When an offence is committed and investigation starts, the police have two objects in view. The first is the collection of information, and the second is the finding of the offender.
In this process, the police question a number of persons, some of whom may be only witnesses and some who may later figure as the person or persons charged. While questioning such persons, the police may not caution them and the police must leave the persons free to make whatever statements they wish to make.
There are two checks at this stage–
- What the witnesses or the suspects say is not be used at the trial, and
- a person cannot be compelled to answer a question, which answer may incriminate him.
It is to be noticed that at that stage though the police may have suspicion against the offender, there is no difference between him and other witnesses, who are questioned. Those who turn out to be witnesses and not accused are expected to give evidence at the trial and their former statements are not evidence.
In so far as those ultimately charged are concerned, they cannot be witnesses, save exceptionally, and their statements are barred under s. 162 of the Code and their confessions, under s. 24 of the Indian Evidence Act.
Section 162 of the Code makes statements reduced into writing inadmissible for any purpose except those indicated, but leaves the door open for the operation of s. 27 of the Indian Evidence Act.
Section 27 states “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.
Their confessions are only relevant and admissible, if they are recorded as laid down in s. 164 of the Code of Criminal Procedure after due caution by the Magistrate and it is made clear that they are voluntary.
Section 164 confers the power of record confessions, on Magistrates of stated rank during investigation or at any time afterwards before the commencement of the enquiry or trial. Such confessions are to be recorded after due caution to the person making the confession and only if there is reason to believe that they are voluntary.
Nemo tenetur prodere seipsum
These rules are based upon the maxim: Nemo tenetur prodere seipsum (no one should be compelled to incriminate himself). In an address to Police Constables on their duties, Hawkins, J., (later, Lord Brampton), observed:
“Neither Judge, magistrate nor juryman, can interrogate an accused person ……….. or require him to answer the questions tending to incriminate himself. Much less, then ought a constable to do so, whose duty as regards that person is simply to arrest and detain him in safe custody.”
Rules of common law relating to confessions
In Ibrahim v. Emperor , Lord Sumner gave the history of rules of common law relating to confessions, and pointed out that they were “as old as Lord Hale“.
“A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it.”
Lord Sumner added:
“It is not that the law presumes such statements to be untrue but from the danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice:. Accordingly, when hope or fear were not in question, such statements were long regularly admitted as relevant, though with some reluctance, and subject to strong warnings as to their weight.”
Even so, in the judgment referred to by Lord Sumner, Parke, B., bewailed that the rule had been carried too far out of “too much tenderness towards prisoners in this matter”, and observed:
“I confess that I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence ……… Justice and common-sense have too frequently been sacrificed at the shrine of mercy.”
Whatever the views of Parke, B., Lord Sumner points out that “when Judges excluded such evidence, it was rather explained by their observations on the duties of policemen than justified by their reliance on rules of law.”
Lord Sumner has then traced the history of the law in subsequent years. In 1905, Channel, J., in Reg v. Knight and Thavre ((1905) 20 Cox C.C. 711) referred to the position of an accused in custody thus:
“When he has taken any one into custody ………. he ought not to question the prisoner ……. I am not aware of any distinct rule of evidence that, if such improper questions are asked, the answers to them are inadmissible, but there is clear authority for saying that the Judge at the trial may in his discretion refuse to allow the answers to be given in evidence.”
Five years later, the same learned Judge in Rex v. Booth and Jones ((1910) 5 Cr. App. Rep. 177) observed:
“The moment you have decided to charge him and practically got him into custody, then, inasmuch as a Judge cannot ask a question or a Magistrate, it is ridiculous to suppose that a policeman can. But there is no actual authority yet, that if a policeman does ask a question it is inadmissible; what happens is that the Judge says it is not advisable to press the matter.”
It is to be noticed that Lord Sumner noted the difference of approach to the question by different Judges, and observed that:
“Logically these objections all go to the weight and not to the admissibility of the evidence. What a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him. That he made the statement under circumstances of hope, fear, interest or otherwise strictly goes only to its weight ……. Even the rule which excludes evidence of statements made by a prisoner, when they are induced by hope in authority, is a rule of policy.”
The Judicial Committee did not express any opinion as to what the law should be. The state of English law in 1861 when these rules became a part of the Indian law in a statutory form was thus that the police could question any person including a suspect. The statements of persons who turned out to be mere witnesses were entirely inadmissible, they being supposed to say what they could, on oath, in Court. Statements of suspects after caution were admissible but not before the caution was administered or they were taken in custody; but confessions were, as a rule, excluded if they were induced by hope, fear, threat, etc.
The effect of not giving the caution
When the Indian law was enacted in 1861, it is commonplace that the statute was drafted in England. Two departures were made, and they were,
(1) that no statement made to a police officer by any person was provable at the trial which included the accused person, and
(2) that no caution was to be given to a person making a statement.
In so far as the accused was concerned, he was protected from his own folly in confessing to a charge both after and before his custody unless he respectively did so in the immediate presence of a Magistrate, or his confession was recorded by a Magistrate. In either event, the confession had to be voluntary and free from taint of threat, promise, fear, etc.
The law was framed to protect a suspect against too much garrulity before he knew that he was in danger which sense would dawn on his when arrested and yet left the door open to voluntary statements which might clear him if made but which might not be made if a caution was administered. Without the caution an innocent suspect is not a position to know his danger, while a person arrested knows his position only too well. Without the caution, the line of distinction ceased, and the law very sensibly left out the statements altogether.
English Law under Indian Evidence Act
The English law then was taken as a model for accused in custody. Section 27 of Indian Evidene act, which is framed as an exception has rightly been held as an exception to ss. 24 to 26 and not only to s. 26. The words of the section were taken bodily from The King v. Lockhart (1785), where it was said :
“But it should seem that so much of the confession as relates strictly to the fact discovered by it may be given in evidence, for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby induced to say what is false; but the fact discovered shows that so much of the confession as immediately relates to it is true.”
That case followed immediately after Warrickshall’s case (1783), and summarised the law laid down in the earlier case. The accused in that case had made a confession which was not receivable, as it was due to promise of favour. As a result of the confession, the goods stolen were found concealed in a mattress. It was contended that the evidence of the finding of the articles should not be admitted.
Nares. J., with Mr. Baron Eyre observed:
“It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith; no such rule ever prevailed. The idea is novel in theory, and would be as dangerous in practice as it is repugnant to the general principles of criminal law. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit …….
This principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether arises from any other source; for a fact, if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true of false.”
Another case is noted in the footnote in the English Report Series. In February Session, 1784, Dorothy Mosey was tried for shop-lifting and a confession had been made by her and goods found in consequence of it, as in the above case. Buller, J., (present Mr. Baron Perryn, who agreed), said:
“A prisoner was tried before me (Buller, J.) where the evidence was just as it is here. I stopped all the witnesses when they came to the confession. The prisoner was acquitted. There were two learned Judges on the bench, who told me, that although what the prisoner said was not evidence, yet that any facts arising afterwards may be given in evidence, though they were done in consequence of the confession.
This point, though it did not affect the prisoner at the bar, was stated to all the Judges; and the line drawn was, that although confessions improperly obtained cannot be received in evidence, yet that the acts done afterwards may be given in evidence, though they were done in consequence of the confession.”
Where, however, no fact was discovered, the statement was not held admissible.
In Rex v. David Jenkins ((1822) Russ. & Ry. 492 : 168 E.R. 914), the prisoner was convicted before Bayley, J., (present Park, J.), of stealing certain gowns and other articles. He was induced by a promise from the prosecutor to confess his guilt, and after that confession, he carried the officer to a particular house, but the property was not found. The evidence of the confession was not received; the evidence of his carrying the officer to the house as abovementioned was.
But Bayley, J., referred the point for consideration of the Judges. The Judges were of opinion that,
“the evidence was not admissible and the conviction was therefore wrong. The confession was excluded, being made under the influence of a promise it could not be relied upon, and the acts of the prisoner, under the same influence, not being confirmed by the finding of the property, were open to the same objection. The influence which might produce a groundless confession might also produce a groundless conduct.”
It would appear from this that s. 27 of the Indian Evidence Act has been taken bodily from the English law. In both the laws there is greater solicitude for a person who makes a statement at a stage when the danger in which he stands has not been brought home to him than for one who knows of the danger.
In English law, the caution gives him the necessary warning, and in India the fact of his being in custody takes the place of caution which is not to be given. There is, thus, a clear distinction made between a person not accused of an offence nor in the custody of a police officer and one who is.
Categorization of persons for the admissibility of confession
The law has thus made a classification of accused persons into two:
(1) those who have the danger brought home to them by detention on a charge; and
(2) those who are yet free.
In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the second category the law has ruled that their statements are not admissible, and in the case of the first category, only that portion of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority.
That statement may even be confessional in nature, as when the person in custody says; “I pushed him down such and such mineshaft”, and the body of the victim is found as a result, and it can be proved that his death was due to injuries received by a fall down the mineshaft.
State of U.P v. Deoman Updhyaya, AIR 1960 SC 1125
 ( A.C. 599)
 ( 2 Q.B. 12)
 ((1783) 1 Leach 263; 168 E.R. 234)
 Reg. v. Baldry ((1852) 5 Cox C.C. 523)
 ((1785) 1 Leach 386: 168 E.R. 295 and footnote to (1783) I Leach 263)
 ((1783) I Leach 263: 168 E.R. 234)
 See Rex v. Richard Griffin ((1809) Russ. & Ry. 151: 168 E.R. 732) and Rex v. Francis Jones ((1809) Russ. & Ry. 152).
 ((1822) Russ. & Ry. 492: 168 E.R. 914),