A statement that contains self exculpatory matter cannot amount to a confession. Section 164, Cr.P.C. empowers a metropolitan Magistrate or judicial Magistrate, whether or not he has jurisdiction in the case to record any confession or statement made to him in the course of an investigation or at any time afterwards before the commencement of the inquiry or trial:

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:

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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. [Section 164(1)].

At what stage confession may be recorded.—Section 164 as noted above lays down clearly that a statement or confession made to a Magistrate in the course of an investigation can be recorded either during investigation or at any time afterwards before the commencement of the inquiry or trial.

Section 164 further lays down that before recording any such confession the Magistrate shall 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. No Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was being made voluntarily. [Section 164 (2)].

The section, therefore, imposes statutory obligation on the Magistrate to warn the accused that the statement which he was going to make may be used against him. Further, the Magistrate must put questions to the person making a confession and satisfy himself that he was making the confession voluntarily. The provisions are mandatory and failure to comply with them renders the confession bad in law, and the confession cannot be used as evidence of the accused.

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 authorize the detention of such person in police custody, [Section 164 (3)]

Principles of law:

The principles of law bearing upon the question of recording confession by a Magistrate under Section 164 may be summarized as follows : (i) Full and adequate compliance with the provisions of Section 164, Cr.P.C. is imperative and its non-compliance reduces the statement recorded by him to a nullity; (ii) Such compliance must not be undertaken in the spirit of being done as a matter of form but as a matter of essence; (iii) Every inquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution still lurking in the accused’s mind and in case there is scope for such supposition, he should give the accused sufficient time for reflection before he is asked to make his statement; (iv) Besides warning the accused that he is not bound to make a statement and that if he makes one, it may be used against him in evidence in relation to his complicity in the offence at the trial, the accused should be assured of protection from any sort of apprehended torture or pressure from police or the like in case he declines to make a statement; (v) The accused should particularly be asked the reason why he is going to make a statement which would surely go against his self-interest in course of the trial and he should further be told that even if he contrived subsequently to retract the confession, it will be evidence against him still; (vi) The Magistrate recording confession of an accused coming from police or jail custody must apply his judicial mind to the task of ascertaining that the statement which the accused is going to make is of his own accord and not on account of any influence on him; (vii) Lastly, he should also consider it expedient that satisfaction of his conscience as to the voluntary character of the statement the only act to be achieved by him but he should leave such matters on the record in proof of a compliance with the imperative requirements of the section as would satisfy the appellate court that the confessional statement was made voluntarily. In short, the provisions of the statute must be complied with both in letter and spirit. [Gurubaru Praja v. The King, A.I.R. 1949 Orissa 67],

Besides the prosecution mentioned in Section 164, which must be faithfully obeyed in recording a confession, sub-section (4) of Section 164 further provides that 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. [Section 164 (4) |

Section 281 lays down the following formalities which must be complied with in recording the same:—

(i) Whenever the accused is examined by any Magistrate other than a metropolitan Magistrate, or by a court of session the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding judge or Magistrate himself. The confession shall be recorded in full and every answer given by him shall be put down in full.

(ii) Ordinarily, the statement of the accused should be recorded in the language in which the accused is being examined, the object being to represent the very words and expressions used as well ensure accuracy and prevent misrepresentation and misconstruction of what he said.

If it is not practicable to record the question put to and answer given by the accused in the language in which they are made, they may be recorded in the language of the court.

(iii) Such record of statement shall be shown or read to the accused and if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands.

(iv) The accused shall be at liberty to explain or to add to his answer while the record of his statement is being read or interpreted to him. |Section 281 (2-4)|.

(v) The record shall be signed by the accused and the Magistrate or presiding judge of such court.

Further, as required in sub-section (4) of Section 164, 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 his 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.