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Does Section 27 of Indian Evidence Act, 1872 Need an Amendment?

Suppose a person X is an accused in the offence of commission of murdering Z and he has been arrested by the police. During investigation, X confesses in police custody that he has committed murder of B by giving him knife blow in his stomach and after the murder, he concealed the knife used in the offence at a place which only he knows and he can help the police in getting the same recovered from that place. Now, in this entire confessional statement of accused X in police custody, the statement with respect to factum of commission of murder is a confession, but the statement or information disclosing the factum of concealment of weapon of offence and recovering of the same in its consequence is a disclosure statement of an accused. In other words, when something is discovered as a result of information or statement given by accused in police custody, that statement is known as "Disclosure Statement". It can be a confessional or not, which depends upon the facts and circumstances of a case. In Indian law, there is no use of word `Disclosure Statement', but there is a provision introduced in the Indian Evidence Act, 1872 (hereinafter referred as "the Act"), i.e. Section 27, which corresponds with such concept. Section 27 of the Act provides that when any fact is discovered in consequence of information received from a person accused of any offence, in police custody, such information as relates to that fact discovered can be proved (see section 27). It is founded on the principle that even though the evidence relating to a confessional or other statements made by a person in police custody is tainted and so inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered.

But the questions fall for consideration here are that whether section 27 applies only to information received in police custody? Whether section 27 is a proviso and if yes, to which sections? Whether section 27 is proviso to section 24 also? Whether section 27 needs to be amended in view of public interest and achieving its principle object? In this article, we would delve into these aspects and try to reach at some reasonable and logical conclusion.

Section 27 is one of the most important, but, at the same time, one of the most controversial sections in the Evidence Act. It has tremendous bearing upon criminal proceedings in the courts in the country. The section starts with the word "provided". Therefore, it can be said that it is a proviso to the previous sections. But, it is not clear to which section, among section 24 to 26, it is a proviso. There is no difficulty that section 27 is a proviso to section 26. But is it also a proviso to section 25, where statement leading to a discovery are made by accused not in custody? In Pakala Narayanaswami's case (AIR 1939 PC 47), the Privy Council observed that "section 27 seems to be intended to be a proviso to section 26". In Udai Bhan v. State of UP AIR 1962 SC 1116, the Supreme Court observed that section 27 is a proviso to section 26. In State of UP v. Deoman Upadhaya AIR 1960 SC 1125, the majority of Supreme Court judges rejected a plea that section 27 is violative of Article 14 as section 27 applies only to statements made in police custody and not to statements made by persons not in police custody. The majority observed that this anomaly in regard to inadmissibility of statements by persons not in custody is the result of section 162 of Code of Criminal Procedure and not because of anything in the Evidence Act. Hence, Art. 14 is not violated if facts discovered in consequence of statement by persons in custody are relevant and admissible and not by persons who are not in custody. However, Subba Rao J. held the provision in section 27 discriminatory if it applied only to statements made u/s 26 and not u/s 25.

In fact, a three Judge Bench in Chinnaswamy's case (AIR 1962 SC 1788) stated that section 27 is an exception to section 25 also. In Aghnoo Nagesia case (AIR 1966 SC 119), this view has been reiterated (see Sanjay v. State Govt. of Delhi 2001(3) SCC 190; Pandurang Kalu Patil & Anr v. State of Maharashtra 2002 (1) JT SC 229). That means the discoveries made pursuant to statements falling u/s 25 by persons not in custody are also admissible. Further, if what is admissible u/s 27 is a) discovery of material object, b) place where it was discovered and c) knowledge of the accused about the object, then such facts are relevant and admissible even when the accused is not in police custody, either u/s 8 (subsequent conduct) or u/s 9 . So, there is no reason for not applying section 27 to statements leading to discovery made under section 25. Hence, in my view, Section 27 is a proviso not only to section 26, but also to section 25. Therefore, the view adopted by the majority bench in Deoman Upadhaya supra is incorrect and needs to be reconsidered.

Now, the next question is whether section 27 is a proviso to section 24 also? The answer to this particular question is also not provided in the Act. Section 24 of the Act is founded on the principle of public policy. The object and legislative intent behind the insertion of this section is to discourage the practice of threat, inducement, promise and coercion in extracting the confession of a person. It is intended to discourage the tendering of hopes or promises or the exercise of coercion, in order to induce or compel the making of confessions. Section 24 is not based merely on the criterion of truth. It is intended to discourage coercion in the wide sense for securing confessions. Section 24 enacts a rule which should have universal application. In various countries, including UK, USA and CANADA, all discoveries, including those made from statements obtained by threat, inducement or promise and coercion are treated as admissible. But the Law Commission of India in its 69^th report proposed exclusion of facts if obtained by threats, inducement or promise. The Commission felt that if such facts were part of statements made in circumstances provided in section 24, i.e. threats, inducement or promise that would encourage police or other person to act arbitrarily. Hence, facts revealed from statements falling u/s 24 should not to be admissible. The paramount rule of policy embodied in section 24 must override section 27. But, the review committee on the said 69^th report recommended that inducement and promise should be segregated from threat, violence or torture and treat discoveries made from statements obtained by inducement and promise admissible, while making facts obtained by threats, coercion or violence or torture inadmissible, in order to strike right balance between the right of the accused on the one hand and the public interest involved in making such facts relevant. In my view, the said recommendation proposed by review committee is absolutely correct and in view of the same, necessary amendments should be done in section 27.

Conclusion

From the above discussion, it can be rightly concluded that the legislature must look into the anomalies of section 27 and amend its provision considering the following aspects:

(1) Section 27 should be made applicable on accused persons not in police custody,

(2) If an accused person confesses or provide any information to police or any person, whether in police custody or not, and in consequence to that information or statement, any fact is discovered, then such fact and information must be admissible in evidence, whether such information or statement has been obtained by inducement or promise, but not by threat or coercion or pressure, if the fact discovered is especially within the knowledge of such accused person only and not others.

(3) Section 27 must be made proviso or exception to general rules of admissibility of confession or statement made by an accused as contained in sections 24, 25 and 26 of the Act or in other provisions of law governing statements made by accused i.e. Section 161 CrPC read with 162 CrPC, by making necessary amendment in its provision. As of now, the plain reading of the section portrays it as an exception to Section 26 only as the word "in the custody of a police officer" is used in the language of the section.

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