Confessions — Voluntary, Custodial, to Police, Joint

Sections 22 to 24 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Sections 24 to 30 of the Indian Evidence Act, 1872 (IEA) in restructured form — govern the admissibility of confessions in criminal proceedings. Section 22 BSA absorbs the IEA's bars on confessions caused by inducement, threat, coercion or promise. Section 23 BSA carries the bars on confessions to a police officer and confessions made in police custody, with the discovery proviso preserved. Section 24 BSA carries the joint-trial rule of Section 30 IEA with a new explanation on absconding co-accused. The chapter is the most heavily exam-tested in the syllabus, because confessions are at once the most powerful and the most legally fragile category of evidence in a criminal trial.

The architecture is one of careful exclusion. A confession is admissible only when it survives every bar — voluntariness, the police bar, the custody bar, the joint-trial conditions. The student who reads the chapter as a list of admissibility doors will fail to grasp its true character; it is, more accurately, a list of admissibility hurdles, every one of which the prosecution must clear before a confession can support a conviction.

Concept — confession as admission of the offence

A confession is an admission of the offence by a person charged with the offence. The Privy Council in Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, gave the classical definition. A statement that admits guilt of the offence in terms is a confession; a statement that admits facts from which guilt may be inferred is also a confession; a statement that merely admits facts incidental to the offence — for example, presence at the scene — is an admission and not a confession.

All confessions are admissions, but not all admissions are confessions. The Supreme Court in Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, treated this as the foundational distinction. The narrower category of confessions is subject to strict bars; the broader category of admissions, treated in our chapter on admissions under Sections 15 to 21 BSA, is not.

To be admissible, a confession must be voluntary. The Privy Council in Ibrahim v. The King, [1914] AC 599, articulated voluntariness as the cardinal test. A confession that is not voluntary is excluded in its entirety; it is not permissible to separate one part and admit it as a non-confessional statement, as the Supreme Court reaffirmed in Aghnoo Nagesia.

Section 22 BSA — confession caused by inducement, threat, coercion or promise

Section 22 BSA (previously Section 24 IEA) declares irrelevant any confession made by an accused person if it appears to the court to have been caused by inducement, threat, coercion or promise, having reference to the charge against the accused, proceeding from a person in authority, and sufficient in the opinion of the court to give the accused reasonable grounds for supposing that by making it he would gain an advantage or avoid an evil of a temporal nature in the proceedings against him. The BSA addition of the word "coercion" makes explicit what the older case law had read into the IEA.

The Supreme Court in Vinayak Shivajirao Pol v. State of Maharashtra, AIR 1998 SC 1096, treated the section as the principal source of the voluntariness rule in Indian criminal evidence. A confession is admissible only after the prosecution has affirmatively established that it was voluntary and not obtained by any improper means — see R v. Thompson, [1893] 2 QB 12. The burden is on the prosecution; mere absence of evidence of inducement is not enough.

The impact of inducement on the mind of the accused depends on the status of the person in authority offering the inducement, the position of the accused in relation to that person, and the surrounding psychological circumstances. The assessment is case-specific. The court must put itself in the position of the particular accused and decide whether he was subjected to pressure — see Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094.

Section 22 BSA preserves the IEA's first proviso: where the impression caused by the inducement, threat or promise has, in the opinion of the court, been fully removed, the subsequent confession is relevant. The second proviso preserves the rule that a confession does not become irrelevant merely because it was made under a promise of secrecy, in consequence of a deception, when the accused was drunk, or in answer to questions he need not have answered.

Section 23 BSA — confession to a police officer

Section 23(1) BSA (previously Section 25 IEA) declares that no confession made to a police officer may be proved as against a person accused of any offence. The Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569, explained the twofold rationale: (i) to protect the person accused of a crime from third-degree treatment, and (ii) to ensure a proper and scientific investigation of the crime. The bar is absolute, and it is not lifted merely because the person making the confession was not formally an accused at the time, nor in formal police custody — see Devi Ram Patt Ram v. State, AIR 1962 Punj 70.

The expression "police officer" is to be construed in a wide and popular sense, not narrowly — see Raja Ram Jaiswal v. State of Bihar, AIR 1964 SC 828. Customs officers are not police officers, because their duties are very different from those of a police officer despite some overlap of powers — see State of Punjab v. Barkat Ram, AIR 1962 SC 276. The chapter on voluntary admissions and their evidentiary value notes that statements that fall short of confession may be proved against the maker even when made to a police officer.

Section 23(2) BSA — confession by accused in police custody

Section 23(2) BSA (previously Section 26 IEA) declares that, unless made in the immediate presence of a Magistrate, no confession made by any person while in police custody may be proved against him. The Supreme Court in State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 SC 1588, applied the rule strictly. A confession made even in the immediate presence of a Magistrate is not admissible if it is not also recorded in the manner laid down in the Code of Criminal Procedure (now the BNSS) — see Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15.

Proviso to Section 23 BSA — confession leading to discovery

The proviso to Section 23 BSA (previously Section 27 IEA) is the famous discovery exception. When any fact is deposed to as discovered in consequence of information received from an accused person in police custody, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered may be proved.

The Privy Council in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67, set out the narrow construction that has governed the proviso ever since. The provision is an exception to the rules excluding evidence of confessions to police officers and confessions in custody, and is justified because, if the truth of the information given is assured by the discovery of a fact, that part of the information may be presumed to be untainted — see State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125.

The Supreme Court in Pawan Kumar @ Monu Mittal v. State of Uttar Pradesh, AIR 2015 SC 56, captured the doctrine in the formula "confirmation by subsequent events". The discovery contemplated is mainly concerned with the authorship of concealment — see State of Uttar Pradesh v. Jogeshwar, AIR 1983 SC 349. The recovery of articles before the arrest of the accused does not fall within the exception. The disclosure statement made by the accused is relevant as showing motive, preparation and conduct, and as to how much of the information may be proved — see Prakash Chand v. State (Delhi Administration), AIR 1979 SC 400.

Section 24 BSA — joint-trial confessions and the new explanation

Section 24 BSA (previously Section 30 IEA) deals with the consideration of a proved confession affecting the person making it and others jointly under trial for the same offence. When more than one person are tried jointly for the same offence and a confession made by one of them affecting himself and any of the others is proved, the court may take into consideration such confession as against the other person as well as against the person making it.

The BSA adds a new Explanation II to the section: a trial of more persons than one held in the absence of the accused who has absconded or who has failed to comply with a proclamation issued under Section 84 of the BNSS, 2023, shall be deemed to be a joint trial for the purpose of this section. This is the most substantive addition to the confessions chapter in the new code, and it preserves the joint-trial admissibility against an absconding co-accused who is later apprehended.

The evidentiary value of a Section 24 BSA confession is weak. It is not substantive evidence and cannot by itself sustain a conviction; it is only a circumstance that may lend assurance to other evidence on the record. The chapter on statements by conspirators under Section 8 BSA develops the contrast — Section 8 BSA admits things said in furtherance of a common design as substantive evidence, while Section 24 BSA admits a custodial confession only as a corroborating circumstance.

Voluntariness and retracted confessions

Conviction may be founded on a voluntary confession, as the Supreme Court held in Maghar Singh v. State of Punjab, AIR 1975 SC 1320. Conviction may even be based on a retracted confession if it is true and voluntarily made — see Pyare Lal Bhargava v. State of Rajasthan, AIR 1963 SC 1094 — but conviction based solely on a retracted extra-judicial confession made before an unreliable witness is not proper, as held in State of Tamil Nadu v. Kutty @ Lakshmi Narasimhan, AIR 2001 SC 2778.

Where circumstances cast a suspicion on the genuineness of a retracted confession, corroboration is required. The standards of corroboration for a retracted confession differ from those for accomplice evidence: in the case of the person confessing who has resiled, general corroboration is sufficient, while accomplice evidence must be corroborated in material particulars. The court must additionally feel that the reasons given for retraction are untrue — see Subramania Goundan v. State of Madras, AIR 1958 SC 66.

Confessions to non-police authorities

The Section 23 BSA bar applies only to police officers. Confessions to other persons in authority — superiors in administrative service, customs officers, excise officers, magistrates in informal contexts — are governed by the general voluntariness rule of Section 22 BSA. A statement recorded by a customs officer is admissible if the inculpating portions were made voluntarily, whether or not vitiated by inducement — see Assistant Collector of Central Excise v. Duncan Agro Industries, AIR 2000 SC. A statement recorded by an officer who is not strictly a police officer, but who is in a position of authority, is examined under Section 22 BSA for voluntariness rather than under Section 23 BSA for inadmissibility per se.

The First Information Report is not a statement made to a police officer during the course of investigation and is admissible in evidence — see Faddi v. State of Madhya Pradesh, AIR 1964 SC 1850. But if the FIR amounts to a confession, it is hit by Section 23 BSA even though it is not hit by Section 162 BNSS. Save and except as provided by the discovery proviso, no part of the confessional FIR can be tendered in evidence — the principle in Aghnoo Nagesia v. State of Bihar.

Routes by which a confession may enter evidence

The Supreme Court in Nishi Kant Jha v. State of Bihar, AIR 1969 SC 422, distilled the routes by which a confession may be brought on record. A confession may be brought on record only if (a) it is recorded by a Magistrate under the provisions of the BNSS (previously the CrPC); or (b) it falls within the discovery proviso to Section 23 BSA; or (c) it is admissible as a confession of a co-accused under Section 24 BSA; or (d) it is recorded by the Magistrate in terms of the relevant section of the BNSS. Outside these four routes, a confession cannot be admitted.

The classification matters because each route has its own conditions. A confession recorded by a Magistrate must satisfy the procedural requirements of the BNSS. A discovery statement must lead to the discovery of a fact that confirms the truth of the information. A joint-trial confession must affect the maker as well as the co-accused. A confession that falls outside all four routes is excluded, however probative it may seem.

Distinguishing confessions from admissions and from conspirator statements

Two boundary lines are critical.

Confessions versus admissions. Confessions are admissions of the offence by a person charged with the offence; admissions in the broader sense include any statement that suggests an inference as to a fact in issue or relevant fact. Confessions are subject to the strict bars of Sections 22 to 24 BSA; admissions in the broader sense are not. A statement of the accused that does not admit the offence — say, that he was at the scene but denies having committed the act — is an admission only, and is admissible under the broader chapter on admissions and their evidentiary value. The route by which the surrounding facts come in is governed by the chapter on facts connected with the fact in issue under Sections 5 and 6 BSA, and the doctrine of res gestae under Section 4 BSA for contemporaneous statements.

Confessions versus conspirator statements. A confession by one accused affecting himself and a co-accused, made after arrest, is governed by Section 24 BSA and is at best a corroborating circumstance. A statement by one conspirator in reference to the common design, made during the conspiracy, is governed by Section 8 BSA and is substantive evidence. The two heads of admissibility are entirely distinct, and the chapter on statements by conspirators develops the contrast.

BSA-specific changes — restructuring and one new explanation

The BSA restructures the IEA confessions sections by absorbing Sections 28 and 29 IEA as provisos to Section 22 BSA, and by absorbing Sections 26 and 27 IEA into Section 23 BSA as subsections and proviso. The substantive content is preserved. The one significant addition is Explanation II to Section 24 BSA on joint trials of absconding co-accused, deemed to be joint trials for the purpose of mutual admissibility. The classical authorities — Pakala Narayana Swami, Aghnoo Nagesia, Pulukuri Kotayya, Kartar Singh, Pawan Kumar Monu Mittal — continue to govern the renumbered provisions. For the side-by-side mapping see our IEA to BSA section-mapping table.

Common pitfalls in answer scripts

Three errors recur and they trip up even mains candidates.

First, treating Section 25 BSA proviso (discovery) as an exception to Section 22 BSA. It is not. The proviso is an exception to the bars of Section 23 BSA on police-officer confessions and custodial confessions. It is not a route around the voluntariness requirement of Section 22 BSA — a discovery statement obtained by inducement, threat or coercion remains inadmissible.

Second, treating a Section 24 BSA joint-trial confession as substantive evidence. It is not. It is only a corroborating circumstance, weaker than other evidence on the record. A conviction cannot rest on a Section 24 BSA confession alone, and the chapter on burden of proof and the standard of proof beyond reasonable doubt emphasises this point.

Third, classifying every adverse statement of the accused as a confession. Many are only admissions. Misclassification leads to the wrong bar being applied — the strict confession bars on a statement that is in fact only an admission, or the loose admissions rule on a statement that is in fact a confession. The classification is the first step in any analysis.

For the broader topic-cluster of Evidence Act and BSA notes — covering relevancy, admissions, confessions, dying declarations and the BSA-specific innovations — the chapter index links to every other unit in the syllabus.

Operational checklist for the trial judge

A short operational checklist helps the trial judge cope with the multiplicity of bars. First, classify the statement: is it an admission of the offence (confession) or only an admission in the broader sense? If only an admission, apply the chapter on relevancy of facts under Section 3 BSA and the admissions chapter, not the confessions regime. Second, if it is a confession, ask whether it is voluntary; if it appears to have been caused by inducement, threat, coercion or promise from a person in authority, exclude it under Section 22 BSA.

Third, if voluntary, ask whether it was made to a police officer; if so, exclude it under Section 23(1) BSA save to the extent that the discovery proviso applies. Fourth, if not made to a police officer, ask whether it was made in police custody; if so, exclude it under Section 23(2) BSA unless made in the immediate presence of a Magistrate. Fifth, if all bars are crossed, ask whether it is offered against the maker alone or also against a co-accused; if the latter, examine whether the conditions of Section 24 BSA are satisfied. Each step has its own case law and its own admissibility question, and the checklist forces the analysis through them in order.

Conclusion — voluntariness as the cardinal test

The chapter on confessions is governed by a single cardinal test: voluntariness. A confession that is not voluntary is excluded in its entirety. A confession to a police officer is barred. A confession in police custody is barred unless made in the immediate presence of a Magistrate. A confession in a joint trial is at best a corroborating circumstance. The discovery proviso opens a narrow window but only for the part of the information that relates distinctly to the discovered fact. The mains aspirant who has internalised these hurdles, and the four routes of Nishi Kant Jha, will not be tripped up by any confession-based fact-pattern, however ingeniously constructed by the examiner.

Frequently asked questions

What is the difference between a confession and an admission under the BSA?

A confession is an admission of the offence by a person charged with the offence — Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, gave the classical definition. An admission is the broader category of statements that suggest an inference as to any fact in issue or relevant fact. All confessions are admissions, but not all admissions are confessions. Confessions are subject to the strict bars of Sections 22 to 24 BSA; admissions in the broader sense are not. The classification is the first step in any analysis of an accused's statement.

Why is a confession to a police officer inadmissible under Section 23 BSA?

Section 23 BSA (previously Section 25 IEA) makes confessions to a police officer inadmissible against an accused for two reasons identified by the Supreme Court in Kartar Singh v. State of Punjab, (1994) 3 SCC 569: to protect the accused from third-degree treatment and to ensure a proper and scientific investigation. The bar is absolute and applies even when the person making the confession was not formally an accused at the time and not in formal custody.

How does the discovery proviso to Section 23 BSA work?

The proviso (previously Section 27 IEA) admits so much of the information received from an accused in police custody as relates distinctly to a fact discovered in consequence of that information. The Privy Council in Pulukuri Kotayya v. Emperor, AIR 1947 PC 67, set out the narrow construction. The provision is justified because the truth of the information is assured by the discovery, but only the discovery-relevant part of the information is admissible — not the whole confessional statement.

Can a Section 24 BSA joint-trial confession sustain a conviction by itself?

No. A Section 24 BSA confession (previously Section 30 IEA) is not substantive evidence; it is only a circumstance that may lend assurance to other evidence on the record. A conviction cannot rest on a Section 24 BSA confession alone. The new Explanation II added by the BSA extends the rule to joint trials in which a co-accused has absconded or failed to comply with a proclamation under Section 84 BNSS — those too are deemed joint trials for the purpose of mutual admissibility.

What are the four routes by which a confession may be brought on record?

The Supreme Court in Nishi Kant Jha v. State of Bihar, AIR 1969 SC 422, identified four routes: (a) recording by a Magistrate under the BNSS; (b) the discovery proviso to Section 23 BSA; (c) admissibility as a confession of a co-accused under Section 24 BSA; or (d) recording by a Magistrate under the relevant section of the BNSS in another procedural context. Outside these four routes a confession cannot be admitted, however probative it may appear.