Section 164 CrPC vs Section 183 BNSS: Confessions and Statements Before a Magistrate

In India, Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 164 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. Confession safeguards and optional audio-video recording carry over; the BNSS changes which Magistrate records and adds a woman-Magistrate proviso and a ten-year-offence witness proviso.

At a glance

	Old law	New law
Section	Section 164, CrPC 1973	Section 183, BNSS 2023 (in force from 1 July 2024, S.O. 848(E))
What it does	A Magistrate records confessions and statements during investigation, before inquiry or trial	Same
Who records	"Any Metropolitan Magistrate or Judicial Magistrate"	"Any Magistrate of the District in which the information about commission of any offence has been registered"
Punishment	None: procedural section	None: procedural section
Cognizable / bailable / triable by	Not applicable (procedural; no First Schedule entry)	Not applicable (procedural; no First Schedule entry)
Change type	—	Modified

What changed

Sub-section (1), who records — Modified. "Any Metropolitan Magistrate or Judicial Magistrate" becomes "Any Magistrate of the District in which the information about commission of any offence has been registered". "whether or not he has jurisdiction in the case" is kept. "at any time afterwards before the commencement" becomes "afterwards but before" (minor edit).
First proviso to (1), audio-video in the advocate's presence — Identical. "may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence". The CrPC provisos to (1) were substituted by Act 5 of 2009, s.13 (w.e.f. 31-12-2009).
Second proviso to (1), no confession to a police officer with magisterial powers — Identical.
Sub-sections (2) and (3), caution, voluntariness and no police custody on refusal — Identical.
Sub-section (4), manner and memorandum — Minor edit. "the manner provided in section 281" becomes "section 316". The memorandum is word for word the same.
Sub-section (5), statements other than confessions, oath — Identical.
Clause (5A)(a), now (6)(a), victim's statement — Modified. "the Judicial Magistrate shall record" becomes "the Magistrate shall record", and "in the manner prescribed in sub-section (5)" becomes "specified". The IPC list (ss.354, 354A–354D, 376(1)–(2), 376A, 376AB, 376B–376D, 376DA, 376DB, 376E, 509) becomes BNS ss.64–71, 74–79 and 124. Section 124 (acid) had no counterpart in the CrPC list.
Woman Magistrate — New. The first proviso to (6)(a): "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".
Witness in offences punishable with ten years or more — New. The second proviso to (6)(a): "the Magistrate shall record the statement of the witness brought before him by the police officer".
Disabled person: interpreter or special educator — Minor edit. The rule is unchanged; a comma is added after "permanently", and the provision is now the third proviso to (6)(a).
Disabled person: mode of recording — Modified. "shall be video graphed" becomes "shall be recorded through audio-video electronic means preferably by mobile phone".
Clause (5A)(b), now (6)(b), statement in lieu of examination-in-chief — Minor edit. Section 137, Evidence Act becomes s.142, Bharatiya Sakshya Adhiniyam, 2023 (BSA).
Sub-section (6), now (7), forwarding to the trial Magistrate — Identical.

Statutory text (relevant extract)

Section 164(1) CrPC — 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:

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: …

Section 183(1) BNSS — 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 … or at any time afterwards but before the commencement of the inquiry or trial: …

Section 183(6)(a) BNSS, new provisos — extract:

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:

Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or with imprisonment for life or with death, the Magistrate shall record the statement of the witness brought before him by the police officer:

How it works — the steps

A. Recording a confession (ss.183(1)–(4))

The right Magistrate. Any Magistrate of the District in which the information was registered may record, whether or not he has jurisdiction in the case. A police officer who holds a Magistrate's powers may not record a confession (second proviso).
Caution (s.183(2)). Before recording, the Magistrate explains that the person "is not bound to make a confession and that, if he does so, it may be used as evidence against him".
Voluntariness (s.183(2)). The Magistrate questions the person and records the confession only if he "has reason to believe that it is being made voluntarily".
Refusal (s.183(3)). If the person says before recording that he is unwilling, the Magistrate "shall not authorise the detention of such person in police custody".
Record and memorandum (s.183(4)). The confession is recorded in the manner s.316 provides for examining an accused and signed by the maker. The Magistrate adds the prescribed memorandum certifying the caution, his belief in voluntariness, and that the record was read over and admitted.
Optional audio-video (first proviso). It may also be recorded by audio-video electronic means, in the presence of the accused's advocate.

B. Recording a statement (ss.183(5)–(7))

Other statements (s.183(5)). These are recorded in the manner best fitted to the case, and the Magistrate may administer an oath.
Victim of a listed offence (s.183(6)(a)). For BNS ss.64–71, 74–79 or 124, the Magistrate "shall record" the victim's statement as soon as the offence is brought to police notice. A woman Magistrate records it as far as practicable, or else a male Magistrate in the presence of a woman.
Ten-year offences (second proviso). The Magistrate "shall record the statement of the witness brought before him by the police officer".
Disabled person (third and fourth provisos; s.183(6)(b)). An interpreter or special educator assists, and the statement is recorded through audio-video electronic means, "preferably by mobile phone". It then stands as examination-in-chief under s.142 BSA, and the maker can be cross-examined on it without a fresh recording at trial.
Forwarding (s.183(7)). The record goes to the Magistrate who will inquire into or try the case.

What this means in practice

For a victim: Under s.183(6)(a), your statement is to be recorded "as soon as" the offence is reported to the police. Ask for a woman Magistrate. The proviso makes this the rule "as far as practicable", and if none is available a woman must be present. The police-stage statement of a rape victim is governed separately by s.176(1): it is recorded at your residence or place of choice, as far as practicable by a woman police officer, and may be recorded on any audio-video means, including a mobile phone.
For a person asked to confess: You can decline at any point before recording. If you do, s.183(3) bars the Magistrate from sending you to police custody. Under s.23(2) BSA, a confession made in police custody is not proved against you unless made "in the immediate presence of a Magistrate".
For the defence advocate: Check that the recording Magistrate belongs to the District where the information was registered. Check that the s.183(2) caution and questioning appear on the record and that the s.183(4) memorandum is complete. Shivappa treats the voluntariness enquiry as the most important part of the Magistrate's duty. Seek copies under s.230(iv) BNSS, due within fourteen days.
For the investigating officer: Bring the victim of a listed offence to the Magistrate promptly. In offences punishable with ten years or more, life or death, bring the witnesses whose statements are to be recorded. On a reading of s.183(1), the application should go to a Magistrate of the District of registration.
For the Magistrate: Record the questions put to test voluntariness, and the reasons for believing the confession voluntary. Shivappa says the Magistrate should "leave such material on the record" to show compliance.

Judgments that still matter

State of Uttar Pradesh v. Singhara Singh, [1964] 4 S.C.R. 485 (1963 INSC 173), 16 August 1963. In a judgment delivered by A.K. Sarkar J., the Court considered a confession recorded by a second-class Magistrate who was not shown to have been empowered under s.164 of the 1898 Code. It held that the record could not be used and that the Magistrate could not give oral evidence of the confession. It applied the rule that where a statute confers a power and lays down how it is to be exercised, "it necessarily prohibits the doing of the act in any other manner than that which has been prescribed". It added that "A magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in s. 164." The State's appeal was dismissed. Why it matters now: s.183(1) BNSS again defines who may record, now by reference to the District of registration. On a reading of the text and this principle, a recording by a Magistrate outside that description, or without the s.183 procedure, is open to the same objection.

Shivappa v. State of Karnataka, [1994] Supp. 6 S.C.R. 171 (1994 INSC 562), 29 November 1994. In a judgment by Dr A.S. Anand J. (with M.K. Mukherjee J.), the Court set aside a murder conviction resting on a confession recorded under s.164 CrPC. The Magistrate had not asked the questions needed to test voluntariness, and had not assured the accused that he would not be returned to police custody if he declined. The Court said the Magistrate "should give the accused sufficient time for reflection before he is asked to make his statement and should assure himself that during the time of reflection, he is completely out of police influence". It added that the accused should be told that even if he declined, "he shall not be remanded to police custody". Why it matters now: ss.183(2) and (3) repeat the words the Court applied, so on a reading of the text its account of the Magistrate's duty applies to s.183.

State of Karnataka v. Shivanna, [2014] 5 S.C.R. 812 (2014 INSC 345), 25 April 2014. By an order of Gyan Sudha Misra and V. Gopala Gowda JJ., the Court issued interim directions under Article 142 to all police stations (para 9). On receiving information of rape, the investigating officer must take immediate steps to have the victim's statement recorded under s.164. He must "as far as possible" take the victim to the nearest lady Metropolitan or, preferably, lady Judicial Magistrate. He must record the date and time of learning of the offence and of taking the victim to the Magistrate, and record reasons for any delay beyond 24 hours. The medical report under s.164A goes to the recording Magistrate. Why it matters now: the woman-Magistrate preference, which in 2014 existed only as a judicial direction, is now in the text as the first proviso to s.183(6)(a) ("as far as practicable"). The remaining directions are not reproduced in s.183. Whether they continue to bind after the CrPC's repeal is not addressed in the texts read.

Which law applies to your case

Section 531(2)(a) BNSS provides that an investigation pending immediately before 1 July 2024 is continued "in accordance with the provisions of the Code of Criminal Procedure, 1973 … as if this Sanhita had not come into force". On a reading of that clause, a confession or statement recorded in such an investigation, even after 1 July 2024, is recorded under s.164 CrPC. Investigations begun on or after 1 July 2024 use s.183 BNSS. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Which Magistrate can record a confession or statement under Section 183 BNSS? Section 183(1) BNSS empowers "Any Magistrate of the District in which the information about commission of any offence has been registered", whether or not he has jurisdiction in the case. Section 164(1) CrPC empowered "Any Metropolitan Magistrate or Judicial Magistrate". Under the second proviso, in both Codes, no confession may be recorded by a police officer on whom a Magistrate's power has been conferred.

Is audio-video recording of a confession mandatory under the BNSS? No. The first proviso to Section 183(1) BNSS says a confession or statement "may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence". The same words have been in Section 164(1) CrPC since they were substituted by Act 5 of 2009 (w.e.f. 31-12-2009). The advocate's presence is tied to the audio-video option in the text.

What happens if the accused refuses to confess once before the Magistrate? Section 183(3) BNSS says that if, before the confession is recorded, the person states that he is not willing to make it, the Magistrate shall not authorise his detention in police custody. Section 183(2) also requires the Magistrate to explain that he is not bound to confess and to record a confession only if he has reason to believe it is voluntary. Both rules are carried over word for word from Section 164(2) and (3) CrPC.

Must a woman Magistrate record a rape victim's statement under the BNSS? As far as practicable. The first proviso to Section 183(6)(a) BNSS says the statement of a victim of an offence under BNS sections 64 to 71, 74 to 79 or 124 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. Section 164(5A) CrPC had no such proviso; in State of Karnataka v. Shivanna ([2014] 5 S.C.R. 812) the Supreme Court had directed police, as far as possible, to take rape victims to a woman Magistrate.

What is the new ten-year proviso in Section 183 BNSS? The second proviso to Section 183(6)(a) says that in cases relating to offences punishable with imprisonment for ten years or more, or with life imprisonment or death, the Magistrate shall record the statement of the witness brought before him by the police officer. Section 164 CrPC had no equivalent. The proviso sits in clause (a), which deals with the listed sexual and acid offences, and its text does not say expressly whether it reaches other serious offences.

Can the statement of a disabled victim recorded under Section 183 replace evidence at trial? Yes, as its examination-in-chief. Section 183(6)(b) BNSS says the statement of a temporarily or permanently, mentally or physically disabled person recorded under clause (a) is treated as a statement in lieu of examination-in-chief under Section 142 of the Bharatiya Sakshya Adhiniyam, 2023, so the maker can be cross-examined on it without recording it again at trial. Section 164(5A)(b) CrPC said the same, referring to Section 137 of the Evidence Act.

Does the accused get a copy of statements recorded under Section 183? Yes. Section 230(iv) BNSS requires the Magistrate, in a case instituted on a police report, to furnish the accused free of cost with the confessions and statements recorded under Section 183, within fourteen days of production or appearance. The victim also receives copies if represented by an advocate. Section 207(iv) CrPC required this without delay but set no day limit.

Sources

Acts and sections read: BNSS 2023 ss.176(1), 182, 183, 230, 531 (Gazette CG-DL-E-25122023-250884); BSA 2023 ss.22, 23, 142 (Gazette CG-DL-E-25122023-250882); CrPC 1973 ss.163, 164, 207 (original India Code text).
Judgments read (Veritect judgment corpus, full text): State of Uttar Pradesh v. Singhara Singh (1964_4_485_497_EN.md); Shivappa v. State of Karnataka (S_1994_6_171_179_EN.md); State of Karnataka v. Shivanna (2014_5_812_817_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 164 CrPC vs Section 183 BNSS — Recording of Confessions and Statements