Admissibility of Confessional FIR: Section 25 IEA & BSA Analysis

The Nature of the FIR: Not Substantive Evidence

The First Information Report is a creature of Section 154 of the Code of Criminal Procedure, 1973 (now Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023). Its purpose is to set the machinery of criminal law in motion — to give the police information of a cognizable offence so that investigation may commence. In Superintendent of Police, CBI v. Tapan Kumar Singh (2003 6 SCC 175), the Supreme Court held that the FIR sets the machinery of criminal law in motion and marks the commencement of the investigation. It is not conceived as a piece of substantive evidence.

The Supreme Court has consistently held, in a long line of pronouncements, that the FIR is not a piece of substantive evidence. It can be used only for two purposes: to corroborate the statement of its maker under Section 157 of the IEA (Section 160 of the BSA), or to contradict him under Section 145 of the IEA (Section 148 of the BSA). It cannot be used as direct proof of the facts stated in it. It is, in other words, a prior statement of the informant and nothing more — and a prior statement, as has been seen, is not substantive evidence on its own.

The Critical Question: Is the FIR a Confession?

The pivotal issue in this problem is whether A's FIR — in which he states that he has killed his aunt with an axe — amounts to a confession within the meaning of the Indian Evidence Act.

The definition of confession was authoritatively settled by the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47), where Lord Atkin stated: "A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession."

In the present case, A states that he had killed his aunt with an axe. This is a direct admission of the offence of murder — all the essential ingredients of the offence, namely the act of killing, the means used, and the identity of the victim, are acknowledged. This is, therefore, unquestionably a confession within the meaning of the law. It is not a mere admission of an incriminating fact; it is an admission of the offence itself.

Section 25 of the IEA (Section 23(1) of the BSA): The Absolute Bar

Section 25 of the IEA (Section 23(1) of the BSA) provides with stark simplicity:

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

The bar created by this section is absolute. There are no exceptions to it — except to the limited extent carved out by Section 27 of the IEA (the proviso to Section 23 of the BSA), which deals with facts discovered in consequence of the information. The ban applies to every confession made to a police officer, whether made voluntarily or under compulsion, whether made before or after the commencement of investigation, and whether the confessor was a formal accused at the time of making the statement or not.

The question of when the investigation commences is here of great importance. In the present problem, A himself approaches the police and lodges the FIR. The confession is made simultaneously with the setting of the criminal law in motion. In Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119), the Supreme Court resolved a deep cleavage of opinion in the High Courts and held unequivocally that where the FIR filed by the accused contains a confessional statement, the entire confessional portion is hit by Section 25 and is inadmissible. The court applied the separability test — or rather, rejected it — and held that the confessional FIR cannot be split up so as to admit some parts while excluding others. Save for the formal parts identifying the accused as the maker of the report, no part of the confessional FIR can be tendered in evidence.

The Supreme Court explained the policy behind Section 25 with clarity in Kartar Singh v. State of Punjab (1994 3 SCC 569):

"The fascicule of sections 24 to 30 aim to zealously protect the accused against becoming the victim of his own delusion or the mechanisation of others to self-incriminate in crime. The confession, therefore, is not received with an assurance if its source be not above the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect equanimity and must not have been operated upon by fear or hope or inducement."

The policy reason is clear: a police officer has tremendous coercive power over a person — formal or informal, direct or implied. The law does not trust the voluntariness of a confession made to such a person, and rather than requiring an inquiry into voluntariness in each case, the legislature has imposed a categorical and absolute ban.

Section 26 of the IEA (Section 23(2) of the BSA): Confession in Police Custody

Section 26 of the IEA (Section 23(2) of the BSA) provides that 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 against such person.

In the present facts, A lodges the FIR voluntarily and in so doing places himself effectively in police custody from that moment onwards. The Supreme Court, in Aghnoo Nagesia, recognised that once a person gives a confession to the police that sets the investigation in motion, he may be deemed to have submitted himself to police custody from that point. Whether Section 26 would independently apply in addition to Section 25 is a question of lesser practical consequence here — because Section 25 already imposes an absolute bar on the confession as a statement made to a police officer.

What Can Be Used: The Doctrine of Section 27 (Section 23 Proviso, BSA)

The only fragment of the confessional FIR that survives the bar is the portion which, under Section 27 of the IEA (proviso to Section 23 of the BSA), relates distinctly to a fact discovered in consequence of the information. The provision states:

"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."

In the present problem, the police recovered the dead body and the blood-stained axe from A's house on the strength of his statement. The information that led to these recoveries is admissible under Section 27, but only to the extent that it relates distinctly to the facts discovered — the location of the body and the axe. The manner of killing, the narration of how the offence was committed, the admission of guilt — all of this remains inadmissible under the absolute bar of Section 25.

In Pulukuri Kotayya v. King-Emperor (AIR 1947 PC 67), the Privy Council laid down the principle that only so much of the information as "relates distinctly to the fact discovered" is admissible under Section 27. The portion of the statement that amounts to a confession — that the accused committed the crime — is outside the scope of this exception.

So the discovery of the body and the axe from A's house is admissible evidence. The fact that A's information led to the discovery may be proved. But the confession that he killed his aunt — the direct admission of guilt — cannot be proved.

The Non-Confessional Part: Section 8 of the IEA

In Bheru Singh v. State of Rajasthan (1994 2 SCC 467), the Supreme Court observed that while the confessional part of the FIR is inadmissible, the non-confessional portions may still be relevant and admissible as conduct under Section 8 of the IEA (Section 7 of the BSA) — which makes the conduct of parties relevant to the facts in issue. The fact that A went to the police station and lodged the FIR is a piece of conduct — his post-offence conduct of reporting to the police — and is admissible under Section 8 as circumstantial evidence. But the contents of the confession itself cannot be used for conviction.

The Constitutional Dimension: Article 20(3)

The bar against self-incrimination is not merely a statutory rule under the Evidence Act — it has constitutional status under Article 20(3) of the Constitution, which provides: "No person accused of any offence shall be compelled to be a witness against himself."

The Supreme Court clarified in Bombay v. Kathi Kalu Oghad (AIR 1961 SC 808) that the constitutional protection attaches when a person is compelled — that is, subjected to duress — to be a witness against himself. Section 25 of the IEA goes further than Article 20(3): it excludes confessions to the police even without proof of compulsion, on a policy presumption that the very presence of the police creates an implicit coercive atmosphere. In Selvi v. State of Karnataka (AIR 2010 SC 1974), the Supreme Court reiterated that protection against self-incrimination is available at the stage of investigation itself and that police powers cannot override constitutional protection.

The Contention of the Prosecution: Examined

The prosecution's contention is that A's own version in the FIR, corroborated by the recovery of the body and the axe, is sufficient to convict him. This contention fails on multiple grounds:

First, the confessional portion of the FIR is inadmissible under Section 25 of the IEA (Section 23(1) of the BSA). It cannot be used as substantive evidence to establish guilt.

Second, the FIR itself, as a prior statement of the informant, is not substantive evidence. It can only be used to corroborate or contradict A if he appears as a witness at trial — which, being the accused, he cannot be compelled to do.

Third, the only portions of the information that survive the bar are those covered by Section 27 — namely, the information that led directly to the discovery of the body and the axe. These discoveries are admissible evidence, but the mere recovery of a body and weapon from an accused's house, without more, does not sustain a conviction for murder. They are pieces of circumstantial evidence that require to be connected to the charge by other evidence.

Fourth, the Supreme Court in Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119) expressly held that a confessional FIR cannot be used for the purpose of conviction when it is hit by Section 25. The Court rejected the separability test and held that the entire confessional content is excluded.

The Recovery: Its Evidentiary Weight

The recovery of the dead body and the blood-stained axe from A's house pursuant to his information is relevant and admissible under Section 27 of the IEA. However, the evidentiary weight of such a recovery must be carefully assessed. In Dudh Nath Pandey v. State of UP (AIR 1981 SC 911), the Supreme Court held that the discovery of a weapon from an open or easily accessible place carries little evidentiary weight. In Suresh v. State of Haryana (AIR 2015 SC 518), the court reiterated that recovery of dead bodies and articles at the instance of the accused casts a duty on the accused to explain, and unexplained possession of knowledge of the deceased's whereabouts is a strong circumstance — but that circumstance alone, without corroborating evidence, is insufficient to sustain a conviction for murder.

The Final Answer

The prosecution's contention that A's version in the FIR alone, supported by the recovery of the body and the axe, can sustain a conviction for murder is legally untenable. The confessional portion of the FIR is wholly inadmissible under Section 25 of the IEA (Section 23(1) of the BSA). Only so much of the information as relates distinctly to the facts discovered — the recoveries under Section 27 — can be proved. These recoveries are pieces of circumstantial evidence, but in the absence of all other evidence — no eye-witness, no motive established, no independent corroboration — they cannot by themselves sustain a conviction for murder. The prosecution has failed to establish its case in law, and the conviction sought on the basis of the confessional FIR alone cannot be maintained.