Report No. 48
9. Proposal to make confessions made to senior police officers admissible in evidence subject to certain safeguards.-
Another proposal relates to confessions. The proposal to make confessions made to senior police officers admissible in evidence- (subject to certain safeguards), has a long history. In recent years, the question fell to be considered by the Law Commission. In its Report on the Reform of Judicial Administration1, while adopting a cautious approach, the Commission suggested, as an experimental measure, an amendment of a very limited character, to the effect that confessions made to senior police officers in selected areas (mainly, Presidency towns), should be admissible, thus overriding the bar laid down in section 25 of the Evidence Act.
Since then, this question has been mooted at almost all discussions where criminal procedure in general and the powers of the police in particular have come up for consideration. (The suggestion made in the 14th Report of the Commission2 was that as the superior officers of the police are today recruited from the same social strata as officers of other departments, confessions made to the officers of the status of the Deputy Superintendent of Police and above should be acceptable in evidence, the relaxation being restricted to cases which such officers themselves investigate and being introduced as an experimental measure only in the Presidency towns or places of like importance where investigation can be conducted by superior police officers and where the average citizen would be more educated and conscious of his rights.
The change, it was suggested, should be introduced in the three Presidency towns, because the magistracy there is directly under the control of the High Court; as regards the introduction of the change in other areas, it was observed, it should be preceded by the separation of the judiciary from the executive).
1. 14th Report, Vol. 2.
2. 14th Report, Reform of Judicial Administration, Vol. 2.
10. It appears to us that it would be desirable to deal with several aspects of the problem; and we proceed to discuss the matter in some detail, bearing in mind that separation of the executive and the judiciary has been effected in most of the States.
11. Interrogation as a method of investigating violations of the law has a long history. Within the first few pages of the Old Testament1, Adam is asked "Hast thou eaten of the tree...?"; to the demand "where is Abel thy brother?" Cain replies with an evasive "Am I my brother's keeper?"
But, as is well known, official interrogation of those suspected of crime, has been regarded with deep suspicion in Anglo-American legal systems. In England, this district was engendered by the inquisitorial practices of the prerogative courts of Star Chamber and High Commission. In the U.S.A., a host of exclusionary rules have taken birth as a result of the involvement of the courts in this problem.
Police interrogation for the purpose of obtaining confessions from suspects has been a subject of special concern in India for more than a century.
1. Genesis 3:11, 4:9-10, quoted in Note Developments in the Law of Confessions, (1965) 79 Harvard Law Review 935, 936.
12. Under the Indian Evidence Act, the admissibility of confessions is regulated by several provisions1. The prosecution's ability to use confessions is severely limited. Section 24 adopts the English rule that a confession is inadmissible if induced by fear of prejudice or hope of advantage held out by a person in authority. Section 25 states broadly that `no confession made to a police officer shall be proved as against a person accused of any offence.' Section 26 further provides that all confessions made in custody of a police officer are inadmissible unless made 'in the immediate presence of a Magistrate'. There is an exception in section 27, not material for our purpose.
1. Sections 24 to 26, Evidence Act.
13. The stringent provision in the Evidence Act was adopted as a response to legislative findings that:1
"(D)espite provisions in the Bengal Code for preventing any species of compulsion or maltreatment with a view to extort a confession......... (C)onfessions are frequently extorted or fabricated. A Police-officer,.........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 character are such as are likely to obtain credit for an accusation of any kind against them."
1. Indian Law Commissioners, First Report, referred to in Field, the Law of Evidence in British India (1928), p. 137.
14. The present position is the result of a competition between many sets of conflicting values. On the one hand, for the proper investigation of offences, subjection of the accused person to questioning is regarded as inevitable. It is believed, that law enforcement is unduly hampered by artificial rules restricting the admissibility of material obtained during the investigation. On the other hand, society apprehends that the zeal and power of law enforcement officers may outrun their self-restraint and wisdom.
The philosophy behind the almost categorical rule enacted in sections 25 and 26 of the Evidence Act1, is that these safeguards are indispensable to provide against the possibility of extorted confessions. The secrecy in which systematic police questioning is usually carried on, and the protracted questioning which has to be resorted to, have been considered as sufficient justifications for the present strict rules. Nevertheless, it is desirable that the present artificial rules should be replaced by more rational principles-if such principles can be devised.
1. Para. 13, supra.
15. It appears to us that without sacrificing the essential requirement of voluntariness, it is possible to improve upon the present rule by adding certain safeguards. A sensible legislative approach could lessen some of the obvious dangers of coercion, reduce disputes about the wording of the confession and maintain general fairness in questioning, without unduly hampering investigation. We have devoted some thought to the matter. We proceed to deal with the safeguards which we would add. With the addition of these safeguards, the present rigid rule could be modified.
16. The first safeguard is that the officer concerned must be an investigating officer. If the police officer to whom the confession is made is not investigating the offence, the accused can and ought to be sent to a Magistrate.
17. The second safeguard is that the accused must be informed of his right to consul1 a legal practitioner of his choice, and the accused must also be given an opportunity to consult such a legal practitioner before making the confession. Both these safeguards must be applicable whatever the rank of the police officer.
1. Article 22(1) of the Constitution.
18. The third safeguard, which we have in mind, is the presence of counsel. Here, a distinction could justifiably be made between senior police officers-Superintendent of Police and above-on the one hand, and the lower police officers, on the other. In the case of senior police officers, it should suffice if the counsel of the accused is allowed to remain present when the confession is recorded. If the accused has no counsel, or if his counsel does not wish to remain present, this requirement will not apply. In the case of lower police officers, counsel must be present always; and if the accused has no counsel, or if the counsel cannot remain present, the accused can and ought to be forwarded to a Magistrate, who can then record his confession under section 164.
19. The fourth safeguard, which appears to be necessary, is that the accused must be warned that he is not bound to make a confession, and that the confession, if made, would be used in evidence against him. Further, the fact of such warning having been given must be recorded, and the confession should be accurately taken down. Section 164 of the Code makes a provision with regard to these matters in detail (when confessions are recorded by Magistrates), and it is reasonable to provide that the safeguards should be followed by police officers of whatever rank, when they record confessions under the new procedure. This safeguard must be followed, whether or not a counsel is present.
20. Fifthly, the police officer must record that he has followed the safeguards detailed above. The value of such a requirement is obvious.
21. Our recommendations as to confessions can be thus stated in the form of propositions.
(1) In the case of a confession recorded by a Superintendent of Police or higher officer, the confession should be admissible in the sense that the bar under sections 25-26, Evidence Act, should not apply if the following conditions are satisfied:-
(a) the said police officer must be concerned in investigation of the offence;
(b) he must inform the accused of his right to consult a legal practitioner of his choice, and he must further give the accused an opportunity to consult such legal practitioner before the confession is recorded;
(c) at the time of the 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 wish to remain present, this requirement will not apply;
(d) 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;
(e) the police officer must record that he has followed the safeguards at (b), (c) and (d) above.
(2) In the case of a confession recorded by an officer lower than a Superintendent of Police, the confession should be admissible in the above sense if the following conditions are gatisfied:-
(a) the police officer must be concerned in investigation of the offence;
(b) he must inform the accused of his right to consult a legal practitioner of his choice, and he must further give the accused an opportunity to consult such legal practitioner before the confession is recorded;
(c) at the time of the making and recording of the confession, the counsel for the accused must be present. If the accused has no counsel or if his counsel does not wish to remain present, the confession should not be recorded;
(d) 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;
(e) the police officer must record that he has followed the safeguards at (b), (c) and (d) above.
22. The above amendments should apply to the whole of India. We recommend an amendment of the Evidence Act and of sections 162 and 164, Cr. P.C. on the above lines1.
1. To be implemented with reference to the Evidence Act and clauses 165 and 167, Cr. P.C. Bill.