Admission and Confession
Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. In other words a confession made to police in India is not admissible in evidence.
'Confessions' which is a terminology used in criminal law is a species of 'admissions' as defined in Section 17 of the Indian Evidence Act. An admission is a statement, oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While Section 17 to 23 deals with admissions, the law as to confessions is embodied in Sections 24 to 30 of the Evidence Act.
State vs. Navjot Sandhu, decided by SC on 5 August 2005.
Protection against self incrimination
In the fantasy-history TV show Game of Thrones, the High Sparrow addresses to the people of King's Landing:
"A sinner comes before you, Cersei of House Lannister. Mother to His Grace, King Tommen, widow of His Grace, King Robert. She has committed the acts of falsehood and fornication. She has confessed her sins, and begged for forgiveness. To demonstrate her repentance, she will cast aside all pride, all artifice, and present herself as the gods made her... to you, the good people of this city. She comes before you with a solemn heart, shorn of secrets, naked before the eyes of gods and men, to make her walk of atonement."
Now let's ignore the punishment of naked walk but focus on the question of confession. Would such a confession, which she was forced to make under duress, be extracted by police? Can a person refuse to answer the question which incriminate him or her?
The answer is yes. This principle emanates from Latin Maxim 'nemo tene- tur sciepsum tenetur' which, literally translated means, a man cannot represent himself as guilty. This principle is the basis of article 20(3) of the Constitution of India which is as under:
No person accused of any offence shall be compelled to be a witness against himself.
Similarly section 161 o Cr.P.C. which authorises police to record statements of people in the course of investigation and people are obligated to answer the questions put to them but not the answer which may self implicate. Sub-section (3) of section 161 Cr.P.C. is as under:
"such person shall be bound to answer truly all questions relating to such ease put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture."
However section 179 of Penal Code makes it mandatory to answer all the questions asked by a Public Servant which includes a police officer in this words:
"Whoever, being legally bound to state the truth on any subject to any public servant refuses to answer any question demanded of him touching that subject by such public servant in the exercise of the legal powers of such public servant, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
The problem of investigating agency was observed in Nandini Satpathy case as under:
"If the literal force of the text governs the complex of facts, the court must convict, lest the- long arm of the investigatory law should hang limp when challenged by the negative attitude of inscrutability, worn by the 'interrogatee'-unless within the text and texture of the section built-in defences exist…………. True, courts self-criminate themselves if they keep the gates ajar for culprits to flee justice under the guise of interpretative enlargement of golden rules of criminal jurisprudence. ………….. Many police officers, Indian and foreign, may be perfect gentlemen, many police stations, here and elsewhere, may be wholesome. Even so the law is made for the generality and Gresham's Law does not spare the Police force. On the other hand, we must never forget that crimes, in India and internationally, are growing and criminals are outwitting the detectives. "
Nandini Satpathy vs Dani, AIR 1978 SC 1025, 1978 SCR (3) 608.
Supreme Court of USA has frowned upon the practice of obtaining confessions during custodial interrogations by police. It's these observations now popular as 'Miranda Rights' are worth noticing:
"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. (Pp. 444-491)
......The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating, and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. (Pp. 445-458)
......The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system, and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation as well as in the courts or during the course of other official investigations (Pp. 458-465)
……. the person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. (Pp. 467-473)
…...If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. (Pp. 473-474)
…...Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. (P. 475.)
…..Where the individual answers some questions during in-custody interrogation, he has not waived his privilege, and may invoke his right to remain silent thereafter. (Pp. 475-476)
…..The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. (Pp. 476-477)"
Miranda v. Arizona, 384 U.S. 436 (1966).
Supreme Court of India, while referring to aforesaid case has insisted upon a balanced approach and not to take the protection against self incrimination beyond what is necessary, while protecting the right of investigation by police. It is observed:
" The expression 'to be witness against himself' means more than the court process. Any giving of evidence, any furnishing of information, if likely to have an incriminating impact answers the description of being witness against oneself. Not being limited to the forensic stage by express words in Art. 20 (3), we have to construe the expression to apply to every stage where furnishing of information and collection of materials takes place. That is to say, even the investigation at the police level is embraced by Art. 20(3). This is precisely what Section 161(2)means. That sub-section relates to oral examination by police officers and grants immunity at that stage. Briefly, the Constitution and the Code are coterminous in the protective area. While the Code may be changed the Constitution is more enduring. Therefore, we have to base our conclusion not merely upon Section 1 61 (2) but on the more fundamental protection, although equal in ambit, contained in Art. 20(3).
In a way this position brings us nearer to the Miranda mantle of exclusion which extends the right against self- incrimination, to police examination and custodial interrogation and takes in suspects as much as regular accused persons. Under the Indian Evidence Act, the Miranda exclusionary rule that custodial interrogations are inherently coercive finds expression (section 26), although the Indian provision confines it to confession which is a narrower concept than self-crimination. We halve earlier spoken of the conflicting claims requiring reconciliation. Speaking pragmatically, there exists a rivalry between societal interest in effecting crime detection and constitutional rights which accused individuals possess. Emphasis may shift, depending on circumstances, in balancing these interests as has been happening in America, Since Miranda there has been retreat from stress on protection of the accused and gravitation towards society's interest in convicting lawbreakers. ……….. Law is a response to life and the English rule of the accused's privilege of silence may easily be traced as a sharp reaction to the court of Star-Chamber when self- incrimination was not regarded wrongful………..Two important considerations must be placed at the forefront before sizing up the importance and impregnability of the anti-self-incrimination guarantee. The first is that we cannot afford to write off the fear of police torture leading to forced self-incrimination as a thing of the past. Recent Indian history does not permit it, contemporary world history does not condone it……..this cherished principle which proscribes compulsory self- accusation, should not be dangerously over-broad nor illusorily whittled down. And it must openly work in practice and not be a talismanic symbol. The Miranda ruling clothed the Fifth Amendment with flesh and blood and so must we, if Art. 20(3) is not to prove a promise of unreality. Aware that the questions raised go to the root of criminal jurisprudence we seek light from Miranda for interpretation, not innovation, for principles in their settings, not borrowings for our conditions. The spiritual thrust of the two provisions is the same…...Another moral from the Miranda reasoning is the burning relevance of erecting protective fenders and to make their observance a police obligation so that the angelic article [20(3)] may face upto satanic situations."
Finally Krishna Iyyar, J. summed up the scope of protection which extended not only to trial but to investigation as well. It was observed:
"If the police can interrogate to the point of self-accusation, the subsequent exclusion of that evidence at the trial hardly helps because the harm has been already done. The police will prove through other evidence what they have procured through forced confession. So, it is that the foresight of the framers has preempted self-incrimination at the incipient stages by not expressly restricting it to the trial stage in court. True, compelled testimony previously obtained is excluded. But the preventive blow falls also on pre-court testimonial compulsion. The condition, as the decisions now go, is that the person compelled must be an accused. Both precedent procurement and subsequent exhibition of self-criminating testimony are obviated by intelligent constitutional anticipation……. Relevancy is tendency to make a fact probable. Crimination is a tendency to make guilt probable. Confession is a potency to make crime conclusive. The taint of tendency, under Art. 20(3) and section 161 (1), is more or less the same. It is not a remote, recondite, freak ,or fanciful inference but a reasonable, real, material or probable deduction. This governing test holds good, it is pragmatic, for you feel the effect, its guilty portent, fairly clearly. …….. in substance, what is self-incrimination or tendency to expose oneself to a criminal charge. It is less than 'relevant' and more than 'confessional. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. We hold further that the accused person cannot be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confirmed to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that. We have already explained that in determining the incriminatory character of an answer the accused is entitled to consider and the Court while adjudging will take note of-the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable prehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate. "
Nandini Satpathy vs Dani, AIR 1978 SC 1025, 1978 SCR (3) 608.
Confession in custody
Section 24 to 29 of Evidence Act, cover the confession and discovery of facts by an accused person before a police officer. These sections are as under:
"24. Confession caused by inducement, threat or promise, when irrelevant in criminal proceeding.—A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
25.Confession to police officer not to be proved.—No confession made to a police officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him.—No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
[Explanation.—In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).
27. Provided 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.
28. Confession made after removal of impression caused by inducement, threat or promise relevant.—If such a confession as is referred to in section 24 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.
29. Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc.—If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to make such confession, and that evidence of it might be given against him."
It may be seen that only the two types of confessions have legal sanctity:
1.) Judicial Confession i.e. a voluntary confession made before a Magistrate.
2.) Extra Judicial Confession i.e. a confession made to a private person other than police.
Any confession made to a police officer by a person is not admissible in law. Section 26 provides that the confession made by a person in police custody is not admissible but Supreme Court has held that if a person is called or walks into a police station, he is in de facto custody of police therefore his/her statement shall not be admissible.
"..When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of s. 27 of the Indian Evidence Act : [Legal Remembrancer v. Lalit Mohan Singh ((1921) I.L.R. 49 Cal.167), Santokhi Beldar v. King Emperor ((1933) I.L.R. 12 Pat. 241)].."
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125, 1960 CriLJ 1504, 1961 (1) SCR 14.
It would be interesting to see as to whether a statement or a confession made by a person who does not go to police station but uses technology. Say a confession sent in by letter or phone or videography. Would that be covered by above judgement? It seems doubtful because the custody has to be by physical confinement of body. (See definition of arrest above) In fact in above case itself has considered the possibility of such confessions but considered it not relevant for the question before it which pertained to constitutional validity of the provision.
Section 27 of Evidence Act grants a little weight to some statements made by an accused to police officer while in custody. It provides that discovery made by an accused during the investigation, can be proved as a fact. But more about discovery a little later and below.
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 of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed.
Narayanswami vs. Emperor, (1939) 66 I.A. 66: A.I.R. 1939 P.C. 47.
In another case of confession, there comprised of two elements, (a) an account of how the accused killed the women, and (b) an account of his reasons for doing so, the former element being inculpatory and the latter exculpatory and the question referred to the Full Bench of Allahabad High Court was:
Can the court if it is of opinion that the inculpatory part commends belief and the exculpatory part is inherently incredible, act upon the former and refuse to act upon the latter ?
The answer to the reference was that where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible.
Emperor vs. Balmakund, (193o) I.L.R. 52 All. 101.
The above case can also be understood with an hypothetical example. 'A' confesses that he killed 'B' with a knife but also states that 'B' had attacked him with knife and in the self defence, during scuffle 'B' got killed. In such case court has to consider the right of self defence along with confession for murder.
After independence the Supreme Court had to face the question of considering a confession which had inculpatory as well as exculpatory ingredients. In the confession in question, the accused admitted concealing the dead body out of fear but claimed that she did not kill the deceased. Here is the confession:
"My husband Jaspal Singh was fond of hunting as well as of photography. From hunting whatever skins (khalls) he brought home he became fond of colouring them. He also began to do the work of washing of photos out of eagerness. One day in December, 1949, Jaspal Singh said to my cousin (Tay's son) Mohinderpal Singh to, get him material for washing photos. He (Mohinderpal Singh) said to Harnam Singh, who is head clerk in Baldevnagar Camp, to bring the same from,the Cantt. Harnam Singh went to the Cantt. and return said that the material for washing photos could be had only by a responsible Government official. He told so to Mohinderpat Singh, who said that Harnam Singh should take his name and get the medicine. Thereupon Harnam Singh went to the Cantt. and brought the medicine. I kept this medicine. As the medicine was sticking to the paper I put it in water in a small bottle and kept it in the almirah. In those days my husband was in Ambala and I lived with him in the kothi in the city. He went for hunting for 2-3 days and there he developed abdominal trouble and began to purge. He sent for medicine 3-4 days from Dr. Sohan Singh. One day I placed his medicine bottle in the almirah where medicine, for washing photos had been placed. I was sitting outside and Jaspal Singh enquired from me where his medicine, was. I told him that it was in the almirah. By mistake he took that medicine which was meant for washing photos. At that time, he fell down and my little son was standing by his side. He said 'Mama, Papa had fallen'. I went inside and saw, that he was in agony and in short time be expired. Thereafter I went to Mohinderpal Singh and told him all that had happened. He said that father of Jaspal Singh had arrived and that he should be 'intimated. But I did not tell him, because his connections were not good with his son and myself. Out of fear I placed his corpse in a box and Mohinderpal Singh helped me in doing so. For 4-5 days the box remained in my kothi. Thereafter I said to Mohinderpal Singh that if he did not help me I would die., He got removed that box from my kothi with the help of my servants and placing the same in his jeep went to his store in Baldevnagar Camp and kept the same there. That box remained there for 8-10 days. Thereafter one day I went to the camp and from there got placed the trunk in the jeep and going with Mohinderpal Singh I threw the same in a well near Chhat Banur. I do not remember the date when Jaspal Singh took the medicine by mistake. It was perhaps in January, 1950."
Supreme Court affirmed that aforesaid views of Allahabad approving Privy Council and set aside the conviction made on the basis of above confession, with these observations:
"……...we are constrained to hold that there is no material, direct or indirect, for the finding reached by the High Court that the death of Jaspal was caused by the administration of potassium cyanide. If we believe the defence version his death was the result of an accident. If that version is disbelieved,then there is no proof as to the cause of his death. The method and manner in which the dead body of Jaspal was dealt with and disposed of raise some suspicion but from these, facts a positive conclusion cannot be reached that he died an unnatural death necessarily, Cases are not unknown where death is accidental and the accused has acted in a peculiar manner regarding the disposal of the dead body for reasons best known to himself. One of them might well be that he was afraid of a false case being started against him. Life and liberty of persons cannot be put in jeopardy mere suspicions, howsoever strong, and they can only be deprived of these the basis of definite proof."
Palvinder Kaur vs State of Punjab, AIR 1952 SC 354, 1952 SCR 94.
If the confession is validly made and is found admissible, the Court may take the confession into consideration and thereby, no doubt, makes its evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.
Bhuboni Sahu vs. King AIR 1947 PC 257.
Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'appears' connotes that the Court need not go to the extent of holding that the threat etc. has in fact been 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.
State vs. Navjot Sandhu, decided by SC on 5 August 2005.
As regards the scope of confession made by accused, which is admissible, continue reading under caption Discovery of fact below.
Confession of co-accused
An accomplice in a crime is considered to be a person of weak character and with a motive to falsely implicate the other co-accused to save his own skin. Therefore as an illustration (b) to section 144 of Evidence Act it is presumed that he is unworthy of credit unless his testimony is corroborated in material particulars.
In dealing with a case against an accused person, the Court cannot start with the confession of co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the confession of guilt which the judicial mind is about to reach on the said other evidence.
Hari Charan Kurmi And Jogia Hajam vs State of Bihar, AIR 1964 SC 1184 (FB), 1964 SCR (6) 623; See also State vs. Nalini.
Statement before Magistrate
Section 164 of Cr.P.C. provides a procedure to make voluntary statement before Magistrate.
During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 Cr.P.C. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced.
R. Shahji vs. State of Kerala, decided by SC on 4 February 2017.
However a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statements made by any of such witnesses can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in Section 145 of the Evidence Act. Under no circumstances can such previous statements be treated as substantive evidence.
Chinnamal vs State Of T.N., 1996 VIII AD SC 611, 1996 (4) Crimes 211 SC, 1996 (8) SCALE 502, (1997) 1 SCC 145, 1996 Supp 8 SCR 927.
Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. When the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.
R. Shahji vs. State of Kerala, decided by SC on 4 February 2017.
Such statement if it complies with the procedure laid u/s 164 of Cr.P.C. is admissible in evidence. Following are the conditions (laid down u/s 164 of Cr.P.C.) for treating such statement as voluntary:
1. A police officer who is also designated as Magistrate can not record the statement.
2. The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him;
3. the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily.
4. If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody.
5. Any such confession shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:-
" I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. – (Signed) Magistrate.
6. Any statement (other than a confession) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded.
7. Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. (Section 281(2) Cr.P.C.)
8. Statement if recorded by Metropolitan Magistrate, only a substance thereof shall be recorded. (Section 281(1) Cr.P.C.)
9. The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court.
A statement would not have been "duly made" unless the procedure for, make in it, laid down in s. 164 had been followed. ...Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Therefore judicial officers/magistrate making a record under s. 164 that could not give oral evidence of the confession made to him which he had purported to record under s. 164 of the Code.
Nazir Ahmed vs. King Emperor, L.R. 63 IA. 372 referring with approval Taylor vs. Taylor, [1875] 1 Ch. D. 426, 431 approved in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358: [1964] 4 S.C.R. 485.
However in the above case and in subsequent cases too, the attention of the court was not drawn towards section 463 of the Code which is as under:
"...If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered, or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in section 91 of the Indian Evidence Act, 1872 (1 of 1872 ), take evidence in regard to such non- compliance, and may, if satisfied that such non- compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement."
Sub-section (2) of section 463 further stipulates that the aforesaid rule shall be applicable not only in trial but also in appeal and revision. Now we can only wonder if non compliance with the procedure in aforesaid case did indeed prejudiced the defence of the accused? It appears section 463 seems to cover only formal nature of statements made under section 164 but not the statements on which prosecution case would have to stand.
A magistrate, cannot in the course of investigation record a confession except in the manner laid down in Section 164. The power to record the confession had obviously been given so that the confession might be proved by the record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of Section 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrates the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.
A confession recorded by a second class magistrate not specially empowered during the investigation of a case is not admissible in evidence and no oral evidence in respect of that confession can also be led at the trial.
Nika Ram vs State Of Himachal Pradesh, 1972 AIR 2077, 1973 SCR (1) 428.
Thus the following principles emerge with regard to Section 164 Cr.P.C.:-
(i) The provisions of Section 164 Cr.P.C. must be complied with not only in form, but in essence.
(ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.
(iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.
(iv) The maker should be granted sufficient time for reflection.
(v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.
(vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.
(vii) Non-compliance of Section 164 Cr.P.C. goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence.
(viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.
(ix) At the time of recording the statement of the accused, no police or police official shall be present in the open court.
(x) Confession of a co-accused is a weak type of evidence.
(xi) Usually the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement.
Rabindra Kumar Pal @ Dara Singh vs. Republic of India (2011) 2 SCC 490.
All the above minute factors were required to be kept in mind while recording a confession made under Section 164 in order to ensure that the confession was recorded at the free will of the accused and was not influenced by any other factor. Therefore, while considering a confession so recorded and relied upon by the Prosecution, the duty of the Sessions Judge is, therefore, to carefully analyse the confession keeping in mind the above factors and if while making such analysis the learned Session Judge develops any iota of doubt about the confession so recorded, the same will have to be rejected at the very outset.
Md. Jamiludin Nasir vs State Of West Bengal, decided by SC on 21 May 2014.
At the time when witness gave the statement he would have been under expectation of death but that is not sufficient to wiggle it into the cassette of Section 32 of Evidence Act and treat it as dying declaration. As long as the maker of the statement is alive it would remain only in the realm of a statement recorded during investigation.
Ramprasad v. State of Maharashtra, AIR 1999 SC 1969; Maqsoodan and ors. v. State of U.P., AIR 1983 SC 126.
Though the statement given to a magistrate by someone under expectation of death ceases to have evidentiary value under Section 32 of the Evidence Act if the maker thereof did not die, such a statement has, nevertheless, some utility in trials. It can be used to corroborate this testimony in court under Section 157 of the Evidence Act which permits such use, being a statement made by the witness "before any authority legally competent to investigate" . The word "investigate" has been used in the section in a broader sense. Similarly the words "legally competent" denote a person vested with the authority by law to collect facts. A magistrate is legally competent to record dying declaration "in the course of an investigation" as provided in Chapter XII of the Code of Criminal Procedure, 1973. The contours provided in Section 164(1) would cover such a statement also.
Gentela Vijayavardhan Rao v. State of Andhra Pradesh, AIR 1996 SC 2791.
Discovery of fact
Section 27 of Evidence Act grants a little weight to some statements made by an accused to police officer while in custody. It provides that discovery made by an accused during the investigation, can be proved as a fact. But first about discrimination between persons in custody and persons not in custody as summarised by Shah J.:
" Section 25 and 26 are manifestly intended to hit at an evil, viz., to guard against the danger of receiving in evidence testimony from tainted sources about statements made by persons accused of offences. But these sections form part of a statute which codifies the law relating to the relevancy of evidence and proof of facts in judicial proceedings. The State is as much concerned with punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to give confessional statements. If s. 27 renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody is a guarantee of the truth of the statement made by him, and the legislature has chosen to make on that ground an exception to the rule prohibiting proof of such statement, that rule is not to be deemed unconstitutional, because of the possibility of abnormal instances to which the legislature might have, but has not extended the rule. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. The fact that the principle is restricted to persons in custody will not by itself be a ground for holding that there is an attempted hostile discrimination because the rule of admissibility of evidence is not extended to a possible, but an uncommon or abnormal class of cases.
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125, 1960 CriLJ 1504, 1961 (1) SCR 14.
As regards discovery of fact, in the above case itself, Hidayatullah, J. summed up as under:
"The law has thus made a classification of accused persons into two : (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the second category the law has ruled that their statements are not admissible, and in the case of the first category, only that portion of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessional in nature, as when the person in custody says; "I pushed him down such and such mineshaft", and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft. "
But discovery of fact can not be interpreted as discovery of object. It was
"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered. Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
Pulukuri Kotayya vs. Emperor, AIR 1947 PC 67.
The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section.
State of Maharashtra vs. Damu Gopinath Shinde, (2000) 6 SCC 269.
The first condition necessary for bringing this section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The Second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the proveable information. The phrase "distinctly" relates to the fact thereby "discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.
Mohd. Inayatullah vs. The State of Maharashtra, (1976) 1 SCC 828.
Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under Section 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of Section 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery.
State vs. Navjot Sandhu .
The bar against admissibility of what is prohibited by Sections 25 and 26 of the Evidence Act is partially lifted by Section 27 in respect of such information given by accused to the police as relates distinctly to the discovery of a "fact" thus far unknown; this, subject to the riders of the information being immediate and proximate cause of discovery and the discovered fact being relevant to prove his complicity through confirmation by subsequent events.
Rakesh vs. State, decided by DB of Delhi HC on 21st December, 2015.
In another case the discovery was as under:
"Discovery of the last remains of the deceased was a relevant fact, which was, thus, admissible in evidence. Appellant had pinpointed the exact place which was to be dug up. He marked the exact area. He also made an oral statement that the box was buried beneath the area so marked, location whereof showed that it was a big area, flooring of which had been well plastered with cement having Cuddapah stone slabs. The video showed that the slabs had been laid there much earlier and were not of recent origin."
Accordingly the discovery was admitted in evidence.
Swamy Shraddanand (2) alias Murli Manohar Sharma v. State of Karnataka (2008) 13 SCC 767.
Torture in custody
See under Custodial Violence, above.
Remand or Judicial Custody of accused
Law expects that the investigation shall be completed within 24 hours if accused is under arrest. If not then the Investigating Officer shall have to produce the arrested person before a Magistrate who will be guided by section 167 of Criminal Procedure Code which is as under:
"167. Procedure when investigation cannot be completed in twenty-four hours.-(1). (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction :
Provided that.
(a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so. but no Magistrate shall authorise the detention of the accused person in custody under this Paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(iii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and docs furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
Explanation I– For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in Paragraph (a) the accused shall be detained in custody so long as he does not furnish bail.
Explanation II– If any question arises whether an accused person was produced before the Magistrate as required under Paragraph (b) the production of the accused person may be proved by his signature on the order authorising detention."
The scheme of above provisions cast a duty upon the Magistrate to apply its mind on all aspects of arrest at the time when arrested person is produced before it. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.
Arnesh Kumar vs. State, decided on July 2, 2014 by Supreme Court.
Thus the person arrested can be kept by police in its custody only for 24 hours. Thereafter the police is enjoined by law to produce the arrested person before the Magistrate. If the police wants to keep the accused in custody, it shall have to apply to Magistrate who can authorise such police remand for a period upto 14 days at a time. The Magistrate may reject the request of police for remand and may instead direct that accused may be taken in judicial custody and thereby send the accused to prison. Thus every prisoner who is not a convict and weather trial has commenced or not, who remains in Prison is in Judicial custody.
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