Confession: Sn.164 Cr.P.C.
Confession means admission by the accused of his guilt. The Magistrate may record a statement of confession made:
i) In the course of investigation OR
ii) At any time before the commencement of the trial. No confession can be recorded by the Police Officer. If recorded it is not admissible. The Magistrate records the confession in the same manner as he records evidence. In the Evidence Act Sn.27 and 28 deal with confession. Accordingly, confession must be recorded by the Magistrate only. Accused 'A' makes a statement. 'I have thrown the dagger in a well. I have killed 'D' with it" Here, if in pursuance of the statement, the Police Officer discovers, the dagger, the fact that it was discovered is admissible in evidence. But the statement I have killed 'D' with it, is not allowed. Confession is not to be used as substantive evidence.
Before recording the confession, the Magistrate explains to the person making it that he is not bound to make it and that it may be used as evidence against him. The Magistrate records only if the statement is made by the person voluntarily. He must be fully convinced about the truth or the veracity of the statement. Even if there is an iota of suspicion about the truth, the Magistrate may refuse to record the confession.
When recording, he makes a memorandum, explains to the accused that: The accused is not bound to make a Confession, that if. made, his statement may be used against him as evidence. He must certify that the statement was voluntary, that it was done in his presence and hearing, that it was read over to him and admitted by him to be correct and that it contained a full and true account of the statement made by him. At the foot of the memorandum, the Magistrate shall sign, seal and put the date.
Contents of the Memorandum:
The contents should be to the following effect:
"I have explained to the accused Sri ........................... that he is not bound to make a confession; If he does so, same may be sued against him I further certify that the confession was voluntary, it was taken in his presence and hearing, that I read it over to him, that he admitted as correct that is was a full and true account of the confession made" Signature of Magistrate with Seal and Date.
In Ram Kishan V. Harmit Kaur, the Supreme Court has held that the confession statement is not 'substantive evidence'. It can be used to corroborate the evidence of a witness or to contradict him. A Magistrate who has no jurisdiction is also empowered to record the confession but then the records are to be sent to the Magistrate who conducts the trial. (Brij Bhushan V.King). In order to ensure that the confession is voluntary, it prohibits the detention of the accused in police custody, (when he is unwilling to make a confession before the Magistrate).