Police Confession and Judicial Confession Compared

Sections 22 and 23, Bharatiya Sakshya Adhiniyam, 2023

Section 22. 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, coercion 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 supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.

First proviso. If such an impression is, in the opinion of the Court, fully removed, the confession is relevant.

Second proviso. A confession is not irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the accused for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, or because he was not warned that he was not bound to make it and that evidence of it might be given against him.

Section 23(1). No confession made to a police officer shall be proved as against a person accused of any offence.

Section 23(2). No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved against him.

Proviso to section 23(2). 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.

⚠ The two sub-sections cover different ground

Section 23(1) looks at the recipient. A confession made to a police officer is excluded wherever it is made and whether or not the maker is in custody — in the street, at home, over the telephone.

Section 23(2) looks at the maker’s position. A confession made by a person in police custody is excluded whoever it is made to — to a fellow prisoner, to a doctor, to a relative who visits, to a village headman.

The two together leave almost no room. A confession made by a person under investigation is excluded either because of who heard it or because of where he was, unless it was made in the immediate presence of a Magistrate. That is why section 183 of the Sanhita is the only practical route.

“Police officer” has been construed by reference to the powers the person holds rather than his designation, and the question whether an officer under a particular special statute is a police officer for this purpose has been litigated repeatedly and answered differently for different statutes.

📖 Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

Facts: The accused himself went to a police station and gave the first information report, in which he stated that he had killed the deceased persons, described how he had done it, and said where he had hidden the bodies and the weapon. The prosecution sought to rely on the parts of the report that did not in terms admit the offence — the statement that he went to the place, that he was present, that the bodies were at a particular spot — contending that only the expressly inculpatory sentences were barred.

Held: The Supreme Court rejected the attempt to dissect the statement. It held that a confession must be taken as a whole and that where a first information report given by an accused is a confessional statement, the whole of it is excluded by the bar on confessions to a police officer; it is not permissible to separate out the individual sentences and admit those that are not in terms an admission of guilt, because each of them derives its meaning and its incriminating character from the confession of which it forms part. Only two things survive: the fact that the accused gave the information, which may be proved as conduct, and so much of the information as led distinctly to a fact discovered, under the discovery exception. Everything else in the statement, inculpatory or exculpatory, goes out.

Ratio: A confessional statement to a police officer is excluded in its entirety and cannot be dissected to admit the parts that are not in terms admissions of guilt. What survives is the fact that the information was given, and the discovery exception.

📖 Pulukuri Kottaya v. Emperor, AIR 1947 PC 67

Facts: Statements made by accused persons in police custody had led to the recovery of weapons. One statement was: “I will produce a knife concealed in the roof of my house with which I stabbed the deceased.” The prosecution relied on the whole of it under the provision permitting so much of the information as relates distinctly to the fact discovered to be proved, contending that the recovery validated the entire statement.

Held: The Privy Council held that the section is to be construed strictly and that the words “so much of such information as relates distinctly to the fact thereby discovered” confine what may be proved. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to that place; but the information as to the past use of the object is not related to its discovery and is therefore not admissible. In the example the Board gave, the words “with which I stabbed the deceased” are inadmissible, while the words “I will produce a knife concealed in the roof of my house” are admissible. The Board warned that the section is a restricted exception to the bars on confessions to the police and in police custody, and that it is not to be used to let in by a side door what those provisions exclude.

Ratio: Only so much of the information as relates distinctly to the fact discovered is admissible. The part that assigns guilt, or describes the past use of the object, is not, however closely it is attached to the part that led to the discovery.

⚠ Three limits that are constantly overlooked

A discovery of something already known is not a discovery. Where the police already knew where the article was, nothing was discovered in consequence of the information, and the exception does not apply.

The “fact discovered” includes the accused’s knowledge of the place. That is what gives the exception its evidentiary value: not merely that a weapon was found, but that this accused knew it was there. It is therefore evidence of knowledge, and knowledge is a long way from guilt.

The part that assigns guilt is never admissible. “I will produce the knife with which I stabbed him” admits only “I will produce the knife” and the place. The rest is excluded, however natural it may seem to read the sentence as a whole.

The position stated shortly

1. Three bars operate. Section 22: a confession caused by inducement, threat, coercion or promise from a person in authority is irrelevant. Section 23(1): a confession to a police officer shall not be proved. Section 23(2): a confession by a person in police custody shall not be proved unless made in the immediate presence of a Magistrate.

2. Section 23(1) looks at the recipient; section 23(2) looks at the maker’s position. Between them they leave almost no confession admissible unless recorded by a Magistrate.

3. The reason is that a confession obtained by the investigating agency, in a place it controls, from a person who cannot leave, cannot safely be assumed to be voluntary. The law excludes the class rather than inquiring case by case.

4. A confessional statement to a police officer is excluded in its entirety and cannot be dissected to admit the parts that are not in terms admissions of guilt: Aghnoo Nagesia. What survives is the fact that the information was given and the discovery exception.

5. The proviso to section 23(2) admits so much of the information as relates distinctly to the fact thereby discovered, whether or not it amounts to a confession.

6. The exception is strictly construed. The part assigning guilt or describing the past use of the object is not admissible, however closely attached: Pulukuri Kottaya.

7. The fact discovered includes the accused’s knowledge of the place, which is what gives the exception its value; but knowledge is not guilt.

8. A judicial confession under section 183 BNSS is substantive evidence against its maker if voluntary and duly recorded, and may by itself sustain a conviction.

9. A retracted judicial confession remains admissible, but the court looks for corroboration in material particulars as a rule of prudence.

10. The confession of a co-accused may be taken into consideration but is not evidence, and a conviction cannot rest on it alone; it may only lend assurance to a conclusion reached on other evidence.