This article has been written by Simrat, pursuing Diploma in Labour, Employment and Industrial Laws for HR Managers and has been edited by Oishika Banerji (Team Lawsikho). 

This article has been published by Sneha Mahawar.​​ 

Introduction

Confession is a voluntary acknowledgement of guilt by the accused. In the decision of Pakala Narayana Swami v. Emperor (1939), it was observed by Lord Atkin that a confession means either the admission of the offence or the admission of all the facts which constitute the offence. Confession given to a police officer or while in the custody of such a police officer is inadmissible in law as provided under Sections 25 and 26 of the Indian Evidence Act,1872. This article serves as a discussion about Section 25 of the Indian Evidence Act, 1872 and its aligned aspects. 

Section 25 of the Indian Evidence Act, 1872

As per Section 25 of the Indian Evidence Act, 1872, a confession made to a police officer is inadmissible in law. The idea that a police officer may subject an arrested person to severe torture and force him to confess to the guilt of a crime that he may not have committed, serves as the fundamental principle underlying this provision.  

The Hon’ble Apex Court while deciding on the case of Raj Kumar Karwal v. Union of India   (1990), has observed that the officers of the Department of Revenue Intelligence who were given the authority of an officer-in-charge of a police station under Section 53 of the NDPS Act are not “police officers” under the meaning of Section 25 of the Evidence Act, 1872, and as a result, confessions made to them are not hit by the bar of Section 25.

Further while deciding on the case of Abdul Rashid v. State of Bihar (2001), the Apex Court had observed that the confessional statement given to the Superintendent of Excise was inadmissible since, according to Section 25 of the Evidence Act, the Excise Officer was a “police officer”. 

Section 26 of the Indian Evidence Act, 1872

An extension of the aforementioned provision is couched in Section 26 of the Indian Evidence Act, 1872 which lays down that a confession made by a person, who is under the custody of a police officer, is inadmissible, except when it is made in the immediate presence of a Magistrate.

The Hon’ble Supreme Court in the case of Kishore Chand v. The State of Himachal Pradesh  (1990) has observed that the purpose of Section 26 is to avoid the misuse of authority by the police officer. As a result, confessions made by the accused while in police custody cannot be used against him if they are not made in front of a magistrate. The rationale is that a person in police custody is thought to be under their influence, which creates a potential for bribery and extortion of confessions. The only situation in which this rule is not applicable is when a magistrate is present because the magistrate ensures that the confession is given voluntarily, without being restrained by any fear of the police.

Confession under Section 27 of the Indian Evidence Act, 1872 relating to the discovery of a fact

Section 27 of the Indian Evidence Act, 1872, states that a confession relating to the discovery of a fact is admissible in court. The exception to Section 25 and Section 26 is carved out in Section 27, which lays down that such a confession made in police custody, which leads to the discovery of a fact, shall be admissible.

The notion of confirmation by subsequent evidence forms the foundation of Section 27 of the Evidence Act, 1872. This theory is premised on the idea that if any fact is found as a result of the information given by an accused person, then such discovery of fact serves as a confirmation that the information provided by the accused is accurate. According to the notion of confirmation by subsequent facts, statements made while under arrest are admissible to the extent that they can be supported by the facts later discovered.

Upon careful perusal of the provision, the following requirements are seen to be essential for exercising the provision of Section 27:-

1. The information obtained from the accused must have led to the discovery of the fact.
2. The information must be supplied by a person accused of an offence.
3. A police officer must be in charge of the accused.
4. Only the information that directly relates to the fact discovered can be proven; the remaining information is not admissible.
5. As a result of the information provided by an accused, a specific article or weapon that was used at the time of the crime must be found.
6. The newly found information must be pertinent to the commission of a crime in question.

An interesting thing to note is according to Section 27, the facts uncovered must be those that only the accused and no one else has access to. If an Investigating Officer, after recording information from an accused person in his custody, collects some incriminating material from a public area that is open to everyone, then such information and the discovery lose significance and shall no longer be admissible against the accused under Section 27.

Conclusion

Sections 25 and 26 of the Indian Evidence Act, 1872 serve as a safeguard against the abuse of police authority. These rules provide that any confession given to a police officer or while in the custody of a police officer are inadmissible in law and cannot be proved against the accused. This is due to the possibility that the police may use excessive force to coerce accused persons into confessing to crimes they did not commit. An exception to the aforementioned restriction is provided by Section 27, which permits those portions of confessional remarks to be admitted insofar as they pertain to the discovery of a fact related to the commission of a crime. Section 27 of the Evidence Act is founded on the premise that if the confession of an accused person is corroborated by the discovery of a fact, it may be assumed to be true and not to have been fabricated.

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