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Documenti di Professioni
Documenti di Cultura
1
Sahoo v. State of U.P. AIR 1966 S.C. 42.
2
Ram Singh v. State, All. L.J. 660 1958. All. C.R. 462.
3
The Indian Evidence Act 1872, Section 24, defines:
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 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 proceeding
against him.
4
Webster Dictionary.
5
43 Encyclopaedia of Evidence, 297.
A Confession is a comprehensive admission in express words which acknowledges the
declarants commission of a crime, See Whartons Criminal Evidence. 12 Edn. S. 336:
Mc Cormick on Evidence Chap. 12; Wigmore s. 821 Am. Jur. Ss. 477, 478.
96
In India the definition generally accepted by the courts was what had been
propounded by Stephen;12 A confession is an admission made any time by a
person charged with a crime stating or suggesting an inference that he
committed crime. Thus as per Stephens definition the commission of crime
may not be directly admitted by the accused but even if it can be inferred from
his statement, the statement would amount to a confession.
It may be noted here that in England even the recently passed Police
and Criminal Evidence Act., 1984 adopt the same broad approach. Section
82(1) of the Act defines a confession to include any statement wholly or partly
adverse to the person who made it whether made to a person in authority or
not and whether made in words or otherwise.
In India, however, Starjit, J. discarded the definition of Stephen. He
held that only statements which are direct acknowledgements of guilt should
be regarded as confessions and it cannot be construed as including a mere
inculpatory admission which falls short of being an admission of guilt.
Lord Atkin accepted the dictum of Straight. J. in Pakala Narayan
Swami v. Emperor,13 and held that:
no statement that contains self-exculpatory matter can
amount to a confession, if the exculpatory statement is of some
fact which if true would negative the offence alleged to
confessed. Moreover, 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 conclusive incriminating fact is not of itself a
confession e.g. an admission that the accused is the owner of
12
Stpehen, J.F. : A Digest of the Law of Evidence 12th Ed. 21.
13
ILR 7 All. 646.
98
14
AIR 1952 SC 354.
15
AIR 1966 SC 119.
99
16
(1970)36 Cut. LT 774.
17
1970 Cr. L.J. 54 (Guj).
18
1952 SCR 1091.
19
ILR 1930 All 1011.
100
23
(1907)32 Bom iii(FS).
24
See Section 31, Indian Evidence Act of 1872.
102
25
56 Mont 485.
26
AIR 1959 All. 518.
103
27
Taylor on Evidence 867.
28
(1963) ILJ 645.
104
29
(1936) PC 253.
30
1972 Cr. L.J. 566.
31
F.R. Mario Pires v. Dir of Enforcement, New Delhi 1982 Cr. L.J. 461 (Goa).
32
(1971)LXXIV Bom. L.J. 299.
105
introduce distortions. Further the original declarant was not put on oath before
making the statement and he is not available in the court or cross-examination.
An accused in a criminal trial does not appear as a witness unless he is
permitted to, on his own prayer. Thus a confession made by him before the
beginning of trial when sought to be proved by other witness can be said to be
hearsay.
Admissions and confessions from a special group within the exception
to be hearsay rule. The key factor that distinguishes them from other hearsay
evidence is that they are statements one or the parties to the proceeding. The
party is litigating in the court and is in a position to admit or deny that he had
made such a statement. He can also cross examine the witness proving the
admission or confession made by him.
Secondly, they also derive probative force from a ring of truth that
accompanies them. If a person makes a statement out of court, in his favour, it
may be of little value since there is always a tendency to say self serving
things. To treat this as evidence for himself would be to offer an inducement
create inducement to create evidence for himself and open the door to fraud.
But this objection ceases to have force when the statement is against his own
interest. In the natural course of human conduct a man is not likely to say
anything against his advantage or interest unless it were true.
The main thrust of the rule against hearsay being on the need and
prudence of affording an opportunity of cross examining the original maker of
the statement. He said rule can in fact not be invoked in case of confessions. A
confession is alleged to have been made by the accused who cannot cross
examine himself. Wigmore34 gives the following illustration to drive home the
point: If Jones had said out of court, The party opponent Smith borrowed his
34
Wigmore on Evidence, 1048.
107
accused and the prosecution. On one hand it helps the court to take lenient
view towards accused and on the other hand it saves the public time. But in
order to save the public time the Constitutional rights of the accused should
the law relating to the history and development of confession is made in the
next chapter.
35
S. 163 Cr. P.C.
109
from being given in evidence. Then Section 27 of the Evidence Act creates an
exception i.e. a confession or any other statement which is deposed to have led
to discovery of some facts is admissible in evidence to the extent of the law
actual part of the statement distinctly leading to the discovery. This exception
qualifies both Section 25 and 26 but not Section 24. Section 28 and 29 are
more or less clarificatory in nature. By virtue of Section 28, a confession made
after the removal of impression caused by inducement, threat or promise as
referred to in Section 24 is admissible. Section 29 clarifies that the mere fact
that a confession was made under promise of secrecy or by deceit for the
purpose of obtaining it or when the person making the confession was drunk
or that it was made in answer to questions which he was not bound to answer
do not make the same irrelevant under section 24. A confession of a co-
accused when found relevant and proved can be taken into consideration by
the court against the co-accused persons under the power conferred by Section
30.
For the purpose of the present study relating to Custodial confessions
i.e. confession made to the police or whilst in police custody, the provision of
Sections 24 to 27 may be examined in detail. This Chapter deals with the chief
provision containing the exclusionary clause i.e. Section 24 of the Evidence
Act.
4.8 Scope of Section 24
In Queen Empress v. Babu Lal,36 the Privy Council held that section 24
declares that confession caused by inducement, threat or promise are irrelevant
unless as Section 28 provides, they are made after the impression caused by
any such inducement, threat or promise has been fully removed.37 When the
36
ILR 6 All 509.
37
ILR 6 Sec. 509.
110
38
Re Navnithmal, AIR 1939 Mad. 32.
39
AIR, 1963 SC 1094.
111
(a) That the confession has been made by an accused person to a person in
authority.
(b) That it must appear to the court that the confession has been obtained
by reason of any inducement, threat or promise proceeding from a
person in authority.
(c) That the inducement, threat or promise must have reference to the
charge against the accused person.
(d) That inducement, threat or promise must in the opinion of the court, be
such that the accused in making the confession, believed or supposed
that by making it he would gain any advantage or avoid any evil of
temporal nature in reference to the proceedings against him.
4.10 Retracted Confession
In Mst. Bhagan v. State of Pepsu,40 the court held that a confession of a
crime by a person, who has perpetrated it, is usually the outcome of penitence
and remorse and in normal circumstances is the best evidence against the
maker. However, before arriving at any conclusion based on a retracted
confession, the court has to take into consideration not only the reasons for
making the confession or retracting it but also the attending facts and
circumstances surrounding the same. There is no legal rule that a retracted
confession cannot be acted upon unless the same corroborated materially. In
the case of Subramania Goudan v. State of Madras,41 the court said that where
the court has to decide whether the confession made by the accused in a
criminal case has been proved the law requires that the court must be satisfied
that the confession made was free and voluntary and that it was not brought
about by the influence of hope or fear. If the prosecution satisfies the court on
40
AIR 1955, Pepsu 33.
41
AIR 1958 SC 66.
113
these points and it is held that the confession was a free and voluntary act of
the accused and that it was not induced by any hope or fear or coercion, then it
must be regarded as a genuine confession which may be made against the
accused at his trial. It is the purpose of arriving at the satisfaction regarding
voluntariness and while exploring reasons for retraction that the court relates it
with other evidence on record and seeks corroboration if possible. The rule of
prudence, however, does require that a retracted confession of one accused
does not become the sole basis of conviction of a co-accused.
4.11 Meaning of the Word Voluntary Confession
The word voluntary confession means a confession not caused by
inducement, threat or promise and does not mean a confession made willingly
as all confession made I consequence of inducement threat or promise are
made willingly in the later sense in the case of Fatehchand v. Emperor.42
However whether a confessional statement was voluntarily made or not
is essentially a question of fact. In ascertaining the voluntary nature of the
statement different tests will have to be applied to different set of facts. In the
very nature of things, there can be no rigidity about them. What test is best
applicable to a given set of facts is for the judge of facts to decide. If the
circumstances throw any doubt on the voluntary character of a confession the
confession must be rejected.
4.12 Involuntary Confessions
The court held in Amrat v. State of Bombay,43 that an involuntary
confession is one which is not the result of the free-will of the maker of it, so
where a confession is made as a result of the harassment and continuous
interrogation for several hours after the person is treated as an offender and
42
26 Cr. L.J. 1313.
43
IL 1960 Bom. 664.
114
44
ILR (1964)2 Ker. 312.
45
1954 Cr. L.J. 1313
46
1957 Cr. L.J. 1014.
47
35, Cr. L.J. 485.
48
35 Cr. L.J. 485.
115
Thus, the law does not require the motive for a confession to be
elicited. The only requirement laid down by the law is that the confession
should be free from the blemishes of compulsion, inducement, threat or
promise. The court held in Suka & Misra v. State,49 that if the confession is not
tainted by any of these vitiating factors the court is entitled to presume that it
is voluntary. Adjudication as to voluntariness and as to truth is done at two
different stages in a trial. Once a confession is found to be voluntary, it can be
admitted in evidence. The stage of deciding the veracity or reliability of the
confession comes at the time of final disposal of the case when its weight is
determined in relation to other evidence available on record.
4.14 Some Faces of Involuntariness
Section 24 does not require the accused to prove that the confession
was actually made as a result of any express inducement, threat or promise
made by any person in authority. The inducement may be implied from the
conduct of the person in authority, the declaration of the prisoner or the
circumstances of the case nor need it be made directly to the prisoner. It is
sufficient it may reasonably be presumed to have come to this knowledge
provided or course. It appears to have induced the confession.50 As per
Wigmore51 when a prisoner is placed in such a situation that an untrue
confession guilt has become the more desirable of two alternatives between
which he is obliged to choose, a confession made by him becomes
untrustworthy.
As per Woodroffe,52 an inducement may take the form of a promise or
a threat, often the inducement involves both promise and threat a promise of
49
AIR 1957 Orissa, 71.
50
Phipson Ev. 7th Ed. 257 as cited in Monir as Evidence 11th Edn. 1995.
51
Wigmore on Evidence 824.
52
Woodroffe Evidence 9th Ed. p. 284.
116
53
Taylor on Evidence 879.
54
1959 SCR 1336.
55
1956 Cr. L.J. 426 & 1954 Cr. L.J. 2251.
117
56
AIR 1961 SC 1808.
57
AIR 1978 SC 1025.
58
AIR 1968 SC 147.
118
Dr. R.M. Malkani v. State of Maharashtra,59 that though the police had
adopted the method of deception since the accused actually did not know
about the presence of the police, his statement cannot be called compelled
testimony.
4.15 Burden of Proof
The words if it appears to the court as used in Section 24 do at the
first instance, seem to favour a view that the burden of proving involuntariness
is on the accused. In relation to judicial confessions fields opinion is that it is
held to be voluntary unless contrary is shown.60 In this regard, he holds that
the Indian law differs from the law of England. However, appears to the
court does not by its terms, require positive proof by the accused. All that it
means is that voluntariness of the confession should not go entirely
unchallenged, Once it is pointed out to the court that the confession was
involuntary, with same cogent reasoning so as to make it quite probable that it
was indeed involuntary, the burden on the accused if any is discharged. As per
Woodrofee, it would be more correct to say that as under Section 3, prudence
is to determine whether a fact exists or not. The use of the word appears
while requiring proof, indicates that a lesser degree of such proof is required in
this than in other cases.61
When it does appear to the court that the confession has been caused by
inducement etc, the onus of proof immediately shifts to prosecution who will
now have to prove affirmatively to the satisfaction of the court that the
confession was voluntarily made. A failure to do so would certainly result in
ousting of the confession.
59
AIR 1973 SC 157.
60
Fields-Evidence, 6th Edn. p. 98.
61
Woodroffe, Evidence, 10th Edn. p. 370.
119
it is done and some reasonable suspicion is made to arise in the mind of the
court it will be for the prosecution to prove the absence of such circumstances.
The dictum of R.V. Thompson has been adopted in India.64
In view of the above, it is clear that once some suspicion is made to
arise on the propriety of recording of the confession. The onus to prove
voluntariness is on the prosecution. There is no onus on the accused to prove
involuntariness.
4.17 Person in Authority
Under Section 24 of the Evidence Act a confession will become
irrelevant only if the inducement, threat or promise, which vitiates a
confession has proceeded from a person in authority. As to who is a person in
authority is neither defined in the Evidence Act nor any illustration of a person
in authority is given in it. In the absence of a statutory definition of the words,
the natural meaning of the word consistent with the spirit of the provision in
which those particular words occur is to be given to them. These words
person in authority occur in a provision which is intended to be a safeguard
to persons accused of committing crimes against their unjust conviction on the
strength of a tainted confession. So the construction of these words should be
done in such a manner as to allow the fullest and widest meaning to the terms.
A restricted meaning would operate to undo what the legislature intended to
do.
A strict meaning of the expression person in authority was given by
the Patna High Court in Santokhi Beldar v. King Emperor,65 held as follows:
There is no statutory definition of the words person in authority, but
it is well established that the words have reference to a person who has
64
Ashutosh v. R. 26 CWN 54.
65
AIR 1933 Patna 149.
121
authority to interfere in the matter under enquiry. The reported cases on the
point show that generally speaking person in authority within the meaning
of Section 24 is one who is engaged in the apprehension, detention or
prosecution of the accused or one who is empowered to examine him.
This is the strict interpretation of the expression and if this
interpretation is adhered to it can include only Magistrate and Judges who are
empowered to punish offenders and the police and other officials of the
Government who are engaged in the apprehension, detention or prosecution of
the accused. It is difficult to advance any reason to uphold such a strict
interpretation. Thus in the court of Reg. v. Navroji Dadabhai,66 the court went
on to hold that the term should not be used in any restricted sense. Later on in the
case of R. v. Warringham,67 Chief Justice Sargent laid down the rule as follows:
The test would seem to be had the person any authority to interfere with
the matter and any concern or interest on it would appear to be sufficient to give
him that authority where Parke-B held that the wife of the prosecutor and one
concerned in the management of their business was a person in authority. A case
from the Calcutta High Court reiterates that in construing the expression person
in authority the test is to see whether the person has any power to interfere in the
matter or has any concern on interest in the matter. This s a comprehensive
construction that can be put on the term to give better effect to the provision. An
example may show to force of this interpretation. Take for instance that an owner
of a lost article says to the supposed thief tell me the truth or I will hand you up
to the police. Here the fear caused by the threat, may induce the person suspected
of the theft to make a clean breast of the offence and plead with the owner of the
lost article not to hand him over to the police. Here the owner of the lost article
though not a person invested with powers or apprehension etc. by the
66
(1872)2 B.H.C. 358.
67
2 D.C.C. 447.
122
Government, yet on account of the position he occupies as the owner or the stolen
property, has got some power to control the prosecution of the accused person
Thus he can either report the matter to the police for prosecution of the accused or
altogether drop the matter and condone the thief. This power for the time being on
the part of the person who is the owner of the stolen property gives to his
utterances addressed to the accused person an authoritative range which can
overcome the accused. If that is so it is obvious a confession made to such a
person under such a threat cannot be genuine for a court to act upon. The
managers of a private banking concern or other commercial institutions are to be
regarded as persons in authority on this principle only if any of their subordinates
make a confession of an offence committed in the banking concern or other
commercial institutions. Their authority comes only from the fact that they can
investigate in the first instance into the alleged offence committee by a person
employed under them and then hand over the culprit to the proper authorities. But
can a co-worker such as another clerk working along with the accused person
strike terror into the mind of accused. His influence, it may be submitted is not so
very paralyzing and hence he can scarcely be regarded as a person in authority.
What he can at best do is to calumniate the accused person and intimate to the
common superior the wrong done by him.
It can be seen from the above interpretation that an individual to be a
person in authority within the meaning of Section 24 of the Evidence Act must
stand in such a relation to the accused person as to imply some power of control
or interference with regard to his prosecution or any concern or interest in the
same. It has to be borne in mind that the concern or interest is not the common
concern or interest which every citizen may have in an offence which is notional
an attach on society at large but a concern or interest which is natural to a person
on account of his personal relation to the offence.
123
68
AIR 1960 MP 132.
69
AIR 1965 Gujarat 5.
70
(1852) 2 Den. 552.
124
71
1962 Cr. L.J. 835.
72
AIR 1967, Manipur 11.
73
AIR 1967 Orr. 205.
125
74
AIR 1966 Cal 587.
126
or conduct as well on the part of the person in authority, which may be construed
by the accused person. As he then is an amounting to an inducement threat or
promise, will have to be taken into account. A perfectly innocent expression
coupled with acts or conduct on the part of the person in authority together with
the surrounding circumstances may amount to inducement threat or promise. The
view was upheld in the case of Mst. Kisture v. State.75
The Supreme Court on the matter in Pyare Lal Bhargav v. State of
Rajasthan,76 observed as follows:
The threat, inducement or promise must proceed from a person
in authority and it is a question of fact in each case whether the
person concerned is a man of authority or not, what is more
important is that the mere existence of the threat, inducement or
promise is not enough, but in the opinion of the court the said
inducement, threat or promise shall be sufficient to cause a
reasonable belief in the mind of accused that by confession he
would get an advantage or avoid any evil of a temporal nature in
reference to the proceedings against him while the opinion is
that of the court, the criterion is the reasonable belief of the
accused. The section, therefore, makes it clear that it is the duty
of the court to place itself in the position of the accused and to
form an opinion as to the state of his mind in the circumstances
of a case.
It was said by the court in K. Gopalan v. State,77 that unless the
expectation under which the accused makes a confession is shown to have
been the result of any inducement, threat or promise as specified in Section 24
75
AIR 1967 Raj 98.
76
AIR 1963 SC 1094.
77
AIR 1954, Trav. Cochin 456.
127
78
AIR 1965 Bom.
128
making the statements or led them to suppose that they were going to gain any
advantage in reference to the proceedings against them relating to smuggling
of gold. Therefore, the statements recorded by these officers could not be held
inadmissible under the provisions of Section 24 of the Indian Evidence Act.
Thus, Section 24 of the Evidence Act enacts one of the cardinal
principles of Criminal Jurisprudence that an accused cannot be compelled to
give evidence against himself. This, along with Section 163(1) of the Code of
Criminal Procedure which prohibits police officers and other persons in
authority to offer any inducement, threat or promise as mentioned in this
provision give full effect to the guarantee against compelled self-incrimination
enshrined in Article 20(3) of the Constitution of India, the immediately
succeeding provisions which stretch the right too far are shrouded with
controversy. But so far as Section 24 is concerned, there are absolutely no
doubts as to its necessity to safeguard an important human right.
A case in which a confession is admitted in violence, is no doubt open
to the defence to object to the evidence of confession on the ground that it is
excluded by the Section 24 of Evidence Act. But such objection is raised, there
is no necessity for the court to pronounce any formal decision on the question
of relevancy of the confession. The actual admission of the evidence during
the trial is sufficient for the purpose. The section is clearly a general provision
and applies to confessions made by a person whether in police custody not and
whether it is made to be police officer or to others.
The law does not require the motive for a confession to be elicited. The
only requirement laid down by the law is that the confession should be free
from the blemishes of compulsion inducement, threat or promise. If the
confession is not tainted by any of these vitiating factors the court is entitled to
presume that it is voluntary. The stage of deciding the veracity or reliability of
129
the confession comes at the time of final disposal of the case when its weight
is determined in relation to the other evidence available on record.
4.21 Justification of Custodial Confession
The rule of total exclusion of custodial confession from evidence, as
enacted under Section 25 and 26 of the Evidence Act on the face of it, shows a
serious concern of legislature for protection against police brutality, of the
right of an accused person not to be compelled incriminate himself. The rule
carries the privilege against compelled self-incrimination quite for adding to it
the concept of deemed in voluntariness due to the custody of the police. In the
process, however, an important agency of the state entrusted inter-alia with the
job of maintaining law and order and of prevention and detection of crimes the
jobs essentially requiring public confidence and faith, gets stigmatized as
untrustworthy. A confession made by an accused to any third person before
he is apprehended by police is admissible in evidence and can be used to
convict the accused even if it is the sale link between him and the
circumstantial evidence, but not if it is made to a police officer or to anybody,
whilst he is in custody of the police except to the extent provided for in section
27 the prohibition is absolute.
Reasons for total exclusion appear to be historical more than anything
else.
Provisions akin to Sections 25 and 26 of the Evidence Act were first
enacted as Sections 147 and 148 of the Code of Criminal Procedure, 1861. In
England, this was the time when the rule originally laid down in that no credit
is to be given to a confession made out of compulsion had so firmly gained
ground that exclusion became the rule and admission, an exception was held in
R. v. Warick Eshall.79
79
1783 I Leach CC 263.
130
80
1852 2 Den. 430.
81
178 US 542 1897.
131
British rulers. A police Darogah was the person enjoying absolute powers
over the masses and did not hesitate in misusing them to harass and torture the
local inhabitants, employing short cut methods in investigation, in order to
prove his efficacy before the British bosses. The report of the Indian Law
Commission of 1855 observed:
The police in the Province of Bengal are armed with very
extensive powers. They are prohibited form inquiring into cases
of a petty nature but complaints in cases of more serious
offences are usually laid before the police Darogah, who is
authorized to examine the complaint to issue process of arrests
to summon witnesses to examine the accused and to forever the
case to the Magistrate or submit a report of his proceedings
according as the evidence may in his judgment warrant the one
or the other course. The evidence taken by the Parliamentary
Committees on Indian Affairs during the session of 1852 and
1853 and other papers which have been brought to our notice
abundantly show that the powers of the Police are often abused
for purposes of extortion and oppression and we have
considered whether the powers now exercised by the police
might not be greatly abridged.
And further that:
By the existing law the darogah or other police officer
presiding at any inquiry into a crime committed within his
division is required, upon apprehension of the accused to
question him fully regarding the whole of the circumstances of
the case and the persons concerned in the commission of the
crime and if any property may have been stolen or plundered,
132
accused was dropped and the limitation that remained was the bar to their
proof in criminal trials.
Thus, in short, the total exclusion rule was adopted in India for two
reasons namely:
i) This was the thinking in U.K. also at that time and
ii) The police in India were found untrustworthy.
4.22 Continuance of the Rule
The first of the two reasons of the rule being (adopted in India, no
longer exists in U.K. shed the approach of near total exclusion in the
beginning or 20th Century. In King v. Best,82 a strict exclusionary rule was
decisively rejected. Confessions recorded in violations of the Judges Rules
were often not admitted in evidence, but a discretion was still left with the
courts. Judges Rules did not as such have a rule of law, The discretionary
power of the courts was emphasized and it was laid down that while
considering admission or a confession made to the police, the court have to
consider the particular circumstances in which the particular suspect was
placed. It was held in DPP v. Pinglen.83 Then by virtue of the Police and
Criminal Act, 1984, confessions have been made admissible in evidence,
subject to satisfying the age old test of voluntariness.
Now coming to the second reason, it is generally accepted that police
have shown no reason in the last hundred years for the opinion about their
brutality. Oppression and alienation from the public to undergo any change.
The reforms undertaken after the report of the first Police Commission
appointed in 1860 failed to achieve any positive results towards improving the
image of the police. This was chiefly because not much attention was paid to
82
1909 I KB 692 (CCA)
83
1976 I AC 760.
134
this aspect. The Act of 186184 created a uniform and homogeneous police
system in India. But the nature and the basic procedures of work were not
drastically changed. The Indians were employed only in inferior posts and
could at the most reach the lower rank officers who used short cut methods of
torture and of exerting confessions, due to mounting pressures from their
superiors demanding quick results. Promotion or demotion of these officers
was dependent upon their ability to carry out investigation work.85 In 1902, a
Police Commission appointed under the Chairmanship of A.H.L. Fraser, in its
report described the Indian police as tyrannical and observed at in police there
was general absence of any attention to the necessity of keeping the temper
being civil and respectful to the public avoiding brutality or unnecessary
harshness and seeking by all legitimate means to make their performance of
duty as little distasteful to the people as possible.86 The Commission felt that
unqualified policemen recruited from a very low stratum of the society were
entrusted with too much power and authority which was one of the causes of
police oppression.
Then with the independence of the country the police came to be
looked as an instrument of governmental authority alien to the masses. The
laurels they had won for their loyalty to their former masters turned into
stigmas their services to a Government that was alien now alienated them an
their past modes and mores hung heavily with them as they sought fresh
adjustments with the people in the change context.87
84
The Police Act 1861.
85
Madan J.C. Indian Police, 1980, Uppal Publishing House.
86
Report of the Indian Police Commission 1902-3.
87
Pandey A.K. Development Administration and the Local Police, 1987, Mittal
Publications.
135
independent study. But common experience in Delhi shows that the traditional
torture rooms ill the police stations no longer exist. The accused persons and
witnesses are mostly interrogated in an open hall, usually accessible and
visible to any person entering the police station. The voice of the Duty Officer
on telephone is somewhat courteous beginning with Namaksar Some
policemen can even be seen helping elderly people cross the road or helping a
driver push-start his car in case of a breakdown. Further, today, cases of police
torture get easily highlight by the press and are likely to result in action against
erring officials. The police station is not the limit of reach of todays citizen,
like it used to be before independence. The superior officers of the police and
the courts are more easily accessible than they were at that time. The courts in
particular are more alive to the requirements of ensuring protection of rights of
the accused when he is handed over to police custody and of hearing his
grievances when he is produced before them. Even otherwise the very fact that
the whole of the police force was considered to be brutal and inhuman shows
that the reasons therefore were not individual. All individual members of a
force just cannot be alike. One easily identifiable reason was lack of training
and encouragement to the members of lower ranks of the police on whom the
entire responsibility of carrying out investigation lay. The only thing expected
of them was to show quick results as a mark of loyalty to their European
superiors. The superior officers did not come in contact with the public and the
lower rank officers were never oriented towards getting assimilated with the
masses. This was the position before independence. This system was therefore
thrust upon a policeman who have no option but to carryon the traditions. Can
individual policeman be said to be responsible for this? When individuals
accept the system since they have to work within it they are held to be
137
untrustworthy and are looked down upon by the legislators the Government
and the judiciary alike pushing them further deep into the vicious circle.
Shailendra Mishra describes the phenomenon as growth of a subculture
which includes brutality. The subculture is strengthened by alienation
cynicism low esteem in society a degree of parian feeling conflicting demands
made of policemen inconsistent judgement of their work; all forcing them into
a corner their backs to the wall. He points out that people except policeman to
beat up and torture goondas and when this is not done charge of corruption and
briery are hurled. During the course of handling agitations policemen suffer
injuries but at the end of it all while cases against toady elements who had
burnt buses destroyed private and public property and assaulted and hurt
policemen are withdrawn a mounting demand is made for a judicial inquiry
against police brutality. No appreciation is shown for the day and night work
rendered by them on occasions of natural calamities religious festivals fairs
and public gatherings. The diurnal condemnation of all and every policeman
the manifest presumption that they are all corrupt and inefficient the summary
dismissal of any presentation of their difficulties reinforce police cynicism.
It is submitted that the existence of provisions of the Evidence Act and
the Criminal Procedure Code which have the effect of indiscriminate
condemnation of all policemen is by itself a major reason for the cynicism
referred to by Shailendra Mishra while they are expected if perform important
functions of the state, they are looked down upon by every wing of the state
and also by the public whose security and safety is their main job. There is
therefore little wonder that whenever they have a chance they try to salvage
their self respect by being aggressive and rude. This is by no means meant to
justify the rudeness and brutality of the police. There can be no disputing the
proposition that police brutality and corruption are the most deplorable blots
138
on the face of this largest democracy of the world and have to be completely
weeded out before we call ourselves civilized and cultured. The point sought
to be made here is that branding all policemen as untrustworthy only adds to
the problem by further lowering the morale of the policemen and thus, inviting
more reaction. It is on the other hand much more likely that if faith is reposed
in them, they shall respond in a more responsible manner. Once their self-
respect is restored, the growth of the subculture of brutality may be checked.
Safeguards like direct and proper supervision by superiors, close scrutiny by
the Courts of Magistrates when the subjects are produced before them and
prompt and effective action on proven cases of torture or any other violation of
rights of the subjects can be simultaneously strengthened. Krishna Iyer, J.
expressed the hope for the future in case of Nandini Satpati v. P.L. Dani,91 in
the following words : . May be in later years, community confidence and
consciousness will regard the police force as entitled to better trust and soften
the stigmatizing or suspicious provisions, now write across the code.
It is humbly submitted that the time has arrived. Even if not for the
reason that the police have won the confidence of the people then because
distrust has failed to provide a solution and has in fact proved counter
productive.
4.23 Inefficacy of the Exclusion Rule in Securing Rights of the Accused
The next question is whether the total exclusion rule has been able to
guarantee the right the right of the accused against self-incrimination? Well
the prohibition created by Sections 25 and 26 of the Evidence Act is only to
admissibility of the confession in evidence in the course of a trial for that
particular offence. It does not bar the police form recording the confession
anyway. The police can still record a confession. In fact they are duty bound to
91
AIR 1978 SC 1025.
139
of U.P.92 that illegality in search and seizure does not affect the admissibility
of the India. A person can be arrested and his liberty curtailed on the basis of a
search conducted or evidence seized in flagrant disregard of the procedure
established by law even despite the contrary mandate of Article 21 a provision
the horizons of which have been otherwise expanded to unimaginable limits
by positive judicial activism in the last two decades. The view was upheld later
on in the case of State of Haryana v. Natwar Lal.93
Now what if even after using all conceivable methods, no useful
information is elicited? It is not difficult for a policeman to plant a discovery
on any person in almost any criminal case. In offences against properly if the
stolen property or at least if even one article of the stolen property is an easily
procurable one the same can be obtained from the market and easily planted
on anybody walking on the street. In case of an offence against human body,
the weapon of offence can be easily planted. Even in cases of blind accidents
the offending vehicle can be shown to have been first discovered on the basis
of information received from the accused. For these purposes some
discovery is first planted on the accused and then a suitable confessional
statement is fabricated to connect him with the discovery.
Thus the police can solve any crime, once they get hold of any
vagabond any previous offender or any person with whom they have some
enmity with the aid of Section 27 Evidence Act by fabricating a false
confession on his behalf. Delhi Police for one hardly sends up to the court a
charge sheet without invoking Section 27 in some way or the other.94 So much
for the utility of the exclusionary rule of custodial confessions in checking
police atrocities.
92
AIR 1963 SC 822.
93
AIR 1980 SC 593.
94
From the writers experience working as an Advocate in High Court of Delhi.
141
It is submitted that neither the total exclusion call be justified, nor can
the provisions like Section 27 Evidence Act and Section 163(2) Cr. P.C. which
by themselves reduce the so called total exclusion to a mockery. The solution
lies in restoring to the police their dignity and self-respect by reposing trust in
them and simultaneously, ensuring fair and high quality investigations by
adequately trained personnel with the aid of the most modern scientific
gadgets equipments and techniques. It is also to be ensured that police
personnel are motivated to adopt a people-friendly approach and those
entrusted with investigation of crimes, have adequate knowledge of and
respect for law and human rights. Any reported violation of the rights of the
accused person in the custody of a police officer should be made summarily
punishable by the same court where the accused is produced. A punishment on
this account should divest the concerned officer of his powers to investigate
offences. This can, however be effectively achieved only if all investigations
are made by senior and more responsible officers alone. It is also important
that these officers work under general legal guidance and so long as they
remain in the investigative wing are not involved in other routine activities
which could consume a lot of time and attention.
A confession made by a accused to any third person before he is
apprehended by police is admissible in evidence and can be used to convict the
accused even if it is the sole link between him and the circumstantial evidence
but not if it is made to the police officer or to anybody whilst he is in custody
of the police. Except to the extent provided for in Section 27 the prohibition is
absolute. After 56 years of independence, the police even today came to be
looked as an instrument of governmental authority alien to the masses. The
laurels they had won for their loyalty to their former masters, turned into
stigmas their services to the Government that was alien now alienated them
142
and their past modes and mores hung heavily with them as they sought fresh
adjustments with the people in the changed context.
4.24 Critical Appraisal
Now it is settled law that the confession made under threat, promise is
not an admissible evidence, hence can not taken into consideration for the
conviction of the accused. Further the confession made in the police custody
or in the presence of the police officer is also not relevant. In other words the
custodial confession is not relevant piece of evidence, hence not admissible.
But not the question arises what amounts to custodial confession and what is
the scope of custodial confession. A brief study about the custodial confession
is made in the next chapter.
4.25 Custodial Confessions
Unlike U.K. and U.S.A. Indian legislatures have created a total bar to
admissibility of custodial confessions in evidence. i.e. confessions made by an
accused person to police or to anyone, whilst in police custody. These are
governed by Sections 25 and 26 of the Evidence Act. The total exclusion rule
has been justified on the basis of unreliability of the police for according to
rights of the accused during interrogation.
4.26 Statement must Amount to a Confession
In order that Section 25 should be operative to prevent a statement
being received in evidence. It must amount to a confession.
We need not go in detail on what constitutes a confession after the
decision of the Privy Council in Pakala Narayan Swami v. King Emperor.95 In
this case, it was observed that even statements containing admission of gravely
incriminating facts tending to suggest that the accused committed an offence,
cannot be covered by Section 25 if they fall short of actual admission of guilt.
95
AIR 1939 P.C. 47.
143
96
R. v. Macdonald, 10 B.L.R. App. 2.
144
97
AIR 1932 Pat. 293 (SB).
98
Nanoo Shelkh Ahmed v. Emperor, AIR 1927 4.
99
State of Punjab v. Barkat Ram AIR 1962 SC 276 Raja Ram Jaiswal v. State of Bihar,
AIR 1964 SC 828 : Badaku Joti v. State of Mysore 1966 SC 1746 : Ramesh Chandra
Mehta v. State of West Bengal AIR 1970 SC 94.
100
AIR 1964 SC 828.
145
101
AIR 1965 Bom. 195.
102
3 CWN 393.
103
Jas Bahadur Thappa E. 31 Cr. L.J. 823.
104
Srikant Das v. E. 35 Cr. L.J. 1217.
105
Abu v. E 49 Cr. L.J. 43.
106
In re Mayilvahanam 48 Cr. L.J. 326. Also Percy Rustomje Bosta v. State of Mah. AIR
1971 SC 1087.
107
1962 (3) SCR 333.
108
Ram Jethmalani : Confession Modifying the Perspective. 1987 (F) : ILEJ 8.
146
109
The same would be the position under the provisions of Section 162, Criminal Procedure
Code
147
110
AIR 1965 Gujarat 302.
111
AIR 1965 SC 1906.
148
112
AIR 1965, Gujarat 5.
149
Shankar,113 the court said that it is not right to hold that a confession made to a
private individual in the presence of a chowkidar is in every case admissible in
evidence, yet where it is not shown that he chowkidar has in any way
influenced the accused, who is not in custody to make a confession and where
a chowkidar has taken no part in bringing about the confession of the accused,
then such a confession made to a villager in the presence of a chowkidar
would not come within the mischief sought to be averted by Section 25,
Evidence Act and would be admissible in evidence.
In R. v. Sangona,114 the court held that a police officer overheard the
accuseds confession though made in another room in ignorance of the
policemens vicinity and uninfluenced by it. The statement was held to be
legally admissible.
In Sahoo v. State of U.P.115 where the accused had been overheard
muttering something to himself or saying it to his wife or to any other person
something in confidence, his statement so made was held to be admissible in
evidence.
4.29 Confession Inadmissible if made to a Police Officer at any Time
before or after the Investigation
The words of Section 25 Evidence Act are wide enough to exclude any
confession to a police officer. Thus a confession made to a police officer at
any time that is either before commencement of investigation or after, is
inadmissible. Further in Hussain v. Emperor,116 it was said that the confession
need not be a confession of the crime under investigation. In Kodangi v.
Emperor,117 it was held that even a confession to the police officer of an
113
AIR 1934 Oudh 222.
114
7 W.R. 56 (Cr.)
115
AIR 1966 SC 40.
116
AIR 1936 Lah. 360.
117
AIR 1932, Mad. 24.
150
offence other than the one under investigation during the investigation of the
latter offence is inadmissible. For example if A says to the police officer. I
noticed B murdering X while I was murdering Z. There is a confession of A
that he murdered Z. As it is undoubtedly a confession made to a police officer
even though made during the investigation of the murder committed by B. It is
inadmissible under Section 25, Evidence Act. in re Elukuri Seshapani
Chetty,118 the court said that the whole spirit of Section 25. Evidence Act is to
exclude confession to the police and the movement a statement is found to
amount a confession it matters not in the slightest of what crime it is said to be
a confession. The provisions of Section 25 are unqualified. It indicates an
absolute rule of exclusion relating to confession made to a police officer.
4.30 Confession made in the F.I.R. is Inadmissible
When an accused himself turns up at the police station and lodges the
First Information Report with regard to an offence committed by him the fact
of his giving the information is admissible against him as res gestae. If the
information is non-confessional it is admissible as an admission under Section
21. But in the case of Aghnoo Nagesia v. State of Bihar,119 it has been held that
a confessional FIR by the accused to the police cannot be used in evidence
against him in view of Section 25. It has been held in Banarsi Dass v. State of
Punjab,120 that if the First Information Report made by an accused person
contains facts relating to motive preparation and opportunity to commit the
crime with which he is charged and the facts reacted therein are self-
inculpatory in the sense that the narrative describing the relation between the
accused and the deceased gives the motive for the crime with which the
accused is charged, the whole statement must be treated as a confession made
to a police officer and would be hit by section 25.
118
AIR, 1937 Mad. 209.
119
AIR 1966 SC 199.
120
1981 Cr. L.J. 1235 (P & H).
151
In Legal Ram v. Lalit,121 it was held that the confessional part and the non-
confessional part whether amounting to admission or not may be separated and
only the confessional part should be excluded.
It was held in State of Rajasthan v. Shiv Singh,122 that if there is a
confession of the accused pure and simple in the First Information Report
made by him, the entire First Information Report is inadmissible in evidence.
If in addition to the confession it contains certain other matters which are
relevant to the inquiry in the crime they may be taken into evidence as
admission of the accused but care must be taken to see that such statements are
not a part of the narrative of confession. A confessional statement does not
mean only that portion of the statement in which the commission of the actual
offence is referred to. If the accused has made a confession admitting that he
had committed an offence and at the same time further gives the details of the
preparation which he had made for the commission of the offence. It cannot be
said that the portion that relates to the preparation of the offence or other
activities of the accused in the matter of the commission of the offence can be
read in evidence and only that portion which relates to the actual commission
of the offence is inadmissible. The entire narrative in such a case is
inadmissible. If the first information report made by an accused person
contains facts relating to motive, preparation and opportunity to commit the
crime with which he is charged and the facts recited therein are self-
inculpatory in the sense that the narrative describing the relations between the
accused and the deceased gives the motive for the crime with which the
accused is charged the whole statement must be treated as a confession made
to a police officer and would be hit by Section 25. A narrative disclosing
121
49C 167.
122
AIR 1962 Raj. 3.
152
123
Ram Sajiwan v. State, AIR 1964 All. 447.
124
AIR 1939 P.C. 47.
153
125
Narayan Swami v. Emperor AIR 1939 PC 47.
126
6A 509 (FB).
155
In Parho Sahiwal v. Emperor,127 it was held that the word custody has
not been defined in the Evidence Act. But the ordinal meaning is sufficiently
clear. Two things there must be first there must be some limitation imposed
upon the liberty of the confessor; secondly this limitation must be imposed
either directly or indirectly by the police. Under Section 26 there is no
necessity to prove a formal arrest. It would be sufficient to constitute police
custody if the accused is present before the police and cannot depart as his
own free will. It must be pointed out that there is a distinction between an
accused being under arrest and an accused being in custody. The learned
judge pointed out the danger of construing the expression police custody in
Section 26 of the Evidence Act in a more narrow technical sense as
commencing from the time when the accused is formally arrested.128 The
learned judge said that the correct interpretation would be that as soon as an
accused or suspected person comes into the hands of a police officer he is in
the absence of any clear and unmistakable evidence to the contrary, no longer
at liberty and is therefore, in custody within the meaning of Section 26 and
27 of the Evidence Act. Even indirect control over the movements or suspects
by the police would amount to Police Custody within the meaning of this
Section.129
In Jai Ram Ojha v. State,130 a constable who was engaged on beat duty
in neighbouring village soon after committing of the offence, came to the spot,
kept guard over the dead body as some foul play was suspected. He was also
guarding the accused so that he may not run away. It was held by the court that
the accused was under surveillance or the police constable and that any
127
AIR 1932 Sind 201.
128
Muang Lay v. Emperor AIR 1924 Rangoon 173.
129
Haroon v. Emperor AIR 1932 Sind 144.
130
AIR 1968 Orr. 87.
156
said to have been under some sort of surveillance or restriction and does not
commence only when the accused is arrested but would commence from the
moment when his movements are restricted and he is kept in some sort of
direct or indirect police surveillance.134
It is also well settled in Paramhans Jadad v. State,135 that if once police
custody has commenced the mere fact that for a temporary period the police
discretely withdraws from the scene and left the accused in of some other
person will not render the confession of the accused before that person
admissible. Once an accused is arrested by a police officer and is in his
custody the mere fact that for some purpose of other the police officer happens
to be temporarily absent and during his temporary absence leaves the accused
in charge of a private individual does not terminate his custody the accused
shall be deemed to be still in police custody.136
Under Section 26 of Evidence Act, it is immaterial whether the police
held the suspected person or the accused under legal custody or under an
illegal custody. An illegal custody is custody for the purpose of Section 26.
Thus, a confession article by an accused person while he was in illegal custody
of the police suffers from the same defects which Section 26. Evidence Act
intends to avoid. So a confession made by an accused under such
circumstances is also inadmissible in evidence as the illegality of the arrest
does not make Section 26, Evidence Act inapplicable. In fact, there is more
justification to exclude such confessions than when made in legal custody.
The crucial test, therefore, is whether at the time when a person makes
an extra-judicial confession he is a free man or his movements are controlled
134
Chottelal v. State AIR 1954 All. 687.
135
AIR 1964 Orr. 144.
136
Emperor v. Nat Jagia (1938) 17 Pat. 369.
158
137
AIR 1934 All 351.
138
AIR 1930 Lah. 534.
159
while the police officer was conducting his investigation the evidence of the
Magistrate as to what happened is not admissible under Section 26. It is
unobjectionable, if a Magistrate arrived out such an investigation himself but
for a Magistrate merely to accompany a police officer while the police officer
is making the investigation does not render the evidence of what happened
admissible under the Evidence Act.139
4.36 Magistrate
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.
Under Section 26 courts are not precluded from taking into consideration
confessions made by prisoners in police custody to Magistrate in England or in
a foreign country the definition of Magistrates in the General Clauses Act not
being confined to Magistrates exercising jurisdiction over a particular area.140
It is, however, submitted that 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. The Act being limited in its
application to the territory of India its provisions also, unless specifically
mentioned can have no application to Foreign Territories. Under this section,
Magistrates though on leave and not in the district in which they have been
exercising jurisdiction are Magistrates within the meaning of Section 26 of
Evidence Act. 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
139
Mst. Gajrani v. R. AIR 1933 All. 394.
140
Panchnathan v. R. AIR 1929 Madras 487.
160
141
R. v. Vahala 7 Bombay H.C. 56.
161
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