BSA S.22 creates an absolute bar on confessions made to a police officer or while in police custody. S.23 then carves out the most important exception: where a statement to police leads to the discovery of a fact, so much of the information as relates distinctly to that discovered fact is admissible. This pairing (exclusion + exception) is the single most examined topic in the law of evidence.
BSA S.22 = IEA S.25 (first part: confession to police officer) + IEA S.26 (confession while in custody of police). The BSA consolidates both into one section. BSA S.23 = IEA S.27 (discovery exception). Confidence: high.
S.22: The Exclusion
"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."
Rationale
| Reason | Explanation |
|---|---|
| Risk of torture and coercion | Police have the means and motive to extract confessions by force |
| Unreliability | A confession extracted under duress is likely to be false |
| Protection of Art.20(3) | No person shall be compelled to be a witness against himself |
| Deterrence | Excluding confessions removes the incentive for police to torture |
Scope of S.22
| Situation | Admissible? |
|---|---|
| Confession made directly to a police officer | No |
| Confession made while in police custody (even to a friend visiting the lock-up) | No, unless made in the immediate presence of a Magistrate |
| Confession made to a Magistrate under S.164 BNSS | Yes (express exception in S.22 itself) |
| Confession made before arrest (not in custody) to a civilian | Yes (S.22 does not apply; the person is not in custody) |
| Confession recorded by a police officer acting as a Magistrate | No (he remains a police officer for this purpose) |
Who Is a "Police Officer" for S.22?
Any person who has the powers of investigation under the BNSS (or any special law), including:
- Station House Officers, Sub-Inspectors, Inspectors
- Officers of investigating agencies (CBI, NIA, ED) with police powers
- Revenue officers with investigation powers under specific statutes
S.23: The Discovery Exception
"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."
What Is Admissible Under S.23
| Admissible | Not Admissible |
|---|---|
| The fact discovered (e.g. a weapon was found under a bridge) | The confessional narrative ("I killed him and hid the weapon") |
| The conduct of the accused leading to discovery (pointing out the place) | Statements that do not relate to the discovered fact |
| "So much of such information as relates distinctly to the fact discovered" | Anything that goes beyond the fact discovered |
Facts: The accused, in police custody, made a statement: "I hid the knife with which I stabbed him behind the bushes near the tank." The knife was found there.
Issue: How much of the statement is admissible under S.27 IEA (now S.23 BSA)?
Held: Only "so much of the information as relates distinctly to the fact discovered" is admissible. In this case, only "I will show you where the knife is hidden" (the portion leading to the discovery) is admissible. The words "with which I stabbed him" are a confession and are inadmissible. The Privy Council drew a sharp line between the fact discovered (the knife) and the confessional narrative (the stabbing).
Relevance: The definitive authority on S.23/IEA S.27. The test is: strip away everything that is confessional and admit only what leads to the physical discovery.
The "Fact Discovered" Explained
| Example statement | What is the "fact discovered"? | What is admissible? |
|---|---|---|
| "I killed B and buried the body in my backyard" | The body found in the backyard | "I will show where the body is buried" + the discovery of the body |
| "I stole the gold and kept it in my locker" | The gold in the locker | "I will show where the gold is" + finding the gold |
| "I poisoned the tea" | The poison/container found | "I will show where the poison is" + finding it |
Facts: The accused, in police custody, led police to the discovery of bloodstained clothes.
Issue: What portion of the information is admissible.
Held: The fact that the accused pointed out the place where the bloodstained clothes were hidden, and the recovery of the clothes, are admissible. The confessional part of the statement explaining why they were hidden is not.
Relevance: Indian Supreme Court authority confirming Pulukuri Kottaya.
Practical Application: The "Pointing Out" Memo
In Indian practice, police record a discovery memo (also called "pointing out memo" or "disclosure statement"):
| Element of the memo | Admissible under S.23? |
|---|---|
| "The accused said: 'I will show where I hid the weapon'" | Yes: relates distinctly to the fact to be discovered |
| "The accused then led police to a spot behind house No. 5" | Yes: conduct of the accused leading to discovery |
| "Police dug and found a knife matching the wound" | Yes: the fact discovered |
| "The accused said: 'I used this knife to kill B'" | No: confessional, does not relate to the discovery |
Recall Check
- What does S.22 exclude?
- What does S.23 save?
- State the Pulukuri Kottaya test.
- Is the conduct of the accused (pointing out) admissible?
Key Cases
Pulukuri Kottaya v Emperor (1947) Pulukuri Kottaya v Emperor 1947
Issue: How much of a police custody statement is admissible when it leads to discovery.
Rule: Only so much as relates distinctly to the fact discovered. The confessional wrapper is excluded.
Held: "With which I stabbed him" excluded; the discovery of the knife is admissible.
State of UP v Deoman Upadhyaya (1960) State of UP v Deoman Upadhyaya 1960
Issue: Admissibility of pointing out and recovery of bloodstained clothes.
Rule: Pointing out + recovery = admissible. Confessional explanation = inadmissible.
Held: Confirmed Pulukuri Kottaya for Indian law.
Distinctions
| Basis | S.22 (Exclusion) | S.23 (Discovery Exception) |
|---|---|---|
| Rule | No confession to police or in custody | Saves the portion leading to discovery |
| What is excluded | The confessional statement as a whole | Everything confessional that does not relate to the discovered fact |
| What is admitted | Nothing (under S.22 alone) | The fact discovered + the conduct leading to it + the bare informational portion |
| Example | "I killed B" (excluded) | "I will show where the weapon is" + recovery (admitted) |
| Relationship | S.23 is a proviso/exception to S.22 | S.23 does not revive S.22; it creates a narrow opening |
| Basis | S.23 (Discovery) | S.18 (Inducement) |
|---|---|---|
| What is excluded | Confessional statements to police | Confessions caused by inducement/threat/promise |
| Who excludes | S.22 (police officer/custody) | S.18 (person in authority, any context) |
| Discovery saves? | Yes (S.23) | No: there is no discovery exception to S.18 |
| Example | IO says nothing; accused volunteers and leads to discovery | IO promises lighter sentence; accused confesses |
| Basis | Confession to Police (S.22) | Extra-Judicial Confession |
|---|---|---|
| Made to | Police officer | Any other person (friend, relative, cellmate) |
| Admissible? | No | Yes (if proved through the testimony of the person who heard it) |
| Discovery exception | Available (S.23) | Not needed (the confession itself is admissible) |
| Example | "I killed B" said to IO (excluded) | "I killed B" said to a friend (admissible) |
Flashcards
What does BSA S.22 exclude?
(1) Confessions made to a police officer. (2) Confessions made while in police custody, unless made in the immediate presence of a Magistrate.
What does BSA S.23 save?
So much of the information received from an accused in police custody as relates distinctly to the fact thereby discovered.
State the Pulukuri Kottaya test.
Strip away everything that is confessional. Admit only the portion that relates distinctly to the physical fact discovered, plus the conduct of the accused leading to discovery.
Is the accused's conduct (pointing out the spot) admissible?
Yes. The act of pointing out is conduct, not a confession, and is admissible alongside the recovery.
Can a confession to a police officer ever be admissible?
Not the confession itself. But if it leads to discovery of a fact, the discovery portion (not the confession) is admissible under S.23. And a confession made in the immediate presence of a Magistrate while in custody is admissible.
Exam Scenario
Problem: Accused Farhan, in police custody, tells the IO: "I shot Ravi with my country pistol and threw it in the canal behind the temple. The bullets I bought from Shamsher's shop." Police recover the pistol from the canal. They also visit Shamsher's shop, but Shamsher has died and his records are lost; no recovery is made there. The prosecution tenders the entire statement plus the recovery of the pistol. Advise on what is admissible.
Step 1: Apply S.22 to the entire statement
The statement is made by the accused to a police officer while in custody. S.22 excludes it in its entirety as a confession.
Step 2: Apply S.23 to the discovery portion
A fact was discovered: the pistol in the canal. Under S.23, "so much of the information as relates distinctly to the fact thereby discovered" is admissible.
| Portion of statement | Relates to discovery? | Admissible? |
|---|---|---|
| "I shot Ravi with my country pistol" | No: confessional narrative (admits the shooting) | No |
| "and threw it in the canal behind the temple" | Yes: relates distinctly to the location of the pistol | Yes |
| Recovery of the pistol from the canal | The fact discovered | Yes |
| "The bullets I bought from Shamsher's shop" | Does this lead to a discovery? | No: no fact was discovered at Shamsher's shop (Shamsher is dead, records lost, no recovery) |
Step 3: Apply Pulukuri Kottaya
Strip away the confessional wrapper. What remains admissible:
- "Threw it in the canal behind the temple" (the location information).
- The conduct of Farhan in leading police to the canal (if he pointed it out).
- The recovery of the pistol from that location.
What is excluded:
- "I shot Ravi" (confessional, does not relate to the discovery).
- "The bullets I bought from Shamsher's shop" (no discovery resulted from this information).
Step 4: Explain why the Shamsher portion fails
S.23 requires that a fact be "discovered in consequence of" the information. No fact was discovered at Shamsher's shop. The information led nowhere. Since no discovery resulted, S.23 does not save any part of that sentence.
No discovery = no S.23. The Shamsher shop portion is a common trap. Students assume that any part of the statement pointing to a place is admissible. It is not: S.23 requires an actual discovery in consequence.
"I shot Ravi" is NOT part of the discovery. The fact discovered is the pistol, not the shooting. The shooting is the fact in issue, proved by other evidence. The confessional admission of shooting cannot piggyback on the weapon recovery.
Conclusion. Admissible: "threw it in the canal behind the temple" + recovery of the pistol. Excluded: "I shot Ravi" + "bullets from Shamsher" (no discovery).
See Also
- Confessions : the general rules on when confessions are admissible.
- Relevancy and Admissibility Distinguished : S.22/S.23 as the classic illustration of a relevant fact being partially inadmissible.
- Dying Declarations : another exception to the hearsay/exclusion rules.