Kinds of confession

Confessions may be divided into two classes i.e. Judicial and Extrajudicial.
A judicial confession has been defined to mean “a plea of guilty arrangement (before a tribunal) if made freely by a person in a fit state of mind.

Judicial confessions are those which are made before a Magistrate or the Court in the course of judicial proceedings. Section 164 Cr.P.C. regulate judicial confessions. An accused may, before the trial begins, confess the guilt before some Magistrate who may record it in accordance with Section 164 Cr.P.C. At the committal proceeding before the Magistrate or at the trial before the Sessions Judge the accused may confess his guilt.

Extra Judicial Confession

Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or the Court. An extra-judicial confession has been defined to mean a voluntary and free confession of guilt by a person accused of a crime in the course of conversation with persons other than the judge or magistrate seized of the charge against himself.

Extra-judicial confessions are generally made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to receive confessions under Section 164 Cr.P.C. If an accused makes a confession before a priest or village elder, friend, etc., it is an extra-judicial confession.
It is not necessary that the statement should have been addressed to any definite individual. It may have taken place in the form of prayer. A man after the commission of a crime may write a letter to his friend or relation expressing his sorrow over the matter. This may also amount to an extra-judicial confession.

Therefore an extra-judicial confession is considered only an admission. Such an extra-judicial confession can be considered along with other evidence.

In State of Rajasthan v. Rajaram, [AIR 2003 SC 3601], the following principles were laid down regarding extra-judicial confession:
i) If an extra-judicial confession is voluntary and true, it can be relied upon.
ii) Its value depends upon the veracity of the witness to whom it has been made.
iii) It is not proper to presume that such a confession is a weak type of evidence.
iv) After testing, such confession on the touchstone of credibility and acceptability, it can form the sole basis of conviction, if found credible.

In Sahadevan v. State of Tamil Nadu, [AIR 2012 SC 2435], the following principles were laid down regarding extra-judicial confession:

i) The extra-judicial confession is a piece of weak evidence. It has o be examined by the Court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) Extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of strong circumstances and is further corroborated by other prosecution evidence.
iv) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

Voluntary and Involuntary confession. The confession of an accused as voluntary or involuntary:

Voluntary confession:

‘Voluntary’ means of one’s free will, impulse or choice; not constrained by another; acting willingly. ‘Voluntary may mean ‘naturalization’ in the narrow sense of that term and excluding compulsion. ‘Voluntary confession’ means ‘giving a statement as the result of the free exercise of the will but not something is done under a legal duty.

‘Voluntary confession’ means a statement made of the free will and accord of the accused, without coercion, whether from fear r of any threat of harm, promise or inducement, or any hope of reward.

Confessions are admissible when they are made voluntarily. While recording the voluntary confession the competent Magistrate should warn the accused that he need not make the confession and, that if he made it, it will be used as evidence against him and that must he will not be taken as an approved. After warning the accused I give him time to think over the matter and then only record the confession.

Voluntary confession means that the statement has not been made in consequence of:
i) some promise of advance or some threat;
ii) of a temporal character;
iii) made by a person in authority, and

In Abdul Razak v. the State of Maharashtra,] [AIR 1970 SC 283] it has been held that the accused spent four days in judicial custody and was not under the influence of the investigating officer, a confession made before the executive magistrate is voluntary.

Involuntary confession.

If the making of confession appears to the court to 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 the proceedings against him, it will be involuntary confession and not too relevant.
Involuntary confession is one which is made by a person either by fear of prejudice or hope of advantage excited or held out of the person in authority or by oppression.

Confession to Police Officer

Confession to police officer not to be proved:

Section 25 of the Evidence Act says that “No confession made to a police officer shall be proved as against a person accused of any offence’’.Under Section 25, a confession made to a police officer is inadmissible in evidence except insofar as is provided by Section 27. The principle upon which the rejection of confession made by an accused to a police officer is founded is that a confession thus made or obtained is untrustworthy.

It is held that the broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting a false confession

The object of Section 25 is to ensure that the person accused of the offence would not be induced by threat, coercion or force to make a confessional statement and the officers also would make every effort to collect the evidence of the commission of the crime dehors the confession to be extracted from the accused while they are in the custody of the police.
The object of Section 25 is to prevent the practice of torture by the police for the purpose of extracting a confession from the accused person.

In Queen-Empress v. Babu Lal, it has been held that “The Legislature had in view, the mal-practices of the police officers, in extorting confessions and that these malpractices went to the length of positive torture, nor do I doubt it as the legislature, in laying down such strongest rules regarding the evidence of police officers as untrustworthy and the object of the rules was to put a stop to extortion of confession, by taking away from the police officers the advantage of proving such extorted confessions during the trial of the accused person.”

Made to the police officer:

In Section 25, the criterion for excluding the confession is the statement made to a police officer suspecting the employment of coercion to obtain a confession. The mere presence of the police officer will not make the statement irrelevant if it was made to some other person. In order that a statement may be said to be made a police officer must be near the person making the confession, rather the statement must be made in presence of the police officer.

Who is a police officer?

The term ‘police officer’ used in Section 25 of the Evidence Act should be read in a strictly technical sense but according to its more comprehensive and popular meaning. It applies to every police officer and is not restricted to officers in a regular police force.

The primary test for determining whether an officer is a police officer is whether the officer concerned under a special Act, has been conferred upon all the powers of investigation of officers including the power to initiate prosecution by submitting a charge sheet under Chapter XV of Criminal Procedure Code.

Who are considered police officers?

The following are also considered police officers in different judgments within the meaning of Section 25 of the Evidence Act.

1)Excise officer (under the Bihar and Orissa Act)
2) A special officer of the Commercial Tax Department
3) An officer appointed under the Bombay Sales Tax Act
4) Security Officer of HEC
5) Officers of J.K. Rifles
6) Officers under Orissa Home Guard Act, 1961 7) Police Constable Guarding the Treasury
9) Gram Rakshi
10) Village Administrative Officer.

Who are not police officers?

The following are not considered police officers as per different judgments given by Courts:
1) IPS Officer working on an administrative post and not authorized or empowered to conduct an investigation
2) Officers of Railway Protection Force or under the Railway Property (Unlawful Possession) Act of 1966
3) Member of the defence party under Assam Village Defence Organisation Act, 1966
4) Central Reserve Officer of Central Reserve Police Force
5) Constable of Rajasthan Armed Constabulary
6) Sub-Division Officer
7) Officer of the Security Force
8) Officers of Customs
9) Inspector of Mines
10) Prohibition Officer
11) A jailor
12) _Forest Officer
13) Officer under Narcotic Drugs Act
14) Enforcement Officer investigating the offence of the Foreign Exchange Regulation Act.
15) Village Kotwal, Village Chaukidar, Gram Rakshi.

Confession only excluded

Section 25 makes no distinction between a confession made before the investigation and a confession made after the investigation. It is a confession to a police officer made at any time which is not admissible. This section does not exclude all statements by the accused to the police but only confessions.

Section 162 of the Criminal Procedure Code enacts that no statement made by any person to a police officer in the course of an investigation shall if taken down in writing be signed by the person making it, nor shall such statement be used as evidence.
The difference between Section 25 of the Evidence Act and Section 162 of the Cr.P.C. is that Section 25 protects the accused in respect of a confession made by him to a police officer, whereas Section 162, Cr.P.C. protects the accused if it is made during the course of the investigation.

A confession to a police officer even in the presence of a Magistrate was held inadmissible. A confession to a doctor who questioned the accused at the instance of the police officer was held to be inadmissible. However, a confession contained in a letter written and signed by the accused and addressed to a police officer was held to be admissible as the letter was not written in presence of the police officer.
Incriminating statements by the accused to a police officer were held to be not admissible as they are hit by Sections 25 and 26 of the Evidence Act.

First Information Report

Where the accused gave the first information to the police, the fact of his giving the information is admissible under Section,8. If it is a non-confessional one, it is admissible under Section 21; but a confessional statement cannot be used against the accused under Section 25, except to the extent it is permitted under Section 27 of the Evidence Act.
In Kartar Singh v. State, it was held that so much of the statement in the FIR, which amounts to a confession is not admissible, but the portion in the FIR which do not relate to the crime, as, for instance, which are introductory or are a narration of motive or the opportunity for the crime or leading to the discovery of the fact under Section 27, would be relevant evidence in the case.

Cannot be proved against a person accused of any offence:

The prohibition contained in this section applies only to confessions which are to be proved as against the accused that are in support of the prosecution case and does not apply to a statement on which the accused himself wishes to rely for his defence i.e. the confession made by an accused to a police officer cannot be utilised by the prosecution but it can be used by the accused for his defence.

 In civil cases:

A statement made to a police officer cannot be admissible as an of confession of guilt in a criminal case. But a statement made before the police officer can be proved as an n admission in a civil case.

In Departmental Enquiry:

In Kuldip v. State of Punjab, [AIR 1997 SC 8], it has been held that the rules of evidence are not applicable to departmental enquiries, in a departmental enquiry in connection with disciplinary proceedings where the delinquent officer made a confession to the police while he is in police custody, the authorities can take such confession into consideration to prove that the officer did make such confession during the course c of investigation and it would be for the disciplinary authority to decide whether such confession is voluntary or not. TO YOUT

III. Confession by accused while in the custody of police:

Section 26 of the Evidence Act states that:
“Confession by accused while in the 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. –
According to Section 26 of the Evidence Act, a confession made by an accused of an offence whilst in the custody of a p a police officer is irrelevant unless it is made in the immediate presence of the Magistrate. The object of Section 26 is to prevent the abuse of power by the police.
The custody of a police officer provides the easy opportunity of coercion for extorting confession obtained from accused persons through any undue influence being received in evidence against them.

Under Section 26, no confession made by an accused to any person except to the Magistrate while in the custody of a police officer shall be proved against him. Section 25 deals with the confessions made to some police officers and Section 26 has always been taken to apply to confessions made to some person, other than a police officer.

Police custody:

Section 26 of the Evidence Act considers the question of under what circumstances was the confession made. If the answer is that the confession was made whilst the accused was in the custody of a police officer, Section 26 states that such confession shall be excluded from evidence unless it was made in the immediate presence of a Magistrate.

The word ‘custody’ is not defined in the Evidence Act. But it implies that there must be some limit upon the liberty of the citizen, either directly or indirectly caused by police, which may include arrest, detention, surveillance or any restraint on his movement. It does not necessarily mean custody after formal arrest; it is sufficient if there is some form of police surveillance or restriction by the police on the movement of the person concerned.

The word ‘custody’ is used here in a wide sense. A policeman may lay his hand on a person, handcuff him or tie his waist with a rope and may take him with him. Again a police officer may not even touch a person but may keep such control over him that the person so controlled cannot go any way he likes and his movements are in the control of the police officer.

The custody of a police officer for the purposes of Section 26, Evidence Act, is no mere physical custody. A person may be in the custody of a police officer though the other may not be physically in possession of the person of the accused making the confession.

Confession in the immediate presence of a Magistrate:

Under Section 26 of the Evidence Act, a confession made to > Magistrate in the custody of the police is admissible under Section 26 the main consideration is the presence of the Magistrate while making the confession.
The presence of the Magistrate removes the fear and ensures the accused makes a free and frank confession without any fear. The presence of the Magistrate affords some sort of guarantee and removes all sorts of fear from his mind and ensures to make a voluntary confession.

Section 26 contains the expression “in the immediate presence of the Magistrate”. It is to be noted that the expression used is “in the immediate presence of a magistrate” and not “to a magistrate”. For instance, a confession may be made to the police officer or any other person in the presence of a magistrate and not made to the magistrate.
If it is made to a police officer, it would come within Section 25 and will be totally inadmissible even though it is made in the presence of a magistrate and Section 26 would not apply. If it is made to any other person Section 26 would apply and it would be admissible, if made, in the presence of the magistrate.
A confession is admissible without proof when it is made before a Magistrate following the procedure under Section 164 Cr.P.C. and can be looked into even when it goes in favour of the accused, but where the Magistrate failed to ask any question to the accused relating to his making the confession voluntarily, it could not be relied upon for conviction.

Where a Second Class Magistrate not empowered to record confession under Section 164 Cr.P.C. records the confession under that section, his oral evidence relating to the confession is not admissible.

The confessional statement may be made to a Magistrate. If the magistrate of first class or of the second class is empowered to record a confession under Section 164 Cr.P.C., then such a confession would be inadmissible, if it is not recorded under Section 164 Cr.P.C. in the manner prescribed by that section. Under Section 164 of Cr.P.C., any Metropolitan Magistrate or a First Class Magistrate is competent to record a confession made by the accused. When the Magistrate is fully convinced that the accused is making a voluntary confession then only he should record the confession.

 When confessions are admissible:

According to Section 26 of the Evidence Act, a confession made in police custody in the presence of a Magistrate is admissible while in police custody.

As per Section 27, information received from an accused during the investigation can be admissible, except for his confession of the offence.
Section 28 says that a confession made to police may be considered if the threat, inducement, and coercion are fully removed.
Section 29 says that a confession otherwise relevant is not to become irrelevant because of the promise of secrecy.
Section 30 a confession of co-accused is admissible against the other accused.