CONFESSION BY ACCUSED

Dr. Shakuntala Misra National Rehabilitation University,

Lucknow

PROJECT ON LAW OF EVIDENCE

“CONFESSION BY ACCUSED”

(UNDER THE SUPERVISION OF DR. GULAB RAI)

SUBMITTED TO: SUBMITTED BY:

Dr. Gulab Rai Kartikeya Tiwari

Faculty of Law, DSMNRU B.Com.LL.B(Hons.)

Mohan Road, 5th Semester

Lucknow Roll.No-

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 CONFESSION BY ACCUSED

WORKING BIBLIOGRAPHY

1. Avatar Singh, Principles of the law of evidence, 22edn.,(2016) Central Law

Publications.

This book is an introduction to and a brief study of the principles of Law of Evidence

that underline the provisions of Indian Evidence Act, 1872.

2. Criminal Manual, Universal Law Publishing.

This Criminal Manual is the consolidated form of the Laws related to the Crimes.

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ACKNOWLEDGMENT

I hereby express my deep sense of gratitude to all personalities involved directly or

indirectly in my Law of Evidence, Confession by Accused project. With immense
pleasure I would like to express my thanks to Prof. Dr. Gulab Rai, project guide; and our
subject teacher, for giving me this privilege of working under him and complete my
analysis.

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TABLE OF CONTENTS

1. Introduction

2. Confession by Accused in Police Custody

2.1 Section 26

2.1.1 Explanation

2.2 Principles

2.3 Police Custody

2.4 Immediate Presence of a Magistrate: An Exception

3. How much information received from accused may be proved

3.1 Section 27

3.2 Scope

3.3 Principle

3.3.1 Example

3.4 Object of Section 27

4. Conclusion

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INTRODUCTION

Generally the word Admission and Confession are used as synonyms but they are different from
each other. The term admission is a vast term and includes confession within it. Admission can
be both Civil as well as Criminal, but Confession is only criminal. Confession is deliberately &
voluntarily made by the accused in evidence itself the matter. For example, A is accused of
killing his wife B. If A says “I killed B”. It will be a confession.

Confession is a very valuable piece of Evidence, as it reduces the work load of the court and
lengthy proceedings. But the confession given by the accused while in the custody of police not
to be proved against him, given under section 26 of the Indian Evidence Act, 1872 i.e. any
confessional statement given by a person in the police custody of a police officer shall not to be
proved. But the confessional statement at the immediate presence of a magistrate shall be proved
as against such person.

And, section 27 of the Indian Evidence Act, 1872 is the proviso to section 26 which tells that
how much of information received from accused may be proved i.e. amounts to the confession.
But section 26 and section 27 do not deal with the evidence of the same character.

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CONFESSION BY ACCUSED IN POLICE CUSTODY

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 be
made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation:
In this section “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 (10 of 1882).1

PRINCIPLES:

Section 26 is the extension of the principle laid down in Section 25. While Section 25 applies to
all confessions made to some police officers, this section includes confession made to “any
person” other than police officer, while in police custody. Under this section, it is provided that
no confession made by an accused to any person while in custody of a police officer shall be
proved against him unless it is made in the immediate presence of a Magistrate. Thus, the section
is intended to prevent of coercive method of extorting confession.

The section is based upon the same logic that the police in order to secure confession uses all
types of coercive methods, because the accused is put in constant fear and forced to confess.
“The reason is that a person in the custody of police is presumed to be under their influence and
it provides opportunities for offering inducement or extorting confession, but the presence of a
Magistrate is a safe guard and guarantees the confession.”2

1
Criminal Manual, Universal Law Publishing.
2
http//:www.lawquestinternational.com,
Last seen, 13/9/16

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POLICE CUSTODY:

Police custody simply means police control implying restrictions and restrain imposed by police
officer. It commences from the time when one’s right to movement is restricted by the police
officer. It includes both physical control and temporary restriction imposed on a person. An
accused is under police control means he is to stay under direct or indirect police surveillance.

Thus a woman was left under the custody of a village chowkidar or when she was left to Tonga-
driver by the police; both are regarded to be police custody. In the second case confession by the
accused to Tonga-driver was held to be irrelevant. Therefore, the custody of a police officer for
the purpose of the Section 26 is not merely physical restriction, but it includes any kind of police
surveillance. To constitute custody of police, some sort of custody is sufficient under section 26.
“The crucial test is whether the accused is a free man when he makes the confession or his
movements are controlled by the police either by themselves or by some other agency employed
by them.3

IMMEDIATE PRESENCE OF A MAGISTRATE: AN EXCEPTION:

As a general rule an accused made a confession to the police or while in police custody is not
relevant unless it has been made in the immediate presence of a magistrate.

The confession in presence of a magistrate by the accused is an exception to the general rule laid
down in Sections 24, 25 and 26. A confession by the accused in presence of a magistrate is
relevant only when it is done in accordance with rules laid down in Sections 164 and 364 of the
Code of Criminal Procedure, 1973. If the magistrate fails to observe procedures and formalities
of Sections 164 and 364, Cr. PC, even though the confession is made by the accused in
immediate presence of a magistrate, it is inadmissible.

When a magistrate who is not especially empowered to record confessions under Section 164,
Cr. PC., or who receives confession at a State when Section 164, Cr.PC., does not apply, is an
extra-judicial confession. A confession made while in custody is not to be proved against the

3
Avatar Singh, Principles of the law of evidence, 22edn.(2016) Central Law Publications.

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accused as the provisions of Sections 25 and 26 of the Evidence Act, do not permit it unless it is
made before a magistrate.4

If the confession was not recorded by a competent magistrate the confession of a person in police
custody would not be relevant. Where the accused were in police custody and no magistrate was
present there admission of the accused is not an admission in evidence. It is said by the Supreme
Court that the strict rule under section 26 is not applicable to a departmental enquiry against a
government employee.

In case of oral statement, other than that required to be recorded, made in presence of a sub-
inspector and a constable who had taken the accused under arrest to a magistrate on leave, is not
admissible. “The question arose in some cases whether a confession made by an accused before a
magistrate not reduced to writing may be proved by oral evidence and it has generally been
answered in the affirmative. An oral confession which is not open to any exception under
sections 24, 25 and 26 is relevant fact as an admission under section 21 and may be proved
against the accused by the oral evidence of the magistrate.”

4
i.d.,2

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HOW MUCH OF INFORMATION RECEIVED FOR THE ACCUSED MAY BE

PROVED.

SECTION 27:

HOW MUCH OF INFORMATION RECEIVED FOR THE ACCUSED MAY BE PROVED.

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.5

SCOPE:

There are two exceptions laid down in the Evidence Act so far the admissibility of confession
made by an accused is concerned. First, exception relates to when confession is made by the
accused in immediate presence of a magistrate (Section 26) and the other has been mentioned in
Section 27 i.e. when the confession leads to discoveries of facts. The section permits the proof of
all kinds of information whether contained in a confession or not, and therefore goes beyond the
provisions of Sections 25 and 26.

PRINCIPLE:

Section 27 lays down that during the period of investigation or during police custody any
information is given by the accused of an offence to the police officer that leads to discover any
fact, may be proved whether such information amounts to confession or not, and obtained under
inducement, threat or promise. Section 27 is by way of a proviso to Sections 25 and 26 and a
statement even by way of confession made in police custody which distinctly relates to the fact
discovered is admissible in evidence against the accused.

5
i.d.,1

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Under sections 24, 25 and 26 a confession which is inadmissible would be admissible under
section 27 subject to discoveries of facts on the basis of information given by the accused.
Section 27 is by way of proviso to Sections 25 to 26 and a statement even by way of confession
made in police custody which is distinctly relates to the facto discovered in admissible in
evidence agreement the accused.

EXAMPLE:

‘A’ was arrested by the police officer on a charge of murder. ‘A’ confessed to the police officer
that he had committed murder with a dagger what he had hidden in the neighbouring field. On
the basis of such information the police officer recovered the dagger from the field. The
statement regarding hiding of dagger to the police officer is relevant.

Under the section, excepting the confession relating to recoveries of facts no such guarantee or
assurance attaches to the rest of the statement which may be indirectly or remotely related to the
fact discovered. It arises by reason of fact that information given by the accused exhibited
knowledge or mental awareness of information as to its existence at particular place. Fact
discovered, therefore, has to be a combination of both the elements, that is, physical object and
mental condition.6

6
i.d.,2

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OBJECT OF SECTION 27:

Basic object of the section is to provide evidence for admission and such evidence relates to
some sort of discovery of fact. It would appear that under Section 27 as it stands in order to
render evidence holding to discovery of on fact admissible, the information must come from any
accused in custody of the police. It is well settled that recovery of object is not discovery of fact
envisaged in the section. Recovery so made pursuant to discovery statement can be relied upon
to complete chain of events relating to crime.

However, where there is direct evidence by the eye-witness non-recovery of the offending car
said to have been used by the accused will be no ground to disbelieve otherwise the credit
worthy evidence of the prosecution witnesses.

Where the recovery of panchnama of the sticks, the alleged crime article, had no mention that the
sticks had any marks of blood, the evidence of recovery of the sticks cannot constitute
incriminating evidence against the accused. Evidence of recovery cannot be relied upon for
conviction “so far as recovery of the sword as concerned, the same was not sent for any
examination by the Forensic Science Laboratory and the report if any was not exhibited and even
no question in that regard was put to the accused while he was examined under section 313 of the
Code.”(Cr. P.C.). Non discovery of weapon sickle does not go to discreet the witness.

Discovery statement of the accused and recovery of revolver in pursuant thereto is an important
circumstance against the accused which can be taken into consideration. Unless the disclosure
statement is proved, the consequential recovery at the instance of the accused is not covered
within the framework of Section 27 of the Evidence Act. Where in a plan an unknown woman
was raped and her dead body was buried, disclosure statement of accused persons pointing out
the place of rape was not admissible.7

7
i.d.,2

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CONCLUSION

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 section is based upon the same logic that the police in order to secure confession uses all
types of coercive methods, because the accused is put in constant fear and forced to confess.
“The reason is that a person in the custody of police is presumed to be under their influence and
it provides opportunities for offering inducement or extorting confession, but the presence of a
Magistrate is a safe guard and guarantees the confession.”

As a general rule an accused made a confession to the police or while in police custody is not
relevant unless it has been made in the immediate presence of a magistrate.

Section 27 lays down that during the period of investigation or during police custody any
information is given by the accused of an offence to the police officer that leads to discover any
fact, may be proved whether such information amounts to confession or not, and obtained under
inducement, threat or promise. Section 27 is by way of a proviso to Sections 25 and 26 and a
statement even by way of confession made in police custody which distinctly relates to the fact
discovered is admissible in evidence against the accused.

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