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  • leadindia836
    • Dec 6, 2022
    • 3 min read

Should I Record My Statement In The Presence Of Lawyer

A statement is an act of stating or repeating, as stated in the definition. The word "statement" is not defined elsewhere in the Act. But it has a wide range of ramifications. The Criminal Procedure Code frequently contains provisions for recording statements under sections 161 and 162. According to section 164 of the Crpc, the accused's confession comments will be recorded.


Any statement or confession made before a Judicial Magistrate or Metropolitan Magistrate during an investigation may be recorded, per section 164(1) of the Criminal Procedure Code, regardless of whether they have jurisdiction over the case. A judicial magistrate has the power to record any statement (aside from a confession statement) that, in the magistrate's opinion, is the most appropriate in light of the facts of the case, in accordance with Section 164(5) of the Code.


The rationale for it is that while a magistrate may do both while recording a person's statement under Section 164 of the Code, the police are not allowed to do either under Section 162 of the Code when taking statements from witnesses during an investigation. Unquestionably, when someone writes and signs a statement, they are immediately obligated morally and are less inclined to behave aggressively.


The magistrate is required to record the confession in the same manner as the examination of the accused is described in section 281. The Magistrate and the accused both need to sign it. A memorandum described in the subsection must also be added to the record by the magistrate (4). The recorded confession must be forwarded to the magistrate who will conduct the investigation or trial if he lacks the authority to do so.


The provisions of Section 164 of the Criminal Procedure Code, as well as the rules and policies adopted in this respect by the Honorable High Court that offer procedural safeguards and other requirements, must be complied with not only in letter but also in spirit. If the magistrate does not record the confession in line with section 164 of the Criminal Procedure Code, it is not admissible in evidence.


Evidentiary Value:


According to the evidential value of a statement recorded in accordance with Criminal Procedure Code Section 164, if the maker does not testify about these facts during the trial, the statement cannot be considered as substantive evidence. Before acting on a confession made before a judicial magistrate under section 164, the court must first be persuaded that the procedural requirements described in subsections (2) through (4) are met. These are great safeguards to ensure that the accused confesses willingly after being warned about the repercussions of doing so. The accused should have been free from fear, pressure, or reward when making the confession, according to the court.


Case Law:

  • The Delhi High Court has halted a lower court decision allowing the presence of a lawyer during the questioning of a Delhi Minister from a visible but audible distance. While it was noted that such a directive may be given when there is credible evidence to support the reality and live suspicion of a potential coercion or threat being used at the time of recording a statement, it was noted that the present case does not support such a suspicion, so the directive should not have been given as a matter of right.

  • The Supreme Court has ruled that it is not essential for a confession or statement under Section 164 of the Code of Criminal Procedure to be made in front of the advocate unless the confessional statement is captured using audio-video technology means.

It is advisable to record the statement in the lawyer's presence even if it is not necessary. Any threats or pressure will be removed from you if an attorney is present. It will also provide the user a sense of assurance and security. All of your rights can be defended by a lawyer who is informed about them. For assistance of a lawyer one needs to appoint a lawyer. If you are living in Lucknow then a Lawyer In Lucknow can be appointed. Lawyers In Ghaziabad can also be consulted if your case is going on in Ghaziabad. Lawyer In Delhi can also be appointed if the person lives in Delhi.


At Lead India, we offer a range of expertise and legal services and free legal advice online designed to resolve the issue. Ask a legal question online free and talk to a lawyer to get the best advice here. Our legal team understands the law and can assist you in making informed decisions.


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