“EXTRA JUDICIAL CONFESSION NOT REFERRED DURING N

INVESTIGATION AMOUNTS TO CONFESSION”

Submitted to,
Dr. Parvesh Kumar Rajput
Faculty, Criminal Procedure Law

Submitted by,
Taruna Shandilya
Semester VII
Section ‘B’
Roll no. 180

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.
 ACKNOWLEDGEMENT

I feel highly elated to work on the topic “EXTRA JUDICIAL CONFESSION NOT REFERRED
DURING N INVESTIGATION AMOUNTS TO CONFESSION” because of its relevance in the
understanding reservation jurisprudence and its functioning.

I express my deepest regard and gratitude for our faculty of Criminal procedure Code, Dr. Parvesh
Kumar Rajput for his consistent supervision, constant inspiration and invaluable guidance, which
have been of immense help in understanding and carrying out the importance of the project report.

Taruna Shandilya
Roll No. 180

2|Page
 DECLARATION

I, hereby declare that the project work entitled “EXTRA JUDICIAL CONFESSION NOT
REFERRED DURING N INVESTIGATION AMOUNTS TO CONFESSION” submitted to
HNLU, Raipur is a record of original work done by me under the able guidance of Dr. Parvesh
Kumar Rajput (faculty member) of HNLU.

Taruna Shandilya
Roll No. - 180

3|Page
 CONTENTS

1. ACKNOWLEDGEMENT.................................................................................................2

2. DECLARATION................................................................................................................3

3. INTRODUCTION..............................................................................................................5

4. OBJECTIVE......................................................................................................................6

5. RESEARCH METHODOLOGY.....................................................................................6

6. CHAPTER II......................................................................................................................7

7. CHAPTER III.....................................................................................................................9

8. CHAPTER IV...................................................................................................................11

9. RECENT JUDGEMENTS..............................................................................................14

10. CONCLUSION.................................................................................................................15

11. BIBLIOGRAPHY............................................................................................................16
 CHAPTER I- INTRODUCTION

The law of criminal procedure is intended to provide a mechanism for the enforcement of criminal
law, without proper procedural law, the substantive criminal law which defines offences and
provides punishments for them, would be almost worthless. Because, in the absence of an
enforcement machinery, the threat of punishment heed out of the law breakers by the substantive
criminal law would be a hollow shell of bullet.

The law of criminal procedure also aims at safeguard of people against possible harms and violation
of human rights in its process of shifting criminals from non-criminals. It further attempts to strike a
balance between the need to give discretionary power to the functionaries under the Code to make
the investigative and adjudicatory process strong and effective and the need for controlling the
probable misuse or abuse of these powers.

The word “confession” appears for the first time in Section 24 of the Indian Evidence Act. This
section comes under the heading of Admission so it is clear that the confessions are merely one
species of admission. Confession is not defined in the Act. Mr. Justice Stephen in his Digest of the
law of Evidence defines confession as “confession is an admission made at any time by a person
charged with a crime stating or suggesting the inference that he committed that crime.”

The custody of a police officer provides easy opportunity of coercion for extorting confession
obtained from accused persons through any undue influence being received in evidence against them.
The principle or reason behind section 26 is that an accused might confess to any person under the
fear of police torture. Confession must be an unreserved and total admission of the accused person of
his guilt and such a statement must be free from influence either in the nature of threats or
inducement and in order to prevent the coercion and other kinds of threat, a confession made by an
accused in the custody of police is inadmissible and cannot be proved against him.

1
Iqbal Ismail Sodawala v. State of Maharashtra, (1975) 3 SCC 140.
 OBJECTIVE

1. The researcher tends to analyse the term “Extra- Judicial Confessions” in context of Indian Laws.

2. The researcher tends to analyse the merits and demerits of such confessions.

3. The researcher tends to establish the difference between Judicial Confessions and Extra- Judicial
Confessions.

RESEARCH METHODOLOGY

The researcher would like to follow doctrinal method for this research. The researcher will gather
data from both primary and secondary sources. The researcher has also read various e-articles talking
about extra judicial confessions.

The method of writing used in this project is primarily analytical.

Primary source: Bare Act of Indian Evidence Act, 1872 and Criminal procedure Code, 1973.
Secondary Sources: Books, Articles etc.
 CHAPTER II-CONFESSIONS

The term confession is not defined anywhere in the Evidence Act. Stephen in his digest of "law of
evidence " defines Confession as an admission made at any time by person charged with a crime
stating or suggesting the inference that he committed a crime.2

This the confession is a statement made by person charged with a crime suggesting an inference as to
any fact in issue or as to relevant fact. The inference that the statement should suggest that he is
guilty of a crime. Confession in short, is an admission by the accused charged with the offence in
criminal proceeding. A confession is an admission made at any time by person charged with a crime
stating or suggesting the inference that he has committed the crime.

There are 2 kind of confession are as follows:

1) Judicial Confession

2) Extra Judicial Confession

The substantive law of confession is contained in S.24 to 30 of the Indian Evidence Act and adjective
law of confession is contained in S.164, S.364 of Cr.P.C.3

The confession may be divided into following two main classes.

1) Judicial Confession - Judicial confessions are those confessions which are made before a
Magistrate or in Court in the due course of legal proceedings. Judicial confession has been defined to
mean “plea of guilty on arrangement (before a tribunal) if made freely by a person in a fit state of
mind.”

Judicial confessions as u/s 164 of Cr.P.C should be distinguished from extrajudicial confessions. A
confessional statement made by the accused before a Magistrate or a Court is a good piece of evidence
and the accused can be convicted or punished on the basis of this judicial confession. Now the settled
law is that a conviction can be based on confession only if it is proved to be voluntary and true.

2
Extra Judicial confession, SRD LAW NOTES, (Feb. 22, 10:56 PM) https://www.srdlawnotes.com/2016/04/extra-judicial-
confession.html
3 BATUK LAL, THE LAW OF EVIDENCE (2018 ed, Central Law Agency (CLA)(2018
2) Extra-judicial Confession

The term confession is nowhere defined in the Indian Evidence Act. every confession is admission
but every admission is not confession. if statement is made by a party is civil proceeding it will be
called an admission, while it is made by a party charged with crime in criminal proceeding it is
called a confession.

Extra-judicial confessions are those confessions which are made by the accused anywhere else than
before a Magistrate or in Court and extra-judicial confession can be made to any particular person or
to a group of persons. It is not necessary that the statements should have been addressed to any
definite individual. It may have taken place in the form of a prayer. A confession to a private person
is extra- judicial. For extra-judicial confession communication to another is not an essential
component to constitute ‘statement’.

The evidence of extra-judicial confession is a weak piece of evidence and so it should be taken with
great care and caution. In State of Punjab v. Bhagwan Singh4, it was held by Supreme Court that
extra- judicial confession can be relied on only when it is clear consistent and convincing. In
Balwinder Singh
v. State5, the Supreme Court held that in case of extra-judicial confession, the credibility of the
person before whom the confession is made, shall be tested and the court has to see whether the
person is trustworthy or not.

4
1975 Cr LJ 282: AIR 1975 SC 258
5
AIR 1996 SC 607
6
AIR 1939 P.C. 47
 CHAPTER III-CONFESSION UNDER CRIMINAL PROCEDURE CODE
WITH REFERENCE TO EXTRA-JUDICIAL CONFESSION

In order to facilitate the conviction of evidence, the investigating officer has been given power to
examine orally any person supposed to be acquainted with the facts and circumstances of the case, as
per Section 161(1) of Cr.P.C.

The statement made to the police are of 3 categories:

1) A statement which has been recorded as an FIR.

2) Statement recorded by police in course of investigation.

3) Statement recorded by police not falling under (1) and (2).

None of the above statements can be considered as substantive evidence, that is to say, as evidence of
facts stated therein. Because it is not made during trial, it is not given on oath nor is it tested by cross
examination. If person making any such statement to police subsequently appears and gives evidence
in court at the time of trial, his former statement can be used pursuant to Section 145 and 157 of the
Indian Evidence Act. As regards the statements recorded by police during the course of investigation,
the purpose of Section 162 of Cr.P.C. is to protect the accused both against overzealous police officer
and untruth witness.7 Analysis of the provision brings out:

a) Any statement made by any person to a police officer in the course of the investigation can be
used only for the purpose as hereinafter provided and for no other purpose at any inquiry or
trial.
b) Such a statement can be used in a trial as hereinafter provided if the person making the
statement is examined as prosecution witness.
c) The statement can be used for the purpose of contradicting witnesses, as per Section 145 of
Evidence Act. The statement is not to be used for the purpose of cross-examination.
d) The statement can be used for the above contradictory purpose to refute prosecution witness
by defence or with permission of court by prosecution.8
e) If any part of the previous statement is used for contradiction, any part of the statement can be
used in re-examination of witness for the only purpose of explaining any matter referred to in

his cross-examination.

7
Khatri v. State of Bihar (1981) 2 SCC 493.
8
Roli Nana Bhana v. State of Gujarat (1986) CriLJ 571.
 f) The provision implicitly prohibits the use of the statements made to the police during the
course of the investigation for the purpose of corroboration. That is based on the assumption
that the police cannot be relied on by the prosecution for the corroboration of their witnesses
as the statement recorded might be a self-serving nature.
The provision only places bar on use of statement made during the course of investigation, made to an
investigation officer. The section does not say that every statement made during the investigation
comes within the ambit of prohibition.

Thereby, every statement made to a person assisting police in investigation cannot be treated as
statement to the police.10The restriction imposed by Section 162 of the Code on the use of statements
as are “made to the police during the course of investigation”. Any other statement though made
during the time of investigation, is not hit by the prohibition of Section 162.

Section 163 of the Criminal Procedure Code

The provision further prohibits a police officer or person in authority for offering or making any
inducement, threat or promise as is mentioned in Section 24 of Evidence Act.

Section 164 of the Criminal Procedure Code- Difference between judicial and extra-judicial

Judicial confession Extra-judicial confession

1. Extra-judicial confession are those which are
1. Judicial confessions are those which are made
made to any person other than those authorized
to a judicial magistrate under section 164 of
by law to take confession. It may be made to
Cr.P.C. or before the court during committal
any person or to police during investigation of
proceeding or during trial.
an offence.
2. To prove judicial confession the person to 2. Extra-judicial confession are proved by
whom judicial confession is made need not be calling the person as witness before whom the
called as witness. extra-judicial confession is made.

3. Judicial confession can be relied as proof of 3. Extra-judicial confession alone cannot be

guilt against the accused person if it appears to the relied it needs support of other supporting
court to be voluntary and true. evidence.
4. A conviction may be based on judicial 4. It is unsafe to base conviction on extra-
confession. judicial confession.

CHAPYER IV- EXTRA-JUDICIAL CONFESSION UNDER INDIAN

EVIDENCE ACT

Section 24, Indian Evidence Act:

It classifies confessions made/caused by inducements, threats or promises, when irrelevant in a
criminal procedure. It bestows that if it appears to the court that the confession has been made by nay
person accused of any offence, caused by any inducement, threat or promise, then such will be
inadmissible. For the purpose of this provision, the confession should be inculpatory and the
deploring factors should appear to the court as the cause of such statement, not the free will.

Section 25, Indian Evidence Act:

The provision makes confessional statement of accused before police officers inadmissible in evidence
which cannot be brought on record by prosecution to obtain conviction.

Even if the FIR is given to the police by the accused and amounts to a confessional statement, it is
prohibited by Section 25.15

Section 26, Indian Evidence Act:

Confession made while in police custody is not to be proved against the accused as the provisions of
Section 25 and 26 do not permit it. Unless such a confession is made before a Magistrate.16

Further, the statements made in police custody are considered unreliable unless they have been
subjected to cross-examination or judicial scrutiny.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was made to
Pradhan who was accompanied by Police (enquiry) Officer. The only interference which could be
drawn from the circumstance of the case, is that the confession was made at the time when the
accused was in the custody of police and it could not be proved against the accused. It could not be
believed that, when a police officer has seen the accused with deceased at last occasion, he will not
take the accused in the custody. Under section 26, no confession made by an accused to any person
while in custody of a police officer shall be proved against him.

Section 27, Indian Evidence Act:

The provision permits the derivative use of the custodial statement in the ordinary course of events.
In Indian law, there is no automatic presumption that the custodial statements have been extracted
through compulsion.18

15
Aghnu Nagesia v. State of Bihar AIR 1966 SC 119.
 EVIDENTIARY VALUE OF EXTRA JUDICIAL CONFESSION

Extra-judicial confessions are not usually considered with favour but that does not mean that such a
confession coming from a person who has no reason to state falsely and to whom it is made in the
circumstances which support his statement should not be believed.

The evidence of extra-judicial confession is a weak piece of evidence. The extra-judicial confession
must be received with great case and caution. It can be relied upon only when it is clear, consistent
and convincing. The court has to decide whether the person before whom the admission is said to
have been made are trustworthy witnesses. The extra-judicial confession is open to the danger of
mistake due to the misapprehension of the witness before whom the confession was made to the
misuse of the words and the failure of the party to express his own meaning. This is also open to
another sort of danger. There being no record and there being no sanction behind it is very easy for
the prosecution to catch hold of any witness who may come and depose that the accused admitted his
guilt in his presence on some particular time. Due to those reasons it is very dangerous for the courts
to base conviction on the sole basis of extra-judicial confession. Usually and as a matter of caution
courts require some material corroboration to an extra-judicial confession statement corroboration
which connects the accused person with the crime in question.

Extra-judicial confessions have to received with great caution and care and when the foundation of
the conviction is the confession alleged to have been made by the accused there are three things
which the prosecution must establish. First, that a confession was made, secondly, that evidence of it
can be given that is to say that it was voluntary and thirdly that it is true. Such a confession must be
proved by an independent or satisfactory evidence.

In State of Karnataka v. A.B.Nag Raj there was allegation that the deceased girl was killed by her
father and step-mother in the National park. The alleged extra-judicial confession was made by
accused during detention in forest office. No mention of said confession in report given to police nor
any witness present there mentioning about the same confession. This extra-judicial confession cannot
be relied on.Before relying on extra-judicial confession, it must be considered whether the confession
was really made. It should also be considered as to why the accused reposed confidence in the
witnesses stating about the confession. It was alleged that the accused made confession to a witness
who was the widow of one of the conspirators and was helping her husband in making spears and
other weapons. It was held that the confession was not reliable.
EXCLUSION OF CONFESSION TO POLICE

Another variety of confessions that are under the evidence act regarded as involuntary are those
made to personnel. Section 25 expressly declares that such confessions shall not be proved.

If confessions to police were allowed to be proved in evidence, the police would torture the accused
and thus force him to confess to a crime which he might not have a committed. A confession so
obtained would naturally be unreliable. It would not would be voluntary. Such a confession will be
irrelevant whatever may be its form, direct, express, implied or inferred from conduct. The reasons
for which this policy was adopted when the act was passed in 1872 are probably still valid.21

Effect Of Police Presence- The mere presence of the policeman should not have this effect. Where
the confession is being given to someone else and the policeman is only casually present and
overhears it that will not destroy the voluntary nature of the confession. But where that person is a
secret agent of the police deputed for the very purpose of receiving a confession, it will suffer from
blemish of being a confession to police. In a rather unusual case, the accused left a letter
recording his confession near the dead body of his victim with the avowed object that it should be
discovered by the police, the supreme court held the confession to be relevant. There was not even
the shadow of a policeman when the letter was being written, and planted.

Exclusion Of Confessional Statements Only

This principle of exclusion applies only to statement which amount to a confession. If a statement
falls short of a confession, that is, it doesn’t admit the guilt in terms or sustainability all the facts
which constitute the offence, it will be admissible even if made to a policeman.

Statements During Investigation And Before Accusation

A confessional statement made by a person to the police even before he is accused of any offence is
equally irrelevant. The section clearly says that such a statement cannot be proved against any person
accused of any offence. This means that even if the accusation is subsequent to the statement, the
statement cannot be proved1.

Confessional FIR
Only that part of a confessional First Information Report is admissible which does not amount to a
confession or which comes under the scope of section 27. The non-confessional part of the FIR can
be used as evidence against the accused as showing his conduct under section 8.

1
IN, (Feb. 23, 2019, 07:12 AM) https://www.livelaw.in/extra-judicial-confession-of-accused-need-not-be-corroborated-in-
 RECENT JUDGEMENTS
Ram Lal vs. State of Himachal Pradesh23.
‘Rule of Prudence does not require that each and every circumstance mentioned in the confession
with regard to the participation of the accused must be separately and independently corroborated.’
The Supreme Court, while affirming the conviction of a bank’s peon accused of corruption, has
observed that extra-judicial confession of accused need not in all cases be corroborated and there is
no requirement that each and every circumstance mentioned in the confession must be separately and
independently corroborated.24If the court is satisfied that if the confession is voluntary, the conviction
can be based upon the same.

The ‘confession’, in this case, was made to two senior officers who conducted the inquiry. In the
confession, the peon admitted that he did not account for the money, but misappropriated the same
and that when the account holder visited the bank for the withdrawal of the money; he used to make
fake credit entries in the ledger folio of their accounts and on the basis of those fake entries,
withdrawals used to be made. The main contention of the counsel for the accused was that the
confession statement

was not voluntary and the officers were persons in authority who pressurized him to make the
confession. Rejecting the argument that the ‘confession’ must have been under the inducement or
under false promise of favor since it was made to ‘higher officials’, the bench said: “Mere allegation
of threat or inducement is not enough; in the court’s opinion, such inducement must be sufficient to
cause a reasonable belief in the mind of the accused that by so confessing, he would get an
advantage.” The bench, in this regard, said: “Extra-judicial confession of accused need not in all
cases be corroborated2.

Proof of extra-judicial confession- It may be in writing or oral. In the case of a written confession the
writing itself will be the best evidence but if it is not available or is lost the person before whom the
confession was made be produced to depose that the accused made the statement before him. When the
confession has not been recorded, person or persons before whom the accused made the statement
should be produced before the court and they should prove the statement made by the accused.

2 23
CRIMINAL APPEAL NO.576 OF 2010
 CONCLUSION

An extra-judicial confession has been defined to mean “a free and voluntary confession of guilt by a
person accused of a crime in the course of conversation with persons other than judge or magistrate
seized of the charge against himself. A man after the commission of a crime may write a letter to his
relation or friend expressing his sorrow over the matter. This may amount to confession. Extra-
judicial confession can be accepted and can be the basis of a conviction if it passes the test of
credibility. Extra- judicial confession is generally made before private person which includes even
judicial officer in his private capacity. It also includes a magistrate not empowered to record
confessions under section 164 of the Cr.P.C. or a magistrate so empowered but receiving the
confession at a stage when section 164 does not apply.

It is really very strange for an accused to confess before the investigation authority that he has
committed the murder. That statement if made without any pressure, fear or hope must be either due
to the remorse or godly fear or it is so because the accused is as truthful as Harish Chandra and
Yudhisthir. If this is so and if the statement was made because the winess was remorseful or because
he made the confession due to fear of god or because he was truthful there is no reason as to why he
resiles from that statement when he is put to trial. Due to this suspicion a retracted confession can
always be suspected to have been extracted by pressure, undue influence, inducement or threat by
some person in authority.32
 BIBLIOGRAPHY

 Asamanya Roy, Extra-Judicial Confessions – Indian Evidence Act, 1872, SHARE YOUR
ESSAYS http://www.shareyouressays.com/knowledge/extra-judicial- confessions-indian-
evidence-act-1872/119199
 Extra Judicial confession, SRD LAW NOTES, https://www.srdlawnotes.com/2016/04/extra-
judicial-confession.html
 Ashok Kini, Extra-judicial Confession Of Accused Need Not Be Corroborated In All Cases:
SC Reiterates, LIVE LAW. IN, https://www.livelaw.in/extra-judicial- confession-of-
accused-need-not-be-corroborated-in-all-cases-sc-reiterates-read-judgment/
 Supreme Court sets guidelines for extra-judicial confessions, REDIFF. COM.
https://www.rediff.com/news/report/supreme-court-sets-guidelines-for-extra- judicial-
confessions/20120614.htm
 Saba, Extra-judicial confession is admissible if it inspires confidence and is made voluntarily,
SCC ONLINE, https://www.scconline.com/blog/post/2018/04/12/extra-judicial-confession-
is-admissible-if- it-inspires-confidence-and-is-made-voluntarily/