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Report No. 185

Section 26A: (as proposed in the 69th Report)

In paras 11.17 and 11.18, the 69th Report suggested that under a new section 26A all confessions made to senior police officers should be made admissible subject to certain conditions. We shall presently be referring to the said conditions. Question is whether this recommendation for a new section 26A should be accepted in the light of what is happening in police stations today.

In recent times, there has been a view particularly by the police departments that confessions made to senior police officers should be made admissible in all cases without distinction. It is pointed out that in UK and other countries (except Pakistan), such confessions are no longer inadmissible. It is said that time is ripe for removing this stigma.

Any discussion on this subject must start with the provisions of clause (3) of Article 20 of the Constitution of India which states that:

"No person accused of any offence shall be compelled to be a witness against himself."

Article 21 requires that no person is deprived of his life and liberty express by a "procedure established by law".

The judgment in Maneka Gandhi's case has now held that the procedure must be fair, just and equitable. Mere prescription of a procedur.- whether fair or unfai.- is no longer an excuse. The earlier view in A.K. Gopalan's case is no longer a good law.

Article 20(3) is on the same lines as the Fifth Amendment to the American Constitution where it deals with the right against selfincrimination. Article 6 of the European Convention also raises a presumption of innocence.

The recommendation in the 69th Report made for insertion of section 26A is intended to make confessions to senior police officers, subject to some conditions, admissible, in all cases. (see paras 11.16 to 11.18 of the Report). The Commission there referred to the 48th Report of the Law Commission relating to Criminal Procedure Code, 1898 (pages 6-7, paras 21-22) where the Commission had made a similar recommendation. They were accepted in the 69th Report. Reference was made to the safeguards imposed in the 48th Report and it was stated that if those safeguards are followed, the confession should be admissible and that the prohibition against admissibility in sections 25 and 26 should not apply.

The safeguards suggested in the 69th Report are as follows: (in regard to confession to Superintendents of Police or higher officers).

(a) the said police officer must be concerned I

(b) n investigation of the offence;

(c) he must inform the accused of his rights to consult a legal practitioner of his choice, and he must give the accused an opportunity to consult such legal practitioner before the confession is recorded;

(d) at the time of making and recording of the confession, the counsel for the accused, if he has a counsel, must be allowed to remain present. If the accused has no counsel or if his counsel does not with to remain present, this requirement will not apply;

(e) the police officer must follow all the safeguards as are now provided for by section 164 Cr.P.C. in relation to confessions recorded by Magistrates. These must be followed whether or not a counsel is present;

(f) the police officer must record that he has followed the safeguards at (b), (c) and (d) above.

Identical guidelines have been suggested in the 49th Report where the confessions are recorded by officers lower in rank than a Superintendent of Police. It is not clear why two separate paragraphs were devised for confession.- one before senior officers and one before others,- if the safeguards were identical. That means that confessions whether made to Superintendent of Police (or above) or to officers inferior in rank to Superintendent of Police will be admissible, if the same guidelines are followed.

We may now go back and refer to the First Report of the Indian Law Commission given over 150 years ago. The Report said that the evidence of the Parliamentary Committee on Indian Affairs showed gross abuse of powers by the police officers in India leading to oppression or extortions. They also said:

"A police officer, on receiving intimation of the occurrence of a dacoity or other offence of a serious character, failing to discover the perpetrators of the offence, often endeavours to secure himself against any charge of supineness or neglect by getting up a case against parties whose circumstances or characters are such as are likely to obtain credit for an accusation of the kind against them. This is not infrequently done by extorting or fabricating false confession; and, when this step is once taken, there is of course impunity for real offenders, and a great encouragement to crime. We are persuaded that any provision to correct the exercise of this power by the police will be futile; and we accordingly propose to remedy the evil"

The question is whether this comment which was the basis for introducing sections 25 and 26 in the Evidence Act in 1872 is no longer relevant now in the year 2003.

In the last three decades,- as revealed from the media and innumerable law reports of the Supreme Court and High Courts, police conduct appears to have deteriorated rather than improving from what it was years ago. The Law Commission in its 113th Report had in fact suggested incorporation of section 114B in the Evidence Act raising a presumption against police officers in case of custodial deaths of prisoners. The judgments of the Supreme Court on police violence are in good number, at least forty to fifty in the last three decades. We shall, however, refer to the most important of these judgments.

In Nandini Satpathy v. P.L. Dani, AIR 1978 SC 1025=1978(2)SCC 424, the Supreme Court, while dealing with the investigation by police in India, stated that Act 20(3) is applicable at the stage of investigation and trial also. The Court referred to section 161(2) of the Cr.P.C. of 1923 and also to section 26 of the Evidence Act (see para 22 at p 435 of SCC). The Court noticed in para 23 the recent trend in the thinking that the interest of society have also to be kept in view and police be given more powers. Still, the Court spoke through Krishna Iyer J as follows:

"The first is that we cannot afford to write off the fear of police torture leading to forced self incrimination as a thing of the past. Recent Indian history does not permit it, contemporary world history does not condone it."

The Court quoted an article saying that "the technology of torture all over the world is growing ever more sophisticate.- new devices can destroy a prisoner's will in a matter of hour.- but leave no visible marks or signs of brutality." The Court observed, "Many police officers, Indian and foreign, may be perfect gentlemen, many police stations, here and elsewhere, may be wholesome. Even so, the law is made for the generality and Gresham's law does not spare the police force."

The Court quoted from Miranda v. Arizona 384 US 436 and form the Wickersham Commission Report and cases of interrogation by police to extract confessions. The police, the Court said must give rest to its fists and restlessness to its wits. The Court referred to Article 20(3) and to the right against 'self incrimination' and the right to silence. The Court referred to Article 22(1) and the right to consult a lawyer which is available even if a person is not under arrest. The Court finally emphasized (see para 68 of SCC):

"Special training, special legal courses, technological and other detective updating, are important. An aware policeman is the best social asset towards crimelessness... More importantly, the policeman must be released from addiction to coercion and be sensitised to constitutional values."

More recently, in D.K. Basu v. State of West Bengal 1997(1) SCC 416, the Supreme Court referred to the recommendation of the Law Commission in its 113th Report (para 8 and para 27) regarding "injuries in police custody and suggested implementation of that Report and incorporation of section 114-B in the Indian Evidence Act", as follows:

"Section 114B: (1) In a prosecution of a Police Officer for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the Police Officer having custody of that person during that period."

The above proposal was made by the Law Commission after the judgment of the SupremeCourt in State of UP v. Ram Sagar Yadav: AIR 1985 SC 416.

The Supreme Court in D.K. Basu had issued a number of directions, after referring to Joginder Kumar v. State of UP 1994(4) SCC 260 and Nilabati Behera v. State of Orissa: 1993(2) SCC 746. Before doing so, the Court observed (see para 13):

"'Custodial violence' and abuse of police power is not only peculiar to this country, but it is widespread."

"In England, torture was once regarded as a normal practice to get information regarding the crime, the accomplices and the case property or to extract confessions." (para 14)

But, with the development of human rights jurisprudence, this position changed, and scientific and professional methods of investigation have been slowly introduced. The English law now provides for various safeguards to the person interrogated which the police have to follow,- as laid down in the Police and Criminal Evidence Act, 1984.

In D.K.Basu, the Supreme Court observed (see para 18):

"Experience shows that worst violation of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resort to third-degree methods. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system."

The Court again referred to torture, (see para 24) the tendency of the police-

"to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession."

The Court finally emphasized that the remedy indeed lies in proper training to the police to adopt more sophisticated methods of investigation and providing them with the necessary infrastructure or tools rather than making confessions to police admissible. The Court referred to the celebrated observations of the Supreme Court of America in Miranda v. Arizona (1966) 384 US 436. It was therein observed as follows:

"A recurrent argument, made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. (see e.g. Chambers v. Florida 309 US 227: 84 L.ED. 716: 60S Ct. 472 (1940). The whole thrust of our foregoing discussion demonstratesthat the Constitution has prescribed the rights of the individual when confronted with the power of Government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged."

The Supreme Court in D.K. Basu (see para 33) stated that therefore, a just balance has to be struck between the right to interrogate and the right against self incrimination. Using any form of torture for extracting any kind of information would neither be "right nor just nor fair and, therefore, would be impermissible, being offensive to Article 21." The Court said that:

"Such a crime-suspect must be interrogate.- indeed subjected to sustained and scientific interrogatio.- determined in accordance with the provisions of law. He cannot, however, be tortured orsubjected to third-degree methods or eliminated with a view to elicit information, extract confession or derive knowledge about his accomplices, weapons etc."

The Court then referred (see para 35) to 11 requirements as to what the police should do, and observed (in para 36)

"Failure to comply with the requirements hereinabove mentioned shall, apart from rendering the official concerned liable for departmental action, also render him liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter."

We have referred to the above judgment in extenso for the purpose of highlighting that what the First Report of the Law Commission stated more than 150 years ago holds good today and, in fact, the situation has vastly deteriorated.

Today the Supreme Court has also developed a jurisprudence to award compensation against the State for the offensive acts of the police officers. In some cases, criminal complaints were directed to be filed against senior police officers as well.

The experience of the Law Commission in seminars held in relation to the 'Law of Arrest' during the year 2000 showed that several senior police officers suggested that the suspicion and stigma against arrest by police or in regard to police investigation while in custody is no longer warranted. The plea was that arrest should be allowed to be made on mere suspicion and that confessions to police must be made admissible.

These suggestions, in our view, do not take into consideration the ground realities today as disclosed by the press and Court judgments as to what is happening inside a police station and these suggestions overlook the importance of clause (3) of Article 20 and Article 21. Further, the annual reports of the National Human Rights Commission are abundant evidence of the violence police are inflicting on prisoners and the said Commission has recommended to government in several cases to pay compensation to the victims of police violence. These are also widely reported in the press.

Therefore, we are compelled to say that confessions made easy, cannot replace the need for scientific and professional investigation. In fact, the day all confessions to police, in all types of offences (other than those relating to a few specified categories like confessions by terrorists to senior police officers) is permitted and becomes the law, that will be the day of the demise liberty. The police will no longer depend on scientific techniques of investigation.

It is true, the provisions of certain special Acts dealing with terrorists or organized crime (such as the TADA or the POTA or the Maharashtra Organised Crime Act and other similar State Acts) contain provisions for recording confessions by and before senior officers of the level of Superintendents of Police and for treating them as admissible, subject to certain conditions. There is good reason for doing so. In the case of such grave offences, like terrorism, it is normal experience that no witness will be forthcoming to give evidence against hard-core criminals. Further, these offenders belong to a class by themselves requiring special treatment and are different from the usual type of accused.

The exception made in cases of 'terrorists' should not, in our view, be made applicable to all accused or all types of offences. That would erode seriously into Article 21 and sections 24 and 25 of the Evidence Act and violate Article 14. Exception cannot become the rule.

In fact, in D.K. Basu's case (see para 31), it was recognized that there were special class of serious offenders. It was stated:

"We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals. Many hardcore criminals like extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society. To deal with such a situation, a balanced approach is needed to meet the ends of justice."

The fact that terrorists and organized gangs require special treatment has been accepted by the Supreme Court and special laws made in respect of such classes of offenders have been upheld.

In Niranjan Singh Karan Singh Punjabi v. Jitendra Bhimraj Bijja 1990 SC 1962, the Supreme Court pointed out that TADA provisions which related to terrorists are drastic and are a departure from ordinary law since the law was found to be inadequate and not sufficiently effective to deal with the special class of offenders indulging in terrorist and disruptive activities. The legislature has made special provisions in the Act which can, in certain respects, be said to be harsh, created a special force for speedy disposal of cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail, and made suitable changes in the procedure with a view to achieving its objects. These are all valid.

The above judgment has been followed recently in Karamjit Singh v. State: 2001(9) SCC 161.

Thus special provisions, in a particular class of cases, has been upheld. But the procedure of confession before senior police officers in all cases, cannot be made. It will be violative of Article 14, 21.

Adverting to section 15 of the TADA and confessions by terrorists before a senior police officer, the majority in Kartar Singh v. State of Punjab 1994(3) SCC 569, held that the Act deals with a special type of offenders and deviates from the ordinary law and this is justifiable. (para 192 at 664). After a review of the case law relating to confessions under sections 24 to 27 of the Evidence Act, 1872, the Supreme Court stated (see para 220) that terrorists (as defined in the Act) formed a special class for whom a special provision like section 15 of that Act could apply i.e. where confessions to a senior police officer would be admissible.

The plea of invalid discrimination under Article 14 was rejected (paras 244 and 252). The Supreme Court also referred to the 4th Report of the National Police Commission which while admitting the notoriety of the police suggested that such confessions could at least be taken as a piece of evidence. In para 251, the Court again referred to brutalities and custodial deaths rampant in our country.

The statement of law by Pandian J in Kartar Singh's case is very important in the present context. There, the learned Judge noticed that in England the law as to confessions to police officers was no doubt different.

The learned Judge said that adopting a procedure as under English law so far as terrorists in India were concerned could be permissible. In fact, in para 263, the Court issued five guidelines for the Superintendents of Police to follow and suggested that they should be incorporated into the Act and Rules. The safeguards include production of a person before a Magistrate soon thereafter and that the Magistrate should record anything which the accused would want to say. The accused may also be soon sent for medical examination. If the accused refuses to make a confession, the police officer should not compel him to make a statement.

But as the guidelines were not incorporated in to the special Act, the Supreme Court, in a recent decision, was constrained to hold that a confession recorded where the guidelines were not followed, was not invalid: Lal Singh v. State of Gujarat: 2001(3) SCC 221. This view was taken obviously because the guidelines were not incorporated in the special Act.

But, the effect of section 26A as proposed in the 69th Report, would be to bring in drastic provisions which make confessions to senior police officers admissible, in every case, and even if the case does not relate to terrorism falling under TADA. If, according to the Supreme Court, the case of terrorists stands on a separate footing where confessions made before senior officers could be made admissible, that principle, as already stated, if extended to all criminal cases, would, in our view, violate Article 14 as well and will amount to a serious encroachment into Article 21 of the Constitution of India.

Once this part of the law is now settled by judgments of the Supreme Court, namely, that such confessions to senior police officers could be made admissible only in case of grave offences like those committed by terrorists, a provision like the one proposed in section 26A, if made applicable to all offence.- would, in our view, be violative of both Article 14 and Article 21 of the Constitution of India, as to a fair trial.

Further, the proposal as made in section 26A, in the 69th Report (accepting the one in the 48th Report), are that the same provisions as to admissibility are made applicable whether the confession is to senior police officers or not. The precautions envisaged in both classes of cases are almost identical. The provisions as recommended cannot, in our opinion, be accepted. No distinction is made in the Report between grave offences and ordinary offences. We are not therefore inclined to accept these proposals in para 11.17 of the 69th Report nor those recommended in the 48th Report.

Till today, the guidelines or precautions indicated in D.K. Basu have not been implemented by the police. In fact, most police officers are ignorant of them. Question also is whether in India we can accept the statement of any police officer that these precautions were indeed taken. In our view, today courts in our country cannot accept any such assertion on the part of the police. In a pending public interest case when the Supreme Court asked the States to submit whether D.K. Basu guidelines were being followed by the police in various States, the amicus curiae is reported to have stated that the reports from States are that the said guidelines were not being followed. (State of AP v. Upadhyaya).

As stated earlier, police today no doubt desire that confessions should become easily admissible so that there is no need for effective scientific and professional investigation. This tendency has gone so high that they want confessions to senior officers be made admissible not only in cases of terrorists but in all offences. That would practically put an end to the guarantee in Article 21 of the Constitution as to a fair trial and to the principles of liberty enshrined in the Universal Declaration of Human Rights, 1948 and in the International Convention on Civil and Political Rights, 1966 to which India is a party and violate Article 14 also.

Police quote the low percentage of convictions in courts as compared to other countries. There are various other factors which are responsible for a large percentage of acquittals but making all confessions to senior police officers is a dangerous remedy.

We are not, in the light of hundreds of cases of custodial deaths noticed by the Supreme Court, National Human Rights Commission and the High Courts, prepared to place any faith in the police that senior officers will, in all cases, obtain confessions without threats or coercion etc. We are indeed sorry to say so but we cannot shut our eyes to these ground realities.

No doubt, in England, there is today, a trial within a trial. Under English law, confessions have been made admissible under the Police and Criminal Evidence Act, 1984 and under section 76(1) the confession is made relevant unless it is liable to be excluded under the section. Section 76(2) says that if "it is represented to the court that the confession was or may have been obtained (a) by oppression of the person who made it or;
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time to render unalienable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid".

The word 'oppression' has been widely construed by the Court as including torture, inhuman or degrading treatment, use of violence. The 1984 Act of UK lays down detailed provisions for the treatment of suspects by the police, including their arrest, detention and questioning. Code C of the Code of Practice has been issued. section 67(11) says that the court may take into account any of these provisions of the Code if they are relevant to any matter arising in the proceedings. Phipson says (see para 31.09, 15th Ed., 2000) that breach of the Act or Codes will not necessarily amount to oppression or to render the confession inadmissible.

The nature of the common law discretion to exclude relevant evidence, including confessions is preserved by section 82(1) of the 1984 Act. section 78 was added to at a later stage, without modifying sections 76 and 82, and gives discretion to the Court to disallow a confession if it 'would have such an adverse affect on the fairness of the proceedings'. This procedure results in a trial within a trial. It has been stated in R v. Sat Bhambra (1988) 88 Cr App R.55 that as section 76 and section 82 were not amended, section 82 has become practically otiose.

In England, at the time these provisions were introduced, the Human Rights Act, 1998 had not come into force. Even Phipson says, the courts in England will have to go into various human rights concerns after the new Act of 1998. Further, it may not be incorrect to state that the degree of adherence to guidelines in an Act or in a judgment in India is not the same as in UK.

In the light of the above discussion, we do not agree that section 26A as recommended by the 69th Report and the 48th Report permitting confessions recorded by Superintendents of Police, or others in all cases to be made admissible. Such a provision, cannot satisfy Article 14 and Article 21 and the judgments of the Supreme Court. We, therefore, do not accept the recommendation for introducing section 26A though recommended in the 69th Report.

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