Section 164 of the Code of Criminal Procedure, 1973 (CrPC), which governed the recording of confessions and statements before a Magistrate, has been replaced by Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The new provision introduces mandatory audio-video recording of confessions with the advocate present, expands the class of magistrates empowered to record confessions to include any "Magistrate of the District," mandates recording by a female magistrate in sexual offence cases, and strengthens procedural safeguards through statutory codification of principles previously enforced only through case law.
What changed
| Feature | Section 164 CrPC (Old) | Section 183 BNSS (New) |
|---|---|---|
| Empowered magistrate | Any Metropolitan Magistrate or Judicial Magistrate | Magistrate of the District (expanded scope) |
| Recording method | Written recording only | Audio-video recording mandatory wherever possible, in the presence of the accused's advocate |
| Female magistrate mandate | No specific requirement | Mandatory recording by female magistrate in sexual offence cases; if unavailable, male magistrate in presence of a woman |
| Voluntariness safeguard | Magistrate to explain that confession not compulsory (judicial practice) | Statutory requirement to explain voluntariness before recording |
| Cooling-off period | Minimum time before recording (judicial practice) | Codified cooling-off period to ensure voluntariness |
| Disabled persons | No specific provisions | Special procedures for physically and mentally disabled victims |
| Jurisdiction basis | Place where offence committed | Jurisdiction tied to location of FIR registration |
Full statutory text
Section 164 CrPC (Old Law) — Relevant Extract:
(1) Any Metropolitan Magistrate or Judicial Magistrate 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 before the commencement of the inquiry or trial.
(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.
Section 183 BNSS (New Law) — Relevant Extract:
(1) Any 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 by audio-video electronic means 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.
(6)(a) In cases punishable under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023, the Magistrate shall record the statement of the person against whom such offence has been committed 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 Magistrate and in her absence by a male Magistrate in the presence of a woman.
Key differences
Audio-video recording with advocate: The proviso to Section 183(1) mandates that confessions "shall also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence, wherever possible." This creates a digital record that can verify voluntariness and protect against allegations of coercion.
Expanded magistrate class: Section 183 uses "Magistrate of the District" instead of "any Metropolitan Magistrate or Judicial Magistrate." This is a welcome change as it broadens the pool of magistrates empowered to record confessions within the district.
Female magistrate mandate for sexual offences: The proviso requires that victims of offences against women must have their statements recorded by a female magistrate. If no female magistrate is available, a male magistrate may record the statement but only in the presence of a woman.
Statutory codification of safeguards: While Section 164(2) CrPC required the magistrate to explain voluntariness and satisfy himself that the confession is voluntary, Section 183 BNSS places these safeguards more explicitly within the statutory framework, reducing reliance on judicial interpretation alone.
Jurisdictional shift: Under BNSS, the jurisdiction for recording confessions is tied to the location of FIR registration rather than where the offence was committed. If an offence is committed in one state but the FIR is registered in another, the magistrate of the latter jurisdiction presides over the recording.
Enhanced protection for vulnerable persons: The BNSS mandates special procedures for recording statements of physically and mentally disabled persons, including through interpreters and special educators as necessary.
What this means for practitioners
For defence counsel: The mandatory audio-video recording with the advocate present provides a powerful safeguard. If a confession was recorded without audio-video means where such means were available, or without the advocate's presence, its admissibility can be challenged. Defence lawyers should insist on being present during recording and obtain copies of the audio-video record.
For prosecution: Prosecutors must ensure that confessions are recorded with full compliance of the new procedural requirements. A confession recorded without audio-video means may be more vulnerable to challenges on voluntariness, even if otherwise admissible.
For magistrates: The obligation to record confessions by audio-video means is qualified by "wherever possible." Courts must document why audio-video recording was not possible if they rely solely on written recording. The female magistrate requirement for sexual offence victims is mandatory and not subject to this qualification.
For pending cases: Under Section 531(2)(a) BNSS, confessions recorded before 1 July 2024 under Section 164 CrPC remain valid. Confessions recorded on or after 1 July 2024 must comply with Section 183 BNSS, including the audio-video recording requirement.
Does old case law still apply?
Nandini Satpathy v. P.L. Dani (1978) 2 SCC 424: The principle that the right against self-incrimination under Article 20(3) extends to the investigation stage and that no person can be compelled to make a confession remains fully applicable. Section 183 BNSS preserves the voluntariness requirement in sub-section (2).
State of U.P. v. Singhara Singh (AIR 1964 SC 358): The requirement that a confession must be truly voluntary and not induced by any threat, promise, or inducement continues to apply. The audio-video recording under BNSS actually strengthens this safeguard by creating an objective record.
Rabindra Kumar Pal v. Republic of India (2011) 2 SCC 490: The guidelines on recording confessions — including the need for adequate cooling-off time, independent examination by the magistrate, and detailed questioning about voluntariness — remain applicable and are now partially codified in the statute.
All case law on the admissibility of confessions, the voluntariness requirement, and the procedural safeguards continues to apply. The BNSS provisions strengthen rather than dilute these protections.
Judicial interpretation under BNSS Section 183 (post-July 2024)
The following case from the Veritect Legal Intelligence database shows how courts are applying Section 183 BNSS in practice:
Santosh Kumar v. State (NCT of Delhi) (10 February 2025)
Court: Delhi High Court | Judge: Neena Bansal Krishna J. | Result: Bail granted
In this bail application under Section 483 BNSS involving allegations of sexual assault and caste-based harassment under the SC/ST Act, the Delhi High Court examined the complainant's statement recorded under Section 183 BNSS. The Court found inconsistencies between the Section 183 statement and the FIR contents, which weighed in favour of granting bail. This case illustrates that courts are actively scrutinising Section 183 statements for internal consistency and treating inconsistencies as a relevant factor in bail consideration.
Veritect reference: DLHC010950862024_1_2025-02-10
Emerging patterns
- Section 183 statements as bail benchmarks: Courts are comparing Section 183 BNSS statements with FIR contents and medical evidence to assess the consistency of the prosecution case at the bail stage.
- Audio-video recording compliance still developing: As courts and infrastructure adapt to the new provision, the extent to which non-compliance with audio-video recording affects admissibility remains to be fully tested in reported decisions.
- Woman Magistrate requirement observed: In sexual offence cases, courts are noting whether the Section 183(6)(a) requirement of recording by a woman Magistrate was followed.
Frequently asked questions
Is audio-video recording of confessions mandatory under BNSS? Section 183(1) proviso states that confessions "shall also be recorded by audio-video electronic means" but qualifies this with "wherever possible." Where audio-video facilities are available, recording is mandatory. Courts may accept written-only confessions where audio-video means are genuinely unavailable, but the magistrate must record reasons.
Must the accused's lawyer be present during the recording? Yes. Section 183(1) proviso requires the audio-video recording to be done "in the presence of the advocate of the person accused of an offence." If the accused does not have a lawyer, one should be provided through legal aid before the recording.
Can a male magistrate record a sexual offence victim's statement? Only if a female magistrate is unavailable. The proviso to Section 183 requires a female magistrate as the default. A male magistrate may record the statement only in the presence of a woman.
Does this change affect the admissibility of confessions? The substantive rules on admissibility under the Bharatiya Sakshya Adhiniyam (BSA) Sections 22-24 remain unchanged. However, non-compliance with the audio-video recording requirement may be raised to challenge the voluntariness and reliability of the confession.