CONFESSION TO POLICE

Project submitted to

Ms. Neha Sinha

(Faculty: Evidence Law)

Project submitted by

Mukesh Choudhary

Roll No. - 73

Semester- VII

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

Submitted on –August 20th, 2015

 CONTENTS

ACKNOWLEDGEMENTS.......................................................................................................3

INTRODUCTION......................................................................................................................4

Forms of confession...............................................................................................................5

Section 24 of Indian Evidence Act.........................................................................................6

EVIDENTIARY VALUE OF CONFESSION........................................................................10

CONFESSION TO POLICE....................................................................................................14

Section 25 – confession to police officer not to be proved..................................................14

SPECIAL LEGISLATION......................................................................................................17

Section 26- Confession By Accused While In Custody Of Police Not To Be Proved

Against Him..........................................................................................................................17

Police Custody......................................................................................................................18

Section 27- How Much Of Information Received From Accused May Be Proved.............19

Section 28- Confession Made After Removal Of Impression Caused By Inducement,

Threat Or Promise, Relevant................................................................................................20

CONCLUSION........................................................................................................................21

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 ACKNOWLEDGEMENTS
Gratefulness is the noble response of one’s soul to kindness or help generously rendered by
another and its acknowledgment is an obligation and joyance. So it is that I express whole
heartedly to those who have made the creation of this project possible.

First of all I thank the almighty, Lord on whom I believe and depend on. My each and every
achievement is nothing but the showers of blessing He gives me.

I also thank Ms. Neha Sinha for selecting me to work on this project and guiding me
throughout. I extend my thankfulness to the IT Committee without which my project would
have had no life. I am extremely grateful to all my friends and all my well wishers who had
helped in the completion of this project. Last but never the least I extend my wholehearted
thankfulness to the librarians & and the office staff.

Mukesh Choudhary

3
 INTRODUCTION
Confession

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act.
This section comes under the heading of Admission so it is clear that the confessions are
merely one species of admission. Confession is not defined in the Act. Mr. Justice Stephen in
his Digest of the law of Evidence defines confession as “confession is an admission made at
any time by a person charged with a crime stating or suggesting the inference that he
committed that crime.”

In Pakala Narayan Swami v Emperor1 Lord Atkin observed

“ A confession must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a
conclusively incriminating fact is not in itself a confession”.

In the case of Palvinder Kaur v State of Punjab2 the Supreme Court approved the Privy
Council decision in Pakala Narayan Swami case over two scores.

Firstly, that the definition if confession is that it must either admit the guilt in terms or admit
substantially all the facts which constitute the offence. Secondly, that a mixed up statement
which even though contains some confessional statement will still lead to acquittal, is no
confession. Thus, a statement that contains self-exculpatory matter which if true would
negate the matter or offence, cannot amount to confession.

However in the case Nishi Kant Jha v State of Bihar3 the Supreme Court pointed out that
there was nothing wrong or relying on a part of the confessional statement and rejecting the
rest, and for this purpose, the Court drew support from English authorities. When there is
enough evidence to reject the exculpatory part of the accused person’s statements, the Court
may rely on the inculpatory part.

The acid test which distinguishes a confession from an admission is that where conviction
can be based on the statement alone, it is confession and where some supplementary evidence

1
A.I.R. 1939 P.C. 47.
2
A.I.R. 1952 S.C. 354.
3
1959 S.C.R. 1033.

4
is needed to authorize a conviction, then it is an admission as stated in Ram Singh v. State
4
Another test is that if the prosecution relies on the statement as being true it is confession
and if the statement is relied on because it is false it is admission. In criminal cases a
statement by accused, not amounting to confession but giving rise to inference that the
accused might have committed the crime is his admission.

Forms of confession
A confession may occur in many forms. When it is made to the court itself then it will be
called judicial confession and when it is made to anybody outside the court, in that case it
will be called extra-judicial confession. It may even consist of conversation to oneself, which
may be produced in evidence if overheard by another. For example, in Sahoo v. State of U.P.5
the accused who was charged with the murder of his daughter-in-law with whom he was
always quarreling was seen on the day of the murder going out of the house, saying words to
the effect : “I have finished her and with her the daily quarrels.” The statement was held to be
a confession relevant in evidence, for it is not necessary for the relevancy of a confession that
it should be communicated to some other person.

Judicial confession- Are those which are made before a magistrate or in court in the due
course of legal proceedings. A judicial confession has been defined to mean “plea of guilty
on arrangement (made before a court) if made freely by a person in a fit state of mind.

Extra-judicial confessions- Are those which are made by the accused elsewhere than before
a magistrate or in court. It is not necessary that the statements should have been addressed to
any definite individual. It may have taken place in the form of a prayer. It may be a
confession to a private person. An extra-judicial confession has been defined to mean “ a free
and voluntary confession of guilt by a person accused of a crime in the course of conversation
with persons other than judge or magistrate seized of the charge against himself. A man after
the commission of a crime may write a letter to his relation or friend expressing his sorrow
over the matter. This may amount to confession. Extra-judicial confession can be accepted
and can be the basis of a conviction if it passes the test of credibility. Extra-judicial
confession is generally made before private person which includes even judicial officer in his
private capacity. It also includes a magistrate not empowered to record confessions under
section 164 of the Cr.P.C. or a magistrate so empowered but receiving the confession at a
stage when section 164 does not apply.
4
A.I.R. 1959 Alld. 518.
5
A.I.R. 1966 S.C. 40.

5
Voluntary and non-voluntary confession- the confession of an accused may be classified
into Voluntary and non-voluntary confession. A confession to the police officer is the
confession made by the accused while in the custody of a police officer and never relevant
and can never be proved under Section 25 and 26. Now as for the extra-judicial confession
and confession made by the accused to some magistrate to whom he has been sent by the
police for the purpose during the investigation, they are admissible only when they are made
voluntarily. If the making of the confession appears to the court to have been caused by any
inducement, threat or promise having reference to the change against the accused person
proceeding from a person in authority and sufficient in opinion of the court to give the
accused person grounds, which would appear to him reasonable for supporting that by
making it he would gain any advantage or avoid any evil of a temporal nature in reference to
the proceeding against him, it will not be relevant and it cannot be proved against the person
making the statement. Section 24 of the Evidence Act lays down the rule for the exclusion of
the confession which are made non-voluntarily.

Section 24 of Indian Evidence Act - confession caused by inducement, threat or promise,

when irrelevant in criminal proceeding- A confession made by an accused person is irrelevant
in a criminal proceeding, if the making of 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, proceeding from a person in authority and sufficient, in the opinion of the
court, to give the accused person grounds, which would appear to him reasonable, for
supporting that by making it he would gain any advantage or avoid any evil of temporal
nature in reference to the proceeding against him.

If a confession comes within the four corners of Section 24 is irrelevant and cannot be used
against the maker.

1. Confession made by inducement, threat or promise- a confession should be free and

voluntary. “If it proceeds from remorse and a desire to make reparation for the crime, it is
admissible. If it flows from hope or fear, excited by a person in authority, it is inadmissible.”
The term inducement involves a threat of prosecution if the guilt is not confessed and a
promise of forgiveness if it is so done. It is very difficult to lay down any hard and fast rule as
to what constitutes inducement. It is for the judge to decide in every case. An inducement
may be express or implied, it need not be made to the accused directly from the person in
authority. Before a confession can be received as such, it must be shown that it was freely

6
and voluntarily made. This means that the confession must not be obtained by any sort of
threat or violence, not by any promise either direct or indirect, expressed or implied, however
slight the hope or fear produced thereby, not by the exertion of an influence. The ground on
which confessions made by the accused under promises of favour or threats of injury are
excluded from evidence is not because any wrong is done to the accused in suing than but
because he may be induced by pressure of hope or fear to confess the guilt without regard to
their truth in order to obtain relief or avoid the threatened danger. Thus it is clear that if threat
or promise from persons in authority is used in getting a confession it will not be taken into
evidence. Every threat or inducement may not be sufficient to induce the accused to confess a
guilt. The proper question before excluding a confession is whether the inducement held out
to the prisoner was calculated to make his confession untrue one. The real enquiry is whether
there had been any threat of such a nature that from fear of it the prisoner was likely to have
told an untruth. If so, the confession should not be admitted.

2. Inducement must have reference to the charge- the inducement must have reference to the
charge against the accused person that is the charge of offence in the criminal courts and
inferencing the mind of the accused with respect to the escape from the charge. The
inducement must have reference to escape from the charge. Thus, it is necessary for the
confession to be excluded from evidence that the accused should labour under influence that
in reference to the charge in question his position would be better or worse according as he
confesses or not. Inducements in reference to other offences or matters or offences committed
by others will not affect the validity of the confession thus, where a person charged with
murder, was made to confess to a Panchayat which threatened his removal from the caste for
life, the confession was held to be relevant, for the threat had nothing to do with the charge.

3. Threat, inducement and promise from a person in authority- the threat, inducement and
promise on account of which the accused admits the guilt must come from a person who has
got some authority over the matter. To be clear the person giving different promises,
threatening the accused or inducing him to make the confession must be a person in authority
as stated in the Pyare Lal v. State of Rajasthan 6 . If a friend of the accused induces him to
make a confession or a relation if he makes him a promise that if he confesses he will get him
released or even if he threatens him and the accused on that account admits his guilt this
statement will not be excluded by Section 24 as the threat, inducement or promise do not
emanate from a person in authority.
6
A.I.R. 1963 SC 1094.

7
If the accused makes the confession thinking that by doing so the authorities would soften the
attitude towards him the confession cannot be said to be non-voluntary.7

The term “person in authority” within the meaning of Section 24 was held to be one who has
authority to interfere in the matter charge against the accused. If this definition is to be
accepted that term “ a person in authority” would mean only the police who are in charge of
the investigation and the magistrate who is to try the case. This view appears to be too
restrictive. It appears that a person in authority within the meaning of Section 24 should be
one who by virtue of his position wields some kind of influence over the accused.8

The question as to whether a person to whom a confession has been made is a person in
authority would naturally depend on the circumstances of each case having regard to the
status of the accused in relation to the person before whom the confession is made. A house
surgeon is a person in authority in relation to nurse of the same hospital.9

4. Sufficiency of the inducement, threat or promise- before a confession is excluded,

inducement, threat or promise would in the opinion of the court be sufficient to give the
accused person ground which would appear to the accused reasonable for supposing that by
making the confession he would gain an advantage or avoid an evil of the nature
contemplated in the section. Consequently the mentality of the accused has to be judged and
not the person in authority. That being the case, not only the actual words, but words
followed by acts or conduct on the part of the person in authority, which may be taken by the
accused person as amounting to an inducement, threat or promise, will have to be taken into
account. A perfectly innocent expression, coupled with acts or conduct on the part of the
person in authority together with the surrounding circumstances may amount to inducement,
threat or promise.10 It does not turn upon as to what may have been the precise words used
but in each case whatever the words used may be it is for the judge to consider whether the
words used were such as to convey to the mind of the person addressed an intimation that it
will be better for him to confess that he committed the crime or worse for him if he does not.
The expression, “whatever you say will be used as evidence against you” will not exclude a
confession. On the other hand “you better pay the money than go to jail”, “if you tell me
where my goods are I will be favourable to you”, “I will get you released if you tell me the

7
R.K. Dalmia v. Delhi Administration A.I.R. 1962 SC 1821.
8
Motilal v. Kailash Narain A.I.R. 1960 MP 132.
9
Viranwally v. State, A.I.E 1961 JK.
10
Emperoe v. Panchkauri A.I.R 1925 Cal 587.

8
truth”, have been held to be sufficient to give the accused grounds for supposing that by
making the confession he would gain an advantage or avoid an evil.

It must be borne in the mind that the advantage gained or the evil avoided must be of
temporal nature therefore any inducement having reference to a future state of reward or
punishment does not affect the admissibility of confession. A confession will not be excluded
which has been obtained by the accused by moral or religious exhortation. 11 The expression
“you had better as good boys tell the truth”, “kneel down and tell me truth in the presence of
the Almighty”, do not give out any temporal gain and so the confession derived on these
confessions are not excluded by Section 24. Confession obtained on the allegation by the
panches that if the accused does not confess he shall be excommunicated will not exclude the
confession. It should be borne in the mind that the gain or evil must be in reference to the
proceeding against him.

11
In re Karumari China Mallayya A.I.R. 1948 Mad 324.

9
 EVIDENTIARY VALUE OF CONFESSION
Value of judicial confession- a case where there is no proof of corpus delicti must be
distinguished from another where that is proved. In the absence of the corpus delicti a
confession alone may not suffice to justify conviction.12

A confessional statement made by the accused before a magistrate is a good evidence and
accused be convicted on the basis of it. A confession can obviously be used against the maker
of it and is in itself sufficient to support his conviction. Rajasthan High Court has also held
that the confession of an accused person is substantive evidence and a conviction can be
based solely on a confession.13

If it is found that the confession was made and was free, voluntary and genuine there would
remain nothing to be done by the prosecution to secure conviction. If the court finds that it is
true that the accused committed the crime it means that the accused is guilty and the court has
to do nothing but to record conviction and sentence him. No question of corroboration arises
in this case. Normally speaking it would not be quite safe as a matter of prudence if not of
law to base a conviction for murder on the confession of the alleged murder by itself and
without more. It would be extremely unsafe to do so when the confession is open to a good
deal of criticism and has been taken in the jail without adequate reason and when the story of
murder as given in the confession is somewhat hard to believe. This observation was made by
the Supreme Court and therefore it cannot be said to be a good law in the case of judicial
confession.

Now the settled law is that a conviction can be based on confession only if it is proved to be
voluntary and true. If corroboration is needed it is enough that the general trend of the
confession is substantiated by some evidence which would tally with the contents of the
confession. General corroboration is enough.14

Value of extra-judicial confession- extra-judicial confessions are not usually considered

with favour but that does not mean that such a confession coming from a person who has no
reason to state falsely and to whom it is made in the circumstances which support his
statement should not be believed.15
12
Birey Singh v. State 1951 All.
13
State v. Balchand A.I.R. 1960 Raj 101.
14
Madi Ganga v. State of Orissa 1981 Cr LJ 628 SC.
15
Ram Singh v. State of U.P. A.I.R. 1967 SC 152.

10
The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial
confession must be received with great case and caution. It can be relied upon only when it is
clear, consistent and convincing. The court has to decide whether the person before whom the
admission is said to have been made are trustworthy witnesses. The extra-judicial confession
is open to the danger of mistake due to the misapprehension of the witness before whom the
confession was made to the misuse of the words and the failure of the party to express his
own meaning. This is also open to another sort of danger. There being no record and there
being no sanction behind it is very easy for the prosecution to catch hold of any witness who
may come and depose that the accused admitted his guilt in his presence on some particular
time. Due to those reasons it is very dangerous for the courts to base conviction on the sole
basis of extra-judicial confession. Usually and as a matter of caution courts require some
material corroboration to an extra-judicial confession statement corroboration which connects
the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the
foundation of the conviction is the confession alleged to have been made by the accused there
are three things which the prosecution must establish. First, that a confession was made,
secondly, that evidence of it can be given that is to say that it was voluntary and thirdly that it
is true. Such a confession must be proved by an independent or satisfactory evidence.

In State of Karnataka v. A.B.Nag Raj16 there was allegation that the deceased girl was killed
by her father and step-mother in the National park. The alleged extra-judicial confession was
made by accused during detention in forest office. No mention of said confession in report
given to police nor any witness present there mentioning about the same confession. This
extra-judicial confession cannot be relied on.

Before relying on extra-judicial confession, it must be considered whether the confession was
really made. It should also be considered as to why the accused reposed confidence in the
witnesses stating about the confession. It was alleged that the accused made confession to a
witness who was the widow of one of the conspirators and was helping her husband in
making spears and other weapons. It was held that the confession was not reliable.17

Value of retracted confession- A retracted confession is a statement made by an accused

person before the trial begins by which he admits to have committed the offence but which he

16
A.I.R. 2003 SC 666.
17
Kanan v. State of Kerala A.I.R. 1979 SC 1127.

11
repudiates at the trial. After the commission of a serious offence some police officer makes
investigation into the matter, examines witnesses and the accused. If in his opinion the
accused is proved to have committed the offence, he submits a report to a magistrate having
jurisdiction in the matter. The court takes evidence and examines the accused. If during the
investigation, the accused on being examined by the police officer is willing to admit the guilt
the police officer sends the accused to some magistrate for recording his statement. The
magistrate after being satisfied that the accused admits in his statement to have committed the
offence this recorded statement by the magistrate may be proved at the trial. When the trial
begins the accused on being asked as to whether he committed the crime he may say that he
did not commit the crime. The question may again be put to him as to whether he made
statement before the magistrate during the investigation confessing the guilt. He may deny to
have made the statement at all or he may say that he made that statement due to undue
influence of the police. In this case the confession made by the accused to the magistrate
before the trial begins is called retracted confession.

It is unsafe to base the convict5ion on a retracted confession unless it is corroborated by

trustworthy evidence. There is no definite law that a retracted confession cannot be the basis
of the conviction but it has been laid down as a rule of practice and prudence not to rely on
retracted confession unless corroborated. Courts have convicted persons on retracted
confession when they have been of the opinion that the confession when it was made was
voluntary or consistent and true but the real rule of law about the retracted confession is “
where the retracted confession is the sole evidence it can be of little value specially when
made during the competition for a pardon which sometimes occurs where a number of
persons are suspected of an offence,”. It very often happens that a number of persons are
accused of murder or dacoity or of any other offence. The person in charge of the
investigation falling on direct and independent evidence chooses some of the accused to
admit the guilt on the promise of making him a witness in the case. Instances are not rare
when a young man is made to admit some guilt due to pressure or fear.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or hope must be
either due to the remorse or godly fear or it is so because the accused is as truthful as Harish
Chandra and Yudhisthir. If this is so and if the statement was made because the winess was
remorseful or because he made the confession due to fear of god or because he was truthful
there is no reason as to why he resiles from that statement when he is put to trial. Due to this

12
suspicion a retracted confession can always be suspected to have been extracted by pressure,
undue influence, inducement or threat by some person in authority.

Proof of judicial confession- Under section 80 of Evidence Act a confession recorded by the
magistrate according to law shall be presumed to be genuine. It is enough if the recorded
judicial confession is filed before the court. It is not necessary to examine the magistrate who
recorded it to prove the confession.18 But the identity of the accused has to be proved.

Proof of extra-judicial confession- extra-judicial confession may be in writing or oral. In the

case of a written confession the writing itself will be the best evidence but if it is not available
or is lost the person before whom the confession was made be produced to depose that the
accused made the statement before him. When the confession has not been recorded, person
or persons before whom the accused made the statement should be produced before the court
and they should prove the statement made by the accused.

18
Kashmira Singh v. State of M.P. A.I.R. 1952 SC 159.

13
 CONFESSION TO POLICE
Section 25 – confession to police officer not to be proved.
No confession made to a police officer shall be proved as against a person accused of any
offence.

Reasons for exclusion of confession to police- another variety of confessions that are under
the evidence act regarded as involuntary are those made to a personnel. Section 25 expressly
declares that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the
accused and thus force him to confess to a crime which he might not have a committed. A
confession so obtained would naturally be unreliable. It would not would be voluntary. Such
a confession will be irrelevant whatever may be its form, direct, express, implied or inferred
from conduct. The reasons for which this policy was adopted when the act was passed in
1872 are probably still valid.

In Dagdu v. State of Maharashtra19, supreme court noted:

The archaic attempt to secure confessions by hook or by crook seems to be the be-all and
end-all of the police investigation. The police should remember that confession may not
always be a short-cut to solution. Instead of trying to “start” from a confession they should
strive to “arrive” at it. Else, when they are busy on their short-route to success, good evidence
may disappear due to inattention to real clues. Once a confession is obtained, there is often
flagging of zeal for a full and through investigation with a view to establish the case de hors
the confession, later, being inadmissible for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay,20 Police authority itself, however, carefully controlled, carries a

menace to those brought suddenly under its shadow and the law recognises and provides
against the danger of such persons making incriminating confessions with the intention of
placating authority and without regard to the truth of what they are saying.

Effect Of Police Presence

The mere presence of the policeman should not have this effect. Where the confession is
being given to someone else and the policeman is only casually present and overhears it that
19
A.I.R. 1977 S.C. 1579.
20
(1964) 64 C.N.L.R. 265 (P.C.) at 268

14
will not destroy the voluntary nature of the confession. But where that person is a secret agent
of the police deputed for the very purpose of receiving a confession, it will suffer from
blemish of being a confession to police.

In a rather unusual case, the accused left a letter recording his confession near the dead body
of his victim with the avowed object that it should be discovered by the police, the supreme
court held the confession to be relevant. There was not even the shadow of a policeman when
the letter was being written, and planted.

Exclusion Of Confessional Statements Only

This principle of exclusion applies only to statement which amount to a confession. If a

statement falls short of a confession, that is, it doesn’t admit the guilt in terms or
sustainability all the facts which constitute the offence, it will be admissible even if made to a
policeman, for example, the statement of an accused to the police that he witnessed the
murderer in question. The statement being not a confession was received in evidence against
him, as showing his presence on the spot.

Statements During Investigation And Before Accusation

A confessional statement made by a person to the police even before he is accused of any
offence is equally irrelevant. The section clearly says that such a statement cannot be proved
against any person accused of any offence. This means that even if the accusation is
subsequent to the statement, the statement cannot be proved.

Confessional FIR

Only that part of a confessional First Information Report is admissible which does not
amount to a confession or which comes under the scope of section 27. The non confessional
part of the FIR can be used as evidence against the accused as showing his conduct under
section 8.

Statement Not Amounting To Confession

A statement which does not amount to confession is not hit by the bar of section. A statement
in the course of investigation was that the design was carried out according to the plan. The
statement did not refer to the persons who were involved in the murder, nor did the maker of
the statement refer to himself. This was held to be not a confessional statement. Hence, not

15
hit by section 25 . The statement of inspector(crimes) that the accused accepted before him
that he got the counterfeit currency notes from a stranger but the accused denying to have so
stated, was not admissible in evidence.

Use Of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence
against him, he can himself rely on those statements in his defence. The statement of the
accused in FIR that he killed his wife giving her a fatal blow when some tangible proof of her
indiscretion was available was not usable against him to establish his guilt. But once his guilt
was established through other evidence, he was permitted to rely upon his statement so as to
show that he was acting under grave and sudden provocation. There is nothing in Evidence
Act which precludes an accused person from relying upon his own confessional statements
for his own purposes.

16
 SPECIAL LEGISLATION
A special legislation may change the system of excluding police confessions. For example,
under the Territorists and Disruptive Activities(prevention) Act, 1987, (S15) confessional
statements were not excluded from evidence on grounds that the persons making them were
in police custody. The court said in another case that section 15 was an important departure
from the ordinary law and must receive that interpretation which would achieve the object of
that provision was that a confession recorded under S.15 of TADA was a substantive piece of
evidence and could be used against a co-accused also.

Section 26- Confession By Accused While In Custody Of Police Not To Be Proved

Against Him.

No confession made by any person whilst he is in the custody of a police officer, unless it is
made in the immediate presence of a Magistrate, shall be proved as against such person.

Object- The object of section 26 of the Evidence Act is to prevent the abuse of their powers
by the police, and hence confessions made by accused persons while in custody of police
cannot be proved against them unless made in presence of a magistrate. The custody of a
police officer provides easy opportunity of coercion for extorting confession obtained from
accused persons through any undue influence being received in evidence against him.

Confession Of An Accused In Polilice Custody To Any One Else-

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him. Unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh21, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference which
could be drawn from the circumstance of the case, is that the confession was made at the time
when the accused was in the custody of police and it could not be proved against the accused.
It could not be believed that, when a police officer has seen the accused with deceased at last
occasion, he will not take the accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and
26, the Police Officer has left the accused in the custody of village head man (pradhan).
21
AIR 1990 SC 2140

17
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate
and to take extra-judicial confession under section 164 of Cr.P.C which has got more
probable value and it gives an opportunity to make the required warning, that this confession
will be used against the accused and after this warning he records the confession. Under
section 26, no confession made by an accused to any person while in custody of a police
officer shall be proved against him.

Police Custody
The word custody is used here in wide sense. A policeman may lay his hand on a person,
hand-cuff him or tie his waist with a rope and may take him with him. Again a police officer
may not even touch a person but may keep such a control over him that the person so
controlled cannot go any way he likes. His movement is in the control of the police officer. A
police officer comes to A and asks him to follow to the police station as he is wanted in
connection with a dacoity case. A follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence
Act, is no mere physical custody.” A person may be in custody of a police officer though the
other may not be physically in possession of the person of the accused making the confession.
There must be two things in order to constitute custody. Firstly, there must be some control
imposed upon the movement of the confessioner, he may not be at liberty to go any way he
likes, secondly, such control must be imposed by some police officer indirectly. The crucial
test is whether at the time when a person makes a confession he is a free man or hid
movements are controlled by the police by themselves or through some other agency
employed by them for the purpose of securing such confession. The word ‘custody’ in this
the following section does not mean formal cutody but includes such state of affairs in which
the accused can be said to have come into the hands of a police officer, or can be said to have
been some sort of surveillance or restriction.22

In R. v. Lester23, the accused was being taken in a tonga by a police constable. In the absence
of constable, the accused confessed to the tanga-driver that he committed the crime. The
confession was held to be in police custody as the accused was in the custody of constable
and it made no difference of his temporary absence. Where a woman, charged with the
murder of her husband, was taken into the custody of the police, a friend of the woman also
accompanied her. The policeman left the woman with her friend and went away to procure a
22
Mst. Maharani v. Emperor, AIR 1948 All.7
23
ILR(1985)20 Bom 165.

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fresh horse. The woman confessed her guilt to her friend while the policeman was away. The
confession would not be admissible against the accused as the prisoner should be regarded in
custody of the police in spite of the fact that he was absent for a short time. But where the
accused is not arrested nor is he under supervision and is merely invited to explain certain
circumstances, it would be going further that the section warrants to exclude the statement
that he makes on the grounds that he is deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for
treatment and from the moment of her admission to the hospital till her discharge from there,
the police personnel were neither present in the room wherein the accused was kept for
treatment or even in the vicinity of the hospital nor they frequently visited the hospital, it
could not be said that the accused’s movements were restricted or she was kept in some sort
of direct or indirect police surveillance and she was in police custody for the purpose of
section 26 of the Evidence Act.24

Section 27- How Much Of Information Received From Accused May Be Proved

Principle- this section of the act is founded on the principle that if the confession of the
accused is supported by the discovery of a fact then it may be presumed to be true and not to
have been extracted. It comes into operation only-

• If and when certain facts are deposed to as discovered in consequence of information

received from an accused person in police custody, and

• If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly can be safely allowed to be given in evidence. But clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate.

In Pandu Rang Kallu Patil v. State of Maharashtra25, it was held by Supreme Court that
section 27 of evidence act was enacted as proviso to. The provisions of sections of Section 25
and 26, which imposed a complete ban on admissibility of any confession made by accused
either to police or at any one while in police custody. Nonetheless the ban would be lifted if
24
Ram Singh v. Sonia, AIR 2007 SC 1218 at p. 1224.
25
AIR 2002 SC 739

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the statement is distinctly related to discovery of facts. The object of making provision in
section 27 was to permit a certain portion of statement made by an accused to Police Officer
admissible in evidence whether or not such statement is confessional or non confessional.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was
discovered in consequence of the information given by the accused of an offence in custody
of the police officer, so much of the information as relates to the facts discovered by that
information, may be proved irrespective of the facts discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.

Section 28- Confession Made After Removal Of Impression Caused By

Inducement, Threat Or Promise, Relevant

If such a confession as is referred to in section 24 is made after the impression caused by any
such inducement, threat or promise has, in the opinion of the court, been fully removed, it is
relevant.

Confession After Removal Of Threat Or Promise- under section 24 we have seen that if the
opinion of a court a confession seems to have been caused by any inducement, threat or
promise having reference to the charge and proceeding from a person in authority, it is
irrelevant and cannot be proved even against a person making the confession,

Section 28 provides that if there is inducement, threat or promise given to the accused in
order to obtain confession of guilt from him but the confession is made after the impression
caused by any such inducement, threat or promise has, in the opinion of the court been fully
removed, the confession will be relevant becomes pre and voluntary.

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 CONCLUSION
A perusal of these sections makes it amply clear that in the eyes of law and justice, any
statement in the shape of confession made to a police officer in India does not have any
value. Thus making any statement before a police officer is legally equivalent to having made
no statement at all. So, a person, when in police custody or when being before a police officer
can make any statement that he/she wants, can confess anything, can fool the police officer in
any possible manner and can twist facts and figures in whatever manner suiting the accused.
But once the accused is out of the police custody, he/she can immediately forget everything
said before the police officer and that is the end of it. One can understand that such a position
is not at all good for the delivery of justice. It makes the entire process of investigation before
the police a big farce where a clever accused can easily play with the evidences, can befool
the police men and can purposely misdirect the entire investigation. At other times, se/she
will confess everything and will divulge the facts in their entirety but when being produced in
the Court of law, the accused will deny everything with one flat No. Thus the entire exercise
done by the police becomes a complete waste.

I personally feel that such thinking needs to be changed if we are really serious about the
image of Indian police. Any organization which is based fundamentally on distrust and is
being blatantly disbelieved would never be treated respectfully by its citizen. Thus, while
such an arrangement is not only coming in the way of proper investigation, adequate
conviction and delivery of justice it is also making the entire police organization look
suspicious and belittled. It gives a shady and ignoble look to the Indian Police. This is a
situation which needs immediate rethinking. Removing such a provision of law seems to have
become mandatory today.

Yes, it would certainly need an introduction of large number of conditionalities, ifs and buts,.
These conditions, norms, warnings and due protections are certainly needed so that none of
the two sides take advantage of the lack of such terms, conditions and due protections. But,
when we take all these factors in consideration, it seems that the time has come to remove
this big anomaly in the Indian criminal justice system, which is not only acting as a slur on
the Indian police and Indian mentality but is also adversely affecting the deliverance of
justice.

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