“Law should not sit limply, while those who defy it to go free and those who seek its protection lose hope.” 1Jennison v. Baker (1972) 1 All ER 997.
The quote stated above gives a clear understanding that lawmakers and the judiciary should actively work in the changing society to protect and preserve human rights and to punish those who break the law and commit the offense. The present blog will discuss the provisions of the code of criminal provision which will be available to the person arrested. Under the discussed provisions the accused have certain rights to deny or get some protection. This article seeks to explore the reliability and validity of Confessions And Statements.
The scheme of sections 162-164 of the code of criminal procedure has to be understood in the light of the constitutional framework of the country which keeps human rights above everything. The code not only provides procedural safeguards but also establishes a substantive framework. According to these sections accused or the person making the confessions or statements to the person in authority are to be voluntary and with free will and not otherwise. Hence a brief understanding has been developed through the below discussion.
Provisions Of Code Of Criminal Procedure
Section 162 of The Code of Criminal Procedure
The section states that any person making a statement to a police officer and if it is reduced to writing need not be signed. This section deals with police investigating cognizable offences. The important words in Section 162 of the Code are “No statement made by any person to a police officer”. Therefore the statement must be one to a police officer and unless it is to a police officer, it does not fall within the mischief of Section 162 of the Code. 2ValibhaiOmarji v. The State, AIR 1963 Guj 145.
Previously the question did not arise and was understood as the section does not include the accused while considering any person. But court for the first brought this question in the Pakala Narayana Swami V. Emperor. 3Pakala Narayana Swami v. Emperor AIR 1939 PC 47. The question under this section is whether the word ‘any person’ includes the accused or not. The court in various cases discussed this question and concluded that the said term includes the accused as well and he also has a right to not sign any statement made by him to the police officer in writing.
Thus, Section 162 deals with a statement made by any person to a Police Officer in the course of an investigation. The expression “any person” is comprehensive enough to include a person treated as a witness and also an accused person if regard had to the plain meaning of those words. 4In Re: SyamoMahaPatro And Anr. v. Unknown, (1932) 62 MLJ 742.
Section 163 of The Code of Criminal Procedure:
Section 163 clearly lays down that the police officer or any other person in authority shall not make any inducement, threat, or promise on the person making the statement which is in line with section 24 of the Indian Evidence Act. Also, it states that if a person is making a statement of his own free will then the police officer or the person in authority should not prevent him from doing so. And the proviso of the section states that nothing in sub-section (2) affects the sub-section (4) of section 164 of the Code.
These provisions are laid down to carry out the fair investigation and to see that an atrocious police officer may not misuse his position by getting a sign of the maker on a statement to form charges against him. Also, the grant of a pardon and immunity from prosecution was not at the discretion of police authorities. 5P. Sirajuddin Etc v. State of Madras Etc, 1971 AIR 520.
Section 164 of the Code of Criminal Procedure
Section 164 states the procedure of recording of confessions and statements made by a person to any Metropolitan Magistrate or Judicial Magistrate, whether or not he had jurisdiction in the case, during the investigation under the code or any other law applicable at the time of trial or before its commencement. The proviso of this section prevents the police officer from having the judicial powers to record the confession.
Further clause (2) of the section makes The Magistrate accountable, before recording any such confession:
- To clarify the person confessing that he is not obliged to make the same.
- To explain to him that if he confesses, it can be used as evidence against him.
- And the magistrate shall record the confession only after questioning the person, he is satisfied that the person confessing is doing so voluntarily and without any threat, or inducement.
Furthermore, before the confession is recorded the person states that he is not willing to confess, and then the magistrate should not send the person in police custody.
Additionally, the manner provided in section 281 has to be followed for recording the confession and need to be duly signed by the person and the Magistrate shall make a note at the foot of such record stating the following: –
” 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 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. Magistrate”.
Also, any statement (other than a confession) made under sub-section (1) shall be recorded in a manner for recording the evidence as according to the magistrate best fits the circumstances provided under the code, and the magistrate, if requires, can administer the oath of the person making the statement. After the procedure is completed of recording the confession and preparation of memo, the magistrate who is recording the confession or statement needs to forward the same to the magistrate who has the jurisdiction over the case.
Moreover, for using the confessional statement recorded under the above section for conviction of the accused, the court needs to undergo the double test. Firstly, it has to determine whether the confession is made voluntarily or not? And if the answer to the question is negative then there is no need to move to the second test but if the court is affirmatively satisfied with the first test then the court may move to the second test which talks about finding reliability and truthfulness.
The other shreds of evidence have to be taken into consideration for fulfilling the second test. And if the court is satisfied then the conviction of the accused can be based on the confessional statement as laid down by the apex court in the Shankaria case 6Shankaria v. State of Rajasthan, 1978 SCC (3) 435.. But if the confession is not corroborated with reliable pieces of evidence then it cannot be used as substantive evidence. 7State v. Hotey Khan, 1960 ALJ 642.
From the above understanding of the section, it can be stated that:
- The forceful extraction of the confession or any self-incriminating statement can be prevented. 8Rajesh Ranjan @ Pappu Yadav v. The State of Bihar Thru. CbiCriminal Appeal (DB) No.418 of 2008.
- The confessional statement can only be used against the person making it.
- There should be a cooling period between the magistrate explaining the counter effects of the confession and the accused confessing. 9Anil Kumar Yadav v. The State Of Bihar Thru.Cbi,Criminal Appeal (DB) No.418 of 2008.
From the above rationalization, it can be inferred that statements to the police officer are not reliable and cannot be used to corroborate or contradict.
Although a confession or statement cannot be obtained through inducement, threat, or promise as given under section 163(1) of the code however same done with free will and violation cannot be set aside as given under section 163(2) and section 164.10Md.AjmalMd.Amir Kasab @Abu v. State of Maharashtra, (2012) 9 SCC 1.
Further, the confessional statements made before the judicial magistrate can be relied upon if recorded as the procedure given under the Code. Thus, the law considers only judicial confessions to be admissible as evidence.