164. Recording of confessions and statements.
(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:
Provided that 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.
(2) The Magistrate shall, before recording any such confession, 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 as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorize the detention of such person in police custody.
If the person holding the identification is a Magistrate of the first class, or one of the second class specially empowered, Section 164 Cr. P. C. applies and his identification memo is admissible in evidence under Section 80 of the Evidence Act without proof. But if other Magistrates, or private persons, hold it they must be called in evidence to prove their memo. Where Section 164 Cr. P. C. operates the proceedings are independent even of the territorial jurisdiction of the Magistrate concerned.
There remains to consider the legal status of an identification memo prepared on the one hand by a Magistrate of the first class or a Magistrate of the second class specially empowered, and on the other by the remaining kinds of Magistrates. In the case of the former the memo, as already shown, is the record of a statement taken under the provisions of Section 164 Cr. P. C. It is therefore evidence given “before any officer authorised by law to take such evidence”.
(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect.
ALLAHABAD HIGH COURT.