When confessional statements may not lead to conviction

When an accused is reported to have confessed to the magistrate, most readers assume it to be conclusive evidence of guilt. Soon, a media trial ensues, with the accused being held guilty by the general people before the real trial even begins. Our centuries of jurisprudence and legal experience, however, tell a more complex story. While a confession may be important evidence, it is not conclusive.

True, confession is considered one of the strongest pieces of evidence and may have serious consequences for the accused. It can uncover information that only the offender knows. However, such a statement may also be made out of fear, fatigue, lack of understanding, pressure, or expectation of some benefit. The law thus poses two fundamental questions to assess its legitimacy: (1) was it made voluntarily, and (2) is it true and reliable?

Tap here to add The Daily Star as a trusted source

Section 164 of the Code of Criminal Procedure (CrPC) allows a magistrate to record a confession or statement during an investigation. A magistrate’s involvement does not merely serve as a ceremonial process but creates a buffer between the statement giver and the investigating agency. Before taking a confession, the magistrate should inform the person that he or she is not bound to confess and warn that the confession will be recorded and used as evidence. The magistrate also needs to be convinced that the statement is voluntary.

Although the term ‘voluntary’ might appear plain and simple, it carries significant legal implications. It implies not only that the confession must be obtained without inducement, threat, or promise, but also that the person should be given a genuine opportunity to express himself or herself. The court may find the confession invalid if there is reasonable doubt that the circumstances surrounding the confession prevented the person from exercising a free choice.

This protection is further strengthened by the provisions of sections 24-26 of the Evidence Act, 1872. According to the 1872 Act (as well as our precedents), a confession made due to an inducement, threat, or promise holds no evidentiary value in a criminal trial. Again, a confession to a police officer is generally not admissible against the defendant. Similarly, a confession made whilst a person is in police custody is also considered inadmissible evidence unless it is made in the immediate presence of a Magistrate. It should be noted that these rules are not intended to hinder investigation but to facilitate the search for truth and safeguard individual life and liberty.

On the other hand, all statements taken under section 164 of the CrPC cannot be assumed to be true. While a witness may make a statement to a magistrate under the said provision, it does not make the statement independent proof of all facts of the case. Nonetheless, it can be used subsequently to corroborate or contradict the witness’s evidence in court pursuant to the Evidence Act, 1872. Courts have consistently held that a statement made by a mere witness under section 164 is not substantive evidence in itself. The witness is still required to testify, and the court evaluates that testimony.

Further complications arise when a confession is retracted, commonly known as ‘retracted confession’. Contrary to popular belief, a confession does not simply lose its evidentiary value only because it was retracted. In practice, the court will consider the circumstances in which the confession was made, how it was made, whether it was made voluntarily, whether it appears to be true, and whether there is other evidence to support the confession.

For example, in Gour Chandra Pal v State (2007), the court observed that if a confession was proved to be inculpatory, true and voluntary, it could be the sole basis for conviction of the person who made it, even if it was retracted later on. In the same vein, in State v Mobile Kader (2014), the Appellate Division also noted that a confession made voluntarily and otherwise reliable may not be impeached by retraction.

The media also has an important role to play here. When it uses the word ‘confessed’, it does not always paint an accurate picture. Rather, using more neutral phrases, like ‘The police say a confessional statement has been recorded’, can help prevent media trial and public pressure for a particular verdict.

To conclude, section 164 is not a mere procedural formality, but is situated at the intersection of investigation, human vulnerability and judicial power. A lawful confession will help establish justice, but a wrongfully taken confession can be just as destructive. Henceforth, the procedural safeguards relating to confessions should be strictly complied with so that the evil practice of taking involuntary and false confessions can be eliminated.

The writer is a student of law at Bangladesh University of Professionals.