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Madras HC issues guidelines for Recording of Statements under Section 164 CrPC

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The Madras High Court has issued a series of directions regarding the recording and production of statements under Section 164 CrPC, in the interest of reliable and speedy investigation.

In the same order, it has also directed the state to establish Test Identification Parade centres in compliance with certain guidelines it has issued. The order was passed by a Special Division bench comprising of Chief Justice Indira Banerjee and Justice PN Prakash.

The order was discerned to be necessary following certain lacunae observed by Justice Prakash while hearing another criminal case, where it was intimated to the judge that the investigating police were not furnished with copies of victim statements made before the Magistrate as per Section 164, even though they had been recorded a month before.

It was informed that the police were required to make a copy application to the magistrate before the same could be given to them. The Public Prosecutor informed that similar procedures have to be followed with respect to confession statements of the accused, dying declarations and reports of Test Identification Parades.

A special division bench was constituted thereafter to look into the following issue i.e.

Are the police entitled to be furnished with copies of the following documents immediately?

  1. Statement of witness recorded under Section 164 CrPC;
  2. Confession statement of the accused recorded under Section 164 CrPC;
  3. Dying declaration recorded by the Magistrate; an
  4. Test Identification Parade report of the Magistrate.

The court answered these queries in the affirmative after going into the underlying reasons and development of the provisions under Section 164 over the years. It further went on to issue the following guidelines.

When any statement recorded by a magistrate under Section 164, whether it is that of a witness, accused, a dying declaration or a report following a Test Identification Parade, the following procedure has to be followed.

  • The Magistrate who records statements should have two photocopies of the statement made under his direct supervision. Two photocopies are to be taken as a measure of caution, to guard against loss of statements in transit.
  • After certifying the same as true copies, one is to be issued to Investigating Officer immediately, with the direction that it be used only for the purpose of investigation. The contents of this statement cannot be made public until after the final report is made. The other is to be kept in the custody of the Magistrate. The original should be sent to the court having jurisdiction to try the case..
  • If the Magistrate who had recorded the statement is not the jurisdictional Magistrate, he shall send the original statement to the jurisdictional Court, either through a special messenger or by registered post with acknowledgement due.
  • If the Judge/Magistrate who had recorded the 164 CrPC. statement is himself the jurisdictional Magistrate, he shall keep the original of the statement in the case records

The Court also additionally clarified the interpretation and scope of specific provisions relating to witness statements, confessions, dying declarations and the conduct of Test Identification Parades.

Regarding witness statements, the following clarifications were made:

  • A statement of a witness/victim can be recorded under Section 164 CrPC only at the instance of the Investigating Officer of the case.
  • Special judges under special enactments such as POCSO, NDPS etc. are Magistrates competent to record statements under Section 164. Hence the investigating agency need not be directed to approach the Chief Metropolitan Magistrate or Chief Judicial Magistrate for nominating a Metropolitan Magistrate/Judicial Magistrate to record statement under Section 164 CrPC.
  • A Magistrate, whether he has got jurisdiction or not, to inquire into or try the case, can record the statement of a witness/victim, on the request of the Investigating Officer of the case.
  • An accused will not be entitled to these records until the final report is filed, as laid down by  in Selvanathan @ Raghavan vState by Inspector of Police
  • The Magistrate is not prohibited from receiving assistance of the police in recording statements where it is essential to elicit relevant facts as laid down in Ganganaboyina Pullamma v Emperor

In the case of confessions/statements, however, the Investigating Officer should apply to the CMM/CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused.

With respect to Test Identification Parades, the following procedure should be followed:

  • An application for conduct of Test Identification Parade, shall be made under Section 54-A of the Code by the Investigating Officer, to the Court having jurisdiction.
  • On such application being made, the Court may direct the person so arrested to subject himself to identification.
  • The Court shall make a request to the CMM/CJM of the District to nominate a Magistrate, other than the Magistrate who has jurisdiction of the case, to conduct the Test Identification Parade.
  • Upon receipt of such request, the CMM/CJM shall immediately pass orders nominating a Magistrate, other than the jurisdictional Magistrate, to conduct Test Identification Parade and inform the same to the Magistrate so nominated and to the Investigating Officer.
  • The Magistrate so nominated shall conduct Test Identification Parade and prepare the Test Identification Report.

The Court also observed that in the context of Test Identification Parade, the attempt by the Government of India to pass the Witness Identity Protection Bill, 2015 stands unfulfilled. It referred to other democracies where the procedure of identification is done in special rooms with one-side view glass partition, separating the suspect and dummies on one side from the witness and the Magistrate.

In this manner, the witness is allowed to identify the suspect in the presence of the Magistrate without the suspect being able to see the witness. In this context, it was also opined that the accused had no right to know that he has been so identified until the final report is made. The suspect and dummies may also be asked to reshuffle themselves. If required, their attire can be changed in an antechamber.

The Court opined that this method of identification requires being implemented in the state as well, as a step towards protection of witnesses. Therefore the Court directed that the Government establish a Test Identification Parade Centre in all Central Prisons in the state, along these lines, within six months.

A copy of the order has been directed to be circulated to all judicial officers and police stations.


Bar and Bench

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