-: [rti4empowerment] Confession before a Police Officer

Wednesday, December 15, 2010

[rti4empowerment] Confession before a Police Officer

Confession before a Police Officer

There are two issues that have remained in the realm of police discussion for long and have generated violent discussions but for certain reasons they have remained in limbo, without having reached the desirable results. I present them before along with my understanding, for ur guidelines.

The first of these issues is related with the Evidence Act that was framed in the year 1872 while the second is from the Code of Criminal Procedure, an act that was formulated in 1973, after suitably amending the previous Code of 1898.

I begin by presenting the two "great" sections of the Evidence Act that make it clear how much faith Law and justice seem to repose on Indian Police.

Section 25--Confession to police- officer not to be prove.- No confession made to a police- officer , shall be proved as against a person accused of any offence.

Section 26- Confession by accused while in custody of police not to be proved against him.- No confession made by any person whilst he is in the custody of a police- officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

A perusal of these two sections makes it amply clear that in the eyes of law and justice, any statement in the shape of confession made to a police officer in India does not have any value. Thus making any statement before a police officer is legally equivalent to having made no statement at all. So, a person, when in police custody or when being before a police officer can make any statement that he/she wants, can confess anything, can fool the police officer in any possible manner and can twist facts and figures in whatever manner suiting the accused. But once the accused is out of the police custody, he/she can immediately forget everything said before the police officer and that is the end of it. One can understand that such a position is not at all good for the delivery of justice. It makes the entire process of investigation before the police a big farce where a clever accused can easily play with the evidences, can befool the police men and can purposely misdirect the entire investigation. At other times, se/she will confess everything and will divulge the facts in their entirety but when being produced in the Court of law, the accused will deny everything with one flat No. Thus the entire exercise done by the police becomes a complete waste.

If we look at the legal position in USA, we find that it has something called the "Miranda warning" (or Miranda rights) which is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial interrogation) before they are interrogated to inform them about their constitutional rights. This came as result of the Supreme Court decision in Miranda v. Arizona, when the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel, and makes a knowing, intelligent and voluntary waiver of those rights. The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.

In the U.K. the law pertaining to custodial confessions is regulated by the Police and Criminal Evidence Act, 1984. Section 76(2) of the Act asserts that a confession will be admissible as evidence if the prosecution can prove beyond reasonable doubt that the confession was not obtained:
(a) by oppression of the person who made it; or
(b) in consequences of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him

In Australia, section 84 of the Evidence Act 1995 says-
Exclusion of admissions influenced by violence and certain other conduct
(1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by:
(a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or
(b) a threat of conduct of that kind.

Thus we see that most of the Western countries have provisions for believing in the confessions made by accused before the police officer. They prima-facie move from believing these statement to disbelieving them in cases where they feel there has either been threat or coercion or violence or oppression or inhuman or degrading conduct. But sadly in our case, from the very beginning we presume that any confession made before the police would invariably be through threat or coercion or violence or oppression or inhuman or degrading conduct, so that they need not be accepted or even considered by a Court of law.

I personally feel that such thinking needs to be changed if we are really serious about the image of Indian police. Any organization which is based fundamentally on distrust and is being blatantly disbelieved would never be treated respectfully by its citizen. Thus, while such an arrangement is not only coming in the way of proper investigation, adequate conviction and delivery of justice it is also making the entire police organization look suspicious and belittled. It gives a shady and ignoble look to the Indian Police. This is a situation which needs immediate rethinking. Removing such a provision of law seems to have become mandatory today.

Yes, it would certainly need an introduction of large number of conditionalities, ifs and buts,. These conditions, norms, warnings and due protections are certainly needed so that none of the two sides take advantage of the lack of such terms, conditions and due protections. But, when we take all these factors in consideration, it seems that the time has come to remove this big anomaly in the Indian criminal justice system, which is not only acting as a slur on the Indian police and Indian mentality but is also adversely affecting the deliverance of justice.