Section 28 deals with the confession made after removal of impression caused by inducement, threat or promise, relevant. It provides that 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, in the opinion of the Court, been fully removed, it is relevant. In the case of Abdul Razak v. State of Maharashtra, it was held that confession made after removal of impression caused by inducement, threat or promise is relevant under Section 28 of the Indian Evidence Act, 1872.
Section 28 provides that when at the time of confession, the impression created in the mind of the accused by threats etc. was no longer there, the confession would be relevant. In the context of the Bombay terror attack, a confession made in custody was nevertheless held to be voluntary as it was made months after the confessing accused had remained in custody and after many sessions of interrogation. Voluntariness of the confession was further becoming clear from the fact that the confession was made to set an example to others to follow him.
This section deals with the validity of confession which is made after the effect of inducement is already over. Once the mind is set free from the fear created by threats of evil or from the hope of advantage from confessing (e.g. by lapse the time), any confession made is likely to be free and voluntary and there can hardly be any objection as to its validity. Thus, a confession which is rendered irrelevant under Sec. 24 may become relevant under this section. Sec. 28 lays down the conditions under which a confession rendered irrelevant by Sec. 24 may become relevant.
A confession is admissible after the impression caused by inducement, etc., has been fully removed because it then becomes free and voluntary. The confession, as mentioned in this section, should be voluntary and received as a result of reflection and free determination, unaffected and non-induced by original threat or promise.
A confession obtained by the person in authority from an accused person exercising inducements or extending threats or promise of the kind mentioned in Sec. 24, is under our law irrelevant.
The principle, on which this exclusion of the above kind of confession is based is that an accused, more often under those circumstances may be led to falsely incriminating himself having the immediate object of freeing himself from the domineering influence of the person in authority in whose charge he was for the nonce.
Whether actually the inducement or threat or promise prompted an accused person to make a confession, is not a matter for close scrutiny it is enough if it appears that the confession was due to the inducement, threat or promise.
The casual connection between the improper influences and the confession is not meant to be of mathematical certainty for if it appears that the confession was engendered by such influences, then it will be excluded from consideration so the consideration. So the considerations which govern this matter are, whether inducements, threats or promises presided the making of a confession and whether they appear to have influenced and accused to make confession.
There is another aspect of this matter which is dealt with in Sec. 28. It is that an inducement, threat or promise once exercised, is not deemed to have a lasting impression or effect on the accused.
There is a scope of every possibility for the impression created in the minds of an accused, on account of inducement, threat or promises, to wane and make an accused a free agent to express his violation. While dealing with this kind of a question, a Judge or Magistrate has to decide beforehand, that the impression resulted from improper influence is fully removed.
The enquiry in this regard should be real and substantial and the proof that the impression was removed, should be stronger than for the matter of seeing whether a confession was evoked by an inducement, threat or promise.
Prof. Wigmore has the following passage regarding this subject; “the exclusion of a confession necessarily assume:-
1. That the inducement, if it operated at all, was likely to produce a false confession, and
2. That it did, in fact, operate upon the mind of the person.
The question arising under the first of these elements is that the nature of the inducement having been examined remains to notice those arising under the the existence and operation of the inducement.
Where an inducement sufficient to exclude any confession obtained by it, has been offered, the question often arises, whether a confession subsequent in time to the inducement was in fact influenced by it. “It must be remembered that no attempt was ever to be made to investigate the actual motive of the person confessing or the part played by the inducement among other motives. The whole theory of the inducement rests on the probable effect, not actual effect, upon the person. While that inducement is held out if a confession is made, no enquiry is ever made into the exact share or influence which the inducement had in evoking confession.
Nevertheless, though there is no enquiry into the actuality of the operation of inducement, and though it is assumed that if it was there, it operated, we may often have to inquire whether, in fact, it was there at all i.e., present to the mind of the person confessing.” There are two kinds of cases in which the question may be raised.
In the one kind, the enquiry is “Did the inducement, for the person in hand, ever come into existence at all?” In another kind, the enquiry is “Was the inducement, for the person in hand, brought to an end before the confession was made?
Sec. 28 serves as an exception to the rule contained in Sec. 24, and therefore its place should have been immediately after Sec. 24. But the arrangement in the Indian Evidence Act appears to be that all confessions made irrelevant under it, are placed in juxtaposition while all confessions which are relevant are embodied in the Act, in a serial order. This principle is contained in “Stephen’s Digest of the Law of Evidence”, Art22.
It is to the following effect: “A confession is deemed to be voluntary if it is shown to have been made after the complete removal of the impression produced by any inducement, threat or promise which would otherwise render it involuntary.” The impression may not linger for all times. So lapse of time may remove it. The result can be achieved by counter suggestions that the inducement or threats or promises are not going to benefit him, or by cautioning that a confession made by him will be used as evidence against him.
So if a court by Judicious exercised of its mind, in a position to hold that the impression caused by an inducement or threat or promise is fully removed, at the time of the making of a confession by an accused, then such confession can be admitted as evidence. It is of the first importance, regarding this matter, to see that no trace of the effect of inducement etc., is lingering in the mind of the accused.
What amounts to such total effacement of the impression and what circumstance can bring about such a result must necessarily be questions of fact and no cast-iron rules can be predicted for this purpose.
Thus a Magistrate merely telling the accused that he should not allow himself to be influenced by any inducement cannot be held to be sufficient to end the effects of an inducement. The section commences with the words “If such a confession as is referred to in Sec. 24 is made etc.”
What is the meaning of this expression? Is it necessary that the confession should have been actually made in pursuance of an inducement, threat or promise?
The word confession in this section is used in its accepted sense with the only qualification that it should be one made to a person in authority, after an inducement, threat or promise was extended and when those factors were present which have a tendency to create a particular impression in the mind of the accused over whom they were used. Even such a confession is rendered relevant by this section if it is made after the impression referred above is fully removed.
This section deals with the legality of confession which is made after the effect of inducement is already ended. Once the mind is set free from the apprehension created by threats of evil or from hopes of advantage from confessing any confession made is likely to be open and voluntary and there can barely be any doubt to its validity.
It is necessary that the effect of threats or inducements has been completely removed and to the pleasure of the court. All promises or threats should have been inhibited.
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