Retraction Of statements and confessions

Introduction

A Confession is an admission made by a person charged with a crime at any time stating or suggesting the inference that he committed that crime. Confession is received in criminal cases upon the principle that a person will not  make an untrue statement against his own interest. Confession may be divided into two categories; judicial confession and extra-judicial confession. 

• Judicial confessions are those confessions which are made before a Magistrate or in Court in the due course of legal proceedings.
• Extra-judicial confessions are those confessions which are made by the accused anywhere other than before a Magistrate or in Court and extrajudicial confession can be made to any particular person or to a group of persons.

The term confession has not been defined in the Indian Evidence Act, 1872 and it attains its first appearance in section 24 of the Indian Evidence Act.

Sections 24, 25, 26 and part of Section 27 of the Indian Evidence Act, 1872 deals with irrelevant confession. Apart from Section 27, relevant confessions have been dealt with under Sections 28, 29 and 30 of the Indian Evidence Act, 1872.

Evolving of the concept of retraction of statements and confession basically comes from the Article 20(3) of the constitution which states, ‘No person accused of any offence shall be compelled to be a witness against himself’.

A retracted confession is a confession voluntarily made by a person and subsequently retracted. The credibility of such a confession is a matter to be decided by the court according to the facts and circumstances of each case and if the court is of the opinion that such confession is proved; the court is bound to act upon it so far as the person making the confession is concerned. The retracted confession may also form the basis of conviction and punishment if it is believed to be true and voluntary.

Retracted confession can also be used against the person making it if it is supported by independent and corroborative evidence. In the case of Pyare Lal v. State of Rajasthan. The Supreme Court held that a retracted form of confession can form the basis of a conviction if and only if the Court is satisfied that it was true and was made voluntarily.

Relevant and specific Provisions

Section 24 made all the confessions made by an accused under any form of inducement by the means of either threat or promise from any person as irrelevant in any criminal proceeding. It was held in the case State of Punjab v. Gurdeep Singh that if the circumstances are such that the Courts believe the witness and are satisfied that such a confession is made on a voluntary basis, an order of conviction can be found on the same.

 

The conditions of irrelevance under section 24 of Indian Evidence Act, 1872 are as follows:

1. a) The confession must be a result of inducement or a threat or a promise;
2. b) Inducement, etc. should proceed from a person in authority;
3. c) It should be relating to the charge that is in question;
4. d) It should obtain a worldly benefit or any form of disadvantage

 

The Confession must be a result of inducement or threat or a promise.

A confession will justly be admitted if and only if it is voluntary and any confession that is obtained by the means of a threat, promise or inducement cannot be admitted. An inducement to confess may be upon a promise of pardon. A promise or threat made to one accused will not render a confession made by another, who was present and heard the inducement, irrelevant.

 

Person in the authority

The particular inducement or threat caused must flow from a person who has authority. This refers to the government officials who are having a particular authority due to their position in the services. Every government official is the person who is capable of influencing the course of prosecution.

 

A confession is made relevant even it is obtained in the following circumstances:

1. On promising the accused that the information obtained will be kept a secret or that it will not be used against him 

It may be recalled that an admission made in a civil case under promise that evidence of it shall not be given is not relevant, (Section 23) the policy being that litigants should be encouraged to compromise their differences. That policy has no relevance to criminal cases because here the public interest lies in prosecuting criminals and not compromising with them. Consequently, therefore, where an accused person is persuaded to confess by assuring him of the secrecy of his statements, the confession is nevertheless relevant.

1. By practicing a deception on the accused for the purpose of obtaining his confession

When the confession is the outcome of a fraud being played with the accused, it stands relevant. Thus, where the two accused persons were left in a room where they thought they were all alone, but secret tape recorders were recording their conversation, the confessions thus recorded were held to be relevant. Similarly, where an accused was persuaded to submit for a medical examination for an innocent purpose which was in fact conducted for criminal purpose, his statements to the doctor and the doctors report were held to be relevant at the discretion of the Court. A confession secured by intercepting and opening a letter has also been held to be relevant.

 

1. Circumstances when the accused was drunk

A confession obtained by intoxicating the accused is equally relevant. The law is concerned to see that the confession is free and voluntary and if this is so it does not matter that the accused confessed under the influence of drink. According to the English practice the judge will have discretion in the matter.

 

Section 30 deals with the consideration of proven confession affecting the person making it and others jointly under for the same trial for the same offence. It provides that When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such person is proved, the court may take into consideration such confession as against such other persons as well as against person who make such confession.

 

 In Reference to the case of State of Maharashtra v. Mohd. Ajmal Mohd. Amir Kasab,

The courts held that it is safe to place reliance on retracted confessions if it can be established that the confession is true and has been made voluntarily. It is also important to keep in mind that the confession has been corroborated sufficiently. The courts have the power to discard the exculpatory facts and consider the inculpatory facts.

 

The courts laid down the following essential principles:

1. A confession can be acted upon only if the court is satisfied that it is true and has been made voluntarily.
2. The confession must stand true to the facts and should not counter it.
3. It is a rule of judiciousness as to not base a conviction on the basis of a confession that has not been corroborated.

 

Retraction of Statement made under the Customs Act or Income tax act

Statement Under Section 108 of Customs Act, 1962 is an admissible piece of evidence before court of law. Section 108 is a machinery section to gather evidence in case of violations/offence under Customs Act. The power of recording of statements and calling for documents is vested in Officers not lower than the rank of Superintendent and Appraiser (AO in short) in rank. Whoever is found involved in violation of customs law, his/ her statement can be recorded to gather evidence in order to bring the guilty home. 

Section 108 of the customs Act states that, 

(1).Any gazetted officer of customs duly empowered by the Central Government on this behalf, shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.]

(2).A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned.

 

     Retraction or rebuttal of earlier statements/admitted facts can, inter alia, be:

• In the form of statement which is recorded later on ; or
• In the form of a letter; or
• In the form of an affidavit filed.

It is a settled situation of law that affirmation made by the assessee u/s 132(4) is a significant piece of proof however the equivalent isn’t convincing. It is available to the assessee who made the admission to show that it is erroneous and the equivalent is given under mixed up conviction of actuality or law. 

 

• In the case of Jyotichand Bhaichand Saraf and Sons (P.) Ltd. v DCIT ,the Hon’ble ITAT Pune held that however It is a settled position that confession made by assessee under area 132(4) of the IT Act is a significant piece of proof yet the equivalent isn’t decisive. It is available to the assessee who made the admission to show that it is wrong and the equivalent is given under mixed up conviction of truth or law.

 

• In the case of Union of India v. Kisan Ratan Singh,

K.R. Shriram, J. observed, “If I have to simply accept the statement recorded under Section 108 as gospel truth and without any corroboration, I ask myself another question, as to why should anyone then go through a trial. The moment the Customs authorities recorded the statement under section 108, in which the accused confessed about his involvement in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial.”

The Court also reiterated that in absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. 

• It was observed in Haroom Hazi Abdulla v. State of Maharashtra that a “retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false.” There was a further observation that; retracted confession is a weak link against the maker and more so against a co-accused.” 
•  In the case of  K.I. Pavunny v. Asst. Collector (HQ) Central Excise Collectorate, Cochin the Supreme Court held:

 

“Even though the Customs officers have been invested with many of the powers which an officer in charge of a police station exercises while investigating a cognisable offence, they do not, thereby, become police officers within the meaning of Section 25 of the Evidence Act and so the confessional statements made by the accused persons to Customs officials would be admissible in evidence against them.

• In Bharat vs. State of U.P.. Hidayatullah, C.J., speaking for a three-Judge Bench observed thus: 

“Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after-thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after-thought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Gounden v. The State of Madras.”

In case of Satinder Kumar , their lordships held that it is true that an admission made by an assessee constitutes a relevant piece of evidence but if the assessee contends that in making the admission he had proceeded on a mistaken understanding or on misconception of facts or on untrue facts such an admission cannot be relied upon without first considering the aforesaid contention.

Conclusion

Retraction of statements and confession is a result of Article 20(3) and thus, if the         accused is retracting the statements or any confession within the stipulated time period according to the  set provisions then it should be validated and considered. A retracted statement under Section 132(4) of the Act would require some corroborative material for the AO(Officers not lower than rank of Superintendent and Appraiser) to proceed to make additions on the basis of such statement.

From the standards of law set down as references thus above, it could be derived that admission is one significant piece of proof however it can’t be said that it is definitive. It is rebuttable. It is available to an assessee who made an admission to set up that the admission was involuntary and the equivalent was extricated under pressure and coercion.

Of course, where the retraction is not for any convincing reason, or where it is not shown by the Assessee that he was under some coercion to make the statement in the first place, or where the retraction is not followed by the Assessee producing material to substantiate his defense, the AO(Officers not lower than rank of Superintendent and Appraiser ) might be justified in make additions on the basis of the retracted statement. And thus, confessions and statements, whether retracted or not; should always result in the justice for all because justice is a Right and not a privilege. 

Author: Pooja Shukla

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi