Report No. 69
IV. Constitutional Aspects
11.26. Section 27-Validity with reference to Article 14.-
We may now consider the constitutional aspects of the section. So far, section 27 has come up for consideration with reference to two of the articles of the Constitution dealing with fundamental rights-Articles 14 and 20(3). Article 14, deals with equality. Article 20(3) deals with the privilege against self-incrimination. As regards Article 14 of the Constitution, the validity of section 27 was attacked on the ground that the section makes art arbitrary distinction between persons in custody and persons not in custody.
However, its validity on this point was upheld by the Supreme Court', on the ground that a person who is not in custody, but has committed an offence, would not normally give information to the police without surrendering himself to the police, and that the possibility of an offender who is not in custody (because the police has not been able to get at any evidence against him), giving information to the police leading to the discovery of an important fact, but without surrendering himself, would be rare.
11.27. Section 27 considered with reference to Article 20(3) of the Constitution.-
We may next refer to the provision in Article 20(3) of the Constitution. It provides, "No person accused of an offence shall be compelled to be a witness against himself".
11.28. The most important ingredient required for the application of this article is of compulsion, denoted by the word "compelled". The other important ingredient is that indicated by the words "to be a witness against himself". There is a third ingredient-"person accused of an offence".
11.29. Now, as to the ingredient indicated by the word "compelled", it is to be pointed out that section 27, if taken literally, would cover even confessions obtained by compulsion, because-at least on one interpretation1-section 27 overrides section 24.
1. See infra.
11.30. As regards the words "to be a witness against himself", Article 20(3) applies at the stage of investigation also-as is shown by the discussion in State of Bombay v. Kathi Kalu, AIR 1961 SC 1808,1. It would, therefore, be a reasonable view to take, that the validity of section 27 is maintainable only as regards confessions not obtained by compulsion, and that confessions obtained by compulsion would be hit by Article 20(3). Even "Statements" of the accused (not confessions) obtained by compulsion would be hit by Article 20(3). The case law which we discuss below, though not conclusive on this point, can be said to indicate this with reasonable certainty.
1. See infra, para. 11.32A.
11.31. The question obviously could not have arisen in this form before the commencement of the Constitution. Discoveries could, then, prove the truth of a confession, and to admit an involuntary statement violating the standards of section 241 could not raise any question of unconstitutional action. The question could only be one of construction of the scope of section 27 and its relationship with other sections. The constitutional guarantee, however, made a difference.
1. Amin v. State, 1957 ILR 2 All 110: AIR 1958 All 293 (302) (Chaturvedi & A.N.Mulla, JJ.) (see infra).
11.32. Allahabad case.-
In 1958, the High Court of Allahabad held that the Constitution prohibited the use of a coerced confession even though the confirmation requirements of section 27 had been met1.
1. See e.g.
(a) Neharoo Mangtu Satnami v. Emperor; AIR 1937 Nag 220;
(b) Emperor v. Misri, 1909 ILR 31 All 592.
11.32A. Supreme Court case.-
The issue was raised in the Supreme Court for the first time in 1961, in the State of Bombay v. Kathi Kalu, AIR 1961 SC 1803 One of the accused in that case had revealed, under interrogation; the location of several stolen rifles, and after finding the rifles, the prosecution used section 27 to introduce, the statement at the trial. The Supreme Court held, on the facts that the use of section 27 in the particular case was not unconstitutional, since the interrogation alone had not rendered the statement involuntary. The Court took the view, that if the self-incriminatory information by an accused had been given without any threat, that would not be hit by the provisions of Article 20(3), as there was no 'compulsion'. It observed-
"Thus, the provisions of section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion had been use1 in obtaining the information."
1 Emphasis supplied.
11.33. High Court decisions relevant to Article 20(3).-
We shall now refer to decisions of the High Courts relevant to Article 20(3) and section 27. In an Allahabad case1, it was pointed out that the phrase used in Article 20(3) is "to be a witness", and not "to appear as a witness". It follows that the protection afforded to an accused, in so far as it relates to the phrase "to be a witness", is not merely in respect of testimonial compulsion in the Court room2, but may well extend to compelled testimony previously obtained from him.
For this conclusion, the High Court relied on an earlier Supreme Court case3, construing Article 20(3). The High Court, therefore, held that Article 20(3) does apply to discoveries under section 27, Evidence Act, if these discoveries are the results of compulsion. The scope of section 27 is, thus, restricted by Article 20(3) of the Constitution, and the discoveries which follow a confession brought about by compelling an accused person4 cannot be used against him.
1 Amin v. State, AIR 1958 All 290 (302, 303), paras. 47, 48 (Chaturveth & A.N Mulla, JJ.).
2 Emphasis supplied.
3 Sharma v. Satish, AIR 1954 SC 300.
4. Emphasis supplied.
11.34. In a Gujarat case1 also, it was observed that proof of the confession under section 27 would be barred by the Constitution, if coercion were proved. On the facts, however, coercion was not proved.
1. Ahmed Miyan v. State, AIR 1963 Guj 159.
11.35. In most of the cases decided by the other High Courts, the statements were considered voluntary on the facts. Nevertheless, it was recognised that in some situations, section 27 may conflict with Article 20(3).
11.36. Thus, the principle that, after the coming into force of the Constitution, the evidence which may otherwise be admissible under section 27 of the Evidence Act may be inadmissible by virtue of Article 20(3) of the Constitution, if it could be established that such evidence was obtained under compulsion, appears now to be accepted.
11.37. Of course, there must be evidence of compulsion. Mere police custody in the absence of further evidence to show that force or compulsion was used, will not suffice to show that the statement was made under compulsion1 so as to attract Article 20(3).
1. Ramamurthy v. Pani, AIR 1959 Ori 22 (36, 37) (DB).
11.38. Accused entitled to give information.-
Also, it is not disputed that an accused is certainly entitled to give any information or evidence against himself. Article 20(3) only lays down that he shall not be compelled to do so, and if he has given the information voluntarily and has not actually been compelled to give the same, the provisions of Article 20(3) are not infringed. Where there is no evidence at all of any compulsion having been resorted to, for the purpose of obtaining an information from the accused leading to discovery, the information given by the accused is not hit by Article 20(3)1.
1. Radha Kishan v. State, AIR 1960 Punj 294 (295).
11.39. Article 20(3) does not contemplate the suppression of truth simply because the information is given by the accused. Information given by the accused under section 27 is, not in every case,1 compelled testimony.
1. Jethiya v. State, AIR 1955 Raj 147 (150, 151).
11.40. Accused.-
Again, where the person making the confession does not stand in the character of an accused person, Article 20(3) does not apply1-for example, where a person is examined under the general provision in section 108, Sea Customs Act, 1879, conferring power2 on a gazetted officer of customs to summon and examine persons in connection with an inquiry into smuggling. But, where the ingredients of Article 20(3) are satisfied, section 27 cannot be availed of. This is clear from the discussion in the various rulings cited above.
1. Ramesh Chandra v. State of West Bengal, (1969) 2 SCR 461: (1970) 72 Born LR 787.
2. See now the Customs Act, 1962.
11.41. Point under Article 20(3) considered.-
In view of the position discussed above, a suggestion was made to us that it is advisable to exclude, from section 27, cases of coerced confessions by an express amendment. It was stated that Article 20(3) bars statements other than confessions also, and even as regards statements (other than confessions) obtained by compulsion, Article 20(3) could be relevant. We have, however, come to the conclusion that no such express provision is required. Section 27 will, after the Constitution, be construed in conformity with the Constitution.
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