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Report No. 185

Section 29

Section 29 deals with the subject 'confession otherwise relevant not to become irrelevant because of promise of secrecy etc. It says:

"section 29: 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 practised on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which 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 might be given against him."

We have seen that a confession caused by any inducement, threat or promise relating to the charge and proceeding from a person in authority (section 24) or a confession to the police (section 25) or when in police custody to any person other than a magistrate (section 26), is inadmissible. This section deals with confessions otherwise relevant, i.e. if it is not obtained by any inducement, threat or promise having reference to the charge against the accused person, obtained before a person in authority, or a confession is not tainted with any other cause making it invalid or untrustworthy.

It can only be an extra judicial confession. It does not become irrelevant because it was made under (1) a promise of secrecy or (2) in consequence of a deception or artifice practiced on the accused, or (3) when he was drunk, or (4) because it was elicited in answer to questions, or (5) because no warning was given that he was not bound to say anything and that whatever he might say might be used against him.

The principle of section 29, as pointed by Sarkar (5th Ed, 1999, p. 581) is that a confession is to be excluded if it is involuntary but not if the confession is in breach of confidence or violation of a promise of secrecy or practice of deception. This is also the law as laid down in Wigmore, paras 823, 841 quoted in Sarkar (ibid p. 580) and in England (R v. Derrington 1826 2 C&P 418: Halsbury states (3rd Ed, Vol 10, para 876) that such a confession has very little weight (Sarkar, ibid, p. 582).

Confessions recorded by bugging (R v. Ali, The Times, Feb.19, 1991) (CA), by detectives, by secret tape recording (R v. Katz) (1990) 90 Cr Ap.R 456 (CA), have been held relevant.

But the question is whether a confession before a Magistrate falling under section 29, can be admissible even if it obtained in breach of section 164(2) of the CrPC.

Section 164(2) of the CrPC 1973 (and section 164(3) of the old Code) prescribes the procedure to be followed by a Magistrate before recording a confession. This has to be read with section 463 of the CrPC, 1973 (section 533 of old Code).

The Privy Council held in Nazir Ahmed v. Emperor AIR 1936 PC 253 that a confession not recorded strictly in accordance with provisions of ss. 164 and 364 of the old Code was inadmissible.

In Chinna Gowda v. State of Mysore, 1963 (2) SCR 517, it has been held that where the accused has not been told that he need not make a confession, his confession is inadmissible in evidence and section 463 Cr.PC will not cure the defect.

If a Magistrate does not certify that, according to him, the confession is voluntary, the defect isfatal, Chandran v. State of Tamil Nadu, AIR 1978 SC 1574.

But, a three Judge Bench of the Supreme Court appears to have taken the view in Dagdu v. State AIR 1977 SC 1579 that a failure to comply with section 164(2) CrPC or with High Court circulars will not render the confession inadmissible if it does not violate any of the conditions in ss. 24 to 28 of the Evidence Act, though it may impair the evidentiary value of the statements and the court has to consider whether it can be accepted as true. Similar view wastaken in Aghnoo Nagesia v. State ofBihar, AIR 1966 SC 119.

But a contrary view, namely, that a confession recorded in breach of section 164(2) of CrPC is inadmissible has been taken in a good number of case.- see Shiv Bahadur Singh v. State of Vindh Pradesh, AIR 1954 SC 322; Sarvan Singh v. State of Punjab, AIR 1957 SC 637; Deep Chand v. State of Rajasthan, AIR 1961 SC 1527.

Recently in Kehar Singh v. State, AIR 1988 SC 1883, it has been held that the compliance with subsection (2) of section 164 is mandatory and imperative and non-compliance with it renders the confession inadmissible in evidence. If the court comes to a finding that such a compliance had in fact been made, the omission to record the same in the proper form, will not however render it inadmissible in evidence and the defect can be cured under section 463 (section 533 of the old Code) but when there is non-compliance of the mandatory requirements of section 164(2), and it comes in the evidence that no such explanation as envisaged in the aforesaid subsection had been given to the accused by the Magistrate, this substantial defect cannot be cured under section 463 CrPC.

So far as section 29 is concerned, the 69th Report recommended that it should be subject to section 164(2) so that confessions made before a Magistrate where the Magistrate violates the procedure, do not become admissible under section 29. But, in our view, instead of the 'Exception' relating to section 164(2), it is better if a second subsection is added.

The 69th Report recommended section 29 to be redrafted as follows:-

"29. If a confession is otherwise relevant, it does not become irrelevant merely becaus.-

(a) it was made

(i) under a promise of secrecy, or

(ii) in consequence of a deception practised on the accused person for the purpose of obtaining it, or

(iii) when he was drunk, or

(iv) in answer to questions which he need not have answered, or

(b) the accused person was not warned that he was not bound to make such confession and that the evidence of it might be given against him.

Exception: Nothing in this section shall affect the provisions of subsection (2) of section 164 of the Code of Criminal Procedure, 1973, as to the recording of Magistrates."

But, we are of the view that the language of the Exception as proposed does not give effect to what is now decided in Kehar Singh's case. In our view, it must be modified. We are of the view that it should be made clear that a confession made in violation of section 164(2) of the CrPC will be inadmissible, but that this will be without prejudice to section 463 of the CrPC, 1973.

In the 69 Report, it was stated that there were two meanings as to what was meant by "otherwise relevant". One view, as in Patna was that it must be a confession other than those referred to in section 24 to 28. The other view taken by the Bombay High Court was that it may be one admissible and not excluded by section 24 to 28 or by any other provision of law. The latter view was accepted and it was suggested that the words "is otherwise relevant" be replaced by the words "made by an accused person is not irrelevant or incapable of being proved under section 24 to 27" or to drop the word 'such'.

The Commission also considered section 29 in relation to section 164 and finally recommended that section 29 must be made subject to section 164(2) CrPC. But in our view, this should be without prejudice to section 463 CrPC, 1973 also.

We entirely agree with these two recommendations and adding our further recommendation thereto, section 29 should be redrafted as follows:

"29. Confession otherwise relevant not to become irrelevant because of promise of secrecy etc.- (1) If a confession is otherwise relevant, it does not become irrelevant merely becaus.-

(a) it was made

(i) under a promise of secrecy, or

(ii) in consequence of a deception practised on the accused person for the purpose of obtaining it, or

(iii) when he was drunk, or

(iv) in answer to questions which he need not have answered, whatever may have been the form of those questions.

(b) the accused person was not warned that he was not bound to make such confession, and that evidence of it might be given against him.

(2) Subject to the provisions of section 463 of the Code of Criminal Procedure, 1973, nothing contained in sub-section (1) shall make a confession relevant which is recorded in contravention of the provisions of sub-section (2) of section 164 of that Code."



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