Report No. 185

II. Question whether the word 'or' is to be introduced in section 27 as it was in section 150 of CrPC of 1861 (as amended in 1869)?

In the context of these latter decisions, referred to above, it is necessary to refer to the legislative history behind section 27 to find out if there was any mistake in the legislative drafting of section 27 in not expressly making section 27 a proviso to section 25 also, in the sense whether the word 'or' which was there earlier between the words "from a person accused of any offence", and the words "in the custody of a police officer" in section 27, was wrongly omitted. The historical background of section 27 was referred to some extent in the 69th Report. It is also referred to in Sarkar's Evidence (1999, 15th Ed., pp. 532-534) but in greater detail. In this context the 152nd Report of the Law Commission will also be referred to.

In the Criminal Procedure Code, 1861 (Article 25 of 1861) (i.e. before the Evidence Act of 1872 was enacted), there were three section.- section 148 which made confessions or admissions of guilt to police officers inadmissible; section 149 to confessions or admissions of guilt whilst a person is in custody of a police officer, which was inadmissible unless made in the immediate presence of a Magistrate; and section 150 which related to 'discoveries'. section 150 read:

"When any fact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered by it, may be received in evidence."

Here the words 'in the custody of a police officer' were altogether missing. But it was interpreted that section 150 was wide enough to apply to statements by persons in custody or not in custody. (see Sarkar, Evidence, 1999, 15th Ed. p 526 and p. 532).

By virtue of the Amending Act 8/1869, section 150 of the said Cr.P.C. came to be read as follows: (newly added words are underlined)

"section 150: Provided that any fact that is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact thereby discovered, may be received in evidence."

This section is clear so as to cover statements by those in custody and not in custody. (see Sarkar, Evidence, 1999, 15th Ed. pages 526 and 532).

Sarkar (Evidence, 15th Ed. 1999, p 526) refers to this and to the opinion of Sir James Stephen himself, made in 1872 in his book, as follows:

"Section 148-150 Cr.P. Code of 1861 contained provisions now covered by sections 26-27. Evidence Act and under those sections confessions to police were not barred if they led to discovery of facts.

Stephen, the framer of the Act, says that he took section 27 verbatim from section 150 of the Cr.P Code of 1861: "Admissions in reference to crimes are usually called confessions. I may observe upon the provisions relating to them that sections 25, 26 and 27 were transferred were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act 25 of 1861" (Stephen: Introduction to the Evidence Act, p 165, 1892 Ed. being reprint of 1872 Ed."

Sarkar says:

"When the Act was enacted in 1872 (i.e. when section 27 was enacted in 1872), section 150 was transferred to the Evidence Act by omitting the word 'or' and putting a comma instead."

It is significant that the Amendment, by introducing 'or', was made in 1869 and the present Act is of 1872 and the comments by Sir James Stephne were in 1872 itself that he verbatim shifted section 150 of the CrPC of 1861 (as amended in 1869) into the present Act of 1872. At any rate, that was his intention.

But, when the Evidence Act of 1872 was introduced, secs. 25, 26 and 27 came to be drafted as they stand at present. section 25 corresponds to section 148 of the old CrPC; section 26 to section 149 and section 27 corresponds to section 150. While drafting section 27, in language identical as in section 150 (as amended in 1869), the word 'or' between the word 'offence' and 'in the custody' was omitted. Can it be said this was deliberate, in the light of the above discussion?

Sarkar says (p. 533): "No possible reason is however conceivable when the information coming from any person whether in custody or not in custody satisfied the same test of relevancy in section 27, viz., the discovery of a fact in consequence of information received from the accused. section 27 is based on the theory of confirmation by discovery of subsequent facts." In fact in the Allahabad High Court in Deoman v. State of U.P. (AIR 1960 All p.1) (reversed by the Supreme Court in State of U.P. v. Deoman Upadhyaya AIR 1960 SC 1283) decided in 1960, the dissenting opinion of Desai J. says that if 'or' was a deliberate omission, the comma just before it should have also be deleted.

Sarkar, as stated above, also says that Stephen had stated that "section 150 (sic. section 27) was transferred 'verbatim' from section 150 CrPC"(See Stephen's introduction to the Evidence Act (1872) Reprint 1892 at p. 165). The dissenting opinion of Subbarao J. in Deoman Upadhyaya also refers to this aspect, but Subba Rao J. held the provision in section 27 as offending Article 14.

Further, as pointed by Sri Vepa P. Sarathi, in his Evidence (5th Ed, 2002, p. 139), if what is admissible under section 27 is (a) the discovery of the material object, (b) the place where it was discovered and (c) the knowledge of the accused about the object, then such facts are relevant and admissible even when the accused is not in police custody. This either under section 8 (subsequent conduct) or under 9 (being facts necessary to explain or introduce relevant facts). There is no reason therefore for not applying section 27 to statements leading to discovery made under section 25.

In the 69th Report, it was proposed that the words 'Notwithstanding anything in secs. 25 and 26', be added at the beginning of section 27. That means the discoveries under section 25 will also be admissible. In that proposal, the Commission also introduced the word 'or' (see para 11.58) and added some more words. The relevant portion read:

"received from a person accused of any offence, being information given to a police officer or given whilst such person is in the custody of a police officer"

In the 152nd Report of the Commission relating to 'Custodial Crimes', two alternatives were suggested (see para 11.6 of that Report). The first one was that section 27 should be altogether repealed while the second alternative was to redraft section 27 in the following manner:

"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."

It will be noticed that here 'or' was introduced, so as to cover facts discovered from statements falling under section 25 as well as section 26.

After the first draft of this Report by us, Sri Vepa P. Sarathi suggested that the word 'or' be not introduced in section 27 and that the omission of the word 'or' in section 27 when the Evidence Act was drafted in 1872 by Sir James Stephen, was deliberate but not accidental. He has tried to support his view by certain examples. But, the earlier history of these provisions goes back to section 150 of the Cr.P.C. of 1861 as amended in 1869 and shows that 'or' was therein 1869 and in 1872, that section 150 as it stood in 1869 was intended by Sir James Stephen to be verbatim shifted into section 27, as stated by himself, in the question already referred to. We, therefore, recommend introduction of the word 'or' as accepted in the 69th Report as well as the 152nd Report.