Quick answer
No. Under Section 23(1) of the B.S.A., a confession made to a police officer cannot be proved against the accused, and under Section 23(2) a confession made while in police custody cannot be proved unless it was made in the immediate presence of a Magistrate. The lawful route is a judicial confession recorded by a Magistrate under Section 183 of the B.N.S.S., after warning the accused that he is not bound to confess and after being satisfied that the confession is voluntary. The only narrow exception is the proviso to Section 23(2) B.S.A.: the part of a statement by an accused in police custody that distinctly relates to a fact discovered as a result of it may be proved.
The law
Section 23 B.S.A. (Confession to police officer) has two bars and one proviso:
- Section 23(1): no confession made to a police officer shall be proved against a person accused of any offence.
- Section 23(2): no confession made by a person while in the custody of a police officer shall be proved against him, unless it is made in the immediate presence of a Magistrate.
- Proviso to Section 23(2): when a fact is discovered because of information received from an accused in police custody, so much of that information as relates distinctly to the fact discovered may be proved, whether or not it amounts to a confession.
Section 22 B.S.A. adds a separate rule: a confession caused by inducement, threat, coercion or promise from a person in authority is irrelevant in a criminal proceeding.
Section 183 B.N.S.S. (Recording of confessions and statements) lets a Magistrate record a confession during investigation or before the inquiry or trial begins. A police officer given a Magistrate's powers cannot record one.
Safeguards under Section 183 B.N.S.S.
- Who records: any Magistrate of the district in which the information about the offence was registered, whether or not he has jurisdiction in the case.
- Warning: before recording, the Magistrate must explain that the person is not bound to confess and that, if he does, the confession may be used as evidence against him.
- Voluntariness: the Magistrate must question the person and record the confession only if he has reason to believe it is voluntary.
- Refusal protects the person: if the person says before recording that he does not want to confess, the Magistrate shall not authorise his detention in police custody.
- Form: it is signed by the person, and the Magistrate certifies the warning and his belief that it was voluntary. It may also be recorded by audio-video means in the presence of the accused's advocate.
Police confession and judicial confession compared
| Point | Confession to police or in police custody | Judicial confession |
|---|---|---|
| Provision | Section 23 B.S.A. | Section 183 B.N.S.S. |
| Recorded by | Police officer (or made while in police custody) | Magistrate |
| Can it be proved against the accused? | No, unless made in the immediate presence of a Magistrate | Yes, if the statutory safeguards are followed and it is voluntary |
| Exception | Information distinctly relating to a discovered fact (proviso to Section 23(2)) | Not applicable |
Example
Aadil is arrested for a theft. At the police station he tells the investigating officer, "I stole the jewellery." That statement cannot be proved against him under Section 23 B.S.A. He then tells the officer, "I buried the jewellery under the mango tree behind my house," and the police recover it there. Only the part of his statement that distinctly relates to the place where the jewellery was found may be proved. Later Aadil is produced before a Magistrate under Section 183 B.N.S.S. and says he does not wish to confess. The Magistrate must not send him to police custody.
Old law equivalents
Section 23(1), Section 23(2) and the proviso to Section 23(2) B.S.A. replace Sections 25, 26 and 27 of the old Indian Evidence Act, 1872; Section 22 B.S.A. corresponds to old Sections 24, 28 and 29. Section 183 B.N.S.S. replaces Section 164 of the old CrPC, which allowed any Metropolitan or Judicial Magistrate to record a confession. For the full chapter, see B.S.A.: Complete Notes.
Exam point
A confession to police, or in police custody without a Magistrate present, cannot be proved (Section 23 B.S.A.); only discovery-linked information can. A valid confession is recorded by a Magistrate under Section 183 B.N.S.S. after a warning and a finding that it is voluntary.
