Lecture 12

1. CRIMINAL PROCEDURAL CODE, 1973
CHAPTER XII
SECTION 164: Recording of confessions and statements.
BY ARUNDHATI BANERJEE

2. BARE ACT LANGUAGE EXPLAINED
(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.
FLOW CHART FOR EASY EXPLANATION
CONFESSION
JUDICIAL MAGISTRATE
METROPOLITIAN
MAGISTRATE
JURISDICTION IS
NOT
REGISTERED
DURING
INVESTIGATION
UNDER
CRPC OR
ANY OTHER
LAW
STATEMENT IS
RECORDED

3. SECTION 164 CONTINUED…
Provided that any confession or statement made under the 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.
IN EASY WORDS
The authority under the Act which enjoys the power of recording confessions and statements is only a
Judicial Magistrate. A police officer cannot exercise this power even if the authority to do so has been
conferred upon him outside the Code.

4. SECTION 164 CONTINUED…
(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 voluntarily.
DUTIES OF A MAGISTRATE
EXPLAIN – NOT BOUND TO ANSWER
EXPLAIN – CHARGES AGAINST YOU
REMOVE – POLICE PRESSURE
CHECK – VOLUNTARINESS
ASK - QUESTIONS

5. SECTION 164 CONTINUED…
(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.
FLOW CHART FOR EASY EXPLANATION
MAGISTRATE VOLUNTARY
REFUSAL
CONFESSION
JUDICIAL CUSTODY
NO POLICE
CUSTODY

6. SECTION 164 CONTINUED…
(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
RECORD OF EXAMINATION
OF ACCUSED
FLOW CHART FOR EASY EXPLANATION
BEFORE THE
SIGNATURE
MAGISTRATE MEMORANDUM ACKNOWLEDGEMENT
FOLLOWED
THE
PROCEEDINGS
SIGN AND
DATE

7. SECTION 164 CONTINUED…
(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 power to administer oath to the person
whose statement is recorded.
IN EASY WORDS
It only applies on any statement other than confession. Magistrate has the power to record an oath too.
Statements of a witness can be recorded by a magistrate in the manner in which evidence is generally
recorded i.e. as per Section 272 to 282 CrPC.

8. SECTION 164 CONTINUED…
(5A) (a) In cases punishable under section 326A, section 326B, section 354, section 354A, section 354B,
section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section
376DA, section 376DB, section 376E, or section 509 of 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.
FLOW CHART FOR EASY EXPLANATION
IN RAPE CASES
JUDICIAL
MAGISTRATE
RECORD STATEMENT
MANNER PRESCRIBED IN
SUB-SECTION 5

9. SECTION 164 CONTINUED…
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.
FLOW CHART FOR EASY EXPLANATION
IF A PERSON
TEMPORARILY
PERMANENTLY
MENTALLY OR
PHYSICALLY
DISABLED
MAGISTRATE ASSISTANCE
INTERPRETER
SPECIAL
EDUCATOR

10. SECTION 164 CONTINUED…
(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 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.
EXAMINATION-IN-CHIEF
CROSS EXAMINATION
RE-EXAMINATIONFLOW CHART FOR EASY EXPLANATION
STATEMENT RECORDED
UNDER
CLAUSE (a)
TEMORARILY
OR
PERMANENTLY
MENTALLY OR
PHYSICALLY
SHALL
BE
CONSIDERED A
STATEMENT
IN LIEU OF
EXAMINATION-
IN-CHIEF
SECTION 137 IEA,
1872
MAKER OF
STATEMENT
CROSS
EXAMINED

11. SECTION 164 CONTINUED…
(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.
FLOW CHART FOR EASY EXPLANATION
MAGISTRATE
RECORDS A
CONFESSION
SHALL
FORWARD
MAGISTRATE
CONDUCT
TRIAL

12. POINTS TO REMEMBER
 No executive Magistrate can record any confession.
 A police officer if given the role of a Magistrate cannot record a judicial confession.
 Magistrates who records confession cannot conduct the trial of that accused person. Here Rule against Bias
and Principle of Natural Justice is applied. The Magistrate can only be a witness of that case.
 No value of trial if the Magistrate has recorded the statement or confession.
 Recording of confession is done by accused or by someone who is presented by the police.
 The Magistrate has to check the voluntariness of the confession on the 2nd day as well. It happens when
confession is in continuation.
 Confession is never recorded on oath. It creates a pressure on the person.
 When the accused surrenders in the court he will be sent to the police to check his identity and then his
statement will be recorded as confession under Section 164.

13. POINTS TO REMEMBER CONTINUED…
 Confession can be recorded via audio visual also.
 An accused can add extra’s before the signature of the Magistrate.
TYPES OF CONFESSION
CONFESSION
JUDICIAL
CONFESSION
MAGISTRATE IS
EMPOWERED TO
RECORD CONFESSION
EVIDENTIARY
VALUE IS
MAX.
EXTRA
JUDICIAL
OTHER THAN
MAGISTRATE
RETRACTED
CONFESSION
CHANGES IN
CONFESSION
EVIDENTIARY
VALUE IS
MIN.

14. CASES RELATED TO THIS SECTION
NAZIR AHMAD vs. KING EMPEROR AIR 1936
The oral evidence by a Magistrate of a confession is inadmissible.
AJAY KUMAR PARMAR vs. STATE OF RAJASTHAN AIR 2013
The recording of the statement under Section is to be only of the persons produced by the police. Where, any
person appears before the magistrate independently of his own volition, the statement of that person recorded
without any attempt to identify is of no credence.
STATE OF U.P. vs. SINGHARA SINGH AIR 1964
If any Executive Magistrate or any other Magistrate not empowered under sub-section (1) records a confession
that records cannot be put in evidence.
JOGENDRA NAHAK vs. STATE OF ORISSA AIR 1999
A person who is neither an accused person nor sponsored by the investigating agency has been held to have no
locus standi to apply to the Magistrate to record his statement under this Section.
KEHAR SINGH CASE AIR 1989
Failure to convey the caution invalidates the confession and renders it in admissible in evidence.

15. CASES CONTINUED…
HEM RAJ vs. STATE OF AJMER AIR 1954
Where a confession is recorded after the commencement of inquiry or trial, it can still be used evidence, but
Section 164 would not relate to such a confession.
Section 164 does not mention the place and time of recording of a confession in open court and during court
hours unless there are exceptional reasons to the contrary.
CHANDRAN vs. STATE AIR 1978
For the exercise of jurisdiction to record confession under Section 164, it is a sine qua non that the Magistrate
must have a reason to believe that the confession is being voluntary made.
BADRI vs. STATE OF U.P. AIR 1973
The magistrate cannot merely sign a printed instruction supplied to him. This will be violative of this sub-
section.
SANATAN BADCHAT vs. THE STATE AIR 1952
Where a Magistrate while recording a confession did not specifically tell the accused that he was a Magistrate,
it was held that such a confession is inadmissible as being not in compliance with the strict formalities required
under this Section.

16. CASES CONTINUED…
STATE OF U.P. vs. SINGHARA SINGH AIR 1964
“….. A magistrate therefore, cannot in the course of investigation record a confession except in the manner
laid down in Section 164. If proof of the confession by other means was permissible, the whole provisions of
Section 164 including the safeguards contained in it for the protection of accused persons would be rendered
nugatory.”
DHANANJAYA REDDY vs. STATE OF KARNATAKA AIR 2001
Omission to comply with the mandatory provisions of Section 164(4) is likely to render the confessional
statement inadmissible. However, a mere failure to get the signature of the person making it may very
material if the making of such statement is not making of the statement itself is in controversy, the omission
to get the signature is fatal.
AKANMAN BORA vs. STATE OF ASSAM AIR 1988
The confession should be recorded in the manner provided for recording the statement of an accused and
not in the manner provided for recording of evidence by administering an oath. If it is so recorded, it loses
the character of a confessional statement in so far as the maker is concerned.

17. THANK YOU
PLEASE LIKE AND SUBSCRIBE