PublicationsEvidentiary Value of a Confession Made to the Police: A Critical Analysis

October 24, 20200



Section 25 of The Indian Evidence Act, 1872 (Hereinafter referred to as The Act) disallows for any confession made under police custody. The underlying assumption is that the police officers would incorporate all sorts of physical violence, torture, third-degree to extract such confessions. Since voluntariness is an important principle of the idea of confessions, the police authorities are kept out of this spectrum as it is believed that they could go to any lengths to solve a case in hand. This necessarily points towards the hypocrisy of our system where the right to prove your innocence is even provided to a rapist/terrorist in the court of law, but no mercy for the officers to clean their record.

Thus, the aim of the paper is to delve into the criticalities of Section 25 of The Act and to argue for its amendment for good.


It can be argued that Sec. 25 stems from the precautions/privileges of the Right to Silence and Article 20(3), and also works to protect those privileges.

Professor Glanville Williams quotes Bentham’s strong criticism of the Right to Silence as the most malicious and unreasonable notion that humans have come up with.[1] Further, he said that an innocent being would never resort to silence but rather speak his truth, and the privilege of silence can only favour the guilty mind.

The security of innocence may be complete without favouring the impunity of crime.[2] It is not fruitful to be over precautious since the precautions which are not absolutely necessary for the protection of innocence, afford a dangerous lurking-place to the crime.[3]

Every crime is committed by someone, and it is he who has the maximum information about the entire scenario. So, it is only logical to permit the police officers to obtain maximum information out of them. However, instead of directly extracting it from them our law commands the investigating officers to discover the guilt of accused from other sources which seems absurd.[4]

Clarence Darrow criticizes the methods of criminal courts to be hundreds of years old and their concept being another thousand years old. The world is growing at the fastest pace but the law and administration have defied time and maintained its age-old thoughts.[5]

A common argument against allowing confession under police custody is the possibility of abuse by the officers. However, it is important to know that this possibility is not being removed by not allowing this, and only the source of abuse changes. The accused gets a free reign to make statements, change the facts and figures according to his convenience and dupe the police.[6]

A horrific example of it is the case of Aghnoo Nagesia v. State of Bihar (1966)[7] where the person murders the entire family and confesses the murder to the police officer, however, he is left scot-free due to inadmissibility of that confession and lack of any other evidence. Also, a person can confess anything he wants and make an altogether different statement in the trial, thereby mocking the investigating officer and the law (which is going at lengths to protect the same person) as a whole.

Due to the presumption, there is a possibility that the accused could falsely claim himself to be the victim of police torture before the Magistrate, creating prejudice to such officers. The law seems to be tilted, if not balanced, heavily in the favour of the accused[8] who could be clever enough to firstly commit the crime and then insult the law again by creating this spiral.

Justice Krishna Iyer famously labelled, “Criminal law as a dog who is even afraid to bark. The law is perceived as ineffective if a number of people can escape from it and is actually worse than no law since it undermines the faith of the community. And thus, there is a need to reform Sections 25 of The Act.[9]

Every law has a loophole and the likelihood of being abused, but that should not be the basis for not incorporating it.[10] Criminal law or Income tax laws are one of the most abused laws but these cannot be abolished in the apprehension of it being abused. Having a full-proof law is like achieving the point beyond the Production Possibility Frontier (PPF) curve[11] which seems unreasonable, and thus the practical solution is to continuously evolve the law correcting the loopholes.

The Law Commission of India while drafting the Prevention of Terrorism Bill remarked: “It is one thing to say we must create and provide internal structures and safeguards against potential abuse and misuse of the act and altogether, a different thing to say that because the law is liable to be misused, we should not have such Act at all”. [12]

The object of Section 25 of The Act as stated by the judges and legislators is to protect the accused from inhuman treatment by the police officers while investigating them. Corollary to this, confession if is made admissible, subject to it being voluntary would essentially aid in police reformation. Their approach to the investigation would change if any evidence of torture would have the effect of discrediting/disallowing the confession. In addition, this would also not reflect well on the officer whose confession is disregarded.

The assumption of police brutality made sense at the time Evidence Law was enacted since police were the only enforcement agency accessible to the Government and there were numerous instances of such violence.[13] However, after 150 years a lot has changed.

Making the confession inadmissible deprives the investigating agency of a valuable piece of evidence in establishing the guilt of the accused.[14] This ban is also in effect discriminatory in nature since confessions made to certain agencies are admissible, namely: [15]

  1. Section l2 of The Railway Protection Force Act, 1957;
  2. Section 8 and 9 of The Railway Property Unlawful Possession Act, 1996;
  3. Section 108 of The Customs Act, 1962;
  4. Section 18 of The Terrorist and Disruptive Activities Act of 1987 (the Constitutionality of the same is upheld by the Supreme Court in Kartar Singh v. State of Punjab: (1994) 3 SCC. 569. The Act has since lapsed.)
  5. Section 18 of the Maharashtra Control of Organised Crime Act, 1999;
  6. Section 32 of The Prevention of Terrorism Act, 2002.

The 4th report of the National Police Commission(NPC) has termed this distinction as highly derogatory, making them feel distrustful of the law. Every employer has a duty to ensure that its employees are always motivated, similarly, the state employing the police officers should not show such distrust that it could go to the extent of discrediting them and lowering their morale.

It is important to understand that time is of the essence after the commission of a crime. The criminals while committing the crime and after having committed it only fears the police and the idea of getting caught. Section 25 of The Act is overlooking those cases where the criminals out of self-conscience, moral or guilt immediately or sometime later might want to come forward and confess their crimes to the police officers.

This is the most nascent stage of the crime where the criminals have not given a complete thought about the idea. By disallowing those confessions and mandatorily lengthening the process with the introduction of a Magistrate under Sec. 26 of The Act, those persons might deflect their paths to narcissism.

In cases, where the accused is smart enough to take care of all the evidence that could tie him to the crime, confession is the only evidence that can ultimately lead to justice.


Since the Internet is literally available and accessible to a majority, the reach of social media in inculcating awareness has proved to be ever-expanding. The news channel has expanded with the enshrinement of freedom of the press and rising consciousness among the people with respect to their rights, and at the same time increasing vigilance of the higher-level officers to curb these malpractices, are few factors that have had the effect of reducing any kind of malpractice significantly, if not eroding it completely.


The provision of accepting confessions made to the police officers is not something unique, the effects of which are not known yet. Various countries in the world have successfully implemented this provision with their safeguards in place.

England under Sec. 76 of The Police and Criminal Evidence Act, 1984 have allowed for confessions however, by armouring it with stringent standards. The prosecution bears the burden to prove beyond the reasonable doubt, absence of oppression or any other circumstances to make such confession unreliable. In Regina vs. Middleton[16], the admissibility of a confession is decided by conducting “a trial within a trial” looking at the factors of voluntariness and reliability.

In the U.S., following the famous Miranda v Arizona[17] case, the confession is only admissible if it is voluntarily given. The judge extensively decides on the issue of voluntariness by evaluating all the circumstances namely the time-lapse, knowledge of the defendant, presence of counsel, Right to Remain Silent, etc.

After admitting the confession, the jury is called upon to attach weightage to such confession in the background of all the evidence and circumstances. However, the accused is allowed to consciously waive his right after being informed of it.

Even Singapore having a similar system as India has sanctioned the Sergeant-level officers to record confessional statements. Australia looks at the grounds of voluntariness, unfairness to the accused and public policy in order to accept the confession.



Confession, if voluntary and untainted, is the most conclusive and precious form of evidence. The idea is that a sane person would never act against his interests and admit to something he did not commit that can possibly land him behind the bars.

It is high time that the difference between the admissibility of evidence and its reliability is discovered and enacted.[18] A confession can and should only be excluded on the ground of involuntariness and not on some vague presumption of police brutality under custody.

The confession should be allowed to at least enter into the realm of judicial proceedings which would repose the trust and faith in the investigative authorities. However, before allowing it some housekeeping has to be done in order to balance the means employed and the ends of producing justice.

The creditworthiness of the confession can be mandatorily placed as a separate issue to be adjudicated by the judges. The burden of proof, similar to the U.K, could be on the prosecution to show the absence of any forms of violence committed on the accused to extract the confession, beyond any reasonable doubt.

If possible, we can follow the jury system or set up a special commission of retired judges while admitting such confessions to infuse more judicial minds to adjudicate on its probative value. Instead of a set objective standard for the reliability of the confession, every case should be decided on its peculiar facts and subjective standards to ensure strict adherence to the rules by the police officers.

A Code of Conduct, akin to our English counterpart, prescribed by the judiciary can also be incorporated prescribing the rules to be adhered to during the investigation and surprise visits by high ranking unbiased officials would ensure a constant check on the officers.

These disciplinary measures should be held in high regard, and violation of it should invite rigorous punishments/fines including termination of the service. This would certainly play a part in curbing the torturous practices and improving the efficiency of the investigative authorities as now it would be on their own interests to do so.

The Committee on Reforms of Criminal Justice System in line with the 48th report of Law Commission suggests for the provision of enabling media such as audio/video to record the confessions[19] reducing the possibility of such violence. They can also be questioned in such media about the voluntariness of their statement, and the motive and intention behind making it.

It should also be assured that various guidelines given under the case of Nandini Satpathy v Dani (P.L.) and Anr[20] are followed and communicated to the accused in the media itself by these officers while recording the statement.

The Law Commission in its 48th report also recommended for reforming Sections 25 and 26 of The Act, with a view to admitting the confessions made to Superintendent of Police or a higher ranking Officer, subject to informing the accused of his right to consult a legal practitioner. They also recommended improving the investigation process and focusing more on scientific means rather than third-degree methods.

The 69th report similarly suggested the inclusion of Section 26 A in The Act, that would allow for confessions subject to various safeguards. The 4th report of NPC also suggests that the confession be accepted by the courts, if not as substantive evidence, at least to aid the inquiry or trial similar to case diaries under sec 172(2) of The Criminal Procedure Code and confession of the co-accused under Section 30 of The Act. In order to remove the discrimination against the police, this suggestion should be applied generally to the confessions as a class.

We cannot turn a blind eye to this major aspect of criminal law without testing its practical implications. It is important to bring the law into effect and leave the window for further amends, barriers and safeguards.

Justice Khanna in Keshavananda Bharati v State of Kerela[21] also highlighted the importance of leaving the door open for trial and error and provided that an opportunity must be allowed for vindicating reasonable belief by experience.[22]


The important agent of the state who stands on the pillar of public trust while abolishing crime in the society is stigmatized under section 25 of The Act. They are branded as untrustworthy and inhuman when it comes to their capacity to handle and investigate criminals/people in general. The irony is that the person being investigated needs protection from an agency whose existence is contingent on protecting the people and society in general.

Bentham, a utilitarian, questions the rationale of denying the confession of police officers when the same confession after being written in a document or the conversation of such confession if heard by a witness is admissible.[23] “What the technical procedure rejects is his own evidence in the purest and most authentic form; what it admits is the same testimony, provided that it be indirect, that it has passed through channels which may have altered it, and is reduced to the inferior and degraded state of hearsay.”[24]

We need to be aware of the urgent need of humanity at large which is to protect them from dangerous criminals and keeping the innocent ones away from them. Overemphasizing on the need to remain fair could have the effect of leaving an unjust society for our upcoming generations. In the end, we must remember:

For every culprit who escapes, the innocent is exposed to another crime


  1. Soumya Sinha, Confessions made to Police…., Chanakya Law University, (2020). (
  1. Aghnoo Nagesia v. State of Bihar, 1966 AIR 119, 1966 SCR (1) 134.
  2. G. Goudappanavar, Critical Analysis of Confession…, Bharti Law Review (2014).
  1. Krishna Iyer, V.R. Perspectives in Criminology, Law and Social Change, (New Delhi: Allied Publishers Pvt Ltd, 1980), p.67.
  3. MALIMATH COMMITTEE REPORT, VOL. 1, COMMITTEE ON REFORM OF CRIMINAL JUSTICE SYSTEM 122 (Minister of Home Affairs, Government of India 2003).
  4. GLANVILLE WILLIAMS, THE PROOF OF GUILT 49-52 (Stevens & Sons Ltd., London, 3rd ed. 1963).
  5. JEREMY BENTHAM, THE THEORY OF LEGISLATION 258 (N.M. Tripathi Pvt. Ltd., Bombay, 1995).
  6. Sengupta, Arghya. “Confessions in the Custody of a Police Officer: Is It the Opportune Time for Change?”Student Bar Review, vol. 18, no. 1, 2006, pp. 31–44. JSTOR,
  7. Nandini Satpathy v Dani (P.L.) and Anr, 1978 AIR 1025, 1978 SCR (3) 608.
  8. Keshavananda Bharati v State of Kerela, I.R. 1973 S.C. 1461.
  9. National Police Commission, Report No. 4 (1980).

[1] GLANVILLE WILLIAMS, THE PROOF OF GUILT 49-52 (Stevens & Sons Ltd., London, 3rd ed. 1963).

[2] JEREMY BENTHAM, THE THEORY OF LEGISLATION 258 (N.M. Tripathi Pvt. Ltd., Bombay, 1995).

[3] Ibid.

[4] Supra Note 2.

[5] Supra Note 10.

[6] Soumya Sinha, Confessions made to Police…., Chanakya Law University, (2020). (

[7] 1966 AIR 119, 1966 SCR (1) 134.

[8] S.G. Goudappanavar, Critical Analysis of Confession…, Bharti Law Review (2014).

[9] Krishna Iyer, V.R. Perspectives in Criminology, Law and Social Change, (New Delhi: Allied Publishers Pvt Ltd, 1980), p.67.

[10] Ibid.

[11] PPF- Production Possibility Frontier in Economics where the points beyond the curve are considered to be unachievable with the present resources and technology.



[14] MALIMATH COMMITTEE REPORT, VOL. 1, COMMITTEE ON REFORM OF CRIMINAL JUSTICE SYSTEM 122 (Minister of Home Affairs, Government of India 2003).

[15] Ibid.

[16] 1975 All E.R.

[17] Miranda v. Arizona, 384 U.S. 436.

[18] Sengupta, Arghya. “Confessions in the Custody of a Police Officer: Is It the Opportune Time for Change?” Student Bar Review, vol. 18, no. 1, 2006, pp. 31–44. JSTOR,

[19] Supra Note 8.

[20] 1978 AIR 1025, 1978 SCR (3) 608.

[21] W.P.(C) 135 OF 1970.

[22] A.I.R. 1973 S.C. 1461.

[23] Supra Note 2.

[24] Supra Note 10.


Legal Maxim (November 26, 2020) Evidentiary Value of a Confession Made to the Police: A Critical Analysis. Retrieved from
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Evidentiary Value of a Confession Made to the Police: A Critical Analysis.” Legal Maxim – Accessed November 26, 2020.
Evidentiary Value of a Confession Made to the Police: A Critical Analysis.” Legal Maxim [Online]. Available: [Accessed: November 26, 2020]

Name: Nikunj Khedia

Affiliation: Jindal Global Law School

Designation/ Academic Year: 4th Year Law Candidate

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