Section 164 CrPC and Section 183 BNSS: Recording of Confessions and Statements
The law requires judicial safeguards when a confession or certain statements are recorded during a criminal investigation. Section 164 of the Code of Criminal Procedure, 1973 (CrPC) has its principal corresponding provision in Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).
What does Section 183 BNSS provide?
Section 183, titled Recording of confessions and statements, authorises a Magistrate of the district in which information about an offence has been registered to record a confession or statement during investigation, or subsequently before the inquiry or trial begins, even where that Magistrate does not have jurisdiction to try the case. It is the successor to Section 164 CrPC, with important procedural updates.
1. Authority and electronic recording - Section 183(1)
The authorised Magistrate may record a confession or statement. Audio-video electronic recording is permitted in the presence of the advocate of the person accused of an offence. A police officer invested with a Magistrate's powers cannot record a confession under this provision.
2. Voluntary confession - Section 183(2)
Before recording a confession, the Magistrate must explain that the person is not obliged to confess and that a confession may be used as evidence against that person. The Magistrate must question the person and be satisfied that the confession is voluntary. Pressure, threats, inducements and promises undermine the safeguards governing confessions.
3. Refusal to confess - Section 183(3)
If the person says before recording that they do not wish to confess, the Magistrate must not authorise that person's detention in police custody. This safeguard is specifically linked to refusal to make the confession.
4. Formal record and certification - Section 183(4)
A confession must be recorded in the manner prescribed for examination of an accused under Section 316 BNSS, signed by the maker, and accompanied by the Magistrate's prescribed memorandum certifying the explanation, apparent voluntariness, accurate recording and reading over of the confession.
5. Statements other than confessions - Section 183(5)
Other statements are recorded in the manner for recording evidence best suited to the circumstances, as determined by the Magistrate. The Magistrate may administer an oath to the person whose statement is recorded.
6. Special protection for victims and witnesses - Section 183(6)
In cases involving offences under Sections 64 to 71, 74 to 79 or 124 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the Magistrate must record the statement of the person against whom the offence was committed as soon as its commission is brought to the notice of the police. As far as practicable, a woman Magistrate should record the statement; in her absence, a male Magistrate must do so in the presence of a woman.
For offences punishable with imprisonment of ten years or more, life imprisonment or death, the Magistrate must also record the statement of a witness brought before the Magistrate by the police officer.
Where a person making a statement has a temporary or permanent mental or physical disability, assistance from an interpreter or special educator is required. The assisted statement must be recorded by audio-video electronic means, preferably by mobile phone. Under Section 183(6)(b), the qualifying recorded statement may stand in place of examination-in-chief under Section 142 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), subject to cross-examination.
7. Forwarding the record - Section 183(7)
The Magistrate recording the confession or statement forwards it to the Magistrate who will inquire into or try the case.
Section 164 CrPC: Original statutory safeguards
For cases governed by the saved CrPC procedure, Section 164 contains the following essential rules:
- Sub-section (1): A Metropolitan Magistrate or Judicial Magistrate may record a confession or statement during investigation or before inquiry or trial. Audio-video recording is permitted in the presence of the accused person's advocate; a police officer exercising Magistrate powers cannot record a confession.
- Sub-section (2): The Magistrate explains the right not to confess and the possible evidentiary consequences, and verifies voluntariness.
- Sub-section (3): A person refusing to confess cannot be sent to police custody by the Magistrate under this provision.
- Sub-section (4): The confession is signed and accompanied by the Magistrate's prescribed certificate, with the recording procedure linked to Section 281 CrPC.
- Sub-section (5): Non-confessional statements may be recorded in an appropriate evidentiary manner, with an oath where authorised.
- Sub-section (5A): Special provisions require prompt recording of statements of victims of specified sexual offences, with safeguards for persons with disabilities.
- Sub-section (6): The recorded material is forwarded to the Magistrate conducting the inquiry or trial.
Key differences between Section 164 CrPC and Section 183 BNSS
| Issue | Section 164 CrPC | Section 183 BNSS |
|---|---|---|
| Recording Magistrate | Metropolitan or Judicial Magistrate, regardless of trial jurisdiction | Magistrate of the district where offence information was registered, regardless of trial jurisdiction |
| Confession safeguards | Voluntariness, caution, signature and memorandum | Core safeguards retained |
| Audio-video recording | Permitted under sub-section (1) | Permitted under sub-section (1); specific electronic safeguards for persons with disabilities |
| Victim statements | Special procedure under sub-section (5A) referencing IPC offences | Special procedure under sub-section (6) referencing BNS offences and additional serious-offence witnesses |
| Recording accused examination | Section 281 CrPC | Section 316 BNSS |
| Forwarding | Sub-section (6) | Sub-section (7) |
Are confessions and witness statements automatically evidence of guilt?
No. A judicial confession and a witness statement are legally distinct. The admissibility, reliability and evidentiary weight of a confession depend on compliance with statutory requirements and the applicable law of evidence. A witness statement recorded by a Magistrate does not automatically prove the facts asserted in it; its use at trial is governed by the BSA or the Indian Evidence Act, 1872, as applicable, and the relevant procedural rules.
Statements to police under Section 161 CrPC and their restricted use under Section 162 CrPC must not be confused with a Magistrate-recorded statement under Section 164 CrPC or Section 183 BNSS.
State amendments and historical provisions
The original CrPC page also records the following local legislative modifications. They remain relevant to historical cases and require case-specific verification after commencement of the BNSS:
- Chhattisgarh: Chhattisgarh Act 25 of 2015, Section 9, modified the list of offences in Section 164(5A)(a) CrPC to refer additionally to specified IPC offences, including Sections 376F, 509A and 509B.
- Andaman and Nicobar Islands, Dadra and Nagar Haveli and Lakshadweep: The Code of Criminal Procedure (Amendment) Regulation, 1974, Section 5, provided a special mechanism for empowering an Executive Magistrate (not a police officer) in certain island circumstances where no Judicial Magistrate was available, after consultation with the High Court.
- Arunachal Pradesh: Arunachal Pradesh Act 3 of 2019, Section 15, amended the specified offence references in Section 164(5A)(a) CrPC.
These historical amendments should not be assumed to amend Section 183 BNSS automatically. Their continuing operation depends on applicable repeal, savings, adaptation and local legislation.
Legislative history
The CrPC text also reflects the changes introduced by Act 5 of 2009, Section 13 (effective 31 December 2009), Act 13 of 2013, Section 16 (effective 13 March 2013), and Act 22 of 2018, Section 13 (effective 22 April 2018). These amendments developed electronic recording and protections for victims of specified offences.
Frequently asked questions
Can the police record a confession under Section 183 BNSS?
No police officer exercising powers of a Magistrate may record a confession under Section 183. A confession under this provision is recorded by an authorised Magistrate subject to statutory safeguards.
Can a person refuse to confess before the Magistrate?
Yes. The Magistrate must explain that confession is not compulsory. Section 183(3) specifically prohibits authorising police custody when the person declines to confess before recording.
Can a Magistrate record a statement using video?
Yes. Section 183 permits audio-video recording subject to its conditions and requires it for certain assisted statements of persons with disabilities.
Does Section 164 CrPC still matter after July 2024?
Yes. It remains relevant to cases and proceedings governed by the savings provisions of Section 531 BNSS, as well as to earlier records and case law.
Official legal sources
- India Code - Bharatiya Nagarik Suraksha Sanhita, 2023
- Official BNSS statutory text (PDF)
- Ministry of Home Affairs - New Criminal Laws
- National Crime Records Bureau - Corresponding sections and criminal laws
This article is for general legal information. Apply the relevant law and any operative State amendments to the facts and procedural stage of the particular case.