The word confession is nowhere defined in Indian Evidence Act 1872. For the first time it is mentioned in Section 24 of the Evidence act. Section 24 is a sub species of Admission as it comes under Admission headline. Confession is made by the person who is accused in a Criminal case & Admission is usually related to civil matters.
In Pakala Narayan Swami vs. Emperor, Lord Atkin observed in Privy Council:-
“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, isn’t in itself a confession.”
This definition of Confession by Privy Council was favoured by the Honourable Supreme Court of India in PalvinderKaur Vs State of Punjab.
Form of Confession:-
A confession may be judicial confession or Extra-judicial confession. Judicial confessions are those, which are made by the party before the magistrate or in court itself in due course of legal proceedings. Extra-Judicial confessions are those, which are made by the party anywhere outside the court. It may include conversation to oneself. Extra-Judicial confession must be Voluntary. Extra-Judicial confession is a weak type of evidence.
Section 24 of The Indian Evidence Actexpresses that the confession should be irrelevant in a criminal proceeding if it was not made voluntarily and was caused by some inducement, threat or promise. The inducement, threat or promise should proceed from a person in authority and it should be related to charge against the accused. The inducement, threat or promise should be sufficient to cause a reasonable belief in accused that he can get an advantage or avoid an evil of not religious or spiritual kind against him.
Section 25 of Indian Evidence Actexpressly declares that a confession made to a policeman shall not be proved. The confession to police officer is treated as an involuntary confession.
Reason for exclusion of confession to police is if confession to police were allowed to be proved in evidence, the police would torture the accused and thus force him to confess to a criminal act which he might not have committed.
But mere presence of a police officer will not destroy voluntary nature of confession if the confession is being given to someone else and police officer is only casually present and overhears it.
If a statement by accused does not admit the guilt in terms or substantially all the facts which constitute the offence, it will be admissible even if made to a police officer.
Though the confession to police cannot be used against the accused making it, but he can himself rely uponthose statement in his defence or for his own purpose.
A special legalisation may change the system of excluding police confession. For example, under Terrorist and Disruptive Activities (prevention) Act,1987 (TADA) confession statement is included under admissible evidence U/s 15 & In Narcotic Drug and Substances Act, 1985 U/s 67 Confession is admissible.
Section 26 of Indian Evidence Act, 1872provides that no confession made by any person while he was in custody of a police officer will be proved against him. The confession made to any other person while he is in custody whether lawful or unlawful of a police officer will not be admissible.
This section recognises one exception that if the accused confesses while in police custody but in the immediate presence of a Magistrate, the confession will be valid and admissible as an evidence. The Magistrate should be in the same room where the confession is being recorded.
In Iman Din Vs Emperor, 1934 the court observed that a confession made while the accused is in judicial custody or lock-up will be relevant, even if the accused is being guarded by policeman.
Section 27 of Indian Evidence Act, 1872 provides when the statement given by accused person in the custody of a police officer leads to the discovery of a fact connected with the crime, so much of the information as relates to the facts discovered by that information is admissible in evidence irrespective of the information amounts to confession or not.
Section 28 of Indian Evidence Act, 1872 deals with the confession made after removal of inducement, threat or promise asreferred in section 24 is fully removed in opinion of the court, it is admissible.
It is necessary that the effect of threats or inducement is fully removed or effect of inducement is already over to the satisfaction of the court, then it is relevant and admissible.
CONCLUSION:- The admissibility of confession depends upon the character of the accused and circumstances in which he made the confession. The confession made before the police is inadmissible as per section 25 of Evidence act because such extra-judicial confession is presumed that it can suffer from fabrication. So to safeguard against this, the Section 164 of Criminal Procedure Code, 1973 provides for the confession made by accused in presence of Magistrate which shall be written and signed to certify the circumstance under which confession was taken was genuine.