S.164 CrPC | Voluntary & Truthful Confession Can't Be Rendered Inadmissible In Law Merely Due To Absence Of Legal Representation: Calcutta High Court

A Division Bench of Justices Joymalya Bagchi and Ananya Bandyopadhyay observed,

"Absence of legal representation at the time of making confession by itself does not render the confession inadmissible in law. A confession which is found to be voluntary and truthful may be relied upon even if the accused did not have legal representation at the time when he made the confession."

The bench explained that Section 164 CrPC lays down an onerous duty on the Magistrate to caution the accused who is brought before him that he is not required to make a confession and if confession is made the same shall be used against him. The Magistrate is also required to satisfy himself that the accused is making confession voluntarily and not due to any undue influence, coercion or threat.

The High Court held that if these requirements are duly satisfied, the sanctity of confessional statement cannot be ordinarily doubted.

In the instant case, the Court was dealing with appeals preferred by four Lashkar-e-Taiba (LeT) members, admittedly associated with militant outfit, against conviction and death sentence imposed by the Trial Court.

While the High Court found their conviction under Section 121 (Waging, or attempting to wage war against India) IPC to be erroneous and commuted the death sentence, it was also called upon to test the admissibility of the Appellant's confessional statements, that formed the basis for their conviction under Section 121A (Conspiracy to wage war against India) IPC.

The Appellants were produced before a Magistrate where they made elaborate statements disclosing their personal details and peculiar circumstances which had brought them in contact with 'LeT'. They also stated the manner in which they were recruited, trained and had illegally entered the country to pursue the objectives of 'LeT'.

"These elaborate narrations (including minor errors) prove the confessions were voluntary and not a product of tutoring," the High Court said.

Test of voluntariness

Coming to the twin conditions, the High Court held that the voluntariness of a confession is to be judged from the safeguards engrafted in CrPC and not on the anvil of availability of legal advice from a lawyer.

Reliance was placed on Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid vs. State of Maharashtra, where the Supreme Court had held that the test to judge the admissibility of a confession is not whether the accused would have made the statement had he been sufficiently scared by the lawyer regarding the consequences of the confession. The true test is whether or not the confession is voluntary.

Truthfulness of the confessions

So far as truthfulness of the confessional statements is concerned, the High Court found that the confessions were corroborated by independent evidence on record. In fact, the confessions of all three appellants were corroborative of one another.

Though there was a slight variation in the confession made by one of the Appellants about how they entered the country, the Court said that the same appears to be a "slip of tongue". It added,

"Such inadvertent error reinforces the truthfulness and authenticity of the confessions of the appellants before the Magistrate. Had these appellants being tutored to make statements, such error would not have crept into their statements. This circumstance lends further credence to the truthfulness of the confessions of the appellants, as aforesaid."

Case: State of West Bengal v. Muzaffar Ahamed Rather @ Abu Rafa & Ors., Death Reference No. 2 of 2017

Date: 14.11.2022

Citation: 2022 LiveLaw (Cal) 338 

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