Supreme Court: Confession Without Corroboration Cannot Be Basis For Conviction

 The confession allegedly made by the Appellants is of no use in bringing home a conviction, especially when there was no corroboration available, of the statements made, from other valid evidence. There was thus no single circumstance available, incriminating the Accused in the death of their friend, the son of PW5. {Para 30}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3738 of 2023

Decided On: 27.01.2026

Bernard Lyngdoh Phawa Vs. The State of Meghalaya

Hon'ble Judges/Coram:

P.V. Sanjay Kumar and K. Vinod Chandran, JJ.

Author: K. Vinod Chandran, J.

Citation: 2026 INSC 85,MANU/SC/0087/2026

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How the judge would appreciate retracted confession?

 A judge appreciates a retracted confession with great caution: first he must see whether it was voluntary and true, and if satisfied, he should still ordinarily look for independent corroboration in material particulars before acting on it.

30-second answer

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Bombay HC: Whether Demonstration panchnama proved by prosecution is admissible in evidence in criminal trial?

 A similar situation also arose before the Gujarat High Court in the case of Ramkishore Bharatsinh Yadav Vs. State of Gujarat and another 2024 SCC OnLine Guj 3121 wherein, it has been observed as under:

“22. It is an admitted fact that at the time of making

confessional statement during the process of pointing out

and demonstration panchnamas, the appellant-accused was

admittedly in the police custody. Moreover, considering the

fact that nothing had been discovered or recovered through

these panchanamas, we are of the opinion that the trial

court, in considering these evidence for convicting the

appellants-accused, has fell in error, since the same is

inadmissible.” {Para 23}

24. To put it all together, a demonstration shown by an accused depicting the manner in which an offence is committed by him is hit by Section 25 of the Act and for the reasons stated above, it is not admissible even under Section 27 of the Act as an exception to Section 25 of the Act.

25. The learned Judge also observed that some part of the

demonstration made by the petitioners which relates to the

subsequent conduct of the petitioners is admissible in evidence

under Section 8 of the Act. No doubt, subsequent conduct of an

accused is relevant if it influences or is influenced by any fact in

issue or relevant fact. However, the learned Judge failed to

consider that the demonstration shown by the petitioners to the

police as to their conduct is admissible against them under Section 8 of the Act only to the extent of its non-confessional portion. Meaning thereby, any evidence showing the conduct of an accused must first overcome the bar created by Section 25 of the Act and only then it can be relied upon under Section 8 of the Act. (See: Bheru Singh Vs. State of Rajasthan  1994 (2) SCC 467 and Aghnoo Nagesia Vs. State of Bihar 1965 SCC OnLine SC 109. In the present case, the entire demonstration panchanama is hit by Section 25 of the Act. Therefore, demonstration made by the petitioners to show the manner in which the offence was committed by them is not admissible under Section 8 of the Act even to show subsequent conduct.

26. To conclude, the learned Additional Sessions Judge has not considered these aspects and erroneously overruled the objection of the petitioners. Therefore, the orders dated 08.10.2024 and 14.11.2024 passed by the learned Additional Sessions Judge, Buldhana in Sessions Trial No.24 of 2022 are hereby set aside. The objections of the petitioners are sustained. Accordingly, the petition succeeds.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL WRIT PETITION NO.49 OF 2025

 Rahul S/o Kisan Jaybhaye, Vs The State of Maharashtra

CORAM: M.W. CHANDWANI, J.

PRONOUNCED ON : 11.07.2025

Citation: 2025:BHC-NAG:7427

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What is Section 27 of the Evidence Act?

 Section 27 of the Indian Evidence Act, 1872 creates an exception to the general rule that prohibits confessions made by an accused person to police officers while in custody. This section allows for the admissibility of information received from an accused person in police custody if it leads to the discovery of a fact related to the crime.

Text of Section 27

The section reads: "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved".

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What is difference between Confession and extra judicial confession and It's value?

 Understanding Confession

A confession is "the direct admission of matter or facts of the cases either in the form of a written or oral statement". According to Sir James Stephen, it is defined as "an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime". Essentially, a confession is a statement made by an accused person that suggests or admits their guilt in relation to a criminal offense.

Types of Confessions

Confessions are broadly categorized into two main types: judicial confessions and extra-judicial confessions.

Judicial Confession

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Evidentiary Value of statements obtained by Police under the Indian Evidence Act

 The evidentiary value of statements made to police officers in India is primarily governed by the Indian Evidence Act, 1872, particularly Sections 25, 26, and 27. These sections delineate the circumstances under which statements can be considered admissible in court and the extent to which they can be relied upon.

Section 25: Confessions to Police Officers

Section 25 of the Indian Evidence Act explicitly states that no confession made to a police officer shall be proved against an accused. This provision is rooted in the historical context of potential coercion and abuse of power by law enforcement, ensuring that confessions obtained under duress or in custody are inadmissible. 

This section underscores a fundamental principle of criminal justice: protecting individuals from self-incrimination and ensuring that any confession is made voluntarily and without undue influence.

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Supreme court: Statement Of Accused is Inadmissible U/S 27 of Evidence Act If No New Fact Is Discovered Pursuant To Disclosure

 On a threadbare analysis of the entire record, we do not find that the prosecution examined any witness who had deposed about the link evidence/safe custody of the mudammal articles right from the time they were received at the police station and seized till the time the same reached the FSL. Hence, otherwise also, the FSL report(Exhibits 111-115) pales into insignificance. Investigating Officer(PW-18) deposed that he arrested the Accused persons. A detailed enquiry was made from all three Accused-Appellants, and they were examined for the injuries found on their bodies. Thereafter, all the Accused-Appellants conveyed their willingness to show the place of the offence and thereafter, panchnama as per Section 27 of the Evidence Act was prepared. Since the place of incident was also known to police, this disclosure is irrelevant. {Para 45}

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

Read full judgment here: Click here.

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Supreme Court: The court should not rely on FSL report if prosecution has failed to prove chain of custody

 The trial Court as well as the High Court heavily relied upon the FSL reports(Exhibits 111-115) to hold that blood group found on the weapons of offence incriminated the Accused for the crime as the same matched with the blood group of the deceased. In this regard, it is suffice to say that the two weapons which were picked up by Demistalkumar(PW-12) from the place of occurrence were formally seized at the Anand Town Police Station around 2:30 am on 5th May, 2011. Only one of the panchas Mohammad Hussain(PW-5) was examined at the trial. The seizure panchnama(Exhibit -38) records that the three Accused who had inflicted deadly blows to the deceased with dagger, gupti and knife, threw away their weapons near the garden and fled away from the crime scene and that police personnel brought all the weapons to the police station. However, the panchnama(Exhibit P-38) does not bear the signatures of the police constable, Demistalkumar(PW-12) who admittedly collected the weapons from the crime scene and presented them to the police station. Thus, no credence can be given to seizure panchnama(Exhibit P-38) because it suffers from the lacuna of not being attested by the witness who had actually presented the weapons at the police station. In addition, thereto, we may further note that Demistalkumar(PW-12), the police constable who deposited the weapons at the police station, did not state in his evidence as to whom he had given the knife and the gupti which he picked up from the crime scene. These weapons were seized vide seizure panchnama(Exhibit-38) which was admittedly prepared at 2:30 am. However, the Police Constable, Demistalkumar(PW-12) stated that he reached the police station at about 9:15 pm and stayed there for only 20 minutes. These infirmities create a doubt on the very process of seizure of the weapons. {Para 42}

43. The trial Court as well as the High Court heavily relied upon the FSL reports(Exhibits 111-115) for finding corroboration to the evidence of the eyewitnesses and in drawing a conclusion regarding culpability of the Appellants for the crime. We may reiterate that the testimony of the so-called eyewitnesses has already been discarded above by holding the same to be doubtful. Thus, even presuming that the FSL reports(Exhibits 111-115) conclude that the blood group found on the weapons recovered at the instance of the Accused matched with the blood group of the deceased, this circumstance in isolation, cannot be considered sufficient so as to link the Accused with the crime. In this regard, reliance can be placed on the judgment of Mustkeem alias Sirajudeen v. State of Rajasthan   MANU/SC/0795/2011 : 2011:INSC:487 : (2011) 11 SCC 724, wherein this Court held that sole circumstance of recovery of bloodstained weapon cannot form the basis of conviction unless the same was connected with the murder of the deceased by the Accused. The relevant portion is extracted hereinbelow:

19. The AB blood group which was found on the clothes of the deceased does not by itself establish the guilt of the Appellant unless the same was connected with the murder of the deceased by the Appellants. None of the witnesses examined by the prosecution could establish that fact. The blood found on the sword recovered at the instance of Mustkeem was not sufficient for test as the same had already disintegrated. At any rate, due to the reasons elaborated in the following paragraphs, the fact that the traces of blood found on the deceased matched those found on the recovered weapons cannot ipso facto enable us to arrive at the conclusion that the latter were used for the murder.

(emphasis supplied)

44. On a perusal of the deposition of the Investigating Officer(PW- 18), we find his evidence on the aspect of disclosure statements made by the Accused-Appellant leading to the recoveries to be totally perfunctory and unacceptable. The witness did not elaborate upon the words spoken by the Accused-Appellant at the time of making the disclosure statements.

45. On a threadbare analysis of the entire record, we do not find that the prosecution examined any witness who had deposed about the link evidence/safe custody of the mudammal articles right from the time they were received at the police station and seized till the time the same reached the FSL. Hence, otherwise also, the FSL report(Exhibits 111-115) pales into insignificance. Investigating Officer(PW-18) deposed that he arrested the Accused persons. A detailed enquiry was made from all three Accused-Appellants, and they were examined for the injuries found on their bodies. Thereafter, all the Accused-Appellants conveyed their willingness to show the place of the offence and thereafter, panchnama as per Section 27 of the Evidence Act was prepared. Since the place of incident was also known to police, this disclosure is irrelevant. Search of the houses of the Accused-Appellant was undertaken in presence of the panch witnesses and a big knife was seized from the house of the Accused Mohmedfaruk @ Palak, vide panchnama(Exhibit-52).

46. Hence, we are of the firm view that neither the disclosure statements made by the Accused were proved as per law nor the same resulted into any discovery which could be accepted as incriminating inasmuch as the requisite link evidence was never presented by the prosecution so as to establish that the recovered articles remained in the self-safe condition from the date of the seizure till the same reached the FSL.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

Read full judgment here: Click here.

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Supreme court: Confession Recorded By Medical Officer When Accused Were Presented By Police Officers Inadmissible As Evidence

The trial Court as well as the High Court, placed extensive reliance on the confessions of the Accused Appellants Mohmedfaruk @ Palak Safibhai Memon and Amin @ Lalo recorded by the Medical Officer, Dr. Arvindbhai(PW-2) while preparing the injury reports of the Accused. {Para 40}

41. We find that these so-called confessions are ex-facie inadmissible in evidence for the simple reason that the Accused persons were presented at the hospital by the police officers after having been arrested in the present case. As such, the notings made by the Medical Officer, Dr. Arvindbhai(PW-2) in the injury reports of Mohmedfaruk @ Palak and Amin @ Lalo would be clearly hit by Section 26 of the Indian Evidence Act, 1872(hereinafter being referred to as 'Evidence Act'). As a consequence, we are not inclined to accept the said admissions of the Accused as incriminating pieces of evidence relevant Under Section 21 of the Evidence Act. 

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 2828-2829 of 2023 and 112 of 2024

Decided On: 08.08.2024

Allarakha Habib Memon and Ors. Vs. State of Gujarat

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0856/2024.

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Procedure for recording confession of accused by Magistrate as per Criminal Manual

 Confessions

17. Accused persons willing to make a confession should be taken for the purpose before a judicial magistrate and ,whenever possible ,before the magistrate who will not eventually try the case. Any Metropolitan Magistrate or Judicial Magistrate may ,whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under the code of Criminal Procedure ,1973 or any other law for the time being in force ,or at any time afterwards before the commencement of the inquiry or trial ,as required by Section 164 of the Code of Criminal Procedure 1973.

18. The following instructions are issued for the guidance of the Magistrate recording confessions and statement under section 164 of the Code of Criminal Procedure 1973. They are not intended to fetter the discretion given by the law to Magistrates. The only object with which they are issued is to indicate generally the manner in which the discretion may be exercised.:-

    (i) In the absence of exceptional reasons, confessions should ordinarily be recorded in open Court and during court hours.

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Whether court can convict the accused on the basis of his videographic confession made before police?

Both the Trial Court and the Appellate Court went completely wrong in placing reliance on the voluntary statements of the Accused and their videography statements. Under Article 20(3)1 of the Constitution of India, an Accused cannot be compelled to be a witness against himself. Again, Under Section 252 of the Indian Evidence Act, 1872; a confessional statement given by an Accused before a Police officer is inadmissible as evidence.

The reference of the Supreme Court judgment by the trial Court (Shri N. Sri Rama Reddy v. Shri V.V. Giri) is also misplaced. That case only refers to the admissibility of a tape-recorded conversation in an election petition which is tried before a Court under the Code of Civil Procedure (Section 87 of the Representation of People Act, 1951). This Court, in the above cited judgment was not dealing with a criminal case and most certainly not on the admissibility of a statement given by an Accused to the Police Under Section 161 of Code of Criminal Procedure. Indeed, the above judgment also ends with a note of caution:

20. The other disturbing feature that we have noticed is that voluntary statements of the Appellants were recorded on a DVD which was played in Court and formed the basis of the judgment of the Trial Court as is noticeable from paragraph Nos. 34 and 35 of its judgment. Such a statement is again in the nature of a confession to a Police Officer and is completely hit by the principles of Evidence Act. If at all the Accused were desirous of making confessions, the Investigating Machinery could have facilitated recording of confession by producing them before a Magistrate for appropriate action in terms of Section 164 of the Code. Any departure from that course is not acceptable and cannot be recognized and taken on record as evidence. The Trial Court erred in exhibiting those DVD statement Exh.P-25 to 28. As a matter of fact, it went further in relying upon them while concluding the matter on the issue of conviction.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 1597-1600 of 2022 

Decided On: 30.09.2022

Munikrishna and Ors. Vs.  State by Ulsoor PS

Hon'ble Judges/Coram:

U.U. Lalit, C.J.I., S. Ravindra Bhat and Sudhanshu Dhulia, JJ.

Author: Sudhanshu Dhulia, J.

Citation: MANU/SC/1289/2022

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Delhi HC: Extracting Confession From Child Is Beyond Scope Of Preliminary Assessment Report and it is Unconstitutional

 Learned counsel appearing on behalf of the NGO/HAQ, Intervener in

the CRL.Ref. 3/2016 has placed before us, a copy of the preliminary

assessment report prepared by a psychologist in the format supplied by the

Department. Under Clause 3 of the said report, it can be clearly noted that

a confession is sought to be extracted from the child as to the manner in

which the offence was committed and the reasons thereof. This manner of

seeking a confession from the child is unconstitutional and beyond the scope

of a report of preliminary assessment to be prepared under Section 15 of the

J.J. Act.

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 193/2018

VIKAS SANGWAN  Vs THE STATE (GOVT. OF NCT OF DELHI) 

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

HON'BLE MR. JUSTICE ANISH DAYAL

Dated: 19.09.2022

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Karnataka Criminal Rules of Practice for recording of confession of Accused

  Karnataka Criminal Rules of Practice

Rule-5 (Chapter-V) of the Karnataka Criminal Rules of Practice, 1968 which reads as under:

5. Recording of Confession Statements

(1) When an accused person is produced before a Magistrate for recording a confession statement, the Magistrate shall explain to him that he is before a Magistral, that he is under no obligation at all to make any statement, that he is under no obligation at all to make any statement, that he is free to make a statement or refrain from making any as he pleases, that it is not intended to take him as an approver and that anything said by him will be taken down and thereafter may be used as evidence against him.

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Whether the court can convict an accused for an offence of being a habitual offender based on his confession even if he is not convicted twice for a crime U/S 411 of IPC?

  I do not agree with the submission made by the learned counsel

for the appellant that despite the confession of appellant, learned trial court should have asked for two judgments in which appellant would have been convicted under Section 411 I.P.C. because confession made by the accused, shall be taken as a whole. It cannot be in parts because it was made regarding same occurrence and he made confession with his own freewill and in his statement under Section 313 Cr.P.C., in question no.6 it was specifically put before the appellant as to whether he habitually used to deal in stolen goods. Appellant did not deny this question and in question no. 11, he also said that trial was held against him on account of commission of offences by him. It is important to mention that offences committed by the appellant which he confessed include offence under Section 413 I.P.C. also. {Para 18}

19. After confession made by the appellant, no other evidence was required to convict him. The confession regarding other offences under Sections 177, 171, 419, 417 and 411 I.P.C. is not challenged by appellant. Hence, when conviction is made as a whole regarding any occurrence or set of occurrences, it shall be taken as a whole. It cannot be fragmented into pieces and accused cannot at later stage claim that confessional statement made by him, should be considered regarding some of the offences only.

20. P.W.-2, Abhay Pandey, Head Constable was produced by the

prosecution before the learned trial court as arresting witness, who

said in his statement that on 12.03.2016 he along with other members

of police party of P.S. G.R.P. Gorakhpur was present at platform

no.2A. At the time of checking, accused-appellant was arrested by the police along with other co-accused persons and two stolen mobile  phones, one stolen motorcycle were recovered from his possession apart from Alprazolam powder. It was also stated by this witness that at the time of arrest, appellant was having a fake identity card of U.P. Police and was wearing fake uniform of U.P. Police. Above statement  was made by P.W.-2 in his examination-in-chief and it is very pertinent to note that P.W.-2 was not cross-examined by the accusedappellant, rather he made the confession of his guilt under Section 313 Cr.P.C. Hence, in my opinion, confessional statement of accusedappellant cannot be treated as partial and applicable to some of the offences only.

21. In view of the above, I am unable to agree with the argument of learned counsel for the appellant that for convicting the accused under Section 413 I.P.C. it is mandatory particularly after confession, that accused should have already been convicted under Section 411 I.P.C. twice or more than twice because accused appellant has himself made confession before the learned trial court that he was habitual in dealing with the stolen properties. It is not the case of the appellant nor he argued that accused did not make confession with freewill.

ALLAHABAD HIGH COURT

Case :- CRIMINAL APPEAL No. - 1534 of 2020

Vinod Mali   Vs  State of U.P.

Coram: Hon'ble Ajai Tyagi,J.

Delivered on :- 19.08.2021

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Can a statement of suspect recorded at Pre- FIR stage be treated as the confession or statement U/S 160 of CRPC?

 However, the next question posed for the consideration of this Court is, whether to what extent such an enquiry is permissible and what would be the scope and ambit of such an enquiry. By the impugned notice, impugned before the High Court, and during the course of the ‘open enquiry’, the appellant has been called upon to give his statement and he has been called upon to carry along with the information on the points, which are referred to hereinabove for the purpose of recording his statement. The information sought on the aforesaid points is having a direct connection with the allegations made against the appellant, namely, accumulating assets disproportionate to his known sources of income. However, such a notice, while conducting the ‘open enquiry’, shall be restricted to facilitate the appellant to clarify regarding his assets and known sources of income. The same cannot be said to be a fishing or roving enquiry. Such a statement cannot be said to be a statement under Section 160 and/or the statement to be recorded during the course of investigation as per the Code of Criminal Procedure. Such a statement even cannot be used against the appellant during the course of trial. Statement of the appellant and the information so received during the course of discrete enquiry shall be only for the purpose to satisfy and find out whether an offence under Section 13(1)(e) of the PC Act, 1988 is disclosed. Such a statement cannot be said to be confessional in character, and as and when and/or if such a statement is considered to be confessional, in that case only, it can be said to be a statement which is self-incriminatory, which can be said to be impermissible in law.{Para 37}

38. At this stage, it is required to be noted that in the present case as such the appellant has produced the relevant documents of some of the properties owned by him and the appellant has joined the ‘open enquiry’. It also appears from the counter filed on behalf of the Anti-corruption Bureau that on the basis of the information given by the appellant, letters have been issued to various authorities/banks, seeking further and better particulars. Partial statement of the appellant has already been recorded. However, as observed hereinabove, such a statement/enquiry would be restricted only to ascertain whether a cognizable offence is disclosed or not. Such a statement cannot be said to be a confessional statement. After having been satisfied and after conclusion of the enquiry and on the basis of the material collected, if it is found that there is substance in the allegations against the appellant and it discloses a cognizable offence, FIR will be lodged and the investigating agency has to collect the evidence/further evidence to substantiate the allegations/charge of accumulating the assets disproportionate to his known sources of income. However, if during the enquiry at pre-registration of FIR stage, if the appellant satisfies on production of the materials produced relating to his known sources of income and the assets, in that case, no FIR will be lodged and if he is not able to clarify his assets, vis-à-vis, known sources of income, then the FIR will be lodged and he will be subjected to trial. Therefore, as such, such an enquiry would be to safeguard his interest also which may avoid further harassment to him.

39. In view of the above and for the reasons stated above, we see no reason to interfere with the impugned judgment and order passed by the High Court and we dismiss the appeal with the above observations and clarifications that the statement of the appellant on the points mentioned in the impugned notice would be only to satisfy whether a cognizable offence is disclosed or not and so as to enable the appellant to clarify the allegations made against him with respect to accumulation of assets disproportionate to his known sources of income and the same shall not be treated as a confessional statement.

 In the Supreme Court of India

(Before D.Y. Chandrachud and M.R. Shah, JJ.)

Charansingh Vs State of Maharashtra 

Criminal Appeal No. 363 of 2021 (Arising from S.L.P. (Criminal) No. 6764 of 2020)

Decided on March 24, 2021

Citation: 2021 SCC OnLine SC 251

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Guidelines of Madras high court for recording confession of accused U/S 164 of CRPC

  Thus, the upshot of the aforesaid discussion with regard to the confession statement of an accused recorded under Section 164 Cr.P.C. shows that it is done not only in the aid of investigation but also to be used as a substantive piece of evidence during trial. Therefore, it is imperative that the Investigating Officer is immediately supplied with a copy of the confession statement. To summarise:

— The Investigating Officer shall make an application before the CMM/CJM for nominating a Magistrate, other than the jurisdictional Magistrate, to record the confession statement of an accused.

— After recording the confession statement of an accused, the recording Magistrate shall arrange to take two photocopies of the same under his direct supervision and certify the same as true copies.

— The confession statement, in original, shall be sent in a sealed cover to the jurisdictional Magistrate or Court, as the case may be, through a special messenger or by registered post with acknowledgment due.

— One certified copy of the confession statement shall be immediately furnished to the Investigating Officer, free of cost, with a specific direction to him, to use it only for the purpose of investigation and not to make its contents public, until the investigation is completed and final report filed.

— The other certified photocopy of the confession statement shall be kept in a sealed cover in the safe custody of the recording Magistrate.{Para 68}

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Whether Special court should examine the Magistrate who has recorded the confession of the accused for proof of confession?

 b the 164 Cr.P.C. confession statement of the accused:

63. The recording of confession by a Magistrate under Section 164 Cr.P.C. stands on a slightly different footing in view of Section 463 Cr.P.C. The confession of an accused cannot be treated on par with the statement of a witness under Section 164 of the Code. To highlight this aspect, it may be necessary to extract two associated provisions relating to confessions, viz., Section 463 Cr.P.C. and Section 80 of the Evidence Act.

“463 Non-compliance with provisions of Section 164 or Section 281:

1 If any Court before which a confession or other statement of an accused person recorded, or purporting to be recorded under section 164 or section 281, is tendered or has been received, in evidence finds that any of the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it may, notwithstanding anything contained in Section 91 of the Indian Evidence Act, 1872, (1 of 1872), take evidence in regard to such non-compliance, and may, if satisfied that such non-compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such statement.

2 The provisions of this section apply to Courts of appeal, reference and revision.”

80 Presumption as to documents produced as record of evidence:

Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person, taken in accordance with law,and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid,

the Court shall presume—

“that the document is genuine; that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken.”

64. Our experience shows that the Trial Courts are in a State of oblivion as to the two provisions extracted above and as a matter of routine, the Magistrate recording the confession of an accused is summoned as a witness. This has been frowned upon by the Privy Council in Nazir Ahmad (supra) in the following words:

“As a matter of good sense, the position of accused persons and the position of the magistracy are both to be considered. An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of accused persons and as to how the results are to be recorded and what use is to be made of such records. Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath. So with regard to the magistracy; it is for obvious reasons most undesirable that Magistrates and Judges should be in the position of witnesses insofar as it can be avoided. Sometimes it cannot be avoided, as under S. 533, but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the legislature designed that it should be made available in that form and no other. In their Lordships' view it would be particularly unfortunate if Magistrates were asked at all generally to act rather as police officers than as judicial persons; to be by reason of their position freed from the disability that attaches to police officers under S. 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates from any obligation to make records under S. 164. In the result, they would indeed be relegated to the position of ordinary citizens as witnesses and then would be required to depose to matters transacted by them in their official capacity unregulated by any statutory rules of procedure or conduct whatever. Their Lordships are, however, clearly of opinion that this unfortunate position cannot in future arise because, in their opinion, the effect of the statute is clearly to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation, and to render inadmissible any attempt to deal with them in the method proposed in the present case.”

Therefore, a Magistrate who had recorded the confession statement of an accused can be summoned as a witness, only if it is found by the Trial Court that there has been an infraction of Section 164 or Section 281 of the Code and not otherwise. The Trial Courts should bear in mind this salutary aspect before unnecessarily summoning a judicial officer and putting him in the witness box at the cost of judicial time.

67. Since there may be a possibility of a Magistrate recording the confession of an accused under Section 164 Cr.P.C. being examined as a witness for infraction of Section 164 or 281 Cr.P.C. we are of the view that it will not be desirable for the jurisdictional Magistrate to record the confession of an accused under Section 164(4) Cr.P.C. This would apply to the Special Courts as well. In other words, though a Special Judge has the power to record the confession statement of an accused, yet, demands of propriety require that he should refrain from recording the confession of an accused in order to avoid the embarrassment of being examined as a witness in that case. We are also aware that the Magistrates come under the administrative control of the CMM/CJM and not under the Special Judges. Therefore, in order to save time, whenever the investigating agency wants the statement of an accused to be recorded under Section 164 Cr.P.C. it should file an application before the CMM/CJM for nominating a Magistrate other than the jurisdictional Magistrate for the purpose of recording such a statement. The investigating agency need not approach the Special Court and obtain a direction from the Special Court to the CMM/CJM for this purpose.

In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

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Whether Special court under POCSO Act, NDPS Act, SC & ST Atrocities Act, Unlawful Activities (Prevention) Act and Prevention of Corruption Act can record the statement of witness U/S 164 of CRPC?

 There may be cases triable by the Magistrate wherein the statement of a witness or an accused may have to be recorded under Section 164 of the Code. In view of the usage of expression “whether or not he has jurisdiction in the case” in Section 164 of the 1973 Code, a Magistrate who has jurisdiction to try the offence can also record the statement of a witness under Section 164 Cr.P.C.{Para 47}

48. In our above narration, we have referred to the procedure that is being adopted by the Special Courts established under various special Acts like Prevention of Corruption Act, 1988 POCSO Act, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, etc. for recording the statement of a witness under Section 164 Cr.P.C. Clearly, we do not approve of the method that is being adopted hitherto. In In-Re: the Registrar (Judicial), High Court, Madras 600 104, [(2017) 1 LW (Cri) 813], a Division Bench of this Court, in which, one of us (P.N. Prakash, J.) was a part, has discussed the original jurisdictions of various Special Courts created under the aforesaid special enactments and has held that though the Special Courts are manned by officers of the rank of a Sessions Judge, they are also empowered to exercise the powers of a Magistrate for certain purposes.

49. As regards the POCSO Act, Sections 25 and 26 place certain additional safeguards while recording the statement of a child victim under Section 164 Cr.P.C. Section 28 of the POCSO Act provides for creation of a Special Court by a process of designation. Section 33 of the POCSO Act, empowers the Special Court to take cognizance of any offence without the accused being committed to it for trial. Thus, for all practical purposes, a Special Court that has been created in a district by designating a Court of Sessions, becomes a Court of original jurisdiction and the Special Judge is invested with the powers of a Magistrate.

That is why, when an FIR is registered under the POCSO Act, the same is sent to the jurisdictional Special Court and not to the jurisdictional Magistrate. In In-Re: the Registrar (Judicial), High Court, Madras 600 104 (supra), the Division Bench has held that a Special Court is empowered to pass orders of remand under Section 167 Cr.P.C. Thus, when Section 167 Cr.P.C. has been made applicable to the Special Courts, there can be no fetters in extending the provisions of Section 164(1) Cr.P.C. to the Special Courts as well, for the purpose of recording the statement of victims/witnesses.

50. The aforesaid interpretation draws support from the provisions of Section 25 of the POCSO Act. Though Section 25 of the POCSO Act uses the expression “Magistrate”, Section 25(2), ibid, clearly states that the Magistrate should furnish a copy of the documents specified under Section 207 of the Code upon the final report being filed by the police under Section 173 Cr.P.C. to the child and its parents. Section 33(1) of the POCSO Act reads thus:

“33. Procedure and powers of Special Court:

(1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.”

51. Thus, Section 33 of the POCSO Act empowers the Special Court to take cognizance of any offence under the Act either on a complaint or on a police report under Section 173 Cr.P.C. This means that in a district in which a special court has been constituted, the police are required to file the final report under Section 173 Cr.P.C. in the Special Court and not to the Magistrate. Therefore, the Magistrate will not be in a position to provide to the child and his parents, the documents specified under Section 207 of the Code and comply with the mandates of Section 25(2) of the POCSO Act. Hence, the expression “Magistrate” under Section 25 of the POCSO Act should perforce include the Special Judge designated under Section 28 of the POCSO Act also and only then, these two sections can be harmoniously blended.

52. The provisions relating to taking of cognizance in the POCSO Act which have been set out above are also available in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, NDPS Act, 1985, Prevention of Corruption Act, 1988 and the Unlawful Activities (Prevention) Act, 1967, etc. Therefore, we hold that the Special Judges under the various special enactments, referred to supra, can record the statement of a witness under Section 164 Cr.P.C. as if they are Magistrates and the investigating agency need not be directed to approach the CMM/CJM for nominating a Metropolitan Magistrate/Judicial Magistrate to record statement under Section 164 Cr.P.C.

53. In the light of our discussions in paragraph nos. 39 to 43 above, we hold that the expression “he has jurisdiction in the case” referring to a Metropolitan Magistrate or Judicial Magistrate under Section 164(1) of the Code, would also include Special Judges, who have been vested with the power to take cognizance of an offence without there being a need for committal under certain special enactments such as the Prevention of Corruption Act, 1988, the POCSO Act, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the NDPS Act, 1985, the Unlawful Activities (Prevention) Act, 1967, etc.

 In the High Court of Madras

(Before Indira Banerjee, C.J. and P.N. Prakash, J.)

Murugasamy  Vs  State 

CRl. O.P. No. 12148 of 2017

Decided on September 15, 2017, [Reserved on: 01.08.2017]

Citation: 2017 SCC OnLine Mad 37658 : (2017) 2 LW (Cri) 345 : (2017) 5 CTC 561 : (2017) 180 AIC (Sum 22) 10

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Supreme court: Officers Authorised To Investigate NDPS Cases Are 'Police Officers' And Confessional Statements Made To Them Are Not Admissible

 Thus, to arrive at the conclusion that a confessional statement made before an officer designated Under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante Clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

153. The judgment in Kanhaiyalal (supra) then goes on to follow Raj Kumar Karwal (supra) in paragraphs 44 and 45. For the reasons stated by us hereinabove, both these judgments do not state the law correctly, and are thus overruled by us. Other judgments that expressly refer to and rely upon these judgments, or upon the principles laid down by these judgments, also stand overruled for the reasons given by us.

154. On the other hand, for the reasons given by us in this judgment, the judgments of Noor Aga (supra) and Nirmal Singh Pehlwan v. Inspector, Customs MANU/SC/0957/2011 : (2011) 12 SCC 298 are correct in law.

155. We answer the reference by stating:

(i) That the officers who are invested with powers Under Section 53 of the NDPS Act are "police officers" within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an Accused under the NDPS Act.

(ii) That a statement recorded Under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 152/2013, 

Decided On: 29.10.2020

 Tofan Singh Vs. State of Tamil Nadu

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Whether confession of accused recorded by officer of Railway Protection force is admissible in evidence?

Whether an Officer of the Railway Protection Force, making an inquiry under the Railway Property (Unlawful Possession) Act, 1966 (hereinafter referred to as the 1966 Act), in respect of an offence under Section 3 of that Act of unlawful possession of the railway property, is a Police Officer for the purposes of Section 25, Evidence Act and Section 162 of the CrPC. 1898; and as such any confession or incriminating statement recorded by him in the course of an inquiry under Section 9 of the Act is inadmissible in evidence.

57. In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Jyoti Savant's, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 208-209 of 1974 and Special Leave Petition (Criminal) No. 630 of 1977

Decided On: 31.07.1980

 Balkishan A. Devidayal  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

O. Chinnappa Reddy and R.S. Sarkaria, JJ.

Citation: MANU/SC/0112/1980,AIR 1981 SC 379

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