Where two or more accused stand jointly on trial for the same offence, and one of them confesses in a way that implicates a co-accused, may the court use that confession against the co-accused? Section 24 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) answers yes — the court may take the confession into consideration against both the confessor and the co-accused. But the section carries important limits, and the BSA has added a new Explanation II to close a doctrinal gap that troubled courts for years.
24. Consideration of proved confession affecting person making it and others jointly under trial for same offence. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation I.—"Offence", as used in this section, includes the abetment of, or attempt to commit, the offence.
Explanation II.—A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 shall be deemed to be a joint trial for the purpose of this section.
Illustrations.
(a) A and B are jointly tried for the murder of C. It is proved that A said—"B and I murdered C". The Court may consider the effect of this confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C was murdered by A and B, and that B said—"A and I murdered C". This statement may not be taken into consideration by the Court against A, as B is not being jointly tried.
The BSA's addition: Explanation II
Section 24 corresponds to Section 30 of the Indian Evidence Act, 1872 (IEA). The BPRD BSA-to-IEA correspondence table records the substantive change explicitly — a new Explanation II has been added, mentioning that "A trial of more persons than one held in the absence of the accused who has absconded or who fails to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023, shall be deemed to be a joint trial for the purpose of this section."
| Feature | Section 30, IEA | Section 24, BSA |
|---|---|---|
| Substantive rule | Confession affecting maker and co-accused jointly tried may be considered against both | Identical |
| Explanation I: definition of "offence" | Includes abetment of, or attempt to commit, the offence | Same |
| Explanation II: absconding accused | Absent | New — deemed joint trial where a co-accused has absconded or failed to comply with BNSS §84 proclamation |
Why Explanation II matters
Under Section 30 IEA, a persistent argument was that where one accused had absconded and the trial proceeded against the others, the trial was not truly "joint" for the purposes of the section — meaning a confession by one of the accused actually before the court could not be considered against the absconding co-accused (or, on some readings, vice versa) if and when the absconder was later apprehended. Explanation II settles the point squarely. A trial in the absence of an accused who has absconded, or who has failed to comply with a proclamation issued under Section 84 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — the successor to the old CrPC 82 proclamation-of-absconder procedure — is deemed to be a joint trial for the purpose of this section. That fills the gap without altering the substantive rule of consideration.
The two illustrations, worked through
Explanation II changes illustration (b)'s answer in one specific direction: if B has absconded and the trial against A proceeds after B fails to comply with a BNSS Section 84 proclamation, the trial is deemed joint, and B's confession may then be considered against A. But the Kashmira Singh caution still applies — considered, but never as substantive evidence sufficient to convict without independent corroborating proof.
The four requirements
| Condition | Content |
|---|---|
| Joint trial | The accused persons are being tried jointly (now including where a co-accused has absconded — Explanation II) |
| Same offence | The joint trial is for the same offence (including abetment or attempt — Explanation I) |
| Confession affects both | The confessing accused's confession implicates themselves and the co-accused |
| Confession is proved | The confession has been formally proved in the trial (subject to Sections 22 and 23's admissibility limits) |
Where the section fits
Section 24 closes the confessions block of Chapter II (Sections 22 to 24). Section 22 governs when confessions caused by inducement, threat, coercion, or promise are irrelevant. Section 23 governs confessions to police and confessions in police custody. Section 24 governs the specific joint-trial situation. Section 25 then delivers the overarching calibration — that admissions (and by extension confessions, as a species of admission) are not conclusive proof. Reading these four sections together shows a scheme that admits confessions carefully, restricts their reach, and calibrates their evidentiary weight.
Key Takeaways
- Joint-trial rule preserved: where accused are jointly tried for the same offence and one confesses in a way that implicates a co-accused, the court may consider the confession against both.
- New Explanation II: a trial where a co-accused has absconded or failed to comply with a BNSS Section 84 proclamation is deemed a joint trial for this section.
- Not substantive evidence: per Kashmira Singh (1952) SC, the confession is not substantive evidence and can only lend assurance to other independent evidence.
- Explanation I: "offence" includes abetment and attempt.
- Works with Sections 22, 23 and 25: the confession must first satisfy those sections' admissibility limits and remains subject to Section 25's calibration.
Conclusion
Section 24 preserves an old and useful rule and closes a real doctrinal gap. The rule — that a co-accused's confession may be considered against a jointly-tried co-accused — has always required careful use, given that such confessions are not substantive evidence and cannot alone found a conviction. Explanation II now settles that a trial proceeding without an absconded co-accused counts as a joint trial for the section's purposes, closing an ambiguity that had troubled courts for years. Reproduced almost verbatim from Section 30 IEA — with only the new Explanation added — the section remains a limited but real tool for the fact-finder in multi-accused prosecutions.