Confession by Imran Ayaz (LL.M)(LL.B)

1. IMRAN AYAZ LL.M. LL.B. Adv.imranayaz@gmail.com

2. CONFESSION Confess - to admit as true, to assent, to concede, to admit the truth of charge or acquisition Confession – Voluntary statement made by a person charged with the commission of crime. Black’s Law Dictionary Derivation of the term Confession Confessio in Latin Confession Acknowledgement of guilt by accused

3. Maxim in Operation Confessio Facta In Judicio Omni Probitione Major Est ‘A Confession made in court is of greater effect then any proof’ Case Law Definition “Mallory Rule” i. Confession given by one who had been detained an unreasonable time before been brought before Magistrate was in admissible though it was otherwise voluntary and trust worthy. ( Mallory Vs US’354) ii. Confession is direct acknowledgement of guilt there is no legal bar to convict the accused on the basis of voluntary confession. ( Naga Reddy Narasa Reddy Vs. State of A.P 1994)

4. Foreign definition ‘ Confession includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’ Section 82(1) of the Police and Criminal Evidence Act 1984

5. Relevant Law Article 37 – 43 of Qanun-e-Shahadat 1984 Section 164, 364 and 533 of Code of Criminal Procedure High Court Rules and Orders Vol.3 Ch.13 Classification of confession Judicial Confession Extra-judicial Confession Extra Judicial Confession This is made by the party out of court, or to any person, official when made not in the course of judicial examination or investigation. Extra judicial confession is usually looked up as a weak type of evidence and therefore when ever it is sort to be relied upon the burden lies upon the prosecution to show its trust worth ness. An extra judicial confession if satisfactory proved to have been voluntarily made may be the basis of the conviction even in the absence of corrobation. A mere general statement that a prisoner confessed is insufficient and therefore where the exact words have not been proved the extra judicial confession cannot be safely be relied upon. Judicial Confession “It is made before a magistrate or court in due course of legal proceedings they include confessions made in preliminary examinations before magistrate.”

6. Confession caused by inducement, threat or promise when irrelevant in criminal proceedings. – Article 37 Q.S.O 1984 A confession made by an accused person is a irrelevant in the criminal proceedings if the making of the confession appears to the court caused by any inducement, threat or promise having interference against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Explanation The word confession is not defined in the Act. It means an admission of certain facts which constitute an offence made by a person who is charge with the offence which is the subject matter of the statement. The particulars of the offence should be put to the accused and he should admit the allegations constituting the offence. Confession is avoluntary statementmade by a person charged with the commission of a crime or misdemeanor, communicated to another person where in he acknowledges himself to be guilty of the offence.

7. Distinction between a Confession and Admission The acid test which distinguishes confession from admission is that where conviction can be based on the statement alone it is a confession and where some supplementary evidence is needed to authorize a conviction then it is an admission ( Ram Singh Vs State AIR 1959 All 518 ) Under Islamic Law In order to make a confession reliable it should be voluntarily made and not on account of any coercion, duress or violence. Confession to Police Officer not to be proved(Article 38 ) No confession made to a police officer shall be proved as against a person accused of any offence. Confession to Police Officer Confession of an accused person before any police officer of any rank about a case tribal by the court or by the court of the general jurisdiction. It is an admissible.

8. Confession by accused while in custody of Police not to be proved against him. ( Article 39) Subject to Article 40 no confession made by any person whilst he is in the custody of the police officer unless it be made in the immediate presence of a magistrate, shall be proved as against such person. Explanation Article 39 deals with confessions which are made not to the police officer but to persons other than police officers i.e. to fellow prisoner, a doctor or a visitor and makes such confessions inadmissible, if they were made while the accused was the custody of police officer. Exculpatory confession: A judicial confession which was self-exculpatory and which was not recorded as statement of prosecution witness, could not be used against another person. (1991 MLD 2001) How much of information received from accused may be proved ( Article 40 ) When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of so information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may b proved.

9. Essentials of Article 40 • Information conveyed by accused actually led to discovery of some fact • The fact was unknown to the police and it was first time derived from accused • Discovery of the fact must relate to the commission of the offence or connect the accused with crime. 2006 AC 701 (DB) Discovery of place of abduction which was already known to police would not come within ambit of Art.40 Delayed recovery: Recoveries made after lapse of three years and belated dispatch of recovered weapons to Ballistic Expert would prove nothing against the accused. 2001 Cr.L.J 704 (DB) Confession made after removal of impression caused by inducement, threat or promise, relevant – Article 41 If such a confession is referred to in Article 37 is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is relevant.

10. Article 42 Article 43 (Evidence Act, 1872 section 30) Confession must be proved Extra-Judicial confession: A confession made before a witness can also be used. AIR 1937 Mad. 618 Evidentiary value of confession against co-accused: It is an evidence of weak character. It cannot be made foundation of conviction. NLR 2006 Cr.1 (DB) Under Qanun-e-Shahadat, Confessions are treated as a species of admission and under the scheme of the order confessions are treated prima facie as relevant or provable under the category of admissions Articles 37,38,39 provide the circumstances under which they are not relevant or provable Arts. 40,41,42 provide the limitation is the operation of Arts.37,38,39 AIR 1951 Orissa 168

11. Recording of confession Statements of accused at various stages explained.--The provisions of sections 164, 342 and 364 of the Criminal Procedure Code with regard to the confessions and statements of accused persons should be carefully studied. the recording of statements and confessions at any stage before the commencement of an enquiry or trial. Section 342 deals with the examination of accused persons during the course of the enquiry or trial. Section 364 prescribes the manner in which the examination of an accused person is to be recorded. - Chapter 13 High Court Rules and Orders

12. Pre-trial stage • F.I.R ( read section 154,155 Cr.P.C) • Statements of witness by Investigation Officer u/s 161 Cr.P.C (statements not under oath) • Chalan; Report under section 173 Cr.P.C (It is to be presented with 14 days ) Trial Stage Summoning of accused Copies are distributed to accused u/s265(c) copies shall be supplied with in 7 days Framing of Charge Prosecution evidence Statement u/s 342 (without oath) Statement u/s 340 if accused wishes Defense evidence to be produced if accused wishes. Arguments Judgment

13. Sec. 164. Power to record statement and confessions.- (1) Any Metropolitan Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Government may, if he is not a police- officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial. (2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make confession and that if he does so it may be used as evidence against him and no magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and, when he records any confession, he shall make a memorandum at the foot of such record to the following effect:- “I have explained to (name) that he is not bound to make a confession and that, if he does so any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. I was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Singed) A. B., Magistrate.” Explanation.- It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case.

14. Confession; procedure u/s164 Cr.P.C Magistrate, any Magistrate of the first class and any magistrate of the second class specially empowered in this behalf by the Government. (Brought to him by S.H.O) Handcuff should be removed. Police sent out to court room and accused given time to ponder and explained that he is not bound to make confession… PLD 1958 Lah 559 (DB) All police officers to be sent out of court room, weather belonging to another Police station ( Thana) Magistrate to ask question to verify confession. Questions such as: • How long you have been with police? • Has any pressure been brought to bear upon you? • Have you been threatened to make confession? • Has any inducement given to you? • Why are u making the confession

15. Section 364; Examination how recorded • …shall be recorded in full, in the language in which he is examined, or if that is not practicalable, in the language of court, or in English • should be interpreted to him in language he understand • Liberty to add or explain his answer Importance of section 346 Provision of section 364 not complied with while recording of statement of the accused. Defect not curable by section 537, Cr.P.C. Conviction set aside. NLR 1985 Cr. 113 M.I Inayat Case Law: Held; Section 164 and 364 of Cr.P.C must be construed together… It is well-recognized rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden ILR 1936 (17) Lah. 629

16. Exceptions to Article 38 Qanun-e-Shahadat 1984 • Article 40; How much information received from accused may be proved. • Section 21(h) of Anti-Terrorism Act1997 ; Confession against police officer of atleast S.P rank Contradictory view: Confession before a police officer of any rank is not admissible. PLD 1998 SC 1445 Mehram Ali

17. 5. Form prescribed for recording confessions.-- *[For recording confessions taken under section 164 of the code the following form shall be used:-] RECORD OF CONFESSION MADE BY AN ACCUSED PERSON (Section 164 of the Code of Criminal Procedure) ----------------------------------------- Division In the Court of-------------------------------------------------- THE STATE, versus The confession of-------------------------------------------------------------taken by me------------------------------------, a Magistrate of the--------------------------------District, this-----------------------day of-------------------------19 . Memorandum of Enquiry (The Magistrate shall first, as required by section 164(3), Code of Criminal Procedure, explain to the accused person that he is not bound to make a confession… Special care should be taken when women or children are produced by the Police for their confessions being recorded).

18. 1. Q.-- Do you understand that you are not bound to make a confession? A.----- 2. Q. Do you understand that your statement is being recorded by a Magistrate, and that if you make a confession, it may be used as evidence against you? A.----- 3. Q.-- How long have you been in police custody? A.----- 4. Q.-- Do you understand that after making a statement before me you will not be remanded to police custody, but will be sent to the judicial lock-up? A.----- 5. Q.-- Understanding these facts, are you making a statement before me voluntarily? A.----- 6. Q.-- What are your reasons for wishing to make a statement? A.----- Statement of accused. (Mark or signature of accused). Magistrate. I have explained to---------------------- that he is not bound to make a confession, and that if he does so, any confession he may make may be used as evidence against him and I believe hat this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it, and admitted by him to be correct, and it contains a full and true account of the statement made by him. Dated_______________ Magistrate.

19. Friday :: September 01, 2006 Huge Award in False Confessions Case Keith Longtin spent 8 months in jail after police interrogated him for 38 hours and got him to falsely confess to murdering his wife. A Prince George County, Va MD. jury has awarded him $6.8 million in damages.