-Aarushi Jain
Recently, the apex court in Tofan singh v. State of Tamil Nadu held that the horizons of Section 25 of the Indian Evidence Act, 1872 (hereinafter ‘IEA’) extend to the statements recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter ‘NDPS Act’). The definition of ‘police officer‘ under Section 25 IEA has now made an inroad into Section 53 of the NDPS Act, therefore, any confessional statement made by an accused in front of an NDPS officer is not admissible and no conviction can be based on it. The judgment acts as a boon for people implicated due to false confessions extracted by police through ill-treatment. It falls in line with the constitutional provisions of India: Article 20(3) of the Constitution, providing a right to the accused person not to be forced to be a witness against himself, and Article 21 of the Constitution, providing a right to life and liberty to all persons.
However, one crucial aspect that hasn’t been paid much heed to is the dissenting opinion of Justice Indira Banerjee. In it, emphasis was placed on the need for creating draconian statutes like the NDPS Act, which aim at imposing severe punishment on offenders. The provisions of such special statutes can, thus, be subjected to the general procedural codes only when substantial reasons exist for the same. Moreover, the minority opinion also pointed out the want of uniformity in the interpretation of the definition of ‘police officers‘ in different statutes over many years via multiple judgements. Considering that such points have not been considered by the majority, this view deserves an analysis from the perspective of diverse judicial precedents and Indian counterpart English legislations.
Defining ‘Police Officer’
Section 25 IEA states, “No confession made to a police officer shall be proved as against a person accused of any offence.” The primary test for calling an ordinary officer a police officer is to see whether the officer under a special statute has been conferred upon all the powers of investigation, including the power to prosecute. It is not enough to show that he exercises some or even many of the powers of a police officer investigating under the Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’). One of the first cases to decide on the definition of ‘police officer’ was the Barkat Ram case, which held investigation and the power to file a police report as important factors for testing whether an ‘officer’ passes the definition of a ‘police officer’ or not. Following it, multiple decisions held that ‘custom officer’, ‘NDPS officer’, and ‘excise officer’ do not qualify as ‘police officers’. One of the notable decisions include Baduku Joti case, where excise officers were held to have no power to file a police report, thus, the judgment did not recognise them as police officer under Section 25 IEA, mainly relying on the majority view in Barkat Ram. Conversely, the minority opinion in Barkat Ram also falls in the company of many cases, such as the Raja Ram Jaiswal case, which, emphasising the excise officer’s power to investigate like other police officers, upheld that they are covered under the definition of police. This displays an apparent judicial dilemma in including/excluding an ‘officer‘ from the definition of ‘police officer‘.
The minority opinion in the Tofan Singh case emphasised the point that the power to file a police report is now considered the sole deciding factor for including officers under the definition of police under Section 25 IEA, indicating a substantial shift of focus from power to ‘investigate’ to power to ‘file a police report‘. The point getting ignored here is that all police officers do not necessarily have the power to investigate and file a report under Section 173 of CrPC. For example:- “A police constable generally has no power to investigate a criminal offence, but nevertheless, a confession made before him would be inadmissible because he is a police officer. ” The real question is whether the powers conferred on any officer facilitate the extraction of confessions?
Inconsistent Distinctions
In his dissenting opinion in Barkat Ram , Justice Subba Rao voiced against the needless distinction drawn between the confessions given to police officers and under exactly similar circumstances to other officers. By virtue of Section 25 IEA, a presumption has been construed by the courts in favour of the accused that a taint of coercion exists in every confession made to a police officer. In sharp contrast to this, since no such presumption is drawn in favour of the ‘officers’ (not considered as police) when it comes to the special statutes, it allows such officers to resort to ill means, and base convictions solely based on extracted confessions. A complete exclusion of confession when given to police and a complete admissibility of the same confession when given to officers under other special statutes is inconsistent. This points out that the law, working on extremes, itself provides license to officers under special statutes to extract confessions via any means. It leads to different punishments for individuals accused under different legislations violating their right to equality enshrined under Article 14 of the constitution.
Adding to this, the original intent of bringing Section 25 IEA was to prevent the adoption of torture and coercion by police officers while extracting confessions. As per a report by Amnesty International, between 2009 – 2013, torture has been reported in at least three-quarters of the world, in 141 countries, and out of these, nearly half of the respondents feared custodial torture. While prima facie, the insertion of this section appears to be apt, a closer look reveals: creation of a separate section specially dedicated to ‘police officers‘ was not in fact necessary. Section 24 IEA applies to all ‘persons in authority’ extracting confessions from people, by using threat, inducement, or promise. The term ‘police officers’ could have easily been included within the definition of ‘persons in authority‘ under Section 24 IEA. In this sense, the formation of Section 25 IEA itself appears to be futile.
Cutting Down on the Role of Prosecution: An International Perspective
The root concern while adding Section 25 IEA pertained to doubts with respect to the credibility of confessions recorded by police officers. Presuming such confessions to be false and tainted rather than allowing courts to actively adjudge their reliability misses out on some significant aspects of the justice delivery system. The prosecution here does not get an opportunity to prove/disprove a confession; rather, an entire category of confessions is excluded from the purview of examination by making confessions under Section 25 IEA purely inadmissible. Comparing Indian law with English law on this facet, it can be seen that the latter examines the degree of credibility of evidence as a precondition to any test of admissibility. In the United Kingdom (hereinafter ‘UK’), Section 76 of the Police and Criminal Evidence Act 1984 (hereinafter ‘PACE) provides for an exclusion of confessions obtained by oppression but at the same time allows the prosecution to adduce facts discovered as a result of the confession which is similar to Section 27 IEA. The prosecutors under Section 78 of PACE are thus required to play an active role in examining the reliability of a confession, bringing out the potential breaches committed by police officers and subjecting them to the relevant provisions of the Code of Practice. The author here tries to highlight the futility of inserting Section 25 IEA, eliminating the crucial step of examination by the prosecutors. This matter, thus, deserves another look from the spectacles of an English perspective.
Conclusion
The present necessity is to maintain a balance between the power to ‘investigate‘ and the power to ‘file police report‘ while interpreting the definition of ‘police officers‘. There is a need to re-look at the legislative requirement for inserting Section 25 IEA and the inconsistent distinctions created via it. Moreover, the term ‘police officer’ should be included within ‘persons in authority’ (striking off the separate section: Section 25 IEA) and instead of drawing an inviolable rule, the credibility of the confessions must be determined on the basis of facts and circumstances. Taking lessons from the UK, the prosecution and courts must be provided with a fair opportunity to examine. In this regard, the recent decision of the apex court in Vijay Mandlal v. Union of India should be perceived as an apt illustration. It was held here that the bar under Section 25 IEA is applicable to the ED officers under the Prevention of Money Laundering Act, 2002 (hereinafter ‘PMLA’) only after arrest and not at the summons stage, and is to be decided on a ‘case-to-case basis’. Therefore, rather than excluding all the confessions recorded by the police officers as a rule of thumb, a case-to-case based analysis should be done. Law currently requires to maintain uniformity while reading Section 25 IEA in light of the special statutes.
[Aarushi Jain is a third-year undergraduate student pursuing B.A.LL.B (Hons.) from Dr. Ram Manohar Lohiya National Law University, Lucknow. She has a keen interest in procedural laws, human rights and dispute resolution.]
