Introduction:
Confession is the Acceptance of Criminal Liability for the
Commission of an Offence. However, No Person can be Forced to make Confession
of his Guilt but if some Person makes Confessional Statement with his Free
Consent and without any Coercion, Threat or Inducement then, this Confessional
Statement may be Relied upon to Base Conviction without seeking further
Evidence. Confessional Statement is Sufficient to Pass Sentence without seeking
Corroboration and even if a Confession is Retreated, if some Corroboration is
forthcoming, it may rely upon to Pass Sentence.
Relevant Provisions:
Article 37 to 43 of the Qanoon-e-Shahadat Order, 1984 Read
with Section 164 and 364 of the Code of Criminal Procedure, 1898 are the the
Provisions Related to Confession.
Meaning:
The Term Confession Means "A Statement made by Accused
Person Admitting his Guilt". It is the Special Form of Admission, All
Confessions are Admissions but All Admissions are not Confessions.
Definition:
Confession may be Define as "An Admission of certain
Facts, which Constitute an Offence made by a Person is Charged with the
Offence, which is Subject Matter of the Statement".
Ingredients of Confession:
Following are the Essential Ingredients of Confession;
- Confession must be Admission of Guilt.
- It must be Clear and Express.
- Confession must have been made Voluntarily.
- It must be Relating to the Offence Charged.
- It must have been Recorded by Magistrate or Trial Court.
Provision Given in Qanoon-e-Shahadat Order, 1984 Regarding Confession:
Following are the Provisions regarding confession given in
QSO, 1984;
Article 37:
"Confessions Caused by
Inducement, Threat or Promise, When Irrelevant in Criminal Proceeding"
Article 37 of the Qanoon-e-Shahadat Order, 1984 State that
in Criminal Proceeding a Confession Shall not be Admissible if it is Made by a
Person Due to Inducement, Threat or Promise given to him by a Person in
Authority and If he make Such Confession would gain an Advantage or Such
Confession will be the Mean to Avoid any Evil of a Temporal Nature in Respect
of Such Proceedings.
Article 38:
"Confession to Police Officer not
to be Proved"
Article 38 of Qanoon-e-Shahadat Order, 1984 Laid Down a
Rule that A Confession Which is made to a Police Officer Cannot be Proved Against
a Person Accused of any Offence. The object of Article 38 of Qanoon-e-shahadat
Order, 1984 is to prevent the malpractice of police officers to gain wrongful
advantages by obtaining confessional statements from accused persons through
undue influence and to Avoid the Danger of Admitting False Confessions.
Article 39:
"Confession by Accused while in
Custody of Police not to be Proved Against him"
Article 39 of Qanoon-e-Shahadat Order, 1984 Provide that if
An Accused Person makes a Confession in Custody of Police, It will not be
Considered an Admissible Confession, But if it is made in the Immediate
Presence of a Magistrate then it will be an Admissible Confession. The
Rationale behind this Article is that A Person can easily be Coerces and
Influence by the Police in their Custody and Consequently the Accused
Confession may be Involuntary and False.
Article 40:
"How much of Information Received
from Accused may be Proved"
Confession made in Police Custody is Inadmissible, But
Article 40 of Qanoon-e-Shahadat Order, 1984 Provide a Rule that any Information
given by the Accused Person while in the Custody of Police which Leads to the
Discovery of Incriminating Material would be Admissible Irrespective of yhe
Fact that Such Information Amount to Confession or not. It is Essential that
there must be Discovery of Fact in Consequence of Information given by the
Accused while he was in Police Custody and the Information is Directly related
to Discovered Fact.
Article 41:
"Confession made after Removal of
Impression Caused by Inducement, Threat or Promise, Relevant"
Article 41 of Qanoon-e-Shahadat Order, 1984 Laid Down an
Exceptional Circumstances to Article 37 of Qanoon-e-Shahadat Order, 1984, It
State that if a Judge is Satisfied that a Confession is Subsequently made by an
Accused Person after the Removal of the Factors i.e Inducement, Threat or
Promise given in Article 37, then Such Confession is Admissible.
Article 42:
"Confession otherwise Relevant
not to becomes Irrelevant because of Promise of Secrecy, etc"
It is a Rule Provided Under Article 37 that a Confession
Caused by Inducement, Threat or Promise Relating to the Charge and Proceeding
from a Person in Authority is Inadmissible, However Article 42 of
Qanoon-e-Shahadat Order, 1984 Provides that if the Confession is otherwise
Relevant under Article 37 then it does not become Irrelevant merely on the
Ground that it was made under Promise of Secrecy, the Consequence of Deception,
when Accused was Drunk, because it was made in Answer to Questions which he was
not obliged to Answer or When he was not Warned that he is not bound to make
Confession.
Article 43:
"Consideration of Proved
Confession Affecting Person making it and Others Jointly Under-Trial for Same
Offence"
Article 43 of Qanoon-e-Shahadat Order, 1984 States that
where an Accused Person Admits his Own Guilt and at the Same Time Acknowledge
the Fact of Involvement of another Person who is Jointly Tried for the Same
Offence with him, the Confession of Such Person will be taken into
Consideration against himself and such other Person. However, it is Essential
that It must be a Confession of Joint Trial for the Same Offence and the
Confession will effect the Accused himself and the Other Person and the
Confession of Guilt must be Duly Proved.
Procedure for Recording Confession: (Section 164 & 364 of CrPC 1898):
A Confession made before a Magistrate or Court in due
Course of Legal Proceedings, It Includes Confession made in Preliminary
Examination before Magistrate, is Called Judicial Confession.
Stages of Making & Recording Confession:
Confession may be Made or Recorded during Investigation but
before Inquiry or Trial or during Trial or after Investigation.
Authority Competent to Record Confession:
Judicial Magistrate of First Class or Judicial Magistrate
of Second Class (if Specially Empowered by Provincial Government in this
behalf) may Record a Confession.
Modes of Recording Confession;
Confessional Statement should be Recorded as per Procedure
laid down under Section 364 CrPC. It shall be Recorded and Signed in the manner
as provided in the said Section.
Satisfaction of Magistrate while Recording Confession:
Before Recording a Confessional Statement, Magistrate shall
satisfy himself that Accused in making Confessional Statement with his Free
Consent and without any Pressure or Coercion. He can Put the Following
Questions who want to Confess his Guilt;
·
Whether he knows that he is not bound to make a Confession?
·
Whether he knows that any such Statementment may be used
against him in Evidence?
· Whether any Pressure, Threat, Influence or Coercion has
been used upon him to make Confession?
Confessional Statement not to be
Recorded on Oath:
Confession must be True and Voluntarily Therefore,
Confessional Statement Shall not be Recorded on Oath and if any Statement is
Recorded on Oath then, it is Illegal and Inadmissible.
Formalities Required to be Proved;
·
When accused Person shows his intention to make a
Confessional Statement, his Handcuffs shall be Removed.
·
Any police officer Present inside the Court Room ousted
immediately from Court Room.
·
Accused shall be informed that he is appearing before
Magistrate.
·
Accused be told that he isn't bound to make a Confessional
Statement and if he makes any Confessional Statement, it may be used as
Evidence against him and he may be Convicted on the basis of such Statement.
·
Accused shall be asked by Magistrate that Police by
Coercion method to Obtain a Confession from him.
·
Accused shall be given Sufficient Time to Consider about
his Confessional Statement
·
After Grant of Time to Reconsider about making Confession,
Magistrate shall ask the Accused whether he is still willing to get Record his
Statement and if he replied in Affirmative then, his Statement will be
Recorded.
·
Accused would be Remanded to Judicial Custody if he were
under Police Custody.
Memorandum at the Foot;
Magistrate is bound to make a Memorandum at the end of such
Confessional Statement, which shall be the following effects.
"I have Explained to (Accused Name) that he is not
bound to make a Confession and that, if he does so, any Confession he makes,
may be used as Evidence against him and I believe that the 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"
Signed
XYZ Magistrate
Evidentiary Value of Confession:
Judicial Confession has Great Evidentiary Value if it has
been made Voluntarily and is not Retracted Subsequently. Magistrate may Convict
an Accused who Admits his Guilt and make his Confessional Statement, Court of
Sessions may Convict an Accused if he Pleads Guilty. However, Court has been
given Discretion by Law to Convict the Accused on the basis of Confessional
Statement and any Conviction Passed on Account of Confession be Legal even
without any other Corroborative Piece of Evidence any Confession made by an
Accused Person is Supposed to be the best Evidence against the Maker. A
Conviction can be made on Sole basis of Confession, if it is made Voluntarily
and True.
Kinds of Confession:
Following are the Various Kinds of Confession;
1. INADMISSIBLE CONFESSIONS:
Inadmissible confessions are those confessions that are not
admissible in the courts during criminal proceedings against the accused
person. The QANOON-SHAHADAT ORDER 1984 has laid down certain articles, which
have rendered certain confessions as inadmissible. These are the following:
i. Confessions caused by inducement, threat or promise when
irrelevant in criminal proceedings (Art 37 of QSO)
ii. Confession to police officer not
to be proved (Art 38 of QSO)
iii. Confession by accused while in
custody of police not to be proved against him (Art 39 QSO)
2. ADMISSIBLE CONFESSIONS
A confession to be admissible in
evidence must have following:
- It must be voluntary:
It
must be free from any influence, torture, threat or promise. It must not be
made in
police custody and must not be made before any police
officer. However the voluntary
confession maybe intentional or unintentional depending
upon the circumstances of
each case.
- It must be true:
An
admissible confession must be a true statement of an accused person accepting
his liability
and it must not be false.
3. JUDICIAL CONFESSIONS:
Judicial Confessions are those which
are made before the magistrate, or in the court, in due course of legal
proceedings and it is essential that they be made of the free will of the
party, and with full knowledge of the nature and consequences of the
confessions.
4. EXTRA-JUDICIAL CONFESSIONS:
Extra-Judicial Confessions are those
which are made by the party elsewhere than before a magistrate, or in court;
this term embracing not only express confessions of crime, but all those
admissions and acts of accused from which guilt maybe implied. Extra judicial
confessions are generally those which are made by a party to or before a
private individual which includes even a judicial officer in his private
capacity. It also includes a Magistrate who is not especially empowered to
record confessions under Sec 164 of CrPC 1898 or a Magistrate so empowered but
receiving the confession at a stage when Sec 164 does not apply. Extra judicial
confessions embrace those made as well to private individuals, as to the
officers of justice, such as constables, police officers etc. if voluntary
made, they are receivable in evidence after being proved like other facts. An
extra-judicial confession, if satisfactorily proved to have been voluntarily
made, maybe the basis for conviction even in absence of corroboration.
Conviction on basis of Extra-judicial Confessions:
Conviction on the sole basis of
extra-judicial confession—for awarding conviction on the basis
of extra-judicial confession, three-fold proof was required i.e
- Firstly, it was in fact made. II. Secondly, that it was voluntarily made.
- Thirdly, it was truly made.
5. INCULPATORY AND EXCULPATORY CONFESSIONS
The legal term exculpatory describes
evidence in a criminal matter that is favorable to, or tends to absolve, the
defendant. This type of evidence may justify or excuse the defendant’s actions, or show that the defendant is not guilty at all.
Exculpatory evidence is the opposite of inculpatory evidence, which
incriminates the defendant, or proves his guilt. The confession where accuse
directly admits his guilt is referred as an inculpatory confession. Exculpatory
confession, on the other hand, is that confession which absolves the accused
from his liability. Only inculpatory confessions can be used as a substantive
piece of evidence. Whereas exculpatory confession needs some corroboration for
being admissible.Court may reject exculpatory part of confession and take into
consideration inculpatory part.
6. RETRACTED CONFESSIONS:
A retracted confession is a statement
made by an accused person before the trial begins, by which he admits to have
committed the offence but which he repudiate at the trial. A confession is said
to be retracted only where the accused admits that he made the confession and
then denies the truth to what is stated therein.
- Retracted
confession requires corroboration:
A
retracted confession must be supported by independent reliable evidence
corroborating it in material particulars. Retracted confession of an accused
implicating a co-accused cannot be relied upon without corroboration in material
particulars by independent evidence.
Conclusion:
To Conclude, When an accused at any time Admits that
Alleged Offence and the Charge which is against him, is called a Confession.
There are Different Kinds of Confession such as Judicial Confession, Extra-judicial
Confession etc. The Relevant Articles on Confession in the Qanoon-e-Shahadat
Order, 1984 are Article 37, 38, 39, 40, 41, 42 and 43 are explained above and
the Procedure for Recording a Confession is given under Section 164 and 364 of
the Code of Criminal Procedure, 1898. In the Light of above Information, Every
Citizen of the Country should be Aware of Confession so that People can know
the Rights as per Law and take Proper Steps with the Help of Knowledge.
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