SEC-164(1) of the Criminal Procedure Code, 1973 states that “Any metropolitan magistrate or judicial magistrate may, whether or not he has jurisdiction in the case, record any confession or confession 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 no confession shall be recorded by the police officer on whom any power of magistrate has been conferred under any law for the time in force.
Here , the word “confession” is not taken in by the definition of “evidence” under Section 3 of the Indian Evidence Act, 1872 it can fall under the expression “matters” referred to in the definition of the word “proved” in Section 3 of the Evidence Act . Thus, “confession”, “notings” made by the presiding judge upon the local inspection, “material objects” etc are covered by the said expression “matters”. A confession is admissible without examining the magistrate who recorded the same. If the confession is not in conformity with law, even the examination of the magistrate will not cure the illegality.
EVIDENTIARY VALUE OF CONFESSION
Confession or statement under Section 164 CrPC is not a piece of substantive evidence and it’s only use(as in the case of a First Information statement under Section 154 of CrPC) is to contradict or corroborate the maker. The contradiction can be elicited by having recourse to Section 145 of the Evidence Act. Therefore, a confession is ordinarily admissible in evidence. It is a relevant fact, it can be acted upon . Under certain circumstances, it can form the basis for a conviction. A Confession, judicial or extra- judicial if found to have been voluntarily made can form the basis of conviction of the accused.
THE RELEVANCE OF RETRACTED CONFESSION
Merely, because the confession was retracted later, it does not mean that the confession was not voluntary in nature. The issue as to whether the accused was willing to give confession voluntarily or not is to be determined from his mental state at the time when he gave the confession.
It is not the law that once a confession is retracted the court should presume that the confession is tainted. A court may take into account the retracted confession but it must look for the reasons for the making of the confession as well as for it’s retraction and must weigh the two to determine whether the retraction affect the voluntary nature of the confession or not. If the court is satisfied that it was retracted on account of an afterthought or advise ,the retraction may not weigh with the court.
LEGAL STATUS UNDER THE EVIDENCE ACT OF A “CONFESSION” OR “STATEMENT” RECORDED UNDER SECTION 164 OF CrPC
It is a public document under Section 74 of the Evidence Act as was stated in the case- State of Madras v. G. Krishna MANU/TN/0163/1961.
Victim or witness to be sponsored by the police – A person who is neither an accused nor sponsored by the police has no locus standi to apply to the magistrate to record his statement under Section 164 CrPC. This is because the magistrate should not be burdened with the additional task of recording the statements of sundry.
COMPULSORY RECORDING OF STATEMENT IN CERTAIN CASES
In the case of certain erotic offences against women as enumerated in Section 164(5A)a there is a statutory obligation on the judicial magistrate to record the statement of the victim. If such victim happens to be temporarily or permanently mentally or physically disabled, the magistrate is obliged to take the assistance of an interpreter or special educator for recording the victim’s statement which has also be videographed. Sub-section (5A) (b) treats such statement to be “chief examination” dispensing with the need for further chief examination during trial.
In respect of those cases, covered by sub-section (5A) (b) of Section 164 of CrPC the statement of persons suffering from the disability referred to therein, will have to be treated as substantive evidence which, of course can attain the status of acceptable evidence only when an opportunity to test the same by cross-examination is given.
I am personally of the view that a similar privilege could have been extended in the matter of recording of confession by accused persons suffering from any such disability, since until proved guilty they are also person who are to be presumed to be in
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