Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Statement Before a Magistrate Section 183 BNSS
Statement Before a Magistrate under Section 183 BNSS: Recording a Confession, Audio-Video Recording, the Victim’s Statement and Confession Distinguished from Admission
A confession made to a police officer cannot be proved at all, and a confession made by a person in police custody cannot be proved unless it is made in the immediate presence of a Magistrate. Those two bars, in the law of evidence, leave exactly one route by which a confession can lawfully be brought before a criminal court: section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Everything in the section exists to supply the guarantee of voluntariness that the custodial setting removes.
The section also does a second and quite different thing. It permits a Magistrate to record the statement of a person who is not an accused — a witness, a victim — and for the victim of specified offences it makes that recording a requirement rather than an option. The two functions share a section and very little else, and keeping them apart is the first step in understanding it.
1. The Provision
Section 183, BNSS 2023: the essentials (1) Any Magistrate of the district in which the information about the commission of any offence has been registered may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation, or at any time afterwards before the commencement of the inquiry or trial; and such confession may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence. Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred. (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 authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 316 for recording the examination of an accused person and shall be signed by the person making it; and the Magistrate shall make a memorandum at the foot of such record. (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. |
Figure 1: The procedure for recording a confession
2. Recording a Confession: the Six Requirements
- The right recorder. Any Magistrate, whether or not he has jurisdiction in the case. But the proviso forbids a police officer on whom any power of a Magistrate has been conferred from recording a confession, and that prohibition cannot be circumvented.
- Removal of the police influence. The accused should be sent to judicial custody and given adequate time for reflection before the confession is recorded, so that he is free from the influence of those who had him in custody. No police officer should be present, and the escort should not be within sight or hearing.
- The explanation. The Magistrate shall explain that the person 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, and must be given in a language the person understands.
- The questioning, and the satisfaction. The Magistrate shall not record the confession unless, upon questioning, he has reason to believe that it is being made voluntarily. The questions and the answers should appear on the record. A formal certificate that the Magistrate was satisfied, without any record of how he arrived at the satisfaction, is of little value.
- The recording, and the signature. The confession is recorded in the manner provided for the examination of an accused and is signed by the person making it. Under the Sanhita it may also be recorded by audio-video electronic means in the presence of the advocate of the accused.
- The memorandum. A memorandum is appended at the foot of the record, in the form the section prescribes: that the position was explained, that the person understood it, that the confession was voluntary, that it was taken in the Magistrate’s presence and hearing, that it was read over to the person and admitted by him to be correct, and that it contains a full and true account of what he said.
⚠ Sub-section (3) is the safeguard people forget If at any time before the confession is recorded the person states that he is not willing to make it, the Magistrate shall not authorise his detention in police custody. The provision exists for an obvious reason. A person produced for the recording of a confession who declines to make one, and is then sent back to the custody of the officers who produced him, is exposed to exactly the pressure the whole section is designed to remove. The sub-section removes the possibility. It also operates as a practical test of the officer’s purpose in producing him. A request for police custody immediately after a refusal to confess is a request the Magistrate is forbidden to grant. |
📖 State of Karnataka by Nonavinakere Police v. Shivanna, (2014) 8 SCC 913 Facts: The Court was concerned with the delay and attrition that characterise the prosecution of sexual offences, and in particular with the fact that the victim’s account is often first recorded formally only at the trial, months or years after the occurrence, by which time she may have been prevailed on to resile from it or may no longer be available at all. Held: The Supreme Court, exercising its power to do complete justice, issued directions pending legislation. It directed that on receipt of information disclosing the commission of an offence of rape, the investigating officer shall forthwith produce the victim before the nearest Judicial Magistrate for recording her statement under section 164 of the Code of Criminal Procedure; that the Magistrate shall record the statement as soon as possible and without delay, preferably within twenty-four hours of the production; that in the event of the victim being unable to speak, the Magistrate shall take the assistance of an interpreter or a special educator; and that the statement so recorded, where the victim is unable to speak or is otherwise mentally or physically disabled, should as far as possible be videographed. The Court directed that the statement so recorded be treated as evidence in lieu of examination-in-chief in the manner the law provides, so that the victim is required only to be cross-examined. Ratio: The victim’s account in a sexual offence is to be fixed before a Judicial Magistrate at the earliest opportunity, with the assistance of an interpreter or special educator and with videography where the victim is disabled, and it may stand as evidence in lieu of examination-in-chief. |
Section 183(6) of the Sanhita is the statutory enactment of those directions. It requires the statement of a victim of the specified offences to be recorded by a Judicial Magistrate as soon as the commission of the offence is brought to the notice of the police; where the person is temporarily or permanently mentally or physically disabled, the statement is recorded with the assistance of an interpreter or special educator and shall be videographed; and such a statement may be taken as evidence in lieu of examination-in-chief, so that the maker need only be cross-examined.
3. What the Record May Be Used For
Figure 2: The three kinds of record under section 183
3.1 A confession
A confession recorded under section 183, if proved to have been voluntary and to have been recorded in compliance with the section, is substantive evidence against its maker. That is what distinguishes it from everything else generated during an investigation. It is not, however, conclusive, and two qualifications attach to it.
📖 Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637 Facts: A conviction rested substantially on a confession recorded by a Magistrate, which the accused had afterwards retracted. The question was what weight such a confession carries, and whether a conviction may be founded on a retracted confession without more. Held: The Supreme Court held that before a court acts on a confession it must ask two questions in order: first, was the confession voluntary? — and if the answer is no, the inquiry ends there; and second, is it true? A confession which is voluntary but untrue cannot found a conviction. As to a retracted confession, the Court held that it is not inadmissible, but that as a rule of prudence the court looks for corroboration in material particulars before acting on it, and that it is unsafe to base a conviction on a retracted confession unless it is corroborated by independent evidence connecting the accused with the crime. The Court emphasised that the corroboration need not be of every detail but must be of material particulars, and that the court must be satisfied that the confession is voluntary and true before the question of corroboration arises at all. Ratio: A confession must be shown to be voluntary and to be true. A retracted confession requires corroboration in material particulars as a rule of prudence before a conviction can be founded on it. |
3.2 A statement other than a confession
A statement recorded under section 183(5) is not substantive evidence. Its uses are those of any former statement: it may be used to corroborate its maker when he is examined as a witness, and to contradict him where his evidence differs from it. It is recorded by a Magistrate and may be on oath, which gives it greater weight than a police statement as a matter of practice; but the legal position is the same in principle, with one exception. Section 181, which forbids the use of a police statement for any purpose save contradiction, does not apply to it, so a statement recorded under section 183(5) may be used to corroborate, which a police statement may not.
The exception is section 183(6). Where the statement is that of a victim of the specified offences and the person is disabled, the section provides that it may be taken as evidence in lieu of examination-in-chief, and to that extent it becomes substantive.
4. Confession and Admission Distinguished
Confession | Admission | |
|---|---|---|
What it is | A statement by an accused person admitting the offence, or admitting substantially all the facts constituting it | A statement suggesting an inference as to a fact in issue or a relevant fact, made by a party to the proceeding or a person connected with him |
Who may make it | A person accused of an offence | Any party to a proceeding, or a person whose statement is made relevant |
Proceeding | Criminal only | Civil or criminal |
Effect | If voluntary, true and duly proved, it may by itself sustain a conviction of its maker | It is a piece of evidence which may be explained or shown to be wrong; it is not conclusive |
Against whom | Against its maker; and against a co-accused only in the limited manner the law of evidence permits, and then only as a matter which the court may take into consideration, not as evidence | Against the party making it, and in the circumstances the law of evidence prescribes |
Relationship | Every confession is an admission | Every admission is not a confession |
Governing provisions | Sections 22 to 24 of the Bharatiya Sakshya Adhiniyam, with section 183 of the Sanhita supplying the procedure | The provisions of the Bharatiya Sakshya Adhiniyam on admissions |
⚠ Where the line is drawn A statement is a confession only if, taken as a whole, it amounts to an admission of the offence or of substantially all the facts that constitute it. A statement admitting a single incriminating fact, however damaging — that the accused was present, that the weapon was his, that he quarrelled with the deceased — is an admission, not a confession. The distinction matters because the bars in the law of evidence apply to confessions. A statement to a police officer which is merely an admission is not excluded by the confession provisions, though it will usually be caught by section 181 of the Sanhita, which bars the use of any police statement save to contradict. A confession must also be taken as a whole. It is not open to the prosecution to rely on the incriminating parts and reject the exculpatory ones; the court considers the statement in its entirety, though it may accept part and reject part for reasons. |
5. Section 183 and the Test Identification Parade
A Magistrate performs a related but distinct function under section 54, which permits the court having jurisdiction, on the request of the officer in charge of a police station, to direct a person arrested to subject himself to identification. The two are frequently mentioned together because both involve a Magistrate acting during an investigation, and it is worth keeping the distinction clear.
Section 183 | Section 54 | |
|---|---|---|
What it produces | A record of what a person said | A record of whether a witness identified a person |
Who is the subject | The person making the statement or confession | The person arrested, who is identified |
Substantive evidence? | A confession is; a statement under sub-section (5) is not, save under sub-section (6) | No. The parade is never substantive evidence; the identification in court is |
The new provision | Recording by audio-video electronic means in the presence of the advocate | Where the person identifying is disabled, the process takes place under the supervision of a Judicial Magistrate and shall be recorded by audio-video electronic means |
Principal use | Proof against the maker, or corroboration and contradiction | Corroboration of the identification made in court, or contradiction of the witness |
6. Key Takeaways
The position stated shortly 1. Section 183 is the only route by which a confession can lawfully be brought before a criminal court, because a confession to a police officer cannot be proved at all and one in police custody cannot be proved unless made in the immediate presence of a Magistrate. 2. Any Magistrate may record it, whether or not he has jurisdiction; but a police officer on whom the powers of a Magistrate have been conferred may not. 3. The Magistrate must explain that the person is not bound to confess and that the confession may be used against him, and must not record it unless, upon questioning, he has reason to believe it is voluntary. 4. Section 183(3): where the person states before the recording that he is not willing to confess, the Magistrate shall not authorise his detention in police custody. 5. The confession is signed and a memorandum is appended in the form the section prescribes. Under the Sanhita it may be recorded by audio-video electronic means in the presence of the advocate of the accused. 6. The requirements are mandatory and strictly construed, because the manner of recording is the only guarantee of reliability the law supplies. 7. A confession must be shown to be voluntary and to be true, in that order. A retracted confession requires corroboration in material particulars as a rule of prudence: Sarwan Singh Rattan Singh. 8. A statement under section 183(5) is not substantive evidence, but unlike a police statement it may be used to corroborate as well as to contradict, because section 181 does not apply to it. 9. Section 183(6): the statement of a victim of the specified offences is recorded by a Judicial Magistrate as soon as the offence is brought to the notice of the police; where the person is disabled it is recorded with an interpreter or special educator and videographed, and may be taken as evidence in lieu of examination-in-chief. It enacts the directions in Shivanna. 10. Every confession is an admission, but every admission is not a confession. A statement admitting a single incriminating fact is an admission; a confession admits the offence or substantially all the facts constituting it. |
7. Frequently Asked Questions
Who can record a confession under section 183?
Any Magistrate of the district in which the information has been registered, whether or not he has jurisdiction in the case. A police officer on whom any power of a Magistrate has been conferred cannot record a confession.
What must the Magistrate do before recording a confession?
Explain to the person that he is not bound to make a confession and that if he does it may be used as evidence against him; and satisfy himself, upon questioning him, that the confession is being made voluntarily. In practice he should also send the accused to judicial custody and allow adequate time for reflection, and should record the questions put and the answers given.
Can a confession be video recorded under the BNSS?
Yes. Section 183(1) permits a confession to be recorded by audio-video electronic means in the presence of the advocate of the person accused. That is new; the Code of Criminal Procedure contained no such provision.
What happens if the accused refuses to confess?
Under section 183(3), where the person states at any time before the confession is recorded that he is not willing to make it, the Magistrate shall not authorise his detention in police custody.
Can a conviction rest on a retracted confession?
A retracted confession is not inadmissible, but as a rule of prudence the court looks for corroboration in material particulars before acting on it, and it is unsafe to convict on such a confession without independent evidence connecting the accused with the crime: Sarwan Singh Rattan Singh.
What is the difference between a confession and an admission?
A confession is a statement by an accused admitting the offence or substantially all the facts constituting it, and if voluntary, true and duly proved it may by itself sustain a conviction. An admission is any statement suggesting an inference as to a fact in issue or a relevant fact; it is a piece of evidence which may be explained. Every confession is an admission; every admission is not a confession.
Why is a victim’s statement recorded under section 183(6)?
To fix her account before a Judicial Magistrate at the earliest opportunity, and where she is disabled to record it with an interpreter or special educator and to videograph it, so that it may be taken as evidence in lieu of examination-in-chief and she need only be cross-examined. The provision enacts the directions given in State of Karnataka v. Shivanna.
Related Topics
- Police Confession and Judicial Confession Compared
- Examination of Witnesses by the Police: Sections 179 to 182
- Investigation under the BNSS, 2023: Chapter XIII, Sections 173 to 196
- Identification of the Arrested Person and the Test Identification Parade
- Rights of an Arrested Person under the BNSS, 2023
- Audio-Video Electronic Means under the BNSS, 2023