Confession - Imran Ayaz (LL.M)(LL.B.)

IMRAN AYAZIMRAN AYAZLL.M. LL.B.LL.M. LL.B.

[email protected]@gmail.com

CONFESSIONCONFESSION Confess - to admit as true, to assent, to concede, Confess - to admit as true, to assent, to concede, to admit the truth of charge or acquisition to admit the truth of charge or acquisition

ConfessionConfession – Voluntary statement made by a – Voluntary statement made by a person charged with the commission of crime. person charged with the commission of crime.

Black’s Law DictionaryBlack’s Law Dictionary Derivation of the term ConfessionDerivation of the term Confession Confessio Confessio in Latinin Latin Confession Confession

Acknowledgement of guilt by accused Acknowledgement of guilt by accused

Maxim in OperationMaxim in Operation

Confessio Facta In Judicio Omni Probitione Major EstConfessio Facta In Judicio Omni Probitione Major Est ‘ ‘A Confession made in court is of greater effect then A Confession made in court is of greater effect then

any proof’ any proof’

Case Law DefinitionCase Law Definition “ “Mallory Rule”Mallory Rule” i.i. Confession given by one who had been detained an Confession given by one who had been detained an

unreasonable time before been brought before unreasonable time before been brought before Magistrate was in admissible though it was otherwise Magistrate was in admissible though it was otherwise voluntary and trust worthy.voluntary and trust worthy.

( Mallory Vs US’354)( Mallory Vs US’354)ii. ii. Confession is direct acknowledgement of guilt there is Confession is direct acknowledgement of guilt there is

no legal bar to convict the accused on the basis of no legal bar to convict the accused on the basis of voluntary confession.voluntary confession.

( Naga Reddy Narasa Reddy Vs. State of A.P 1994)( Naga Reddy Narasa Reddy Vs. State of A.P 1994)

Foreign definition Foreign definition

‘ ‘ Confession includes any statement wholly or Confession includes any statement wholly or partly adverse to the person who made it, partly adverse to the person who made it, whether made to a person in authority or not whether made to a person in authority or not and whether made in words or otherwise.’and whether made in words or otherwise.’

Section 82(1) of the Police and Section 82(1) of the Police and Criminal Evidence Act 1984 Criminal Evidence Act 1984

1.

confession - an admission of misdeeds or faults

  2.

confession - a written document acknowledging an offense and signed by the guilty party

  3.

confession - (Roman Catholic Church) the act of a penitent disclosing his sinfulness before a priest in the sacrament of penance in the hope of absolution

  4.

confession - a public declaration of your faith

  5.

confession - a document that spells out the belief system of a given church (especially the Reformation churches of the 16th century)

Relevant Law Relevant Law Article 37 – 43 of Qanun-e-Shahadat 1984Article 37 – 43 of Qanun-e-Shahadat 1984Section 164, 364 and 533 of Code of Criminal Procedure Section 164, 364 and 533 of Code of Criminal Procedure High Court Rules and Orders Vol.3 Ch.13High Court Rules and Orders Vol.3 Ch.13

Classification of confession Classification of confession Judicial Confession Judicial Confession Extra-judicial ConfessionExtra-judicial Confession

Extra Judicial ConfessionExtra Judicial Confession This is made by the party out of court, or to any person, official when This is made by the party out of court, or to any person, official when

made not in the course of judicial examination or investigation. made not in the course of judicial examination or investigation. Extra judicial confession is usually looked up as a weak type of Extra judicial confession is usually looked up as a weak type of

evidence and therefore when ever it is sort to be relied upon the evidence and therefore when ever it is sort to be relied upon the burden lies upon the prosecution to show its trust worth ness. An extra burden lies upon the prosecution to show its trust worth ness. An extra judicial confession if satisfactory proved to have been voluntarily judicial confession if satisfactory proved to have been voluntarily made may be the basis of the conviction even in the absence of made may be the basis of the conviction even in the absence of corrobation. A mere general statement that a prisoner confessed is corrobation. A mere general statement that a prisoner confessed is insufficient and therefore where the exact words have not been insufficient and therefore where the exact words have not been proved the extra judicial confession cannot be safely be relied upon.proved the extra judicial confession cannot be safely be relied upon.

Judicial Confession Judicial Confession “ “It is made before a magistrate or court in due course of legal It is made before a magistrate or court in due course of legal

proceedings they include confessions made in preliminary proceedings they include confessions made in preliminary examinations before magistrate.”examinations before magistrate.”

Confession caused by inducement, threat or promise Confession caused by inducement, threat or promise when irrelevant in criminal proceedings. – Article 37 when irrelevant in criminal proceedings. – Article 37 Q.S.O 1984Q.S.O 1984

A confession made by an accused person is a irrelevant A confession made by an accused person is a irrelevant in the criminal proceedings if the making of the confession in the criminal proceedings if the making of the confession appears to the court caused by any inducement, threat or appears to the court caused by any inducement, threat or promise having interference against the accused person, promise having interference against the accused person, proceeding from a person in authority and sufficient, in the proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.temporal nature in reference to the proceedings against him.

Explanation Explanation The word confession is not defined in the Act. It means an The word confession is not defined in the Act. It means an

admission of certain facts which constitute an offence made admission of certain facts which constitute an offence made by a person who is charge with the offence which is the by a person who is charge with the offence which is the subject matter of the statement. The particulars of the subject matter of the statement. The particulars of the offence should be put to the accused and he should admit offence should be put to the accused and he should admit the allegations constituting the offence.the allegations constituting the offence.

Confession is aConfession is a voluntary statementvoluntary statement made by a person made by a person charged with the commission of a crime or misdemeanor, charged with the commission of a crime or misdemeanor, communicated to another person where in he acknowledges communicated to another person where in he acknowledges himself to be guilty of the offence.himself to be guilty of the offence.

Distinction between a Confession and Distinction between a Confession and AdmissionAdmission

The acid test which distinguishes confession from The acid test which distinguishes confession from admission is that where conviction can be based admission is that where conviction can be based on the statement alone it is a confession and on the statement alone it is a confession and where some supplementary evidence is needed where some supplementary evidence is needed to authorize a conviction then it is an admission to authorize a conviction then it is an admission

( Ram Singh Vs State AIR 1959 All 518 )( Ram Singh Vs State AIR 1959 All 518 )Under Islamic LawUnder Islamic Law In order to make a confession reliable it should be In order to make a confession reliable it should be

voluntarily made and not on account of any coercion, voluntarily made and not on account of any coercion, duress or violence.duress or violence.

Confession to Police Officer not to be provedConfession to Police Officer not to be proved (Article (Article 38 )38 )

No confession made to a police officer shall be proved as No confession made to a police officer shall be proved as against a person accused of any offence.against a person accused of any offence.

Confession to Police Officer Confession to Police Officer Confession of an accused person before any police officer Confession of an accused person before any police officer

of any rank about a case tribal by the court or by the court of any rank about a case tribal by the court or by the court of the general jurisdiction. It is an admissible.of the general jurisdiction. It is an admissible.

Confession by accused while in custody of Police Confession by accused while in custody of Police not to be proved against him. ( Article 39)not to be proved against him. ( Article 39)

Subject to Article 40 no confession made by any person whilst he Subject to Article 40 no confession made by any person whilst he is in the custody of the police officer unless it be made in the is in the custody of the police officer unless it be made in the immediate presence of a magistrate, shall be proved as immediate presence of a magistrate, shall be proved as against such person.against such person.

ExplanationExplanation Article 39 deals with confessions which are made not to the Article 39 deals with confessions which are made not to the

police officer but to persons other than police officers i.e. to police officer but to persons other than police officers i.e. to fellow prisoner, a doctor or a visitor and makes such fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the confessions inadmissible, if they were made while the accused was the custody of police officer. accused was the custody of police officer.

Exculpatory confession: Exculpatory confession: A judicial confession which was self-A judicial confession which was self-exculpatory and which was not recorded as statement of exculpatory and which was not recorded as statement of prosecution witness, could not be used against another prosecution witness, could not be used against another person.person.

((1991 MLD 2001)1991 MLD 2001)

How much of information received from accused may be How much of information received from accused may be proved ( Article 40 )proved ( Article 40 )

When any fact is deposed to as discovered in consequence of When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, information received from a person accused of any offence, in the custody of police officer, so much of so information, in the custody of police officer, so much of so information, whether it amounts to a confession or not, as relates whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may b proved.distinctly to the fact thereby discovered may b proved.

Essentials Essentials of Article 40of Article 40i.i. Information conveyed by accused actually led to discovery of some Information conveyed by accused actually led to discovery of some

factfactii.ii. The fact was unknown to the police and it was first time derived from The fact was unknown to the police and it was first time derived from

accused accused iii.iii. Discovery of the fact must relate to the commission of the offence or Discovery of the fact must relate to the commission of the offence or

connect the accused with crime. connect the accused with crime.

2006 AC 701 (DB) 2006 AC 701 (DB) Discovery of place of abduction which was already Discovery of place of abduction which was already known to police would not come within ambit of Art.40known to police would not come within ambit of Art.40

Delayed recovery: Delayed recovery: Recoveries made after lapse of three years and belated Recoveries made after lapse of three years and belated dispatch of recovered weapons to Ballistic Expert would prove nothing dispatch of recovered weapons to Ballistic Expert would prove nothing against the accused. 2001 Cr.L.J 704 (DB) against the accused. 2001 Cr.L.J 704 (DB)

Confession made after removal of impression caused by Confession made after removal of impression caused by

inducement, threat or promise, relevant inducement, threat or promise, relevant – Article 41– Article 41

If such a confession is referred to in Article 37 is made after the impression If such a confession is referred to in Article 37 is made after the impression caused by any such inducement, threat or promise has, in the opinion caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant.of the court, been fully removed, it is relevant.

Article 42Article 42Article 43 Article 43 (Evidence Act, 1872 section 30)(Evidence Act, 1872 section 30)Confession must be provedConfession must be provedExtra-Judicial confession: A confession made before Extra-Judicial confession: A confession made before

a witness can also be used. a witness can also be used. AIR 1937 Mad. 618AIR 1937 Mad. 618Evidentiary value of confession against co-accused:Evidentiary value of confession against co-accused:It is an evidence of weak character. It cannot be It is an evidence of weak character. It cannot be

made foundation of conviction. made foundation of conviction. NLR 2006 Cr.1 NLR 2006 Cr.1 (DB)(DB)

Under Qanun-e-Shahadat, Confessions are treated as Under Qanun-e-Shahadat, Confessions are treated as a species of admission and under the scheme of a species of admission and under the scheme of the order confessions are treated prima facie as the order confessions are treated prima facie as relevant or provable under the category of relevant or provable under the category of admissions admissions Articles 37,38,39 provide the Articles 37,38,39 provide the circumstances under which they are not relevant circumstances under which they are not relevant or provable Arts. 40,41,42 provide the or provable Arts. 40,41,42 provide the limitation is limitation is the operationthe operation of Arts.37,38,39 of Arts.37,38,39

AIR 1951 AIR 1951 Orissa 168Orissa 168

Recording of confession Recording of confession

Statements of accused at various Statements of accused at various stages explained.--stages explained.-- The provisions of The provisions of sections 164, 342 and 364 of the Criminal Procedure sections 164, 342 and 364 of the Criminal Procedure Code with regard to the confessions and statements of Code with regard to the confessions and statements of accused persons should be carefully studiedaccused persons should be carefully studied. . the the recording of statements and confessions at any stage recording of statements and confessions at any stage before the commencement of an enquiry or trial. before the commencement of an enquiry or trial.

Section 342 deals with the examination of accused Section 342 deals with the examination of accused persons during the course of the enquiry or persons during the course of the enquiry or trial. Section 364 prescribes the manner in trial. Section 364 prescribes the manner in which the examination of an accused person is which the examination of an accused person is to be recorded. to be recorded.

- Chapter 13 High Court Rules and - Chapter 13 High Court Rules and OrdersOrders

Pre-trial stagePre-trial stage F.I.R ( read section 154,155 Cr.P.C)F.I.R ( read section 154,155 Cr.P.C) Statements of witness by Investigation Officer u/s 161 Statements of witness by Investigation Officer u/s 161

Cr.P.C (statements not under oath)Cr.P.C (statements not under oath) Chalan; Report under section 173 Cr.P.C Chalan; Report under section 173 Cr.P.C (It is to be presented with 14 days )(It is to be presented with 14 days )Trial StageTrial StageSummoning of accused Summoning of accused Copies are distributed to accused u/s265(c) copies shall be Copies are distributed to accused u/s265(c) copies shall be

supplied with in 7 dayssupplied with in 7 daysFraming of ChargeFraming of ChargeProsecution evidenceProsecution evidenceStatement u/s 342 (without oath)Statement u/s 342 (without oath)Statement u/s 340 if accused wishesStatement u/s 340 if accused wishesDefense evidence to be produced if accused wishes.Defense evidence to be produced if accused wishes.Arguments Arguments JudgmentJudgment

Sec. Sec. 164. 164. Power to record statement and confessions.- Power to record statement and confessions.- (1) (1) Any Metropolitan Any Metropolitan Magistrate, any Magistrate of the first class and any Magistrate of the second class Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Government mayspecially empowered in this behalf by the Government may, if he is not a police-, if he is not a police-officer, record any statement or confession made to him in the course of an officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before theinvestigation under this Chapter or at any time afterwards before thecommencement of the inquiry or trial. commencement of the inquiry or trial. (2) (2) Such statements shall be recorded in such of the mannersSuch statements shall be recorded in such of the mannershereinafter prescribed for recording evidence as is, in his opinion, best fitted for thehereinafter prescribed for recording evidence as is, in his opinion, best fitted for thecircumstances of the case. circumstances of the case. Such confessions shall be recorded and signed in theSuch confessions shall be recorded and signed in themanner provided in section 364manner provided in section 364, and such statements or confessions shall then be, and such statements or confessions shall then beforwarded to the Magistrate by whom the case is to be inquired into or tried. forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) (3) A Magistrate shallA Magistrate shall, before recording any such confession, , before recording any such confession, explain explain to the person making it that he is not bound to make confession and that if he does to the person making it that he is not bound to make confession and that if he does so it may be used as evidence against himso it may be used as evidence against him and no magistrate shall record any such and no magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:- memorandum at the foot of such record to the following effect:- ““I have explained to (name) that he is not bound to make a confession and that, if I have explained to (name) that he is not bound to make a confession and that, if

he he does so any confession he may make may be used as evidence against him and I does so any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. I was taken in my presence and believe that this confession was voluntarily made. I was taken in my presence and hearing, and was read over to the person making it and admitted by him to be hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.correct, and it contains a full and true account of the statement made by him.(Singed) A. B., (Singed) A. B., Magistrate.” Magistrate.” Explanation.- Explanation.- It is not necessary that the Magistrate receiving and recording aIt is not necessary that the Magistrate receiving and recording aconfession or statement should be a Magistrate having jurisdiction in the case. confession or statement should be a Magistrate having jurisdiction in the case.

Confession; procedure u/s164 Cr.P.CConfession; procedure u/s164 Cr.P.CMagistrate, any Magistrate of the first class and any Magistrate, any Magistrate of the first class and any

magistrate of the second class specially empowered in magistrate of the second class specially empowered in this behalf by the Government.this behalf by the Government.

(Brought to him by S.H.O)(Brought to him by S.H.O)Handcuff should be removedHandcuff should be removed. Police sent out to court room . Police sent out to court room

and accused given time to ponder and explained that he and accused given time to ponder and explained that he is not bound to make confession… is not bound to make confession… PLD 1958 Lah 559 (DB)PLD 1958 Lah 559 (DB)

All police officers to be sent out of court room, weather All police officers to be sent out of court room, weather belonging to another Police station ( belonging to another Police station ( ThanaThana))

Magistrate to ask question to verify confession. Questions Magistrate to ask question to verify confession. Questions such as:such as:

How long you have been with police?How long you have been with police? Has any pressure been brought to bear upon you?Has any pressure been brought to bear upon you? Have you been threatened to make confession?Have you been threatened to make confession? Has any inducement given to you?Has any inducement given to you? Why are u making the confession Why are u making the confession

Section 364; Examination how recordedSection 364; Examination how recorded … …shall be recorded in full, in the language in which he is shall be recorded in full, in the language in which he is

examined, or if that is not practicalable, in the language of court, examined, or if that is not practicalable, in the language of court, or in Englishor in English

should be interpreted to him in language he understandshould be interpreted to him in language he understand Liberty to add or explain his answerLiberty to add or explain his answer

Importance of section 346Importance of section 346Provision of section 364 not complied with while recording of Provision of section 364 not complied with while recording of

statement of the accused. Defect not curable by section 537, statement of the accused. Defect not curable by section 537, Cr.P.C. Conviction set aside. Cr.P.C. Conviction set aside.

NLR 1985 Cr. 113 M.I NLR 1985 Cr. 113 M.I InayatInayat

Case Law:Case Law:HeldHeld; ; Section 164 and 364 of Cr.P.C must be construed together… It Section 164 and 364 of Cr.P.C must be construed together… It

is well-recognized rule of construction that where a power is given is well-recognized rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are that way or not at all. Other methods of performance are necessarily forbiddennecessarily forbidden

ILR 1936 (17) Lah. 629ILR 1936 (17) Lah. 629

Exceptions to Article 38 Qanun-e-Exceptions to Article 38 Qanun-e-Shahadat 1984Shahadat 1984

i.i. Article 40; How much information Article 40; How much information received from accused may be proved.received from accused may be proved.

ii.ii. Section 21(h) of Anti-Terrorism Act1997 ; Section 21(h) of Anti-Terrorism Act1997 ; Confession against police officer of Confession against police officer of

atleast S.P rankatleast S.P rankContradictory view: Contradictory view: Confession before a police officer of any rank Confession before a police officer of any rank

is not admissible. is not admissible. PLD 1998 SC 1445 PLD 1998 SC 1445

Mehram AliMehram Ali

5. Form prescribed for recording confessions5. Form prescribed for recording confessions.-- *.-- *[For [For recording confessions taken under section 164 of the code the following recording confessions taken under section 164 of the code the following form shall be used:-]form shall be used:-]

RECORD OF CONFESSION MADE BY AN ACCUSED PERSONRECORD OF CONFESSION MADE BY AN ACCUSED PERSON(Section 164 of the Code of Criminal Procedure)(Section 164 of the Code of Criminal Procedure)----------------------------------------- Division In the Court ----------------------------------------- Division In the Court

of--------------------------------------------------of--------------------------------------------------THE STATE,THE STATE,versusversusThe confession of-------------------------------------------------------------taken by The confession of-------------------------------------------------------------taken by

me------------------------------------, a Magistrate of the--------------------------------me------------------------------------, a Magistrate of the--------------------------------District, this-----------------------day of-------------------------19 .District, this-----------------------day of-------------------------19 .

Memorandum of EnquiryMemorandum of Enquiry(The Magistrate shall first, as required by section (The Magistrate shall first, as required by section

164(3), Code of Criminal Procedure, explain to 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to the accused person that he is not bound to make a confession… Special care should be make a confession… Special care should be taken when women or children are produced by taken when women or children are produced by the Police for their confessions being recorded).the Police for their confessions being recorded).

1. Q.-- Do you understand that you are not bound to make a confession?1. Q.-- Do you understand that you are not bound to make a confession?A.-----A.-----2. Q. Do you understand that your statement is being recorded by a 2. Q. Do you understand that your statement is being recorded by a

Magistrate, and that if you make a confession, it may be used as Magistrate, and that if you make a confession, it may be used as evidence against you?evidence against you?

A.-----A.-----3. Q.-- How long have you been in police custody?3. Q.-- How long have you been in police custody?A.-----A.-----4. Q.-- Do you understand that after making a statement before me you 4. Q.-- Do you understand that after making a statement before me you

will not be remanded to police custody, but will be sent to the judicial will not be remanded to police custody, but will be sent to the judicial lock-up?lock-up?

A.-----A.-----5. Q.-- Understanding these facts, are you making a statement before me 5. Q.-- Understanding these facts, are you making a statement before me

voluntarily?voluntarily?A.-----A.-----6. Q.-- What are your reasons for wishing to make a statement?6. Q.-- What are your reasons for wishing to make a statement?A.-----A.-----Statement of accused.Statement of accused.(Mark or signature of accused). Magistrate.(Mark or signature of accused). Magistrate.I have explained to---------------------- that he is not bound to make a I have explained to---------------------- that he is not bound to make a

confession, and that if he does so, any confession he may make may confession, and that if he does so, any confession he may make may be used as evidence against him and I believe hat this confession was be used as evidence against him and I believe hat this confession was voluntarily made. It was taken in my presence and hearing, and was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him.and it contains a full and true account of the statement made by him.

Dated_______________ Magistrate.Dated_______________ Magistrate.

Friday :: September 01, 2006Friday :: September 01, 2006Huge Award in False Confessions Huge Award in False Confessions

CaseCaseKeith Longtin spent 8 months in jail Keith Longtin spent 8 months in jail

after police interrogated him for 38 after police interrogated him for 38 hours and got him to falsely confess hours and got him to falsely confess to murdering his wife. A Prince to murdering his wife. A Prince George County, Va MD. jury George County, Va MD. jury has awarded him $6.8 million in damages..