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Third Lecture CRPC : Position as to section 164

Section 164 : Power of a Judicial magistrate to record confession and statements , read with section 281 and 463 in Cr.PC , substantive law of this section is in evidence act , namely from section 24-29 . Definition of confession:

Pakala Narayanaswami v. Emperor, 66 Ind App 66 at p. 81: (AIR 1939 PC 47 at p. 52). Lord Atkin observed: " statement that contains self exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession." These observations received the approval of Supreme Court in Palvinder Kaur v. State of Punjab (1), 1953 SCR 94 at p. 104; (AIR 1952 SC 354 at p. 357). In State of U.P. v. Deoman Upadhyaya, 1961 (1) SCR 14 at p. 21: (AIR 1960 SC 1125 at pp. 1128-1129).

Confession must be made with animus confitendi (intention to confess) or if it does not amount to an admission of facts from which guilt is directly deducible.

Acid test which distinguishes a confession from an admission is that where a conviction can be based on the statement of confession alone , the statement under 163 (5) can only be used for corroboration and contradiction.

Confession / statements recorded under 164 may be either in course of an investigation or at anytime afterwards before inquiry or trial.

Supreme Court of India

Hem Raj vs The State Of Ajmer(And Connected ... on 17 March, 1954

Equivalent citations: 1954 AIR 462, 1954 SCR 380 A confession can be made -even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the court of the committing Magistrate and materials already in possession of the police may well be used for purposes of corroboration. The contention therefore that evidence in possession of the police before the confession was made, cannot be used to corroborate the confession, must be repelled.

Whether a confession recorded without legal aid to the accused will vitiate the trial or confession ?

Supreme Court of India

Md.Ajmal Md.Amir Kasab @Abu ... vs State Of Maharashtra on 29 August, 2012

Rationale behind the provision of the right to legal aid must be understood in the context of the Indian system of investigation. Unlike certain foreign jurisdictions, Indian procedural and evidence laws do not permit statements made to the police to be admissible, and only judicial confessions made to a magistrate in compliance with the provisions of Section 164 are admissible. The same position does not obtain in certain other jurisdictions, for example, the United States of America and the United Kingdom, where statements made to police officers are fully admissible and used as evidence against the accused. There are, therefore, consequences attached to statements made whilst in custody of the police in such jurisdictions; however, the same consequences do not attach under the Indian scheme of investigation of crimes.

But the failure to provide a lawyer to the accused at the pre-trial stage may not have the same consequence of vitiating the trial. It may have other consequences like making the delinquent magistrate liable to disciplinary proceedings, or giving the accused a right to claim compensation against the State for failing to provide him legal aid. But it would not vitiate the trial unless it is shown that failure to provide legal assistance at the pre-trial stage had resulted in some material prejudice to the accused in the course of the trial. That would have to be judged on the facts of each case. Does a separate statement of satisfaction is needed to be recorded? Supreme Court of India

Ammini And Others vs State Of Kerala on 18 November, 1997

There is no requirement that magistrate must make a separate statement of reasons for believing that the confession was made voluntarily. it was sufficient that his statement was recorded in memorandum Object of section 164 requiring signature of the accused :- Nazir Ahmad vs. King-Emperor (AIR 1936 PC 253), held, "that the provision that the Magistrate after recording confession should obtain the signature of the accused thereon is a salutary provision and has been specially provided for, for safeguarding the interest of the accused and, therefore, it is mandatory"

(Keep in mind : Oath cannot be administered in statement of confession.)

Crl. A. No. 17 of 2016

State of Sikkim versus Suren Rai (Sikkim High court)

When a Magistrate takes the chair to record the confession, the mandate of the law prescribes the Magistrate to ensure that the mind of the accused is free from any external pressure. While doing so, if the Magistrate goes on to administer oath upon the accused it cannot be said that the said Magistrate complied with the statutory requirement of the law to ensure the voluntariness of the confession.”

There could be stray cases in which the confessions had been recorded in full and complete compliance of the mandate of Section 164 and 281 CrPC and that the confession was voluntary and truthful and no oath may have been actually administered but inspite of the same the confession was recorded in the prescribed form for recording deposition or statement of witness giving an impression that oath was administered upon the accused. If the Court before which such document is tendered finds that it was so, Section 463