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

Q.16 If the accused expresses his unwillingness to confess, is there any duty on the part of the Magistrate to liberate the accused from Police custody ?

Ans. Yes. That is precisely what Section 164 (3) Cr.P.C. enjoins.

Q.17 Should the proceedings of the Magistrate recording the confession be in open Court and during Court hours ?

Ans. Yes. The Magistrate should record the confession only in open Court and during Court hours (Vide Ram Chandra v. State of U.P. AIR 1957 SC 381 = 1957 Cri.L.J. 559 – 3 Judges – B. Jagannadhadas, S. J. Imam, P. Govinda Menon – JJ.)

Q.18 What is the manner of recording the confession ?

Ans. Sub-section (4) of Section 164 Cr.P.C. mandates that a confession should be recorded in the manner provided by Section 281 Cr.P.C. It has to be signed by the person making the confession. The Magistrate has to make a memorandum as given in Section 164 (4) Cr.P.C. at the foot of the record to the following effect:-

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.

(Signed)AB

Magistrate”

Q.19 Should the record of confession be signed by the accused and the Magistrate ?

Ans. Yes. The record of confession shall be signed by the accused as provided under Section 164 (4) Cr.P.C. and by the Magistrate as provided under Section 281 (1) and (5) Cr.P.C.

The requirement of obtaining the signature of the person making the confession is mandatory and non-compliance renders the entire confessional statement inadmissible. But, such non-compliance may not be very material if the making of the confessional statement is not disputed by the person concerned. (Vide Dhanajaya Reddy v. State of Karnataka (2001) 4 SCC 9 = AIR 2001 SC 1512 – K. T. Thomas, R. P. Sethi – JJ.)

Non-compliance with 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 (vide Dara Singh v. Republic of India (2011) 2 SCC 490 – P. Sathasivam, Dr. B. S. Chauhan – JJ.)

NOTE BY VRK: The latter part of Section 29 of the Evidence Act also should not be lost sight of while appreciating a contention of non-compliance with Section 164 (2) Cr.P.C.

Q.20 What is the language in which the confession should be recorded ?

Ans. The confession shall be recorded in the language in which the accused is questioned or if that is not practicable, in the language of the Court. (Vide Section 281(3) Cr.P.C.)

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]

Part 3: “Confession” And “Statement” Under Section 164 CrPC- Questions & Answers By Justice V. Ramkumar [Part-III]