Although the term confession has a very special meaning, it is not defined anywhere in the Code of Criminal Procedure, 1973. It can be defined as an admission made at any time by a person accused of an offense. In order to constitute the confession, it must either admit in terms of an offense, or have the object of disclosing down in substance all the facts which constitute the offense.
A statement cannot be considered a confession if it contains only an element of self-apology. A confession can be recorded by any president, magistrate, first or second class magistrate specially empowered for this purpose by the state government. Full and adequate compliance with the provisions of Section 164 Code of Criminal Procedure is imperative when recording a confession. Any metropolitan magistrate or judicial magistrate may, regardless of whether he/she has jurisdiction or not, record any confession during the investigation. Any confession may also be recorded by electronic audio-video means in the presence of the accused’s lawyer, but no confession may be recorded by the police officer to whom a magistrate’s power has been conferred under any law for the time being in force.
Confession should be made voluntarily and without any pressure. In other words, an accused should have been let loose in court. It is not appropriate to allow the police officer to be present and question the accused that he is not required to make the confession and that it will be used against him. A confession without memorandum is bad in law.
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 custody of the police. The Magistrate recording the confession can forward it to the Magistrate by whom the case is being inquired. Any statement made under Section 164 Code of Criminal Procedure, 1973 can be used to cross-examine the person who made it. The confessional statement should be recorded with a caution.
Before recording the confession, the magistrate must explain to the person making it that he/she is not required to confess and that in case he/she gives confession, it can be utilized as a piece of evidence in favor of his/her opposing party. He must record it after interrogating the person who is making it. He must be of the opinion that it is being made on accused person’s own accord. A confession made to the magistrate but not recorded by him in the manner provided for by Section 164 Code of Criminal Procedure, 1973 cannot be admitted as guidance on the oral testimony of the magistrate.
If at any time before the confession is taken the person appearing before the magistrate declares that he or she is unwilling to make the confession, the magistrate shall not authorize that person be detained in police custody. The Magistrate recording the confession can forward it to the Magistrate by whom the case is being inquired. Any statement made under article 164 of the Code of Criminal Procedure, 1973 may be used to cross-examine the person who made it. The confessional statement should be recorded with caution.