Report No. 185
I. Is section 27 a proviso only to section 26 or also to section 25 and section 24 so as to make facts discovered from statements under all those sections admissible?
(a) Section 25 and section 27 in relation to Article 14:
There is no difficulty that section 27 is a proviso to section 26. But is it also a proviso to section 25, where statements 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". The question whether a statement made to a police officer (i.e. one under section25), which is wholly inadmissible under section 162 Cr.P.C. could, if it led to a discovery, make the statement to the extent it related to the discovery, relevant under section 27, was not decided by the Privy Council. In Udai Bhan v. State of UP, AIR 1962 S.C. 1116, the Supreme Court observed that section 27 was a proviso to section 26.
In State of UP v. Deoman Upadhaya AIR 1960 SC 1125, the Supreme Court (by majority) rejected a plea that section 27 was violative of Article 14. The question arose in regard to facts discovered from statement of persons while in custody (under section 26) and persons not in custody (under section 25).
The plea was that if, as indicated by the language of section 27, only discovery of facts on the basis of statements by the person in the custody of a police officer (as per section 26) are made relevant and not to facts similarly discovered from those not in custody under section 25, that would violate Article 14 of the Constitution of India. The majority rejected this plea (Subba Rao J dissenting). The learned Judges in the majority pointed out that cases of persons not in custody (i.e. under section 25) giving such statements leading to discoveries are quite rare.
However, in so far as a person not in custody who "approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact", the Supreme Court observed that he may appropriately be deemed to have surrendered to the police under section 46 Cr. P.C., but section 27 would apply and the information is provable. But, if it did not amount to surrender, it may be that the statement leading to discovery (when a person is not in custody) is not provable and this may be anomalous. They said (p. 1130):
"Whereas information given by a person in custody is to the extent to which it distinctly relates to a fact thereby discovered is made provable, by section 162 of the Cr. P.C., such information given by a person not in custody to a police officer in the course of the investigation of an offence is not provable. This distinction may appear to be somewhat paradoxical".
The majority observed:
"Sections 25 and 26 were enacted not because the law presumed the statements to be untrue, but having regard to the tainted nature of the source of the evidence, prohibited them from being received in evidence."
Adverting to statements leading to discoveries, the majority said (p.1130)
"It is provable if he was in custody at the time when he made it, otherwise it is not."
The majority observed that this anomaly in regard to inadmissibility of statements by persons not in custody was the result of section 162 of the CrPC and not because of anything in the Evidence Act (p.1130-31). Hence, Article 14 was not violated if facts discovered from statements by persons in custody under section 26 alone were made admissible relevant and facts discovered from statements by persons not in custody under section 25 were not made admissible, under section 27.
As stated earlier, if the statement is made voluntarily to a police officer it may, in certain cases, amount to surrender to police under section 46 for arrest and in that case, if the person is deemed to be under arrest, section 27 would apply but if he writes a letter to the police officer, it will be inadmissible under section 162 CrPC. The Supreme Court upheld the distinction between facts discovered from statements under secs. 25 and 26 as not being violative of Article 14. Subba Rao J. (as he then was) however held the provision in section 27 discriminatory if it applied only to statements made under section 26 and not under section 25. This is one aspect of the matter.
(b) Whether facts discovered by statements of persons not in custody (i.e. under section 25) are admissible under section 27?
There is considerable authority for making them relevant. In fact, a three Judge Bench in Chinnaswamy's case (AIR 1962 SC 1788 (at 1793)) stated that section 27 was an exception to section 25 also. In Aghnoo Nageria v. State (AIR 1966 SC 119), this has been reiterated. See Sanjay v. State Govt. of Delhi 2001 (3) SCC 190 = AIR 2001 SC 979; Pandurang Kalu Patil & Anr v. State of Maharashtra 2002 (1) JT SC 229. That means that discoveries made pursuant to statements falling under section 25 by persons not in custody are also admissible.
In our view,section 27 is a proviso not only to section 26 but also to section 25.
We shall separately deal with facts discovered from statements falling under section 24.
If that be so, should the word 'or' be introduced in section 27 between the words 'from a person accused of any offence' and the words 'in the custody of a police officer'? This aspect will be considered under the next heading.