DR.

RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW

LAW OF EVIDENCE

FINAL DRAFT

ACCUSSED CONFESSION WHEN NOT RELEVANT

Submitted To- Submitted By-

Dr K.A. Pandey Kumar Sourav

Associate Professor (Law) Roll- 72

RMLNLU Semester-V
TABLE OF CONTENTS

Sl No Topic Page no

1 Introduction 1

2 Confession under Indian Evidence Act 3

3 Kinds of confession 5

4 Confession when not relevant (section 24, 25 and 26 8

of Indian Evidence Act)

5 Conclusion 14

6 Bibliography 15

i
 INTRODUCTION

The use of evidence as material in the reconstruction of past events makes a number of important
philosophical assumptions1. The law of Evidence occupies a most important part of adjective
law. It is for courts to ascertain the existence or non-existence of certain facts and to apply the
substantive law to the ascertained facts and to declare the rights and liabilities of parties in so far
as they are affected by such facts. The means by which the courts inform themselves of the
existence of these facts is termed evidence2. The purpose of calling evidence in the court is to try
to prove certain facts to be true. Evidence which assists in this process is relevant and, that which
doesnt assist is irrelevant. It is the first rule of evidence, and one to which there are no
exceptions, that irrelevant evidence is never admissible in courts 3.Bentham perceived 4rules of
evidence to be nothing more than an artificial restriction on the science of evidence, invented by
lawyers for less than honourable purposes. Evidence may be defined in general terms as any
material which has the potential to change the state of a fact-finders belief with respect to any
factual proposition which is to be decided and which is in dispute. In the words of Stephen5, the
Law of Evidence is that part of the law of procedure which, with a view to ascertain individual
rights and liabilities in particular cases, decides-

What facts may and what facts may not, be proved in;
What sort of evidence must be given of a fact which may be proved?
By whom and in what manner the evidence must be produced by which any fact is to be proved.

The term confession is not defined anywhere in Indian Evidence Act. But it is thought that an
Admission in case of a criminal matter is Confession. The same was stated by Stephen in his
digest that that a confession is an admission made at any time by a person charged with a crime,
stating or suggesting the inference that he committed the crime.

1
Peter Murphy, Murphy on Evidence (10th ed, Oxford University press 2008) 3.
2
S.D.Basu, Law of Evidence (1st ed, Allahabad Law Agency 2001) 3.
3
Rosamund Reay, Evidence (3rd ed, Old Bailey Press 2001) 1.
4
Peter Murphy, Murphy on Evidence (10th ed, Oxford University press 2008) 1.
5
Stephens digest of the Law of Evidence as mentioned in S.D.Basu, Law of Evidence (1st ed, Allahabad Law
Agency 2001) 3.

1
It is essential to curl out distinction between confession and admission. An admission is the
acceptance by a person of the truth of an allegiance6. However an adverse admission relevant to
the issue of guilt in a criminal case is known at common law as confession. While the common
law recognized that a confession might be both reliable and cogent as evidence of guilt, and
indeed saw no objection to a conviction in cases where a confession was the only evidence
against the accused, the law also recognized that a confession could be regarded as reliable only
when given freely and voluntarily7.
An admission is a statement that may or may not be a conclusive evidence of a fact in issue or
relevant fact but to be a confession, the admission must conclusively prove the guilt of the maker
of the admission. For example, in the case where a person being prosecuted under Customs Act
told the customs officer that he did not know that the goods loaded in his truck were contraband
nor were they loaded with his permission. SC held that the statement was not a confession but it
did amount to admission of an incriminating fact that the truck was loaded with contraband
material.
Thus, a statement which may not amount to confession may still be relevant as admission. Only a
voluntary and direct acknowledgment of guilt is confession, but when a confession fall short of
actual admission of guilt, it may nevertheless be used as evidence under Section 21.
Justice Thomas8, of SC stated the law in the case that
The test of discerning whether a statement recorded by a judicial magistrate under Section 164
of CrPC, is confessional or not is not to determine it by dissecting the statement into different
sentences and then to pick out some as not inculpative. The statement must be read as a whole
and then only the court should decide whether it contains admissions of his inculpatory
involvement in the offence. If the result of that test is positive the statement is confessional
otherwise not.

6
Rosamund Reay, Evidence (3rd ed, Old Bailey Press 2001) 163.
7
Peter Murphy, Murphy on Evidence (10th ed, Oxford University press 2008) 299.
8
Lokeman Shah vs State of WB, AIR 2001 SC.

2
 Confession under Indian Evidence Act, 1872

The word confession has not been defined under the Act. According to Privy Council, A
confession is a statement made by an accused which must either admit in terms the offence or at
any rate substantially all the facts which constitute the offence9. An admission of a gravely
incriminating fact, even a conclusively incriminating fact is not of itself a confession 10. The
confession is a form of admission consisting of direct acknowledgement of guilt in a criminal
charge. It must be in express words by the accused in a criminal case of the truth of the guilt fact
charged or some essential part of it and a statement that contains a self-exculpatory matter cannot
amount to confession. The confession should be a voluntary one that means not caused by
inducement, threat or promise. Whether a confession is voluntary or not is essentially a question
of fact11. According to Lord Wigmore, A confession is an acknowledgement in express words,
by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part
of it. It is to this class of statements only that the present principle of exclusion applies12.
A close scrutiny of the sections 17 to 30 of the Act, discloses that the statement is the genus,
admission is the species and confession is the sub-species13. Sir James Stephen in his digest of
the Law of Evidence defined confession: As an admission made at the time by a person
charged with the crime stating or suggesting the inference that he committed a crime The acid
test which distinguishes a confession from an admission is that when conviction can be based on
a statement alone, it is a Confession and where some supplementary evidence is required to
authorize a conviction, then it is admission14. The word statement includes both oral and
written statement. Communication to another is not however an essential component to
constitute a statement.
Section 164 of CrPC 1973 lays down procedure of recording of confession.

9
Pakala Narayan Swami vs Emperor, AIR 1939 PC 47; (1965) 3 SCR 80; Veera Ibrahim v State of Maharashtra,
AIR 1976 SC 1167.
10
Palvinder Kaur v State of Punjab, AIR 1952 SC 354
11
Shankar v State of Tamil Nadu, (1994) 4 SCC 478.
12
Khageswar Khatna v State, 1993 Cr LJ 2374 (Ori).
13
Sahoo v. State of U.P. AIR 1966 S.C. 42; Confessions and its various dimensions (assessed on 18th Oct., 2016),
http://shodhganga.inflibnet.ac.in/bitstream/10603/7860/11/11_chapter%204.pdf.
14
Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462.

3
 It is a general rule of criminal law that no confession is admissible, unless it is shown to have
been a voluntary statement in the sense that it has not been obtained from him either by fear, or
prejudice, or hope of advantage exercised or held out by a person in authority15. It is the duty
of the court to see whether the confession is voluntary or not, and the burden of proof lies on
prosecution. Even most gentle threats or slightest inducement, or hope of advantage to the
accused will taint a confession. Therefore, an unambiguous confession, if admissible in
evidence and free from suspicion of falsity is a valuable piece of evidence possessing a high
probative force16.
In India, the substantive law of confession is contained in sections 24 to 30 of the Evidence
Act, while the adjective law is found in sections 163, 164, 364, 533 of the Code of Criminal
Procedure, 1973. Sections 24 to 26 lay down when the confessions are not relevant i.e.
provable. While sections 27 to 29 are limitations to their operation. Section 24 excludes
confessions obtained by inducement, etc. Section 25 bars all confessions made to police
officers under any circumstances, whether voluntary or involuntary, while section 26 shuts out
confessions made in police custody, except those made in the presence of the Magistrate.

Conditions for Relevancy of a confession

It must not be caused by inducement, threat or promise (Section 24).
It must not be made to a police officer (Section 25), subject to the provisions of section 27.
It must be made in the immediate presence of a Magistrate when the accused is in the custody
of police officer (Section 26).
It must be made after the impression, caused by any inducement, etc, has been fully removed
(Section 28).
The confession of an accused is relevant only against himself, subject to section 30.

15
Dr Satish Chandra, Indian Evidence Act ( 3rd ed, Allahabad Law Agency 2005).
16
CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013).

4
 CLASSIFICATION OF CONFESSION

A confession may occur in any form. It may be made to the court itself, or to anybody outside the
court. Confession may be divided into basically two kinds:- Judicial and quasi-judicial. When it is
made to the court itself then it will be called judicial confession and when it is made to anybody
outside the court, in that case it will be called extra-judicial confession. It may even consist of
conversation to oneself, which may be produced in evidence if overheard by another. For example,
in Sahoo v. State of U.P. the accused who was charged with the murder of his daughter-in-law with
whom he was always quarreling was seen on the day of the murder going out of the house, saying
words to the effect : I have finished her and with her the daily quarrels. The statement was held to
be a confession relevant in evidence, for it is not necessary for the relevancy of a confession that it
should be communicated to some other person17.

Judicial Confession- A judicial confession is a confession that is made in front of a magistrate or

in a court. It may be made in the course of a judicial proceeding. When an accused makes a
confession to a Magistrate or Judge, it is called Judicial Confession. Section 164 of the Code of
Criminal Procedure, 1973 prescribes the rules to be followed by the Magistrate while recording a
confession made by the accused to the Magistrate during investigation of a crime. If a confession is
made to the Magistrate and recorded properly. It will be substantive evidence against the accused18.
A judicial confession undoubtedly is admissible in evidence. It is relevant fact. A judgment of
conviction can also be based on a confession if it found to be truthful, deliberate and voluntary and
if clearly proved. It is however, essential that they be made or the free will of the party and with full
knowledge of the nature and consequences of the confessions.

In the case of State (NCT of Delhi) v Navjot Sandhu19, the Supreme Court observed that
Confessions are considered highly reliable because no rational person would make admission
against his interest unless prompted by his conscience to tell the truth. "Deliberate and voluntary
confessions of guilt, if clearly proved are among the most effectual proofs in law". The confession

17
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html(assessed on
Oct 18, 2016).
18
http://aananthnb.wordpress.com/2006/08/06/relevancy-of-confession-statements-made-before-a-police-officer-
exceptions-to-the-general-rule/ (assessed on Oct 18, 2016).
19
(2005) 11 SC 600.

5
must be made with full knowledge of the nature and consequences of the confession. If any
reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should
eschew the confession from consideration. Similarly in the case of Mohd. Azad v State of West
Bengal20, it has been observed that 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. If the facts and circumstances surrounding the making of a confession appear to cast a
doubt on the veracity or voluntariness of the confession, the Court may refuse to act upon the
confession, even if it is admissible in evidence.

Extra judicial confession- Extra-Judicial confessions are those which are made by the party
elsewhere than before a Magistrate or in court. This term embracing not only express confession of
crime but all those admissions and acts of the accused from which guilt may be implied21. An extra-
judicial confession is a confession that is made by the party elsewhere than before a magistrate or in
a court. It is admissible in evidence under Section 21 and it is proved by the witnesses who had
heard the speaker's words constituting the confession22. Thus when an accused makes a confession
to his friend, wife, any other relative, a co-prisoner, a police officer, a doctor or any other person it
is Extra Judicial Confession is also relevant23. For example, an extra judicial confession made to
village administrative officer by accused is admissible24. As held in the case Bhisheshwar Dhani
Ram v. State25, the Extra-Judicial confessions embrace those made as well to private individuals as
to the officers of justice such as constable police officers etc. If voluntarily made they are receivable
in evidence after being proved like other facts. An extra-judicial confession if satisfactorily
provided to have been voluntarily made may be the basis for a conviction even in the absence of
corroboration. However, the fact as to whether a conviction can be based purely on an extra-judicial
confession which does not get any corroboration is highly doubted has been the subject matter of

20
AIR 2009 SC 1307 (1313).
21
Confessions and its various dimensions, Chapter IV
http://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-III-pdf/chap11.pdf (assessed on
Oct 18, 2016).
22
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html (assessed on
Oct 2, 2014).
23
http://aananthnb.wordpress.com/2006/08/06/relevancy-of-confession-statements-made-before-a-police-officer-
exceptions-to-the-general-rule/.
24
Shiv Kumar v State by Inspector of police, AIR 2006 SC 653.
25
(1963) ILJ 645.

6
various different judicial opinions26. An extra judicial confession, if it is voluntary truthful, reliable
and beyond reproach, is an efficacious piece of evidence to establish the guilt of the accused and it
is not necessary that the evidence of extra judicial confession should be corroborated on material
facts27. The extra judicial confession cannot be sole basis for recording the confession of the
accused, if the other surrounding circumstances and the materials available on the record do not
suggest his complicity28. An extra judicial 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 extra-judicial
confession is surrounded by suspicious circumstances, its creditability becomes doubtful and it
loses its importance. Court must generally look for independent reliable corroboration before
placing any reliance upon extra judicial confession29. Therefore, we can conclude by the
observation as was made by the Supreme Court in the case of State of UP v M K Antony 30, extra
judicial confession appears to have been treated as a weak piece of evidence but there is no rule of
law or rule of prudence that it cannot be acted upon unless corroborated. It is not open to any court
to start with a presumption that extrajudicial confession is 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 witness who speak about such a confession31. Two rules of caution are to be followed as held by
the Supreme Court in the case Wakil Nazek v. State of Bihar32 before such action namely:
(1) Whether the evidence of confession is reliable.
(2) Whether it finds corroboration

26
Confessions and its various dimensions, Chapter IV
http://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-III-pdf/chap11.pdf (assessed on
Oct 19, 2016).
27
Laxman v State of Rajasthan, (1997) 2 Crimes 125(Raj) as mentioned in Criminal Law Manual (Universal Law
Publishing 2013) 621.
28
Chaya kant Nayak v State of Bihar, (1997) 2 Crimes 297(Pat) as mentioned in Criminal Law Manual (Universal
Law Publishing 2013) 621.
29
Balwinder Singh v State of Punjab, (1995) Supp (4) SCC 259.
30
(1985) 1 SCC 505 as mentioned under Sumeet Malik, Property Law Manual (1st ed, Eastern Book Company
2014) 411.
31
Narayan Singh v State of M.P., (1985) 4 SCC 26.
32
1972 Cr. L.J. 566.

7
 CONFESSIONS WHEN NOT RELEVANT (SCETION 24, 25 & 26 of the
Indian Evidence Act)

A confession becomes irrelevant and thus, inadmissible, in situations described in the Sections
24, 25, and 26. The confession of an accused may be classified into Voluntary and non-
voluntary. A confession to the police officer is the confession made by the accused while in the
custody of a police officer and such kind of confession is not relevant under section 25 and 26 of
the Evidence Act. If it appears to the court that confession have been caused by any inducement,
threat or promise having reference to the change against the accused person proceeding from a
person in authority and sufficient in opinion of the court to give the accused person grounds,
which would appear to him reasonable for supporting that by making it he would gain any
advantage or avoid any evil of a temporal nature in reference to the proceeding against him, it
will not be relevant and it cannot be proved against the person making the statement. Section 24
of the Evidence Act lays down the rule for the exclusion of the confession which is made non-
voluntarily33. For admissibility, a confession must be necessarily shown to be voluntary, which
is not caused by conditions mentioned under sect 24 and does not mean a confession made
willingly as all confessions made in consequences of inducement etc are voluntary in the latter
sense of term. A confession which is voluntary is admissible, even if it is false34.
Section 24 talks about 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 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 supporting that by making it
he would gain any advantage or avoid any evil of temporal nature in reference to the proceeding
against him35. Section 24 enacts the general rule of inadmissibility of involuntary confessions,
recognized all over the world and guaranteed under Article 20(3) of the Constitution of India.
Article 20 (3) of the Constitution protects an accused person against testimonial compulsion. A

33
Confession, Confession under Indian Evidence Act (assessed on Oct. 19, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.
34
CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013) 112.
35
Indian Evidence Act, 1872 24.

8
confession made under circumstances which would make it appear to the Court that such
confession was caused by any inducement, threat or promise from a person in authority is
irrelevant in a criminal proceeding36. Offering such inducement, threat or promise by police
officers is prohibited under the Code of Criminal Procedure37. Words appear to him in the last
part of the section refer to the mentality of the accused38. A confession made in the course of trial
or enquiry is required by law to be reduced in writing and hence oral evidence thereof is
inadmissible, except to a limited extend as mentioned under section 553 of CrPC39. To attract the
prohibition enacted in Section 24 the following facts must be established:
That the statement in question is a confession,
That such confession has been made by the accused,
That it has been made to a person in authority,
That the confession has been obtained by reason of any inducement, threat or promise,
proceeding from a person in authority,
Such inducement, threat or promise must have reference to the charge against the accused, and
The inducement, threat or promise must in the opinion of the court be sufficient to give the
accused ground, which would appear to him reasonable, for supporting that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings
against him40.
If the confession proceeds from remorse and a desire to make reparation for the crime, it is
admissible. If it flows from hope or fear, excited by a person in authority, it would be
inadmissible41. The term inducement can be meant to include a threat of prosecution if the guilt
is not confessed or a promise of forgiveness if it is done. Inducement cannot be strictly defined.
It is for the judge to decide in every case. An inducement may be express or implied. Moreover it
is not necessary to have been made to the accused directly from the person in authority. Before a

36
Confessions and its various dimensions, Chapter IV
http://highcourtchd.gov.in/sub_pages/left_menu/Rules_orders/high_court_rules/vol-III-pdf/chap11.pdf (assessed on
Oct 20, 2016).
37
The Code of Criminal Procedure, 1973 163.
38
Abdul Ghani v State of UP, (1973) 4 SCC 17 as mentioned under Sumeet Malik, Property Law Manual (1st ed,
Eastern Book Company 2014) 412.
39
CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013) 119.
40
Confession, Confession under Indian Evidence Act (assessed on Oct. 19, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.
41
Rosamund Reay, Evidence (3rd ed, Old Bailey Press 2001).

9
confession can be received as such, it must be shown that it was freely and voluntarily made.
Thus it is clear that if threat or promise from persons in authority is used in getting a confession
it will not be taken into account as admissible evidence42. The burden of proving a voluntary or
involuntary character of a confession under English law, lies on the prosecution. It is for the
prosecution to establish that the prisoners statement was free and voluntary. This rule has been
laid down by J Cave in the case of R v Thomson43. Indian Supreme Court in the case of Hem Raj
v State of Ajmer44, observed that the rule established in the Thomson case is a well settled
principle of law of evidence, however it does not mean that a mere assertion by the accused that
he was threatened or tortured or that an inducement was offered to him can be accepted as true
without more evidence on the same. Moreover, the inducement must have reference to the charge
against the accused person that is the charge of offence in the criminal courts and inference the
mind of the accused with respect to the escape from the charge. The inducement must have
reference to escape from the charge. Thus, it is necessary for the confession to be excluded from
evidence that the accused should labour under influence that in reference to the charge in
question his position would be better or worse according as he confesses or no45.
The expression person in authority does not mean person having control over the prosecution
of the accused. The test appears to be, has the person in authority to interfere in the matter under
enquiry, as for example, a person engaged in the apprehension, detention or prosecution of the
accused or who is empowered to examine him46. Moreover the word appears indicates a lesser
degree of probability than would be necessary if proof had been required. Section 24 does not
require the same cogency of evidence as is necessary to prove fact. The word appears is
important in judicial discretion in matter of accepting and rejecting the confession 47. The value
of the evidence as to the confession just like any other evidence depends upon the veracity of the
witnesses to whom it is made48.

42
Sarkar, law of Evidence (vol 1, 16th ed., Wadhwa Nagpur 2008).
43
(1893) 2 QB 12.
44
AIR 1954 SC 462; Pon Adithan v Deputy Director, NCB Madras, AIR 1999 SC 2355 as mentioned in Ratanalal
and Dhirajlal, the law of Evidence ( 23rd ed., LexisNexis Butterworths 2010).
45
Confession, Confession under Indian Evidence Act (assessed on Oct. 20, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.
46
CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013) 121.
47
Sarkar, law of Evidence (vol 1, 16th ed., Wadhwa Nagpur 2008).
48
Mulk Raj v. State of Uttar Pradesh, AIR 1959 SC 902.

10
It is presumed that police holds a position of great influence over the actions of the accused and
so there is a high probability that confessions obtained by the police are tainted with threat, or
inducement. Further, it is important to prevent the practice of oppression or torture by the police
to extract the confession49. Section 25 and 26 of the Indian Evidence act, talks about confession
made to a police officer and confession made while in police custody. These are too are not
admissible in the court of law.

Section 25 confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence50. Under this section, a confession made to a police officer is inadmissible in evidence,
except so far as provided under sec 27. The principle behind this exclusion is that a confession
thus made is untrustworthy. The reason for the rule is to put a stop to the extortion of confessions
by police by malpractices; and to avoid the danger of admitting false confessions 51. Any
confessional statement given by accused before police officer is inadmissible in evidence and
cannot be brought on record by the prosecution and is insufficient to convict the accused52.
In Dagdu v. State of Maharashtra53, Supreme court noted:
The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all
of the police investigation. The police should remember that confession may not always be a
short-cut to solution. Instead of trying to start from a confession they should strive to arrive
at it. Else, when they are busy on their short-route to success, good evidence may disappear due
to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full
and through investigation with a view to establish the case de hors the confession, later, being
inadmissible for one reason or other, the case fundles in the court54.

49
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_BHX4LV6D.PD
50
Indian Evidence Act, 25.
51
Q.E. v. Babu Lal, 6 All 509 (FB) as mentioned in CJ M.Monir, Textbook on the Law of Evidence (9th ed,
Universal Law Publishing 2013) 121.
52
Ram Singh v State of Maharasthra, 1999 Cr LJ 3763 (Bom).
53
A.I.R. 1977 S.C. 1579.
54
Confession, Confession under Indian Evidence Act (assessed on Oct. 20, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.

11
In R v. Murugan Ramasay55,

Police authority itself, however, carefully controlled, carries a menace to those brought suddenly
under its shadow and the law recognises and provides against the danger of such persons making
incriminating confessions with the intention of placating authority and without regard to the truth
of what they are saying56.

The term police officer must not be read in strict technical sense. It includes an officer vested
with the powers of police by law whether he is called a police officer or by any other name and
exercises other functions also under other provisions of law. The term police officer is wider than
the term contained as in section of the Police Act, 1861. However we cannot include persons on
whom certain police powers are conferred like a customs officer or an excise officer57. In the
case of Raja Ram vs State of Bihar58, SC held that the term police-officer is not be be interpreted
strictly but must be given a more comprehensive and popular meaning. However, these words
are also not to be construed in so wide sense as to include a person on whom only some powers
exercised by the police are conferred. The test for determining whether such a person is a police
officer, is whether the powers are such as would tend to facilitate the obtaining of confession by
him from a suspect. Thus, a chowkidar, police patel, a village headman, an excise officer, are all
considered to be police officer.

Section 26 states that no confession made by any person whilst he is in the custody of a
police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved
as against such person. This section further tries to ensure that the confession is not extracted
due to the influence of the police. This section is an extension of the principle laid down under
section 25. Any confession made while the maker is in custody of the police is invalid unless it is
made in the immediate presence of a magistrate. The presence of a magistrate is, by a legal
fiction, regarded as equivalent to removal of police influence and the statement is therefore

55
(1964) 64 C.N.L.R. 265 (P.C.) at 268
56
Confession, Confession under Indian Evidence Act (assessed on Oct. 20, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.
57
Om Prakash v Union of India, (2011) 14 SCC 1.
58
AIR 1964 SC 567.

12
considered to be free from police influence59. Section 25 and 26 does not lay down identical
propositions as 25 talks of confession made to the police while 26 governs confessions while in
police custody made to the person other than police. Therefore, statement made in police custody
are considered to be unreliable unless they have been subjected to cross examination or juridical
scrutiny60.
The term Custody has same meaning under section 26 and 27. A formal accusation or arrest is
not necessary to constitute custody as understood in section 26 or 27 61.It is sufficient if the state
of affairs is such wherein the accused can be said to have been under the surveillance or
restriction. He will be deemed to be in custody if he is not permitted to depart to his own free
will62.Mere absence of the police officer from a room where confession is taken does not
terminate his custody of the accused. The word custody does not just mean formal custody but
includes such state of affairs in which the accused can be said to have come into the hands of a
police officer or can be said to have been under some sort of surveillance or restriction63.

59
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_BHX4LV6D.PD
60
Selvi v.State of Karnataka, AIR 2010 SC 1974.
61
Chhobylal, AIR 1945 All 667
62
CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013) 127.
63
Confession, Confession under Indian Evidence Act (assessed on Oct. 20, 2016),
http://www.legalservicesindia.com/article/article/confession-under-indian-evidence-act-1547-1.html.

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 CONCLUSION

What is confession is not defined in the Indian Evidence act or under any other Law. The
definition gives under section 17 of the Act for admission, becomes applicable to confession
also. A close scrutiny of the sections 17 to 30 of the Act, discloses that the statement is the
genus, admission is the species and confession is the sub-species.
It is a well settled law that if once police custody has commenced, the mere fact that for a
temporary period the police discretely withdraws form the scene and left the accused in charge of
some other person will not render the confession of the accused before that person admissible.
Once an accused is arrested by a police officer and is in his custody, the mere fact that for some
purpose or other the police officer happens to be temporarily absent and during this temporary
absence leaves the accused in charge of a private individual does not terminate his custody, the
accused shall be deemed to be still in police custody. The test, therefore, is whether at the time
when the person makes an extra judicial confession, he is a free man or his movements are
controlled by the police either by themselves or through some other agency employed by them
for the purpose of security of such a confession. With the above study it seems that the relevance
of the statement of the accused is an important fact in conviction of the accused. But there are
various factors involved in the relevance of the statement of the accused.

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 BIBLIOGRAPHY

PRIMARY SOURCES

The Indian Evidence Act, 1872

The Code of Criminal Procedure, 1973
All India Reporters
Supreme Court Cases

SECONDARY SORUCES
Books
1. Sarkar, law of Evidence (vol 1, 16th ed., Wadhwa Nagpur 2008).
2. Ratanalal and Dhirajlal, the law of Evidence ( 23rd ed., LexisNexis Butterworths 2010).
3. C.D.Field, law of admissions and confessions ( 2nd ed., Delhi Law House 2004).
4. S.D.Basu, Law of Evidence (1st ed, Allahabad Law Agency 2001)
5. Dr Satish Chandra, Indian Evidence Act ( 3rd ed, Allahabad Law Agency 2005).
6. Batuk Lal, Law of Evidence (5th ed, Orient Publishing Company 2004).
7. Rosamund Reay, Evidence (3rd ed, Old Bailey Press 2001).
8. Vepa P Sarathi, Law of Evidence (6th ed, Eastern Book Company 2006).
9. CJ M.Monir, Textbook on the Law of Evidence (9th ed, Universal Law Publishing 2013).

Websites

1. www.scconline.com
2. http://hanumant.com
3. http://highcourtchd.gov.in
4. http://www.legalservicesindia.com
5. http://aananthnb.wordpress.com
6. http://www.lawteacher.net
7. http://shodhganga.inflibnet.ac.in
8. http://delhihighcourt.nic.in

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