A confession is an explicit admission of guilt from an accused. Evidence extracted from an accused often proves to be substantive as no evidence can supercede an explicit confession from an accused. The well known maxim, habemus optimum-testem, confidante reum, meaning that a confession against an accused was the best evidence against him applied in such cases . However, confessions would be of two types. Judicial confessions are substantive evidence while extra-judicial confessions, if found, reliable are admissible in a court of law. However, by virtue of Sections 25 and 26 , all extra-judicial confessions made to police officers or police custody are not admissible. This is, of course, the normal rule as enunciated in the Indian Evidence Act, 1872. The rationale behind this staple rule is quite simple. The powers of the police are often abused for the purpose of extortion and oppression and confessions obtained by the police through undue influence will be subject to judicial review. In enacting these provisions, the legislature had in view the malpractice of police officers to gain credit by securing convictions and that those malpractices went to the length of positive torture. Therefore, it is a natural rule that confession to police officers or even in the custody of police officers is not admissible in court as the Court cannot rely on the neutrality of the Police. Usually, the term ‘police officer’ would mean all officers enrolled under the Police Act, 1861. Therefore, confessions made to public officers who are invested with police powers but do not fall within the ambit of the abovementioned definition. Consequently, a confession made to a Forest Range Officer would not be barred by the virtue of this provision as was held in Forest Range Officer, Chungathara v. Aboobacker , where the Court held that these officers though invested with some police powers could not be called ‘police officers’ within the purview of the Police Act, 1861, and thus any confession made to them would be admissible. Even confession made in the presence of army officers was held to be admissible by the Court in Naik Ram Singh v. Union of India , as they could not be defined as police officers. Similarly, confession made to officers of the Railway Protection Force or officers under the Foreign Exchange Regulation Act has been deemed to be admissible.
However, there have been some legislations where the normal rule of inadmissibility of confessions to police officers has not been followed. In this essay, I will discuss 10 cases based on the subject of admissibility of confession in these special laws. The cases will be divided on the basis of the Act under which they fall.
Part I: Constitutionality of confession to police
The constitutionality of custodial confessions with respect to the Terrorism and Disruptive Activities (Prevention) Act, 1987 (TADA) was challenged in the case of Kartar Singh v. State of Punjab . The TADA Act was promulgated during the time of the Khalistan insurgency in Punjab and it was contended by the petitioners that the Act was a draconian mechanism to stifle civil rights . Section 15 of the impugned Act which dealt with custodial confession before a Police Officer not below the rank of a Superintendent of Police and recording of confession in writing or through any recording device was challenged as it was against the established rule envisaged in Sections 25 and 26 of the Evidence Act as well as Sections 162 and 164 of the Criminal Procedure Code and against Article 14 and 21 of the Constitution. There was a secondary question that whether Section 21(1)(c) which provided for the presumption to be drawn by a Designated Court against an accused based on the confession of a co-accused violated Article 14 and 21 of the Constitution and §30 of the Evidence Act and police officers could easily ask informers to give evidence which would then implicate the accused .
On the other hand, the State contended that there were adequate safeguards by providing that a confession was admissible only if it were given in the presence of a superior police officer. Moreover, the section did not lay down the probative value of the confession nor did it hold that a conviction could be based on confession alone. The Supreme Court then went on to examine Section 15 of the Act coupled with Rule 15 annexed to that section. The Court determined that Section 15(2) carried a safeguard which required the Police Officer recording the confession to explain to the accused that the confession so recorded would be used against him and the confession had to be recorded in the language in which it was given. The Court held that the legislation was a reflection of the times where the act of terrorism threatened normal public life and even the very sovereignty of the nation. The Court pointed out that in many cases evidence was hard to obtain as there would be very few witnesses. Keeping in view the exigencies and the adequate safeguards envisaged in the section and the rule, the Court held that Section 15 was not unconstitutional. However, the Court did lay down some guidelines namely that the confession should be recorded in a free atmosphere in which the person is examined; the person whose confession had been recorded should be produced before the Chief Metropolitan Magistrate or Chief Judicial Magistrate along with the original statement of confession without any unreasonable delay; in case of any complaint of torture, the Magistrate should forward the accused for medical examination before a Medical Officer not below the rank of an Assistant Civil Surgeon.
In People’s Union for Civil Liberties v. Union of India , the constitutionality of the Prevention of Terrorism Act, 2002 (POTA) was challenged inter alia on the ground that empowerment of police would lead to procedural and reliability problems as the Magistrate could himself record the confession. Moreover, it was argued that it was not clear whether the validity of the confession given to the Police would stand after the accused had complained of torture to the Magistrate. The Court held that in enacting Section 32 of POTA which provides for confession to police, the Parliament had taken into account all the guidelines suggested by the Court in Kartar Singh through subsections (2) to (5) of §32. The Court held that whether the confession to police was necessary or not was essentially a policy argument and if the Parliament deemed it fit in public interest to include such a provision then the Court could not interfere. The Court stated, that in any case, confession extracted through force was inadmissible so a confession under the POTA law would not dilute that principle and such a principle was to read into any provision relating to confession and therefore express non-inclusion would not make the provision invalid.
Part II: Evidentiary value of confession to police under special laws against co-accused: Whether substantive.
In State v. Nalini , a question arose whether confession to police under special laws would be regarded as substantive evidence meaning that the court could convict the co-accused based only on the evidence of the other accused. The Court had to consider whether the decision laid down in Kalpanath Rai v. State , where the Court held that confession of an accused would only be corroborative evidence against a co-accused as given by §30 of the Indian Evidence Act, 1872 and consequently §15 of TADA had to follow the same principle. The State however, contended that in view of the amended §15 of TADA, the judgement of the Court required re-consideration . The amended §15 of TADA provided that the evidence of a co-accused shall be admissible against another accused notwithstanding anything contained in the Evidence Act . The counsel for the respondent contended that the evidence could not be regarded as a substantive piece of evidence as it was not evidence under §3 of the Evidence Act nor was it subjected to cross-examination so as to check the reliability of the evidence. The Court held that in regard of the non-obstante clause, the provisions of the Statute would hold sway in spite of the fact that cross-examination could not be performed. The Court held that the object of TADA being a special law was to regard evidence to police officers as primary evidence and not corroborative evidence .
Part III: Case law under TADA
In Nazir Ahmed v. State of Delhi , an issue arose before the Supreme Court on whether the Court could take a presumption that due administrative caution had been exercised before recording a confession. This case arose in reference to the Parliament attacks and the appellants alleged that the confession was not voluntary . The Court held that in such situations where the fact of exercise of caution was in dispute, recourse was to be had to the minutes of the interrogation and deposition of police officers in the court . By holding thus, the Court disregarded any role of the accused in the determination of whether the process of administering caution had been exercised. The aspect of non-intervention of the accused in any such process is contrary to due process as the accused can very well be tortured and minutes of interrogation can easily.
The case of S.N. Dube v. N.B. Bhoir was also about the reliability of evidence obtained under the provisions of the Terrorism and Disruptive Activities, Act. In this case, the victim was shot dead due to rivalry between various criminal gangs but the Trial Court found fault with the confession of the accused persons as it felt that they were not voluntarily made. The Court overruled the verdict of the trial court and held that the confession was voluntary and thus admissible and a substantive piece of evidence. The mere fact that the police officer designated for the recording of the confession was also the officer who was heading the investigation or the fact or the allegation that the accused was not told that his confession had been recorded was not enough to show that the power to record confessions under Section 15 had been used on mala fides . Moreover, the Court held that the police power of warning the accused that his statement would be used against him and the actual confessional statement could not be divided into two separate parts but formed one confessional statement. The Court further held that mere departure in form and manner of recording the confession could not vitiate it. Furthermore, the guidelines under Section 164 of the Code of Criminal Procedure, 1973, in recording would not by themselves apply in the recording of the confession under Section 15 of the Act.
Voluntariness of the confessional statement under Section 15 of the Act came under scrutiny in State of Maharashtra v. Bharatlal Raghani . In this case, the trial court had acquitted the accused based on the ruling that the confessional statement made before the Deputy Commissioner of Police was not voluntary . The question was whether the Magistrate should have taken positive steps to ensure that the confessional statement was voluntary . The Court held that Rule 15 of the Act did not impose any obligation on the Magistrate to satisfy himself that the confessional statement recorded to the Police was valid . The Court added that no additional duty was cast on the Magistrate to ascertain the nature and circumstance of the environment in which the confessional statement was made unless there was an allegation of torture from the accused. Moreover, the Court held that mere interpolations in the nature of marking some part of the statements did not make the statement unreliable.
In Jaywant Dattatray Suryarao v. State of Maharashtra , an appeal was filed from a TADA court judgement convicting the appellant and sentencing him to death. The appellant contended inter alia that the confessional statement to the police officer was inadmissible as the accused was not produced before the Judicial Magistrate and the record of the confessional statement was not sent within the prescribed time limit thus leading to a breach of Rule 15 of TADA . The Court held that since Section 15 of the Act began with a non-obstante clause, no principles enunciated in the provisions concerning confession in the Evidence Act could apply and recourse must be had to Section 15 and Rule 15 of TADA and the prosecution need only have shown that the requirements of those provisions had been fulfilled . The Court held that minor irregularities would not vitiate the admissibility of the evidence . However, in the instant case, the Court held that regarding the circumstances of the case it would not be proper to convict the accused only on the basis of the confessional statement and the corroborative evidence should be looked into . Looking at the corroborative evidence, the Court came to the conclusion that the Trial Court observed the correct principles of law in convicting the accused. Moreover, the Court held that any such challenge to the procedure adopted by the police would be scrutinised thoroughly otherwise the scheme of the Act would have to be watered down.
Part IV: Case law under POTA
In State v. Navjot Sandhu , the Supreme Court expressed doubt over the rationale of making confession to police admissible in court. The Court questioned why an accused could not be produced to make confession before a Judicial Magistrate if he could voluntarily do the same before an empowered police officer . The Court expressed doubt over the legislation placing more faith in the executive officer rather than a judicial officer and could find no substantial reason for the same . However, the Court did not take any contrary view to that taken in PUCL case. The Court also expressed reservation at the fact that just because in advanced countries confession to police was admissible the situation would be the same in India. Ground realities could not be ignored, held the Court and there was still ample proof of how the police used crude violent techniques to extort confession from the accused especially in the rural or mofussil areas. The Court also had to determine whether a confession of one accused given to a police officer could be used against a co-accused so as to become the sole basis of conviction in the absence of any express clause in §32 of the Act. The Court held that in the absence of any express provision, no Court was empowered to take into account the confession given by a co-accused. According to the Court, any such provision entailing such serious penal consequences would have to be worded explicitly and no implication could be drawn .
In Mohd. Afzal Kumhar v. State , a question arose that whether the confession obtained by the police from the accused could be treated as substantive evidence meaning whether conviction could be upheld solely on the basis of such a confession without any corroborating evidence. The Court held that whether any corroborating evidence was necessary would depend on the facts and circumstances of individual cases and more specifically, on the circumstances in which the confession was recorded. The Court observed that the accused had not lodged any grievance in the Designated POTA court about the manner in which the confession was recorded. It was argued by the appellants that sufficient cooling off time was not given and consequently, proper procedural safeguards were not followed. The Court held that whether sufficient cooling time was necessary would depend on the nature of the case and in some cases, the police could indeed straight away start recording the confession. The Court noted that the accused had not claimed anywhere in the courts below that they had retracted their confession and such a claim could not be made out at that stage and in such a case the confession to police could be relied on as substantive evidence .
Another question which arose in Navjot Sandhu was regarding the admissibility of evidence of co-accused as relevant evidence even though the same could not proved against the other accused. The Court did not express any opinion on this aspect as the confessional statement was not being relied on in that case. This question again came up for discussion in the case of Saquib Abdul Hamid Nachan v. State of Maharashtra before the Supreme Court. The Court came to the conclusion that § 10 would only come into play only when the court was satisfied that there was reasonable ground to believe that two or more persons have conspired together to commit an offence . There should be, in other words, a prima facie evidence that the person was a party to the conspiracy before his acts can be used against his co-conspirator .This prima facie evidence was relevant not only for the purpose of proving the existence of conspiracy, but also for proving that the other person was a party to it . However, the Court noted that §32 of POTA barred usage of the confessional statement of a co-accused in any way and this included using it as relevant evidence under Section 10 due to the non-obstante clause in POTA which superseded any such provision in the Evidence Act .
As can be seen from the cases discussed above, confession to police and in the custody of police officers, though might seem patently unjust and prone to misuse, the highest courts of the land have continually upheld the validity of the acts as well as the actions of the police officers engaged in procuring the confession. The Court has protected such actions under the garb of ‘special laws’ dealing with special situations like terrorism. However, much has depended on the parent legislation itself. Herein lies a difference between TADA and POTA and the latter legislation sought to limit the powers of the police in such cases. However, both these legislations have been repealed and the Unlawful Activities Prevention Act, 1967, though containing some strict provisions does not validate confessions made to police.