CRITICAL ANALYSIS OF SECTION 23

OF BHARATIYA SAKSHYA
ADHINIYAM

SUBMITTED TO

HARI S. NAYAR

NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI

SUBMITTED BY

TARUN B SANKAR

NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES, KOCHI

1
INTRODUCTION

The Indian legal system has long grappled with the delicate balance between securing justice
and safeguarding individual liberties. Sections 25 and 26 of the Indian Evidence Act were
originally enacted to prevent the misuse of confessions extracted by police under duress.
These sections rendered confessions made to police officers or while in police custody
inadmissible, reflecting a commitment to human rights and procedural fairness. However,
over time, these provisions were criticized for creating obstacles in criminal investigations,
particularly in securing reliable confessions when procedural safeguards were observed.

The Bharatiya Sakshya Adhiniyam marks a significant evolution in this context, replacing
Sections 25 and 26 with Sections 23(1) and 23(2). These changes aim to strike a more
pragmatic balance by introducing mechanisms to ensure the admissibility of confessions
under stringent safeguards, such as mandatory recording of statements before senior officers
or magistrates and ensuring the presence of legal counsel. This paper critically analyzes the
rationale behind the transformation, its alignment with constitutional safeguards against self-
incrimination under Article 20(3), and the implications for criminal jurisprudence in India.

WHY DO WE NEED SECTIONS 23(1)AND 23(2)?

There are two sections in the Indian Evidence Law that has been under the scanner for years.
While one concerns itself with confessions given to a police officer, the other relates to
confessions while in police custody. Though they have been divided into two separate sub
sections to signify their importance, the confessions under both these sub sections are
completely inadmissible when brought to court. In other words, with one word the accused
can throw the wheels of justice back to starting point. He could say he was manhandled into
confessing to the crime. He could even say he was threatened with danger to his family or
loved ones. The court will order for other genuine evidence to be brought to the bench, in the
absence of which, the Investigating Officer will have to start digging the pit from the
beginning.

A criminal offence is dealt with in the following manner: first there is the filing of the First
Information Report (FIR); this is followed by an investigation launched by the Investigating
Officer; once he is satisfied with the results produced by his investigation, he files the charge
sheet which may or may not contain a confession; once the charge sheet is filed in court, it
frames the charges; this then finally leads to a trial.1

2
In the scheme of things as seen above, a confession does not play a big part. Even in the
absence or inadmissibility of a confession, the police can get the court to hold the accused
guilty if all other evidence corroborated in the charge sheet is strong enough to erase any
reasonable doubt from the minds of the judges. A confession is important because in the
normal course of things, a man will never try to incriminate himself. So in circumstances
where he does, it can safely be presumed to be the truth.2

A police officer also wants a confession in his submitted charge sheet because admitted facts
need not be proven.3 This translates to much, much less work for the IO.

1.1) Police Station- A Place of Horror

This brings us to the million dollar question now: if confessions are so very relevant and
helps get to the island of justice faster, why render it inadmissible on the word of a person
who cannot be trusted to tell the truth anyway? Food for thought, indeed.

1
80 percent of prisoners are tortured in police custody', says study, The Times of India, 07/05/2016

2
Statley v Poole, District Court of Appeal of Florida, Third District.

3
Section 58, Indian Evidence Act

3
The answer to this question will lead to the understanding of the creation of Sections 25 and
26.4 A small part of that answer may be found in the 1 st Law Commission Report over 150
years ago. The Parliamentary Committee on Indian Affairs conducted an investigation which
showed gross abuse of powers by policemen:

“A police officer, on receiving intimation of the occurrence of a dacoity or other offence of a

serious character, failing to discover the perpetrators of the offence, often endeavours to
secure himself against any charge of supineness or neglect by getting up a case against parties
whose circumstances or characters are such as are likely to obtain credit for an accusation of
the kind against them. This is not infrequently done by extorting or fabricating false
confession; and, when this step is once taken, there is of course impunity for real offenders,
and a great encouragement to crime.5’

Here, we take look at the supposed means and modes employed by police officers to elicit
confessions from persons held by them. These produced below are real life instances
recorded from persons who have actually gone through these gruelling times:

On the night of Nov. 29-30, I was driven to the Lingapur police camp nearby ... here I
was questioned by 15 police officers ... One of whom trod on my hands with hobnailed
boots while the others kept beating me from all sides ...then I was forced to 'eat a
Hyderabadi goli . It consisted of a lathi the size of a man's arm and liberally plastered
with chilly powder ...I was stripped naked and the lathi pushed slowly up my anus ...I
remained unconscious for 8 hours ...I was taken to the Lakshatipet lock-up where one of
my hands was tied to the cell window ... I was forced to remain in this position neither able
to sit nor sleep properly for fifteen days "
- Hirman Laxman Pagar, suspected 21-year-old Naxalite arrested on Nov. 4, 1976 by the
Andhra Pradesh Police.

Some women prisoners taken to the Lal Bazaar police station in Calcutta.....were stripped
naked, burned on all parts of the body and in some cases iron rulers were inserted into the
vagina and rectum ... there are also allegations that a women suspect was subjected to

4
http://indiatoday.intoday.in/story/gruesome-methods-of-torture-employed-by-indian-police-forces-come-to-
light/1/435565.html, last visited on 12/06/2017
5
Methods of torture employed by the Indian police forces:
https://infographicsplr.wordpress.com/2016/09/01/methods-of-torture-employed-by-the-indian-police-forces/
Last visited on 17/06/2016

4
continuous raping by hardened criminals on the specific orders of the police inside the
interrogation

room."
- Allegations contained in a report compiled by the Akhil Banga Manila Samiti - a non-
political voluntary organization.

"In India, claims of torture used against political prisoners have steadily increased since
Prime Minister Indira Gandhi declared a state of Emergency 13 months ago. The New
York- based International League of Human Rights charged last June that Indian jailers
have been guilty of 'torture, brutality, starvation and other mistreatment of
prisoners' ..."
- Time magazine, August 16th, 1976 which was banned in India.

Struggling to put a cap on incidents such as these, the 113 th Law Commission suggested the
inclusion of Section 114B which would automatically lay the shadow of doubt on the police
in case of a custodial death.

2) LAW COMMISSION’S TAKE ON THESE PROVISIONS

“Section 25: Confession to police officer not to be proved: No confession made to a police
officer shall be proved as against a person accused of any offence.”

The 49th Law Commission took up the issue of Section 25 after there was widespread
dissatisfaction surrounding this section amongst the police force. The Commission envisaged
the addition of a provision 26A for rectifying the problem.6 This Section would make sure
that confessions made to senior police officers (officers of the rank of Superintendent of
Police or above) will be made admissible in court. This remained but a mere suggestion. No
steps were taken to make amendments and add this provision. The 69 th Law Commission
Report agreed with the findings of the earlier Commission, only adding that certain
safeguards be put in place. Some of these suggestions are:

(a) the said police officer must be concerned in investigation of the offence;

5
6
69th Report of the Fifth Law Commission of India

6
(b) he must inform the accused of his rights to consult a legal practitioner of his choice, and
he must give the accused an opportunity to consult such legal practitioner before the
confession is recorded;

(c) at the time of making and recording of the confession, the counsel for the accused, if he
has a counsel, must be allowed to remain present. If the accused has no counsel or if his
counsel does not with to remain present, this requirement will not apply;

(d) the police officer must follow all the safeguards as are now provided for by section 164
CrPC. in relation to confessions recorded by 125 126 Magistrates. These must be followed
whether or not a counsel is present;

(e) the police officer must record that he has followed the safeguards at (b), (c) and (d) above.

The 185th Law Commission reopened this issue. They have dealt extensively with this
problem, examining it from its roots.7 Art 20 explicitly debars anyone from making a self-
incriminating statement. “No person accused of any offence shall be compelled to be a
witness against himself.” No person may be deprived of his life and liberty except by a
procedure established by law and after Maneka Gandhi such procedure has a further
qualification: free, fair and just.8

The biggest problem as identified by the Law Commission is that there is a lot of stigma and
shame surrounding a person who is arrested, even if it is merely on a suspicion. Police
officers have to be at the forefront in dispelling such assumptions. And even that isn’t
enough. The Commission even goes one step ahead to say that the ground realities that occur
in police stations can by no means be ignored- the torture, the framing and the false trial.

The Commission champions for a more scientific mode of investigation. They say never will
the time come when confessions become the sole reason for conviction as that would be
mean the demise of liberty. Police have no choice but to conduct a scientific investigation to
reach the culprit.

The Commission has also given considerable attention to legislations like TADA 9 that allow
for confessions to senior officers being made admissible in court. 10 As has been stated in the
case of Kartar Singh v State of Punjab,11 the Act deals with a special type of offenders and

7
Supra
8
1978 AIR 597
9
Terrorist and Disruptive Activities Act, 1989
10
185th Law Commission Report
7
11
1994 SCC (3) 569

8
deviates from the ordinary law and this is justifiable. To apply the law that is currently
effective only in the case of terrorists for ordinary citizens, who are probably even accused
wrongly, is asking for too much.

Section 26: No confession made by any person whilst he is in the custody of a police officer,
shall be proved as against such person, unless it is recorded by a Magistrate under section 164
of the Code of Criminal Procedure, 197. 164A in the 154th Report of the Commission on
Code of Criminal Procedure, 1973, it would be necessary to omit the words “under section
164” and add “in accordance with Ch. XII”.

3) DO WE REALLY NEED THESE AMENDEMENTS?

There are a number of cases that reflect the covert but continuing violence that take place
inside the dark hollows of jails. More than the witness and victim accounts of such incidents
that I have already mentioned, these case laws lend more credibility to the allegations
commonly made against the police.

In the case of Nandini Satpathy v P L Dani12, the Supreme Court, while dealing with the
investigation by police in India, stated that Act 20(3) is applicable at the stage of investigation
and trial also and also mentioned Section 26 of the Evidence Act. In his judgment, Justice
Krishna Iyer said ‘The first is that we cannot afford to write off the fear of police torture
leading to forced self- incrimination as a thing of the past. Recent Indian history does not
permit it, contemporary world history does not condone it.’ All over the world, the
technology of torture has grown tremendously, modes and methods that break a prisoner’s
will in hours or days but leave absolutely no visible signs or marks of the same. The Court
also observed that Many police officers, Indian and foreign, may be perfect gentlemen, many
police stations, here and elsewhere, may be wholesome.

Then of course, there is the more recent judgment of DK Basu v State of West Bengal13 where
the recommendation of the 113th Law Commission was mentioned frequently. The report had
suggested the implementation of S 114B of the Indian Evidence Act while dealing with
injuries in police custody. This was the suggestion: In a prosecution of a Police Officer for an
offence constituted by an act alleged to have caused bodily injury to a person, if there is
evidence that

12
AIR 1978 SC 1025=1978(2)SCC 424
9
13
1997(1) SCC 416

10
the injury was caused during a period when that person was in the custody of the police, the
court may presume that the injury was caused by the Police Officer having custody of that
person during that period.” The Court endorsed this suggestion and sought its immediate
practice.

4) WHAT DOES THE POLICE HAVE TO SAY ABOUT THIS

One of the main stakeholders in this whole affair is of course the police force. It is their
morale and unhesitant approach to hard work that helps maintain law and order in any city,
get to the bottom of any crime, however gory or complicated, and confirm that political
leaders are still able to have an unrestricted drive to the Assembly.

The police have for long asked for the total abolishing, and then later compromised for a
partial amendment, of this provision.14 There are three stages to the administration of justice:
Investigation, Enquiry and Trial. The Investigation is the domain of the Investigating Officer,
who is incidentally a police officer. An IO knows that if he does not table sufficient evidence
at the court there is a chance that his accused might be free to go. He knows that the court
works as much by evidence and reason as it does by justice and righteousness. He knows that
if he does not have the requisite material incriminating his man, even if everyone in the
courtroom knows that the man must have committed the crime the court will let walk out a
free man, because the court cannot stand the risk of convicting even a single innocent and as
a result has to be convinced beyond all reasonable doubt of the guilt of the accused.

The police men I talked to said their biggest hurdle they face when it comes to Section 25 is
with Approvers and perpetrators who confess. 15 As per Section 133, the testimony of an
approver is admissible without corroboration. This is so under the belief that a man who was
part of the planning, preparation and possibly even the final execution would know better
than all others. So the requisite material is available: the approver walks them through step by
step over everything that he and his associates had done: where they hatched the conspiracy,
where they went to procure the weapons or tools, how to they went about executing the act.
The whole

14
For the purpose of this paper I talked to Additional Director General of Police Mr K Padmakumar IPS at his
office while also interacting with his staff in the office. He facilitated visits for me to other police stations as
well, where I talked to various Sub Inspectors of Police. I also spoke to Dr Arul Krishna DCP, Commissioner of
Kochi City.
15
The opinions mentioned above are that of the speakers alone and the author has not influenced or attempted to
11
change any of them.

12
process has been recreated, the approver is taken to court and he decides that he is better off
without betraying his associates. He says his confession and every other statement that
followed was a result of police torture and coercion, that he was bullied into giving a false
story of how the crime was committed. The case may result in being taken away from the
poor, overwrought IO to another officer.

This is the biggest source of annoyance for the police. It is still acceptable if a person who
committed the crime decides to retract on his confession. A confession by itself is not
sufficient to convict an accused. Corroborations need to be shown. But where an approver
confesses to the crime, leads the police into recreating a depiction that may be the closest they
may get to accuracy and then turning against the same is a stab in the back, the pull of the mat
from beneath the feet.

The police also believe that the suggestion by the Commission that confessions to a certain
rank of officers should be made admissible in exclusion of all other confessions is
unacceptable. Though the police force is marked significantly with hierarchies16, decorum
and protocol, the force is at the end of the day One Force. They do not want the kind of
segregation that the Commission envisages on an area that is at the core of their job
description, especially because it is usually the officers at the lower rung who are out on the
field doing the dirty, daunting work. Therefore, implementing the proposed S.63A will prove
to be problematic. They retort that no law other than the proposed amendment requires for
this kind of partisanship within the force.

The police are also reeling in the humiliation that they are not even given the benefit of doubt
when it comes it to the modes they use to prise a confession out of persons. Even today,
popular movie culture portray the police as one that stops at nothing so long as they dump the
guilt on a person’s shoulders and save the name of the force. This scenario has changed
drastically, especially in Kerala, my home state. The police force today comprise of people
who were formerly educated as engineers, accountants, doctors or at least ones who possess a
degree. If we take a study of recent appointments of SPs in the State, the results will bring out
the number of former doctors who are adorning the khakee uniform. As a result, they
understand the importance of being civil and polite to common citizens. They don’t
immediately start kicking a man in his gut if he commits non-compliance. Thus, the
allegation that it is the widespread use of third degree torture that has resulted in the
prevalence of this provision is rebutted.

13
16
Opinion as given to the author by members of the force

14
Though, this is what is claimed by the police force, the numbers tell a different story. The
National Human Rights Commission recorded 12,727 deaths in judicial custody from 2001-
2002 to 2009-10.17 This ranges from 1,140 cases in 2001-200218 to 1,389 cases in 2009-
2010.19

During my interaction with the police I tried asking them if they would be better off if a
confession was made a part of the judicial domain ie let the courts try to get the confession,
let the police just produce the accused. But this, according to them would be an overstepping
of the established procedure of Investigation, Enquiry and Trial. The police can be involved
only in the Investigation and a confession is usually part of the investigation.

17
For 2009-2010, custodial cases are covered for the period up to 28 February 2010.
18
2001-2002 Annual Report of the National Human Rights Commission
15
19
. 2002-2003 Annual Report of the National Human Rights Commission

16
5) A STUDY OF EVIDENCE LAW IN OTHER PARTS OF THE WORLD

5.1) England

Though our criminal system is largely borrowed from England, the English have changed
their law a lot since then. In England, torture was once regarded as a normal practice to get
information regarding the crime, the accomplices and the case property or to extract
confessions.20 The English law now provides for various safeguards to the person interrogated
which the police have to follow,- as laid down in the Police and Criminal Evidence Act,
1984. The English jurisprudence is replete with case laws that define their positions on
matters of conflict. Saunders v UK21, Condrom v UK22 and the Averill v UK23 cases have all
laid down that that the police not having followed the condition of giving opportunity to the
accused to call a lawyer, the rights of the accused under Article 6 ECHR were violated.

But coming to the point at hand, in England today confessions have been made admissible
under the Police and Criminal Evidence Act, 1984 and under sec. 76(1) the confession is
made relevant unless it is liable to be excluded under the section. Section 76(2) says that if “it
is represented to the court that the confession was or may have been obtained (a) by
oppression of the person who made it or; (b) in consequence of anything said or done which
was likely, in the circumstances existing at the time to render unalienable any confession
which might be made by him in consequence thereof, the court shall not allow the confession
to be given in evidence against him except in so far as the prosecution proves to the court
beyond reasonable doubt that the confession 138 139 (notwithstanding that it may be true)
was not obtained as aforesaid”. The word ‘oppression’ has been widely construed by the
Court as including torture, inhuman or degrading treatment, use of violence.

The nature of the common law discretion to exclude relevant evidence, including confessions
is preserved by sec. 82(1) of the 1984 Act24. Sec. 78 was added to at a later stage, without

20
Para 4, D K Basu v State of West Bengal
21
(1996) 23 EHRR 313
22
((2001) 31 EHRR 8392001) 31 EHRR
23
36408/97, [2000] ECHR 212
24
The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a
legislative framework for the powers of police officers in England and Wales to combat crime, and provided
codes of practice for the exercise of those powers.

17
modifying sections 76 and 82, and gives discretion to the Court to disallow a confession if it
‘would have such an adverse effect on the fairness of the proceedings.’

5.2) United States of America

In America, known to be ruthless especially with prisoners of war, has laid down in cases
such as Miranda v Arizona25 and Chambers v Florida26 that there are certain rights in the
Constitution which protects a person from making self -incriminating comments and that
shall not be abridged under any circumstances.

25
384 U.S. 436 (1966)
26
309 U.S. 227 (1940)

18
 6) POPULAR CULTURE AND CONCLUSION

After having read up on the impugned sections and interacting with the police force, certain
facts become really clear. The police have to be tough, it is part of their job to be tough. But
what exaggerates and aggravates the stigma and shame surrounding an arrest or any similar
encounter with the police is popular culture that almost always shows the cop as the bad guy,
the one who is a puppet in the hands of the greedy, angry politician and the one who does not
have the nerve to do his duty with integrity. Though recently the trend is taking a turn for the
better, it has been imprinted on the minds of people that it is acceptable and in some cases
even heroic, to obstruct a police man while he is doing his duty, that it is okay to presume that
if taken into custody, he is going break your bones. We need to change this mind set, one that
keeps villainising the cops. If the communication gap and mistrust between the police and the
common man is repaired, a lot of the enmity and animosity will disappear.

At the same time, the police have to be trained to be gentle but firm with civilians. With the
advent of Janamythri Police27 in Kerala, this concept is witnessing execution but it needs to
be more widespread and far-reaching. We cannot imagine a society where there is no law and
order. At the same time, in no place can law and order be established by itself, as we live in a
society of people with different temperaments, beliefs and attitudes. Hence, the police are
imperative to our existence. All the more reason we need to cooperate and co- exist.

27
http://www.keralapolice.org/kerala-police/innovative-initiatives/janamaithri-suraksha/about-janamaithri-
suraksha

19
20