Skill 24: Valid confessions under BSA

and how to use them

Have you ever wondered how confessions work? I used to think that once you
confess to a crime, then that is it. You make a statement, “I am guilty”, and then you
get thrown in jail. But surprisingly, it actually doesn’t work like that. There are
procedures to be followed, and you can even take back your confession.

What is a Confession?

A confession is essentially a statement made by a person admitting to a crime that he

has committed, or acknowledging his guilt in regards to a crime. In the legal world,
it becomes an important piece of evidence especially in criminal cases but its
admissibility and validity depend on various factors. These include factors such as
voluntariness, how it was obtained, and if it meets the legal requirements.

Legal Framework

There is no set definition given for the term ‘confession’, so let us look at what the
courts have established as a confession.

In Pakala Narayan Swami V. Emperor, Lord Atkin observed that:

"A confession must either be admitted in the context of any offence or in relation with
any substantial facts which inaugurate the offence with criminal proceedings. And an
admission of serious wrongdoing, even conclusively incriminating fact is not itself a
confession".

In, Palvinder Kaur State of Punjab the Supreme Court uplifted the Privy Council
decision in the Pakala Narayan Swami case and substantiated the arguments by
giving a few reasons:
 (i) A confession is defined only when the statements made include an
admission of guilt for an offence or acknowledge all the facts that make up the
offence.

(ii) However, if the statement contains a mix of confessional elements that

ultimately suggest the person confessing should be acquitted, such statements
cannot be classified as a true confession.

In the case of in the case Nishi Kant Jha v State of Bihar the Supreme Court pointed
out that there was nothing wrong or relying on a part of the confessional statement
and rejecting the rest. To support this, the Court referenced English authorities.
When there is sufficient evidence to dismiss the exculpatory portion of the accused's
statements, the Court may rely on the inculpatory portion instead.

Confession when not admissible:

Confessions are not always admissible. When does it become inadmissible? There
are quite a few instances where it won't be taken into account. When does it happen
and where is it covered?

●​ Section 22 of BSA: A confession made under inducement, threat, or promise is

irrelevant and inadmissible in court.

●​ Section 23(1) of BSA: A confession made to a police officer is inadmissible in

court.

●​ Section 23(2): A confession made while in police custody is inadmissible

unless made in the presence of a magistrate.

●​ Section 23(2)Prov: If a fact is discovered as a result of a confession made in

police custody, that part of the confession is admissible.

●​ Section 183 of BNSS: A confession made before a magistrate is admissible if it

is voluntary and recorded in accordance with the procedure.

Are you confused? I will break it down.

Conditions for a valid confession:

●​ Voluntariness: The confession must be made voluntarily. This means that the
confession should be made by the person on their own will, without any
threat, inducement, or promise.

●​ Before a Magistrate: Confessions that are made to a magistrate under Section

183 of BNSS are generally considered valid.

●​ Police Custody Exception: Confessions made in police custody are

inadmissible unless made in the presence of a magistrate.

●​ Discovery of Facts: If a fact is discovered as a result of a confession, that part

of the confession is admissible. For example, if a suspect tells police where
they hid the weapon while in custody, that information about the location is
considered a "discovery of facts" and can be used as evidence, even if other
parts of the confession are not admissible.

Procedure for recording and using confessions

There is a procedure that has to be followed when it comes to recording a confession.

Recording a Confession before a Magistrate:

●​ The accused must be produced before a magistrate.

●​ The magistrate must explain to the accused that the confession is voluntary
and not coerced.

●​ The confession is recorded in writing and signed by the accused and the
magistrate.

Police Custody:

●​ If the accused is in police custody, the confession must be made in the

presence of a magistrate to be admissible.
 In the case of Randeep Singh vs State of Haryana (2024), the Supreme Court
ruled that the confessions allegedly made by the accused to the police were
not admissible under Section 25 and Section 26 of the Evidence Act.

Using a confession in court

●​ The prosecution must prove that the confession was made voluntarily and in
compliance with legal procedures.

●​ If the confession is retracted, the court may still rely on it if it is corroborated

by other evidence.

Types of confession

A confession doesn’t have to be in one particular way. There are different forms of
confession and all of them are valid as long as they meet the necessary criteria and
based on the context they are made. They should be admissible in court as well. The
types of confession are:

Judicial confession

This confession is also known as a formal confession. When a confession is made

before a magistrate in a court during a judicial proceeding, then it becomes a judicial
confession.

●​ Admissibility: These confessions are admissible in court as long as they are

made voluntarily and are in proper compliance with legal procedures.

Extra-judicial confession

This is also known as informal confession. Any confession that is made outside of a
judicial proceeding would be considered an extra-judicial confession. An
extra-judicial confession happens when the accused confesses to a private
individual, such as a friend, relative, or acquaintance or when the accused confesses
to the police during an interrogation. The accused can also confess publicly and it
would fall under extra-judicial confession.
 ●​ Admissibility: These are admissible in court but are looked at with more
scrutiny. The court will look at factors like whether was it done voluntarily
and other factors such as corroborations by other evidence.

Retracted confession

When a person confesses and later denies it, it is considered as a confession

withdrawn and therefore it becomes a retracted confession.

●​ Admissibility: They can still be used as evidence if they are corroborated by

other evidence. The court will assess the circumstances under which the
confession was made and retracted.

Confession by co-accused

Section 24 of BSA talks about the confession of co-accused. If a crime is committed

by multiple people, a confession made by one of the accused will be considered if it
meets the necessary requirements.

●​ Admissibility: The accused and the co-accused must be on trial together and
they should have committed the same offence for the confession to be valid.
Further, the confession must be voluntary and it should also be corroborated.

How to use confessions in court

Getting a confession alone is not sufficient, you need to now use them in court. What
should you do? Let us see step by step.

Step 1: Ensure the confession is admissible

You need to make sure that the confession is admissible. What makes the confession
admissible?:

●​ Voluntariness: The confession must be voluntary and done out of coercion.

The court will examine whether the accused was under any threat,
 inducement, or promise. So you need to ensure that this was done voluntarily
by the accused.

●​ Recording by Magistrate: Confessions recorded under Section 183 of BNSS are

generally admissible. The accused should be informed of their rights.

●​ Police Custody Exception: Confessions made in police custody are

inadmissible unless there is a magistrate present.

Step 2: Prove compliance with legal procedures

Here you need to ensure that everything is done according to law. If you are
prosecution, you prove that the confession was recorded in accordance with the law:

●​ The magistrate must explain to the accused that they are not obliged to
confess.

●​ The confession must be recorded in writing and signed by the accused and
the magistrate.

●​ The magistrate must certify that the confession was made voluntarily.

Step 3: Present the confession in court

The next step is to present this as evidence. You should present and submit the
confession is presented as evidence during the trial. You as the prosecution must call
the magistrate who recorded the confession to testify about the voluntariness and
procedural compliance.

Step 4: Cross-examination

On the other hand, if you are the defence, then you can cross-examine the magistrate
and challenge the voluntariness or procedural compliance of the confession. The
defence can also argue that the confession was obtained through coercion or
inducement.
Step 5: Corroboration

Even if a confession is admissible, courts often look for corroborative evidence to

support the confession. For example, if the confession leads to the discovery of a
weapon or other evidence, that evidence can corroborate the confession.

Step 6: Judicial scrutiny

The court will scrutinize the confession to ensure it meets legal requirements. If the
confession is retracted, the court may still rely on it if it is corroborated by other
evidence.

Conclusion

Therefore, confession should be made according to the laws and you need to handle
them correctly. After you get a confession from the accused, you need to make sure
that all the legal requirements are met and take the necessary steps. Check the
admissibility of the confession and follow the due process.