Articles, CrPC

Confessions Under Cr.P.C – A Critical Review

-By Govind Gehlot* & Anuj Shukla**

Introduction

Confessions rate in India is very less in number. The reason for this can be irregular practices of lawyers to save their clients by hook or crook, underrated convictions, and many more. Still, Indian Criminology system has adopted the adversarial form where the accused is presumed as innocent until proven guilty. If the person feels to confess and admit his guilt, he can do so.

The concept of confession finds its roots back in all religions where one can have remorse for the sin committed. The idea behind this is to have a free life and a life of dignity to the person. The person committing the crime should have a choice of accepting it and in this way, he can lead a life without any burden of guilt.

Confessional Statement and Trends

Confession means admission or acceptance of something done. Under Criminology, Confession is an admission of guilt. Act of admission infers that the offence for which the person is accused of is committed by him. To constitute a confession, the person accused has to either accept the guilt or submit substantial information that indicates the said offense being made. A statement or any form of a declaration that is inclusive of self-exculpatory cannot be quantified as a confession. Section 164 of Criminal Procedural Code, 1973 (“the Code”) provides authority to a judicial or metropolitan magistrate, whether has the case under his jurisdiction or not, to file a confession which was made to him before any time or at the stage of inquiry or trial. Though the Code specifically does not provide for provisions, there are different types of confessions. They can be classified into four types.

1. Judicial Confessions – It is made before a judicial or metropolitan magistrate and can be used as evidence against the accused.

 2. Extra-Judicial Confessions – These confessions are given to a person other than a judicial magistrate and are not made at the time of judicial proceedings.

 3. Retracted Confessions – The accused who confess and then denied the scrutiny of such confession is said to be retracting from the confession made. But these types of confessions are valid if they can be proved true with the corroboration of independent proofs.

 4. Confessions by co-accused – Confessions can be made by the co-accused in the crime but do not prove the guilt. Such confession to the cause of individuals being affected by such offence has to be analysed by the court on a factual basis.

Privy Council, in the case of Pakala Narayan Swamy vs. Emperor, held that a confession must be such which either admits the guilt of the offence the accused is alleged of or clearly directs the substantial facts which infer commission of the offence. An admission of the incriminating act would not be considered to be a conclusive confession for such an act. This ruling was again reiterated in the case of Palvinder Kaur vs. State of Punjab. Also, a mixed-up statement won’t be considered to be a confession and will lead to an acquittal.

This view was rejected in the case of Nishi Kant Jha vs. State of Bihar and was held that Court may use the inculpatory part of the confession if there are enough evidence and reasons to reject the exculpatory part. Thus, even a part of the confessional statement can be relied upon and it’s not mandatory to depend upon the full confessional statement.

Admissibility of Confession

Section 164 of the Code prescribes the procedure for recording of statements and confession. Read with Section 25 of Indian Evidence Act, 1872 (“IEA”) it infers that a confession is only admissible when given to a judicial or metropolitan magistrate in due course of judicial proceedings. It states that confession made to a police officer shall not be used as evidence against the person making it. It also means that such confession has to be made to the magistrate when he is acting in his official capacity and not in his personal capacity. Thus, judicial confessions are admissible in court of law, unlike extra-judicial confessions.

Now the question is to the evidentiary value of Judicial and Extra-Judicial Confessions. Confession made in police custody is valid if given at the instant presence of the magistrate there. Else such confession does not hold any evidentiary value. This provision is inferred from Section 26 of IEA. On spot presence of magistrate ensures no influence of police officer on the accused to confess i.e. it should be voluntary and free. In the case of Sahoo vs. State of Uttar Pradesh, the accused was charged with murder of his daughter. He was heard saying, “I have finished her and the daily quarrel with her”. This statement was considered to be an admissible confessional statement by the court. Additionally, for extra-judicial confession, it is not necessary that it has to be communicated to some other person.

Confessions Made to be Voluntary and Free

 Another general rule is that the confessions made should be voluntarily and free. There should not be coercion, compulsion, or threat that made the accused to give a confession. Section 24 of IEA states that if confessions are given out of any form of inducement, threat or promise or any type of influence by police officers in the police custody, they are inadmissible. This rule acts as a check and balance on the procedure for recording of confessions by the magistrate. This prevents false confessions to be recorded and to showcase insufficient protection by police officers.

General Rules for Making Confessions

 From the analysis of relevant sections as discussed above, some general rules for making confessions can be clubbed as-

  1. Confession to be made before the beginning of the trial before a magistrate, acting in official capacity, in due process of judicial proceedings. Such confessions are admissible and have evidentiary value in  court of law. Confessions made other than to magistrate are inadmissible.
  2. Confessions made outside police custody to any individual, friend or relative of accused or to the co-prisoners by the accused are admissible but are weak evidence in court of law.
  3. Accused must be known of the presence of the magistrate while giving the confession. The magistrate has a duty to inform the accused of using this statement as evidence against him, before taking the confession.
  4.  The confessions made have to be recorded and signed by the magistrate. Also, it has to be read over to the accused to have complete transparency in the procedure and to protect the accused’s constitutional rights.

Procedure for Recording of Confession

Procedure for recording of confessions made by the accused is prescribed in Section 281 of the Code. It directs the magistrate to record the confession in the memorandum prescribed and sign it after recording it. If  examination of accused is done by a magistrate other than the metropolitan magistrate or Court of Session, then it shall be recorded by the presiding judge or else by the superintendence officer in case of physical absence. It further states that the record shall be in the language of the court or the one which the accused understands. If the language is not comprehensive then it shall be conveyed to him in the language which he understands. Finally, the record has to be signed by the accused to ensure that it is recorded on true account. Nothing under this section can be applied to the case of a summary trial.

Non-Compliance with the Procedure

Any form of non-compliance with the procedure to the record confessions attracts Section 463 of the Code along with Section 29 of IEA. The section reads as if the court or the magistrate finds any non-compliance or deviation in the procedure for recording the confessions under Section 164 or 281, he can still admit those confessions as admissible if he finds that such deviation or non-compliance do not injure the accused in any way for a fair trial or in his defence on grounds of merit. Also, this Section applies to all Courts of appeal, revision, and reference. A similar connotation has been noted in Section 29 of IEA where a confession made under promise or secrecy does not lose its evidentiary value and is still admissible.

In the case of Dagdu vs. State of Maharashtra, the magistrate took the confessions of the eight accused persons without giving them a warning under Section 164(2). It was contended that it is a grave violation of fair trial and is prejudicial to the accused. Therefore, the Court invalidated the confessions taken and rendered them as inadmissible. The non-compliance won’t affect the admissibility of the confession unless such deviation is in prejudice to the accused.

In another case of Rabindra Kumar Pal vs. Republic of India, the court opined that the warning by the court or magistrate to the accused before recording the confession is mandatory. It is not discretion but an essential provision that has to be adhered with. The accused must be informed of the fact that he is not bound to give the confession and if he does so, such confession can be used against him. The non-compliance with this clause would lead to prejudice of the accused as to defend his case on grounds of merit and would vitiate the trial.

In the case of State vs. RamAutar Chaudhary, the confessions were recorded after the preliminary inquiry began against the accused. The court decided that a confession cannot be recorded at the stage of inquiry or trial. It has to be done before the commencement of the trial. Thus, the confessions were not admissible

Retraction of Confession

A confession whether retracted or not is admissible in the court. Once the confession is retracted, the court becomes obligated to take into account all the aspects that may be related to the confession in order to check the validity of the confession and its retraction. They look into the nature of the confession, whether it was made voluntarily or not. If sufficient materials and facts are found supporting enticement, the confession becomes unacceptable and immaterial. Also, if the accused retracts the confession, the magistrate has to order judicial custody and shall not send the accused back to police custody as there is a presumption of threat and fear caused by the police. The right to retract is provided to the accused as the principle of self-incrimination under Section 164(3) has to be in constitutional line with Article 20(3) of the Constitution.

It was laid down in the case of Vinod Solanki vs. Union of India, that“mere retraction of confession shall not be sufficient to make confessional statement irrelevant for purpose of proceeding in a criminal case or a quasi-criminal case”. Also in the case of Pyare Lal Bhargava vs. State of Rajasthan, the Apex Court ruled that “a retracted confession may form the legal basis of a conviction, unless corroborated, if the Court is satisfied that it was true and was voluntarily made. It is not a rule of law, but is only a rule of prudence.”

Conclusion

Confessions form an important part of a trial. But the major drawback we observed is involuntary confessions made due to coercion or police threat. This is where the Criminal mechanism lacks to improvise the rights of the accused. In India, we have accused oriented Criminal Machinery which ensures that there is no infringement of fundamental rights of accused in the whole procedure of trial and conviction in a case. The retraction of confession also affects the trial. It brings a pause to the investigation. When such confession is retracted, a substantial amount of time has lapsed and there are higher chances of tampering of evidence and witnesses which would have resulted in acquittal. With time, there is a need for improvement in the judicial system which leads us to a higher probability of an efficient and healthier approach to justice.

The author* and the co-author** are 2nd Year Students of National Law University Odisha.

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