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

Q.6 Can an accused on his own accord make a confession without being sponsored by the Police ?

Ans. Yes. An accused himself can appear before a Judicial Magistrate for recording his confession. Such accused person is free to make a voluntary confession before the Magistrate and he need not be sponsored by the Police unlike in the case of a witness or victim. This is a Judge-made law. The only rider is that before recording the confession the Magistrate should be satisfied that the person who proposes to confess is an accused and that investigation against him is in progress. (Vide Mahabir Singh v. State of Haryana (2001) 7 SCC 148 = AIR 2001 SC 2503 – K. T. Thomas, R. P. Sethi - JJ; Jogendra Nahak and Others v . State of Orissa and Others - AIR 1999 S.C. 2565 = 2000 (1) SCC 272 – K. T. Thomas, D. P. Mohaptra, U. C. Banerjee - JJ; Ajay Kumar Parmar v. State of Rajasthan (2012) 12 SCC 406 = AIR 2013 SC 633 – Dr. B. S. Chauhan, F. M. Ibrahim Khalifulla - JJ).

Q.7 Should the accused be free from any Police or other extraneous influence ?

Ans. Yes. The Magistrate should be satisfied that the accused is not sponsored by the Police and is free from any Police or other extraneous influence.

The provisions of Section 164 Cr.P.C. must be complied with not only in form but also in essence. Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate’s Jurisdiction to record the confession and renders the confession unworthy of credence. At the time of recording the statement of the accused no Police or Police official shall be present in the open Court. The Magistrate should ask the accused as to why he wants to make a statement which will surely go against his interest in the trial. Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (Vide Rabindra Kumar Pal @ Dara Singh v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436 – P. Sathasivam, Dr. B. S. Chauhan – JJ.)

Section 24 of the Evidence Act lays down the obvious rule that a confession made under inducement, threat or promise becomes irrelevant in a criminal proceeding. The expression “appears” in Section 24 connotes that the Court need not go to the extent of holding that the threat etc has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the Court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a Police officer. Further, the confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the Court should eschew the confession from consideration. Recognising the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in Police custody, the Evidence Act has excluded the admissibility of a confession made to the Police officer (vide paras 27 and 29 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 – P. Venkatarama Reddy, P. P. Naolekar - JJ).

Recording of confession under Police influence should be avoided. (Vide Dara Singh alias Rabindra Kumar Pal v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436 - P. Sathasivam, Dr. B. S. Chauhan – JJ.)

If the confession is recorded while the accused is in Police custody and there are Police officersall around him and the recording is by a Police Officer on the dictation given by the Magistrate and it is not read over and explained to the accused, it can hardly be accepted as a voluntary confession. (Vide Shivarajan v. State 1959 KLT 167 – K. T. Koshi - CJI, P. Shankaran, P. T. Raman Nayar – JJ.)

The accused was produced from prolonged Police custody. But 15 to 30 minutes’ time alone was given to the accused for reflection before recording the confession. It was held that sufficient cooling off time was not given to the accused and, therefore, the confession could not be taken into consideration for recording the conviction against the accused. (Vide State of Rajasthan v. Ajit Singh (2008) 1 SCC 601 = 2008 Cri.L.J. 364.)

The Magistrate should take precautions to ensure that the Police influence, if any, is removed before recording a confession. The sooner it is made, the better. (vide H.P. Administration v. Shiv Devi AIR 1959 H.P. 3; Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri. L.J. 1014 – 3 Judges; Shankaria v. State of Rajasthan (1978) 3 SCC 435 = AIR 1978 SC 1248 – 3 Judges – S. B. Sinha, Harjit Singh Bedi – JJ.)

If marks of injuries are found on the person of the accused, the Magistrate should ask him as to how he received those injuries. (Vide Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 = 1957 Cri.L.J. 1014 -3 Judges – Jaganadhadas, S. B. Sinha, P. B. Gajendragadkar – JJ.)

Q.8 Is not a confession liable to be discredited merely because the accused is produced from the custody of the Police for recording his confession or that the Sub-jail from where the accused is produced is located adjacent to the Police station ?

Ans. No. Merely because a person is produced from Police custody before the Magistrate for recording his confession, such confession cannot be discredited. Taking into consideration the fact that there was an interval of about a month after the accused was removed from Police custody to judicial custody when his confession was recorded, the Supreme Court accepted the confession as voluntarily made. (Vide paras 19 and 20 of State of Maharashtra v. Damu (2000) 6 SCC 269 = AIR 2000 SC 1691 – K. T. Thomas, D. P. Mohapatra – JJ.)

Mere fact that the sub-jail in which the accused was interred, was located adjacent to the Police station is not sufficient to infer Police control over the accused. (Vide paras 19 and 20 of State of Maharashtra v. Damu (2000) 6 SCC 269 = AIR 2000 SC 1691. – K. T. Thomas, D. P. Mohapatra – JJ.)

NOTE BY VRK: One aspect to be borne in mind is that as per Section 26 of the Evidence Act a confession made while in Police custody is not bad if it is made in the immediate presence of a Magistrate.

Q.9 Is the accused to be warned against making the confession ?

Ans. Yes. Before recording the confession the Magistrate shall explain to the person making the confession that he is not bound to make a confession and that if he does so, his confession may be used as evidence against him.(vide Section 164(2) Cr.P.C.)

The above provision emphasises the need for warning and caution before recording a confession.

In this connection it is pertinent to note that as per Section 29 of the Evidence Act, a confession which is otherwise relevant does not become irrelevant merely because the person was not warned that he was not bound to make a confession or that if he does so, it may be used against him.

Failure to warn does not by itself necessarily render a confession inadmissible if it is otherwise proved to have been made voluntarily. (Vide Dagdu v. State of Maharashtra AIR 1977 SC 1579 – Y. V. Chandrachud, P. K. Goswami, P. N. Shinghal – JJ.)

The impact of Section 463 Cr.P.C. also should not be lost sight of in this connection.

Q.10 Should the Magistrate be satisfied about the voluntariness of the confession ?

Ans. The Magistrate shall not record the confession unless, after questioning the person making the confession, the Magistrate has reason to believe that it is being made voluntarily. (Vide Section 164 (2) Cr.P.C.)

Voluntariness of the confession being the foundation of a Magistrate’s jurisdiction to record the confession, it is imperative that the Magistrate should, before recording the confession, ascertain through intelligent questioning whether the statement is spontaneous and voluntary, or some influence or false impression has been at work to induce him to make the statement.

The Magistrate should disclose his identity to the accused so as to assure him that he is no longer in the hands of the Police. The accused should be told that he is before a Magistrate who is independent of the Police and he should be given the assurance of protection against any apprehended inducement, pressure, threat or oppression if he does not confess. (Vide Sanatan v. State AIR 1953 Orissa 149 – Panigrahi, Narasimham - JJ; ParamhansaJadab v. The State AIR 1964 Orissa 144 – R. Narasimham, R. Das - JJ)

The Magistrate should ensure the voluntary nature of the confession for which compliance of the provisions of sub-sections (2), (3) and (4) of Section 164 Cr.P.C. is mandatory. (Vide Dara Singh alias Rabindra Kumar Pal v. Republic of India (2011) 2 SCC 490 = AIR 2011 SC 1436 – P. Sathasivam, Dr. B. S. Chauhan – JJ.) But non-compliance of sub-section (2) of Section 164 Cr.P.C. need not necessarily render the confession bad in view of the latter part of Section 29 of the Evidence Act.

If the accused person who offers to make a confession is in Police custody, he should be removed from Police custody and should be sent to judicial custody. After recording the confession he must invariably be sent to judicial custody and should on no account be returned to Police custody.