Relevancy And Admissibility Of Confessions.docx

RELEVANCY AND ADMISSIBILITY OF CONFESSIONS

Sections 6 to 55 of the Act deal with the relevancy of facts. The word 'relevant' is defined in section 3 of the Act as "one fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of the Actrelating to relevancy of facts."Relevancycan be logical as well as legal.A fact is said to be logically relevant to another -whenit bears such casual relation with the other as to render probable the existence or non-existence of the latter.Allfacts logically relevant are not,

however,legally

relevant.

The

Act

exhaustively

enumerates

the

kinds

ofcasualconnections which make a fact legally relevantto another.Hence relevancy under the Act is nota question of pure logic but of law, as no fact, however logically relevant,is

receivable

in

evidence unless

it is declared by the Act to be

relevant.Whateveris legally relevant is logically relevant but notvice- versa. The statement of the accused: “I have kept in the field the knife with which I killed A’ is logically relevant but Section 27 of the Act provides that only so much part of the information as relates directly to the fact thereby discovered may be proved, i.e., is relevant and hence the latter portion of accused’s statement, viz., “with which I killed A” though logically relevant is not legally relevant. Before going into the relevancy of confession, let us distinguish between relevancy, admissibility and evidentiary value.Relevancy and admissibility are not interchangeable terms.A fact maybe legally relevant, yet its reception may be prohibited on the groundsof public policy, e.g., communications during marriage. Every relevant fact is therefore not necessarily admissible.Similarly, every admissible fact isnot necessarily relevant within sections 6 to 55 of the Act. Even if a confession is relevant and admitted bythe court, it is in the wisdom of the judge as to what weight shall be attached to it.So determinationof evidentiary value is a question to be decided bythe judge according to facts and circumstances of each case. The Supreme Court has also observed in Sahoo v. State of U.P..^ that there is a clear distinction between relevancy,admissibility and weight to be attached to a piece of evidence. Switchingover to the relevancy,three questions arise for determination whenever a confessionis tendered in evidence:-

i)

has it been proved that the accused made the statement attributed to him;

ii)

is the statement relevant; and

iii)what is the evidentiary value of the statement? Questions (ii) and (iii)do not arise if question is answered in negative; question (iii) does not arise if question (i) is answered in affirmative and question (ii) in negative. The relevancy of confessions is discussed in sections 21 and 24 to 30 of the Act. A close look reveals that these sections incorporate a set of rules of irrelevance (also termed as ExclusionaryRules).4 Stephen while drafting the Act placed the rulesofIrrelevance under the chapter of relevancy.Strictly speaking rules of irrelevance should be grouped under a separate head instead of including them in rulesof relevancy. Confessions, as a species of admissions are relevant under section 21of the Act againstthe maker of it unless hit by rules of irrelevance or Exclusionary Rules of sections 24, 25 or 26 of the Act or section 162 of the Cr. P.C.,1973. Section 21 of the Act states that admissions are relevant and may be proved as against the person who makes them. Accordingly,a statement made by an accused that he was present at the scene of the crime and he was accompanying the persons who committedthe crime is relevant under section 21 as an admission. An oral confession by an accused person notbeing hit by any of the exclusionary rules,is an admission which is relevant under section 21. In Faddi v.State of M.P. ,5 it was held that an admission in F.I.R. is admissibleunder section 21.Any statement not amounting toa confession does not come within prohibitionof Exclusionary Rulesof sections 24,25 and 26 and can be proved as an admission. If the relevancy of confession is excluded by any of the exclusionary rules, the entire confessional statement in all its parts including the admissionof minor incriminating facts must also be excluded, unless it is made relevant by a rule of relevance or Inclusionary Rule.6Little substance andcontent will be left in sections 24,25 and .26 if proof of admission incriminating facts in a confessional statementis permitted. 7 To say this is to say that if the confession is caused by inducement, threat or promise as contemplated by Section 24 of the Evidence Act, whole of confession is irrelevant. Proof of not only the admission of the offence but also the admission of every other incriminating fact such as motive, preparation and subsequent conduct is excluded by section 24.To give any otherinterpretation to it would be to robthe section of its practical utility and content. Extending the logic to sections 25 and 26 of theEvidence Act, would reveal that sections 25 and 26 not only ban proof of confession of an offence by the accused to a police officer but also admission contained in the confessional statement of all incriminating facts related totheoffence.

Rules of irrelevance in sections 24 to 26 are followed by a rule of relevance (also termedas Inclusionary

Rule )8 under

section

27, which is inthe form

of a

proviso.Section 27 is one of the ruleof relevance, which is infact based on the doctrineof confirmation by subsequent facts. This rule states that whenever some facts are discovered in consequenceof information given by the accused in police custody so much of such information as relates distinctly tothe facts discovered thereby may be proved. This rule partially lifts the ban imposed by sections 25 and 26 in respect of so much of the information, whetherit amounts to confession or not,as relates distinctly to the facts discovered in consequence of information, if other conditions of section 27 are satisfied. A confession made to a Magistrate and recorded by him under provisions ofsection 164 of the Cr. P.C., 1973,is relevant and can be proved under section 21 of the Act.It can also beproved under section 28 of the Act in the view that warning administered by the Magistarate will end the impressions generated by inducement, threat or promise or it may be relevant under Section 26 of the Act, even if confessing accused was in police custody. Thus, extra- judicial confessions made to any other person who is not a person in authority,are relevant and can be of four kinds :

i)

confessions which are relevant under section 21 of the Act;

ii)

confessions which are made by an accused person who was in custody of the police, in the immediate presence of the Magistrate (section 26) ;

iii)

confessions which led to the discovery of a fact or thing (section 27); and

iv)

confessions made after removal of inducement, threat or promise (Section 28).

So far as relevancy of confession in India is concerned, the Legislature has shown a big legislative trends while introducing section 15 in TADA 1987. Such a provision was absent in TADA 1985 Legislature has accepted the recommendation of Law Commission of India (69th Report),33. According to section 15 (34) of TADA 1987,not with standing anything in the code or Indian Evidence,Act, 1872, but subject to provisions of section 15 itself,a confession made by a person before a police

officer not lower

in rank than

superintendent of Police and recorded by such Police officer either in writing or an any mechanical device like cassettes, taps,or sound tracks from out of which sounds or

images can be reproduced, shall be admissible in the trial ofsuch person or coaccused, abettor or conspirator for an Offence under this Act or rules made threre under. Provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the acussed. Initially such a confession was made admissible against the main accused only. But later an legislature showed another trend and the confession was made admissible against coaccused, abettor andconspirator as well.This trend was shown by legislature by enacting TADA (Amendment) Act 1993 whereby a proviso and words "or co-accused, abettor or conspiratorwere added in section 15(1). Section 25 of the Evidence Act says that a confession made to a Police officer is not to be proved against the accused person. But in TADA 1987 the legislature has shown a great trend by making confession before S.P. as admissible. It is submitted that Exclusionary rule of section 25 has been overridden in this respect by Inclusionary rule of section 15 of TADA, 1987.35 Legislature while drafting section 15 has taken care of overriding effect of this Inclusionary rule in as much as section 15 of TADA 1987 begins with the words “Notwithstanding anything contained in the code or in the Indian Evidence Act, 1872 ...." To confirm the overriding effect of above inclusionary rule along with, the whole Act, legislature has enacted section 25 which says that the provisions of TADA, 1987 or any rule made thereunder or any order made under any such rule shall have effect notwith standing anything inconsistent therewith contained in any enactment other than TADA, 1987 or in any instrument having effect by virtue of any enactment other than thisAct. By enacting Section 15 of the TADA Act 1987, Confession of an accused person, coaccused , abettor or conspirator has been made admissible against the accused person. In Kartar Singh v. State of Punjab, Supreme court has observed that as per Section 15 (1) of TADA Act, 1987, a confession can either be reduced into writing or recorded on any mechanical device like Cassettes, tapes or sound tracks from which sound or images can be reproduced. Since the recording of evidence on mechanical device can be tampered, tailored,tinkered, edited and erased etc.,there must be somesevere safeguards

which should

be

scrupulously observed while recording a confession U/S 15 (1) so that possibility of extorting any false confession can be prevented to some appreciable extent, although section 15 (2)of the TADA enjoins a statutory obligation on the part of the police officer recording the confession to explain to the person making it that he is not bound to makea confession and to give a statutory warning that if he does so it may be used as evidence against him.

Upholding the constitutional validity ofsection 15 of TADA,Supreme Court while commenting upon Rule 15 observed as follows:-

"Rule 15 of the TADA Rules imposes certain conditions on the police officer with regard to the mode of recording the confession and requires the police officer to make a memorandum at the end of the confession to the effect that he has explained to the maker that he was not bound to make the confession and that the confession, if made by him, would be used as against him and that he recorded the confession only on being satisfied that it was voluntarily made. Rule 15 (5) requires that every confession recorded under Section 15 should be sent forthwith either to the Chief Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and the Magistrate should forthwith forward the recorded confession received by him to the Designated Court taking cognizance of the offence. Therefore Section 15 is not liable to be struck down since that section does not offend either Art. 14 or 21 of the Constitution"37

Further, Supreme Court, in order to ensure that the confession obtained in the preindictment interrogation by a Police officer not lower in rank than S.P. is not tainted with any vice but is in stick confirmity of the well recognised and accepted principles of fairness,laid down following guidelines which are six in number :-

(1)

The confession should be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.

(2)

The person from whom a confession has been recorded under Section 15 (1) of the Act,should be produced before the ChiefMetropolitan Magistrate or the Chief Judicial Magistrateto whom the confession is required to be sent under Rule 15 (5) along with the original statement of confession, written or recorded on mechanical device without unreasonable delay;

(3)

The Chief Metropolitan Magistrate or the Chief Judicial Magistrate should scrupulously record the statement, if any, made by the accused so produced and get his signature and in case of any complaint of torture, the person should be directed to be produced for medical examination before a Medical Officer not lower in rank than of an Assistant Civil Surgeon;

(4)

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no police officer below the rank of an Assistant Commissioner of Police in the Metropolitan cities and elsewhere of a Deputy Superintendent of Police or a Police Officer of equivalent rank, should investigate any offence punishable under this Act of 1987.

This is necessary in view of the drastic provisions of this Act. More so when the Prevention of Corruption Act, 1988 under Section 17 and theImmoral Traffic Prevention Act, 1956 under Section 13,authorise only a police officer of a specified rank to investigatethe offences under those specified Acts. (5)

The Police Officer if he is seeking the custody of any person for pre-indictment or pre-trial interrogation from the judicial custody, must file an affidavit sworn by him explaining the reason not only for such custody but also for the delay, if any, in seeking the police custody.

(6)

In case the person taken for interrogation, on receipt of the statutory warning that he is not bound to make a confession and that if he does so, the said statement may be used against him as evidence, asserts his right to silence, the

police officer must respect his right of assertion without making any compulsion to give a statement of disclosure;38. Supreme Court has directed the Central Government to take note of above mentioned guidelines and incorporate them by appropriate amendmentsin the TADA and Rules. Even if the guidelines given by the SupremeCourt are incorporated into new law, it entirely remains in the wisdom of Courts trying the offence to decide the question of admissibility or reliability of confession. Courts must satisfy itself that there was no trap, no track and no importune seeking of evidence during the custodial interrogation. In other words Court should weigh all factors before relying on the confession of an accused terrorist.

Doctrine of VoirDire : Trial within the trial:

Under code of Criminal procedure in Malasia, confession before a police officer of the rankof Inspector is admissible in evidence if judicial safeguards as mentioned in section 164 of our Cr.P.C., 1973 are complied with. Police officer recording the confession is required to give a statutory warning to theaccused person about his constitutional right of silence,andthe police officer is required to record the factum of giving statutory warning to the accused person. Additional procedural safeguard provided under Malasian Law is .thatthe Police Officer will make sure that no inducement, threat or promise was madebefore recording a confessional statement. Next, accused has a right to retract fromhis confession. If accused opts to retract his confession then Magistrate will suspend the main trial andwill start voir dire39. a mini trial within the trialand will proceeed to decide the voluntariness ofthe confession.Court will decide whether aforesaid safeguards were followed beforerecording of confession or not. If the accused is brought from Police lockup and a confession is immediately recorded thereafter,chances of involuntary confession coming out of mouth of accused are there.Hence accused should be given timefor reflections or thinking before confession is recorded. Under English Law also confession before a Police Officer is relevant against the accused person.But higher burden of proof is not required underEnglish Law. Accused is tried on the basis of preponderence of probabilities. In England too the involuntary statementof accused is rejected during voir dire (minitrial)when the accused challenges the charge sheet andretracts from his confession.Inspite of rejection of statement during voir dire (mini - trial) that portion ofthe stateement is made

admissible against the accused which relates distinctly to the facts thereby discoveredin consequence of information given by the accused. Under TADA or under any Indian Law ifthe system of recording the confession operates without following the proceduralsafeguards as provided in section 164 & 281 Cr. P.C., and the guidelineslaid down by Supreme Court ill Kartar Singh v. State of Punjab.40 then,thesituation has to be violative of fundamentalrights guaranted under article 21 of our constitution. Supreme Court indirectly has tried to introduce doctrine of voir dire through Rartar Singh's Case.41 for trial of offences under TADA.It is submitted that the suggestion is a welcome step to safeguard the interest of the acccused person.But Government now has allowed TADA to expire on 23rd May 1995 and no such doctrine is introducced in the new Criminal Law (Amendment)Bill, 1995, since in the new Billthere is noparallel provision to that of section 15 of TADA, 1987.Thus, doctrine of voir direloses its significance in view of the decision of the Government to drop Inclusionary rule of section 15 of TADA from the new Bill.Thus,the doctrine ofvoir dire remains of academic interestin view of Exclusionary Rule of section 25 of the Evidence Act.42