In legal proceedings, it's not always necessary to record a witness's statement
under Section 164 of the CrPC. This is typically done to prevent the witness
from changing his statement later or to protect its integrity. Such statements,
when recorded shortly after an incident, are considered more credible. They can
be used as evidence, and there's a presumption of their authenticity under
Section 80 of the Indian Evidence Act, 1872.
However, it's important to note that a statement recorded under Section 164 CrPC
cannot be used as direct evidence to establish the truth of the facts. Instead,
it can be used to either support or challenge the statements of the witness who
made it, in line with the provisions of Sections 145 and 157 of the Indian
Evidence Act, 1872.
Sometimes, during an investigation, the Investigating Officer may find it
necessary to record a witness's statement under Section 164 CrPC. This can
happen when the witness has close ties to the accused or if the accused holds
significant influence, which could lead to witnesses being pressured or
If the investigating officer believes that a witness might retract their
statement during the trial, they can request the Magistrate to record the
witness's statement under Section 164 CrPC. The Magistrate, upon receiving this
request, is obliged to record the witness's statement.
Forms of Confession
Confessions can take different forms. When the accused admits their guilt
directly in a court of law or to a Magistrate in court, it's called a "judicial
confession." However, if the confession is made to someone outside the court,
it's termed an "extra-judicial confession." This can include confessing to a
police officer, another person, or even confessing to oneself. Extra-judicial
confessions are often seen as weaker evidence.
In the case of Sahoo v. State of UP
, the accused killed his daughter-in-law due
to ongoing disputes and remarked that her death would end the daily quarrels.
The court considered this statement a confession, highlighting that a confession
doesn't always need to be communicated to someone else to be relevant.
In the case of Pakala Narayan Swami v. Emperor
, the accused admitted guilt to
the police but later refused to do so in court. The court ruled that this didn't
amount to a confession because there was no direct admission of guilt in court.
Types of Confession
In legal proceedings, there are two types of confessions: inculpatory and
exculpatory. An inculpatory confession is when the accused directly admits their
guilt. On the other hand, an exculpatory confession is when the accused
confesses in a way that suggests their innocence or clears them of wrongdoing.
In court, only inculpatory confessions can be used as direct evidence. However,
exculpatory confessions require additional supporting evidence to be admissible.
Who Records the Statement?
Any Metropolitan Magistrate or Judicial Magistrate, regardless of their
jurisdiction in the case, can record a statement or confession made to them
during an investigation or before the trial starts. However, a police officer
who has the power of a Magistrate by law cannot record a confession.
The Magistrate's duty is to inform the person making the confession that they
are not required to confess. If they do confess, the statement can be used as
evidence against them in court. The confession must be voluntary and not made
under any threat or influence. The confessions which are made involuntarily are
not admissible in court.
If a person refuses to make a confession before it is recorded, they cannot be
forced to do so, nor can they be arrested in police custody.
The confession must be signed by the person making it and recorded as per the
provisions of Section 281 of the CrPC. The Magistrate must also make a
memorandum stating that they explained the person's rights and that the
confession was voluntarily made, read aloud, admitted by the person, and is a
true account of their statement.
After recording the confession or statement, the Magistrate must send it to the
authorized magistrate who will inquire into or try the case.
Important Points to Keep in Mind when Recording a Statement under Section 164
Recording a statement under Section 164 of the Code of Criminal Procedure (CrPC)
in India is a significant legal process, as it involves the recording of a
statement or confession by a Magistrate. Here are some important points to keep
in mind when recording a statement under Section 164 CrPC:
Voluntary and Without Coercion:
Ensure that the statement is recorded
voluntarily without any coercion, threat, or inducement. The Magistrate must
satisfy themselves that the person giving the statement is doing so willingly.
Right to Legal Representation:
Inform the person of their right to have a legal
counsel present during the recording of the statement. If they choose to have a
lawyer, provide them with an opportunity to consult with their lawyer before
Language and Understanding:
Ensure that the person giving the statement
understands the language in which the statement is being recorded. If not,
provide an interpreter if necessary. Confirm that the person understands the
content and consequences of the statement.
Privacy and Confidentiality:
Conduct the recording in a private and confidential
setting to protect the privacy and safety of the person giving the statement.
Identification and Personal Details:
Record the person's name, age, address,
occupation, and other relevant personal details for identification purposes.
Recording in First Person:
The statement should be recorded in the first person,
meaning that the person giving the statement should speak for themselves.
Encourage the person to provide a full and truthful account of
the events in question. Explain the importance of honesty during the recording.
Clarification of Doubts:
Give the person an opportunity to clarify any doubts or
ambiguities in their statement. Allow them to make corrections or additions as
No Leading Questions:
Avoid asking leading or suggestive questions that could
influence the content of the statement. Questions should be open-ended and
Time and Date:
Clearly mention the date and time when the statement is being
recorded. This helps establish the timeline of events.
Signature and Thumb Impression:
After the statement is recorded, have the person
sign it as a confirmation of its accuracy. If the person is illiterate or unable
to sign, obtain their thumb impression.
The Magistrate should certify on the statement that
it was recorded voluntarily and without any coercion or inducement. This
certification is crucial for the statement's admissibility in court.
Confidentiality of Statement:
Maintain the confidentiality of the recorded
statement until it is produced in court. It should not be disclosed to the
public or media.
If possible, have independent witnesses present during the recording
of the statement to corroborate its authenticity and voluntariness.
In some cases, it may be advisable to video record the
statement to provide a clear record of the process and to prevent any
allegations of coercion or misconduct.
Advising of Consequences:
Explain the potential legal consequences of the
statement, including how it may be used in court.
Rights Under Section 164:
Inform the person that their statement will be
admissible as evidence in court and that they have the right to retract or
disown it later, if they wish.
No Police Presence:
It is generally recommended that the police not be present
during the recording to avoid any undue influence.
The statement recorded by a Magistrate from a witness under section 164 CrPC is
not substantive evidence. It can be used as previous statement of witness. Such
statement can be used by the accused to contradict the witness and by the
prosecution with the permission of the court when a witness turns hostile.
Sometimes the Magistrates record the statement of the accused under the above
provision when the investigation officer gives a requisition.
are generally called confessional statements of the accused. These statements
can be taken into consideration by courts while judging the complicity of an
accused in a crime.
Speaking generally, it would be reasonable to insist upon giving an accused at
least 24 hours to decide whether or not he should make a confession.
What if the Witness Resiles from his Statement?
If the witnesses were to resile subsequently in court during the enquiry or
trial from the earlier statements made on oath they can be charged under section
193 IPC. If the accused person on being arrested expresses his willingness to
make confession his confession should be recorded under section 164 CrPC by a
competent Magistrate. The Magistrate should not be the one who will eventually
try the case or hold committal proceedings.
Such witnesses feel bound to their previous statements given on oath though in
theory they have freedom to depart from their earlier version. The price of that
freedom could be a prosecution for perjury. In important cases witnesses may be
produced before a Magistrate and their statements got recorded by the Magistrate
on oath under section 164 CrPC before the commencement of enquiry or trial.
Statement can be Recorded even without the Request of the Investigating Officer
A magistrate can record a statement under Section 164 of the CrPC, even if the
police officer hasn't initiated it. Sometimes, the police might be hesitant to
record a witness's statement. In such cases, the witness can directly approach
the magistrate to request statement recording. Similarly, if the accused
believes it's essential for justice, they can request the magistrate to record a
witness's statement, provided the circumstances are exceptional and refusing to
do so would result in a miscarriage of justice.
Although it's common for the investigating police officer to send witnesses to
the magistrate to record their statements during an investigation, there's
nothing in Section 164 of the CrPC that prevents the magistrate from recording a
witness's statement in court. This can happen when a willing witness wants to
contribute to the administration of justice, but the police have intentionally
avoided recording their statement under Section 161 or Section 164 of the CrPC.
Accused making the confession under section 164 CrPC implicated co-accused as
one of the participants in the crime, who committed dacoity and was involved in
the offences, that confession could not be relied upon for convicting co-accused
for two reasons:
- There was no independent evidence to connect the co-accused with the crime
- the confession so made was exculpatory
It did not
implicate the maker to the same extent as the other accused person against whom
the confession was sought to be used as accused had confessed that he was
standing outside. Such type of confession by the co-accused could not be used
against another co-accused as he did not incriminate himself suggesting himself
to be a simple spectator, could not give rise to a conclusion of guilt beyond
reasonable doubt, and could not be trusted.
Statements recorded under Section 164 CrPC, though not substantial evidence, may
be used to corroborate or contradict their maker. Harbans Lal v. State, AIR 1967
Supreme Court in Ram Kishan Singh v. Harmit Kaur and others
((1972) 3 SCC 280)
held that statement 164 CrPC is not substantial evidence and can only be used to
corroborate or contradict a witness vis-a-vis. statement made in court. In other
words, it can only be used as a previous statement and nothing more.
A Bench of the Madras High Court reiterated that statements recorded under
Section 164 of the CrPC cannot be considered substantive evidence and cannot be
relied upon for conviction. The Bench comprising Justices S Vaidyanathan and AD
Jagadish Chandira said, "The law is well settled that a statement recorded under
Section 164 of the CrPC is not material evidence... it can be used to
corroborate the testimony of a witness and it can be used to contradict a
One essential condition of the provisions of section 164 CrPC is that it must be
done voluntarily and not under threat or coercion. Supreme Court in Aloke Nath
Dutta & Ors. v. State of West Bengal
(2007) 12 SCC 230 held thus:
is ordinarily admissible in evidence. It is a relevant fact. It can be acted
upon. A confession may form the basis of a conviction from time to time under
certain circumstances and in accordance with the law established by the Supreme
Court. However, it is trite that for this purpose the court must satisfy itself
- The voluntariness of the confession;
- The truth of the confession;
In the case of Mahabir Singh v. State of Haryana
, the court emphasized that when
a Magistrate fails to adequately explain to the accused that they are under no
obligation to make a confession and that any such confession may be used as
evidence against them, the resulting confession cannot be considered valid or
admissible in court.
Similarly, the Andhra Pradesh High Court, in the case of Guruvindapalli Anna Rao
v. State of Andhra Pradesh
(2003 Crl. L.J. 3253), clarified that when a
Magistrate records the statement of a witness under Section 164 of the Criminal
Procedure Code (CrPC), it is not mandatory for the Sessions Judge to summon the
Magistrate as a witness to prove the contents of the statement. This is because
when a Magistrate, while performing their official duties, records a witness's
statement under Section 164 CrPC, that statement is considered a "public
document." As a result, it doesn't need further confirmation or validation.
- Confession in Open Court: If a confession is made in a courtroom with the door open, where police can see and hear, and the accused believes they are being overheard, it's often considered involuntary. This is especially true if the confession is retracted early.
- Recording by Magistrate: If the magistrate ensures the confession is voluntary and explains the consequences to the accused, but fails to keep a proper record of questions and answers, it's still valid. This is considered a formal, not substantial, defect.
- Retracted Confession: Even if a confession is retracted, a voluntary and truthful judicial confession can still lead to a conviction, even in a murder case.
- Police Custody: An under-trial prisoner isn't in police custody when taken from jail to the magistrate unless the escorting police officer is linked to the case's investigation.
- Time Gap Matters: If there's no significant time gap between taking the accused from police custody and recording a retracted confession, it may not be considered voluntary, and the conviction can't be upheld.
- Recording in Open Court: Confessions should be recorded in open court during court hours whenever possible. Statements made behind the accused's back aren't admissible during trial.
- Caution in Courts: Courts base convictions on confessional statements by ensuring they are entirely voluntary, truthful, and reliable. Corroboration on all points is essential.
- Remanding for Reflection: Magistrates sometimes give accused individuals a warning and a day or two in judicial custody to reflect before recording their confession.
- Proof of Voluntariness: Before a confession is admitted as evidence, the prosecution must prove that it was made freely, without inducement, and not as a result of any stimulus by a person in authority.
Evidentiary Value of the statement recorded under section 164 CrPC
Statements recorded under Section 164 of the Code of Criminal Procedure (CrPC)
are a crucial form of evidence in the Indian legal system. Here's why they
- Admissible Evidence: Section 164 statements are accepted as evidence in court proceedings. They hold weight and can be used to establish facts in a criminal case.
- Supporting Evidence: These statements can support other evidence in the case. They help strengthen the prosecution's case by providing a detailed and reliable account of events, especially when the person making the statement is a key witness or an accused.
- Presumed Truthfulness: Generally, these statements are presumed to be truthful and credible. The magistrate's certification of voluntariness adds to their credibility.
- Evidence Against the Accused: If an accused person makes self-incriminating statements during the recording, those statements can be used as evidence of their guilt.
- Cross-Examination: The defense can question the person making the statement in court, including its voluntariness and accuracy.
- Supporting Reluctant Witnesses: Section 164 statements are valuable when witnesses are hesitant to testify in court due to fear or intimidation. These recorded statements can be presented even if witnesses later become uncooperative.
- Right to Retract: The person making the statement can retract it during the trial, claiming duress or falsehood. The court considers such retractions and surrounding circumstances.
- Crucial in Complex Cases: In complex or high-profile cases where witness testimonies are vital, Section 164 statements can form the foundation of the prosecution's case, preserving essential evidence.
- Consistency Matters: Consistency between the Section 164 statement and subsequent court testimony bolsters the overall case. Any contradictions can be used by the defense to challenge the witness's credibility.
Statements recorded under Section 164 CrPC are considered valuable pieces of
evidence in criminal proceedings in India. They are admissible, generally
credible, and can play a crucial role in establishing facts, especially when
witnesses or accused individuals provide crucial information during the
recording. However, their evidentiary value can still be subject to scrutiny,
cross-examination, and retraction during the trial, as the court seeks to ensure
fairness and justice in the legal process.
Written By: Md. Imran Wahab
, IPS, IGP, Provisioning, West Bengal
Email: [email protected]
, Ph no: 9836576565