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

Q.31 Should a victim or witness be sponsored by the Police for recording his or her “statement” under Section 164 (5) Cr.P.C. ?

Ans. Yes.   A person who is neither an accused nor sponsored by the Police has no locus standi to apply to the Magistrate to record his statement under Section 164 Cr.P.C. In other words, a witness or a victim cannot barge into a Magistrate’s Court and request the Magistrate to record his statement under Section 164 Cr.P.C., unless he is sponsored by the Police. This is because the Magistrate should not be burdened with the additional task of recording the statements of all and sundry who may knock at the door of the Court with a request to record their statements under Section 164 Cr.P.C. Otherwise, too many persons sponsored by culprits might throng before the portals of the Magistrates’ Courts for the purpose of creating records in advance to help the culprits. (Vide paras 19, 22, 23 and 24 of Jogendra Nahak v. State of Orissa (2000) 1 SCC 272 = AIR 1999 SC 2565 – 3 Judges – K. T. Thomas, D. P. Mohapatra,   U. C. Banerjee – JJ.)

Q.32 Does the Magistrate have the power to administer oath to a person before recording his “statement” under Section 164 (5) Cr.P.C. ?

Ans. Yes. While in the case of an accused whose “confession” is recorded under Section 164 Cr.P.C., no oath can be administered, in the case of a person whose “statement” is recorded under Section 164 Cr.P.C., the Magistrate has the power to administer oath to such person. (Vide Section 164 (5) Cr.P.C.)

Q.33 Should the statement of a person under Section 164 (5) Cr.P.C. be recorded in camera ?

Ans. Yes. Statements of persons including witnesses and non-confessional statements of accused persons should be recorded in camera. (Vide Varghese M.U. v. CBI, Cochin 2015 (3) KHC 417 (Kerala) – K. Abraham Mathew - J.)

NOTE BY VRK : This is done by way of protection to such persons so that the culprits may not come to know of the recording of such statements and, therefore, they will have no occasion to harbour any rancour or vengeance against such persons for giving such statements.

Q.34 Is any warning or caution necessary before recording the statement of a person under Section 164 (5) Cr.P.C. ?

Ans. No. For recording the “statement” under Section 164(5), the formalities and safeguards under sub-sections (2) to (4) of Section 164 Cr.P.C. need not be complied with by the Magistrate.

NOTE BY VRK: This is because what is recorded is only a “statement” and not a “confession”.

Q.35 In view of clause (c) of the 2^nd proviso to Section 154 (1) Cr.P.C., should a Magistrate necessarily record the 164 statement of a “rape victim” who is not suffering from any mental or physical disability ?

Ans. Yes. Clause (a) of sub-section (5A) of Section 164 Cr.P.C. enjoins that the Judicial Magistrate shall record the statement of the person against whom any of the offences specified therein has been committed. This includes a rape victim also. Such victims may or may not include persons who are mentally or physically disabled. The two provisos to clause (a) of sub-section (5A) and clause (b) of the said sub-section, are additional safeguards provided in the case of victims under disability. The obligation under Clause (c) of the 2nd proviso to Section 154 (1) Cr.P.C. is one of the mandatory duties of the Police officer (and not of the Magistrate) to get the statement of the victim recorded. The words used in the said clause (c) are "of the person" and not "of such person". Hence it can be treated as a general provision covering all victims including those with disability, as has been understood by the Apex Court in the decision to be adverted to hereafter. Even if Clause (c) referred to above covers only victims with disability, nothing wrong in casting a special duty on the police while dealing with the cases of victims with the aforesaid disability. The Supreme Court of India in State of Karnataka by Nonavinakere Police v. Shivanna @ Tarkari Shivanna (2014) 8 SCC 913 – Gyan Sudha Misra, V. Gopala Gowda – JJ, had issued the following directions to all Police stations in the country in the case of rape victims:-

(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.

      (iv) If there is any delay exceeding 24 hours in taking the victim to the Magistrate, the Investigating Officer should record the reasons for the same in the case diary and hand over a copy of the same to the Magistrate.

      (v) Medical Examination of the victim: S.164 ACrPC inserted by Act 25 of 2005 in CrPC imposes an obligation on the part of Investigating Officer to get the victim of the rape immediately medically examined. A copy of the report of such medical examination should be immediately handed over to the Magistrate who records the statement of the victim under S.164 CrPC.

  Thus, regardless of the question as to whether the rape victim is under a disability or not, recording of her 164 statement by a Judicial Magistrate is a must and such Magistrates cannot refuse to record the statement of a rape victim or a victim of the other offences specified in sub-section (5A) of Section 164 Cr.P.C., for the reason that she is not under any disability as aforesaid. No Judicial Magistrate in Kerala also can refuse to record the 164 statement of a rape victim on the ground that there is no enabling provision in the Kerala Criminal Rules of Practice. In fact, the said Rules do not prohibit any Magistrate from recording the 164 statement of such victims. Neither the Police nor the Magistrates are obliged to move the Chief Judicial Magistrate for requisitioning the services of a Magistrate for the purpose of recording the 164 statements of such victims in view of the mandatory directions issued by the Supreme Court of India.