By: Shambhavi Shani


Confession made by a suspect, being decisive in nature plays a significant role when criminal proceedings are pursued. Confession, simply put, is an acknowledgment of guilt by accused which is traced back, in various common law countries, to the guilt conscience associated with it. Being conclusive, it is of utmost importance for any court of law to strictly scrutinize the reliability and admissibility of the confession. Indian Evidence Act (IEA) and Code of Criminal Procedure (CrPC) makes significant deviations from Common Law by incorporating a provision i.e. Section 25 of IEA which makes confession made to the police-officer inadmissible as evidence. Further, Section 26 widens the scope by invalidating those confessions which were made even to a third party while in police custody under the suspicion that the position of the party concerned might be influenced by the police but it cuts some slack and lays down that such confession might be admissible if it was made in the immediate presence of magistrate. Admissions and confessions are fundamentally different; Confession being sub-specie/subset of admission. This Article will exclusively deal with confessions and will explore whether there is a need to overhaul confession law which prevails in India and make confessions before the police admissible in court as evidence subject to certain procedural safeguards regarding voluntariness and admissibility of the same.


Section 25 and 26  are largely based on the assumption that such confession must have been extracted using force and thus lack voluntariness, genuineness and guilty conscience which should be ideally associated with it. In UK, admissibility of confessions was judged exclusively on the parameter of voluntariness. This approach was gradually invalidated by the courts as the tactics of police brutality evolved leading to inclusion of other parameters into consideration like brutality, psychological manipulations etc. In India, the assumption of police tactics weighs heavily even today, while in England a different route has been opted which burdens the prosecution instead of curbing admissibility. 

Further, the notorious Section 27 of IEA is all the more reason for increasing cases of police brutality. Section 27 dictates that if a fact is discovered in consequence of the confession made while in police custody can be admitted if proved. Thus, any fact which is discovered proving certain part of the confession can be admitted. It should be a fact which would not have been discovered if the confession had not made. When a confession before police is rendered inadmissible, this Section induces police to use inhumane tactics to extract confession and discovering a subsequent fact.


This segment will look into the laws (statutory or judicial) being followed in some common law countries where confession before a police officer is admissible as evidence and the safeguards placed against an involuntary confession.

  1. Canada

The confession rule in Canada is largely governed by the case R. v. Hogdson which ruled that any out of court confession is deemed inadmissible unless the prosecution proves its voluntariness. Justice Jacobucci, in R. v. Oickle ruled more extensively establishing certain components to ascertain reliability of a confession like inducements, oppression, operating mind test and police trickery. The component of inducement dictates that any confession which was preceded by any kind of threat, promise, and most importantly quid pro quo is likely to be unvoluntary. The component of oppression includes the condition in which the confession was obtained as to whether the convict was denied sleep, water, clothing, food or any other necessity like medication which would induce or pressurize the suspect to confess. It includes psychological approaches like threats against family members, presence of family and friends. Such conditions are largely subjective and its presence depends on case to case basis. The test of operating mind deals with the state of suspect’s mind while questioning as to whether he was hypnotized or drug induced. The fourth component i.e. police trickery is very confusing and highly subjective. The component says that any confession obtained by a police trickery which “is so appalling to shock the community” will be rendered involuntary and inadmissible. Every confession is tested on these components and the job is majorly upto the judge to ascertain admissibility and voluntariness of such confession.

  • United Kingdom

In UK, confessions are largely dealt by Section 76 of the Police and Criminal Evidence Act 1984, sub section 2 and 3 of which dictates that if prosecution wishes to admit any confession as evidence, it has to prove beyond reasonable doubt that such confession was voluntary and if the court doubts the reliability of such statement, it holds the authority to deny admissibility to such confession. Sub-Section 8 of the same outlines oppression which includes torture, inhumane/degrading treatment and use of violence. This section is supplemented by Interrogation Code Revised 2019. The courts have time and again applied the doctrine of voluntariness laid down in the case of The King v. Warickshal[i] in which it was opined that voluntariness of a confession should be traced back to the guilt associated with it. The test of promise and threat is very much similar to that of quid pro quo implemented in Canada. If a confession was preceded by some threat and promise it is more likely that such confession is involuntary. Furthermore, under the test of relation between activities of police and reaction of the suspect, the court largely scrutinizes the very process of investigation, the steps involved in it and the reaction of the suspect to the same. This test originated from the case of Callis v. Gunn and aims at tracing back the confession and the circumstances surrounding it.

  • United States

Section 3501 of 18 US Code governs the question of confession evidence. Subsection (a) of the same says that before any confession is admitted as evidence, the trial judge in presence of a jury should ascertain the voluntariness of such confession. Subsection (b) dictates the circumstances surrounding the confession. It lays down certain components on which the confession should be tested like:

  1. “The time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment”, 
  2. “Whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession”,
  3. “Whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him”,
  4. “Whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and”
  5. “Whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.”

Furthermore, there are more safeguards to ascertain voluntariness of a confession. The foremost being the Miranda Rights which were a result of Miranda v. Arizona where the police are obligated to inform the suspect about his rights regarding remaining silent and access to his attorney and the warning that whatever he says can be and will be used against him in the court of law. Court looks into various components like defendant’s age, criminal record, absence of his counsel etc. before admitting the confession. It closely observes the circumstances in which the suspect was put in before he confessed like putting the person in incommunicado or depriving him of food, water and sleep or detention periods in solo cells etc. All these factors are weighed in before considering a confession as evidence.  


In order to evaluate the workability of this model in accordance with the laws and needs of Indian criminal justice system, it’s of immense importance to scrutinize the recommendations made by various law commissions in their reports as these reports are specifically drafted to cater to the dynamic needs of legal system. Two Law Commission Reports (185th and 69th) have exclusively and thoroughly dealt with the reforms required in Indian Evidence Act. With regard to reforms in Section 26, which makes a confession admissible if made in “immediate presence” of magistrate, the Reports have recommended on similar lines. The process of recording of a confession made in presence of a Magistrate is regulated by Section 164 of CrPC which has thoroughly laid down the rules regarding recording of a confession. As far as the confession made in presence of magistrate is concerned which can be done in 2 ways, either it’s recorded in consonance with Section 164 or it’s not. On this, the 69th Report (1997) recommended to replace the words “unless it is made in immediate presence of a Magistrate” with “unless it is recorded by a Magistrate under Section 164 of the Code of Criminal procedure, 1973”. This recommendation was partially adopted by the 185th Law Commission Report (2003) on Indian Evidence Act which recommended substituting words “unless it is recorded by a Magistrate under Section 164 of the Code of Criminal procedure, 1973” with “unless it is recorded by a Magistrate in accordance with Chapter XII of the Code of Criminal procedure, 1973”. Both the Reports have indeed validated the confessions made in presence of Magistrate if recorded in consonance with Chapter XII of CrPC which deals with powers of police to investigate. It is recommended accordingly. 


With regard to reforms to Section 25 of IEA which completely invalidates any confession made to a police officer, both the Reports recommended status quo to Section 25. But 69th Report recommended an insertion of an altogether new Section 26A replying upon 14th Law Commission Report which was reproduced in 48th Report on CrPC. The section would allow the confession made to an officer atleast of the rank Deputy Superintendent or above admissible as evidence subjected to certain safeguards like:

  1. The confession is made to the police officer concerned with the investigation,
  2. The accused is informed about his right to an attorney and should be given one if so asked,
  3. Counsel, if the accused have one, should be allowed to be present while recording,
  4. The officer should follow the safeguards laid down in Section 164 of CrPC and should also record that he did follow the safeguards laid down in above a, b and c.

These recommendations were negated in 185th Law Commission Report on Indian Evidence Act citing Article 20 cl. 3 which says that “no person should be compelled to be a witness against himself” highlighting the increasing number of cases of police brutality and wrongful confessions. It said that there was a need to strike a right balance between right to interrogate and self-incrimination and if once confessions are made easy, the police will not resort scientific investigation techniques which should be seen in light of Article 21.

I partially agree with the Report till the extent it says that confessions made to all police officers should be inadmissible. But as far as confessions made in presence of deputy superintendent and above are concerned such confession should not be inadmissible but should be subjected to additional and stricter safeguards. One may notice that the Reports have not resorted to safeguards applied in other common law countries regarding burden of proof and court’s discretion. Apart from the safeguards stated above (a,b,c), there is a need to incorporate certain tests in the judicial practice itself like tracing back of the confession, test of promise and threat, the test of operating mind etc. as elucidated above. The confession should be traced back to ensure its voluntariness and guilty conscience associated with it. The burden of proof should be laid upon the prosecution who claims the veracity of such confessions and the discretionary powers should be awarded to the courts so as only those confessions which are strictly scrutinized on the safeguards and voluntary components are admitted only after the court’s satisfaction. Audio and video recording of all the interrogation sessions should be, indeed, compulsory and due procedure should be followed as elucidated in Chapter XII of CrPC. Analysis of the circumstances before, during and after the confession should be strictly scrutinized by the court as it indeed clears out the passage of the confession. There is a need for stricter repercussions against the officials resorting to such techniques. This way the human rights requirements and right to investigate can be efficiently balanced and inclusion of such confessions will reduce the case load on judiciary and will fasten the process.


The stigma associated with tainted confessions can never be cured but laws can definitely be adapted to changing needs and requirements of the society. Even judiciary is adopting a broader approach towards confessions made to a police or in custody of police by ruling that such extra judicial confessions can be admitted as evidence if they are voluntary in nature and inspires confidence of the court. Police brutality and inhumane treatments adopted by khakhi donning officers is indeed a reality but such tactics can be cured by burdening the prosecution to prove the voluntariness and genuineness of such custodial confessions. There is a need for judiciary to employ more sophisticated techniques to ascertain the veracity of such confessions, coupled with stringent repercussions against the official employing such tactics. More comprehensive approach is needed if custodial confessions are awarded with evidentiary value. The analysis above shows the immediate need to make reforms to the law judicially or legislatively.

[i] (1783), 1 Leach 263, 168 ER 234.

[Shambhavi Shani is third year law student at Hidayatullah National Law University.]


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