September 17, 2021

Confession under Indian Evidence Act, 1872

Introduction

Confession is the statement of the person accused of any offence accepting or draw inference of the guilt for the charged he has been convicted. Confession has been defined from section 24 to 30 of Indian Evidence Act, 1872. Confession is a part of admission means all confession is an admission but all admission is not a confession. Confession is used in criminal cases because in confession accused is admitting his guilt directly or draw some inferences of the guilt thatswhy confession can be made by the accused only no other person can make a confession on behalf of other person. The confession should be done voluntarily any confession caused by threat or by fraud would not amount to confession.

Free and Voluntary Confession (Section 24)

The confession made before the Magistrate should be free and voluntary one. If the Magistrate found that the confession is made by any threat or promise of secrecy then that confession would not amount to valid confession. The condition for valid confession is that the accused do confession for good reason to believe that he will gain some advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

Types of Confession

There are three types of Confession.

1. Judicial Confession– Judicial confession is that confession which is made before the court or to the Magistrate. Confession made before the Magistrate is considered as the good piece of evidence. An accused can be convicted only on the sole confession made before the Magistrate because confession before the Magistrate has been complied with the provisions of section 164 of Code of Criminal Procedure, 1908, so there is no chance of involuntary confession if it is found in the proceedings that the confession made by the accused is not out of a free will, then the confession would be considered as invalid.

For example– A murdered B and A admitted before the Magistrate that he has committed the murder, with his free will then this confession would be considered as Judicial Confession

2. Extra-Judicial Confession- Extra-Judicial confession is that confession which can be made to Magistrate out of Court proceedings or to any other person. It can be made to doctors, village members, strangers to any person. But the extra-judicial confession is a weak piece of evidence, the accused cannot be convicted solely on the basis of extra-judicial confession, it need corroborative evidence.

For example- A murdered B and confessed before C, A’s friend that he has murdered to B. The confession made by A before C is extra-judicial confession which is made out of court proceedings and need corroborative evidence to support that confession.

3. Retracted Confession– Retracted confessions are those confessions that are made before the trial begins by which the accused confesses that he has committed the offence but repudiate at the trial.

For example- A murdered B and A confessed this statement before the Magistrate before the trial begins but when the Magistrate ask for confession during the trial A repudiate from his previous statement then the confession will be called as retracted confession.

Confession to Police Officer- Invalid (Section 25)

Section 25 of Indian Evidence Act, 1872 clearly states that no confession made before the police officer shall be proved against the person accused of any offence. It can be said when a confession is made before police officer in any form it will amount to invalid confession. The purpose for the exclusion of confession before the police officer is that police officer can use force against the person accused of any offence to accept the guilt which would not result in fair justice. Presence of police officer while making the confessional statement would invalidate the confession. But all the information given by the accused before the police officer is not invalid only the confessional statement part would not be proved and the other information can be taken as a piece of evidence because the accused were present at the time of occurrence of crime so it can be taken as a good piece of evidence. Where the confession being given to someone else and the policeman is only casually present and overhears it that will not destroy the voluntary nature of the confession.

For example– A made a confession before his friend B in his room, C, a police constable roaming in their colony, mere roaming of police officer in their colony would not destroy the nature of confession.

Until and unless the police officer under the authority present before or after the investigation and the accused made a confession before police officer, the confession would be considered as valid.

Confession in Police Custody- Invalid (Section 26)

While come to section 26 of Indian Evidence Act, 1872 which again bar the admissibility of confession made during the police custody. Police custody may be in any form it may be either handcuffed, restrain the accused from going anywhere and also even if the police officer is present around the accused while the accused is in a custody. It is sufficient that the person is in custody of police officer though the police officer has left that very place but still it is considered that the person is in police custody. The exception of this section is unless the person has been present immediately before the magistrate till then the person remain in the custody of police officer his /her confession can not be considered valid.

For example- A has been arrested by police officer for an allegation of murder while taking to A in the police custody A has made a confession before B his friend that A has done the murder while the police officer went for some refreshment. The confession made by A before B is invalid and can not be proved because it was made while A was in the police custody.

How Much Information Received from Accused Can Be Proved (Section 27)

Section 27 of Indian Evidence Act, 1872 is like an exceptions of section 25 and section 26. It is cleared from the above sections that only the information which incriminate the person can not be allowed to prove against that person if the confession is made before the police officer and during the custody of police officer but the information other than the incriminatory in nature can be used as a piece of evidence. Section 27 states that when any new fact is discovered from the information received from the person accused of any offence that new discovered fact can be used as a relevant information.

For example– A has been arrested for the offence of murder. A telling the information to the police officer that the murder was caused by knife and that knife was digged on the ground of the neighbor house. The police went to the place and found knife from there. Here, the information given by the accused is relevant.

But this doesn’t mean the police officer draws inference that the accused has committed the offence just because the accused disposed of some new fact that doesn’t amount to confession.

No Effect of Secrecy on Confession (Section 29)

Section 29 provides that there is no bar to admissibility of a confession even if it was made under the promise of secrecy. Under this section a confession made by an accused is relevant even if it can be excluded from being proved under the following circumstances:

1. When it was made to the accused under a promise of secrecy;

2. By practicing a deception on the accused;

3. When the accused was drunk;

4. In answer to question which the accused need not have to answered; or

5. When no prior warning was given to accused that he was not bound to make any confession and that might be used against him.

Effect of Joint Confession (Section 30)

The general rule is that any statement made by any person accused of any offence cannot be used against any other person who is a partner in that crime but section 30 of Indian Evidence Act, 1872 states that when two or more person tried jointly for the same offence and the confession made by one accused can be used against co-accused also.

For example– A and B jointly tied for murder of C. It is proved that A said “B and I has murdered C”, the Court may consider of this confession as against B.

But if A and B are not tried jointly and A made confession during his trial that A and B both murdered C. This statement will not be used against B because A is tried separately for his offence.

Procedure of Recording Confession Under Code of Criminal Procedure, 1908

The recording of confession of person accused of any offence has been recorded by complying the provisions of section 164, 281 and 463 of Code of Criminal Procedure, 1908.

Section 164 of CrPC gives the power to Metropolitan Magistrate and Judicial Magistrate to record the confessions and statements whether they have jurisdiction or not. Judicial Magistrate may record the confession by audio or video means also. The proviso of section 164 is also bars the confession made before police officer. Judicial Magistrate while recording the confession explain the person that he is not bound to make confession, even if he is ready to give confession with his free will it can be used as evidence against him, the Magistrate shall not record the confession until and unless the person is making with his free will and there are many related provisions the Magistrate should comply with.

Section 281 of CrPC dealt with the record of examination of accused what should be the format of the recording, what should be the language of the writing etc.

Section 463 of CrPC dealt with the non-compliance with the provisions of section 164 and section 281 of CrPC. And this provision is subject to Appeal, Reference and Revision.

Conclusion

Though the confession is made by the person accused of any offence by himself but it can be taken as an evidence, given punishment solely on the basis of confession will not amount to fair adjudication. Also, all the provisions of CrPC should be comply in order to take the confession on record. The Constitution of India also provide safeguard to the accused against the self incrimination. Article 20(3) of the Indian Constitution protect this interest that no person accused of any offence shall be compelled to witness against himself. This is how the Magistrate should look all safeguards against the accused while recording the confession. The interest of the Judiciary is provide justice so these type of cases must be look carefully.

References

· Indian Evidence Act, 1872

· The Code of Criminal Procedure, 1908

· The Constitution of India, 1950

Author Details: Asma Praveen (Glocal Law School, Glocal University, Saharanpur, Uttar Pradesh)

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