The Theatre of Confession under Section 164

A confession is to be the accused’s own words and made voluntarily. Section 164 and Section 364, of the Code of Criminal Procedure, 1898, is designed to facilitate this expungement. A confession can only be recorded by a Magistrate in person, after warning the accused that he cannot be compelled to speak and that his statement may later be used against him. The Magistrate must question him personally and have “reason to believe” that the confession is being made voluntarily. In State vs Babul Mia, the court found this reason to believe must be of the Magistrate’s own making, recorded in his own words, not a signed certificate. This is the law's first line of defence of the accused. The Evidence Act, 1872, treats any confession made under inducement, threat, or promise irrelevant in court. Article 35(4) of the Constitution of Bangladesh prohibits any accused person from being forced to be a witness against himself. 

The problem begins outside the recording room. An accused person is generally produced before the Magistrate straight from police custody. It is common for a person to be on police custody for days under Section 167 of the Code of Criminal Procedure. The law allows for a period of time between arrest and the recording of a confession, which presumably gives the accused time to think things over without police pressure. However, this period of time is mostly nominal. The mere absence of a police officer inside the recording room cannot dispel the feeling of fear that an accused person may feel when he is at police custody. The courts understand this all too well.

The Evidence Act, 1872, treats any confession made under inducement, threat, or promise irrelevant in court. Article 35(4) of the Constitution of Bangladesh prohibits any accused person from being forced to be a witness against himself.

In Sarwan Singh vs State of Punjab, the court stated that if the contents of a confession contradict eyewitness accounts, then the prosecution has failed to prove that the confession was voluntary and it must be rejected. In Nazrul Islam vs State, the court ruled that a voluntary and true confession cannot be used to convict an accused person, unless it is corroborated by other evidence, since a true confession can rarely be considered as proof of guilt of another accused person. This caution is warranted, but it is also a response to the failure of the police and judiciary to comply with Section 164 of the Code of Criminal Procedure. In BLAST v Bangladesh, the court ruled that the use of force during remand to extract information from an accused person violates his constitutional rights. Although the Appellate Division’s ruling remains in force, authorities routinely disregard it in practice.

A number of steps could be taken to prevent this. A proper interval between arrest and the recording of a confession is necessary to allow an accused person to think through his options without police pressure. Magistrates may question accused individuals directly rather than relying on standard forms and printed certificates, since this direct approach may help them ascertain whether an accused person has truly thought about the consequences of confessing and is acting voluntarily, not under police pressure. Bangladesh might also adopt video recording of confessions, as India’s 2009 amendment to its similar provision shows that such recordings can serve as an effective safeguard against coercion and provide an objective record of the circumstances surrounding a confession. Additionally, courts may regard the directives issued in BLAST v Bangladesh as binding and enforceable orders. This kind of approach may assist in preventing police from pressuring accused individuals into confessing and then using those confessions to justify extended periods of police custody.

Bangladeshi laws provide a complex framework of regulations designed to safeguard the rights of the accused in giving voluntary confessions. The shortfall in Bangladesh lies not in the creation of laws but in their enforcement, especially in ensuring that suspects are not coerced into confessing while in police custody. As long as Bangladesh fails to enforce its existing laws effectively, the gap between the law on the books and its implementation in practice will persist, along with the injustices that arise from that gap.