Confessions: meaning, forms, voluntariness and confessions to the police
Bharatiya Sakshya Adhiniyam · Unit II · Topic 5 of 26 · 7 min read
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1. Meaning of confession
Neither Act defines "confession". It appears under the heading "Admissions", so a confession is a species of admission made by a person accused of an offence. The meaning comes from case law.
In Pakala Narayana Swami v. Emperor (Privy Council, 1939), Lord Atkin held that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. So a statement by the accused that explains his dealings with the deceased innocently, while admitting facts that look bad for him, is not a confession.
The Supreme Court adopted this in Palvinder Kaur v. State of Punjab, 1952 INSC 45, AIR 1952 SC 354, and added that a statement containing a self-exculpatory part (for example, "I killed him, but in self-defence", or "he died accidentally of poison I had kept for washing photographs") is not a confession. The Court must take the statement as a whole; it cannot accept the inculpatory part and reject the exculpatory part when the statement is used as a confession.
A confession need not be addressed to anyone. In Sahoo v. State of U.P., 1965 INSC 38, AIR 1966 SC 40, the accused, muttering to himself after killing his daughter-in-law, said he had finished her. The soliloquy was overheard and held to be a confession; communication to another person is not required.
2. Forms
- Judicial confession: made before a Magistrate under section 183 BNSS (old s.164 CrPC), or before the trial court. The Magistrate must warn the accused that he is not bound to confess and that it may be used against him, and must record it only if he has reason to believe it is voluntary (section 183(2)). The proviso to section 183(1) allows recording by audio-video electronic means in the presence of the accused's advocate. Section 79 (old s.80) raises a presumption that such a record is genuine and was duly taken.
- Extra-judicial confession: made to any private person, a friend, a relative, a village official. It is admissible if voluntary but is a weak piece of evidence, to be accepted only after close scrutiny of the witness's credibility and the circumstances.
3. Section 22: confession caused by inducement, threat, coercion or promise
A confession is irrelevant in a criminal proceeding if its making appears to the Court to have been caused by any inducement, threat, coercion or promise:
- having reference to the charge against the accused;
- proceeding from a person in authority (police, magistrate, employer, prosecutor, anyone who the accused believes can influence the prosecution); and
- sufficient to give the accused reasonable grounds for supposing that by confessing he would gain an advantage or avoid an evil of a temporal nature in reference to the proceedings.
The words "appears to the Court" mean that the accused need not strictly prove the inducement; a reasonable suspicion is enough. A spiritual inducement ("tell the truth, God will forgive you") is not of a temporal nature. An inducement from a person not in authority does not exclude the confession under this section, though it may affect its weight.
First proviso (old s.28): if the confession is made after the impression caused by the inducement has been fully removed, it is relevant. Second proviso (old s.29): an otherwise relevant confession does not become irrelevant merely because it was made under a promise of secrecy, by deception, when the accused was drunk, in answer to questions he need not have answered, or without a warning that he need not confess.
4. Section 23: confessions to the police
Section 23(1): no confession made to a police officer shall be proved against a person accused of any offence. The bar is absolute; it applies whether or not the accused was in custody, and whether or not it was voluntary. Section 23(2): no confession made by any person while in police custody shall be proved against him unless made in the immediate presence of a Magistrate.
The reason is historical: the framers distrusted the police's methods of obtaining confessions. Section 23(2) closes the gap left by 23(1): a confession to a friend or fellow prisoner while the accused is in police custody is equally excluded, because the police could arrange it.
- Aghnoo Nagesia v. State of Bihar, 1965 INSC 126, AIR 1966 SC 119. The accused went to the police station and lodged an FIR describing how he had killed four people. The whole FIR, being a confessional statement to a police officer, was barred by old s.25. Only the facts that he gave the information and the parts that led to discovery (old s.27) could be proved. The Court refused to split the statement into admissions of particular facts so as to get round the bar.
- A confessional FIR is not wholly excluded: the fact that the accused lodged it is relevant as conduct under section 6, and any non-confessional part may be used.
5. Retracted confessions
A confession later withdrawn by the accused is a retracted confession. It remains admissible. It can found a conviction if the Court is satisfied that it was voluntary and true, but as a rule of prudence the Court looks for general corroboration in material particulars.
- Pyare Lal Bhargava v. State of Rajasthan, 1962 INSC 296, AIR 1963 SC 1094. A retracted confession may form the basis of a conviction if believed to be true and voluntarily made, though it is unsafe to rely on it without corroboration.
- Sarwan Singh v. State of Punjab, 1957 INSC 36, AIR 1957 SC 637. Before relying on a judicial confession the Court must be satisfied it is voluntary; the accused must be given time, free from police influence, to reflect before it is recorded.
6. Problem
A, arrested for theft, is told by the Sub-Inspector that if he confesses he will be let off with a warning. A confesses to the Sub-Inspector. The next week, produced before a Magistrate after two days in judicial custody, he repeats the confession after the statutory warning. Which confession can be proved?
Issue. Admissibility of each confession under sections 22 and 23. Law. Section 23(1) bars any confession to a police officer; section 22 makes irrelevant a confession caused by a promise from a person in authority, unless the impression has been fully removed (first proviso). Application. The first confession fails twice: it was made to a police officer and induced by a promise. The second was made to a Magistrate, out of police custody, after a warning and time to reflect. Whether the impression of the promise had been fully removed is a question of fact; the warning and the break from police custody point to yes. Conclusion. The first is inadmissible; the second may be proved if the Magistrate's record shows voluntariness, subject to corroboration if A retracts it.
How this is examined
"Define confession. Explain the rules relating to relevancy of confession" (Feb 2025) is the standard ten-mark question; "Relevancy of confession made in police custody" (Jan 2026) and "Retracted confessions" (Law of Evidence, June 2025) are the notes. Structure: definition through Pakala and Palvinder Kaur, forms, section 22 with its two provisos, section 23 with Aghnoo Nagesia, and a closing line on retraction. The discovery proviso and the co-accused rule are in the next note.
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