The accused and his confession
Despite the fact that Bangladesh has some excellent laws to control crime, the rate of violence in the country is high and 'justice for all' is not the case at all. Frankly, justice is mainly for those who can afford legal support and for those who can 'pay' for it. According to newspaper reports, the rate of impunity by law enforcement agencies is high and corruption in those quarters is an open matter. One of the many laws that are abused by some quarters of the justice system is the law pertaining to confessions. The general practice is that if a person confesses, it makes the work of the investigators easier. The quicker he confesses, the better, and if he does not confess, he is made to.
According to Article 35 (4) of the Constitution: 'no person accused of any offence shall be compelled to be a witness against himself'. The main objective of Article 35(4) is to protect an accused person from any compulsion to make self-incriminating statements. Thus, the operative word here is 'compulsion', which may be translated to mean 'duress'.
Thus, in order to gain the protection of Article 35 (4) of the Constitution against testimonial compulsion, it must be proved that the accused person made his statement under compulsion and that is was not voluntarily given. This rule is also reflected in the laws that govern the making and recording of confessions the Code of Criminal Procedure and the Evidence Act. These laws make it mandatory that the confessional statement must be freely given without any duress or threat or compulsion. The Magistrate must give the accused time to reflect before he makes his statement, must ensure that no police are in the courtroom, must ensure that the statement is voluntarily given and must remind the accused that he is under no compulsion to give a confession.
Confessions are of two kinds Judicial and extra-judicial. A judicial confession is one that is made to the Magistrate, as per the guidelines given in section 164 of the Code of Criminal Procedure. An extra judicial confession is one that is not made to a Magistrate, but to any person except a police officer. Again, statements of guilt made by the accused person to a police officer, wherein he mentions ways to recover material evidence (like a murder weapon, etc.) is recognised as an extra judicial confession. However, only the fact that the accused led the police to recover evidence will be relevant in the court, while the confession of guilt made will not be receivable as evidence. The law fully recognises the danger that if such a statement made to the police officer was given the legal status of a confession, this may lead the police to use all sorts of force or other methods to extract confessions which may also lead the accused to falsely implicate him.
The form No. (M) 84 used to record the confessional statement by the Magistrate states inter alia: 'Magistrates should clearly understand the great importance of giving their closest attention to the procedures to be followed, from first to last, in the recording of confessions. This procedure should be followed without haste, with care and deliberation, it being understood that this duty is not a distasteful and minor appendage or addition to their normal functions, but one which is of consequence to the confessing accused, his co-accused and court responsible for the administration of criminal justice. A confession which is recorded perfunctorily and hastily is a source of embarrassment to the trial court, the prosecution and the defence.'
The Evidence Act states that, in a criminal proceeding if the court deems that the confession was 'caused by any inducement, threat or promise having reference to the charge against the accused person; proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused personal grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him', that confession would not be accepted and would be 'deemed irrelevant'. According to the same law, if a co-accused in a crime makes a confession and implicates others with him, his confession may be considered against the other accused persons as well. However, even though this law makes the confession of one accused person receivable against his co-offenders, this does depend on the discretion of the court. The court will usually ask for material evidence to corroborate the statement.
When an accused person makes a statement admitting his guilt to the arresting or investigating police officer, the current practice is that his statement is recorded on a blank piece of paper and, after it is read to him, he signs it. The police officer counter signs this document. There is no format like the one followed by the Magistrate under section 164 of the Code of Criminal Procedure nor is a lawyer present as a witness to the making of the statement.
Whether a confessional statement was made voluntarily or not is the most important factor to determine whether it can be admissible or must be rejected. Almost all the applications for retraction of confessional statements are based on the claim that the confessions were the outcome of police torture. It is paramount that a confessional statement is made voluntarily, without coercion or threat. However, cases have shown that testing the voluntary nature of the confession is sometimes ignored by the Magistrate and those statements that have been made after prolonged police custody have be accepted as admissible.
According to the U.S. Department of State's Human rights report of 2001, in 1998, the Deputy Commissioner of the Dhaka Police detective branch 'publicly defended the use of physical coercion against suspects, saying that the practice was necessary in order to obtain information.'As early as 1913, Charles Richmond Henderson wrote: “The 'third degree' is said to be familiar in India.” He goes on to quote Henry W. Nevinson: “Wherever I went in India I heard the same complaint of the unscrupulousness and corruption of the police”. The law-enforcing agency in Bangladesh has not changed much since. According to international human rights reports, national dailies and local human rights organisations, it is notorious for its harassment of arrestees both in physical and mental terms. The physical torture of detained persons in order to extract information and confessions is extremely common. Methods of torture include electric shocks, pulling out nails, pouring water mixed with red chilli powder up noses and into wounds, beating with metal rods and heavy sticks, kicks, slaps, keeping the arrestee awake all night, deprivation of food and water, etc.
One example of this kind of torture resulted in the death of 35-year-old Shafi Uddin. On 30 November 2005, Shafi Uddin was arrested on suspicion of involvement in a theft. On 01 December he was produced before the magistrate and taken into remand for 3 days. After that the police allegedly assaulted him with hockey sticks. He was injured so badly, he died on his way to the hospital. According to the police, Shafi confessed to theft and they went to recover the stolen goods from a specific house, but on the way, Shafi fell sick and they rushed him to the hospital, but it was too late. Eyewitnesses at the hospital morgue stated that they saw serious injuries on Shafi's body and said that the police coerced staff at the morgue to alter the contents of the autopsy report.
A large majority of cases of retraction of confessions are based on the claim by the applicant that the confession was a result of police torture after arrest or in remand. Poor police practice, over zealousness, criminal misconduct and, sometimes external pressure to close a case, make police coerce a suspect or the accused to give a statement implicating himself. Once this statement is made, investigation ceases and convicting the confession maker becomes the goal of the police, the courts and the prosecutor. Once a person is in police custody, the police have a whole plethora of ways to proceed in making his life so miserable that he is bound to confess even if he did not commit the crime. The fact that the law states that an arrested person must be produced before a Magistrate within 24 hours of his arrest, according to section 61 of the Code of Criminal Procedure, is occasionally overlooked by the arresting police, thus casting serious doubts on any confession he may later make to the Magistrate.
In the words of Sir Edmund C. Cox, “In my opinion, it would be advisable to make all confessions made previous to trial once and for all irrelevant. One effect of this would be to put the police upon their mettle to obtain extraneous evidence and not rest satisfied with this miserable confession which is more likely than not to be withdrawn, and leave them stranded at the last moment.”
Magistrates have accepted confessional statements from accused persons after they have been in prolonged police custody and even after they have complained of police torture. There have also been cases where Magistrates have sent accused persons to police remand and then recorded their confessions. Remand in police custody, under the Code of Criminal Procedure, 1898, is when the police seek more time (from the Magistrate) to keep the accused person in their custody, for further questioning. Section 167 of the Code of Criminal Procedure states that at the stage of investigation of an offence, a Magistrate cannot award more than 15 days of remand in police or jail custody.
A police officer makes a prayer to the Magistrate that the accused is involved in a cognisable offence and that for the purpose of interrogation he needs to be taken into remand. In Bangladesh, police remand is synonymous with police torture and more often than not, the accused and his relatives offer money to the police to prevent remand. In many instances, the police themselves ask for the money. Any statement made to a Magistrate by the accused after the latter has been through a period of remand in police custody ought not to been recognised as a voluntary statement by the Magistrate. However, in some cases this has happened. The Rules attached to the format for recording a confession clearly state that 'Applications, if ever made, for the remand to police custody of a prisoner who has failed to make an expected confession or statement, should not be granted.'
The redeeming feature for Magistrates, who have failed to correctly record confessional statements, lies in section 533 of the Code of Criminal Procedure. This section states that if the Court finds that the Magistrate has not fully complied with all the provisions of the law that deal with the recording of confessional statements, it will examine the recording Magistrate and, if the confessional statement so recorded does not injure the accused, the court will admit it as valid evidence. The provisions of this section apply to Courts of Appeal, Reference and Revision.
Cases show that there are instances where the Magistrate has failed to tell the accused that he is under no compulsion to make a confessional statement, or that police were present in the court room when the statement was being recorded, or that the Magistrate failed to consider whether the confession was being made voluntarily. All this has serious affects on the maker of the statement. All the provisions relating to the recording of confessional statements are important and must be followed in order for the Magistrate to ascertain as to whether the statement was given voluntarily and to reassure the accused and give him time to reflect so as to make his confession more accurate and effective. There are many case studies that establish that all the formalities of Section 164 have to be followed and given utmost importance.
Convictions based solely on confessions seem to be a common incident in some courts, and it is the quick conclusion of a case that is making this a common practice. A confession means that the police need not carry out further investigation for supporting evidence, that they can close a case quickly. It means that they need not ascertain whether the accused is telling the truth or whether he confesses in order to stop the inhuman torture being inflicted upon him. This over zealousness of the police is contagious and the Magistrates have picked it up. It is only when a few of the cases reach the High Court Division of the Supreme Court for appeal for retraction that we are sure that something is seriously wrong. However, not all such cases reach the high echelons of the judiciary. A large number of persons who have been convicted based on confessions come from the poorer strata of society, who are unable to afford a lawyer and do not know that they can appeal. When NGO's and other legal aid organisations hear of their plight, only then are the properly represented. A confessional statement cannot be the overwhelming reason to convict an accused person.
Given the trouble it takes to extract a confessional statement from the accused by the police, and that serious acts of human rights violations fall upon the former in order to 'prepare' him to make a confession, the question that arises is: why must we even have a law dealing with this topic? Why not do away with the practice of recording confessions altogether. It would certainly improve the activities of the investigation wing of the police. The fact is that, if an accused person is morally compelled to make a confession, out of pure feelings of remorse, he should be allowed to unburden himself to a competent Magistrate. If he does not want to do so and the law states that he does not have to the investigating police must follow other legally prescribed methods of collecting evidence in order to ascertain his guilt or innocence. It is the task of the prosecution to prove the case against the accused, not the task of the accused to confess and thus make the system easier.
The law regarding confessions makes it clear that the recording of confessional statements; the format the Magistrate must follow and what may be admissible as a confession. The Constitution makes it clear that no one must be compelled to be a witness against himself and that no one must be subject to cruel, degrading and inhuman treatment. What is now necessary is the proper and effective implementation of these laws, and if necessary, their amendment, in order to ensure that a person on trial is innocent until it can be proven that he is guilty.
The writer is a founder member of Odhikar, a human rights organisation.