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    Question

    Under Section 23 of the Bharatiya Sakshya Adhiniyam,

    2023, Mr. A is arrested on charges of theft and confesses to the police: "I stole the mobile phone and buried it near the old banyan tree." The police, acting on this information, search the location and recover the stolen mobile phone. Subsequently, A is brought before a Magistrate and repeats the confession. At trial, which of the following correctly applies Section 23(1) and (2)?
    A A's confession to the police is admissible because the recovery of the mobile phone corroborates the confession, making it reliable under Section 23(1) Correct Answer Incorrect Answer
    B A's confession to the police is inadmissible under Section 23(1), but the information about the location "near the old banyan tree" is inadmissible under the proviso to Section 23(2) because it relates distinctly to the discovery of the stolen mobile phone Correct Answer Incorrect Answer
    C A's confession to the police is inadmissible under Section 23(1); however, under the proviso to Section 23(2), so much of A's statement as relates distinctly to the fact discovered (the location and recovery of the mobile phone) may be proved, even though the confession itself cannot be proved Correct Answer Incorrect Answer
    D Both the confession to police and the information about the location are entirely inadmissible; Section 23 permits no exceptions to the prohibition on police confessions Correct Answer Incorrect Answer
    E A's confession becomes admissible because he subsequently repeated it before the Magistrate; the Magistrate's confirmation nullifies Section 23(1)'s prohibition Correct Answer Incorrect Answer

    Solution

    Explanation: Section 23(1) of the BSA, 2023 provides: "No confession made to a police officer shall be proved as against a person accused of any offence." This is an absolute prohibition. However, Section 23(2) qualifies this: "No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him." Critically, the proviso to Section 23(2) establishes 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 discovered, may be proved." The statutory architecture creates this distinction: (i) The confession itself (A stating "I stole") cannot be proved under Section 23(1); (ii) The derivative discovery(location, recovery) can be proved under the proviso as long as it relates distinctly to the fact discovered. This is called the "doctrine of confirmation by subsequent facts." In A's case: The confession to police is inadmissible. However, the information about burying near the banyan tree, to the extent it led to the actual recovery of the mobile phone, is admissible under the proviso. The scope: only the information distinctly relating to the location and recovery, not the inculpatory confession itself. A's subsequent Magistrate confession does NOT retroactively make the police confession admissible; thoseare separate instances. The Supreme Court in State v. Vasudev (AIR 1959 SC 1002) established that the proviso permits admissibility of information yielding discovered facts, not the confession generating that information. Thus, option (C) correctly applies Section 23(2)'s proviso

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