Sections 24-26 Evidence Act vs 22-23 BSA: Confessions to Police

In India, Section 22 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 24 of the Indian Evidence Act, 1872 (IEA), adding "coercion" to the causes that make a confession irrelevant. Section 23(1) and (2) BSA carry forward the IEA Sections 25 and 26 bars on confessions to police officers and in police custody, with drafting changes.

At a glance

	Old law	New law
Section	Sections 24, 25 and 26, Indian Evidence Act, 1872 (with ss.27, 28, 29)	Section 22 (with two provisos) and Section 23(1)-(2) (with a proviso), BSA 2023; in force from 1 July 2024
What it does	Excludes a confession caused by inducement, threat or promise from a person in authority (s.24); bars proof of a confession to a police officer (s.25), and of a confession in police custody unless made in the immediate presence of a Magistrate (s.26)	Same rules; "coercion" is added to the s.22 causes
Punishment	None: rule of evidence	None: rule of evidence
Cognizable / bailable / triable by	Not applicable (no First Schedule entry)	Not applicable (no First Schedule entry)
Change type	—	Modified

What changed

IEA s.24 → BSA s.22, causes of exclusion — Expanded. "any inducement, threat or promise" becomes "any inducement, threat, coercion or promise". Every other word of the test is the same. The sentence now ends with a colon introducing two provisos.
IEA s.28 → first proviso to BSA s.22 — Modified. "If such a confession as is referred to in section 24 is made after the impression caused by any such inducement, threat or promise has … been fully removed, it is relevant" becomes "Provided that if the confession is made after the impression caused by any such inducement, threat, coercion or promise has … been fully removed, it is relevant". The removal-of-impression rule now expressly covers coercion.
IEA s.29 → second proviso to BSA s.22 — Minor edit. "Provided further that" is added and "practiced" becomes "practised". The list (promise of secrecy, deception, drunkenness, unnecessary questions, no warning) is unchanged.
IEA s.25 → BSA s.23(1) — Minor edit. "No confession made to a police-officer, shall be proved" becomes "No confession made to a police officer shall be proved": the hyphen and the comma go. "as against a person accused of any offence" is unchanged.
IEA s.26 → BSA s.23(2) — Minor edit. "whilst" becomes "while"; "police-officer" becomes "police officer"; "unless it be made" becomes "unless it is made"; the comma after "Magistrate" is dropped; "shall be proved as against such person" becomes "shall be proved against him".
Explanation to IEA s.26, village headman — Omitted. The Explanation (inserted by Act 3 of 1891, s.3) excluded from "Magistrate" the head of a village discharging magisterial functions, unless he exercised a Magistrate's powers under the Code of Criminal Procedure, 1882. BSA s.23 has no Explanation.
IEA s.27 → proviso to BSA s.23(2) — Minor edit. The discovery rule now sits under s.23(2); "the fact thereby discovered" becomes "the fact discovered". See the discovery statements page.
Headings — Minor edit. The separate headings of IEA ss.25 and 26 become one BSA heading, "Confession to police officer".
Connected procedure — Minor edit. CrPC s.163(1) barred a police officer or other person in authority from offering "any such inducement, threat or promise as is mentioned in section 24" of the IEA. BNSS s.182(1) keeps the same words but points to "section 22" of the BSA. Its own words do not repeat "coercion".

Statutory text (relevant extract)

Section 24, Indian Evidence Act — extract:

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority …

Section 22, BSA — extract:

A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat, coercion or promise having reference to the charge against the accused person, proceeding from a person in authority …

Provided that if the confession is made after the impression caused by any such inducement, threat, coercion or promise has, in the opinion of the Court, been fully removed, it is relevant:

Sections 25 and 26, Indian Evidence Act — extract:

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

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 as against such person.

Section 23(1)-(2), BSA — extract:

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

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

How it works — the three rules

Neither Act carries illustrations for these sections, so the facts of the judgments below serve as the worked examples.

A. The voluntariness rule (s.22). A confession is irrelevant in a criminal proceeding if each element is present:

A confession by an accused person. The rule applies only in a criminal proceeding.
A cause. It must appear to the Court to have been caused by an inducement, threat, coercion or promise. In Pyare Lal Bhargava, the Court read "appears" as calling for a prima facie opinion, not strict proof.
Reference to the charge. The inducement, threat, coercion or promise must have "reference to the charge against the accused person".
A person in authority. It must come from "a person in authority". Neither Act defines the phrase.
Sufficiency. It must be enough, in the Court's opinion, to give the accused reasonable grounds for supposing that by confessing he would "gain any advantage or avoid any evil of a temporal nature" in the proceedings.

Two provisos then qualify the rule. Under the first, a confession made after the impression has, in the Court's opinion, "been fully removed" is relevant. Under the second, an otherwise relevant confession is not irrelevant merely because of a promise of secrecy, a deception, drunkenness, questions the accused need not have answered, or the absence of a warning.

B. The police-officer bar (s.23(1)). A confession made to a police officer cannot be proved against a person accused of any offence. The text has no custody condition and no voluntariness condition. Aghnoo Nagesia held that the bar applies even to a confession made while the maker was free, and before any investigation began.

C. The custody bar (s.23(2)). A confession made by any person while in police custody cannot be proved against him unless made "in the immediate presence of a Magistrate". This covers a confession to anyone, not only to a police officer, while the maker is in custody. The proviso to s.23(2) lets the part of an accused's information that "relates distinctly to the fact discovered" be proved.

What this means in practice

For the accused: Under s.23(1), a confession you make to a police officer cannot be proved against you. Section 183 BNSS is the provision under which a Magistrate records a confession. The Magistrate must first explain that you are not bound to confess and that the confession may be used against you (s.183(2)). If you say before recording that you are unwilling, the Magistrate "shall not authorise" your detention in police custody (s.183(3)).
For the defence advocate: Identify which rule the prosecution faces. For s.22, show from the evidence and circumstances that the confession appears to have been caused by an inducement, threat, coercion or promise from a person in authority. Pyare Lal Bhargava treats this as a lesser standard than proof. For s.23(1), ask whether the recipient is a "police officer" in the Tofan Singh sense. For s.23(2), ask whether the maker was in custody and whether a Magistrate was immediately present. Under Aghnoo Nagesia, the bar reaches every incriminating admission in the confessional statement, not only the admission of the offence.
For the prosecutor: If an inducement or threat is shown, the first proviso to s.22 requires the Court's opinion that its impression was "fully removed". The second proviso answers objections based only on secrecy, deception, drunkenness or the absence of a warning. It does not lift either bar in s.23.
For the investigating officer: Under s.182(1) BNSS, no police officer or other person in authority may offer or make an inducement, threat or promise of the kind in s.22 BSA. Section 182(2) forbids preventing a person from making a statement of his own free will. The BNSS provides for a confession to be recorded by a Magistrate under s.183. The second proviso to s.183(1) bars a police officer holding a Magistrate's powers from recording a confession. Under s.181(1), a statement made to the police during investigation, if reduced to writing, must not be signed by its maker.

Judgments that still matter

Apart from the changes above, BSA ss.22 and 23 repeat the operative words of IEA ss.24 to 26. On a reading of the text, judgments construing those words remain relevant. None of the judgments below construes the BSA.

Pyare Lal Bhargava v. State of Rajasthan, [1963] Supp. 1 S.C.R. 689 (1962 INSC 296), 22 October 1962. K. Subba Rao J. delivered the judgment of a four-judge bench. A Superintendent in the Chief Engineer's Office confessed during a departmental inquiry by the Officiating Chief Secretary; the appellant argued that the Chief Secretary had threatened to place the matter in the hands of the police if he did not disclose the truth. The Court set out four conditions for exclusion under s.24. It held that "appears" relaxes the strict standard of proof in s.3: a prima facie opinion based on the evidence and circumstances suffices. On sufficiency, it said: "while the opinion is that of the court, the criterion is the reasonable belief of the accused". The Chief Secretary was a person in authority. The Court did not disturb the concurrent finding that his words did not appear to be a threat. It treated corroboration of a retracted confession as a rule of prudence, and dismissed the appeal. Why it matters now: BSA s.22 keeps every element of that test and adds "coercion" to the causes.

Aghnoo Nagesia v. State of Bihar, [1966] 1 S.C.R. 134 (1965 INSC 126), 4 May 1965. R.S. Bachawat J. delivered the judgment of a three-judge bench. The accused lodged a first information report that confessed to four murders. The Court held that "The terms of s. 25 are imperative." The bar covers a confession made when the maker was free and before any investigation. It also covers every incriminating admission in the statement: "If the confession is tainted, the taint attaches to each part of it." The Court described s.26 as a partial ban, and s.27 as partially lifting the ban in ss.24 to 26. Only the parts identifying the maker, and the parts within s.27, could be proved. The conviction was set aside. Why it matters now: BSA s.23(1) repeats s.25. The judgment predates the move of the discovery rule into the proviso to s.23(2), and says nothing about that placement.

Tofan Singh v. State of Tamil Nadu, [2020] 12 S.C.R. 583 (2020 INSC 620), 29 October 2020. R.F. Nariman J. wrote for himself and Navin Sinha J.; Indira Banerjee J. dissented. The majority held (para 155(i)) that "the officers who are invested with powers under section 53 of the NDPS Act are "police officers" within the meaning of section 25 of the Evidence Act". Confessions made to them are barred, and a statement recorded under s.67 NDPS Act cannot be used as a confessional statement (para 155(ii)). The test (para 126): limited investigative powers conferred mainly for another purpose do not make an officer a police officer, but full investigative powers ending in a police report do. The dissent held (paras 263-268) that a three-judge bench was bound by earlier Constitution Bench rulings requiring the power to file a report under s.173 CrPC. Why it matters now: the BSA does not define "police officer", and s.23(1) repeats s.25's operative words.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872 … as if this Adhiniyam had not come into force". On a reading of that clause, a confession in such a case is tested under IEA ss.24 to 26, without the word "coercion". A proceeding begun on or after 1 July 2024 applies BSA ss.22 and 23. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What does Section 22 BSA add to Section 24 of the Evidence Act? It adds one word to the list of causes: a confession is irrelevant if it appears to have been caused by any "inducement, threat, coercion or promise" from a person in authority, where Section 24 said "inducement, threat or promise". The rest of the test is word for word the same. The BSA does not define "coercion"; Section 2(1) contains no definition of it.

Can a confession made to a police officer ever be used against the accused? Not as a confession. Section 23(1) BSA says no confession made to a police officer shall be proved as against a person accused of any offence, repeating Section 25 of the Evidence Act. The only textual opening is the proviso to Section 23(2), which lets so much of information from an accused in police custody as relates distinctly to a fact discovered be proved.

Is a confession made in police custody admissible if a Magistrate is present? Section 23(2) BSA bars proof of a confession made by any person while in police custody "unless it is made in the immediate presence of a Magistrate". The procedure for a Magistrate recording a confession is in Section 183 BNSS, which requires the Magistrate to caution the person and to record only a confession he has reason to believe is voluntary. Presence of a Magistrate does not displace the voluntariness test in Section 22.

Who counts as a police officer for the confession bar? The BSA does not define "police officer". Construing Section 25 of the Evidence Act, a majority of the Supreme Court in Tofan Singh v. State of Tamil Nadu ([2020] 12 S.C.R. 583) held that officers invested with powers under section 53 of the NDPS Act are police officers, so confessions made to them are barred. Section 23(1) BSA repeats the operative words of Section 25.

Is a confession obtained by a trick, or while the accused was drunk, excluded? Not for that reason alone. The second proviso to Section 22 BSA, carried over from Section 29 of the Evidence Act, says an otherwise relevant confession does not become irrelevant merely because it was made under a promise of secrecy, in consequence of a deception, when the accused was drunk, in answer to questions he need not have answered, or without a warning. The bars in Section 23 still apply if it was made to a police officer or in police custody.

What happened to the village headman Explanation to Section 26? It was not carried over. The Explanation to Section 26 of the Evidence Act said "Magistrate" did not include the head of a village discharging magisterial functions unless he exercised the powers of a Magistrate under the Code of Criminal Procedure, 1882. Section 23 BSA has no Explanation. The official Evidence Act text records the Explanation as inserted by Act 3 of 1891.

Which Act governs a confession in a case pending on 1 July 2024? Section 170(2) BSA says any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that clause, a confession in such a case is tested under Evidence Act ss.24 to 26, without the word "coercion".

Sources

Acts and sections read: BSA 2023 ss.2(1), 22, 23, 24, 170 (Gazette CG-DL-E-25122023-250882); BNSS 2023 ss.181, 182, 183 (Gazette CG-DL-E-25122023-250884); Indian Evidence Act, 1872 ss.24-29 with footnotes; CrPC 1973 s.163 (original India Code texts).
Judgments read (Veritect judgment corpus, full text): Pyare Lal Bhargava v. State of Rajasthan (S_1963_1_689_699_EN.md); Aghnoo Nagesia v. State of Bihar (1966_1_134_144_EN.md); Tofan Singh v. State of Tamil Nadu (2020_12_583_874_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Sections 24-26 Evidence Act vs Sections 22-23 BSA — Confessions to Police and in Police Custody