Confessions
Accused persons willing to make a confession should be taken for the purpose before a judicial magistrate and ,whenever possible ,before the magistrate who will not eventually try the case. 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 the code of Criminal Procedure ,1973 or any other law for the time being in force ,or at any time afterwards before the commencement of the inquiry or trial ,as required by Section 164 of the Code of Criminal Procedure 1973.
The following instructions are issued for the guidance of the Magistrate recording confessions and statement under section 164 of the Code of Criminal Procedure 1973. They are not intended to fetter the discretion given by the law to Magistrates. The only object with which they are issued is to indicate generally the manner in which the discretion may be exercised.:-
(i) In the absence of exceptional reasons, confessions should ordinarily be recorded in open Court and during court hours.
(ii) The examination of the accused person immediately after the police bring him into Court, is deprecated. When the accused is produced before the magistrate, the police officers should be removed from the Court-room unless, in the opinion of the magistrate, the duty of ensuring their safe custody cannot safely be left to other attendants. In that case, only the minimum number of police officers necessary to secure the safe custody of the accused person should be allowed to remain in the court -room.
(iii) It should be impressed upon the accused that he is no longer in police custody.
(iv) The magistrate should then question the accused whether he has any complaint to make of ill -treatment against the police or others responsible for his arrest or custody, and shall place on record the questions put and the answers given.
(v) If the prisoner makes an allegation of ill -treatment ,the Magistrate shall follow the same procedure as is laid down in paragraph 3(1) above.
(vi) If the accused does not complain of any ill-treatment or improper conduct or inducement on the part of the police, or if inspite of the alleged ill-treatment, misconduct or inducement, he adheres to his intention of making a confessional statement ,the Magistrate should give the accused a warning that he is not bound to make the confession and that ,if he does so, it will be taken down and may thereafter be used as evidence against him. A note of the warning given to the accused should be kept on record.
(vii) Thereafter ,the Magistrate should give the accused a reasonable time, which should ordinarily not be less than 24 hours, for reflection in circumstances in which he would be free from the influence of the police and any other person interested in having the confession recorded.
(viii) After the accused is produced before the Magistrate again ,it should be ascertained from him whether he is willing to make a confession. If he expresses his desire to confess ,all police Officers should be removed from the Court-room, unless ,in the opinion of the Magistrate, the duty of ensuring his safe custody cannot safely be entrusted to other attendants. In that case, only the minimum number of police Officers necessary to secure the safe custody of the accused person should be allowed to remain in the Court-room. In any case it is not desirable that the police Officer making the investigation should be present.
The Magistrate should then question the accused person as to the length of time during which he has been in the custody of the police . It is not sufficient to note the date and hour recited in the police papers, at which the accused person is said to have been formally arrested.
The provisions of sections 163 and 164 of the Code of Criminal Procedure , 1973 ,should be carefully attended to. The first clause of section 163,taken with section 24 of the Indian Evidence Act, provides that if a confession is caused by any inducement ,threat or promise ,offered or made ,or caused to be offered or made by any police Officer or person in authority in reference to the charge against the accused person, then ,if in the opinion of the Court, the inducement threat or promise was sufficient to give the accused person grounds ,which would appear to him reasonable ,for supposing that by making the confession he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him and unless in the opinion of the Court, the impression caused by any such inducement , threat or promise ,has been fully removed ,such confession is irrelevant, that is ,it cannot be used as evidence in any criminal proceeding.
Under clause (2) of section 163 ,for a confession of an accused person made in the course of a police investigation to have any value ,it must be one which the accused person was disposed to make of his own free will. Before recording any such confession, the Magistrate is bound to question the accused person, and unless upon that questioning he has reason to believe that the confession is voluntary ,he cannot make the memorandum at the foot of the record . He cannot say “I believe that this confession was voluntarily made” unless he has questioned the accused person ,and from that questioning has formed the belief not a doubtful attitude of mind, but a positive belief that the confession is a statement which the accused person was disposed to make of his own free will.
Before recording a confession, the Magistrate should question the accused with a view to ascertaining the exact circumstances in which his confession is being made and the connection of the police with it under clauses (iv), (vi),(x) and (xi) above. In particular, where more than one accused is involved in the case, he should question the accused whether he has been induced to make a confession by promises to make him an approver in the case. Anything in the nature of cross-examination of the accused is to be deprecated. It should ,however, be the endeavour of the Magistrate ,without having recourse to heckling or attempts to entrap the accused, to record the statement with as much detail as possible regarding the circumstances under which the confession was being made, the extent to which the police had anything to do with the accused prior to his offer to make a confession ,as well as the fullest possible particulars of the incidents to which the confession relates. These details are important as they furnish the material on which the value of the confession is to be estimated; and the greater the detail, the greater the chances of a correct estimate . Every question and every answer should be recorded in full.
The Magistrate should add to the certificate required by section 164 the Code of Criminal Procedure ,1973 a statement in his own hand, of the grounds on which he believes that the confession is genuine ,the precautions which he took to remove the accused from the influence of the police, and the time ,if any ,given to the accused for reflection.
Attention of the Magistrates is drawn to Section 164(3) of the Code of Criminal Procedure ,1973 which lays down that if the person appearing before the Magistrate refused to make a confession ,the Magistrate shall not authorise the detention of such person in police custody.
Attention of the Magistrates is invited to sections 281 and 318 of the Code of Criminal Procedure ,1973, and to the following important observations made by the Supreme Court in the decision reported in A.I.R.1957 S.C.637 (Sarwan singh Rattan Singh versus State of Punjab) under the head (h):---
“(h) Duty of the Magistrate in recording statement under section 164(3) of the Code of Criminal procedure ,1898 (Corresponding Section 164(2) of the Code of Criminal Procedure ,1973).
The act of recording confessions under section 164 of the Code of Criminal Procedure is a very solemn act and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of Sub- section (3) of Section 164 are fully satisfied. It would of course be necessary in every case to put the questions prescribed by the High Court............................... but the questions intended to be put under Sub-section (3) of section 164 should not be allowed to become a matter of mere mechanical inquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary . The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement ,threat or promise having reference to the charge against the accused person as mentioned in section 24 of the Evidence Act ”
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