Recording of Confessions: Detailed Analysis.


Author: Mr. Pushpesh Srivastava, Amity University, Lucknow.


The term confession defined as a statement of an accused person in which he acknowledges that he is guilty of committing any crime or any illegal action. It is always preferable to distinguish a confession from any other kinds of self-incriminating actions since ancient times confession has been used as evidence against criminal defendants.

As per classical Indian law, it also draws attention to the worthiness of confession. The Manu-Smriti which are also known as “Laws of Manu”, was based upon the ancient Hindu concept of dharma includes the moral law and religious facts governing individual conduct. When we go through Chapter 11 of the Manu-Smriti it warns every individual sinner of the necessity of expiating their misdeeds and attaches a purifying effect to confession. It is a universally accepted belief that confession is the first initiative taken by an individual in guilt toward redemption is still in practice in India, a confession will often result in the reduction of a wrongdoer sentence.

Confession must be voluntarily & freely made by the accused person only & most important is that he must be aware of his rights. Generally, a two-prong test is used to determine whether the confession is voluntarily made, involving factors such as subjective and objective, mostly One part of the test generally focuses upon the susceptibility of the suspect, and the second part of the test focuses upon the environment & technique used. A confession shown to be coerced does not lead to void a conviction.

An example of confession-

If C  is charged with the murder of Y, If C said that he has killed B, it is a confession.

Kinds of Confession: 

There are four kinds of Confession,

1) Judicial confession-  A Confession made before Magistrate or in a court due course of a judicial proceeding. It is applicable & most of the time used as evidence, it is also recorded as per the provisions of Section 164 of Cr.P.C.The magistrate who records a confession as per section 164, Criminal Procedure Code, must warn the accused person who is about to confess that he may or may not be taken as consent. After warning the accused person he must give time to think over the situation and then only recording of the confessions are possible. Such confession is called judicial confession.

Confessions are made  purposely & being reduced to writing, consent by the prisoner, authorized by a magistrate, or consisting of a solemn plea, made at the bar of the court, and entered of record, are precisely identified, and free from the inherent infirmity of all mere verbal confessions, made out of court, in the memory of witnesses, and depending for their value upon the fidelity and exactness of their repetition.” [Matthews v. State ].

 2) Extra-Judicial Confession- Confession which is not made before a Magistrate or any Court in due course of a judicial proceeding, it is made either to police during the investigation or into police custody or made otherwise than to the police. Extra-Judicial confession is not relevant.

Previously it was well settled that a conviction could be based on a voluntary confession, but as per rule of prudence requires, it should be corroborated by independent evidence.confession is generally made out if the court and it is not subjected to judicial examination or investigation. Such type of confession must be corroborated by some other proof or else it is not sufficient to warrant a conviction. It is admissible only if it inspires confidence and made voluntarily.

3) Retracted Confession- A confession made before the trial begins by an accused person through which he/she admits to committing any offense but the accused person discards it at the trial.

It is something that happens in most cases especially with criminal cases. The reason behind this the poor police protection or the lack of development mechanism for the protection of witness or in case of high profile cases inherent securities of the witnesses or the accused under the influence of the status of the opposing party.

4) Confession by co-accused- 

According to Section 30.Consideration of proved confession affecting the person making it and others jointly under trial for the same offense.

            When more than one persons are tried jointly for the same offense, and a confession made by one of them affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

Explanation: “Offence” as used in this Section, includes the abetment of, or attempt to commit, the offense.


(a) E and F are jointly tried for the murder of C. It is proved that E said – “F  and I murdered C”. the court may consider the effect of this confession as against F. By

(b) E is on his trial for the murder of C. There is evidence to show that C was murdered by Email and F and that F said, “E and I murdered C”. The statement may not be taken into consideration by the Court against E and F  is not being jointly tried.


  • An accused person himself can appear before a Magistrate for recording his confession. An accused is free to make a confession voluntarily before the Magistrate and he need not be followed or support by the Police totally unlike in the case of a witness or victim. It is a Judge-made law. The supplement is that before recording the confession of an accused person the Magistrate should be satisfied and confirmed that the person who is going to confess is an accused and investigation is in a progress against him and he is from any type of the external influence.
  • At the time of recording the confession of the accused no Police or Police official shall be present. Before proceeding towards the recording of a confession , a enquiry must be made from the accused just to confirm the overall past situation of an accused under the custody and the treatment he had been receiving in such custody it will help to ensure that confession made by accused person is free from any type of extraneous influence (Rabindra Kumar Paul @ Dara Singh v. Republic of India).
  • Section 24 of the Evidence Act lays down the rule that a confession made under threat, inducement or promise becomes irrelevant in a criminal proceeding. the Court will abstain from proceeding on such type of confession, doesn’t matter whether a confession made in front of a Magistrate or a person other than a Police officer, confession by a person should have been made with full knowledge of the consequences of the confession. One side to be bear in mind is that as per Section 26 of the Evidence Act a confession made while in Police custody is not bad if it is made in the immediate presence of a Magistrate.
  • It is necessary to warn the accused before making any confession. As per Section 29 of the Evidence Act, a confession that is pertinent does not become irrelevant purely because the person was not warned that he was not bound to make a confession.
  • Recording of confession is a “proceeding” within the meaning of Section 303 Cr.P.C. and hence the accused has a right to consult a lawyer of his choice. Before recording the confession, the Magistrate should, therefore, explain this to the accused. If the accused is poor or belongs to an economically or socially backward class, the Magistrate should inform the accused about his right to free legal aid under Section 304 Cr.P.C. (Nandini Satpathy v. P.L. Dani), ( Kuthu Goala v. State of Assam)
  • At least 24 hours’ time should be given to the accused person to consider whether he should make a confession, Enquiry under Section 164(2) Cr.P.C. should not be conducted in a casual manner ( Ayyub v. State of U.P.)    
  • Certifying by the magistrate that he “hoped”  not that he “believed” , the confession made by the accused person voluntary, would suggest a remaining doubt and hence not accepted.  Chandran v. State of T.N.
  • As per section 164(3) If before recording the confession an accused person appearing before the Magistrate shows his will that he is not willing to make any confession, then the Magistrate shall not authorize the detention of that accused person in police custody. 
  •  Confession should record by the magistrate only in open Court and during Court hours U.P. Ram Chandra v. State U.P  and confession should be signed by the accused and magistrate as per section 281(5) Cr.P.C.The confession shall be recorded in the language in which the accused is questioned or if that is not practicable, in the language of the Court as per Section 281(3) Cr.P.C.)
  • A confessional statement made by an accused person need not be recorded through cameras But, statements of accused which also  includes witnesses and non-confessional statements of accused persons should be recorded in-camera (Varghese M.U. v. CBI, Cochin)
  • As per Section 164(6) Cr.P.C after recording the confession the Magistrate forward the same to the Magistrate by whom the case is to be inquired or tired. 

Sanjay Dutt vs State Of Maharashtra … on 21 March 2013

Sanjay Dutt was arrested for illegal possession of firearms acquired from terrorist acquaintances who were responsible for the blasts.

On April 26, 1993, he admitted to the charges in his confession. But later retracted the confession. A TADA court had later sentenced 20 people to life imprisonment and 46 others, including Sanjay Dutt were given varying terms of imprisonment


Shankaria vs State Of Rajasthan on 26 April, 1978

In this case, it was held that the confession was not made voluntarily and it was the result of pressure from the police side, coercion & inducement inference was deducible among others, from several features of the case, after the preliminary questioning.

             The Magistrate  hardly give 20 min time to  the appellant for reflection before recording his confession, which was according to  the ruling of Court in Sarwan Singh  v. State of Punjab  the Magistrate should have  sent the accused back for at least 24hrs to jail  to think and to decide, whether or not he should make any confession and   there must be an actual reason to suspect that after recording the confession,  the appellant was handed back to the Police Superintendent who then took him to Hanumangarh.  If that be a fact, it would amount to a contravention of subsection (3) of Section 164 of the Code of  Criminal Procedure, 1973, giving rise to an inference that the confession was not considered to be valid.

Muthuswamy v. State of Madras A.I.R. 1954 S.C.47

  J. Bose observe that confession is a weak type of evidence. It cannot be accepted entirely as it is made by the person on is accused himself. The Supreme Court also held that as a matter of prudence, a court must not base a conviction for murder on a confession.

Pakala Narayan Swami v. Emperor

 the accused person confesses his guilt before the police and, and in front of Magistrate and during the trial he refused the court held that as there was no direct admission of guilt it would not amount to any confession.


It is much clear from the Pakla Narayan Swami case that confession refers to the direct acknowledgment of guilt. A confession which has been duly recorded and suffers from no legal infirmity can be used as a substantive piece of evidence against its maker though as a matter of prudence it must be corroborated by some other evidence. A confession which is voluntary and true can be acted upon that a confession which if free from any promise, threat or inducement.

A confession may include various parts, as well as it is not permissible according to law to admit one part of confession as evidence and remove the remaining part. The court is also bound to accept the entire confession as evidence. It is vital that the confessions must either be accepted as fully or dismissed as a whole, competency of the court is not included in a matter to accept only the inculpatory part while dismissing the exculpatory part as doubtful.


* Bare act on C.r.p.c. 

 *Bare act on The Indian Evidence Act 1872 *