Judicial and Extra-Judicial Confession under the Bharatiya Sakshya Adhiniyam, 2023: Meaning, Difference, Procedure under Section 183 BNSS and Evidentiary Value

Made to

A Magistrate, or a court in the course of a proceeding

Any other person — a relative, a friend, a village elder, an employer, a fellow prisoner, a panchayat

Recorded under

Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023

No prescribed procedure

Safeguards

Statutory — explanation, warning, satisfaction as to voluntariness, memorandum, reflection, audio-video recording

None. Whatever the circumstances happened to be

How proved

By production of the record, and ordinarily by the Magistrate who recorded it

By the oral testimony of the person to whom it was made, or by a document if reduced to writing

Evidentiary status

Substantive evidence. May found a conviction on its own if voluntary and true

Substantive evidence, but treated as a weak species requiring careful scrutiny

Principal attack

Non-compliance with the safeguards; the accused was in police custody shortly before; no time for reflection

The witness is unreliable, interested, or delayed; the words cannot be reproduced; the confession is improbable

Corroboration

Not required in law; sought as a rule of prudence where retracted

Ordinarily sought, and the courts look for a chain of cogent circumstances

⚠ A confession to a police officer is neither

The division is not exhaustive of everything an accused may say. A confession made to a police officer is excluded outright by Section 23(1), and a confession made while in police custody is excluded by Section 23(2) unless made in the immediate presence of a Magistrate. Such statements are not judicial confessions, and they do not become admissible by being described as extra-judicial. The only portion that may be proved is that falling within the proviso to Section 23(2).

Section 183, BNSS, 2023 — Recording of confessions and statements

(1) 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 under any law for the time being in force.

(4) Any such confession shall be recorded in the manner provided for recording the examination of an accused person and shall be signed by the person making it; and the Magistrate shall make a memorandum at the foot of the record certifying that he has explained to the maker that he is not bound to make a confession, that if he does it may be used as evidence against him, and that he believes the confession was voluntarily made.

Explanation and warning

The Magistrate must explain that the maker is not bound to confess, and that if he does, the confession may be used as evidence against him

A serious defect. It goes directly to whether the confession was informed and voluntary

Satisfaction as to voluntariness

The Magistrate must be satisfied, on questioning, that the confession is being made voluntarily

The foundation of admissibility. Where the satisfaction is mechanical or absent, the confession is unsafe

The memorandum

A certificate at the foot of the record recording the explanation, the warning and the belief in voluntariness

Its absence weakens the confession considerably, though it is not necessarily fatal if voluntariness is otherwise established

Signature of the maker

The confession must be signed by the person making it

Goes to the authenticity of the record

No police officer

A police officer with magisterial powers may not record a confession

Absolute. The record is a nullity for this purpose

Time for reflection

The accused is ordinarily removed from police custody and given time to reflect before the confession is recorded

Where the accused is produced directly from police custody and the confession is recorded at once, the inference of continuing pressure is strong

Audio-video recording

Permitted, in the presence of the accused's advocate

Where used, it furnishes near-conclusive proof of the circumstances. Where available but not used in a serious case, the omission may be commented upon

Jurisdiction

Any Judicial Magistrate could record a confession irrespective of jurisdiction, which produced jurisdictional anomalies

Any Magistrate of the district in which the information was registered, whether or not he has jurisdiction in the case

Mode of recording

Videography was required in defined circumstances

Confessions and statements may be recorded by audio-video electronic means in the presence of the advocate of the accused

⚠ An audio-video record is an electronic record

Where a confession recorded under the proviso to Section 183(1) is tendered at trial, the recording is an electronic record within Section 2(1)(d) of the Adhiniyam. It must be proved under Sections 57, 61 and 63. Where it falls within the Explanations to Section 57 — for instance, where it is produced from proper custody and is not disputed — it is primary evidence. Where a copy is tendered, the certificate prescribed by the Schedule to Section 63(4) is required, with the hash value in Part A and the expert declaration in Part B.

📖 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: Even a properly recorded judicial confession has no independent force against anyone but its maker.

A relative or close friend

The most natural recipient, and the strongest form. A person unburdening himself to someone close is inherently probable

A village elder or panchayat

Common in practice. The court examines whether the assembly was convened for the purpose and whether any pressure was applied

An employer or a person of local standing

Admissible, but the court considers whether the relationship gave the recipient authority over the accused, which may attract Section 22

A fellow prisoner

Admissible but weak. The circumstances are frequently improbable, and the witness may have an interest in obtaining favour

A complete stranger

Improbable and treated with great caution. There must be an explanation for why the accused chose that person

A person hostile to the accused

Highly improbable. The court examines whether any confession was made at all

A police officer, or anyone while in police custody

Excluded by Section 23; not an extra-judicial confession at all for the purposes of admissibility

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

Held: The Court summarised 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. Its evidentiary value increases where it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence. For it to be the basis of conviction, it should not suffer from any material discrepancies or inherent improbabilities. And such a statement essentially has to be proved like any other fact and in accordance with law.

Ratio: The leading modern statement, cited in virtually every subsequent decision on extra-judicial confessions.

📖 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 inherently weak evidence where the witness is reliable and the circumstances support it.

Ratio: The counterweight to Sahadevan. The weakness is not intrinsic to the category; it arises from the circumstances in which such confessions are usually made.

Probability of the disclosure

A reason why the accused would confide in that person at that time

No relationship, no explanation, and no occasion for the disclosure

Reliability of the witness

Independence, absence of interest, consistency between the deposition and the earlier statement

The witness is a relative of the deceased, or is under obligation to the investigating agency

Reproduction of the words

The witness must be able to give the substance of what was said

A vague deposition that the accused 'admitted the crime', without any account of what he actually said

Voluntariness and state of mind

That the confession was not induced, and that the maker was capable of understanding what he said

Made under obvious pressure from an assembled crowd, or while the accused was in a disturbed condition

Promptness of disclosure

That the witness disclosed it at the earliest opportunity

Unexplained delay of days or weeks before the witness came forward

Consistency with other evidence

That the confession fits the medical evidence, the recoveries and the sequence of events

The confession describes a manner of death inconsistent with the post-mortem findings

Corroboration

A chain of cogent circumstances supporting it

The confession stands entirely alone

What is tendered

The record made under Section 183, BNSS, with the memorandum

The oral testimony of the recipient; or the writing, if reduced to writing

Who deposes

The Magistrate who recorded it, ordinarily examined to prove the record and the circumstances

The person to whom the confession was made

Mode of proof

As a public document, or by the Magistrate's evidence; where audio-video, under Sections 57, 61 and 63

As an ordinary fact, by direct oral evidence under Sections 54 and 55

Where reduced to writing

The record is the primary evidence

The writing must be proved under Sections 56 to 60; where electronic, under Sections 57, 61 and 63

Cross-examination

Directed at the circumstances of recording and at compliance with the safeguards

Directed at whether the confession was made at all, and at the reliability of the witness

⚠ An extra-judicial confession in electronic form

A confession contained in a message, a recorded call, or a video is admissible on the same principles, but it must be proved as an electronic record. Relevance under Section 15 is only the first question; Sections 57, 61 and 63 govern the mode of proof, and where the record is tendered otherwise than as primary evidence, the certificate under Section 63(4) and the Schedule is required. A great many electronic confessions fail at this stage rather than on their content.

Effect of retraction

Does not render it inadmissible. The court assesses the reason offered

The same, though retraction is less often the issue — the usual dispute is whether the confession was made at all

Corroboration

Sought in material particulars as a rule of prudence

Ordinarily sought in any event, whether or not retracted

What the court examines first

Voluntariness and truth. Corroboration is considered only after both are satisfied

Whether the confession was made, and whether the witness is reliable

📖 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 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 on retracted confessions.

📖 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.

Supervision

Statutory procedure with prescribed safeguards

None

Record

A formal record with a memorandum, signed by the maker

Ordinarily none; the words are reconstructed from memory

Primary risk

That the safeguards were formal rather than real, and that police pressure continued

That the confession was never made, or has been embellished

Focus of the defence

Compliance, custody, and time for reflection

The credibility of the single witness

Strength when accepted

Very high. May sustain a conviction alone

Moderate. Ordinarily requires a supporting chain of circumstances

Status against a co-accused

Section 24 — may be taken into consideration only

The same

Leading authorities

Pyare Lal Bhargava; Subramania Goundan; Haricharan Kurmi

Sahadevan; State of Rajasthan v. Raja Ram

Confession — Meaning, Nature and Evidentiary Value

The definition of confession and the treatment of its several kinds

Confession under Sections 22, 23 and 24

The statutory provisions governing admissibility

Voluntary and Involuntary Confession

Section 22 and the test of voluntariness, applicable to both kinds

Discovery Statement — Proviso to Section 23

The only route by which a custodial statement reaches the record

Section 24, BSA

Confession of a co-accused in a joint trial

Section 183, BNSS, 2023

Recording of confessions and statements by a Magistrate

Sections 57, 61 and 63 and the Schedule, BSA

Proof of an audio-video record, or of a confession in electronic form

Section 160, BSA

Corroboration by a former statement