Section 164 CrPC: Procedural Safeguards, Evidentiary Value, and Emerging Jurisprudence

Section 164 of the Code of Criminal Procedure: Procedural Safeguards, Evidentiary Value, and Emerging Jurisprudence

Introduction

Section 164 of the Code of Criminal Procedure, 1973 (“CrPC”) arguably performs the most delicate task in Indian criminal procedure: it bridges the investigatory stage and the trial stage by permitting a Judicial Magistrate to record confessions of the accused and statements of any person. The provision simultaneously protects constitutional values—particularly the right against self-incrimination under Article 20(3) and the guarantee of personal liberty under Article 21—while also preserving reliable evidence for the fact-finding mission of courts. Recent jurisprudence, including the Supreme Court’s directions in State of Karnataka v. Shivanna[1], reforms in sexual-offence trials, and expansive human-rights reasoning in Selvi v. State of Karnataka[2], underscores both its utility and vulnerability. This article critically analyses the statutory text, statutory purpose, and the evolving case law, with special reference to the twenty-four primary materials supplied.

Legislative Scheme and Objectives

Textual Framework

Section 164(1) empowers “any Metropolitan or Judicial Magistrate” to record a confession or statement “in the course of an investigation … or at any time afterwards before the commencement of the inquiry or trial.” Sub-sections (2)–(4) build procedural fortification: mandatory caution, voluntariness inquiry, prohibition on police custody if the maker declines to confess, and a memorandum in the Magistrate’s own hand attesting compliance. Since the 2009 amendment, the first proviso to sub-section (1) further enables audio-video recording in the presence of the advocate of the person—a legislative response to earlier miscarriages of justice.

Purpose and Constitutional Symbiosis

The provision seeks a triple balance: (i) truth-seeking, by preserving contemporaneous narratives before memories fade or witnesses turn hostile; (ii) voluntariness, by judicial insulation from police influence; and (iii) fair-trial guarantees, by ensuring the accused is not coerced. This balance resonates with Article 20(3) (“no person accused of any offence shall be compelled to be a witness against himself”) and Article 21 (due-process content as elaborated in Selvi).

Evidentiary Status

Substantive versus Corroborative Character

While a confession recorded under Section 164 is substantive evidence if it passes the test of voluntariness (Tulsi Singh v. State of Punjab[3]), a statement of a witness is not; it can only be used for corroboration under Section 157 or contradiction under Section 145 of the Evidence Act (Alauddin v. State of Assam[4]). The Supreme Court reiterated in Sonu @ Subhash Kumar v. State of U.P.[5] that the evidentiary value of such statements is circumscribed and conviction cannot rest solely upon them unless duly corroborated.

Contradictions and Omissions

Section 162 CrPC read with Section 145 Evidence Act governs the use of prior statements for impeachment. The Court in Alauddin clarified that only “significant and relevant” omissions amount to contradictions. A failure to specifically confront a witness with the contradictory portion renders the impeachment incomplete, a recurrent trial-level error.

Voluntariness and Validity of Confessions: Judicial Stringency

Shivappa v. State of Karnataka and the Voluntariness Inquiry

Shivappa[6] remains the locus classicus on mandatory compliance. The Magistrate had omitted to: (i) inform the accused that he was before a judicial officer; (ii) enquire about police influence; and (iii) ensure that refusal would not return him to police custody. The Supreme Court set aside the conviction, underscoring that the “means of eliciting the confession are as important as the confession itself.” The decision re-affirmed the ratio of Nazir Ahmad v. King-Emperor (Privy Council, 1936) that mandatory statutory procedure cannot be replaced by “substantial compliance.”

Tulsi Singh, Bala Majhi, and Perils of Mechanical Endorsements

In Tulsi Singh, the Magistrate’s endorsement under sub-section (4) could not cure his failure under sub-section (2). Similarly, the Orissa High Court in Bala Majhi[7] held that courts cannot retrospectively determine voluntariness; it must be demonstrably secured at the moment of recording.

Recording After Police Custody: Rabindra Kumar Pal

The Court in the Graham Staines murder trial noted multiple instances where accused were taken back to police custody after recording their statements. Such practice offends sub-section (3) and vitiates voluntariness. The decision is an important reminder that Section 164 embodies not merely form but liberty-oriented substance.

Witness Statements in Sexual-Offence Jurisprudence

Supreme Court’s Directions in State of Karnataka v. Shivanna

Responding to systemic delays, the Court directed that (i) the victim’s statement and all witness statements in rape cases be recorded before a Lady Judicial Magistrate under Section 164 forthwith; and (ii) the medical report be forwarded simultaneously[1]. These directions, though crafted in writ jurisdiction, implicitly treat Section 164 as a victim-centric protective tool, ensuring early, trauma-minimised, and credible testimony. They complement earlier observations in State of Punjab v. Gurmit Singh[8], where the Court stressed sensitivity toward sexual-offence survivors and endorsed in-camera proceedings.

Evidentiary Use in Trial

Rape prosecutions often falter when survivors turn hostile. Courts have occasionally attempted to rely solely on Section 164 statements; however, the Supreme Court in Somasundaram @ Somu[9] reiterated that such statements are not substantive evidence. Consequently, prosecutors must still secure the presence of the survivor at trial or adduce other corroboration (medical, forensic, circumstantial).

Circumstantial Evidence and Section 164: R. Shaji v. State of Kerala

In R. Shaji[10], the defence attacked the conviction by flagging procedural lapses in recording witness statements. The Supreme Court held that even assuming some irregularities, the robust chain of circumstantial evidence (notably DNA) satisfied the test in Sharad Birdhichand Sarda. The decision illustrates that incomplete compliance, though serious, may not ipso facto destroy an otherwise unassailable prosecution case; the court will examine prejudice to the accused.

Section 164 in Capital Sentencing Discourse

Although primarily invoked at an earlier procedural stage, Section 164 interacts with death-penalty jurisprudence. In Rameshbhai Chandubhai Rathod v. State of Gujarat[11], the Court scrutinised compliance with Sections 235(2) & 354(3) CrPC during sentencing but simultaneously emphasised that pre-trial procedural rights—including those under Section 164—form part of the “due process” that animates the “rarest of rare” doctrine. Any taint in early confession-taking can later influence the proportionality analysis.

Right Against Self-Incrimination and Scientific Techniques

The Court in Selvi[2] drew an explicit distinction: involuntary narco-analysis or polygraphy constitutes “testimonial compulsion,” whereas Section 164, if complied with in letter and spirit, is constitutionally permissible because it insists on voluntariness and judicial supervision. Thus, the jurisprudence positions Section 164 as a constitutionally acceptable gateway for obtaining self-inculpatory material, provided coercive techniques are eschewed.

Procedural Pitfalls and Judicial Correctives

  • Administering Oath: As noted by the Sikkim High Court in State of Sikkim v. Suren Rai[12], placing a witness or accused under oath while recording a confession violates Section 281 read with Section 164(4), rendering the confession inadmissible.
  • Language and Accessibility: The Supreme Court in CBI v. Narottam Dhakad[13] reiterated that certified copies of Section 164 statements must be supplied free of cost to the accused under Section 207; failure stalls fair-trial rights.
  • Magistrate as Witness: The Madras High Court has admonished investigating agencies for routinely citing Magistrates as witnesses (K. Sathishkumar[14]). The practice undermines judicial independence and is unnecessary because the record speaks for itself.
  • Public-document Character: Early decisions such as Bashiruddin v. Emperor[15] regard Section 164 statements as public documents accessible for defence inspection, a view recently reaffirmed in Brikan Devi v. State[16].

Contemporary Developments and Reform Proposals

  1. Mandatory Audio-Video Recording: Despite statutory enablement, implementation is patchy. The Ministry of Home Affairs’ Model Rules (2020) should be operationalised statewide, particularly in sexual-offence and custodial-violence cases.
  2. Specialised Magistrates: Following the Shivanna directions, several High Courts have created pools of Lady Magistrates for vulnerable-witness statements. Institutionalising this practice through an amendment or High Court Rules would cement victim-centric justice.
  3. Time-lines: Fast-track mandates for Section 164 recording within 24–48 hours of FIR registration in designated categories (rape, POCSO, terrorism) should be considered, aligning with best-practice models from Delhi and Maharashtra.
  4. Training Modules: Judicial academies must incorporate simulation-based training on voluntariness enquiry, mental-health indicators, and culturally sensitive questioning, reducing mechanical compliance.
  5. Digital Authentication: Integration with the e-Courts platform could allow secure digital signatures and meta-data to ensure authenticity and chain of custody, mitigating disputes over tampering.

Conclusion

Over the past nine decades—from Bashiruddin (1931) to Alauddin (2024)—Section 164 CrPC has evolved into a procedural crucible where constitutional safeguards and evidentiary imperatives converge. When faithfully observed, it strengthens prosecutions, protects accused persons, and fosters public confidence. When neglected, as revealed in Shivappa and Tulsi Singh, it imperils the integrity of convictions. The jurisprudence surveyed confirms that strict compliance is not a mere technicality but the sine qua non of criminal justice. Emerging reforms—audio-video recording, specialised magistracy, and digital integration—should be embraced to ensure that Section 164 remains a robust instrument of both truth and liberty in the Indian legal order.

Footnotes

  1. State of Karnataka by Nonavinakere Police v. Shivanna alias Tarkari Shivanna, (2014) 8 SCC 913.
  2. Selvi & Ors v. State of Karnataka, (2010) 7 SCC 263.
  3. Tulsi Singh v. State of Punjab, (1996) 6 SCC 63.
  4. Alauddin v. State of Assam, 2024 SCC OnLine SC 760.
  5. Sonu @ Subhash Kumar v. State of Uttar Pradesh, (2021) SCC OnLine SC 181.
  6. Shivappa v. State of Karnataka, (1995) 2 SCC 76.
  7. Bala Majhi v. State of Orissa, AIR 1951 Ori 62.
  8. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384.
  9. Somasundaram @ Somu v. State, (2020) 7 SCC 722.
  10. R. Shaji v. State of Kerala, (2013) 14 SCC 266.
  11. Rameshbhai Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740.
  12. State of Sikkim v. Suren Rai, 2018 SCC OnLine Sikk ___.
  13. Central Bureau of Investigation v. Narottam Dhakad, 2023 SCC OnLine SC 1069.
  14. K. Sathishkumar v. State, 2018 SCC OnLine Mad ___.
  15. Bashiruddin v. Emperor, AIR 1931 All 661.
  16. Brikan Devi v. State, 2024 SCC OnLine HP ___.