Introduction

“Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.”

– Justice Stephen (Digest of the Law of Evidence)

The most satisfactory evidence in a case is the confession made by the accused. The basic application of it rests on the truth and accuracy of the said confession. It comes out from a great sense of guilt. Confession can be the decision-makers in a trial. In the Indian Evidence Act, 1872 the confessions are not explicitly defined but it comes under the category of admission, the accused admits to his guilt. The confession of an accused cannot be taken as the sole reason for conviction, it should be corroborated with other evidence. However, in a few instances, a confession made by the accused may result in mistreatment of the subject, due to its high probative value. Under the Indian evidence act, Section 24 to Section 30 deals with “confession”. Under the Criminal Procedure Code, Section 164, 281, and 463 deals with confessions.

Types of confession

Judicial confession:

Confessions made before the court or a magistrate during the proceedings of the case. Section 164 of the Criminal Procedure Code empowers any metropolitan or judicial magistrate to record confessions even without considering the jurisdiction of the case. These are known as judicial confessions under Section 164 of the Criminal Procedure Code. This type of confession is defined as a plea of guilty on arrangement. The judicial confession empowers only the judiciary to record statements and the executive has no authority to record confessions. Section 80 of the Indian Evidence Act governs the evidentiary value of confessions. The confession should be voluntary and the accused has to be protected under Article 20(3) of the Indian Constitution which talks about “self-incrimination”.

Extra-judicial confession:

The confession which is not made before a court or magistrate comes under the category of extra-judicial confessions. These confessions are usually considered an informal confession. Confessions made should be voluntary and it should not be made because of fear or any inducement, threat, or promise. This confession can be made during a conversation to oneself and it can be proved as evidence against himself when it is overheard by another person. In Sahoo v. State of Uttar Pradesh, the accused after killing his daughter in law, on his way out from the house, he said that he finished her and her daily quarrels. This statement was held to be a confession that can be proved against him. It was held that the confession doesn’t need to be communicated to any definite individual.
Confessions can be made through letters also. This type of extra-judicial confession has credibility in the court to prove one’s guilt. The Supreme Court has given guidelines to check the credibility of extra-judicial confession. Extra-judicial confession is a weaker kind of evidence compare to judicial confession. High-level scrutiny is needed to examine such confession. The value of extra-judicial confession increases only if the statement is consistent and convincing that the accused can be proved against his confession. Independent corroborating evidence is needed to support the extra-judicial confession.

Retracted confession:

Any confession which is made voluntarily is taken back or revoked, then it is known as a retracted confession. The court has the power to decide the credibility of such a confession. It differs from each case because of the facts and circumstances. If the confession is proved, then it can be considered as a base for conviction. The retracted confession can be used as legal grounds for conviction only if the court satisfies that the confession is true and it is made voluntarily. But the retracted confession should be supported by corroborative evidence.

Section 24 of the Indian Evidence Act

The word confession first occurs in section 24 of the evidence act. Section 24 specifies that confession by an accused is induced by threat or promise will become irrelevant to criminal proceedings. If it appears to the court that the confession will result in the gain of some person who is in authority or it would avoid any evil of temporal nature, such confession is discarded from the case. The main elements of this section are
• The confession should be a result of inducement, threat, or promise.
• Such threat or inducement should flow from a person in authority.
• The confession should be related to the charge imposed on the accused.
• The confession made should either benefit a person or detriment to a person.
This section does not need proof of a threat to exclude a confession, it only needs a reasonable ground to believe that there was inducement or threat or fear interfering with the confession. If there is a reasonable doubt that threat or promise has been involved in the confession, then the burden of proof lies on the prosecution to prove that there was no such threat or promise. It is the right of the accused to be protected from such threat or inducement. Section 316 of the Criminal Procedure Code prohibits such threat or inducement towards the accused.

Section 25 of the Indian Evidence Act

Confession made before police cannot be used as evidence to prove against the accused of any offense. The confession before the police is usually considered an involuntary confession. If it is regarded as admissible, then the police would torture the accused to confess to the crime. Even if the accused has not committed the crime, he would be pressurized to confess due to the conduct of the police. So the court is restricted from using a confession before the police as grounds for conviction. The mere presence of police during the confession will not affect the voluntary nature. If confession is recorded before the magistrate and if police are present at the place will not be regarded as inadmissible.
Confession overheard by police is also admissible. But a secret agent of the police is appointed to receive the confession will destroy the validity of it. The only confession before the police is not taken as evidence but the mere saying of facts before the policy is taken into consideration. If an accusation is done after a person’s statement, then such confession also cannot be used against him. Only the non-confessional part of FIR can be used against the accused. If a confession is written by a person in a letter to the police, then it is admissible because the police were not present when he wrote the letter.

Section 26 of the Indian Evidence Act

Section 26 is an extension of section 25. Section 26 prohibits the confession made by the accused in police custody. But if there is a magistrate present during the confession, then it is admissible. The magistrate under section 26 should be exercising his powers mentioned under the Code of Criminal Procedure, 1882. The freedom of the accused and voluntary nature of confession is assured when the magistrate is present. A confession made before the village head (Pradhan) in police custody is also inadmissible. The Head of the village cannot be considered as a magistrate.

Section 27 of the Indian Evidence Act

Section 27 acts as a proviso to section 25 and 26. This section says that if a confession is supported with the discovery of any fact then it is considered as true, and such confession is admissible. If a fact is discovered as a result of the statements of the accused then the confession made by the accused can be taken to prove against him. Section 25 and 26 imposes a complete ban on confession before police, but section 27 acts as a proviso to these sections and it permits confessions that allow discovering facts in support of it. If an accused confesses due to the torture of police but facts are discovered after the statements, then it is admissible under section 27. A confession becomes admissible if it satisfies the provisions of section 27 even though it is prohibited under section 24 of the act.

Section 28 of the Indian Evidence Act

If the inducement, threat, or promise mentioned under section 24 is fully removed then such confession is admissible. It can be removed by intervention by a person in authority or by lapse of time. The burden of proving that the threat has been removed is on the prosecution.

Section 29 of the Indian Evidence Act

Section 29 of the act tells that confession cannot be held irrelevant in a few cases:
• By giving a confession statement in the promise of secrecy.
• By giving confession when the accused was drunk.
• By answering questions to which he is not bound to.
• No warning was given to the accused.
Confessions are admissible as per section 29, even though the accused was not warned before making it or was not bound to make it.

Section 30 of the Indian Evidence Act

When more than one person is jointly tried for the same offense, then the confession statement of one person bounds the other persons also. Such confession affects himself and other people who have jointly committed the offense. The word offense in this section includes abetment or attempt of an offense also. If A, B, C are jointly tried for the murder of D. Then if B gives a confessional statement that A, B, and C have done the offense jointly, then the confession affects all three persons. But confession of a co-accused cannot be taken as the “sole ground” for conviction of all the accused.

Conclusion

The confession has played a vital role in criminal law. It is a part of admission provisions in the evidence act. If confession is true and admissible in court, then it is considered satisfactory evidence to prove the guilt of the accused. Section 24 to 30 of the Evidence Act as elaborated in this paper covers most of the aspects of the confession. The legal provisions regarding confession protect the accused from mistreatment and the constitutional right under Article 20(3) is also upheld. If threat or inducement is completely removed, then such confession becomes admissible. If a confession is made in police custody then it is not taken into consideration, therefore this prevents the accused from police torture. Many provisions in both the evidence act and criminal procedure code uphold the rights of the accused.

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Estate Officer, Excise Area v. Smt. Somwanti Aggarwal

Facts:

The appellant-defendant Excise Officer and others filed an appeal before the Punjab and Haryana High Court against the judgement dated 15-01-2010 passed by the lower court decreeing the suit in the respondent no.1-plaintiff Smt. Somwanti, affirmed by the judgement of the First Appellate Court dated 17-11-2011. The appellant issued a notice dated 23-12-1999 to Respondent no.1 regarding Bunglow no.126-B situated at Staff Road, Ambala Sadar, whereby they claimed that the suit property under General Land Register (GLR) survey no.267, Ambala Cantonment was held on ‘Old Grant’ terms contained in Governor General’s Orders (GGO) no.179 dated 12-09-1836. The appellant’s contended that respondent no.1 violated the terms and conditions of the grant by unauthorized constructing and by increasing the plinth area, thus the Government was entitled to resume the suit property.

On receiving this notice, the respondent filed a civil suit to seek relief by declaration and injunction while claiming respondent no.1 to be the absolute owner of the suit property and that it was never held on any terms and conditions nor was an ‘Old Grant’ as claimed by the appellant. Respondent no.1 stated that she had purchased the suit property from R.B. Vishan Bhagwan for a valuable consideration by a registered sale deed dated 12-09-1969, free from all encumbrances, the respondent had applied for mutation of property in her name which was granted to her, after purchasing the property she had constructed 63 shops and 08 halls and the Municipal counsel charged house tax over the same. It was submitted by the respondents that the Excise Officer did not have the right to resume the suit property as it was not an ‘old grant’.

In the alleged GLR, the Union of India was shown as the landlord, so the Government of Haryana had no right, title or interest in the suit property and that in was never held under GGO no.179, which is not applicable to the Ambala Cantonment as it was never a station of Bengal Army. It was alleged that the GLR was made on the basis of assumptions after 103 years of establishment of the Ambala Cantonment and that the Cantonment Magistrate/ Military Estate Officer (M.E.O) had illegally obtained admission deeds in their favour from the owners under coercion and pressure, they stated that the alleged GLR was not a complete legal document and was prepared against the knowledge of the owners. They submitted that without the approval of the Defence Minister of Central government resumption could not be made, similarly no defence or public purpose was mentioned in the notice.

The Haryana Municipal Act was only applicable on the Ambala Sardar area, which had no provision for resumption. The notice did not mention the alleged unauthorized construction. The respondent also submitted that as per the GGO dated 12-09-1836, the power of resumption under clause (6) is only applicable to properties for which grants have been made and registered under clause (5). The appellant stated that respondent no.1 was denied the absolute and full ownership of the suit property based on merits, they also denied it being free from encumbrances. They stated that as respondent no.1 had only occupancy rights as per the GLR. They submitted that as per the GLR the property was vested in the Government of India was transferred to the State of Haryana, by excise agreement dated 05-02-1977. They also stated that respondent no.1 had given admission deed in the office of MEO. The notice was issued on the directions of the competent authority and that the Excise officer was designated for initiating proceedings for resumption, thus the notice was and in accordance with the law.

They submitted that respondent no,1 had no title or ownership over the property and had violated the purpose of use of grant by unauthorized construction. They stated that no complaint or FIR had been filed regarding the forcefully and illegal taking of admission deed, and that the MEO had resumed a number of bunglows in Ambala Cantonment on the basis of the GLR. They also stated that GGO no.179 should be applicable as the Government of India had adopted the same land policy for all cantonments in India by a letter dated 15-11-1976. They stated that as per the excision agreement which was not disputed by the respondent no.1, she had occupancy rights and the title of ownership was vested in the State of Haryana. The lower court after considering all the facts and evidence on record, issued the decree in the respondent’s favour, the First Appellate Court upheld the decision of the lower court, aggrieved by this the appellant approached the Punjab and Haryana High Court. 

Issues:

• Whether the State of Haryana has any right over the suit property and if the Excise Officer has the right to resume property.
• Whether the reason given for a delay of 518 days in filing a second appeal is sufficiently proved by the appellant.

Legal Provisions:

• Evidence Act, 1872 Section 110- Burden of Proof.
• Cantonments Act, 1924 Section 289- Admissibility of document or entry as evidence.
• Limitation Act, 1963 Section 5- Condonation of Delay.

Appellant’s Contention:

The appellant contended that the court did not appreciate the facts and evidence brought on record. They stated that it was a fact that respondent no.1 had filed the admission deed and had failed to prove her ownership by the sale deed dated 24-09-1969 as claimed also failed to prove it to be private property, and the notice of excise agreement dated 05-02-1977 established that respondent no.1 was not the owner of the suit property. They stated that the courts did not appreciate the copy of GLR admissible under sec-28 of the Cantonment Act. The appellant submitted an application for condonation of delay of 518 days in filing a second appeal, stating that the competent authority by an order dated 12-12-2011 allowed to engage an attorney and a file was handed over to clear named Jai Bhagwan who retired on 31-12-2011, due to which the further proceedings in the matter entrusted on to him were not completed, this fact came to be known only when Surinder Singh (lease clerk) joined in March 2013, the appellant submitted that they had initiated departmental proceedings against Jai Bhagwan, thus the delay was not intentional, so the court should condone the delay.

Respondent’s Contention:

The respondent’s contended that the courts had issued the decree in their favour after considering all the facts and evidence in the case, all the arguments were dealt with in detail and so the findings of the court should not be interfered with. They submitted that the present appeal is barred by the period of limitation as the appellant did not provide sufficient reason for a delay of 518 days in filing a second appeal. They submitted that there was no document on record to show that the order to file a second appeal and engage a counsel was issued on 12-12-2011, also the date on which the case was handed over to the dealing clerk was not mentioned in the application. They called the appellant’s story seeking condonation of delay to be fabricated and false. 

Observations of the Court:

The case was heard before the Punjab and Haryana High Court Bench of Ms. Jaishree Thakur, J. The court held that as per provisions of sec-110 of the Indian Evidence Act 1972, in the present case, since the appellant claims that respondent no.1 is not the owner of the suit property and denies that the property is free from all encumbrances, the burden of proving these claims lies with the appellant. The appellant did not produce the original GLR on the record, the court referring to the judgement in the case of Phiroze Temulji Aklesaria v. H.C. Vashistha and others (1980) held that GLR entries cannot be relied upon. The court noticed that the appellant did not produce on record any ‘Old Grant’ or any terms and conditions or anything to support the notice issued for unauthorized construction.

The cross-examination of Jai Bhagwan, supported the respondent’s case, he admitted that no admission deed was given in their office, he did not know the year or date on which the deed was given, also that there was no deed for grant or terms and conditions of Old Grant with them, and the letter dated 05-02-1977 no power of resumption was given, that all construction were made by the respondent in accordance with the site plans, there was also no survey report. The appellants had failed to establish that the suit property was an Old Grant or that they were owners of the same. The court noted that the arguments of the appellant not being justifiable their appeal is liable to be dismissed. The court on the application of condonation of delay noted that the same is at the court’s discretion. The court observed that there was no record of the notice by competent authority to engage a counsel, no document to show that the case was handed over to Jai Bhagwan, no record to shown when Surinder Singh joined in place of Jai Bhagwan in March 2013, also there was no evidence of departmental proceeding initiated against Jai Bhagwan. The court noted the lack of sufficient cause given to condone the delay by the appellant in filing a second appeal.

Judgement:

The court did not find any illegality in the judgements and findings of the lower court and First Appellate Court. It found no merit in the appellant’s appeal and so dismissed it. The court also did not find sufficient cause to condone the delay of 518 days and so dismissed the application for the same.

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Pravin Kumar v. Union of India

Facts:

The appellant- Pravin Kumar approached the Supreme Court against the order of the Bombay High Court of quashing his writ petition. The appellant was deployed at the Crime and Intelligence Wing at Central Industrial Security Force, at the local Bharat Petroleum Corporation Limited (BPCL) in Mumbai. On 02-08-1999, Constable Ram Avtar Sharma (CW1) at around 6pm was noticed by Inspector Hiralal Chaudhary (PW1) carrying huge bundles of notes, Chaudhary searched the person of Sharma and recovered an amount of Rs. 10,780 from him, a record was made of the seizure in the General Diary kept at the north-gate of BPCL compound. Later it was found that a GD entry was made at the main gate at 6:05 pm, noting an amount of Rs. 9000 handed over by Constable K.K. Sharma (PW2) on behalf of another official as a personal loan, during investigation this entry was found to be false and was registered at the instance of the appellant who made calls to ASI Surjan Singh (PW5) who was in-charge of the GD. K.K. Sharma was pressurized by the appellant to falsely support his ‘loan theory’ by deposing that he had in fact delivered the cash to CW1. An FIR was registered with the Anti-Corruption Bureau of Investigation, and an enquiry was initiated against the appellant under Rule 34 of CISF Rules 1969, with Assistant Commandment P.B. Patil as the enquiry officer and by an order dated 31-05-1999 the appellant was suspended.

The enquiry officer submitted a self-speaking report on 17-09-1999, in which PW1 testified to search of CW1 and seizure of Rs. 10,780 from him, PW2 negated handing over the money to anyone and mentioned that he was threatened by the appellant into giving a false statement. PW5 testified that he received a call from the appellant intimidating him into registering a false GD entry with an earlier time to substantiate his loan transaction for protecting CW1. CW1 was examined by the enquiry officer who testified that on 02-08-1999, he received Rs. 10,000 on the appellant’s behalf from one D.K. Parmar-contracted by the BPCL for lifting garbage/waste. The notes were in his possession along with his personal cash of Rs. 780, when was caught by PW1, he also admitted to have falsely claimed to have received the money from PW2, he stated that the appellant illegally collected bribes through his subordinates from BPCL contractors at the rate of Rs. 20 per vehicle entering the BPCL compound and Rs. 5 per vehicle exiting, for facilitating the theft of ‘iron scrap’ and ‘brass’ smuggled out of the compound along with the garbage, however, CW1 later retracted his statement. The appellant was given opportunity to prove his evidence.

The enquiry officer held the appellant guilty on the charges of gross misconduct and indiscipline for ordering false GD entry, second, for becoming an extra constitutional authority for issuing unlawful orders to PW2 to give a false statement and thirdly, corruption for illegally collecting bribes. The report was placed before the disciplinary authority and the appellant was given a chance to respond to the same. The disciplinary authority found no contradictions in the witness testimonies and the charges against the appellant was found to be proved. They found the enquiry officer to have followed the procedure properly and impartially and also noted that no request was ever made to change the enquiry officer so no malice can be suggested. The disciplinary authority considering the evidence and serious nature of the appellant’s charges passed an order dated 20-11-1999, imposing an exemplary punishment of dismissal from service under Rule 29(a) read with Rule 31(a)- Schedule II of CISF Rules, 1969.

The appellant filed a departmental appeal before the Deputy Inspector General of CISF Western Zone; the appellate authority after considering the appellant’s contention and reappreciating the evidence-on-record, dismissed the appeal. The appellant than approached the Bombay High Court against the orders of the Disciplinary Authority and the Appellate Authority under Article-226 of the Indian Constitution. During this appeal, the appellant raised a new contention that Rule 34 (10)(ii)(b) of the CISF Rules, 1969 was not complied with, which specified serving of a second showcause notice and opportunity of hearing regarding the proposed penalty and submitted before the court that it was not his case that the penalty imposed against him was disproportionate if the charges against him were held to be proved. The court found that the CISF rule relied upon by the appellant was amended in 1981 to have no requirement for showcause notice at the stage of penalty. The court re-examined the evidence and facts of the case and found sufficient evidence against the appellant’s involvement in collecting bribes and fabricating official records and intimidating officers to give false statements. They found that the enquiry officer followed all procedures and complied with the principles of natural justice, also gave ample opportunity to the appellant to prove his side, the writ petition was dismissed on 05-05-2009. The appellant thus approached the Supreme Court. 

Issues:

• Whether the appellant was rightly charged for the offences and dismissed from service by the Disciplinary Authority, and whether the Appellate Authority and High Court was right in dismissing his appeal.
• Whether the dismissal of the appellant from service is disproportionate to the charges proved against him.
• Whether the Enquiry Officer took over the role of Judge as well as Prosecutor by asking question to the witness. 

Legal Provisions:

• Constitution of India, 1950, Articles 226, 32 and 136 – Judicial review.
• Central Industrial Security Force Rules, Rule 34 – Nature of Penalties- Major/Minor
• Central Industrial Security Force Act, 1968 Section 22 – Disciplinary proceedings
• Evidence Act, 1872, Section 165- Judge’s power to put questions or order production.

Appellant’s Contention:

The counsel for the appellant submitted that since CW1 had retracted his statement, there was no corroboration between the witnesses and the documents. They also questioned the enquiry officer’s conduct of asking questions to the witness, they called it unfair as he acted as both the judge and prosecutor. The appellant denied the charges against him and stated that false charges were levelled against him. They stated that since the CBI was not launching criminal proceedings against the appellant this charge should also be dropped. He prayed for leniency and stated that dismissal of service given his 21 years of remaining service was disproportionate. 

Respondent’s Contention:

The counsel for the respondent stated that no reliance was placed on CW1’s retracted statement. They stated that all the charges were proved against the appellant, the concurrent findings of the enquiry officer, disciplinary authority, appellate authority and the High Court left little scope for reappreciating evidence or re-adjudication. They referred to the case of Shashi Prasad v. CISF to put forth the argument that departmental enquiries are not out on the same pedestal as criminal proceedings, so acquittal in one would not affect the other due to different standard of proof. Further reliance was placed on the case of Govt. of Andhra Pradesh v. Mohd Narsulla Khan (2006) to claim that there cannot be re-appreciation of evidence and that the Constitutional Court should not act as appellate authority in disciplinary proceedings of government employees.  They also stated that given the delicate nature of employment in para-military forces and the breach of high trust reposed in him by the society, strict punishment of dismissal from service given to the appellant was justified. 

Observations of the Court:

The case was heard before the Supreme Court Bench of N.V. Ramana, S. Abdul Nazeer and Surya Kant, JJ. The court observed that the power of judicial review under Articles 226, 32 or 132 of the Constitution is different from the appellate power exercised by a departmental appellate authority. It stated that the court under Judicial review ensures fairness in treatment and evaluates the decision-making process and does not decide the merits of the case nor does it correct manifest errors of law. The court in appeals arising out of inquiries conducted on charges of misconduct by public servant is concerned with determining if the principles of natural justice were complied with and if the findings are based on some evidence. The court exercising powers of Judicial Review does not become an appellate authority and is limited to correcting procedural errors or violation of natural justice principles. The court observed that the Bombay High Court did not merely rely on the findings of the appellate authority rather re-examined evidence, conducted cross-examination and gave the appellant the chance to address arguments, raise objections and file appeal.

It also noted that the High Court adopted a liberal approach to Judicial Review and came at its own conclusion of guilt. The court also did not doubt that the appellate authority and disciplinary authority were thorough in their findings and it did not find any fault in the report of the enquiry officer. The court noted that the present case is not where there is no evidence or a different conclusion can be arrived at than the disciplinary authority. The court stated that the appellant’s contention that the enquiry officer by asking questions to the witness violated principles of natural justice as he became the judge as well as prosecutor, is misplaced. The court held that u/s-165 of the Indian Evidence Act, judges have the power to ask questions to any witness or party about any fact to obtain proper proof of the same. The court observed that the appellant did not mention any specific instance in his allegation, also no request was made to replace the enquiry officer which proves this objection was just an afterthought. The court noted that the CBI after investigation did not find sufficient evidence to launch criminal proceedings against the appellant but by a report dated 07-03-2000 recommended strict disciplinary action against the appellant and a few others.

The court noting the there is a deliberate difference in the standard of proof required for civil and criminal litigation taking into account the different stakes, power imbalance between the parties and social costs of erroneous decision. Thus, in a disciplinary proceeding the strict rules of evidence and procedure of criminal trial would not apply and the statements made before the enquiry officers can be relied upon in certain cases. The appellant’s contention that since the CBI did not file a criminal chargesheet against him, he should be absolved of the present proceeding, however the court held that the employer still retains his right to initiate disciplinary proceedings irrespective of the outcome of criminal proceeding, also the CBI had recommended strict disciplinary action to be taken against the appellant. On the appellant’s contention of the punishment being disproportionate to the charges proved against him, the court held that the disciplinary authority has wide discretionary powers to impose punishment for proved delinquency subject to certain rules and limitations. It was observed that imposing major penalty of dismissal, removal or reduction in rank would not be proper for trivial misdeeds but such punishment is needed in cases of grave offences such as corruption, misappropriation and gross indiscipline, etc.

Judgement:

The court held that given the charges of corruption, fabrication and intimidation being unanimously proved against the appellant the punishment of dismissal is not disproportionate. The court finding no merit in the present appeal dismissed it. 

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