Project Report

CONFESSIONS (Section 24-27)

with
special Reference to
SELVI V. State of Karnataka
(2010) 7 SCC 263

Submitted to
SUBMItted BY
DR. Sabina Salim devika
raj
Ass. Professor roll no:
135/14
UILS, PU, Chandigarh B.Com
LLB (sec-C)
 Acknowledgment

The success and final outcome of this project required a lot of guidance and assistance from

many people and I am extremely fortunate to have got this all along the completion of my

project report. Whatever I have done is only due to such guidance and I would never forget to

thank them.

I am thankful to and fortunate enough to get constant encouragement, support and guidance

throughout the completion.

I am very much thankful to Dr. Sabina Salim for her support and guidance, without which I

won’t be able to accomplish this project work. I am thankful to my friends who helped me in

collection of material.

Lastly and most importantly, I would like to thank my parents and the almighty for moral

support and constant supervision.

Devika Raj

48
 TABLE OF CONTENTS

Page
Sr.no. TOPIC
Number
1. Abstract Confession 4
5
2. Traditional & Statutory Dimensions Confession
6
3. Meaning Of Confession
4. Inculpatory And Exculpatory Statements 7
10
5. Kinds Of Confessions – Judicial And Extra-Judicial
The Importance Of Confessions In Criminal Trials – Exception 11
6.
To The Rule Against Hearsay
13
7. The Test Of Admissibility Of A Confession
15
8. Confession To Police Section 26
Section 27- How Much Of Information Received From Accused 18
9.
May Be Proved
Case Analysis 22
 Pancho Vs. State Of Haryana AIR 2012 SC 523
10.
 Kashmira Singh V. State Of M. P. 1952 AIR 159
 Selvi V. State Of Karnataka (2010) 7 SCC 263
37
11. Comparitive Law
39
12. Confessions Under Tada & Pota
44
13. Conclusion
46
14. Bibliography

48
 TABLE OF CASES

 Bhagwan Singh V. State Of Haryana AIR 1976 SC 1797

 Bharatbhai V State Of Gujarat, AIR 2002 SC
 Bhuboni Sahu V. The King (1949) 76 I A.147
 Bhuboni Sahu V. The King 76 Ind App 147
 Dagdu V. State Of Maharashtra A.I.R. 1977 S.C. 1579
 Devender Pal Singh V State Of NCT Of Delhi, (2002) 5 SCC,
 Emperor V. Lalit Mohan Chukerbutty 38 Cal. 559
 Emperor V. Narayan(1907)32 Bom
 Gopal Sah V. State Of Bihar (2008) 17 SCC 128
 Gurdeep Singh V State (Delhi Admn.), AIR 1999 SC 3646
 Haricharan Kurmi V. State Bihar AIR 1964 SC 1184
 Kanayalal Chamanlal V. State Of Gujrat 1970 Cr. L.J. 54 (Guj)
 Kashmira Singh V. The State Of Madhya Pradesh AIR 1952 SC 159
 Kasummodin V. Emperor 351 Cr. L.J. 485
 Kishore Chand V. State Of Himachal Pradesh
 Lal Singh V State Of Gujarat, AIR 2001 SC 746
 Mehboob Ali V. State Of Rajasthan, 2015 SCC 1043
 Nazir Ahmad Bhatt V State Of Delhi, (2002) 1 SCC,
 Pakala Narayan Swami V. Emperor (1939) 41 BOMLR 428
 Pancho Vs. State Of Haryana AIR 2012 SC 523
 Pandu Rang Kallu Patil V. State Of Maharashtra 1966 AIR 424
 Pati Soura V. State (1970)36 Cut. LT 774
 R V. Murugan Ramasay (1964) 64 C.N.L.R. 265 (P.C.)
 S.N. Dube V N.B. Bhoir, (2002) 2 SCC
 Selvi V. State Of Karnataka (2010) 7 SCC 263
 Simon V State Of Karnataka, (2004) 1 SCC, P. 74, Pp. 81-82.
 State V Nalini, (1999) 5 SCC
 State V. Guie 56 Mont 485

48
 Suresh Chandra Bahri V. State Of Bihar 995 Supp (1) SCC 80 434 

48
 Abstract

Confession of witnesses and the accused is a very important determinant in the pronouncement
of guilt in a Criminal Justice Trial. The scope and the parameters of ‘Confession’ and the
confessional statements have traveled beyond the boundaries of the traditional Sections 24, 25,
27 and Sections 161, 164, 167 in the Indian Evidence Act, 1872 and the Code of Criminal
Procedure Code, 1973 respectively. With the emergence of new scientific techniques like Brain
Fingerprinting, Brain Mapping, Narco-Analysis, Lie detectors, etc. for tracing the exact
information for purposes of corroboration of information and admissibility as piece of evidence
in the cases, a need for bringing changes in both the provisions of Procedural Codes above
mentioned is an emerging thought. Further ‘Confession’ is a concept closely interrelated to the
concerns of Part III rights enshrined in the Constitution of India, under Article 20(3), 21 etc.
The gross misuse of the powers of the investigating agencies (police) and the abuse of counter-
terrorism laws in the country like the (repealed) POTA and TADA which are now struck for the
gross violation of Fundamental Rights under Article 14 and 21 due to their inherent vagaries
(Sec. 32 of POTA and Sec. 15 of TADA) from the rights of accused under the Indian Evidence
Act, 1872. The Hon’ble Supreme Court of India has accepted fact that ‘Confessional
Statements’ due effect the entire findings and decisions of the Criminal Trials. Thus in various
case laws the Courts in India has considered the importance of Voluntary Confessions,
Prevention of Retraction from Confessions, avoiding duress and use of 3rd degree force by the
police while the accused is in custody.

This above highlighted reactionist approach of the various law making, law enforcing and law
interpreting agencies is triggered by the crucial fact that now both the terrorist as well as the
criminals have become much smarter and trickier whereby they developing string immunities to
the tactics of the investigating agencies. This need of the hour for the investigating and law
enforcing agencies can be elucidated by very recent examples of criminals like that of the
Attack on the Parliament, the master- servant duo in Nithari Killings, the Afzan Guru Criminal
trials. Etc.

48
 Confession: Traditional & Statutory dimensions

Police interrogation constitutes a very important part of the existing criminal justice system.
Although Evidencing law The Indian Evidence Act 1872 and Criminal Procedure Code 1973 do
not cast much weight on any statement coming out of an accused person while interrogated by
the police which in legal terms is not considered as an admissible part of evidence as per
Section 251 of the Indian Evidence Act, 1872. Nevertheless police personals are applying third
degree method to extract statement which may help the investigation. In India such allegations
are frequent that they torture accused under custody to elicit confessional statement, though it is
made to a magistrate and that judicial officer has to maintain some civility and follow the set
order given under Cr.P.C. when recording confessional statement of any individual2.

The term confession has not been defined under the Evidence Act, 1872; the General Clause
Act, 1897; the Criminal Procedure Code, 1898 or any other statutory laws prevalent in India to
date.

The definition given under section 17 of the Act for admission, becomes applicable to
confession also. A close scrutiny of the sections 17 to 30 of the Act, discloses that the statement
is the genus, admission is the species and confession is the sub-species.The acid test which
distinguishes a confession from an admission is that when conviction can be based on a
statement alone, it is a “Confession and where some supplementary evidence is required to
authorize a conviction, then it is admission”.

1
Section 25 reads as: Confession to police officer not to be proved. No confession made to a police officer shall
be proved as against a person accused of any offence.
2
Section 161 reads as: Examination of witnesses by police. (1) Any police officer making an investigation under
this Chapter, or any police officer not below such rank as the State Government may, by general or special order,
prescribe in this behalf, acting on the requisition of such Officer may examine orally any person supposed to be
acquainted with the facts and circumstances of the case.

(2)Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other
than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or
forfeiture.

(3)The police officer may reduce into writing any statement made to him in the course of an examination under
this section; and if he does so, he shall make a separate and true record of the statement of each such person whose
statement he records.
48
 STATEMENTS

ADMISSION

CONFESSIONS

The law relating to confession is to be found generally in sections 24 to 30 of the Evidence Act
and section 162 and 164 of code of Criminal Procedure. Since “Confession” is species of
“Admission”, it is dealt within sections 24 to 30. These sections suggest the circumstances
when a confession made by a person can be used against him or against some other person or
just can not be used at all.

Meaning of Confession

What is the meaning to be given to the word “Confession”, one has to start with the dictionary
meaning viz, “as an acknowledgement of offence.” In the absence of any statutory definition of
confession we have to rely on the definitions suggested by the jurists and the definitions given
in different judgements to understand the meaning of confession.

The Black law dictionary lists the following definitions as propounded by various courts in
U.S.A.

1. A voluntary statement by a person charged with the commission of a crime or misdemeanor

communicated to another person wherein he acknowledges himself to be guilty of the offence
charged and discloses the circumstances of the act or the share and participation he had in it.

2. A statement made by a defendant discussing his guilt of crime with which he is charged and

48
 excluding possibility of a reasonable inference to the contrary.

3. A voluntary statement made by one who is a defendant in criminal trial at the time when he is
not testifying in trial and by which he acknowledges certain conduct of his own constituting the
crime for which he is on trial, a statement which if true, discloses the guilt of that crime.

Sir James Fitzjames Stephen who drafted the Evidence Act, 1872 defined confession thus: “A
confession is an admission made at any time by a person charged with crime, stating or
suggesting the inference that he committed the crime.”3

This definition was formerly adopted in various cases by the judges in the Indian sub-continent
till 1939. But the Privy Council disapproved this definition in 1939 and held that a statement
merely suggesting inference that the maker of the statement has committed a crime cannot be
considered as a confession. A confession must in terms admit offence or at any rate
substantially all the facts which constitute the offence. The definition of confession given in
Narayanswami case has been accepted and been applied over the years till now by the courts of
India.

In Pakala Narayan Swami v. Emperor4 Lord Atkin observed “A confession must either admit in
terms the offence or at any rate substantially all the facts which constitute the offence. An
admission of a gravely incriminating fact, even a conclusively incriminating fact is not in itself
a confession”.

The law of confessions is codified under Indian Evidence Act, 1872 and Code of Criminal
Procedure, 1973.

Inculpatory and Exculpatory Statements

A self-exculpatory statement obviously cannot amount to a confession. It has been held in Pati
Soura v. State5, that a statement that contains self exculpatory matter (case of self-defence) does
not amount to confession if the exculpatory part relates to some fact which if true would
negative the offence alleged to be confessed”. The court is of view in Kanayalal Chamanlal v.

3
Stephen, Sir james Fitzjames, Digest of the Law of Evidence, article 21
4
(1939) 41 BOMLR 428
5
(1970)36 Cut. LT 774
48
 State of Gujarat6,that a statement which when read as a whole is of an exculpatory character
and in which prisoner denies his guilt is not a confession and cannot be used in evidence to
prove his guilt.

This is now the settled law according to the judgment passed in Bhagwan Singh v. State of
Haryana7 that it is permissible to believe a part of a confessional statement and to disbelieve
another and that is enough if the whole of the confession is tendered in evidence so that it may
be open to the court to reject the exculpatory part and to take the inculpatory one into
consideration if there is other evidence to prove its correctness.

Difference Between Admission and Confession

The underlying principle which governs a confession and an admission is the same and that
principle is that a statement made by a person against his own interest might be true.

The following differences between the two may be noted:

1. The broad distinction seems to be that a confession is a statement made by an accused person
which will be used against him in a criminal proceeding to establish the commission of the
offence by him while an admission is a statement by a party to proceeding or by a person who
has an interest in the subject-matter of the proceeding whereby he admits a fact in issue or
relevant fact and such an admission will be generally used in a civil proceeding.

2. A confession untainted by any legal disqualification may be accepted as conclusive in itself of

the matters confessed as conclusive in itself of the matters confessed as held in Emperor v.
Narayan,8 but an admission is no conclusive proof of the matters admitted though it may
operate as an estoppel.

3. A confession always goes against the person making it. An admission may be sometimes
proved by or on behalf of the person making the admission under the provisions of Section 21
of the Evidence Act.

4. The confession of one accused tried along with some other accused may be used against the

6
1970 Cr. L.J. 54 (Guj)
7
AIR 1976 SC 1797
8
(1907)32 Bom iii(FS)
48
 others, if the requirements of section 30 of the Evidence Act are satisfied but an admission of
one of several defendants is no evidence against another defendant.

5. An admission need not be voluntary to be admissible in evidence as is the case with

confessions.

KINDS OF
CONFESSIONS

EXTRA- NON- NON-

JUDICIAL VOLUNTARY PLENARY
JUDICIAL VOLUNTARY PLENARY

6. There can be a relevant admission made by an agent or even a stranger on behalf of a party but
for a confession to be relevant. It must be made by the accused himself. Holloway. J. has
clarified the distinction in an American case titled as State v. Guie9.

Confessions : Plenary and Not Plenary

A Plenary confession is when a self-deserving statement is such as if believed to be conclusive

against the person making it, at least one the physical facts of the matter to which it relates. In
such cases the proof is in the nature of direct evidence.

A confession Not Plenary is where the truth of the self-deserving statement is not absolutely
inconsistent with the existence of a state of facts different from that which it indicates but only
gives rise to presumptive inference of their truth and is therefore in the nature of circumstantial
evidence.

9
56 Mont 485.
48
Two kinds of Confessions – Judicial and Extra-Judicial

Judicial confessions are those which are made before the Magistrate in due course of legal
proceedings e.g. confessions recorded under Sections 164, 364 and 242 of the Code or Criminal
Procedure. It is however, essential that they be made or the free will of the party and with full
knowledge of the nature and consequences of the confessions.

Extra-Judicial confessions are those which are made by the accused elsewhere than before a
magistrate or in court. 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. It may be a confession to a
private person. 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.

Judicial confession Extra-judicial confession

1. Extra-judicial confession are those which

1. Judicial confessions are those which are made to are made to any person other than those
a judicial magistrate under section 164 of Cr.P.C. authorized by law to take confession. It may
or before the court during committal proceeding or be made to any person or to police during
during trial. investigation of 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
called as witness. the 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 relied it needs support of other supporting
48
 the 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.

Confessions whether judicial or extra-judicial must be voluntary and genuine and besides,
should have some corroboration to be relied upon and to be the basis of a conviction. Therefore,
the circumstances under which the confession is made the manner in which it is made the
person to whom it is made are aspects to be borne in mind before acting on a confession,
particularly on a non-judicial confession.

The Importance of Confessions in Criminal Trials – Exception to the Rule Against

Hearsay

The general English rule that hearsay is no evidence has been enacted in Section 60 of the
Indian Evidence Act. The term ‘hearsay’ is generally used to indicate the evidence which does
not derive its value from the credit given to the witness himself but which rests also in part at
the veracity and competence of some other person. Hearsay evidence is considered
untrustworthy since the original maker of the statement is not before the court as a witness. The
time lag before the statement is repeated in the court may introduce distortions. Further the
original declarant was not put on oath before making the statement and he is not available in the
court or cross-examination.

An accused in a criminal trial does not appear as a witness unless he is permitted to, on his own
prayer. Thus a confession made by him before the beginning of trial when sought to be proved
by other witness can be said to be hearsay. Admissions and confessions from a special group
within the exception to be hearsay rule.

The key factor that distinguishes them from other hearsay evidence is that they are statements
one or the parties to the proceeding. The party is litigating in the court and is in a position to
admit or deny that he had made such a statement. He can also cross examine the witness
proving the admission or confession made by him.

48
Law Relating to Exclusion of Involuntary Confessions

In order to save the public time the Constitutional rights of the accused should not be violated.
In other words an accused person should not be compelled to make a self incriminatory
statement and not to be compelled to be a witness against himself. It means the confession
should be voluntary. Involuntary confessions should not be considered at all. Whether a
statement is voluntary confession or involuntary confession is to be decided first.

Section 24 to 30 of the Indian Evidence Act deal with admissibility of confession made by an
accused during the investigation of a criminal case under certain circumstances. Section 24
enacts the general rule of inadmissibility of involuntary confessions, recognized all over the
world and guaranteed under Article 20(3) of the Constitution of India. A confession made under
circumstances which would make it appear to the Court that such confession was caused by any
inducement, threat or promise from a person in authority is irrelevant in a criminal proceeding.
Offering such inducement, threat or promise by police officers is prohibited under the Code of
Criminal Procedure. Section 25 and 26 go for beyond the constitutional protection and debar
and confession made by an accused person to a police officer or whilst in police custody to
anyone except in the immediate presence of a Magistrate from being given in evidence. Then
Section 27 of the Evidence Act creates an exception i.e. a confession or any other statement
which is deposed to have led to discovery of some facts is admissible in evidence to the extent
of the law actual part of the statement distinctly leading to the discovery.

Section 28 and 29 are more or less clarificatory in nature. By virtue of Section 28, a confession
made after the removal of impression caused by inducement, threat or promise as referred to in
Section 24 is admissible. Section 29 clarifies that the mere fact that a confession was made
under promise of secrecy or by deceit for the purpose of obtaining it or when the person making
the confession was drunk or that it was made in answer to questions which he was not bound to
answer do not make the same irrelevant under section 24. A confession of a co accused when
found relevant and proved can be taken into consideration by the court against the co-accused
persons under the power conferred by Section 30.

The Test of Admissibility of a Confession is its Voluntariness and not its Truth

48
“A confession which is voluntary is admissible in evidence even if it is false. On the contrary a
confession which is not voluntary is not admissible, howsoever true it may be,” was held in
Kasummodin v. Emperor10, the question whether a confession is voluntary is a question of fact
so is the question whether a confession is true. These two questions are entirely separate from
each other: one affects the admissibility: the other the value of the confession. A confession that
is voluntary is not necessarily true and conversely a confession that is true may not be
voluntary.

Confession to police

Section 25 – confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any
offence.
Reasons for exclusion of confession to police- another variety of confessions that are under the
evidence act regarded as involuntary are those made to a police 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.

In Dagdu v. State of Maharashtra11, supreme court noted 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

10
351 Cr. L.J. 485
11
A.I.R. 1977 S.C. 1579
48
investigation with a view to establish the case de hors the confession, later, being inadmissible
for one reason or other, the case fundles in the court.

In R v. Murugan Ramasay12,Police authority itself, however, carefully controlled, carries a

menace to those brought suddenly under its shadow and the law recognises and provides against
the danger of such persons making incriminating confessions with the intention of placating
authority and without regard to the truth of what they are saying.

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, for
example, the statement of an accused to the police that he witnessed the murderer in question.
The statement being not a confession was received in evidence against him, as showing his
presence on the spot.

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

12
(1964) 64 C.N.L.R. 265 (P.C.) at 268
48
against any person accused of any offence. This means that even if the accusation is subsequent
to the statement, the statement cannot be proved.

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.

Statement Not Amounting To Confession

A statement which does not amount to confession is not hit by the bar of section. A statement in
the course of investigation was that the design was carried out according to the plan. The
statement did not refer to the persons who were involved in the murder, nor did the maker of
the statement refer to himself. This was held to be not a confessional statement. Hence, not hit
by section 25. The statement of inspector (crimes) that the accused accepted before him that he
got the counterfeit currency notes from a stranger but the accused denying to have so stated,
was not admissible in evidence.

Use of Confessional Statement By Accused

Though the statements to police made by the confessing accused cannot be used in evidence
against him, he can himself rely on those statements in his defence. The statement of the
accused in FIR that he killed his wife giving her a fatal blow when some tangible proof of her
indiscretion was available was not usable against him to establish his guilt. But once his guilt
was established through other evidence, he was permitted to rely upon his statement so as to
show that he was acting under grave and sudden provocation. There is nothing in Evidence Act
which precludes an accused person from relying upon his own confessional statements for his
own purposes.

Section 26- Confession By Accused While In Custody Of Police Not To Be Proved Against
Him.
No confession made by any person whilst he is in the custody of a police officer, unless it is

48
made in the immediate presence of a Magistrate, shall be proved as against such person.
Object

The object of section 26 of the Evidence Act is to prevent the abuse of their powers by the
police, and hence confessions made by accused persons while in custody of police cannot be
proved against them unless made in presence of a magistrate. 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 him.

Confession Of An Accused In Police Custody To Any One Else

Section 26 provides that a confession which is made in custody of a police officer cannot be
proved against him unless it is made before a magistrate.

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.

In the case it is evident that the Police Officer has created a scene and to avoid Section 25 and
26, the Police Officer has left the accused in the custody of village head man (pradhan).
The Police Officer in this case has no difficulty to take the accused to the Judicial Magistrate
and to take extra-judicial confession under section 164 of Cr.P.C which has got more probative
value and it gives an opportunity to make the required warning, that this confession will be used
against the accused and after this warning he records the confession. Under section 26, no
confession made by an accused to any person while in custody of a police officer shall be
proved against him.

Police Custody

The word custody is used here in wide sense. A policeman may lay his hand on a person, hand-
cuff him or tie his waist with a rope and may take him with him. Again a police officer may not

48
even touch a person but may keep such a control over him that the person so controlled cannot
go any way he likes. His movement is in the control of the police officer. A police officer
comes to A and asks him to follow to the police station as he is wanted in connection with a
dacoity case. A follows him. He is in custody of the police officer.

Thus it is settled that “the custody of a police officer for the purpose of section 26, Evidence
Act, is no mere physical custody.” A person may be in custody of a police officer though the
other may not be physically in possession of the person of the accused making the confession.
There must be two things in order to constitute custody.

1. There must be some control imposed upon the movement of the confessioner, he may not be
at liberty to go any way he likes.

2. Such control must be imposed by some police officer indirectly.

The crucial test is whether at the time when a person makes a confession he is a free man or his
movements are controlled by the police by themselves or through some other agency employed
by them for the purpose of securing such confession. The word ‘custody’ in this the following
section does not mean formal custody but includes such state of affairs in which the accused
can be said to have come into the hands of a police officer, or can be said to have been some
sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tonga by a police constable. In the absence of
constable, the accused confessed to the tanga-driver that he committed the crime. The
confession was held to be in police custody as the accused was in the custody of constable and
it made no difference of his temporary absence.

Where a woman, charged with the murder of her husband, was taken into the custody of the
police, a friend of the woman also accompanied her. The policeman left the woman with her
friend and went away to procure a fresh horse. The woman confessed her guilt to her friend
while the policeman was away. The confession would not be admissible against the accused as
the prisoner should be regarded in custody of the police in spite of the fact that he was absent
for a short time. But where the accused is not arrested nor is he under supervision and is merely

48
 invited to explain certain circumstances, it would be going further that the section warrants to
exclude the statement that he makes on the grounds that he is deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for treatment
and from the moment of her admission to the hospital till her discharge from there, the police
personnel were neither present in the room wherein the accused was kept for treatment or even
in the vicinity of the hospital nor they frequently visited the hospital, it could not be said that
the accused’s movements were restricted or she was kept in some sort of direct or indirect
police surveillance and she was in police custody for the purpose of section 26 of the Evidence
Act. 

Section 27- How Much Of Information Received From Accused May Be Proved

Provided that, when any fact is deposed to as discovered in consequence of information

received from a person accused of any offence, in the custody of a police officer, so much of
such information, whether it amounts to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved.

Principle- This section of the act is founded on the principle that if the confession of the
accused is supported by the discovery of a fact then it may be presumed to be true and not to
have been extracted. It comes into operation only- 

• If and when certain facts are deposed to as discovered in consequence of information received
from an accused person in police custody, and

• If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence of
information given, some guarantee is afforded thereby that the information was true and
accordingly can be safely allowed to be given in evidence. But clearly the extent of the
information admissible must depend on the exact nature of the fact discovered to which such
information is required to relate.

48
In Pandu Rang Kallu Patil v. State of Maharashtra,13 it was held by Supreme Court that section
27 of evidence act was enacted as proviso to. The provisions of sections of Section 25 and 26,
which imposed a complete ban on admissibility of any confession made by accused either to
police or at any one while in police custody. Nonetheless the ban would be lifted if the
statement is distinctly related to discovery of facts. The object of making provision in section
27 was to permit a certain portion of statement made by an accused to Police Officer admissible
in evidence whether or not such statement is confessional or non confessional.

Scope- Section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section 24 lays
down that if a confession appears to have been caused by threat, promise or inducement from
some man in authority it will be irrelevant and cannot be proved against the confessioner.
Section 25 excludes a confession made to a police officer. Section 26 lays down that if a person
while in custody of a policeman, confesses his guilt to any other person not being a Magistrate,
his settlement will not be proved against him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact was
discovered in consequence of the information given by the accused of an offence in custody of
the police officer, so much of the information as relates to the facts discovered by that
information, may be proved irrespective of the facts discovered by that information, may be
proved irrespective of the facts whether that information amounts to confession or not.

Requirements Under The Section- The conditions necessary for the application of section 27
are: 
1. The fact must have been discovered in the consequence of the information received from the
accused.
2. The person giving the information must be accused of an offence.

3. He must be in custody of a police officer.

4. That portion only of the information which relates distinctly to the fact discovered can be
proved. The rest is inadmissible.

13

48
5. Before the statement is proved, somebody must depose that articles were discovered in
consequence of the information received from the accused. In the example given above, before
the statement of the accused could be proved, somebody, such a sub-inspector, must depose that
in consequence of the given information given by the accused, some facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must relate to the commission of
the crime in question.

In Suresh Chandra Bahri v. State of Bihar,14 it is the discovery and the seizure of articles used
in wrapping the dead body and the pieces of Sari belonging to the deceased was made at the
instance of one accused. Articles recovered were neither visible nor accessible to the people but
were hidden under the ground. No public witness was examined by the prosecution in this
behalf. However, the evidence of Investigation Officer did not suffer from any doubt or
infirmity. Articles discovered were duly identified by the witness. It was held that in these
circumstances, failure of Investigating Officer to record the disclosure of statement was not
fatal

In State of Maharashtra v. Bharat Ehagan Lal Raghani, it was held by Supreme Court that, the
fact that seized weapons were displayed by police in press conference was not a ground to
disbelieve the factum of recovery.

Section 27 enacts the English doctrine of confirmation by subsequent facts.

14
995 Supp (1) SCC 80 434 
48
 Case Analysis

2.1 PANCHO vs. STATE OF HARYANA

AIR 2012 SC 523, (2011) 10 SCC 165

2.1.1 CASE IN BRIEF: Two Special Leave Petitions were filed by the appellants against the
same judgment and order dated 3/5/2005 of the Punjab and Haryana High Court to the Two
Judge Bench of the Supreme Court. Accused 1- Pratham, Accused 2- Pancho and Accused 3-
Gajraj were tried by the Additional Sessions Judge, Faridabad in Sessions Case No. 40 of
11.12.2002 / 30.11.1999 for offence punishable under Section 396 of the IPC. According to the
prosecution, two more persons were involved in the offence in question viz. Shishu Ram-
Shishu, who expired after the charge was framed and one Bhago, who is absconding. He is
declared absconder.
Appellants in this case were prosecuted for an offence under Sec.396 IPC15, for causing the
death of a farmer by shooting and taking away his tractor but were convicted for an offence
under Sec.30216 r/w 3417 IPC and were sentenced to death. The High Court confirmed the
conviction but reduced the sentence to life imprisonment against which they preferred a Special
Leave Petition (SLP). While the appellants contended that the extra judicial confession was not
proved and the confession of the co-accused which was retracted was not to be considered,
respondent resisted the same. It was held that, only after the charge was proved with the
other evidences, to add assurance to such proof, the confession of the co-accused could be
used. There was no necessity for the accused to travel 30-40 KM and make extra judicial

15
Section 396 in The Indian Penal Code: Dacoity with murder.—If any one of five or more persons, who are
conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be
punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine.
16
Section 302 in The Indian Penal Code: Punishment for murder.—whoever commits murder shall be punished
with death, or imprisonment for life, and shall also be liable to fine.

17
Section 34 in The Indian Penal Code: Acts done by several persons in furtherance of common intention.—
When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons
is liable for that act in the same manner as if it were done by him alone.

48
confession after 4 months from the date of occurrence. The charge was held as not proved and
the appeal was allowed.

2.1.2 RATIO OF THE CASE: In dealing with a case against an accused, the court cannot start
with the confession of a co-accused; it must begin with other evidences adduced by the
prosecution and after it has formed its opinion with regard to the quality and effect of the said
evidence, then it is permissible to turn to the confession in order to receive assurance to the
conclusion of guilt which the judicial mind is about to reach on the said other evidence.

2.1.3 ISSUE: What is the evidentiary value of the retracted confession of a co-accused and
whether it can be used to convict a co-accused?

2.1.4 JUDGEMENT OF THE SUPREME COURT

The Accused-1 Pratham and Accused-2 Pancho, were released on bail by the Supreme Court
and the impugned judgement and order of the High Court was set aside.
Applying the principles to the case on hand, the court found that so far as Accused-2 Pancho is
concerned, except the evidence of alleged belated discovery of certain articles at his instance,
which is already found to be doubtful, there is no other evidence on record to connect him to
the offence in question. When there is no other evidence of sterling quality on record
establishing his involvement, he cannot be convicted on the basis of the alleged extra-judicial
confession of the co-accused as extra-judicial confessions have weak evidentiary value and
Courts look for corroboration from other evidence, whether there are other cogent
circumstances on record to support it. Thus we can say that extra judicial confession is a weak
form of evidence and there should be other corroborative piece of evidence.
Accused-1 Pratham, which in the opinion of the court, was also not credible. Once Accused-1
Pratham's extrajudicial confession is obliterated and kept out of consideration, his conviction
also cannot be sustained because the court has come to the conclusion that the alleged discovery
of articles at his instance cannot be relied upon. There is thus, no credible evidence to persuade
the court to uphold the conviction of Accused-1 Pratham.
In view of the above, the court set aside the impugned judgment and order. Accused-1 Pratham
and Accused-2 Pancho were released on bail. Their bail bonds stood discharged.

48
2.1.5 ANALYSIS OF THE JUDGEMENT OF THE COURT
Now, extrajudicial confession made by Accused-1 Pratham was the main plank of the
prosecution case. It is true that an extrajudicial confession can be used against its maker, but as
a matter of caution, courts look for corroboration to the same from other evidence on record.

In Gopal Sah v. State of Bihar18, the Court while dealing with an extrajudicial confession had
held that an extrajudicial confession is on the face of it is weak evidence and the courts are
reluctant, in the absence of chain of cogent circumstances, to rely on it for the purpose of
recording a conviction. Hence, the court in this case found that the extrajudicial confession of
Accused-1 Pratham did not inspire confidence.

Also there is the Prosecution Witness, Nathi Singh, to whom Accused-1 Pratham confessed
having shot the deceased Kartar Singh with a country made pistol. Witness Inspector Ranbir
Singh also stated that Accused-1 Pratham confessed to him that they had shot dead the
deceased. The above two witness statements, to whom extra-judicial statements were made;
since the confession was made after 5 months to Nathi Singh, this delay creates a doubt about
its credibility. Also, the village of Nathi Singh is about 35-40km away from the village of
Accused-1 Pratham and there stands no reason as to why Accused-1 would do so. Also no
relation between Accused-1 and Nathi Singh has been established. Hence, there stands no
reason as to why the Accused-1 would come and make an extra-judicial confession to Nathi
Singh. It may be stated here that in his statement recorded under Section 313 of the Criminal
Procedure Code19, Accused-1 Pratham has denied that he made any such statement. This
retraction further makes a dent in the alleged extrajudicial confession.

Accused-2 Pancho was arrested on 16/8/1999. According to the prosecution, his statement
resulted in recovery of a country made pistol of .315 bore. The recovery of country made pistol
is made more than about six months after the date of incident. Even though forensic and expert
reports state the bullet fired to be matched to that of the pistol found, there is no evidence as to
whose possession the pistol was for the 6 months after the incident. Belated discovery of these
articles raises a question about their intrinsic evidentiary value.

18
(2008) 17 SCC 128
19
Section 313 in The Code of Criminal Procedure, 1973: Power of the Courts to examine the accused.
48
So the main question which needed to be considered by the Court was that what is the
evidentiary value of a retracted confession of a co-accused?
In Kashmira Singh v. The State of Madhya Pradesh 20 referring to the judgment of the Privy
Council in Bhuboni Sahu v. The King21 and observations of Sir Lawrence Jenkins in Emperor
v. Lalit Mohan Chukerbutty22 this Court observed that proper way to approach a case involving
confession of a co-accused is, first, to marshal the evidence against the accused excluding the
confession altogether from consideration and see whether, if it is believed, a conviction could
safely be based on it. If it is capable of belief independently of the confession, then it is not
necessary to call the confession in aid.
In Haricharan Kurmi v. State Bihar23 the Constitution Bench of this Court was again
considering the same question. The Constitution Bench referred to Section 3 of the Evidence
Act and observed that confession of a co-accused is not evidence within the meaning of Section
3 of the Evidence Act. It is neither oral statement which the court permits or requires to be
made before it as per Section 3(1) of the Evidence Act nor does it fall in the category of
evidence referred to in Section 3(2) of the Evidence Act which covers all documents produced
for the inspection of the court. This Court observed that even then Section 30 provides that a
confession may be taken into consideration not only against its maker, but also against a co-
accused. Thus, though such a confession may not be evidence as strictly defined by Section 3 of
the Evidence Act, it is an element which may be taken into consideration by the criminal court
and in that sense; it may be described as evidence in a nontechnical way. This Court further
observed that Section 3024 merely enables the court to take the confession into account. It is,
not obligatory on the court to take the confession into account. This Court reiterated that a
confession cannot be treated as substantive evidence against a co-accused.
2.1.6 CONCLUSION

20
AIR 1952 SC 159
21
76 Ind App 147
22
38 Cal. 559
23
AIR 1964 SC 1184
24
Section 30 in The Indian Evidence Act, 1872: Consideration of proved confession affecting person making it
and others jointly under trial for same offence.—When more persons than one are being tried jointly for the same
offence, and a confession made by one of such persons affecting himself and some other of such persons is proved,
the Court may take into consideration such confession as against such other person as well as against the person
who makes such confession.

48
The Supreme Court held that confessions of a co-accused aren’t the substantive piece of
evidence and that it can only be used to confirm the conclusion drawn from other evidences in a
criminal trial. The court further stated that the trial court cannot begin on the basis of the
confession of the co-accused to form its opinion in a case. Rather, the courts must analyse all
the evidence which are being adduced, and on being satisfied with the guilt of accused, might
turn to the confession in order to receive assurance to the conclusion of guilt which the court
has reached on the said evidence. Referring to previous apex court verdicts, the court said it is
not obligatory to take the confession into account and that it is the discretion of the court.

48
2.2 KASHMIRA SINGH v. STATE OF MADHYA PRADESH

1952 AIR 159, 1952 SCR 526

2.2.1 CASE IN BRIEF: The appellant Kashmira Singh had been convicted of the murder of
one Ramesh, a small boy aged five, and had been sentenced to death. He was granted special
leave to appeal. Three other persons were tried along with him. They were his brother
Gurudayal Singh, his nephew Pritipal Singh (son of Gurudayal), a boy of eleven, and one
Gurubachan Singh. Gurudayal and Pritipal had been acquitted. Gurubachan Singh confessed
and was convicted. He was also sentenced to death. He has not appealed here.

2.2.2 RATIO OF THE CASE: The proper way to approach a case of this kind is, first, to
marshal the evidence against the accused excluding the confession altogether from
consideration and see whether, if it is believed, a conviction could safely be based on it. If it is
capable of belief independently of the confession, then of course it is not necessary to call the
confession in aid. But cases may arise where the judge is not prepared to act on the other
evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In
such an event the judge may call in aid the confession and use it to lend assurance to the other
evidence and thus fortify himself in believing what without the aid of the confession he would
not be prepared to accept.

2.2.3 ISSUE: How far and in what way the confession of an accused person can be used against
a co-accused?

2.2.4 JUDGEMENT OF THE COURT

The appeal was allowed on the charges of murder, conspiracy and kidnapping and reverses the
findings and sentences on those charges and acquits the appellant of them. However the
appellant was convicted of an offence under S. 201 of Indian Penal Code25, and sentenced to
seven years' rigorous imprisonment.

25
Section 201 in The Indian Penal Code: Causing disappearance of evidence of offence, or giving false
information to screen offender.

48
A number of rulings were cited, including one of the Privy Council, and it was argued that in
those cases persons were convicted of murder on similar facts. However the court did not intend
to examine them because no decision can be a guide on facts. Each case has its own special
circumstances and must be decided on its own facts. For example, in most of the cases cited the
accused was associated with the disposal of the body very soon after the occurrence and at the
scene of the crime. Here, twelve hours had elapsed and the first connection proved with the
disposal is at a place over half a mile distant from where the boy is said to have been murdered.
Hence, herein the appellant was not prosecuted for murder.

2.2.5 ANALYSIS OF THE JUDGEMENT OF THE COURT

A co-accused who confesses is naturally an accomplice and the danger of using the testimony
of one accomplice to corroborate another has repeatedly been pointed out. The danger is in no
way lessened when the "evidence" is not on oath and cannot be tested by cross- examination.
Prudence will dictate the same rule of caution in the case of a witness who though not an
accomplice is regarded by the judge as having no greater probative value. But all these are only
rules of prudence. So far as the law is concerned, a conviction can be based on the
uncorroborated testimony of an accomplice provided the judge has the rule of caution, which
experience dictates, in mind and gives reasons why he thinks it would be safe in a given case to
disregard it.

The Privy Council observed in Bhuboni Sahu v. The King26: "The tendency to include the
innocent with the guilty is peculiarly prevalent in India, as judges have noted on innumerable
occasions, and it is very difficult for the court to guard against the danger. The only real
safeguard against the risk of condemning the innocent with the guilty lies in insisting on
independent evidence which in some measure implicates such accused.

We will examine the reliability of Gurubachan's confession against the appellant. Now there
were some glaring irregularities regarding this confession and though it was safe for the
Sessions Judge and the High Court to act on it as against Gurubachan because he adhered to it
throughout the Sessions trial despite his pleader's efforts to show the contrary, a very different
position emerges when we come to the appellant. The first point which emerges regarding this
is that the confession was not made till the 25th of February 1950, that is to say, not until two
26
(1949) 76 I A.147
48
months after the murder. We also do not know how long he was kept in police custody and it
could be possible that he was not there voluntarily. Also Gurubachan was interrogated several
times and was confronted with Pritipal. Gurubachan was kept for 5 days in the police quarters
and even after the confession was recorded, he stayed in police quarters for a couple of days
and later he was sent to the magisterial lock up.

All this makes it unsafe to disregard the rule about using accomplice testimony as corroboration
against a non-confessing accused. None of the judges who have handled this case has given any
reason why this rule could safely be departed from in this particular case. In the circumstances,
I do not feel that the confession by itself can be used to corroborate the few evidences which
barely point towards the appellant as the murderer.

There are no evidences which connect the appellant to the scene of crime except the confession
of a co-accused and an anticipated intention. The Court could not convict the appellant for
murder on the basis of such poor evidence and hence it convicted the appellant under S. 201 of
IPC and sentenced him to 7 years imprisonment.

2.2.6 CONCLUSION

The Supreme Court in this case issued some conditions which needed to be fulfilled before
taking into consideration the confession of one of the accused against all others.
1. Joint trial: The person who is making a confession and the other accused persons are
being tried jointly.
2. Same offence: All the accused are being tried for the same offence.
3. Confessions: The confession must affect the confessioner as well as the other accused
persons.
Thus the conditions laid down in this case are to be followed by the Courts strictly as this is a
very sensitive issue and involves convictions of innocent people if the confessions of co-
accused are considered as strong pieces of evidence.

48
Dealing with the question relating to admissibility of confessional statement made by an
accused under Section 27 of the Evidence Act, 1872, the Court explained the law by stating that
Section 25 of the Evidence Act provides that no confession made to a Police Officer shall be
proved as against a person accused of any offence. Section 26 provides that no confession made
by any person while he is in the custody of a police officer, unless it be made in the immediate
presence of a Magistrate, shall be proved as against such person. Section 27 is in the form of a
proviso, it lays down how much of an information received from accused may be proved.

The bench of H.L. Dattu, CJ and Arun Mishra, J further explained that for application of section
27 of Evidence Act, admissible portion of confessional statement has to be found as to a fact
which were the immediate cause of the discovery and only that would be part of legal evidence
and not the rest. In a statement, if something new is discovered or recovered from the accused
which was not in the knowledge of the Police before disclosure statement of the accused is
recorded, is admissible in the evidence.27

27
Mehboob Ali v. State of Rajasthan, 2015 SCC 1043
48
 SELVI V. STATE OF KARNATAKA

(2010) 7 SCC 263

I. CASE HISTORY

In the year 2004 Smt. Selvi and others filed the first batch of criminal appeal followed by
subsequent appeals in the year 2005, 2006 and 2007 and 2010 were taken up together by the
honourable bench of Supreme Court via special leave petition on 5th May 2010.

 In this present batch of criminal appeals objections have been raised in respect of instances
where individuals who are the accused, suspects or witnesses in an investigation have been
subjected to these tests without their consent. Such measures have been defended by citing
the importance of extracting information which could help the investigating agencies to prevent
criminal activities in the future as well as in circumstances where it is difficult to gather
evidence through ordinary means. It has also been urged that administering these techniques
does not cause any bodily harm and that the extracted information will be used only for
strengthening investigation efforts and will not be admitted as evidence during the trial stage.28

I. MAIN LEGAL ISSUES INVOLVED

 Whether narcoanalysis, brain mapping, FMRI and polygraph test could be used as a

constitutionally valid method of gathering evidence.

 Whether these evidence gathering scheme result in dilution of constitutional rights such as
the ‘right against self-incrimination under article 20(3) of the Indian Constitution and Section
161(2) of Code of Criminal Procedure, 1973.

 Whether the procedure undertaken be considered violative of “substantive due process”.

 Whether the compulsory administration of any of these techniques is an unjustified

intrusion into the mental privacy of an individual.

 Whether a person is allowed to take voluntary administration of the impugned techniques

in the context of criminal justice, provided that certain safeguards are in place.
28
www.lawctopus.com/academike/critical-analysis-selvi-v-state-karnataka/
48
 Whether the information so sought being inculpatory or exculpatory affect the principles of
protection from self incrimination

II. JUDGEMENT DELIVERED BY THE COURT

In our considered opinion, the compulsory administration of the impugned techniques violates
the ‘right against self-incrimination’. This is because the underlying rationale of the said right is
to ensure the reliability as well as voluntariness of statements that are admitted as evidence.
This Court has recognized that the protective scope of Article 20(3) extends to the
investigative stage in criminal cases and when read with Section 161(2) of the Code of
Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses
who are examined during an investigation. The test results cannot be admitted in evidence if
they have been obtained through the use of compulsion. Article 20(3) protects an
individual’s choice between speaking and remaining silent, irrespective of whether the
subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent
the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue’. The
results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot
be categorised as material evidence.

222. We are also of the view that forcing an individual to undergo any of the impugned
techniques violates the standard of ‘substantive due process’ which is required for
restraining personal liberty. Such a violation will occur irrespective of whether these techniques
are forcibly administered during the course of an investigation or for any other purpose since
the test results could also expose a person to adverse consequences of a non-penal nature.
The impugned techniques cannot be read into the statutory provisions which enable medical
examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A
and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not
feasible in light of the rule of ‘ejusdem generis’ and the considerations which govern
the interpretation of statutes in relation to scientific advancements. We have also elaborated
how the compulsory administration of any of these techniques is an unjustified intrusion into
the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading
treatment’ with regard to the language of evolving international human rights norms.

48
Furthermore, placing reliance on the results gathered from these techniques comes into conflict
with the ‘right to fair trial’. Invocations of a compelling public interest cannot justify the
dilution of constitutional rights such as the ‘right against self-incrimination’.

223. In light of these conclusions, we hold that no individual should be forcibly subjected to

any of the techniques in question, whether in the context of investigation in criminal cases or
otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However,
we do leave room for the voluntary administration of the impugned techniques in the
context of criminal justice, provided that certain safeguards are in place. Even when the
subject has given consent to undergo any of these tests, the test results by themselves cannot
be admitted as evidence because the subject does not exercise conscious control over the
responses during the administration of the test. However, any information or material that is
subsequently discovered with the help of voluntary administered test results can be admitted, in
accordance with Section 27 of the Evidence Act, 1872.

As mentioned earlier, ‘the right against self-incrimination’ is now viewed as an essential

safeguard in criminal procedure. Its underlying rationale broadly corresponds with
two objectives –

firstly, that of ensuring reliability of the statements made by an accused,

and secondly, ensuring that such statements are made voluntarily.

Therefore, the purpose of the ‘rule against involuntary confessions’ is to ensure that

the testimony considered during trial is reliable. The premise is that involuntary statements are
more likely to mislead the judge and the prosecutor, thereby resulting in a miscarriage
of justice. Even during the investigative stage, false statements are likely to cause delays and
obstructions in the investigation efforts.

The distinction between inculpatory and exculpatory evidence gathered during investigation

is relevant for deciding what will be admissible as evidence during the trial stage.
The exclusionary rule in evidence law mandates that if inculpatory evidence has been gathered
through improper methods (involving coercion, threat or inducement among others) then the
same should be excluded from the trial, while there is no such prohibition on the consideration

48
 of exculpatory evidence. However, this distinction between the treatment of inculpatory and
exculpatory evidence is made retrospectively at the trial stage and it cannot be extended back to
the stage of investigation. If we were to permit the admission of involuntary statement on the
ground that at the time of asking a question it is not known whether the answer will be
inculpatory or exculpatory, the ‘right against self-incrimination’ will be rendered meaningless.
The law confers on ‘any person’ who is examined during an investigation, an effective choice
between speaking and remaining silent. This implies that it is for the person being examined to
decide whether the answer to a particular question will eventually prove to be inculpatory
or exculpatory. Furthermore, it is also likely that the information or materials collected at an
earlier stage of investigation can prove to be inculpatory in due course.

III. WHY AND HOW THESE TESTS ARE VIOLATIVE OF PERSONAL LIBERTY

There are several ways in which the involuntary administration of either of the impugned tests
could be viewed as a restraint on ‘personal liberty’.

 The most obvious indicator of restraint is the use of physical force to ensure that an unwilling
person is confined to the premises where the tests are to be conducted.
 Furthermore, the drug-induced revelations or the substantive inferences drawn from
the measurement of the subject’s physiological responses can be described as an intrusion into
the subject’s mental privacy.
 It is also quite conceivable that a person could make an incriminating statement on being
threatened with the prospective administration of any of these techniques. 
 Conversely, a person who has been forcibly subjected to these techniques could be confronted
with the results in a subsequent interrogation, thereby eliciting incriminating statements.
 the contents of the test results could prompt investigators to engage in custodial abuse,
surveillance or undue harassment. 
 We have also been apprised of some instances where the investigation agencies have leaked the
video-recordings of narcoanalysis interviews to media organisations.
 This is an especially worrisome practice since the public distribution of these recordings can
expose the subject to undue social stigma and specific risks. It may even encourage acts
of vigilantism in addition to a ‘trial by media’. 

48
 Hence, the provision that enables Courts to order a person who is under arrest to undergo a
medical examination also provides for the use of ‘force as is reasonably necessary’ for this
purpose. It is evident that the notion of ‘personal liberty’ does not grant rights in the
absolute sense and the validity of restrictions placed on the same needs to be evaluated on
the basis of criterion such as ‘fairness, non-arbitrariness, and reasonableness’.

So far, the judicial understanding of privacy in our country has mostly stressed on the
protection of the body and physical spaces from intrusive actions by the State. While
the scheme of criminal procedure as well as evidence law mandates interference with
physical privacy through statutory provisions that enable arrest, detention, search and
seizure among others, the same cannot be the basis for compelling a person ‘to impart
personal knowledge about a relevant fact’. The theory of interrelationship of rights mandates
that the right against self-incrimination should also be read as a component of ‘personal
liberty’ under Article 21. Hence, our understanding of the ‘right to privacy’ should account
for its intersection with Article 20(3). Furthermore, the ‘rule against involuntary
confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to
serve both the objectives of reliability as well as voluntariness of testimony given in a
custodial setting. A conjunctive reading of Articles 20(3) and 21 of the Constitution along
with the principles of evidence law leads us to a clear answer. We must recognise the
importance of personal autonomy in aspects such as the choice between remaining silent and
speaking. An individual’s decision to make a statement is the product of a private choice and
there should be no scope for any other individual to interfere with such autonomy, especially
in circumstances where the person faces exposure to criminal charges or penalties.

IV. CRITICAL ANALYSIS

But the minority aspect i.e. Privacy and due process has not seemed to have been given as
important a position in this whole judgement although it forms an integral and important part
of it.
The search for effective aids to interrogation is probably as old as man’s need to obtain
information from an uncooperative source and as persistent as his impatience to shortcut any
tortuous path. In the annals of police investigation, physical coercion has at times been

48
 substituted for painstaking and time consuming inquiry in the belief that direct methods
produce quick results. The field of criminology has expanded rapidly during the last few
years, and the demand for supplemental methods of detecting deception and improving the
efficiency of interrogation have increased concomitantly.
However the minority aspect covers basic elements of constitutionality like privacy and due
process and from the judgement we find that lesser emphasis has been laid on these aspects.
We agree and consent upon both the contentions and the path taken to reach the rationale
however a little more emphasis of privacy in the judgement would have been really helpful
in balancing the reason. The reason being the interpretation of 20(3) has been time and time
again been challenged by several high court. The second reason being that the grounds of
privacy gets established in this case beyond reasonable doubt.  The judgement at its initial
stage had covered how each of these test violate the principles of Privacy. But in the end gets
diverted towards self-incrimination.
V. ANALYSIS OF JUDGEMENT
The judgement begins with a full fledged description of the concerned different kinds of test
mentioned herein, their uses, and limitations and last but not the least its standing in front of
the eyes of law. Justice Balakrishnan in his judgement has taken into reflected foreign
precedents applicable to these tests before reaching to a conclusion. The reason for using
foreign cases is due to absence of substantial case laws or statutes that expressly deal with
this topic. Each of these test were scrutinized in relation to its constitutionality in different
constitutions especially that of U.K. and U.S. courts which have persuasive value in the
Indian Courts. There were high court cases which had justified the use of such tests
however The Supreme Court rejected these arguments.

VI. VIEW POINT OF VARIOUS HIGH COURTS

The High Courts had used various arguments to uphold the constitutionality of
narcoanalysis and other tests under Article 20(3). For example, the Karnataka High Court
equated the compulsion requirement of Article 20(3) with ‘duress’ involving serious
physical harm or threat, and found that the mild pain from the administration of an injection
necessary to induce the narcoanalysis test did not reach the requisite level of hurt to

48
 constitute compulsion.Using a similarly narrow view of ‘compulsion’, the Madras High
Court found that because compulsion generally means using physical or other so-called
third degree methods of interrogation, even though a subject may be forced to undergo
narcoanalysis in the first place, the statements made during the resulting tests themselves
are voluntary.Further, the High Courts of Karnataka, Bombay and Delhi found that the
administration of narcoanalysis itself could not violate Article 20(3) because statements
could not be known to be incriminating until after the administration of the test. However
these judgements mentioned above were considered to be too mechanical and baseless and
as quoted “given without application of mind” by the Supreme Court. It was landmark
initiative by the bench to hold the tests of this nature unconstitutional. It came off as  major
blow to investigating agencies, when the Supreme Court held the use of narco analysis,
brain-mapping and polygraph tests on accused, suspects and witnesses without their consent
as unconstitutional and violation of the ‘right to privacy’.
VII. SCOPE OF UNANSWERED QUESTIONS

The judgement despite the remarkable decision and brilliant rationale behind the same
leaves some very obvious unanswered questions. The first and most important is that what
kinds of mandate will the judgment have on the investigative bodies and how prudently will
it be followed. The judgment has left scope for these tests of this sort to be administered if it
is done voluntarily but that also leads to scope for problems too. . The Supreme Court left
open the possibility for abuse of such tests when it provided a narrow exception, almost as
an afterthought, namely that information indirectly garnered from a “voluntary administered
test” – i.e. discovered with the help of information obtained from such a test – can be
admitted as evidence. While this exception is narrow in the sense that it can apply only
when a fully informed individual gives truly voluntary consent to undergo any of the tests,
the granting of the exception does not harmonize with the Court’s clearly stated belief that
information obtained even during a voluntarily administered test is not voluntarily given.
The exception, based on the assumption that voluntarily taken tests will be truly
“voluntary”, is problematic.

The power of the police to coerce suspects and witnesses into “voluntarily” doing or not
doing certain things is well-known. It is highly probable that the same techniques will be

48
applied to get suspects or witnesses to “agree” to narcoanalysis and other tests, resulting in a
mockery of the essence of the Supreme Court’s judgment.

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COMPARITIVE LAW

Situation in England

The Common Law Through to the Police and Criminal Evidence Act In England, the common
law provided that anything incriminating said by the accused to a person in authority was not
admissible unless the prosecution could show that it was voluntarily made. The common law
has insisted on an exclusionary rule rather than allowing oppression or inducement to go to the
weight of the evidence. The House of Lords has described the voluntariness test of the
confessions law as perhaps the most fundamental rule of the English criminal law. The
confessions rule is now regulated by section 76(2) of the Police and Criminal Evidence Act,
1984 (PACE) which reads: 76(2) If, in any proceedings where the prosecution proposes to give
in evidence a confession made by an accused, it is represented to the court that the confession
was or may have been obtained (a) by oppression of the person who made it; or (b) in
consequences of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in consequences thereof,
The court shall not allow the confession to be given in evidence against him except in so far as
the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid.

Section 82(1) of PACE defines confession as including “any statement wholly or partly adverse to the
person who made it”. Therefore there are two distinct rationales to exclude confessions: oppressive
methods of the police and reliability. Oppression arises when the police engage in conduct which so
affects the mind of the defendant ‘that his will crumbles and he speaks when otherwise he would have
stayed silent”. The judge decides this at a voir dire hearing from which the jury is excluded to prevent
prejudice to the defence should the confession be held inadmissible. If the judge admits the confession,
the defence can persist with the allegations of oppression or improperly obtained and this can be taken
into account when weighing the evidence. In the recent case of R v Mushtaq, the majority of the House
of Lords had found that the defence had not discharged the evidential burden which the defence must
meet before the prosecution is called upon to defend the admissibility of a confession. The trial judge’s
charge to the jury was “it is for you to assess what weight should be given to the confession. If you are
not sure for whatever reason that the confession is true, you must disregard it. If on the other hand, you
are sure that it is true, you may rely on it even if it was or may have been made as a result of oppression
or other improper circumstances.”The majority of the Court held that the judge must direct jurors that if

48
they decide that the confession was, or might have been obtained by oppression or improper means,
despite what the judge might think, the jury must disregard the confession even if they believe the
confession to be true. The Court looked at the reasons for the confession rule such as no one should be
compelled to incriminate himself, potential unreliability and control of improper police conduct. Not
only the judge, but also the jury must avoid acting incompatibly with the right to fair trial and the right
against self-incrimination.

Situation in the United States

Confession Rule – Leading up to the Miranda Decision As previously mentioned in the

history section, the voluntariness rule was first introduced in the United States in 1897 by the
Bram case. The definition of “voluntariness” is much more police-friendly today than it was
back in 1897. The modern involuntary confession rule looks at the totality of the circumstances
in determining whether the suspect’s will was overborne, unlike Bram where a confession
would be inadmissible if “extracted by any sort of threats or violence, nor obtained by any
direct or implied promises, however slight”.

For a number of complex reasons, this voluntariness test evolved into one rooted in the due
process clause of the Fourteenth Amendment of the U.S. Constitution in the 1930s, 103
Pattenden Godsey, appropriately called the “due process involuntary confession rule”.

As the Court described: “The ultimate test remains… the test of voluntariness. Is the confession
the product of an essentially free and unconstrained choice by its maker. If it is, if he has willed
to confess, it may be used against him. If it is not, if his will has been overborne and his
capacity for self-determination critically impaired, the use of his confession offends due
process”.

The due process involuntary confession test requires the court to assess the totality of all the
surrounding circumstances. This has included both the characteristics of the accused, such as
age, education, intelligence, and the details of the interrogation, such as whether the accused
was informed of his or her rights, length of detention or interrogation, whether force was used
or other ill-treatment. The due process test focused primarily on the suspect’s state of mind. The
due process involuntariness rule proved to be difficult to apply, and by mid-1960s the Court
was looking at a substitute doctrine. The Miranda decision was quite a departure from the past

48
case law.112 The Supreme Court focused not on the due process and voluntary confession rule
but rather on the self-incrimination clause and compelled statements. The Miranda case held
that the mere act of custodial interrogation constitutes compulsion, being interpreted very
broadly, and is an inherently coercive atmosphere.To address the inherent coercive atmosphere,
the Court established the Miranda warning which allowed police to permissibly interrogate
suspects in custody. The police must inform the suspect of the right to remain silent, the
warning that anything said can and will be used against the individual in court, the right to have
counsel present before interrogation and at the interrogation, and the right to have counsel
appointed if the person is indigent.

As Godsey summarized, the Court was of the opinion that such warnings would dispel the
inherent atmosphere and ensure that the suspect would no longer feel pressure and be
compelled to confess.Stated another way, any statement taken without the suspect knowing of
his or rights would be tainted from an objective point of view and therefore is inadmissible.
Some see the Miranda case as returning the focus of confession law back from the due process
clause to its rightful home in the self-incrimination clause, replacing the involuntary confession
rule with a new objective test for compulsion under self incrimination clause.

However decisions after Miranda illustrate that the voluntariness test was allowed to creep back
into confession law. This resulted in confusion as to which of the underlying rationales for the
confession rule they were relying on.29

29
http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/ES%20PAPER%20CONFESSIONS
%20REVISED.pdf
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 CONFESSIONS UNDER TADA & POTA

Need: The lack of a consistent policy backed by serious research and public debate remains a
crucial drawback with counter-terrorism legislations like POTA & TADA in India. Political
expediency and the fulfillment of populist pre-election promises and postures, and not well-
considered security concerns, This is precisely the reason and purpose behind the acceptance of
the Unlawful Activities (Prevention) Amendment Ordinance, 2004,by Parliament as an Act
without much debate and no discussion whatsoever on the contents of its predecessor, POTA30.

Constitutionality of Custodial Confessions

One of the most controversial aspects of past counterterrorism laws – both TADA and POTA –
has been the admissibility of a confession made to a police officer. The relevant part of Sec. 32
(1) of POTA31 and Sec. 15 of TADA were deliberate departures from the ordinary evidence
laws in India. This showed how these laws had a self-contained scheme for recording the
confession of an accused and its admissibility in his trial32.

These very conflicting provisions of the Evidence Act and the Code 33, which Section 32 of
POTA aimed to override or preclude was the basis for its constitutional challenge of these anti-
terrorist laws. Section 162 of the Code further reinforces these prohibitions. It relates to any
statement recorded during an investigation and mandates that no statements so recorded by a
police officer, if reduced in writing, be signed by the person making it, and that the statement
shall not be used for any purpose save as provided in the Code and the Evidence Act. The ban
imposed by Section 162 applies to all statements whether confessional or otherwise, made to a
police officer, whether by an accused or not during the course of an investigation34.

30
The Prevention of Terrorism Act, 2002 (Act no. 15 of 2002) – referred to as POTA.
31
Notwithstanding anything in the Code 12 or in the Indian Evidence Act, 1872 (1 of 1872), but subject to the
provisions of this section, a confession made by a person before a police officer not lower in rank than a
Superintendent of Police … shall be admissible in the trial of such person….’
32
State v Nalini, (1999) 5 SCC p. 253, pp. 404-405, p. 575
33
Section 25 & Section 26 of The Indian Evidence Act, 1872.
34
Sec. 162: Statements to police not to be signed: Use of statements in evidence. – (1) No statement made by any
person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed
by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise,
or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or
trial in respect of any offence under investigation at the time when such statement was made…
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 In Kartar Singh it was argued that such a procedure (in this case, as prescribed by the TADA
Act, 1987):

1. Leads to invidious discrimination (between TADA and non-TADA offenders) and thus
such a classification is arbitrary and unreasonable35.

2. Is oppressive and violates the principle of just and fair trial offending Article 21 of the
Constitution36.

A clear stand was taken, that presumption against the validity of custodial confessions stands
rebutted only in extreme and grave times; only when existing laws fail to effectively tackle or
successfully address pressing dangers to society and the nation.

Cooling Time

This is a judicial concept introduced in some decisions but stands unrecognized by POTA, or
its predecessor, TADA.It raises the issue whether there should be a time gap between the
administration of the caution and the recording of the confession. Moreover, if so, what should
be the period or length of such a time gap? The concept seems to have arisen from the belief
that the accused should be granted some time "to coolly think over whether he wanted to
voluntarily make a confessional statement despite knowing the consequences thereof."

In other words, once granted, the cooling time has to be reasonable. It is for the officer to
decide what would be reasonable, depending on the facts and circumstances of the case but "it
cannot be mere farce for the sake of granting time37."

35
Coming to the distinction made in TADA Act, grouping the terrorist and disruptionists as a separate class of
offenders from ordinary criminals under the normal laws and the classification of offences under TADA Act as
aggravated form of crimes distinguishable from the ordinary crimes have to be tested and determined as to whether
this distinction and classification are reasonable and valid within the term of Art 14 of the Constitution.
36
‘The contention based on Article 21 was linked to the fact that the TADA procedure allowed confessions made
to a police officer admissible in total contradistinction to the existing criminal procedure under the Evidence Act
and the Code, and thus pleaded that this was unfair and unjust as against the "procedure established by law’ clause
of Article 21 of the Constitution. This would expose the accused under police custody subjected to ceaseless and
dastard coercion and physical and psychological inhuman treatment by investigating agencies.’
37
Devender Pal Singh v State of NCT of Delhi, (2002) 5 SCC, p. 234.
48
In the same case, the Court held "in the facts and circumstances" that the grant of half an hour
as cooling time was unreasonable38. Where an officer deposed in court that, as a matter of
practice, he granted five minutes to any accused produced before him and after expiry of these
minutes if the accused still wanted to make a confession he used to proceed and record the
statement, the Court declared the practice adopted by the officer to be illegal39.

Sufficient time being given to the accused for reflection before making a confession, merely
because it was recorded a day or so before the police remand was to expire would not make it
involuntary40.

Confession under POTA & TADA

Although Section 15 of TADA and Section 32 of POTA dealt with confessions, nowhere in the
Acts is the term ‘confession’ defined, neither does the Evidence Act offer a definition. It has,
however, been held by the Court that the judicial principles enunciated by the courts concerning
the meaning and content of ‘confession’ under the Evidence Act shall apply to the TADA.
According to the Court, a ‘confession’ has either to be an express acknowledgement of guilt of
the offence charged or it must admit substantially all the facts which constitute the offence.
The Court must have a proper confession before it and not a merely circumstantial narrative or
information which could be incriminating41. According to both the Acts, only a confession
made before ‘a police officer not lower in rank than a Superintendent of police’ is valid42.

Voluntary and True Confessional Statement

‘Voluntary’ means that the accused makes the statement "out of his own free will inspired by
the sound of his own conscience to speak nothing but the truth"; it should not be the "result of
any tutoring, compulsion or pressurization."

38
Gurdeep Singh v State (Delhi Admn.), AIR 1999 SC 3646,
39
On controversy as to whether these guidelines were mandatory or directory, see, Lal Singh v State of Gujarat,
AIR 2001 SC 746, 757; S.N. Dube v N.B. Bhoir, (2002) 2 SCC, p. 254 & 287.
40
Bharatbhai v State of Gujarat, AIR 2002 SC, p. 3620 & 3631
41
Nazir Ahmad Bhatt v State of Delhi, (2002) 1 SCC, p. 674 & 677.
42
Simon v State of Karnataka, (2004) 1 SCC, p. 74, pp. 81-82.
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Section 15 (2) of the TADA Act 43 required that the "police officer shall not record such
confession unless upon questioning the person making it, he has reason to believe that it is
being made voluntarily44."

This meant that Section 32 does away with the requirement that a confession be voluntary? The
Court in the POTA case cleared any doubts – if these ever existed: "It is settled position that if a
confession was forcibly extracted, it is a nullity in law. Non-inclusion of this obvious and
settled principle does not make the Section invalid".

Thus, it is clear, that only voluntary confessions are acceptable by law. This is mandated by
Article 20 (3) of the Constitution and Section 24 of the Evidence Act. This very principle was
enforced by Section 15 of the TADA Act read along with Rule 15 of the TADA Rules and its
successor POTA reinforces it in Section 32. The wordings in TADA and POTA may vary, but
the judicial principles enunciated in the cases relating to what constitutes a voluntary confession
under TADA cannot be denied application when interpreting POTA’s Section 32. The right to
remain silent, not to be compelled or induced to make a confession and that a confession be
recorded in an atmosphere free from threat or inducement have long been accepted as
requirements of a free and voluntary confession.

Whenever an accused challenges that his confessional statement is not voluntary, the initial
burden is on the prosecution to prove that requirements warranted by the counterterrorism law
have been complied with. Once the prosecution has fulfilled its initial duty the burden shifts to
the accused. Then it is for the accused to show and satisfy the court that the confessional
statement was not made voluntarily. The prosecution is not required to show why the accused
wanted to make the confessional statement.

43
As compared to this, POTA, makes no mention as to the voluntary nature of the confession but provides that:

a. The accused has a right to remain silent (Sec. 32 (2) proviso),

b. The police officer shall not compel or induce the accused to make any confession (Sec. 32 (2) proviso);
and

c. The confession shall be recorded in an atmosphere free from threat or inducement (Sec.32 (3))
44
As per Rule 15 (3) (b) the memorandum to be signed and attached by the police officer at the end of the
confession had to, inter alia, included the statement "I believe that this confession was made voluntarily."

48
Under Section 114 of the Indian Evidence Act, there is a statutory presumption that, when an
official act is proved to have been done, it will be presumed to have been regularly performed.

Atmosphere for recording & Language of Confession

Though the specific requirement that ‘the confession shall be recorded in an atmosphere free
from threat or inducement’ (POTA Section 32 (3)), did not form a part of the TADA Act or
Rules, it was however brought into effect indirectly as forming one of the constituent elements
of the overall concept of a ‘voluntary confession’ in Gurdeep Singh v. State (Delhi Admn.)45

To avoid contentious situations, POTA prescribes that the confession shall be recorded in the
same language in which the person makes it (Section 32 (3)), and leaves no other options as
provided by TADA. It could be argued that this takes care of any error or manipulation that
may creep into the confession through the process of interpretation. As the confession has to be
recorded by an officer not lower in rank than a Superintendent of Police and the confession has
only to be recorded in the language in which it is made, this could lead to administrative
difficulties for the Police as well as unwarranted prolonged detention for the accused.

Recording of Statement

The law provides that the confessional statement shall be recorded "either in writing or any
mechanical or electronic device like cassettes, tapes or soundtracks from out of which sound or
images can be reproduced" (Sec.32 (1) POTA). This is the verbatim replication of the relevant
provision in the TADA Act (Section 15 (1)), except for the addition of the word ‘electronic’.
According to both these provisions only a police officer not lower in rank than a Superintendent
of Police can record the confession.

45
(2000) 1 SCC 498
48
 Conclusion

On a concluding note it would be apt to state that the importance of confession can never be
undermined for the purposes of a criminal trial. Confession under the Criminal Procedure Code,
1973 has many facets to it. It has a key value in the Criminal Justice System, and therefore the
sanctity of the authenticity of confessionary statements be maintained and the constant process
of evolvement of new forms and mechanisms of retracing confessionary evidence, shall well be
aligned in the mainstream provisions of the existing Procedural laws and the entire evidential
jurisprudence in the country. In India, the importance and the sacrosanct of the confession is all
the more important for the reason that the Law enforcing agency is the same as the investigating
agency is both vested in the police. So at times the over enthusiasm and the anxiety of the
police agency is reflected in their infliction of forceful means and resorting to the use of third
degree violence for the purposes of the retracting and bringing out the confession out of the
accused persons in custody or the one’s taken on police remand.

The Criminal justice system in India in the recent times is reflecting stances of transition and
change where many new techniques and scientific tools for the purposes of extracting the
exclusive information stored in the minds of the accused in relation to the commission of the
crime is traced by the use of new techniques like Brain Mapping, use of lie detectors, truth
serums, DNA Fingerprinting and also the highly debated Confessional Statement under the
media or the popularly called the Media Trial. This raises the very obvious concerns of the
vanguard of the Constitutional Provisions and safeguards as under Articles 20(3), 21, 14 and
others. The important pertinent question before the various learned High Courts and the
Hon’ble Supreme Court in India is that what would be the legal status of the confession
statement arising out of the techniques above mentioned, when the person has no control over
what he is saying and though the use of unfailing, accurate technologies the brain and the
related information is read through. This also arouses the obvious judicial concerns of the
evidentiary provisions and the level or degree of corroboration for making the confessions as
obtained above to be able to be admitted for the purposes of legally acceptable and admissible
piece of evidence in the courts.

The court has taken a strictly clear stand on the point that the standards of ‘confessions’ have to
48
be kept as uniform for all the criminals, be they the ordinary criminals or the recidivists under
the popular counter terrorism laws, the method, mode and the standards of the Confession
collection and confession appreciation cannot be different for criminals, which is well reflected
in the repealing of POTA and TADA as an aftermath of deliberations and debates.

It seems that the boundaries and the scope of the Evidence and more importantly the value of
Confessions, be it that of the accused or the star witnesses, co- accused etc have become highly
important in order to prevent the misuse and the miscarriage of the justice under the present,
relevant provisions of the Indian Evidence Act, 1872, like happened in the instance of Zaheera
Sheik, a prime witness in Best Bakery Case where the retraction in the confessions of the prime
witnesses reflected the gross violation and undermining of the provisions of the Criminal
Procedure Code 1973 and have reflected how the provisions of these traditionally enacted
procedural laws will leave the entire “Confession” and its impact of the Criminal Justice
System as redundant, if the new emerging trends and provisions are not assimilated and
incorporated in the present Evidence Appreciation as under the Criminal Procedural Laws of
the Country.

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 BIBLIOGRAPHY

REFERRED BOOKS

 Tandon M.P., Indian Evidence Act, 1872, (Faridabad : Sri Sai Law Publication), 2006

  Dhiraj Lal & Ratanlal, TheLaw of Evidence,(Nagpur : Wadhwa & Company), 2008

 Singh Avtar, Priniciples of the Law of Evidence, (Allahabad : Central Law

Publications), 2007

 M.L Singhal, Sir John Woodroffe and Syed Amir Ali, Law of Evidence- Volume IV
(Allahabad: Law Book Company Private Limited, 1993
 Batuk Lal,The law of evidence, (Central law agency), 2016

WEBSITES

 http://icclr.law.ubc.ca/sites/icclr.law.ubc.ca/files/publications/pdfs/ES%20PAPER
%20CONFESSIONS%20REVISED.pdf
 http://shodhganga.inflibnet.ac.in/bitstream/10603/7860/12/12_chapter%205.pdf
 http://www.lawctopus.com/academike/confessions-under-pota/
 legalperspectives.blogspot.com/2010/05/narco-analysis-test-without-consent-of.html
 www.judicialcompetitiontimes.in/LeadingCases/.../19?...selvi-v-state-of-karnataka-air.
 www.lawctopus.com/academike/critical-analysis-selvi-v-state-karnataka/

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