Confession under Bharatiya Sakshya Adhiniyam, 2023 (BSA)

Introduction 

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs confessions through Sections 22-28, balancing criminal investigation needs with individual rights protection. The law emphasizes voluntariness while recognizing the evidentiary value of genuine admissions in criminal proceedings. 

The Foundational Maxim: Nemo Tenetur Se Ipsum Accusare 

• This principle ("no one is bound to accuse himself") underpins BSA's confession framework. It protects against self-incrimination, ensuring confessions are voluntary rather than coerced. 
• This aligns with Article 20(3) of the Indian Constitution, guaranteeing that accused persons cannot be compelled to testify against themselves. 

Types of Confessions 

• Judicial Confession: Made before a magistrate or in court, recorded under Section 183 of BNSS. Highly reliable due to judicial oversight. 
• Extra-Judicial Confession: Made outside court to any person. Admissibility depends on voluntariness and corroboration. 
• Custodial Confession: Made in police custody. Generally inadmissible due to the coercive atmosphere. 
• Confession Leading to Discovery: Results in discovering relevant facts like evidence recovery. Partially admissible under specific conditions. 
• Co-Accused's Confession: One accused implicating others in joint trials. Admissible if corroborated. 
• Retracted Confession: Initially made but later withdrawn. Requires careful analysis of voluntariness and corroboration. 

Confession under BSA 

Section 22: Confession caused by inducement, threat, coercion or promise, when irrelevant in criminal proceeding:  

A confession made by an accused individual shall be deemed inadmissible in criminal proceedings when the court determines that such confession was obtained through: 

• Inducements, threats, coercion, or promises. 
• Actions by persons in authority that relate to the charges. 
• Circumstances that would reasonably lead the accused to believe that confessing would result in personal benefit or help them avoid harm. 

Primary Exception: If the court finds that any negative influence has been completely eliminated before the confession was made, then such confession becomes admissible. 

Secondary Exception: A confession that is otherwise legally relevant does not lose its admissibility simply because it was: 

• Made under assurance of confidentiality. 
• Obtained through deception of the accused. 
• Made while the accused was intoxicated. 
• Given in response to questions, the accused was not obligated to answer. 
• Made without proper warning about the right to remain silent or potential use as evidence.

Section 23: Confession to police officer: 

Subsection (1): Prohibition of Police Confessions 

• Confessions made directly to police officers cannot be presented as evidence against any accused person in legal proceedings. 

Subsection (2): Confessions During Police Custody 

• Confessions made by individuals while in police custody are inadmissible unless made directly in the presence of a Magistrate. 

Exception for Discovered Evidence: When facts are revealed as a result of information provided by an accused person in police custody, only the specific portion of that information directly related to the discovered facts may be admitted as evidence, regardless of whether it constitutes a confession.

Section 24: Consideration of proved confession affecting person making it and others jointly under trial for same offence: 

When multiple defendants are tried together for the same offense, and one defendant makes a confession that implicates both themselves and co-defendants, the court may consider such confession as evidence against all implicated parties, including those who did not make the confession. 

• Explanation I: The term "offense" encompasses the actual crime, attempts to commit the crime, and assistance in committing the crime. 
• Explanation II: Trials conducted in the absence of accused persons who have fled or failed to respond to legal summons under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, are considered joint trials for the application of this provision. 

Admissibility of Confessions 

• Voluntariness is Essential: A confession's admissibility hinges on its voluntariness. The BSA, 2023, emphasizes that a confession must be made free from inducement, threat, or coercion.  
• Strict Police Restrictions: The BSA places strict limitations on the admissibility of confessions. Any confession made to a police officer is outright inadmissible. Confessions made while in police custody are also generally inadmissible unless recorded in the immediate presence of a Magistrate. 
• Discovery Exception: The proviso attached to Section 23 is, a controlling section and furnishes an exception to the rule of excluding the confession. It lays down that a confession is admissible if it leads to the discovery of some fact. 
• Co-accused Provision: Section 24 allows the court to consider a confession made by one person jointly tried for the same offense affecting others being tried together. 

Conclusion 

The BSA reinforces confession law by codifying precedents and emphasizing voluntariness in line with constitutional principles. While it provides strong procedural safeguards, challenges remain in implementation, including custodial coercion and inconsistent handling of retracted confessions. Effective implementation requires police training, judicial consistency, and public awareness of rights.