Section 23 BSA 2023: Confession to Police Officer

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 restricts proof of confessions made to police officers or while a person is in police custody, while preserving a limited rule for information that distinctly relates to a fact discovered.

Meaning and scope of Section 23

Section 23 is an evidentiary safeguard governing the admissibility of confessional statements connected with police officers and police custody. It does not merely regulate the weight of such a confession; it restricts the extent to which the prosecution may prove it against the accused.

1. Confession made to a police officer

Under Section 23(1), a confession made to a police officer cannot be proved against a person accused of an offence. The rule applies because the law treats police confessions with special caution and requires confessional evidence to satisfy safeguards prescribed by law.

2. Confession while in police custody

Section 23(2) separately provides that a confession made by a person while in police custody cannot be proved against that person unless it is made in the immediate presence of a Magistrate. The provision therefore focuses not only on the identity of the person receiving the confession but also on the condition of police custody.

3. Magistrate safeguard

The statutory exception refers to a confession made in the immediate presence of a Magistrate. The procedural safeguards for recording confessions during investigation are contained in the Bharatiya Nagarik Suraksha Sanhita, 2023. Under Section 183 BNSS, a Magistrate may record a confession subject to safeguards concerning voluntariness and warning the person that he is not bound to confess.

4. Discovery of fact proviso

The proviso creates a narrow exception. Where information supplied by an accused in police custody leads to the discovery of a fact, only that portion of the information which distinctly relates to the fact discovered may be proved. The entire statement does not automatically become admissible merely because some discovery follows.

What is a confession?

The BSA does not create a separate general definition of "confession" in Section 23. In evidence law, a confession is generally understood as a statement by an accused admitting the offence or substantially all the facts constituting the offence. Whether a particular statement is confessional depends on its substance and context.

Connection with Section 22 BSA

Section 22 BSA deals with confessions caused by inducement, threat, coercion or promise. Section 23 adds a distinct restriction concerning confessions made to police officers or during police custody. A confession may therefore raise separate questions under both provisions depending on the facts.

Practical effect in a criminal case

• A prosecution cannot ordinarily prove a confession merely because it was made to an investigating police officer.
• A confession made while the maker is in police custody is ordinarily excluded unless made in the immediate presence of a Magistrate.
• If custodial information leads to discovery of a fact, the admissible portion is confined to the part distinctly relating to that discovery.
• The court must examine the precise words sought to be proved and their direct connection with the discovered fact.
• Other rules governing relevance, voluntariness and proof may continue to apply.

Section 23 and the earlier Indian Evidence Act, 1872

Section 23 BSA brings together rules that were previously found principally in Sections 25, 26 and 27 of the Indian Evidence Act, 1872: the bar on police confessions, the restriction on custodial confessions, and the limited discovery rule. For proceedings governed by the BSA, the current provision should be cited as Section 23 of the Bharatiya Sakshya Adhiniyam, 2023.

Official text and commencement

The Bharatiya Sakshya Adhiniyam, 2023 is Central Act No. 47 of 2023. The Central Government appointed 1 July 2024 as the date on which the Act came into force.

Official text: India Code - Bharatiya Sakshya Adhiniyam, 2023.

Official commencement notification: Ministry of Home Affairs - Notification dated 23 February 2024.

Related BSA provisions

Read the surrounding provisions on admissions, confessions and relevant statements: Section 21, Section 22, Section 24, Section 25 and Section 26.