International Journal of Pure and Applied Mathematics

Volume 120 No. 5 2018, 147-156

ISSN: 1314-3395 (on-line version)
url: http://www.acadpubl.eu/hub/
Special Issue
http://www.acadpubl.eu/hub/

POWER OF JUDICIAL MAGISTRATE TO RECORD CONFESSION

1
Prethev.K, 2Arya R
1
Student, BA. LLB (HONS) 4th year, Saveetha School Of Law, Saveetha institute of medical &
technical sciences, Saveetha University, Chennai 77,Tamilnadu,India.
2
Assistant Professor, Saveetha School Of Law, Saveetha institute of medical & technical sciences,
Saveetha University,Chennai 77,Tamilnadu,India.
1
prethevterror@gmail.com, 2advaryar@gmail.com

ABSTRACT
Law provisions concerning power of Judicial magistrate to record confessions and
statements under section 164 of the Code of criminal procedure, 1973.Any confession made
to a police officer is absolutely inadmissible proof because the police, through and big, is not
as yet considered honest. it is apprehended that any energy given to the police to report
confessing or statements is more likely to be misused and that the overzealous police officers
would possibly, in the obvious workout of such strength, extort or fabricate confessions and
manipulate statements. consequently, the Code of criminal procedure gives by means of
section 164 a special system for the recording of confessions and statements made throughout
the route of research via equipped judicial magistrates.
OBJECTIVES
1. To understand about confession under Indian Evidence Act
2. To find out types of confession
3. To know about power judicial magistrate to record confession.
4. To analysis the section 164 of Crpc
5. To know about the case law regarding the confession
HYPOTHESIS
Whether the power of judicial magistrate in recording the confession is admissible under
Indian Evidence Act and comparing the difference between judicial confession and Police
confession and its admissibility .
LIMITATIONS:
The researcher is not able to do field study due to lack of time
The researcher is not able to access the archives.

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METHODOLOGY:
The methodology used in this study is doctrinal. It is based on the information and the
analytical study from secondary sources. They include publication research, surveys,
journals, historical information of both past and present. When a research is concerned with
legal problems, issue or question, it is referred to as doctrinal theoretical or pure legal
research. Doctrinal research is a theoretical study where mostly secondary sources of data are
used to seek to answer one or two legal proposition or questions or doctrines. Its scope is very
narrow and there is no such need of field work.
INTRODUCTION
confession is an admission made any time by means of someone charged with an
offence or suggesting the inference that he has devoted the offence. with a view to constitute
a confession it need to cither admit in terms of the offence or at any fee substantially all the
information which represent the offence.A declaration that includes self exculpatory depend
cannot quantity to a confession. section 164, Crpc. empowers a metropolitan magistrate or
judicial Justice of the Peace, whether or no longer he has jurisdiction within the case to file
any confession or assertion made to him within the path of an research or at any time
afterwards earlier than the commencement of the inquiry or trial. supplied that any confession
or statement made under this sub-phase can also be recorded by using audio-video electronic
way inside the presence of the endorse of the person accused of an offence.The aim of this
study is to find out the power of judicial magistrate to record confession, evidentiary value of
judicial confession along with conditions of police confession and Admissibility of judicial
confession under Indian Evidence Act.
REFERENCE
1. E-BOOKS
2. E-SOURCES
KEYWORDS
Confession-judicial confession-admissibility-video recordings-co accused
CHAPTER - 1 KINDS OF CONFESSION
There are four types of confession as follows
1. Judicial confession
2. Extra- judicial confession
3. Retracted confession
4. Confession by co-accused

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1. JUDICIAL CONFESSION
A Judicial Confession is that that is made before Justice of the Peace or in a
courtroom due direction of judicial intending. Judicial Confession is applicable and is used as
an evidence in opposition to the maker furnished it is recorded according with provisions of
section 164 of Crpc The Justice of the Peace who data a confession below section 164,
criminal procedure Code, need to, consequently, warn the accused who is about to confess
that he can also or may not be taken as an approval. After caution the accused he need to
deliver time to assume over the problem and then most effective file the confession. this sort
of confession is referred to as judicial confession.
2. EXTRA JUDICIAL CONFESSION
Extra-Judicial Confession is made now not earlier than a Justice of the Peace or any
court in due path of judicial proceeding but is made either to police all through the
investigation or into police custody or made in any other case than to the police. Extra-
Judicial confession isn't applicable.
3. RETRACTED CONFESSION
The Accused character who confessed in advance and later denied such confession
does now not smash the evidentiary price of the confession as in the beginning recorded. The
superb court has stated that a Retracted confession may also form the premise of a conviction
if it gets a few preferred corroboration from other independent proof. however if the court
docket reveals that the confession in the beginning recorded changed into voluntary, it should
be acted upon.
4. CONFESSION BY CO ACCUSED
Section 30, attention of proved confession affecting individual making it and others
together below trial for the same offense. when greater individuals than one are being
attempted mutually for the equal offense, and a confession made through certainly one of
such folks affecting himself and some other of such persons is proved, the court docket may
additionally think about such confession as in opposition to such different character in
addition to against the person that makes such confession
CHAPTER- 2 POWER OF JUDICIAL MAGISTRATE TO RECORD CONFESSION
Legal provisions regarding energy of Judicial magistrate to record confessions and
statements underneath section 164 of the Code of criminal procedure, 1973. Any confession
made to a police officer is totally inadmissible evidence due to the fact the police, by way of
and massive, is not as but considered straightforward. it is apprehended that any electricity
given to the police to file confessing or statements is much more likely to be misused and that

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the overzealous cops may, in the plain workout of such energy, extort or fabricate confessions
and manipulate statements.consequently, the Code of criminal procedure presents by section
164 a special process for the recording of confessions and statements made at some point of
the direction of investigation via competent judicial magistrates. section 164 of the Code
affords that;
(1) Any Metropolitan magistrate or judicial Justice of the Peace may, whether or now not he
has jurisdiction within the case, document any confession or announcement made to him
inside the route of an research underneath this bankruptcy or beneath some other law in the
meantime in force, or at any time afterwards earlier than the commencement of the inquiry or
trial. but, no confession will be recorded by a police officer on whom any electricity of a
Justice of the Peace has been conferred underneath any law for the time being in force.

(2) The Justice of the Peace shall, before recording this sort of confession, explain to the man
or woman making it that he isn't certain to make a confession and that, if he does so, it could
be used as evidence in opposition to him, and the magistrate shall no longer file any such
confession except, upon wondering the individual making it, he has cause to accept as true
with that it's miles being made voluntarily.

(3) If at any time before the confession is recorded, the character appearing earlier than the
Justice of the Peace states that he isn't always willing to make the confession, the Justice of
the Peace shall now not authorize the detention of such man or woman in police custody

(4) the sort of confession will be recorded inside the manner provided in section 281 of the
Code for procedure the exam of an accused individual and will be signed by way of the man
or woman making the confession; and the magistrate shall make a memorandum.
CHAPTER - 3- EVIDENTIARY VALUE OF CONFESSION NOT MADE BEFORE
MAGISTRATE
Confession no longer made before magistrate – section 26 of the Indian Evidence Act,
1872: below S. 26, no confession made with the aid of any person even as he is in custody of
a police-officer, may be proved as against such character, until this kind of confession is
made in the instant presence of a magistrate.
This section also pursuits at remedying the equal mischief as is contemplated inside
the preceding section. S. 25 makes inadmissible a confession made by means of an accused to
the police. This section (S. 26) goes a step similarly to offer that a confession made with the

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aid of a person even as in a police custody to a third individual (i.e., aside from a police-
officer) is also no longer admissible, until it's far made within the on the spot presence of a
magistrate. The presence of a magistrate is, via a legal fiction, appeared as equal to removal
of police influence, and the statement is, consequently, now not rendered inadmissible.
CUSTODY
The mere temporary absence of a police-guy from the room wherein the confession is
recorded does no longer terminate his custody of the accused, if he has taken powerful steps
to prevent his get away, whether by means of locking the door of the room or by waiting
outside, or via leaving him within the custody of every other character.
where a village policeman, who had arrested the accused, left him in rate of positive villagers,
and went to look the scene of prevalence, and at some stage in that c language, the accused
confessed his guilt to the ones villagers, it became held that, notwithstanding the transient
absence of the policemen, the accused being still below the police custody, the greater
judicial confession made before the villagers became now not admissible in proof.

THE IMMEDIATE PRESENCE OF MAGISTRATE

The confession made by means of a person in the custody of a police-officer can not
be admitted in proof except it's miles in the immediate presence of a Justice of the Peace. The
technique for recording the confession is prescribed with the aid of the crook technique Code,
which lays down sure situations for the recording of the confession for the duration of
research. The strength to file confessions has been given simplest to sure lessons of
Magistrates.
CHAPTER -4 EVIDENTIARY VALUE OF CONFESSION TO POLICE UNDER
INDIAN EVIDENCE ACT
The item of this section 25 and S. 26 is to save you the practice of oppression or
torture with the aid of the police for the cause of extracting confessions from accused men
and women. Linder this phase, no confession made to a police-officer is admissible towards
the accused. Any incriminating assertion made by means of an accused to a police-officer is
inadmissible in proof. underneath the next segment, a confession made to a personal man or
woman inside the custody of the police and not made inside the immediate presence of a
magistrate, is also inadmissible in proof. it is to be cited that S. 25 may be very widely
worded, and it sincerely excludes from proof in opposition to the accused a confession made
via him to a police-officer underneath any situations by any means. whether such character is

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in police custody or now not is inappropriate. The concept is that, by using rendering such
confessions inadmissible, the temptation to export confessions is taken away.
Emp. v. Haji, [(1921) 23 Bom. L.R. 214]
An accused became charged with the offence of belonging to a gang of individuals
related for the purpose of habitually committing dacoity. at some point of the police enquiry,
he had made a announcement to an Inspector of Police that a package of ammunition
produced with the aid of him turned into given to him by way of two other accused who were
charged with him as being contributors of the gang. It became held that even though that
statement turned into self-exculpatory, it become inadmissible in evidence underneath this
segment, because it amounted to an admission of an incriminating condition.
SECTION 25 OF INDIAN EVIDENCE ACT
No confession made to a police officer, will be proved as against a person accused of
any offence. section 25 lays down that a confession made with the aid of someone to the
police officer is inadmissible and cannot be proved. The basic object of this phase and section
26 is to prevent practices of torture via the law enforcement officials for the reason of
extracting confessions from the accused folks. even though both sections seek to attain equal
reason they operate in unique fields. it is well known that the police officer to at ease
confession uses quick reduce techniques even by means of setting the arrested individual into
third degree so that the arrested individual confesses. “The principle upon which the rejection
of confession made through an accused to a police-officer or while inside the custody of such
officer (section 26) is based that a confession for that reason made or received is
untrustworthy.” this is the motives for which no confession made to a police officer will be
proved underneath section 25 as in opposition to character accused of an offence. The policy
behind section 25 is to exclude all confessional statements made by means of the accused to
the police officer beneath in situations at the same time as he's in custody of the police except
as is supplied in section 27. section 25 became enacted to place a forestall to the extortion of
confession. It changed into, consequently, enacted to sub-serve a excessive motive.
Alike section 25 the section 162 of the Code of criminal procedure, 1973 provides that no
statement made to a police officer investigating a case shall, if taken down in writing, be
signed with the aid of the individual making it, nor shall such writing be used as evidence.
assertion made to police officer at some point of research does not come to be admissible
simply because he's lifeless.

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SECTION 26 OF INDIAN EVIDENCE ACT

B bbNo confession made by using any character at the same time as he is in the
custody of a police officer, except it's made within the immediate presence of a Justice of the
Peace, shall be proved as in opposition to such man or woman.Section 26 is the extension of
the precept laid down in section 25. at the same time as section 25 applies to all confessions
made to a few cops, this phase consists of confession made to “any individual” aside from
police officer, even as in police custody. beneath this segment, it is furnished that no
confession made by using an accused to any person while in custody of a police officer will
be proved towards him until it's far made in the on the spot presence of a magistrate . thus,
the section is supposed to prevent of coercive method of extorting confession.
CASE LAWS
1. Pakala Narayan swami vs Emperor (AIR 1939 DC .47) In this case, LORD
ATKIN observed that: “A confession should both admit in terms the offence, or at
any rate extensively all of the statistics which represent the offence. An admission of
a gravely incriminating fact, even a conclusively incriminating fact, isn't in itself a
confession, for instance, an admission that the accused is the proprietor of and turned
into in current ownership of the knife or revolver which triggered loss of life without
a explanation of any other man’s possessions
2. Sahoo v. State of U.P. [AIR 1966 S.C. 40] The accused who was charged with the
murder of his daughter-in-regulation with whom he became continually quarrelling
become visible at the day of the murder going out of the home, saying words to the
impact: “i have completed her and together with her the each day quarrels.”

The statement turned into held to be a confession relevant in proof, for it isn't essential
for the relevancy of a confession that it should be communicated to a few other
individual.
3. RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF INDIA
[2011) 2 SCC 490] Graham Stuart Staines, a Christian Missionary from Australia,
turned into working most of the tribal humans specially lepers of the nation of Orissa.
His minor sons, namely, Philip Staines and Timothy Staines were burnt to death
along with their father inside the midnight of 22.01.1999/23.01.1999. The deceased-
Graham Staines was engaged in propagating and preaching Christianity within the
tribal area of indoors Orissa. inside the mid-night time of 22.01.1999, a mob of 60-70
human beings got here to the spot and set hearth to the automobile wherein Graham

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Staines became snoozing alongside together with his minor sons. The mob averted
the deceased to get themselves out of the automobile due to which all the three folks
were given burnt in the vehicle.
4. STATE OF MAHARASHTRA v. MOHD. AJMAL MOHD. AMIR KASAB
[Confirmation Case No. 2 of 2010] Retracted Judicial confession – Reliability of –
The court docket held that reliance may be located even on retracted confession if it is
adequately hooked up that the confession is proper and voluntary and corroborated on
all cloth particulars – it's far open for the courtroom to reject exculpatory data and
think about inculpatory statistics out of the same. [Paras 123 and 127]
concepts as regards evidentiary price of confessional assertion: [Para 126]
5. STATE v. RAM AUTAR CHAUDHRY [AIR 1955 All 138] In this case the
confession become recorded after the preliminary inquiry in opposition to the accused
had began, and it changed into in this context that the Bench which include Raghubar
Dayal and James, JJ. held that: “we are consequently of opinion that a magistrate
couldn't have recorded the confession of Budhoo purporting to exercise the powers
conferred on him under section 164 Cr. P. C. and that a confession so recorded by
way of him could not be taken in proof.”
6. BACHCHAN LAL v. STATE [AIR 1957 All 184] In this situation also the
confession was recorded at some stage in the initial enquiry, and, in reality, after the
Committing Justice of the Peace had recorded the statements of positive witnesses.
Purporting to rely on their earlier decision in kingdom v. Ram Autar Chaudhry, [AIR
1955 All 138], Raghubar Dayal and James, JJ. held that: “…..this confession can't be
taken in proof as a magistrate can document a confession below section 164 criminal
procedure Code in the course of the investigation of the crime by using the police and
not subsequent to the closing of the research and submission of the fee-sheet.”
SUGGESTIONS
It is well settled that a confession, if voluntary and surely made, is an efficacious
evidence of guilt. there's no rule that a confession made and subsequently retracted by means
of an accused cannot be frequent as evidence of his guilt without impartial corroborative
evidence. A retracted confession must carry almost no weight as in opposition to a person
aside from its maker.
CONCLUSION
Confessions are made by way of someone who is accused of an offence or no
longer. No statement that carries self-exculpatory matter can quantity to a confession if the

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exculpatory assertion is of identical truth which, if real, would negative the offence purported
to be confessed. A confession ought to either admit in terms of the offence or at any price
substantially all the statistics which represent the offence. A declaration made with out
animus confitenti (intention to confess) is not a confession.

BIBLIOGRAPHY
● https://lawlex.org/lex-bulletin/evidentiary-value-of-confession/3545
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1872/120414
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confessions-and-statements-section-164-of-crpc/119480
● http://www.shareyouressays.com/knowledge/the-conditions-which-must-be-fulfilled-
by-a-magistrate-in-recording-a-confession-in-order-to-render-it-admissible-in-
evidence/112877
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