Section 23 BSA: Confession to Police Officer

Section 23 BSA excludes confessions made to police officers and restricts the use of confessions made in police custody, subject to the statutory exception for facts discovered.

Introduction

Confessions are significant evidence in criminal proceedings because they may contain statements admitting the commission of an offence. However, the law imposes specific restrictions on the use of confessions made to police officers or while an accused person is in police custody.

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) establishes these restrictions. Subsection (1) prohibits proving a confession made to a police officer against a person accused of an offence. Subsection (2) separately prohibits proving a confession made by a person in police custody unless it is made in the immediate presence of a Magistrate.

The section also contains an important proviso concerning the discovery of facts. When a fact is discovered in consequence of information received from an accused person in police custody, the portion of that information that relates distinctly to the fact discovered may be proved.

These rules are designed to prevent reliance on police confessions while preserving the evidentiary value of information that leads to a relevant discovery. For law students and judiciary aspirants, Section 23 is particularly important for understanding the distinction between a confession, a disclosure statement and the limited information admissible under the discovery exception.

Bare Act: Section 23 BSA

23. Confession to police officer.—

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

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

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 discovered, may be proved.

Source: Section 23, Bharatiya Sakshya Adhiniyam, 2023.

Meaning of Section 23 BSA

Section 23 establishes two separate restrictions on proving confessions in criminal proceedings.

The first restriction applies to a confession made to a police officer. The second applies to a confession made while a person is in police custody, even when the statement is made to someone other than a police officer.

The section also recognises a limited exception for information that leads to the discovery of a fact.

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 prohibition is not limited to confessions made during formal interrogation. It also covers a confession made to a police officer before an investigation begins or when the accused is not in police custody.

For example, if A voluntarily goes to a police station and tells an officer that A committed a theft, the confession cannot ordinarily be proved against A merely because A made the statement voluntarily.

The rule applies because the statutory prohibition concerns the recipient of the confession, not simply whether the accused was under arrest.

2. Confession made while in police custody

Section 23(2) addresses a different situation. It prohibits proving a confession made by any person while in the custody of a police officer unless it is made in the immediate presence of a Magistrate.

This restriction applies even when the confession is made to a private individual rather than directly to a police officer.

For example, if A is in police custody and confesses to a friend who visits the police station, the confession cannot ordinarily be proved against A under Section 23(2), unless the statutory condition concerning the immediate presence of a Magistrate is satisfied.

The two restrictions must be distinguished: a confession made to a police officer is prohibited under subsection (1), while subsection (2) concerns a confession made in police custody.

3. Discovery of a fact

The proviso to Section 23 creates a limited exception. When a fact is discovered in consequence of information received from an accused person in police custody, the portion of the information that relates distinctly to the fact discovered may be proved.

The exception does not make the entire disclosure statement admissible. Only the portion distinctly related to the fact discovered can be proved under the proviso.

For example, A is in police custody in connection with a murder investigation. A tells the investigating officer where a concealed weapon is located. The officer follows the information and discovers the weapon at that location.

The portion of A’s information that distinctly relates to the discovery may be proved, subject to the statutory requirements. Any accompanying confession that A committed the murder does not become admissible merely because the weapon was discovered.

Also Read: Section 24 BSA: Consideration of Proved Confession Affecting Person Making It and Others Jointly Under Trial

Essential Elements of Section 23 BSA

1. The statement must be a confession for the confession-specific prohibition

The section expressly deals with confessions. Whether a statement amounts to a confession depends on its substance and context.

A statement admitting a limited fact is not necessarily a confession of the offence. Courts examine whether the statement admits guilt or substantially admits the commission of the offence.

2. The recipient matters under subsection (1)

Section 23(1) applies when the confession is made to a police officer. The prohibition does not depend on whether the person was in custody at the time.

3. Custody matters under subsection (2)

Section 23(2) applies when the confession is made while the person is in police custody. The recipient may be someone other than a police officer.

4. The immediate presence of a Magistrate is relevant under subsection (2)

The statutory exception in subsection (2) concerns a confession made in the immediate presence of a Magistrate.

However, this does not override subsection (1). A confession made to a police officer remains subject to the prohibition under subsection (1), even if the accused is not in custody.

5. The discovery exception is limited

The proviso applies only to the part of the information that relates distinctly to the fact discovered. It does not make the whole statement admissible or automatically establish the accused’s guilt.

Difference Between Section 23(1) and Section 23(2)

Basis	Section 23(1)	Section 23(2)
Main restriction	Confession made to a police officer	Confession made while in police custody
Does custody have to be established?	No	Yes
Does the recipient have to be a police officer?	Yes	No
Express statutory qualification	The discovery proviso appears after subsection (2)	Confession made in the immediate presence of a Magistrate is outside the subsection’s prohibition
Example	An accused confesses to a police officer before arrest	An accused in police custody confesses to a visiting friend

The distinction is important because the two subsections operate on different grounds. The discovery proviso must also be read with the relevant statutory restriction.

The Discovery Exception Under Section 23 BSA

The proviso to Section 23 is commonly associated with the principle of discovery of facts. It permits the use of a limited part of information supplied by an accused person in police custody when that information leads to the discovery of a fact.

Conditions for applying the discovery exception

The following requirements are important:

1. The information must be received from a person accused of an offence.
2. The person must be in police custody when the information is received.
3. A fact must be discovered in consequence of that information.
4. The information sought to be proved must relate distinctly to the fact discovered.

These requirements prevent the exception from being used to introduce an entire confession under the guise of a discovery statement.

What does “fact discovered” mean?

The expression is not necessarily limited to the physical object recovered. The discovery may involve the existence of a fact, including the location of an object or the accused’s knowledge of that location, depending on the circumstances.

The court must examine what was actually discovered and whether the information sought to be proved relates distinctly to that discovery.

Example: Recovery of a stolen object

A is arrested in connection with a theft. While in police custody, A informs the investigating officer that a stolen watch is concealed inside a particular storage box. The officer follows the information and recovers the watch from that location.

The portion of A’s statement that distinctly relates to the discovery of the watch may be admissible under the proviso.

If A also states, “I stole the watch from B’s house,” that additional assertion of guilt does not automatically become admissible merely because the watch was recovered.

Example: Information that produces no discovery

A tells the police that a stolen necklace is hidden in a particular location. The police search that location but find nothing.

If no fact is discovered in consequence of the information, the discovery exception cannot be invoked merely because A supplied information. The admissibility of any other statement must be assessed under the applicable provisions.

Why is the exception limited?

The exception balances two objectives: preventing the use of prohibited confessions while permitting the prosecution to prove information that demonstrably leads to a relevant discovery.

It does not convert a police disclosure statement into a confession admissible in its entirety.

Relevant Case Laws on Confessions to Police Officers

Section 23 BSA substantially corresponds to Sections 25, 26 and 27 of the Indian Evidence Act, 1872. The following decisions concern the former Act and help explain the principles underlying the current provision.

1. Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

Legal principle: The Supreme Court held that a confessional First Information Report made by an accused to a police officer was barred under Section 25 of the former Evidence Act. The prohibition extended to the confessional statement and the incriminating admissions forming part of it, subject to the applicable statutory exceptions.

Relevance to Section 23: The case explains the broad prohibition against proving a confession made to a police officer. The prosecution cannot ordinarily separate the incriminating portions of a prohibited confession and introduce them as independent admissions merely because they appear in the same statement.

The Court also recognised the limited operation of the discovery exception under the former Section 27.

2. Pakala Narayana Swami v. Emperor, AIR 1939 PC 47

Legal principle: The Privy Council explained the distinction between a confession and a statement that merely contains an admission of an incriminating fact.

Also Read: Section 22 BSA: Confession Caused by Inducement, Threat, Coercion or Promise

Relevance to Section 23: The decision is useful for understanding why the character of a statement matters. Courts must determine whether a statement amounts to a confession rather than assuming that every incriminating statement is a confession.

3. Khatri Hemraj Amulakh v. State of Gujarat, (1972) 3 SCC 671

Legal principle: The Supreme Court considered the admissibility of information leading to discovery under Section 27 of the former Evidence Act.

Relevance to Section 23: The decision helps explain the limited scope of the discovery exception. Only the portion of the information that satisfies the statutory requirement concerning the fact discovered may be proved; the exception does not permit unrestricted use of a confession made to the police.

4. State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125

Legal principle: The Supreme Court considered the constitutional validity and operation of Section 27 of the former Evidence Act, including its relationship with the restrictions on confessions made in police custody.

Relevance to Section 23: The judgment provides important background for understanding the discovery exception. It explains why information leading to a discovery may be treated differently from a confession that is otherwise prohibited.

Legal clarification: These judgments interpret the former Indian Evidence Act. They are relevant to the corresponding principles under Section 23 BSA but are not direct judgments interpreting the new section.

Relationship Between Section 23 and Other BSA Provisions

Provision	Subject	Relevance
Section 22	Confession caused by inducement, threat, coercion or promise	Excludes confessions obtained through specified improper influence.
Section 23	Confession to police officer	Prohibits proving police confessions and restricts confessions made in police custody, subject to the statutory discovery exception.
Section 24	Consideration of proved confession affecting person making it and others jointly under trial for same offence	Governs the court’s consideration of a proved confession affecting its maker and another person jointly tried for the same offence, subject to statutory conditions.

Section 23 and Section 22

Section 22 addresses confessions caused by specified forms of improper influence. Section 23 addresses confessions made to police officers and confessions made in police custody.

A confession may be affected by both provisions. Even if a statement does not satisfy the exclusion test under Section 22, it may still be prohibited under Section 23.

Section 23 and Section 24

Section 24 deals with the court’s consideration of a proved confession affecting its maker and another person jointly tried for the same offence.

The fact that a confession may be considered under Section 24 does not make a confession prohibited by Section 23 admissible. The relevant restrictions on admissibility must be satisfied first.

Corresponding Provisions Under the Indian Evidence Act, 1872

Section 23 BSA corresponds substantially to three provisions of the former Indian Evidence Act, 1872.

BSA provision	Corresponding former provision	Subject
Section 23(1)	Section 25	Confession to police officer
Section 23(2)	Section 26	Confession made while in police custody
Proviso to Section 23(2)	Section 27	Limited admissibility of information leading to discovery

The core principles remain substantially the same. The discovery exception continues to permit proof only of the information that relates distinctly to the fact discovered.

The Indian Evidence Act, 1872 was repealed by Section 170 of the BSA, subject to the applicable savings provisions. The BSA came into force on 1 July 2024. The applicable statute must be determined by examining the commencement and savings provisions in the circumstances of the particular proceeding.

Important Points for Law School and Judiciary Examinations

• Section 23 BSA deals with confessions to police officers and confessions made in police custody.
• Section 23(1) prohibits proving a confession made to a police officer against a person accused of an offence.
• Section 23(2) prohibits proving a confession made in police custody unless it is made in the immediate presence of a Magistrate.
• The discovery proviso permits proof only of the information that relates distinctly to the fact discovered.
• The entire disclosure statement does not become admissible merely because an object is recovered.
• Section 23(1) and Section 23(2) operate on different grounds.
• The discovery exception must be distinguished from the general prohibition on police confessions.
• Section 23 corresponds substantially to Sections 25, 26 and 27 of the former Indian Evidence Act, 1872.
• Aghnoo Nagesia v. State of Bihar is an important authority on the prohibition against proving confessions made to police officers.
• Pakala Narayana Swami v. Emperor is important for understanding the distinction between a confession and an admission of an incriminating fact.

Frequently Asked Questions (FAQs)

1. What is Section 23 of the Bharatiya Sakshya Adhiniyam, 2023?

Section 23 governs confessions made to police officers and confessions made while a person is in police custody. It prohibits proving such confessions in the circumstances specified in the section, subject to the statutory exception for information relating distinctly to a fact discovered.

2. Can a confession made directly to a police officer be used against the accused?

Ordinarily, no. Section 23(1) prohibits proving a confession made to a police officer against a person accused of an offence.

3. What happens when a person confesses while in police custody?

Under Section 23(2), the confession cannot be proved against that person unless it is made in the immediate presence of a Magistrate, subject to the provision’s wording and the other applicable statutory rules.

4. What is the discovery exception under Section 23?

The proviso permits proof of the portion of information received from an accused person in police custody that relates distinctly to a fact discovered in consequence of that information.

5. Is the entire disclosure statement admissible if the police recover an object?

No. Only the portion that relates distinctly to the fact discovered may be proved under the discovery proviso. Any additional confession of guilt does not automatically become admissible.

6. What is the difference between Section 23(1) and Section 23(2)?

Section 23(1) concerns the recipient of the confession: a police officer. Section 23(2) concerns the circumstances in which the confession was made: police custody. The second subsection may apply even when the recipient is not a police officer.

7. What is the corresponding provision under the Indian Evidence Act, 1872?

Section 23 BSA corresponds substantially to Section 25, Section 26 and Section 27 of the former Indian Evidence Act, 1872.

8. Which case is important for understanding Section 23 BSA?

Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119, is an important authority on the prohibition against proving confessions made to police officers. It interprets the former Evidence Act, rather than Section 23 BSA directly.

9. Why is Section 23 important for judiciary examinations?

Section 23 is important because it tests the distinction between police confessions, confessions made in custody, and the limited discovery exception. Candidates should understand the requirements of both subsections and the rule that only the portion distinctly related to a discovered fact may be proved.

Conclusion

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 establishes important restrictions on the use of confessions in criminal proceedings. Subsection (1) prohibits proving confessions made to police officers, while subsection (2) addresses confessions made in police custody.

The discovery proviso permits a limited portion of information to be proved when it leads to the discovery of a fact. It does not make the entire disclosure statement admissible or establish the accused’s guilt automatically.

For law students and judiciary aspirants, the essential distinction is between a prohibited confession and the limited information that may be proved under the discovery exception. Understanding Aghnoo Nagesia, Pakala Narayana Swami and the corresponding provisions of the former Evidence Act provides a useful foundation for studying Section 23 BSA.

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