Judicial Confession under Section 164

Section 164 of CrPC provides for the judicial confession of the accused. It reads as follows-

(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 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.”

The admissibility of Judicial Confession

A judicial confession undoubtedly is admissible in evidence. It is a relevant fact. A judgment of conviction can also be based on a confession if it is found to be truthful, deliberate and voluntary and if clearly proved. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged on the basis of the entire prosecution case.[1]

In State (NCT of Delhi) v. Navjot Sandhu Alias Afsan Guru [(2005) 11 SCC 600], the Court observed:

“Confessions are considered highly reliable because no rational person would make admission against his interest unless prompted by his conscience to tell the truth. “Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law”. (vide Taylor’s Treatise on the Law of Evidence Vol. I).

However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration.

So also the authority recording the confession – be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority.

Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Indian Evidence Act has excluded the admissibility of a confession made to the police officer. Section 164 of Cr.P.C. is a salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police.”

However, it was categorically stated that retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.

In ‘Babubhai Udaysinh Parmar v. State of Gujrat (2006)’, the court said,

Section 164 provides for safeguards for an accused. The provisions contained therein are required to be strictly complied with. But, it does not envisage compliance of the statutory provisions in a routine or mechanical manner. The court must give sufficient time to an accused to ponder over as to whether he would make confession or not. The appellant was produced from judicial custody but he had been in police custody for a period of 16 days. The learned Magistrate should have taken note of the said fact.

It would not be substantial compliance of law. What would serve the purpose of the provisions contained in Section 164 of the Code of Criminal Procedure are compliance of spirit of the provisions and not merely the letters of it. What is necessary to be complied with, is strict compliance of the provisions of Section 164 of the Code of Criminal Procedure which would mean compliance of the statutory provisions in letter and spirit.

We do not appreciate the manner in which the confession was recorded. He was produced at 11.15 a.m. The first confession was recorded in 15 minutes time which included the questions which were required to be put to the appellant by the learned Magistrate for arriving at its satisfaction that the confession was voluntary in nature, truthful and free from threat, coercion or undue influence. It is a matter of some concern that he started recording the confession of the appellant in the second case soon thereafter.

Both the cases involved serious offences. They resulted in the extreme penalty. The learned Magistrate, therefore, should have allowed some more time to the appellant to make his statement. He should have satisfied himself as regards the voluntariness and truthfulness of the confession of the appellant.”

In Parmananda Pegu v. State of Assam [AIR 2004 SC 4197], the Court opined:

“The foremost amongst the factors that are sought to be relied upon by the prosecution is the retracted confession of the appellant recorded under Section 164 Cr.P.C. The confession has been extracted supra in verbatim. Before acting on a confession made before a Judicial Magistrate in terms of Section 164, the Court must be satisfied first that the procedural requirements laid down in Sub- sections (2) to (4) are complied with.

These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. Looking at the confessional statement (Ext.8) coupled with the evidence of PW 22, the then Addl. Chief Judicial Magistrate, Dhemaji, we have no doubt in our mind that the procedural requirements have been fulfilled. Inter alia, PW 22 deposed that after cautioning the accused that the confessional statement, if made, will be used in evidence against them, he gave three hours time for reflection during which the accused were kept in a room attached to the Court in the immediate presence of an office peon.

PW22 further stated that it appeared to him that the accused made the statement voluntarily. A memorandum as required by Sub-section (4) was also recorded. Thus the first requirement for acting on a confession is satisfied but that is not the end of the matter.

The Court, called upon to consider the evidence against the accused, should still see whether there are any circumstances appearing from the record which may cast a doubt on the voluntary nature of the confession. The endeavour of the Court should be to apply its mind to the question whether the accused was free from threat, duress or inducement at the time of making the confession.

In doing so, the Court should bear in mind, the principle enunciated in Pyare Lal v. State of Rajasthan [(1963) Suppl.1 SCR 689] that under Section 24 of the Evidence Act, a stringent rule of proof as to the existence of threat, duress or inducement should not be applied and a prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, “on the evidence and the circumstances in a particular case it may appear to the Court that there was a threat, inducement or promise, though the said fact is not strictly proved.”


Babubhai Udesinh Parmar v. State of Gujrat (2006)

[1] Bharat v. State of U.P., (1971) 3 SCC 950 and Subramania Goundan v. The State of Madras, (1958) SCR 429]