Confessions to Police - An overview

Section 25[1] of the Indian Evidence Act,1872, expressly states that confessions to the police shall not be proved. A confession to the police cannot be used to corroborate any other evidence also[2]. The rationale behind this section is that such a confession would not be voluntary. The police would resort to means such as torture to make the accused confess. The basis of their investigation would become the confession because of which many other important evidences would be sidelined.

 

If a confession before the police was considered to be valid then our fundamental rights would also be violated. The Constitution of India under Article 20(3) protects the accused against self incrimination. Thus, the accused cannot be compelled to accept his guilt. Along with physical torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods also render the confession as involuntary. However, the legal penalties that follow for refusal to answer or answer truthfully are not considered to be incriminatory[3].

 

Only a confession made before a police official is inadmissible. A statement made to a police officer, though not a confession, but amounts as evidence against him is admissible. A confessional statement made by a person even before he is accused of an offence is also irrelevant. Similarly a confessional FIR is also extraneous. However it may be admissible if one leaves out the parts which amount to a confession or fall within the purview of Section 27.

 

Section 26[4] comes into play when the confession is made by the accused while he is in police custody to any person other the police officer. As per this section any such confession is not to be proved unless it is made in the presence of the magistrate. The reason being that the police can resort to the same coercive means to extract a confession from the accused while he is under police custody and thus render the confession involuntary, and hence, inadmissible.

In the infamous Nithari killings case, a confession by Surendra Koli was recorded in a video-conferencing room at Delhi’s Patiala House Court before the Additional Chief Metropolitan Magistrate Kamini Lau, to use as evidence in the trial. Such a confessional statement will be admissible as it was made upon the incidence of a magistrate.

Section 27[5] operates as an exception to its preceding two sections. It states that if any information is furnished by the accused while he is in police custody, is in consonance with any fact thereby discovered, it may be proved in court irrespective of whether it amounts to a confession or not. Whether such a statement proceeds out of inducements threats or torture are absolutely immaterial[6].

 

Thus, a confessional statement given by Moninder Singh Pandher to the Noida police relating to the Nithari killings will not be admissible standing alone as it may be made under duress. However, the recovery of the skeletal remains of the bodies at the instance of the joint confession (recorded by Noida’s former Deputy Superintendent of Police Dinesh Yadav on Dec 29, 2006) made by Pandher and Koli will be admissible as per this section[7].

 

In the case of Anber Singh v State of Rajasthan[8] it was held,

 

“So much of such information as related directly to the fact thereby discovered”

 

This makes it clear that the information given should directly lead to the fact that is discovered. Any remote or indirect connection with the facts recovered is irrelevant.

 

Thus, above discussed are Sections 25, 26 and 27, which relate to the confessions made before the police.

CONCLUSION

 

Section 25 of the Indian Evidence Act 1872 renders only a confession made before a police officer as inadmissible. A statement falling short of a confession is however admissible. The framers of this act have ignored that even that statement may be made by the accused under pressure or by using coercive means. The fact that such a statement is admissible as evidence in the court could deny him the right to fair trial.

On the other hand the Terrorism and Disruptive Activities (Prevention) Act, 1985 was enacted to combat the growing terrorist activities in Punjab. It was a special enactment in which a confession in front of a police officer is admissible as evidence in the court. The main ground for this was to prevent the offenders from getting away after committing an offence due to lack of evidence. In fact a confession recorded under Section 15[9] of TADA was considered as a substantive piece of evidence and could be used against the co accused as well[10]. The established principle of criminal law, innocent until proven guilty, does not come into play here. Section 21[11] of the act presumes the guilt of the accused unless the contrary is proved. After many amendments, this act was finally repealed in the year 1995.

Under MCOCA, Maharashtra Control of Organised Crime Act , also a confession given before the police who is of the rank of deputy superintendent is admissible in court, unless proven involuntary, provided it is confirmed before a magistrate within 24 hours of its being recorded by the police officer[12]. Thus, the allegations of the three accused in the blasts that took place in Surat and Ahmedabad - Fazal-e-Rehman Durani, Ahmed Bawa Abubakar, and Mohammed Naushad Ali - that the police forcibly made them sign on some papers before being produced in front of a magistrate where the confessions were confirmed, would hold true only if they are able to prove the same, or else their confessions will be inadmissible.

Enactments such as MCOCA and TADA throw light upon the stringent measures taken by Indian legislations in order to combat crime. These are drafted in a manner so as to give the police officer immense powers (ex. search and seizure of property (Section 7A[13] of TADA)). The fact that confessions before a police officer are admissible as evidence in the courts adds to the amount to control that the police can exercise. The intention behind the framing of the above legislations is to prevent an offender from getting away, but, unfortunately the abuse of power by the police can also lead to framing an innocent person by extracting a confession by force.

 

Thus, along with giving power an authority should be authorized to check the same and prevent its misuse.

 

With respect to Section 25; in my estimation, it violates the principle on which it itself is based. It contradicts its own self by though not admitting confessions made to the police and but later on admitting statements which just fall short of it.

 

Practically analyzing, the section states that statements before the police that show one s guilt are admissible and those that expressly state it are not.

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