Report No. 152
11.6. Section 27, Evidence Act.-
The provisions of the Indian Evidence Act, 1872 relating to confessions particularly those relevant for the present purpose are contained in sections 25, 26 and 27 of that Act. While sections 25 and 26 exclude confessions made by a person to a police officer or confessions made by a person (to a police officer or to a third person) while in custody, section 27 carves out an exception in respect of cases where the confession is made in the form of information leading to the discovery of a fact, being information given by a person in custody.
This section has created several problems of interpretation with which we are not, for the moment, concerned. Our concern for the present is mainly with the possibility that section 27 creates of misuse by resort to malpractice. Let us quote the section:-
"27. How much of information received from accused may be proved.-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 thereby discovered, may be proved."
This section, because it constitutes an escape valve against the prohibition otherwise imposed by preceding section or sections in relation to confessions made during the custody of a police officer, tends to create a desire to resort to its provision even where the person in custody is not really volunteering the information.
To put it violently, what cannot come in because of an exclusionary rule contained in the earlier provisions, would be sought to be brought in by recourse to the permissive rule or enabling provision in section 27. If information spoken of in section 27 is not forthcoming voluntarily, the police may have recourse to procuring the same by other means. This is not to say that in every case the information is compelled to be given.
But it cannot be gainsaid that the very existence of the section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the section is pressed into service in situations never intended by the legislature. We are convinced that the section needs amendment, if not repeal, in order to completely ward off the tendency mentioned above.
In order to meet the malady two courses are open. Section 27 may be repealed in toto and that is our first preference. But if that course is not acceptable, the minimum that can be done is to revise the section so as to confine it to make admissible the fact discovered but not the information. This alternative, though it is the milder one, will be more intelligible by presenting a brief analysis. The analysis is as under:-
(i) A criminal trial is concerned with proof of facts which are at issue.
(ii) If the facts in issue cannot be directly proved, the law allows them to be proved by facts declared to be relevant by the law.
(iii) If a certain fact relating to discovery, such as discovery of a weapon, discovery of clothes etc. of the victim or any other relevant fact, is the result of the so-called information given by a person, the requirements of the trial would be satisfied by taking the fact of discovery on the record (assuming that it is a relevant fact).
(iv) The law need not go further and admit the confession part of the information. For the reasons stated above, the confession part is mostly tainted with coercion and torture even though this may not be on the surface.
(v) The information part, if it does not amount to a confession may not be objectionable in theory but in practice, it is not easy to keep the information element and the confession element separate from each other.
Therefore, if the milder alternative of merely amending section 27 (and not its total repeal) is to be adopted, we would recommend that section 27 may be replaced by the following section:-
"27. Discovery of facts at the instance of the accused.-When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not."