) there is a statutory obligation on the Judicial Magistrate to record the statement of the victim. If such victim happens to be temporarily or permanently mentally or physically disabled, the Magistrate is obliged to take the assistance of an interpreter or special educator for recording the victim's statement which has also to be videographed. Sub-section (5A) (b) treats such statement to be "chief examination" dispensing with the need for further chief examination during trial.
- TRANSMITTING THE STATEMENT TO THE JURISDICTIONAL MAGISTRATE
After recording the statement, the Magistrate has to forward the same to the Jurisdictional Magistrate by whom the case is to be inquired into or tried. (vide Section 164(6) Cr.P.C.)
CAN A STATEMENT RECORDED AS A DYING DECLARATION BE TREATED AS A "STATEMENT" UNDER SECTION 164 Cr.P.C. IF THE DECLARANT SURVIVES?
Where a statement is recorded by the Magistrate as a dying declaration and the maker thereof survives, the statement so recorded can be treated as a statement recorded under Section 164 Cr.P.C. and can be used for corroboration or contradiction. (vide Sunil Kumar v. State of M.P. (1997) 10 SCC 570 = AIR 1997 SC 940.) Such a statement recorded as a dying declaration is not then a statement under Section 32 of the Evidence Act but a statement under Section 164 Cr.P.C. It can, therefore, be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 of the Evidence Act for the purpose of contradiction. (vide para 5 of State of U.P. v. Veer Singh (2004) 10 SCC 117 = 2004 Cri.L.J. 3835.) Such a statement recorded by the Magistrate as a dying declaration is neither admissible as res gestae nor as dying declaration. It can be used to corroborate or contradict the testimony of the maker. (vide Gentela Vijayavardhan Rao v. State of A.P. (1996) 6 SCC 241 = AIR 1996 SC 2791.)
IMPACT OF STATEMENT UNDER SECTION 164 Cr.P.C. ON THE TESTIMONY OF THE WITNESS IN COURT
The mere fact that the statement of the witness was earlier recorded under Section 164 Cr.P.C. will not in any manner discredit his evidence given before Court. (vide Ramesh Singh v. State of A.P. AIR 2004 SC 4545.) But, the earlier rule of caution as laid down in Ramcharan v. State of U.P. AIR 1968 SC 1270 must always be borne in mind because such witnesses feel tied down to their earlier statement given on oath. (vide Balakram v. State of U.P. AIR 1974 SC 2165; Somasikhar v. State of Karnataka AIR 2005 SC 1510.)
WHAT SHOULD THE RECORDING MAGISTRATE DO AFTER COMPLETION OF THE PROCEEDINGS ?
19. After recording the "confession" or "statement" under Section 164 Cr.P.C. and after preparing the memorandum/certificate under Section 164(4), the Magistrate should comply with Section 164(6) Cr.P.C. by forwarding the "confession" or the "statement" to the Jurisdictional Magistrate who has to inquire into or try the case.
- WHAT IS THE LEGAL STATUS UNDER THE EVIDENCE ACT OF A "CONFESSION" OR "STATEMENT" RECORDED UNDER SECTION 164 Cr.P.C.?
The "confession" of an accused or the "statement" of a witness recorded under Section 164 Cr.P.C. is a public document under Section 74 of the Evidence Act. (vide State of Madras v. G. Krishna AIR 1961 Madras 92 (FB); Guruvindappali Anna Rao v. State of A.P. 2003 Cri.L.J. 3253 (A.P.); Raju Janki Yadav v. State of U.P. 2013 KHC 2125 = 2013 Cri.L.J. 78 (Allahabad).
CAN COPIES OF THE "CONFESSION" OR "STATEMENT" UNDER SECTION 164 Cr.P.C. BE OBTAINED BY THE INVESTIGATING OFFICER AND THE ACCUSED DURING THE CRIME STAGE?
The accused cannot but the investigating officer can obtain copies of the "confession" or "statement" during the investigation stage. However, a Full Bench of the Allahabad High Court in Raju Janki Yadav v. State of U.P. 2013 KHC 2125 = 2013 Cri.L.J. 78 (Allahabad) has taken the view that recording of statement of witnesses under Section 164 Cr.P.C. indicates the performance of official and judicial function by a Magistrate and as such the statement is a public document and the accused is entitled to a certified copy of the same. A learned single judge of the Kerala High Court in Unnikrishnan Nair v. State of Kerala 2014 KHC 2515 = 2014 (1) KLT 146 had also taken the view that a statement under Section 164 Cr.P.C. being part of the record cannot be denied to the accused. However, a Full Bench of the Madras High Court in State of Madras v. G. Krishna AIR 1961 Madras 92 had taken the view that although a statement recorded under Section 164 Cr.P.C. may be a public document under Section 74 of the Evidence Act, the right of the accused to get copies of the same before the filing of the charge sheet, has been taken away by Section 173(4) of old Cr.P.C. corresponding to Section 173(7) of the present Code. It may be noted that a confession or a statement recorded under Section 164(1) to (4) and Section 164(5), as the case may be, is a document to be forwarded by the recording Magistrate to the Jurisdictional Magistrate under Section 164(6) Cr.P.C. It is one of the documents referred to in Section 173(5) (a) Cr.P.C. and the Police officer filing a charge sheet under Section 173(2) Cr.P.C. is obliged by Section 173(7) Cr.P.C. to furnish to the accused copies of all documents referred to in Section 173(5) Cr.P.C. In other words, the accused becomes entitled to get a copy of the confession or statement recorded under Section 164 Cr.P.C. only when a charge sheet (Police Report) is filed after the conclusion of investigation. That is precisely why, the Supreme Court in Naresh Kumar Yadav v. Ravindrakumar (2008) 1 SCC 632 held that the Police papers which are to be supplied to the accused and the stage at which they are to be supplied have been statutorily fixed. The Apex Court further observed that if the first informant or the accused is found referring to any of those documents during the crime stage, after having obtained unauthorised access of the case diary, a serious view has to be taken by Courts. While issuing certain general directions to be followed in rape cases, the Supreme Court in State of Karnataka v. Shivanna @ Tarkari Shivanna (2014) 8 SCC 913 = 2014 KHC 4321, ordered that a copy of the statement recorded under Section 164 Cr.P.C. should be handed over to the Investigating Officer with a specific direction that the contents of such documents should not be disclosed to any person till the charge sheet/report under Section 173 Cr.P.C. is filed. Taking the cue from the aforesaid verdicts of the Supreme Court and approving the Madras view a learned Single Judge of the Kerala High Court in Shakeer M. v. State of Kerala 2014 (3) KHC 759, has confirmed the lower Court's order rejecting the application filed by the accused during the crime stage for a copy of the statement of the prosecutrix recorded under Section 164 Cr.P.C. in a rape case. In a cheating case another learned Single Judge of the Kerala High Court in Varghese M.U. v. CBI, Cochin 2015 (3) KHC 417 (Kerala) has held that copy of the "statement" recorded under Section 164 Cr.P.C. shall not be given to anyone other than the Investigating Officer who may require it for investigation and unless and until it is made public by the filing of the charge sheet, the Investigating Officer shall not directly or indirectly disclose its contents or issue its copy if it is against public interest.
WHETHER THE PRESUMPTION UNDER SECTION 80 OF THE EVIDENCE ACT IS AVAILABLE TO A "CONFESSION" OR "STATEMENT" RECORDED UNDER SECTION 164 Cr.P.C. AND WHAT IS THE MODE OF PROOF ?
22. The presumption under Section 80 of the Evidence Act is available in respect of a "confession" recorded under Section 164 Cr.P.C. Hence, in the case of a "confession", Section 80 of the Evidence Act makes examination of the Magistrate who recorded the confession, unnecessary. (vide Madi Ganga v. State of Orissa (1981) 2 SCC 224 = AIR 1981 SC 1165.) But, the said presumption does not apply to a "statement" recorded under Section 164 Cr.P.C. This is clear from Section 80 itself which indicates that the presumption will apply only if the statement was recorded in any judicial proceeding. The "statement" of a witness recorded under Section 164 Cr.P.C. is not "evidence" given by a witness in a "judicial proceeding". (vide Purshottam Ishvar Amin v. Emporer AIR 1921 Bombay 3 (FB). Such a "statement" recorded under Section 164 Cr.P.C. not being substantive evidence, the presumption under Section 80 of the Evidence Act is not applicable to it. A statement of that nature is only a "previous statement" which, like any other previous statement, can be used to contradict or corroborate the maker which is possible only if the maker is examined as a witness. If the maker of the statement is not examined as a witness, there is no question of the statement recorded under Section 164 Cr.P.C. being used against the accused. (vide Baij Nath Sah v. State of Bihar (2010) 6 SCC 736.) Examination of the Magistrate also may be necessary for proving the contradiction and corroboration. The view taken in State of Kerala v. Thomas 2005 KHC 1823 = 2005 (2) KLD 651 (DB) (to which this author was also a party) that the wholesale marking of the entire statement recorded under Section 164 Cr.P.C. is illegal, does not appear to be a sound proposition in law. A statement under Section 164 Cr.P.C. is comparable to a First Information statement under Section 154 Cr.P.C. and can be formally marked and its only use is to corroborate or contradict the maker. It is well settled that a statement under Section 164 Cr.P.C. is not substantive evidence of the truth of the facts stated. It can be used to corroborate or contradict the maker. (vide Brij Bhushan Singh v. Emperor AIR 1946 PC 38; Mamand v. King Emperor AIR 1946 PC 45; Bhuboni Sahu v. The King AIR 1949 PC 257; State of Delhi v. Shri Ram Lohia AIR 1960 SC 490; State of Rajasthan v. Kartar Singh (1970) 2 SCC 61 = AIR 1970 SC 1305; Ram Kishan Singh v. Harmit Kaur (1972) 3 SCC 280 = AIR 1972 SC 468; Dhanabal v. State of T.N. AIR 1980 SC 628.)
In summing up, what can be said of a "confession" or "statement" under Section 164 Cr.P.C. is that it is not a piece of substantive evidence and its only use (as in the case of a First Information statement under Section 154 Cr.P.C.) is to contradict or corroborate the maker. The contradiction can be elicited by having recourse to Section 145 of the Evidence Act. The proviso to Section 162 (1) Cr.P.C. has no role to play in eliciting the contradiction because the said proviso will be attracted only in cases where the statement is recorded by a Police officer conducting an investigation under Chapter XII of Cr.P.C. and not by a Magistrate. Now after the incorporation of sub-section (5A) to Section 164 Cr.P.C. it may not any longer be correct to say that a statement recorded under Section 164 Cr.P.C. is not substantive evidence. At least in respect of those cases covered by sub-section (5A) (b) of Section 164 Cr.P.C. the statement of persons suffering from the disability referred to therein, will have to be treated as substantive evidence which, of course can attain the status of acceptable evidence only when an opportunity to test the same by cross-examination is given. I am personally of the view that a similar privilege could have been extended in the matter of recording of confession by accused persons suffering from any such disability, since until proved guilty they are also persons who are to be presumed to be innocent. Section 80 of the Indian Evidence Act, 1872 also could be amended so as to extend the benefit of the presumption also to a "statement" recorded under Section 164(5) Cr.P.C. especially in the wake of sub-section (5A) to Section 164 Cr.P.C.
Justice V Ramkumar is a former Judge Of Kerala High Court.