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SUMMARY OF TOPIC – B
ADMISSION AND CONFESSIONS, STATEMENTS RECORDED BY
POLICE AND OTHER AUTHORITIES.

Admission and Confession are two very important words

in the legal context. Both words refer to the acknowledgment of the
truth of something. The word ‘admission’ is a generic term and the
word ‘confession’ is one of the species of it. The subject of
admissions and confessions is dealt with by the provision of sections
17 to 31 of Indian Evidence Act,1872.

2. An “Admission” is a statement of fact which waives or

dispenses with the production of evidence by conceding that the fact
asserted by the opponent is true. The definition of term “admission”
as used in the Indian Evidence Act will be clear by reading four
sections viz sections 17 to 20 together. If all these sections were to
be written in one sentence, they would read as follows:-

3. An admission is a statement, oral or documentary, which

suggests any inference as to any fact in issue or relevant fact and
which is made by :-
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(1) A Party to the proceeding.

(2) An agent to any party whom the court regards under the
circumstances of the case, as expressly or impliedly authorized by
him(the party) to make them;

(3) Parties to suits, suing or being sued in representative capacity if

the party making the statement held that representative capacity
while making the statement;

(4) Persons who have proprietary or pecuniary interest in the

subject matter of proceeding, and who make the statement in their
character of persons so interested and also if the statement are made
during the continuance of the interest of the person making the
statements;

(5) Persons from whom the parties to the suit have derived their
interest in the subject-matter of the suit, if the statements are made
during the continuance of the interest of the persons making the
statement (Section 18);

(6) Persons whose position or liability it is necessary to prove as

against any part to the suit, if such statements would be relevant as
against such persons (making the statement) in relation to such
position or liability in a suit brought by or against them and if such
statements are made which the person making them occupies such
position or is subject to such liability(Section 19).
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(7) Persons to whom a part to the suit has expressly referred for
information in reference to a matter in dispute (Section 20).

4. According to the definition given above, the statement of

parties to the suits or proceedings and also of persons who are not
parties to such suits or proceedings, i.e., by strangers are admissions
if they are made under the circumstances mentioned above and
suggest any inference as to any fact in issue or relevant fact.

5. Admissions are admitted because the conduct of a party

to a proceeding, in respect of the matter in dispute, whether by acts,
speech or writing, which is clearly inconsistent with the truth of his
contention, or a fact relevant to the issue. However the Hon'ble Apex
Court in the case of Thiru John -vs- Returning Officer AIR 1977 SC
1724 held that,

“It is well settled that, a party's admission as defined in

Sections 17 to 20 fulfilling the requirements of Section
21 of Evidence Act, is substantive evidence proprio
vigore. An admission, if clearly and unequivocally made,
is the best evidence against the party making it and
though not conclusive, shifts the onus on to the maker on
the principle that "what a party himself admits to be true
may reasonably be presumed to be so and until the
presumption was rebutted the fact admitted must be
taken to be established”.
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6. There is this observation in PHIPSON ON EVIDENCE (9th

Edn., 1952) “Subject to certain exceptions, the general rule, then
both in civil and criminal cases, is that any relevant statement made
by a party is evidence against himself.

WHEN ORAL ADMISSIONS AS TO CONTENTS OF DOCUMENTS

ARE RELEVANT.

7. Section 22 of Evidence Act deals with a provision as to

when oral admissions as to contents of document are relevant. It
provides that, “oral admissions as to the contents of a document are
not relevant, unless and until the party proposing to prove them
shows that he is entitled to give secondary evidence of the contents
of such document under the rules hereinafter contained, or unless
the genuineness of a document produced is in question”.

8. The contents of a document which is capable of being

produced must be proved by the instrument itself and not by oral
evidence. Oral admissions as to contents of a document are excluded
under the section. They are however admissible when the party is
entitled to give secondary evidence of the contents of such document
under section 65 and 66 of Evidence Act.
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WHEN ORAL ADMISSIONS AS TO CONTENTS OF ELECTRONIC

RECORD ARE RELEVANT

9. Section 22 A of Evidence Act deals with the subject of

oral admission as to contents of electronic records when relevant. It
provides that “oral admissions as to the contents of electronic records
are not relevant unless the genuineness of the electronic record
produced is in question.

10. The section disallows the evidence of oral admission as to

the contents of electronic records, it then talks of an exceptional
situation which is that when the genuineness of electronic record
produced before the court is itself in question. The section says that
oral admission as to the contents of electronic record may be proved
in evidence when the genuineness of the record has been questioned.

ADMISSION IN CIVIL CASES WHEN RELEVANT

11. Section 23 of Evidence Act deals with the admissions in

civil cases when relevant. It provides that, “in civil cases, no
admission is relevant if it is made either upon an express condition
that evidence of it is not to be given, or under circumstances from
which the court can infer that the parties agreed to whether that
evidence of it should not be given.
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ADMISSION NOT CONCLUSIVE PROOF, BUT MAY ESTOP

12. Section 31 of Evidence Act deals with the effect of

admission given by party in a proceeding. It provides that,
“admissions are not conclusive proof of the matters admitted, but
they may operate as estoppel under the provision hereinafter
contained”.

13. However, a statement to be used as an admission must be

clear, specific and unambiguous and in the own words of the person
making it and has to be proved to be so. It is not an inference drawn
by anybody which should be taken as an admission. An admission to
be worthy of being received in evidence, considered and relied upon,
it should firstly be the clear cut and accurate statement of that very
person in his own words. It has to be proved to be the statement of
the person who make it. It is immaterial to whom the admission is
made. An admission made to a stranger is also relevant.

CONFESSION:-

14. The word 'confession' appears for the first time in Section
24 of the Indian Evidence Act. This section comes under the heading
of 'Admissions' so it is clear that the confessions are merely one
species of admission. Now the question is as to what admissions
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amount to confessions. The word 'confession' has not been defined in

the Act. Mr. Justice Stephen in his Digest of the Law of Evidence
defined 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”. According to this definition a
statement of an accused will amount to a confession if it fulfills any
of the following two conditions:

(i) If he states that he committed the crime he is charged with, or

(ii) if he makes a statement by which he does not clearly admit the

guilt, yet from the statement some inference may be drawn that he
might have committed the crime.

CONFESSION TO BE VOLUNTARY:

15. Where a confession is made by a person before a report

was made to the police and before he was accused of an offence by
others, the confession must be regarded as one made by an accused
within the meaning of this section. A confession, if voluntary and
truthfully made is an “efficacious proof of guilt”. It is an important
piece of evidence and therefore it would be necessary to examine
whether or not the confession made by the appellant was voluntary,
true and trustworthy.
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JUDICIAL AND EXTRA-JUDICIAL CONFESSION:

16. Confessions have been divided by English text-writers

into two classes, namely, judicial and extra-judicial. Judicial
confession are those which are made before a magistrate or in court
in the due course of legal proceeding. A 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”. Extra-judicial
confessions are those which are made by the accused elsewhere than
before a magistrate or in court. An 'extra-judicial confession' can be
made to any person or to a body 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. 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”.

VALUE OF RETRACTED CONFESSION -

17. A retracted confession is a statement made by an accused
person before the trial begins by which he admits to have committed
the offence but which he repudiates at the trial. After the commission
of a serious offence some police officer makes investigation into the
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matter, examines witnesses and the accused. If in his opinion the

accused is proved to have committed the offence, he submits a report
to a magistrate having jurisdiction in the matter. The court takes
evidence and examines the accused. If during the investigation, the
accused on being examined by the police officer is willing to admit
the guilt the police officer sends the accused to some magistrate for
recording his statement. The magistrate after being satisfied that the
accused admits in his statement to have committed the offence this
recorded statement by the magistrate may be proved at the trial.
When the trial begins the accused on being asked as to whether he
committed the crime he may say that he did not commit the crime.
The question may again be put to him as to whether he made
statement before the magistrate during the investigation confessing
the guilt. He may deny to have made the statement at all or he may
say that he made that statement due to undue influence of the police.
In this case the confession made by the accused to the magistrate
before the trial begins is called retracted confession.

18. It is unsafe to base conviction on a retracted confession

unless it is corroborated by trustworthy evidence. There is no definite
law that a retracted confession cannot be the basis of the conviction
but it has been laid down as a rule of practice and prudence not to
rely on retracted confession unless corroborated. Courts have
convicted persons on retracted confession when they have been of
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the opinion that the confession when it was made was voluntary or
consistent and true but the real rule of law about the retracted
confession is “where the retracted confession is the sole evidence it
can be of little value specially when made during the competition for
a pardon which sometimes occurs where a number of persons are
suspected of an offence”.

DIFFERENCE BETWEEN ADMISSION AND CONFESSION :

Confession Admission

1. Confession is a statement 1. Admission usually relates to

made by an accused person civil transaction and comprises all
which is sought to be proved statements amounting to
against him in criminal admission defined under section
proceeding to establish the 17 and made by person mentioned
commission of an offence by under section 18, 19 and 20.
him.
2. Confession if 2. Admissions are not conclusive
deliberately and as to the matters admitted it may
voluntarily made may be operate as an estoppel.
accepted as conclusive of the
matters confessed.
3. Confessions always go 3. Admissions may be used on
against the person making it. behalf of the person making it
under the exception of section 21
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of evidence act.
4.Confessions made by one 4. Admission by one of the several
or two or more accused defendants in suit is no evidence
jointly tried for the same against other defendants.
offence can be taken into
consideration against the co-
accused (section 30).
5. Confession is statement 5. Admission is statement oral or
written or oral which is direct written which gives inference
admission of proceeding. about the liability of person
making admission.

19) The acid test which distinguishes a confession from an

admission is that where conviction can be based on the statement
alone, it is confession and where some supplementary evidence is
needed to authorize a conviction, then it is an admission as stated in
Ram Singh v. State, AIR 1959 All 518. Another test is that if the
prosecution relies on the statement as being true it is confession and
if the statement is relied on because it is false it is an admission. In
criminal cases a statement by accused, not amounting to confession
but giving rise to inference that the accused might have committed
the crime is his admission.

20) No confession made to a police officer shall be proved as

against a person accused of any offence. [Section 25 – Evidence Act]
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REASONS FOR EXCLUSION OF CONFESSION TO POLICE -

21) 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 committed. A confession
so obtained would naturally be unreliable. Such a confession will be
irrelevant whatever may be its form, direct, express, implied or
inferred from conduct. In Dagdu v. State of Maharashtra, AIR 1977
S.C. 1579, the Hon'ble Supreme court has observed that “The
archaic attempt to secure confessions by hook or by crook seems to
be the be-all and end-all of the police investigation. The police
should remember that confession may not always be a short-cut to
solution. Instead of trying to “start” from a confession they should
strive to “arrive” at it. Else, when they are busy on their short-route
to success, good evidence may disappear due to inattention to real
clues. Once a confession is obtained, there is often flagging of zeal
for a full and through investigation with a view to establish the case
de hors the confession, later, being inadmissible for one reason or
other, the case fumbles in the court.

THE DOCTRINE OF CONFIRMATION BY SUBSEQUENT EVENTS.

22) Section 27 of the Indian Evidence Act provides that
confession of the accused when he is in custody of the police though
it is not admissible under Section 25 or 26, if such confession is
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supported by discovery of a fact, the confession has to be presumed

to be true to the extent of discovery.

23) The Hon'ble Apex Court in State of Maharashtra Vs.

Damu Gopinath Shinde AIR 2000 SC 1691 observed that, “The basic
idea embedded in Section 27 of the Evidence Act is the doctrine of
confirmation by subsequent events. The doctrine is founded on the
principle that if any fact is discovered in a search made on the
strength of any information obtained from a prisoner, such a
discovery is a guarantee that the information supplied by the
prisoner is true. The information might be confessional or non-
inculpatory in nature, but if it results in discovery of a fact it becomes
a reliable information. This view is reiterated by Hon'ble Apex Court
in Rumi Bora Dutta v. State of Assam, (2013) 7 SCC 417)

24) In State of Punjab v. Gurnam Kaur and Ors. (2009) 11

SCC 225, it has been laid down that if by reason of statements made
by an accused some facts have been discovered, the same would be
admissible against the person who had made the statement in terms
of Section 27 of the Evidence Act.

25) In Aftab Ahmad Anasari v. State of Uttaranchal (2010)

2 SCC 583, after referring to earlier decision in Pulukuri Kotayya, a
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two-Judge Bench opined in the context of the said case that when
the accused was ready to show the place where he had concealed
the clothes of the deceased, the same was clearly admissible under
Section 27 of the Evidence Act because the same related distinctly
to the discovery of the clothes of the deceased from that very place.

26) In Bhagwan Dass v. State (NCT) of Delhi [AIR 2011 SC

1863], relying on the decisions in Aftab Ahmad Anasari (supra)
and Manu Sharm v. State [AIR 2010 SC 2352], the Court opined
that when the accused had given a statement that related to
discovery of an electric wire by which the crime was committed,
the said disclosure statement was admissible as evidence.

TAPE RECORDED CONFESSION IS ADMISSIBLE:

27) Tape recorded statement is a document as defined in

Section 3 of the Evidence Act which stands on no different footing
than photograph. The same is relevant on satisfying the following
conditions:

(i) the voice of the person alleged to be speaking must

be identified by the maker of the record or by others who
know it,
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(ii) Accuracy of what was actually recorded has to be

proved by the maker of the record, and satisfactory
evidence, direct or circumstantial, has to be there so as to
rule out the possibility of tampering with the record.

(iii) The subject matter recorded has to be shown to be

relevant according to the rules of relevancy in the
Evidence Act.

STATEMENTS RECORDED BY POLICE AND OTHER AUTHORITIES.

28) ‘Civilized people are generally insensitive when a crime is
committed even in their presence. They withdraw both from the
victim and the vigilant. They keep themselves away from the Court
unless it is inevitable.’ (Ref: Appabhai Vs. State of Gujrat AIR 1988
SC 696). This observation was made by the Hon’ble Apex Court
when prosecution could not produce independent witnesses in that
case. In the process of investigation, under Section 161 of Cr.P.C, any
Police officer making an investigation is accredited and empowered
to examine orally any person supposed to be acquainted with the
facts and circumstances of the case and to record statement of
witnesses. These statements are predominantly called as section 161
of Cr.P.C statements. This task is to gather evidence against accused.
After filing charge sheet, these statements will also be perused by the
Court to take cognizance of an offence. Such a statement can only be
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utilized for contradicting the witness in the manner provided by

Section 145 of the Evidence Act.

29) What is a contradiction? In case of a witness who

testifies before the court that a certain fact is existed without stating
same before police; it is a case of conflict between the testimony
before the court and statement made before the police. This is a
contradiction. Therefore statement before the police can be used to
contradict his testimony before the court. In Appabhai .Vs. State of
Gujrat AIR 1988 S.C. 694 [1988 Cri.L.J. 848], The Hon’ble Apex
Court has observed as under: “The Court while appreciating the
evidence must not attach undue importance to minor discrepancies.
The discrepancies which do not shake the basic version of the
prosecution case may be discarded.

30) What is an ‘Omission’? An omission is either skip or slip,

it means ‘exclusion’ or ‘leaving out’. If a certain fact is testified by a
witness in his Examination-in-Chief’, such fact, which is testified in
Court, had been omitted to state before police, it is called an
‘Omission’. Now, it is to be tested by the Court whether it is a
material omission or not. If it is a material omission, it amounts to
contradiction. The Hon’ble Apex Court opines that relevant and
material omissions amount to vital contradictions, which can be
established by cross- examination and confronting the witness with
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his previous statement. (Ref; Tahsildar Singh ..Vrs..State of U.P.,

1959 SCR Supl. (2) 875; AIR 1959 1012 (1026)). However, as was
held in Ponnuswamy Chetty v. Emperor (A.I.R. 1957 All. 239), ‘ a
bare omission cannot be a contradiction’.

THE OBJECT BEHIND RECORDING STATEMENT BY A

MAGISTRATE IN ADDITION TO THE STATEMENTS RECORDED BY
POLICE :-
31) A question may also arise at to why a Magistrate is
empowered to record statement in addition to the statements
recorded by police under section 161 of the code and particularly
when section 145 apparently does not distinguish between the
statement under section 162 or statement under section 164 of the
code and there is no additional weightage is given to the statements
recorded under section 164 of the code for the purpose of
contradicting a witness.

32) The object behind it is that when during the course of

investigation police records the statements under section 161 of the
code they cannot administer oath to the person making statement
and cannot obtain his signature, but under section 164 of the code, a
magistrate recording statement of a person can administer oath to
him and obtain his signature over the statement. The person making
and signing a statement before the magistrate during the course of
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investigation will not disown it and will support the case of

prosecution. Certainly if a person makes and signs a statement then
naturally he comes under moral obligation and chances of his turning
hostile will be reduced. In our social condition prevailing in our
country tampering of prosecution witnesses is favourite pastime. So,
getting statement recorded by the magistrate is the recognized
method to deter prosecution witnesses from changing their versions
subsequently. However for that reason alone, their trustworthiness
cannot be doubted. But the evidence of witness whose statement is
recorded under section 164 of the code must be approached with
caution. This however, cannot invariably bear the rule of law when it
is disclosed that a witness whose statement has been recorded under
section 164 of the code was kept in police custody for several days
and his whereabouts were not disclosed to the relatives, then the
evidence tendered by that witness in a court should not be relied
upon. Similarly a witness whose statement is recorded under section
164 of the code is not sticking to his statements so recorded the court
should not rebuke him and threaten him that he will be prosecuted
for perjury.

SOME IMPORTANT ASPECTS AND JUDGMENTS :-

(A) WHEN WITNESS TURNS HOSTILE :-
33) If a magistrate has recorded statement of a witness in the
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manner provided under section 164 (5) of the Code, the charge sheet
is filed and case is committed to the Sessions Court for the trial, and
during the trial the witness whose statement has been recorded
under section 164 of the code, completely turns hostile. He even
gone to the extent that his statement was not at all recorded by the
magistrate. Then how to make use of that statement in the trial.

34) In case of Kasmira Singh –vs- State of M.P. A.I.R. 1952

S.C. 159 , it is observed that -

“In case witness denies the fact of recording of his

statement by Magistrate or if he denies specific portion of
his statement to be not told by him, examination of
Magistrate is not necessary to prove contradiction which
is unlike the case of statement recorded by police under
section 162”.

35) In the above authority The Hon'ble Apex court has

endorsed the judgment of Privy Council in Nazir Ahmed -vs- King
Emperor A.I.R. 1936 P.C. 253.

36) In case of Guruvind palli Anna Rao -vs- State of A.P. 2003
Cri. L.J. 3253, it has been specifically observed that -

“Statement of witness recorded under section 164 of the

code is a public document which does not require any
formal proof. Hence summoning of Magistrate by
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Sessions Court to prove contents of the said statement is

improper.
PRESUMPTION:-

37) Section 80 of the Evidence Act states that – whenever any

document is produced before any court, purporting to be a record or
memorandum of the evidence, or any part of the evidence, given by a
witness in a judicial proceeding or before any officer authorized by
law to take such evidence, or to be a statement or confession by any
prisoner or accused person, taken in accordance with law, and
purporting to be signed by any Judge or Magistrate, or by any such
officer as aforesaid, the court shall presume - that the document is
genuine, that any statements as to the circumstances under which it
was taken, purporting to be made by the person signing it,are true,
and that such evidence, statement or confession was dully taken.

38) In view of the provision of 164 of the code if the

Magistrate has not put his signature on the statement but has
endorsed his certificate at the foot of the statement, then it is very
difficult to ascertain as to whether the witness is speaking truth or
false. The part of presumption at the foot of the section 80 of the
evidence act states that – that any statement as to the circumstances
under which it was taken, purporting to be made by the person
signing it. That means if the statement which bears the signature of
the maker can only come under the purview of section 80 of the
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Evidence Act. In such situation if the statement bears the signature of

the maker then and then only the statement can be held as public
document and the presumption under section 80 of the Evidence Act
can be made applicable to it and the authorities cited supra can be
made applicable to it. If the statement does not bear the signature of
the maker then it can not be considered as public document and no
presumption under section 80 can be applied to it inspite of the
endorsement of the magistrate who has recorded the statement. In
such circumstances it is incumbent on the prosecution to adduce the
evidence of magistrate in order to prove the contents of the
statement for making its use in the trial.

39) In the case of Forest Range Officer, ... vs Aboobacker And

Anr [1989 Cri.L.J 2038] ( Kerala High Court) it has been observed
that the admissibility of the confession made to the Forest Range
Officer is not open to doubt since the embargo contained in Section
25 of the Evidence Act is not applicable to it. Forest Officers, though
they are invested with some of the police powers, are not Police
Officers. Hence they can give evidence before Court regarding
admissions or confessions made to them by accused persons, whether
or not such persons were then in custody. If the Court considers such
confession to he reliable, there is no legal bar in acting on such
confession.
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40) In Noor Aga v. State of Punjab (2008) 9 SCALE 681

where the Hon'ble Apex court, has after considering the entire
scheme of the Customs Act, has held that the officer Under Section
53 of the customs Act is a police officer and would, therefore, attract
the provisions of Section 25 of the Evidence Act. It observed :

“104. Section 53 of the Act, empowers the Customs Officer with the
powers of the Station House Officers. An officer invested with the
power of a police officer by reason of a special status in terms of Sub-
section (2) of Section 53 would, thus, be deemed to be police officers
and for the said purposes of Section 25 of the Act shall be
applicable.”

41) The Madras High Court has considered whether a Forest

Range Officer under the Madras Forest Act is a Police Officer for the
purpose of Section 25 of the Evidence Act (E. C. Richard v. Forest
Range Officer AIR 1958 Mad 31 : 1958 Cri LJ 52. It was held that the
Forest Officer is at par with the Customs Officer and hence what
applies to the Customs Officer applies to the Forest Officers also. It
has been observed in the said decision that "in the absence of a
specific provision in the Madras Forest Act conferring on the Forest
Officer all the powers of an Officer-in-Charge of a Police Station he
cannot be called a 'Police Officer' and a statement made to him will
not be hit by Section 25 of the Evidence Act". Neither the Kerala
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Forest Act nor the Wild Life Protection Act conferred all the powers
of Police Officers on the Forest Officers or wild life protection force
even though some of the powers have been conferred on them to be
exercised in specified contexts. It is therefore clear that the embargo
contained in Section 25 of the Evidence Act cannot be applied to the
statements made to a Forest Officer or Range Officer etc.

42) The Supreme Court in the case of Rajkumar Karwal v.

Union of India & Ors (1990) 2 SCC 409 by following the ratio in the
case of Ramesh Chandra Mehta v. State of West Bengal, [1969] 2
S.C.R. 461 , has held that the officers of the Department of Revenue
Intelligence (DRI) who have been invested with the powers of an
officer-in-charge of a police station under Section 53 of the NDPS Act
are not "police officers" within the meaning of Section 25 of the
Evidence Act, 1872. Therefore, a confessional statement recorded by
such officer in the course of investigation of a person accused of an
offence under the Act is admissible in evidence as against him. It is
further observed that officer appointed under Section 53 of the NDPS
Act, other than police officer is not entitled to exercise "all" powers
under Chapter XII including power to submit a chargesheet/report
under Section 173 of Cr. P.C.
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43) The Hon'ble Apex Court in the case of Francis Stanly

alias Stalin v. Intelligence Officer [MANU/SC/8783/2006: 2007
Cri.L.J. 1157] has held that while it is true that a confession made
before an Officer of the Department of Revenue Intelligence under
the NDPS Act may not be hit by Section 25 of the Evidence Act, yet
such a confession must be subject to closer scrutiny than a
confession made to private citizens or officials who do not have
investigating powers under the Act.

DETERMINATION OF 'POLICE OFFICER' FOR THE PURPOSE OF

SECTION 25 OF THE EVIDENCE ACT

44) In Tofan singh vs state of Tamil Nadu, 2014 (1) Crimes

42, the Ho'ble Apex Court has observed thus :-
34. We have also to keep in mind the crucial test to determine
whether an officer is a police officer for the purpose of Section
25 of the Evidence Act viz. the "influence or authority" that an
officer is capable of exercising over a person from whom a
confession is obtained. The term "police officer" has not been
defined under the Code or in the Evidence Act and, therefore,
the meaning ought to Assessed not by equating the powers of
the officer sought to be equated with a police officer but from
the power he possesses from the perception of the common
public to Assess his capacity to influence, pressure or coercion
on persons who are searched, detained or arrested. The
influence exercised has to be, Assessed from the consequences
that a person is likely to suffer in view of the provisions of the
Act under which he is being booked. It, therefore, follows tha t
a police officer is one who:
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(i) is considered to be a police officer in "common

parlance" keeping into focus the consequences provided
under the Act.
(ii) is capable of exercising influence or authority over a
person from whom a confession is obtained.

45) After making above observation, the Hon'ble Apex Court

sent the matter to a larger Bench for re-consideration of the issue as
to whether the officer investigating the matter under NDPS Act
would qualify as police officer or not.

STATEMENT RECORDED BY OTHER AUTHORITIES

1. Statement recorded by Judicial Magistrate :

I) Judicial Magistrate can also record statement of a person

as provided in Section 164 of the Code of Criminal Procedure and
such statement would either be elevated to the status of Section 32 if
the maker of the statement subsequently dies or it would remain
within the realm of what it was originally. A statement recorded by a
Magistrate under Section 164 becomes usable to corroborate the
witness as provided in Section 157 of the Evidence Act or to
contradict him as provided in Section 155 thereof.
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2. Under TADA Act :

II) Section 15 of the Terrorist and Disruptive Activities
(Prevention) Act (28 of 1987) and Rule 15 of TADA Rule [now
repealed] authorize the Superintendent of Police also to record a

confession or any statement made by a person under the TADA Act

besides Metropolitan Magistrates, Judicial Magistrates and Special
Executive Magistrates empowered to record any confession
U/sec.164(1) Cr. P. C.
3. Under the Maharashtra Village Police Act 1967 :

III) Under the above said Act the Police Patil has powers
under Section 15 of the Act to call and examine witnesses while
making an investigation. However, he must be held as a 'Police
Officer' for such purpose.

Submitted with respects.

C.V. Marathe,
Addl. Chief Metropolitan Magistrate,
2nd Court, Mazgaon (Sewree), Mumbai.
 27

S.U. Hake S.S. Joshi

Metropolitan Magistrate Metropolitan Magistrate
69th Court, Mazgaon(Sewree) 69th Court, Mazgaon(Sewree)

Mumbai Mumbai

A.A. Panchbhai Tejwantsingh A. Sandhu

Metropolitan Magistrate, Metropolitan Magistrate,

20th Court, Mazgaon (Sewree), 6th Court, Mazgaon (Sewree),

Mumbai Mumbai.

R.B. Giri P.K. Deshpande

Metropolitan Magistrate, Metropolitan Magistrate,
70th Court, Mazgaon (Sewree), 25th Court, Mazgaon (Sewree),
Mumbai Mumbai.