Law of Confessions Under the Bharatiya Sakshya Adhiniyam, 2023: Admissibility, Safeguards, and Evidentiary Value

Introduction

The implementation of India’s new criminal law framework marks a historic transition from colonial-era codes to a modernised jurisprudence. Central to this overhaul is the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaces the venerable Indian Evidence Act, 1872 (IEA). While the fundamental principles of evidence law remain rooted in constitutional guarantees and fairness, the structural consolidation and procedural alignment under the BSA require close examination by legal practitioners, litigants, and law enforcement agencies alike.

Among the most sensitive areas of criminal trial practice is the law surrounding confessions. A confession is an unequivocal admission of guilt by an accused person. Because an involuntary confession strikes at the heart of the right against self-incrimination guaranteed under Article 20(3) of the Constitution of India, evidence legislation must balance truth-seeking with rigorous safeguards against custodial coercion.

This article examines the statutory landscape of confessions under the Bharatiya Sakshya Adhiniyam, 2023, tracking changes from the Indian Evidence Act, evaluating police admissions, and outlining current procedural rights.

Statutory Framework of Confessions Under the BSA, 2023

Under the old Indian Evidence Act, provisions dealing with confessions were distributed across Sections 24 to 30. The Bharatiya Sakshya Adhiniyam, 2023 retains the core policy of excluding coerced or involuntary statements while consolidating these rules into a more coherent statutory sequence under Sections 22 to 26.

1. Confessions Induced by Threat, Promise, or Inducement (Section 22, BSA)

Corresponding to the erstwhile Section 24 of the IEA, Section 22 of the BSA dictates that a confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the Court to have been caused by any inducement, threat, or promise.

For a confession to be excluded under this section:

The threat, inducement, or promise must proceed from a person in authority (such as an investigating officer, magistrate, or employer).
It must relate to the charge against the accused.
It must give the accused grounds that appear reasonable to them that by confessing, they would gain an advantage or avoid an evil of a temporal nature in reference to the proceedings.

2. Confessions Made to Police Officers (Section 23(1), BSA)

India's criminal justice system has long operated on the statutory presumption that admissions extracted by police officers carry a structural risk of duress. Under Section 23(1) of the BSA (formerly Section 25 of the IEA):

No confession made to a police officer shall be proved as against a person accused of any offence.

This is an absolute bar. It applies regardless of whether the accused was in formal custody or merely detained for questioning at the time the statement was made to the police officer. Such statements cannot be entered into evidence to establish the guilt of the accused.

3. Confessions in Police Custody and the "Discovery" Doctrine (Section 23(2), BSA)

Section 23(2) of the BSA consolidates the rules formerly found in Sections 26 and 27 of the Indian Evidence Act.

General Rule: No confession made by any person whilst they are in the custody of a police officer shall be proved against them, unless it is made in the immediate presence of a Magistrate.
The Proviso (Discovery Rule): Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information—whether it amounts to a confession or not—as relates distinctly to the fact thereby discovered, may be proved.

This proviso retains the classic doctrine of confirmation by subsequent recovery. If an accused in custody states, "I hid the weapon of offence behind the pillar at the railway siding," the confessional acknowledgment of guilt remains inadmissible, but the specific portion of the statement leading directly to the physical recovery of the weapon remains admissible under Section 23(2).

4. Confessions Made After Removal of Impression (Section 24, BSA)

Under Section 24 of the BSA (formerly Section 28 of the IEA), if a confession is made after the impression caused by any inducement, threat, or promise has been fully removed in the opinion of the Court, it becomes relevant and admissible.

5. Confessions Made Under Promise of Secrecy or Deception (Section 25, BSA)

Corresponding to Section 29 of the IEA, Section 25 of the BSA clarifies that if a confession is otherwise relevant, it does not become irrelevant merely because it was made:

Under a promise of secrecy,
In consequence of a deception practiced on the accused,
When the accused was intoxicated, or
In answer to questions they need not have answered.

However, this rule does not override Section 22 or Section 23; if the statement was extracted via coercion or given to a police officer, it remains barred.

6. Consideration of Proved Confession Against Co-Accused (Section 26, BSA)

Under Section 26 of the BSA (formerly Section 30 of the IEA), when more persons than one are being tried jointly for the same offence, and a confession made by one of them affecting themselves and others is proved, the Court may take that confession into consideration as against such other person as well as against the person who made it.

It is settled criminal jurisprudence that a co-accused's confession cannot form the sole basis of conviction; it can only lend corroborative reassurance to an otherwise substantive prosecution case.

Recording Confessions Under the BNSS, 2023

A substantive confession under the BSA must be read alongside the procedural safeguards of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which replaces the Code of Criminal Procedure, 1973 (CrPC).

Under Section 183 of the BNSS (corresponding to Section 164 of the CrPC):

Any Magistrate (Metropolitan or Judicial) may record a confession or statement made to them in the course of an investigation.
Before recording, the Magistrate must explain to the person that they are not bound to make a confession and that if they do so, it may be used as evidence against them.
The Magistrate must satisfy themselves that the confession is being made voluntarily.
Section 183 of the BNSS explicitly permits the recording of confessions and statements through audio-video electronic means, modernising evidence capture and curbing allegations of physical manipulation.

If the accused, at any point before the confession is recorded, states that they are not willing to make a confession, the Magistrate cannot authorise their detention in police custody.

Judicial vs. Extra-Judicial Confessions

Indian evidence law draws a firm line between judicial and extra-judicial confessions:

Feature	Judicial Confession	Extra-Judicial Confession
Authority	Made before a Magistrate under Section 183 BNSS.	Made to a private individual, village elder, doctor, or associate.
Evidentiary Value	Carries high evidentiary value if recorded after strict statutory warnings.	Considered weak evidence; requires independent corroboration.
Scrutiny	Examined for compliance with mandatory statutory procedure.	Scrutinised for the credibility of the witness who recounts it, motive, and surrounding context.

Strategic Rights of the Accused

For an accused facing criminal investigation in Mumbai, Thane, or Navi Mumbai, asserting constitutional and statutory protections during remand is critical:

Refusal to Confess: An accused cannot be compelled to sign pre-drafted statements prepared by investigating agencies.
Medical Examinations: Under the BNSS, regular medical examinations provide a contemporaneous paper trail against physical abuse.
Legal Representation: The right to consult an advocate of choice during interrogation and remand hearings is a vital barrier against coerced admissions.

Frequently Asked Questions (FAQs)

1. Is a confession written in a police diary admissible under the BSA?

No. Under Section 23(1) of the BSA, any confession made to a police officer is completely inadmissible against the accused. Entries in police station diaries or panchnamas reflecting guilt cannot be treated as substantive evidence.

2. Can a discovery statement under Section 23(2) of the BSA prove the entire crime?

No. Only the specific portion of information that leads distinctly to the discovery of a concealed fact (such as a weapon, stolen property, or document) is admissible. The admission of having committed the offence remains excluded.

3. Does an extra-judicial confession alone guarantee a conviction?

Courts view extra-judicial confessions with inherent caution. Unless the testimony of the person to whom the confession was made inspires complete confidence and is corroborated by material circumstances, courts generally decline to convict solely on an extra-judicial confession.

4. What changes did BSA make to Section 27 of the Indian Evidence Act?

The core substance of the discovery rule has been preserved, but it has been placed as a proviso to Section 23(2) of the BSA, streamlining the provisions governing custodial statements.

Conclusion & Legal Assistance

The transition to the Bharatiya Sakshya Adhiniyam, 2023 reinforces the foundational balance between effective criminal investigations and the fundamental rights of the accused. Navigating confession law, discovery statements, and magistrate recordings requires rigorous scrutiny of procedural compliance from the very first remand hearing.

If you or your family require strategic criminal defense, bail representation, or advice on proceedings under the BNS, BNSS, and BSA, contact APS Law. Our advocates represent clients across trial courts, sessions courts, and the Bombay High Court, serving Mumbai, Thane, and Mira Road.