Report No. 69
The principal sections of the Act relating to confessions can be traced to the Code of Criminal Procedure of 1861.1 That Code itself was largely based on an earlier Regulation of 1817; but we shall concentrate on the Code of 1861. Section 146 of the Code of 1861, repeating an earlier provision, provided as follows
"146. No police officer or other person shall offer inducement to an accused person by threat or promise or otherwise to make any disclosure or confession".
Section 147 of the Code of 1861, markedly reversing the law, as it stood in the earlier Regulation2, provided as follows-
"147. No police officer shall record any statement, or any admission or confession of guilt, which may be made before him by a person accused of any offence".
The section was subject to a proviso, allowing a police officer to reduce into writing any statement or admission or confession "for his own information or ;uidance".
1. The Code of Criminal Procedure, 1861 (25 of 1861).
2. Section 19(1), Regulation 20 of 1817.
10.22. But the most important change consisted in the introduction of a new provision, contained in section 148 of the Code of 1861, which, in the most imperative terms, laid down as follows:-
"148. No confession or admission of guilt made to a police officer shall be used as evidence against a person accused of any offence."
Section 149 of the Code of 1861, going even further in the same direction, laid down
"149. No confession or admission of guilt made by any person whilst he is in the custody of a police officer, unless it be in the immediate presence of a Magistrate, shall be used as evidence against such person."
Then followed a distinct proposition of law, contained in a separate section 150, which was as follows-
"150. When any fact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered by it, may be received in evidence."
10.23. Sections 146 and 147 of the Code of 1861 were purely administrative prohibitions to police officers against employing any inducement, threat or promise for obtaining any disclosure or confession,1 and against reducing to wring any statements or confessions made by accused persons. The next three sections 148. 149 and 150, however, contained important rules, which perhaps did not properly belong to the province of Criminal Procedure, but to that of Evidence. Sections 148 and 149 must not be understood to contain identical propositions of law. Section 148 laid down a general proposition. against the admissibility of confessions made to police officers. Section 149 carried the principle further, by rendering similar confessions inadmissible, even though not made to a police .officer, but made by a person "whilst he is in the custody of a police officer".
Then came a general proposition, which extended over an area covered by both the preceding, sections, and, under certain conditions, rendered such confessions admissible as would otherwise be inadmissible under these two sections. This general proposition appeared in the form of a separate and independent section 150, laying down that a police officer might "depose to" any confession made by an accused person so far as such confession led to discovery of some fact. Th.-words of the section were general, and could be understood to govern confessions 'contemplated by both the preceding two sections. For example, suppose the accused said to the policeman:
"I concealed the articles which I got in the dacoity A under my stack of straw, and those which got in dacoity B under the floor of my cow-house". As long as the information related distinctly to the fact discovered in consequence of it. it might be received in evidence under section 150 of the Criminal Procedure Code of 1861, even though the confession was made to the polic.-officer and by a person in his custody .2 But an essential feature of the section was, that the confession must be proved by the deposition of the police officer himself, hi ogler to render it admissible in evidence. In the case of Bishoo Manfee3, Jackson J. observed :
"The police officer to whom the statement was made was not examined at all, and, therefore, it seems that the admission, so far as it was an admission, is not taken out of the general terms of section 148, which exclude such admissions generally."
But, in the same case', another important rule was also laid down, which has a bearing upon the interpretation of section 150, as it originally stood in the Code of 1861. It was held that an admission obtained by a police officer from a prisoner by persuasion and promises of immunity, in contravention of section 146 of the 1861 Code, was not admissible in evidence, even if it led to the discovery of facts. The view had already been previously adopted by a Division Bench of the Calcutta High Court in the case of Queen v. Dharam Diet, 8 WR 13 (Cr R).These two cases, therefore, are distinct, authorities for the proposition that, notwithstanding the general terms of section 150, it was never taken to qualify the prohibition contained in section 146 (concerned with involuntary confessions.)
1. Cf. section 163, Cr. P.C., 1973.
2. SWR 16 Cr. Letters.
3. Bishoo Manjee, 9 WR 16 (Cr R) (Cal).
10.24. Act of 1869.-
Such was the law before 1869, when Act 8 of that year was passed. The Act amended the Code of 1861, by revising section 150. It substituted, in its place a section in which the change of language is noticeable. The revised section 150 run as follows-
"150. Provided that, when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence1, or in the custody of a police officer, so such of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact thereby discovered, may be received in evidence."
1. Note the word "or".
10.25. Comparative Chart.-
For convenience of reference, sections 148, 149 Ind 150 of Act 25 of 1861, section 150 as amended by and Act 8 of 1869, and sections 25, 26 and 27 of Act 1 of 1872, are quoted below:
|Act 25 of (Criminal Procedure Code)||Act 8 of 1869||At 1 of 1872 (Evidence Act)|
|S. 148. No Confession or admission of guilt made to a police officer shall be used as evidence against a person accused of any offence.||Amending tha Act of 1861.||S. 25. No confession made to a police officer shall be used as evidence against a person accused of any offence.|
|S. 149. No confession or admission of guilt made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a Magistrate, such be used as evidence against shal person.||S. 26. 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.|
|S. 150. when any fact is desposed to by apolice officer discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered by it, may be received in evidence.||S. 150. Provided that when any fact is desposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered may be received in evidence.||S. 27. Provided that where any fact is disposed as discovered in consequence of information received from a person 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 there by discovered may be proved.|
10.26. English law.-
We now proceed to a brief discussion of the English law. The position in England may be very briefly stated1 in the form of these propositions-
"1. A confession of guilt in a criminal case is only admissible if it was not made in consequence of an unlawful threat, or inducement of a temporal nature made or held out by a person in authority.
2. Confessions obtained in contravention of the judges' rules or by means of other improper questions, may be excluded by the judge in the exercise of his discretion, although the conditions mentioned in clause I were fulfilled."
1. Cross Evidence, (1971), pp. 115-116, Article 40.
10.27. The law of confessions in England has thus two important aspect.- (1) Involuntary confessions are excluded in England. (2) Confessions made by the accused in police questioning, where the questioning was in breach of the Judges' Rules, are, at the discretion of the court, excluded. The English law as to first aspect was laid down in Ibrahim v. The King, 1914 AC 599 (609) : AIR 1914 PC 155 (PC), in the following terms. This was a judgment of the Privy Council, but has been universally cited as authoritative:-
It has long been established as a positive rule of English Criminal Law, that no statement1 by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by person in authority."
1. Emphasis added.
10.28. Basis of exclusion-various theories in England.-
Several theories have prevailed in England as to the basis for excluding involuntary confessions:
(i) The motion that the rule relating to the inadmissibility of such confession is based on considerations of their possible or probable untruth, was supported by Wigmore. According to him, the question to be asked was "Was the inducement such that there was any fair risk of a false, confession?"1
(ii) The other theory rests on a breach of faith or confidence; that is, that a false promise of favour or reward had been made.
(iii) The third theory is concerned with illegality in the method of obtaining the confession.
(iv) The fourth theory is based on the privilege against self-incrimination.
Historical roots of the two doctrines are separate2, but, there is a view, e.g. dictum of White J. in Bram v. United States, (1897) 168 US (543)-that the privilege against self incrimination was but a crystallisation of the doctrine as to confessions.
1. Wigmore Evidence, 3rd Edn., 1940, Vol. 3, section 824, p. 252.
2. Holdsworth History of English Law, Vol. 9, pp. 198-210.
10.29. In R. v. Baldry, (1852) 2 Den CC 430 (441, 442) Pollock, CB), decided in the middle of the nineteenth century, the court discussed at some length the policy of the confession rule, and said:
"The ground for not receiving such evidence is that it would not be safe to receive a statement made under any influence or fear. There is no presumption of law that it is false or that the law considers such statements cannot be relied upon; but such confessions are rejected because it is supposed that it would be dangerous to lead such evidence to the jury."
This statement has been cited with approval in subsequent decisions, notably by Lord Summer in Ibrahim v. R., 1914 AC 599 (611): AIR PC 155, supra. It rejects the view that testimonial untrust-worthiness is at the root of the confession rule.
10.30. Truth or falsity not decisive.-
The actual English cases in which the courts have excluded statements made by persons in custody, show that the question 'Is the confession likely to be true?' is not decisive. The approach seems rather to be one of defining proper police practices, and is also affected by considerations which suggest the strong influence of the privilege against self-incrimination, although the language used is that of the confession rule. This is brought out very clearly in a decision of the High Court of Australia, McDermott v. The King, (1948) 76 Commonwealth LR 501 (504, 513). This was an application for leave to appeal from a New South Wales conviction. The police, having decided to charge the prisoner with murder, took him into custody, administered a caution, and then questioned him for an hour, after which he confessed.
The prisoner was then formally charged. Counsel for the prisoner argued that the common law doctrine as to the exclusion of confessions was not founded upon nor concerned with the likelihood of falsity or unreliability of the confession The doctrine was founded upon broad policy. His submission was that the confession should be excluded, as it had been procured by cross-examination of a prisoner in custody by the police in violation of the Judges' Rules. A further point that was taken was the argument that the custody was unlawful, as it was the duty of the police, having decided to charge the prisoner before the interrogation, to take him before a magistrate. It was argued that a confession obtained from person in illegal custody was inadmissible.