CRITICAL ANALYSIS OF THE EVIDENTIARY VALUE OF CONFESSION BEFORE A POLICE OFFICER
The term ‘Confession’ has nowhere been defined under the Indian Evidence Act, 1872. To give a simplest definition, a confession is a statement made by an accused of a crime admitting his guilt. A confession given to a police officer under any circumstances is completely excluded from the purview of evidence against the accused under Sec.25, Indian Evidence Act, 1872. It makes no difference whether the individual is in police custody or not, or whether the statement was given during or before the inquiry. To understand the principle behind this bar or exclusion, the author of this research article shall throw light upon the objective behind such exclusion, non-admissibility of such evidence, study different case laws in order to understand who constitutes a “ police officer” and provide a critical analysis on its current position.
Introduction
A confession is a voluntary statement made by a person accused with a crime communicated to another person in which he accepts the commission of the crime which he believes himself to be guilty of and discloses the circumstances of the act or the participation which he had in it.[1]The accused's mind must be in a state of complete equanimity before he makes a confession, and it must not have been influenced by fear, hope, or enticement. As a result, any menace, promise, or enticement made to an accused person qualifies as a threat & hence confession is irrelevant, therefore not considered as per as sec.24 of the Indian Evidence Act, 1872 is concerned.[2]
Sec.25of the Evidence Act specifically prohibits the admission of a confession made to a police officer[3]given that it is generally expected of a police officer of using coercion to extract a confession. As per as sec.26, a confession made by an accused while in custody of a police officer is irrelevant unless it is made in the immediate presence of the Magistrate.[4]The exclusion of a confession made by an accused in police custody is similar to that contemplated under sec.25, the only distinction being that they function in equitably different fields, with sec.25 raising a prohibition on proof of a confession made to a police officer and sec. 26invalidating a confession made to anyone in the policy custody.[5]Sec.27 is an exception to the provisions discussed above, stating that even if a statement of confession is made under coercion or threat[6], or to a police officer[7], or while in police custody[8], if the statement is capable of leading to the discovery of an evidentiary material object, that part of information can be proved under sec.27.
The Rationale Behind Exclusion & Non-Admissibility of Confession Made to Police
The rejection of a confession given by an accused to a police officer or while in the custody of such officer is based on the principle that such a confession is untrustworthy. The reason for the same is to mitigate the possibility of admitting a false confession.[9] In Empress v. Babulal[10], the Court stated that the goal of this exclusion is to prevent police officers from extorting confessions in order to gain credit by securing convictions, if confessions to police were allowed to be proven in evidence, the police would torture the accused and force him to confess to a crime he may not have committed. The Supreme Court in Raj Kumar Karwal v. U.O.I, reiterated that if confessions to police were permitted to be established in evidence, the police would torture the accused and force him to confess a crime he may not have done & hence such confessions cannot be made admissible.[11]Therefore, when an accused confesses to a police official, it is inadmissible in evidence and hence during the course of the police investigation, if a person confesses to the crime, the police frequently gets it recorded by a magistrate under sec.164 of CrPc, 1973 which authorises the Magistrate to record the confession statement according to the method provided in order to ensure its voluntariness as a result of which such confession is made admissible under the Evidence Act.[12].
Who is a Police Officer under Sec.25 ?
Many courts have ruled that the word "police officer" should not be interpreted in a "restrictive" meaning[13]As sec.25 engrafts a healthy safeguard, it must not be read in a restricted and technical sense, but must be understood in a broad and popular meaning.[14]“Police officer" does not have such a restricted definition that it only refers to those with the title of "officer," but also refers to all members of the regular police force. A Police Patel[15], Head constable[16], and a Chaukidar[17] have been held to be a police officer. Any person who is given the power to investigate under Chapter XII of the CrPC can be termed a 'police officer,' regardless of what name he is given. The substance of the authority he exerts is the determining element, not the terminology.[18]
There are certain circumstances wherein certain officers are not considered as “police officer” under sec.25. The primary criterion for determining whether an officer is a police officer is whether the officer has been granted all investigative powers under the Special Act, including the power to initiate prosecution by filing a charge sheet under Chapter XV of CrPc. It is not enough to establish that he uses some or even many of the functions of a police officer conducting an inquiry under the CrPc to bring him within the ambit of 'police officer' for the purposes of Sec. 25 of the Evidence Act.[19]In Badku Joti Savant v State of Mysore, SC stated that even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not become a police officer under sec.25 Evidence Act, unless he has the power to lodge a report under sec.173 of the Code.[20]
Current Position of Non-Admissibility of Confession Made to Police – A Critical Analysis
The objective of sec.25 as discussed above is to protect the accused from torture and inhumane treatment by the police officers. However, sec.25 is a rigid regulation that prohibits any confessional declaration made to a police officer. The Malimath Committee on Reformation of the Criminal Justice System observed that sec.25 deprives the investigative agency of crucial evidence in establishing the guilt of the accused.[21]Sec.25 & 26 impose a societal stigma on all Indian police officers, implying that they are untrustworthy and should not be believed when it comes to extracting confessions. The paradox is that the law has rendered the assumption that Police have gotten confessions under duress or inducement watertight. It is an unarguable fact that no confession influenced by coercion is acceptable against the conscience of justice. However, subjecting every confession of an accused before the police to that assumption without giving the police an opportunity to establish that the confession was voluntary is harsh and unfair.[22]In light of the changing value of Indian police, the Law Commission of India's 14th and 48th Reports proposed that confessions before high-ranking officers be made acceptable.[23] The credibility of the confession might be made a distinct issue that the judges must determine. In a similar manner to the United Kingdom, the onus of proof would fall on the prosecution to prove conclusively that no acts of violence were employed to elicit the confession from the accused.[24]
Sec.25 was enacted in 1872, & is relevant to the situation at the time, when the police were practically the only enforcement agency available to the government, and they were known for using several disturbing malpractices involving torture to obtain confessions from accused persons.[25]Since then, more than a century has passed. It is true that the police system is still not completely free from corrupt and unethical practices however one cannot refuse that the increased vigilance now exercised by the public and the press, growing awareness of citizens about their individual rights under the law, and rising earnestness and commitment of senior levels of command in the police structure to put down such malpractices have tended to reduce the prevalence of such malpractices.[26]The confession should be permitted to enter the sphere of legal procedures, restoring confidence and faith in the investigating authorities. By denying their confessions and mandatorily prolonging the procedure with the inclusion of a Magistrate under sec.26 of Evidence Act, those individuals may be diverted away from vanity.[27]
Suggestions
At the very least, the confession should be permitted to enter the sphere of court procedures with some administrative framework to investigate whether such confessions hold certainty or not. The Law Commission of India’s 14th& 48th Report recommendation of allowing and accepting confessions before high-ranking officer to be made admissible should be applied practically through necessary amendment to be made to sec.25 of the Evidence Act, 1872.
Conclusion
It is certain that the police system in India has always been looked through the eyes of them handling accused with torture and harassment. Sec.25 of the Evidence Act was enacted with the object of safeguarding the accused against inhumane treatment and torture in the police custody, however this provision is to be made a little flexible in order to accommodate those confessions which the criminals might confess out of self-conscience, moral or guilt. Confession is the most conclusive and valuable type of evidence provided it is voluntary and untainted.
[1] ‘Confession’, Black’s Law Dictionary (4th ed. St. Paul MN: West 2011).
[2] Dr. V. Krishnamachari, Law of Evidence, 8th ed., 2019, p.188.
[3] Sec.25, Indian Evidence Act, 1872.
[4] Sec. 26, Indian Evidence Act, 1872.
[5] Commissioner of Police v. Narender Singh, AIR 2006 SC 1800.
[6] Sec.24, Indian Evidence Act, 1872.
[7] Sec.25, Indian Evidence Act, 1872.
[8] Sec.26, Indian Evidence Act, 1872.
[9] Paulose And Ors. vs State Of Kerala, 1990 CriLJ 100.
[10] Empress v. Babulal, (1899) ILR 21 All 106; also Tofan Singh v. State of TN, (2013) 16 SCC 31; Kartar Singh v. State of Punjab, (1991) 2 SCC 635; State of Punjab v. Barkat Ram, AIR 1962 SC 276.
[11] Raj Kumar Karwal v. UOI, 1991 AIR 45; State of Punjab v. Barkat Ram, AIR 1962 SC 276.
[12] Sri G.Vallabha Naidu, Scope and Relevance of Statements Recorded under Sec.161 & 164 CRPC, ( https://districts.ecourts.gov.in/sites/default/files/Second%20Topic_1.pdf ).
[13] R v Hurribole, (1876) ILR 1 Cal. 207.
[14] Raj Kumar Karwal v UOI, 1990 (2) SCC 409
[15] Queen Empress v Ram Birappa, (1878) ILR 3 Bom. 12.
[16] R v Dhancham, 4 All. 198.
[17] Queen Empress v Salemuddin Sheik, (1899) ILR 26 Cal. 569.
[18] Raj Kumar Karwal v UOI, 1990 (2) SCC 409; Nanoo Sheikh Ahmed v Emperor, AIR 1927 Bom. 4.,
[19] Bal Kishan v. State of Mahrashtra, AIR 1981 SC 379.
[20] Badku Joti Savant v. State of Mysore, (1996) 3 SCR 698.
[21] Malimath Committee Report, Vol. 1, Committee on Reform of Criminal Justice System ,122 (Ministry of Home Affairs, Government of India 2003).
[22] National Police Commission 4thReport, 1980.
[23] Law Commission of India, REP. NO. 14, VOL. 2,The Reformation of Judicial Administration.
[24] Dr. V. Krishnamachari, Law of Evidence, 8th ed., 2019, p.188.
[25] Rao, Anupama. “Problems of Violence, States of Terror: Torture in Colonial India.” Economic and Political Weekly, vol. 36, no. 43, Economic and Political Weekly, 2001, pp. 4125–33.
[26] Ibid.22.
[27] Kartik Chakraborty & Ors. v. State of Assam, 2017 SCC OnLine Gau 1239.