Confessions

What is a Confession?

A confession is the act of acknowledging guilt or coming clean about a previously done unlawful act. A confession must be voluntary and free from coercion, threats or duress in order for it to be admissible in court.

Official Definition of Confession:

Sir James Stephen in ‘Digest of the Law of Evidence’ defined confession as ‘an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed a crime.’

Oxford Dictionary defines 'confession' as:

1. A statement admitting guilt of crime.

2. A statement admitting something shameful or embarrassing.

The Indian Evidence Act, 1872 (Sections 17–31) considers confessions as a subset of admissions. Thus, in criminal cases, “admissions” constitute confessions.

Confessions are governed substantively by the Bharatiya Sakshya Adhiniyam, 2023, which under Sections 22 and 23 excludes confessions made to a police officer or while in police custody, unless recorded in the immediate presence of a Magistrate.

Further, Section 24, BSA renders a confession irrelevant where it is shown to have been caused by inducement, threat, or promise emanating from a person in authority.

An exception is carved out by Section 27, BSA, which admits only so much of a confession as distinctly relates to the discovery of a fact.

The procedural safeguards for recording a valid confession are laid down in Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023, mandating judicial oversight and satisfaction as to voluntariness.

Legal Information Institute (LII): defines confession as as a voluntary admission, declaration or acknowledgement (made orally or in writing) by one who has committed a felony or a misdemeanor stating that they committed the crime/offense or participated in its commission. The validity of a confession depends largely on the circumstances surrounding the admission. Any hint of coercion before or at the time of a confession generally implies involuntariness on the confessor’s part and invalidates or harms the legitimacy of the confession.

In the United Kingdom, under the Police and Criminal Evidence Act 1984 (PACE), a confession is any oral, written, or conduct-based statement that is wholly or partly adverse to the maker. It need not be made to a person in authority. Section 82(1) clarifies that a statement may be made “by words or otherwise.” A statement that was neutral or exculpatory when made does not become a confession later merely because it is shown to be false or inconsistent at trial.

'Confession' as defined in international instruments

International instruments consistently emphasize that a confession must be voluntary and free from coercion. Under Article 14(3)(g) of the ICCPR, an accused cannot be forced to admit guilt, and any admission relied on in a trial must be made voluntarily. Article 15 of the UN Convention Against Torture requires that statements obtained through torture, including confessions, be rejected. The Istanbul Protocol treats confessions as self-incriminating statements made during interrogation and emphasizes that those extracted through coercion are inadmissible. The UNODC Model Law Guidance also defines a confession as a voluntary admission of guilt or involvement, underscoring the global requirement of voluntariness.

‘Confession’ as defined in official government report

Confession is not “evidence” under Section 3 of the IEA. It cannot be the sole basis of conviction; it can only support other evidence. In Pakala Narayan Swami v. Emperor, Lord Atkin stated that: “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence.”He further added,  “An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession.”

In a paper titled ‘Article recording of confession under Section 164 CrPC’ presented by K.R. Jothi, Chief Judicial Magistrate, Erode defined ‘confession’ as stated in the Oxford Dictionary:  A statement admitting something that he is guilty of crime. A statement admitting something that you are ashamed (or) embarrassed about.

Confession is not “evidence” under Section 3 of the IEA. It cannot be the sole basis of conviction; it can only support other evidence.

'Confession' as defined in case law(s)

In Pakala Narayan Swami V. Emperor,  Lord Atkin observed that "A confession must either be admitted in the context of any offence or in relation with any substantial facts which inaugurate the offence with criminal proceedings. And an admission of serious wrongdoing, even conclusively incriminating fact is not itself a confession". This was again discussed in Palvinder Kaur V. State of Punjab the Supreme Court uplifted the Privy Council decision in Pakala Narayan Swami case and substantiated their arguments over two reasoning- Firstly, the definition of confession only comes to exist when the statements conferring the admission that he is either guilty of any offence or the admission is probating all the facts which constitute the offence. Secondly, when the statement has different qualities and contains such a mixture of confessional statements which conclude to the acquittal of the person making the confession, then such statements cannot be considered as a confession. The Supreme Court  in Nishi Kant Jha v State of Bihar,  highlighted that there is no wrong on relying some part of statements confessed by the accused and neglecting the other part, the court has traced out this concept from English Law and when court in its capacity understood that it has enough evidence to neglect the exculpatory part of the confession, then it may rely on the inculpatory part such confession. In Baburao Bajirao Patil v. State of Maharashtra the court while deciding the case explained the principle that "the Court before ascertaining the facts for the purpose of deciding the facts in issues of the case, should begin ascertaining the case facts with all other evidences possible related to the case and then only it shall turn to the approach of confession by the accused in order to administer complete justice to the conclusion of guilt of the accused.

Types of Confessions

Plea bargaining:

The privilege against self-incrimination protects an accused from being compelled to provide evidence against himself, and not from voluntarily making a statement which could incriminate him. The right not to incriminate oneself presupposes that the prosecution in a criminal case seek to prove their case against the accused without recourse to evidence obtained through methods of coercion or oppression in defiance of the will of the accused. A confession is valid so long as it is made without coercion or oppression. Since the privilege may be waived, an accused can voluntarily choose to admit guilt in exchange for a benefit such as a reduced sentence. In this way, plea bargaining operates as a voluntary surrender of the right to remain silent. Courts, especially in the United States, have recognised that presenting a plea offer is not automatically coercive, even if rejecting it may lead to a far harsher penalty, since the accused ultimately has the choice to admit guilt and accept the deal.

Indian Framework:

Introduced through the Malimath Committee, the Code of Criminal Procedure has recently been amended by incorporating Chapter XXIA, comprising 12 Sections. Not only will this expedite the disposal of cases, it may also secure adequate compensation for the victim of the crime, since he, together with the prosecutor, will be in a position to negotiate with the accused. From the perspective of the accused, it implies that he exchanges conviction and a reduced sentence for the long, costly, and arduous process of trial where he may ultimately be convicted. In practice, it reflects less “mutual satisfaction” than “mutual acknowledgment” of the strengths and weaknesses of both the charges and the defenses, against the backdrop of overcrowded criminal courts and congested dockets. Thus, plea bargaining involves a negotiated process in which the accused consents to plead guilty and gives up the right to a full trial in exchange for benefits such as reduced charges or a lighter sentence. It becomes available once the police file a chargesheet under Section 173 CrPC for an offence that does not carry the penalties of death, life imprisonment, or imprisonment beyond seven years, or when a Magistrate takes cognizance of such a complaint, records statements under Section 200, and issues process under Section 204.

2. Induced Confession:

Sometimes innocent people have claimed responsibility for crimes they did not commit due to prompting or pressure from police.  Courts permit police to deceive in order to induce a suspect’s confession, unless they go too far. Officers may feign sympathy, fabricate incriminating evidence, or falsely minimize the seriousness of the offense.  In the US, when police offer false promises of leniency or misrepresent the suspect’s Miranda rights, courts declare the resulting confession coerced.

A confession obtained through police deception must be excluded when the lie relates to a fact that would meaningfully influence the suspect’s decision to confess. A fact is considered material only if a reasonable person in the suspect’s position would view it as important in deciding whether to invoke or waive the right to remain silent. In practice, however, deception seldom amounts to coercion in the strict sense. Throughout interrogation, the suspect continually decides whether to maintain silence or speak. Even when officers misrepresent the strength of the evidence or make false promises of leniency, the suspect still exercises personal agency evaluating the perceived risks and advantages and choosing whether to resist or yield. Such tactics may induce a confession by shaping the suspect’s perceptions, but the law generally treats the ultimate decision as one made voluntarily.

In sum, police deception in interrogation is problematic chiefly when it induces a confession through material falsehoods. Such confessions must be suppressed where the deception concerns facts essential to the suspect’s decision to waive the right to remain silent.

3. Confession to a Magistrate

Section 164 of the Code of Criminal Procedure, 1973 deals with the powers available to a Judicial Magistrate or Metropolitan Magistrate with respect to recording confessions and statements. This section pursues the object of prescribing such a procedure which ensures that the person who is making a confession or giving a statement is doing so freely and voluntarily, without any coercion or undue influence.

In State (NCT of Delhi) v. Navjot Sandhu (2005), the Apex Court observed that confessions are considered highly reliable because no rational person would make an admission against himself unless prompted by his conscience, to tell the truth.

The rationale for recording a witness’s statement under Section 164 CrPC is twofold: it discourages the witness from later retracting or modifying their version of events, and it circumvents the protection against prosecution that attaches to statements given under Section 162. This mechanism also reduces the risk of subsequent alterations motivated by fear of perjury charges. Further, statements recorded promptly after the incident possess higher evidentiary value, as they are viewed as more reliable and credible than accounts provided at a later stage.

Before recording, the Magistrate must carefully verify the identity of the witness or complainant and ensure that any confession or statement is made voluntarily. Statements recorded under Section 164 are treated as public documents and therefore require no formal proof, nor is it necessary to summon the Magistrate who recorded them. Sub-section (1) empowers any Magistrate to record a statement or confession regardless of jurisdiction, while Sub-section (6) applies when jurisdiction is absent. Confessions must be recorded in accordance with Section 281, signed by the person making them, and accompanied by a memorandum from the Magistrate. Importantly, only a Judicial Magistrate or Metropolitan Magistrate is authorized to record statements under this provision.

4. Confession to Police

Confessions by an accused, made to a police officer, or to another person while in the custody of a police officer, are as a rule inadmissible under the Indian Evidence Act, 1872 ("I.E.A."). Section 25 of the Evidence Act renders confessions made to a police officer inadmissible as evidence whereas section 26 is wider in its purview, and excludes all confessions made while in the custody of a police officer.

The ambit of the latter is wider than the former since it also excludes confessions to third parties, if there is a suspicion that the person making was in a position amenable to the influence of a police officer. The broad reasoning for the enactment of these sections was to prevent the practice of torture, extortion and oppression, which was rampantly employed by the police in order to extort confessions. Hence, they are based on the assumption that a confession made to the police officer may suffer from the impairment of want of genuineness, as there is a high degree of probability that the same was not voluntarily procured.

While torture must unquestionably be rejected, lawmakers should recognise that the exclusion of coerced confessions is only a consequence of a deeper issue: their inherent unreliability. The real problem to be addressed is the creation of conditions that produce such unreliable statements, rather than relying solely on rules that render them inadmissible.

In the United States, this concern is reflected in the development of Miranda rights, which require police to inform suspects of their right against self-incrimination and their right to counsel before any custodial interrogation begins. Originating from the Supreme Court’s 1966 decision in Miranda v. Arizona, these protections are grounded in the Fifth and Sixth Amendments and serve as procedural safeguards against involuntary or uninformed confessions. The ruling arose after Ernesto Miranda confessed to charges without being informed of his rights, leading the court to determine that such confessions are inadmissible if suspects are not properly informed.

5. Retracted Confession:

A retracted confession is a confession made by an accused at some earlier stage, but subsequently withdrawn by him at a later stage. In other words, after making a voluntary admission, the accused retracts his statement, saying it was made under duress, misconception, or other circumstances affecting its truthfulness. A retracted confession is admissible but its evidentiary value is weaker than a voluntary confession. In order to be effective, the retracted confession should be corroborated by independent evidence and the Court must be satisfied that the original confession was made voluntarily and is true.

An example of this is: Following the commission of theft, a police officer initiates an investigation and examines both witnesses and the accused, Mr. X. Upon forming the belief that Mr. X committed the offense, the officer submits a report or charge sheet before the jurisdictional Magistrate. During the course of investigation, Mr. X expresses willingness to plead guilty. The police officer escorts Mr. X to the Magistrate for recording his statement. The Magistrate, after verifying that Mr. X is making the statement voluntarily and without coercion, proceeds to record it. If Mr. X admits to the commission of the offense, the statement so recorded may be relied upon during trial.

However, at the commencement of trial, Mr. X may deny having committed the offense. Upon being confronted with the statement recorded before the Magistrate, Mr. X may either deny having made it or allege that it was made under undue influence or pressure from the police. In such circumstances, the statement recorded prior to trial is treated as a retracted confession.

6. Co-accused Confession:

A Co-accused is any person who is tried jointly with the accused for the same offence. Section 30 of IEA provides an exception to the general rule of the confession as a piece of evidence that it can be used against only the person making it and not the others.It provides that where more persons than one is tried jointly for the same offence, the confession made by one of them is admissible against all of them. A confession by an accused may be taken into consideration provided other co-accused are jointly tried for the same offence.In State of M.P. Through CBI v. Paltan Mallah, the extra judicial confession made by the co-accused could be admitted in evidence only as a corroborative piece of evidence. The accused cannot be convicted based on only the confessional statement of the co-accused as it is not a substantive piece of evidence.

7. Extra Judicial Confessions:

An extrajudicial confession, also called an informal confession, is any admission made outside the courtroom and without a magistrate’s presence. It does not have to be addressed to a particular person and may arise in private conversations, during prayer, or even in self-reflection. Regardless of whether a confession is judicial or extrajudicial, courts must ensure it meets the requirements of Article 20(3) of the Indian Constitution, which prohibits compelling an accused to incriminate themselves. Therefore, a confession must be voluntary and reliable before it can be used to establish guilt. This differs from a judicial confession, which is made before a Judicial Magistrate during investigation or before the competent Magistrate in court proceedings.

International Experiences:

In the United States, confessions are made voluntarily with strong procedural safeguards, most notably the Miranda Rights, which protects against self-incrimination and ensures the right to counsel. The court goes so far as to consider the totality of circumstances to determine voluntariness.

In the United Kingdom, The Police and Criminal Evidence Act (PACE) oversees the admissibility of confessions with increased importance given to voluntary confessions.

In Japan, bail is rarely granted to defendants without a confession. Japanese prosecutors rely very heavily on confessions to ensure convictions and having one in most cases is how they maintain their very high conviction rate.

In China, in 2012, Chinese lawmakers revised China’s Criminal Procedure Law and added the defendant’s privilege against self-incrimination. This was met with huge controversy as the traditional Chinese system focuses on the obligation to confess and reward for confession, while the new addition modelled on the western approach focusses on the right to remain silent.

In France (Inquisitorial Model): a confession is considered strong evidence but it is only one piece among others, and a trial is still required. Judicial oversight during pre-trial procedures provides a different type of safeguard compared to adversarial systems.

International Criminal Courts and Tribunals have a practice to ensure that  the court does not accept a confession without ensuring that all the evidence corroborates the guilt of the defendant, and that even in the case of a confession there is still a duty to fully investigate the facts.

Data On Confessions

In 2016, a study was conducted by the Innocence project where false confessions were the third leading cause of wrongful convictions.

Also Known as:

A confession is a subset of admission in a criminal case where a person admits to committing a crime.  A confession can be called a judicial confession if made in court or before a magistrate. If a confession is made anywhere else it is a formal confession. It is a formal confession when made in a legal proceeding or simply an admission or admission against interest if it implies guilt, though a full confession is an acknowledgement of guilt itself.

References

1. Cases (India, UK, US etc.) India

• Kashmira Singh v State of Madhya Pradesh 1952 Cri LJ 839 (SC).
• Queen Empress v Pakala Narayana Swami (1939) 41 BOMLR 428.
• Nandini Satpathy v P L Dani (1978) 2 SCC 424.
• Pyare Lal v State of Rajasthan AIR 1963 SC 1094.
• Subramania Goundan v State of Madras AIR 1958 SC 66.
• State of Rajasthan v Raja Ram (2005) 11 SCC 600.
• Nishi Kant Jha v State of Bihar  AIR 1969 SC 422
• Baburao Bajirao Patil v. State of Maharashtra 3 SCC 432

United States

• People v Palmer 282 AD 2d 256 (NY App Div 2001).

2. Statutes / Provisions

• Indian Evidence Act 1872, s 25.

3. Books

• Batuk Lal, The Law of Evidence (20th edn, Central Law Agency 2013).

4. Journal Articles & Academic Writing

• Michael J Zydney Mannheimer, ‘Fraudulently Induced Confessions’ (2020) 96 Notre Dame Law Review 799.
• Arghya Sengupta, ‘Confessions in the Custody of a Police Officer: Is it the Opportune Time for Change’ (2006) 18(1) National Law School of India Review Art 5.
• P Günsberg, ‘The Practice of Plea Bargaining Particularly in the Nordic Context’ in J Banach-Gutierrez and C Harding (eds), EU Criminal Law and Policy: Values, Principles and Methods (Routledge 2017) (pre-print version).
• H L Shuai, ‘Obligation or Right? A Historical Comparison of the Criminal Confession System between China and the USA’ (2023) 14 Beijing Law Review 1735 https://doi.org/10.4236/blr.2023.144096.

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5. Web Sources

• Cornell Law School Legal Information Institute, ‘Confession’ https://www.law.cornell.edu/wex/confession.
• LexisNexis, ‘Confessions’ https://www.lexisnexis.co.uk/legal/guidance/confessions.
• Tamil Nadu State Judicial Academy, ‘Section 164 CrPC’ https://www.tnsja.tn.gov.in/article/ARC_us_164.pdf.
• Al Jazeera, ‘Hostage Justice: How Japan Secures Confessions and Convictions’ https://www.aljazeera.com/economy/2019/1/29/hostage-justice-how-japan-secures-confessions-and-convictions.
• Association for Psychological Science, ‘Convicted by Memory’https://www.psychologicalscience.org/observer/convicted-memory.