Section 24(2) of the Evidence Act provides that no confession made by any person while he is in the custody of a police officer shall be proved against any such person unless it is made in the immediate presence of a Magistrate.
This section is designed to ensure that any statement made by a person in police custody is voluntary. Suppose, therefore, such a person is brought before a magistrate to record a statement from him. In that case, the Magistrate must ensure that no force, threat, promise or any form of inducement is offered to or allowed to operate on the person to induce him to make a statement.
The following procedure is therefore adopted;
- It must be remembered that the prisoner is not on trial. It follows that such a statement must not be taken in any court as part of court proceedings.
- No police officer should be present in the chambers of Magistrate. The police officer escorting the prisoner should leave after informing the Magistrate of the reason for taking the prisoner before him, that is, the offence with which he is charged or the offence he is suspected of having committed, as the case may be. The police officer should then wait outside the chambers out of sight.
- The Magistrate should inquire of the prisoner the language which he understands. If it is one which the Magistrate does not know he should send for an interpreter.
- The charge, if any, or the nature of the suspicion for which he has been arrested, shall then be explained to the prisoner.
- The prisoner should be asked if he wishes to say anything about the charge or the offence he is suspected of having committed and should be told that HE IS FREE TO MAKE, OR NOT MAKE, ANY STATEMENT.
- The Magistrate must satisfy himself/herself by all reasonably possible means that the statement about to be made to him or her is entirely voluntary. It must not be assumed that he is going to confess. The document containing the statement should be prefaced by a memorandum containing notes of the foregoing and the steps which the Magistrate takes to satisfy himself or herself that the statement is voluntary. This prefatory part will enable the Magistrate to refresh his memory, in the event of his being called at the trial to prove the statement.
- A Magistrate who is about to make a statement should administer a caution the normal form: “You need not say anything unless you wish but whatever you do say will be taken down and may be given in evidence at your trial”.
- The person wishing to make a statement should not be asked whether he wishes to be sworn or affirmed. Still, if he requests the Magistrate without suggestion from the Magistrate, to place him on oath or affirmation, this may be done, but the prefatory memorandum must clearly state so.
- The statement should be recorded in the language which the prisoner chooses to speak. This may be done through an interpreter or the Magistrate may himself, if he is fully conversant with the vernacular being used, record it in the same language. The prisoner is not to be cross-examined when he is making the statement. Any question put to the prisoner must be designed to keep the narrative clear, and the question so asked must be reflected in the statement. It must be understood that the role of the Magistrate is to record the prisoner’s story accurately if he chooses to make a statement.
- The vernacular statement should be read back to the prisoner incorporating any corrections he may wish to make.
- The prisoner should certify the correctness of the statement by signing or thumb-printing it. The Magistrate and the interpreter, if any, should counter-sign it. If the statement covers more than one sheet of paper, all sheets should be so signed or thumb-printed by the prisoner.
- An English translation of the vernacular statement including the prefatory memorandum should then be made by the Magistrate or the interpreter, as the case may be.
- After the foregoing has complied with the prisoner should be handed back to the police officer