Report No. 152
3.29. Sections 24 to 27, Evidence Act.-
The subject of confessions is of vital relevance to the theme of custodial crimes, because it is often found that the urge to procure a confession tempts the law enforcement officers to resort to unfair means. The provisions of the Evidence Act relating to confessions cannot be fully appreciated unless one keeps before the mental eye the setting in which they appear in the Act. The scheme of the Act in this regard can be analysed as under:-
(a) A statement made by a party to a proceeding is an 'admission' (section 17) and is admissible in evidence.
(b) An admission is the genus; confession is a species thereof, and is therefore admissible.
(c) However, since a confession (as distinct from an ordinary admission) may result in the imposition of punishment, the law has enacted certain special provisions restricting their admissibility. One such restriction relates to voluntariness. A confession is not admissible if it is not voluntary (section 24).
(d) In certain special situations, the law even goes to the length of assuming that the confession may not be voluntary, having regard to the pressures of the situation; and it therefore enacts special "exclusionary" provisions, totally shutting them out from evidence. One such provision is contained in section 25, which provides that no confession made to a police officer shall be proved as against a person accused of any offence. Such a confession can never be used as substantive evidence to convict the accused.1
Another exclusionary provision is contained in section 26, Evidence Act, under which no confession made by any person while he is in the custody of a police officer shall be proved against such person unless it be made in the immediate presence of a Magistrate. Reference has already been made to section 164 of the Code of Criminal Procedure, 1973 under which a Magistrate can record a confession.
(e) Finally, section 27 of the Evidence Act (which curiously begins with the words "Provided that") lays down that when any fact is deposed to as discovered in consequence of "information" received from an accused person in the custody of a police officer, then so much of such information as distinctly relates to the fact so discovered, is relevant whether or not it amounts to a confession, whether this section overrides section 26 only, or any other section or sections preceding it is a question. We need not go into that question. What matters for practical purposes is that if "information" is given and it leads to the "discovery" of any fact, (it should be a relevant fact, though the section does not expressly say so) then the information can be admitted in evidence-
(i) even though the person is in police custody, and
(ii) notwithstanding the fact that it amounts to a confession.
In so far as section 27 overrides the exclusionary rules relating to confessions made by a person in custody, it puts a powerful weapon in the hands of the police. The vast mass of case law on the section is sufficient to show that the weapon has been extensively used by the police to extract confessions by use of force and coercion.
And if one can read between the lines, the case law also projects an apprehension that there is a tendency on the part of the police to use means not totally legitimate, to procure "information" that satisfies the formal requirements of section 27, even though the giving of such information may not be an exercise of the volition of the accused. It is for this reason that we shall have to revert to this section when we make our recommendations.2
1. Paulose v. State of Kerala, 1990 Cr Lj 100 (Ker).
2. See para. 11.6 of Chapter 11 of the Report.