PROCEDURE FOR RECORDING CONFESSIONS IN INDIA Disha Gupta BASICS OF LAW Mon, Apr 06, 2020, at ,11:47 AM WHAT IS CONFESSION? Confession means the act of admitting that one has done something wrong or illegal. In many religions, confession means the acknowledgement of one’s sins or wrongs. But this was not the definition of ‘confession’ prescribed in law, it was just the meaning. So, what is the definition of confession? Under the Indian Evidence Act, 1872, ‘confession’ comes under the subject of admission and this entails that confession is a subset of admissions. However, surprisingly, the very important term ‘confession’ has not been defined under this Act. Since, the definition of ‘confession’ is not specified by the law, so we should understand it through various jurists. Justice Stephen defined confession as “an admission which is being made by a person who has been charged with any crime and such admission suggest the inference that he had committed the crime”. Similarly, Criminal digest suggests that a “confession is an admission made at anytime by a person charged with a crime; stating or suggesting the inference that he committed the crime.” Further, Privy Council, in case of Pakala Narayan Swami v. Emperor ((1939) 41 BOMLR 428), did not accept this definition. In this case Lord Atkin observed that “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 conclusively incriminating fact is not in itself a confession.” In the case of Palvinder Kaur v. State of Punjab (1952 AIR 354), the Supreme Court approved the Privy Council. In this case, the court apart from giving acquiescence, further added that “A mixed up statement which contains some confessional statement will still lead to the acquittal of accused and hence isn’t a confession.” However, in the case of Nishi Kant Jha v. the State of Bihar (1969 AIR 422), the Supreme Court held that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest. The court further stated that when there is enough evidence to reject the exculpatory part of the accused person’s statements, the Court may rely on the inculpatory part. Therefore, we can clearly discern that since there is no specified definition of the term ‘confession’, so from time to time its meaning has been modified. Starting from the case of Pakala Narayan Swamy to Nishi Kant Jha, there are so many transformations in the understanding of the term and its interpretations. This is because as we progress in time we requisite to revamp certain laws and our outlook towards these laws according to the needs and circumstances. PROVISIONS RELATING TO CONFESSION The term ‘confession’ has not been defined and is a species of admission, so the provisions relating to this are contained under Section 24 to 30 of the Indian Evidence Act, 1872 under the heading of ‘Admission’. These sections suggest the circumstances when a confession made by a person can be used against him or against some other person or just cannot be used against him or against some other person or just cannot be used. The preliminary test to distinguish between admission and confession is that ‘a statement is a confession when some supplementary evidence is required to authorise conviction.’ Section 24 has great significance because this uses the word ‘confession’. It states that “confession caused by inducement, threat or promise when irrelevant in criminal proceeding.” A confession should be voluntary in order to be admissible. The purpose is to safeguard the interest of the accused, on the ground of public policy and for proper administration of justice. In the case of Bishnu Parsad Sinha v. State of Assam (AIR 2007 SC 848), the Supreme Court explains most important ingredients of section 24. These ingredients are the main conditions of irrelevancy- The confession must be result of inducement, threat or promise; Inducement , etc. should be proceed from a person in authority; It should relate to the charge in question ; and It should hold out some worldly benefit or disadvantage. Section 108 of the Custom Act, 1962 empowers its officers to record the statement of person who are summoned under the Act. Since the Act does not authorize the recording of confessions. It would have to be done by using the authority under Section 164, of Criminal Procedure Code, 1973. This section requires “a warning to be given to the person making the statement that it would be used in evidence against him. This is fundamental of criminal jurisprudence (NSR Krishna Prasad v. Directorate of enforcement, 1992 Cr. L.J. 1888 (A.P.)). CONFESSION TO POLICE OFFICER Confessions made by an accused person to police officer or to anyone, whilst in police custody are governed by Sections 25 and 26 of the Evidence Act. The words of Section 25 are wide enough to exclude any confession made to a police officer. A statement which is not a confession cannot be expelled by provisions of Section 25 of the IEA. The expression ‘police officer’ used in Section 25 of the Act is very controversial because in some cases it has been ruled that police officer here is restricted to the definition mentioned under the Police Act (V of 1861) while others rule out that it includes far more than this. In the case of Radha Krishan Marwadi v. Emperor (AIR 1932 Pat. 293 (SB)), the first strict interpretation to the expression “Police officer” was pronounced and decided by the special bench of the Patna High Court. It was held that the term “Police officer mentioned in Section 25 of the Evidence Act was proposed to apply to police officers alone and to no other class of persons other than the police officers.” But it has been the accepted view of most of the High Courts that this term is not limited to officers of the regular police force but to members of the other Government departments so as to give it a broadminded interpretation. The Supreme Court has also held a similar view in a series of decided cases (State of Punjab v. Barkat Ram AIR 1962 S.C; Ramesh Chandra Mehta v. State of West Bengal AIR 1970 S.C. 94). The main reasons for exclusion of confession to a police officer are that if confessions to police were allowed to be proved in evidence, the police would torture the accused and thereby force him to confess to a crime which he might not have committed. The confession so obtained would naturally be unreliable as it was not voluntary. The mere presence of the police man should not have this effect. 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. But where that person as a secret agent of the police deputed for the very purpose of receiving a confession, it will suffer from the blemish of being a confession to police (Emperor v. Har Piari, AIR 1926 All. 737). CONFESSION TO A MAGISTRATE The confessions given in the presence of magistrate are ruled out under Section 26. The section reads as “Confession by accused while in custody of police not to be admissible unless it is made in immediate presence of magistrate.” So, if the accused confesses his guilt while in police custody but in the immediate presence of a Magistrate, the confession will be valid. The presence of a Magistrate rules out the possibility of torture thereby making the confession free, voluntary and reliable (Sarkari Mardi v. State of West Bengal, (1992) Cr. L.J. 367 (Cal)) Immediate presence of the Magistrate means his presence in the same room where the confession is being recorded. His presence in the adjoin room cannot afford the same degree of protection against torture. 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. 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. However, 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. 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 presence of a Magistrate, may be of any class or has no jurisdiction over the place where the confession was made (R. v. Vahala, 7 Bombay H.C. 56). GUIDELINES FOR CONFESSIONAL STATEMENT OF THE ACCUSED The Investigating Officer shall make an application before the Chief Metropolitan Magistrate/ Chief Judicial Magistrate for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused. After recording the confession statement of an accused, the recording Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies. The confession statement, in original, shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due. One certified copy of the confession statement shall be immediately furnished to the Investigating Officer, free of cost, with a specific direction to him, to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed. The other certified photocopy of the confession statement shall be kept in a sealed cover in the safe custody of the recording Magistrate.