P R O L O G U E
What prompted me to write this Article is an observation made in a recent judgment dated 25-02-2019 rendered by a Division Bench of the Kerala High Court in Criminal Appeal No. 794 of 2014 (Ali K.B. v. State of Kerala 2019 (1) KHC 898).
2. The case before the High Court was a murder case. The learned Judges were considering the testimony of PW2 the sole eye witness in the case and who is none other than the daughter of the person who was murdered. This witness was aged 11 years when the occurrence took place in the year 2008 and during the stage of investigation her statement under Section 164(5) of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) was recorded by a Magistrate who did not administer oath to the girl who was aged only 11 years then. She was aged 18 years when she gave evidence before the Trial Court. Dealing with the defence contention that since no oath was administered by the Magistrate to the child witness, her testimony before Court lacks credence, the Division Bench rightly observed that in view of the proviso to Section 4(1) of the Oaths Act, 1969 administration of oath was not necessary in the case of a child under 12 years of age if the Court was of the opinion that though the child understands the duty of speaking the truth, he or she does not understand the nature of oath or affirmation. The Judges also adverted to Rule 55 of the Criminal Rules of Practice, Kerala, 1982 obliging the Court to hold a preliminary enquiry for the purpose of deciding the testimonial competence of a witness under a disability. The examination of the child witness during such preliminary enquiry is known as voir dire examination which is a French word which means "to speak the truth". The Judges also referred to Section 7 of the Oaths Act, 1969 which inter alia indicates that omission to take oath or any irregularity in taking oath, will not invalidate either the proceedings or the evidence. The Judges were then discussing the probative value of a statement under Section 164 Cr.P.C. This is what the Division Bench has observed:-
"19. It is settled law that even a statement recorded by the Magistrate in terms of Section 164(5) can only be used for the purpose of contradiction. The statement recorded under Section 164(5) cannot have any validity as such and cannot be treated as evidence before a Court. It has the same characteristics of a statement recorded by the Police under Section 161 and can be utilized only for the purpose as provided in the proviso to Section 162 r/w Section 145 of the Indian Evidence Act, 1872. Therefore, no prejudice will be caused to the accused even if there is any irregularity in recording the statement under Section 164 by the learned Magistrate. In the case on hand, the argument is with reference to statement given by PW2, a child witness to the Magistrate under Section 164 of Cr.P.C."
3. I am afraid that the above observation does not reflect the true legal position. The observation that a statement recorded under Section 164(5) Cr.P.C is analogous to a statement recorded by the Police under Section 161 Cr.P.C. and it can be used only for the purpose of contradiction as provided under the proviso to Section 162 Cr.P.C. read with Section 145 of the Evidence Act, is, with due respect, an erroneous statement of the law as will be shown in the course of this Article. Such a statement under Section 164 Cr.P.C. can be used not only for contradicting the maker under Section 145 of the Evidence Act but also for corroborating his statement by recourse to Section 157 of the Evidence Act. The proviso to Section 162(1) Cr.P.C. also cannot have any application for eliciting a contradiction in the statement recorded under Section 164 Cr.P.C. since such a statement is one recorded by a Magistrate and not by a Police officer. Similarly, the further observation in the extracted portion of the reported verdict that a statement recorded under Section 164(5) Cr.P.C. cannot have any validity as such and cannot be treated as evidence before Court, may not also be fully correct in the wake of the legislative intervention in the form of insertion of clause(b) to sub-section (5A) of Section 164 Cr.P.C. with effect from 03-02-2013. As per the said clause(b) the statement recorded under clause(a) of sub-section (5A) of a person who is temporarily or permanently mentally or physically disabled, can be treated as examination-in-chief as provided under Section 137 of the Evidence Act during the trial of the case. Thus, at least for the aforesaid limited purpose, the 164 statement of a person can be treated as evidence. Since I have also come across other judicial verdicts either misconstruing or not properly construing the sweep and amplitude of Section 164 Cr.P.C., I propose to deal with the subject in some depth.
SECTION 164 Cr.P.C. REPRODUCED
4. Section 164 Cr.P.C. after the Criminal Law (Amendment) Acts 13/2013 and 22/2018, reads as follows:-
"164. Recording of confession and statement
PROVIDED that any confession or statement made under this sub-Section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence:
PROVIDED FURTHER that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
"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.
(Signed) A. B
PROVIDED that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:
PROVIDED FURTHER that if a person making statement is temporarily or permanently or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be videographed.
A. WHO CAN RECORD A "CONFESSION" OR "STATEMENT" UNDER SECTION 164 Cr.P.C. ?
5. Section 164(1) empowers any Metropolitan Magistrate or other Judicial Magistrate to record any confession or statement made to him.
(This provision, therefore, indicates that a Judicial Magistrate alone is invested with the power to record a confession or statement under Section 164(1) Cr.P.C. A confession recorded by an Executive Magistrate under Section 164(1) Cr.P.C. is thus totally inadmissible in evidence (vide Asst. Collector of Central Excise v. Duncan Agro Industries Ltd. AIR 2000 SC 2901. Second proviso to Section 164(1) clarifies that a Police Officer on whom the power of a Magistrate has been conferred under any law also cannot record a confession under Section 164(1) Cr.P.C. What is not permissible is only the recording by a person other than a Judicial Magistrate of a confession by recourse to Section 164 Cr.P.C. But, anybody including an Executive Magistrate is entitled to record an extra judicial confession. However, a Police Officer cannot record a confession in view of the interdict under Section 25 of the Indian Evidence Act, 1872.
In Kartar Singh v. State of Punjab (1994) 3 SCC 569 = 1994 Cri.L.J 3139 – 5 Judges, the Supreme Court held that since an Executive Magistrate or a Special Magistrate authorised under Section 20(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ("TADA Act" for short) was acting as a criminal Court, they are entitled to record a confession in relation to a case involving an offence under the TADA Act.)
B. SHOULD THE MAGISTRATE BE THE JURISDICTIONAL MAGISTRATE?
6. No. The Metropolitan or other Judicial Magistrate can record the confession or statement under Section 164 (1) Cr.P.C. whether or not he has jurisdiction in the case.
(Thus, the Judicial Magistrate who records a confession or a statement under Section 164 (1) Cr.P.C. need not necessarily be the jurisdictional Magistrate. This is further clear from sub-section (6) of Section 164 as per which the Magistrate after recording a confession or statement is obliged to forward the same to the Magistrate who is inquiring into or trying the case.)
Stay tuned for the Part-II
Justice V Ramkumar is a former Judge Of Kerala High Court.