When a person makes a statement admitting the fact that he has committed an offence,it is called a confessional statement. The confession must relate to the admission of the offence or substantially all the facts constituting the offence.
According to Section 25 of the Evidence Act, any confession made to the police officer is inadmissible in evidence. Thus the code provides a special procedure for recording confessions under Section 164.
II. Provisions related to confessions:
1. Who may record a confession?
A confessional statement can be recorded only by a Judicial or Metropolitan magistrate. [State of UP v. Singhara Singh]
No confession shall be recorded by a police officer. If any Executive Magistrate or any other Magistrate not empowered to record a confession does so, the record shall be inadmissible in evidence. [Ram Prasad v. State of Maharashtra]
2. Stages at which confession may be recorded.
A confessional statement can be recorded during investigation or anytime afterwards but before the commencement of the trial.
3. Steps to be taken by the Magistrate before recording confession - S.164
164. Recording of confessions and statements.β
(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:
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:β
βI 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.
(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.
(5A) (a) In cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, subsection (1) or sub-section (2) of section 376, section 376A, section 376B, section 376C, section 376D, 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 videographed.
(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 whom the case is to be inquired into or tried.
Section 281 : Record of examination of accused
(1) Whenever the accused is examined by a Metropolitan
Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the
language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the
(2) 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 or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.
(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court.
(4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.
(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.
Non Compliance with S. 164/281 - S. 463
(1) If any Court before which a
confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or
section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections
have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained
in section 91 of the Indian Evidence Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and
may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly
made the statement recorded, admit such statement.
(2) The provisions of this section apply to Courts of appeal, reference and revision.
Evidentiary value of Confession :
If a confession, voluntarily and truthfully made is an efficient proof of guilt. There are two test for conviction based on confession:
i. It should be voluntarilyvoluntary;
ii. If it is coluntarily, whether it is true and trustworthy.
160. Police officer' s power to require attendance of witnesses.
(1) Any police officer making an investigation
under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits
of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the
facts and circumstances of the case; and such person shall attend as so required:
Provided that no male person under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person shall be required to attend at any place other than the place in which such male person or woman resides.
(2) The State Government may, by rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under sub-section (1) at any place other than his residence.
161. Examination of witnesses by police.
(1) Any police officer making an investigation under this Chapter,
or any police officer not below such rank as the State Government may, by general or special order, prescribe in this
behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the
facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.
Provided that statement made under this sub-section may also be recorded by audio-video electronic means:
Provided further that the statement of a woman against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted shall be recorded, by a woman police officer or any woman officer.
Evidentiary value of statements : S. 162
(1) No statement made by any
person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed
by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise,
or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.
Explanation.βAn omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.