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

Q.1 What is a confession ?

Ans. A confession is an admission of the offence by the accused. An admission is a statement, oral or documentary which enables the Court to draw an inference as to any fact in issue or relevant fact. There is a clear distinction between “admission” and “confession”. The term “admission” is of wider connotation and can be used to include a confession. Thus, all confessions are admissions but all admissions cannot be confessions. If the admission is sufficient to prove the guilt of the maker, it is a confession. (vide paras 27 and 28 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 – (Parliament attack case) – P. Venkatarama Reddy, P. P. Naolekar – JJ.) (However, the view taken regarding electronic evidence falling under Section 65 B of the Evidence Act, overruled in para 22 of P. V. Anvar v. P. K. Basheer AIR 2015 SC 180 – R. M. Lodha – CJI, Kurian Joseph, Rohinton F. Nariman – JJ.)

CONFESSION DEFINED

After the authoritative pronouncement by the Privy Council in Pakala Narayana Swamy v. Emperor AIR 1939 PC 47 - Atkin, G Rankin, Porter, Thankerton, Wright - JJ, a confession has been understood as follows:-

A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.

The above definition was approved by the Supreme Court of India in Palvinder Kaur v. State of Punjab AIR 1952 SC 354 – 3 Judges – M. C. Mahajan, N. Chandrasekhara Aiyar, N. H. Bagwati – JJ; Om Prakash v. State AIR 1960 SC 409 – A. K. Sarkar, M. Hidayatullah - JJ; Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302 – R. S. Sarkaria, Untwalia - JJ; Jameel Ahmed v. State of Rajasthan AIR 2004 SC 588 - N. Santhosh Hegde, B. P. Singh - JJ.

Confessions are considered to be highly reliable because no rational person would make an admission against his own interest unless prompted by his conscience to tell the truth. (Vide para 29 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 - P. Venkatarama Reddy, P. P. Naolekar – JJ.)

Q.2 How can “confession” be classified ?

Ans.

Q.3 Who can record a “confession” or “statement” under Section 164 Cr.P.C. ?

Ans. 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 - K. T. Thomas, R. P. Sethi - JJ.) 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 – S. Ratnavel Pandian, M. M. Punchhi, K. Ramaswamy, S. C. Agrawal, R. M. Sahai - JJ, 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.)

Q.4 Should the Magistrate be the jurisdictional Magistrate?

Ans. No, even though going by the wording of Section 164 (1) Cr.P.C. it will not be illegal if a jurisdictional Magistrate records a “confession” or “statement” under Section 164 Cr.P.C. Any 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.

Q.5 What is the stage at which a “confession” or “statement” under Section 164 Cr.P.C. can be recorded?

Ans. Such “confession” or “statement” can be recorded either during the course of investigation or at any time thereafter but before the commencement of inquiry or trial.

The investigation referred to under Section 164(1) can either be under Chapter XII of Cr.P.C. or under any other law for the time being in force.