Legal Service India - Critical Analysis on Confession
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Critical Analysis on Confession

Written by: Arpan Gupta - Presently in 4th Year,. L.LB. (Hons.) - University School Of Law & Legal Studies, Guru Gobind Singh Indrapastha Universitiy
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The concept of confession which existed since time immemorial needs serious help. The provisions of evidence relating to confession which was passed way back in 1872 needs a serious revamp to come into terms with backlog of criminal cases in India. The Evidence Act 1872 needs to be changed considerably specially in case of confessions so as to increase the expediency of the criminal trials as to bring back the faith of the judiciary by expedient disposing of Criminal Cases.

Definition of Confession

The term confession is nowhere defined in the Evidence Act. All the provisions relating to confessions occur under the heading of ‘admission’.
The definition of admission as given in Section 17 becomes applicable to confession also. Section 17 defines admission as “a statement oral or documentary which suggests any inference to any fact in issue or relevant fact.”

In Pakala Narayan Swami v Emperor Lord Atkin observed
“ A confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab the Supreme Court approved the Privy Council decision in Pakala Narayan Swami case over two scores.
Firstly, that the definition if confession is that it must either admit the guilt in terms or admit substantially all the facts which constitute the offence. Secondly, that a mixed up statement which even though contains some confessional statement will still lead to acquittal, is no confession. Thus, a statement that contains self-exculpatory matter which if true would negate the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed out that there was nothing wrong or relying on a part of the confessional statement and rejecting the rest, and for this purpose, the Court drew support from English authorities. When there is enough evidence to reject the exculpatory part of the accused’s statements, the Court may rely on the inculpatory part.

Provisions Regarding Confessions

Section 24 of the Evidence Act: Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings- “A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of temporal nature in reference to proceeding against him”.

To attract the provisions of Sec 24, the following facts must be established
(a) The confession must have been made by an accused person in authority

(b) It must appear to the court that the confession has been caused by any reason of inducement, threat or promise proceeding from a person in authority

(c) The inducement, threat or promise must have reference to the charge against the accused person

(d) The inducement, etc. must be such that it would appear to the Court that the accused, in making the confession, believed that he would by making it, gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

In view of the recent trends of crime in Indian Society, this section needs a revamp. The criminals in lieu of this section have gotten free.

Also this section should be reworded so as to include inducement as an option to the accused to confess to the crime committed by him. A provision should be made that if the person confesses to his crime then the inducement given by a person in authority should fulfill that.

The inducement should be made a legal one and an obligation to be fulfilled by the authority. That would tempt the accused to confess the crime and would severely lessen the burden of the courts.

As it is the concept of plea bargaining has been reinvigorated in the Indian Criminal System with an amendment in the Criminal Procedural Code. With inducement as an option being allowed in case of confessions, this with plea bargaining would help in clearing the tremendous backlog of criminal cases which exist in our legal system.

Most of the criminals are forced to take up crime. If they are induced in a way in which their families are promised work and food, they may be inclined to confess their crimes as it will be an advantage to them and their family. Also this provision should include the option of reduction of punishment if the accused confesses the crime or if the accused return back the stolen goods. This would act as a tempting offer for the accused and more confessions would take place as it would be advantageous for the criminals to confess.

This promise or inducement should be made a legal obligation for the person in authority. To prevent abuse by the police officers of this provision, “person in authority” should not include police officers. It should comprise of magistrates, civil servants, etc.

Even though confession because of inducement or promise should be made legal, care must be taken to prevent torture of the prisoners by the police officers or persons in authority. No confession should be allowed which is taken through threat and violence.

Thus, this provision should be amended in such a manner which would make confession due to a valid and legal inducement or promise legal, but confession due to threat and violence illegal and irrelevant.

Section 25 of the Evidence Act: Confession to police officer not to be proved

“No confession made to a police officer, shall be proved as against a person accused of any offence.”
The object of this rule is to prevent the extortion of confessions by police officers who in order to gain credit by securing convictions go to the length of positive torture.

A series of conflicting suggestions as to the rational underlying this inflexible statutory bar emerges from the decided cases:
(1) An objective and dispassionate attitude cannot be confidently be expected from police officers.
(2) The privilege against self incrimination has been thought to lie at the root of the principle.
(3) Importance has been attached to the discouragement of abuse of authority by the police that could erode the fundamental rights of the citizen.

Section 25 is an inflexible and a very wide provision disallowing any confessional statement made to a police officer.

This provision needs to be made a little flexible. Some confessions should be allowed to be proved against a person accused of any offence which are made to a police officer. Where a person is a proclaimed offender, confessions made by the accused to the police officer should be allowed. The provision should be reworded in such a manner where the confessional statements made by a proclaimed offender to a police officer should be made relevant but these statements are to be made by the accused without any threat or violence.

Care must be taken to stop the torture by the police officers to extract confession but confessions made by an accused who is a proclaimed offender to a police officer without threat or violence being committed on the accused by the police officer should be made valid.

The rationale behind allowing confessions of a proclaimed offender is that, these criminals already have a history of committing crimes and they should not enjoy the immunity given to a common man that any confessional statement given to a police officer is not valid. These are dangerous criminals who should not be allowed to go scot-free due to a provision of law but be put behind bars and save the society from crimes.

Section 26 of the Evidence Act- Confession by accused while in custody of police not to be proved against him:

“No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.”

This section will come into play when the person in police custody is in conversation with any person other than a police officer and confesses to his guilt. The section is based on the same fear, namely, that the police would torture the accused and force him to confess, if not to the police officer himself, at least to some one else.

This section should also be reworded as suggested in section 25 above. Confession by accused while in police custody should be held valid in case the accused is a proclaimed offender except unless the confession is made by the use of force or threat.

The rationale is the same i.e. in criminal cases, the public interest lies in prosecuting criminals and not compromising with them. Thus, proclaimed offenders should not be allowed to take advantage of the law. Section 26 which recognizes one exception that is, if the accused confesses in the immediate presence of a Magistrate, the confession will be valid should not be changed. It should be kept as it is.

Section 27 of Evidence Act: How much of information received from accused may be proved:

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 information (whether it amounts to confession or not) as relates distinctly to the fact thereby discovered, may be proved.

Section 27 is founded on the principle that if the confession of the accused is supported by a discovery of a fact, it may be presumed to be true and not to have been extorted. In the famous case of Pulukari Kottaya v Emperor the scope of Section 27 was explained by their lordships:

“ Section 27 provides one exception to the prohibition imposed by Section 26 and enables certain statements made by a person in police custody to be proved. The condition necessary to bring Section 27 in operation is that the discovery of fact in consequence of information received from accused must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. Normally the section is brought into operation when a person in police custody produces from some place of concealment, some object e.g. a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused.”

The section is quite apparently laid out as a proviso or an exception to the preceding section which deals with confessions in police custody and other involuntary confessions. Thus it seems that the intention of the legislature is that all objections to the validity of that part of the statement are washed off which leads to the discovery of an article connected with the crime. Whether such a statement proceeds out of inducements, threats or torture are absolutely immaterial.

This provision is liable of abuse by the police officers. With a view to finish of cases, police officers can subject the accused to torture and then plant evidence so as to proclaim the accused as guilty. This provision should be amended. The discovery of fact as purported by this section should be made in front of two witnesses so that there could be no planting of evidence done. This should be included in substantive law, irrespective of the fact that it exists in procedural law.
Also, the statement of the accused which has lead to the discovery of a relevant fact would be invalid if it had been taken because of extortion, threat or torture. The accused should sign a document stating whether any fact discovered is not due to extortion or threat. The accused can be induced only if it is a valid and legal inducement.

After all these steps, the accused gives a statement which leads to the discovery of a relevant fact, then the whole statement should be made relevant rather than only the statement which lead to the discovery of the fact. The accused should, after making the statement and the police discovering the relevant fact stated in the statement, again sign a document purporting that he has made the signature and seen what has been discovered from his statement. A District Judge/Metropolitan Judge should be present as in when the accused signs the statement.

It should be made mandatory that all these provisions are read out to the accused as soon as he is arrested. This would help knowing the accused of his rights and he wouldn’t be unaware and act accordingly.

Section 28 of the Evidence Act: Confession made after removal of impression caused by inducement, threat or promise relevant:

“If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed it is relevant.”

This section should be amended as section 24 should be amended. So, therefore, section 28 should be reworded as that:
“ If such a confession as is referred to in section 24 is made after the impression caused by any threat or violence has in the opinion of the court, been fully removed it is relevant.”

Section 29 of Evidence Act: Confession otherwise relevant not to become irrelevant because of promise of secrecy, etc:
“If such a confession is otherwise relevant it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions 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.”

In criminal cases, the public interest lies in prosecuting criminals and not compromising with them. Therefore, where an accused person is persuaded to confess by assuring him of secrecy of his statements or that evidence of it shall not be given against him, the confession is nevertheless relevant.

This provision is absolutely perfect and does not need any amendment or rewording. It is an exhaustive provision taking into account all possibilities. Therefore, this is a perfect provision needless of any amendment.

Conclusion
This change in the Evidence Act is necessary so as to invigorate the trust and faith of the people of India in the Judiciary that they will be provided imparted speedy justice to the wrongs done to them by any person. The draft Criminal Law (Amendment) Bill, 2003 in its statement of objects and reasons mentions that the disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long as 3 to 5 years after the accused was remitted to judicial custody. In lieu of this, it is pertinent that provisions of Criminal Law be changed so as to reduce the time needed for a common person to get justice. After all “Justice should not only be done, but also be seen to be done”.

The author can be reached at: arpankumargupta@legalserviceindia.com / Print This Article

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