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

Q.41 Is the examination of the Magistrate who recorded the statement under Section 164 (5) necessary ?

Ans. Not always. If there are contradictions or omissions elicited from the person when examined as a witness, then 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) – K. Padmanabhan Nair, V. Ramkuar - JJ (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 - Thankerton, Goddard, J Beaumont - JJ; Mamand v. King Emperor AIR 1946 PC 45; Bhuboni Sahu v. The King AIR 1949 PC 257 - Thankerton, Goddard, J Beaumont – JJ; State of Delhi v. Shri Ram Lohia AIR 1960 SC 490 – S. J. Imam, J. L. Kapur, K. N. Wanchoo - JJ; State of Rajasthan v. Kartar Singh (1970) 2 SCC 61 = AIR 1970 SC 1305 – M. Hidayatullah – CJI, A. N. Ray, I. D. Dua - JJ; Ram Kishan Singh v. Harmit Kaur (1972) 3 SCC 280 = AIR 1972 SC 468 – A. N. Ray, D. G. Palekar - JJ; Dhanabal v. State of T.N. AIR 1980 SC 628 – S. Murtaza Fazl Ali, P. S. Kailasam, A. D. Koshal – JJ.)

Q.42 What is the feasibility of prosecuting a witness for perjury for giving contradictory versions first before the Magistrate under Section 164 (5) Cr.P.C. and later before the Trial Court ?

Ans. Beaumont, C.J. has stated half a century ago in Ningappa v. Emperor (AIR 1941 Bom. 408) – Beaumont – CJI, Sen – J, that "no doubt, a man making a statement on oath before a Magistrate under S.164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness box. To prosecute a man who has resiled from a false statement made under S.164 is to encourage him in the belief that it pays to sell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under S.164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked". Those observations stand in good stead even now despite the lapse of five decades. (Vide para 5 of Thomman v. IInd Addl. Sessions Judge 1993 (2) KLT 774 = 1993 KHC 418 = 1999 Cri.L.J. 48 – K. T. Thomas – J.)

Court has to decide whether the earlier statement given to the Magistrate under Section 164 (5) Cr.P.C. was false. It is only on upon taking such a decision, will it be permissible to take action against the witness for perjury for resiling from the earlier statement when giving evidence during trial. (Vide para 6 of Thomman v. IInd Addl. Sessions Judge 1993 (2) KLT 774 = 1993 KHC 418 = 1999 CriLJ 48 - K. T. Thomas - J.)

Part 8: “Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-VIII]