Section 164 CrPC: Presence Of Advocate Not Mandatory When Confession Of Accused Before Magistrate Is Not Recorded By Audio-Video Means : SC [Read Judgment]

The Supreme Court has observed that it is not mandatory that a confession or statement under Section 164 of the Code of Criminal Procedure should necessarily be made in the presence of the advocate(s) except when such confessional statement is recorded with audio-video electronic means.

The bench was dealing with the submission of Senior Advocate Siddharth Luthra, who appeared for the review petitioner death convict Manoharan. He had contended that the absence of a counsel during proceedings before the Magistrate under section 164, CrPC has caused prejudice to the accused. Justice Surya Kant, speaking for the bench, observed:

What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with.

Referring to Section 164(1) CrPC, added with effect from 31.12.2009, the court said

"Section 164 of the Code thus does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means." 

Late Retraction By Accused Would Be Strong Presumption Of Voluntariness In Confession

The bench also observed that the retractions must be made by the accused as soon as possible, otherwise there would be a strong presumption of voluntariness in the confession

The confession, in the present case, was not challenged during stage of framing of charge or over the course of examination of forty-seven prosecution witnesses, but instead only partly disputed through a letter written in secret just before petitioner's examination under Section 313 of the Code. It is thus evident that such retraction at the fag-end of the trial, was not natural but rather meticulously formulated, perhaps as a part of defence strategy.

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