Confession under BSA 2023: Sections 22-24 Judicial, Extra-Judicial Explained

Confession means admission of guilt by the accused. The term ‘confession’ has not been actually defined anywhere in the Evidence Act. The definition given by Sir James Stephen was acted upon by all the courts in India until 1939 when the Privy Council disapproved it in the case of Pakla Narayan Swami v King Emperor.

Sir James Stephen’s Definition:

“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.”

Drawbacks of Sir James Stephen’s Definition:

1. The word ‘at anytime’ in the definition appears to be too wide as they include statements made before the crime was committed. A statement made by an accused before he committed the crime can only refer to his intention to commit the crime and, hence, it cannot amount to a confession
2. According to Stephen’s definition, any admission which is capable of giving rise to an inference as to the guilt may amount to confession. This means that even acknowledgement of subordinate facts can also amount to confession. For instance, A said "I bore ill will towards B and went to his house with a knife with an intention to kill him”. Here even if A had a change of mind and did not kill B but some other person did, B’s statement can still be considered as confession according to Stephen’s definition, as it suggests an inference that he committed the crime.
3. Stephen’s definition had the potential to make an innocent person guilty.

Confession as defined in Pakala Narayana Swami v Emperor by Lord Atkin:

“A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence”.

According to this definition confession is either admission of guilt in a strict sense or admission of all the facts (ingredients) which constitutes an offence. This definition has been widely accepted by the subsequent judicial pronouncements.

Confessions containing both exculpatory and inculpatory statement

Inculpatory statement means a statement which is of self incriminating nature, on the other hand exculpatory statement means a statement which shows that a person is innocent.

For example, A person admits that he killed B but in private defense. Here the first part that he killed B is an Inculpatory statement and the second part that he killed B in private defense is an exculpatory statement.

Lord Atkin in Pakala Narayana Swami v Emperor (1939) observed that “no statement that contains self exculpatory matter can amount to confession”.

In Palvinder Kaur v State of Punjab (1952), SC held that “a confession must be accepted as a whole or rejected as a whole, and the court is not competent to accept only the inculpatory part and reject the exculpatory part”.

In Nishikant Jha v State of Bihar (1959), the court made a departure from previous rulings and held that if the exculpatory part is unbelievable and is contradicted by other evidence, the court can reject it and rely on the inculpatory part after corroborating with other facts. In India we do not follow the English law principle: falsus in uno, falsus in omnibus (false in one respect, false in all). The Court need not accept or reject the statement of the accused in its entirety and it can rely on one part and reject the other.

Whether intention to communicate is necessary for a confession to be admitted as evidence?

In Sahoo v State of UP, Justice K Subbarao observed - “Communication is not a necessary ingredient to constitute a confession, a statement whether communicated or not, admitting guilt is nevertheless a confession.” Confession would be admissible even if an accused has been overheard by others muttering to himself.

Thus, even if there is an intention not to communicate on the part of the accused and to keep it secret, as in the case of a confession made in a personal and private diary, it can be adduced in a court of law in proof of guilt.

Kinds of Confession

1. Judicial Confession

Judicial Confession is a confession made before judicial authority. For example, confession before Judicial Magistrate under Section 183 of BNSS during investigation or pleading guilty before the court during the trial.

Evidentiary value of such confession is strong and can be relied upon without any further corroboration.

2. Extra Judicial Confession

A confession made to anyone other than judicial authority is known as extra judicial confession.

In Balwinder Singh v State of Punjab (1995), the Court held that Extra-judicial confession requires great deal of care and caution before acceptance. There should be no suspicious circumstances surrounding it.

In State of Rajasthan v Raja Ram (2003), Court held that reliability of extra judicial confession depends upon the veracity of the witnesses to whom it is made and witness must be unbiased and not even remotely inimical to the accused.

In Sansar Chand v State of Rajasthan (2010), SC reiterated that extra-judicial confession should be corroborated by some other material on record.

Distinction between Judicial Confession and Extra-Judicial Confession

Confessions must be voluntary

It is said 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."

A confession, like admission, is considered relevant because it is a self-harming statement and nobody would make a statement harming his interests unless it is true. Hence, "the confessional statement should pass the twin tests of voluntariness and truthfulness." A confession is said to be voluntary when it is made without "fear of prejudice or hope of advantage." It is said, "voluntariness, being the warrant for veracity, is sine qua non of confessions". The very justification of admitting a confession is that it is made willingly and out of free consent, and this rationale is destroyed if it is obtained by coercion or inducement.

Furthermore, our Constitution provides right against self incrimination to accused under Article 20 (3). Therefore involuntary confession of accused are considered to be irrelevant. Confession cannot be procured through the exercise of coercion, undue influence etc.

Confession caused by inducement, threat or promise - Irrelevant

Confessions made under inducement, threat or promise to a person in authority are declared as "irrelevant" in a court of law by section 22 of the Bharatiya Sakshya Adhiniyam, 2023.

Essential ingredients of the section are as follows :

1. Confession has been obtained by reason of any inducement, threat or promise
   It is apparent from the language of section 22 that it is sufficient if it "appears" to the Court that the confession was caused by inducement etc and it is not necessary that it should be "proved". If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer.
   In Vinod Solanki v UOI (2009), it was that "the burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc if the same is to be relied upon solely for the purpose of securing a conviction."
2. Inducement, threat or promise must proceed from a person in authority
   In Motilal v Kailash Narain (1960), the Court held that “it appears that a person in authority within the meaning of Section 22 should be one who by virtue of his position wields some kind of influence over the accused.”
   A mukhiya, Pradhan, Intelligence officers, Magistrate, Custom and Excise officer, Zamindars, Employer, Master have been held to be persons in authority.
   The real test under section 22 is not only that the confession was made to a person in authority but that the confession was actually made under the impact of the inducement, threat or promise held out by such a person.
3. Inducement, threat or promise must have reference to the charge against the accused
   The inducement, threat, or promise must be connected specifically to the crime the accused is being prosecuted for. It's not just any general threat or promise; it must be related to the outcome or consequences of the case. Example 1 - if the Magistrate says to the accused that if you confess, God will forgive you. This has no reference to the criminal charge or the legal proceedings. It is not a promise or threat that would affect the legal case, so the confession may still be admissible.
   Example 2 - Magistrate tells the accused: "If you confess to the theft, the court might go easy on you.” Here, the promise of a lighter punishment is directly related to the charge of theft, and if the accused confesses based on this hope, the confession may be inadmissible.
4. Such inducement, threat or promise must, in the opinion of the court, be sufficient to give the accused person hope of gaining any advantage or avoid any evil of a temporal nature in reference to the proceedings against him

Confession made after removal of impression caused by inducement, threat or promise - Relevant

If such a confession as is referred to in section 22 is made after the impression caused by any such inducement,threat or promise has, in the opinion of the court, been fully removed, it is relevant. There must be strong and cogent evidence that the influence of the inducement has really ceased. Such an impression of threat or inducement may cease to be operative due to lapse of time or death or retirement of a particular person in authority etc.

Confession Made to a Police Officer

A confession made to a police officer is generally considered irrelevant and cannot be used as evidence against the accused person.

Section 23(1) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) explicitly states: “No confession made to a police officer shall be proved as against a person accused of any offence.”

Rationale for Exclusion

The involuntariness of the confession is presumed under Section 23(1), unlike Section 22 (BSA) where inducement, threat, or promise must be proved. The main objective of this exclusion is to prevent police officers from using illegal means (like torture or extortion) to secure confessions and convictions.

In Queen Empress v. Babulal, the Privy Council observed that the main object of this exclusion is to prevent police officers from extorting confessions to gain credit by securing convictions.

Interpretation of "Made to a Police Officer"

For a statement to be inadmissible under Section 23(1) (BSA), it must be considered a confession that was made to a police officer. This is interpreted to mean a bilateral affair where the police officer is the recipient of the statement, and the accused is under some sort of influence (physical or mental) of the officer.

In Punja Mava v. State (1965), a confession was deemed admissible when the police officer was merely present in a crowd when the accused made the confession, and the statement was not specifically addressed or made to him. In this scenario, it was held not to be hit by Section 23(1) (BSA).

In Sitaram v. State of UP, the court held that a confessional letter addressed to the police but intercepted in the latter's absence could not be considered a confession made to a police officer, as there was no direct communication link at the time of making the confession.

Confession Made in Police Custody

The law places strict limitations on confessions made by an accused while they are physically or mentally restrained by the police, as the environment of police custody is inherently coercive and raises the suspicion of involuntariness.

Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs this aspect - “No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him.”

Police Custody

The term "custody" is interpreted broadly to mean any form of restraint or surveillance by a police officer, and is not limited to formal arrest. The overarching principle is that whenever the accused's liberty is curtailed or they are under the direct physical or psychological control of a police officer, they are deemed to be in "police custody" under Section 23(2). This is to neutralize the pressure an accused person faces in the presence of a police officer.

In Emperor v Mallangowda – An undertrial prisoner was taken to a dispensary for the treatment of an ailment and the two policemen who accompanied him waited outside while the accused was being examined by the doctor. During the examination the accused made confession to the doctor which was held to be barred as the accused was deemed to have been in the custody of Police.

State of Rajasthan v. Bhup Singh (1997)
The Court held that "police custody" under this section does not necessarily mean formal arrest. As soon as a person’s movements are restricted by the police and they are under surveillance, they are in "constructive custody.”

In State of Haryana v Dinesh Kumar (2008) SC held that a person who is arrested is necessarily under custody, but a person who is under custody need not have been arrested.

Exception (Immediate Presence of a Magistrate):

A confession made while in police custody is admissible if it is made in the immediate presence of a Magistrate.

The presence of the Magistrate acts as a powerful safeguard against police coercion. The Magistrate's duty is to ensure the confession is made voluntarily, often by asking the accused questions to ensure there is no fear, threat, or inducement.

Confessional Statement given in Police Custody which leads to discovery of fact

Section 23 generally dictates that confessions made to police officers or while in police custody (unless in the immediate presence of a Magistrate) are inadmissible. However, the Proviso serves as a significant exception to this rule.

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

Doctrine of Confirmation by Subsequent Events

The Proviso follows the Doctrine of Confirmation by Subsequent Events. This doctrine suggests that while we generally distrust statements made to the police, if those statements lead to the discovery of a physical object, the discovery "confirms" that the statement was likely true.

Essential Ingredients for Section 23 Proviso

To invoke this proviso and make the information admissible in court, the following conditions must be met:

1. Discovery of a "Fact"
   In consequence of information received by the accused a relevant physical object (the "fact") must be discovered (e.g., a weapon, blood-stained clothes, or a hidden body).
   In Pulukuri Kottaya v. Emperor (1947), the Court held that the term "fact discovered" does not merely mean the physical object itself. It encompasses:
   • The place from which the object is produced.
   • The knowledge of the accused as to where the object was hidden.
2. Information from the Accused
   The discovery must be the direct result of information provided by the accused person.
   In Pandurang Kalu Patil v. State of Maharashtra (2002), The Supreme Court held that the "fact discovered" must be a relevant fact and the discovery must be a direct consequence of the information. If the police already knew where the object was, it becomes a "staged" recovery, not a "legal" discovery.
   In Navaneethakrishnan v. State (2018), The Court emphasized that Section 23 is only applicable if the statement leads to the discovery of a new fact previously unknown to the police.
   Md. Inayatullah v State of Mysore – Where the incriminating articles are alleged to have been recovered in consequence of information from accused from a public place which is accessible to all, the evidence of such recovery cannot be made admissible.
   In Bodh Raj v. State of J&K (2002), the Court held that If several accused persons give information simultaneously, the information given by the first person is generally the only one admissible under the discovery rule, as the "fact" is already discovered after the first statement.
3. In Police Custody
   The accused must be in the custody of a police officer at the time of giving the information. If the information is given by person not in custody of the police, then any subsequent discovery of fact will not attract this proviso.
   In the State of U.P. v. Deoman Upadhyaya (1960), constitutional validity of Section 27 was challenged vis-à-vis Article 14 of the Constitution as it differentiated between people in custody and those not in custody. The court upheld the validity of the proviso, stating it does not violate Article 14 (Right to Equality) of the Constitution:
   • The distinction between persons in and out of custody is a reasonable classification, not arbitrary discrimination.
   • Information from a person in custody is handled with higher caution, and the "discovery" acts as a necessary guarantee of truth.
   • A person voluntarily approaching police to give information leading to discovery is treated as being in custody for the purpose of the section.
4. Information must distinctly relate to the fact discovered
   Only that portion of the information which relates distinctly to the fact discovered is admissible.
   In Pulukuri Kottaya v. Emperor (1947), The court clarified that only the portion of the statement that leads directly to the discovery is admissible.
   In Mohd. Inayatullah v. State of Maharashtra (1976), the Supreme Court clarified Section 27 of the Indian Evidence Act, holding that only the portion of an accused's statement made in police custody that distinctly and directly leads to the discovery of a fact is admissible; general confessions or background information are excluded, ensuring only the information proximately causing the discovery is proven, thereby preventing misuse of confessions.

Constitutionality of Section 27 IEA (now proviso to 23(2)) vis a vis Article 20 (3) of the Constitution:

State of Bombay v Kathi Kalu Oghad : SC held that mere fact that information which led to discovery of fact was given in Police custody does not per se means that compulsion was used. Article 20(3) gives protection only when the compulsion was used. If the compulsion was used then on proof of it such information will be considered inadmissible. Hence, Section 27 is constitutional vis a vis Article 20(3).
In Selvi v. State of Karnataka (2010), the Supreme Court held that involuntary narco-analysis, polygraph, and brain mapping tests violate fundamental rights (Articles 20(3) and 21) and are impermissible; however the court acknowledged that while the results of involuntary tests aren't evidence, a statement made during a consensual test that leads to a significant discovery (e.g., a weapon) can still be used as evidence under Section 27.

Confession by Co-Accused (Section 24)

Section 24 states that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Essential Ingredients for Section 24:

1. Joint Trial for the Same Offence
   The accused persons must be tried jointly for the same offence. If the accused are tried separately, the confession of one cannot be used against the other.
2. The confession must affect the maker and the co-accused
   The confession must be incriminatory against both the person making it, and the co-accused. If it only implicates others and not the maker himself, it will not fall under Section 24.

Evidentiary Value of Confession by Co-Accused

The phrase used in the section is "may take into consideration.” The language is discretionary i.e. the Court is not bound to rely on such confession. The Court must exercise caution and ensure independent corroboration.

In Bhuboni Sahu v. The King (1949), The Privy Council held that a confession of a co-accused is of a very low evidentiary value as it comes from a tainted source. It cannot be used to fill the gaps in the prosecution's case.

In Kashmira Singh v. State of Madhya Pradesh (1952), the Supreme Court observed that :

• Confession of co-accused is not substantive evidence.
• It can only be used to lend assurance to other independent evidence.
• The court must first examine other evidence and see if it proves the case.
• Only thereafter can confession by co-accused be used as corroborative evidence.

In Pancho v. State of Haryana (2011), SC reiterated that a conviction cannot be based solely on the confession of a co-accused. Such confessions must be looked cautiously and cannot be relied upon without independent corroboration.

Retracted Confession

A Retracted Confession occurs when an accused person, who previously made a voluntary confession, later repudiates or denies it during the trial, claiming it was made under duress, inducement, or threat.

Nature and Evidence Value of Retracted Confession

A retracted confession is a "weak type of evidence.” As a matter of prudence, courts generally do not base a conviction solely on a retracted confession unless it is corroborated by other independent evidence.

When dealing with a retracted confession, the court applies a dual test:

• Is it voluntary?
• Is it true?

In Pyare Lal Bhargava v. State of Rajasthan (1963), the Supreme Court held that a retracted confession may still form the legal basis of a conviction if the court is satisfied that it was true and voluntarily made.

In State of Maharashtra v. P.K. Pathak (1980), SC held that if a confession is retracted at the earliest possible opportunity (e.g., during the first production before a Magistrate), its value is significantly diminished. If it is retracted very late in the trial, the court may view the retraction as an afterthought.