Sections 163 and 164 CrPC: No Inducement and Recording of Confessions and Statements
Sections 163 and 164 of the Code of Criminal Procedure, 1973 formed part of the law governing criminal investigation before the Bharatiya Nagarik Suraksha Sanhita, 2023 came into force. Section 163 prohibited inducement, threat or promise by the police or another person in authority, while Section 164 prescribed safeguards and procedure for a Magistrate to record confessions and statements.
Section 163 CrPC - No Inducement to Be Offered
Meaning: Section 163 protected the voluntariness of statements made during investigation. A police officer or other person in authority could not use an inducement, threat or promise of the kind referred to in Section 24 of the Indian Evidence Act, 1872 to obtain a confession or statement.
Section 163(1)
No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872 (1 of 1872).
Section 163(2)
But no police officer or other person shall prevent, by any caution or otherwise, any person from making in the course of any investigation under this Chapter any statement which he may be disposed to make of his own free will.
Proviso: Nothing in this sub-section shall affect the provisions of sub-section (4) of section 164.
Section 24 of the Indian Evidence Act, 1872: In the pre-BNSS legal framework, Section 24 addressed a confession caused by inducement, threat or promise from a person in authority where the statutory conditions were satisfied. Section 163 CrPC reinforced that protection at the investigation stage by directly restraining the police and other persons in authority.
Section 164 CrPC - Recording of Confessions and Statements
Meaning: Section 164 created a judicial procedure for recording a confession or statement during investigation or afterwards, but before commencement of the inquiry or trial. Its central safeguard was that a confession had to be voluntary and recorded by the competent Magistrate in accordance with the statutory procedure.
Section 164(1)
Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the 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.
First proviso: Any confession or statement under this sub-section may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.
Second proviso: 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.
Section 164(2) - Warning and voluntariness
Before recording a confession, the Magistrate must explain that the person is not bound to confess and that a confession, if made, may be used as evidence against that person. The Magistrate shall not record the confession unless, after questioning the maker, the Magistrate has reason to believe that it is being made voluntarily.
Section 164(3) - Refusal to confess
If, before the confession is recorded, the person states that he is not willing to make the confession, the Magistrate shall not authorise detention of that person in police custody.
Section 164(4) - Manner of recording a confession
The confession shall be recorded in the manner provided in Section 281 CrPC for recording the examination of an accused person and shall be signed by the person making it. The Magistrate must append the statutory memorandum confirming the warning, voluntariness, presence and hearing of the Magistrate, and correctness of the record.
"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."
Section 164(5) - Statements other than confessions
A statement other than a confession shall be recorded in the manner provided for recording evidence that, in the opinion of the Magistrate, is best fitted to the circumstances of the case. The Magistrate has power to administer oath to the person whose statement is recorded.
Section 164(6) - Forwarding the record
The Magistrate recording a confession or statement under Section 164 shall forward it to the Magistrate by whom the case is to be inquired into or tried.
Important Safeguards Under Section 164 CrPC
The statutory scheme separated a judicially recorded confession from ordinary police questioning. Before recording a confession, the Magistrate had to give the prescribed warning, examine whether the confession was voluntary, and refrain from recording it if voluntariness was not established. A person who declined to confess could not be remanded to police custody by the Magistrate under Section 164(3) merely after that refusal.
The provision also expressly barred a police officer exercising conferred Magistrate powers from recording a confession under Section 164. These requirements were designed to reduce the risk that a confession would be the product of police pressure or an inducement, threat or promise.
Section 164(5A) - Statements in Specified Sexual Offences
Before commencement of the BNSS, Section 164(5A) imposed additional duties for recording the statement of a person against whom specified offences under the Indian Penal Code, 1860 had been committed. The listed provisions included Sections 354, 354A, 354B, 354C, 354D, 376(1), 376(2), 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB, 376E and 509 IPC.
The Judicial Magistrate was required to record the statement in the manner prescribed by Section 164(5) as soon as the commission of the offence was brought to the notice of the police.
Where the person making the statement was temporarily or permanently mentally or physically disabled, the Magistrate had to take the assistance of an interpreter or special educator, and the statement made with such assistance had to be videographed. Such a statement could operate in lieu of examination-in-chief as provided by Section 164(5A)(b), with cross-examination taking place on that statement.
State and Territorial Amendments
Chhattisgarh
The source page records a Chhattisgarh amendment to Section 164(5A)(a), substituting the concluding reference so as to include Sections 376F, 509, 509A and 509B. It cites Chhattisgarh Act 25 of 2015, Section 9.
Specified Union Territories
The source page also records a special provision for islands where no Judicial Magistrate was available, permitting the Government, after consultation with the High Court, to specially empower an Executive Magistrate who was not a police officer to exercise the stated power. The source cites the Code of Criminal Procedure (Amendment) Regulation, 1974.
Arunachal Pradesh
The source page records an Arunachal Pradesh amendment to the list of IPC offences referred to in Section 164(5A), citing Arunachal Pradesh Act 3 of 2019, Section 15.
Legislative Notes
The original page records that the audio-video provisos were substituted by Act 5 of 2009 with effect from 31 December 2009; sub-section (5A) was inserted by Act 13 of 2013 with effect from 13 March 2013; and the specified sexual-offence references were further amended by Act 22 of 2018 with effect from 22 April 2018.