Assignment

Law of Evidence
Cumulative Assessment III
Submitted by: Ishrita Bagchi, 1551, Section B

Topic: Confessions and Admissions (Focus on Ss. 24-27)

The Nithari Serial killings caught the attention of the entire nation when the magnitude and
strange character of the murders became clear. The case was premised primarily on the
confession by the prime accused; who later retracted the confession and claimed that it had been
made under torture and duress, as recorded by the magistrate in his statement. This fact has
repeatedly come up in trial and has been used to argue against the imposition of the death
penalty. This case highlights the important role of confessions in criminal proceedings; and how
crucial it is that only confessions that are not coerced be admitted as evidence.

The scope of this assignment is to discuss the evidentiary value of confessions; but must begin
by highlighting the difference between admissions and confessions; since this distinction is of
immense practical value in the trial of the case and determination of guilt or innocence.

In the Indian Evidence Act, 1872, admissions are dealt with under Section 17- Section 23; and
Section 24-30 deal with confessions. This assignment will focus on Section 24-27 with emphasis
on certain delineated case laws; and the value of confession to police with reference to custodial
confessions.

The scope of an admission under Section 17 was elucidated by the court in Basant Singh v.
Janaki Singh1. In this case, it was held that an admission (through a plaint) made in a previous
suit can be used against the party that made the admission in a subsequent suit. In case of such
other suit, will not be considered conclusive and it would be open to the party to show that it was
not true. Admissions therefore are merely certain facts that are admitted and are not an
admittance or denial of the fact in issue itself; as opposed to confessions.

In Pakala Narayan Swami2, the Supreme Court explained that a confession must admit the
offence; or all the substantive elements of it. If along with the purported ‘confession’ there is
exculpatory content; and if that content is such that its truth would prove the innocence of the
accused as to the charge against him; it cannot be called a confession. It can be said that all
confessions consist of admissions; but every admission is not a confession; that is, admissions
are the broader set.

1
Basant Singh v. Janaki Singh, AIR 1967 SC 341.
2
Pakala Narayan Swami v. King Emperor, (1939) IA 66.
There is no formal statutory definition of confession in India. Unlike the English law on the
matter as given in Stephen’s, in India, a confession does not include a statement that leads to an
inference that he committed the crime, and must admit guilt.

Admissions and confessions are also different in that a confession can be made only in respect of
a criminal case- as a confession is effectively an admission that one committed the offence.
Further, a confession is always made by the accused, whereas an admission can be made (in
limited occasions enumerated under Section 21) by a representative; and also by an interested
party and a person from whom the interest of the parties is derived (Section 18). A confession
must be voluntary to be admissible but this is not the case with admissions.

The distinction between admission and confession is of practical importance; one instance of this
importance being as illustrated in the case of Faddi v. State of M.P.3; where the accused was the
person who filed the First Information Report; and contended that the things contained therein
could not be admitted as they amounted to a confession made to a police officer. However, since
the F.I.R. was actually made against others; and contained no statement that the accused knew to
be inculpatory- it was held that it was merely an admission. The statement contained nothing
showing that he was the murderer of the boy concerned in the case. Thus, his knowledge about
where the dead body was found and his presence there was rightly admitted into evidence to
determine guilt.

It is well established that a confession almost always will consist of a number of other
admissions as to incriminating circumstances. For instance, a person while confessing to murder
may also confess his motive, how he prepared to commit the crime and where he did so. If all
these other admissions are admitted as evidence, Section 24,25 and 26 would effectively be
rendered nugatory; since the complete picture is not hard to establish if all the individual
admissions are admitted.

This loophole of sorts was considered by the Supreme Court in Aghoo Nagesia4, where the Court
took note of the fact that confession to an offence may also include the intention, concealment of
weapon and subsequent conduct of the accused and these too must be excluded. Referring to the
confessional F.I.R. in question, the Court held that only the part where the identity of the accused
as the person who filed the charge-sheet is mentioned and the parts made admissible by Section
27 may be considered. This will be made more clear by an explanation of the scheme of the
Sections in the next part of the assignment.

3
Faddi v. State of M.P., (1964) 6 SCR 312.
4
Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
Section 24-27 of the Indian Evidence Act, 1872 form a comprehensive elucidation of the law
relating to confessions- and explain specifically; the value attached to a confession when made in
police custody or to a police officer. The pervasive intent behind these sections seems to indicate
the legislature’s hindsight in predicting that the police as a law enforcement agency could
possibly exercise intimidatory tactics; for a variety of reasons, including, prominently, the quick
resolution of cases. Thus, these sections are also tied closely to the constitutional protections
provided under Article 20 and 21 because they relate to custodial torture and intimidation.

The Scheme of the Sections relating to Confessions

Section 24 elucidates certain situations in which a confession would be considered irrelevant in

criminal proceedings- such as a confession which appears to have been caused by an
inducement, a threat or a promise. Section 25 , then, creates a presumption, so to say, that a
confession made to a police officer may have any one of these characteristics, and hence, must
be excluded. Section 26 provides that a confession made in the custody of a police officer; cannot
be proved against the accused.

The distinction between Section 25 and Section 26 lies in the fact that Section 25 makes a
classification on the basis of to whom the confession is made; whereas Section 26 classifies on
the basis of the circumstances in which the confession was made.

Section 27 carves out a space; however, for some of what is excluded by the preceding three
sections. This is in the form of an exception stating that information relating distinctly to the fact
discovered directly in consequence of the information may be proved; regardless of whether it
amounted to a confession.

Section 24

Extra- judicial confessions are not automatically inadmissible, but become inadmissible when if
they are caused by threat, inducement or a promise. The elements of Section 24 require that a
threat, inducement or promise be made, necessarily by a person in a position of authority, and
that they cause the accused person to have reasonable grounds to suppose that by confessing, he
will gain some advantage or that he may avoid a temporal evil. (Temporal evil here, is
contradistinguished from a spiritual evil, such as a statement inducing the fear of karma or divine
punishment in someone; and means an actual threat to do something tangible in the physical
worlds; such as cause bodily harm or inform someone else, etc.) Under this Section, it must only
appear to the Court that such a threat, inducement or promise was made, and it is not necessary
to prove the same.

It would depend on the facts of each case; whether the criteria for ‘authority’ is satisfied.

In the case of Pyare Lal Bhargava v. State of Rajasthan5, the facts involved the theft and
substitution of some documents and the statement made by the Officiating Chief Secretary to the
Government, was that he would hand over the inquiry to the police, ‘if the whole truth did not
come out’ during the departmental enquiry. The Court held that this was an ordinary statement
that anyone would make in the circumstances, and thus it could not appear to be a threat within
the meaning of Section 24.

In the case of Ratan Gond v. State of Bihar6, a confession made to three members of the
Panchayat was held to be voluntary and not struck by Section 24. The Court clarified that merely
the passage of a few hours between when the accused was first questioned and when he
confessed would not vitiate the confession in the case of extra-judicial confessions. Although the
statement was made to a person in a position of authority in this case, there was not enough to
convince the court that there was a threat made.

Section 25

As mentioned above, Section 25 bars any confession made to a police officer by an accused from
being proved. It is important to note that a confession as to any other crime made to a police
officer; even one that the accused has not been formally charged with at the time, is not
admissible.

Further, under Section 25; there are three very important aspects that must be analysed and these
are-

1. Who is an accused?

The term, ‘accused’ is to be interpreted broadly with a view to ensure that the legislative
intent behind the Section is recognised, and therefore does not require framing of charges. A
confession made to a police officer even before an investigation has begun is hit by this
section.

2. Who is a police officer under this section?

A customs officer is not a police officer within the meaning of Section 25. According to
Section 104 of the Customs Act, 1962; a customs officer may make an arrest. Under the

5
Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.
6
Ratan Gond v. State of Bihar, AIR 1959 SC 18.
 amended version of the Act, the customs officer is also empowered to grant bail. These
powers, including a limited power to investigate seem to indicate an overlap with the
functions of the police. However, the Supreme Court, in the case of Illias v. Collector of
Customs7 upheld the chain of precedent on the issue(relating to the old Act), and held that
customs officials are not police officers- primarily based on the reasoning that they do not
have the power to file a charge-sheet under Section 173.

Again, in Ramesh Chandra Mehta v. State of West Bengal 8, similar reasoning was applied to
hold that the officers under the Sea Customs Act, 1878 were not police officers within the
meaning of the section. Effectively, both of these decisions follow the criteria laid down in
Badku Joti Savant v. State of Mysore9, which was a judgment delivered in the context of the
Central Excise and Salt Act, 1944.

3. Exactly what constitutes a confession to a police officer and what does not?

A very interesting point of law was raised in Sita Ram v. State10; where the accused
contended that his written confession must be inadmissible as it was addressed to the
Superintendent of the Police. The Court, however, held that since the police officer was not
in the vicinity when the confession was made and did not know when it was being written,
Section 25 was not attracted. This reasoning seems to be consistent with the legislative intent
to prevent threat or inducement by the police. The minority however, held, that this
confession would be barred by Section 25 as the Section must be read ‘in its widest possible
sense’; and the Section does not require the presence of the officer but rather that the
confession be made to him.

Section 26

This section relates to confession made in custody of a police official; and states that such
confessions can be proved only if they are made in the presence of the magistrate. This is so
since the presence of the magistrate is intended to ensure that the magistrate can judicially
supervise and ensure that the statement is not made under any kind of duress from the police.

Section 26 however does not detract from Section 25- and the admissibility of evidence made in
police custody but in the immediate presence of a magistrate does not qualify Section 25. If the
statement is made to a police officer- no other circumstance can render it admissible; except to
the extent allowed by Section 27.

7
Illias v. Collector of Customs, AIR 1970 SC 1065.
8
Ramesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940.
9
Badku Jyoti Savant v. State of Mysore, [1966] 3 SCR 698.
10
Sita Ram v. State, AIR 1966 SC 1906.
 For the purposes of Section 26 and 27; the physical proximity of the police station and the place
where the person is held in judicial custody cannot be used to argue that a confession is vitiated;
there is no reasonable basis to believe that such confession would be borne out of fear or
intimidation created by the police.11

In Aghnoo Nagesia, the F.I.R. containing full confession was considered; and the Supreme Court
decided that not only the confession, but also the other incriminating admissions were barred by
Section 25 and 26.

In this way Section 26 applies not only to confessions but admissions made within a confession
too.

Section 27

This section creates the exception of sorts to Section 25 and 26 and makes information
admissible if it links directly to a fact discovered in furtherance of it.

Although the requirement is that the fact must distinctly relate to the information; it cannot be
interpreted so narrowly as to make the information ‘incomprehensible or insensible’. Thus,
though it has been settled by a long line of judicial precedent; that a recovered ‘object’ is not a
fact; the place that it was found in and the confessor’s knowledge thereof is.

In State of Maharashtra v. Damu, the Court applied these principles to the facts of the case to
admit information that the accused had carried the victim to the place on his bike- since a piece
of glass recovered from his broken taillight confirmed his presence at the place indicated by him
in the confession.

Use of Confession for Conviction

In the State of Maharashtra v. Damu, the Court referred to two separate case-law, Kashmira
Singh v. State of M.P.; and Sarwan Singh Rattan Singh v. State of Punjab; clarifying that while
the first one relates to usage of a confession against co-accused, it is the second that lays down
the right position of law for the value of a confession made by the accused to be used against
him. The correct position of law, therefore, is that a confession can be used for conviction as
long as it is corroborated; even if the confession has been retracted.

There are also some cases to the effect that corroboration is not necessary for conviction, but the
above remains the general rule.

11
State of Maharashtra v. Damu, (2000) 6 SCC 269.
Conclusion

The law relating to confessions relates to deeper questions about the values of the criminal
justice system as it has bearings upon whether due process is followed; and thus has been a
subject of debate in recent years, especially with regard to the definition of ‘police officer’ which
currently does not include officials under the NDPS and some other special statutes.