This article has been written by Gaurav Thote, an advocate practising in the Mumbai City Civil and Sessions Court and Bombay High Court.
Introduction
To quote the Privy Council in Pakala Narayana Swami V. The King-Emperor, “a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.” The essential requirements of a statement to be termed as “confession” are-
- The statement must be given/recorded in a free atmosphere.
- The statement must be voluntary.
The MCOC Act was enacted to eliminate/punish offenders carrying on unlawful activities as a crime syndicate in furtherance of their common object. Given the gravity of offence of Organized Crime, draconian provisions are enumerated under the MCOC Act. However, Section 18, contrary to the Cr.P.C and Indian Evidence Act (“IEA”), empowers Police Officers to record Confessions of Accused persons and provides the manner and procedure in which a confession has to be recorded and forwarded. The said provision is similar to Section 15 of TADA Act, 1987 which was challenged in Kartar Singh V. State of Punjab wherein the Apex Court upheld the provision, observing the gravity of terrorism unleashed by terrorists and disruptionists that endanger not only the sovereignty and integrity of the country but also the normal life of citizens and as the public was reluctant to come forward to give evidence, an exception was carved out under Article 14, holding Section 15 of TADA Act to be constitutionally valid. However, subsequently, TADA Act came to be repealed and the UAP Act deals with terrorist activities now.
In State of Maharashtra V. Bharat Shantilal Shah & Ors., the Apex Court overturned a decision of the Bombay High Court, holding the MCOC Act, particularly Sections 13-16 to be constitutionally valid while upholding the view of the High Court striking down part of Section 21(5) of the Act. As Section 18 was never examined, this Article scrutinises the said provision by referring to settled principles of Evidence Law enumerated under the “Cr.P.C” and “IEA”.
Confessions recorded under the Cr.P.C are administered by Sections 24-30 of the IEA and Sections 25 and 26 dispense with the evidentiary value of confessions made by an Accused before a Police Officer axiomatically stating that confessions made to a Police Officer shall not be proved as against a person accused of any offence.
The manner of recording of Confessions is provided in Section 164 of the Cr.P.C., empowering a Magistrate to record confessions of accused. Before recording any confession, the Magistrate must inform the person making the confession that he is not bound to make such confession and if he does, it may be used as evidence against him. The Magistrate shall not record such confession if the Magistrate has reason to believe that it is being made involuntarily. The Code further mandates a Magistrate to not authorize further police detention if the person, before making such confession, is unwilling to do so. If the person still wishes to make a confession, the Magistrate must proceed with recording of the confession in accordance with Section 281 of Cr.P.C., obtain the signature of the person on such confession and prepare a memo of the confession recorded. Any other statement made during recording of the confession shall be dealt in a manner of recording evidence as the Magistrate opines, is best fitted to the circumstances of the case. After compliance of all these provisions, the Magistrate would forward such confession recorded to a Magistrate who would proceed with the enquiry/trial of the case.
The cumulative perusal of the decisions in the State of U.P. V. Daemon Upadhayaya, Madhu V. State of Kerala, State NCT of Delhi V. Navjot Sandhu, Sarwan Singh V. The State of Punjab and Shankaria V. State of Rajasthan asseverate that a confession made by Accused before a Police Officer is tainted having regard to its tainted source and the possibility of procuring such confession by coercion/threat cannot be ruled out, recognising the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair whilst in Police Custody, rendering such confessions inadmissible u/s.25 and 26 of the IEA. Furthermore, the Accused would have to be given reflection time of 24 hours or more before recording his confession and the Magistrate ought to strictly follow the safe-guards and ascertain the voluntariness of confessions.
To evaluate the rationality of Section 18 of the MCOC Act, the moot question is if the atmosphere of a person giving the confession before a Police Officer is free. When a person in Police Custody is forwarded to an empowered Police Officer, there is unlimited power cast on the Police Officers to threaten/pressurise the accused person as is observed in judgments mentioned supra. There is always a chance that the Investigating Officer and empowered Officer are colluding for procuring conviction against someone otherwise innocent. As per MCOC Rules, prior to recording any confession, the accused must be given 24 hours or more reflection time and must be detained in custody otherwise than that of the investigating team where no member of the investigating team can visit him. However, exposure with other unconnected Police Officers could also risk manipulation of circumstances. The empowered Police Officer, after giving the requisite reflection time, may comply with the guidelines as mere empty formalities which would suffice the case of Prosecution. Also, there is no independent authority to govern the atmosphere of proceedings.
Section 18(3) mandates confessions to be recorded in a judicial manner, complying with material requisites and guidelines issued by the Apex Court. A person in Police Custody being forwarded to an empowered Police Officer itself would question the authenticity of voluntariness due to the possibility of mala-fide intent on part of the Police Officers to procure conviction. A person unwilling to confess is not protected as articulated u/s.-164(3) of Cr.P.C, and remains in custody of the Police who can subject him to cruelty/torture and/or influence/coerce the person to give such confession at a later point. At the cost of repetition, there is no independent body to govern the proceedings which could render the confession tainted. In Raja V. State of T.N., the Apex Court discarded the recorded confession, observing it to be certified out of the Officer’s own imagination, unsupported by material requisites.
Section 18(4) requires the Police Officer to send forthwith, the confession recorded u/s.-18(1) to the Magistrate having jurisdiction and the Magistrate would forward the recorded confession to the Special Court. Furthermore, the accused would be produced before the Magistrate to whom the confession is sent u/s.-18(4) along-with the original statement of confession, written or recorded on a mechanical device, without unreasonable delay. The Magistrate is to scrupulously record the statement made by the produced Accused, if any, and obtain his signature on the same. In case of any complaint of torture, the Magistrate shall direct the person for medical examination before the prescribed Medical Officer. The provision, thus, doesn’t address mental torture, pressurization, coercion/threat made by the Police Officer/s before recording of such confession. Resultantly, such a confession could seriously prejudice the case of Accused.
It would further be apposite to canvass the value of retracted confessions of accused persons. As there is no provision in MCOC Act dealing with retracted confessions, Sections 24 and 28 of the IEA which administer retracted confessions under General Criminal Statutes, would also apply to the MCOC Act. Sections 24 of IEA renders confessions irrelevant when caused by inducement/threat or promise, referring to the charge against the accused from a person in authority, giving reasonable grounds for making the confession to be worthy of any gain or to avoid any evil with respect to the proceedings against him. Section 28 of IEA renders a confession valid if the defect in it, in the opinion of the Court, is removed.
The ratios in Ravinder Singh V. State of Maharashtra, State of Maharashtra V. Bharat Chaganlal Raghani and Vinod Solanki V. Union of India & Anr. cumulatively proceed to manifest the evidentiary value of retracted confessions, steering Courts to consider such confessions in the light of facts and circumstances of the matter. Retracted confessions have also been the basis of conviction in certain cases and therefore recording of confessions must be ensured in a proper manner.
Conclusion
Though guidelines pertaining to confessions are issued by various Courts, the analysis carried out in the backdrop of judgments referred supra makes it abundantly clear that the atmosphere of an accused person giving a confession before a Police Officer cannot be termed as “free” and such confession could be tainted. As regards witness protection, Section 19 of the MCOC Act and Witness Protection Scheme, 2018 (approved by the Supreme Court in Mahender Chawla V. UOI) can always be invoked for the purpose of ensuring safety of witnesses. Although the object of the MCOC Act is clear, Section 18 is not in consonance with settled principles of Evidence Law.
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