Report No. 37
461. Section 164(1).-
The power to record statements as well as confession under section 164(1) should in our opinion be given to Judicial Magistrates only.
In Punjab,1 the power is vested exclusively in Judicial Magistrates. So also in Madras.2 In Bombay3 (and in the Bengal Bill),4 the power is concurrent.
1. Section 164, as amended by the Punjab Amendment.
2. Government of Madras, G.O.Ms. No. 2304 dated the 24th September, 1952, para. 21(3) and Schedule item 25.
3. Section 164, as amended by the Bombay Amendment.
4. First Schedule to the Code, as inserted by the West Bengal Separation of Judicial and Executive Functions Bill, 1967 (August 1967).
462. In our view, the act of recording a confession under this section is a solemn act with high responsibility, and it cannot be vested in an Executive Magistrate without prejudice to the principle of separation enjoined by Article 50 of the Constitution. A confession is a weighty piece of evidence, and its utility depends very much, upon the question whether adequate safeguards to ensure that the confession was voluntary and properly recorded had been taken at the time when the confession was recorded. All this may be expected only from persons who have got not only the experience but also the frame of mind of a Judge.
463. It may be said, that so far as non-confessional statements are concerned, it matters not much whether it is recorded by a Judicial officer or an executive officer. But whether a statement amounts to a confession or not is itself a legal question, which cannot always be determined before the statement is actually recorded so that it is not possible to send the person to an Executive or judicial Magistrate having regard to the nature of the statement proposed to be made. Moreover, in our opinion, it would be an impracticable proposal to divide the power under section 164 into two categories,-confessions and other statements, and to divide the function between the two classes of Magistrates.
We, therefore, recommend, that the power should be confined to Judicial Magistrates alone.
464. The power under section 164 may be given to
(i) Presidency Magistrates;
(ii) Judicial First Class Magistrates;
(iii) Judicial Second Class Magistrates specially empowered.
Since the power is to be confined to Judicial Magistrates, it is not necessary to retain the words "not being a police officer" in section 164(1). These words may be omitted.
465. Section 164 and exclusion of police.-
It has been suggested,1 that the police should be excluded while recording the statements of witnesses under section 164. In our opinion, a statutory provision on the subject is not necessary.
1. F 27(3)/55-Judl. II (Home Ministry File), Appendix I, Item No. 30 (Comment of the Administration of a Union Territory on the suggestion of the I.G.P. of a State Additional point made in the comment).
466. Section 164(2) and administration of oath.-
The position regarding administration of oath to a witness whose statement is recorded under section 164 has been considered by us. The conflict of decisions on the subject has been discussed in detail in our Report on the Oaths Act.1 The question that now arises is, what ought to be the law. On the one hand, if a witness whose statement is recorded is to be encouraged to speak the truth, an oath is desirable.
On the other hand, our attention was drawn to the view expressed by Mr. L.C. Crump2 (while the Bill which led to the 1923 Amendment was under consideration). Mr. Crump had pointed out, that, in favour of the view that the witness who is examined under section 164 should not be liable for perjury, was the consideration that the police would (if he is to be made so liable) be able to compel a person to adhere to a statement which he may have made at their instance under compulsion, on pain of prosecution for perjury. We however think, that on principle there is something to be said for recording the statement on oath, to lend it some sanctity. We recommend an amendment of section 164 to provide that the statements of witnesses should be on oath.
1. 28th Report (Oaths Act).
2. Mr. Crump was a District & Sessions Judge at that time. He later became a Judge of the Bombay High Court.
467. Section 164 and confessions made before investigations.-
We have received a suggestion from a High Court (received through the State Government)1 to amend section 164 so as to empower a Magistrate to record a confession made before commencement of the investigation. The suggestion is that the words "made to him in the course of an investigation under this Chapter" and the words "or at any time afterwards" be omitted. The object is to empower a Magistrate to record a confession made before the investigation has started.
The suggestion has been made in view of the fact that very often the accused, after committing the offence, runs straight to the Magistrate and surrenders with the blood stained weapon etc. and tells him what he has done. A cleaner kind of evidence than this cannot (it is stated) be conceived. Yet the testimony of the Magistrate is inadmissible by reason of the words occurring in the section. We felt, that such a provision would throw on the Magistrates an unnecessary burden, and would also not fit in with the scheme of Chapter 14, which is confined to steps taken during investigation. No change is, therefore, recommended on this point.
1. F. 3(2)/5S-L.C., Pt. III, S. No. 52.
468. Section 164(3)-suggestion of a High Court Judge.-
With reference to section 164(3), we should note the view expressed by a High Court Judge, in his suggestion,1 which is as follows:2
"Section 164. The provisions in section 164 regarding the magistrate's being satisfied, before recording the confession, that it is being made voluntarily and about his certifying that the confession was made voluntarily are useless and do not serve any purpose in practice. If an accused is prepared to make a confession, there is hardly any magistrate who makes an honest effort to find out whether he is making the confession voluntarily or not. There is hardly any magistrate who might have refused to record the confession of an accused person if he was prepared to make one, on the ground that he was not satisfied that it was being made voluntarily.
Ordinarily, a magistrate puts certain stereotyped questions without realising that the accused might have been tutored by the police to give particular answers to those questions and has no compunction in proceeding to record the confession, in certifying at the end of the confession that he satisfied himself "that it was made voluntarily and in deposing on oath in court that he had satisfied himself about its voluntary nature. The law should be practical, and if a certain provision cannot be enforced in practice it should not be allowed to remain on the statute book."
We have given our anxious consideration to this suggestion. We are, however, afraid that the defect lies neither in the law not in any inherent unenforceability of the law, but in non-compliance therewith. The situation described in the suggestion, wherever it exists, is due to the fact that the law is complied with only in its letter, and not in its spirit.
If the provision is deleted, the question will again arise whether the confession was voluntary. The provisions of section 164(3), if administered in the proper spirit, are most salutary. They should "not degenerate into idle formalities", but that can be secured by vigilant supervision. The deletion of the sub-section, we venture to state, would be far more detrimental to the interests of justice than the existing position. We have, before coming to this conclusion, examined some of the important judicial decisions relevant to the subject of recording of confessions particularly i.e., the safeguards to be observed.3
1. F. 3(2)/55-L.C., Pt. H, S. No. 33(a).
2. The point relates to section 164(3).
3. For detailed discussion, see Appendix 14.
469. Section 164 and Identifications.-
It has been suggested,1 that a provision should be inserted to the effect that a Magistrate may, at the request of the investigation officer, hold an identification of persons or property and take finger prints etc., of the suspected person, and that the record by the Magistrate of these proceedings should be admissible in evidence.
We think, that, so far as identification is concerned, section 164 is enough.
1. No. F. 3(2)/55-L.C., Pt. I, S. No. 72 (Suggestion of a District Prosecutor).
470. Section 164 and retracted confession.-
With reference to section 164, the following suggestion1 has been made by a State Government.
"The rule of prudence requiring corroboration of retracted confessions should be given statutory recognition."
We studied in detail the position on the subject. The following broad propositions can be gathered from the case law-
(a) The rule in question is one of prudence. If the retracted confession is voluntary, it can still be made the basis of a conviction.2-3
As has been observed by the Privy Council4-
Retraction of a confession by an accused is a common phenomenon in India. The weight to be attached to it must depend upon whether the Court thinks that it was induced by the consideration that the confession was untrue, or by realization that it had failed to secure the benefits the hope of which inspired it."
(b) It cannot be laid down as an inflexible rule of practice or prudence.5
(c) It may also be noted, that as to the burden of proof, Our flaw differs slightly. As was observed in a Bombay case,6-7 it is true that in England. when a doubt arises as to the admissibility of a confession, the Court has to decide whether it has been proved affirmatively to be free and voluntary. This is the law laid down in the Queen v. Thompson, (1893) 2 QB 12. by Mr. Justice Cave with the concurrence of Lord Coleridge, C.J., and Hawkins, Day, and Wills JJ.
In India the law on the subject is contained in section 24 of the Evidence Act.
The section must be fairly construed according to its language, and if this is done it seems to us impossible to contend that the law in India is identical with the law in England as explained in the Queen v. Thompson, (1893) 2 QB 12 and the cases therein referred to. The question which a Court has to decide when determining on the admissibility of a confession is whether it appears to the Court to have been induced by the means mentioned in the section. "It may be that this section does not require positive proof, within the meaning of section 3, of improper inducement to justify rejection of the confession. The use of the words "appears" indicates it may be argued, a lesser degree of probability than would be necessary if "proof" had been required.
A court might perhaps in a particular case fairly hesitate to say that it was proved that the confession had been unlawfully obtained, and yet might be in a position to say that such appeared to it to have been the case. Still although we think that very probably a confession may be rejected on well-grounded conjecture, there must be something before the Court on which such conjecture can rest. It does not seem possible to say that the mere subsequent retraction of a confession which has been duly recorded and certified by a Magistrate, is enough in all cases to make it appear to have been unlawfully induced.
Without assuming the functions of the Legislature, we cannot lay down any general rule to meet the varying circumstances of different cases. To require, as the criterion of admissibility, affirmative proof that a duly recorded and certified confession was free and voluntary, would not, in our opinion, be consistent with the terms of sections 21 and 24 of the Evidence Act, or with the interpretation given to these sections by Mr. Justice Nanabhai in Reg. v. Balvant, (1874) 11 Bom HCR 137. which appears to us to have been correctly decided and to be in harmony with the practice of the Courts.
"It may be thought that the law as it stands does not afford adequate protection to prisoners against illegal practices whereby confessions are extorted, but it is not permissible to us to amend it. What the Legislature doubtless hoped and intended was that Magistrates would not record confessions unless they really believed that they were made voluntarily.8 In the case of Magistrates acting under section 164 of the Criminal Procedure Code, there can be no question that they must be affirmatively satisfied of the voluntariness of the confession, and that when in doubt on this point they ought not to record or give the certificate. The consideration which this question is at present receiving will, we hope, lead to the issue of such instructions as may help Magistrates in the difficult task of deciding what confessions are "voluntary"."
In our view, there is no need for a rigid provision as suggested.
1. F. 3(2)/55-L.C., Pt. III, S. No. 49.
2. Emp. v. Kutub, ILR 57 Cal 488: AIR 1930 Cal 633 (635) (Rankin C.J. and C.C., Ghose J.).
3. R. v. Gharya, ILR 19 Bom 728.
4. Bhuboni Sahu v. R., 76 IA 147: AIR 1949 PC 257 (260), para. 9.
5. See Pyarelal v. State, AIR 1963 SC 1094 (1096).
6. R. v. Basavanti, ILR 25 Bom 168 (171, 172, 173).
7. See generally articles in (1900) Bom LR (Journal) 157, 217.
8. Cf. Queen v. Thompson, (1893) 2 QB 12.