Evidentiary value of confession before police versus magistrate


Concept Of Confession In Indian Jurisprudence

Lord Stephen defined the term confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime [1].  In the Indian Evidence Act, confession appears for the first in section 24 which states that a confession made an accused person can be regarded as irrelevant in a criminal proceeding, if the confession has been caused by a form of inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority.

Thus, a confession is considered as a weak kind of evidence as it has a capacity to be fabricated by the person in authority and mislead the court. Therefore, it is advisable that the court shall not deliver judgment solely based on confession [2].  

It shall be pertinent to note that a confession must either admit in terms of the offense or at any rate substantially all the facts which constitute the offense. An admission of gravely incriminating fact, even a conclusively incriminating fact is not in itself a confession [3].

Also, the fact that the confession contains various parts, it shall not be correct to admit only a part of the confession and eliminate the rest. Therefore, the court is bound to admit the whole confession as evidence. This view was changed in the case of Nishi Kant Jha v. State of Bihar, the Apex Court observed that relying on the relevant part of the confession and rejecting the rest because there is enough amount of evidence established shall not be considered wrong or cause obstruction to justice.

In such cases, in order to avoid any ambiguity confession is classified into two parts i.e. first, the inculpatory confession which determines the substantive piece of evidence as the accused admits his guilt and the second is the exculpatory confession which aids the accused in absolving from his liability but requires corroboration for being admissible.

Forms of confession

There can be any form of confession. In cases where the accused admits its guilt directly before the court of record, it shall be considered as judicial confession whereas when a confession made to any person out of court including a police officer, then it is considered as an extra-judicial confession.

In the case of Sahoo V. State of the U.P, the accused stated that due to the continuous quarrels between him and the deceased, he killed and revealed it through a statement where he stated that “with her ends the daily quarrels”. The court held that the statement to be a judicial confession and relevant and it is not necessary that it should be communicated to some other person.

In Pakala Narayan Swami v. Emperor (1939) 41 BOMLR 428, the accused admitted his guilt before the police officer but later on turned hostile before the Magistrate, it was held that it will not amount to confession as there is no admission of the guilt established.

Distinguish between evidentiary value of confession before police and magistrate

In case of confession made to police under section 25 of the Indian Evidence Act explains that any kind of confession made before the police officer shall not be held against the accused of any offence. Further, any confession made by the accused whilst he is in the custody of a police officer shall not be proved against him unless it is made in the immediate presence of the magistrate as per section 26 of the Indian Evidence act. Therefore, a confession made in the first information report shall be excluded as hit by section 25.

A question always arises regarding confession when it’s proved and declared relevant and that is whether it has evidentiary value. The guideline in determining the evidentiary value of a confession can be traced out from various judicial decisions.

In Birey Singh v. State AIR 1953 All 785, it was observed that there is always a question as to whether a conviction can be based solely upon extra-judicial confession but in case of judicial confession conviction can be made without hesitation. There is a great level of caution that needs to apply when receiving extra-judicial confessions.

The guideline relating to rule of caution was provided in the case Wakil Navak  v. State of Bihar where it was observed that before the court proceeds with the extra-judicial confession it has to also keep in view with the circumstance under which the statements were made and the person who gave the statements shall also be considered by following two rules relating to caution. First, careful examination of the evidence of confession in order to determine whether it is reliable or not and second, whether it is corroborated with the material facts of the case.

In the case of Balbir Singh v. State of Punjab 58 Cr. L.J. 481. , the amount of corroboration required is been discussed, where it was stated that it not necessary that each and every circumstance mention in the statement with regard to the accused person in the crime must be separately corroborated. If such rule is made mandatory then the whole rule would be meaningless as independent evidence itself can be sufficient for proving conviction.

As discussed earlier the confession is a weak form of evidence it is therefore recommended that even judicial confessions shall seek corroboration [4].

In Thima and Thima Raju v State of Mysore A.I.R. 1971 S.C. 1871, it was observed that probative value of confession made before the police officer shall depend on various external factors such character of the person giving the confession, time and place of making it and circumstance in which such statements were made.

Therefore in the case of the State of Karnataka v. A.B. Nag Raj, it was held since the alleged extra-judicial confession was given in a forest office without any presence of the witness it cannot be relied upon.

In Guramma v. State of Mysore, it was well explained that the confession made to the police does not stand in par with the confession made to Magistrate. As in the case of confession made to Magistrate, the court scrutinize the statements carefully in order to verify whether it was given under pressure or threat whereas in case of extra-judicial confession there are no such safeguards. It is because of this obstruction law insisted that as far as the extra-judicial confession is concerned it should be made before a Magistrate with material corroboration with establishes an unquestionable connection of the accused with the offense.

Thus, the introduction of section 164 of the Criminal Procedure Code aims to provide a method deriving a reliable statement in the record made before police during the investigation process which is recorded by a Magistrate can defy section 25 of the Indian Evidence Act and can be used as admissible evidence in a trial proceeding.


The evidentiary value of the confession is depended on the character of the confessor and circumstance in which it was made. This is essentially required in cases where confession is made before the police. Such confession is considered as an extra-judicial confession which is presumed that it can be suffered from fabrications and thus by the four-folds of section 25 it is inadmissible in court. Therefore, section 164 of Criminal Procedure Code, which states that in order to secure the confession as reliable evidence made by the accused before the police and it is required to be made in presence of the Magistrate which shall be reduced in writing and signed to certify the circumstance under which it has taken were genuine and safeguards the importance of the confession. It shall also be pertinent to note the court has the duty to scrutinize the confession with precision and corroborate it with material facts of the concerned case in order to form a base for conviction of the accused.

Edited by Pushpamrita Roy

Approved & Published – Sakshi Raje 


1. Digest of law of evidence

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

3. Pakala Narayan Swami v Emperor (1939) 41 BOMLR 428

4. SubramaniaGounden v. State of Madras. A.I.R. 1958 S.C. 66

5. Indian evidence Act , 1872

6.Criminal Procedure Code , 1973