Confession of Co-Accused under Section 24 of the Bharatiya Sakshya Adhiniyam, 2023: Joint Trial, Conditions, Evidentiary Value and Landmark Judgments

Section 24 is an anomaly and has always been recognised as one. It permits a court to take into consideration, against one accused, a statement made by another which was not on oath, was not made in his presence, and cannot be tested by cross-examination. The courts have contained the anomaly by holding that such a confession is not evidence at all, that it can never found a conviction, and that it may be taken up only after the case against the accused has been found sufficient on the other material.

1. The Provision

Section 24, BSA — Consideration of proved confession affecting person making it and others jointly under trial for same offence

When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation 1. — 'Offence' as used in this section includes the abetment of, or attempt to commit, the offence.

Explanation 2. — A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.

	Section 30, IEA, 1872	Section 24, BSA, 2023
Operative provision	Identical in substance	Carried forward unchanged
Explanation 1	'Offence' includes abetment and attempt	Retained
Explanation 2	No corresponding provision	New. A trial held in the absence of an absconding accused, or of one who fails to comply with a proclamation under Section 84 of the BNSS, is deemed a joint trial

⚠ Explanation 2 is a substantive addition

Under the Indian Evidence Act it was arguable that where one of several accused had absconded and the trial proceeded against the rest, there was no joint trial of that person, and the confession of a co-accused could not be considered against him. Explanation 2 removes the difficulty by deeming such a trial to be a joint trial, and links it expressly to the proclamation procedure under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It is one of the few genuine substantive changes made outside the electronic-evidence chapter, and it works together with the trial-in-absentia provisions of the BNSS.

2. The Conditions

Condition	What it requires	Where it fails
1. More persons than one	At least two accused before the court	A sole accused; or all but one acquitted or discharged before the confession is considered
2. Being tried jointly	A joint trial in fact, or a trial deemed joint by Explanation 2	Separate trials; a co-accused who has died, absconded without a proclamation, or been discharged
3. For the same offence	The same offence, including its abetment or attempt by force of Explanation 1	The accused are charged with different offences arising from the same transaction
4. A confession	A statement admitting the offence, or substantially all the facts constituting it, within the judicial definition	A statement falling short of a confession is not within the section, however incriminating
5. Made by one of such persons	By a person on trial in that very proceeding	A statement by a person who is not an accused in the trial
6. Affecting himself and some other	It must implicate the maker as well as the co-accused	A statement that inculpates only the others and exculpates the maker. This is the commonest ground of exclusion
7. Proved	The confession must be admissible and must be proved in the ordinary way	A confession hit by Section 22 or Section 23 is not proved, and cannot be considered at all

2.1 The self-implication requirement

The sixth condition is the safeguard on which the whole section rests. A confession is received against the maker because a person does not ordinarily accuse himself falsely. A statement that implicates others while exonerating the maker carries none of that guarantee — it is the statement of a person shifting blame, and there is every reason to expect it to be untrue. The words 'affecting himself and some other of such persons' exclude it.

⚠ A confession, not a mere implication

The statement must be a confession within the judicial definition. On the authority of Pakala Narayana Swami it must admit in terms the offence, or substantially all the facts which constitute it; an admission of a gravely incriminating fact is not enough. And on the authority of Palvinder Kaur it must be read as a whole: where the exculpatory portion, if true, would negative the offence, the statement is not a confession at all and Section 24 has nothing to operate upon.

3. What 'May Take Into Consideration' Means

The section does not say that the confession is evidence, or that it may be acted upon, or that it proves anything. It says only that the court may take it into consideration. The choice of language is deliberate, and the courts have given it a narrow and settled meaning.

📖 Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159

Held: The confession of a co-accused is not evidence within the meaning of the definition. It cannot be made the foundation of a conviction. The proper approach is to marshal the other evidence first and to see whether, if it is believed, a conviction could safely be based upon it; the confession of the co-accused may then be used to lend assurance to that conclusion, but only for that purpose.

Ratio: The order of reasoning is fixed. The confession is taken up last, and only to lend assurance to a conclusion already reached on the other evidence.

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

Held: A Constitution Bench held that a confession of a co-accused is not evidence as defined in Section 3 of the Indian Evidence Act. It is not required to be given on oath, is not made in the presence of the accused, and cannot be tested by cross-examination. Section 30 merely enables the court to take it into consideration, and such a confession can 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. The Court observed that the confession is not evidence but is a factor which may be thrown into the scale after the other evidence has been weighed.

Ratio: The leading Constitution Bench authority. The confession of a co-accused cannot supply a deficiency in the prosecution case.

3.1 Why it is not evidence

Requirement of evidence	Satisfied by a co-accused's confession?
Given on oath	No
Made in the presence of the accused affected	No
Capable of being tested by cross-examination	No
Made before the court, or under the safeguards of Section 183 BNSS as against the maker	As against the maker, ordinarily yes; as against the co-accused, the safeguards give no protection at all
Within the definition in Section 2(1)(e)	No — it is neither the deposition of a witness nor a document produced for the inspection of the court in relation to the co-accused

4. The Order of Reasoning

Step	What the court does	Why the order matters
1	Marshal the other evidence against the accused, leaving the confession of the co-accused entirely out of account	The confession must not colour the assessment of the independent material
2	Ask whether, if that evidence is believed, a conviction could safely be based upon it	This is the real decision in the case
3	If the answer is no, acquit. The confession is not taken up at all	The confession cannot make insufficient evidence sufficient
4	If the answer is yes, the confession may be taken into consideration to lend assurance to the conclusion	Its only function is confirmatory

⚠ The commonest error

A judgment which recites the confession of the co-accused early, treats it as establishing the participation of the accused, and then looks to the other evidence for support has inverted the statutory scheme. The confession is not a starting point and not a link in the chain. It is thrown into the scale only after the scale has already tipped, and if the scale has not tipped, it is not thrown in at all.

5. What Is a Joint Trial

Situation	Joint trial for Section 24?	Reason
Two or more accused tried together for the same offence	Yes	The ordinary case
Accused charged with the offence and others with its abetment or attempt	Yes	Explanation 1 — 'offence' includes abetment and attempt
One accused has absconded and the trial proceeds against the rest	Yes	Explanation 2 — such a trial is deemed to be a joint trial
One accused fails to comply with a proclamation under Section 84, BNSS	Yes	Explanation 2
The accused are tried separately	No	There is no joint trial, and the section has no application
A co-accused has died before the trial	No	He is not a person being tried
A co-accused has been discharged or acquitted before the confession is considered	No	He is no longer on trial
A co-accused has been granted a pardon and examined as a witness	No	He is an approver and a witness, not a co-accused. His evidence is governed by Sections 138 and 119
The accused are charged with different offences arising from one transaction	No	The section requires the same offence

6. Confession of a Co-Accused and the Evidence of an Approver

The two are constantly confused because both involve one participant speaking against another. They are entirely different in status, and the difference is worth setting out.

	Confession of a co-accused	Evidence of an approver
Status of the maker	An accused being tried jointly	A person granted a pardon, examined as a witness for the prosecution
On oath	No	Yes
Cross-examination	Not available	Available, and the approver is subjected to it at length
Evidentiary status	Not evidence. May only be taken into consideration	Substantive evidence under Section 138 — a conviction is not illegal merely because it proceeds upon the testimony of an accomplice
Can it found a conviction?	No	Yes, if the double test is satisfied
What is required	Other evidence sufficient by itself; the confession then lends assurance	Reliability of the approver, and corroboration in material particulars connecting the accused with the crime
Governing provisions	Section 24	Section 138, read with Illustration (b) to Section 119

📖 Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637

Held: In dealing with the evidence of an approver the court applies a double test. It must first be satisfied that the approver is a reliable witness, which is a test common to all witnesses. It must then be satisfied that his evidence receives sufficient corroboration in material particulars connecting the accused with the crime. It is only after both tests are satisfied that the evidence of an approver may be acted upon.

Ratio: The double test for approver evidence, and the reason it stands on a higher footing than the confession of a co-accused.

7. Section 24 and Section 8 Compared

Both provisions allow material emanating from one person to bear on another. Their scope, mechanism and effect are different, and the difference is decisive in a conspiracy prosecution.

	Section 8 — conspirator	Section 24 — co-accused
What is admitted	Anything said, done or written in reference to the common intention	A confession made by one of several persons tried jointly
When	While the conspiracy is on foot, after the intention was first entertained	At any time; ordinarily after the offence and after detection
Condition precedent	Reasonable ground to believe a conspiracy existed, on independent material	A joint trial for the same offence, and a confession affecting the maker and the others
Requires a joint trial	No	Yes, actual or deemed
Evidentiary status	Substantive evidence of the existence of the conspiracy and of participation in it	Not evidence. May only be taken into consideration
Can it found a conviction?	Yes, as part of the case	No
A post-arrest confession naming associates	Outside the section — the conspiracy has ended	Within the section, if the conditions are met, but only to lend assurance

⚠ The practical consequence in a conspiracy case

A statement by an arrested conspirator narrating the plan and naming his associates falls outside Section 8, because the conspiracy had ended when it was made. It may fall within Section 24 if the makers are tried jointly for the same offence. But Section 24 gives it only the status of material the court may take into consideration after the case is otherwise established. The result is that a post-arrest statement can never be the foundation of a conspiracy case, whichever provision is invoked.

8. Practical Limits

The confession must first be admissible against its maker. A confession hit by Section 22, or made to a police officer or in police custody within Section 23, is not proved at all and cannot be considered under Section 24 against anybody.
Retraction affects it as it affects any confession. A retracted confession may still be taken into consideration, but the court examines the retraction, and its already limited value is reduced further.
It cannot corroborate an approver. The evidence of an approver requires corroboration from an independent source. A co-accused's confession is not independent evidence and cannot supply that corroboration.
It cannot be the sole material against an absconding accused. Explanation 2 makes the trial a joint trial, but it does not alter the status of the confession. The other evidence must still be sufficient by itself.
It is not a link in a chain of circumstances. In a circumstantial case the chain must be complete on the other material before the confession is looked at, and it can never close a gap.
The portion admissible under the proviso to Section 23(2) is not a Section 24 confession. Information leading to a discovery is admissible against the maker under the proviso; it does not become receivable against a co-accused by that route.

9. Related Topics and Provisions

Topic or provision	Connection
Confession under Sections 22, 23 and 24	The statutory scheme within which Section 24 operates
Confession — Meaning, Nature and Evidentiary Value	The definition of confession, which Section 24 presupposes
Retracted Confession	The treatment of a retracted confession, including that of a co-accused
Things Said or Done by Conspirators — Section 8	The alternative route, with a different mechanism and a different status
Substantive Evidence and Corroborative Evidence	The status of approver evidence and the requirement of corroboration
Sections 138 and 119, Illustration (b), BSA	Accomplice as a competent witness, and the presumption that he is unworthy of credit unless corroborated
Section 84, BNSS, 2023	Proclamation for an absconding person, referred to in Explanation 2