JUDICIAL CONFESSION AND ITS RELEVANCY

Introduction

The principle of confession is one of the vital elements in law and only applicable in the criminal cases, and not in civil cases. The provision regarding confession finds its presence in various acts like the Indian Evidence Act, 1872 (hereinafter IEA), CrPC, 1973, NDPS, etc. In legal phraseology, confession means acceptance of guilt by the accused. The substantive provision regarding confession has been laid down in IEA, but the Act doesn’t define the term “confession”, it only successfully differentiates between the two-term confession and admission. Confession has first been used in section 24, and subsequently in s.24-30. While the sections relevant for the admission are given between 17-31 of the Act. Hence, it follows that all admissions aren’t a confession, but all confessions are admission. 
Sir James Stephens in his “Digest of the law of Evidence” has defined confession. He says that confession is a type of admission which is made by an accused, indicating that he has committed that particular crime[1]. Confession is a sort of statement which is made by an accused in a criminal case where the accused either admits the offence or substantially all the facts which constitute the offence. But, this definition is not that simple and has been scrutinize in many of the judgements and even by various thinkers and jurists. As per Wigmore, a confession is an admittance by the person charged with the crime of the veracity of guilty fact[2]. 
 
The concept of confession will be more lucid by the following illustrations. Suppose A is facing a charge of murder under section 302 for the murder of B. Firstly, A tells that he has caused the murder of B by knife blows on his chest. This statement is a confession as it clear and unambiguous. Secondly, A and B both were taking bath in the river. B got in a Feud with A, and B started abusing A continuously despite being the request of A. A out of anger, pushed B down the river towards deep water, and as a result of that he died due to drowning.
This statement by A is a confession, as he by his statement is admitting all the facts which constitute the offence. Any statement which falls begin behind the admittance of guilt, or facts which constitute the offence, then it will be deemed to be confession. Thirdly, A, B and C were bathing in a river. C started fighting with B. A requested them not to fight with each other. C out of anger pushed B down the river, as a result, he drowned and B died. Here, the statement given by A would not amount the confession as he himself is not the accused in the concerned case. But, the court can draw an inference that C has drowned B. A here is neither admitting his own guilt, and neither admitting such facts which constitute an offence .
Notwithstanding, his statement can be used by the court to draw an inference regarding B’s death by C. Confession can be divided into two based on the fact that to whom it is made, i.e., judicial and extra-judicial. Judicial confessions are those which are made before a Magistrate, or in court during legal proceedings, like as mentioned in the s.164 of CrPC. On the other hand, all those confessions which are neither made to Magistrate nor during court proceedings are extra-judicial confessions. Apart from these two categories, a third one is also used sometimes, which is retracted confession. 
Judicial confession by the accused is mainly dealt with in the section 164 of the CrPC. This particular section authorizes a Metropolitan/Judicial Magistrate to record any confession/statement made during the course of an investigation before the initiation of trial irrespective of the fact that such Magistrate has jurisdiction or not. Any confession recorded u/s. 164 after the investigation stage and commencement of trial is not admissible[3]. However, a confession can be recorded during the trial proceeding but S. 164 doesn’t concern itself to these type of confession[4]. The statement given by the concerned person can be confession, or partly confessional and partly exculpatory[5]. Difference between the confession and statement is evident from the sub-section (4) and (5) of s.164, which implies the different procedure for recording by the Magistrate. Any confession under the section 164 doesn’t violate the article 21 of the Constitution. 
Section 164 is employed when during the course of investigation an accused wishing to make any statement is brought before a Magistrate, in order that any confession made by him is by free will and according to the procedure enlisted in the code. This is done because any confession made to the police is entirely barred under section 25 of IEA. These provisions find its presence in the criminal law owing to the status of police in society, and because of their unreliability, as they often use third-degree method for making confession out of accused. Their reputation in society is tarnished, and hence they aren’t entrusted with the act of recording confession[6]. The presence of Magistrate acts like a safeguard, but many times this blanket ban on police recording a statement results in loss of vital information. Only information under section 154 is considered as relevant because it is without any police confluence. Section 164 should be read with the s. 24, 25, 26, 29 of IEA, and it results in some basic proposition flow out of these like confession can’t be made before police, it must be made in the presence of Magistrate. 
 

Judicial Confession

These are the confessions which are made by the accused in which he admits his crime before a Magistrate, or in front of the court. So, under judicial confession, only two circumstances are given, i.e., either it has to be in the presence of Magistrate, or it should be in court. There is a fundamental difference between these two types of confession. In the earlier type of confession, it is done during the stage of an investigation. This investigation process is before the investigation officers have submitted challan under the s. 173 CrPC. While in the later method, it is done after the submission of challan under section 173 CrPC, i.e., during the stage of a trial. 
 
If during the stage of an investigation, the accused expresses his desire to make a Confession about his involvement in crime, then the police should transfer him to the Magistrate as early as possible. This is done because police are not authorized to record any kind of confession made by the accused, and is barred by section 25, 26 of IEA. Accused is then appeared before Magistrate and the procedure mentioned in section 164 CrPC is carried on, which is discussed in the next section. If the accused declines to confess after the reconsideration period, then Magistrate has to record his statement, and also reasons for his non-confession. Again, if the accused confesses about his guilt, then also the Magistrate has to record the confession in written format, and the recorded statement is then sealed under the envelope. This is then attached with the case file, and one copy of this sealed envelope has then to be provided to the investigation officer. Judicial confession is usually regarded as conclusive proof regarding the guilt of accused, as it is considered a safe piece of evidence. 
Section 463 of CrPC lays down the provision regarding the situation where if there is non-adherence to the provisions of s. 164. It says that if after the recording of a confession by a Magistrate, or in a Court of law, it comes to knowledge of court that some of the requirements of section 164 have not been complied with while recording the confession, then it can be admitted if such non-adherence hasn’t injured the accused in his defence. So, in a way,it is a section which lays down the provision that cures the otherwise inadmissible confession. There are two views emerging out of this section. The first one is that there is a Complete requirement of strict adherence to the provisions mentioned in section 164 in order to make any confession admissible, and by the help of s. 463 only defects of form can be cured and not defects of substance. The other view being that the oral evidence of Magistrate u. /s. 463 cures all type of irregularities. 
 

Procedure Of Recording Confession

Recording of confession is a very crucial act, and the Magistrate has to make sure that the procedural requirements mentioned under section 164 are entirely fulfilled[7]. The requirements of this section have been from time to time formulated in many decisions of the Supreme Court and High Court. 
Firstly, the accused should be informed that he is presented before a Magistrate independent from the police, and should be given surety regarding the fact that he should be absolved from any fear, inducement, pressure, threat, etc. The accused then must be cautioned that he is not compelled by law to confess, or make any statement in spite of the fact that he has told anything to the police. He must also be warned that if he is going to make any statement then it will be used against him at trial. All possible effort must be made to remove any extraneous influence including that of police.
 
Secondly, the Magistrate before starting to record the confession immediately, he should in its place give proper adequate time period to the accused in order to collect the memory of his and reflect it. If he is not given time before recording the confession and is straightway asked to confess after coming from the police custody, then he might be in a panic state and his statement will not be by free will. And, hence it is necessary on the part of Magistrate to clearly inform the accused that he will not be sent back to Police Custody, but to Judicial custody, Once he gives a statement. Also, before recording the statement it the accused should be sent to judicial custody in order to get sufficient time to get relaxed and recall his memory.
Thirdly, if any police person is present in the vicinity of the accused such that he is having influence over the accused, then Magistrate should order that such police officer should be moved out in order to create a conducive environment for the accused. This is done to remove any fear, suspicion, or any sort of influence over the accused by the police officer. 
Fourthly, the foundation of any confession is voluntariness. Hence, it is required on the part of Magistrate that before recording confession, he should determine by questioning the accused that whether the statement made by the accused is voluntary or not, or is there some false or influential narrative, which is inducing him to say so. There can’t be set pattern of question which is to be asked by the Magistrate, but it varies with the circumstances of each case. The job of Magistrate is not finished by just asking from the accused that whether the statement made by the accused is voluntary or not, but added to this he has to infer it from the statement made by the accused, the voluntariness of the statement made by the accused. Multiple questions can be asked from the Magistrate till the time he is satisfied that he actually is stating it voluntarily. Questions can vary, like Why such confession is made by the accused? When the accused realised that he needs to confess and whether he told anybody before coming to the Magistrate? Magistrate also should analyse the period of police custody which the accused has undergone, and the treatment which was faired on him, as these inquires decide the level of voluntariness.
If Magistrate at any point of time, have slightest of doubt regarding the veracity of confession then he can stop recording the statement. Fifthly, the confession must usually be recorded in an open court, except for the situation where there are some peculiar reasons for recording the statement in any other place, like Magistrate’s office. When the confession is recorded by later means, then the apt reason should also be recorded for not recording it in open court. Sixthly, the certificate mentioned in the sub-section (4) is very significant. Only after hearing the accused, posing certain questions in that regard, and assessing the situations can the Magistrate is in a situation to attach the certificate of voluntary nature of confession. 
In Dagdu vs. St. of Maharashtra[8], it was held that the failure to adhere to section 164 (2) doesn’t render the confession itself inadmissible, but strict compliance to these provisions present a very strong case that the confession was voluntary. Also, before the accused has confessed, any form of administering oath to him would be illegal and will have no evidentiary value[9]. 
 

Consequence Of Judicial Confessions

If an accused confess something judicially, then it is considered as very sound evidence, and the confession can in many cases be the solitary basis for the accused conviction. However, the Court before accepting his confession should carefully inspect the existing circumstances and should act only after court is assured of the voluntariness and veracity of such confession[10]. A confession is said to be a voluntary one when it results from the penitence, & is unprompted, unstructured, out of regret, repentance. Accused is prompted to confess usually by his inner conscience, and want to clean all the acts which he has done previously. Added to this, the accused who undertakes confession does it with knowledge of the consequences of his act. 
Already acquaintance with the nature and kind of his actions and consequences attached to it of voluntary confession, the question here arises that whether the accused would have been advantaged by the fact that before recording confession, he was being told that he has a right to consult and to be presented by a lawyer of his choice. Any advocate chose of his own choice, or provided by the state might have assisted the accused in the case, and also would have asked him not to confess. The legal practitioner might also have explained to him the alternative way, and the consequences of his act, but could do nothing more[11].
In another manner, the lawyer can’t preclude him from confessing his guilt, if the accused was resolute enough of admitting his guilt by an upsurge of his conscience. But, the general principle of law is that the accused should before giving an account of his confession be informed about his right that he has a right to consult a lawyer of his choice. This principle has rightly been upheld in the leading case of Nandini Satpathy vs. P. L. Dani[12].
In Madi Ganga v. St. of Orissa[13], it was held that where the Magistrate has duly followed the provisions of s. 164 CrPC and have recorded the confession of the person accused after putting questions to him, in order to check the voluntariness of a confession, then it is admissible evidence. Once the Magistrate has given the certificate under 164 (4) showing the voluntary nature of confession, then it is no longer a requirement that Magistrate has to appear in court and further be examined in order to assure the reliability of such confession. Accused can be convicted solely based on the confessional statement if the general trend of his confession is substantiated by other evidence. In context to the judicial confession, it has held in many decisions that the appropriately attested confession of an accused before a Magistrate is enough for his conviction even in absence of any corroborative evidence, and irrespective of subsequent dissent by the Sessions Court[14]. 
 

Retracted Confession

This is another type of confession. It is a statement made by the accused before a Magistrate during the stage of an investigation, i.e., before the trial commences in which he admits his inclusion in the crime. But, subsequently, when he is put on trial in the court of law, he renounces whatever he has said earlier. The confession that he has made before the trial started in the presence of Magistrate has retracted confession. In simple words, the statement made by the accused in the trial is denied by him while facing trial. 
Retracted confession nowadays has become a commonplace, as these are often secured involuntary. In every second case, the plea of involuntariness is raised, and the earlier confession is retracted. The prime cause for this is that the confession here does not result of guilt, remorse and repentance, rather it is the result of inducement, threat, promise, or torture, or any other involuntary event, like third-degree torture by the police. If a confession has been given by the accused under any of such influence, then it is the right of the accused to retract at a later stage[15]. This retraction of confession is directly connected to the fundamental right enjoyed by the accused under Article 20(3) of Constitution of India 1950.
This particular provision guarantees the accused that he can’t be a witness against himself, i.e., self-incrimination. So, this means that no one can be forced to make any statement which has the tendency to incriminate himself. As reiterated earlier, to check whether a statement is relevant or not, the first thing which needs to be assessed is the voluntariness of the statement[16]. In a system which is against the accused at every point, this is the most important right available to him. There is always a threat that an accused might incriminate himself, so the law is very particular in this regard in the sense that any confession even if true if involuntary then can’t be relied upon during trial. This freedom to retract from the earlier confession is available to accused at every stage and is considered very important, as it checks the voluntariness of the confession. In some cases, retraction of the accused has been considered as an extension of civil liberty[17]. 
 

Evidentiary Value Of Retracted Confession

The Indian Evidence Act, 1872 doesn’t differentiate between the confession which has been retracted or the one which hasn’t been retracted by the accused. They both are similarly admissible, and the difference only lies in the influence they have on the case. The retracted confession will have less influence on the case and will need further scrutiny by the court. The confession by the accused always need to be particular and specific, and in clear terms. The same rule applies to retracted confession also and it also needs to be lucent, and need not be imaginary without any reason specified. Just retracting the earlier confession is not sufficient by the accused, and he needs to satisfy the court that his retraction is in absence of an afterthought, and not merely for prolonging the case length. The relevancy of such statement varies on a case to case basis, and it depends on the situations in which it was given.
As most of the cases are shrouded in the fog of uncertainty, as a result of which there is no clarity. So, the court in the retracted confession case usually looks for corroborative evidence for the simple reason that it can’t solely acquit or convict the accused on the basis of retracted confession. Thus, the court as a step of caution and forethought generally looks for some corroboration. This corroboration need not be elaborate in the manner that each and every step of confession needs to be backed by some evidence. It would be adequate if the statement in a general sense is corroborated with some evidence so that it veracity can’t be questioned at some later stage[18]. Supreme Court in the case of Pyare Lal Bhargava v. St. of Rajasthan[19] has held that it is generally unsafe to convict the accused solely on the basis of retracted confession even if it is true; for conviction, there is a requirement of some corroborative evidence. 
Bharat v. St. of UP[20] was a landmark case on this topic. In this case, it was stated that the reasons for making the confession need to be assessed as against the reasons for retraction. Both the reasons must be weighed against each other, and the court should calculate the voluntariness of the statement. If it seems to the court that the earlier statement was retracted after some advice or afterthought, then the court will not consider such retraction. The court shouldn’t hastily act on the retracted confession without finding any other reliable source, and therefore the need for some corroboration. 
In-State of T.N. v. Kutty[21], the retracted confession was discussed at length. It was held by SC that it is nowhere written in any code that once a confession is retracted by the Court, there will be a presumption of its falseness. The right to retract from a confession is right of the party, and the accused can detract from its prior statement at any stage of a trial. It would not be correct view to discard any judicial confession just because of the fact that the confessor has later retracted from it. The court is under obligation to look at every aspect of confession. In the background of this scrutiny by the court, it has always to be remembered the two-prong test of confession in order to be admissible, i.e., voluntary and true. Once these two grounds are proved in the court of law, then the next step is to see whether there is any other reason which needs to be taken into account before relying on such judicial confession. Merely a retraction would not be a ground for non-adherence to the prior confession.
 

Conclusion And Suggestions

The principle of confession is considered as very vital to criminal law. It helps the court to conclusively decide the case if the accused out of remorse, guilt, and voluntarily confesses his guilt. But, there are problems associated with it. In India, it is ruled that first confession is made, but only subject to retraction later in the stage of the trial. This happens because the confession is made out of fear, inducement, threat, and not by inner conscience.
To safeguard this, there should be proper adherence to the provisions mentioned in the s. 164 CrPC. The root cause of all these problems is that Magistrate fails to appreciate the free will of the accused while recording the confession. In most of these cases, the requirements are fulfilled just to complete formality and are not done on merits. To prevent this, there has to be check and balance on these Magisterial powers by the courts. In order to make this process swifter, the researcher is of view that a checklist to be provided to every Magistrate which he has used while recording the confession. This checklist will have checkboxes in front of every procedure, and the Magistrate after fulfilment of every procedure should be required to tick the boxes. In this manner, the court will have easy access to the process which Magistrate has followed, by just looking at the checklist.
 
This will enhance the compliance of this section. Also, if any Magistrate is found to be committing blatant disregard of these procedures, then he would be required by the court to explain the reasons for the same. This process shouldn’t be mechanistic in nature, and ought to be properly followed. During the trial, when his confessional statement is to be proved, the Magistrate should be duty-bound to submit that checklist which he has made during the recording of confession in court. Court then should assess such checklist on merits. 
It should be made mandatory to consult a lawyer before the accused is giving his confessional statement to the Magistrate. This will have an effect of preventing the accused from confessing in the absence of knowing the provisions. There should also be made provision that the person desiring to confess shouldn’t directly come from the police custody, rather it should be made mandatory that he is in judicial custody for some days prior of giving his confessional statement. This will remove further any police influence on the accused. 
 

References

  1.  A.K. Dutta v. State of W.B. (2007) 12 SCC 230
  2.  Kageswhar Khatua v. State 1993 CrLJ 2347 (Ori)
  3.  State vs. R.A. Chaudhary (AIR 1955 All 139)
  4. Hemraj vs. St. of Bihar (AIR 1954 SC 462)
  5. Shiv Singh vs. St. of V.P. (AIR 1954 SC 322)
  6. Balwant Singh vs. State (AIR 1965 Pun 291)
  7. Sarwan Singh v. St. of Punjab (AIR 1957 SC 647)
  8. AIR 1977 SC 1579
  9. B. U. Parmar vs. St of Gujarat (AIR 2007 SC 420)
  10. Ramesh Desmukh vs. St. of Maharshtra (1978) 2 SCC 424
  11. St. of Punjab vs. Harjagdev Singh (AIR 2009 SC 264)
  12. AIR 1978 SC 1025
  13. (1981) 2 SCC 224
  14. Queen Empress vs. Bhatan Rajwan WR Cr. 49
  15. State of T.N. v. Kutty (AIR 2001 SC 2778)
  16. Kalwanti v. St. of HP (AIR 1953 SC 113)
  17. Alok Dutta v. St. of WB (2007) 12 SCC 203
  18. St. of UP v. Boota Singh (AIR 1978 SC 1077)
  19. AIR 1963 SC 1094
  20. (1971) 3 SCC 950
  21.  (AIR 2001 SC 2778)
BY- Abhishek Kumar
National Law University, Delhi

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