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

Q.36 Can a statement recorded as a “dying declaration” be treated as a “statement” under Section 164 (5) Cr.P.C. in case the declarant survives ?

Ans. Yes. 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 – M. K. Mukherjee, B. N. Kirpal – JJ.) 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 – Doraiswamy Raju, Arijit Pasayat – JJ.) 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 – Dr. A. S. Anand, K. T. Thomas- JJ.)

Q.37 What is the impact of a “statement” under Section 164 Cr.P.C. on the subsequent testimony of the witness in Court ?

Ans. 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 – N. Santhosh Hegde, B. P. Singh – JJ.) But, the earlier rule of caution as laid down in Ramcharan v. State of U.P. AIR 1968 SC 1270 – S. M. Sikri, J. M. Shelat, V. Bhargawa – JJ, 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 – H. R. Khanna, Y. V. Chandrachud - JJ; Somasikhar v. State of Karnataka AIR 2005 SC 1510 – Doraiswamy Raju, Arijit Pasayat – JJ.)

Q.38 What is the legal status under the Evidence Act of a “confession” or a “statement” recorded under Section 164 Cr.P.C. ?

Ans. 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) Somasundaram, R. Iyer, Anantanarayanan - JJ; Guruvindappali Anna Rao v. State of A.P. 2003 Cri.L.J. 3253 (A.P.) – Ramesh Madhav Bapat, S. R. K. Prasad - JJ; Raju Janki Yadav v. State of U.P. 2013 KHC 2125 = 2013 Cri.L.J. 78 (Allahabad) – Dharnidhar Jha, Ramesh Sinha - JJ.)

Q.39 Can copies of the “confession” or the “statement” recorded under Section 164 Cr.P.C. be obtained by the Investigating Officer or the accused during the crime stage (investigation stage) ?

Ans. The accused cannot but the investigating officer can obtain copies of the “confession” or “statement” during the investigation stage. 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) - Dharnidhar Jha, Ramesh Sinha – JJ, has taken the view that recording of statement of   witnesses   under Section 164 (5)   Cr.P.C. indicates 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 – B. P. Ray – J, had also taken the view that a statement under Section 164 (5) 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 - Somasundaram, R. Iyer, Anantanarayanan – JJ, had taken the view that although a statement recorded under Section 164 (5) 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 the 1898 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 (4) or Section 164 (5), as the case may be, is a document to be directly forwarded by the recording Magistrate to the Jurisdictional Magistrate under Section 164 (6) Cr.P.C. It is not 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 only copies of all the documents referred to in Section 173(5) Cr.P.C. which do not include a statement under Section 164 Cr.P.C. It should not be forgotten that a confession or a statement under Section 164 Cr.P.C. can be recorded not only during investigation but also at any time after the investigation, but before the commencement of inquiry or trial as indicated by Section 164 (1) Cr.P.C. In other words, the accused becomes entitled to get a copy of the confession or statement recorded under Section 164 (5) Cr.P.C. only at the stage when the Magistrate complies with Section 207 or 208 Cr.P.C., as the case may be, subsequent to the filing of the charge sheet (Police Report) by the Police and subsequent to the Magistrate takes cognizance of the offence and issues process to the accused. That is precisely why, the Supreme Court in Naresh Kumar Yadav v. Ravindrakumar (2008) 1 SCC 632 - Dr. Arijit Pasayat, Lokeswae Singh Panta – JJ, 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 either 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 – Gyan Sudha Misra, V. Gopala Gowda - JJ, ordered that a copy of the statement recorded under Section 164 Cr.P.C. should be handed over to the Investigating Officer by the Magistrate concerned 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 - K. Ramakrishnan – J, 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) – K. Abraham Mathew – J, has held that copy of the “statement” recorded under Section 164 (5) 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.

In State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014) 8 SCC 913 = 2014 KHC 4321 – Gyan Sudha Misra, V. Gopala Gowda – JJ, the following directions were issued by the Supreme Court in exercise of its power under Article 142 of the Constitution of India :-

“9. On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Art.142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the Police Stations in charge in the entire country to follow the direction of this Court which are as follows:

(i) Upon receipt of information relating to the commission of offence of rape, the Investigating Officer shall make immediate steps to take the victim to any Metropolitan / preferably Judicial Magistrate for the purpose of recording her statement under S.164 CrPC. A copy of the statement under S.164 CrPC should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under S.164 CrPC should not be disclosed to any person till charge - sheet / report under S.173 CrPC is filed.

(ii) The Investigating Officer shall as far as possible take the victim to the nearest   Lady Metropolitan / preferably Lady Judicial Magistrate.

(iii) The Investigating Officer shall record specifically the date and the time at which he learnt about the commission of the offence of rape and the date and time at which he took the victim to the Metropolitan / preferably Lady Judicial Magistrate as aforesaid.”

The matter has now been set at rest by a three-Judge Bench of the Supreme Court of India in Miss “A” v. State of U.P. AIR 2020 SC 4903 = 2020 (5) KHC 441 (SC) – 3 Judges – Uday U Lalit, Vineeth Saran, S. Ravindra Bhatt – JJ, wherein it has been categorically held that merely because a charge-sheet has been filed, the accused is not entitled to a copy of the statement recorded under Section 164 (5) Cr.P.C. and that the right to receive a copy of such statement will arise only after cognizance is taken and Section 207 or Section 208 Cr.P.C., as the case may be, is complied with. Miss “A” contains the following extract from Shivanna (Supra) :-

".....If the copy of statement under S.164 is provided at this preliminary stage of investigation then besides spilling all the beans of investigation before the concerned person(s) who shall also come to know names of all the key witness(es) involved in this case, the health and safety of the victim(s) but also that of all the key witnesses will be in peril. It is also very likely that of all affected and concerned person(s) will leave no stone unturned in influencing the investigation itself and all key witnesses in their favour much before any report is made under S.173 CrPC. All this is surely bound to 'dent' the prosecution case. However, once the investigation is over and a report is filed under S.173 of CrPC at that stage the copy of the statement under S.164 CrPC along with other relevant documents can be asked by the concerned person.

In view of the above, application filed by the learned counsel of the applicant Swami Chinmyanand Saraswati to obtain copy of the statement under S.164 of CrPC is rejected for all the reasons discussed above."

It must be borne in mind that the above judicial interdict applies only in the case of a “statement” recorded under Section 164 (5) Cr.P.C. and does not apply to a “confession” recorded under Section 164 (4) Cr.P.C. This is obviously because the fact that when an accused makes a voluntary confession, it does not involve any risk to anybody else including him; but when a witness or a victim makes a statement under Section 164 (5) Cr.P.C. implicating another, he runs the risk or danger of that another or somebody interested in that another. That is why in Varghese M. V. v. CBI 2015 (3) KHC 417 - K. Abraham Mathew – JJ, the Kerala High Court directed the Magistrates to record the statements of witnesses and victims under Section 164 (5) Cr.P.C. in camera.

Q.40 Whether the presumption under Section 80 of the Evidence Act is available to a “statement” recorded under Section 164 Cr.P.C. ?

Ans. No. The presumption under Section 80 of the Evidence Act 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) - N Macleod, Shah, Pratt, Fawcett, Setalvad - JJ. 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 – Harjit Singh Bedi, C. K. Prasad – JJ.)

Part 7: “Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-VII]