Report No. 69
10.10. Importance of voluntary character.-
Two principles form the basis of the provisions relating to confessions in England. First, confessions, like other admissions, are received on the presumption that no person will voluntarily make a statement which is against his interest unless it be true1.
1. Taylor Evidence, section 865, cited in Woodroffe.
10.11. But, secondly, the force of the confession depends upon its voluntary character1. The object of the rules relating to the exclusion of confessions in England is to exclude all confessions which may have been procured by the prisoner being led to suppose that it will be better for him to admit himself to be guilty of an offence which he really never committed2.
1. R. v. Thompson, LR (1893) 2 QB 15.
2. R. v. Court, 7 C&P 486 (Littledale J.).
10.12. In R. v. Baldry, Den CC 430, Lord Campbell C.J. observed-
"The reason is not that the law supposes that the statement will be false, but that the prisoner has made the confession under a bias, and that, therefore, it would be better not to submit it to the jury."
10.13. The admission of such evidence would naturally lead the agents of the police, "while seeking to obtain a character for activity and zeal, to harass and oppress prisoners, in the hope of wringing from them a reluctant confession1."
1. Taylor Evidence, section 874, cited in Woodroffe.
10.14. Provision in Cr. P.C.-
It should be also noted that the Code of Criminal Procedure specifically prohibits1 the police from offering threats, inducements or promises to induce confessions. Of course, a substantially similar result is achieved in practice by the fudges' Rules in England, though those rules have no statutory force.
1. The Code of Criminal Procedure, 1898, section 1631; also see the 1973 Code, section 163.
10.15. Classification of confessions.-
It will help to a clear understanding of the relevant provisions of the Act if confessions are classified as-(a) those made to Magistrates (briefly, "Magisterial" confession);1 (b) those made to a person in authority; (c) those made to the police; (d) those made while in police custody; and (e) others. Classes (c) and (d) overlap, to some extent; but they are not identical. For example, a confession made while the accused is in police custody, to a person other than a police officer, falls only within class (d).
(a) Confessions before Magistrates are specifically dealt with in section 164 of the Code of Criminal Procedure, 1973. The effect of the corresponding section of the Code of 1898, as interpreted by the Privy Council in Nazir Ahmed's ease2, is that if a confession is sought to be admitted in evidence, it can be proved only if it is a valid record of the confession under that section.
(b) As to confessions made to a person in authority, section 24 must be especially complied with.
(c) As to confessions made to the police, section 25 is of special importance
(d) As to confessions made while the maker is in the custody of the police, section 26 is of special importance,
(e) Other confessions, e.g., confessions made to a private person not in authority, have no special rules applicable to them.
1. Cf. Nazir Ahmed, AIR 1936 PC 255 (258).
2. Nazir Ahmed, AIR 1936 PC 255.
10.16. Scheme of the sections.-
A few more words about the scheme of the sections would be useful. Section 24 is a somewhat general provision, and is intended to ensure that only voluntary confessions are admitted in evidence. Sections 25 and 26 are special rules, relating respectively to a confession made to a police officer and a confession made in the custody of the police officer. The former is completely excluded. But, as regards the latter, a confession made in the immediate presence of the Magistrate is made provable under section 26, even though the accused is, at the time, in the custody of the police.
10.17. The position, therefore, is that confessions, other than confessions to the police, are admissible-subject to their being excluded by the "appearance" of the vitiating circumstances mentioned in section 24.
10.18. Under section 27, when a fact is deposed to as discovered in consequence of information received from an accused person in the custody of a police officer, the information, in so far as it relates distinctly to the fact so discovered, may be proved, whether it amounts to a confession or not. The fact so discovered is taken as showing that so much of the confession as immediately relates to it is true. Under section 28, if a confession referred to in section 24 is made after the impression caused by the inducement, threat or promise had been fully removed, it is relevant.
Section 29 makes it clear that a confession which is otherwise relevant, does not become irrelevant because of promise of secrecy, or because it was made in consequence of deception practised on the maker, or because it was made when he was drunk, or because it was made in answer to questions which he need not have answered or because he was not warned that he was not bound to make the confession. Section 30 empowers the Court "to take into consideration" the confession of a co-accused, in certain cases.
10.19. "Magisterial" confessions1 are specifically dealt with in section 164 of the Code of Criminal Procedure, 1973.
1. For this word, see Nazir Ahmed, AIR 1936 PC 253 (258) (Lord Roche).
10.20. Scope of sections 24-27.-
The scope and applicability of sections 24-27 were lucidly explained in State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125, by Shah J. (as he then was). He observed
"Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions, i.e., of statements made by a person stating or suggesting that he has committed a crime. By section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the Court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By section 25, there is an absolute ban against proof at the trial of a person accused of an offence, of a confession made to a police officer.
The ban which is partial under section 24 and complete under section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, 'accused person' in section 24 and the expression 'a person accused of any offence' have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Narayanswami v. Emperor, 66 IA AIR 1939 PC 47, by the Judicial Committee of the Privy Council. 'Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation.'
The adjectival clause 'accused of any offence' is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides: '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 a person accused of an offence'. By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate.
Whereas section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states 'provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved'.
The expression, 'accused of any offence' in section 27, as in section 25 is also descriptive of the person concerned, i.e. against a person who is accused of an offence. Section 27 renders provable certain statement made by him while he was in the custody of a police officer, section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though section 27 is in the form of a proviso to section 26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by section 26 is against the proof of confessional statements.
Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By section 26, a confession made in the presence of a Magistrate is made provable in its entirety.
Section 162 of the Criminal Procedure Code also enacts a rule of evidence. This section in so far as it is material for purposes of this case, prohibits, but not so as to affect the admissibility of information to the extent permissible under section 27 of the Evidence Act, use of answers by any person to a police officer in the course of an investigation under Chapter 14 of the Code, in any enquiry or trial in which such person is charged for any offence, under investigation at the time when the statement was made. On an analysis of sections 24 to 27 of the Indian Evidence Act, and section 162 of the Code of Criminal Procedure, the following material propositions emerge:
(a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence.
(b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate.
(c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence.
(d) A statement whether it amounts to a confession or not made by a person when he is not in custody, to another person, such latter person not being a police officer, may be proved if it is otherwise relevant.
(e) A statement made by a person to a police officer in the course of an investigation of an offence under Chapter 14 of the Criminal Procedure Code cannot, except to the extent permitted by section 27 of the Indian Evidence Act, be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when the statement was made in which he is concerned as a person accused of an offence.
A confession made by a person not in custody is, therefore, admissible in evidence against him in a criminal proceeding unless it is procured in the manner described in section 24, or is made to a police officer. A statement made by a person, if it is not confessional, is provable in all proceedings unless it is made to a police officer in the course of an investigation, and the proceeding in which it is sought to be proved is one for the trial of that person for the offence under investigation when he made that statement. Whereas information given by a person in custody is to the extent to which it distinctly relates to a fact thereby discovered, made provable, by section 162 of the Criminal Procedure Code, such information given by a person not in custody to a police officer in the course of the investigation of an offence is not provable.
This distinction may appear to be somewhat paradoxical. Sections 25 and 26 were enacted not because the law presumes the statements to be untrue but, having regard to the tainted nature of the source of the evidence, the law prohibited them from being received in evidence. It is manifest that the class of persons who needed protection most were those in the custody of the police, and persons not in the custody of police did not need the same degree of protection. But by the combined operation of section 27 of the Evidence Act and section 162 of the Code of Criminal Procedure, the admissibility in evidence against a person in a criminal proceeding of a statement made to a police officer leading to the discovery of a fact depends for its determination on the question whether he was in custody at the time of making the statement.
It is provable if he was in custody at the time when he made it, otherwise it is not. There is nothing in the Evidence Act which precludes proof of information given by a person not in custody which relates to the facts thereby discovered; it is by virtue of the ban imposed by section 162 of the Criminal Procedure Code, that a statement made to a police officer in the course of the investigation of an offence under Chapter 14 by a person not in police custody at the time it was made, even if it leads to the discovery of a fact, is not provable against him at the trial for that offence.
But the distinction which, it may be remembered, does not proceed on the same lines as under the Evidence Act, arising in the matter of admissibility of such statements made to the police officer in the course of an investigation between persons in custody and persons not in custody, has little practical significance. When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody; submission to the custody by word or action by a person is sufficient.
A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the 'custody' of the police officer within the meaning of section 27 of the Indian Evidence Act.1 Exceptional cases may certainly be imagined in which a person may give information without presenting himself before a police officer who is investigating an offence. For instance, he may write a letter and give such information or may send a telephonic or other message to the police officer".
1. Legal Remembrancer v. Laid Mohan Singh, ILR 49 Cal 167: AIR 1922 PC 342; Santokhi Beldar v. Emperor, ILR 12 Pat 241: AIR 1933 Pat 149 (SB).
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