CHAPTER-IV

CONFESSION AND ITS VARIOUS DIMENSIONS

What is confusion 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.1 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 admission”.2
The law relating to confession is to be found generally in sections 24 to
30 of the Evidence Act and section 162 and 164 of code of Criminal
Procedure. Since “Confession” is species of “Admission”, it is dealt .within
sections 24 to 30. These sections suggests the circumstances when a
confession3 made by a person can be used against him or against him against
some other person or just can not be used at all. What is the meaning to be
given to the word “Confession”, one has to start with the dictionary meaning
viz, “as an acknowledgement of offence.”4
A confession therefore is a “voluntary admission of guilt of a criminal
offence”5 in which the person charged with a crime “acknowledges that he is

Sahoo v. State ofU.P. AIR 1966 S.C. 42.

Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462.
The Indian Evidence Act 1872, Section 24, defines:
“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 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 supposing that by making it he would
gain any advantage, or avoid any evil of a temporal nature in reference to the proceeding
against him.”
Webster Dictionary.
43 Encyclopaedia of Evidence, 297.
“A Confession is a comprehensive admission in express words which acknowledges the
declarant’s commission of a crime”, - See Wharton’s Criminal Evidence. 12 Edn. S. 336:
Me Cormick on Evidence Chap. 12; Wigmore s. 821 Am. Jur. Ss. 477, 478.
 96

guilty of committing that crime”.6 In order to amount a “confession” it must be

a direct admission or acknowledgment of his guilt.7 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”.8

Such a wide definition, however, was n,ot accepted by justice straight9

and Justice Chandawarker.10 They gave a very narrower meaning to the

expression ‘Confession’ holding that only a statement which was direct

acknowledgement of guilt should amount , to confession and did not include
merely inculpatory admission which falls short of being admission of guilt.
The Blacks law dictionary*11 lists the following definitions as

propounded by various courts in U.S.A.

1. A voluntary statement by a person charged with the commission of a

crime or misdemeanor communicated to another person wherein he

acknowledges himself to be guilty of the offence charged and discloses

the circumstances of the act or the share and participation he had in it.
2. A statement made by a defendant discussing his guilt of crime with
which he is charged and excluding possibility of a reasonable inference
to the contrary.
3. A voluntary statement made by one who is a defendant in criminal trial
at the time when he is not testifying in trial and by which he
acknowledges certain conduct of his own constituting the crime for
which he is on trial, a statement which if true, discloses the guilt of that
crime.

6 3, The New Encyclopaedia Britanica, 75.

7 Coraies W.F. 3 Encyclopaedia of the laws of England, (1972) 448 Also See State v.
Youssuf Dar, 1973 Cri. L.J. 955 (J.K.)
8 Art. 22.
9 R. v. Jagrup, 1885 I.L.R. 7. All 646.
10 K. v. Santya Bandhu, 1909 11 Bom. L.R. 633.
11 Black’s Law Dictionary, 6th ed. p. 296.

1
 97

In India the definition generally accepted by the courts was what had been
propounded by Stephen;12 “A confession is an admission made any time by a

person charged with a crime stating or suggesting an inference that he

committed crime.” Thus as per Stephen’s definition the commission of crime

may not be directly admitted by the accused but even if it can be inferred from

his statement, the statement would amount to a confession.

It may be noted here that in England even the recently passed Police
and Criminal Evidence Act., 1984 adopt the same broad approach. Section
82(1) of the Act defines a confession to include any statement wholly or partly
adverse to the person who made it whether made to a person in authority or
not and whether made in words or otherwise.
In India, however, Starjit, J. discarded the definition of Stephen. He

held that only statements which are direct acknowledgements of guilt should
be regarded as confessions and it cannot be construed as including a mere
inculpatory admission which falls short of being an admission of guilt.
Lord Atkin accepted the dictum of Straight. J. in Pakala Narayan
Swami v. Emperor,13 and held that:

“.......no statement that contains self-exculpatory matter can

amount to a confession, if the exculpatory statement is of some
fact which if true would negative the offence alleged to
confessed. Moreover, 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 conclusive incriminating fact is not of itself a
confession e.g. an admission that the accused is the owner of.

12 Stpehen, J.F,: A Digest of the Law of Evidence 12* Ed. 21.

13 ILR7A11.646.
 98

and was in recent possession of the knife or revolver which

caused a death with no explanation of any other man’s

possession”.
The Privy Council in discarding Stephen’s definition further held that:
“Some confusion appears to have been caused by the definition

of confession. Article 22 of Stephen’s Digest of the law of

Evidence, which defines a confession as an admission made at

any time by a person charged with a crime staling or suggesting

the inference that he committed that crime. If the surrounding
articles are examined, it will be apparent that the learned author
after the dealing with admissions generally in applying himself
to admissions in criminal cases, and for this purpose defines
confessions so as to cover ail such admission in order to have a

general term for use in the three following articles, confession

secured by inducement made under a promise of secrecy. The
definition is not contained in the Evidence Act, 1872 and in that
Act, it would not be consistent with the nature use of language

to construe confession as a statement by an accused suggesting

the inference that he committed the crime.
The view propounded by Lord Atkin holds the field to this date. The
Supreme Court has cited the definition given by Lord Atkin in the famous case
of Palvinder Kaur v. Stats of Punjab.14 The view was also upheld in the case
of A Nagesia v. State ofBihar}*

In the light of the above considerations, it may be assumed that a

confession for purposes of lav/ is a direct acknowledgement in clear terms by

14
AIR 1952 SC 354.
15
AIR 1966 SC 119.
 99

an accused person that he committed the offence for which he is arraigned

which would however, include an acknowledgement by him of incriminating

facts from which an irresistible inference of his guilt follows.
There had been some controversy on admissibility of a statement which
contains both inculpatory and exculpatory parts which is dealt with below.

4.1 Inculpatory and Exculpatory Statements

A self-exculpatory statement obviously cannot amount to a confession.
It has been held in Pad Soura v. State,that a statement that contains self-
inculpatory matter (case of self-defence) does not amount to confession if the
exculpatory part relates to some fact which if true would negative the offence
alleged to be confessed”. The court is of view in Kanayalal Chamanlal v.
State of Gujrat,11 that a statement which when read as a whole is of an

exculpatory character and in which prisoner denies his guilt is not a confession
and cannot be used in evidence to prove his guilt.
A folly self-inculpatory statement admitting all ingredients of the
offence would on the other hand be a clear confession.
The difficulty arises only in case of statements which are partly self-

exculpatory and partly inculpatory.

Taking a clue form the decision in Palwi Narain Swamy’s case the
Supreme Court held in Hanumant Govind Nargendkar v. State of M.P.,IS that
an admission must be used as a whole or not at all. It is not open to the court to
split up and use an admission as to a fact in corroboration of the prosecution
case and to ignore an explanation given in the course of the same statement as
to an admitted fact. Similar was the view expressed by the Allahabad High
Court in the case of Emperor v. Balmukund.19

16 (1970)36 Cut. LT 774.

17 1970 Cr. L.J. 54 (Guj).
18 1952 SCR 1091.
19 ILR 1930 All 1011.
 100

The view was further endorsed by the Supreme Court in Palvinder

on
Kaur v. State ofPunjab, as:
“It is not open to the court to accept only the inculpatory part of the

statement of the accused and at the same time to reject the exculpatory part of

explanatory part as inherently false and incredible.”

However, the Supreme Court found no fault in Nishikant Jha v. State of
Bihar,21 with the High Court accepting the exculpatoiy part of the statement

and rejecting the inculpatory part on the ground that it was not only inherently
incredible, but was contradicted by other evidence in the case.
Thus it was a matter of appreciation of evidence and not of
admissibility of the statement. The statement if not hit by the provisions of

Evidence Act should be admitted in evidence and both parts must be open to
scrutiny of the court at the time of appreciation of evidence.
This is now the settled law according to the judgment passed in
Bhagwan Singh v. State of Haryana*2 that it is permissible to believe a part of

a confessional statement and to. disbelieve another and that is enough if the

whole of the confession is tendered in evidence so that it may be open to the

court to reject the exculpatory part and to take the inculpatory one into

consideration if there is other evidence to prove its correctness.

4.2 Difference Between Admission and Confession

Confession is a species of Admissions. All confessions are admissions
but the converse is not true. The underlying principle which governs a
confession and an admission is the same and that principle is that a statement
made by a person against his own interest might be true. The word confession
is also placed in juxtaposition with admission. Thus Section 17 to 31 deal with
20
1953 SCR 94.
21
1962 (2) SCR 1033.
22
AIR 1976 SC 1797.
 101

admissions generally though sections 24 to 30 deal with confessions as

distinguished from admissions.

The following differences between the two may be noted:

1. The broad distinction seems to be that a confession is a statement made

by an accused person which will be used against him in a criminal

proceeding to establish the commission of the offence by him while an

admission is a statement by a party to proceeding or by a person who

has an interest in the subject-matter of the proceeding whereby he

admits a fact in issue or relevant fact and such an admission will be

generally used in a civil proceeding.

2. A confession untainted by any legal disqualification may be accepted

as conclusive in itself of the matters confessed as conclusive in itself of

the matters confessed as held in Emperor v. Narayan,23 but an

admission is no conclusive proof of the matters admitted though it may

operate as an estoppel.24

3. A confession always goes against the person making it. An admission

may be sometimes proved by or on behalf of the person making the

admission under the provisions of Section 21 of the Evidence Act.

4. The confession of one accused tried along with some other accused

may be used against the others, if the requirements of section 30 of the

Evidence Act are satisfied but an admission of one of several

defendants is no evidence against another defendant.

5. An admission need not be voluntary to be admissible in evidence as is

the case with confessions.

(1907)32 Bom iii(FS).

See Section 31, Indian Evidence Act of 1872.
 102

6. There can be a relevant admission made by an agent or even a stranger

on behalf of a party biit for a confession to be relevant. It must be made

by the accused himself. Holloway. J. has clarified the distinction in an
American case titled as State v. Guie.25

The distinction between a confession and an admission as applied in criminal

law is not a technical refinement but based upon the substantive difference of

the character of the evidence deduced from each. A confession is a direct

acknowledgement of guilt on the part of the accused and by the very force of

the definition excludes an admission, which of itself as applied in criminal law

is a statement by the accused, direct or implied of facts pertinent to the issue

and tending in connection with other facts to prove his guilt, but of itself is

insufficient to authorize a conviction.

The matter was also dealt within Ram v. State 26 and the court observed

as follows:

“If the statement by itself is sufficient to prove the guilt of the accused,
it is a confession but that if, on the other hand, the statement falls short of it. It

amounts to an admission. The acid test which distinguishes a confession from

an admission is that where a confession can be based upon the statement alone

it is a confession and that where supplemental evidence is needed to

authorize a conviction then it is an admission.”

4.3 Confessions : “Plenary” and “Not Plenary”

A “Plenary” confession is when a seif-deserving statement is such as if

believed to be conclusive against the person making it, at least one the
physical facts of the matter to which it relates. In such cases the proof is in the
nature of direct evidence a confession “Not Plenary” is where the truth of the

25
56 Mont 485.
26
AIR 1959 AIL 518.
 103

self-deserving statement is not absolutely inconsistent with the existence of a

state of facts different from that which it indicates but only gives rise to

presumptive inference of their truth and is therefore in the nature of

circumstantial evidence.

4.4 Two kinds of Confessions - Judicial and Extra-Judicial

Confessions may be divided into two classes namely, Judicial and

Extra-judicial.
Judicial confessions are those which are made before the Magistrate in

due course of legal proceedings e.g. confessions recorded under Sections 164,

364 and 242 of the Code or Criminal Procedure. 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.

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 implied.27

As held in the case Bhisheshwar Dhani Ram v. State,28 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 various different judicial opinions.

27
Taylor on Evidence 867.
28
(1963) ILJ 645.
 104

“Though an extra-judicial confession to any ordinary person (other than

police officer can be proved, such a confession cannot be proved at all if made
to a Magistrate unless the provisions of Section 164 Cr. P.C. have been
complied with,” this was held in Nazir Ahmed v. Emperor?9

Thus confessions whether judicial or extra-judicial must be voluntary

and genuine and besides, should have some corroboration to be relied upon

and to be the basis of a conviction. Therefore, the circumstances under which

the confession is made the manner in which it is made the person to whom it is
made are aspects to be borne in mind before acting on a confession,

particularly on a non-judicial confession. Two rules of caution are to be

followed as held by the Supreme Court in the case Wakil Nazek v. State of
Bihar?9 before such action namely:

(1) Whether the evidence of confession is reliable.

(2) Whether it finds corroboration.31

As regards an extra-judicial confession the Supreme Court observed. in

Prabhakar Narayan Upadhyaya v. State ofMaharashtra32 that:

“It is true that the evidence of extra-judicial confession has to be

scrutinized carefully and received with great caution. In this !

connection the court would have to consider whether it was

natural for the accused person to have confided in and confessed

to the person who is deposing to the confession. The
relationship of that person with the accused before the court is
most material and vital. Then against the court would have to
consider what has been confessed and whether the same is

29 (1936) PC 253.
30 1972 Cr. LJ. 566.
31 F.R. Mario Pires v. Dir ofEnforcement, New Delhi 1982 Cr. L.J. 461 (Goa).
32 (1971)LXXIV Bom. LJ. 299.
 105

consistent with the facts about the incident as deposed to by the

other witnesses and discovered during the course of the police

investigation. The scrutiny has to be minute and great caution

has to be exercised. It is also to be considered whether the

person, deposing to the extra-judicial confession had any motive

or reason for falsely, involving the accused person. It is also to

be considered such person is otherwise a satisfactory witness. It

must also be borne in mind by the court considering the

evidence of such person whether there is any likelihood of such

person being himself concerned with the crime in question and

therefore, falsely implicating the accused; If after such careful

scrutiny, the evidence of extra-judicial confession is regarded as

acceptable and trustworthy. Such evidence cannot be considered
to be inferior in any way to the other pieces or evidence. Strict

proof undoubtedly has to be insisted upon bqt once such proof is

forthcoming the evidence of extra-judicial confession cannot be

characterized as a weak type of evidence.

4.5 The Importance of Confessions in Criminal Trials - Exception to the

Rule Against Hearsay

The general English rule that hearsay is no evidence has been enacted

in Section 60 of the Indian Evidence Act. The term ‘hearsay’ is generally used
to indicate the evidence which does not derive its value from the credit given
to the witness himself but. which rests also in part al the veracity and
competence of some other person.33 Hearsay evidence is considered

untrustworthy since the original maker of the statement is not before the court
as a witness. The time lag before the statement is repeated in the court may
33
Taylor on Evidence, 570.
 106

introduce distortions. Further the original declarant was not put on oath before

making the statement and he is not available in the court or cross-examination.

An accused in a criminal trial does not appear as a witness unless he is

permitted to, on his own prayer. Thus a confession made by him before the

beginning of trial when sought to be proved by other witness can be said to be

hearsay.

Admissions and confessions from a special group within the exception

to be hearsay rule. The key factor that distinguishes them from other hearsay

evidence is that they are statements one or the parties to the proceeding. The

party is litigating in the court and is in a position to admit or deny that he had

made such a statement. He can also cross examine the witness proving the
admission or confession made by him.

Secondly, they also derive probative force from a ring of truth that
accompanies them. If a person makes a statement out of court, in his fayour, it

may be of little value since there is always a tendency to say self serving

things. To treat this as evidence for himself would be to offer an inducement

create inducement to create evidence for himself and open the door to fraud.
But this objection ceases to have force when the statement is against his own
interest. In the natural course of human conduct a man is not likely to say
anything against his advantage or interest unless it were true.

The main thrust of the rule against hearsay being on the need and
prudence of affording an opportunity of cross examining the original maker of
the statement. He said rule can in fact not be invoked in case of confessions. A
confession is alleged to have been made by the accused who cannot cross
examine himself. Wigmore34 gives the following illustration to drive home the

point: “If Jones had said out of court, “The party opponent Smith borrowed his
34
Wigmore on Evidence, 1048.
 107

fifty dollars.” Smith is entitled to an opportunity to cross-examine Jones upon

the assertion. But if it is Smith himself who said out of court, ‘I borrowed fifty
dollars,’ certainly Smith cannot complain of lack of opportunity to cross

examine himself before this assertion is admitted against him.”

As per Wigmore the basis of admissibility of confessions and

admissions is akin to that of previous contradictory statements made by a

party. The party is discredited when it appears that on some other occasion he

had made a statement inconsistent with and contrary to his present claim.

Whatever way it is seen a confession if proved to have been voluntarily

made is likely to be true being against, the interest of its maker. Once it is
accepted as true nothing really remains in the trial and the person who has
made the confession is straightaway liable to be convicted and sentenced

saving a lot of valuable time money and labour.

A voluntary statement by a person charged with the commission of a

crime or misdemeanour communicated to another person, wherein he

acknowledges himself to be guilty of the offence charged and discloses the

circumstances of the act or the share and participation he had in it. In India, a

confession is an admission made any time by a person charged with a crime

stating or suggesting an inference that he committed crime. The commission of

crime may not be directly admitted by the accused but even if it can be

inferred from his statement, the statement would amount to a confession. Self-
exculpatory statement cannot amount to a confession. Self-inculpatory
statement admitting all ingredients of the offence would on the other hand be a

clear confession. All confessions are admissions but the converse is not true.
The principle which governs a. confession and an admission is the same and

that principle is. that a statement made by a person against his own interest

might be true.
 108

4.6 Critical Appraisal

No doubt that the confessional statement is in the interest of both

accused and the prosecution. On one hand it helps the court to take lenient

view towards accused and on the other hand it saves the public time. But in

order to save the public time the Constitutional rights of the accused should

not be violated. In other words an accused person should not be compelled to

make a self incriminatory statement and not to be compelled to be a witness

against himself. It means the confession should be voluntary. Involuntary

confessions should not be considered at all. Whether a statement is voluntary

confession or involuntary confession is to be decided first. A brief study about

the law relating to the history and development of confession is made in the

next chapter.

4.7 Law Relating to Exclusion of Involuntary Confessions

Section 24 to 30 of the Indian Evidence Act deal with admissibility of

confession made by an accused during the investigation of a criminal case

under certain circumstances. 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. A 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 proceeding. Offering such inducement,

threat or promise by police officers is prohibited under the Code of Criminal
Procedure.35 Section 25 and 26 go for beyond the constitutional protection and

debar and confession made by an accused person to a police officer or whilst

in police custody to anyone except in the immediate presence of a Magistrate

35
S. 163 Cr. P.C.
 109

from being given in evidence. Then Section 27 of the Evidence Act creates an

exception i.e. a confession or any other statement which is deposed to have led

to discovery of some facts is admissible in evidence to the extent of the law

actual part of the statement distinctly leading to the discovery. This exception

qualifies both Section 25 and 26 but not Section 24. Section 28 and 29 are

more or less clarificatory in nature. By virtue of Section 28, a confession made

after the removal of impression caused by inducement, threat or promise as

referred to in Section 24 is admissible. Section 29 clarifies that the mere fact

that a confession was made under promise of secrecy or by deceit for the

purpose of obtaining it or when the person making the confession was drunk
or that it was made in answer to questions which he was not bound to answer

do not make the same irrelevant under section 24. A confession of a co­

accused when found relevant and proved can be taken into consideration by
the court against the co-accused persons under the power conferred by Section
30.

For the purpose of the present study relating to Custodial confessions

i.e. confession made to the police or whilst in police custody, the provision of
Sections 24 to 27 may be examined in detail. This Chapter deals with the chief
provision containing the exclusionary clause i.e. Section 24 of the Evidence
Act.

4.8 Scope of Section 24

In Queen Empress v. Babu Lai,36 the Privy Council held that section 24

declares that confession caused by inducement, threat or promise are irrelevant

unless as Section 28 provides, they are made after the impression caused by
any such inducement, threat or promise has been fully removed.37 When the

36
ILR6 All 509.
37
ILR 6 Sec. 509.
 110

legislature wished to make an exception to absolute rule in Section 24, it did

so by a separate Section viz. Section 28, which declares under what

circumstances a confession rendered irrelevant by Section 24 may become

relevant. A confession made under an inducement that has not been removed

within the meaning of Section 28 is not relevant as a confession under Section

24. The rule thus laid down is speaking strictly, a rue of relevancy, called forth

by the abstract principles of evidence and not positive prohibition necessitated

by exigencies. Section 24 of Evidence Act is a rule of exclusion because it

declares that a confession made by an accused person in certain circumstances

is irrelevant in a criminal proceeding.

In every case in which a confession is admitted in evidence. It is no
doubt open to the defence to object to the evidence of confession on the
ground that. It is excluded by Section 24 Evidence Act. But till such objection
is raised, there is no necessity for the court to pronounce any formal decision
on the question of relevancy of the confession. The actual admission of the
evidence during the trial is sufficient for the purpose. The section is clearly a
general provision and applies to confession made by a person whether in
police custody or not and whether it is made to a police officer or to others.38
It is, however, not possible to lay down as to what language is
sufficient to constitute an inducement. Much would depend upon the actual
words used and what impression they were likely to create on the mind of the
accused having regard to all the circumstances of a particular case. It is always
a question of fact depending upon the circumstances of each case whether
certain words have not had certain effect on the mind of the accused. The
Supreme Court observed in the case of Piare Lai Bhargav v. State of
Rajasthan,39 that:

38
Re Navnithmal, AIR 1939 Mad. 32.
39
AIR, 1963 SC 1094.
 111

“The threat, inducement or promise must proceed from a person in authority

and it is a question of fact in each case whether the person concerned is a man

of authority or not. What is more important is that the mere existence of the

threat, inducement or promise is not enough but in the opinion of the court the

said threat inducement or promise should be sufficient to cause a reasonable

belief in the mind of the accused that by confession he would get an advantage

or avoid any evil of a temporal nature in reference to the proceedings against

him. While the opinion is that of the court, the criterion is the reasonable belief

of the accused.”
The section, therefore, makes it clear that it is the duty of the court to
place itself in the position of the accused and to form an opinion as to the state
of his mind in the circumstances of a case.

Under Section 24 of the Evidence Act essential requirement, therefore,

is that such inducement, promise must proceed from a person in authority.
Thus in order to make a confession relevant under Section 24 of the Evidence
Act, it must be shown that it was made voluntarily by the person accused of an
offence. To base a conviction on such a confession the court must satisfy itself
that it was voluntary and true. The burden of proving the voluntary nature of
the confession lies on the prosecution; at any rate the onus, if on accused, is
very light. The word “appears” in the section indicates a lesser degree of
probability than the word “proof’ as defined in Section 3 of the Act. Section
24 therefore does not require positive proof of improper inducement etc. to
justify its rejection. A well-grounded suspicion based on facts and surrounding
circumstances, is sufficient to exclude confessions from consideration.
4.9 Essential Ingredients of Section 24

Thus to attract the provision of this section the following facts have to

be established:
 112

(a) That the confession has been made by an accused person to a person in

authority.

(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.

(d) That 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.

4.10 Retracted Confession

In Mst. Bhagan v. State of Pepsu40 the court held that 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. However, before arriving at any conclusion based on a retracted

confession, the court has to take into consideration not only the reasons for

making the confession or retracting it but also the attending facts and
circumstances surrounding the same. There is no legal rule that a retracted

confession cannot be acted upon unless the same corroborated materially. In

the case of Subramania Goudan v. State ofMadras41 the court said that where

the court has to decide whether the confession made by the accused in a
criminal case has been proved the law requires that the court must be satisfied
that the confession made was free and voluntary and that it was not brought

about by the influence of hope or fear. If the prosecution satisfies the court on

40
AIR 1955, Pepsu 33.
41
AIR 1958 SC 66.
 113

these points and it is held that the confession was a free and voluntary act of

the accused and that it was not induced by any hope or fear or coercion,, then it

must be regarded as a genuine confession which may be made against the

accused at his trial. “It is the purpose of arriving at the satisfaction regarding

voluntariness and while exploring reasons for retraction that the court relates it
with other evidence on record and seeks corroboration if possible. The rule of

prudence, however, does require that a retracted confession of one accused

does not become the sole basis of conviction of a co-accused.

4.11 Meaning of the Word Voluntary ‘Confession’

The word voluntary confession means a confession not caused by
inducement, threat or promise and does not mean a confession made willingly

as all confession made I consequence of inducement threat or promise are

made ‘willingly’ in the later sense in the case of Fatehchand v. Emperor.42

However whether a confessional statement was voluntarily made or not

is essentially a question of fact. In ascertaining the voluntary nature of the

statement different tests will have to be applied to different set of facts. In the

very nature of things, there can be no rigidity about them. What test is best

applicable to a given set of facts is for the judge of facts to decide. If the

circumstances throw any doubt on the voluntary character of a confession the

confession must be rejected.

4.12 Involuntary Confessions

The court held in Amrat v. State of Bombay,43 that an involuntary

confession is one which is not the result of the free-will of the maker of it, so

where a confession is made as a result of the harassment and continuous

interrogation for several hours after the person is treated as an offender and

42
26 Cr. LJ. 1313.
43
IL 1960 Bom. 664.
 114

accused, such statement must be regarded as involuntary. However, a

confession caused by inducement to withhold criminal prosecution is not

involuntary) was held in Abrahim Varghese v. State ofKerala.4*

No doubt, the principle is well-settled that a confession is admissible

provided it is free and voluntary but it does not mean that a mere bald
assertion by the accused that he was threatened or tortured or that inducement
was offered to him, can be accepted as true without anything more. In Nemraj
v. State of Ajmer,45 the court said that the suggestion must lie rejected when
there is no material what so ever to hold that the prisoner was threatened or
beaten and the story of tutoring is on the face of it incredible.
In Swam Singh & Rattan Singh v. State of Punjab,46 the court was of
the view that as regards analyzing as to whether the contents of the confession
are true or not the court must carefully examine its contents and must then
compare them with the other prosecution evidence and apply to them the test
of probability.
4.13 The Test of Admissibility of a Confession is its Voluntariness and not
its Truth
“A confession which is voluntary is admissible in evidence even if it is
false. On the contrary a confession which is not voluntary is not admissible,
howsoever true it may be,” was held in Kasummodin v. Emperor,41 the
question whether a confession is voluntary is a question of fact so is the
question whether a confession is true. These two questions are entirely
separate from each other: one affects the admissibility: the other the value of
the confession. A confession that is voluntary is not necessarily true and
conversely a confession that is true may not be voluntary.48

ILR (1964)2 Ker. 312.

1954 Cr. LJ. 1313
1957 Cr. LJ. 1014.
35, Cr. L.J. 485.
35 Cr. L.J. 485.
 115

Thus, the law does not require the motive for a confession to be

elicited The only requirement laid down by the law is that the confession

should be free from the blemishes of compulsion, inducement, threat or

promise. The court held in Suka & Misra v. State,49 that if the confession is not

tainted by any of these vitiating factors the court is entitled to presume that it

is voluntary. Adjudication as to voluntariness and as to truth is done at two

different stages in a trial. Once a confession is found to be voluntary, it can be

admitted in evidence. The stage of deciding the veracity or reliability of the

confession comes at the time of final disposal of the case when its weight is
determined in relation to other evidence, available on record.

4.14 Some Faces of Involuntariness

Section 24 does not require the accused to prove that the confession

was actually made as a result of any express inducement, threat or promise

made by any person in authority. The inducement may be implied from the

conduct of the person in authority, the declaration of the prisoner or the

circumstances of the case nor need it be made directly to the prisoner. It is
sufficient it may reasonably be presumed to have come to this knowledge
provided or course. It appears to have induced the confession.50 As per

Wigmore51 when a prisoner is placed in such a situation that an untrue

confession guilt has become the more desirable of two alternatives between
which he is obliged to choose, a confession made by him becomes
untrustworthy.
As per Woodroffe,52 an inducement may take the form of a promise or

a threat, often the inducement involves both promise and threat - a promise of

* AIR 1957 Orissa, 71.

Phipson Ev. 7th Ed. 257 as cited in Monir as Evidence 11th Edn. 1995.
51
Wigmore on Evidence 824.
52
Woodroffe Evidence 9th Ed. p. 284.
 116

forgiveness if a disclosure is made and threat of prosecution if it is not. A

promise is always attached to the confession alternative and a threat to the

sentence-alterative. It may be laid down as a general rule that in order to

exclude a confession. The inducement, whether it assumes the shape of a

promise a threat or mere advice, must relate to the actual charge and be such as

is calculated to, influence the prisoner’s mind with respect to his escape from
the charge.53

In Rattan Chand v. State of Bihar,54 the court held that a confession

made by the accused who was not questioned continuously at a stretch and tow

or three hours had lapsed after he was taken to the house of the Mukhiya was
held to be voluntary. On the other hand, a confession made as a result of

harassment and continuous interrogation for several hours of the person is

treated as an offender and accused was treated as involuntary.

In India, the question of admissibility of a confession made , by an

accused to police or to anyone whilst in police custody being admissible or not

will not arise, thanks to Section 25 and 26. However, a confession made to

persons other than police officers while the accused is in judicial custody have

been scrutinized by the courts. It has been held by the court in Aher Raja
Khima v. State of Saurashtra,55 that if the jail in which the accused has been

ordered to be kept before the confession is recorded was such that the, police

had access to and the accused said that the opportunity was fully utilized to
r*rvprr»a onrl flnmofan fVvo ^An|ac!(;iAn r»An1rl Ko fa Ko r
VUViVV U11V1 till V/dcVAA AJ.1J.JLJ. tliw WiiiwJOiV/ll WUJU C/V jpi VOUUIVU XV/ uv 1A1V V/lVUitCUjf 5

In such circumstances the accused will not be required to positively prove his
assertions.

Taylor on Evidence 879. 1

1959 SCR 1336.
1956 Cr. L.J. 426 & 1954 Cr. L.J. 2251.
 11/

It was held in State ofBombay v. Kathi Kalu Ogdad,56 that compulsion

in the context of Article 20(3) of the Constitution must mean what in; law is

called duress’
Krishna Iyer. J. has cited in Nandini Satpati v. P.L. Danif the

following definition of Duress as given in Javitt’s Dictionary of English Law,

“Duress is where a man is compelled to do an act by injury,

beating or unlawful imprisonment (sometimes called duress in

strict sense) or by the threat of being killed, suffering some

grievous bodily harm or being unlawfully imprisoned

(sometimes called menace or duress per minas). Duress also

includes threatening, beating or imprisonment of the wife,

parent or child of a person ”

He further held that compulsion in this sense is a physical objective act

and not the stage of mind of the person making the statement except when the

mind has been so conditioned by some extraneous process as to render the

making of the statement involuntary and therefore extorted. It was emphasized

in the judgment that compelled testimony is not limited to physical torture or

coercion, but extends also to techniques of psychological interrogation which

can cause mental torture or mental compulsion in a person subjected to such

interrogation.
It was held in Yusuf AH v. State of Maharashtra,58 that the act of tape

recording of the conversation between the complainant and the accused with

the knowledge of the complainant and without the knowledge of the accused

were held to be not violative of Article 20(3) of the Constitution. It was held in

AIR 1961 SC 1808.

AIR 1978 SC 1025.
AIR 1968 SC 147.
 118

Dr. R.M. Malkani v. State of Maharashtra,59 that though the police had

adopted the method of deception since the accused actually did not know

about the presence of the police, his statement cannot be called compelled

testimony.

4.15 Burden of Proof

The words ‘if it appears to the court’ as used in Section 24 do at the

first instance, seem to favour a view that the burden of proving involuntariness

is on the accused. In relation to judicial confessions field’s opinion is that it is

held to be voluntary unless contrary is shown.60 In this regard, he holds that

the Indian law differs from the law of England. However, ‘appears to the

court’ does not by its terms, require positive proof by the accused. All that it

means is that voluntariness of the confession should not go entirely

unchallenged, Once it is pointed out to the court that the confession was

involuntary, with same cogent reasoning so as to make it quite probable that it

was indeed involuntary, the burden on the accused if any is discharged. As per

Woodrofee, it would be more correct to say that as under Section 3, prudence

is to determine whether a fact exists or not. The use of the word “appears”

while requiring proof, indicates that a lesser degree of such proof is required in
this than in other cases.61

When it does appear to the court that the confession has been caused by

inducement etc, the onus of proof immediately shifts to prosecution who will

now have to prove affirmatively to the satisfaction of the court that the

confession was voluntarily made. A failure to do so would certainly result in

ousting of the confession.

59 AIR 1973 SC 157.

60 Fields-Evidence, 6th Edn. p. 98.
61 Woodroffe, Evidence, 1<T Edn. p. 370.
 riy

4.16 Position in United Kingdom

It would be worthwhile to note that in the U.K. Under Section 76(2) of

the Police and Criminal Evidence Act, the condition of the inadmissibility of a

confession is qualified by the words: “If... it is represented to the court that the

confession was or may have been obtained by oppression... etc. Thus the

initial burden to show a probability of involuntariness is on the accused, but

nothing beyond that in the U.K. the law on burden of proof has been well

settled and has remained unchanged since the test was laid down by Cave. J. as
follows: “A simple test... is it proved affirmatively62 that the confession was

free and voluntary, i.e. was it preceded by any inducement to make a statement

held out by a person in authority? If so and the inducement has not been

clearly removed before the statement was made evidence on the statement is

inadmissible.”

Parke B. told the prosecutor. “You are bound to satisfy me that the

confession which you seek to prove against the prisoner was not obtained form
him by improper means.”63

It is humbly submitted that there is no reason in India to interpret

Section 24 of the Evidence Act otherwise. It is true that the scheme of the
Indian Evidence Act makes confessions prima facie relevant. The

circumstances in which the legislature wanted confessions not to be relevant

have been specifically provided for in Sections 24 to 27. In that sense it can be
argued that the onus to show that these circumstances exist would be on the

accused since the Circumstances are within his knowledge. So far the position

is the same in U.K. in as much as it has to be ‘represented’ to the court that the
confession was taken under any of the vitiating circumstances. However, once
62
Emphasis supplied.
63
R. V. Warringham 1851 2 Den CC 447.
 120

it is done and some reasonable suspicion is made to arise in the mind of the

court it will be for the prosecution to prove the absence of such circumstances.
The dictum of R.V. Thompson has been adopted in India.64

In view of the above, it is clear that once some suspicion is made to

arise on the propriety of recording of the confession. The onus to prove

voluntariness is on the prosecution. There is no onus on the accused to prove

‘ involuntariness \

4.17 Person in Authority

Under Section 24 of the Evidence Act a confession will become
irrelevant only if the inducement, threat or promise, which vitiates a
confession has proceeded from a person in authority. As to who is a person in

authority is neither defined in the Evidence Act nor any illustration of a person

in authority is given in it. In the absence of a statutory definition of the words,

the natural meaning of the word consistent with the spirit of the provision, in
which those particular words occur is to be given to them. These , words

“person in authority” occur in a provision which is intended to be a safeguard

to persons accused of committing crimes against their unjust conviction on the

strength of a tainted confession. So the construction of these words should be

done in such a manner as to allow the fullest and widest meaning to the terms.
A restricted meaning would operate to undo what the legislature intended to
do.

A strict meaning of the expression “person in authority” was given by

the Patna High Court in Santokhi Beldar v. King Emperor,65 held as follows:

“There is no statutory definition of the words “person in authority”, but

it is well established that the words have reference to a person who has

64
Ashutosh v. R, 26 CWN 54.
65
AIR 1933 Patna 149.
 121

authority to interfere in the matter under enquiry. The reported cases on the

point show that generally speaking “person in authority” within the meaning
of Section 24 is one who is engaged in the apprehension, detention or
prosecution of the accused or one who is empowered to examine him.”

This is the strict interpretation of the expression and if this

interpretation is adhered to it can include only Magistrate and Judges who are

empowered to punish offenders and the police and other officials of the

Government who are engaged in the apprehension, detention or prosecution of

the accused. It is difficult to advance any reason to uphold such a strict

interpretation. Thus in the court of Reg. v. Navroji Dadabhai,66 the court went

on to hold that the term should not be used in any restricted sense. Later on in the
case of R. v. Warringham, Chief Justice Sargent laid down the rule as follows:
“The test would seem to be had the person any authority to interfere with
the matter and any concern or interest on it would appear to be sufficient to give
him that authority where Parke-B held that the wife of the prosecutor and one
concerned in the management of their business was a person in authority. A case
from the Calcutta High Court reiterates that in construing the expression “person
in authority” the test is to see whether the person has any power to interfere in the
matter or has any concern on interest in the matter. This s a comprehensive
construction that can be put on the term to give better effect to the provision. An
example may show to force of this interpretation. Take for instance that an owner
of a lost article says to the supposed thief “tell me the truth or I will hand you up
to the police.” Here the fear caused by the threat, may induce the person suspected
of the theft to make a clean breast of the offence and plead with the owner of the
lost article not to hand him over to the police. Here the owner of the lost article
though not a person invested with powers or apprehension etc. by the

66
(1872)2 B.H.C. 358.
67
2 D.C.C. 447.
 122

Government, yet on account of the position he occupies as the owner or the stolen
property, has got some power to control the prosecution of the accused; person
Thus he can either report the matter to the police for prosecution of the accused or
altogether drop the matter and condone the thief. This power for the time being on
the part of the person who is the owner of the stolen property gives to his
utterances addressed to the accused person an authoritative range which can
overcome the accused. If that is so it is obvious a confession made to such a
person under such a threat cannot be genuine for a court to act upon. The
managers of a private banking concern or other commercial institutions are to be
regarded as persons in authority on this principle only if any of their subordinates
make a confession of an offence committed in the banking concern or other
commercial institutions. Their authority comes only from the fact that they can
investigate in the first instance into the alleged offence committee by a person
employed under them and then hand over the culprit to the proper authorities. But
can a co-worker such as another clerk working along with the accused person
strike terror into the mind of accused. His influence, it may be submitted is not so
very paralyzing and hence he can scarcely be regarded as a person in authority.
What he can at best do is to calumniate the accused person and intimate to the
common superior the wrong done by him.”
It can be seen from the above interpretation that an individual to be a
person in authority within the meaning of Section 24 of the Evidence Act must
i
stand in such a relation to the accused person as to imply some power of control
or interference with regard to his prosecution or any concern or interest in the
i
same. It has to be borne in mind that the concern or interest is not the common
concern or interest which every citizen may have in an offence which is notional
an attach on society at large but a concern or interest which is natural to a person
on account of his personal relation to the offence.
 123

Accordingly the expression ‘person in authority’ in Section 24 should

be interpreted liberally’ If such a person is interpreted or is concerned with the

investigation of a case it would be sufficient to given him that authority.

4.18 Instances of Persons in Authority and Those not in Authority

The confession was made by a probationary nurse attached to the ward

to the House Surgeon of that hospital and ward and on whose recommendation

the confirmation of that nurse on her services depended. The court held in Mst.
Veeran Wali v. State68 that the confession is made to a person in authority

within the meaning of Section 24 of the Evidence Act and excluded the same

from its consideration. .■> -

Where the police was made one of the members of the party and had

not protested when the others offered the inducement to the accused, the

inducement could be said to have proceeded from him as well and it was

sufficient to give the reasonable ground to the accused to believe that by

making the confession he would be saved by all the persons concerned

including the police officer in reference to the proceedings against him. The
court held in Punja Mava v. State,69 that even when a doubt is cast as to the

voluntary nature of a confession. It must be discarded in considering the evidence

of the guilt of the accused under Section 24.
In the case of R. v. Moore™ a maid servant’s confession of murder of her
child was held to be admissible though induced by her mistress. But the charges
against the maid-servant would have been one of the embezzlement or theft from
the employer the latter would clearly be in authority and any confession obtained
by some inducement, threat or promise employer as such, would have vitiated the
confession.

68
AIR 1960 MP 132.
69
AIR 1965 Gujarat 5.
70
(1852) 2 Den. 552.
 124

A confession made an accused to the Sales Tax Officer conducting

inspection, search and seizure of account books of the accused would be
inadmissible in evidence as the Sales Tax Officer with these powers was held to
be a person in authority in State of Orissa v. Bhouri Lai Aggarwal.11
Village Lambardars and Zaildars are part or investigation machinery. It is
their duty to report cognizable offences and also to conduct the investigation of
such offences. Their position is therefore, such that they would be considered as
persons in authority. Apart from this, the position of a Lambardar in village is
such as to appeal to a villager as a person who is able or likely to be able to
promise him a pardon.
The accused were in Jail custody confession was made by both of them
and was recorded by the Magistrate under the provisions of Section 164 of
Criminal Procedure Code. The second accused stated before the committing
Magistrate that he gave the statement implicating herself on account of threat
given by the first accused. The court held that both the accused were in Jail
when the alleged threat was given by the first accused and therefore the first
accused cannot in any manner be termed as a person in authority. The
confession would be admissible in evidence. All this was held in Aheibam
Ningal v. State™ by the court.
The accused made a confession before the villagers including the
Countia of the village. The>court held in Lok Nath Panda v. State™ that
Countia as such after the abolition or the Countia System had no power to
examine the accused and therefore, was not a person in authority but merely an
ordinary citizen.
It is a question of fact in each case whether the person concerned is a
man of authority or not. But;the test is whether the person is engaged in the

1962 Cr. L.J. 835.

AIR 1967, Manipur 11.
AIR 1967 Orr. 205.
 125

apprehension, detention or prosecution of the accused or empowered to

examine him or is interested or concerned with the investigation of the case.

4.19 Nature of Inducement, Threat or Promise

In the case of Emperor v. Panchkari Dutt,74 the court has to be satisfied

that the inducement, threat or promise is sufficient to afford reasonable hope of

advantage to the accused person. This is a matter of discretion for the judge like
the question whether a confession is or is not accused by inducement, threat or
promise. Further a duty is cast on the judge to see whether an accused person
placed as he was in a peculiar position would reasonably consider a particular
kind of inducement, threat or promise to be capable of giving him any advantage
or of averting for him an evil of a temporal nature in reference to the proceedings
against him, therefore, it would be necessary on the part of a judge dealing with a
confession falling under Section 24 of the Evidence Act to take into consideration
not only the words used by a person in authority but also his acts and conduct not
only the frame of mind of the accused his age, experience, intelligence and
character, but also the time, place and circumstances under which the accused was
face to face with the person who used the inducement, threat or promise. Then
only it would be possible to see whether the accused could be affected in the
manner contemplated in the section by the particular inducement threat or
promise therefore, it is enough if such inducement threat or promise would in the
opinion of the court be sufficient to give the accused person grounds which would
appear to the accused person not to the court reasonable grounds for supposing
that by making the confession he would gain an advantage or avoid an evil of the
nature contemplated in this section. It will be seen, therefore, that it is the
mentality of the accused which has to be judged rather than that or the person in
authority. That being so not merely, actual words but words accompanies by acts

74
AIR 1966 Cal 587.
 126

or conduct as well on the part of the person in authority, which may be construed
by the accused person. As he; then is an amounting to an inducement threat or
promise, will have to be taken into account. A perfectly innocent expression
coupled with acts or conduct on the part of the person in authority together with
the surrounding circumstances may amount to inducement threat or promise. The
view was upheld in the case of Mst. Kisture v. State.
The Supreme Court on the matter in Pyare Lai Bhargav v. State of
Rajasthan,76 observed as follows:

“The threat, inducement or promise must proceed from a person

in authority and it is a question of fact in each case whether the

i

person concerned is a man of authority or not, what is more

important is that the mere existence of the threat, inducement or
promise is not enough, but in the opinion of the court the said

inducement, threat or promise shall be sufficient to cause a

reasonable belief in the mind of accused that by confession he

would get an advantage or avoid any evil of a temporal nature in

reference to the proceedings against him while the opinion is

that of the court, the criterion is the reasonable belief of the

accused. The section, therefore, makes it clear that it is the duty

of the court to place itself in the position of the accused and to
form an opinion as to the state of his mind in the circumstances
of a case.”
It was said by the court in K. Gopalan v. State?1 that unless the
expectation under which the accused makes a confession is shown to have
been the result of any inducement, threat or promise as specified in Section 24

75
AIR 1967 Raj 98.
76
AIR 1963 SC 1094.
77
AIR 1954, Trav. Cochin 456.
 127

a confession otherwise voluntary does not cease to be so simply because the

accused person on his own believes that to confess his guilt would be the only
way of saving himself. A person making a confession may be guided by any
consideration which according to him would benefit him.
4.20 To Gain any Advantage or to Avoid any Evil
It is not every threat, inducement or promise emanating from a person I

authority that is hit by Section 24 but it has to be such an inducement, threat or

promise which should lead the accused to suppose that by making it he would
gain any advantage or avoid any evil of a temporal nature in reference to the

proceedings against him.

Therefore, inducement, threat or promise emanating from a person in

authority must reasonably have the effect of raising any hope or leading the
person making the statement to suppose that by making the statement he

would be gaining any advantage or avoiding any evil of a temporal nature in

reference to the proceedings against him.

A person summoned under section 171-A of the Sea Customs Act was

told that he must state what he knows and he must state that truthful, otherwise

he would be prosecuted under Section 193 of the Indian Penal Code for. giving
false evidence.
Here, the person making the statement was only asked to tell the truth

and that if he does not tell the truth, he may be prosecuted under Section 193
of the Indian Penal Code for giving false evidence or if he does not answer a

question, may be prosecuted for causing interruption in the proceedings. The

curt held in Luxman Padma v. State,78 that in merely explaining the provisions

of Section 171-A. There was no threat given by the officers recording the
statement which could have raised any hope in the minds of the persons

78
AIR 1965 Bom.
 128

making the statements or led them to suppose that they were going to gain any

advantage in reference to the proceedings against them relating to smuggling

of gold. Therefore, the statements recorded by these officers could not be held

inadmissible under the provisions of Section 24 of the Indian Evidence Act.

Thus, Section 24 of the Evidence Act enacts one of the cardinal

principles of Criminal Jurisprudence that an accused cannot be compelled to

give evidence against himself. This, along with Section 163(1) of the Code of
Criminal Procedure which prohibits police officers and other persons in
authority to offer any inducement, threat or promise as mentioned in this

provision give full effect to the guarantee against compelled self-incrimination

enshrined in Article 20(3) of the Constitution of India, the immediately

succeeding provisions which stretch the right too far are shrouded with
controversy. But so far as Section 24 is concerned, there are absolutely no
doubts as to its necessity to safeguard an important human right.

A case in which a confession is admitted in violence, is no doubt open

to the defence to object to the evidence of confession on the ground that it is

excluded by the Section 24 of Evidence Act. But such objection is raised, there

is no necessity for the court to pronounce any formal decision on the question
of relevancy of the confession. The actual admission of the evidence during
the trial is sufficient for the purpose. The section is clearly a general provision

and applies to confessions made by a person whether in police custody not and
whether it is made to be police officer or to others.
The law does not require the motive for a confession to be elicited. The
only requirement laid down by the law is that the confession should be free
J

' from the blemishes of compulsion inducement, threat or promise. If the

confession is not tainted by any of these vitiating factors the court is entitled to

presume that it is voluntary. The stage of deciding the veracity or reliability of

 129

the confession comes at the time of final disposal of the case when its weight

is determined in relation to the other evidence available on record.

4.21 Justification of Custodial Confession

The rule of total exclusion of custodial confession from evidence, as

enacted under Section 25 and 26 of the Evidence Act on the face of it, shows a
serious concern of legislature for protection against police brutality, of the

right of an accused person not to be compelled incriminate himself. The rule

carries the privilege against compelled self-incrimination quite for adding to it

the concept of deemed in voluntariness due to the custody of the police. In the
process, however, an important agency of the state entrusted inter-alia with the

job of maintaining law and order and of prevention and detection of crimes the

jobs essentially requiring public confidence and faith, gets stigmatized as

‘untrustworthy’. A confession made by an accused to any third person before

he is apprehended by police is admissible in evidence and can be used to
convict the accused even if it is the sale link between him . and the

circumstantial evidence, but not if it is made to a police officer or to anybody,

whilst he is in custody of the police except to the extent provided for in section

27 the prohibition is absolute.

Reasons for total exclusion appear to be historical more than anything

else.

Provisions akin to Sections 25 and 26 of the Evidence Act were first

enacted as Sections 147 and 148 of the Code of Criminal Procedure, 1861. In
England, this was the time when the rule originally laid down in that no credit
is to be given to a confession made out of compulsion had so firmly gained
ground that exclusion became the rule and admission, an exception was held in
R. v. Warick Eshall.19

79
1783 I Leach CC 263.
 130

In R. v. Baldry,80 it was held that the position changed form excluding

confessions shown to be involuntary to that of excluding all confessions which

are not proved to be perfectly voluntary, after the ruling it was authoritatively

laid down that “By the Law of England, in order to render a confession

admissible in evidence, it must be perfectly voluntary and there is no doubt

that any inducements in the nature of a promise or a threat held out by a person

in authority vitiates a confession”.

The courts in U.K. started disbelieving almost all confession recorded
by the police. The idea of a presumption of involuntariness had been

originated though not directly put in words in any statute or judgments. During
the same time the privilege against self-incrimination was getting strengthened
and acquiring new dimensions in the U.S.A. also. It was held in Brain v. U.S.U

that the constitutional guarantee applied to pre-trial stages as well. The British

rulers in India were apparently influenced by the thinking in U.K. at that time.

Further the Indian police force was structured by the British in a way as to suit

perpetuation of the British rue in India. Police were provided with immense
powers to deal with deviations form the law by the Indians. Offences against

the State attracted very serious punishments. The senior officers of the police

were mostly British, who lived and worked for the continuance and supremacy

of the British rule. The lower rank officers were expected more than anything

else to be loyal and obedient to the seniors and hence, to the rulers. In contract
with the British police established by Sir Robert Peel in 1829, the Indian
Police was never encouraged by the British to be friendly to the public. They
were always projected as the representatives of the Governmental authority
over the public rather than as. servants of the public, because it suited the

80
1852 2 Den. 430.
81
178 US 542 1897.
 131

British rulers. A police ‘Darogah’ was the person enjoying absolute powers
over the masses and did not hesitate in misusing them to harass and torture the

local inhabitants, employing short cut methods in investigation, in order to

prove his efficacy before the British bosses. The report of the Indian Law

Commission of 1855 observed:

The police in the Province of Bengal are armed with very

extensive powers. They are prohibited form inquiring into cases

of a petty nature but complaints in cases of more serious
offences are usually laid before the police Darogah, who is

authorized to examine the complaint to issue process of arrests

to summon witnesses to examine the accused and to forever the

case to the Magistrate or submit a report of his proceedings

according as the evidence may in his judgment warrant the one

or the other course. The evidence taken by the Parliamentary

Committees on Indian Affairs during the session of 1852 and

1853 and other papers which have been brought to our notice

abundantly show that the powers of the Police are often abused

for purposes of extortion and oppression and we have

considered whether the powers now exercised by the police

might not be greatly abridged.”

And further that:
“By the existing law the darogah or other police officer

presiding at any inquiry into a crime committed within his

division is required, upon apprehension of the accused to
question him fully regarding the whole of the circumstances of
the case and the persons concerned in the commission of the

crime and if any property may have been stolen or plundered,

 132

the person in possession of such property or the place where it

has been deposited. In the event of the accused making free and

voluntary confession it is to be immediately written down.

The follow other provisions for preventing any species of compulsion

or maltreatment with a view to extort a confession or procure information. But

we are informed that in spite of this qualification confessions are frequently

extorted or fabricated. A police officer, on receiving intimation of the

occurrence of a dacoity or other offence of a serious character, failing to

discover the perpetrators of the offence, often endeavors to secure himself

against any charge or supine-ness or neglect by getting up a case against
parties whose circumstances or characters are such as the likely to obtain

credit for an accusation of the kind against them. This is not infrequently done

by extorting or fabricating false confession and when this step is once taken,

there is of course impunity for real offenders and a great encouragement to

crime. The darogah is henceforth committed to the direction he has given to

the case and it. is his object to prevent a discovery of the truth, and the
apprehension of the guilty parties who as far as the police are concerned, are

now perfectly safe.”

The Law Commission proposed a change by the adoption of. a rule

prohibiting any examination whatever of any accused by the police the result

of which is to constitute a written document. This of course, will not prevent a

police officer from receiving any information which anyone may voluntarily

offer to him: but the police will not be permitted to put upon record any
statement made by a party accused of an offence. .

This was the background of Sections 146 to 150 of the Code of

Criminal Procedure, 1861. By the time of incorporation of these provisions in

the Indian Evidence Act the prohibition of recording a statement of the

 133

accused was dropped and the limitation that remained was the bar to their

proof in criminal trials.

Thus, in short, the total exclusion rule was adopted in India for two

reasons namely:

i) This was the thinking in U.K. also at that time and

ii) The police in India were found untrustworthy.

4.22 Continuance of the Rule

The first of the two reasons of the rule being (adopted in India, no
longer exists in U.K. shed the approach of near total exclusion in the
beginning or 20th Century. In King v.Best*2 a strict exclusionary rule was

decisively rejected. Confessions recorded in violations of the Judges Rules

were often not admitted in evidence, but a discretion was still left with the
courts. Judges Rules did not as such have a rule of law, The discretionary

power of the courts was emphasized and it was laid down that while

considering admission or a confession made to the police, the court have to

consider the particular circumstances in which the particular suspect was

placed. It was held in DPP v. Pinglen P Then by virtue of the Police and

Criminal Act, 1984, confessions have been made admissible in evidence,

subject to satisfying the age old test of ‘voluntariness’.

Now coming to the second reason, it is generally accepted that police

have shown no reason in the last hundred years for the opinion about their

brutality. Oppression and alienation from the public to. undergo any change.

The reforms undertaken after the report of the first Police Commission

appointed in 1860 failed to achieve any positive results towards improving the

image of the police. This was chiefly because not much attention was paid to

82
1909 I KB 692 (CCA)
83
1976 I AC 760.
 134

this aspect. The Act of 186184 created a uniform and homogeneous police

system in India. But the nature and the basic procedures of work were not

drastically changed. The Indians were employed only in inferior posts and

could at the most reach the lower rank officers who used short cut methods of

torture and of exerting confessions, due to mounting pressures from their

superiors demanding quick results. Promotion or demotion of these officers

was dependent upon their ability to carry out investigation work.85 In 1902, a

Police Commission appointed under the Chairmanship of A.H.L. Fraser, in its

report described the Indian police as tyrannical and observed at in police there

was general absence of any attention to the necessity of keeping the temper

being civil and respectful to the public avoiding brutality or unnecessary

harshness and seeking by all legitimate means to make their performance of

duty as little distasteful to the people as possible.86 The Commission felt that

unqualified policemen recruited from a very low stratum of the society were

entrusted with too much power and authority which was one of the causes of

police oppression.

Then with the independence of the country the police came to be

looked as an instrument of governmental authority alien to the masses. The

laurels they had won for their loyalty to their former masters turned into

stigmas their services to a Government that was alien now alienated them an

their past modes and mores hung heavily with them as they sought fresh
adjustments with the people in the change context.87

The Police Act 1861.

Madan J.C. Indian Police, 1980, Uppal Publishing House.
Report of the Indian Police Commission 1902-3.
Pandey A.K. Development Administration and the Local Police, 1987, Mittal
Publications.
 135

The Supreme Court observed in Raghuvir Singh v. State of Haryana,88

that, “We are deeply disturbed by recurrence of police torture resulting in a

terrible sense of scare in the minds of common citizens that their lives and

liberty are under a new peril when the guardians of the law gore human rights

to death” The Supreme Court expressed its concern stating that the police

believed more in fists than wits, or torture more than culture. They believe in
Kishore Singh Ravinder Dev & others v. State ofRajasthan,89 They believe all

is well with the police the cities are always in the wrong. Nothing is more
cowardly and unconsciousable than a person in police custody being beaten up
and nothing inflicts a deeper wound on our Constitutional culture than a state

official running berserk regardless of human rights. Article 21 with its

profound concern for life and limits, will become dysfunctional unless the
agencies of the law in police and prison establishment have sympathy for the
humanized creed of the Article.” The State of V.P. v. Ram Sugan Yadav,90 is

another case of police torture resulting in death, the Supreme Court, observed

that, “Handmaids of law and order should not use their position for oppressing

innocent citizens who look to them for protection.” The Supreme Court, had to
suggest amendments in the Law of Evidence to incorporate a presumption that
injuries caused to a person while in police custody were caused by the
concerned police officers.

Thus, the fact of harassment and brutality by the police remains.

However, it cannot be argued today that the brutality is practiced as widely

and to the same extent as it used to be when the provisions of the Evidence Act

were enacted. The writer has not gone in detail. through the administrative
reforms undertaken since independence as the same would require a detailed
88 1980 Cr. LJ. 801 (SC).
1981 1 SCC 503.
AIR 1985 SC 416.
 136

independent study. But common experience in Delhi shows that the traditional

torture rooms ill the police stations no longer exist. The accused persons and
witnesses are mostly interrogated in an open hall, usually accessible and

visible to any person entering the police station. The voice of the Duty Officer

on telephone is somewhat courteous beginning with Namaksar Some

policemen can even be seen helping elderly people cross the road or helping a

driver push-start his car in case of a breakdown. Further, today, cases of police
torture get easily highlight by the press and are likely to result in action against

erring officials. The police station is not the limit of reach of today’s citizen,

like it used to be before independence. The superior officers of the police and
the courts are more easily accessible than they were at that time. The courts in
particular are more alive to the requirements of ensuring protection of rights of
the accused when he is handed over to police custody and of hearing his

grievances when he is produced before them. Even otherwise the very fact that

the whole of the police force was considered to be brutal and inhuman shows

that the reasons therefore were not individual. All individual members of a
force just cannot be alike. One easily identifiable reason was lack of training

and encouragement to the members of lower ranks of the police on whom the
entire responsibility of carrying out investigation lay. The only thing expected
of them was to show quick results as a mark of loyalty to their European

superiors. The superior officers did not come in contact with the public and the
lower rank officers were never oriented towards getting assimilated vyith +V-\ a
VliV

masses. This was the position before independence. This system was therefore

thrust upon a policeman who have no option but to carryon the traditions. Can

individual policeman be said to be responsible for this? When individuals

accept the system since they have to work within it they are heldf to be
 137

untrustworthy and are looked down upon by the legislators the Government

and the judiciary alike pushing them further deep into the vicious circle.
Shailendra Mishra describes the phenomenon as growth of a subculture

which includes brutality. “The subculture is strengthened by alienation

cynicism low esteem in society a degree of parian feeling conflicting demands

made of policemen inconsistent judgement of their work; all forcing them into

a comer their backs to the wall.” He points out that people except policeman to
beat up and torture goondas and when this is not done charge of corruption and

briery are hurled. During the course of handling agitations policemen suffer

injuries but at the end of it all while cases against toady elements who had
burnt buses destroyed private and public property and assaulted and hurt
policemen are withdrawn a mounting demand is made for a judicial inquiry

against police brutality. No appreciation is shown for the day and night work
rendered by them on occasions of natural calamities religious festivals fairs

and public gatherings. The diurnal condemnation of all and every policeman

the manifest presumption that they are all corrupt and inefficient the summary

dismissal of any presentation of their difficulties reinforce police cynicism.

It is submitted that the existence of provisions of the Evidence Act and

the Criminal Procedure Code which have the effect of indiscriminate

condemnation of all policemen is by itself a major reason for the cynicism

referred to by Shailendra Mishra while they are expected if perform important

functions of the state, they are looked down upon by every wing of the state

and also by the public whose security and safety is their main job. There is

therefore little wonder that whenever they have a chance they try to salvage
their self respect by being aggressive and rude. This is by no means meant to

justify the rudeness and brutality of the police. There can be no disputing the

proposition that police brutality and corruption are the most deplorable blots
 138

on the face of this largest democracy of the world and have to be completely

weeded out before we call ourselves civilized and cultured. The point sought

to be made here is that branding all policemen as untrustworthy only adds to

the problem by further lowering the morale of the policemen and thus, inviting

more reaction. It is on the other hand much more likely that if faith is reposed

in them, they shall respond in a more responsible manner. Once their self-
respect is restored, the growth of the subculture of brutality may be checked.

Safeguards like direct and proper supervision by superiors, close scrutiny by

the Courts of Magistrates when the subjects are produced before them and
prompt and effective action on proven cases of torture or any other violation of
rights of the subjects can be simultaneously strengthened. Krishna Iyer, J.
expressed the hope for the future in case of Nandini Satpati v. P.L. Demi,91 in

the following words : “.... May be in later years, community confidence and

consciousness will regard the police force as entitled to better trust and soften

the stigmatizing or suspicious provisions, now write across the code.”

It is humbly submitted that the time has arrived. Even if not for the

reason that the police have won the confidence of the people then because
distrust has failed to provide a solution and has in fact proved counter

productive. , ,

4.23 Inefficacy of the Exclusion Rule in Securing Rights of the Accused

The next question is whether the total exclusion rule has been able to
guarantee the right the right of the accused against seif-incrimination? Well
the prohibition created by Sections 25 and 26 of the Evidence Act is only to
admissibility of the confession in evidence in the course of a trial for that

particular offence. It does not bar the police form recording the confession

anyway. The police can still record a confession. In fact they are duty bound to
91
AIR 1978 SC 1025.
 uy

if it is made before them. A state of total absurdity is created by Section 163(2)

Cr. P.C. which debars the police even from cautioning the accused that he is
not bound to make a confession. The confession recorded under the mandate

of Section 163(2) Cr. P.C. is also not admissible in evidence however

voluntary and unblemished it may be because of Section 25 Evidence Act and

Section 162 Cr. P.C. Nevertheless it has to be recorded. Thus, all means of
oppression and torture are still open to the police for the purpose of extorting a
confession. Inadmissibility of such confession trial does not take away this

power from the. And, if they can find some loophole, something that can

make’ at least a part of this confession admissible in evidence also the whole

unscrupulous exercise would get clothed with legitimacy. This is precisely

what is done by Section 27 of the Evidence Act.

The two dubious reasons why the police record confessional statements
are:

(i) To et useful information by torturing the accused rather than by

exerting themselves in collection evidence and

(ii) To book the accused on the basis of the confession and get quick

credit for solving the crime.

Both these purposes are remarkably achieved with the aid of Section 27 the
police still have a motive for oppressing torturing or otherwise influencing the

accused to elicit information from him. If some relevant fact is discovered as a

result thereof the confession recorded by using all those taboo methods is most
likely to be admitted in evidence too the whole hullabaloo about the total

exclusion notwithstanding. Even if in a rare case the accused is able to show

that the confession was involuntary and the same is rejected for this reason, the

material evidence is still admissible. The court held in Radha Krishan v. State
 140

of U.P92 that illegality in search and seizure does not affect the admissibility

of the India. A person can be arrested and his liberty curtailed on the basis of a

search conducted or evidence seized in flagrant disregard of the procedure

established by law even despite the contrary mandate of Article 21a provision

the horizons of which have been otherwise expanded to unimaginable limits

by positive judicial activism in the last two decades. The view was upheld later
on in the case of State ofHaryana v. Natwar Lai.93

Now what if even after using all conceivable methods, no useful

information is elicited? It is not difficult for a policeman to ‘plant’ a discovery

on any person in almost any criminal case. In offences against properly if the
stolen property or at least if even one article of the stolen property is an easily

procurable one the same can be obtained from the market and easily planted

on anybody walking on the street. In case of an offence against human body,

the weapon of offence can be easily planted. Even in cases of blind accidents

the offending vehicle can be shown to have been first discovered on the basis

of information received from the accused. For these purposes some

‘discovery’ is first planted on the accused and then a suitable confessional

statement is fabricated to connect him with the discovery.

Thus the police can solve any crime, once they get hold of any
vagabond any previous offender or any person with whom they have some
enmity with the aid of Section 27 Evidence Act by fabricating a false
confession on his behalf. Delhi Police for one hardly sends up to the court a
charge sheet without invoking Section 27 in some way or the other.94 So much

for the utility of the exclusionary rule of custodial confessions in checking

police atrocities.
92
AIR 1963 SC 822,
93
AIR 1980 SC 593.
94
From the writer’s experience working as an Advocate in High Court of Delhi.
 141

It is submitted that neither the total exclusion call be justified, nor can

the provisions like Section 27 Evidence Act and Section 163(2) Cr. P.C. which
by themselves reduce the so called total exclusion to a mockery. The solution

lies in restoring to the police their dignity and self-respect by reposing trust in

them and simultaneously, ensuring fair and high quality investigations by

adequately trained personnel with the aid of the most modem scientific

gadgets equipments and techniques. It is also to be ensured that police

personnel are motivated to adopt a people-friendly approach and those

entrusted with investigation of crimes, have adequate knowledge of and

respect for law and human rights. Any reported violation of the rights of the
accused person in the custody of a police officer should be made summarily

punishable by the same court where the accused is produced. A punishment on

this account should divest the concerned officer of his powers to investigate
offences. This can, however be effectively achieved only if all investigations

are made by senior and more responsible officers alone. It is also important

that these officers work under general legal guidance and so long as they
remain in the investigative wing are not involved in other routine activities

which could consume a lot of time and attention.

A confession made by a accused to any third person before he is

apprehended by police is admissible in evidence and can be used to convict the

accused even if it is the sole link between him and the circumstantial evidence

but not if it is made to the police officer or to anybody whilst he is in custody

of the police. Except to the extent provided for in Section 27 the prohibition is
absolute. After 56 years of independence, the police even today came to be
looked as an instrument of governmental authority alien to the masses. The

laurels they had won for their loyalty to their former masters, turned into

stigmas their services to the Government that was alien now alienated them
 142

and their past modes and mores hung heavily with them as they sought fresh

adjustments with the people in the changed context.

4.24 Critical Appraisal

Now it is settled law that the confession made under threat, promise is

not an admissible evidence, hence can not taken into consideration for the
conviction of the accused. Further the confession made in the police custody
or in the presence of the police officer is also not relevant. In other words the
custodial confession is not relevant piece of evidence, hence not admissible.

But not the question arises what amounts to custodial confession and what is

the scope of custodial confession. A brief study about the custodial confession

is made in the next chapter.

4.25 Custodial Confessions

Unlike U.K. and U.S.A. Indian legislatures have created a total bar. to

admissibility of custodial confessions in evidence, i.e. confessions made by an

accused person to police or to anyone, whilst in police custody. These are

governed by Sections 25 and. 26 of the Evidence Act. The total exclusion rule
has been justified on the basis of unreliability of .the police for according to

rights of the accused during interrogation.

4.26 Statement must Amount to a Confession

In order that Section 25 should be operative to prevent a statement
being received in evidence. It must amount to a confession.
We need not go m detail on what constitutes a confession after the
decision of the Privy Council in Pakala Narayan Swami v. King Emperor?5 In

this case, it was observed that even statements containing admission of gravely

incriminating facts tending to suggest that the accused committed an offence,

cannot be covered by Section 25 if they fall short of actual admission of guilt.

95
AIR 1939 P.C. 47.
 143

Therefore, a statement which is not a confession cannot be excluded by

provisions of Section 25. Thus where a man accused of murder said, “The
deceased broke into my house and attacked me with a sword and I killed him

in self-defence” this statement though, an admission of fact and made to a

police officer, cannot be would be admissible. However, proof of such a

statement would be barred by Section 162 of the Code of Criminal Procedure.

4.27 Police Officer : Meaning and Scope

There is no definite definition of the expression “Police Officer” in any

of our statutes, as used in Section 25 of the Evidence Act. Therefore, the first
requisite is to know what is meant by the term Police. According to the
definition of the word ‘Police’ in the Police Act (V of 1861) all those persons
who are enrolled under that Act are included within that term. These include
inferior police officers and superior police officers. Therefore, the expression

“police-officer” in Section 25 is a nomenclature to denote all those who are in

the police force.96 The expression “Police-officer” is also freely used in the

Criminal Procedure Code including all ranks of the police with powers

assigned to all and sundry as defined in different sections of that code.

Therefore, one thing is clear that the term police officer includes all personnel

of the regularly constituted police force starting fro a constable to the highest

rank i.e. a Director-General. Now the question is whether this expression

should be given a restricted meaning or a broader meaning i.e. whether it

should be limited in its application to the regular constituted police force or

should be allowed to include members of other Government departments

together with the regularly constituted police force so as to live it a broader

interpretation.

96
R. v. Macdonald, 10 B.L.R. App. 2.
 144

The first strict interpretation to the expression “Police-Officer” was

pronounced. In the case of Radha Krishan Marwadi v. Emperor?1 decided by

the special bench of the Patna High Court, it was held that the term “Police-

officer” in Section 25 of the Evidence Act was intended to apply to police

officers and police officers alone and to no class of persons other than the
police officers. But it has been the accepted view of most of our High Courts
that this term is not restricted to officers of the regular police force but to
members of the other Government departments so as to give it a liberal
interpretation.98 The Supreme Court has also held likewise in a series of

decided cases.99 ,
The Supreme Court in Raja Ram Jaiswal v. State of Bihar,100 held that

what is pertinent to bear in mind for the purpose of determining as to who can
be regarded a “Police-officer” for the purposes of the provision embodied in

Section 25 Evidence Act, 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 purposes of

Section 25 of the Evidence Act would be whether the powers of a police

officer which are conferred on him or which are exercisable by him, establish
a direct or substantial relationship with the prohibition enacted by Section 25

of the Evidence Act. i.e. the recording of a confession. In other words, the test

would be whether the powers are such as to 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

AIR 1932 Pat. 293 (SB).

Nanoo Sheikh Ahmed v. Emperor, AIR 1927 4.
State of Punjab v. Barkat Ram AIR 1962 SC 276 Raja Ram Jaiswal v. State of Bihar,
AIR 1964 SC 828 : Badaku Joti v. State of Mysore 1966 SC 1746 : Ramesh Chandra
Mehta v. State of West Bengal AIR 1970 SC 94.
AIR 1964 SC 828.
 145

question as what other powers he enjoys. These questions may perhaps be

relevant for consideration whether 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 confessions. The view was upheld din
the case of Laxman Padma v. State.101
In Q.E. v. Salemudin,m it has been held that the expression ‘police

officer’ used in Section 25 is not limited to officers of the regular police but

includes members of special police and of the criminal investigation

department. A police officer does not cease to be so if he is also invested with
magisterial powers.103 However, a Sub-Divisional Magistrate has been held
not to be a police officer.104 A food Grade Inspector105 and an Assistant

Inspector of Customs106 are also not police officers. It has been held in State of

Punjab v. Barkat Ram,101 that custom officer to possess certain investigatory

powers similar to those of police officers but they can still not be equated with

police officers for the purpose of this provision Ram Jethmalani argues that

custom officers should also be taken as police officers and confessions made
before them should be made inadmissible.108 It is however, submitted that the

alleged unreliability of the police, being the sole justification propounded for
the total exclusion created by Section 25 the term police officer should not be

given any extended meaning so as to include other authorities whose reliability

or unreliability has not been tested. They are certainly persons in authority and
cannot be allowed to compel, coerce or induce any person to make a

101 AIR 1965 Bom. 195.

102 3 CWN393.
103 Jas Bahadur Thappa E. 31 Cr. L.J. 823.
504 Srikant Das v. E. 35 Cr. L.J. 1217.
105 Abu v. E 49 Cr. L.J. 43.
106 In re Mayilvahanam 48 Cr. L.J. 326. Also Percy Rustomje Bosta v. State of Mah. AIR
1971 SC 1087.
!07 1962 (3) SCR 333.
108 Ram Jethmalani: Confession Modifying the Perspective. 1987 (F) : ILEJ 8.
 146

confession. But these situations can be taken care of by Section 24 and

confessions made before them can be excluded if any vitiating circumstances

are shown. There is however, no justification to totally exclude confessions

made before them irrespective of the circumstances.

4.28 Meaning of the Words “Made to a Police Officer”

These words imply that there should be some direct or indirect nexus or
connection between the person making the statement and the police officer. A
statement reduced to writing with no further steps to communicate it to the
police. If recovered by the police officer himself would not amount to a
statement made to a police officer. This legislative provision does not
contemplate the mere making of statement, but it contemplates the making of
it to a police officer. It is a difficult, therefore, to hold that the mere fact of a

written statement containing a writing addressed to a police officer without

anything further being done by that person or without the police having had

anything to do with it would amount to a “statement made to a police officer”

within the meaning of Section 25 of the Evidence Act.109 The words “made to

a police officer” does not merely cannot ‘the making of a statement in the

abstract or only notionally but contemplates some, positive nexus between the

two the making of a statement and the police officer.

To construe the word “made” only to connote the physical, act of

writing or speaking of the, statement or narration is to narrow does the
connotation of the bunch of the words “statement made by any person to
police officer.” The intention of the Legislature was only to protect the
accused and the other persons from being prejudicially affected by any
dishonest or questionable methods of the police officers in forcing or devising

109 The same would be the position under the provisions of Section 162, Criminal Procedure
Code
 '147

or influencing a statement from an accused or from any other person. The

Legislation had not intended to debar a statement, if not made to a police

officer though it may be addressed to a police officer which is recovered by a

police officer during the course of investigation but with the making of or

bringing into existence whereof the police had no direct or indirect hand or
connotation of any sort, till it was so recovered. In such a case the

communication even if it is intended to be made to a police officer is clearly

just addressed to a person in authority and cannot by any stretch of

imagination be said to have been influenced by the police officer in any
manner so as to be deemed to be involuntary.
The accused wrote out a statement addressed to the Deputy

Superintendent of Police but without communicating the same to the police

intended to commit suicide and kept the statement in his pocket in order that it

may be found from him after his death and the police may know the truth. The
court held in Himmat Singh Bhadar Singh v. State,110 that it would be

justifiable to assume that there was no intention to make or to communicate

this statement to the police during his life time at all. These facts, therefore,
would not reveal any positive intention on the part of the accused to actually

make that statement to the police. Even, if it were possible to assume from the
language used that when he wrote it out, he had an intention to go to the police

and hand it over as his statement or when the police came to arrest him to hand
it over even then the fact that he did not do either would show that he had no

intention to make or communicate that statement to the police. Such a

statement cannot be said to have been made to the police. A letter addressed to
the Sub-Inspector was signed by the accused in Urdu*111 it reads thus:

110 AIR 1965 Gujarat 302.

111 AIR 1965 SC 1906.
 148

“I have myself committed the murder of my wife Smt. Sindura Rani.

Nobody else perpetrated this crime. I would appear myself after 20 or 25 days

and then will state everything. One day the law will extend its hands and will

get me arrested. I would surrender myself.”

This letter was found on a table near the dead body of Sindura Rani.
The appellant challenged the admissibility of this letter on the around that it

amounts to a confession to a police officer and that, therefore, Section 25 of

the Evidence Act renders it inadmissible in evidence. It was held in Punja

Mava v. State of Gujarat,112 that the objection was not well founded. No doubt

the letter contains a confession and is also addressed to a police officer but the
police officer was not nearby when the letter was written or knew that it was
being written. In such circumstances quite obviously the letter would not have

been a confession to the police officer if the words “Sub-Inspector” had been

written there. It would, still have not been a confession made to a police

officer for the simple reason that it was not so made from any point of view. It

is, therefore, clear that there must be some communication to a police officer
for the purpose of showing that the statement made to a police officer.

The main expression to be construed under Section 25 is the confession

made to a police officer and not in the hearing of a police officer. If a

confession is made to a person who is not a police officer.. Section 25 of the

Evidence Act would not apply to it even though a police officer may have
overheard it. If the accused made a statement before he was accused for any
offence, to a private individual, in the presence of a chowkidar, whom the

court termed as; a police officer but the statement was made without any
pressure or questioning by the chowkidar to the accused. In Emperor v.

112
AIR 1965, Gujarat 5.
 149

Shankar,113 the court said that it is not right to hold that a confession made to a

private individual in the presence of a chowkidar is in every case admissible in

evidence, yet where it is not shown that he chowkidar has in any way

influenced the accused, who is not in custody to make a confession and where

a chowkidar has taken no part in bringing about the confession of the accused,
then such a confession made to a villager in the presence of a chowkidar

would not come within the mischief sought to be averted by Section 25,

Evidence Act and would be admissible in evidence.

In R. v. Sangona,lH the court held that a police officer overheard the

accused’s confession though made in another room in ignorance of the

policemen’s vicinity and uninfluenced by it. The statement was held to be
legally admissible.
In Sahoo v. State of U.P.ns where the accused had been overheard

muttering something to himself or saying it to his wife or to any other person

something in confidence, his statement so made was held to be admissible in

evidence.

4.29 Confession Inadmissible if made to a Police Officer at any Time

before or after the Investigation

The words of Section 25 Evidence Act are wide enough to exclude any
confession to a police officer. Thus a confession made to a police officer at
any time that is either before commencement of investigation or after, is
inadmissible. Further in Hussain v. Emperor,116 it was said that the confession
need not be a confession of the crime under investigation. In Kodangi v.
Emperor,117 it was held that even a confession to the police officer of an

113 AIR 1934 Oudh 222.

114 7 W.R. 56 (Cr.)
115 AIR 1966 SC 40.
116 AIR 1936 Lah. 360.
117 AIR 1932, Mad. 24.
 150

offence other than the one under investigation during the investigation of the
latter offence is inadmissible. For example if A says to the police officer. “I
noticed B murdering X while I was murdering Z.” There is a confession of A
that he murdered Z. As it is undoubtedly a confession made to a police officer
even though made during the investigation of the murder committed by B. It is
inadmissible under Section 25, Evidence Act. in re Elukuri Seshapani
Chetty,m the court said that the whole spirit of Section 25. Evidence Act is to
exclude confession to the police and the movement a statement is found to
amount a confession it matters not in the slightest of what crime it is said to be
a confession. The provisions of Section 25 are unqualified. It indicates an
absolute rule of exclusion relating to confession made to a police officer.
4.30 Confession made in the F.I.R. is Inadmissible
When an accused himself turns up at the police station and lodges the
First Information Report with regard to an offence committed by him the fact

of his giving the information is admissible against him as res gestae. If the

information is non-confessional it is admissible as an admission under Section

21. But in the case of Aghnoo Nagesia v. State of Bihar,119 it has been held that

a confessional FIR by the accused to the police cannot be used in evidence

against him in view of Section 25. It has been held in Banarsi Dass v. State of
Punjab,120 that if the First Information Report made by an accused person

contains facts relating to motive preparation and opportunity to commit the

crime with which he is charged and the facts reacted therein are self-
inculpatory in the sense that the narrative describing the relation between the
accused and the deceased gives the motive for the crime with which the

accused is charged, the whole statement must be treated as a confession made

to a police officer and would be hit by section 25.
118
AIR, 1937 Mad. 209.
119
AIR 1966 SC 199.
120
1981 Cr. L.J. 1235 (P&H).
 i.

In Legal Ram v. Lalit,m it was held that the confessional part and the non­

confessional part whether amounting to admission or not may be separated and

only the confessional part should be excluded.
It was held in State of Rajasthan v. Shiv Singh,122 that if there is a

confession of the accused pure and simple in the First Information Report
made by him, the entire First Information Report is inadmissible in evidence.
If in addition to the confession it contains certain other matters which are

relevant to the inquiry in the crime they may be taken into evidence as
admission of the accused but care must be taken to see that such statements are

not a part of the narrative of confession. A confessional statement does not

mean only that portion of the statement in which the commission of the actual

offence is referred to. If the accused has made a confession admitting that he
had committed an offence and at the same time further gives the details of the

preparation which he had made for the commission of the offence. It cannot be

said that the portion that relates to the preparation of the offence or other

activities of the accused in the matter of the commission of the offence,can be

read in evidence and only that portion which relates to the actual commission

of the offence is inadmissible. The entire narrative in such a case is

inadmissible. If the first information report made by an accused person

contains facts relating to motive, preparation and opportunity to commit the

crime with which he is charged and the facts recited therein are self-
inculpatory in the sense that the narrative describing the relations between the

accused and the deceased gives the motive for the crime with which the

accused is charged the whole statement must be treated as a confession made

to a police officer and would be hit by Section 25. A narrative disclosing

121
49C 167.
122
AIR 1962 Raj. 3.
 152

strained relations between the accused and the deceased or referring to an

event that occurred several days before the occurrence in the First Information

Report given by the accused being a statement disclosing motive for the crime
is inadmissible under Section 25 of the Evidence Act.123

It was held in Pakala Narayan Swami v. Emperor,124 that in judging

whether a statement made by an accused in the First Information Report

amounts to a confession or not it has to be seen whether it is self-inculpatory

as a whole or whether it contains some exculpatory matter relating to a fact

which, if true, would establish his innocence. If it is of exculpatory nature then

it cannot be deemed. On the other hand if it is self-inculpatory one as a whole,

then it amounts to a confession.

However, the court pointed out that if the First Information Report is

given by the accused to Police Officer and amounts to a confessional statement

the proof of the confession is prohibited by section 25. The confession

includes not only the admission of the offence but all other admissions of

incriminating facts related to. offence contained in the confessional statement.

No part of the confessional statement is receivable in evidence except to the

extent that the ban of Section 25 is lifted by Section 27. The court said that not

even a single case of this Court or of the Privy Council is there on the question
which may suggest that apart form Section 27 of a confessional First

Information Report given by an accused is receivable in evidence against him,

therefore, save and except as provided by Section 27 and save and except the
formal part identifying the accused as the maker of the report, every part of a
confessional First Information Report is hit by Section 25 of the Act and no

part of that could be tendered in evidence.

123
Ram Sajiwany. State, AIR 1964 AIL 447.
124
AIR 1939 P.C. 47.
 153

4.31 Submission is not Correct Approach

It is, however, submitted that this is yet another absurd implication of

the rule of total exclusion. When a person commits an offence, his natural

tendency would be to keep away from the police at lest as long as he can

manage. On the other hand a person who has not committed the offence is

least likely to go himself to the police station when the police does not even

know about an offence being committed and implicate himself. An accused

lodging a confessional FIR will do it only in one situation, i.e. when he is in

fact repentant about it. Then, if he also describes his motive the mode of

commission of the offence etc. there'-is hardly any chance of its being

untruthful. Till the stage of his making this statement, the police has not at all

come into the picture. The statement cannot therefore, be said to have been

influenced by the police in any way directly or indirectly. Thus both the

situations often cited as justification for the rule i.e. the statement may be

involuntary due to the presence of the police and that the statement may be

false are absent.

There is yet another aspect of the matter. In such a case the whole fact

of the offence being committed is discovered only by virtue or the statement

made in the FIR-by the accused. Whatever the accused tells to the police are

all facts which were never in the knowledge of the police and are discovered

for the first time only because of the statement. The whole of the statement

should therefore, be admissible under Section 27 of the Evidence Act.

Whether the statement was actually made to the police or not is a

separate question and has to be decided in trial. But total exclusion of such a

statement from being proved can hardly be justified by the reasons given for

existence of Section 25.

 154

4.32 Confessions in Police Custody - Section 26

Section 26 carries the theory of deemed involuntariness due to presence

of police still further and bars any confessions made by the accused to

anybody except in the presence of a Magistrate. The presence of a Magistrate

is supposed to negative the influence of police custody on the mind of the

accused and to serve as a safeguard for him to feely exercise his option to
make a confession or not except when made in presence of a Magistrate, a

confession made by an accused whilst he is in police custody to any person be

it a fellow prisoner, a doctor or a visitor is inadmissible in evidence.123

Mehmood J. has observed in Q. v. Babu Lal,m that Section 25 and 26

lay down two clear and definite rules. In Section 25 the criteria for excluding a

confession is the answer to the question. “To whom was the confession

made?”, if the answer is that it was made to a police officer, the confession is

absolutely excluded from evidence. On the other hand the criterion adopted in

Section 26 is the answer to the question. “Under what circumstances was the

confession made?” If the answer is that it was made whilst the accused'was in

custody of a police officer the law lays clown that such confession shall be

excluded from evidence unless it was made in the immediate presence of a

Magistrate. .

4.33 Police Custody

Common connotations of the word ‘custody’ are a state of being

guarded or watched to prevent escape, restrain of liberty, confinement. It

would therefore be seen that the immediate presence of the custodian is not

necessary. !

Narayan Swami v. Emperor AIR 1939 PC 47.

6A 509 (FB).
 155

In Parho Sahiwal v. Emperor,121 it was held that the word custody has

not been defined in the Evidence Act. But the ordinal meaning is sufficiently
clear. Two things there must be first there must be some limitation imposed

upon the liberty of the confessor; secondly this limitation must be imposed

either directly or indirectly by the police. Under Section 26 there is no

necessity to prove a formal arrest. It would be sufficient to constitute police

custody if the accused is present before the police and cannot depart as his
own free will. It must be pointed out that there is a distinction between an

accused being “under arrest” and an accused being “in custody”. The learned
judge pointed out the danger of construing the expression police custody in

Section 26 of the Evidence Act in a more narrow technical sense as

commencing from the time when the accused is formally arrested.1,28 The

learned judge said that the correct interpretation would be that as soon as an
accused or suspected person comes into the hands of a police officer he is in

the absence of any clear and unmistakable evidence to the contraiy, no longer

at liberty and is therefore, in “custody” within the meaning of Section 26 and

27 of the Evidence Act. Even indirect control over the movements or suspects
by the police would amount to “Police Custody” within the meaning of this
Section.129
In Jai Ram Ojha v. State,130 a constable who was engaged on beat duty

in neighbouring village soon after committing of the offence, came to the spot,

kept guard over the dead body , as some foul play was suspected. He was also

guarding the accused so that he may not run away. It was held by the court that
the accused was under surveillance or the police constable and that any

127 AIR 1932 Sind 201.

128 Mitang Lay v. Emperor AIR 1924 Rangoon 173.
129 Haroon v. Emperor AIR 1932 Sind 144.
130 AIR 1968 Orr. 87.
 156

confession made by the accused under surveillance would be hit by Section 26

of the Evidence Act as confession made under “Police Custody”.

In State of U.P. v. Deoman Upadhyay}31 the court held that when a

person not in custody approaches a police officer investigating an offence and

offers to give information leading to the discovery of a fact having a bearing

on the charge which may be made against him he may appropriately be

deemed to have surrendered himself to the police. State 46 of the Criminal

Procedure Code does not contemplate any formality before a person can be

said to be taken in custody, submission to the custody by word or action by a

person is sufficient. A person directly giving to a police officer by word of

mouth information which may be used as evidence against him may be
deemed to have submitted himself to the ‘Custody’ of the police officer. In
State of Maharashtra v. Mohd. Hussain Ismail,132 the court held that a person

goes to a police officer and makes a statement which shows that an offence has

been committed, by him. The accuses himself and though formally he is not

arrested since he is not fee to move wherever he likes after disclosure of the
information to the police he must be deemed to be in police custody. The fact

that the accused was interrogated and that he made a statement and led the

panchas and the police officei; to a field and therefore, produced certain articles

which were the subject matter of dacoity was sufficient to establish that there
was submission on his part to, police custody. It was held in Bakshia Mukila v.
State ofBombay}33

In short it can be said that it is now well settled that “Police Custody”

for the purpose of Section 26 or Section 27 of the Evidence Act does not mean

formal custody but includes such State of affairs in which the accused can be
131
AIR 1960 SC 1145.
132
AIR 1959 Bom. 534.
133
AIR 1950 Bom. 263.
 157

said to have been under some sort of surveillance or restriction and does not
commence only when the accused is arrested but would commence from the

moment when his movements are restricted and he is kept in some sort of
direct or indirect police surveillance.134

It is also well settled in Paramhans Jadad v. State,135 that if once police

custody has commenced the mere fact that for a temporary period the police

discretely withdraws from the scene and left the accused in 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 of other the police officer happens
to be temporarily absent and during his 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.136

Under Section 26 of Evidence Act, it is immaterial whether the, police

held the suspected person or the accused under legal custody or under an

illegal custody. An illegal custody is ‘custody’ for the purpose of Section 26.

Thus, a confession article by an accused person while he was in illegal custody

of the police suffers from the same defects which Section 26. Evidence Act

intends to avoid. So a confession made by an accused under such

circumstances is also inadmissible in evidence as the illegality of the arrest

does not make Section 26, Evidence Act inapplicable. In fact, there is more

justification to exclude such confessions than when made in legal custody.

The crucial test, therefore, is whether at the time when a person makes

an extra-judicial confession he is a free man or his movements are controlled

134
Chottelal v. State AIR 1954 All. 687.
135
AIR 1964 Orr. 144.
136
Emperor v. Nat Jagia (1938) 17 Pat. 369.
 158

by the police either by themselves or through some other agency employed by

them for the purpose of securing such a confession.

4.34 Police Officer

The expression police officer in Section 26 of Evidence Act has the

same meaning as. in Section 25 of Evidence Act.

4.35 In the Immediate Presence of a Magistrate

It was held in Sideshwar v. R,131 under this section the confession of an

accused to be admissible in evidence must be made in the immediate presence

of a Magistrate. A confession made to a Magistrate himself conforms to the

requirements of this section but if the confessor is made to a third person the
presence of the Magistrate is necessary. It was further held in Jograj v. R.m

that the section does not make the admissibility of the confession dependent

upon the knowledge of the accused as to the identity of the Magistrate, the

main consideration being the presence of the Magistrate and the making of the

confession in his presence. The proposition is however doubtful because

ignorance of the accused about the presence of the Magistrate still not remove

the traumatic influence of police custody from his mind for him to exercise his

free will within the matter of making a confession. The confession made in the

presence of a Magistrate does not become inadmissible for the mere reason

that the accused had been in the custody of the armed constable. Ordinarily a

Magistrate should not keep the accused in charge of the armed policeman

unless for reasons to be recorded that he is satisfied that there was risk and

danger to life. As far as possible, the accused should be kept in charge of the

Magistrate’s own staff. Where the police officer took the Magistrate with him

AIR 1934 All 351.

AIR 1930 Lah. 534.
while the police officer was conducting his investigation the evidence of the

Magistrate as to what happened is not admissible under Section 26. It is

unobjectionable, if a Magistrate arrived out such an investigation himself but

for a Magistrate merely to accompany a police officer while the police officer

is making the investigation does not render the evidence of what happened
admissible under the Evidence Act.139

4.36 Magistrate

The word ‘Magistrate’ in Section 26 Evidence Act is not used in any

restricted sense. The word is not confined to Magistrate specially empowered

under Section 164 of the Code of Criminal Procedure but includes all

Magistrates who are empowered under the Code of to Criminal Procedure.

Under Section 26 courts are not precluded from taking into consideration

confessions made by prisoners in police custody to Magistrate in England or in

a foreign country the definition of ‘Magistrates’ in the General Clauses Act not

being confined to Magistrates exercising jurisdiction over a particular area.140

It is, however, submitted that if the word Magistrates is extended to include

even Magistrates of foreign countries it would be stretching the meaning of the

word ‘Magistrate’ used in Section 26 too far. The Act being limited in its

application to the territory of India its provisions also, unless specifically

mentioned can have no application to Foreign Territories. Under this section,

Magistrates though on leave and not in the district in which they have been

exercising jurisdiction are Magistrates within the meaning of Section 26 of

Evidence Act. Therefore, it is sufficient for the purposes of Section 26 of

Evidence Act to admit the confession. If the same has been made in the

139
Mst. Gajrani v. R. AIR 1933 All. 394.
140
Panchnathan v. R. AIR 1929 Madras 487.
 160

presence of a Magistrate, may be of any class or has no jurisdiction over the

place where the confession was made.141

4.37 Relationship between Sections 25 and 26 of Evidence Act

It is fairly clear form the plain language of the two provisions that

Section 25 prohibits evidence being given of any confession made by an

accused person to any police officer. Thus confessions made to police officers

are excluded in all circumstances, while confessions made even to other

person are excluded if they are made when the accused was in police custody.

In case of confessions being made in the presence of a Magistrate, the same if

made to a police officer has to be excluded from evidence under Section 25.

Only if the confession is made to the Magistrate himself or to any other person

in his presence, it is admissible under Section 26. The words unless it be made

in the immediate presence of a Magistrate occurring in Section 26 certainly do

not qualify section 25. The prohibition of Section 25 is absolute.

4.38 Critical Appraisal

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 acciised 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

141
R. v. Vahala 7 Bombay H.C. 56.
 161

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. A brief study about

the relevance of the statement of the accused made in the next chapter.

—o —