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Procedure and Formalities to be Observed while Recording Confession



Confession is admission of guilt by a person and its maker may be convicted on its strength alone.

Procedure and Formalities to be Observed

The following formalities have to be observed by Magistrate while recording the confessional statement of accused. (S 164 r/w 364 Cr.P.C)

  • Statements or confessions made in the course of an investigation can be recorded only by the Magistrate of the 1st Class or a Magistrate of the 2nd class, Who has been specifically empowered by the provincial government.
  • When any accused disclose his intention to record a confessional statement the first act of the magistrate is to remove the handcuff of the accused if he is in handcuff;
  • Accused should be left for some time away from the influence of police in order to ensure that a statement or confession under/s. 164 Cr.P.C is made voluntary. For this purpose the prisoner is left for some time (say for half an hour) out of the hearing of police officers or other persons likely to influence him.
  • The Magistrate has to explain to the accused that he is appearing before magistrate and that he is not bound to make any confession and if he makes any confession it may be used against him and he may be convicted on its strength.
  • The magistrate had to ask the accused if police had used any coereive method to obtain a confession from him.
  • Thereafter the Magistrate has to again ask the accused whether he is still willing to make a confession and on his reply in the affirmative he may record the confession.
  • Confession must be recorded in the manner provided in S. 364.
  • The memorandum set forth in S. 164 (3) must be appeared at the foot of the record of the confession.
  • No magistrate shall record any such confession unless upon questioning the accused making it he has reason to believe that it was made voluntary, failure to question has bee held to vitiate the confession.
  • An accused person who had made confession before magistrate should be sent to judicial lookup and not made over to the police after the confession has been recorded.
  • Even after recording the confessional statement of the accused the Magistrate is required to record some prosecution evidence in corroboration of the confession.
  • The Magistrate who records a confession u/s 164 Cr.P.C should not hand over the document after completion to the police officer in charge of the prisoner, but should forward it, as required by sub-section (2) of that section, direct to the Magistrate by whom the case is to be inquired into or tried.
  • It is not necessary that the Magistrate receiving and recording a confession should be a Magistrate having jurisdiction in the case.

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