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marathiSUNDAY, DECEMBER 6, 2009
CONFESSION AND ADMISSION
CONFESSION
(JUDICIAL & EXTRA JUDICIAL)
AND ADMISSION
Admissions
All confessions are admissions but every admission may not be a confession. To be a confession, admission should contain an acknowledgment of the guilt.Therefore, all confession are admissions, but every admission may not be a confession.
Now let us see what is meant by ADMISSION.
Section 17 of the Indian Evidence Act defines admission which means a statement (oral or documentary or contained in electronic form) which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the person and under the circumstances mentioned in section 18 to 23 of the Indian Evidence Act.
An admission must be clear, precise, unequivocal, categorical,not vague or ambiguous . An admission ,is the best evidence that an opposite party can rely upon, though not conclusive, it is nevertheless decisive on the point unless proved erroneous or is validly allowed to be withdrawn.
Evidentiary Value of ADMISSION
Admissions though not conclusive proof of matters admitted, but they are relevant under section 21 of the Indian Evidence Act. An admission is not conclusive unless it amounts to estoppal. It may be proved to be wrong but unless proved it is a very strong piece of evidence against the maker thereof and is decisive of the matter, though not conclusive.
In Bhogilal Pandya v/s State AIR 1959 S.C. 356, it is discussed by the Apex Court,“The first group of sections in this Act in which the word statement occurs, are section 17 to 21, which deals with admissions. Section 17 defines the word admission. Section 18 to 20 lay down what statement are admissions against persons making them. The words used in section 18 to 21 in this connection are statements made by. It is not disputed that statements made by persons may be used as admissions against them even though they may not have been communicated to any other person. For eg. Statements in the account books of a person showing that he was indebted to another person are admissions which can be used against him even though these statements were never communicated to any other person.”
The provision that “admission is not conclusive proof” is to be considered in regard to two features of evidence :
1 The weight to be attached to an admission, would depend upon whether the admission is clear, unambiguous and relevant evidence; and
2 Even a proved admission sought to be used against its maker who as a witness is under cross-examination, he should be given an opportunity, if the admission is to be used against him to offer his explanation and to clear up the point of ambiguity or dispute.
Hon'ble Supreme Court, in case of State of Maharashtra -versus- Sukhdeo Singh, reported in 1992 (3) SCC 700, has held that, “The answer given by the accused in response to his examination u/s 313 of Cr.P.C. can be taken into consideration in such inquiry or trial. This much is clear on a plain reading on the above sub-section.Therefore, though not strictly evidence, sub-section permits that it may be taken into consideration in the said inquiry or trial”.
Hon'ble Apex Court, in case of Narain Singh -versus- State of Punjab, reported in 1964 (1) Cr.L.J. 730, has held that, “It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would be the explanation furnished by him be an offence, the admission cannot be used against him divorced from explanation”.
ADMISSIONS in CIVIL CASES
Section 23 of the Indian Evidence Act, deals with relevancy of admissions in civil cases, which provides that --
no admission is relevant in civil cases if is made either upon an express condition that evidence of it not be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.
Confession
Confession is a statement made by accused which either admits in terms of offence or at any rate substantiate all the facts which constitute the offence.
The Hon'ble Apex Court in case of Sahib Singh -versus- State of Haryana reported in 1997 Cri.L.J. 3956, while defining the word confession, has observed that, “ a confession must either be an express acknowledgment of guilt of the offence charged, certain and complete in itself, or it must admit substantially all the facts which constitute the offence”.
Confession is defined in Black's Dictionary
A voluntary statement made by person charged with commission of crime, communicated to another wherein he acknowledges himself to be guilty of the offence charged.
Confession may be divided in two classes :
1 Judicial
2 Extra judicial
Judicial confessions are those which are made before magistrate or court in the course of judicial proceedings.
Extra judicial confessions are those which are made by the party elsewhere than before magistrate or court. Extra judicial confessions are generally those made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a magistrate who is not especially empowered to record confession under section 164 of the Code of Criminal Procedure or a magistrate so empowered but receiving the confession at a stretch when section 164 of the Code of Criminal Procedure does not apply.
Evidentiary Value of Confessions :
It must be established that a confession is voluntary and also it is true. For the purpose of establishing its truth it is necessary to examine the confession and compare it with the rest of the prosecution evidence and the probabilities of the case.
Extra Judicial Confessions:
An extra judicial confession, if voluntary and true and made in a fit state of mind can be relied upon by the court. The confession will have to be proved like any other fact. In the process of proof of Extra Judicial confession, the court is to be satisfied that it is not the result of inducement , threat or promise. Extra judicial confession possess a high probative value as it emanates from the person, who committed the crime, provided it is free from suspicion.
While appreciating the Extra judicial confession, the court has to consider the relevant factors like-
i. to whom it is made,
ii. the time and place of making it;
iii. the circumstances, in which it was made and the court has to look for any suspicious circumstances.
Evidentiary Value of Extra Judicial Confession :
It is not open to any court to start with the presumption that extra judicial confession is a weak type of evidence. If the evidence relating to extra judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction. However, section 25 and 26 provides exception to this general rule.
Section 25 to 27 of Indian Evidence Act are related to confession made by accused in custody before police.
Section 25 – Confession to police officer not to be proved :-
No confession made to police officer shall be proved as against the person accused of any offence.
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 custody of a police officer, unless it be made in the immediate presence of a magistrate shall be proved as against such person.
In order to apply section 25 and section 26, it is desirable to consider as to who is a “POLICE OFFICER”.
Unless an officer who is invested under any special law with the powers of investigation under the code, including the power to submit the report under section 173 of Code of Criminal Procedure, he cannot be described as a police officer under section 25 of the Evidence Act.
The Hon'ble Apex Court in various cases has described as to who is a POLICE OFFICER under various acts, within the ambit of section 25 of the Evidence Act. The various cases includes
1 State of Punjab -vs- Barkat RamAIR 1962 SC 276
2 Rajaram -vs- State of Bihar AIR 1964 SC 828
3 Badaku -vs- State of Mysore AIR 1966 SC 1746
4 Ramesh -vs- State of W.B. AIR 1970 SC 940
5 Illias -vs- Collector of Custom AIR 1970 SC 1065
6 State of U.P. -vs- Durgaprasad AIR 1974 SC 2136
7 Balkishan -vs- State of Mah AIR 1981 SC 379
8 Rajkumar -vs- Union of India AIR 1991 SC 45
Hon'ble Supreme Court, in case of State of Rajasthan v/s Ajit singh and other reported in (2008) 1 SCC 601 has held that, section 15 of T.A.D.A. 1987, is a clear departure from the general law that a statement made to a police officer is not permissible in evidence.
Section 15 of the TADA Act 1987and section 18 of the Maharashtra Control of Organized Crime Act 1999, provides that, certain confessions made to police officer to be taken into consideration. The police officer recording the confession should not be below the rank of the Superintendent of Police.
Under both the acts it is mandatory to send the recorded confessions forthwith to the Chief Judicial Magistrate or the Chief Metropolitan Magistrate having the local jurisdiction over the area in which such confession is recorded, and such Magistrate shall forward the recorded confession so received to the designated/ special court which may take cognizance of the offence.
Hon'ble Supreme Court, in case of Kanhaiyyalal v/s Union of India reported in AIR 2008 SC 1044, has held that, “An officer vested with the powers of an officer in charge of a police station under sec. 53 of the NDPS Act is not a police officer with the meaning of section 25 of the Evidence Act. Thus it is clear that a statement made under sec. 67 of NDPS act is not the same as a statement made under section 161 of Cr.P.C. unless made under threat or coercion. It is this vital difference which allows a statement made under section 67 of the NDPS act to be used as a confession against the person making it and excludes it from the operation of section 24 to 27 of the Evidence Act”.
Section 164 of Code of Criminal Procedure, 1973 deals with recording of confessions and statements.
The conjoint reading of section 26 of Indian Evidence Act and section 164 of Code of Criminal Procedure, 1973 gives the exact meaning to record the confession of accused.
Section 164 of Code of Criminal Procedure, 1973 further speaks that, “A Metropolitan or Judicial Magistrate, may whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this chapter or under any law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial”. It further provides that – No confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.
Exception to Section 25 and 26 of Indian 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 consequences 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 confession or not, as relates distinctly to the fact thereby discovered, may be proved.
Various requirements of this section :
1 The fact of which evidence is sought to be given must be relevant to the issue.
2 The fact must have been discovered.
3 The discovery must have been in consequence of some informationreceived from the accused and not byaccused's own act.
4 The person giving the information must be the accused of any offence.
5 He must be in the custody of a police officer.
6 The discovery of a fact in consequence of information received from the accused in custody must be deposed to.
7 Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is in-admissible.
Confession before the Magistrate:
Section 164 of Cr.P.C. deals with the provision of recording of the confessions and statements by the Magistrate. Confession of a person is also made before the Magistrate or Court in the course of judicial proceedings
Following is the prescribed procedure for recording confession.
1 Confession should ordinarily berecorded in open court and during court hours.
2 Police officer should be removed from the court room unless in the opinion of the Magistrate, the duty of ensuring the safe custody of the accused cannot be left tothe other attendants.
3 Court should impress upon accused that he is no longer in police custody.
4 There must be inquiry by the court to the accused about ill-treatment on improper conduct or inducement on the part of police and in spite the alleged ill-treatment, misconduct or inducement, he adheres to his intention of making a confessional statement, the Magistrate should give the accused a warning that he in not bound to make confession and that if he does so, it will be taken down and may thereafter be used as evidence against him. A note of the warning given to the accused should be kept on record.
5 The Magistrate should give accused a reasonable time not less than 24 hours for reflection.
6 After accused is produced again, he be ascertained as to whether he is willing to make a confession. If the accused expresses his desire to confession, all the police officer should be removed from the court room unless his safe custody entrusted to other attendants. In that case minimum police officer should be allowed to remain inthe court room.
7 Magistrate then inquire the accused about the length of time during which he has been in custody of police.
8 Provisions of section 163, 164 of Cr.P.C. should be scrupulously followed.
9 Court has to satisfy that impression caused by any suchinducement, threat or promise has been fully removed.
10 Before recording confession, the Magistrate is bound toquestion the accused person unless upon that questioning he has reason to believe that the confession is voluntary, he cannot make the memorandum at the foot of the record.
11 Before recording a confession, the Magistrate should question the accused with a view to ascertaining the exactcircumstances in which his confession is being made and the connection of the police with it under clause iv, vi, x of the criminal manual.
Hon'ble Supreme Court in case of Babubhai versus State of Gujrat, reported in 2007 Cr.L.J. 786, has held that, “while recording the confession oath should not be administer to the person while making the confession”.
12 Magistrate should add to the certificate, the ground on which he believes that the confession is genuine , the precaution which he took to remove accused frominfluence of police and the time , if any given to accused for reflection.
13 It is mandatory on the part of Magistrate as per sec. 164 (4) that the confession shall be recorded in the manner provided in section 281 for recording the examination of an accused and it has to be signed by the person making the confession and to make a memorandum at the foot of such record to the following effect-
“ I have explained to --------- ,that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him”
Magistrate.
Confession should also be recorded in question answer form.
It is mandatory on the part of the Magistrate that while recording the confession of a person he should follow section 163, 164 of the code of criminal procedure scrupulously.
Hon'ble Supreme Court, in case of Ramsingh v/s Sonia reported in 2007 Cr.L.J 1642, has held that, “If magistrate failed to question about voluntariness of confession to the person making confession, but in evidence before court he states that he had asked such question to the person making confession and also certificate as mentioned in section 164 of Cr.P.C is appended to the confession then such confession cannot be discarded on the ground of such irregularity in view of section 463 of the Cr.P.C.
If the First Information of an offence is given by the accused to a Police Officer, and that information admits his own guilt, it is a confession which cannot be proved under section 25 of the Indian Evidence Act against the accused.
Hon'ble Supreme Court, in case of Aghnoo Nagesia -versus- State of Bihar, reported in AIR 1966 SC 119, has observed that, “(18) If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by S.25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27”.
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