Confessions to the Police & their Admissibility – SECTION 25, INDIAN EVIDENCE ACT, 1872

Confessions to the Police & their Admissibility SECTION 25, INDIAN EVIDENCE ACT, 1872

Author: Navni Sisodia,
3rd year,
O.P Jindal Global University, Sonipat.
Confessions to the Police & their Admissibility

One of the most instrumental provisions in the evidence act, section 25 talks about the admissibility of a confession made to a police officer. This section has been through a lot of clarifications due to its ambiguous nature and the fact that the term ‘police officer’ has not been elucidated enough nor any definition has been provided by the Act. The very first case wherein the actual intention of this section was explained was the Hurribole Case[1]where the position of Deputy Commissioner of Police was clarified and held to  be within the ambit of the term ‘police officer’. The Court spoke about the intentions of the section and adopted a vision where the term would be seen in a functional way rather than focusing on the technicalities of the posts and positions within the system. The purpose of this section was to make sure that no accused is subject to any coercion or influence where the police can conveniently extort confessions through any means they can. This section has had a tiring journey with the courts concurring and contradicting its intention and ambit since its inception.

One of the main questions as we know, is ‘who is a police officer’. In the case of Nanoo Sheikh Ahmed v Emperor[2] , the role of excise officers was questioned, where the court held that it was not merely the title or the name ‘police officer’ which would be covered by Section 25,  since the excise officers had similar powers to investigate they would also be covered by this section.

 In 1934, the case of Amin Sharif v Emperor[3] also came to a similar conclusion when talking about excise officers and their inclusion under this provision based on the nature of their powers.However, in 1932, in Radha Kishun Marwari v. Emperor, the court used a different approach and explained that if the ‘similar nature of powers’ were to be applied then it would lead to undue expansion of the provision’s ambit.

In the case of Barkat Ram[4], the main issue was also somewhat similar as it talked about whether or not a sea customs officer would mean a ‘police officer’ under section 25 of this act. The majority held that in the case of a customs officer, under the Sea Customs Act, 1878, the powers conferred on the customs officers are – to keep a check on smuggling of goods and evasion of duties unlike the powers of a police officer which are kept in check through section 25. Just the fact that their duties are similar to that of police officers does not include them in the ambit of the section as the primary duties of  a police officer are prevention and detection of crimes.

Next came teh Raja Ram Jaiswal v State of Bihar[5], which was another case where an excise officers powers under the Bihar and Orissa Excise Act, 1915 were in question with reference to section 25 of the Indian Evidence Act. The Court held that the main question is whether the excise officer under the above mentioned Act had investigative powers or not. It is the existence of investigative powers which attract section 25. Just like in the Barkat Ram case, the sea customs officer did not have the powers in question according to the Sea Customs Act, 1878, but since the excise officer under the Bihar and Orissa
Excise Act did have the power, the confession made to him would be inadmissible.

The Supreme Court laid down a definitive test in the case of Badku Joti Savant v State of Mysore[6], where the question was whether the officer in question had the power to file a chargesheet on which cognizance could be taken by a Magistrate as per section 173 of the CrPC. Therefore the excise officers in this case, governed by the Central Excise and Salt Act, 1944, were not police officers. In a 1980 case, Balkishan Devidayal v. State of Maharashtra[7], the same test was applied and confessions made to Railway protection force officers were held inadmissible.

In Raj Kumar Karwal v. Union of India[8], the validity of confession made to officers of the Department of Revenue intelligence was the main issue as these officers had been given the powers of a police officer in charge by section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court explained, taking a similar approach as its predecessors, that section 25 would apply when not only the officer in question would have all the powers of investigation but also the powers to file a chargesheet against the accused as provided under section 173 of the CrPC. Therefore, the Department of Revenue Intelligence officers were not considered to be police officers in the view of section 25.

In one of the recent cases, Noor Aga v State of Punjab[9], the question was on the validity of confessions made to the Customs Officers, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The lower courts went by tests laid down in Badku and the judgement held in Barkat Ram and arrived at a conclusion on the basis of whether these officers had the power to file a chargesheet and the nature of power conferred upon them. But in this case, the Supreme Court then went on a different path, where it explained that when talking about the NDPS Act and the powers it confers upon the Customs officers firstly, through this Act the Customs officers are given the power through a statue which gives the powers at par with the police officer. Secondly, the nature of these powers is different from the powers conferred upon the very Customs officers by the Sea Customs Act. By the NDPS Act, the Customs officers’ powers are applied in the detection and prevention of the crime, rather than prevention of smuggling as given in the Customs Act.

In 2011, the Courts went referred to both Noor Aga case as well as the Karwal case, in two different cases. Among them it was Ram Singh v. Central Bureau of Narcotics[10], where the Court deviated from the judgment given in Noor Aga case and went back to the decision in Karwal, giving primary importance to the existence of the power to file a chargesheet and therefore officers of the Narcotics Bureau could not be termed as police officers. It was seen in November itself, the Court went back to the judgement given by Noor Aga case, in the case of Nirmal Singh Pehlwan v. Inspector, Customs[11], thereby making the confession given to a Customs officer admissible.

Looking at the way the courts went about in deciding all of these cases over the time, it’s clear that the courts have set certain guidelines for the section according to which, firstly the section applies to all ‘police officers’ whether they have the investigative authority or not. Then moving on to those officers who have similar powers, as that of a police officer, they need to fulfil the requirement where they need to possess the power to investigate, primarily the power to file a chargesheet through which the Magistrate can take cognizance of the crime.

It is fair to deduce that for all intents and purposes this section is to protect the accused. As the Supreme Court stated in Dagdu v State of Maharashtra, “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 fu
ll and through 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.”[12]

Along with this, another reason for the exclusion of confessions to the police as admissiable evidence can be that there’s always a high chance of such a confession being not being voluntary, therefore not reliable. As per the section, any such confession made to the police shall be irrelevant whatever may be its form, direct, express, implied or inferred from conduct.

The few usual circumstances where the question of applicabilty of this provision arrives are confessional FIRs, something which was central to the case of Deoman Upadhaya[13]where it was held that only the non confessional part of the FIR would be covered by section 27 of the Indian Evidence Act and the can also be shown as evidence against the accused under section 8 as showing their conduct.[14]

Similarly, statements which do not amount to confession are not protected by section 25. A statement in the course of investigation was that the design was carried out according to the plan. The statement did not refer to any of the people who were involved in the said murder, nor did the accused, refer to himself. This was held to be not a confessional statement. Hence, not hit by section 25. The statement of an inspector 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.[15]Therefore a statement needs to meet a certain criteria to amount to a confessional statement. If the statement does not admit guilt in terms or sustain all the facts which constitute the offence, then that statement will be admissible even if made to police officer, for example if an accused says that they witness the said crime they are being tried for. Such a statement will then be admissible as evidence, since it’s not a confession, against him to show his presence at the spot.[16]Again when a statement made to a police officer before the person is even accused of something does not amount to anything. Therefore, if the person is accused after the statement, the said statement cannot be used against them.

Another instance would be the use of the confessional statement by the accused themselves. In such a scenario, the accused can rely on such a statement for his defence. “The statement of the accused in the 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.”[17]

A general principle in criminal law corpus delicti, which means body of the crime in latin, is a rule according to which an out of court confession is insufficient evidence for conviction. The purpose of this rule is to reduce the risk of conviction when the crime which has not even occurred yet or been proved to have occurred. The rule also helps in reducing the use of interrogation tactics that tend to strong-arm confessions, and to encourage the use of investigations.[18] The very existence of such a rule is an acknowledgement of the phenomenon of false confessions still a lot of courts lean towards finding corroborative evidence to prove the occurrence of the crime rather than figuring out if the confession itself is reliable or not.

Moving forward, its essential that this section is approached with an increased sense of functionality, which would help in achieving the main purpose of the provision. Along with that there is a need to make sure that a rigid structure of who can or is a police officer or not is not being followed, which might make the Court ignorant to the
various possible ways in which such powers can be conferred upon other personnel through other legislative and bureaucratic procedures. After all it is essential for the criminal laws to keep progressing in such a way that it keeps on benefiting the society and every strata of the society too with the changing times as well as making it more accessible for the common people in the society. This exactly why it is surprising that a provision which was put in place to prevent infliction of any kind of torture to extract evidence by the police is riddled with so much confusion and yet the Parliament makes no effort to clarify the provision to put forth an amendment which exactly clarifies the intents and purposes of this section[19]. An added explanation or exact requirements could help in effectively do away with the controversy which surround this provision, since its introduction and perhaps prove to be an effective solution.

[1] The Queen vs Hurribole Chunder Ghose (1876) ILR 1 Cal 207
[2] Nanoo Sheikh Ahmed v. Emperor, AIR 1927 Bom 4
[3] Amin Shariff v. Emperor, AIR 1934 Cal 580.
[4] State of Punjab v. Barkat Ram, [1962] 3 SCR 338
[5] Raja Ram Jaiswal v. State of Bihar, [1964] 2 SCR 752
[6] Badku Joti Savant v. State of Mysore, [1966] 3 SCR 698
[7] Balkishan Devidayal v. State of Maharashtra, (1980) 4 SCC 600.
[8] Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
[9] Noor Aga v. State of Punjab, (2008) 16 SCC 417.
[10] Ram Singh v. Central Bureau of Narcotics, (2011) 11 SCC 347.
[11] Nirmal Singh Pehlwan v. Inspector, Customs, (2011) 12 SCC 298.
[12] Dagdu v State of Maharashtra, (1977) 3 SCC 68
[13] State of U.P v Deoman Upadhyaya, (1961) 1 SCR 14
[14] Confession under Indian Evidence Act, (last visited Oct 28, 2019)
[15] Evidence. Extra-Judicial Confessions, 42 Columbia Law Review, 1361 (1942)
[16] A STUDY ON CONFESSION UNDER INDIAN EVIDENCE ACT, 1872acadpubl, (last visited Oct 28, 2019)
[17]A STUDY ON CONFESSION UNDER INDIAN EVIDENCE ACT, 1872acadpubl, (last visited Oct 28, 2019)
[18] Corpus Delicti – Definition, Examples, Cases, ProcessesLegal Dictionary, (last visited Oct 29, 2019)
[19] Abhinav Sekhri, CONFESSIONS, POLICE OFFICERS AND § 25 OF THE INDIAN EVIDENCE ACT, 1872, 7 NUJS Law Review 1(2014), (last visited Oct 30, 2019)
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