TOPIC –CONFESSION BEFORE A POLICE OFFICER AND ITS

VARIOUS DIMENSIONS

INDIAN EVIDENCE ACT – RESEARCH PAPER

SUBMITTED TO:

DR. SHUBHAM SRIVASTAVA SIR

ASSISTANT PROFESSOR

NUSRL, RANCHI.

SUBMITTED BY:

ABHISHEK KUMAR

ROLL NO – 1030

SECTION – ‘B’

SEMESTER – V

NATIONAL UNIVERSITY OF STUDY AND RESESRCH IN LAW, RANCHI

The evidentiary value of a confession made before a police officer has been a constant source
of debate within Indian jurisprudence, primarily because of the weighing of the scales that must
take place; is limiting the admissibility of a confession, with the intent to minimize police
brutality and forced confessions a more important factor than ensuring all crimes are punished,
even in instances where the only possible route to a conviction is through a confession during
interrogation? This paper seeks to examine the existing position of the law on this matter, and
critically analyse this position, suggesting ways it may be improved.

Keywords- Indian Evidence Act, Police Officer, Criminal Law, Conviction, Confession,
Police Brutality, extrajudicial confessions, Section 25, Evidence Law.

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 Introduction

A confession, under the Indian law, are a form of admission of guilt under the Indian Evidence
Act.1 While the Evidence Act does not define a confession itself, they have generally been
defined in Indian jurisprudence as an admission of facts that constitute an offence.2 Confessions
are regulated depending on the circumstances that surround the confession itself viz. whether
it is made before a Court of Law (acting as a judicial confession) 3 or whether it was made
before any entity other than a Court of Law (acting as an extrajudicial confession). 4 Of
relevance to this paper are extrajudicial confessions, particularly those made before a police
officer.

That being said, as is true for any modern day democracy, there are certain rights given to those
who have been accused of a crime. As part of the rights they are entitled to, all those accused
of a crime are entitled to the right against self-incrimination.5 Due to protections such as this
(alongside the other rights of the accused under law), and with the intent to minimize the
number of disingenuous confessions (such as those made under duress),6 the evidentiary value
of a confession made before a police officer is regulated extensively in Indian jurisprudence.

What comprises a Confession?

As noted earlier, a confession under Indian law is an admission of facts that constitute an
offence. However, the specific contours of what comprises a “confession” have been described
in more explicit detail by the Supreme Court since then.

Provided it is within the context of the offence the accused is being charged with 7 and
irrespective of which portion of the statement it may be,8 if a person admits all the facts that
would constitute the relevant corpus delicti, it acts as a confession9 provided it was made before
the Court i.e. a judicial confession.

THE EVIDENTIARY VALUE OF CONFESSIONS

1
The Indian Evidence Act, s. 24, No. 1, Acts of Parliament, 1872.
2
Gargi v. State of Haryana, (2019) 9 SCC 738.
3
Arghya Sengupta, Confessions in the Custody of a Police Officer: Is it the Opportune Time for Change? 18
STUD. BAR REV. 31 (2006).
4
Ibid.
5
INDIA CONST. art. 20(3).
6
Arghya, supra note 3, at 34.
7
Pakala Narayan Swami v. State of Punjab, AIR 1939 PC 47.
8
Nishi Kant Jha v. State of Bihar, (1969) 1 SCC 347.
9
Palvinder Kaur v. State of Punjab, 1953 SCR 94.

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The evidentiary value of a confession itself may vary vastly with the circumstances in which it
has been made,10 as has been noted earlier. However, it is relevant at this stage to distinguish a
confession from an admission; while a confession may act as an ‘admission’ of guilt to the
offence itself, an admission concerns itself more generally with the independent facts that may
assist the Court in assessing the guilt of the accused.11

Moving on to the evidentiary value of such confessions themselves, a judicial confession i.e.
one made before the Court is entirely admissible and such a confession alone may act as the
piece of evidence on the basis of which the accused may be found guilty of the offence.12
However, this is not done without prejudice. It is necessary that the Court be convinced of two
things before such a confession can determine guilt; firstly, the voluntary nature of the
confession, and secondly, the trustworthiness.13 The confession may even be used against other
people jointly accused for the same crime.14

However, even in such instances a confession may be barred under s. 24 of the Indian Evidence
Act (IEA).15 This is largely determined by who the confession is made to and how the
confession itself is made, which shall be discussed in further detail below.

S. 24 OF THE INDIAN EVIDENCE ACT

As opposed to a judicial confession, an extrajudicial confession is one that is not made before
a Court of Law; rather it may be made before any entity other than a Court or a valid judicial
officer responsible for the adjudication of the case.16 They do not necessarily possess a lower
evidentiary value,17 and may still be used to convict the accused.18 This is particularly true
when the evidence is recorded while written19 or corroborated.20

The IEA deals with these forms of confessions in two primary ways, first under s. 24, and
secondly, under s. 25 and 26.

10
R. K. Raizada, Confession in the Law of Evidence: An Incongruity, 17 JILL 90 (1972).
11
Harvard Law Review Association, Developments in the Law: Confessions, 79 HLR 935 (1966).
12
Raizada, supra note 10.
13
Sahoo v. State of U.P., (1965) 3 SCR 86.
14
The Indian Evidence Act, s. 30, No. 1, Acts of Parliament, 1872.
15
The Indian Evidence Act, No. 1, Acts of Parliament, 1872.
16
The Criminal Code of Procedure, 1973, s. 164, No. 2, Acts of Parliament, 1973.
17
State of Rajasthan v. Raja Ram, (2003) 8 SCC 180.
18
Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204.
19
Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242.
20
Ram Lal v. State of Himachal Pradesh, 2018 SCC OnLine SC 1730.

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Coming to the test established under s. 24,21 any confession made by the accused is entirely
irrelevant (as a confession, not as an admission) in a criminal proceeding provided:-

1. It is made with specific reference to the offences the accused is being charged with;
2. It is made to avoid any advantages or disadvantages arising out of the ‘temporal nature’
or pendency of the proceedings;
3. It must be induced, or based on a promise or threat; and
4. If the confession itself proceeds from an individual in authority.

In these circumstances, irrespective of whether a confession is judicial or extrajudicial, the

THE EVIDENTIARY VALUE OF CONFESSIONS MADE BEFORE A POLICE OFFICER

For those confessions that are either made before a police officer, due reference may be made
to s. 25 or s. 26 of the IEA.

SECTION 25

Section 2522 of the IEA describes the situations in which a confession cannot be considered
against the accused viz. when it is given in front of a police officer. Notwithstanding the few
exceptions as shall be discussed later, any confession made before a police officer, even if they
hold the powers of a magistrate,23 is not admissible, irrespective of the stage of investigation
at which the confession is made.24

However, under s. 26 of the IEA,25 being under police custody and making a confession before
a police officer are materially different. If considering custody alone, a confession may be
admissible if it is made in the “immediate presence” of a magistrate as described under s. 26.

The general intention of such a provision is to minimize the influence the police has on a
confession, because there are a plethora of ways in which the police may induce a disingenuous

21
The Indian Evidence Act, s. 24, No. 1, Acts of Parliament, 1872.
22
The Indian Evidence Act, s. 25, No. 1, Acts of Parliament, 1872.
23
Narayan Rao v. State of A.P., 1958 SCR 283
24
Pakala Narayan Swami v. State of Punjab, AIR 1939 PC 47.
25
The Indian Evidence Act, s. 26, No. 1, Acts of Parliament, 1872.

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confession; such as by force.26 This is corroborated by the intention of the inclusion of s. 25
into the Indian Evidence Act.27

That being said, there are a fair few exceptions to the general rule laid out under s. 25 as lex
specialis derogate legi generali; to name a few:-

1. The Customs Act, 196228;

To this end, an important consideration is who may be considered a police officer?

Who is a police officer under s. 25?

The question of who may be considered a police officer under the section is not clear since the
section itself does not disclose a definition for a ‘police officer’. In the absence of a clear cut
definition set forth by the legislation; it falls on the Courts to interpret who may be considered
a police officer for the purposes of s. 25.

The Courts have definitely held that when considering who may constitute a police officer, a
general wider and purposive interpretation must be undertaken.32 A police officer is simply a
person who performs the duties associated with the job, such as patrolling.33 However, the
power that is quintessential to being considered a ‘police officer’ under s. 25 is the power to
file a charge-sheet.34 Provided a person can file a charge-sheet, they qualify as a police office
within the meaning of s. 25.

Lastly, we may consider the interplay between s. 25 and s. 27.

THE INTERPLAY BETWEEN S. 25 AND S. 27

26
Queen Empress v. Babu Lal, (1898) 21 All. 106.
27
N. KRISHNASWAMY REDDY ET. AL., FOURTH REPORT OF THE NATIONAL POLICE COMMISSION (1980).
28
The Customs Act, 1962, No. 52, Acts of Parliament, 1962.
29
Railway Protection Force Act, 1957, No. 23, Acts of Parliament, 1957.
30
The Terrorist and Disruptive Activities Act, 1987, No. 28, Acts of Parliament, 1987.
31
The Prevention of Terrorism Act, 2002, No. 15, Acts of Parliament, 2002.
32
State of Punjab v. Bharkat Ram, [1962] 3 SCR 338.
33
Radha Kishun Marwari v. Emperor, AIR 1932 Pat 292.
34
Badku Joti Savant v. State of Mysore, [1966] 3 SCR 698.

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Under s. 27,35 the entirety of the statement made by an accused is not barred from having
evidentiary value; even if such a statement would qualify as a confession before a police officer
barred under s. 25 of the Indian Evidence Act. In essence, if any fact is part of the confession
but is corroborated by facts notwithstanding or ‘inconsequence’ of the confession, it may still
be admissible evidence. In this manner, s. 25 would not strictly bar all off the statement of an
accused being made before a police officer (in say, interrogation) from having some form of
evidentiary value before the Courts of the country.

However, there are some restrictions to even this; Courts of the country have held that s. 27
acts merely as a proviso to the general rule laid down under s. 25, and may only be valid insofar
as it leads to the discovery of a new fact.36

Explained simply, while any statements made as part of a confession to a police officer are still
inadmissible,37 if a part of the confession, leads to the discovery of a new fact as a result of the
investigation made on the basis of the confession, the new fact so discovered shall be
admissible.38

A CRITICAL REVIEW OF THE INDIAN POSITION

Firstly, when considering the paradigm of the prosecution, they are disadvantaged by this on
numerous grounds, the most obvious one being the one presented in the Fourth Police
Commissioner Report39 viz. s. 25 having such a wide berth results in a large portion of the
statement of the accused being dismissed as inadmissible in Court, to the extent that it becomes
unreasonably difficult to prove the guilt of the accused in circumstances where the factual
evidence alone is not enough and requires the support of a confession.40

Secondly, this disadvantages the defendant as well since the application of this law is not
uniform; when a provision intended to act as a protection against self-incrimination is applied
with discrimination, and can be excluded from applying to certain offences; the base practice

35
The Indian Evidence Act, s. 27, No. 1, Acts of Parliament, 1872.
36
Mehboob Ali v. State of Rajasthan, (2016) 14 SCC 640.
37
Pakala Narayan Swami v. State of Punjab, AIR 1939 PC 47.
38
Ibid.
39
N. KRISHNASWAMY REDDY, supra note 27.
40
Raizada, supra note 10.

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is discriminatory as it differentiates between the standards of evidence viz. confession between
two offences despite the lack of a rational nexus to do so.

Reading both these two situations together, it is clear that the current status of s. 25 in Indian
jurisprudence is problematic, and a compromise on the indiscriminate ban would be a
worthwhile consideration; that being said, the absence of a uniform application of the law
unfairly prejudices the prosecution in certain cases as well. The law is therefore essentially a
catch-22, where there are flaws on either end of the spectrum.

CONCLUSIONS AND RECOMMENDATIONS

Irrespective of the strict application of the law in India, it remains that s. 25 and confessions
before police officers in India are plagued with inconsistent application, resulting in situations
that may disadvantage either side of the prosecution or the defence.

The recommendation that this paper makes in this regard is simple; minimize the variance in
the application of the law viz. reduce the number of exceptions to the general rule laid down
under s. 25 (such as the NDP or the TADA), provided the exceptions do not have a genuine
reason behind them.

Secondly, the application of the law could be made more consistent, but also be slightly more
relaxed. The foundation for such a relaxation may already be found in the admissibility of new
facts discovered under s. 27 of the Indian Evidence Act. This line of reasoning which maintains
the strict nature of the section, while minimizing the instances where actual evidence is deemed
inadmissible would be optimal.

THANK YOU