Joint Trial Provisions and Confession of Co-Accused — Section 24 BSA

Section 24 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) — re-enacting Section 30 of the Indian Evidence Act, 1872 (IEA) with one new Explanation — addresses the much-litigated question of when the confession of one accused can be used against another. The provision allows the court, when more persons than one are being tried jointly for the same offence and a confession made by one of them affects himself and the other, to take that confession into consideration against the other person as well as against the maker. The new Explanation II under the BSA fills a gap in the IEA framework: a trial in which one accused has absconded or has failed to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is now deemed to be a joint trial for the purpose of Section 24 BSA.

The provision sits at the intersection of evidence law and criminal procedure. It interacts with the rules on judicial and extrajudicial confessions generally, with Section 23 BSA on confessions to police officers, and with the procedural framework for joint trials in the BNSS. The aspirant who masters Section 24 BSA — and the Explanation II carve-out — has one of the BSA's signature substantive innovations in working form.

Statutory anchor: Section 24 BSA

The provision (as paraphrased from the IEA) reads: "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession." The BSA preserves this text and adds two Explanations:

• Explanation I — "Offence" includes the abetment of, or attempt to commit, the offence (carried over from the IEA).
• Explanation II — A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 BNSS shall be deemed to be a joint trial for the purpose of this section. (New under the BSA.)

The doctrinal foundation: confession of co-accused under Section 30 IEA

The IEA's Section 30 was the subject of a settled but cautious doctrine. The Privy Council in Bhuboni Sahu v. The King AIR 1949 PC 257 laid the foundational principle: the confession of a co-accused was a weak species of evidence, never to be used as the sole basis for conviction. It could only be used "in support of other evidence". The Supreme Court in Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184 reaffirmed and refined the doctrine: a confession against a co-accused may be used only in support of other evidence and cannot be made the foundation of a conviction.

In Kalpnath Rai v. State (CBI) AIR 1998 SC 201, the Supreme Court summarised the conditions under which the confession of one accused may be used against another:

1. There must be a confession — that is, an inculpatory statement. An exculpatory admission is not usable against a co-accused.
2. The maker of the confession and the co-accused must necessarily have been tried jointly for the same offence.
3. The confession made by one accused must affect him as well as the co-accused.
4. The confession is not substantive evidence against the co-accused; it has only corroborative value.

The doctrine is conservative for good reason. A confession is, by definition, made out of court and without the safeguards of cross-examination. To allow it to function as the sole basis of conviction against a person who did not make it would offend the basic premise that evidence must be tested in the box.

The joint-trial requirement and the absconding-accused gap

The doctrinal requirement that the maker and the co-accused be "jointly tried for the same offence" produced a serious operational gap under the IEA. The Sind High Court in Dengo Lendero v. Emperor AIR 1938 Sind 94 held that where one accused had died before the commencement of the trial, the confession made by him could not be used against the other accused — there was no joint trial as far as the dead accused was concerned. The Supreme Court in Haroon Haji Abdulla v. State of Maharashtra AIR 1968 SC 832 carved out a finer distinction: where the accused died during the course of the joint trial after his confession had been proved, the confession could still be used.

The harder problem was the absconding accused. If one accused absconded before or during trial, the trial-court would proceed against the others in his absence, and the absconding accused's earlier confession (if any) would be doctrinally orphaned: he was not on trial, so he was not "jointly tried", so his confession could not, on a strict reading of Section 30 IEA, be used against the other accused. Several High Courts attempted to bridge the gap through purposive interpretation, but the position was unsettled.

The BSA's Explanation II — closing the gap

Explanation II to Section 24 BSA closes the absconding-accused gap by statutory deeming. A trial in which one accused has absconded or has failed to comply with a proclamation under Section 84 BNSS is now treated, for the purposes of Section 24 BSA, as a joint trial. The legal consequence is that the absconding accused's confession can be considered against the co-accused who is being tried, subject to the usual conservative use-as-corroboration rules from Bhuboni Sahu and Haricharan Kurmi.

The drafting move connects two statutes. Section 84 BNSS (re-enacting Section 82 CrPC) provides the procedural mechanism by which the court issues a proclamation against an accused who has absconded; once the proclamation is issued and the accused fails to comply, the trial may proceed against the other accused. Explanation II to Section 24 BSA hooks into this procedure and converts the absent-accused trial into a deemed joint trial for confession-evidence purposes.

The substantive rule survives: corroboration only

Although Explanation II expands the categorical reach of Section 24 BSA, the substantive rule on the use of co-accused confessions is unchanged. The confession is not substantive evidence; it can only be used to lend assurance to other independent evidence connecting the co-accused with the offence. The Bhuboni Sahu doctrine — endorsed in Haricharan Kurmi, Kashmira Singh v. State of MP AIR 1952 SC 159, and a long line of subsequent decisions — operates with full force. A trial court that convicts the co-accused on the strength of an absconding accused's confession alone, without independent corroboration, will have its conviction set aside on appeal — and the appellate review will engage the materiality framework explored in improper admission and rejection of evidence.

The maker-must-implicate-himself rule

A second strand of doctrine constrains Section 24 BSA. The Supreme Court in Balbir Singh v. State of Punjab AIR 1957 SC 216 held that, unless the maker of the confession implicates himself substantially to the same extent as the co-accused, the confession cannot be used against the latter. The doctrinal reason is that the maker's incentive to truthfulness comes from his own self-incrimination; a confession that implicates the co-accused while exonerating the maker is suspect on its face and lacks the indicia of reliability that justify Section 24 BSA's exceptional admissibility.

The rule is operationally important. A trial advocate facing a Section 24 BSA confession can challenge its use against the co-accused by showing that the maker did not implicate himself to the same extent as he implicated the co-accused. If the challenge succeeds, the confession drops out of the case against the co-accused, even if it remains in the case against the maker.

Retracted confessions and Section 24 BSA

The doctrine on retracted confessions interacts with Section 24 BSA in a settled way. The Supreme Court in Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094 held that a retracted confession may form the basis of conviction of the maker if it is true and voluntarily made. In Shrishail Nageshi Pare v. State of Maharashtra AIR 1985 SC 866, the Court held that a retracted confession may be taken into consideration against the confessing accused and his co-accused, but it cannot, by itself, form the basis for convicting a co-accused — though it may be considered against the co-accused in support of other evidence. The rule preserves the conservative use-as-corroboration discipline of Bhuboni Sahu while accommodating the practical reality that confessions are routinely retracted in Indian trials.

Discharge of one accused and Section 24 BSA

The Supreme Court in Suresh Budharmal Kalani v. State of Maharashtra AIR 1998 SC 3258 held that where the maker of the confession is discharged and is not facing trial, his confession cannot be used against the co-accused. The discharge dissolves the joint-trial foundation; without joint trial, Section 30 IEA (now Section 24 BSA) does not operate. Explanation II to Section 24 BSA does not change this position. The Explanation deems an absconding accused's trial to be a joint trial, but a discharged accused is not absconding — he is no longer in the matrix at all. The doctrinal distinction is sharp: absconding (covered by Explanation II) versus discharged (not covered).

The discovery proviso to Section 23 BSA — interaction

A confessional statement leading to the discovery of facts under the proviso to Section 23 BSA (previously Section 27 IEA) interacts with Section 24 BSA in a specific way. The Madras High Court in Re Pullannagari Rami Reddy AIR 1941 Mad 238 held that a confessional statement leading to the discovery of facts comes within Section 30 IEA and may be taken into consideration against a co-accused. The doctrine carries forward to the BSA: a discovery-leading confession by one accused may be used against the other accused who is being jointly tried (or, post-Explanation II, against the co-accused in a deemed joint trial). The corroborative-only rule from Bhuboni Sahu continues to operate. The chapter on the discovery rule under confessions and the discovery proviso works through the substantive doctrine in detail.

Section 24 BSA and the rules on admissions

Section 24 BSA must be distinguished from the broader rules on admissions in civil and criminal proceedings. An admission is a statement, oral or documentary, that suggests an inference as to a fact in issue or relevant fact. A confession is a special species of admission — an admission of the offence itself. The architectural relationship runs back to the foundational treatment in the chapter on direct oral evidence under Section 54 BSA. The general rules on admissions under Sections 15 to 21 BSA (previously Sections 17 to 23 IEA) apply to admissions generally; Section 24 BSA applies specifically to confessions in joint trials.

The doctrinal consequence is that, even where Section 24 BSA does not operate (e.g., in a non-joint trial), the rules on admissions may still produce some evidentiary use of the maker's statement. But the use is governed by the admission rules, not by the special rule for co-accused confessions.

Section 24 BSA and the rules on relevancy

It is important to remember that Section 24 BSA is, structurally, a relevancy provision — it tells the court that a co-accused's confession is relevant evidence in a joint trial. Whether the confession is admissible turns on the rules in Section 22 BSA on voluntariness and Section 23 BSA on confessions to police officers. A confession that is irrelevant under Section 24 BSA cannot be looked at; a confession that is relevant under Section 24 BSA but inadmissible under Section 22 or Section 23 BSA also cannot be looked at. The two filters operate independently. The chapter on relevancy of facts works through the larger framework.

Practical fact-patterns

Three fact-patterns recur in mains and prelims questions on Section 24 BSA:

1. Joint murder trial, single confession. A and B are jointly tried for murdering C. A's judicial confession recorded by a magistrate implicates both himself and B. Question: can the confession be used against B? Answer: yes, under Section 24 BSA, provided A implicates himself substantially (Balbir Singh) and the confession is used only as corroboration of independent evidence connecting B with the offence (Bhuboni Sahu, Haricharan Kurmi).
2. Absconding accused. A and B are charged with conspiracy. A absconds before trial; a proclamation is issued under Section 84 BNSS. The trial proceeds against B alone. A's earlier confession exists on record. Question: can A's confession be used against B? Answer: yes, under Explanation II to Section 24 BSA — the trial of B is deemed a joint trial for purposes of Section 24, and A's confession may be considered against B subject to the usual corroboration discipline.
3. Discharged co-accused. A and B are charged with theft; A is discharged at the framing-of-charge stage; only B is tried. A's confession is on record. Question: can A's confession be used against B? Answer: no — Suresh Budharmal Kalani settles the position that a discharged accused's confession cannot be used against the remaining accused. Explanation II does not extend to discharge cases.

BSA shift summary

The BSA's changes to the joint-trial regime can be summarised in three propositions:

• The substantive doctrine on the use of co-accused confessions — corroborative only, not substantive — is preserved unchanged.
• Explanation I (offence includes abetment and attempt) is preserved unchanged.
• Explanation II is new. It deems a trial in which one accused has absconded or failed to comply with a Section 84 BNSS proclamation to be a joint trial for the purpose of Section 24 BSA. The change closes a long-standing gap and aligns the BSA with the procedural reality of absconding-accused prosecutions.

The Kashmira Singh test for use of co-accused confession

The Supreme Court in Kashmira Singh v. State of MP AIR 1952 SC 159 articulated a working test that has shaped judicial practice ever since. The test runs in two stages: first, the trial court should marshal all the other evidence on record without reference to the co-accused's confession and ask whether that evidence by itself would justify a conviction; only if the answer is yes, the court may then consider whether the confession lends additional assurance to the conclusion already reached. The order of inquiry matters. A trial court that begins with the confession and works backward to find supporting evidence inverts the proper analysis and risks treating the confession as if it were substantive evidence.

The Kashmira Singh test has been applied across a wide range of subsequent decisions and remains the operative judicial method under the BSA. Aspirants should remember the order: independent evidence first, confession last. Examiners often test the order in fact-pattern questions where the trial court has visibly begun with the confession, and the candidate is expected to identify the analytical error.

Section 24 BSA and trials before special tribunals

A practical question is whether Section 24 BSA applies to trials before special tribunals such as those constituted under the Prevention of Terrorism Act, the Unlawful Activities (Prevention) Act, or the National Investigation Agency Act. The answer depends on whether the special statute itself displaces the general evidence regime. Where the special statute provides a self-contained evidentiary code (as in some terror-related statutes), Section 24 BSA may be displaced or supplanted. Where the special statute does not displace the general regime, Section 24 BSA continues to operate fully alongside the special-court procedure, with the trial court applying both frameworks together. Trial advocates appearing in special-court matters must read the constituent statute carefully to know which regime applies.

In conspiracy prosecutions under Section 61 BNS (previously Section 120B IPC), Section 24 BSA is an unusually important provision because conspiracy charges by their nature involve multiple accused, and the prosecution often relies on confessions made by some accused implicating others. The Kashmira Singh discipline applies with particular force in conspiracy trials, where the temptation to allow one accused's confession to do the heavy lifting against another is greatest. The chapter on the things said or done by a conspirator under Section 8 BSA covers the related but distinct doctrine on conspirator-statements.

Search-intent overlay: what to remember

For Civil Judge prelims, judiciary mains, and judicial-service interviews, four propositions on Section 24 BSA recur:

1. The four conditions from Kalpnath Rai: confession (inculpatory), joint trial for same offence, confession affects both, corroborative-only use.
2. The maker must implicate himself substantially to the same extent as the co-accused (Balbir Singh).
3. The confession of a co-accused cannot be the sole foundation of conviction; it must support independent evidence (Bhuboni Sahu, Haricharan Kurmi).
4. Explanation II under the BSA deems the trial of an absent-absconding accused under Section 84 BNSS to be a joint trial — closing the IEA gap exposed by Dengo Lendero and similar cases.

Conclusion

Section 24 BSA preserves the conservative architecture of Section 30 IEA — the confession of a co-accused is admissible in a joint trial, but only as corroboration of independent evidence — and adds one consequential piece of new drafting in Explanation II. The Explanation closes a doctrinal gap that had troubled Indian courts for decades and aligns the evidence statute with the procedural reality of absconding-accused prosecutions under the BNSS. The substantive rule remains conservative; the categorical reach has been quietly extended.

For the aspirant, the chapter rewards careful reading. The four Kalpnath Rai conditions, the Bhuboni Sahu use-as-corroboration discipline, the Balbir Singh implicate-himself rule, and the new Explanation II together form a tight doctrinal package that examiners regularly test, and that trial courts must apply with consistent discipline. Read this chapter alongside the chapters on confessions in their voluntary, custodial and joint forms and the wider category of admissions to see how Section 24 BSA fits into the larger architecture of inculpatory statements in Indian evidence law.