Under Section 164 Crpc: The Presence of the Advocate is Not Mandatory when Confession of the Accused Before the Magistrate is Not Recorded by Means of Audio-Video - Synopsis
Parul Madaan 9 Jan 2020

Under Section 164 Crpc: The Presence of the Advocate is  Not Mandatory when Confession of the Accused Before the Magistrate is Not Recorded by Means of Audio-Video 

 Manoharan v. State, (2019) 7 SCC 716


In this case, the accused kidnapped a 10-year-old girl and her seven-year-old brother as they prepared to go to school. The children were taken to a remote area and the girl was raped. By feeding them poisonous cow dung powder mixed in milk, attempts were made to kill both the children. But the children took only a small quantity of milk, though, and did not die. The children then were then thrown away alive and both of the suspects were arrested, but in an encounter the second Accused was later shot dead.

 The arguments for the Petitioner begun with challenge that the Confession was forced and involuntary, and the convict was physically assaulted by the police while in custody, in contravention of Section 163, CrPC and Section 24, Indian Evidence Act. The petitioner was under severe psychological stress due to the in-custody killing of the co-accused and the circumstances surrounding the confession were suspicious, because the Investigative Officer submitted a report claiming that the petitioner was willing to give a statement when he was in judicial custody and not police custody.

 The Magistrate failed to comply with the compulsory procedure provided by Section 164, CrPC because he did not inform the petitioner that after recording the confessional statement, he would not be sent to police custody.  Also argued it caused prejudice to the accused by the absence of an advocate during proceedings before the Magistrate.

The Court in this case refused to give leeway to the lack of criminal record, considering that the current crime was not just one offense, but consisting of multiple offences over the many-hour series. Also held that the advocate's presence is not necessary when the magistrate's confession of the accused is not recorded by audio-video. The Petitioner's present offences is so serious that it would be the 'rarest of the rare' case.

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