Report No. 185
III. Should section 27 be altogether repealed as recommended in the 152nd Report or only partially by excluding discoveries from statements falling under section 24?
The next question is whether section 27 should be altogether repealed as recommended in 152nd Report and all facts leading to discoveries should be excluded if they were made in a statement by persons whether falling under section 24, or by persons not in custody (section 25) and in custody (section 26).
Now, the confessional part of it, that is the part relating to the guilt is undoubtedly not admissible but the question is about the facts discovered. Should all such facts be excluded by repealing section 27 altogether?
In the 69th Report, such a policy was not adopted and it was felt that as a policy discoveries made pursuant to statements falling under section 24 alone should be excluded for, in case they are made admissible, police may indulge in threats, inducements and promises for extracting confessions. The Report which proposed a draft of section 27, made the facts inadmissible so far as they were discovered pursuant to statements falling under section 24. The draft section in the 69th Report opens with a non-obstante clause, covering sections 25 and 26 only i.e. persons in custody or not in custody, but section not include section 24. That would mean that all discoveries relatable to statements made pursuant to threats, inducement or promises under section 24 get excluded in that draft.
But the proposal in the 152nd Report was for repeal of section 27 altogether.
The history of admissibility of discoveries in various countries, in our view, shows, on the other hand, that it was intended that all discoveries, including those made from statements of person.- (a) whether obtained by threat, inducement or promise; or (b) whether while not in custody or (c) while in custody are by and large, be treated as admissible. This is so in UK, USA and Canada even today. This is based on the principle of independent 'confirmation' of the facts discovered.
There is total divergence between the views in UK, USA and Canada on the one hand and the first alternative of total repeal suggested in the 152nd Report. The 69th Report goes half way and only includes discoveries made pursuant to statements falling within section 24.
Principle of confirmation of facts:
The rule was laid first in R v. Warickshall (1783) 1. Leach. CC. 298 (168 E.R. 234) that the fact that stolen property was discovered under a mattress in the prisoner's lodgings pursuant to information given by the prisoner was admissible. It was held:
"The principle respecting confessions has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession or whether it arises from any other source."
This was based on the "doctrine of confirmation", for "a fact, if it exists at all, must exist invariably in the same manner whether the confession from which it is derived be in other respects true or false".
The Court in Warickshall's case stated: "This subject has more than once undergone the solemn consideration of the Twelve Judges; and a majority were clearly of the opinion, that although confessions improperly obtained cannot be received in evidence, yet that any acts done afterwards might be given in evidence, notwithstanding they were done in consequence of such confession".
Coerced confessions, the Court said, were unreliable, but the fruits here posed no problem. To exclude these fruits simply in order to prevent a suspect from being "made the instrument of her own conviction" would be "novel in theory", "dangerous in practice" and "repugnant to the general principles of criminal law".
Hidayatullah J. (as he then was) in Deoman Upadhyaya's case (AIR 1960 SC 1125) relied upon the above statement of law and held that discoveries from statements were all admissible under section 27 even if the statements as to confession were inadmissible because they were made by threats, inducement or promise, i.e. even if the fell foul of section 24
After referring to Warickshall's case and to R v. Lockhart (1785)1 Leach CC 386 = 168 ER 295, Hidayatullah J(as he then was) in State of UP v. Deoman (AIR 1960 S.C. 1125) referred to the Judges Rules 1912, made by the King's Bench Division for the guidance of the police. These rules, it was observed, have no force of law but laid down the procedure to be followed. At first four rules were framed but later, five more were added. They were reproduced in Halsbury's Laws of England (3rd Ed.) Vol 10, p 470, para 865.
These rules, the Supreme Court observed, also clearly divide persons suspected of crime into those who are in police custody and those who are not. Report of the Royal Commission (1928-29 CMD 3297) was also referred. It was finally held that the information obtained in cases falling under section 24 was admissible. In para 65, Hidayatullah J. held (p. 1145 Col. 2) as follows:
"Section 27, which is framed as an exception has rightly been held as an exception to sections 24-26 and not only to section 26. The words of the section were taken bodily from R v. Lockhart (1785)1 Leach 386: 168 ER 295 where it was said:
"But it should seem that so much of the confession as relates strictly to the fact discovered by it may be given in evidence, for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby induced to say what is false; but the fact discovered shows that so much of the confession as immediately relates to it is true."
If what is 'discovered' is true and a fact independently in existence, the fact that it was discovered pursuant to a confession made under threat, inducement or promise was irrelevant, according to the above dictum. If the fact discovered existed, it existed even without an induced confession."
Thus, according to Hidayatullah J, facts discovered from statements,- including those made pursuant to threats etc. were admissible.
The 69th Report proposed exclusion of facts if obtained by threats, inducement or promise (section 24).
The 69th Report observed that, on the contrary, that, as a matter of policy, facts discovered from statements of persons falling under section 24, have to be wholly excluded. First we shall refer to the reasons given in the 69th Report. In para 11.49, the Commission observed:
"But, as a matter of policy, the question arises whether a confession caused by an undesirable inducement, threat or promis.- and hence inadmissible under section 24.- should become admissible under section 27, because a fact was discovered in consequence thereof. We are of the view that the paramount rule of policy embodied in section 24 must override section 27. Section 24 enacts a rule which should have universal application.
That rule is not based on any artificial or peculiar considerations relatable to the supposed excesses of the police. 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. These considerations weigh against section 27 overriding section 24. Section 24 is not based merely on the criterion of truth. It is intended to discourage coercion in the wide sense for securing confessions."
The Commission thus felt that if such facts were part of statements made in the circumstances stated in section 24, i.e. threats, inducement or promise that would encourage police to act arbitrarily. Hence facts revealed from statements falling under section 24 were not to be made admissible.
Then after referring to Durlay v. Emperor AIR 1932 Cal 297 and to Emperor v. Misri (1909) ILR 31 All 592, Ibrahim v. King Emperor 1914 AIR(P.C) 155 which deal with the basis of section 24, the Commission felt that though the subjective pressure referred to in section 24 which operates in the mind of the person making the confession, may not lead to the "creation" of facts discovered under section 27, in view of the policy underlying section 24, the information leading therefrom to the discovery, should also be excluded.
U.K.: It would be advantageous to look into the comparative position in the law, having regard to the fact that the provisions of section 27 were bodily lifted from the statement of law in R v. Lockhart (1785) 1. Leach 386 and R v. Warickshall 1783(1) Leach CC 283 as pointed by Hidayatullah J. (as he then was)in Upadhyaya's case.
In UK, the Revised Judges Rules made by the Judges of the Queen's Bench Division (which came into force on 27.1.1964) deal with admissibility of evidence at the trial of any person in respect of answers and statements which are voluntarily made by him to police officers and to provide guidance to police officers in the performance of the duties (see these Rules in 1964(1) All ER pp 237-240). The Judges Rules have not the force of law but still the Court has discretion to admit the evidence (R v. Smith 1961(3) All ER 972) but no cross-examination of the prisoner is permissible. The Rules are not mandatory. They are rules of conduct for the police (R v. Ovenell 1968(1) All ER 933). They apply to all professional investigations(R v. Nichols as 51.(Crl. A R 233).
On non-admissibility of confessions and admissibility of facts discovered as a result of an excluded confession, Phipson says (see Phipson, Evidence, 2000, 15th Ed. para 31.29) as follows:
"Admissibility of facts discovered as a result of an excluded confession:- It has long been the law that facts discovered as a result of an inadmissible confession are admissible. (R v. Warwickshall (1783)1. Leach 298). Such evidence did not after all render the relevant part of the confession admissible (ibid at p 300; R v. Berriman (1854) 6 Cox 388, 389); Lam Chi Ming v. R. 1991(2)A.C. 212 (PC) (Butsee R v. Gould (1840) 9 C&P 364). The law is now statutory.
The Police and Criminal Evidence Act, 1984, section 76(4) makes admissible any facts discovered as a result of an excluded confession. Evidence that a fact was discovered as a result of such a confession is not admissible unless evidence of how it was discovered is given by or on behalf of the defendant, in which case it would be relevant to the accused's credibility as a witness".
We shall here refer to section 76 of the UK Police and Criminal Evidence Act, 1984:
"76.- (1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
(4) The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence-
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he section so.
(5) Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
(6) Subsection (5) above applies-
(a) to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if that fact is discovered as a result of the excluded part of the confession.
(7) Nothing in Part VII of this Act shall prejudice the admissibility of a confession made by an accused person.
(8) In this section "oppression" includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)."
Thus, under section 76(4)(a), whatever be the circumstances under which the statement was made, facts discovered would all be relevant.
It will be seen from section 76 that while under section 76(2) confession obtained by oppression or inconsequence of anything said or done may be unreliable and could be treated by the court as unreliable but under section 76(4), the fact that a confession is wholly or partly excluded in pursuance of section 76 shall not affect the admissibility o.-
(a) any facts discovered as a result ofthe confession; or
(b) when the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, if so much of the confession as is necessary to show that he sectionso, and under sub-section (5), evidence that a fact to which this subsection applies was discovered as a result of the statement made by an accused person shall not be admissible unless evidence how it was discovered is given by him or on his behalf, and under sub-section (6) it is stated that sub-section (5) applies t.-
(a) any fact discovered as a result of a confession which is wholly excluded pursuant to this section; and
(b) to any fact discovered as a result of a confession which is partly so excluded, if that fact is discovered as a result of the excluded part of the confession.
What we wish to point out is that as the law stands today in UK, all facts discovered from information discovered under circumstances similar to those referred to in section 24 of the Indian Act are admissible in UK where the person making the statement accepts the mode of discovery.
This is contrary to the proposal in the 69th Report, as already stated, which excludes all discoveries from statements falling under section 24.
U.S.A.: So far as the American law is concerned, (see American Jurisprudence vol. 29, para 531) the position is that facts discovered, even if force was used, were admissible. It is stated that as per Miranda v. Arizona 384 US 436, 16L Ed 2nd 694, 86 Sct 1602, an involuntary confession is inadmissible, regardless of its truth or falsity and this is so even if there is ample evidence aside the confession to support the confession and the conviction is invalid if based on any part of such a confession. "But", asto fruits, the authors say:
"it is not clear, however, asto whether facts discovered because of the confession, as distinguished from the confession itself, are admissible in evidence. Many of the State Courts have admitted evidence of the inculpatory facts discovered by reason of an inadmissible confession (see Commonwealth v. Knapp 9 Pick (Mass) 496; State v. Danelly, 116 SC 113, 107 SE 149, 14 ALR 1420; Silver v. State 110 Tex Crim 512, 8 SW 2d 144, 9 SWZd 358, 60 ALR 290; McCoy v. State 24 Ind 104, 107 NE 2d 43), but other cases have held or indicated that evidence of such facts is inadmissible under the 'fruit of the poisonous tree' doctrine (see State v. Self 59 Wash 2d 62, 366 P.2d 193, Cert denied 370 US 929, 8 L Ed 508, 82 S ct 1569).
In still other cases, the courts have established an exception to the admissibility of evidence obtained by aid of an inadmissible confession to the effect that thing found must be identified by evidence other than the confession (Daniels v. State 78 Ga 98, Whitley v. State 78 Miss 255, 28 SO 852)."
The latest position in US appears from Prof. Akhil Reed Amar's book 'The Constitution and the Criminal Procedure, First Principles, 1997'. While dealing with the Fifth Amendment, the author refers to this aspect in Chapter II. The author says, after referring to Warrickshell's case decided by the English Courts in 1783, as follows (Note 238 at p. 225):
"In America, it was hornbook law as late as 1960 that courts would not exclude the fruits of coerced confessions. See 2 Francis Wharton, Wharton's Criminal Evidence para 357-58 (Ronald A. Anderson ed, 12 k Ed, 1953); 3 Wigmore, Treatise on the Anglo-American System of Evidence in Trials at Common Law (3rd Ed, 1940, para 856-59); Yale Kamisan, Wolf and Lustig, 'Ten Years Later: Illegal Evidence in State and Federal Courts', 43 Minn. L. Rev 1083, 1115 n.109 (1959).
In fact, I am aware of no US Supreme Court cas.- before or after 196.- that actually excludes physical fruits of a coerced confession that occurred outside formal proceedings. Miranda sectioncontain an ambiguous sentence about fruits, see 384 US 436, 479 (1966) (speaking of "evidence obtained as a result of interrogation), but that sentence has since been repudiated. See supra text at notes 85-94. But cf. Wong Song v. US 371 US 471 (1963) excluding the Fourth Amendment grounds, physical evidence as fruit of illegal arrest."
At p. 61, Prof. Amar refers to New York v. Quarles 467 US 649 (1984),Justice O'Connor advocated a bright-line rule that physical evidence obtained as a result of a confession after a Miranda violation should be admissible. She had taken the same view in Oregan v. Elstad 470 US 290 (1985). She said that nothing in Miranda requires exclusion of non testimonial evidence. Thus, facts discovered, irrespective of whether the statement on which the discovery was made, was by threats or force or by inducement/promise, immaterial in USA.
Canada: In Canada too, the position appears to be the same (see p. 224 of Prof Amar's book). In Canada in R v. Collins 1987 (1) SCR 265, it was held that 'real evidence that was obtained in a manner that violated the Charters (constitutional protection against self-incrimination, unreasonable search and seizure and so on) will rarely operate unfairly for that reason alone. See also Black v. Regina 1989 (2) SCR 138 (Can) and Mellinthin v. Regina : 1992 (3) SCR 615 (Can) because what is discovered could have been found without compelled testimony and independently existing evidence that would have been found without compelled testimony. In Don Stuart's Charter Justice in Canadian Criminal Law 401 (1991) it is stated that there is an-
"overwhelming tendency of our courts to characterize any tangible evidence such as weapons or drugs as real evidence not going to the fairness of the trial and underCollins regime, generally admissible."
It is, therefore, clear that in Englan.- from where we borrowed the principle underlying section 27 (read with section 24) and in the USA and in Canada, the information leading to discovery is admissible even where the information is obtained from an inadmissible confession.
Certain reasons as to why facts discovered should be admissible and why section 27 should not be altogether repealed.
In fact, Prof. Amar considers, under the heading 'what is the Big Idea' (ibid, p. 658) as to what is the basic rationale of the privilege under which psychological cruelty permits self-accusation to surviv.- but, the balancing fact isthat otherwise, the privilege benefits really guilty persons. Further, if the government is obliged to supply to a defendant any exculpatory evidence or information, it has, which is beneficial to him why should not the defendant be obliged to supply the government, with inculpatory evidence and information he has.
The obligation to serve as a witness when necessary to enforce the laws is part of the duty of citizen and generally, the law is entitled to every person's evidence. If photograph, finger printing and voice tests or blood examination is permissible, why not these discovered facts be admissible? Should the government shoulder the entire burden of proof, or at least its prima facie proof, without any help from the accused? While a coerced statement may be not admissible, why exclude the physical fruits of confessions when these are quite reliable and are often highly probative pieces of evidence. Prof Amar concludes:
"In short, the various rationales repeatedly wheeled out to explain the privilege do not fit with the current scope of immunity. Small wonder, then, that the self-incrimination claus.- virtually alone among the provisions of the Bill of Right.- has been the target of repeated analytic assault over the course of the twentieth century from thoughtful commentators urging constitutional amendmentsto narrow it or repeal it altogether."
(At p. 82), the author says that the Fifth Amendment does not, unlike the Massachusets's Constitution of 1780 (which says "shall not be compelled to furnish evidence against himself") prohibit the government from compelling a defendant to 'furnish evidence against himself.- compelled fruit is admissible, but compelled testimony, i.e. the confession, is not.
At p. 84, Prof. Amar says that 'fruits and physical evidence (i.e. as opposed to testimonial evidence) are more reliable than coerced testimony itself. Judge Henry J. Friendy's 'The Fifth Amendment Tomorrow', The Law of Constitutional Change 37. U. Civil. Rev 671 (1968) stated that physical leads are often more important to law enforcement than getting statements for use in court.- because of huge leaps in technology, physical evidence can yield far more reliable information today. This enhanced reliability only strengthens the evidence of respecting the 'testimon.- fruits' distinction established in 1783. Reliance on 'fruits' subserves the purpose of investigation and can lead to protect other persons being unnecessarily questioned or tried. The 'fruits' are more reliable than the oral testimony.
No doubt, in the 152nd Report, (see para 11.6 of that Report), the Commission recommended repeal of section 27. A perusal of the said report shows that the Commission did not have occasion to consider the above aspects in detail. It felt that basically if a confession to police is to be excluded, all facts including facts leading to the discovery have also to be excluded and section 22 be repealed.
We are not in favour of a total repeal of section 27 excluding evidence of discoveries of (a) statements unless obtained by threats, inducement or promise under section 24; (b) discoveries from statements made by those not in custody falling under section 25 and (c) from those in custody under section 26. (We would like to treat discoveries from statements under section 24 separately). This is what was done in the 69th Report.
The recommendation in the 152nd Report for repeal and the law in UK, USA and Canada appear to be totally at variance. The recommendation under the 69th Report appears to take a middle path.
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