Report No. 37

Appendix 13

Note on Section 163(2)

Section 163 encourages attempts at confessions, while section 164 discourages them. This discrepancy was pointed out in a Madras case.1-2 Section 163 says, that cautions are not necessary, but section 164 (in effect) says that they are necessary It Is better to provide, that section 163(2) is subject to section 164(3).

It may be noted, that before the amendment of section 164 in 1923, this inconsistency was not there, as all that a Magistrate had then to consider was, whether the confession was voluntary. But, under the section as amended in 1923, the Magistrate has to administer certain warnings also. If the caution (under section 164) is successful and the accused is thereby prevented from making a confession, then the question would arise-"has not the Magistrate done something illegal ?"3

1. Vella Monji (in re:), ILR 55 Mad 711: AIR 1932 Mad 431 (432).

2. See also Mohamed Bux v. Emp., AIR 1934 Sind 103 (105).

3. Cf. Vella Monji (in re:), ILR 55 Mad 711: AIR 1932 Mad 431 (432).