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

Ans. Yes. Before an accused is asked to make his confession the Magistrates ordinarily allow a period for reflection and remand him to jail custody so as to put him out of the reach of the investigating officer. (Vide Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 – Vivian Bose, T. L. Venkatarama Ayyar, N. Chandrashekara Aiyar - JJ; Sarwan Singh v. State of Punjab AIR 1957 SC 637 – P. B. Gagendraghadkar – J.)

The object of keeping the accused/suspect in judicial custody and giving him sufficient time for reflection and necessary warnings reinforces the voluntariness since with the sufficient time given for reflection, the accused frees himself from the pressure of Police interrogation before making the confession (Vide para 386 of Kartar Singh v. State of Punjab (1994) 3 SCC 569 - – S. Ratnavel Pandian, M. M. Punchhi, K. Ramaswamy, S. C. Agrawal, R. M. Sahai - JJ)

Recording of confession is a “proceeding” within the meaning of Section 303 Cr.P.C. and hence the accused has a right to consult a lawyer of his choice. Before recording the confession, the Magistrate should, therefore, explain this to the accused. If the accused is poor or belongs to an economically or socially backward class, the Magistrate should inform the accused about his right to free legal aid under Section 304 Cr.P.C. (Vide NandiniSatpathy v. P.L. Dani AIR 1978 SC 1025 – V. R. Krishna Iyer, Jaswanth Singh, V. D. Tulzapurkar - JJ; KuthuGoala v. State of Assam 1981 Cri.L.J. 424 (Gouhati) – K. Lahiri, N. I. Singh - JJ.

Recording of confession should ordinarily be after explaining to the accused the consequences as indicated in (ii) above and after giving the accused person sufficient time for reflection.

Q.12 Is there any prescribed time limit to be allowed to the accused for reflection before recording his confession?

Ans. There is no hard and fast rule regarding the time for reflection to be granted for recording the confession. But the time of 5 or 10 minutes granted was held to be utterly inadequate (Vide para 184 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 – P. Venkatarama Reddy, P. P. Naolekar – JJ).

Generally at least 24 hours’ time should be given to the accused to consider whether he should make a confession. Where there is reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given (Vide Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri.L.J. 1014 – 3 Judges (rendered under the old Code) – Jaganadhadas, S. B. Sinha, P. B. Gajendragadkar - JJ.

Under Section 164 Cr.P.C. the first precaution that a judicial Magistrate is required to take is to prevent forcible extraction of a confession by the prosecuting agency. The Magistrate in particular should ask the accused as to why he wants to make a statement which surely will go against his interest in the trial. He should be granted sufficient time for reflection. He should also be assured of protection from any sort of apprehended torture or pressure from the Police in case he declined to make a confessional statement. Vvide Bhagwan Singh v. State of M.P. (2003) 3 SCC 21 = AIR 2003 SC 1088 -3 Judges – S. Rajendrababu, D. M. Dharmadhikari, G. P. Mathur – JJ.)

There is no statutory provision that the accused should be given 24 hours for reflection. How much time should be given for reflection depends on the circumstances of each case. But what is important is that the Magistrate recording the confession should be satisfied that the confession was being made voluntarily. It is true that the accused was given by the Magistrate 15 to 20 minutes for reflection before recording his confession. But the accused was for more than 30 hours in judicial custody free from fear or influence by the Police. The accused was not, after his confession was recorded, handed over to the Police and hence there was no violation of Section 164(3) Cr.P.C. The Magistrate had also given cogent reasons for recording the confession of the accused. (Vide Shankaria v. State of Rajasthan (1978) 3 SCC 435 = AIR 1978 SC 1248 – 3 Judges – Sarkar, Untwalia, Kailasam – JJ.)

Q.13 What should be the nature of questions to be put to the accused while recording the confession ?

Ans. The confession must be recorded with great care and circumspection. The Magistrate must record the questions put the accused in order to –

• ascertain whether the confession was of a voluntary nature .
• assure the accused that he will not have to go back to Police custody after his statement is recorded.
• warn him of the consequences which would ensue if the confession turns out to be false.
• ascertain whether it was in the hope of release that he is implicating himself.
• ask the accused whether the Police or any other person had subjected him to ill-treatment. (Vide Kartar Singh v. State of Punjab (1994) 3 SCC 569 = 1994 Cri.L.J. 3139 - 5 Judges – S. Ratnavel Pandian, M. N. Punchhi, K. Ramaswamy, S. C. Agrawal, R. M. Shelat – JJ.)

Enquiry under Section 164(2) Cr.P.C. should not be conducted in a casual or mechanical manner (vide Ayyub v. State of U.P. (2002) 3 SCC 510.)

NOTE BY VRK: The latter part of Section 29 of the Evidence Act also should not be lost sight of.

Q.14 Is it not enough that an endorsement made in terms of the memorandum in sub-section (4) of Section 164 Cr.P.C. will be sufficient to infer that the requirements of the said sub-section have been fulfilled ?

Ans. Mere stereotyped endorsement repeating the words of the memorandum in sub-section (4) will not fulfil the requirement of the said sub-section if the confession recorded by the Magistrate did not indicate anywhere as to whether, before recording the same, he gave the accused the requisite caution and put questions to satisfy himself that the confession was being made voluntarily. Held that the confession was not voluntary and cannot be acted upon. (Vide Tulsi Singh v. State of Punjab (1996) 6 SCC 63 = AIR 1996 SC 3477 – M. K. Mukherjee, S. P. Kurdukar – JJ.)

The Magistrate certifying that he “hoped”(and not that he “believed”) that the confession of the accused was voluntary, would suggest a lingering doubt and hence not accepted. (Vide Chandran v. State of T.N. (1978) 4 SCC 90 = AIR 1978 SC 1574 – R. S. Sarkaria, P. S. Kailasam – JJ.)

Q.15 Even though the Magistrate has complied with the mandatory requirements of Section 164 (2) Cr.P.C., a defect has been noticed to the effect that the Magistrate had failed to record the question as to whether there was any pressure on the accused to make the confession . Will not the said defect vitiate the confession ?

Ans. No. Where the mandatory requirements provided under Section 164(2) Cr.P.C. namely, explaining to the accused that he was not bound to make any statement and if a statement is made the same might be used against him, had been complied with, then the defect of failure by the Magistrate to record the question as to whether there was any pressure on the maker of the confession, will stand cured by Section 463 Cr.P.C., particularly when the Magistrate in the certificate appended to the statement has inter alia stated that he believed the confession to be voluntary. (Vide Ram Singh v. Sonia (2007) 3 SCC 1 = AIR 2007 SC 1218 – B. N. Agrawal, P. P. Naolekar – JJ.)

Part 1:  “Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-I]

Part 2: “Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-II]