Law of Evidence

By Nizam Azeez Sait.

MODULE No. 9

CONFESSIONS IN GENERAL

This is the 9th Module on the subject ‘Law of Evidence’, in this module we will be discussing “Confessions”. Sections 22 to 24 of the Bhartiya Sakshya Adhiniyam (Sections 24 to 30 ofthe Indian Evidence Act) speak on the law relating to Confessions.

MODULE INDEX

1. Introduction
2. Changes Made In the Bharatiya Sakshya Adhiniyam With Respect to Provisions on Confession
3. Meaning of Confession in legal parlance
‘Nishi Kanth Jha Proposition’ – Inculpatory Part Admitted Excluding the Inherently Improbable Exculpatory Part
4. Confessions is Substantive Evidence
5. Judicial Confession and Extra Judicial Confession
6. Manner of Recording Judicial Confessions
7. Admissibility and Evidentiary value of Judicial Confessions
8. Admissibility and Evidentiary value of Extra Judicial Confessions
9. Can a Person directly approach a Magistrate for recording a Confession or a Non Confessional Statement under Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Section 164 CrPC)
10. Retracted Confession
11. Validity of Confession Caused by inducement Threat or Promise from Person in Authority (Section 22)
12. Meaning of the Phrase ‘Person in Authority’
13. Ingredients of Section 22- Summed Up
14. Confession Made under Promise of Secrecy or Deception Etc are Valid 2nd Proviso (Section 29 of Evidence Act)
15. Necessity of Voluntariness of Confession

16. Extra Judicial Confession to a Police Officer and while in Police Custody are Irrelevant under Section 23 (Sections 25 and 26 of the Evidence Act)
16.1 ‘Custody’ – Meaning
16.2 Police Officer – Meaning
16.3 Customs Officers are not Police
16.4 Central Excise Officers are not Police
16.5 Forest officers are not Police
16.6 Food Inspector is not a Police officer
16.7 Excise Officer/Abkari officer are Police
16.8 Whether a Confession Recorded under Section 67 of the NDPS Act by Officers authorised under Section 42 is Admissible or Hit by S. 23 (1) of the Bharatiya Sakshya Adhiniyam (Section 25 of the Evidence Act ) – ‘Tofan Singh’ case
17. First Information Report of the Accused which is not a Confession Can Be Used as an Admission against Him under S. 19 of the Bharatiya Sakshya Adhiniyam (S.21 of the Evidence Act)

1. Introduction

In the previous module we had discussed ‘Admissions’ in general. This module specifically deals with confessions.

“Confession” which is a terminology used in criminal law is a species of “admission” as defined in S 15 read with 16 to 19 of the Bhartiya Sakshya Adhiniyam (S.17 read with sections 18 to 21 of the Evidence Act).

It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession.

It is often said that Statement is genus, admission is the species and confession is the sub species.

While Sections 15 to 21 and 25 deal with admissions in general, the law as to confessions is embodied in Section 22 to 24 the Bharatiya Sakshya Adhiniyam (Ss24 to 30 of the Evidence Act).

2. Changes Made In the Bharatiya Sakshya Adhiniyam With Respect to Provisions on Confession

In the Bharatiya Sakshya Adhiniyam the provisions relating to confession are revamped. 3 sections of the Evidence Act Sections 24, 28 and 29 are integrated into a single section that is Section 22 of the Bharatiya Sakshya Adhiniyam. Body of Section 22 corresponds to section 24 of the Evidence Act and proviso 1 and 2 of Section 22 corresponds to Sections 28 and 29 of the Evidence Act.

Likewise, provisions relating to confessions to the police in Sections 25, 26 and 27 of the Evidence Act are integrated into a single section that is Section 22 of the Bharatiya Sakshya Adhiniyam.

We shall deal with the above sections a little later in this module.

3. Meaning of Confession in legal parlance

Now let us examine the Meaning of Confession in legal parlance

The word ‘Confession’ as such has not been defined in the Evidence Act.

But the apex court in a catena of decisions interpreted the meaning of ‘confession’

In the first and the foremost case in which the Supreme Court has comprehensively explained the meaning of Confession is Palvinder Kaur v. State of Punjab, reported in AIR 1952 SC 354.

In the said case the Supreme Court endorsing an earlier view of the Privy Council in Pakala Narayanaswami v. Emperor, (reported in AIR 1939 P. C. 47,) stated, that a mere statement suggesting an inference as to the commission of a crime will not amount to a confession and an accused cannot be convicted on the basis of such statement. The Supreme Court stated:

“It was observed by their Lordship of the Privy Council in Pakala Narayanaswami v. Emperor, that the word “confession” as used in the Evidence Act cannot be construed as meaning a statement by an accused suggesting the inference that he committed the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.”

Again in Kande Padayachi v. State of T.N., AIR 1972 SC 66, a three judge bench of the Supreme Court observed:

“As held by the Privy Council, a confession has to be a direct acknowledgement of the guilt of the offence in question and such as would be sufficient by itself for conviction. If it falls short of such a plenary acknowledgment of guilt it would not be a confession even though the statement is of some incriminating fact which taken along with other evidence tends to prove his guilt. Such a statement is admission but not confession

It is thus clear that an admission of a fact however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession.”

Thus, even an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession, will not amount to confession.

The definition of confession in Stephen’s Digest of the Law of Evidence which defines a confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime, has been specifically rejected by the Privy Council and the Supreme Court.

To be a confession the statement must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. Acknowledgement of subordinate facts with reference to the crime will not amount to confession.

In Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343, it was reiterated that confession cannot be split up and part of it used against him. The Court observed:

“If the evidence of the experts is eliminated, there is no material for holding that Ext. P24 was typed on article A. The trial Magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A. Such use of the statement of the accused was wholly unwarranted. It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.

‘Nishi Kanth Jha Proposition’ – Inculpatory Part Admitted Excluding the Inherently Improbable Exculpatory Part 

In this case the appellant was convicted in a murder charge relying on the inculpatory part of his statement while excluding the exculpatory part.  Distinguishing the above Hanumant v. State of Madhya Pradesh, in Nishi kanth Jha v State of Bihar AIR 1969 SC 422, a 5 judges bench of the Supreme Court observed:

“In this case the exculpatory part of the statement in Ext. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant’s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S.342 Cr. P. C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood stains being so considerable as to attract the attention of Ram Kishore Pandey, P. W. 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ext. 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime.”

In coming to the above conclusion, the 5 judges bench referred to some English Authorities, the bench observed:

In Roscoe’s book on Criminal Evidence (16th Edition, page 52), the statement of law is much to the same effect. Roscoe also cites a decision in Rex v. Clewes, 1830 (4) Car and P 221 where the confession of the prisoner charged with murder that he was present at the murder but that it was committed by another person and that he took no part in it, was left to be considered by the jury with a direction that the jury might, if they thought proper, believe one part of it and disbelieve another. According to Archbold’s Criminal Pleading, Evidence and Practice (Thirty sixth Edition, page 423):

“In all cases the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that he had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge ……….. It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say whether the facts asserted by the prisoner in his favour be true.”

4. Confessions is Substantive Evidence

Now Let us see the Legal Significance of Confessions. Confession being an admission is substantive evidence and relevant as per Section 19 (Section 21 of the Evidence Act).

The following two maxims emphasise the importance of confession in criminal trial.

Confessio facta in judico omini probatione major est…Which means a confession in a judicial proceedings is greater than any other proof.

The second maxim is:

Confessio facta in judicoest plena probation…Which means a confession is the absolute proof.

Rational behind attributing much weightage to a confession is that normally human beings will not make such statements prejudicial to himself, except when prompted/ urged by his inclination to speak the truth.

A confession made under a mistake could be explained with cogent reasons and evidence could be given to prove that such confession was falsely made.

5. Judicial Confession and Extra Judicial Confession

There are two categories of Confessions one is Judicial Confession and the other is Extra Judicial Confession.  Now we will see the Distinction between the two  

A confession before an authorized magistrate and recorded in accordance with Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 164 CrPC) or made before the trial court by an accused are generally referred to as Judicial Confessions. Whereas confessions made to any other person are referred to as extra judicial confessions. The extra judicial confessions are required to be brought out in evidence and proved before the court during the trial as any other fact. To put in other words extra judicial confessions of the accused are also relevant and can be proved against the accused in trial.

6. Manner of Recording Judicial Confessions

The procedure for recording confessions by judicial magistrates is enumerated in S.164 (1) to (4), which reads as follows:

(1) Any Magistrate of the District in which the information about commission of the 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 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.

(4) Any such confession shall be recorded in the manner provided in Section 316 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-

“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him.

(Signed) A.B.
Magistrate”.

 

(6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried.

Local Criminal Rules of Practice also provide procedure for further safeguards ensuring voluntariness in the matter of recording of the Confessions by the Magistrates.

Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Section 281 of the Criminal Procedure Code) reads as:

(1) Whenever the accused is examined by any Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the Presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

(2) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable in the language of the Court.

(3) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

(4) It shall thereafter be signed by the accused and by the Magistrate or Presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.

Provided that where the accused is in custody and is examined through electronic communication, his signature shall be taken with in seventy-two hours of his examination

(5) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.

The presumption of genuineness under Section 79 of the Bharatiya Sakshya Adhiniyam (Section 80 of the Indian Evidence Act) is available to a document containing such confession recorded by a Magistrate and therefore the statement can be admitted in evidence even without examining the Magistrate.

7. Admissibility and Evidentiary value of Judicial Confessions

Now Let us proceed to examine the Admissibility and Evidentiary value of Judicial Confessions

In Rabindra Kumar Pal @ Dara Singh v. Republic of India, (AIR 2011 SC 1436 ) (which is the sensational murder case of the Christian missionary Graham Stuart Staines and his 2 children), the Supreme Court summarized and succinctly laid down the principles governing the evidentiary value of judicial confessions u/s 164 CrPC (Section 316 of the Bharatiya Nagarik Suraksha Sanhita) as follows:

(i) The provisions of S.164 CrPC must be complied with not only in form, but in essence.

(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

(iv) The maker should be granted sufficient time for reflection.

(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

(vii) Non – compliance of S.164 CrPC goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open Court.

(x) Confession of a co – accused is a weak type of evidence.

(xi) Usually, the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.

In this case the confession was not considered for  Non – compliance of S.164 CrPC (Corresponding to Section 316 of the Bharatiya Nagarik Suraksha Sanhita)

8. Admissibility and Evidentiary value of Extra Judicial Confessions

Now we will move on to the Admissibility and Evidentiary value of Extra Judicial Confessions. There is no doubt that an extra judicial confession is substantive evidence but generally the Courts consider it as weak evidence and would look for corroboration unless evidence of such confession inspires absolute confidence as to its truthfulness.

In Balwinder Singh v. State of Punjab ([1995 Supp. (4) SCC 259]), the Supreme Court stated the principle that an extrajudicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.

In Pakkirisamy v. State of T.N. [(1997) 8 SCC,) the Court held that it is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extrajudicial confession.

While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extrajudicial confession, the Supreme Court in the case of State of Rajasthan v. Raja Ram [2003 (8) SCC 180] stated the principle that an extrajudicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court.

The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.

A confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused.

Accepting the admissibility of the extrajudicial confession, the Court in the case of Sansar Chand v. State of Rajasthan reported in (2010 (10) SCC 604) held that:

“There is no absolute rule that an extrajudicial confession can never be the basis of a conviction, although ordinarily an extrajudicial confession should be corroborated by some other material.”

In Narayan Singh v. State of Madhya Pradesh reported in AIR 1985 SC 1678, the Supreme Court opined as follows:

“It is not open to any Court to start with a presumption that extra judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession”

In, Baskaran and Another v. State of Tamil Nadu, (2014 (5) SCC 765,) the Supreme Court reiterated the law relating to the admissibility of the extra judicial confession in the following words:

“It is no doubt true that this Court time and again has held that an extra – judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any court to start with the presumption that extra – judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated…”

9. Can a Person directly approach a Magistrate for recording a Confession or a Non Confessional Statement under Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Section 164 CrPC)

Now let us see if a Person can directly approach a Magistrate for recording a Confession under Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Section 164 CrPC) or a Non Confessional Statement under Clause Section 316 of the Bharatiya Nagarik Suraksha Sanhita (Clause 5 of Section 164 CrPC).

The law in this regard is that a person cannot directly approach the magistrate for the purpose of recording a Statement under section 164(5) of CrPC. For the purpose of recording such a statement under

Section 164(5) of CrPC the person should be sponsored by the Investigating agency/officer.

But if an accused person approaches the Magistrate for recording a confessional statement, the Magistrate may record such a confessional Statement.

In this regard, in, Jogendra Nahak v. State of Orissa, Reported in AIR 1999 SC 2565 the Supreme Court observed:

“There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused. But that cannot be said of a person who is not an accused. No such person can straightway go to a Magistrate and require him to record a statement which he proposes to make.

In the scheme of the above provisions there is no set or stage at which a Magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. If a Magistrate is obliged to record the statements of all such persons who approach him the situation would become anomalous and every Magistrate Court will be further crowded with a number of such intending witness brought up at the behest of accused persons.

Thus, on a consideration of various aspects, we are disinclined to interpret S.164 of the Code (S. 316 the Bharatiya Nagarik Suraksha Sanhita) as empowering a Magistrate to record the statement of a person unsponsored by the investigating agency.”

In, Mahabir Singh v. State of Haryana reported in AIR 2001 SC 2503, the Supreme Court opined:

“The sub-section makes it clear that the power of the Magistrate to record any confession or statement made to him could be exercised only in the course of investigation under Chapter XII of the Code. The section is intended to take care of confessional as well as non-confessional statements. Confession could be made only by one who is either an accused or suspected to be an accused of a crime. Sub-s.(2), (3) and (4) are intended to cover confessions alone, dehors non confessional statements whereas sub-section (5) is intended to cover such statements. A three Judge Bench of this Court in JogendraNahak v. State of Orissa, AIR 1999 SC 2565, has held that so far as statements (other than confession) are concerned they cannot be recorded by a Magistrate unless the person (who makes such statement) was produced or sponsored by investigating officer. But the Bench had distinguished that aspect from the confession recording for which the following observations have been specifically made:

“12. There can be no doubt that a confession of the accused can be recorded by a Magistrate. An accused is a definite person against whom there would be an accusation and the Magistrate can ascertain whether he is in fact an accused person. Such a confession can be used against the maker thereof. If it is a confessional statement, the prosecution has to rely on it against the accused.”

We have no doubt that an accused person can appear before a Magistrate and it is not necessary that such accused should be produced by the police for recording the confession. But it is necessary that such appearance must be “in the course of an investigation” under Chapter XII of the Code. If the Magistrate does not know that he is concerned in a case for which investigation has been commenced under the provisions of Chapter XII it is not permissible for him to record the confession. If any person simply barges into the Court and demands the Magistrate to record his confession as he has committed a cognizable offence, the course open to the Magistrate is to inform the police about it. The police in turn have to take the steps envisaged in Chapter XII of the Code. It may be possible for the Magistrate to record a confession if he has reason to believe that investigation has commenced and that the person who appeared before him demanding recording of his confession is concerned in such case. Otherwise, the Court of a Magistrate is not a place into which all and sundry can gate crash and demand the Magistrate to record whatever he says as self incriminatory.”

10. Retracted Confession

Now let us see what would be the consequence of retraction of a confession. There is no absolute rule that a retracted confession cannot be acted upon and form the basis for conviction but as a matter of prudence and caution generally the court would look for corroboration.

In this regard three Judge Bench of the Supreme Court in Subramania Goundan v. State of Madras [reported in (1958) SCR 428] laid down as follows:

“A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker. The question has very often arisen whether a retracted confession may form the basis of conviction if believed to be true and voluntarily made. For the purpose of arriving at this conclusion the court has to take into consideration not only the reasons given for making the confession or retracting it but the attending facts and circumstances surrounding the same. It may be remarked that there can be no absolute rule that a retracted confession cannot be acted upon unless the same is corroborated materially. It was laid down in certain cases one such being In re KesavaPillai [ILR 53 Mad. 160] (B) that if the reasons given by an accused person for retracting a confession are on the face of them false, the confession may be acted upon as it stands and without any corroboration. But the view taken by this court on more occasions than one is that as a matter of prudence and caution which has sanctified itself into a rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated. One of the latest cases being Balbir Singh v. State of Punjab (AIR 1957 SC 216), but it does not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated nor is it essential that the corroboration must come from facts and circumstances discovered after the confession was made. It was be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession”

The Supreme Court in Paramananda Pegu v. State of Assam, (reported in AIR 2004 SC 4197,) reiterated the above view.

Dealing with the situation of retraction from the extra judicial confession made by an accused, the Court in the case of Rameshbhai ChandubhaiRathod v. State of Gujarat, (2009 (5) SCC 740,) held as under:

“When an extra – judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time, it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true.”

11. Validity of Confession Caused by inducement Threat or Promise from Person in Authority (Section 22)

Now let us see the validity of Confession caused by inducement threat or promise from Person in Authority. The relevant provision is in Section 22 of the Bharatiya Sakshya Adhiniyam (Section 24 of the Evidence Act). It reads as follows:

Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding–

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat, coercion or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him:

Provided that if the confession is made after the impression caused by any such inducement, threat, coercion or promise has, in the opinion of the Court, been fully removed, it is relevant:

Provided further that if such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him.

To attract the provisions of this section the following facts have to be established:

(a) that the confession has been made by an accused person to a person in authority;

(It does not mean that an accusation of an offence must necessarily have been in existence at the time of the making of the confession, the section will apply even if the maker of the confession was charged subsequently)

(b) that it must appear to the Court that the confession has been obtained by reason of any inducement, threat or promise proceeding from a person in authority

(c) that the inducement, threat or promise must have reference to the charge against the accused person; and

(d) the inducement, threat or promise, must, in the opinion of the Court, be such that the accused in making the confession believed or supposed that by making it he would gain any advantage or avoid any evil of temporal nature in reference to the proceedings against him.

Section 22 (section 24 of the Evidence Act) lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence.

1st proviso to S 22 of the Bharatiya Sakshya Adhiniyam (Section 28 of the Evidence Act) lays down that if such a confession as is referred to in section 22 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the Court, been fully removed, it is relevant.

12. Meaning of the Phrase ‘Person in Authority’

Now we will See the meaning of the Phrase ‘Person in Authority’. The expression ‘Person in Authority’ is not defined in the Evidence Act. Generally, he is one who is engaged in the investigation of the particular offence and his superiors or officers authorised by him. Each case has to be judged on the basis of its own facts to see if the inducement is from a “person in authority”.

13. Ingredients of Section 22 – Summed up

In Pyare Lal Bhargava v. State of Rajasthan reported in AIR 1963 SC 1094, a four Judges Bench analysed Section 24 of the Evidence Act     (Section 22 of the Bharatiya Sakshya Adhiniyam) Speaking through Justice K. Subba Rao the court opined:

“Under that section a confession would be irrelevant if the following conditions were satisfied: (1) it should appear to the court to have been caused by any inducement, threat or promise; (2) the said threat, inducement or promise must have reference to the charge against the accused person; (3) it shall proceed from a person in authority; and (4) the court shall be of the opinion that the said inducement, threat or promise is sufficient to give the accused person grounds which would appear to him reasonable in supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him.”

The Court further laid down the principles governing the degree of satisfaction required interpreting the phrase ‘appears to the Court’, in the following terms:

“The crucial word in the first ingredient is the expression “appears”. The appropriate meaning of the word “appears” is “seems.” It imports a lesser degree of probability than proof. S.3 of the Evidence Act says:

“A fact is said to be ‘proved’ when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

Therefore, the test of proof is that there is such a high degree of probability that a prudent man would act on the assumption that the thing is true. But under S.24 of the Evidence Act ( S 22of the Bharatiya Sakshya Adhiniyam) such a stringent rule is waived but a lesser degree of assurance is laid down as the criterion. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court’s opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards of proof has been designedly accepted by the Legislature with a view to exclude forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence. It is not possible or advisable to lay down an inflexible standard for guidance of courts, for in the ultimate analysis it is the court which is called upon to exclude a confession by holding in the circumstances of a particular case that the confession was not made voluntarily.”

14. Confession Made under Promise of Secrecy or Deception Etc are Valid 2nd Proviso (Section 29 of Evidence Act)

2nd proviso to S 22 (Section 29 of the Evidence Act) makes valid and relevant confessions made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was dunk, or because it was made in answer to questions which he need not have answered, or because he was not warned that he was not bound to make such confession.

15. Necessity of Voluntariness of Confession

In Aher Raja Khima v. State of Maharashtra, reported in AIR 1956 SC 217, speaking for the Supreme Court, regarding the utmost necessity of voluntariness of the confession, Justice Vivin Bose, opined:

“Now the law is clear that a confession cannot be used against an accused person unless the Court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. It is abhorrent to our notions of justice and fair play and is also dangerous, to allow a man to be convicted on the strength of a confession unless it is made, voluntary and unless he realises that anything he says may be used against him; and any attempt by a person in authority to bully a person into making a confession or any threat or coercion would at once invalidate it if the fear was still operating on his mind at the time he makes the confession if it “would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him” That is why the recording of a confession is hedged around with so many safeguards and is the reason why Magistrates ordinarily allow a period for reflection and why an accused person is remanded to jail custody and is put out of the reach of the investigating police before he is asked to make his confession.”

16. Extra Judicial Confession to a Police Officer and while in Police Custody are Irrelevant under Section 23 (Sections 25 and 26 of the Evidence Act)

Section 23 (1) of the Bharatiya Sakshya Adhiniyam bars proof of a confession made to a police officer. Section 23(2) goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. These provisions are enacted to check police from manufacturing forced confessions to prove its case.

Section 23 along with the proviso reads as under:

(1) No confession made to a police officer shall be proved as against a person accused of any offence.

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

In India the law does not repose much confidence on police officers unlike in England and many advanced countries where confession made to a police officer is admissible.  The rationale of S.23 (S.25 and S.26 of the Indian Evidence Act) is that police may manipulate or procure a confession by coercion or threat. The provision is to prevent third degree methods on the accused for extortion of confession by the police to prove the accused guilty.

A confession leading to discovery of a fact which is dealt with under the proviso to S. 23 of the Bharatiya Sakshya Adhiniyam (S.27 of the Evidence Act) is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. (Which we will deal in detail in Module No. 10)

16.1 ‘Custody’ – Meaning

In State of A.P. v. Gangula Satya Murthy, reported in AIR 1997 SC 1588. The Supreme Court analysed the meaning of ‘custody’ in S.26 of the Evidence Act for the evaluation of admissibility of extra judicial confession and held as under:

“It is true any confession made to a police officer is inadmissible under S. 25 of the Act and that ban is further stretched through S. 26 to the confession made to any other person also if the confessor was then in police custody. Such ‘custody’ need not necessarily be post – arrest custody. The word ‘custody’ used in S. 26 is to be understood in a pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the section. If he makes any confession during that period to any person, be he not a police officer, such confession would also be hedged within the banned contours outlined in S. 26 of the Evidence Act (S. 23 (2) of the Bharatiya Sakshya Adhiniyam).”

In Salim v. State of Kerala, reported in 2012 CriLJ 3198, an accused in a murder case, after arrest, was taken by the police to a doctor for examining the injuries found on his body. He privately made a confession to the doctor about the occurrence. High Court of Kerala held that the so-called Confession was inadmissible in view of the clear provision in S.26 of the Evidence Act (S. 23 (2)of the Bharatiya Sakshya Adhiniyam).

16.2 Police Officer – Meaning

Supreme Court has held that merely because some regular powers of police officer are vested with some officers they cannot be considered to be police officers for the purpose of S.25 of the Evidence Act (S. 23 (1)of the Bharatiya Sakshya Adhiniyam).

16.3 Customs Officers are not Police

In State of Punjab v. Barkatram AIR 1962 SC 276 a 3 judges bench of the Supreme Court held that Customs Officers are not Police Officers for the purpose of section 25 of the Evidence Act (S. 23(1)of the Bharatiya Sakshya Adhiniyam) and confessions to such officers are admissible. It was by a majority judgment of Justices Raghubar Dayal, and J. L. Kapur.  A Dissenting judgment was authored by Justice K. Subba Rao.

The Majority judgment of the Court observed:

“…..the duties of the Customs officers are very much different from those of the police officers and that their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers.”

The Court further observed:

“We now refer to certain aspects which lead us to consider that the expression ‘police officer’ has not such a wide meaning as to include persons on whom certain police powers are conferred. The object of enacting S.25 of the Evidence Act, whose provisions formerly formed part of the Code of Criminal Procedure, was to exclude from evidence confessions made to the regular police which had a very bad reputation for the methods it employed in investigation, especially in forcibly extracting confessions with the object of securing a conviction. The past conduct of the members of the police organization justified the provision. It is too much to suppose that the Legislature did intend that all persons, who may have to investigate or arrest persons or seize articles in pursuance of any particular law of which at the time it had no conception, should be considered to be so unreliable that any confession made to them must be excluded just as a confession made to a regular police officer. If it could not contemplate the later creation of offences or of agencies to take action in respect to them under future legislation, it could not have intended the expression ‘police officer’ to include officers entrusted in future with the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of Customs duties. If the Legislature had intended to use the expression ‘police officer’ for such a wide purpose, it would have used a more comprehensive expression. It could have expressed its intention more clearly by making any confession made to any officer whose duty is to detect and prevent the commission of offences inadmissible in evidence.”

In Baduku Joti Savant v State of Mysore AIR 1966 SC 1746 a 5 judges bench of the Supreme Court comprising P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, C. Shah, and S. M. Sikri considered and evaluated the powers of the Central Excise Officer and held that such officer is not a Police Officer. The settling ratio of the decision (arguably) is that even if an officer under the special Act has been invested with most of the powers which an officer in charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of S.25 of the Evidence Act unless he is empowered to file a charge sheet under S.173 of the Code of Criminal Procedure.

In Raja Ram Jaiswal v. State of Bihar AIR 1964 SC 828, it was observed:

In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a ‘police officer’ for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a “police officer” for the purpose of S.25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by S.25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession.

In Raj Kumar Karwal v. Union of India and Ors. (1990) 2 SCC 409, after a survey of judgments it was observed:

“At least three Constitution Benches consisting of five Judges have clearly and unequivocally held that, the test of whether an officer other than a police officer properly so called, of some other departments, investigation of an offence under a Special Act such as the Customs Act, was to be deemed to be a police officer was whether he was invested with all the powers of a police officer qua investigation, including the power to submit a report under Section 173”

16.4 Central Excise Officers are not Police

Likewise Officers under Central Excise and Salt Act although got the power to investigate do not have the power to file final report under S.173 CrPC cannot be considered to be Police Officers

16.5 Forest officers are not Police

Likewise Forest officers are not Police Officers for the purpose of S.25.

16.6 Food Inspector is not a Police officer

Food Inspector is Not a Police officer.

16.7 Excise Officer/Abkari officer are Police

Whereas in Rajaram v. State of Bihar AIR 1964 SC 828, a 3 judges bench of the Supreme Court held that Excise Officer/Abkari officer having the power of investigation of offence and also the power to file a final report U/s 173 CrPC are to be considered as a Police Officer for the purpose of Section 25 of the Evidence Act (S. 23 of the Bharatiya Sakshya Adhiniyam). Court Observed:

The key test is whether the officer has power to not only investigate but also power to file a final report under section 173 of the Criminal Procedure Code (S. 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023).

16.8 Whether a Confession Recorded under Section 67 of the NDPS Act by Officers authorised under Section 42 is Admissible or Hit by S. 23 (1) of the Bharatiya Sakshya Adhiniyam (Section 25 of the Evidence Act ) – Tofan Singh case

The question before the 3 Judges Bench of the Supreme Court comprising Justices R.F. Nariman, Navin Sinha, Indira Banerjee, in Tofan Singh Vs. State of Tamil Nadu, (2021) 4 SCC 1 was whether officers invested with powers under Sections 42 and 53 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) are police officers within the meaning of (Section 25 of the Indian Evidence Act, 1872) and whether any confessional statement made to them would be barred under the provisions of Section 25 or 26 of the Evidence Act.

Section 53 of the NDPS Act reads as:

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence [or any other department of the Central Government including para-military forces or armed forces or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

Section 67 of the NDPS Act reads as:

Any officer referred to in Section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, –

(a) Call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder;

(b) Require any person to produce or deliver any document or thing useful or relevant to the enquiry;

(c) Examine any person acquainted with the facts and circumstances of the case.

The majority judgment of Justices R.F. Nariman, and Navin Sinha, authored by Justice R.F. Nariman held that:

  • That the officers who are invested with powers under section 53 of the NDPS Act are “police officers” within the meaning of section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of section 25 of the Evidence Act, and cannot be taken into account in order to convict an accused under the NDPS Act.
  • (ii) That a statement recorded under section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

In the process of coming to the above conclusion the Majority Judgment analysed various provisions of POTA, TADA, Customs Act etc. which validated confessions to authorised officers. The Court observed.

Even a cursory look at the provisions of these statutes would show that there is no parallel whatsoever between section 67 of the NDPS Act and these provisions. In fact, section 108 of the Customs Act, 1962 expressly states that the statements made therein are evidence, as opposed to section 67 which is only a section which enables an officer notified under section 42 to gather information in an enquiry in which persons are “examined”.

The Majority Judgment in Tofan Singh Vs. State of Tamil Nadu further held:

“Thus, to arrive at the conclusion that a confessional statement made before an officer designated under section 42 or section 53 can be the basis to convict a person under the NDPS Act, without any non obstante clause doing away with section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.”

Indira Banerjee, in her dissenting Judgment observed as under:

“It is now settled by the Constitution Bench in Badku Joti Sawant (supra) and Romesh Chandra Mehta (supra) and a plethora of judgments of this Court that Section 25 would only apply to a police officer or an officer who exercises all the powers of a police officer including the power of filing a police report under Section 173 of the Cr.PC. An officer under the NDPS Act does not have the power to file a police report under Section 173 of the Cr.P.C. (S. 193 of the Bharatiya Nagarik Suraksha Sanhita, 2023)

“In my view, the question of whether in reality or substance there is any difference between a complaint under Section 36A (1)(d) of the NDPS Act filed by an authorized officer of the Central Government or the State Government and a police report filed under Section 173 of the Cr.P.C, raised by the Appellant cannot be decided by this Bench of three-Judges in view of three five-Judge Constitution Bench judgments referred to above, which are binding on this Bench.”

In, Narcotic Control Bureau v Mohit Aggarwal,  AIR 2022 SC 3444 : 2022 CriLJ 3422 (N. V. Ramana, C. J. ; Krishna Murari; Hima Kohli,jj), another 3 judges bench followed the majority judgment in Tofan Singh and observed:

“NCB could not have relied on the confessional statements of the respondent and the other co – accused recorded under S.67 of the NDPS Act in the light of law laid down by a Three Judges Bench of this Court in Tofan Singh (supra), wherein as per the majority decision, a confessional statement recorded under S.67 of the NDPS Act has been held to be inadmissible in the trial of an offence under the NDPS Act. Therefore, the admissions made by the respondent while in custody to the effect that he had illegally traded in narcotic drugs, will have to be kept aside.”

17. First Information Report of the Accused which is not a Confession Can Be Used as an Admission against Him under S. 19 of the Bharatiya Sakshya Adhiniyam (S.21 of the Evidence Act)

Now Let us see if a first information report of the accused which is not a confession can be used as an admission against him under Section 19 (S.21 of the Evidence Act).

In Nisar Ali v. State of U. P. (S) AIR 1957 SC 366, Kapur, J. who spoke for the Court said, after narrating the facts:

“An objection has been taken to the admissibility of this report as it was made by a person who was a co-accused. A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under S.157, Evidence Act,( S. 23 of the Bharatiya Sakshya Adhiniyam) or to contradict it under S.145 of that Act (S. 23 of the Bharatiya Sakshya Adhiniyam). It cannot be used as evidence against the maker at the trial if he himself becomes an accused, not to corroborate or contradict other witnesses. In this case, therefore, it is not evidence.”

But in Faddi v. State of Madhya Pradesh, reported in AIR 1964 SC 1850, the Supreme Court received as admission, statement in the First Information Report lodged by the appellant himself who was later made accused in the case. The First Information Statement stated that, he peeped into a well and there he found the dead body of the boy named, Gulab, Court held:

“The report is not a confession of the appellant. It is not a statements made to a police officer during the course of investigation. S.25 of the Evidence Act (S. 23 of the Bharatiya Sakshya Adhiniyam) and S.162 of the Code of Criminal Procedure (S. 181 of the Bharatiya Nagarik Suraksha Sanhita, 2023) do not bar its admissibility. The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court”

The Court in “Faddi”, distinguished “Nisar Ali”, on facts and observed:

“Ostensibly, the expression ‘it cannot be used as evidence against the maker at the trial if he himself becomes an accused’ supports the appellant’s contention. But it appears to us that in the context in which the observation is made in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co-accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof. Of course a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co accused. Further, the last sentence of the above-quoted observation is significant and indicates what the Court meant was that the first information report lodged by Qudratullah, the co-accused, was not evidence against Nisar Ali. This Court did not mean-as it had not to determine in that case that a first information report which is not a confession cannot be used as an admission under S.21 of the Evidence Act or as a relevant statement under any other provisions of that Act.”

AghnooNagesia v. State of Bihar, reported in AIR 1966 SC 119 a three judges bench comprising, K.SubbaRao; RaghubarDayal; R. S. Bachawat, JJ, endorsed the view in “Faddi” but also reiterated that Confessional First Information statement cannot be used against the accused, the Bench held:

“If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under S.8 of the Evidence Act (S. 6 of the Bharatiya Sakshya Adhiniyam). If the information is a non-confessional statement, it is admissible against the accused as an admission under S.21 of the Evidence Act (S.19 of the Bharatiya Sakshya Adhiniyam) and is relevant, see Faddi v. State of Madhya Pradesh, Cri. Appeal No. 210 of 1963, dated 24-1-1964: (AIR 1964 SC 1850), explaining Nisar Ali v. State of U.P., (S) AIR 1957 SC 366 and Dal Singh v. King Emperor, 44 Ind App 137: (AIR 1917 PC 25). But a confessional first information report to a police Officer cannot be used against the accused in view of S.25 of the Evidence Act (S. 23 of the Bharatiya Sakshya Adhiniyam).”

But the three judges bench in ‘Aghnoo Nagesia’ further held as under:

“Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive the preparation, the opportunity, the provocation the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession.” 

The three judges bench further presented the following illustrative cases of statement of the accused for explaining the Proposition of law enunciated in the judgment:

“Sometimes, a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under S.304 A of the Indian Penal Code and a statement made by him to a police officer that “I was drunk: I was driving a car at a speed of 80 miles per hour. I could see A on the road at a distance of 80 yards; I did not blow the horn: I made no attempt to stop the car; the car knocked down A”. No single sentence in this statement amounts to a confession; but the statement read as a whole amounts to a confession of an offence under S.304A of the Indian Penal Code, and it would not be permissible to admit in evidence each sentence separately as a non confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. ‘A’ states “I struck ‘B’ with a tangi and hurt him”. In consequence of the injury ‘B’ died. ‘A’ committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defences. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.”

The Bench ultimately held:

If proof of the confession is excluded by any provision of law such as (S.24, S.25 and S.26 of the Evidence Act), the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section under as S.27 of the Evidence Act. Little substance and content would be left in S.24, 25 and 26 if proof of admission of incriminating facts in a confessional statement is permitted.

In view of the above observations of the Supreme Court the law in this regard could be summed up as follows:

  1. The fact of accused giving the first information is admissible against him as evidence of his conduct under Section 6 of the Bharatiya Sakshya Adhiniyam (S.8 of the Evidence Act).
  1. A confessional First Information Statement is barred from being Evidence
  1. A First Information Statement which does not contain any confession, but contains admission of facts having a bearing on the question/issue involved in the case, is relevant.
  1. Severance of the statement as admissible part and non-admissible part is not permissible.

In the next module we will deal with Relevancy of Information and Discovery under the proviso to S 23 of the Bharatiya Sakshya Adhiniyam (section 27 of the Evidence Act).

With that we come to the close of this Module on the subject ‘Law of Evidence’.

Hope you enjoyed and found it useful. See you again in another module with another interesting topic on the ‘Law of Evidence.

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Exercise Questions

  1. What is a Confession? Distinguish Judicial Confession and Extra-judicial Confession?
  2. Elucidate in the light of precedents the admissibility and evidentiary value of such confessions?
  3. What is the procedure and precautions for recording of confessions by a Magistrate under Section 316 of the Bharatiya Nagarik Suraksha Sanhita 164 of CrPC?
  4. Discuss legality of Confession to a Police Officer and while in Police Custody.
  5. Legality of Confession to (a) Abkari Officer (b)Excise Officer (c) Customs Officer (c) Officer under NDPS Act (d) Forest Officer Etc
  6. Comment on Tofan Singh Vs. State of Tamil Nadu.
  7. Comment on the Admissibility of confessional and non-confessional First Information Report by an accused Person.