PN Mazumdar (Technical Officer) 05 July 2012

Arrest by magistrate when a person is not accused

A witness of a case was asked to record his statement under sec.164 CrPC as witness but the magistrate recorded his statement as confessional statement of an accused without his knowledge during 2009. The Chargesheet of the Police during 2011 clearly mentioned that the person is not an accused and the Magistrate mistakenly recorded his statement as confessional statement. Yet during May,2012 the Public Prosecutor prayed to Addl.Session Judge (FTC) to summon the person as an accused and the person when attended the court, was arrested and released on bail.

Can a person be arrested when the police investigation officer clearly mentions that the magistrate has mistakenly taken a confessional statement from the witness and when the police didnot name him as an accused?

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Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 05 July 2012

Confession of an accused u/s 164 of the CrPC is substantive evidence against the ACCUSED. Hence a precondition for the use of statements is that the person should be arraigned as an accused in that case. If the person was not an accused then his statement is recorded in the latter part of 164 - on oath but the same is not substantive evidence against him and can only be used to corroborate or contradict.

Has the Magistrate acted on prosecution's application u/s 319 CrpC ? Since it does not appear that he was charged by the police. Under 319 magistrate can do 'additional prosecution' only when some incriminating evidence appears on inquiry or trial and not otherwise.

Be that as it may, the magistrate would erred in recording of statement would have to come and depose before the court as to irregularily in recording of confession/statemetn u/s 164 - u/s 464 CrPC