The basic object to entrust the serious business of recording confession upon the judicial officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not.

Confession- History

Confession always brings back Harrision’s Case (1783) 1 Leache’s CC 264, where a woman and her two sons were executed for the murder of Harrision, who sometime afterwards reappeared; the conviction rested mainly upon the confession of one of the accused.

The old adage “Optimum habemus testem confitentem reum” (the best testimony we have is the confession of the accused) inspirited in all ages the extreme human desire to obtain from the lips of the prisoner an admission of his crime notwithstanding various means and methods adopted to prevent, extortion of confession, like the provisions of Sections 331 and 348, Penal Code. Complaints and allegations of such procurements do not escape our notice. Statements are wrung out of the prisoner by external as well as internal forces.

The instrumentality of his fellowmen, his own inhibitions, his self-created fear, hope and desperation and other mental reactions are some of those external and internal elements which prompt a weak-minded person to admit his guilt. However, genuine voluntary confessions are not uncommon. The provisions of Section 164, Cr. P.C. is a safety valve, meant to muzzle involuntary confession. The century old provisions have remained intact so also the instructions of the High Court for the guidance of the Magistrate recording confession.

Obviously, those who try to bye-pass the rigours manage to procure confession merrily bye-passing the obstacles by adopting various ingenious methods. The task of recording is on the judicial officers who are admittedly overworked. Recording of confessions, I am informed, does not go to their credit like, disposal of cases. It is natural that the solemn duty and obligations cannot be properly exercised by the over-burdened judicial officers.

The Tests

It is a settled law that when in capital case the prosecution demands a conviction of accused primarily on the basis of the confession, the Court must apply double tests,

(i) Whether the confession is perfectly voluntary and

(ii) if so, whether it is true and trustworthy.

Satisfaction of the first test is a sine qua non for its admissibility in evidence, and if the confession appears to the Court to have been caused by any inducement, threat or promise, such as is mentioned in Section 24 of the Evidence Act, it must be excluded and rejected. In such a case the question of proceeding further to apply the second test does not arise.

Whether the confession was made voluntarily or not is a question of fact, and the appellate Court would be slow to interfere with such a finding unless the Court itself is satisfied that the impugned finding has been reached without complying with the true and legal test in the matter. The author of confession belongs to a class of persons known as criminals.

A confession must be “perfectly voluntary” otherwise the Court should reject it. The term “voluntary” means one who does anything of his own free will. It must be made spontaneously on his own volition. After commission of such a crime the existence of state of mind cannot be normal. Therefore, is the need to establish that the state of mind of the author was fit enough to make a voluntary incriminatory statement comprehending the implications of his admission.

Duty of Magistrate

The act of recording confessions under Section 164, Cr. P.C. is a solemn act, and in discharging his duties under the said section, the Magistrate must take care to see that the requirements of law under Section 164, Cr. P.C. must be fully satisfied. It would be necessary in every case to put the questions prescribed by the High Court circular, but the questions intended to be put should not be allowed to become a matter of mere mechanical enquiry and no element of casualness should be allowed to creep in.

The Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise, having reference to the charge against the accused, as mentioned in Section 24 of the Evidence Act.

The warnings set forth in Section 164 of the Code are merely illustrative and not exhaustive. A Magistrate recording confession must make inquisitorial enquiry and make adequate exercise to ascertain the impelling reason of the prisoner to confess his guilt. Penitenence, qualms of conscience, remorse etc. might be the ready and prepared answers.

He must find out the real motive behind making the confession. If he finds that the reason to be well-grounded and the prisoner has a real, genuine and impelling motive to make a clean breast of his crime, he must proceed to record the confession. However, if the answers are halting, incoherent and do not appear to be cogent, the recording Magistrate should cry a halt.

The basic object to entrust the serious business of recording confession upon the judicial officers is that they must exercise their judicial knowledge and wisdom to find out whether it is a voluntary confession or not.

To adjudge voluntariness, two basic factors should be taken note of-

First, the existing mental condition of the prisoner. The Magistrate ought to proceed with the assumption that the prisoner is labouring under mental agony or disorder having arrayed as an accused of a crime. A man in peril undergoing distress and torture, worry and strain is ordinarily not mentally fit person to make a statement to endanger his life and liberty.

The Prosecution must confirm that the judicial mind of the recording officer was satisfied, by some objective tests; that a mentally disabled person coming from a criminal class was mentally fit enough to understand the implications of the warnings and to make a fatal statement.

Secondly, the Magistrate must satisfy the court by documentary or oral evidence that he had fully exercised his judicial mind to get the real motive or the impelling factor which prompted the prisoner to make the confession. Failing, a confession ought not to be accepted as voluntary.

Why not ask the prisoner to write out his own confessional statement, when he knows how to write?

Thereby, the Court gets the real version coming from the prisoner himself; it ensures that the prisoner was mentally capable of translating his thoughts into writing as well. His inability to write the confession in his own words, though otherwise capable, would establish that he was mentally incapable of penning his thoughts in writing, when he could do it under ordinary circumstances.

Confessions According to Classes in Society

Experience shows that ordinarily affluent persons do not make confession whereas almost cent percent of the confessions come from those who are economically, educationally and/or socially backward. The reason is not far to seek. The rich get readymade legal assistance. What happens to a person like the present appellant a poor little Indian?

He does not know his rights guaranteed under Article 20(3)-no person accused of an offence can be compelled to be a witness against himself nor does he know that there is a provision under Article 22(1) that a prisoner has a fundamental right to consult and to be defended by legal practitioner of his choice. He is uninformed about the salutary provision like Section 303 of the Cr. P.C. which provides that a person against whom proceedings are instituted under the Cr. P.C. has a right to be defended by a pleader of his choice.

The term ‘investigation’ defined in Section 2(h) of the Code includes all the proceedings under the Code for the collection of evidence conducted by police. Recording of confession under Section 164 of the Code is part of the police investigation and falls in Chapter XII of the Code, Such recording of confession is a part of the Police investigation and is proceeding under the Code. The accused has fundamental rights under Article 20(3) as well as Article 22(1) of the Constitution to get legal aid. He has a similar statutory umbrella under Section 303, Cr. P.C.

In Nandini Sathpaty v. P.L. Dani their Lordships recognised the right of an accused to consult his lawyer in the course of police investigation under Section 161 of the Code. The right of an accused to consult his lawyer, when he is interrogated by police, is equally applicable in the case of an accused brought by the police to cause his confession recorded by a Magistrate under Section 164 of the Code. It is absolutely essential for all Magistrates to explain to accused before proceeding to record confession, his fundamental rights under Article 22(1) and Article 20(3) of the Constitution as well as the provision of Section 303 of the Code.

In the absence of clear explanation of the provision to a poor economically and socially backward accused like the appellant, recording of the confession should be abjured. When the rich and educated by dint of their wealth or education can safeguard their own interest why not those who are educationally, socially and economically backward should be afforded similar opportunities. In the absence of due explanation of the provisions to a handicapped person, like the present appellant, confession should not be accented.

If free legal aid, enshrined in the Constitution and also in the Code of Criminal Procedure means anything to a needy person it should begin from the moment when a poor and needy person is apprehended by the Police. It is useless to allow the roots to dry and thereafter to water the plant. Legal aid at a later stage, when the fate of the accused had been sealed, is an empty formality.


As held by Gauhati High Court in Kuthu Goala vs The State Of Assam: 1981 CriLJ 424