A Police Statement and a Magistrate Statement | BNSS 2023

A Statement to the Police and One Before a Magistrate: Sections 180 and 183, the Safeguards, and Why Only One of Them Can Found a Conviction

The whole difference between the two rests on a single judgment the law has made: that a statement recorded by a police officer, unsigned and untested, cannot safely be made the foundation of a conviction — while one recorded by a Magistrate, on the safeguards section 183 prescribes, can.

Everything else follows from that. The police statement must not be signed and shall not be used for any purpose except to contradict. The statement before a Magistrate is signed, carries a memorandum in the Magistrate’s own hand, and — where it is a confession — is substantive evidence against its maker.

1. The Two Compared

Figure 1: The two compared

Who records it. A police officer under section 180. A Magistrate under section 183 — and no police officer on whom any power of a Magistrate has been conferred may record a confession.
Signature. A police statement shall not be signed. A statement before a Magistrate is signed, and the Magistrate appends a memorandum in his own hand.
Use at the trial. A police statement shall not be used for any purpose except, under the proviso, to contradict the witness. A confession before a Magistrate is substantive evidence against its maker; a statement may be used to corroborate or contradict its maker.
Where a confession. A confession to a police officer is inadmissible, and so is one made while in the custody of a police officer unless made in the immediate presence of a Magistrate. Section 183 is therefore the only route by which a confession made during an investigation becomes admissible.
And the victim. Under the proviso to section 180, her statement in the specified sexual offences is recorded by a woman police officer. Under section 183(6) it is recorded by a Judicial Magistrate; and where the person is temporarily or permanently mentally or physically disabled, the statement is videographed and is treated as a statement in lieu of examination-in-chief, so that the maker may be cross-examined on it without its being recorded again at the trial.

2. The Safeguards in Recording a Confession

Figure 2: The four requirements

The explanation, before anything is recorded. The Magistrate shall explain to the person that he is not bound to make a confession and that if he does so it may be used as evidence against him. The explanation must be given before recording, and the fact that it was given must appear on the record.
The satisfaction that it is voluntary. He shall not record it unless, upon questioning the person, he has reason to believe that it is being made voluntarily. That requires actual questioning — how long he has been in custody, how he was treated, whether anything was promised or threatened.
Time for reflection. Where the person has come from police custody, he should be given time to reflect, free of the influence of those who held him, and told that he will not be sent back to police custody whatever he decides.
And the memorandum at the foot. The Magistrate shall make a memorandum in his own hand stating that the explanation was given, that he believes the confession to be voluntary, that it was read over to the person, and that he admitted it to be correct.

📖 Nazir Ahmad v. King-Emperor, AIR 1936 PC 253

Facts: A Magistrate did not record a confession in the manner the statute prescribed, but was later examined as a witness to depose orally to what the accused had said to him. The question was whether the confession could be proved in that way.

Held: The Judicial Committee held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and that other methods of performance are necessarily forbidden. It held that the provisions prescribing the manner in which a confession is to be recorded by a Magistrate are not a mere matter of form: they exist to ensure that the confession is voluntary, and to provide a contemporaneous record by which that can afterwards be tested. It followed that where the Magistrate has not recorded the confession in the prescribed manner, the confession cannot be proved by his oral evidence of what was said to him — because to permit that would be to allow the very safeguards the statute imposes to be bypassed. The Committee held that the Magistrate’s oral evidence was inadmissible for that purpose, and that the conviction could not stand upon it.

Ratio: Where a power is given to do a thing in a certain way, it must be done in that way or not at all. A confession not recorded in the prescribed manner cannot be proved by the Magistrate’s oral evidence, since that would bypass the safeguards.

📖 Shivappa v. State of Karnataka, (1995) 2 SCC 76

Facts: A confession was recorded by a Magistrate in circumstances in which the prescribed warnings had not been properly administered, no real enquiry had been made as to whether it was voluntary, and the accused had been produced directly from police custody and sent back to it.

Held: The Supreme Court held that the provisions governing the recording of a confession are mandatory and that full and adequate compliance with them is imperative. The Court held that the Magistrate must explain to the accused, in terms he understands, that he is not bound to make a confession and that it may be used against him; must question him so as to satisfy himself that it is voluntary; and must, where the accused has come from police custody, give him sufficient time to reflect and assure him that he will not be remanded to police custody if he declines to confess. It held that a confession recorded without those safeguards is not voluntary in the eye of the law, and that the memorandum required at the foot is not a formality but the contemporaneous proof that they were observed. The Court held the confession inadmissible, observing that the safeguards exist because a person produced from police custody is in a position where the appearance of choice may be no choice at all.

Ratio: The provisions governing the recording of a confession are mandatory and require full compliance — the explanation, the questioning as to voluntariness, time to reflect, and an assurance against return to police custody. A confession recorded without them is not voluntary in law.

⚠ Why the safeguards cannot be cured by later evidence

The requirements are not formalities. They exist to ensure that the confession is voluntary, and to provide a contemporaneous record by which that can afterwards be tested.

Where a power is given to do a thing in a certain way, it must be done in that way or not at all. A confession not recorded as prescribed cannot be proved by calling the Magistrate to say what he would have done or what he remembers.

And the reason is practical. A person produced from police custody is in a position where the appearance of choice may be no choice at all — which is why the assurance that he will not be sent back matters as much as the warning that his words may be used against him.

The memorandum is the proof. A record which does not carry it, in the Magistrate’s own hand, leaves nothing by which the court can satisfy itself that any of the safeguards were observed.

3. Key Takeaways

The position stated shortly

1. A police statement shall not be signed and shall not be used for any purpose except to contradict the witness. A statement before a Magistrate is signed and carries a memorandum.

2. A confession recorded by a Magistrate is substantive evidence against its maker; a police statement is not evidence of anything.

3. A confession to a police officer is inadmissible, and so is one made in police custody unless in the immediate presence of a Magistrate — so section 183 is the only route to an admissible confession made during an investigation.

4. No police officer on whom any power of a Magistrate has been conferred may record a confession.

5. The Magistrate must explain that the person is not bound to confess and that it may be used against him — before recording.

6. He shall not record it unless, on questioning the person, he has reason to believe it is voluntary.

7. Where the person comes from police custody, he should be given time to reflect and told he will not be sent back whatever he decides.

8. The memorandum in the Magistrate’s own hand is not a formality but the contemporaneous proof that the safeguards were observed.

9. Where a power is given to do a thing in a certain way, it must be done in that way or not at all — and a confession not so recorded cannot be proved by the Magistrate’s oral evidence: Nazir Ahmad.

10. The provisions are mandatory, and a confession recorded without them is not voluntary in the eye of the law: Shivappa.

4. Frequently Asked Questions

Why must a police statement not be signed?

To prevent an officer from obtaining a signed document during the investigation and later holding the witness to it. Section 180(2) forbids the signature, and the statement is usable only to contradict.

Can a confession to a police officer be proved?

No. A confession to a police officer is inadmissible, and so is one made while in the custody of a police officer unless made in the immediate presence of a Magistrate. Section 183 is the only route by which a confession made during an investigation becomes admissible.

What must the Magistrate do before recording a confession?

Explain that the person is not bound to make a confession and that it may be used against him; question him so as to be satisfied that it is voluntary; give him time to reflect where he has come from police custody; and assure him that he will not be sent back if he declines.

What is the memorandum for?

It is the contemporaneous proof that the safeguards were observed — stating that the explanation was given, that the Magistrate believes the confession voluntary, that it was read over, and that the person admitted it to be correct. A record without it leaves the court nothing to go on.

Can a defectively recorded confession be proved by the Magistrate’s evidence?

No. Where a power is given to do a thing in a certain way, it must be done in that way or not at all; permitting oral proof would allow the safeguards to be bypassed: Nazir Ahmad v. King-Emperor.

What is special about a victim’s statement under section 183(6)?

It is recorded by a Judicial Magistrate as soon as the offence is brought to the notice of the police; and where the person is temporarily or permanently disabled, it is videographed and treated as a statement in lieu of examination-in-chief, so that she may be cross-examined on it without its being recorded again at the trial.

Related Topics

Statement Before a Magistrate: Section 183, BNSS
Examination of Witnesses by the Police: Section 180, BNSS
The FIR and a Statement to the Police Compared
Confessions and Admissions under the BNSS, 2023
Police Custody and Judicial Custody Compared
The Rights of Women under the BNSS, 2023