CrPC Section 164 — Recording of confessions and statements

CHAPTER XII INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE

General

Summary

Sub-section (1) allows a Metropolitan Magistrate or Judicial Magistrate to record a confession or statement made to them during an investigation under this Chapter or another law, or afterwards but before the inquiry or trial begins. The Magistrate may do this even if they do not have jurisdiction over the case. The confession or statement may also be recorded by audio-video electronic means in the presence of the accused person’s advocate. A police officer who has been given a Magistrate’s powers under any law must not record a confession.

Sub-section (2) requires the Magistrate, before recording a confession, to explain that the person does not have to confess and that a confession may be used as evidence against them. The Magistrate must question the person and record the confession only if they have reason to believe it is being made voluntarily.

Sub-section (3) says that if, before the confession is recorded, the person tells the Magistrate they are unwilling to confess, the Magistrate must not authorise their detention in police custody.

Sub-section (4) requires a confession to be recorded in the manner set out in section 281 for recording an accused person’s examination. The person making the confession must sign it. The Magistrate must add a memorandum stating that the person was told they did not have to confess and that a confession could be used as evidence against them; that the Magistrate believes it was made voluntarily; and that it was taken in the Magistrate’s presence and hearing, read back to the person, accepted by them as correct, and is a full and true account of their statement.

Sub-section (5) concerns statements that are not confessions. The Magistrate must record such a statement in whichever manner provided for recording evidence they consider best suited to the case. The Magistrate may administer an oath to the person making the statement.

Under clause (a) of sub-section (5A), in cases punishable under section 354, 354A, 354B, 354C, 354D, section 376(1) or (2), sections 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E, or section 509 of the Indian Penal Code, the Judicial Magistrate must record the statement of the person against whom the offence was committed, in the manner set out in sub-section (5), as soon as the commission of the offence is brought to the police’s notice. If that person has a temporary or permanent mental or physical disability, the Magistrate must use an interpreter or special educator to assist with recording the statement, and the statement must be video-recorded.

Under clause (b) of sub-section (5A), a statement recorded under clause (a) from a person with a temporary or permanent mental or physical disability is treated as a statement in place of examination-in-chief under section 137 of the Indian Evidence Act, 1872. The person who made the statement may be cross-examined on it, without the statement having to be recorded again at the time of trial.

Sub-section (6) requires the Magistrate who records a confession or statement under this section to send it to the Magistrate who will conduct the inquiry or trial.

Official Text

(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement 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: 1[Provided that any confession or statement made under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence: Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.]

(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:— “I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate.”

(5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. 2[

(5A)

(a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub-section (2) of section 376, 3[section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB,] section 376E or section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offence has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offence is brought to the notice of the police:

Provided that if the person making the statement is temporarily or permanently mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement:

Provided further that if the person making the statement is temporarily or permanently mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be video graphed.

(b) A statement recorded under clause (a) of a person, who is temporarily or permanently mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 137 of the Indian Evidence Act, 1872 (1 of 1872) such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial.]

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by 3. Subs. by Act 22 of 2018, s. 13, for “section 376A, section 376B, section 376C, section 376D” (w.e.f. 22-4-2018). whom the case is to be inquired into or tried.

Sections referred to

Referred to by

Related Judgments

  • BABU SINGH vs STATE OF PUNJAB — Supreme Court of India (1962)
  • DEEP CHAND vs THE STATE OF RAJASTHAN — Supreme Court of India (1961)
  • VIJAYA SINGH & ANR. vs STATE OF UTTARAKHAND — Supreme Court of India (2024)
  • ASSISTANT COLLECTOR OF CUSTOMS & ANR. vs L. R. MALWANI AND ANR — Supreme Court of India (1968)

Old <-> New Code Mapping

  • BNSS §183 — Recording of confessions and statements