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Statements of accused at various stages explained.-- The provisions of sections 164, 342 and 364 of the Criminal Procedure Code with regard to the confessions and statements of accused persons should be carefully studied. Section 164 deals with the recording of statements and confessions at any stage before the commencement of an enquiry or trial. Section 342 deals with the examination of accused persons during the course of the enquiry or trial. Section 364 prescribes the manner in which the examination of an accused person is to be recorded.
2. Use of confession of accused during Police trial recorded by Magistrate.-- The object of Section 164, Criminal Procedure Code, is to provide a method of securing a reliable record of statements or confessions made during the course of the Police investigation, which could be used, if necessary, during the enquiry or trial. Under *[Article 38 of the Qanun-e-Shahadat, 1984], a confession to a Police Officer is in-admissible in evidence, and hence when an accused person confesses during the Police investigation, the Police frequently get it recorded by a Magistrate under section 164, Criminal Procedure Code, 1898, and it can then be used to the extent to which it may be admissible under the *[Qanun-e-Shahadat, 1984.]
3. Presumption attached to confessions recorded by Magistrate and its evidential value. Safeguards provided in law to obtain a voluntary and precisely recorded confession.-- Under *[Article 91 of the Qanun-e-Shahadat 1984], a Court is bound to presume that a statement or confession of an accused person, taken in accordance with law and purporting to be signed by any Judge or Magistrate, is genuine, and that the certificate or note as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such statement or confession was duly taken. The words "taken in accordance with law" occurring in this section are very important and it is essential that in recording a statement or confession under section 164, the provision of that section *[shall] be strictly followed. ***[...] The evidential value of a confession depends upon its voluntary character and the precision with which it is reproduced and hence the section provides safeguards to secure this end. These safeguards are of great importance, as confessions are often retracted at a later stage and it becomes necessary for the court to ascertain whether the alleged confession was actually and voluntarily made. The mere fact that a confession is retracted does not render it inadmissible in evidence, but the Court has to scrutinize any such confession with the utmost care and accept it with the greatest caution. Experience and common sense in fact show that in the absence of some material corroboration it is not safe to convict merely on a retracted confession, unless from the peculiar circumstances under which it was made and judging from the reasons, alleged or apparent, of retraction, there remains a high degree of certainty that the confession, notwithstanding its having been resiled from, is genuine. ***[...]
4. Important features of Section 164, Criminal Procedure Code.-- Some important features of section 164 ***[...] are:-
(a) Statements or confessions made in the course of an investigation can be recorded only by a Magistrate of the first class or of the second class who has been specially empowered by the Provincial Government.
(b) Confessions must be recorded and signed in the manner provided in section 364.
(c) Before recording any such 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 in evidence against him.
(d) No Magistrate shall record any such confession unless upon questioning the person making it he has reason to believe that it was made voluntarily, failure to question has been held to vitiate the confession. ***[...]
(e) The memorandum set forth in section 164 (3) must be appended at the foot of the record of the confession.
(f) It is not necessary that the Magistrate receiving or recording a confession or statement should be Magistrate having jurisdiction in the case.
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[(g) 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. [See Sub-Section (1-A) of Section 164 Cr.P.C.]
5. Form prescribed for recording confessions.-- *[For recording confessions taken under section 164 of the code the following form shall be used:-]
RECORD OF CONFESSION MADE BY AN ACCUSED PERSON
(Section 164 of the Code of Criminal Procedure)
----------------------------------------- Division In the Court of---------------------------------------------------
THE STATE,
versus
The confession of-------------------------------------------------------------taken by me------------------------------------, a Magistrate of the--------------------------------District, this-----------------------day of-------------------------19 .
Memorandum of Enquiry
(The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession, and that if he does so, it may be used as evidence against him, and shall then put and record answers to the following questions. If the answers are of such a character as to require him to do so, he should put such further questions as may be necessary to enable him to judge whether the accused person is acting voluntarily. In arriving at his conclusion on this point the Magistrate should consider inter alia the period during which the accused person has been in Police custody and make sure that the confession is not the result of any undue influence or ill-treatment. Special care should be taken when women or children are produced by the Police for their confessions being recorded).
1. Q.-- Do you understand that you are not bound to make a confession?
A.-----
2. Q. Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you?
A.-----
3. Q.-- How long have you been in police custody?
A.-----
4. Q.-- Do you understand that after making a statement before me you will not be remanded to police custody, but will be sent to the judicial lock-up?
A.-----
5. Q.-- Understanding these facts, are you making a statement before me voluntarily?
A.-----
6. Q.-- What are your reasons for wishing to make a statement?
A.-----
Statement of accused.
(Mark or signature of accused). Magistrate.
I have explained to---------------------- 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 hat 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.
Dated_______________ Magistrate.
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6. Instructions for recording confessions.-- Unless there are exceptional reasons to the contrary confessions should be recorded in open Court and during Court hours. Police officers investigating the case should not be present. ***[...]
7. Accused who has made a confession should not be kept in Police custody, but should be kept in Judicial lock-up separate from other prisoners.-- An accused person who had made a confession before a Magistrate should be sent to the judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required, and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced before a Magistrate for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody.
7-A. When remanding to the lock-up an accused person who has made a confession, the Magistrate shall record an order for him to be kept separate from other prisoners as far as may be practicable.
8. Accused can be examined to explain the prosecution evidence against him and not to fill up gaps in that evidence.-- Section 342 of the Code empowers the Court to put questions to the accused at any stage of enquiry or trial to enable him to explain any circumstances appearing in evidence against him. The questions put under this section must be confined to the points brought out in the evidence and should not be in the nature of cross-examination of the accused person. Nor should the power given by the section be used to elicit information from the accused to fill up gaps in the prosecution evidence (cf I.L.R. 4 Lah. 55). For, the conviction of an accused person can only be based on the evidence produced by the prosecution, no oath can be administered to the accused and the answers given by him can only be taken into consideration in explanation of the prosecution evidence.
8-A. Accused can be questioned generally on the case only after prosecution evidence has been finished.-- The Magistrate is allowed by section 342 of the Code of Criminal Procedure to examine the accused at an early stage of the case for the purpose of enabling him to explain any circumstances appearing in the evidence against him. This provision is intended for the benefit of the accused, and must not be used to elicit his defence before the prosecution evidence is complete. Magistrates sometimes question the accused generally on the case as soon as a prima facie case has been made out, but before the prosecution evidence is complete. This is incorrect. According to the second part of clause (1) of section 342, it is only after the completion of the prosecution evidence that accused can be questioned generally on the case. ***[...]
9. Failure to examine accused at the close of prosecution evidence vitiates the trial.-- Section 342 makes it obligatory for a Court to examine the accused generally on the case after the witnesses for the prosecution have been examined and before the accused is called for his defence. Even when an accused person has been examined at an earlier stage the Court must examine the accused generally after the close of the prosecution case (i.e., after the examination and cross-examination of prosecution witnesses and their further cross-examination, if any, after the charge is framed) and before the accused is called upon to produce his defence, so as to give him an opportunity to explain any points, which were not included in the questions put to him at earlier stages. *[Compliance with the provision of section 342 must be ensured for non-compliance may have the effect of vitiating the trial.]
10. Written statement of accused.-- Under Section 256 of the Code, if the accused person puts in a written statement, it should be filed with the record. But a written statement of this kind does not relieve the Court of the duty of examining the accused in Court after the close of the prosecution evidence as laid down in section 342.
***
[Omitted]
11. Mode of recording examination of accused.-- Section 364 provides the mode in which the examination of an accused person is recorded. The questions put to the accused and the answers given by him should be distinctly and accurately recorded, but the accused must confine himself to relevant answers to the questions asked by the Court. Section 364 does not prevent a Court from refusing to record irrelevant answers to questions put by it to the accused under section 342. If necessary, the Court may even prevent the accused making lengthy irrelevant answers. The examination of the accused should be recorded in the language in which he is examined, and, if that is not practicable, in the language of the Court or in English. In cases in which examination is not recorded by the Magistrate or Judge himself, he must record a memo thereof in the language of the Court or in English if he is sufficiently acquainted with the latter language. The examination must be read over to the accused and made conformable to what he declares to be the truth. The Magistrate or judge must then certify under his own hand that the examination was taken down in his presence and hearing, and that the record contains a full and true account of what was stated.]
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[The newly amended section 340 sub-section (2) of the Code deserves special attention. It provides that an accused person shall if he does not plead guilty give evidence on oath in disproof of the charges or allegations made against him or any person charged or tried together with him at the same trial.
The stage for the accused person's statement on oath is after his statement under section 342 has been recorded. His attention should then be called to the requirements of section 340, sub-section (2) and he should be asked if he would make a statement on oath].
12. When evidence may be led to prove that accused duly made the confession or statement.-- Under section 533 of the Code, if any Court, before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is intended to be or has been received in evidence, finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it must take evidence that such person duly made the statement recorded and such a statement may then become admissible in evidence notwithstanding the provisions of *[Article 102 of the Qanun-e-Shahadat, 1984], provided the error has not prejudiced the accused as to his defence on merits.
13. Instructions about recording confessions.-- (i) The following instructions have been issued by the Punjab Government for the guidance of Magistrates recording confessions (Punjab Government circular letter No. 6091-J-36/39829 (H. -- Judl.), dated the 19th December 1936, to all District Magistrates in the Punjab):-
(a) Accused should be left for some time away from influence of
Police.-- In order to ensure that a statement or confession under section 164 of the Code of Criminal Procedure is made voluntarily, the following precautions should be taken. Before the Magistrate proceeds to record the confession, he should arrange -- so far as is compatible with his safety and that of his staff and with the safe custody of the prisoner -- that the latter is left for some time (say, for half an hour) out of the hearing of police officers or other persons likely to influence him.
(b) Confession recorded should not be handed over to the Police.-- The Magistrate who records a confession under section 164, Criminal Procedure Code, 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 enquired into or tried.
(c) Copy of recorded confession may be given to Police.-- These instructions do not prohibit a Magistrate who has recorded a confession or statement from allowing the Police to take a copy of it before it is forwarded to the trial Magistrate; and Magistrates should always permit the Police to take a copy if they express a desire to do so. When permission is so given, the Police copy should be written out by a Police officer or clerk from the dictation of an officer of the court, in the actual presence of the Magistrate who recorded the confession.
Time and labour can be saved if the Magistrate recording a confession makes a carbon copy which can subsequently be made available for Police purposes, or alternatively dictate a copy to an official of the court at the same time as he himself writes the original.
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