Non-compliance with provisions of section 164 or section 281 :
Section – 463. (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 Act, 1872 (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence 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.
COMMENTS
LAW COMMISSION REPORTS
No defect if substantial compliance with section 164 or 281 – This section corresponds to section 533 of the old Code. The old section provided that if the Court, before which a statement of confession of the accused person purporting to be recorded under old section 164 or old section 364 was tendered in evidence, found that any of the provisions of those sections had not been complied with by the Magistrate recording the statement of confession, it should “take evidence that such person duly made the statement recorded”. This provision had given rise to conflicting interpretations on two aspects : first, statement or confession, “duly made”, and secondly, statement or confession, duly made, “recorded properly”. As observed by the Law Commission :
“In the first case, section 533, should not apply, because, to apply the section in such cases would defeat the very object of sections 164 and 364, thereby depriving the accused of beneficial provision on a matter on which the law has always shown its anxious concern.
It is only the second kind of defect—defect in recording—that should be curable. The Magistrate should have complied with the substantial provisions of section 164, and there can be no saving for a non-compliance on that account. If such compliance is not apparent from the record, it can be proved otherwise. That is all that section 533 is intended to provide for.”
That this was the intention of the old section had also been confirmed by the Supreme Court in State of U.P. v. Singhara Singh AIR 1964 SC 358. Sub-section (1), therefore, clarifies that the evidence given should relate to the apparent non-compliance with the statutory provisions.