Admissibility Of Confessions To A Police Officer

“All admissible evidence is relevant but all relevant evidence is not admissible”[1]

A confession is a statement made by an accused which must either admit in terms, the offense or substantially all the facts constituting an offense[2]. In Pakala Narayan Swami vs. Emperor[3], Lord Atkin observed- “A confession must admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a greatly incriminating fact, even or conclusively incriminating fact is not in itself a confession”[4]. Therefore, confession (either oral or written) is an incriminatory testimony made by the defendant which is to be proved against him in the Court. The confession, if voluntary and credible, is viewed as the best and most definitive piece of proof as it is presumed that ‘no individual will testify a bogus statement’. A conviction can be based exclusively on the confession if the Court is satisfied with the confession. The level of satisfaction of court must be of high degree.  The court must satisfy itself as to willingness on the part of accused making confession because confession may not always be voluntary and true.[5]

Section 25 of the Indian Evidence Act reads as follows-

“Confession to the police officer not to be proved – No confession made to a police officer shall be proved as against a person accused of any offense[6].

Section 25 imposes a bar on the admissibility of confession made to a police officer and absolutely excludes it from evidence against the accused, under whatsoever circumstances. Whether such a person is in police custody or not, whether the statement is made during investigation or not, is irrelevant.

In Queen Empress vs Babu Lal[7] it was observed that the objective underlying this rule is to prevent the practices of torture and oppression by police officers for the purpose of extorting confessions and securing convictions. If confession to a police officer is made admissible, the police officers would go to the heights of torturing the accused and compel him to make an involuntary statement merely for gaining credit, which would result in grave injustice[8].

In Narayan Rao vs. State of Andhra Pradesh[9], it was observed that even if the police officer has been given the power of Magistrate, the confession made before such police officer will not be admissible.

In Palaka Narayan Swami vs. King Emperor[10], it was stated that section 25 makes no distinction between a confession made before an investigation, during investigation, and confession made to police officer after investigation. Therefore, admissibility of the confession to the police officer cannot be treated as a substantive piece of evidence against the accused.

However, in Francis Stanley vs. Intelligence officer, Narcotic Control Bureau, Thiruvananthapuram[11], it was held that confession before the police officer under Narcotic Drugs and Psychotropic Substances Act, 1985 is not affected by Section 25 of Indian Evidence Act.

The Rationale behind the principle (Admissibility of Confessions to a Police Officer) emanates from the above decided cases;

  • The privilege against self-incrimination lies in the root of this principle.
  • A partisan and trustworthy attitude cannot be expected from police offices.
  • To preclude the abuse of authority by constabulary as they can achieve something behind the door which our law forbids. Our law focuses on voluntariness of confession which gets hampered because of the operation of pressure and fear by police on the mind of the accused which deprives him of his free will.[12]

Section 26 of the Indian Evidence Act reads as follows-

“Confession by accused while in custody of Police not to be proved against himNo 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 Magistrate1, shall be proved as against such person[13].

Section 26 comes into play when a person in police custody is conversing with any person other than the police officer and confesses his guilt. The underlying principle of this provision is the same that police may torture and compel the person to confess involuntarily and the resulting confession would suffer with infirmities. The expression ‘police custody’ doesn’t mean formal custody but includes any state of affair where a police officer may exercise his authority over the accused and may be at home, open place etc.

Making a confession is in fact a logically relevant fact but the same becomes inadmissible when it’s made to a police officer to prevent the practices of oppression and to save the fundamental rights of the citizens from being violated. The fundamental principle is that the confession must always be made out of repentance, and must be truthful or reliable. However, actions of police officers are approached with distrust and therefore, it become difficult to place reliance on the same. It’s difficult to believe that the accused made the confession out of his free will and conscience when it was made to the police officer. Thus, section 25 and 26 of the Indian Evidence Act make the confession made to police officers or in custody inappropriate. They act as a defence and ensure that confession which can detain the accused must be made voluntarily[14].

Disclaimer: The views are personal.

By-

Eshaan Goel

2nd year

Amity Law School, Noida

[1]Diva Rai, “Important pointers you must know about Admissibility of Confessions”, ipleaders, July. 12, 2020, available at: https://blog.ipleaders.in/important-pointers-you-must-know-about-admissibility-of-confessions/#Introduction/  (last visited on Feb. 11, 2021).

[2]Ibid.

[3](1939) 41 BOMLR 428.

[4]Shraddha Chaudhari, “Confession”, Legal Service India.com, July. 12, 2020, available at: http://www.legalservicesindia.com/article/1547/Confession-under-Indian-Evidence-Act.html  (last visited on Feb. 11, 2021).

[5]Supra note 1 at 1.

[6]The Indian Evidence Act, 1872 (Act 45 of 1860), s.25.

[7](1899) ILR 21 All 106.

[8]Supra note 1 at 1.

[9]1957 AIR 737.

[10](1939) 41 BOMLR 428.

[11]AIR 2007.

[12]Supra note 1 at 1.

[13]The Indian Evidence Act, 1872 (Act 45 of 1860), s.26.

[14]Supra note 1 at 1.

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