Section 23 BSA

Source: Punjab and Haryana High Court

Why in News?

A Bench of Justice Surya Partap Singh of the Punjab and Haryana High Court granted bail to a man accused of supplying the countrymade pistol used in a jewellery shop dacoity, holding that the disclosure statements of the co-accused, recorded while they were in police custody and unaccompanied by any recovery or discovery of fact, prima facie attracted Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). 

What was the Background of the Case? 

• An FIR was registered at Police Station Sector-8, District Faridabad, under Sections 310(2), 311, 61(2) and 238(b) of the Bharatiya Nyaya Sanhita, 2023, and Sections 25 and 25(8) of the Arms Act. 
• As per the complaint of one Vinay Jain, at about 10:36 a.m., while his staff was cleaning his shop after opening, four boys arrived — one wearing a helmet and three with muffled faces, of whom two were armed with countrymade pistols and one with a knife. 
• The assailants allegedly robbed the complainant at gunpoint of 10 kg of silver, Rs. 2 lakh in cash, 50 grams of gold and 350 gems. 
• The complainant stated that he had resisted and, while punching the face of one assailant, had been able to see his face and would be able to identify him. 
• The prosecution's case against the petitioner was that he had supplied the countrymade pistol used in the commission of the offence. 
• The petitioner's first bail petition had been dismissed as withdrawn on 12.02.2026, following which he approached the High Court with a second bail plea. 
• The petitioner had been in custody since his arrest on 07.11.2025. 

Arguments of the Parties: 

• Petitioner: Counsel submitted that the petitioner was not present at the spot; the only role attributed to him was supply of the countrymade pistol to the co-accused; nothing remained to be recovered from him; and the trial was unlikely to conclude in the near future. 
• State: The State counsel conceded that the petitioner was not an active participant in the dacoity but contended that he had provided support to the main accused and that his role was serious. It was also submitted that the petitioner did not have clean antecedents, being an accused in six other cases. 
• No custody certificate or formal reply was filed by the State, which opposed the petition orally. 

What were the Court's Observations? 

• On the sole allegation: The Court noted that the sole allegation against the petitioner was of having supplied the weapon, with no material showing his presence at the spot or participation in the conspiracy. 
• On the disclosure statements: The Court observed that a question arose over both the admissibility and credibility of the co-accused's disclosure statements, since they had been recorded while the co-accused were in police custody and no incriminating material was recovered pursuant to them; they were accordingly prima facie hit by Section 23 BSA. 
• On co-accused and investigation: The Court took note of the bail already granted to the co-accused, the infirmity attaching to the disclosure statements, and the completion of investigation, leaving nothing further to be recovered from the petitioner. 
• On delay and flight risk: The Court considered the improbability of an early conclusion of trial and the absence of any material suggesting that the petitioner would tamper with evidence, influence witnesses, or fail to cooperate with the trial. 
• On precedent: The Court relied on Dataram v. State of Uttar Pradesh (2018) where the Supreme Court reiterated the presumption of innocence and the rule that bail, not jail, is the norm, cautioning that these principles are at times lost sight of, leading to prolonged imprisonment. 
• The Court also relied on Satender Kumar Antil v. CBI, (2022), where the Supreme Court cautioned against letting the low rate of conviction influence bail adjudication, holding that a bail application cannot be conflated with adjudication at trial, and that an ultimate acquittal after continued custody would amount to grave injustice. 
• Holding that the cumulative effect of these factors entitled the petitioner to bail, and without commenting on the merits, the Court ordered his release on furnishing personal and surety bonds to the satisfaction of the Trial Court. 

What is Section 23 of the Bharatiya Sakshya Adhiniyam, 2023? 

Section 23 of BSA— Confession to Police Officer: 

• Sub-section (1): No confession made by a person to a police officer can be proved against that person in any offence. 
• Sub-section (2): No confession made by a person while in police custody can be proved against him, unless it is made in the immediate presence of a Magistrate. 
• Proviso to Sub-section (2): Where a fact is discovered as a consequence of information received from a person accused of an offence while in police custody, so much of that information — whether or not it amounts to a confession — as distinctly relates to the fact discovered, may be proved. This is the sole exception permitting use of a police-custody statement, and it operates only to the extent the information led to an actual discovery of fact.