Retraction Of statements and confessions: A

perspective from Criminal and Tax Law.

A Confession is an admission made by a person charged with a crime at any time stating or
suggesting the inference that he committed that crime. Confession is received in criminal
cases upon the principle that a person will not  make an untrue statement against his own
interest. Confession may be divided into two categories; judicial confession and extra-judicial
confession. 
 Judicial confessions are those confessions which are made before a Magistrate or in
Court in the due course of legal proceedings.
 Extra-judicial confessions are those confessions which are made by the accused
anywhere other than before a Magistrate or in Court and extrajudicial confession can
be made to any particular person or to a group of persons.
The term confession has not been defined in the Indian Evidence Act, 1872 and it attains its
first appearance in section 241.

Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act, deals with irrelevant
confession. Apart from Section 27, relevant confessions have been dealt with under Sections
28, 29 and 30 of the Indian Evidence Act, 1872.

Evolving of the concept of retraction of statements and confession basically comes from
the Article 20(3)2 of the constitution which states, ‘No person accused of any offence shall be
compelled to be a witness against himself’.

A retracted confession is a confession voluntarily made by a person and subsequently

retracted. The credibility of such a confession is a matter to be decided by the court according
to the facts and circumstances of each case and if the court is of the opinion that such
confession is proved; the court is bound to act upon it so far as the person making the
confession is concerned. The retracted confession may also form the basis of conviction and
punishment if it is believed to be true and voluntary.
1
S. 24, Confession caused by inducement, threat, or promise, when irrelevant in criminal proceeding, Indian
Evidence Act, 1872
2
India Const, Art. 20(3),
Retracted confession can also be used against the person making it if it is supported by
independent and corroborative evidence. In the case of Pyare Lal v. State of Rajasthan 3. The
Supreme Court held that a retracted form of confession can form the basis of a conviction if
and only if the Court is satisfied that it was true and was made voluntarily.

Relevant and specific Provisions

Section 244 made all the confessions made by an accused under any form of inducement by
the means of either threat or promise from any person as irrelevant in any criminal
proceeding. It was held in the case State of Punjab v. Gurdeep Singh5 that if the
circumstances are such that the Courts believe the witness and are satisfied that such a
confession is made on a voluntary basis, an order of conviction can be found on the same.

The conditions of irrelevance under section 246 of Indian Evidence Act, 1872 are as follows:
a) The confession must be a result of inducement or a threat or a promise;
b) Inducement, etc. should proceed from a person in authority;
c) It should be relating to the charge that is in question;
d) It should obtain a worldly benefit or any form of disadvantage
The Confession must be a result of inducement or threat or a promise.

A confession will justly be admitted if and only if it is voluntary and any confession that is
obtained by the means of a threat, promise or inducement cannot be admitted. An inducement
to confess may be upon a promise of pardon. A promise or threat made to one accused will
not render a confession made by another, who was present and heard the inducement,
irrelevant.

Person in the authority

3
(1963) 2 Cri LJ 178
4
S. 24, Confession caused by inducement, threat, or promise, when irrelevant in criminal proceeding, Indian
Evidence Act, 1872
5
(1999) 7 SCC 741
6
Ibid
The particular inducement or threat caused must flow from a person who has authority. This
refers to the government officials who are having a particular authority due to their position
in the services. Every government official is the person who is capable of influencing the
course of prosecution.

A confession is made relevant even it is obtained in the following circumstances:

1. On promising the accused that the information obtained will be kept a secret or that it
will not be used against him

It may be recalled that an admission made in a civil case under promise that evidence of it
shall not be given is not relevant, Section 23 7 mandates the policy being that litigants should
be encouraged to compromise their differences. That policy has no relevance to criminal
cases because here the public interest lies in prosecuting criminals and not compromising
with them. Consequently, therefore, where an accused person is persuaded to confess by
assuring him of the secrecy of his statements, the confession is nevertheless relevant.

2. By practicing a deception on the accused for the purpose of obtaining his confession

When the confession is the outcome of a fraud being played with the accused, it stands
relevant8. Thus, where the two accused persons were left in a room where they thought they
were all alone, but secret tape recorders were recording their conversation, the confessions
thus recorded were held to be relevant. Similarly, where an accused was persuaded to submit
for a medical examination for an innocent purpose which was in fact conducted for criminal
purpose, his statements to the doctor and the doctors report were held to be relevant at the
discretion of the Court. A confession secured by intercepting and opening a letter has also
been held to be relevant.

3. Circumstances when the accused was drunk

7
S. 23, Admissions in civil cases when relevant, Indian Evidence Act, 1872
8
Singh Avtar Dr., Principles of the Law of Evidence, 21st Edition, Central Law Publications, Allahabad, 2014,
p.173.
A confession obtained by intoxicating the accused is equally relevant. The law is concerned
to see that the confession is free and voluntary and if this is so it does not matter that the
accused confessed under the influence of drink. According to the English practice the judge
will have discretion in the matter.

Section 30 deals with the consideration of proven confession affecting the person making it
and others jointly under for the same trial for the same offence. It provides that 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 person is proved, the court may take
into consideration such confession as against such other persons as well as against person
who make such confession.

In Reference to the case of State of Maharashtra v. Mohd. Ajmal Mohd. Amir Kasab 9, the
courts held that it is safe to place reliance on retracted confessions if it can be established that
the confession is true and has been made voluntarily. It is also important to keep in mind that
the confession has been corroborated sufficiently. The courts have the power to discard the
exculpatory facts and consider the inculpatory facts.

The courts laid down the following essential principles:

a) A confession can be acted upon only if the court is satisfied that it is true and has been
made voluntarily.
b) The confession must stand true to the facts and should not counter it.
c) It is a rule of judiciousness as to not base a conviction on the basis of a confession that
has not been corroborated.

Retraction of Statement made under the Customs Act or Income tax act

Statement Under Section 10810 of Customs Act, 1962 is an admissible piece of evidence
before court of law. Section 10811 is a machinery section to gather evidence in case of
violations/offence under Customs Act. The power of recording of statements and calling for

9
(2012) 9 SCC 234
10
S. 108, Power to summon persons to give evidence and produce documents, Customs Act, 1962
11
Ibid
documents is vested in Officers not lower than the rank of Superintendent and Appraiser (AO
in short) in rank. Whoever is found involved in violation of customs law, his/ her statement
can be recorded to gather evidence in order to bring the guilty home.

Section 108 of the customs Act states that,

(1).Any gazetted officer of customs duly empowered by the Central

Government on this behalf, shall have power to summon any person whose
attendance he considers necessary either to give evidence or to produce a
document or any other thing in any inquiry which such officer is making
under this Act.

(2).A summons to produce documents or other things may be for the

production of certain specified documents or things or for the production
of all documents or things of a certain description in the possession or
under control of the person summoned.

Retraction or rebuttal of earlier statements/admitted facts can, inter alia, be:

 In the form of statement which is recorded later on ; or
 In the form of a letter; or
 In the form of an affidavit filed.

It is a settled situation of law that affirmation made by the assessee u/s 132(4) 12 is a
significant piece of proof however the equivalent isn’t convincing. It is available to the
assessee who made the admission to show that it is erroneous and the equivalent is given
under mixed up conviction of actuality or law.

In the case of M/s Tribhovandas Bhimji Zaveri (Delhi) Pvt. Ltd.v. Deputy Commissioner of
Income Tax13 ,the Hon’ble ITAT Pune held that however, it is a settled position that
confession made by assessee under area 132(4) of the IT Act is a significant piece of proof

12
S. 132(4), Search and seizure, Income Tax Act, 1961
13
2018 SCC OnLine ITAT 6865
yet the equivalent isn’t decisive. It is available to the assessee who made the admission to
show that it is wrong and the equivalent is given under mixed up conviction of truth or law.

In the case of Union of India v. Kisan Ratan Singh14, K.R. Shriram, J. observed, “If I have to
simply accept the statement recorded under Section 10815 as gospel truth and without any
corroboration, I ask myself another question, as to why should anyone then go through a trial.
The moment the Customs authorities recorded the statement under section 108, in which the
accused confessed about his involvement in carrying contraband gold, the accused could be
straightaway sent to jail without the trial court having recorded any evidence or conducting a
trial.” The Court also reiterated that in absence of any corroboration by an independent and
reliable witness, a statement recorded under Section 108 16 in isolation could not be relied
upon.

It was observed in Haroon Hazi Abdulla v. State of Maharashtra 17 that a “retracted

confession must be looked upon with greater concern unless the reasons given for having
made it in the first instance are on the face of them false.” There was a further observation
that; retracted confession is a weak link against the maker and more so against a co-accused.”

In the case of K.I. Pavunny v. Asst. Collector (HQ) Central Excise Collectorate 18, Cochin the
Supreme Court held, “Even though the Customs officers have been invested with many of the
powers which an officer in charge of a police station exercises while investigating a
cognisable offence, they do not, thereby, become police officers within the meaning of
Section 25 of the Evidence Act and so the confessional statements made by the accused
persons to Customs officials would be admissible in evidence against them.

In Bharat. vs. State of U.P.. Hidayatullah,19 C.J., speaking for a three-Judge Bench observed,
“Confessions can be acted upon if the court is satisfied that they are voluntary and that they
are true. The voluntary nature of the confession depends upon whether there was any threat,
inducement or promise and its truth is judged in the context of the entire prosecution case.
The confession must fit into the proved facts and not run counter to them. When the
14
(2020) SCC OnLine Bom 39
15
S. 108, Power to summon persons to give evidence and produce documents, Customs Act, 1962
16
Id.
17
AIR 1968 SC 832
18
(1997) 3 SCC 721
19
(1971) 3 SCC 950
voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed
a confession, if it is voluntary and true and not made under any inducement or threat or
promise, is the most patent piece of evidence against the maker. Retracted confession,
however, stands on a slightly different footing. As the Privy Council once stated, in India it is
the rule to find a confession and to find it retracted later. A court may take into account the
retracted confession, but it must look for the reasons for the making of the confession as well
as for its retraction, and must weigh the two to determine whether the retraction affects the
voluntary nature of the confession or not. If the court is satisfied that it was retracted because
of an after-thought or advice, the retraction may not weigh with the court if the general facts
proved in the case and the tenor of the confession as made and the circumstances of its
making and withdrawal warrant its user. All the same, the courts do not act upon the retracted
confession without finding assurance from some other sources as to the guilt of the accused.
Therefore, it can be stated that a true confession made voluntarily may be acted upon with
slight evidence to corroborate it, but a retracted confession requires the general assurance that
the retraction was an after-thought and that the earlier statement was true. This was laid down
by this Court in an earlier case reported in Subramania Gounden v. The State of Madras20.”

In case of Satinder Kumar21, their lordships held that it is true that an admission made by an
assessee constitutes a relevant piece of evidence but if the assessee contends that in making
the admission he had proceeded on a mistaken understanding or on misconception of facts or
on untrue facts such an admission cannot be relied upon without first considering the
aforesaid contention.

Conclusion
Retraction of statements and confession is a result of Article 20(3) and thus, if the accused is
retracting the statements or any confession within the stipulated time period according to the
set provisions then it should be validated and considered. A retracted statement under Section
132(4) of the Act would require some corroborative material for the AO(Officers not lower
than rank of Superintendent and Appraiser) to proceed to make additions on the basis of such
statement.
From the standards of law set down as references thus above, it could be derived that
admission is one significant piece of proof however it can’t be said that it is definitive. It is

20
(1958) SCR 428
21
Satinder Kumar (HUF) v. CIT, (1977) 106 ITR 64
rebuttable. It is available to an assessee who made an admission to set up that the admission
was involuntary and the equivalent was extricated under pressure and coercion.

Of course, where the retraction is not for any convincing reason, or where it is not shown by
the Assessee that he was under some coercion to make the statement in the first place, or
where the retraction is not followed by the Assessee producing material to substantiate his
defence, the AO(Officers not lower than rank of Superintendent and Appraiser ) might be
justified in make additions on the basis of the retracted statement. And thus, confessions and
statements, whether retracted or not; should always result in the justice for all because justice
is a Right and not a privilege.