NAME: ANSHITA AGRAWAL

ID: 2454

COURSE: CRIMINAL PROCEDURE CODE

PROJECT TOPIC: LAW RELATING TO JUDICIAL CONFESSIONS

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 TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................................................2

INDEX OF AUTHORITIES....................................................................................................................................3

STATUTES....................................................................................................................................................3

CASES............................................................................................................................................................3

INTRODUCTION....................................................................................................................................................4

RESEARCH METHODOLOGY.............................................................................................................................5

MEANING AND HISTORY...................................................................................................................................6

UNDERSTANDING THE PROVISIONS DEALING WITH JUDICIAL CONFESSIONS.................................7

QUESTION OF RELEVANCY..............................................................................................................................9

RETRACTED CONFESSIONS.....................................................................................................................9

CONFESSION OF CO-ACCUSED...............................................................................................................9

FALSE CONFESSIONS..............................................................................................................................10

CONCLUSION......................................................................................................................................................12

BIBLIOGRAPHY..................................................................................................................................................13

BOOKS/COMMENTARIES........................................................................................................................13

ARTICLES...................................................................................................................................................13

REPORTS.....................................................................................................................................................13

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 INDEX OF AUTHORITIES
Statutes
1. Code of Criminal Procedure 1973
2. Indian Evidence Act 1872
Cases
1. Badri v State of UP 1973 Cr LJ 1478.
2. Bhagwan Singh & Ors v State Of M.P (2002) 3 MP LJ 67.
3. Bharat v State of UP (1971) 3 SCC 950.
4. Chinna v State of Mysore (1963) 2 SCR 517
5. Emperor v Tukaram (1932) 35 LR 234.
6. Hari v State of Bihar (1964) 6 SCR 623.
7. Hemchandra Nayak v State of Assam 1989 CRL J 2058.
8. Kandaswamy v State of TN (1972) 1 SCR 450.
9. K.S Srinivasan v Union of India AIR 1958 SC 419.
10. Munshi Singh Gautam & Others v State of Madhya Pradesh (2005) 9 SCC 631.
11. Murugan v State 2006 Cr LJ 1085.
12. Muthuswami v State of Madras, AIR 1954 SC 4.
13. Nagesia v State of Bihar AIR 1966 SC 119.
14. Nand v State of Rajasthan (1963) 2 Cr LJ 702 (SC).
15. Nazir Ahmed v KE AIR 1936 PC 253.
16. Pakala Narayan Swami v The Emperor (1939) ILR 18 PAT 234.
17. Ram Chandra v State (1956) 1 All 236 .
18. Ram Singh v State of Uttaranchal 2008 (2) SCC 417
19. Akanman Bora v State of Assam 1988 CrLJ 573.
20. Shankaria v State of Rajasthan (1978) 3 SCC 435.
21. Subramania v State of Madras AIR 1958 SC 66.

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 INTRODUCTION
The law of judicial confessions brings to forefront a rather wonted dichotomy that criminal
jurisprudence faces; the dichotomy between the responsibility of the state to protect
individual rights and the duty of the Courts to render justice by ascertaining the truth. As it is,
judicial confessions are one of the strongest and gravely incriminating evidence in criminal
jurisprudence. The consequences that it leads to are fatal to the life and liberty of an
individual. Thereby, the need to give it primacy over the search for truth is extremely
important to recognise.

In this paper, the researcher aims to bring out the current position of Indian law with respect
to judicial confessions. It may seem that the statute is very clear on the topic, but a browse
through judicial interpretations proves otherwise. The paper also emphasises on how
intricately complicated the law surrounding it in India is, and therefore stresses on the need to
have clarity on the same. Lastly, along with describing the procedure for the same, the
researcher also tries to highlight the substantive rights and principles that are encompassed
within it. In all, the researcher makes at attempt to bring to light the importance of the
procedural aspect of judicial confessions to uphold constitutionally guaranteed rights and
liberties.

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 RESEARCH METHODOLOGY
Aim and Objective: The aim of this paper is to study the procedure regarding judicial
confessions and how they protect one’s substantive rights. The objective of this paper is to
analyze the law from a practical lens and thereby bring to light the weaknesses in the same.

Scope and Limitation: The scope of this paper extends to examining the law of judicial
confessions as it currently is in India. The limitation of this paper is that it does not focus on
the theoretical understanding of judicial confessions and is restricted to only the statutory and
judicial understanding of it.

Research Questions:

1. What provisions govern the law of judicial confessions?

Chapterisation: The main content of the paper is divided into 3 chapters. The first chapter
covers the meaning of judicial confessions and the nuances of the same. The second chapter
deals with the provisions that relate to judicial confessions. The third chapter discusses the
relevancy of different types of confessions and the loopholes in their procedure.

Sources of Data: For this paper, primary sources like the statutes such as the Code of
Criminal Procedure’ 1973 and Indian Evidence Act’ 1872, case judgements, and Law
Commission Reports have been relied upon. Additionally, secondary sources like books,
articles and websites have been referred to. 

Mode of Citation: A uniform mode of citation, specifically the 4th Edition of Oxford
University Standard for the Citation of Legal Authorities (OSCOLA), has been followed. 

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 MEANING OF CONFESSION
The word “confession” has not been defined anywhere in the Indian Evidence Act. However,
Sir James Fitzjames Stephen did define confession in his digest as “an admission made at any
time by a person charged with crime, stating or suggesting the inference that he committed
that crime."1 A similar definition was adopted by Indian courts in the case of Pakala Narayan
Swami v The Emperor2 wherein the Supreme Court held that "A confession is a statement
made by an accused which must either admit in terms the offence, or at any rate substantially
all the facts which constitute the offence." Thus, a judicial confession means an admission of
guilt by the accused in court. Partial admission of few relevant facts does not constitute
confession unless it's directly indicative of the offense.3 Even admission of a serious
incriminating act is not enough if it does not substantially point towards the commission of
the offense in question. A confession is not severable. A confession as a whole should point
towards the guilt of an offender. 4 If only a part of the confession is inculpatory and there are
other facts in the statement absolving the accused of the guilt, then it cannot be made
admissible under Section 164.5

Confession never means the admission of witnessing a guilt. In legal language, that refers to
hearsay. Confession therefore has to be by the accused himself. To avoid any confusion, the
difference between admission and confession is stated. As per Black’s Law Dictionary, the
difference is a matter of degree of expression. If inference has to be drawn, it is admission
and if it is an explicit statement of the accused, it is confession. 6 In simple terms, admission is
the genus and confession is the specie.7

1
James Fitzjames Stephen, A Digest of the Law of Evidence (Macmillan and Co., 1887) 28.
2
(1939) ILR 18 PAT 234.
3
ibid.
4
Chenu Khore v State of Orissa (1987).
5
ibid.
6
K.S Srinivasan v Union of India AIR 1958 SC 419.
7
Shivaji Rao, ‘Interpretation and Position of law: On Admission of Guilt during Enquiry’ (2002).

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 UNDERSTANDING THE PROVISIONS DEALING WITH JUDICIAL
CONFESSIONS

Section 164 of the Code deals with the procedural rule of judicial confessions in India. Along
with Section 164 of the Code Sections 24-30 of the Indian Evidence Act’ 1872 (hereinafter
Evidence Act) also contribute to the law of in-court confessions. They carve out the
substantive part of the law.8 Consequently, Section 164 is to be read with Section 24, 25, 26
and 29 of the Evidence Act. Section 164 prescribes the manner in which the confession is to
be recorded. At the outset itself it should be noted that Section 164 does not mandate a
Magistrate to record confessions. It has always been a discretionary power vested on the
Magistrate.9 Only if he/she decides to record it, the procedure prescribed in Section 164 has
to be observed.

There are 4 procedural requirements prescribed under Section 164.

1. The method of recording the confession and getting it signed should be according to
Section 281 of the Code.10 The process laid out under Section 281 is exhaustive and
incorporating any other step may prove to be extremely fatal. For example, a
Magistrate cannot ask the person making the confession to administer oath. At
multiple instances, the courts have declared the confession inadmissible on the
grounds of violation of Section 281 due to administering oath which isn’t provided for
in the said section.11
2. A warning has to be given to the person making the confession. The Judge is expected
to apprise the accused that he/she is under no obligation to make the confession and
that it can be used against him/her in a court of law. 12 This rule of warning is
popularly known as “Judge’s Rule”. In India it flows from the Rule of Law. 13 The
consequence of not giving a warning before recording a confession is that it
diminishes its evidentiary value except the parts which have been saved by Section 27
and 32 of the Evidence Act.

8
Nazir Ahmed v KE AIR 1936 PC 253.
9
Ram Chandra v State (1956) 1 All 236.
10
Criminal Procedure Code 1973, Section 164(4).
11
Ram Singh v State of Uttaranchal 2008 (2) SCC 417, Akanman Bora v State of Assam 1988 CrLJ 573.
12
Emperor v Tukaram (1932) 35 LR 234.
13
NS.R. Krishna Prasad v Directorate of Enforcement 1991 (3) Crimes 652.

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 3. The Magistrate should be convinced that the confession is voluntary. 14 Involuntary
confessions have absolutely no legal probative value, not even as corroborative
evidence.15 This is because police torture and custodial violence cannot be ruled out,
especially in Indian context.16 Because of the ambiguity that surrounded the concept
of “voluntary confessions” the Supreme Court in Hemchandra Nayak v State of
Assam17, listed out four conditions to determine whether a confession is voluntarily
made or not. The conditions were that it should have been made after due caution, and
with reasonable period of time to have had to anticipate the consequences of the act,
without any threat or coercion and without any possibility of fabrication or tutoring.
4. A Magistrate should make and sign a memorandum at the end of the confession. 18 It is
impertinent that the Magistrate “makes” the memorandum himself instead of
including a printed memorandum or merely signing it.19 This is a mandatory
requirement, the violation of which renders the entire confession inadmissible.20

Considering the high evidentiary value of confessions, its credibility needs to be safeguarded.
That is why confessions are recorded under Section 164 and not Section 162 of the Code. 21
The difference between the two are as follows:

❏ Under Section 162 police are empowered to record statements whereas in the latter
Section only a very limited class of magistrates are allowed.22 Section 164 allows any
and only Metropolitan Magistrate or Judicial Magistrate to record a confession.23 If
the confession is made to the police i.e. under Section 162, it will be inadmissible
under Section 25 of the Indian Evidence Act unless it qualifies as an exception under
Section 27 of the same Act.24 This is because the responsibility to record confessions
is huge and therefore it demands a certain degree of expertise as well as experience.
This is also the reason why the power to record confessions under Section 164 has
been limited to the Metropolitan and Judicial Magistrate solely and Executive

14
ibid 3.
15
Bhagwan Singh & Ors v State Of M.P (2002) 3 MP LJ 67.
16
Munshi Singh Gautam & Others v State of Madhya Pradesh (2005) 9 SCC 631.
17
1989 CRL J 2058.
18
ibid 3.
19
Badri v State of UP 1973 Cr LJ 1478.
20
Murugan v State 2006 Cr LJ 1085.
21
Ratanlal & Dhirajilal, The Code of Criminal Procedure (21st edn, Lexis Nexis).
22
ibid.
23
At the outset itself, it should be noted that Executive Magistrates are excluded from the Section and therefore
a confession made to them will not be regarded as a judicial confession.
24
Nagesia v State of Bihar AIR 1966 SC 119.

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 Magistrates have been excluded.25 This means that confessional FIRs are also
inadmissible.
❏ Section 162 statements do not need to be signed by the person making the statement
whereas under Section 164(4) a signature of the person making the confession is
mandatory. The object of this process is to deter people from giving false confessions
as they can be held liable for perjury in future.26
❏ The most important difference is the value attached to the statements under each
Section.27 While 162 statements can only be used for contradiction, 164 statements are
substantive evidence in themselves.

The only substantial amendment that was brought to the Code was by the Code of
Criminal Procedure (Amendment) Act, 2008. Section 16 of this Act added a new proviso
to Subsection 1 of Section 164 of the Code. It introduced the option of recording
confessions by electronic means (audio or video) in the presence of the lawyer of the
accused.

25
Law Commission, Thirty-Seventh Report on the Code of Criminal Procedure’ 1889 (1967) para 462.
26
ibid (n 18).
27
ibid.

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 QUESTION OF RELEVANCY
Confessions are considered relevant in India only if they are made voluntarily. But once these
conditions are satisfied it is an extremely crucial evidence in itself and needs very little
corroboration.28 In fact, courts have gone as far as holding that judicial confessions do not
need corroboration at all and are itself sufficient to convict the accused. 29 The twin test to
evaluate a judicial confession was laid down in Shankaria v State of Rajasthan30. The test was
to check whether the confession was voluntary or not and if it was, to assess whether it could
be relied upon or not i.e. to gauge its trustworthiness.

Retracted Confessions

The right to retract confessions emanates from Article 20(3) that provides the right against
self-incrimination. Even though the code doesn't make this distinction, it is needless to say
that retracted confessions do not have the same probative force as unretracted confessions.31
Therefore, retracted confessions cannot serve as stand-alone evidence to convict the
accused.32 It can in fact be used in a very limited sense, that is to corroborate with other
relevant details of the offense.33 The weight that is to be given to retracted confessions should
be looked by the court depending upon why the confession was retracted. 34 For instance, if
the reason for retraction was because it was just an after-thought, it may hold a higher
evidentiary value that if the reason was the previous confession was involuntary. The court
must always engage in the process of weighing the reason for retracted confession and the
voluntary nature of the confession. Many times, the reason for retraction is that the previous
confession was not voluntary and in most likely false. 35 Therefore, if the retracted confession
is proved to be involuntary, it does not even have minimum probative value and is irrelevant
in court.

28
Kandaswamy v State of TN (1972) 1 SCR 450.
29
Bharat v State of UP (1971) 3 SCC 950, para 6-8.
30
(1978) 3 SCC 435.
31
Aloke Nath Dutta v State of West Bengal (2007) 12 SCC 230.
32
Nand v State of Rajasthan, (1963) 2 Cr LJ 702 (SC).
33
Muthuswami v State of Madras, AIR 1954 SC 4.
34
Subramania v State of Madras AIR 1958 SC 66.
35
(n 11) 13.

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 Confession of Co-Accused

The value given to the confessions of a co-accused is not a substantial evidence on which the
accused can be convicted.36 However, it can be used as a subsidiary evidence along with other
evidence against the accused. The reason why confession of a co-accused is allowed in India
is because confessions of a co-accused are at times the most detailed explanations of what
actually happened. But at the same time, it has been limited to the extent of serving as only
“other evidence” because the co-accused himself is not a reliable source as he has every
reason to prove the other accused guilty. 37 For this reason many countries do not allow
confessions of co-accused to be relevant under their law. In fact, recently the Indian Supreme
Court also held that even though confession of co-accused is considered as evidence under
our law in the generic sense, it actually is not evidence is a very strict sense. 38 Now this kind
of interpretation creates a confusion in the minds of litigants and judges. Since confessions of
co-accused are allowed according to both the Code and Evidence Act, there is no reason the
Court should take a view contrary to it. In case, the judiciary feels the need to bring about
change in the law, it should clearly state that in the judgement as well. Thus currently, the
acceptability of confessions of co-accused remains a vexed question in Indian law.

False Confessions
False confessions are a rather indigestible phenomenon. To an average human mind, the idea
of admitting to an offense that one never even committed seems preposterous. However, if
one closely looks at the topic, there are more than one reason that comes into light. In fact,
how does someone even know that the confession was false? The answer to this is two-fold.
Firstly, it is very unlikely that confessionary statements made do not corroborate with other
evidence. And in case the declarant is not familiar with other evidence, the investigation
officers make sure to make him/her conversant of the same. Secondly, with the advancing
scientific methods of investigation, especially DNA testing, false confessions have been
recently begun to come to surface39. It has revealed shocking statistics of wrongful
convictions on the basis of false confessions.40

Research has shown that one of the foremost reasons for false confessions is the
overpowering control investigating officers have on people, especially juveniles. Police-
36
Hari v State of Bihar (1964) 6 SCR 623.
37
Chinna v State of Mysore (1963) 2 SCR 517; Bharat v State of UP (1971) 3 SCC 950.
38
Jenia Turner, ‘Regulating Interrogations and Excluding Confessions: Balancing Individual Rights and the
Search for the Truth’ (2019) Vol 74.
39
Mark A. Godsey, ‘Reliability Lost, False Confessions Discovered’ (2007) 12 UCL.
40
Anjana Dhital, ‘Legality of Confession with special reference to Evidence Law’ (2018) 5 LSP 23.

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induced confessions aren’t a new phenomenon. Psychologists have determined three errors
that lead to police coerced wrongful convictions.41 The first mistake is of wrongly suspecting
innocent people based on past experiences and biases. Most often, they are the most
vulnerable category of the community. For instance, statistics show that the number of
wrongful convictions are higher for the deprived sections than others. These biases stem from
inadequate investigation training provided to investigation officers. During their training they
aren’t made to unlearn the prejudices they are brought up with and that is why without even
having a “reasonable doubt to believe”. The second mistake is the method of interrogation. 42
The officers are convinced that the person they are interrogating is the guilty and therefore
apply an accusatorial method of investigation. Without even credible evidence they try their
best to pin the blame on the innocent. They create an environment which renders the accused
helpless and pushes him to falsely confess to end the haunting process. The third and the last
mistake is that the investigation officers conveniently weave a story about the crime and feed
it to the innocent.43 They are well aware of the importance of postadmission stage of hearing
and therefore acquaint the innocent with fabricated details that corroborate with the
evidences. This systematic method of targeting the vulnerable has drastic consequences. Not
only does it lead to harsh convictions but also erodes the faith of justice system.

41
Ibraheem Ojo Tajudeen, ‘The Relevance of Confessions in Criminal Proceedings’ 3 IJHS 21(1).

42
ibid.
43
ibid.

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 CONCLUSION
The paper has attempted to bring out the evidentiary value of confessions and the need to
understand the intricacies involved in the same. Minor errors in the manner of recording can
have grave consequences. The Magistrate should be fully conversant with the requirements
of law. He/she should also be very alert about the possibilities of police influence. Only if
he/she is satisfied with the voluntary nature of the confession, should it be recorded.
Otherwise, he will be merely aiding the police to convict any person to satisfy public outcry
or official pressure. Therefore, the Magistrate to assure that there are no infirmities in the
process of recording confessions.

As may have been observed, the law of judicial confessions is not very ideal. Furthermore,
despite clear statutory provisions being in place, it is still not consistent. The reasons that
have been identified is the disparate judicial reasoning given by different courts. Furthermore,
the greatest lacunae in our law is the improper check on the investigation authorities. The
police authorities misuse their powers to falsely implicate innocent people of crimes they
never committed. There is no mechanism in place to really check if the confession in
voluntary or not. Merely accepting the statement made by the person giving the confession
shows ignorance of reality. The only way this can be curbed is by adequate judicial training
and placing strict repercussions for acting injudiciously. Otherwise, the oblivious nature of
the Courts will increase the number of wrongful convictions based on confessions which will
in turn impact the credibility of the judiciary.

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 BIBLIOGRAPHY
Books/Commentaries
1. DD Basu, Code of Criminal Procedure’ 1973 (6th edn., Lexis Nexis Vol 1).
2. Ratanlal & Dhirajilal, The Code of Criminal Procedure (21st edn, Lexis Nexis)
3. James Fitzjames Stephen, A Digest of the Law of Evidence (Macmillan and Co.,
1887).
Articles
1. Mark A. Godsey, ‘Reliability Lost, False Confessions Discovered’ (2007) 12 UCL.
2. Anjana Dhital, ‘Legality of Confession with special reference to Evidence Law’
(2018) 5 LSP 23.
3. Solil Paul, ‘The Supreme Court on Confessions’ (2016) SATP 16.
4. Ibraheem Ojo Tajudeen, ‘The Relevance of Confessions in Criminal Proceedings’ 3
IJHS 21(1).
5. Jenia Turner, ‘Regulating Interrogations and Excluding Confessions: Balancing
Individual Rights and the Search for the Truth’ (2019) Vol 74.
6. Borchard EM, ‘Convicting the Innocent: Errors of Criminal Justice’ (1982) YLJ 95.
7. Shivaji Rao, ‘Interpretation and Position of law: On Admission of Guilt during
Enquiry’ (2002).
Reports
1. Justice J.S. Verma Committee, Report on the Committee on Amendments to Criminal
Law (2013).
2. Law Commission, Thirty-Seventh Report on the Code of Criminal Procedure’ 1889
(1967).
3. Law Commission, Forty-First Report on the Code of Criminal Procedure’ 1889
(1969).

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