Introduction
In legal proceedings, it's not always necessary to record a witness's statement under Section 164 of the CrPC. This is typically done to prevent the witness from changing his statement later or to protect its integrity. Such statements, when recorded shortly after an incident, are considered more credible. They can be used as evidence, and there's a presumption of their authenticity under Section 80 of the Indian Evidence Act, 1872.

However, it's important to note that a statement recorded under Section 164 CrPC cannot be used as direct evidence to establish the truth of the facts. Instead, it can be used to either support or challenge the statements of the witness who made it, in line with the provisions of Sections 145 and 157 of the Indian Evidence Act, 1872.

Sometimes, during an investigation, the Investigating Officer may find it necessary to record a witness's statement under Section 164 CrPC. This can happen when the witness has close ties to the accused or if the accused holds significant influence, which could lead to witnesses being pressured or influenced.

If the investigating officer believes that a witness might retract their statement during the trial, they can request the Magistrate to record the witness's statement under Section 164 CrPC. The Magistrate, upon receiving this request, is obliged to record the witness's statement.

Forms of Confession

Confessions can take different forms. When the accused admits their guilt directly in a court of law or to a Magistrate in court, it's called a "judicial confession." However, if the confession is made to someone outside the court, it's termed an "extra-judicial confession." This can include confessing to a police officer, another person, or even confessing to oneself. Extra-judicial confessions are often seen as weaker evidence.

In the case of Sahoo v. State of UP, the accused killed his daughter-in-law due to ongoing disputes and remarked that her death would end the daily quarrels. The court considered this statement a confession, highlighting that a confession doesn't always need to be communicated to someone else to be relevant.

In the case of Pakala Narayan Swami v. Emperor, the accused admitted guilt to the police but later refused to do so in court. The court ruled that this didn't amount to a confession because there was no direct admission of guilt in court.

Types of Confession

In legal proceedings, there are two types of confessions: inculpatory and exculpatory. An inculpatory confession is when the accused directly admits their guilt. On the other hand, an exculpatory confession is when the accused confesses in a way that suggests their innocence or clears them of wrongdoing. In court, only inculpatory confessions can be used as direct evidence. However, exculpatory confessions require additional supporting evidence to be admissible.

Who Records the Statement?

Any Metropolitan Magistrate or Judicial Magistrate, regardless of their jurisdiction in the case, can record a statement or confession made to them during an investigation or before the trial starts. However, a police officer who has the power of a Magistrate by law cannot record a confession.

The Magistrate's duty is to inform the person making the confession that they are not required to confess. If they do confess, the statement can be used as evidence against them in court. The confession must be voluntary and not made under any threat or influence. The confessions which are made involuntarily are not admissible in court.

If a person refuses to make a confession before it is recorded, they cannot be forced to do so, nor can they be arrested in police custody.

The confession must be signed by the person making it and recorded as per the provisions of Section 281 of the CrPC. The Magistrate must also make a memorandum stating that they explained the person's rights and that the confession was voluntarily made, read aloud, admitted by the person, and is a true account of their statement.

After recording the confession or statement, the Magistrate must send it to the authorized magistrate who will inquire into or try the case.

Important Points to Keep in Mind when Recording a Statement under Section 164 CrPC

Recording a statement under Section 164 of the Code of Criminal Procedure (CrPC) in India is a significant legal process, as it involves the recording of a statement or confession by a Magistrate. Here are some important points to keep in mind when recording a statement under Section 164 CrPC:

Voluntary and Without Coercion: Ensure that the statement is recorded voluntarily without any coercion, threat, or inducement. The Magistrate must satisfy themselves that the person giving the statement is doing so willingly.

Right to Legal Representation: Inform the person of their right to have a legal counsel present during the recording of the statement. If they choose to have a lawyer, provide them with an opportunity to consult with their lawyer before proceeding.

Language and Understanding: Ensure that the person giving the statement understands the language in which the statement is being recorded. If not, provide an interpreter if necessary. Confirm that the person understands the content and consequences of the statement.

Privacy and Confidentiality: Conduct the recording in a private and confidential setting to protect the privacy and safety of the person giving the statement.

Identification and Personal Details: Record the person's name, age, address, occupation, and other relevant personal details for identification purposes.

Recording in First Person: The statement should be recorded in the first person, meaning that the person giving the statement should speak for themselves.

Full Disclosure: Encourage the person to provide a full and truthful account of the events in question. Explain the importance of honesty during the recording.

Clarification of Doubts: Give the person an opportunity to clarify any doubts or ambiguities in their statement. Allow them to make corrections or additions as needed.

No Leading Questions: Avoid asking leading or suggestive questions that could influence the content of the statement. Questions should be open-ended and non-coercive.

Time and Date: Clearly mention the date and time when the statement is being recorded. This helps establish the timeline of events.

Signature and Thumb Impression: After the statement is recorded, have the person sign it as a confirmation of its accuracy. If the person is illiterate or unable to sign, obtain their thumb impression.

Magistrate's Certification: The Magistrate should certify on the statement that it was recorded voluntarily and without any coercion or inducement. This certification is crucial for the statement's admissibility in court.

Confidentiality of Statement: Maintain the confidentiality of the recorded statement until it is produced in court. It should not be disclosed to the public or media.

Witnesses: If possible, have independent witnesses present during the recording of the statement to corroborate its authenticity and voluntariness.

Video Recording: In some cases, it may be advisable to video record the statement to provide a clear record of the process and to prevent any allegations of coercion or misconduct.

Advising of Consequences: Explain the potential legal consequences of the statement, including how it may be used in court.

Rights Under Section 164: Inform the person that their statement will be admissible as evidence in court and that they have the right to retract or disown it later, if they wish.

No Police Presence: It is generally recommended that the police not be present during the recording to avoid any undue influence.

The statement recorded by a Magistrate from a witness under section 164 CrPC is not substantive evidence. It can be used as previous statement of witness. Such statement can be used by the accused to contradict the witness and by the prosecution with the permission of the court when a witness turns hostile. Sometimes the Magistrates record the statement of the accused under the above provision when the investigation officer gives a requisition.

These statements are generally called confessional statements of the accused. These statements can be taken into consideration by courts while judging the complicity of an accused in a crime.

Speaking generally, it would be reasonable to insist upon giving an accused at least 24 hours to decide whether or not he should make a confession.

What if the Witness Resiles from his Statement?

If the witnesses were to resile subsequently in court during the enquiry or trial from the earlier statements made on oath they can be charged under section 193 IPC. If the accused person on being arrested expresses his willingness to make confession his confession should be recorded under section 164 CrPC by a competent Magistrate. The Magistrate should not be the one who will eventually try the case or hold committal proceedings.

Such witnesses feel bound to their previous statements given on oath though in theory they have freedom to depart from their earlier version. The price of that freedom could be a prosecution for perjury. In important cases witnesses may be produced before a Magistrate and their statements got recorded by the Magistrate on oath under section 164 CrPC before the commencement of enquiry or trial.

Statement can be Recorded even without the Request of the Investigating Officer

A magistrate can record a statement under Section 164 of the CrPC, even if the police officer hasn't initiated it. Sometimes, the police might be hesitant to record a witness's statement. In such cases, the witness can directly approach the magistrate to request statement recording. Similarly, if the accused believes it's essential for justice, they can request the magistrate to record a witness's statement, provided the circumstances are exceptional and refusing to do so would result in a miscarriage of justice.

Although it's common for the investigating police officer to send witnesses to the magistrate to record their statements during an investigation, there's nothing in Section 164 of the CrPC that prevents the magistrate from recording a witness's statement in court. This can happen when a willing witness wants to contribute to the administration of justice, but the police have intentionally avoided recording their statement under Section 161 or Section 164 of the CrPC.

Court Judgments:
Accused making the confession under section 164 CrPC implicated co-accused as one of the participants in the crime, who committed dacoity and was involved in the offences, that confession could not be relied upon for convicting co-accused for two reasons:

1. There was no independent evidence to connect the co-accused with the crime and
2. the confession so made was exculpatory

It did not implicate the maker to the same extent as the other accused person against whom the confession was sought to be used as accused had confessed that he was standing outside. Such type of confession by the co-accused could not be used against another co-accused as he did not incriminate himself suggesting himself to be a simple spectator, could not give rise to a conclusion of guilt beyond reasonable doubt, and could not be trusted.

Statements recorded under Section 164 CrPC, though not substantial evidence, may be used to corroborate or contradict their maker. Harbans Lal v. State, AIR 1967 HP 10

Supreme Court in Ram Kishan Singh v. Harmit Kaur and others ((1972) 3 SCC 280) held that statement 164 CrPC is not substantial evidence and can only be used to corroborate or contradict a witness vis-a-vis. statement made in court. In other words, it can only be used as a previous statement and nothing more.

A Bench of the Madras High Court reiterated that statements recorded under Section 164 of the CrPC cannot be considered substantive evidence and cannot be relied upon for conviction. The Bench comprising Justices S Vaidyanathan and AD Jagadish Chandira said, "The law is well settled that a statement recorded under Section 164 of the CrPC is not material evidence... it can be used to corroborate the testimony of a witness and it can be used to contradict a witness.

One essential condition of the provisions of section 164 CrPC is that it must be done voluntarily and not under threat or coercion. Supreme Court in Aloke Nath Dutta & Ors. v. State of West Bengal (2007) 12 SCC 230 held thus:
"A confession is ordinarily admissible in evidence. It is a relevant fact. It can be acted upon. A confession may form the basis of a conviction from time to time under certain circumstances and in accordance with the law established by the Supreme Court. However, it is trite that for this purpose the court must satisfy itself about:

1. The voluntariness of the confession;
2. The truth of the confession;
3. Corroboration.

In the case of Mahabir Singh v. State of Haryana, the court emphasized that when a Magistrate fails to adequately explain to the accused that they are under no obligation to make a confession and that any such confession may be used as evidence against them, the resulting confession cannot be considered valid or admissible in court.

Similarly, the Andhra Pradesh High Court, in the case of Guruvindapalli Anna Rao v. State of Andhra Pradesh (2003 Crl. L.J. 3253), clarified that when a Magistrate records the statement of a witness under Section 164 of the Criminal Procedure Code (CrPC), it is not mandatory for the Sessions Judge to summon the Magistrate as a witness to prove the contents of the statement. This is because when a Magistrate, while performing their official duties, records a witness's statement under Section 164 CrPC, that statement is considered a "public document." As a result, it doesn't need further confirmation or validation.

• Confession in Open Court: If a confession is made in a courtroom with the door open, where police can see and hear, and the accused believes they are being overheard, it's often considered involuntary. This is especially true if the confession is retracted early.
   
• Recording by Magistrate: If the magistrate ensures the confession is voluntary and explains the consequences to the accused, but fails to keep a proper record of questions and answers, it's still valid. This is considered a formal, not substantial, defect.
   
• Retracted Confession: Even if a confession is retracted, a voluntary and truthful judicial confession can still lead to a conviction, even in a murder case.
   
• Police Custody: An under-trial prisoner isn't in police custody when taken from jail to the magistrate unless the escorting police officer is linked to the case's investigation.
   
• Time Gap Matters: If there's no significant time gap between taking the accused from police custody and recording a retracted confession, it may not be considered voluntary, and the conviction can't be upheld.
   
• Recording in Open Court: Confessions should be recorded in open court during court hours whenever possible. Statements made behind the accused's back aren't admissible during trial.
   
• Caution in Courts: Courts base convictions on confessional statements by ensuring they are entirely voluntary, truthful, and reliable. Corroboration on all points is essential.
   
• Remanding for Reflection: Magistrates sometimes give accused individuals a warning and a day or two in judicial custody to reflect before recording their confession.
   
• Proof of Voluntariness: Before a confession is admitted as evidence, the prosecution must prove that it was made freely, without inducement, and not as a result of any stimulus by a person in authority.

Evidentiary Value of the statement recorded under section 164 CrPC

Statements recorded under Section 164 of the Code of Criminal Procedure (CrPC) are a crucial form of evidence in the Indian legal system. Here's why they matter:

• Admissible Evidence: Section 164 statements are accepted as evidence in court proceedings. They hold weight and can be used to establish facts in a criminal case.
   
• Supporting Evidence: These statements can support other evidence in the case. They help strengthen the prosecution's case by providing a detailed and reliable account of events, especially when the person making the statement is a key witness or an accused.
   
• Presumed Truthfulness: Generally, these statements are presumed to be truthful and credible. The magistrate's certification of voluntariness adds to their credibility.
   
• Evidence Against the Accused: If an accused person makes self-incriminating statements during the recording, those statements can be used as evidence of their guilt.
   
• Cross-Examination: The defense can question the person making the statement in court, including its voluntariness and accuracy.
   
• Supporting Reluctant Witnesses: Section 164 statements are valuable when witnesses are hesitant to testify in court due to fear or intimidation. These recorded statements can be presented even if witnesses later become uncooperative.
   
• Right to Retract: The person making the statement can retract it during the trial, claiming duress or falsehood. The court considers such retractions and surrounding circumstances.
   
• Crucial in Complex Cases: In complex or high-profile cases where witness testimonies are vital, Section 164 statements can form the foundation of the prosecution's case, preserving essential evidence.
   
• Consistency Matters: Consistency between the Section 164 statement and subsequent court testimony bolsters the overall case. Any contradictions can be used by the defense to challenge the witness's credibility.

Conclusion
Statements recorded under Section 164 CrPC are considered valuable pieces of evidence in criminal proceedings in India. They are admissible, generally credible, and can play a crucial role in establishing facts, especially when witnesses or accused individuals provide crucial information during the recording. However, their evidentiary value can still be subject to scrutiny, cross-examination, and retraction during the trial, as the court seeks to ensure fairness and justice in the legal process.

References:

1. https://indiankanoon.org/doc/1813553/
2. https://www.newindianexpress.com/states/tamil-nadu/2022/jul/24/statement-under-section-164-of-crpc-not-enough-for-conviction-madras-hc-2480041.html#:
3. https://main.sci.gov.in/supremecourt/2020/10122/10122_2020_14_8_38359_Judgement_15-Sep-2022.pdf
4. https://www.scconline.com/blog/post/2021/04/12/section-164-crpc-2/
5. https://blog.ipleaders.in/evidentiary-value-confession/

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565