SCOPE OF REVIEW: 20. It is, therefore, to be kept in mind that the scope of a Review is more constrained than that of an appeal. A party cannot be allowed to reurge the case on merits to effectively seek re-appreciation of evidence when the matter has already been decided earlier, even if on different grounds. Interference in the earlier judgement assailed in a Review is permissible only on the basis of an error apparent on the face of record or discovery of important new evidence which has a direct bearing on the ultimate outcome of the case and if not well appreciated, would cause manifest injustice.
RETRACTED CONFESSION – NO PROVISION – BUT COURT MAY APPRECIATE: 23. In light of the vehement attempt at assailing the confessional statement as being non-voluntary and violative of the right guaranteed under Article 20(3) of the Constitution and in the alternate its reliance for having been retracted by the petitioner, it may be briefly noticed that on a conjoint reading of the confessional scheme comprising of Sections 163, 164 CrPC and Section 24 IEA as construed in a catena of decisions of this Court, it is obvious that even in the absence of an express provision for retracting a confessionary statement once made, the Courts have preferred a rule of prudence whereby in case of retraction, the Court reduces the probative value of such confessionary statements and seeks corroborating evidence.
24. Hence, the cornerstone of a valid confession in India is only whether such a statement was made in compliance with statutory provisions which mandate that the same must be before the Magistrate after compliance with certain safeguards meant to ensure voluntariness and lack of coercion by the police. This has been so noted by this Court in Bharat v. State of U.P ((1971) 3 SCC 950):
“7. … Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well as for its retraction, and must weigh the two to determine whether the retraction affects the voluntary nature of the confession or not. If the court is satisfied that it was retracted because of an after thought or advice, the retraction may not weigh with the court if the general facts proved in the case and the tenor of the confession as made and the circumstances of its making and withdrawal warrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an after thought and that the earlier statement was true. …”
25. The objective behind such a provision has been explored by this Court in various decisions wherein it has been noted that provisions permitting use of confessionary statements in criminal trials were statutorily included as an acknowledgement of the possibility that in certain circumstances an accused may voluntarily confess to his offence(s).
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CONFESSION RETRACTED SHOULD BE AT THE THRESHOLD: 27. Further, it is essential to note that the petitioner failed to put forth any protest against the confessional statement despite having multiple opportunities during the course of trial. This Court has held earlier in Shankaria v. State of Rajasthan ((1978) 3 SCC 435) that retractions must be made by the accused as soon as possible, otherwise there would be a strong presumption of voluntariness in the confession.
28. The confession, in the present case, was not challenged during stage of framing of charge or over the course of examination of forty-seven prosecution witnesses, but instead only partly disputed through a letter written in secret just before petitioner’s examination under Section 313 of the Code. It is thus evident that such retraction at the fag-end of the trial, was not natural but rather meticulously formulated, perhaps as a part of defence strategy. Hence, there remains no doubt about the voluntariness of the confession of 20.11.2010 or it being unaffected by subsequent retraction.
RETRACTION DURING S.313 CR.P.C STAGE BY LETTER – STILL COURT MAY RELY THE ORIGINAL CONFESSION: 29. That apart, even if the confession dated 20.11.2010 were to be treated as being retracted vide letter dated 25.07.2012 (as adopted during examination under Section 313 of the Code), still the original confession can be relied upon. Coupled with corroborating evidence, conviction can also be secured on the strength of such confession. The rule regarding use of such retracted confessions was noted by this Court in Subramania Goundan v. State of Madras (AIR 1958 SC 66) as well as by a four-Judge Bench of this Court in Pyare Lal Bhargava v. State of Rajasthan (AIR 1963 SC 1094), holding that:
“A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars.”
RECORDING CONFESSION U/S 164 CR.P.C – NORMALLY ADVOCATE PRESENCE NOT NECESSARY: 40. The plea regarding absence of a counsel during proceedings before the Magistrate under section 164, CrPC resulting into any prejudice, are misconceived. What mandatorily is needed, as noted earlier, is that the Magistrate must satisfy himself of the voluntariness of the statement and all the statutory safeguards which includes bringing the repercussions and the voluntariness of making confessions to the knowledge of the accused, must be meticulously complied with. It is pertinent to take note of the first Proviso to Section 164(1), added with effect from 31.12.2009, which specifies that:
“Provided that any confession or statement made under this subsection may also be recorded by audio-video electronic means in the presence of the advocate of the person accused of an offence.” (emphasis supplied)…
41. Section 164 of the Code thus does not contemplate that a confession or statement should necessarily be made in the presence of the advocate(s), except, when such confessional statement is recorded with audio-video electronic means.
PARTY: Manoharan vs. State by Inspector of Police, Variety Hall Police Station, Coimbatore – Review Petition (Crl.) Nos. 446-447 Of 2019 (in) Criminal Appeal Nos. 1174-1175 OF 2019 – 07.11.2019 – 3 Judge Bench.
