Confession Before Police in India: Admissibility and Constitutional Dimensions

Confession Before Police in India: Admissibility and Constitutional Dimensions

Introduction

Confessional evidence occupies a paradoxical space in Indian criminal jurisprudence. On the one hand, a voluntary acknowledgement of guilt is regarded as “one of the most effectual proofs in law”[1]; on the other, the possibility of coercion while in police control has led Parliament and the judiciary to impose stringent exclusionary rules. This article undertakes a doctrinal and critical analysis of the admissibility of a confession made before a police officer, drawing upon statutory texts, constitutional provisions and landmark authorities, with particular emphasis on Aghnoo Nagesia v. State of Bihar[2] and cognate precedents supplied in the reference materials.

Statutory & Constitutional Framework

Indian Evidence Act, 1872

  • Section 24 – excludes confessions induced by threat, promise or inducement[3].
  • Section 25 – absolute bar on proving a confession made “to a police officer” against the accused[4].
  • Section 26 – bars proof of a confession made “while in the custody of a police officer” unless in the immediate presence of a Magistrate[5].
  • Section 27 – limited “discovery” exception permitting so much of the information as relates distinctly to a fact discovered in consequence thereof[6].

Code of Criminal Procedure, 1973

Section 162 restricts the evidentiary use of statements to police during investigation, reinforcing the same policy of suspicion vis-à-vis custodial statements[7].

Constitution of India

  • Article 20(3) – privilege against self-incrimination (“no person accused of any offence shall be compelled to be a witness against himself”)[8].
  • Article 21 – due-process dimension (fair, just and reasonable procedure).

Jurisprudential Evolution

1. Absolute Exclusion under Section 25

In Aghnoo Nagesia the Supreme Court emphatically reiterated that Section 25 creates an absolute bar: the whole confessional First Information Report given to a police officer was held inadmissible, save for the small portion falling within Section 27[2]. Importantly, the Court rejected “severability”, holding that once a statement is tainted by confession, the entirety is excluded. Subsequent cases – e.g., Bharatbhai v. State of Gujarat (2002)[9] – echo the same approach, underscoring a public-policy distrust of police-procured confessions.

2. Custodial Confessions & Section 26

Section 26 extends the exclusionary shield even when the confession is made to someone other than a police officer, provided the maker is in police custody. The distinction between Sections 25 and 26 was clarified in Commissioner of Police v. Narender Singh[10]: Section 25 focuses on the status of the recipient; Section 26 focuses on the custodial status of the maker. The policy, however, is identical – a presumption of oppression unless a Magistrate’s presence neutralises coercive influence.

3. The Section 27 Proviso: Controlled Derogation

State of U.P. v. Deoman Upadhyaya[11] upheld the constitutionality of Section 27, construing it as an “intelligible differentia” between persons in custody and those at large. The Court stressed that admissibility is confined to the portion of information that distinctly relates to the discovered fact, thereby preventing wholesale resurrection of an otherwise inadmissible confession. A strict, literal reading – reaffirmed in Pakala Narayana Swami v. Emperor[12] – protects the liberty interest yet allows practical law-enforcement utility.

4. Confession versus Admission

The confession/admission dichotomy is pivotal because Section 25’s embargo operates only where the statement is confessional. Drawing on Monir’s commentary cited in Irsad Alam v. State of Bihar[13], courts characterise a statement as confession if it “unequivocally acknowledges guilt” whereas an admission merely suggests incriminating facts. Nevertheless, in Aghnoo Nagesia the Supreme Court opted for a broad definition, treating any inculpatory element as sufficient to invoke Section 25, forestalling prosecutorial attempts to re-label confessions as admissions.

5. Self-Incrimination and Article 20(3)

State of Bombay v. Kathi Kalu Oghad[14] delimited Article 20(3) to testimonial compulsion, holding that furnishing fingerprints or handwriting samples is “physical evidence” and not self-incriminatory testimony. Yet a confession, being testimonial and self-regarding, falls squarely within the constitutional prohibition if induced by compulsion. In Veera Ibrahim v. State of Maharashtra[15] the Court clarified that Article 20(3) is triggered only after a person is formally “accused”; statements to customs officers prior to accusation were therefore admissible. These holdings coexist with Sections 25–27, which apply irrespective of compulsion or formal accusation, demonstrating that the statutory exclusion is wider than the constitutional privilege.

6. Extra-Judicial Confessions: Admissible, but Cautiously

Confessions made to non-police individuals – for instance a Village Administrative Officer – are not hit by Section 25. Sivakumar v. State[16] validated such confessions, subject to proof of voluntariness and credibility. High Courts have nevertheless cautioned that extra-judicial confessions cannot, standing alone, sustain conviction unless corroborated[17].

7. Special Statutes Creating Carve-Outs

Parliament has occasionally overridden the Evidence Act through non-obstante clauses. Section 15 TADA, Section 18 MCOCA and analogous provisions (see State through SP, CBI v. Nalini[18]; State (CBI) v. Mohd. Salim Zargar[19]) make confessions to senior police officers admissible, subject to procedural safeguards (rank threshold, voluntariness certification, contemporaneous recording). The constitutional validity of such departures was upheld in Kartar Singh v. State of Punjab[20], the Court emphasising that the extraordinary menace of terrorism justified calibrated relaxation, provided robust safeguards exist.

Critical Assessment

Reliability v. Rights

Empirical studies and judicial experience reveal a non-trivial risk of coercion in custodial settings. Complete exclusion (Sections 25–26) advances a prophylactic rule that is simple to apply and prevents litigation over voluntariness. Yet it may also incentivise sophisticated criminals to withhold cooperation even when voluntary confessions could expedite justice. Section 27 strikes a pragmatic compromise but demands meticulous judicial gate-keeping to prevent “discovery” from becoming a conduit for wholesale confession admissibility.

Need for Technological & Procedural Reform

The Law Commission has repeatedly recommended electronic recording of all interrogations, coupled with mandatory legal assistance – a reform that would simultaneously deter coercion and preserve genuine admissions. Special statutes already mandate audio-visual recording for terrorist offences; extending this safeguard to the general law would modernise the evidentiary regime without diluting fundamental rights.

Conclusion

The Indian legal order adopts a default posture of distrust towards police-obtained confessions, expressed through the twin exclusionary pillars of Sections 25–26 and the constitutional shield of Article 20(3). The Supreme Court’s jurisprudence – from Aghnoo Nagesia to Narender Singh – has consistently reinforced this policy while carefully carving narrow pragmatic exceptions via Section 27 and special legislation. The resultant framework, though complex, embodies a principled balance between individual liberty and collective security. Future reform should focus on procedural transparency – notably universal electronic recording – rather than substantive erosion of the exclusionary rule, thereby nurturing both the reliability of confessions and the legitimacy of the criminal justice system.

Footnotes

  1. Taylor, Treatise on the Law of Evidence, Vol. I; cited approvingly in Saquib Abdul Hameed Nachan v. State of Maharashtra (2010).
  2. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119.
  3. Indian Evidence Act 1872, s. 24.
  4. Ibid., s. 25.
  5. Ibid., s. 26.
  6. Ibid., s. 27; see also State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.
  7. Code of Criminal Procedure 1973, s. 162.
  8. Constitution of India, Art. 20(3); interpreted in Kathi Kalu Oghad, AIR 1961 SC 1808.
  9. Bharatbhai v. State of Gujarat, (2002) 8 SCC 447.
  10. Commissioner of Police v. Narender Singh, (2006) 4 SCC 265.
  11. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125.
  12. Pakala Narayana Swami v. Emperor, (1939) 41 LW 689 (PC).
  13. Irsad Alam v. State of Bihar, Patna HC (2014).
  14. State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
  15. Veera Ibrahim v. State of Maharashtra, (1976) 2 SCC 302.
  16. Sivakumar v. State, (2006) 1 SCC 714.
  17. e.g., Hemraj v. State of M.P., MP HC (2013).
  18. State through SP, CBI/SIT v. Nalini & Ors., (1999) 5 SCC 253.
  19. State (CBI) v. Mohd. Salim Zargar, SC (2025).
  20. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.