What is the effect of non-compliance with provisions of Section 164 or Section 281?

Question: What is the effect of non-compliance with provisions of Section 164 or Section 281?

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Answer

Section 463 of the Code of Criminal Procedure Act, 1973 deals with the effect of non-compliance with provisions of section 164 or section 281. The section runs down as below:

“(1) If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence pct, 1872, take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defense on the merits and that he duly made the statement recorded, admit such statement.

(2) The provisions of this section apply to Courts of appeal, reference and revision.”

Owing to the extremely delicate nature of statements and confessions, the law has deliberately hedged salutary safeguards (sections 164 and 281) around them. Nonobservance of those requirements may result in having the statements or confessions ruled out of evidence. This section has, however, been enacted in order that technicalities may not succeed in defeating the ends of justice. It has been held that the object of the provision is to enable the Court to take evidence in regard to any noncompliance and to act on such evidence if the Court is satisfied that such noncompliance has not injured the accused in his defence on the merits.

This section permits oral evidence to be given to prove that the procedure laid down in section 164 had, in fact, been followed when the Court finds that the record produced before it does not show that was so. If the oral evidence establishes that the procedure had been followed, then only the record can be admitted.

This section cures the irregularity where a confession is made in one language and is recorded in another. According to section 29 of the Evidence Act, 1872, a confession otherwise admissible does not become inadmissible because the accused person was not warned that he was not bound to make it and that it would be used as evidence against him. By application of section 463 of the Code, the above irregularity can be cured.

In Philips v. State of Karnataka, 1980 Cr LJ 171 (Knt), while recording the confession statements under section 164, some questions put to the accused were not recorded by the Magistrate. It was held that it was the duty of the Sessions Judge to look into it and find out whether such omission had prejudiced the accused.

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