I. Introduction

A confession is the most telling evidence which a criminal prosecution may offer, because in effect it is a confession by the accused himself. This is exactly why confessions made to and in the custody of the police are so much suspect in Indian evidence law and, indeed, because of the imbalance of power between an investigating police officer and the person in his custody, it has been considered with deep suspicion since 1872. The Indian Evidence Act, 1872 (“IEA”), which is now re-enacted substantially with a reorganized numbering and structure as the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) which came into effect from 1 July 2024, lays down a broad prohibition on such statements, with two narrow exceptions that are carefully circumscribed. This article reviews when a confessional statement, by a person accused of an offence, made while in the custody of a police officer will be admissible in evidence, and the question, which has been greatly litigated, of whether or not a formal arrest is a prerequisite for a person to be ‘in the custody of a police officer’ for the purposes of this provision.

II. Statutory Framework Governing Confessions

A. The principle of voluntariness is the general rule.

The threshold rule for all confessions, custodial and otherwise, is found in Section 24 of the IEA (Section 22 of BSA): A confession is inadmissible in a criminal proceeding if the court is satisfied that the accused was induced to make it by any inducement, threat, promise or coercion of any person by reason of such authority, and by reference to such charge, to believe that he was likely to gain an advantage or avoid an evil of a temporal nature. The general rule that no confession is admissible without the consent of the parties is here the pre-condition for the admissibility of any confession; the special rules to be discussed later do not replace this general rule, but are superimposed upon it.

You must submit this to the police officer as both a confession and a hard copy police application. This should be passed to the police officer as both a confession and hard copy police application.

The proof of any confession made to a police officer shall be barred under the IEA, in its absolute form, by Section 25, which does not contain any condition or limitation. The bar is not closed because the confession was voluntary, nor because at that time the person who made it was not even in police custody a person who comes in, of his own free will, and confesses is just as in the bar. This rule is essentially restated in Section 23(1) of the BSA.

B. Confession made when in custody of a police officer – Section 26, IEA / Section 23(2), BSA

This is done to close an obvious loophole and it is clear that even a confession made to a private person, even a friend, a relative, a co-prisoner or any other person than a police officer, cannot be proved against the maker, if made before he was in the custody of a police officer, except in the presence of a Magistrate. That a Magistrate is present is sufficient to ensure that police will not overstep their bounds, as a Magistrate is an independent judicial officer with no interest in the investigation. This is repeated in Section 23(2) of the BSA, and crucially in the new Section 25/23(1) and the discovery exception (formerly Section 27, discussed in Part IV below), in a new consolidated section.

The details of Confessions Before a Magistrate are recorded before the Magistrate, vide Section 164, CrPC / Section 183, BNSS.

The procedural trinity of the Section 26/23(2) exception is available in the Code of Criminal Procedure, 1973, Section 164 (now Section 183 of Bharatiya Nagarik Suraksha Sanhita 2023). Any Judicial Magistrate, or Metropolitan Magistrate in a metropolitan area, can record a confession obtained during an investigation, provided that he explains that the person is not required to make a confession, that anything he says can be used against him, and that after a time has elapsed, during which the individual gives time and opportunity for reflection, he is satisfied that the confession is being made voluntarily. That a confession of this sort may be made by a police officer, no matter how high his office, is expressly prohibited. A confession recorded in this manner is substantive evidence and warrants a conviction if it is made voluntarily and is true, but Indian courts will usually seek corroboration in the absence of such confession.

III. Modifications of the Exclusionary Rule

It is obvious that a person in police custody is helpless and under the control and influence of his custodians, and that a confession can be forced on him by means of inducing or coercing him or by even extracting a statement by design against such a person.² The guarantee of personal liberty in Article 21 of the Constitution, which the Supreme Court has read to include a right against custodial violence and to procedural safeguards during arrest and interrogation, most recently in D.K. Basu v. State of West Bengal, is a constitutional echo of this statutory distrust.² Sections 25 to 27 are therefore to be interpreted as protective, rather than technical, provisions.

IV. The Discovery Exception Section 27, IEA / Proviso to Section 23(2), BSA

A. Sacraments, especially Baptism and Confirmation, as sacraments of the Church

Section 27 provides a narrow exception to the prohibition of proof in Sections 25 and 26; if any fact is given evidence as having been found “as the result of information received from a person charged with an offence” and the person is in police custody, then “such information, if any, as relates distinctly to that fact” may be called for proof, whether or not it constitutes a confession. In the BSA, this is no longer a separate section but is now a proviso attached to Section 23(2). The very nature of such a discovery based on the information of the accused has been said by subsequent events to give the information an objective guarantee of truth not given to an uncorroborated confession; it is the guarantee and not the confession itself that the law chooses to trust.

It is important to note that the Exception to Operate must meet the following requirements:

The Supreme Court, in the case of Perumal Raja alias Perumal v. State, relied on its previous judgment in Mohd. Before invoking the power of Section 27, there must be discovery of a fact and that fact must be relevant and must also have been the consequence of information received from a person accused of an offence. ³ in the second place, the discovery of such a fact shall be deposed before the court, usually by the evidence of the investigating officer and independent witnesses to the discovery. Thirdly, when the information was given, it is necessary that the person accused of an offence be a person. Fourth, the information shall have been given to that person while he or she was under the custody of a police officer. The fact that the remainder of the statement including any admission of guilt, motive, or any other detail of the narrative continues to be excluded by Sections 25 and 26 is not changed by the fact that only the portion that is the direct, proximate, and immediate cause of the discovery is offered.

B. The meaning of ‘Fact Discovered’ — Pulukuri Kottaya and its Progeny

The classic exposition of the phrase ‘fact discovered’ is that of the Privy Council in Pulukuri Kottaya v. King-Emperor, which held that it would be fallacious to equate the fact discovered with the physical object ultimately produced. ⁴ the fact discovered embraces the place from which the object is produced and the accused’s knowledge of that place; the information admissible under Section 27 is confined to so much of the statement as relates distinctly to that discovery, and nothing more. In this situation, if a person is charged with concealing a gun in a specific location, and points out that location, but the gun is found there, only the pointing out of the location is admissible — a narration of how and why the gun came to be used is not. Since then, Indian courts have applied the same logic to define the ‘fact discovered’ as a mental fact, namely knowing the existence and location of an incriminating article, which is established by the later independent fact of recovery. ⁵

V. When is a confession admissible?

Together, the sections of the IEA (and their BSA counterparts) give a coherent, although limited, answer. In order for a confession voluntarily made by an accused person to be admitted as evidence against him, two conditions must be fulfilled. Confession is substantive evidence against the person who makes it, and is recorded before a Magistrate, who verifies its voluntariness, ordinarily under Section 164, CrPC/Section 183, BNSS, if he is satisfied on the basis of the evidence that it is voluntary and true; and where it has been retracted, there is a requirement for corroboration. The second (and much narrower) scenario is where the statement (or so much of it as relates unambiguously to a fact later discovered as a result of the information) becomes admissible in accordance with Section 27/the proviso to Section 23(2): only the confirmed, discovery-related part of the statement is admissible, and only after all four conditions discussed above are fulfilled. Outside these two channels, a confession made to the police, or to anyone while within the police’s custody, is absolutely excluded, whatever it may actually contain; whatever it may in fact contain, is the strict construction of this proposition, precisely because it is a derogation of the general exclusionary policy of Sections 25 and 26, rather than a rule of its own, independent of those two sections. ⁶

VI. Pre-requisites of ‘Custody’ – is Formal Arrest a requirement?

The issue of whether a person was formally arrested before he could be considered ‘in the custody of a police officer’ under Sections 26 and 27 is raised separately, and is hotly contested. The settled position, reiterated by the Supreme Court as recently as January 2024, is that there is no need for formal arrest to be a prerequisite: ‘custody’ under these provisions is a broader, functional one, and is intrinsically linked to the substantive concept of the word, without depending on the formal arrests recognised under Section 46 of the CrPC (now Section 47, BNSS).

A. State of U.P. v. Deoman Upadhyaya (2018) is a landmark case in India. Deoman Upadhyaya vs Foundational Position (2018) is a landmark case in India.

The question was first authoritatively answered by a Constitution Bench in State of U.P. v. Deoman Upadhyaya where the Court held that Section 46 of the CrPC does not require any particular formality to be said that a person is in custody — a submission by him either on his own or by his conduct would suffice. A person who voluntarily approaches an investigating officer and offers information that may be used as evidence against him may, the Court held, appropriately be regarded as having submitted himself to custody; indeed, a person directly furnishing information likely to incriminate him to a police officer may be deemed to have submitted to that officer’s custody within the meaning of Section 27, drawing on the earlier position taken in Legal Remembrancer v. Lalit Mohan Singh Roy. The Court also held that the bar in Section 25 applies whether or not the maker of the confession was, in a formal sense, in custody at the time — underscoring that ‘custody’ is not a term of art confined to a post-arrest state.

B. Dharam Deo Yadav vs State of Uttar Pradesh

The notion of ‘custody’ in Section 27 does not mean formal custody but restraint of movement or police supervision or observation of the person. ⁸ the person does not have to be in a police cell even if he is not formally arrested, provided that in fact his movements are under police control or observation.

C. This is a Momentary Divergence Rajesh v. State of Madhya Pradesh

A three-judge bench in Rajesh v. State of Madhya Pradesh held the contrary in 2023, and a subsequent discovery could not be established against a person who was not formally arrested as an accused at the time of furnishing of the information. ⁹

D. Reaffirmation of the Broad View Perumal Raja alias Perumal v. State.

In Perumal Raja alias Perumal vs. State, Represented by the Inspector of Police, a Bench of the Supreme Court, expressly rejected the suggestion of Rajesh that custody must be formal arrest and read the words used in Section 27 in their distinct context, and noted that the phrase ‘person accused of any offence’ is separated by a comma from the condition ‘in the custody of a police officer’, so that the two conditions must be construed separately and not construed as a composite condition of formal arrest-as-accused. The Court found that a narrow, technical construction of the term ‘police custody’ would open the door to manipulation of the time of lodging an FIR or the formal arrest, of the investigating agencies to take advantage of the protections afforded in sections 25-27 to avoid the provisions altogether, which cannot be the purpose of the provisions. It thus took the view that an accused or suspected person is at liberty no longer than when he comes under the hand of a police officer; at the moment of his coming under the hand of a police officer, he is under a check, and for this reason he is in ‘custody’ within the meaning of Sections 25 to 27, whether or not a formal arrest memo has been drawn up. On the facts, a disclosure by the appellant when he was arrested in connection with a different offence was nevertheless found to meet the custody requirement of Section 27 as it relates to the offence under which he was arrested. This wide and purposive interpretation is similar to the Supreme Court’s earlier dictum in Directorate of Enforcement v. Deepak Mahajan, which, however, in a different context in the same statute, warned against an over-technical interpretation that would ‘allow form to prevail over the protective essence of the statute’.¹¹

E. The Present Position

So today the law is that a person can be defined as ‘in the custody of a police officer’ for the purposes of Sections 25 to 27 of the IEA and their BSA counterparts without a formal arrest. For the purposes of this section, custody shall include any restraint, restriction or surveillance of a person by which his or her free movement is in substance under the police control of the police, whether such control is imposed by formal arrest, by voluntary submission by word or conduct, by detention for the purposes of another inquiry or investigation, or by placing the person under police control in the course of a preliminary inquiry. Whether police exercise control over the person at the time of the statement or not is what is important, not the label the police apply or withhold. This purposive approach protects the obvious danger that statements might be made with impunity to police officers who are investigating a case but would not otherwise be subject to the formalities of arrest under Sections 25 to 27 and the compulsion of custody is clearly there.

VII. Conclusion

The law of evidence in India protects confession made to, or in the custody of police as presumptively unreliable, except in two strictly limited situations: First, where it is recorded before the Magistrate under Section 164, CrPC/Section 183, BNSS and Second, where it is recorded in the presence of another fact which is subsequently discovered, and it is thus rendered admissible under Section 27, IEA and proviso to Section 23(2), BSA. In either case, the common understanding of a “formal” arrest is not relevant in analysing the question which the courts are asking: whether, at the time in question, the accused was “under police restraint, restriction, or surveillance” in substance or in fact. In short, this functional test, which was upheld by the Constitution Bench in Deoman Upadhyaya and confirmed despite a brief confusion in Perumal Raja, is an observance of the purpose of the preventive provisions of Sections 25 to 27 of the Code which was meant to ensure that the police will not be able to get away with its failure to provide a formal arrest memo as a trick to avoid the protection.

References

1. Kishore Chand v. State of Himachal Pradesh, (1990) 3 SCC 246.

2. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; Article 20(3) and Article 21, Constitution of India.

3. Perumal Raja alias Perumal v. State Rep. by the Inspector of Police, 2024 SCC OnLine SC 21 (decided 3 January 2024); Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828.

4. Pulukuri Kottaya v. King-Emperor, AIR 1947 PC 67.

5. See, e.g., State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru, (2005) 11 SCC 600; Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828.

6. See, e.g., discussion in Raju Manjhi v. State of Bihar, (2019) 12 SCC 784, and the criticism thereof for reading an entire confessional statement into evidence contrary to the strict scheme of Sections 25–27.

7. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.

8. Dharam Deo Yadav v. State of Uttar Pradesh, (2014) 5 SCC 509.

9. Rajesh and Another v. State of Madhya Pradesh, 2023 SCC OnLine SC 1202.

10. Perumal Raja alias Perumal v. State Rep. by the Inspector of Police, 2024 SCC OnLine SC 21.

11. Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440.

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