PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO CONSTITUTIONAL REALITIES

Author(s): Vikramjit Reen

Source: Journal of the Indian Law Institute , January-March 1996, Vol. 38, No. 1
(January-March 1996), pp. 90-100
Published by: Indian Law Institute

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90

PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO

CONSTITUTIONAL REALITIES

I Introduction

IT HAS been observed by Justice Frankfurter that "more than one studen
society has expressed the view that not the least significant test of the quali
civilisation is its treatment of those charged with crime, particularly with offen
which arouse the passions of a community".1 This is equally true of the terr
crimes where the accused may represent a value outside the legitimate "v
choice" of that society. Let us in this context examine a select area of eviden
methods utilised to adjudicate and pronounce guilt - a method arguably never see
so far in any jurisdiction and hopefully will never be presumptive confessi
They are unique to Indian jurisprudence, the prime examples being sections
and ( d) of the Terrorist and Disruptive Activities (Prevention) Act, 1987.3

II Confessions, presumptive confessions and constitutional doctrines

Out of the many, one of the evidentiary methods to arrive at proof of guilt
an accused is to let him have his say, i.e., by means of a confession. The mo
of the accused's impelling reasons to confess apart, what more authentic re
struction of the commission of the offence can be there than an accurate descri
tion by the accused himself. Indeed a confession is the 'best evidence'4 - t
illusory conceptual standard which every criminal justice system seeks. How
even the utopia of confession is tempered by stark reality, which is why co
zealously guard against the spectre of threat, coercion and involuntariness
confession.
On this attempt to seive the truth from the untruth depends the liberty of an
individual and the acid test of civilised society. Any attempt to take away this
truth finding function of the courts by means of presumptions affecting the
probative value of confessions would be arbitrary and therefore unconstitutional.
It is easy to be cynical5 but the rule of law must prevail for continued societal
functioning. As the Supreme Court has cautioned :

1 .Irvin v. Dowd, 6 L.Ed. 2d 751 at 760 (1961).

2. 'Presumptive Confession' is a term coined to describe an evidentiary device of law which uses
a confession as the fact proved to mandate an inference of the fact presumed. It is nothing but a
presumption basing itself on a confession as its starting point for an inference. The species of 'Presump-
tive Confession' under review in this paper mandate an 'inference of guilt' presumed on the basis of
certain kinds of confessions being proved. They are burden shifting presumptions. See, infra note 37.
3. See, s. 21 of Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA), and s. 3 as
referred to in s. 21 .
4. Best Evidence rule means that the production of evidence requ;res the best evidence of which the
case in its nature is susceptible.
5. Though one may not agree with this formulation, an author makes a stinging criticism against the
Supreme Court. See, K. Balagopal, "In Defence of India : Supreme Court and Terrorism". Economic
and Political Weekly, vol. XXIX, no. 2054 at 2057 (1994).

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1 996] PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO REALITIES 9 1

[W]e state that there should be no breach of procedure and the accepte
norms of recording the confession which should reflect only the true and
voluntary statement and there should be not room for hyper criticism th
the authority has obtained an invented confession as a source of proo
irrespective of the truth and creditability as it could ironically be put tha
when a Judge remarked 'Am I not to hear the truth', the prosecutio
giving a startling answer 'No 'Your Lordship is to hear only the evi-
dence'.6

This dichotomy between 'real evidence' and 'technical evidence' spells

difference between truth finding by courts and injustice through evidenc
The next best to a solely self-inculpatory confession by the accused is t
a participant to a crime-confession of an 'accomplice' who becomes co-ac
when tried jointly with the accused.7 In the same vein by stricter requiremen
proof and circumspection the confession of the co-accused is accepted.
As society evolves, so does crime gain in strength,8 and the law striv
evolve effective counters to it. Nevertheless, unlike the British Parliame
sovereignty of the Westminster model, the Indian Parliament is bound b
constitutional mandates of article 13(2). 9 So also is the President consisten
his oath of office under article 60, to uphold, preserve and defend the Consti
No Bill shall be signed into law without previous review to ensure that it
deleterious impact on fundamental rights.10 Therefore, the state is manda
to disregard the requirement of a "glow of principle" in legislation, as enu
by Cardozo.11 This aspect seems lacking in certain enactments which tend to r
confession to the presumptive standard of complete 'proof of guilt' unless
wise proven.12 Their constitutionality seems suspect in as much as they
violate the basic right to fair trial implicit in article 21 13 and the 'bro
omnipresence' of a duty of 'non-arbitrariness' through article 14. 14 They
be justified on the grounds of difficulty of proof of terrorist offence
prosecution cannot resort to unconstitutional 'means' justifying the 'en
These species of statutory presumptions would render the constitutional i
fair trial into an illusion.

6. Kartar Singh v. State of Punjab, (1994) 3 S.C.C. 569 at 680.

7. See, s. 30, Indian Evidence Act 1872.
8. "When the forces of virtue rise one foot, the forces of vice rise ten feet." (Chinese proverb).
9. This is the essential difference between 'Value Choice' and 'Policy Control' in Britain and India.
10. This has not been the manner of exercise of power so far. To help the President to uphold the
letter and spirit of the Constitution a reference under art. 143 to the Supreme Court is provided. In
addition the President may assign such duty of review to the Attorney General under art. 76 (2) read
with art. 53(1).
1 1. Benjamin N. Cardozo, Nature of the Judicial Process 92-3.
12. Supra note 3.
13. Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248.
14. See, id. at 284; see also, E.P. Royappa v. State of T.N. , A.I.R. 1974 S.C. 555 at 583.
15. Under art. 14 read with art. 21, the state shall not deny equality before law nor impinge on the
liberty of the individual through unfair procedure.

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92 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

In this arena of presumptive devices in the law,

experience is worth looking at. The similarity of proce
right to fair trial implicit in article 21 is striking; its
context to test presumptions cannot be denied.16 In this c
that the presumption of innocence is at the foundation
common law jurisdictions and is "the undoubted law,
tary".17 'Although not [expressly] articulated in the C
component of a fair trial'.18 Hence by incorporating t
due process' into the right to a fair trial under articl
innocence acquires a constitutionally protected status in
islatively overturning this presumption of innocence
evidence of very weak probative value (as recognised b
against constitutional mandates. To arrive at a clear und
of prejudice caused to the concept of fair trial let us
probative value in the law of evidence, of a confession,
a police officer' and that of a confession 'of a co-accu

Ill Law and practice relating to confessions

(1) General
The word 'confession' has nowhere been defined in the Indian Evidence Act 1872.
It has been mainly construed through judicial dicta. The various types of confes-
sions known to evidence law in general, can be summed up as :

(z') Confession before judicial official (judicial confession).

(zz) Confession before police officer (police confession).

{iii) Confession before 'person other than police officer' (Extra-judicial

confession' not before police officer or judicial officer in his official
capacity).

(zv) Confession of co-accused.

(v) Presumptive confessions (confessions being the fact proved upon which
a presumption is based).21

16. See, Vikramjit Reen, "Presumptions : Irreverence and Irrelevance", 36 J.I. L.I. 247 (1994); see
also, Maneka Gandhi, supra note 13 at 338; Sunil Batra v. Delhi Administration, (1978) 4 S.C.C. 494
at 518, 541; Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684 at 730 (per Sarkaria J.).
17. Coffin v. United States, 156 U.S. 432 (1895).
18. Estelle v. Williams, 48 Ed. 2d 126 at 130 (1976).
19. This argument has never been raised before Indian courts though, under criminal law, the courts
have been applying it in the form of 'benefit of doubt' rule; see, State ofU.P. v. Krishna Gopal, A.I.R.
1988 S.C. 2154 at 2160-1.
20. Ss. 24, 30, Indian Evidence Act 1872.
21 . Supra note 2.

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1996] PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO REALITIES 93

Of these, the most relevant for the present discussion are the latter three whi
need to be enumerated in detail. Before so proceeding, it would be useful
exactly delimit the contours of the word 'confession' as construed in evid
law. The law was unsettled in the earlier times. Till 1939, Stephen's definitio
Confession in his Digest of the Law of Evidence was generally accepted. T
states :

A confession is an admission made at any time by a person charged wit

crime, stating or suggesting the inference that he committed the crime.22

However, the point was settled by Lord Atkin by expressly rejecting the a
definition. He observed :

[N]o statement that contains a self-exculpatory statement can amount to

a confession, if the exculpatory statement is of some fact if true would
negative the offence alleged to be confessed. Moreover, a confession
must either admit in terms the offence, or at any rate substantially all the
jatte which constitute the offence . An admission of a gravely incriminat-
ing fact is not of itself a confession ..."23

It has been further held that the acid test which distinguishes a confession
from an admission is that where conviction can be based on that statement alone,
it is a confession and where some supplementary evidence is needed to authorise
a conviction, then it is an admission.24 Therefore, confession is not a mere
admission (as Stephen opines), but stands at a different footing.

(2) Extra-judicial confession

Judicial confessions are those which are made before the magistrate or in
court in the due course of legal proceedings. Extra-judicial confessions on the
other hand, are those made by the accused elsewhere than before a magistrate or
court in their official capacity.
The doctrine that extra-judicial confessions, uncorroborated by any other
circumstance, are of themselves sufficient to justify a conviction, has been
consistently doubted by courts. The extra-judicial confession has to be proved like
any other fact and the standard of proof is the same as of any other fact in a
criminal trial. It may be noted that usually extra-judicial confessions are intro-
duced by the prosecution only when there is no direct, cogent and reliable
evidence available to connect the accused with the crime. Judicial dicta has
wondered why it is a very rare occurrence that such confession is adduced when
accused's involvement in the crime is satisfactory; there being no plausible
explanation as to this impulse to confess being stronger in these so-called blind
cases only.25

22. See, Pakalanarayan Swamy v. King Emperor, A.I.R. 1939 P.C. 47 at 52.
23. Ibid.
24. Ram Singh v. State , cf : N.L.S.I.U., Cases and Materials on Evidence.
25. Nirmal Singh v. State of Himachal Pradesh, 1987 Cri. L.J. 1644 at 1650 (per T.R. Handa J.).

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94 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

The courts are very circumspect in relying on extra-judic

they are unreliable evidence. Such confession will be a p
until it withstands certain tests, as to whether -
(/) the witness proving the confession is generally cre
(/'/') his relation with the accused is such that the latter c
(iii) there is any motive for the witness to implicate th
(iv) the confessional statement is consistent with oth
stances brought on record }6
In light of this requirement of consistency, conviction ca
on extra-judicial confessions as the 'presumptive confes
suggest. Furthermore, in order to be a reliable evidence, a
sion must pass the test of reproduction of exact words of
or motive for the said confession.27
Hence, by making extra-judicial confession a 'proof of gui
confessions snap this 'thread' of judicial discretion to sif

(3) Confession of co-accused

The Indian Evidence Act 1872 has made a radical departure by allowing
courts to consider the confession of a co-accused under section 30. The raison d'
et-re of the section seems to be that a confession of the co-accused's own guilt
besides implicating the accused, affords some sort of sanction in support of the
truth of this confession against others as well as himself. The confession of the co-
accused is one of the weakest possible evidence against the accused.
Indeed, it is not "evidence" in the true sense as it does not come within
section 3 of the Evidence Act. It is not required to be given on oath, nor in the
presence of the accused and cannot be tested by cross-examination. Section 30
merely provides that the court may take the confession into consideration ; in that
remote sense it is evidence for courts to act on, but the section does not say that
it amounts to proof Judicial dicta has established that these confessions are only
one element in the consideration of all proved facts of the case, merely to be
weighted with other evidence.28
Hence, the confession of a co-accused is not substantive evidence against the
other accused persons at the trial but can only be used for lending reassurance if
there is other substantive evidence to be utilised or acted upon.29

(4) Presumptive confessions

Contrary to the judicial principles which were crystallised over years of

experience, these are novel confessions-negating judicial wisdom and discretion

26. Prabhakar v. State, 1973 Cri. L.J. 246 (Bom.);

Ramchandra v. U.P. State, A.I.R. 1957 S.C. 381;
Ratan Gond. v. State of Bihar, A.I.R. 1959 S.C. 18; Thimma v. State of Mysore, A.I.R. 1971 S.C.
1 871, relied on.
27. See, Heramba Brahma v. State of Assam, A.I.R. 1982 S.C. 1595.
28. See, Bhuboni Sahu v. King, A.I.R. 1949 P.C. 257; Kashmira Singh v. State ofMadhya Pradesh,
A.I.R. 1952 S.C. 159.

29. Param Hans Yadav v. State of Bihar, (1987) 2 S.C.C. 197 at 201.

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1 996] PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO REALITIES 95

to the extent that probative force of confessions is raised to a high un

standard 'proof of guilt'.
Theoretically, though conviction can be based on an extra-judicial conf
if it is made truly and voluntarily,30 judicial dicta, not without good reason,
on corroboration.31 An extra-judicial confession is a weak type of eviden
is not made before a court. Unless there are compelling reasons, cogent
corroborative material it cannot be believed.32
Hence by making an extra-judicial confession 'proof of guilt', the pre
tive confessions negate judicial practice. In absence of these judicially e
safeguards, there is a high danger of prejudice being caused to the accu
besides the unconstitutional curtailment of truth finding function of courts.
It has been expressely held in cases of confessions by co-accused that
the other evidence adduced against an accused person is unsatisfactory, a
prosecution seeks to rely on such confession, the presumption of innocen
basis of criminal jurisprudence) compels the court to render the verdict t
charge is not proved, and the accused is entitled to benefit of doubt.33
The presumptive confession is a clear contrast. Its logical result is that wh
the accused fails to prove his innocence, despite other evidence of the prosecu
being unreliable or no evidence other than the confession of co-accused
adduced by the prosecution, the court shall presume him guilty and prono
solely relying on the confession of the co-accused. Never have there been so m
(accused persons) at the mercy of one (co-accused).
The Supreme Court has expressely held that to adjudge guilt the court can
start from the point of confession of co-accused. It must first see the
evidence and then take into consideration such confession. Hence 'pre-su
confessions' are expressely against this enunciation of law as they manda
on the one fact proved (confession) guilt is presumed. Chief Justice Gajendrag
speaking for a Constitution Bench held :

Though a confession mentioned in Section 30 of the Indian Evidence A

is not evidence as defined by Section 3 of the Act, it is an element which
may be taken into consideration by the Criminal Courts and in that sense
it may be described as evidence in a non-technical way. But in deali
with a case against an accused person, the Court cannot start with th
confession of a co-accused person, it must begin with other evidenc
adduced by the prosecution and after it has formed its opinion with regar
to the quality and effect of the said evidence, then it is permissible to tu
to the confession in order to lend assurance to the conclusion of gu
which the judicial mind is about to reach on the said other evidence."

The presumption by subverting section 30 as interpreted above, rai

presumption of guilt casting a nearly impossible burden on the accused t

30. H ar day al v. State ofU.P., (1976) 2 S.C.C. 812.

31. Kotari Suri v. State of Orissa, 1984 Cri. L.J. (NOC) 121 (Ori.) (D.B.)."
32. Ibid.
33. Haricharan v. State of Bihar, A.I.R. 1964 S.C. 1 184.
34. Id. at 1188.

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96 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol .38:1

his innocence, against all civilised notions of justice an

total farce.

IV Constitutional reality

In light of the above clarification of judicial dicta presumptive confessions

cannot stand. By the raising to a level of a presumption of guilt the probative value
of such kind of a confession, in itself regarded as one of the weakest possible, is
incapable of inspiring confidence. This presumption when alone without requisite
corroboration, would be hit by article 13(2) for being arbitrary, unfair, violating
article 14 and unreasonable for undermining the right to fair trial guaranteed by
article 21 as well.
This 'quantum leap' required for complete inference of guilt, unless pro
otherwise, from such a weak evidence (fact of confession) would be a rath
strained inference, and hence impermissible and unconstitutional.35 As enu
ated by the Supreme Court of USA laying down the 'rational connection' test
inference of one fact from proof of another-

[W]here there is no rational connection between fact proved and ultimate

fact presumed ... Where the inference is so strained as not to have a
reasonable relation to the circumstances of life as we know them ...
inference of the one from the proof of the other is arbitrary ...36

This reliance on such weak evidence to presume guilt has the effect of shifti
in an impermissible manner the 'burden of persuasion'37 on to the accused
prove his innocence, it may be noted that the presumption under sections 21
(d), TADA 1987 becomes operative in case of section 3, TADA 1987 wh
'intent' is the most essential element of the offence as defined. The presump
clearly mandates that once the fact that an extra-judicial confession is mad
proved, the presumption of guilt is raised. If the accused fails to rebut th
presumption of guilt, logically conviction would result. The question theref
arises that would the prosecution then have proved all the essential ingredients o
the offence as defined, especially intent ?
This 'burden relieving' of the prosecution as regards the proof of the essenti
elements of the crime beyond reasonable doubt, has been expressly held un
stitutional for violating 'due process' (the equivalent of fair trial in India). It
observed :

The requirement of proof beyond a reasonable doubt has its vital role in
our criminal procedure for cogent reasons ... There is always in litigation
a margin of error, representing error in fact finding, which both parties
must take into account. Where one party has at Stake an interest of

35. Every presumption has a fact proved and a fact presumed from this proved fact. See, Vikramjit
Reen, supra note 16.
36. Tot v. United States, 87 L.Ed. 1519 at 1524.
37. The Supreme Court of India tends to use the terms 'burden of proof and 'onus of proof
interchangeably. See, Vijayee Singh v. State of UP, (1990) 3 S.C.C. 190 at 204.

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1996] PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO REALITIES 97

transcending value - as a criminal defendant his liberty - this margin

error is reduced as to him by the process of placing on the other part
[(prosecution)] the burden of ... persuading the fact finder at the conclu-
sion of the trial of his guilt beyond a reasonable doubt ... [W]e explicit
hold that the Due Process clause protects the accused against convictio
except upon proof beyond a reasonable doubt of every fact necessary
constitute the crime with which he is charged}*

Not only does the provision under section 21 of TADA (evidentiary pre
tion) take away the court's discretion and essential truth-finding funct
weigh the probative value of these confessions to reach a inference of gu
raising the probative force of these kinds of confessions to a uniform st
level (of complete admission of guilt), but also relieves the prosecution
burden to prove every essential element to constitute the offence. This
causing immense prejudice, and consequently the presumption is hit by ar
for arbitrariness and by article 21 as well, for denying a right to a fair trial. I
be carefully noted that the punishment for the offences for which guilt is pre
can extend to death.
Therefore presumptive confessions as they stand today are clearly unconsti-
tutional and need to be removed from the statute book. A step in the right direction
was taken when sections 21(c) and ( d) of the Terrorist and Disruptive Activities
(Prevention) Act 1987 were repealed.
Burden-sharing between prosecution and defence (accused) must be fair and
should have a reasonable nexus with constitutional standards. It may be that
Parliament when faced with increasingly heinous forms of crime is within its
legislative competence to resort to the presumptive devices of evidence law to
shift some burden onto the accused but it would not justify the shift of all,, and
particularly the substantial burden relating to the essential elements of the crime,
against constitutional mandates and time tested traditions of criminal law.39
The experience of a first incorporation of 'unconstitutional' presumptions
into the TADA Act 1987 and their subsequent repeal after six years by the
legislature makes out a strong case for preview 40 of such legislations before
enactment. This kind of a belated dawn of wisdom coupled with a presumption of
constitutionality 41 in the meantime in favour of suspect legislation causes execu-
tive action to proceed apace in an unbridled manner accentuating the prejudice
caused to numerous accused until the legislature responds to the manifest misuses
as shown for over six years by the experience of working the TADA Act.
Therefore, the repeal of presumptive confessions as they were enacted was
constitutionally mandated. In retrospect, these kind of presumptions should have

38. In Re Winship, 25 L.Ed. 2d 368 at 375 (1970). (References omitted). (Emphasis added).
39. See, Ibid. Fundamental fairness is implicit in the Indian Constitution.
40. See, Karl Loewenstein, Political Power and the Government Process 127 (2nd ed. 1965). Also
see, supra note 10.
41. Charanjit Lai Choudharyy. Union of India, A.I.R. 1951 S.C.41 at 45 (per Fazl Ali J.); Middleton
v. Texas Power and Light Company , 248 U.S. 152 at 157, relied on.

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98 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

been dropped at the drafting stage by a conscientious d

redrafted to conform to constitutional standards.42 If this i
a fair trial will remain a cçnstitutional illusion in the quick s
tive devices.

V Alternatives

(1) Need for alternatives to presumptive confessions

Although as enumerated above, these kind of presumptions involving c

sions would be prima facie un-constitutional, the legislative intendment
their enactment must be appreciated. They reflect the overriding conce
Parliament to provide for effective prevention and control of terrorist c
through speedy and effective prosecution. Parliament was impelled to tak
steps in the interests of 'Defence of India'.43 However, at the risk of repe
this does not justify the prosecution resorting to unconstitutional 'means' tow
achieving the proper 'ends'. Therefore, from a draftsman's viewpoint, t
presumptive confessions should have been redrafted to validate them as
constitutional norms to fully realise the legislative intendment.
In order to further appreciate the imperative need for such a redraft, one
examine the wide ambit for misuse and leeway for arbitrariness which
these presumptive confessions in their present form of wording. Contrar
past judicial dicta and practice of fundamental principles of criminal la
prosecution's role of assuming the burden of proving guilt is lightened
arbitrary extent. The prosecution has merely to put forth a convincing witne
to factum of accused's confession and, then 'proof of innocence' is the ac
lot. And a very weary one at that, considering that he faces a monolithic stat
little or no specialists on his behalf (forensic, investigators, etc.) except h
counsel at his disposal. Surely, the state of our legal education is such that
for vastly experienced top lawyers even this 'specialist' is usually poorly e
in his own field let alone forensics and investigation.44
The arbitrariness is apparent in asking the accused for 'proof of his innoce
merely on the unsubstantial basis of a weak evidentiary fact of extra-j
confession put forth by the prosecution. What is more, judicial discretion to w
the probative value of this evidence of 'extra-judicial confession' is curta
the extent of making it the sole factum for a mandatory inference of guilt unt
'proof of innocence'. The 'presumption of innocence' and right to fair trial ar

42. Draftsmen must have a greater role in formation of legislation and must carefully scru
each piece of legislation so that it is a 'reasonable law, not any enacted piece', ( Maneka Ga
Union of India, supra, note 14 at 338) (Empasis added). Also see, P.M. Bakshi, An Introduc
Legislative Drafting 63 (4th ed. 1972).
43. See, Kartar Singh v. State of Punjab , Supra note 6 at 633-634. For the contemporary re
of TADA, see, Vikramjit Reen, "Supreme Court and Terrorism", E.P.W. Vol. XXIX No. 40
44. See, S.P. Sathe, "Access to Legal Education in India", in R. Dhawan et. al. (ed.), Ac
Legal Education and the Legal Profession (1989); James C.N. Paul et.al., "Lawyers, Legal Pr
sions, Modernisation and Development", in R. Luckham et.al. (ed.), Studies of Law in Social
and Development - Lawyers in the Third World : Comparative and Development Perspective

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1996] PRESUMPTIVE CONFESSIONS : FROM ILLUSIONS TO REALITIES 99

integrated whole and are mutually reciprocative. If one is tampered with th

is disturbed. For the 'presumption of innocence' a 'proof of guilt' in the
presumptive confessions is substituted. That destroys the right to a fair

(2) Alternative to presumptive confessions

To get over the difficulties enumerated above, it would be advisable t

presumptive confessions with a redraft, as per constitutional norms,
under :

Section 21 - Presumption of offences under Section 3 -

(1) In a prosecution for an offence under sub-section (1) of Section 3 if it

is proved -

(a) ...

(b) ...

(c) that a confession has been made by a co-accused that the accused h
committed the offence; or

(d) that the accused had made a confession of the offence to any pers
other than a police officer,

the Designated Court may, presume, unless the contrary is proved, tha
the accused had committed such offence.
Provided that the Designated Court shall not so presume until, the
prosecution further proves -
(z) Presence of the accused at the site of offence, and some act or omission
on the part of the accused towards the commission of the offence before
or at the time of the occurrence in question, or the prosecution proves -
(/'/') An attempt to commit, or cause the offence to be committed and in such
attempt, any act towards the commission of the offence.
Provided further that the Designated Court shall not record an order of
conviction until it is satisfied-
(i) about the admissibility and reliability under law relating to evidence of
any confession; and
(ii) that in the case of any confession by any co-accused, the provisions of
Section 30 of the Indian Evidence Act 1872 are complied with ; and,
(iii) where any offence requires proof of a fact of existence of a culpable
mental state, that the prosecution has proved it.
Explanation I : In this section, " culpable mental state " includes inten-
tion, motive, conscious possession of prohibited arms, substances or any
other articles, knowledge of a relevant fact and belief in, or reason to
believe in, a relevant fact.
(JA) For purposes of this section, a fact or confession is said to be proved or
disproved only when the Court believes it to exist-

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100 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 38 : 1

(i) beyond reasonable doubt, where the prosecution is re

disprove it; or

(ii) by preponderence of probabilities, where the acc

prove or disprove it. 44(1

Thus by substituting a mandatory presumption ('shall'45) by

('may'46) one, judicial discretion is maintained. The power t
tion is taken away from the prosecution and vested with the j
in appropriate cases. This would prevent possible misuse of
In order to validate the presumption as per constitutiona
exist a rational connection between the fact proved (conf
presumed ('guilt' - the 'fact of culpability'). This can be me
a condition precedent, the requirement of proof of certain
as presence of the accused at the site of the offence, and the
his part towards the commission of the offence. The first pro
added to the presumption aims towards this. This combination
ensures that to invoke the presumption of culpability, the pro
at least these predicated facts - which under normal opera
provide mutual support (corroboration) - to arrive at a rat
factum of guilt.
Furthermore, the due process requirement that prosecution
tial element which constitutes the offence, particularly intent
doubt, can be met by a clarificatory addition to the presum
should not record an order of conviction till it is satisfied tha
met the appropriate burden of proving intent and other essen
constitute the offence as defined by the legislature. The s
presumption as suggested aims towards this. The Explana
wider ambit to the meaning of 'intention' in form of a culpab
additional sub-section as suggested, ensures evidentiary sta
to the normal operations of presumptions.
It may be noted that the presumption as it exists now expr
is applicable to section 3 of TADA Act where intent is the
of these offences. Thus the clarification of constitutional
provisions ensures that the right to a fair trial remains a con
not a mere illusion.
The Constitution commands this and the law shall ensure this.47

Vikramjit Reen *

44a. Suggested incorporations are in italics.

45. S.4, Indian Evidence Act 1872.
46. Ibid.
47. Art. 13(2) mandates that the law shall not encroach on fundamental rights. This requirement is
to be fulfilled through preview of legislation, supra note 35. See, A.K. Karipakv. Union of India, (1969)
2 S.C.C. 262at 269.
* V Year, B.A., LL.B. (Hons.), National Law School of Indian University Bangalore.

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