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Citizens for Justice and Peace

Legal Note to SIT with (Gujarat 2002 trials)

24, Nov 2008

 

November 24, 2008

To,

Shri
RK Raghavan

Chairperson

Special Investigation
Team (SIT)

Gandhinagar

Dear Sir,

Given the background
of criminal trials in our country in general and the Gujarat 2002
trials in particular, it may be a wise and sound idea by SIT to record
statements of witnesses and eye witnesses under Section 164 of the
CRPC before a Magistrate. As I am sure you are already aware, the
Gujarat police are recording 164 statements of both accused and
witnesses connected with the blast investigations. Why not for the
witnesses/eyewitnesses of the mass carnage of 2002?

Sir in this connection
I have taken the liberty of preparing this noteÂ…May I simply add that
this step would give the SIT efforts a sound and solid grounding
before trials commence.

Yours Sincerely,

Teesta Setalvad

Secretary

Confessional Statement u/s 164 Cr. P. C.

The provisions made
in sec. 164 of the Code are reproduced  hereinbelow:

“164. Recording of
confessions and statements -(1) Any Metropolitan Magistrate or
Judicial Magistrate may, whether or not he has jurisdiction in he
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.

(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 b recorded in the manner provided in sec. 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 –

“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”

(5) Any statement
(other than a confession) made under sub-section (1) shall be recorded
in such manner hereinafter provided for 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.

(6) The Magistrate
recording a confession or statement under the section shall forward it
to the Magistrate by whom the case is to be inquired into or tried.”

1.

1997(1)
Gujarat Law Herald 155
:
Confessional Statement recorded by the magistrate u/s 164 Cr.P.C.:
Conditions to be followed-

( i) Magistrate to
disclose to accused that he was a magistrate.

(ii) Magistrate is
required  to inquire if the accused is influenced to make such a
statement.

(iii) Magistrate to
assure accused that he shall not be sent to police custody in case he
didnÂ’t make statement.

(iv) Magistrate
should also question the accused as to why he wanted to make
confession.


2.

2002 (1)
GCD 710 : 2001 GLHEL 206530

Para-8 On a bare perusal of sec. 164 of the Code, it becomes
very clear that the procedure to be followed while recording
confession and statement under section 164 is indicated in the section
itself. Sub-section (2) of section 164 of the Code makes it clear that
before recording any confession, the Magistrate shall 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
not being made voluntarily. Now, it is very clear that while recording
statement and confession under sec. 164 of the Code, the Magistrate
recording the statement is aware of the position that the accused
brought to him is going to make a confessional statement before him.
Even the accused person, taken to the Magistrate, knows that he is to
make a confessional statement. The police investigating agency
producing he accused before the Magistrate concerned is also aware of
the aforesaid provision. In other words, before commencing of
recording a confessional statement, everybody is aware of the fact
that confessional statement is going to be made by the accused person
in presence of a Magistrate. At that time, everybody knows that such a
statement can be used against the person if he makes it. Then it is
further made clear that if such an accused person is not willing to
make confession, the learned Magistrate was not authorised to permit
further detention of the person concerned in police custody. Then it
is further made clear that while recording confessional statement, it
is required to be recorded in the manner provided in section 281 of
the Code 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 in the proforma
given in sub-section (4) of sec. 164 of the CodeÂ…Â…Â…Â…Â…..

Â…Â…Â…Â…Â….On the other
hand, the confessional statement to be recorded under sec. 164 of the
Code would naturally be a statement of an accused person. Therefore,
the procedures have been envisaged and they are required to be
followed before recording confessional statement under sec. 164 of the
Code.

3.
1996(2) G.L.H. 421

A confession in
criminal law means an admission of certain facts which constitute an
offence committed by a person charged with the offence which is the
subject-matter of confession. A confession must either admit in terms
the offence or at any rate substantially all the facts which
constitute the offence. An admission of a gravely incriminating fact,
even a conclusively incriminating fact is not of itself a confessionÂ…Â…

Â…Â…Â…Â….. Thus, as per
the provision of Section 164 of the Code, confession or statement in
the course of an investigation can be recorded either by a
Metropolitan Magistrate or by a Judicial Magistrate. The Executive
Magistrate was not empowered to record confessional statement of the
appellant as he was neither a Metropolitan Magistrate nor a Judicial
Magistrate. Furthermore, when investigation has already commenced, the
confessional statement can be recorded by the Magistrate empowered by
Section 164 of the Code, only in the manner prescribed in the said
section.

Â…. While dismissing
the State appeal, the Supreme Court has observed as under in para 8 of
the judgment :

The rule adopted in
Taylor
v. Taylor (1876) 1 Ch D 426

is well recognised and is founded on sound principle. Its result is
that if a statute has conferred a power to do an act and has laid down
the method in which that power has to be exercised, it necessarily
prohibits the doing of the act in any other manner than that which has
been prescribed. The principle behind the rule is that if this were
not so, the statutory provision might as well not have been enacted. A
Magistrate, therefore, cannot in the course of investigation record a
confession except in the manner laid down in S. 164. The power to
record the confession had obviously been given so that the confession
might be proved by the record of it made in the manner laid down. If
proof of the confession by other means was permissible, the whole
provision of S.164 including the safeguards contained in it for the
protection of accused persons would be rendered nugatory. The section,
therefore, by conferring on magistrates the power to record statements
or confessions, by necessary implication, prohibited a magistrate from
giving oral evidence of the statements or confessions made to him.”

4.
1997 (1) G. L. H. 155
 (A) Indian Penal Code, 1860 –
S. 300 – Murder – Confessional statement of the accused recorded by
Magistrate under S. 164 Cr. P. C. – No attempt on the part of
Magistrate to ascertain voluntary character of confessional statement
– Mere caution to the accused that he was not bound to make statement
and that if he did make a statement that may be used against him as
evidence would not be sufficient – The questions to be put to the
accused by the Magistrate – Non-compliance of such aspect – Judicial
confession before the Magistrate becomes unreliable.

Because
of the above-said evidence tendered by the learned JMFC, Mr.Tanna,
there is the contention coming from the learned counsels for the
appellants that the above-said confessional statement cannot be said
to be a genuine confessional statement which could be taken into
consideration. The reliance is sought to be placed upon the Supreme
Court decision in case of Shivappa, Appellant v. State of Karnataka,
Respondent, Crimes, 1995(1), page 138 (AIR 1995 S. C. page 980). The
Supreme Court has made it abundantly clear that the administration of
the caution to the accused that he was not bound to make a statement
and that, if he did make a statement, that may be used against him as
evidence would not be sufficient. The Supreme Court says that, the
Magistrate must disclose to the accused that he was a Magistrate and
that the confession was being recorded by him in that capacity. The
Magistrate is also required to inquire as to whether the accused has
been influenced by anyone to make any such confession. The Magistrate
also would be required to lend assurance to the accused that he would
not be sent back to police custody in case he did not make the
confessional statement. The Magistrate recording the confessional
statement also should question the accused as to why he wanted to make
the confession or as to what had prompted him to make the confession.


(Para 7)

5.

xxxxxxxxxxxx-searching citation.

It is sole
prerogative of the investigating officer to decide whether to record
the statement of a particular person u/s 164 Cr.P.C. or not. The
parties have no right to get their statement recorded u/s 164 Cr. P.
C.


 

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