“Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-VI]

Q.26 What is the relevance of a retracted confession ?

Ans. Merely because the confession was retracted later, it does not mean that the confession was not voluntary in nature.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 – K. G. Balakrishnan – CJI, G. P. Mathur – JJ.)

If 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 – S. Murtaza fazl Ali, A. Varadarajan, Sabhyasachi Mukharji – JJ.)

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 – K. T. Thomas, S. N. Variava – JJ.)

Though conviction based on 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 – K. Jayachandra Reddy, G. N. Ray – JJ.)

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 If the Court is satisfied that it was retracted on account of an afterthought or advise , the retraction may not weigh with the Court.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 – P. Venkatarama Reddi, P. P. Naolekar – JJ.)

A conviction based on retracted confession without corroboration is not illegal (Vide Ram Chandra Prasad Sharma v. State of Bihar AIR 1967 SC 349 – A. K. Sarkar, J. R. Mudholkar – JJ.)

Q.27 Whether the presumption under Section 80 of the Evidence Act is available to a “confession” recorded under Section 164 Cr.P.C. ?

Ans. Yes. 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 – O. Chinnappa Reddy, Baharul Islam – JJ.)

QUESTIONS ON RECORDING OF “STATEMENT” U/S 164

Q.28 Which sub-section of Section 164 Cr.P.C. deals with the power of the judicial Magistrate for recording the statement (other than a confession) of a person ?

Ans. Sub-section (5) of Section 164 Cr.P.C.

Q.29 Can the non-confessional statement of an accused person be recorded under Section 164 (5) Cr.P.C. ?

Ans. Yes. A non-confessional statement of an accused person can be recorded by the Magistrate under Section 164 (5) Cr.P.C. Section 164 Cr.P.C. only says that a Judicial Magistrate may record a confession or a statement. In other words, the Section does not say that in the case of an accused person the Magistrate can only record his confession. The Section empowers the Magistrate to record the confession of an accused person and also to record the statement of any person (which can include an accused person as well). Thus, a non-confessional statement made by an accused can also be recorded by the Magistrate under Section 164 Cr.P.C. (Vide Rao Shiv Bahadur Singh and Another v. State of Vindhya Pradesh AIR 1954 SC 322 = 1954 KHC 472 – 3 Judges – N. H. Bhagwati, B. Jaganadhadas, T. L. Venkatarama Ayyar - JJ; Varghese M.U. v. CBI, Cochin 2015 (3) KHC 417 (Kerala) – K. Abraham Mathew - J.)

A statement under Section 164 Cr.P.C. not amounting to a confession can be used against to the maker as an admission under Sections 18 to 21 of the Evidence Act. (Vide Ghulam Hossain v. The King (1950) 51 Cri.L.J. 1552 (PC) - Greene, Oaksey, Radcliffe, M Nair, L Leach - JJ.

The State of Kerala had witnessed the request by a custody prisoner by name Saritha Nair made to a Magistrate to record her statement and the arguments both in the media as well as elsewhere for and against such request. The controversy in that connection had even resulted in disciplinary proceedings pending enquiry against the Judicial Magistrate concerned and he was eventually exonerated by the High Court of Kerala.

Q.30 What could be the reason for involving a judicial Magistrate for recording the statement of a person during the stage of investigation of a crime ?

Ans. Statements made soon after the incident are far more trustworthy than later denials or embellishments. (Vide Allah Baksh v. The Crown 1952 Cri.L.J. 79 (FC); Para 15 of Public Prosecutor v. K. Jalayya AIR 1954 Madras 303 = 1954 Cri.L.J. 374 – Ramaswami – J.)

Statement of a witness is generally recorded under Section 164 Cr.P.C. so as to fix him to it when it is feared that he may prevaricate or resile afterwards or when it is apprehended that he may be tampered with. (Vide Parameshar Din v. Emperor AIR 1941 Oudh 517.)

If the statement of a witness is previously recorded under Section 164 Cr.P.C. it leads to an inference that there was a time when the Police thought that the witness may change. (Vide Parmanand v. Emperor AIR 1940 Nagpur 340 – Allsop - J; In Re: Gopisetti Chinna Venkata Subbaiah AIR 1955 AP 161.)