(1) Any Judicial Magistrate of the District in which the information about
commission of any offence has been registered, may, whether or not he has jurisdiction in
the case, record any confession or statement made to him in the course of an investigation
under this Chapter or under any other law for the time being in force, or at any time afterwards
but before the commencement of the inquiry or trial:
Provided that any confession or statement made under this sub-section may also be
recorded in the presence of the advocate of the person accused of an offence:
Provided further that no confession shall be recorded by a police officer on whom any
power of a Magistrate has been conferred under any law for the time being in force.
(2) The Magistrate shall, before recording any such confession, explain to the person
making it that he is not bound to make a confession and that, if he does so, it may be used
as evidence against him; and the Magistrate shall not record any such confession unless,
upon questioning the person making it, he has reason to believe that it is being made
voluntarily.
(3) If at any time before the confession is recorded, the person appearing before the
Magistrate states that he is not willing to make the confession, the Magistrate shall not
authorise the detention of such person in police custody.
(4) Any such confession shall be recorded in the manner provided in section 316 for
recording the examination of an accused person and shall be signed by the person making
the confession; and the Magistrate shall make a memorandum at the foot of such record to
the following effect:—
“I have explained to (name) that he is not bound to make a confession and that,
if he does so, any confession he may make may be used as evidence against him and
I believe that this confession was voluntarily made. It was taken in my presence and
hearing, and was read over to the person making it and admitted by him to be correct,
and it contains a full and true account of the statement made by him.
(Signed) A. B.
Magistrate.”
(5) Any statement (other than a confession) made under sub-section (1) shall be
recorded in such manner hereinafter provided for the recording of evidence as is, in the
opinion of the Judicial Magistrate, best fitted to the circumstances of the case; and the
Judicial Magistrate shall have power to administer oath to the person whose statement is so
recorded.
(6) (a) In cases punishable under section 66, section 67, section 68, section 70,
section 71, section 73, section 74, section 75, section 76, section 77, sub-section (1) or
sub-section (2) of section 74, or section 78 of the Bhartiya Nyaya Sanhita, 2023, the Judicial
Magistrate shall record the statement of the person against whom such offence has been
committed in the manner specified in sub-section (5), as soon as the commission of the
offence is brought to the notice of the police:
Provided that such statement shall, as far as practicable, be recorded by a woman
Judicial Magistrate and in her absence by a male Judicial Magistrate in the presence of a
woman:
Provided further that in cases relating to the offences punishable with imprisonment
for ten years or more or imprisonment for life or with death, the Judicial Magistrate shall
record the statement of the witness brought before him by the police officer:
Provided also that if the person making the statement is temporarily or permanently
mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or
a special educator in recording the statement:
Provided also that if the person making the statement is temporarily or permanently
mentally or physically disabled, the statement made by the person, with the assistance of
an interpreter or a special educator, shall be recorded through audio-video electronic means
preferably cell phone.
(b) A statement recorded under clause (a) of a person, who is temporarily or
permanently mentally or physically disabled, shall be considered a statement in lieu of
examination-in-chief, as specified in section 142 of the Bhartiya Sakshya Adhiniyam, 2023
such that the maker of the statement can be cross-examined on such statement, without the
need for recording the same at the time of trial.
(7) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried.
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