Class Notes
Confession
Admissions are declared to be relevant u/s 21 and confessions also is an
admission and more so an admission of a self-incriminating fact. A confession
also will be therefore relevant u/s 21. As the confession statement has been
made by accused who is a party as required u/s 18 para 1 as well as the
confession is suggesting an inference regarding the fact in issue (FI) as required
u/s 21.
As defined by the Privy Council in Pakala Narayan Swami v. king
Emperor (1939 PC) – Lord Atkin, J. A confession is the admission of a guilt in
as many terms by the accused of a crime or admission of such facts which
together or with some other facts go on to constitute the offence. Thus, the
accused may directly state that he has committed the offence or may state
certain facts which go on to constitute the offence.
Section 24
S. 24 declare that the confessions will be irrelevant if it was made by the
accused in the following circumstances:
1. The person who made the confession was an accused but it is not necessary
that a formal charge may have been made against him at that point of time.
There may be cases where even on suspicion the person in authority may
threaten the suspect that he will get him convicted or implicated in a charge.
Even such cases will fall u/s 24 if later the person is formally made an
accused.
2. The confession should have been made in consequence of the inducement,
threat or promise having reference to the charge. Here the I, T or P, it is general
for instance a promise to give some social benefits or some pecuniary benefits
or a threat to have the person outcast from the society or a threat that if he
does not make the confession he will invoke the wrath of the God etc., then,
these do not have a reference to the charge against the accused and hence S.
24 will not apply. On the other hand if the threat is to have the threat of
maximum sentence against the accused to frame additional charge against
him, to conduct a third degree torture upon him, not to release him on bail
etc., the reference in directly to the charge and hence the confession will fall
u/s 24.
3. The above is also further supported/corroborated by the last part of S. 24
wherein it is provided that the accused should have made the confession with
the belief that thereby he would be able to avoid an evil of temporal nature or
gain a benefit of temporal nature in reference to the proceedings against him.
Temporal means something tangible or material and not merely spiritual. It is
important to examine and prove that the benefit or detriment (that was the
concession of the accused) was related to the proceedings against the accused.
4. It is also essential that the accused should have been Induced, Threatened
or Promised by a person in authority. A liberal (wider) interpretation of the
words ‘person in authority’ has to be given. Any person who either as a
government official or otherwise has a broad control upon the proceedings
would fall under the term ‘person in authority’. For e.g. the investigating officer,
Superior Police Officer, Clerk in Police Station, the Magistrate, Reader in Court,
the Public Prosecutor and in proper cases even the family members of these
officers or the employer who has lodged the FIR or complaint against the
accused will be considered to be ‘person in authority’. The test is not only the
capacity of the authority concerned rather also the reasonable belief in the
mind of accused.
Section 28
S. 28 has a reference to S. 24 and it declares as to when a confession
otherwise falling u/s 24 will still be relevant. As per S. 24 in order to be
irrelevant the confession should have been caused by the said I, T or P and
therefore in a proper case if it can be proved that despite the I, T or P the
confession was made not in consequence of the I, T or P rather only after the
effect of the I, T or P was fully removed. S. 28 require that the court should be
of the opinion that the effect was fully removed & therefore the court in its
discretion has to examine the circumstances properly to examine the same.
The relevancy of the confession will lie only if there has been a total removal of
the influence.
Class Notes
Section 25
Both in S.25 & 26 the confession is relevant but it inadmissible as it is
provided that the confession shall not be proved. In S.25 the person is not in
police custody though, he has made the confession directly to a police officer,
the confession will be inadmissible.
A police officer for the purpose of S.25 is an officer who has the powers of
investigation. Thus, a regular police officer will fall u/s 25 but a custom officer
or an officer under the NDPS Act will not be called a Police Officer for the
purpose of S.25.
The excise officers do have the investigating powers and therefore they
shall be considered Police Officer for S.25.
If the accused has not made the confession directly to the police officer
rather through a letter, internet or any other distant communication then S.25
should not apply as the fear element upon which the inadmissibility of S.25 is
based will be missing in that case.
If a police officer disguised himself and has obtained the confession, on
the broader principle of S.25 it will be hit by S.25.
If the confession is made to some other person & the police officer is
present there, then the circumstances have to be examined & it has to be seen
as to whether the accused had the knowledge of the presence of the police
officer, if yes, S.25 shall apply.
Section 26
S.26 on the other hand does not require that the confession should have
been made directly to the police officer as such rather the only fact required to
be proved is that when the accused made the confession, he was in police
custody and he may have made the confession to any person while in police
custody. Here also, the inadmissibility is based upon the fear element involved.
However, if the confession is made in the immediate physical presence of
Judicial Magistrate then the confession will be admissible as the fear element
would be lost in that case.
The custody of the police officer need not be a custody in the police lock-
up only, it can be a case where it is case of police custody in transit or when
the accused has been taken to the doctor for medical treatment.
Section 29
Under the last part of S.29 the confession will still be relevant and
admissible if it is not otherwise irrelevant or inadmissible. However, in a
judicial confession recorded by a JM, it is mandatory to give the said warning.
Here, there is an apparent conflict between the requirements of S.164 &
permissive provision of S.29.
However, with respect to Judicial Confessions S.164 & 463 CrPC being
the special provisions, it will prevail and not S.29. Thus, the permissive
provision of S.29 will apply upon extra-judicial confessions.
