Explanation of Section 164 CrPC: Power to Record Statements and Confessions

Section 164 of the Criminal Procedure Code (CrPC), 1898 empowers specific Magistrates in Pakistan to record statements and confessions made by accused persons or witnesses during the course of a criminal investigation. This section outlines the conditions and procedures under which these statements and confessions are admissible in evidence. Below is a detailed breakdown of the provisions of Section 164 CrPC:

Text of Section 164 CrPC:

Subsection (1):

“Any Magistrate of the First Class and any Magistrate of the Second Class specially empowered in this behalf by the Provincial Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.”

• Magistrates Authorized: Only Magistrates of the First Class and Magistrates of the Second Class (who are specifically authorized by the Provincial Government) have the power to record statements and confessions. This ensures that not just any officer can record these vital pieces of evidence, but rather a judicial authority with proper training.

• When the Statement/Confession Can Be Made: The statement or confession can be recorded during the investigation, at any time before the inquiry or trial begins. This means that the statement/confession could be made during police investigation or even after the investigation is completed but before the trial starts.

• Non-Police Magistrates: Only Magistrates (not police officers) can record these statements or confessions. This provision is designed to prevent coercion or undue influence from the police during the investigation process.

Subsection (1-A):

“Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross-examining the witness making the statement.”

• Presence of the Accused: This provision introduces the right of the accused to be present during the recording of statements. This serves as an additional safeguard against possible coercion or influence over the statements being made by witnesses.

• Cross-Examination: The accused must be given an opportunity to cross-examine the witness who is making a statement. This ensures that the accused can challenge the credibility of the statement made, ensuring fairness in the judicial process.

Subsection (2):

“Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case: Such confessions shall be recorded and signed in the manner provided in Section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.”

• Recording the Statement: The statement or confession must be recorded in a manner that is best suited for the circumstances of the case. This means that the Magistrate has some discretion in choosing the method of recording (e.g., verbatim or summarized).

• Section 364 Reference: If a confession is being recorded, it must follow the process outlined in Section 364 of the CrPC, which deals with the formal process for recording confessions in criminal cases.

• Forwarding the Statement/Confession: Once the statement or confession is recorded, it must be sent to the Magistrate who will handle the inquiry or trial for the case. This ensures that the statement or confession becomes part of the official record of the case.

Subsection (3):

“A Magistrate shall, before recording any such confessions 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 no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and when he records any confession, he shall make a memorandum at the foot of such record to the following effect:…”

• Voluntary Confessions: Before recording a confession, the Magistrate must explain to the person that they are not obliged to confess and that the confession can be used against them in the trial. This is an important safeguard to ensure that the confession is voluntary and not coerced.

• Interrogation by the Magistrate: The Magistrate must question the person making the confession to determine if it was made voluntarily. If there are any signs of coercion or threats, the Magistrate must refuse to record the confession.

• Memorandum of Voluntariness: After the confession is recorded, the Magistrate must make a memorandum on the document, certifying that the confession was made voluntarily. The memorandum includes the following:

  1. Explanation to the Accused: The Magistrate must explain that the accused is not obliged to make a confession and that it may be used against them.
  2. Voluntariness: The Magistrate must confirm that the confession was made voluntarily, without any coercion.
  3. Accuracy of the Confession: The confession must be read over to the person who made it, and they must acknowledge that it is accurate and reflects what they intended to say.

• Example of Memorandum:
  “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. 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.”

Explanation:

“It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having Jurisdiction in the case.”

• Jurisdiction: It is clarified that the Magistrate recording the confession or statement does not need to have jurisdiction over the case. In other words, even if the Magistrate does not have authority over the investigation or trial of the case, they can still record the statement or confession as long as they are authorized to do so under Section 164.

Summary of Key Points:

1. Who Can Record Statements and Confessions: Only a Magistrate of the First or Second Class, authorized by the Provincial Government, and not a police officer, can record statements and confessions.

2. Timing and Context: Statements or confessions can be recorded during the investigation or before the inquiry/trial begins.

3. Right of the Accused: The accused has the right to be present when statements are made, and to cross-examine witnesses making statements.

4. Voluntary Confessions: Before recording a confession, the Magistrate must ensure it is voluntary, and they must explain to the accused that they are not required to confess and that any confession made can be used against them in court.

5. Formal Recording Process: The confession must be recorded and signed in the manner prescribed in Section 364, and it must include a memorandum affirming that the confession was made voluntarily.

6. Magistrate’s Discretion: The Magistrate has some discretion regarding how the statement or confession is recorded, but it must be forwarded to the relevant Magistrate handling the case for inquiry or trial.

Conclusion:

Section 164 CrPC plays a crucial role in ensuring that statements and confessions made during a criminal investigation are lawfully recorded and can be admissible in court. The section ensures fairness by protecting the accused from coerced confessions and by giving them an opportunity to challenge statements made against them. It also establishes clear procedures for how confessions should be recorded, signed, and forwarded for further proceedings.