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Report No. 152

3.24. Section 164: Confession before Magistrate.-

The Code, in section 164, contains provisions of great importance to the criminal process and vital for the preservation of integrity in the process. The full significance of this section cannot be appreciated unless one keeps in mind certain important provisions of the Indian Evidence Act and of the Code of Criminal Procedure. In the Indian Evidence Act, by section 25, a confession made to a police officer cannot be proved as against the person who has made the confession.

Under section 26, a confession made by a person while he is in the custody of a police officer cannot be proved as against such person, unless it is made in the immediate presence of a Magistrate. By section 26, of the Evidence Act a confession made to a Police Officer becomes irrelevent besides this the legislature has enacted in section 164 of the code, a procedure whereunder the competent Magistrate may record a confession made to him in the course of an investigation or at any stage afterwards before the commencement of the inquiry or trial.

In practice, when it is the case of the police that an accused person in custody wishes to confess, the accused person it taken before the competent Magistrate who, after complying with the elaborate formalities prescribed in section 164, records the confession. Those formalities are intended primarily to ensure: (i) satisfaction of the Magistrate that the confession is voluntary, and (ii) proper record of the statutory warnings which are intended to achieve the above object.

There is another aspect relevant for the present purpose. While under section 161 of the Code, the investigating police officer can examine orally any person supposed to be acquainted with the facts of the case end reduce into writing the statement made by such person, section 162 of the Code provides that the statement shall not be signed by the witness and further, that the statement shall not be used for any purpose (save as provided in law) at any inquiry or trial in respect of an offence under investigation at the time when such statement was made.

It is at this stage that section 164 of the Code becomes useful. Under that section, the competent Magistrate may record, on oath, any statements made to him in the course of an investigation or at any time afterwards before the commencement of the trial.

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