(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to hi m 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:
2[Provided that any confession or statement made 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:
Provided further 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 hi m; 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 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 me morandum at the foot of such record to the following effect:-
"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 hi m 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 hi m to be correct, and it contains a full and true account of the statement made by hi m.
(Signed) A. B .
(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.
(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.
After sub-section (1) of section 164 , the following sub-section shall be inserted, namely:-
" (1A) Where; in any island, there is no Judicial Magistrate for the time being, and the State Government is of opin ion that it is necessary and expedient so to do that Government may, after consulting the High Court, specially empower any Executive Magistrate (not being a poli ce officer), to exercise the powers confe rred by s ub-section (1 ) on a Judicial Magistrat e, and thereupon references in section 164 to a Judicial Magistrate shall be construed as references to the Executive Magistrate so empowered."
1. Vide Regulation 1 of 1974 , section 5 (w.e.f . 30 -3 -1974 ).
2. Substituted vide Code of Criminal Procedure (Amendment) Act 2008 to be effective from 31.12.2009 vide Notification No. S.O. 3313(E) dated 30.12.2009 previous text was : -
"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."