Confession under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Nature, Judicial and Extra-Judicial Confession, Retracted Confession, Evidentiary Value and Article 20(3)

A confession is the strongest evidence the law knows against the person who makes it, and the least reliable when it has been extracted. The Adhiniyam does not define the term at all. It regulates confessions in Sections 22 to 24 by reference to a concept supplied entirely by the courts, and the definition, the classification and the rules of weight are therefore judicial constructions built on a statutory framework of exclusion.

1. Meaning

Neither the Adhiniyam nor the Indian Evidence Act before it defines 'confession'. Section 15 defines admission, and confession has been understood as a species of admission — one made by a person accused of an offence, in which he admits the offence itself or all the facts constituting it.

📖 Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

Held: 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 of itself a confession. Thus a statement that the accused was the owner of and was in recent possession of the knife with which the deceased was stabbed is not a confession, although it is an admission of a gravely incriminating fact.

Ratio: The classical definition of confession, adopted by the Supreme Court and applied without variation in India.

📖 Palvinder Kaur v. State of Punjab, AIR 1952 SC 354

Held: The Supreme Court approved the definition in Pakala Narayana Swami and held that a statement must be taken as a whole. Where a statement contains both inculpatory and exculpatory material, and the exculpatory part, if true, would negative the offence charged, the statement cannot be treated as a confession. A court is not entitled to accept the inculpatory portion and reject the exculpatory portion.

Ratio: A confession is read as a whole. A mixed statement cannot be converted into a confession by discarding the part that assists the accused.

📖 Nishi Kant Jha v. State of Bihar, (1969) 1 SCC 347

Held: Where the exculpatory part of a statement is inherently improbable, or is demonstrably false, or is contradicted by the rest of the evidence on record, the court may rely on the inculpatory part alone. The rule against severance in Palvinder Kaur does not oblige a court to accept an exculpatory explanation that has been disproved.

Ratio: The exception. Severance is permissible where the exculpatory portion has itself been shown to be false, and not otherwise.

📖 Sahoo v. State of Uttar Pradesh, AIR 1966 SC 40

Held: A confession need not be communicated to another person. Where the accused, immediately after the killing, was heard uttering words to himself acknowledging what he had done, the utterance was held to be a confession. The essential ingredient is that the statement should be an acknowledgment of guilt; communication to another is not necessary in law.

Ratio: A soliloquy overheard by a witness may be a confession. Communication is not an element of the concept.

2. Kinds of Confession

Kind	Meaning	Governing provisions and weight
Judicial confession	Made before a court, or recorded by a Magistrate during investigation	Recorded under Section 183 of the BNSS, 2023. Substantive evidence; may found a conviction if voluntary and true
Extra-judicial confession	Made to any person other than a Magistrate or a court — a relative, a friend, a village elder, a fellow prisoner	Admissible if voluntary; treated as a weak species of evidence requiring careful scrutiny
Voluntary confession	Made freely, without inducement, threat, coercion or promise	Relevant, subject to Sections 23(1) and 23(2)
Involuntary confession	Caused by inducement, threat, coercion or promise from a person in authority	Irrelevant under Section 22
Retracted confession	One the maker has subsequently resiled from	Does not become inadmissible. Corroboration is sought as a rule of prudence
Confession of a co-accused	Made by one of several persons tried jointly for the same offence	Not substantive evidence. The court may take it into consideration under Section 24
Confession leading to a discovery	Information given in custody which results in the finding of a fact	The portion relating distinctly to the fact discovered is admissible under the proviso to Section 23(2)

3. Judicial Confession

A judicial confession is one made before a court, or recorded by a Magistrate in the course of investigation. Its reliability rests on the safeguards attending the recording, and those safeguards are contained in the procedural law rather than in the Adhiniyam.

Section 183, Bharatiya Nagarik Suraksha Sanhita, 2023 — Recording of confessions and statements

Any Magistrate of the district in which the information about the commission of an offence has been registered may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation, or at any time afterwards but before the commencement of the inquiry or trial.

Proviso. — Any confession or statement so made may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.

Further proviso. — No confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred.

Safeguard	Requirement
Explanation to the maker	The Magistrate must explain that the person is not bound to make a confession, and that if he does, it may be used as evidence against him
Satisfaction as to voluntariness	The Magistrate must be satisfied that the confession is being made voluntarily, and must record a memorandum to that effect
No police officer	A police officer on whom magisterial powers have been conferred may not record a confession
Reflection	The accused is ordinarily given time to reflect, and is removed from police custody before the confession is recorded
Manner of recording	Recorded in the manner provided for the examination of an accused person, and signed by the maker
Audio-video recording	Expressly permitted by the BNSS, in the presence of the accused's advocate — a change from the position under the Code of Criminal Procedure, 1973

⚠ Two changes introduced by Section 183 BNSS

The first is jurisdictional: any Magistrate of the district in which the information was registered may record the confession, whether or not he has jurisdiction in the case, which removes an anomaly under the earlier provision. The second is technological: the confession may be recorded by audio-video electronic means in the presence of the accused's advocate. Where such a recording is tendered, it is an electronic record and must be proved under Sections 57, 61 and 63 of the Adhiniyam.

4. Extra-Judicial Confession

An extra-judicial confession is made to any person other than a Magistrate or a court. It is admissible, since no provision excludes it, provided it is not hit by Section 22 and was not made to a police officer or in police custody. Its difficulty lies not in admissibility but in weight.

📖 Sahadevan v. State of Tamil Nadu, (2012) 6 SCC 403

Held: The Court set out the principles governing an extra-judicial confession. It is a weak piece of evidence by itself and must be examined with great care and caution. It should be made voluntarily and should be truthful. It should inspire confidence, and its evidentiary value increases where it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. For an extra-judicial confession to be the basis of conviction it should not suffer from any material discrepancies and inherent improbabilities. Such a statement essentially has to be proved like any other fact and in accordance with law.

Ratio: The leading modern statement of the principles governing extra-judicial confessions, cited in virtually every subsequent decision.

📖 State of Rajasthan v. Raja Ram, (2003) 8 SCC 180

Held: An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact, and its value depends on the veracity of the witness to whom it was made. There is no rule of law or of prudence that an extra-judicial confession cannot be the basis of conviction unless corroborated; it is not to be regarded as inherently weak evidence where the witness is reliable and the circumstances support it.

Ratio: An extra-judicial confession is not weak per se. Its weight turns on the reliability of the witness who deposes to it.

Matter examined	What the court looks for
To whom it was made	A person to whom the accused would naturally unburden himself — a relative, a close friend, a village elder. A confession to a stranger, or to a person hostile to the accused, is improbable
Reliability of the witness	Whether the witness is independent, disinterested, and consistent
Reproduction of the words	Whether the witness can reproduce the substance of what was said. A vague account that the accused 'admitted the crime' is worth little
Voluntariness	That the confession was not induced, and that the maker was in a fit state of mind
Promptness of disclosure	Whether the witness disclosed it at the earliest opportunity. Unexplained delay materially weakens it
Consistency with the other evidence	Whether it fits the medical evidence, the recoveries and the surrounding circumstances
Motive of the maker to confess	Whether there was any reason for the accused to make the disclosure to that person at that time

5. Retracted Confession

A confession does not become inadmissible because the maker has since resiled from it. Retraction is a circumstance affecting weight, and the courts have developed a rule of prudence rather than a rule of law.

📖 Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094

Held: A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice that in no case shall conviction be based without corroboration of a retracted confession.

Ratio: The governing statement. Corroboration of a retracted confession is a rule of prudence, not a rule of law.

📖 Subramania Goundan v. State of Madras, AIR 1958 SC 66

Held: A retracted confession is a weak link against the maker and there must be some other tangible evidence to fortify it. The court must first be satisfied that the confession was voluntary and true, and must then look for corroboration in material particulars before acting upon it.

Ratio: The two-stage approach — voluntariness and truth first, corroboration second.

Question	Position
Does retraction render the confession inadmissible?	No. Admissibility is determined at the time the confession was made
Is corroboration required as a matter of law?	No. It is a rule of prudence which has hardened into a rule of practice
What must the court be satisfied of first?	That the confession was voluntary and true. If it fails either test, corroboration is beside the point
What corroboration is looked for?	Corroboration in material particulars, connecting the accused with the offence
Does the reason for retraction matter?	Yes. A retraction supported by material suggesting that the confession was extracted carries far more weight than a bare denial made at the trial
Can a retracted confession of a co-accused be used?	Only within Section 24, and then only to lend assurance — it is not substantive evidence even before retraction

6. Evidentiary Value in Outline

Kind of confession	Against the maker	Against a co-accused
Judicial, voluntary, not retracted	Substantive evidence. May found a conviction on its own	Section 24 — may be taken into consideration only, and cannot found a conviction
Judicial, retracted	Admissible; corroboration in material particulars sought as a rule of prudence	The same, with even greater caution
Extra-judicial	Admissible; weight depends on the reliability of the witness and the supporting circumstances	The same, subject to Section 24
Caused by inducement, threat, coercion or promise	Irrelevant under Section 22	Irrelevant; a confession that cannot be proved cannot be considered under Section 24
Made to a police officer	Inadmissible under Section 23(1)	Inadmissible
Made in police custody	Inadmissible under Section 23(2), unless in the immediate presence of a Magistrate	Inadmissible
Portion leading to a discovery	Admissible under the proviso to Section 23(2), to the extent it relates distinctly to the fact discovered	Admissible only against the maker; it is not a confession considered under Section 24

📖 Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184

Held: A Constitution Bench held that the confession of a co-accused is not evidence as defined in Section 3 of the Indian Evidence Act. It is not given on oath, not made in the presence of the accused, and cannot be tested by cross-examination. The section merely enables the court to take it into consideration, and it may be used only to lend assurance to other evidence against the co-accused. Where the other evidence is insufficient, the confession cannot be pressed into service to make it sufficient.

Ratio: The leading Constitution Bench authority on the status of a co-accused's confession.

7. Confession and Article 20(3)

Article 20(3), Constitution of India

No person accused of any offence shall be compelled to be a witness against himself.

The exclusion of confessions to the police in Section 23 and the constitutional protection in Article 20(3) address the same concern from different directions. Section 23 is a rule of evidence which excludes a category of statement irrespective of whether compulsion is proved. Article 20(3) is a fundamental right which invalidates compulsion itself. The two operate independently, and a statement may survive one and fail the other.

Element of Article 20(3)	What the courts have held
A person accused of an offence	The protection attaches to a person against whom a formal accusation exists, and extends to the stage of police interrogation of a person against whom an accusation has been made
Compelled	Compulsion means duress. A statement made voluntarily, even to the police, is not hit by the Article, though it may still be excluded by Section 23
To be a witness against himself	Confined to testimonial compulsion — imparting personal knowledge. It does not extend to the furnishing of specimen signatures, handwriting, thumb impressions, blood samples or the production of documents that are not testimonial in character

📖 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

Held: An eleven-Judge Bench held that 'to be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. Giving thumb impressions, specimen signatures, handwriting or samples for comparison does not amount to being a witness against oneself, because such material furnishes only a means of comparison and does not convey any personal knowledge. The Court also held that mere custody does not by itself amount to compulsion.

Ratio: The foundational modern authority. The protection is confined to testimonial compulsion, and does not extend to physical or identificatory material.

📖 Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424

Held: The protection under Article 20(3) is not confined to the trial. It extends to the stage of police interrogation, and is available to a person against whom a formal accusation has been made, whether or not the interrogation takes place in court. The right to silence covers not only answers that would directly incriminate, but also those that furnish a link in the chain of evidence.

Ratio: Article 20(3) operates from the investigation stage, and covers answers that would furnish a link in the chain.

📖 Selvi v. State of Karnataka, (2010) 7 SCC 263

Held: The compulsory administration of narco-analysis, polygraph examination and the Brain Electrical Activation Profile test violates Article 20(3), because the results convey personal knowledge and amount to testimonial compulsion. Such techniques also amount to an intrusion into personal liberty under Article 21. No individual may be subjected to these tests without consent, and where consent is given, it must be recorded before a Magistrate with the person having access to a lawyer. Any information or material subsequently discovered with the help of a voluntarily administered test may be admitted, in line with the discovery provision.

Ratio: The leading modern authority. Involuntary administration of such techniques is unconstitutional, and the results of a compelled test cannot be used.

⚠ The relationship between the two protections

Section 23 of the Adhiniyam and Article 20(3) are not co-extensive. Section 23 is wider in one respect: it excludes a confession made to a police officer even where it was entirely voluntary and no compulsion is alleged. Article 20(3) is wider in another: it protects against compelled testimonial material of any kind, not merely confessions, and it operates against courts and other authorities as well as the police. A voluntary confession to a police officer offends Article 20(3) not at all, and is nevertheless inadmissible under Section 23(1).

8. Confession and Admission Distinguished

	Admission	Confession
Definition	Section 15 — a statement suggesting any inference as to a fact in issue or relevant fact	Judicial. An admission by a person accused of an offence, of the offence or of substantially all the facts constituting it
Proceedings	Civil and criminal	Criminal only
Content	Suggests an inference; need not concede liability	Admits the offence or all its constituent facts. A gravely incriminating fact alone is not enough
Governing provisions	Sections 15 to 21 and 25	Sections 22 to 24 and 25
Effect against others	Binds the maker and his representative, and persons within Sections 16 to 18	Section 24 — may be taken into consideration against a co-accused, but is not substantive evidence
Special protections	Section 21 in civil cases	Sections 22 and 23 — inducement, coercion, police confessions and custody
Relationship	The wider category	A species of admission

9. Related Topics and Provisions

Topic or provision	Connection
Confession under Sections 22, 23 and 24	The statutory provisions governing admissibility
Admission and Estoppel; Admission vs Confession	The comparative treatment of the two concepts
Recovery as Circumstantial Evidence	The discovery provision and its operation as a circumstance
Evidentiary Value of Admissions	Section 25, which applies to confessions as well as admissions
Section 183, BNSS, 2023	Recording of confessions by a Magistrate, and the audio-video safeguard
Sections 57, 61 and 63 and the Schedule, BSA	Proof of an audio-video record of a confession
Article 20(3) and Article 21, Constitution of India	Protection against testimonial compulsion, and personal liberty
Section 160, BSA	Corroboration by a former statement, relevant to a retracted confession