Report No. 69
Confessions and Admissions-sections 24 to 31
11.1. Section 24.-
In this Chapter, we shall consider in detail the provisions as to confessions, and also section 31. Under section 24, a confession made by an accused person is irrelevant in a criminal proceeding, if certain conditions are satisfied. The conditions are as follows:
(1) The confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person;
(2) The inducement, threat or promise proceeds from a person in authority; and
(3) The court is of the opinion that the inducement, threat or promise is sufficient to give the accused person grounds which would appear to him reasonable for supposing that he would gain an advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The first condition deals with subject matter of the inducement, threat or promise. It must have reference to the charge. The crucial word in this ingredient is the expression "appears". The appropriate meaning of the word "appears" is "seems". It imports a lesser degree of probability than proof.1 Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. This deviation from the normal standard of proof has been designedly accepted by the Legislature with a view to excluding forced or induced confessions which sometimes are extorted and put in when there is a lack of direct evidence.2
Secondly, the threat, inducement or promise must proceed from a person in authority. It is a question of fact in each case whether the person concerned is a person of authority or not.
Thirdly, the mere existence of the threat, inducement or promise is not enough, but, in the opinion of the court, the threat, inducement or promise should be sufficient to cause a reasonable belief in the mind of the accused that by confessing he would get an advantage or avoid any evil of a temporal nature in reference to the proceedings against him: while the opinion is that of the Court, the criterion is the reasonable belief of the accused.3
1. Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094 (1095).
2. Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094 (1095).
3. Pyare Lal v. State of Rajasthan, AIR 1963 SC 1094 (1095).
11.3. Burden of proof under section 24.-
The terms in which section 24 is couched, seem to indicate that in the case of an ordinary confession, there is no initial burden on the prosecution to make out the negative, viz., that the confession sought to be proved or admitted is no vitiated by the circumstances stated in the section. However, where the suspicion of the Court is aroused, the standard of proof required to render it irrelevant is indicated by the word "appears" and not by the usual word "proved". Subject to this, the burden of proving that the confession is involuntary is on the accused, though the burden is light.
11.4. Burden of proof in England.-
The position as to burden of proof is different in England. The question of voluntariness of a confession is for the Judge; and it is now settled that it lies upon the prosecution to establish,1 and not upon the accused to negative this element, it being the duty of the prosecution to satisfy itself thereon before putting the statement in evidence.
1. R. v. Thompson, (1893) 2 QB 12.
11.5. Inducement having reference to charge.-
One of the conditions of the applicability of section 24 is that the inducement, threat or promise should-to put the matter in non-legal words-persuade the accused that he would gain an advantage or avoid any evil in "reference to the proceeding against him." In England, the restriction that the inducement should have reference to the proceedings, does not apply. If pressure is put upon an accused person which affects his freedom of will, such pressure is a ground for making the confession inadmissible even where the threat is of harm otherwise than in relation to the proceeding.
In England, it is not necessary that the threat or inducement must threaten harm or promise benefit with reference to the particular proceedings or contemplated proceedings. Of course, a promise suggesting that the outcome of a confession will procure some beneficial result in connection with the prosecution will certainly render the confession inadmissible. But it is not, as a matter of law, necessary that the improper inducement or threat must relate to that prosecution. This was laid down by the House of Lords,1 holding that on a prosecution under the Purchase Tax Act, a confession ought to have been excluded as having been made on account of a threat to prosecute for failure to answer questions at an interrogation which the customs officers to whom the confession was made were not authorised to conduct.
Even apart from this case, the Judges' Rules2 also lay down that "it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it should have been voluntary, in the sense that it has not been obtained from him by fear of prejudice or hope of advantage exercised or held out by a person in authority, or by oppression."
1. Customs & Excise Commissioner v. Harg., (1961) 1 AIl.ER 177: 111 Solicitors' journal 15.
2. Judges' Rules, 1964, Principle (e), quoted with approval in Customs & Excise Commissioner v. Harz., (1967) 1 AC 760 (818, 821).
11.6. No change needed.-
The above brief discussion does not indicate any need for amending the section.
Section 25 bars the proof of a confession made to a police officer as against a person accused of any offence. This section creates an absolute bar against the admission of such confessions. We are separately making certain recommendations1 to exclude, from this bar, confessions made after informing the accused of his right to counsel and after complying with certain other safeguards. No textual amendment of section 25 is involved.
1. See section 26A (proposed, infra).
11.8. History of section 25.-
It would be useful to deal with the history of the section having regard to its importance. The following extract1 from the First Report of the Indian Law Commission is of interest, in this connection:
"The police in the Province of Bengal are armed with very extensive powers. They are prohibited from inquiring into cases of a petty nature, but complaints in cases of more serious offences are usually laid before the police darogah, who is authorised to examine the complainant, to issue process of arrests; to summon witnesses, to examine the accused and to forward the case to the Magistrate or submit a report of his proceedings, according as the evidence may, in his judgment, warrant the one or the other course.
The evidence taken by the Parliamentary Committees on Indian Affairs, during the Sessions of 1852 and 1853 and other papers, which have been brought to our notice, abundantly show that the powers of the Police are often abused for purposes of extortion and oppression; and we have considered whether the powers now exercised by the police might not be greatly abridged. We have arrived at the conclusion that, considering the extensive jurisdiction of the Magistrate, the facilities which exist for the escape of the parties concerned in serious crimes, and the necessity for the immediate adoption in many cases of the most prompt and energetic measures, it is requisite to arm the police with some such powers as they now possess; and we have accordingly adopted many of the provisions in the Bengal Code on this head.
In one material point, we propose a change in the duties of the Police. By the existing law, the darogah or other police officer presiding at any inquiry into a crime committed within his division is required, upon apprehension of the accused, to "question him fully regarding the whole of the circumstances of the case and the persons concerned in the commission of the crime and if any property may have been stolen or plundered, the person in possession of such property, or the place where it has been deposited. In the event of the accused making free and voluntary confession, it is to be immediately written down."
Then follow other provisions for preventing any species of compulsion or maltreatment with a view to extort a confession or procure information. But we are informed, and this information is corroborated by the evidence we have examined, that, inspite of this qualification, confessions are frequently extorted or fabricated. 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. The darogah is henceforth committed to the direction he has given to the case; and it is his object to prevent a discovery of the truth, and the apprehension of the guilty parties, who, as far as the police are concerned, are now perfectly safe.
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, as far as possible, by the adoption of a rule prohibiting any examination whatever of any accused party by the police, the result of which is to constitute a written document. This, of course, will not prevent a police officer from receiving any information which any one may voluntarily offer to him; "but the police will not be permitted to put upon record any statement made by a party accused of an offence."
1. Para. 11.7, supra.
11.9. No change.-
This shows the background in which the section came to be enacted. After careful consideration, we do not think it necessary to disturb the section, except to the extent indicated above.1
1. Para. 11.7, supra.
11.10. Section 26.-
Section 26 provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. The Explanation to the section, provides that "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate, under the Code of Criminal Procedure, 1882.