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Section 7. Criminal law
Himaloya Saha, Lecturer, Southeast University Dhaka, Bangladesh.
E-mail: Himaloya_saha@hotmail.com
Confessional statement in bangladesh: safeguards and drawbacks in the procedure of recording it
Abstract: Regulated by Section 164 and read with Section 364 of the Code of Criminal Procedure, 1898, the provision of giving and recording of confession is a unique feature of Criminal Justice in Bangladesh. This paper makes a thorough study of the aforementioned sections of law that provides with description regarding who would give the confession, when would the confession be given, to whom the confession may be given, how is the confessional statement is recorded and the legal requirements for the purpose of recording a valid confession. The paper also analyses the safeguards and guidelines mentioned in the legal provision and leading cases and points out the numerous drawbacks in the procedure of the recording of confession. Finally, after a meticulous study of the drawbacks, the paper suggests some recommendations to remove the ambiguity mentioned in the drawbacks and increase the transparency of the recording of confession.
Keywords: confession, criminal procedure, confessional statement, procedural law.
Introduction
The word "Confession" hasn't been specifically defined in any statute [1, 12].Confession in simple words means, 'the admission of the guilty in terms of the offence' [2, 2]. It must either declare in terms of the offence or significantly to all the facts which constitute the offence [3]. In Bangladesh, It is recorded with the authorized Magistrate in the manner provided in the Code of Criminal Procedure, 1898. It is a common conception that the police are not believed as trustworthy and provided the power of recording confessions is given to the police, they are more prone to misusing such [4; 6]. Some over-achieving police officer may, in the apparent exercise of power, torture the accused to extort confession or fabricate the confession [4; 6]. A confessional statement single-handedly can ascertain the basis of conviction against its maker [5]. Thus the magistrate should be extremely cautious and well-versed with the procedure and principles governing the recording of confessional statement, and act in good faith in exercising their powers with regards to such.
Interpretation and Scope of the Legal provi-
sions
Sections 164 and 364 of Bangladesh's Code of Criminal Procedure, 1898 (Code) provide how the confession should be recorded and signed [6, S. 164]. Sections 24 to 30 of the Evidence Act, 1872 deal with admissibility and inadmissibility of confessional statements [7, s. 24 — s. 30]. Also in many judicial pronouncements, the principles have been laid down for facilitating the recording of confessional statement and its creditability, its admissibility and use as evidence and forming the basis of conviction.
Section 164 of the Code elaborately points out who can make a confession, to whom is it made, when can they make it and what conditions are to be followed by the concerned Magistrates in order to make a valid confession [6, s. 164]. Any accused may make a confessional statement. The confessional statement can be made at any time during the investigation or any time after or before the commencement of inquiry or trial. Any confession
made under such circumstance would not relate to the aforementioned section [8]. Any Metropolitan Magistrate, any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the Government may, if he is not a police officer, record any statement or confession made to him in the course of an investigation [6, s. 164]. It's immaterial whether they have the jurisdiction of the case or not. It has been specifically barred by this provision that no police officer can record a confession [9, 114].
The Magistrate is required to disclose his identity before examining the accused brought before him [10]. A Magistrate must, before recording any such confession, explain to the person making it that he is not bound to make a confession and that ifhe does so, it may be used as evidence against him [11, 38]. The Magistrate must be satisfied that confession is voluntary and record of the confession must indicate that it was voluntary. The confession must be signed by the accused and the Magistrate [12].
A confessional statement is incriminating evidence against its maker unless its admissibility is excluded generally [9, 115]. Conviction can be based solely on confessional statement under 164 if it is true and voluntary [13].
Safeguards to prevent recording an illicit Confession in the Procedure
It is commonly and generally assumed that the confession has been extracted by police torture of the accused in remand [14]. So to deal with this complaint, there are some preventive measures in the concerned provision of the Code, either expressed or implied.
Firstly, the language "may record his statement or confession" as used in section 164 of the Code of Criminal Procedure, indicates that a Magistrate is not bound to record the confession. It means that the Magistrate should record the confessional statement only when he believes that the maker is willing to make the confessional statement voluntarily and to give a true statement of the occurrence confessing his involvement therein. But when it appears to the Magistrate that the accused has been compelled to make the confession by torture or threat or influence or by any other manner, the magistrate should not proceed to record the confessional statement [29].
Secondly, the magistrate has to explain to the person making the confession that he is not bound to make such a confession and if he does so it may be used as evidence against him [11, 38]. He has to give the warning in a way that the accused making the confession fully understands the warning [15]. This warning is a statutory obligation [6, s 164; 3] on the Magistrate and failure to comply with it renders the confession inadmissible as evidence [7, s. 29].
Thirdly, the confession must be voluntary [16, 296]. The term voluntary means one who does anything of his own free will. Magistrate recording confession must make query and satisfactory exercise in order to determine the reason as to why the prisoner is bent on confessing his guilt [17, Para 15]. If he finds the reason to be well-grounded and the prisoner has a valid intention to come clean, he then should record the confession. The accused should be assured that he would be given all sort of protection against torture or pressure in case he refuses to give a confession [18, 116]. Moreover the accused should also be asked what treatment he received in the custody he was produced from. In another case, it was held that the shivering condition in which the accused made confession indicated he was subjected to threat and torture before he was produced for recording the confession and thus it was not voluntary [19]. Proving that a confession is voluntary is of immense importance and is one of the most effective ways in which confession can be recorded without inducement or threat or bribe [20].
Lastly, it is mandatory that the confession statement must be signed by the accused and the Magistrate [6, s. 364; 2]. If it is not signed by the accused or attested by his marks, it becomes inadmissible as evidence [21, 298]. Confession should be recorded in the words of the accused, but it is not always correct to say that confession not recorded exactly in the words of the accused is inadmissible [22. Para 9]. It is also necessary that the Magistrate shall certify that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused [6, s. 164; 3].
Drawbacks of the Procedure
It might seem that the procedure for recording a confession is rigid and foolproof but when one examines closely, there are many drawbacks. Al-
though it has been well-established in the case laws that a Magistrate is not to record the confession until the lapse of such time as he thinks necessary, in order to remove the fear of police from the mind of the accused [21, 297]. But it is still very vague considering that there are no rules as to what minimum and
maximum time is to be given to remove the fear -it might be a month or even three hours. Leaving this on the discretion of the Magistrate gives scope for abuse. As this rule is not incorporated in the Code, sometimes the Magistrate has no idea or acumen that it was his legal duty to remove the other inducement and influence of the police completely from the mind of the accused before recording the confession [4; 6]. In addition, there is no provision in the law saying that the accused who has given confession should be sent to judicial custody and not police custody. When an accused is under threat of being sent back to the police custody, he is more likely to make confession out of fear. His statement is such a position should not be considered as voluntary [23]. Nonetheless it was held in the case of State vs. Wazirthat after the recording of confession, the accused should be sent to judicial custody and not to the police custody [24].
Thirdly, there is no specific hard and fast rule as to how warning must be given to the accused before the confession to be recorded or as to whether anytime would be given for reflection in the Code. In the case of RatanKha &others vs. The State, full three hours time was taken in both reflection and recording of confession, which was considered as sufficient compliance with the requirement [25].
To determine whether a confession is voluntary or not, there is no way but to depend on the satisfaction of the Magistrate as provided in the section 164 (3) of the Code [21, 119]. This is vague and intangible and is again totally dependent on the discretion of the Magistrate. There are no rules or regulations as to check the voluntariness of the confession [26]. Satisfaction of a person is a state of mind and it might differ from one person to another [21, 119]. The Magistrate may not have taken any genuine effort to find out the real character of the confession [27]. Therefore it puts the determining of the voluntariness of the confessional statement on dangerous foothold. The Constitution of the Peo-
ple's Republic of Bangladesh, [Article 35 (4)] provides that "no person accused of any offence shall be compelled to be witness against himself" [28, article 35]. If, in fact, confessions are obtained by compelling the accused in any manner, it is clearly violation of the constitutional right guaranteed to the accused. Therefore, the recording Magistrate must be careful in ascertaining whether the accused placed before him is making a voluntary confessional statement.
Recommendations
After thorough research and study on the safeguards, conditions and drawbacks of the recording of a confession would like to suggest some recommendations.
There is no provision mentioned the relevant laws to take an oath before making a statement or confession. The system of administering oath to the accused or any other person who wished to give a confession or a statement should be introduced. This will render the confession or statement as more authentic and credible
There should be mandatory provision in the Code saying that the accused who has given confession or anyone who has denied giving a confession should be sent to judicial custody and not police custody. This would play a great role in eliminating fear of police pressure and torture from the minds of the accused.
There should be a specified manner and systematic rules and regulations that the Magistrate must follow while giving the statutory warning mentioned in Section 164 (2).The maximum and minimum time limit for reflection should also be given. There should be some tangible manner in which the voluntariness of the confession can be determined instead of leaving it on the satisfaction of the Magistrate. Provision should be made for introduction of electronic audio-visual equipment for the purpose of recording confession [9, 116].
In addition, The Magistrate should explain to the accused his Constitutional rights under Article 22 (1) of the Constitution well as the provision of section 303 of the Code about his right to consult a lawyer before recording his confession [21, 118].
Conclusion
Confessional statement has vast evidentiary value it alone can form the basis of conviction against its
maker. Therefore the procedure to record it, for instance the giving of warning of its effect, the choice of whether the accused wants to give it or not, determining whether it is voluntary or not, has to be cautiously followed. Although the provision of Section 164 read with Section 364 elaborately explains the procedure, it misses out some major details of grave importance. The immense discretionary power given to the Magistrate as to whether to record the confession or how the warning should be given or how much time should be given to the accused for reflection after warning, or the voluntariness
of the confession, should be controlled in order to avoid the abuse of such power. Some recommendations may include administering oath before and provision of audio-visual technology while recording the confession. Furthermore incorporation of some guidelines in the Code for the Magistrate to determine voluntariness of confession and methods of giving warning is of immediate necessity. Thus if these recommendations are incorporated the recording of a confession would be a much transparent method and the chances for its abuse will decrease.
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