Recording of confession and statement u/s 164 Cr.P.C.: A comprehensive discussion with a practical approach

By-1.Vandana Singh Katiyar

Researcher & Advocate

2. Vijay Kumar Katiyar

Deputy Director

JTRI, UP, Lucknow

Introduction-

This provision has been inserted by the legislature in chapter XII of the code of criminal procedure, titled as information to the police and their power to investigate. provision u/s 164 provides about the recording of confession and statement of the accused and the witness It is crystal clear that all confessions are statements, but all statements are not a confession. This paper or article, it would be trying to discuss each and every aspect of the concept as well as the practice of section 164 Cr.P.C.

Bare provision with the amendment-

Before going into various aspects of the topic is pertinent to mention the amended provision of Section 164 Cr.P.C. The provision as per the amendment of 2013 is as follows-

164- Recording of confessions and statements-

1. Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence;

Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.

2. The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

3. If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.

4. Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession, and the Magistrate shall make a memorandum at the foot of such 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) A.B.

Magistrate”.

5. Any statement (other than a confession) made under Sub-Section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have the power to administer the oath to the person whose statement is so recorded.

(5A)1 —(a)- In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section1 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police;

Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement;

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.

(b)-. A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.

6. The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

Who is empowered for recording confessions or statements-

It is very important to discuss here who is empowered to record the confession and statement of the accused and witness. Subsection (1) of section- 164 clearly provides that any Metropolitan Magistrate of Judicial Magistrate may whether or not he has jurisdiction in the case to record the confession or statement of the accused as well as the victim or witness by the same. It means that the Executive Magistrate or Police commissioner having the power of Magistrate has no jurisdiction to record the confession or statements. see the case laws-

1- State of UP vs Singhana Singh , AIR 1964 SC 358

2- Nika Ram vs State of HP, AIR 1972 SC 2077

It is kept in mind that in the case where the recording of confession or statement is required such Magistrate even have no jurisdiction to try the particular case.

Now further question before us whether a presiding officer of JSCC Court, Civil court may record the confession or statement? The answer is affirmative because they all have vested inherent power of the Judicial Magistrate, the allocation of the work only for the administrative purpose, but in the case of the lady victim, the statement should be recorded by the lady Judicial Magistrate. Hon'ble Supreme Court in the case of State of Karnataka by Nonasinapare Police vs Shivanna @ Tarkari Shivanna SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011 judgment dated 25.04.2015 in this case Hon'ble Supreme Courts gives directions in this respect these areas below-9. On considering the same, we have accepted the suggestion offered by the learned counsel who appeared before us and hence exercising powers under Article 142 of the Constitution, we are pleased to issue interim directions in the form of mandamus to all the police stations in charge in the entire country to follow the direction of this Court which are as follows:

(i) Upon receipt of information relating to the commission of the 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 Section 164 Cr.P.C. A copy of the statement under Section 164 Cr.P.C. should be handed over to the Investigating Officer immediately with a specific direction that the contents of such statement under Section 164 Cr.P.C. should not be disclosed to any person till the charge sheet/report under Section 173 Cr.P.C. 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 learned 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: Section 164 A Cr.P.C.

inserted by Act 25 of 2005 in Cr.P.C. 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 Section 164 Cr.P.C.

Stage of the recording of the confessions or statements-

A further very important question arises before us when it is recorded. For better understanding or convenience this question may be divided into two parts one in respect of time and another in respect of person.

In respect of time subsection-(1) of section- 164 Cr.P.C. clearly said that confession or statement may be recorded during the course of an investigation or afterwards before the commencement of the inquiry or trial. Now the question before us about the commencement of the inquiry, means when it will be deemed that inquiry has commenced. the answer is when the magistrate takes cognizance under section 190 Cr.P.C. It also means that if a charge sheet has been submitted by the IO but Magistrate has not taken cognizance yet such confession or statement would be admissible in evidence it can not be discarded only on the ground that the charge sheet has been submitted .in the case of Raja Ram Vs. State reported in AIR 1966 All 192 had the occasion to consider the following question:

"Whether a confession recorded by a Magistrate under Section 164 of the Code of Criminal Procedure after the police had completed its investigation and submitted a charge-sheet, but before the Magisterial inquiry has commenced, is inadmissible in evidence."

16. The concurrent opinion of each of the three judges (comprising the full bench), on the above question, was in negative, and it was held that a statement under Section 164 Cr.P.C. may be recorded after the conclusion of the investigation up to before the commencement of the inquiry or the trial. The third opinion expressed by Justice D.P. Uniyal specifically dealt with the point in time when an inquiry may be treated to have commenced. That question was answered in the following words:

"24. Under the provisions of the Code the inquiry under Chapter XVIII commences when the Magistrate takes cognizance of the offence within the meaning of Section 190 (1). in the below-mentioned case laws Hon'ble Supreme court and Allahabad High Court retreated the principle propounded in the above-mentioned case law-

1-Nandini Jadaun vs state of UP, Case No-29654/2018 judgment dated 29.09.2018 All.

2-Nafeesa Vs. State of U.P. and Others 2015 (5) ADJ 648.All.

3- Ajay Kumar Parmar vs State of Rajasthan, judgment dated 27.09.2012 SC

4- Jogendra Nahak & Others Vs. State of Orissa & Others, Judgment dated 04.08.1999 SC

5- Mahabir Singh vs State of Haryana Criminal appeal No-471/1998 Judgment dated 26.07.2001

SC.

The situation would be different if a charge sheet has been filed under section 173 (8) Cr.P.C. It means that even though the charge sheet has been submitted by the IO but further investigation is going on, in this case, confession or statement may be recorded because it comes in the purview of sec 164 (1) Cr.P.C.

Now the question before us in respect of person the confession or statement when would be recorded. when we talk about a person then it appears in my mind that it may be IO, or it may be Accused or victim or witness. After the plain reading of section 164, it is not clear whether any sponsorship of IO is required or not for recording the confession or statement. In the amendment of 2013 sub-clause 5A has inserted in section -164 and this cast mandatory duty upon the Magistrate that " In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, section 376A, section1 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB, section 376E or section 509 of the Indian Penal Code, the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police;

But above the newly added provisions and old provisions are also not able to clarify the controversy in this regard that the sponsorship of IO for the recording of the confession or statement is mandatory or the victim or witness or accused may approach to Magistrate for the same. Now, After the pronouncement of the Hon'ble Supreme court in 1999 and in later years, it has been established that except for the confession of the accused no statement has been recorded by the Magistrate without the sponsorship of the IO. It means that the confession of the accused may be recorded by the Magistrate at the request of the Accused, but the rule of precaution is required here because recording a confession is the discretion of the Magistrate, if Magistrate is of opinion that confession should be recorded before going to further proceed report in this respect should be called from the police station concerned because by which identity of the Accused could be established and it could be made assured that investigation is going on. For a proper understanding see the below pronouncement and their relevant paras-

Jogendra Nahak & Others Vs. State of Orissa & Others, Judgment dated 04.08.1999 SC

If a magistrate has the power to record statements of any person under Section 164 of the Code, even without the investigating officer moving for it, then there is no good reason to limit the power to exceptional cases. We are unable to draw up a dividing line between witnesses whose statements are liable to be recorded by the magistrate on being approached for that purpose and those not to be recorded. The contention that there may be instances when the investigating officer would be disinclined to record statements of willing witnesses and therefore such witnesses must have a remedy to have their version regarding a case put on record, is no answer to the question of whether any intending witness can straightaway approach a magistrate for recording his statement under Section 164 of the Code. Even for such witnesses provisions are available in law, e.g. the accused can cite them as defence witnesses during the trial or the court can be requested to summon them under Section 311 of the Code. When such remedies are available to witnesses (who may be sidelined by the investigating officers) we do not find any special reason why the magistrate should 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 of the Code.

On the other hand, if the door is opened for such persons to get in and if the magistrates are put under the obligation to record their statements, then too many persons sponsored by culprits might throng before the portals of the magistrate courts for the purpose of creating a record in advance for the purpose of helping the culprits. In the present case, one of the arguments advanced by the accused regarding the grant of bail to them was based on the statements of the four appellants recorded by the magistrate under Section 164 of the Code. It is not part of the investigation to open up such a vista nor can such a step be deemed necessary for the administration of justice.

Thus, on consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to the evidence being adduced during the trial, if any of the parties require it.

Mahabir Singh vs State of Haryana, AIR 2001 SC 2503

The sub-section makes it clear that the power of the Magistrate to record any confession or statement made to him could be exercised only in the course of an investigation under Chapter XII of the Code. The section is intended to take care of confessional as well as non-confessional statements. Confession could be made only by one who is either an accused or suspected to be an accused of a crime. Sub-sections (2), (3), and (4) are intended to cover confessions alone, dehors non-confessional statements whereas sub-section (5) are intended to cover such statements. A three-Judge Bench of this Court in Jogendra Nahak and ors. vs. State of Orissa and ors. {2000 (1) SCC 272} has held that so far as statements (other than confession) are concerned they cannot be recorded by a Magistrate unless the person (who makes such statement) was produced or sponsored by investigating officer. But the Bench has distinguished that aspect from the confession recording for which the following observations have been specifically made:

There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is, in fact, an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused.

We have no doubt that an accused person can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be in the course of an investigation under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the court and demands the Magistrate to record his confession as he has committed a cognizable offence, the course open to the Magistrate is to inform the police about it. The police in turn have to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding the recording of his confession is concerned in such a case. Otherwise, the court of a Magistrate is not a place into which all and sundry can gatecrash and demand the Magistrate to record whatever he says as self-incriminatory.

Ajay Kumar Parmar vs State of Rajasthan, judgment dated 27.09.2012 SC

24. The aforesaid discussion leads to the following inferences: I. In respect of an incident of rape, an FIR was lodged. The Dy.S.P. recorded the statement of the prosecutrix, wherein she narrated the facts alleging rape against the appellant. II. The prosecutrix, appeared before the Chief Judicial Magistrate, Sirohi, on 9.4.1997 and lodged a complaint, stating that the police were not investigating the case properly. She filed an application that her statement is recorded under Section 164 Cr.P.C.

III. The prosecutrix had signed the said application. It was also signed by her lawyer. However, she was not identified by anyone.

IV. There is nothing on record to show with whom she had appeared before the Court.

V. From the signatures on the FIR and Medical Report, it appears that she is not an educated person and can hardly form her own signatures.

VI. Thus, it leads to suspicion regarding how an 18-year-old, who is an illiterate rustic villager, reached the court and how she knew that her statement could be recorded by the Magistrate. VII. More so, she appeared before the Chief Judicial Magistrate, Sirohi, and not before the area Magistrate at Sheoganj. VIII. The Chief Judicial Magistrate on, directing the Judicial Magistrate, Sheoganj, to record her statement.

IX. The prosecutrix appeared before the Judicial Magistrate, Sheoganj, at a far distance from Sirohi, where she originally went, on 9.4.1997 itself, and her statement under Section 164 Cr.P.C. was recorded on 10.4.1997 as on 9.4.1997 since the public prosecutor could not produce the Case Diary. X. Signature of the prosecutrix on the papers before the Chief Judicial Magistrate, Sirohi, and Judicial Magistrate, Sheoganj, do not tally with the signatures on the FIR and Medical Report. There is the apparent dissimilarity between the same, which creates suspicion.

XI. After completing the investigation, a charge sheet was filed before the Judicial Magistrate, Sheoganj, on 20.3.1998. XII. The Judicial Magistrate, Sheoganj, vide order dated 25.3.1998, refused to take cognizance of the offences on the basis of the statement of the prosecutrix, recorded under Section 164 Cr.P.C. The said court erred in not taking cognizance of this count as the said statement could not be relied upon.

XIII. The revisional court as well as the High Court have rightly held that the statement under Section 164 Cr.P.C. had not been recorded correctly. The said courts have rightly set aside the order of the Judicial Magistrate, Sheoganj, dated 25.3.1998, not taking the cognizance of the offence.

XIV. There is no provision analogous to Section 207-A of the old Cr.P.C. The Judicial Magistrate, Sheoganj, should have committed the case to the Sessions court as the said application could be entertained only by the Sessions Court. More so, it was not permissible for the court to examine the weight of defence evidence at that stage. Thus, the order is insignificant and inconsequential being without jurisdiction.

Nandini Jadaun vs state of UP, Case No-29654/2018 judgment dated 29.09.2018 All.

25. Thus, on a consideration of various aspects, we are disinclined to interpret Section 164(1) of the Code as empowering a magistrate to record the statement of a person unsponsored by the investigating agency. The High Court has rightly disallowed the statements of the four appellants to remain on record in this case. Of course, the said course will be without prejudice to their evidence being adduced during the trial, if any of the parties require it."

(emphasis supplied)

13. Further, reliance has been placed on a decision of this Court in the case of Nafeesa Vs. State of U.P. and Others reported in 2015 (5) ADJ 648 wherein following the decision in the case of Jogendra Nahak & Others Vs. State of Orissa & Others (supra), it was observed as under:

"1. The question raised by way of this petition is as to whether a witness, of his own, has the right to approach a Magistrate to record his statement under Section 164 Cr.P.C.; and whether such Magistrate is under a legal obligation to record the statement of such witness under Section 164 Cr.P.C. when investigation in a criminal offence is going on?

12. Considering the law laid down by the Hon ko'ble Supreme Court of India, and extracted hereinabove, it becomes clear that a Magistrate cannot take note of an individual approaching him directly with a prayer that his/ her statement may be recorded in connection with some occurrence involving a criminal offence. If liberty is given to anybody, and everybody, to approach a Magistrate for the recording of statement under Section 164 Cr.P.C. in connection with an occurrence involving criminal offence, and if Magistrates are put under an obligation to record their statement, there is every likelihood that persons sponsored by accused/ culprits might be asked to approach the court of the Magistrate for creating record/ evidence in defence with the purpose to help an accused/benefactor. If such a provision is made by way of giving liberty to a person unsponsored by the investigating agency to give a statement under Section 164 Cr.P.C., the entire investigation process would be derailed.

13. In the opinion of this Court, the investigation is a searching inquiry for ascertaining facts; detailed or careful examination. Such Investigation is to be conducted by an investigating agency. In case persons individually are permitted to create "evidence in the process of investigation", the process of investigation would interfere.

15. Considering the above it becomes illusory and apparent that only a police officer or an investigator can sponsor a witness to a Magistrate for the recording of a statement under Section 164 Cr.P.C."

(emphasis supplied)

14. Other than the confessional statement by an accused person another category of cases where a statement may be recorded under section 164 Cr.P.C. is of persons covered under sub-section 5A of that section. Clearly, such is not the case before us.

15. Having considered the arguments so advanced by learned counsel for the parties, it is first to be noted that a Full Bench of this Court in the case of Raja Ram Vs. The state reported in AIR 1966 All 192 had the occasion to consider the following question:

"24. Under the provisions of the Code, the inquiry under Chapter XVIII commences when the Magistrate takes cognizance of the offence within the meaning of Section 190 (1).

Another discussion is also prevalent in the modern era that in the purview of sub-section- 5A of section 164 statement of the victim may be recorded without the sponsorship of the IO, but my opinion is different upon this point because section 164 comes within the chapter XII and the title of the chapter is information to the police and their power to investigate. it means that IO has played a pivotal role in this chapter and another reason is that there is no clear-cut pronouncement on this point.

The procedure of recording confession-

Section -164 (4) gives a mandate that confession could be recorded according to the procedure prescribed in Sec 281 Cr.P.C. In the case of Ram Chandra vs State, (1956) All 236 Hon'ble Allahabad High Court held that a Magistrate has the discretion to record or not to record a confession, if he elects to record it, this section requires him to comply with four provisions-

(1) It should be recorded and signed in the manner provided in sec- 281 and then forwarded to the Magistrate concerned.

(2) He should give a statutory warning that the Accused is not bound to make a confession.

(3) He should be first satisfied that it is being made voluntarily.

(4) He should add a memorandum at the foot of the confession.

It must be kept in mind that an oath is not required for the recording of confession, But it is also kept in mind that recording of the statement under sec-161 is condition precedent for the recording of the statement u/s 164. It has been held in the case of Amir Hussain vs the State of Assam, (2004) AIC 942.

One more thing is also kept in mind if confession is recorded through audio-video mode then it must be recorded in the presence of the Advocate of the Accused.

The procedure of recording statements-

All confessions are statements but all statements are not confessions. It means that it includes a statement of the Victim, statement of Witness, statement recording during the identification parade, and statement of the Accused not amounting to confession which is relevant u/s 17 to 21 of the Indian Evidence Act, 1872. Calcutta High Court in the case of Legal Remembrancer vs Lalit Mohan Singh Roy, (1921) ILR 49 Call. held that the word statement is not limited to a statement by a witness, but includes that the statement made by the accused not amounting to a confession.

the first very important thing is that it should be recorded in the manner prescribed under sec 164 (5) of the Cr.P.C. It means that the oath shall be administered and recorded like a recording of evidence, it may be in audio-video mode. but when the statement is recorded under sub-sec - 5A then Magistrate shall record the statement of the person against whom such offence has been committed as soon as the commission of the offence is brought to the notice of the police.

The second very important thing is that in the case of the lady victim, the statement should be recorded by the lady judicial Magistrate if the lady Magistrate is not available then by the male Judicial magistrate in the presence of lady staff if possible. But it must be born in the mind in case of POCSO matters it should be recorded in the manner prescribed in sec-25 of the POCSO Act. In simple terms, it should be recorded in the presence of her parent/ support person.

The third important thing is that preferably statement should be recorded in the language of the victim, if the language of the victim is another then it should be recorded in the language of the court and it will have to make understood by the witness and put signed by the Magistrate as well as the victim.

The fourth thing is that identity of the victim must be assured by the magistrate it can be done with the help of the IO.

After recording the statement it shall be shielded properly and one copy would be provided to the IO with directions to keep it confidently

Nature of the confession or statement recorded u/s 164 and whether Magistrate can be summoned for proving the statement-

Under Sec-80 of the Evidence Act provides that a court is bound to presume that a statement or confession of an accused person or victim, taken with accordance with law and purporting to be signed by any Judge or Magistrate, is genuine and that the certificate or note as to the circumstances under which it was taking purporting to be made by the person singing it is true and that such statement or confession was duly taken. It is well established that the nature of the confession or statement under this section is a public document, it need not be proved before the court by Magistrate. it means that a Magistrate can not be summoned generally for the proving of confession or statement before courts see the case laws-

1- Guruvindapali Anna Rao vs the State of AP, (2003) Crimes 72.

2- Mona Rajan Sil vs state, 2008 Cr.L.J. 4719 Call.

3 Mohd Yaseen vs State of Uttar Pradesh, Criminal Misc. writ Application No. 1229 of 2013 | DOJ 18-05-2016

4-CBI thru S.P. New Delhi vs The state of UP & Another, case No-770/2015 DOJ 20.12.2020 Allahabad.

5. Kashmira Singh vs the State of MP, air 1952 SC 159.

Recording of confession in jail-

If the confession of the Accused has been recorded in the jail then such kind of confession is improper and not admissible in evidence see the case law-

Devilal vs State of Ajmer, AIR 1954 SC 462.

Whether Confession can be recorded in Magistrate's Chamber-

A confession can be discarded merely on the ground that it was recorded not in the open court but in the chamber see the case law-

Abed Ali Jamadar vs State,1988 Cr.L.J. 354 Call.

Whether the second statement can be recorded-
It is well established that the second statement of the victim can not be recorded as a general principle in respect of the same incident but if it is in addition to the previous statement then it may be recorded with the request of the IO. See the below case law-

Nafeesa vs State of UP & others 2015 (5) ADJ 648 Allahabad.

Whether a copy of

the statement can

be issued to other

than IO -

It is well established that even though the statement recorded under this section is a public document. the various High courts including Hon'ble Allahabad High Court it has propounded that a copy of the statement can be issued after getting nominal charges. In 2015 Hon'ble Supreme court in the case Karnataka by Nonasinapare Police vs Shivanna @ Tarkari Shivanna SPECIAL LEAVE PETITION (CRL.) NO. 5073/2011 judgment dated 25.04.2015 held that a copy of the state can not be given to the accused or anybody except IO till the stage of 207 Cr.P.C. In 2020 the Hon'ble Supreme Court retreated the principle which has been enunciated in the above case law in the case of Miss "A" vs State of Uttar Pradesh CRIMINAL APPEAL NO.659 OF 2020 (Arising out of Special Leave Petition (Crl.) No.10401 of 2019) judgment dated 08.10.2020 known as Chinmayanand case Hon'ble Supreme Court held that no person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge-sheet is filed. The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before. Recently Hon'ble Supreme Court in the case of XYZ vs M. Mahender Reddy and others, 2022 LiveLaw (SC) 899 DOJ 01.11.2022, After making reliance on the above pronouncements and said that the rape victims statement recorded under Section 164 Cr.P.C. should not be disclosed to any person (including accused) till charge sheet/final report is filed. Hon'ble Supreme Court has directed the competent authority for appropriate modifications/amendments made to the criminal practice or trial rules.

Whether dying declaration can be deemed to be the statement u/s 164 Cr.P.C.-

It is well established that when any dying declaration has been recorded but the victim survived then such statement of the victim would be relevant under section-164 even though oath has not been administered in this case. It has been recognized by the Hon'ble Supreme Court in the case of State of UP vs Veer Singh and others, criminal appeal No-727-729 of 1998 Judgment dated 28.04.2004. It is trite law that when the maker of purported dying declaration survives the same is not stated under Section 32 of the Indian Evidence Act, 1872 (for short the 'Evidence Act') but is a statement in terms of Section 164 of the Code. It can be used under Section 157 of the Evidence Act for the purpose of corroboration and under Section 145 for the purpose of contradiction. This position was highlighted in Ramprasad v. State of Maharashtra (1999 (5) SCC 30), Sunil Kumar & Ors. v. State of Madhya Pradesh (JT 1997 (2) SC 1), and Gentela Vijayavardhan Rao v. the State of A.P. (1996 (6) Supreme.

Evidentiary value of

the confession/

Statement -

It is well established that confession and statement recorded under this section are not substantive pieces of evidence. but confession or statement is relevant and admissible in evidence, but they can use for corroboration or purpose of contradiction u/s 145 and 157 Indian Evidence Act. see the case law-

1- Ram Kishan Singh vs Harmit Kaur, 1972, 3 SCC 280.

2- Tulsi Singh vs the State of Punjab, SC Judgment dated 07.08.1996.

3- Kashmira Singh vs State of MP, AIR 1952 SC 159.

4- Baij Nath Singh vs the State of Bihar,2010 (70) ACC 11 SC.

5- Utpal Das vs State of WB, AIR 2010 SC 1894.

6- State of Karnataka vs P. Ravi Kumar,(2018) 9 SCC 614.

It also inculcates that a retracted confession can not be acted upon unless it is corroborated otherwise. see the Caselaw-

Parmanand Pegu vs State of Maharashtra, AIR 2004 SC 4197.

It must also inculcate that statement of co-accused under this section can not be treated as evidence for deciding to proceed against another accused, especially when the statement is exculpatory in nature see the Caselaw-

State of Tamilnadu vs J. Jayalalitha, AIR 2000 SC1589.

Conclusion-

It is well established that statement recorded by IO u/s 161 has no evidentiary value in respect of trial, it can use only for the purpose of contradiction. but confession or statement is a weak kind of evidence that can use only for the purpose of corroboration as well as a contradiction.

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judges helpline//Vandana Singh katiyar

Friday, December 25, 2020

Recording of confession and statement u/s 164 Cr.P.C.: A comprehensive discussion with practical approach