Confession to a Police Officer; Confession in Custody; Discovery of a Fact (s. 23 and its Proviso) — BSA (Law of Evidence) Notes

Confession to a Police Officer; Confession in Custody; Discovery of a Fact (s. 23 and its Proviso)

In 1947, in Pulukuri Kottaya vs King-Emperor, an accused told the police: “I will produce a knife concealed in the roof of my house with which I stabbed the deceased.” The police found the knife exactly there. The Privy Council allowed the words “concealed in the roof of my house” — they led to the knife — but struck out “with which I stabbed the deceased”. That single sentence, sliced neatly in two, is the whole of this topic: only the part of the information that leads to the discovery survives; the confession wrapped around it does not.

This topic is the second and third walls of Topic 1, plus the one narrow gateway back in. It carries the heaviest problem load in the paper, so master the mechanics.

A. s. 23(1) — confession to a police officer is absolutely barred

No confession made to a police officer shall be proved against a person accused of any offence. It does not matter whether the confession was voluntary or forced, whether the accused was in custody or free, or whether the officer asked for it. The bar is absolute, and the reason is policy: to remove any temptation for the police to extract confessions by pressure. If the police could prove such confessions, every lock-up would become a confession factory.

B. s. 23(2) — confession in police custody is barred unless before a Magistrate

Even a confession made to someone other than a police officer is shut out if the maker was in the custody of a police officer when he made it — unless it was made in the immediate presence of a Magistrate. The presence of a Magistrate is treated as a guarantee against pressure.

Two words are heavily tested.

“Custody” is wider than arrest. Custody does not require a formal arrest or handcuffs. The moment the police have such control over a person’s movements that he is not free to go — being questioned at the station, being escorted in a police van, lying in a hospital bed under police watch — he is in “custody” for s. 23(2). This is why the “confessed to a doctor in the hospital, in a police van” problem is caught: the doctor is not a police officer, but the accused was still in police custody, so s. 23(2) bars it.
“Immediate presence of a Magistrate” means the Magistrate must actually be there when the confession is made, not merely nearby or informed afterwards.

C. The proviso to s. 23(2) [IEA s. 27] — discovery of a fact

Here is the one gateway back in. When a fact is deposed to as discovered in consequence of information received from an accused in police custody, so much of that information — whether it amounts to a confession or not — as relates distinctly to the fact thereby discovered, may be proved.

Break the proviso into its four conditions; a problem answer must tick each.

There must be an actual discovery of a fact. Something must be found as a result of the information — a hidden weapon, a buried body, stolen goods. No discovery, no proviso.
The discovery must be in consequence of the information — the information must have led to the find. If the thing was already recovered before the statement, nothing is “discovered in consequence”, and the proviso cannot save the confession (this is the “goods already recovered, then he confessed” trap — the confession stays barred by s. 23(1)/(2)).
The accused must have been in the custody of a police officer when he gave the information.
Only so much as distinctly relates to the fact discovered comes in. The sliver that led to the find is proved; the surrounding confession of guilt is not. “I hid the knife in the well” (leads to the knife) is admissible; “with which I killed B” is not.

🔑 The proviso saves the discovery-related sliver, never the confession. The examiner plants the whole confession — “I killed B with this knife and threw it in the tank” — and hopes you will admit all of it because the knife was found. Admit only the part that led to the knife (“threw it in the tank”); strike out “I killed B”.

D. The 6W in one line

Who — a person “accused of any offence” who is in police custody; the information may be proved by the prosecution.
What — the discovery-related part of information leading to a fact actually found.
When — while in police custody, and only where the discovery follows the information.
Where — any criminal proceeding against that accused.
Why — to admit reliable recovery evidence (the find confirms the words) while still keeping the confession itself out.
How — the court proves the discovery, then admits only the words distinctly relating to it.

🧩 WORKED EXAMPLE — slicing the statement in two

Facts. ‘X’, in police custody, states: “I killed B with a knife and have thrown the knife in the tank near the school.” The police recover the knife from that tank. Which part is admissible?

Rule. Proviso to s. 23(2): only so much of the information as distinctly relates to the fact discovered (here, the knife) may be proved; a confession to police is otherwise barred (s. 23(1)).

Apply. The knife is the fact discovered. The words “have thrown the knife in the tank near the school” distinctly relate to that discovery and are admissible. The words “I killed B with a knife” are a confession of guilt that led to nothing being found — they stay barred.

Conclusion. Only “…thrown the knife in the tank near the school” is proved against X. (Follows Pulukuri Kottaya.)

Decoy. “The knife was found, so the whole statement is admissible” — wrong; the finding validates only the location sliver, not the confession of the killing.

🧩 WORKED EXAMPLE — nothing left to discover

Facts. The police have already recovered the stolen articles. Only afterwards, on inquiry, ‘A’ says, “Yes, those articles were stolen by me.”

Rule. The proviso applies only where a fact is discovered in consequence of the information; if the thing is already found, nothing is discovered.

Apply. The articles were recovered before A spoke. His statement discovered nothing; it is a bare confession made in custody.

Conclusion. The confession is inadmissible — s. 23(1)/(2) bars it and the proviso has nothing to save.

Proviso to Section 23(2), BSA 2023: “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 thereby discovered, may be proved.”

In Simple Terms: If what the accused tells the police actually leads them to find something, the court may hear just the part that led to the find — even though he was in custody — but not the rest of his confession. The recovery is what makes that sliver trustworthy.

flowchart TD
    ROOT["Confession by accused in custody"]:::root
    ROOT --> A["s. 23(1): to a POLICE OFFICER<br/>= absolutely barred"]:::diamond
    ROOT --> B["s. 23(2): in POLICE CUSTODY<br/>= barred unless before a Magistrate"]:::diamond
    B --> Q{"Did a fact get DISCOVERED<br/>in consequence of the info?"}
    Q -->|"No / already recovered"| OUT["Nothing saved — stays barred"]:::diamond
    Q -->|"Yes"| IN["Proviso: only the part that<br/>DISTINCTLY RELATES to the<br/>fact discovered is proved"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef diamond fill:#FDECEA,stroke:#B22222,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Pulukuri Kottaya vs King-Emperor (1947) — only that part of the information which distinctly relates to the fact discovered is admissible; the rest of the confession is not.
State of Uttar Pradesh vs Deoman Upadhyaya (1960) — upheld the proviso (old s. 27) as constitutional; the discovery guarantees the reliability of the admitted portion.
Aghnoo Nagesia vs State of Bihar (1966) — where a confession is barred, the whole of it (including the parts naming the offence) is inadmissible except the discovery sliver; a confession cannot be split to let in the incriminating bits.
Mohd. Inayatullah vs State of Maharashtra (1976) — “fact discovered” includes the place from which an object is produced and the accused’s knowledge of it, but not the past use of the object.
Selvi vs State of Karnataka (2010) — narco-analysis, polygraph and brain-mapping results are testimonial compulsion; involuntary statements so obtained cannot be used, reinforcing the voluntariness principle behind s. 23.

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