Monday 30 September 2019

Whether admission given by accused during investigation is substantive evidence?

 Bar Under Section 162 Code of Criminal Procedure, no doubt, operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. We need not, however, say anything more.

42. In Central Bureau of Investigation v. V.C. Shukla and Ors. MANU/SC/0168/1998 : AIR 1998 SC 1406, a Bench of three learned Judges, after approving Pakala Narayana Swami (supra), had occasion to consider the distinction between confession and admission. This Court went on to hold as follows:

45. It is thus seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an "admission" Under Section 21. The law in this regard has been clearly - and in our considered view correctly - explained in Monir's Law of Evidence(New Edn. at pp. 205 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as "admission" of the Jains still they cannot be used against Shri Advani. The relevant passage reads as under:

The distinction between admissions and confessions is of considerable importance for two reasons. Firstly, a statement made by an Accused person, if it is an admission, is admissible in evidence Under Section 21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to a Police Officer, or was made at a time when the Accused was in custody of a Police Officer. If a statement was made by the Accused in the circumstances just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible Under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a Police Officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an Accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance.

(Emphasis supplied)

43. Section 21 of the Evidence Act provides as follows:

21. Proof of admissions against persons making them, and by or on their behalf.-Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons Under Section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

44. Thus, what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitutes an admission is to be found in Section 17 of the Evidence Act, which defines admission as follows:

17. Admission defined.-An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

45. In Bharat Singh and Ors. v. Mst. Bhagirathi MANU/SC/0362/1965 : AIR 1966 SC 405, the true nature of the evidentiary value of admission, and whether without confronting the maker of the admission, it could be used, has been referred to and this is what this Court had to say:

19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness Under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.

(Emphasis supplied)

46. From the statement of the law contained in V.C. Shukla and others (supra), it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Code of Criminal Procedure to a Police Officer, then, it will not be admissible Under Section 162 of the Code of Criminal Procedure as it clearly prohibits the use of statement made to a Police Officer Under Section 161 of the Code of Criminal Procedure except for the purpose which is mentioned therein. Statement given Under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence.


Criminal Appeal No. 714 of 2019 

Decided On: 24.04.2019

 Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:
Ashok Bhushan and K.M. Joseph, JJ.

Read full judgment here: Click here

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