The term Confession took birth from the admission. So admission is a genus and confession is a sub-species. Confession means to confess or to admit the guilt of the offence. Now the basic question arises-to who accused have to give his confession so that it becomes admissible.

According to Lord Atkin confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence.[1] An admission of a gravely incriminating fact even a conclusively incriminating fact is not in itself a confession. Confession may be given at any time in front of magistrate or to any third person.

Confession which is given in front of the magistrate becomes judicial confession and confession which is given in front of third person that becomes extra -judicial confession. Both the judicial confession and extra-judicial confession have their own relevancy and reliance. Extra judicial confession is wider but their reliance is less because it always gives to the third person. Third person include any person like Panch, Pardhan, Friend etc. In Paulose and Others Versus State of Kerala[2] it was observed that the object for the same is to diminish the possibility of admitting a false confession.

The Indian Evidence Act came into force way back In the year 1872 that is about 150 years ago and it is the trite of Indian Judicial system that the same law is being followed till date. India has advanced technically, educationally and various reforms have been brought in judicial system, Police system and other department concerned with the administration of justice but the law of evidence still exists as it is even despite the fact the jurists and the law commission has specifically been pleased to observe that the provision with respect to the confession requires a major change.

The court has also been following the same provisions as were laid down 150 years ago in the year 1872. If we consider the objective with which these provision were incorporated in the year 1872 was only with respect to giving the legitimate color to the abusive and immoral act by the British police. The main aim of the Britishers was to spread a message in the society that by way of these provisions they have tried to protect the interest of the Indians who were otherwise hesitant or afraid of the police by way of provisions contained in section 24-30. The British law makers try to gave an impression that in order to maintain their impartiality such provisions have been incorporated.

Section 25 of the Indian Evidence Act shows the intention of the person who have drafted the Indian Evidence Act, whereby on the one hand the said provision makes the self incriminating statement made to the police officer inadmissible and on the other hand the same statement so far as it pertains to the recovery or discovery of any fact admissible in law, resultantly if such recovery is proved and the self incriminating statement which is otherwise inadmissible is duly corroborated with the other evidences available on record then such confessional statement even if made to the police officer becomes admissible.

Further, section 24 makes the confession irrelevant if such confession is caused by inducement, threat or promise and on the other hand section 28 of the Indian Evidence Act makes the confession admissible if such confession is made after removal of impression caused by inducement, threat or promise. This provision leaves everything on the wisdom of the magistrate and provides that if the magistrate is satisfied that such inducement, threat or promise has been removed then such confession is admissible and in a very surprising manner everything has been left on the wisdom of the magistrate to adjudge that the confession has been made voluntarily without there being any inducement, threat or promise.

This is more obvious that the magistrate is not a god or the agent of god as to adjudge that the statement has been made by the person with his free or volition though the expertise of the magistrate may be helpful but still the possibility of the fact that the person is not making the statement with his own free will cannot be ruled out as the element of subsequent threat still exist.

In Empress versus Babulal[3], Hon'ble Court specifically pleased to hold that:
"The main object of this exclusion is to prevent police officers from extorting confessions in order to gain credit by securing convictions, if confession to police were allowed to be proven in evidence, the police would torture the accused and force him to confess to crime he may not have committed "

The same view was further followed and re-iterated in Toofan Singh Versus State of Tamil Nadu[4], Kartar Singh Versus State of Punjab[5], State of Punjab Versus Barkat Ram[6]. The Hon'ble Apex Court further in Raj Kumar Karwal Versus Union of India [7] pleased to observe that "if confessions to police were permitted to be established in evidence, the police would torture the accused and force him to confess a crime he may not have done and hence such cannot be admissible."

Thus, when the accused confess before a police officer during police investigation, then such confession is inadmissible in evidence, however if a person confess as to the commission f his crime, then the accused is produced before the Magistrate and the magistrate after having been satisfied that the accused/person is making such statement with his own free will and volition, then the magistrate proceeds to record the Confessional Statement U/s 164 of the Code of Criminal Procedure. The main object of the same is to ensure the voluntariness as a result of which such confession is made admissible under the Evidence Act.

Police Officer:

The Provisions of the Evidence Act making Confession inadmissible, specifically provides that the confession made to police officer is not admissible in law. Now the question which is to be seen as to who is a police officer. As per Britannica Dictionary a police officer "is a person whose job is to enforce laws, investigate crimes and make arrests". The further question which is to be answered is that as to whether a person acting under a special statute and having powers of investigation can be treated as police officer for the purpose of Section 25 of Evidence Act. If such person is treated as police officer for Section 25 of Evidence Act then the confession made to such person also cannot be proved as against the accused.

The controversy came up for consideration before the Hon'ble Apex Court in State of Punjab v. Barkat Ram[8], wherein the three judges' bench, by majority, pleased to hold that custom officer under Land Customs Act, 1924 or under the Sea Customs Act, 1878 or under the Foreign Exchange Regulation Act, 1947 cannot be treated as Police Officer in terms of Section 25 of Indian Evidence Act. Though it was a majority opinion, however Justice K Subbarao was of dissenting opinion and was of view that "the principle underlying Section 25 of Indian Evidence Act would apply equally to other officers who have the power and duty to detect and investigate into the crime"

The judgment in Barkat Ram (supra) was relied upon by the Hon'ble Apex Court in catena of cases and it was held that "any person unless he is empowered to file a police report Under Section 173(2)[9] of Cr.PC, he does not become a police officer". In Badaku Joti Savant v. State of Mysore[10]:
Constitutional Bench of the Hon'ble Apex Court pleased to hold that the "Deputy Spdt. of Customs and Excise functioning under the Sea Customs Act, 1878 and the Land Customs Act, 1924, is not a "police officer". It was further held that held the report filed by the Central Excise Officer under the Central Excises and Salt Act, 1944, is not a "police report" under Clause (b) of Section 190 (1) Cr.P.C. and that he can file only a "complaint" under Clause (a) of Section 190 (1) (a) Cr.P.C.);"

This controversy again came up for consideration before the Constitutional Bench of the Hon'ble Apex Court in Illias v. Collector of Customs[11] and it was observed that a Customs Officer under the Customs Act, 1962 is not a "police officer". Not only this the Hon'ble Apex Court in Balkishan A Devidayal v. State of Maharashtra[12] further pleased to hold that even the Officer of Railway Protection Force exercising powers under the Railway Property (Unlawful Possession) Act, 1966 is not a "police officer". Further in Ram Singh v. Central Bureau of Narcotics[13] the Hon'ble Apex Court even came to the conclusion that even the officers of Narcotics Control Bureau exercising powers under Narcotics Drugs and Psychotropic Substances Act does not fall within the definition of "police officer".

However, in a subsequent judgment a contrary view has been taken and it has been held that the confession made to an Excise Inspector is hit by Section 25 of Evidence Act since it is the power of investigation given to that officer for collection of evidence which would make him a police officer (Raja Ram Versus State of Bihari[14]).

Similar view has been taken by the Hon'ble Apex Court in Abdul Rashid v. State of Bihar (wherein it has been held by a two Judge Bench of the Supreme Court following the majority view in Rajaram Jaiswal's case[15] that the Superintendent of Excise is a "police officer" within the meaning of Section 25 of the Evidence Act and any confession made to him will be hit by Section 25 of the Evidence Act.

However, the fact remains that the Judgment passed in Barkat Ram case still holds good as the same has been upheld by the Constitutional Bench of the Hon'ble Apex Court which has not yet been overruled. Thus, in view of the Constitutional Bench the fact remains that the person having the authority to put in Challan under section 173(2) of Cr.PC is only to be treated as a police officer.

However, it is also not in dispute that the term Police officer used in Section 25 of the Evidence Act requires a consideration of the larger Bench of the Hon'ble Apex Court in view of the dissenting views, thereby enlarging the scope of person in authority.

Committee For Revamping The Criminal Justice System:

It may be relevant to submit here that in the year 2000 the Government of India under Chairmanship Hon'ble Mr Justice (Retd) V.S.Malimath, former Chief Justice of Karnataka and Kerala High Courts constituted a Committee, popularly known as Malimath Committee, for revamping the Criminal Justice System. The issue for consideration before the committee was as under:

1. To examine the fundamental principles of criminal jurisprudence, including the constitutional provisions relating to criminal jurisprudence and see if any modifications or amendments are required thereto;
2. To examine in the light of findings on fundamental principles and aspects of criminal jurisprudence as to whether there is a need to re-write the Code of Criminal Procedure, the Indian Penal Code and the Indian Evidence Act to bring them in tune with the demand of the times and in harmony with the aspirations of the people of India;
3. To make specific recommendations on simplifying judicial procedures and practices and making the delivery of justice to the common man closer, faster, uncomplicated and inexpensive;
4. To suggest ways and means of developing such synergy among the judiciary, the Prosecution and the Police as restores the confidence of the common man in the Criminal Justice System by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal.
5. To suggest sound system of managing, on professional lines, the pendency of cases at investigation and trial stages and making the Police, the Prosecution and the Judiciary accountable for delays in their respective domains;

The Committee submitted its report in the Month of March 2003 and specifically recommended for a Change in Section 25 of the Indian Evidence Act, 1872 and recommended that Section 25 of the Evidence Act deprives the investigative agency of crucial evidence in establishing the guilt of the accused. The observation made by the Malimath Committee is being reproduced as under:-

7.35 Section 25 of the Indian Evidence Act provides that no confession made to a Police Officer shall be proved against a person accused of any offence. This bar applies to recording of confession by a police officer irrespective of his rank. This provision deprives the Investigating agency of valuable piece of valuable evidence in establishing the guilt of the accused. Confessions made before the Police have been made admissible in different parts of the World. Singapore, which virtually follows the same system as ours, has empowered the Sergeant-level officers to record confessional statements.

7.35.4 Hence, we recommend that section 25 of the Evidence Act may be suitably substituted by a provision rendering admissible, the confessions made before a Police Officer of the rank of Superintendent of Police and above. Provision should also be made to enable audio/video recording.

The committee specifically observed that the foundation for the Criminal Justice System is the investigation by the police. When an offence committed is brought to the notice of the police, it is their responsibility to investigate into the matter to find out who has committed the offence, ascertain the facts and circumstances relevant to the crime and to collect the evidence, oral or circumstantial that is necessary to prove the case in the court. The success or failure of the case depends entirely on the work of the investigating officer.

But unfortunately, the Criminal Justice System does not trust the Police. The courts view the police with suspicion and are not willing to repose confidence in them. Section 161 of the Code empowers the investigation officer to examine any person supposed to be acquainted with the facts and circumstances of the case and record the statement in writing. However section 162 of the Code provides that it is only the accused that can make use of such a statement. So far as the prosecution is concerned, the statement can be used only to contradict the maker of the statement in accordance with Section 145 of the Evidence Act.

Any confession made by the accused before the Police officer is not admissible and cannot be made use of during the trial of the case. The statement of the accused recorded by the police can be used as provided under Section 27 of the Evidence Act to the limited extent that led to the discovery of any fact. The valuable material collected by the investigating officer during investigation cannot be used by the prosecution. This makes it possible for the witnesses to make a contradictory statement during trial with impunity as it does not constitute perjury.

The accused now-a-days are more educated and well informed and use sophisticated weapons and advance techniques to commit the offences without leaving any trace of evidence. Unfortunately, the investigating officers are not given training in interrogation techniques and sophisticated investigation skills. All these factors seriously affect the prosecution. This is a major cause for the failure of the system.

The Committee made certain recommendations to improve the competency and credibility of the Investigating agency, wherein it was specifically recommended:

1. To suitably amend Sections 161 and 162 of the Code to provide for recording and signing the statements made by any person to the Police Officer and to render them admissible evidence.
2. To delete Sections 25 to 29 of the Indian Evidence Act

Thus, one of the major recommendations made by the Malimath Committee was the deletion of Section 25 to 29 of the Evidence Act as in view of the researchers, jurists and the members of the Committee these provisions imposed a Social Stigma on the police officers, rendering their act and conduct untrustworthy, especially when it comes to the extracting of confessions.

It is the trite of the Indian Criminal System that that it presumes that confessions are always recorded by a Police Official under force, duress or inducement. Of the total 62 recommendations made by the Malimath Committee one of the major recommendation was that Section 25 of the Evidence Act may be suitably amended on the lines of Section 32 of Prevention of Terrorism Act 2002 that a confession recorded by the Superintendent of Police or Officer above him and simultaneously audio / video recorded is admissible in evidence subject to the condition the accused was informed of his right to consult a lawyer.

Though POTA now stands repealed but the intention of such recommendations was to make the Confession made by the accused to the police officer admissible. But even after the lapse of more than 18 years of the recommendations made by the Malimath Committee nothing has been done for implementation of the same.

Fourth Report Of The National Police Commission:

The National Police Commission submitted its 4th Report in the year 1980 and specifically referred to the drawbacks of the Principles of Confession as provided in the Indian Evidence Act. It even talked about the very fact that "subjecting every confession of an accused made before the police to the assumption that the same would have been recorded involuntary and under the pressure of the police officer, without giving the police an opportunity to establish that confession was voluntary is harsh and unfair".

It may be very important to note that the provisions of the Evidence Act 1872 was relevant to the situation, wherein the police was only the enforcement agency and they adopt several gross malpractices including torture and other pressure tactics in order to obtain confessions from the accused persons.

The report further took note of the fact that since vigilance over the police has increased by the public, press and growing awareness amongst Citizens about their rights under law have reduced the malpractices including torture and other third degree methods. The report specifically referred to the issue after the enactment of the Indian Evidence Act in as much as:
"After the enactment of the Indian Evidence Act, several other law enforcement agencies besides the police have also come up in the field. Officials of the Income-tax, Central Excise and Customs departments have wide powers of search and seizure which can be followed by investigative processes leading to prosecutions in Court.

The Directorate of Enforcement which deals with contraventions of the Foreign Exchange Regulation Act is another agency with similar powers. Members of the Railway Protection Force also have similar powers to make arrests and launch prosecutions in specified situations concerning railway property.

Confessions recorded by the investigating staff of these agencies are not hit by the provisions of section 25 of the Evidence Act and are therefore freely admitted in evidence in prosecutions launched by them. This distinction in law between the police and the other enforcement agencies is viewed as highly derogatory by all police officers and makes them feel that they as a whole community are distrusted in law".

The report recommended for removal of stigma on the police and to make confession made before a police officer though not as a substantive evidence but at least as the document that could be taken into consideration by the court to aid in an inquiry and trial in the same manner as provided in Section 172 (2)[16] of the Code of Criminal procedure 1973 and the confession of the co-accused Under Section 30 of the Indian Evidence Act.

The National Police Commission, recommended that Section 26 and 27 of the evidence Act may be deleted and the Existing provision of Section 25 be substituted by a new section as under:
Section 25: Confession to a person in authority not to be used as evidence:
A confession made by a person may be proved in any judicial proceedings against that person; but such a confession made to any person in authority other than a judicial officer acting in his judicial capacity shall, if proved, not be used as evidence against the person making the confession but may be taken into consideration by the Court to aid it in an inquiry or trial in the manner provided in section 30 of this Act and section 172 of the Code of Criminal Procedure, 1973.

Provided that when any fact is deposed to as discovered in consequence of a confession made or information given to any person in authority other than a judicial officer acting in his judicial capacity, so much of such confession or information as relates distinctly to the fact thereby discovered may be used as evidence against the person making the confession or giving the information.

Explanation :-For purposes of this section, 'judicial officer' means a Judge, Judicial Magistrate, Metropolitan Magistrate, Special Judicial Magistrate or Special Metropolitan Magistrate appointed under the Code of Criminal Procedure, 1973, and includes a Judge of the Supreme Court or a High Court.

Law Commission Reports:

The Law omission of India in its 14th [17] and 48th report made various recommendations of which one was the establishment of separate investigating wings, however so far as the confession is concerned these reports specifically recommended a change in the confession law and recommended of allowing and accepting confessions before high-ranking officers to be made admissible.

The Law commission of India in its 48th Report on Some Questions of under the Code of Criminal Procedure Bill 1970, highlighted the issue of Non-Admissibility of Confessional Statement made to the police officer and made following recommendations[18], thereby making confession made to the Police Officer Admissible in the Criminal Trial:-

In the case of Confession recorded by Superintendent of Police or higher officer the confession should be admissible in the sense that the bar U/s 25 to 26 of the Indian Evidence Act should not apply if the following conditions are satisfied::

1. The said police officer must be the concerned Investigating officer.
2. He must inform the accused of his right to consult the legal practitioner of his choice before making any such confessional statement.
3. At the time of making confessional statement, if the accused or the counsel so desires, the counsel be allowed to remain present at the time when accused wishes to make a confessional statement.
4. The Police officer must follow all safeguards as provided under section 164 of the Code of Criminal Procedure.
5. The police officer must record that he has followed all the safeguards as referred to hereinabove.

On Similar lines the Law Commission further recommended that the Confessional Statements recorded by the Police Officer Subordinate to the Superintendent of Police be also made admissible if the above conditions are satisfied. Thus, in all the 48th Law Commission report recommended that Section 25 to 26 of the Indian Evidence Act and 162 and 164 of the Code of Criminal Procedure be amended accordingly.

Further the issue of admissibility of Confessional Statement before the Police Officer came up for consideration before the Law Commission in its 69th report[19], submitted in the Month of May, 1977, and the law commission specifically recommended that that under a new section 26A all confessions made to senior police officers should be made admissible subject to certain conditions. The Law Commission further provided that Section 26 of the Evidence Act be amended as under:-

Section 26 No Confession made to the Police Officer while he is in custody of a police Officer, shall be proved as against such a person, unless it is recorded by a magistrate under section 164 of the Code of Criminal procedure 1973" (Explanation to be omitted)

So far as the recommendation with respect to insertion of Section 26 A is concerned, it was recommended that a new section should be inserted in line with the recommendations made by the 14th Law Commission Report, wherein confession made to the Police Officer was made admissible, provided the safeguards as provided therein were adopted. However, this recommendation of the 69th Law Commission Report did not find favour of 185th Law Commission Report on Review of the Indian Evidence Act, 1872[20] and the Law Commission adopting the old aged theory of torture and violence observed that:
"We do not agree that sec. 26A as recommended by the 69th Report permitting confessions recorded by Superintendents of Police, in all cases. Such a provision cannot satisfy Art. 20(3), Art. 21 and the judgments of the Supreme Court. We, therefore, do not accept the recommendation." Further so far as the amendment in Section 26 was recommended by the 69th Law Commission Report, the 185th Law Commission report recommended that:
"it would be necessary to omit the words "under section 164" and add "in accordance with Chapter XII". With that modification, the section, after omitting the Explanation, will read as follows:
"Section 26 Confession by accused while in custody of Police not to be proved against him: No confession made by any person whilst he is in the custody of a police officer, shall be proved as against such person, unless it is recorded by a Magistrate in accordance with Chapter XII of the Code of Criminal Procedure, 1973."

It is also a matter of fact that the Indian Police System is not yet so reliable to conclude that the confession would have been recorded by the Investigating Officer in absence of any coercion, threat or force, thus it requires the law to be amended in a manner that the scope of threat, force or promise is also excluded and the confession be also made admissible. The perfect example of the same is the latest Act enacted by the Central Legislature on 18.04.2022 known as The Criminal Procedure (Identification) Act 2022, wherein as per Section 3, Any Person:

1. Convicted of an offence punishable under any law for the time being in force; or
2. ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure, 1973 for a proceeding under section 107or section 108 or section 109 or section 110 of the said Code; or
3. arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law, shall, if so required, allow his measurement to be taken by a police officer or a prison officer in such manner as may be prescribed by the Central Government or the State Government.

It further provides that if any person who is required to allow the measurements to be taken under this Act resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed and such refusal shall amount to an Offence Under Section 186 of the Indian Penal Code.[21]

The term measurement has further been defined as:
""measurements" includes finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973;"

Thus, it is more than evident that even the law makers are aware of the complexities and difficulties being faced by the Investigating Officers just for the reason that the confession made to them have been held not to be admissible, however from the Criminal Procedure (Identification) Act 2022[22]

The law makers have tried to bring some reform in the Criminal Law system in as much as earlier taking measurement for the police officer was not an easy task, however by way of said Act it has been made mandatory for certain category of persons to give measurements and in case they refuse for the same then the same is even held to be an offence Under Section 186 of the Indian Penal Code. Thus, in furtherance of the same the present research has been carried as to how reforms can be brought in the existing law governing the law of confession, more specifically the one which makes the confession made to police officer not admissible.

Even the Hon'ble Apex Court in Selvi and others v. State of Karnataka:[23]
Has been pleased to hold that "The mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement." In other words, it will be a question of facts and circumstances disclosed in the evidence before it.

Thus, from the above discussion it is very evident that the law governing the confessional statement requires an ample change in law governing the confessional Statements made to the police officer. Even the Law Commission in its report has been repeatedly pointing out that Section 25 of the Evidence Act requires an amendment and the confession made even to the police officer can be made admissible.

Due to the Assumption and presumption created by Law, whereby every confession made to the police officer has been made inadmissible in law that too without affording any opportunity of being heard to that particular police officer is very harsh and unfair. On one hand the law tries to protect the fundamental right of the accused and on the other hand the same very law casts a serious aspersion on the act and conduct of the Police Officer who has been investigating the case.

If this is the situation that a police officer cannot be relied upon in the matter of investigation, then such police officer cannot be even relied upon in other matters of investigation. On hand the court places its entire reliance upon the Challan presented by the Police Officer U/s 173 of the Code of Criminal procedure and when the question of confession recorded by police officer, the same is completely rendered to be inadmissible, merely for the reason that the same has been made to the police officer.

The Provisions of the Evidence Act, 1872 deprives the Investigating agency of valuable piece of evidence in establishing the guilt of the accused. Confessions made before the Police have been made admissible in different parts of the World. It may be important to note that the provisions of confession as contained under the Indian Evidence Act, 1872 does not bar the accused from voluntarily making his statement as a witness.

"Any confession made under compulsion is rendered inadmissible in evidence by virtue of S.24 of the Evidence Act. It cannot be disputed that accused is good source of information about the commission of the offence. But unfortunately this source is not fully tapped may be for the fear of infringing the accused's right to silence granted by Article 20(3)."

Even the Hon'ble Apex Court in R.K. Dalmia Vs. Delhi Administration[24] has been pleased to hold that "if any incriminatory statement is voluntarily made by the accused in answer to the question put by a police officer, it cannot be regarded as one made under compulsion."

Since the Police officer in one way or the other is seen with suspicion as to his conduct with the accused and this suspicion ultimately effects the zeal and morale of the Police Officer to serve independently and impartially. Once it is established in the mind of the police officer that his conduct with the accused would always be seen with suspicion it would ultimately affect his honesty and behavior to deal with the accused and the witnesses. It is very certain that the Police System in Indian has always been looked with handling the accused with torture and harassment.

The provisions of the Evidence Act were incorporated with object of protecting he accused against the inhumane treatment and torture in the police custody, however now there is a need to relax such rigid provisions in order to make at least such confessions admissible which the accused may confess out of self-conscience, moral or guilt. It is to be appreciated that the provisions of the Evidence Act 1872 was relevant to the situation, wherein the police was only the enforcement agency and they adopt several gross malpractices including torture and other pressure tactics in order to obtain confessions from the accused persons.

The fact that since vigilance over the police has increased by the public, press and growing awareness amongst Citizens about their rights under law have reduced the malpractices including torture and other third degree methods requires that the confession made to the police officer can be made admissible in view of the Recommendations made by 14th, 48th and 69th Law Commission Reports. Further with the advent of the Technology modern science and technology should be used in criminal investigation.

Tape recording or video recording of statements of witnesses, dying declarations and confessions would be a important for the said purpose. It is to be noted that these facilities did not existed at the time when the law was enacted. However, when now these facilities are available to the investigating agency, they should be optimally utilized and in this manner even the confession made to the police officer can be relied upon in the Criminal Trial.

Even if the intention of the so called human rights protecting agencies are taken into consideration, then also in order to protect the impartial recording of confession before the Police Officer, the recommendations made by 48th Report on Some Questions on Code of Criminal Procedure Bill 1970[25] may be taken into consideration and the guidelines so recommended can be implemented, thereby protecting the complete interest of the accused/person making the confessional statement.

Even the National Police Commission [26] in its Furth report had highlighted the plight of the police officials who have been rendering their day and night services for implementation of Law and maintain order in the society. The report has specifically pointed out that due to such provisions as contained in the Evidence Act a serious stigma is casted upon the police official, thus even the law makers still do not have any faith in the Police System, then they may amend the law in such a manner that even if the confessional statement recorded by the police officer is not to be seen as a substantive piece of evidence then at least the as a document that could be taken into consideration by the court to aid it in an enquiry or trial in the same manner as provided with regard to the case diary U/s 17292) of the code of Criminal Procedure, 1973.

The only thing which is to be seen while recording of the Confession should be the voluntariness and the absence of any extraneous pressure while giving such confessional statement. This very fact can be ensured by implementing the report of Law Commissions and the present day era does not require a rigid confessional law, more specifically when besides Police, there are other law enforcing agencies and it is a trite of law that confessional statements made before such officers is not hit by Section 25 of the Indian Evidence Act, even despite the fact that they have the same powers to enquire and investigate the offence under the special statute. Thus, it is a clear discrimination with which the Police Officers are being subjected to by the Law Makers themselves.

The Police Officers herein is referred to the person who is authorised to file Challan U/s 173(2) of the Code of Criminal Procedure as has been held in the repeated pronouncements, to which reference has been made in the preceding paras. From the above discussion it is very evident that the Law on confession suffers from huge flause and were incorporated to fulfill the need of 18 the Century, however since now there is a huge change in Police System, technological advancements and rise in checks over the working of Police, hence the need of the hour is that the Confessional Law be amended in line with the above recommendations made by:

1. 14th Law Commission Report.
2. 48th Law Commission Report
3. 69th Law Commission Report
4. National Police Commission Repot
5. Justice V. Malimath Report on revamping the Criminal Justice System.

Conclusion And Suggestions
Our Criminal Justice System do follows a Maxim of "Justice should not only be done but it should also appear to have been done and justice delayed is justice denied, justice withheld is justice withdrawn." But it is very surprising that the law is in itself opposite to the Principles of Justice being followed. If the need of speedy justice has become a necessity then it has also become necessary that the Police Officers should also be given enough wide powers to record for the confession of the accused, thereby resulting into a speedy trial.

Though the Police Officers are vested with enough vide powers to inquire and investigate the offence but in the matter of recording of confessional statement a Police Officer is seen with suspicion. Once the entire investigation is left on the wisdom of the investigating officer, then why the statement made by the accused to the police officer during such investigation cannot be made admissible in evidence.

It is not so that the India Police could be seen as to the one which will not use the force to extract the facts and statements of the accused or witnesses but it is also the matter of fact that the law being followed in present era is the same as was drafted way back in the year 1872, when only the police was the law enforcing agency.

The term police has attracted the attention of the Constitutional Courts of the country on various occasions and contrary views have been given, wherein the view has been taken that "the principle underlying Section 25 of Indian Evidence Act would apply equally to other officers who have the power and duty to detect and investigate into the crime"[27] This view has again been re-iterated in Raja Ram Versus State of Bihari[28].

Similar view has been taken by the Hon'ble Apex Court in Abdul Rashid v. State of Bihar[29]wherein it has been held by a two- Judge Bench of the Supreme Court following the majority view in Rajaram Jaiswal's case[30] that the Superintendent of Excise is a "police officer" within the meaning of Section 25 of the Evidence Act and any confession made to him will be hit by Section 25 of the Evidence Act. The underlying principle of such observation is that it is the power of investigation and collecting evidence that falls within the ambit of Section 25 of The Evidence Act, 1872, thus even a Custom Officer, Excise Inspector etc who has been given the power to investigate and collect evidence under special statute have been held to be the Police Officers.

However, the view in Barkat Ram (Supra) still holds good as the same has been upheld by the Constitutional Bench of the Hon'ble Apex Court which has not yet been overruled. Thus, in view of the Constitutional Bench the fact remains that the person having the authority to put in Challan under section 173(2) of Cr.PC is only to be treated as a police officer. However, it is also not in dispute that the term Police officer used in Section 25 of the Evidence Act requires a consideration of the larger Bench of the Hon'ble Apex Court in view of the dissenting views, thereby enlarging the scope of person in authority.

It is a trite of law that only the term Police Officer has been restricted to the cases in which the person is empowered to file a Final Report U/s 173 (2) of the Code of Criminal Procedure[31] and so far as he Acts and Statutes are concerned the Confession made to such officers who are empowered to investigate and collect evidence are not hit by the provisions of Section 25 of the Evidence Act, 1872.

Such provisions are clear discrimination with the Police Officers as in one way or the other there is no difference in investigation being carried out by the Police officers under the provisions of the Code of Criminal Procedure or by the Officers empowered under the Special Statute. It may not be out of place to mention here that the Hon'ble Apex Court on one occasion even pleased to exclude the officers functioning under the Narcotic Drugs and Psychotropic Substances Act from the ambit of the term Police Officer as defined U/s 25 of the Evidence Act[32] .

The answer to such discrimination and heart burning provisions could not be found till date, however if the relevancy of such provisions in the year 1872 is concerned the same can be presumed that such a law was a necessity at that very moment of time as being the only law enforcing agency the Police used various forceful tactics and would subject the accused to arduous torture methods. But now with passage of more than one and a half century the law enacted way back in the 1800's could not be held to be the one which could fit into the present modern India.

The law so enacted was brought into existence for fulfilling the requirement of the British Administration of Justice in India as India was the Colonial part of United Kingdom and in order to ensure and depict that they are functioning with impartiality such provisions were incorporated.

The fourth Report of the National Police Commission highlighted the humiliation being faced by the Police Officials for the reason that the statements made to the police officials are always seen with suspicion and acts as stigma upon their honesty and dedication towards their official duties. The report recommended for removal of stigma on the police and to make confession made before a police officer though not as substantive evidence but at least the document that could be taken into consideration by the court to aid in an inquiry and trial in the same manner as provided in Section 172 (2)[33] of the Code of Criminal procedure 1973 and the confession of the co-accused Under Section 30 of the Indian Evidence Act.

The National Police Commission, recommended that Section 26 and 27 of the evidence Act may be deleted and the Existing provision of Section 25 be substituted by a new section, wherein A confession made by a person may be proved in any judicial proceedings against that person; but such a confession made to any person in authority other than a judicial officer acting in his judicial capacity shall, if proved, not be used as evidence against the person making the confession but may be taken into consideration by the Court to aid it in an inquiry or trial in the manner provided in section 30 of this Act and section 172 of the Code of Criminal Procedure, 1973. Further the Law Commission[34] in its report has made specific recommendations that the confession made to the superior police officers can be made admissible if the safeguards as recommended are followed by the police officials.

The recommendations so made by the Law Commission can be summarized as under:

1. The said police officer must be the concerned Investigating officer
2. He must inform the accused of his right to consult the legal practitioner of his choice before making any such confessional statement.
3. At the time of making confessional statement, if the accused or the counsel so desires, the counsel be allowed to remain present at the time when accused wishes to make a confessional statement.
4. The Police officer must follow all safeguards as provided under section 164 of the Code of Criminal Procedure.
5. The police officer must record that he has followed all the safeguards as referred to hereinabove.
    

Further it was recommended that Section 26 A be inserted in line with the fact that all the confessions made to the superior police officials be made admissible subject to certain conditions, as recommended in 48th Report on Some Questions of under the Code of Criminal Procedure Bill 1970. Section 26 of the Evidence Act was also recommended to be amended on the line that every confession U/s 26 of the Indian Evidence Act be recorded by the Magistrate U/s 164 of the Code of Criminal Procedure, 1973 and explanation was ordered to be deleted.

The paradox of the Indian Legal System is that it works/functions on the assumption that every confession recorded by the Police officers is based on extraneous forces used by such police officer and as such without giving even the opportunity to the concerned police official to establish that confession was voluntary, such confession recorded by the Police Official is directly rejected.

Such provisions are extremely harsh and unfair for a police officer and directly effects the Morale and Zeal of the Investigating Officer to carry out investigation. This results into the faulty investigation and hereby resulting into the ultimate acquittal of the accused. Even though such acquittal may be the result of the technical flause in the investigation but the fact remains that a culprit is set free in the society. Thus, what is important is to bring relevant changes in the law dealing with the confessional statement.

The another measure which could be adopted in order to ensure the impartialness of the Police is that the Investigative wing shall be made separated from the Armed/Law and Order maintaining Police officer so that the Investigating Officer is kept away from other incidental activities and he may focus with calm mind and behavior on the Investigation only. It is also the matter of trite that till date even the Judicial Courts of the country are adopting the same old procedure as was laid down in the year 1872.

Even the Hon'ble Supreme Court of India has been upholding the veracity of the Provisions of the Indian Evidence Act, 1872, despite the repeated recommendations by the law Commission and the recommendations made by the Malimath Committee while submitting its report on revamping the Criminal Justice System.

It may be important to note that American law recommends that there is discretion given to the courts to use of illegally obtained evidence in a case. In India illegally obtained evidence as suggested by Miranda and Poison tree principle not considered in evidence. Basically in Miranda rule there is compulsion put on the accused to give his specimen signature and blood samples.

In India confession obtained by using of narco test, brain mapping and polygraph test etc. are challenged number of times in the Honourable Supreme Court by saying that the accused cannot be compelled to witness against himself. In foreign countries like United State of America and other European countries the use of brain mapping is considered. In brain mapping his brain wave pattern is analyzed by an authority and the result of brain mapping becomes substantive evidence against accused for the use of conviction. It is submitted that this rule should be used in India and resultantly the conviction rate goes high.

In Narco test the sodium pentothal is given to the accused in which his state of involuntariness changed to voluntariness. In scientific way the accused is ready to answer the question because he is in hypotonic state. So it is submitted that there is no harm to admit the confessional statement extort by giving him 'sodium pentothal' which is also suggested by Miranda rule.

In India Miranda Exclusionary rule is not fully applicable. Section 25 of the evidence act puts a total bar on the custodial confessional statement. It is therefore required that the complete ban of section 25 of the Indian Evidence Act, 1872 should be removed. Thus, once the Narco Analysis has been adopted the Confession made to the Police officials is far better than the confession extracted through Narco Analysis.

Thus, the Hypothesis on which the present research was carried out i.e.

1. The law of confession instead of protecting the accused cast aspersions on the act and conduct of the Police Officer is duly proved with the help of case laws, reports of the law commission and Final report of the Committee constituted for the very special purpose of revamping the Criminal Justice System in the Country i.e. The Malimath Committee. All the reports have suggested in a unanimous manner to delete Section 25 to 29 of the Evidence Act and the Confession made to the Superior Police Officer can be made admissible if the following safeguards are adopted:
   
   1. The said police officer must be the concerned Investigating officer.
   2. He must inform the accused of his right to consult the legal practitioner of his choice before making any such confessional statement.
   3. At the time of making confessional statement, if the accused or the counsel so desires, the counsel be allowed to remain present at the time when accused wishes to make a confessional statement.
   4. The Police officer must follow all safeguards as provided under section 164 of the Code of Criminal Procedure.
   5. The police officer must record that he has followed all the safeguards as referred to hereinabove
       
2. Absence of definite and clear guidelines is resulting in acquittals as the confession to police officers is generally inadmissible under Criminal Procedural Law. This Hypothesis has also been duly proved in as much the Present Law of Confession is the same as was way back in the year 1872. Not even a single amendment has been brought in these Provisions till date. The Courts are still adopting the old aged procedure and instead of issuing the guidelines for making confession made to the police officer admissible the Courts have been issuing the guidelines to the Magistrate[35] as to how the Magistrate should record confession U/s 164 of the Code of Criminal Procedure. The Analysis as made herein under, leaves no room for doubt that specific guidelines are required for enabling the Police Officers to record confession which though may not be made admissible but may be used at least as the document that could be taken into consideration by the court to aid in an inquiry and trial in the same manner as provided in Section 172 (2) of the Code of Criminal procedure 1973 and the confession of the co-accused Under Section 30 of the Indian Evidence Act.
    
3. Thus from the above discussion there leaves no room for doubt that the nation still follows the legislation of 19th Century and with the advance of technology and educational, technical and training reforms in the police system there is a need for amendment.

Has been duly proved by the present research and as such now looking into the objective with which the present research was carried out following Recommendations are being by the Researcher for bring reforms in the Indian Confession Law as is now governed by Section 24 to 30 of the Indian Evidence Act, 1872;

1. The recommendations made by the Malimath Committee, whereby reforms and amendments were suggested should be implemented strictly and the confession made to the police officer can be made admissible by deleting Section 25 to 29 of the Evidence Act, 1872 and making suitable amendments in Section 161 and 162 of the Code of Criminal Procedure and to provide for recording and signing the statements made by any person to the Police Officer and to render them admissible evidence.
    
2. Section 25 of the Evidence Act, 1872 should be amended on the lines of section 32 of The Prevention of Terrorism Act, 2002[36] in which a confession to the superintendant of police as well audio/video recorded is admissible in evidence subject to the condition that accused was conversant of his right to seek advice from a lawyer. There are some guidelines which is suggested as under, in line with recommendations by the law Commission in its 14th and 48th Report:
   
   1. The officer recording confession should be the concerned investigation officer;
   2. He should inform to accused of his rights to consult a counsel of his choice and the counsel of the accused should to be present at the time of making and recording of confession.
   3. The police officer must follows the same guidelines as enshrined is section 164 of the criminal procedure code, 1973
   4. The police officer must have to state that he has complying with the above said conditions.
       
3. In India confession made to police officer is not admissible against the accused person. It is suggested that confession to be make admissible if it is corroborated with other evidences. It is very helpful in those cases where no direct evidence has been found. In England the confession made to the police officer who is above the rank of superintendent of police is admissible. This provision should also to be adopted in India.
    
4. The recommendation made in 14th and 48th report of the Law Commission of India i.e. allowing and accepting confessions before high-ranking officer to be made admissible should be applied through necessary amendments to be made Under Section 25 of The Evidence Act, 1872.
    
5. Section 25 of the Evidence act was incorporated with the purpose of safeguarding the accused against inhumane treatment and torture in police custody; however it has now to be relaxed in order to make such confessions admissible which are made out of Self-Conscience, moral or guilt.
    
6. Even if the amendment could not be made in consonance with the recommendations made by the Malimath Committee or the Law Commission report then the recommendation of National Police Report that Section 25 be amended in a manner as to consider confession to aid in an inquiry and trial in the same manner as provided in Section 172 (2) of the Code of Criminal procedure 1973 and the confession of the co-accused Under Section 30 of the Indian Evidence Act, should be adopted.
   
   The Section 25 can be replaced by the following provision, thereby removing the stigma imposed upon the Police Official with regard to the assumption that the confession is always recorded by a police official by subjecting the accused to extraneous forces,:

Section 25: Confession to a person in authority not to be used as evidence

A confession made by a person may be proved in any judicial proceedings against that person; but such a confession made to any person in authority other than a judicial officer acting in his judicial capacity shall, if proved, not be used as evidence against the person making the confession but may be taken into consideration by the Court to aid it in an inquiry or trial in the manner provided in section 30 of this Act and section 172 of the Code of Criminal Procedure, 1973.

Provided that when any fact is deposed to as discovered in consequence of a confession made or information given to any person in authority other than a judicial officer acting in his judicial capacity, so much of such confession or information as relates distinctly to the fact thereby discovered may be used as evidence against the person making the confession or giving the information.

Explanation: For purposes of this section, 'judicial officer' means a Judge, Judicial Magistrate, Metropolitan Magistrate, Special Judicial Magistrate or Special Metropolitan Magistrate appointed under the Code of Criminal Procedure, 1973, and includes a Judge of the Supreme Court or a High Court."

By replacing Section 25 with the above provision two purpose would be solved, firstly that the allegations upon the Police Official that the police subjects the accused to torture and inhumane treatment would fall off and secondly the right of the accused shall also be protected, thereby protecting both the interest of the accused and the police official. The purpose of incorporating Section 25 would also be protected.

Concluding, the researcher would like to submit that it is now the high time that our police system should be believed with high respect and dignity in as much as now the highly educated persons are joining the police force and well aware of their rights and limitations as contained in the Law and the Constitution of India. The Stigma imposed upon the police from time immemorial should be removed and it is time for the courts to believe the Investigating Officer for the efforts put in by such police officer in collecting evidence and recording the statement of the accused.

When the entire criminal case dwells on the investigation carried out by the police official then why not the statement recorded by the Police Officer from the accused, wherein he admits his guilt cannot be considered either for corroboration or for considering the admission of guilt made by the accused. Thus, necessary amendments as recommended herein above are necessarily to be made in law.

End-Notes:

1. Pakala Narayan Swami v. King Emperor. 1939] UKPC 2
2. 1990CriLJ100
3. (1899) ILR 21 ALL 106
4. (2013) 16 SCC 31
5. (1991) 2SCC 635
6. AIR 1962 SC 276
7. AIR1995 SC45
8. AIR 1962 SC 276
9. Section 173(2) in The Code Of Criminal Procedure, 1973 (2) "(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given."
10. AIR 1966 SC 1746
11. AIR 1970 SC 1065
12. AIR (1980) 4 SCC 600
13. AIR 2011 SC 2490
14. AIR 1964 SC 828
15. AIR 1964 SC 828
16. Section 172 (2) of The Code Of Criminal Procedure, 1973; (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
17. Law Commission of India, REP No. 14 VOL 2, The Reformation of Judicial Administration
18. Law Commission of India, REP NO. 48, Some Questions of under the Code of Criminal Procedure Bill 1970
19. Law Commission of India, REP NO. 69, on Indian Evidence Act, 1872
20. Law Commission of India, REP NO. 185, Part-II on Review of Indian Evidence Act, 1872
21. Section 186 in the Indian Penal Code 186. Obstructing public servant in discharge of public functions.-whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both
22. Act No-11 of 2022
23. AIR (2010) 7 SCC 263
24. AIR 1962 SC 1831
25. Supra Note 21
26. Supra Note 18
27. Justice K Subbarao dissenting opinion in State of Punjab v. Barkat Ram AIR 1962 SC 276
28. AIR 1964 SC 828
29. 2001(9)SCC 578
30. AIR 1964 SC 828
31. Section 173(2) in The Code Of Criminal Procedure, 1973 (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, weather with or without sureties; (g) whether he has been forwarded in custody under section 170. The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
32. AIR 2011 SC 2490.
33. Section 172 (2) of The Code Of Criminal Procedure, 1973; (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
34. Law Commission of India, REP No. 14 VOL 2, The Reformation of Judicial Administration, Law Commission of India, REP NO. 48, Some Questions of under the Code of Criminal Procedure Bill 1970, Law Commission of India, REP NO. 69, on Indian Evidence Act, 1872.
35. State of UP versus Singhara Singh AIR1963SC358.
36. Repealed on 21 September 2004 by the Prevention of Terrorism (Repeal) Ordinance, 2004, later substituted with the Prevention of Terrorism (Repeal) Act, 2004 (assented to on 21 December 2004)

Written By: Advocate Mohamed Ahamed Safee, B.Com, LLB, PGDPM & LW