APPROPRIATE MODE OF RECORDING STATEMENT UNDER SECTION 164 CrPC BY THE MAGISTRATE AND CAUTIONS TO BE OBSERVED WHILE RECORDING THE SAME AND ITS EVIDENTIARY VALUE AND ROLE IN CRIMINAL TRIALS

Fourth Round of Judicial Training by Way of Workshops, Refresher and Orientation Courses 

(Submission of Response)

1. Examine the appropriate mode of recording statement under section 164 CrPC and the necessary precautions as are required to be observed as their under?

    Section 164 provides special procedures for the recording of confessions and statements by competent Magistrate. Section 164 (1) of the Code states that – “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.” Section 164 (5) of the Code states that – “Any statement (other than a confession) made under sub-section 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.”

Appropriate mode of recording confessions and statement - 

• A confession or a statement can be recorded only by metropolitan or judicial magistrate. The proviso to sub-section 1 makes it clear that a Police officer on whom the powers of magistrate have been conferred by any law will not be considered competent to the confession under section 164.
• Confessions are statements can be recorded under section 164 either in the course of investigation or at any time afterwards before the commencement of inquiry or trial.

Procedure & Principles for recording Statement – The following directions are normally followed by Magistrate during recording of statement under section 164 - 

1. The magistrate can administer oath to the person before recording his statement.
2. The  magistrate is under no obligation to record the statements of strange individuals.
3. Statement shall be recorded in such manner as provided for the recording of evidence.
4. The statement of witness has to be recorded like a statement recorded from a witness in the court. Before recording the statement, oath has to be administered to the witness.
5. A copy of the statement under section 164 code of criminal procedure should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under section 164 code of criminal procedure should not be disclosed to any person till chargesheet /report under section 173 code of criminal procedure is filed (State of Karnataka vs Shivanna, (2014) at SCC 913)
6. Only before and after recording a confession, various precautionary measures including giving of reflection time to the accused has been prescribed. This rigorous exercise need not be followed for recording the statement of a witness under Section 164 Cr.P.C.
7. According to section (5A)(a) of section 164 “In cases punishable under Section 354, Section 354-A, Section 354-B, Section 354-C, Section 354-D, sub-section (1) or sub-section (2) of Section 376, Section 376-A, Section 376-B, Section 376-C, Section 376-D, Section 376-E or Section 509 of the Indian Penal Code (45 of 1860), the Judicial Magistrate shall record the statement of the person against whom such offense has been committed in the manner prescribed in sub-section (5), as soon as the commission of the offense is brought to the notice of the police.
8. 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.
9. 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 videographed.

Procedure & Principles for recording Confessions - 

• Before recording any confession the Magistrate is required to explain to the person making the confession that –
• He is not bound to make such a confession, and
• If he does so it may be used as evidence against him
• 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. The following directions are normally followed by the Magistrate in order to ensure that a confession is made voluntarily –
• Magistrate should disclose his identity to such person so as to assure him that he is no longer in the hands of the police.
• After giving warning to the person making a confession the Magistrate should give him adequate time to think and reflect. (Aher Raja Khima vs State of Saurashtra AIR 1956 SC 217)
• Every inquiry must be made from the accused as to custody from which he was produced.
• If marks of injuries are found on the person of the accused, he should be asked how he received them (Sarwan Singh Ratan Singh vs State of Punjab, AIR 1957 SC 637)
• If the accused is handcuffed the Magistrate should order to remove the handcuffs.
• The accused should be assured, in plain terms, of protection from any sort of apprehended torture or pressure from such extraneous agents as the police or the like in case he declines to make a statement.
• The accused should particularly be asked the reason why he is going to make a statement which would surely go against him, self interest in the course of trial.
• If the accused appears before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in Police custody.
• A Magistrate recording confession must make inquisitorial inquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess the guilt.
• Magistrate recording the confession must appreciate his function as one of the judicial official and he must apply his judicial mind to the task of ascertaining that the statement, the accused is going to make is of his own accord and not on account of any influence on him.
• The Magistrate must explain to the accused his constitutional rights under article 22 (1) of the constitution as well as the provision of sections 303 of the code of criminal procedure about his right to consult a lawyer before recording his confession. (State of Assam vs Ravindra Nath Guha, 1982 CriLJ 216).
• Confession shall be recorded in the manner provided in section 281 of the code of criminal procedure for the recording of the examination of an accused. Accordingly the whole of the confession, including every question put to the accused and every answer given by him shall be recorded in full.
• The accused person shall be questioned in the language known to him and the answer given by him shall be recorded in his own words, as far as possible.
• After recording the statement of the accused, the same shall be read out and explained to him in the language known to him and the fact of having read the statement to the accused and the accused having admitted its correctness shall be recorded.
• Thereafter, the Magistrate shall append a certificate as required by S.164(4) Cr.PC.
• No oath can be administered to the accused who is making a confessional statement.
• Any confession shall be signed by the person making the confession and
• The Magistrate recording Confession shall forward it to the Magistrate by whom the case is to be inquired or trialed.

2. Who all can be provided the statement recorded under section under section 164 CrPC and at what stage?

    In case of  Patiram V/s. State of Maharashtra of reported in 2003Cri.L.J. 4718, it is specifically observed that –

        “The statement recorded under section 164 of the code are part and parcel of the case diary of investigation. Even in the charge sheet there should be mention of recording of statement by the magistrate”. Section 173(5)(b) specifically mention about the statement recorded under Section 161 of the Code and does not speak about statement recorded under section 164 of the code. Keeping this section in the mind or by following the old practice of the station if he kept the statement in a sealed envelope and commit it to the concerned court after receiving charge sheet then there is sheer contravention of section 207 of the code which is mandatory. Section 207 (iv) of the code specifically states that the copies of confession and statement recorded under section 164 has to be supplied to the accused before committing the case under section 209 of the Code."

        

        In Bhagwant Singh vs Commissioner of Police, (1985) 2 SCC 537, the Hon’ble Supreme Court observed that “it is only after taking of the cognitions and issuance of process that the accused is entitled, in terms of section 207 and 208 of the code of criminal procedure, to copies of the documents referred in the said provisions. The filing of the chargesheet by itself does not entitle an accused to copies of the any relevant documents including statement under section 164 of the code unless the stages indicated above are undertaken.”

        Again in State of Karnatakaby Nonavinakere Police vs. Shivanna alias Tarkari Shivanna (2014) 8SCC913,  Hon’ble Supreme Court has remarked that - 

        “Upon receipt of information relating to the commission of offence of rape, the investigating officer shall make immediate steps to take the victim to any Metropolitan/preferably Judicial Magistrate for the purpose of recording her statement under Section164 CrPC. A copy of the statement under Section 164 CrPC should be handed over to the investigating officer immediately with a specific direction that the contents of such statement under Section 164 CrPC should not be disclosed to any person till charge-sheet/report under Section 173 CrPC is filed.”

        Court further observed that if the copy of statement under section 164 is provided at this preliminary stage of investigation then besides spilling all the beans of investigation before the concerned person(s) who shall also come to know names of all the key witness(es) involved in this case, the health and safety of the victim(s) but also that of all the key witnesses will be in peril. It is also very likely that of all affected and concerned person(s) will leave no stone unturned in influencing the investigation itself and all key witnesses in their favour much before any report is made under S.173CrPC. All this is surely bound to ‘dent’ the prosecution case.

It has again been reiterated by the Hon’ble Supreme Court in CRIMINAL APPEAL NO.659 OF 2020 @ SLP (CRL.)NO. 10401 OF 2019

MISS “A” VS. STATE OF UTTAR PRADESH AND ANR.

    “...no person is entitled to a copy of statement recorded under Section 164 of the Code till the appropriate orders are passed by the court after the charge-sheet is filed. The right to receive a copy of such statement will arise only after cognizance is taken and at the stage contemplated by Sections 207 and 208 of the Code and not before.”

    Thus the right to receive a copy of statement recorded under section 164 of Cr.P.C. will arise only after cognizance is taken and at the stage contemplated by sections 207 and 208 of the code of criminal procedures and not before. The filing of chargesheet by itself does not entitle an accused to copy of statement recorded under section 164 of the Cr.P.C.

3. What is the evidentiary value of the statement u/s 164 CrPC and can it form the sole ground of conviction or acquittal?

    Statements recorded under Section 164 code of criminal procedure are not substantive evidence. But it can be used to corroborate or contradict the maker according to section 145 and 157 of the Evidence Act.

    As early as in Manik Gazi v. Emperor, AIR 1942 Cal 36 : (1942) 43 Cri LJ 277 a Division Bench of the Calcutta High Court had held that the statements Under Section 164 of the Code can be used only to corroborate or contradict the statements made Under Sections 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh Vs. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 : (1946) 47 Cri LJ 344) the Privy Council had observed that the statement Under Section 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 : (1949) 50 Cri LJ 872) and in Bhagi v. Crown, 1950 Cri LJ 1004 : (AIR (37) 1950 HP 35) It was also held by a single Bench of the Himachal Pradesh Judicial Commissioner's court that statement Under Section 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642 : (1960 Cri LJ 1167) A Division Bench of this Court had also observed that statements Under Section 164 of the Code cannot be used as a substantive evidence.

    In State v/s. Kartar in A.I.R. 1970 SC 1305 :1970 Cr.L.J.1144 :- Statements under Section 164 of the Code are not substantive evidence. But it can be used to corroborate or contradict the maker under section 145 and 157 of the Act. 

    Ram Kishan Singh v. Harmit Kaur, 1972 Cri. LJ 267 : (AIR 1972 SC 468) the Hon'ble Supreme Court have categorically held that the statements recorded under Section 164 Cr. P. C. are not substantive evidence. It can be used only to corroborate the statements of the witness or to contradict them. when the witnesses  have themselves did not support their version, their statements earlier recorded under Section 164 Cr.P.C. could not be available to the prosecution for their corroboration.

In RAMPRASAD VS. STATE OF MAHARASHTRA [1999 CRI.L.J. 2889 (SC)], the Hon'ble Apex Court observed as under:

    "Be that as it may, the question is whether the Court could treat it as an item of evidence for any purpose. Section 157 of the Evidence Act permits proof of any former statement made by a witness relating to the same fact before any authority legally competent to investigate the fact but its use is limited to corroboration of the testimony of such a witness. Though a police officer is legally competent to investigate, any statement made to him during such an investigation cannot be used to corroborate the testimony of a witness because of the clear interdict contained in Section 162 of the Code. But a statement made to a Magistrate is not affected by the prohibition contained in the said section. A Magistrate can record the statement of a person as provided in Section 164 of the Code and such a statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes usable to corroborate the witness as provided in Section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof."

    It was also noted that; Ramchander v/s State A.I.R. 1981 SC 1036 : 1981 Cr.L.J.609:- When a witness whose statement under section 164 of the Code was recorded was not sticking to his statement so recorded, the Court should not rebuke him nor threaten him that he should be prosecuted of perjury.

    In the case of Audumbar v/s. State 1999 Cr.L.J. 1936 :- it was held that if a witness turns hostile his statement u/s 164 of the code even if proved by examining a magistrate cannot be used as a substantive evidence.

    It was noted in Phool chand V/s. State of U.P. 2004 Cr.L.J. 1904, that statements recorded u/s 164 of the code cannot be solely relied on for purpose of conviction as they hold only corroborative value. But this won’t be same in case of confession, if voluntary made, can be a ground depending upon facts and circumstances of a case. The confession would not be ordinarily considered the basic for conviction. However, it is admissible, and conviction may also be based upon it if it is found truthful and voluntary though some corroboration may be necessary. Confession which is not retracted even at the stage of trial and even accepted by the accused in the statement under section 313 Cr.P.C. can be fully relied upon. So, the conviction based thereon together with other circumstantial evidence is sustainable.

    Thus it can be said that statements recorded under section 164 of Cr.P.C. are not substantive evidence. Such a statement can be used either for corroboration of the testimony of a witness u/s 157 of the Act or for contradiction thereof u/s 145 of the Act. Statements recorded u/s 164 of the code cannot be solely relied on for purpose of conviction.

4. Under what all circumstances the magistrate recording the statement under section 164 CrPC be examined during trial?

    If a magistrate has recorded the statement of the witness in the manner provided under section 164 (5) of the code. The charge sheet is filed and case is committed to the concerned Court for the trial. During the trial the witness whose statement has been recorded under section 164 of the code, completely turns hostile. He even gone to the extent that his statement was not at all recorded by the magistrate. Then how to make use of that statement in the trial. In case of Kasmira Singh v/s. State of M.P. reported in A.I.R.1952 S.C. 159 it is observed that -“In case witness denies the fact of recording of his statement by Magistrate or if he denies specific portion of his statement to be not told by him examination of Magistrate is not necessary to prove contradiction which is unlike the case of statement recorded by police under section 162”.

    In the above authority the Apex court has endorsed the judgment of Privy Council in Nazir Ahmed v/s. King Emperor reported in A.I.R. 1936 P.C. 253.

    Again in case of Guruvind Palli Anna Rao - of A.P. reported in2003 Cri. L.J. 3253, it has been specifically observed that – “Statement of witness recorded under section 164 of the code is a public document which does not require any formal proof. Hence summoning of Magistrate by Sessions Court to prove contents of the said statement is improper.

       Section 80 of the Evidence Act, states that–Whenever any document is produced before any court, purporting to be a record or memorandum of the evidence, or any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the court shall presume  that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was dully taken.

    The part of presumption at the foot of the section 80 of the evidence act states that– that any statement as to the circumstances under which it was taken, purporting to be made by the person signing it. That means if the statement which bears the signature of the maker can only come under the purview of section 80 of the Evidence Act. In such situation if the statement bears the signature of the maker then and then only the statement can be held as public document and the presumption under section 80 of the Evidence Act can be made applicable to it and the authorities cited supra can be made applicable to it. If the statement does not bear the signature of the maker then it cannot be considered as public document and no presumption under section 80 can be applied to it in spite of the endorsement of the magistrate who has recorded the statement. In such circumstances it is incumbent on the prosecution to adduce the evidence of magistrate in order to prove the contents of the statement for making its use in the trial.