Law and You >Procedural Laws > Bharatiya Sakshya Adhiniyam, 2023 > Part II > Confession under BSA (Ss. 22 to 24)

Section 22 to 24 of the Bharatiya Sakshya Adhiniyam, 2023 deal with relevancy of `Confession’ in criminal proceeding. The term “Confession” has not been defined in the Sanhita. In simple words `confession’ means admission or acknowledgement of guilt by person accused of crime. Sir Stephen in his Digest of the Law of Evidence has defined that “a confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed a crime.” In this article, we shall discuss related provisions under the Bharatiya Sakshya Adhiniyam, 2023.

In Pakala Narayan Swami v. Emperor AIR 1939 PC 47 Privy Council observed “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 be confessed, Moreover a confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.”

Confession

Section 22 BSA:

Confession Caused by Inducement, Threat, Coercion 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, coercion 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:

Provided that if the confession is made after the impression caused by any such inducement, threat, coercion or promise has, in the opinion of the Court, been fully removed, it is relevant:

Provided further that 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.

According to Section 22 BSA the confession made by the accused is irrelevant on the following grounds:

• The confession is the result of inducement, threat or promise;
• The inducement, threat or promise has come from a person in authority;
• The inducement, threat or promise relates to the charge in question;
• The inducement, threat or promise holds out some worldly benefit or advantage.

In Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167 case, the Supreme Court had observed that to attract prohibition enacted in Section 24 of Evidence Act (S. 22 BSA), following facts must be established

• Statement in question is a confession;
• It is made by accused person;
• It has been made to a person in authority;
• It has been obtained by reason of any inducement, threat or promise proceeding from a person in authority;
• Inducement, threat or promise, must in the opinion of court be sufficient to give accused grounds which would appear to him reasonable for supposing that by making of it he would gain any advantage or avoid any evil of temporal nature in reference to proceedings against him.

Thus, the Section 22 BSA lays down the exclusionary rules.

In Shankaria v. State of Rajasthan, 1978 (3) SCC 435 case, Sarkaria, J, noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary and (2) if so, whether it is true and trustworthy. The learned Judge pointed out that if the first test is not satisfied the question of applying the second test does not arise. Then the Court indicated one broad method by which a confession can be evaluated. It was said: “The Court should carefully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.”

According to the first proviso attached to Section 22 BSA, if such a confession as is referred to in Section 22 BSA 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.

Under Section 22 BSA when it is in the opinion of the court that a confession of an accused seems to have been caused by inducement, threat, promise or hope of advantage, it is irrelevant and cannot be proved. But under first proviso attached to the Section 22 BSA, if the Court is satisfied that the impression of inducement, threat or promise has been fully removed from the mind of the accused and the accused is totally free from the evil of fear or advantages, the confession will be relevant.

In determining whether an inducement has ceased to operate, the nature of such inducement, the time and circumstances under which it was made, the situation of the person making it, will be taken into consideration by the court.

According to second proviso attached to Section 22 BSA 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 deception practiced on the accused person for the person of obtaining it or when he was drunk or because it was made in answer to question which he need not to have answered, whatever may have been the form of those question or because he was not warned that he was not bound to make such confession and that the evidence of it might be given against him.

The second proviso attached to Section 22 BSA provides that there is no bar to admissibility of a confession even if it was made under the promise of secrecy. Under this section a confession made by an accused is relevant even if it can be excluded from being proved under the following circumstances:

• When it was made to the accused under a promise of secrecy;
• By practicing a deception on the accused;
• When the accused was drunk:
• In answer to question which the accused need not have to answered: or
• When no prior warning was given to accused that he was not bound to make any confession and that might be used against him.

In Rangappa Hanamppa v. State, AIR 1954 Bom 285 case, the Court held Section 29 (Second proviso of S. 22 BSA) assumes that there is no bar to the admissibility of the confession in question arising from any of the earlier provision i.e. from Section 24 to 26 of the Indian Evidence Act (S. 22 and 23 BSA) and it then proceeds to invalidate or negative other positive objections or bars that may be raised against its admissibility.

Section 23:

Confession to Police Officer

(1) No confession made to a police officer shall be proved as against a person accused of any offence.

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

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 discovered, may be proved.

According Section 23(1) BSA no confession made to a police officer shall be proved as against a person accused of any offence.

The policy behind Section 23(1) BSA is to exclude all confessional statements made by the accused to the police officer under in circumstances while he is in custody of the police except as is provided in proviso attached to Section 23 BSA. Thus, a confessional statement made by the accused to the police officer during and after investigation under section 181 BNSS is not admissible.

Section 23(1) BSA merely forbids the use of confession in criminal cases, but not in civil suit. Admission made to a police officer may be accepted as an admission in civil proceedings under sections 15, 16, 19 of BSA.

According Section 23(2) BSA no confession made by any person whilst he is in custody of police officer unless it be made in immediate presence of magistrate shall be proved as against such person.

The section is based upon the same logic that the police in order to secure confession uses all types of coercive methods, because the accused is put in constant fear and forced to confess. The reason is that a person in the custody of police is presumed to be under their influence and it provides opportunities for offering inducement or extorting confession, but the presence of a Magistrate is a safe guard and guarantees the confession.

According to the proviso attached to Section 23 when any fact is deposed as discovered inconsequence of information received from a person accused of any offence in the custody of police officer, so much of such information whether it amounts to confession or not as relates distinctly to the facts thereby discovered, may be proved.

According to proviso, during the period of investigation or during police custody any information is given by the accused of an offence to the police officer that leads to discover any fact, may be proved whether such information amounts to confession or not, and obtained under inducement, threat or promise.

The following conditions are necessary for the application of the proviso of Section 23 BSA:

• The fact must have been discovered in consequence of information received from the accused;
• The person giving information must be accused of an offence;
• He must be in custody of a police officer;
• That portion only of the information which relates distinctly to the fact discovered can be proved;
• The discovery of fact must relate to the commission of crime in question;
• Before the statements proved somebody must depose that some article was discovered in consequence of the information received from the accused.

In Inayatulla v. State of Maharashtra AIR 1976 SC 483 It was observed by Supreme Court that Section 24, 25 and 26 IEA (Ss. 22 and 23 BSA) exclude confession under certain circumstance. Section 24 IEA (S. 22 BSA) lays down that if the confession appears to have been caused by threat, or promise, or inducement, it cannot be proved. Section 25 (S. 23(1) BSA) lays down that confession made to the police officer cannot be proved against an accused. Section 26 IEA (S. 23(2) BSA) lays down that a confession made by any person while in custody of a police officer to any person other than a Magistrate will not be proved. Section 27 IEA (proviso attached to S. 23 BSA) is a proviso, that is, a controlling Section and furnishes an exception to the Rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact.

In State of U.P. v Deoman Upadhyaya, AIR 1960 SC 1125 case, the validity of Section 27 of the Evidence Act (proviso attached to S. 23 BSA) was challenged on the ground that it was offending Article 14 of the Constitution of India. In appeal the High Court declared Section 27 IEA (proviso attached to S. 23 BSA) to be unconstitutional as it created unjustifiable discrimination between “persons in custody” and “persons out of custody.” Further appeal was made by the State of U.P. against the judgment of the High Court in the Supreme Court. It was held by the Supreme Court that the distinction between “persons in custody” and “persons out of custody” had little practical significance. By majority decision the Section 27 IEA (proviso attached to S. 23 BSA) was declared to be constitutional and the conviction awarded by the Session judge was restored.

Section 24:

Consideration of Proved Confession Affecting Person Making it and Others Jointly Under Trial for Same Offence:

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation I:

“Offence”, as used in this section, includes the abetment of, or attempt to commit, the offence. 18

Explanation II:

A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.

Illustrations:

(a) A and B are jointly tried for the murder of C. It is proved that A said—“B and I murdered C”. The Court may consider the effect of this confession as against B.

(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said— “A and I murdered C”. This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.

When more than one person are being jointly tried for one and the same offences they are called co-accused. Any one of them is at liberty to confess his own guilt and can make statements against others/co accused. But such confession will be admissible against him and others provided conditions laid in section 30 are fulfilled.

In Prakash Dhawal Khairnar v State of Maharastra, AIR 2002 SC 340 case, the Supreme Court held that confessional statement of one accused recorded under section 164, CrPC (S. 183 BNSS) by a magistrate would be admissible against the other accused as both were jointly tried. If the confession is not recorded by the magistrate under section 164, CrPC (S. 183 BNSS) it may be used under section 30 of the Evidence Act (S. 24 BSA) if they are not regulated by Section 24 of this Act (S. 22 BSA).

Types of Confessions and Their Evidentiary Value:

Judicial Confessions:

Judicial Confessions are those which are made before a magistrate or in court in the due course of legal proceeding. When an accused during investigation of crime, make confession u/s 164 CrPC (S. 183 BNSS). or when court frame charge against Accused and Accused plead guilty to charge, it is called a judicial confession.

Extra Judicial Confession:

Extra judicial confessions are those which are made by accused to anyone other than Magistrate or before court. Extra judicial confession though considered to be a weak piece of evidence yet if found to have made voluntarily, then upon proof of it can be made basis of conviction of accused.

In Piara Singh v. State of Punjab, 1977 Cri.L.J. 1941 (SC) case, the Supreme Court observed Evidence about extra judicial confession is a weak kind of evidence. If it is not probable it must be rejected. However, law does not require that evidence of an extra judicial confession must be corroborated in all cases. Where the extra judicial confession is proved by an independent witness who bore no animus against Accused, it may be basis of conviction. If the extra judicial confession is proved to be voluntary conviction can be based on such confession.

Extra judicial confession by its vary nature is a weak piece of evidence and lacks authenticity and reliability whereas judicial confession which is recorded after complying with all relevant provisions of law is most reliable and can easily be acted upon by court. It is also important to point out that law does not recognize the evidence of extra judicial confession, as such, therefore it has been held by Apex Court in many judgements that extra judicial confession should ordinarily be not accepted unless it inspires confidence and reliability having regard to facts of each case. Judicial confession on the other hand most reliable and can be made basis of conviction.

Retracted Confession:

A retracted confession is a statement made by an accused person before the trial begins by which he admits to have committed the offence but which he repudiates at the trial. When a confession is retracted the fact of such retraction has a bearing on the question whether it is voluntary or true and for deciding whether the retracted confession was voluntary or not court shall consider all attendant factors which throw a light on the nature of the confession such as

• Reason given by accused for giving the confession;
• Circumstances alleged by accused which throw doubt on voluntary nature of confession such as inducement, threat or pressure from police;
• Material discrepancies between testimony of eyewitness and contents of confession;
• Peculiar facts and circumstances under which accused made confession.

It is unsafe to base conviction on a retracted confession unless it is corroborated by trustworthy evidence.

In State of Maharashtra v. P.K. Pathak AIR 1980 SC 1224 case, the Supreme Court held `It is settled that as a matter of prudence and caution which has sanctified itself into Rule of law, a retracted confession cannot be made solely the basis of conviction unless the same is corroborated in material term “

In Sakha Ram v. State of Maharashtra AIR 1994 SC 1594 case, the Supreme Court held that it will settled that the retracted extra judicial confession though a piece of evidence on which reliance can be placed but the same has to be corroborated by independent witness and that apart the court must be satisfied that confession alleged to have been made was true and voluntary one

All confessions are admissions but all admissions are not confessions:

The term confession is nowhere defined in the Bharatiya Sakshya Adhiniyam, 2023, but the definition of admission under Section 15 BSA becomes applicable to it. If a statement made by a party in the civil proceeding, it is called as admission while if it is made by the party charged with the crime, in a criminal proceeding, it is called as a confession. Thus, the confession is a statement made by the person charged with a crime suggesting an inference as to any fact in issue or as to relevant fact.  The inference that the statement should suggest that he is guilty of a crime.

Confessions are merely a species of admission which is defined under Section 15 BSA. While admission is genus itself. Thus, the confession is a subset of admission. Confession can be made by accused only, while persons who are not parties can make admission. Confession is irrelevant when made in police custody u/s 23(1) & 23(2) BSA, while, admission is relevant when made in police custody under proviso of Section 23. Form of confession is prescribed u/s183 BNSS, while no form of admission has been prescribed. Confession is regarded as conclusive proof, if it is made voluntarily and truly made, while admission is not regarded as conclusive proof. Thus, all confessions are admissions but all admissions are not confessions.

Conclusion:

Sections 22 and 23 BSA and relevant part of Proviso of Section 23 of BSA, deal with condition that when can confession be irrelevant. Section 22 BSA lays down that if the confession appears to have been caused by threat, or promise, or inducement, it cannot be proved. Section 23(1) BSA lays down that confession made to the police officer cannot be proved against an accused. Section 23(2) BSA lays down that a confession made by any person while in custody of a police officer to any person other than a Magistrate will not be proved. The proviso attached to Section 23 is, a controlling section and furnishes an exception to the rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact. Section 24 BSA deals with confession by co-accused.

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