12/05/2020
There is no legal provision which allows police in India to use physical violence to extract confession from any accused or suspect. It is completely prohibited under law.
How Police Interrogation Works
Police interrogation is a part of the police investigation. When an accused is brought under the police custody either in cognizable offence or non-cognizable offence, the Police has the right to question the accused. It helps the Police to know about the essential facts and truths of the incident so that a case can be solved easily.
Rights during Police Interrogation
· According to Section 161 (1) of the Code of Criminal Procedure, the accused is advised to not make any statement or answer any question which may prove that the accused is guilty of the offence.
· The Police are not entitled to force the accused to make any sentence which later can be used as a piece of evidence against the accused.
· Section 24 of the Indian Evidence Act and section 316 of the Code of Criminal Procedure states that Police cannot threaten or compel the accused to accept any crime which he/she has been accused of.
· Under section 330 and section 331 of Indian Penal Code, if the Police injure the accused during police interrogation then the police officer is liable for punishment under the law.
· A police officer has no right to torture, ill-treat or abuse the accused during interrogation or questioning round.
· If an accused has any complaints regarding the interrogation, then he/she can register a complaint with Superintendent of Police (S.P.) or other higher officers like the Deputy Inspector General of Police (D.I.G.) or the Inspector General of Police (IG).
· The accused also has the right to file a complaint with the magistrate in a court having jurisdiction.
· A complaint can be sent to the Superintendent of Police (S.P.) by a registered post. If the S.P. is satisfied with the matter of the complaint, he/she shall investigate the case himself/herself or is likely to order an investigation to be made.
· Complaints regarding Police interrogation are also registered by the State Human Right Commission or the National Human Rights Commission when law enforcement is not conducted by the Police or is done by the Police in a corrupt manner.
Duties during Police Interrogation
· It is the duty of the accused to provide correct and accurate information or provide the information which is best known to him/her.
· As per section 162(1) of Code of Criminal Procedure, It is not necessary to sign any statement given by the accused during the process of interrogation.
· Section 26 of the Indian Evidence Act states that any statement to the Police by the accused cannot be held against him/her until the statement is made before the magistrate.
· If the accused wants to confess about the offence he/she has committed, then the confession should be made in the presence of a magistrate. It becomes the duty of the magistrate to tell the accused that he/she should not confess to an offence under any pressure. If the accused makes a confession on his own, then the confession may be used against the accused as evidence. If the magistrate is not convinced that the accused is confessing on his own without any pressure, then the magistrate will not write the confessional statement.
· It is advisable that no vague and unclear statements should be made by the accused.
· The facts should not be exaggerated and only the incidents which occurred should be disclosed by the accused.
Is confession/statement valid when made to the Police?
The word “confession” was first used in Section 24 of the Indian Evidence Act. The whole section comes under the main heading of admission and therefore, it is referred that, confessions are just a part of admission. However, confession is not defined under the Act. According to the law of Evidence, the digest of Mr Justice Stephen, confession is defined as an admission made at anytime by a person who is charged with a crime stating or suggesting the interference that he/she has committed that crime. To constitute a confession as evidence it is important to understand the forms of confession. There are two types of confession:
1. Judicial Confession
2. Extra-Judicial Confession
Differentiate between Judicial Confession and Extra-Judicial Confession
Judicial Confession
Extra-Judicial Confession
· Judicial confessions come under section 164 of Cr.P.C which are made in the presence of a magistrate or before the court during a trial or committal proceeding.
· Extra-Judicial confessions are those confessions which are made before any person other than those authorised by the law to take confession. It may be made to any ordinary person or the investigator police.
· To prove a judicial confession, the person to whom such confession is made need not be called as a witness.
· To prove an extra-judicial confession, the person to whom the confession is made is called as a witness.
· A judicial confession can be used as proof against the person to prove his/her guilt if such a confession is made voluntary and under no influence.
· Extra-judicial confession alone cannot be treated as evidence. Such confessions are important to be supported by some other evidence.
· A conviction can be based on Judicial confession.
· It is unsafe and not legally correct to base conviction on such confesses.
According to Section 25 of the Indian Evidence Act, 1872, a confession made in front of the Police is not valid and cannot be used as evidence in the court of law. No confession made to the Police can prove the guilt of the accused in the court.
Reasons for such Exclusion
One of the primary reasons to not include the confessions made by the accused in the evidence is that there are instances where the Police torture the accused and thus force him/her to confess the crime he/she may have not committed. A confession obtained with the use of such means is unreliable, unethical and legally incorrect. It would further not be voluntary in nature. Such a confession would be invalid in the court whatever may be its form, direct, implied, or inferred from conduct. The reasons for which this policy was adopted when the act was passed in 1872 are probably still valid.
Dagdu Vs. State of Maharashtra
A.I.R. A.I.R. 1977 S.C. 1579
The judgement was given by the Supreme Court of India. In this case, the Supreme Court noted that the attempt of the Police to reach confessions by hook or by crook seems to be the end of all the police investigation. The Police should keep in mind that confession may not always be a short-cut to the solution. It is better that instead of trying to “start” from a confession they should investigate and strive to “arrive” at it. Otherwise, when they are busy with these short-cut solutions, good evidence may disappear due to no attention to the real clues. Once a confession is obtained, there is often flagging of zeal for a thorough and full investigation with a view to establish the case for the confession, later, being inadmissible for one reason or other, the case fondles in the court.
R V. Murugan Ramasay
(1964) 64 C.N.L.R. 265 (P.C.) at 268
In this case, the court noted that police authority itself, however, carefully controlled, carries a danger to those brought suddenly under its shadow and the law recognises and provides against the danger of such persons making incriminating confessions with the intention of placating authority and without regard to the truth of what they are saying.
Presence of Police
In circumstances, where a person is the secret agent of the Police deputed for the very purpose of receiving the confession, then such confession is subjected to fall under the category of confession made to the Police and thus is not valid in the court of law. However, the mere presence of Police does not make a confession invalid. If the confession is being given to someone else, and the policeman is casually present there who overhears the confession then it will not destroy the voluntary nature of the confession and can be considered as evidence in the court.
Under circumstances, where the accused has left a recording of his/her confession near the dead body of the victim and the recording is discovered by the Police, the Supreme Court held the recording to be relevant as there was not even the shadow of a policeman when the letter was being written and planted.
Conclusion
According to the cases and laws described above, a confession made to Police is invalid to be considered as a proof to prove the guilt of the accused under the Indian Evidence Act, 1872. A situation may arise, where a policeman knowingly, to take revenge, or to defame someone, records the wrong confession by using unfair and wrongs modes. Therefore, it is made clear by the law and as well as the court, that a confession can only be used as evidence if made before the presence of a magistrate or other evidence to support such a confession.
The author of this blog/Article is Kishan Dutt Kalaskar, a Retired Judge and practising advocate having an experience of 35+ years in handling different legal matters. He has prepared and got published Head Notes for more than 10,000 Judgments of the Supreme Court and High Courts in different Law Journals. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters .
Author :
Kishan Dutt Kalaskar
Advocate (Retired Judge)
