Confession to a police officer — Proviso to Section 23, Bharatiya Sakshya Adhiniyam (BSA) 2023

Confession to a police officer — Proviso to Section 23, Bharatiya Sakshya Adhiniyam (BSA) 2023

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(By Advocate Salil Kumar P.,Kozhikode, Ph : 8075113965)

Introduction — what the proviso says and why it matters ?

Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) continues the long-standing rule that confessions made to police officers are not to be proved against an accused. The BSA preserves the legislative caution that confessions under police influence are unreliable and prone to coercion; but, as before under the Indian Evidence Act, there exists an exception (the proviso equivalent of old Section 27 IEA) that admits so much of the accused’s information as distinctly relates to a fact thereby discovered. The practical result: pure confessions to police remain inadmissible, but disclosure statements which lead to discovery of facts or objects may — to a limited and strictly defined extent — be proved in evidence.

Textual position :

BSA  Sec 23(1) — “No confession made to a police officer shall be proved as against a person accused of any offence.”

The proviso (the BSA counterpart of IEA  Sec 27) permits proof of that portion of information given by an accused in police custody which relates distinctly to the fact discovered (place/object/knowledge) — but no more.

The legal test — circumstances in which the proviso admits evidence :

Supreme Court jurisprudence has repeatedly framed the admissibility under the proviso in narrow, tripartite terms. The prosecution must prove, on the basis of reliable evidence, each of the following ingredients:

Custody / source: the information must have been given by the person when he was in the custody of a police officer (i.e., the proviso historically applies where the accused is in police custody.

Causal link to discovery: the information must have led to the discovery of a fact — for example, the place where an object was hidden or the thing recovered. The discovery must be a direct consequence of the information.

Distinct relation / limited extent: only so much of the information as “relates distinctly” to the discovered fact is admissible. The admissible portion must be proved (recorded or shown by witness evidence) and must not be used to import the rest of the confession or inculpatory narrative. The proviso is strictly one of limited admissibility.

These three elements are repeatedly emphasized by the Supreme Court as the constitutional/legal safeguard that prevents the proviso swallowing the bar against police confessions.

Important Supreme Court decisions  :

Below are the principal Supreme Court decisions that shape the interpretation of the proviso (IEA  Sec 27 → BSA Sec 23 proviso). Each entry gives the legal point most often applied.

1. Delhi Administration v. Bal Krishan & Ors., (1972) 4 SCC 659 — clarified that the proviso to Section 27 is an exception to the general ban and must be read narrowly; only information that distinctly relates to the fact discovered is admissible.

2. Udai Bhan v. State of U.P., AIR 1962 SC 1116 — explained that “discovery of a fact” includes the object found, the place from which it was produced and the accused’s knowledge of its existence; but the information admitted must be the precise information that led to the discovery.

3. Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828 — emphasised that the admissible material is limited to that which has a direct nexus with the discovery and cannot be expanded to import more of the accused’s statement.

4. Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45 — reaffirmed the “distinct relation” principle and warned against using Section-27 statements to furnish general confessional content; the Court insisted that exact information recorded should be produced and proved.

Recent Supreme Court clarifications (2024–2025) — the Court has reiterated that (a) recovery must be shown to be the direct outcome of the statement; (b) the portion relied upon must be proved (recorded statement or witness testimony); and (c) inadmissible parts of a statement (confessional material not directly relating to discovery) cannot be incorporated in evidence or chief examination to bolster the prosecution. Several recent SCC benches and reported judgments have emphasised the doctrine of confirmation by subsequent events but cautioned against treating recovery itself as ipso facto proof of guilt.

Important Kerala High Court decisions :

Kerala High Court has applied the same strict tests in several decisions — the common themes are (i) strict proof of the statement and of the recovery, (ii) requirement of independent corroboration, and (iii) rejection of reliance on ambiguous or incompletely proved disclosure statements.

1. Joseph v. State of Kerala (Kerala HC — reported positions, discussed in HC rulings) — the High Court has in earlier decisions (and subsequent citations) held that the words “discovery of fact” refer principally to the place and the object and that evidentiary reliance on a Section-27 style disclosure must be tested for directness and distinctness. (Kerala HC authority often cited in local benches on the contours of discovery evidence.)

2. Jithesh v. State of Kerala (Kerala HC, judgment PDF in HC archive, 2020) — the Court analysed recovery evidence and reiterated that proof of recovery at the instance of the accused must stand up to scrutiny; mechanical recitals in seizure memos prepared at the police station are insufficient unless eyewitnesses truly testify to the accused’s disclosure and the subsequent discovery.

3. Santhakumari v. State of Kerala (Kerala HC — June 2025) — the High Court reviewed recovery evidence and observed that where recoveries are not satisfactorily proved to be at the accused’s instance, the court must treat such recovery evidence with caution; incomplete proof may weaken the prosecution’s case and lead to acquittal or remand. (This and similar Kerala HC decisions illustrate the Court’s insistence on strict proof of the disclosure → discovery chain.)

Practical note from Kerala HC jurisprudence: when panch witnesses or seizure mahasser  are prepared at the police station and those witnesses admit signing documents without reading or that the seizure memos were prepared away from the spot, Kerala benches have often treated the recovery evidence as suspect unless corroborated.

When courts have refused to apply the proviso — giving the accused the benefit of doubt

Courts will refuse to admit or rely upon the disclosure/recovery evidence under the proviso (and consequently give the accused benefit of doubt) in the following recurring situations:

Failure to prove the exact information: where the prosecution does not produce the exact words/information given by the accused (or fails to call the panch witnesses who were allegedly present), courts have held the retrieval not proved under the proviso. The Supreme Court has insisted that the exact information must be proved — not a paraphrase by investigating officers.

Absence or unreliability of panch witnesses: if the panch witnesses do not corroborate that the disclosure was made in their presence, or they concede they signed documents at police prompting, courts treat the recovery as doubtful. Kerala HC decisions (and recent SC pronouncements) have set aside recoveries when panch evidence is weak.

Discovery not distinctly linked to the information: Courts have rejected attempts to import confessional content by contending the discovery “flowed” from the statement when, in truth, the link is tenuous or the admitted portion does not distinctly relate to the object/place. The Supreme Court has repeatedly said that only that portion which distinctly relates to the fact discovered is admissible — nothing more. Where the prosecution tries to use the admitted portion to fill gaps in proof of guilt, courts have refused and given the accused the benefit of doubt.

Recovery shown to be fabricated or afterthought: in several Supreme Court and Kerala HC rulings, when recovery memos or seizure documents appeared fabricated or prepared later at the police station, judges have doubted the genuineness of the disclosure → recovery chain and accordingly set aside convictions or acquittals. (See example: Boby v. State of Kerala — higher court analysis that trial and High Court reliance on alleged recovery was erroneous where record showed fabrication/doubt.)

Practical checklist for litigators (how to attack / defend disclosure evidence under BSA §23 proviso)

For defence counsel (to attack prosecution reliance):

Demand proof of the exact information given by the accused (call for the memorandum; test panch witnesses).

Test whether recovery memos were prepared on the spot or later in the station; cross-examine panches about signatures, reading of memos and presence at the discovery.

Show absence of independent corroboration tying the accused to the discovered fact (place, object, or knowledge).

For prosecution (to shore up reliance):

Record and produce the exact disclosure and the witnesses who saw the disclosure and the subsequent discovery.

Ensure seizure memos are prepared at the spot, with clear signatures and contemporaneous entries; produce witnesses who can testify to the chain from disclosure to discovery.

Short conclusion (normative and doctrinal)

The BSA §23 proviso preserves the narrow, protective exception that the old IEA §27 embodied — limited, careful admissibility of only those words/information which distinctly caused discovery of a fact. The Supreme Court and Kerala High Court jurisprudence together insist that the proviso be applied cautiously: the prosecution must strictly prove the custody-statement-to-discovery chain and nothing more. Failure to do so frequently leads courts to exclude the evidence and to give the accused the benefit of doubt.

Selected key authorities :

1. Supreme Court cases :

Delhi Admn. v. Bal Krishan & Ors., (1972) 4 SCC 659.

Udai Bhan v. State of U.P., AIR 1962 SC 1116.

Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828.

Bodhraj Alias Bodha & Ors. v. State of Jammu & Kashmir, (2002) 8 SCC 45.

Recent Supreme Court judgments clarifying limits to Section 27 (discovery/confession) — e.g. Crl. Appeal No.70 of 2025 (judgment discussing the threefold test and confirming narrow scope).

2. Kerala High Court cases :

Joseph v. State of Kerala, (Kerala HC — decisions discussing scope of “discovery of fact” and proof required).

Jithesh v. State of Kerala (Kerala HC — judgment analysing recovery evidence and requirements of witnesses/seizure memos).

Santhakumari v. State of Kerala, Kerala HC (June 2025) — recent HC decision underscoring caution when recoveries are not satisfactorily proved.