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Report No. 69

There are three important stages in the trial of a case (civil or criminal) before a court. The first stage is the stage of evidence, oral, documentary or material etc. adduced in the case by the parties. In this stage the witness plays a prominent role. Even in the case of documentary and material evidence, the witnesses must formally produce them before the court. In this stage witnesses must testify to facts as perceived by them. But it is never their function to draw any infecence from the facts stated by them.

Secondly, after considering the matters before it on the basis of the evidence adduced, the court is to draw from such matters inferences regarding the existence or non-existence of fact or facts in issue involved in the trial. In this task the court is expected to be guided by the standard of behaviour of the average prudent man in the circumstances of the case before it. When this stage is over, the fact or facts in issue in the case is or are said to be "proved" or "disproved".

Then, comes the third stage which is comparatively easy. From the fact or facts in issue thus proved or disproved, the court is to decide either by the fact in issue itself or the facts in issue themselves or in connection with other facts whether the law on the basis of which the relief is claimed in the case, applies to the case, in other words, whether the existence, non-existence, nature or extent of any right, liability or disability under the law, asserted or denied in the case necessarily follows, that is, follows as an effect or consequence from a cause. Thus of the three principal stages of trial of a case before a court, the witnesses play a significant role in the first stage by testifying to facts, generally perceived by them with their senses, the second and third stages fall within the exclusive jurisdiction of the court.

From the above it is clear that the relevant relationship of one fact to another is in ultimate analysis a causal or logical relationship. We cannot fully know a fact unless we know the causes thereof. The facts in issue in a case are only truly known to exist when seen as connected with the surrounding body of facts which makes up the four causes (of which the exponent was Aristotle, the founder of Western Logic) giving the reason why the facts in issue exist. "The body of relevant facts exemplifies in its relationship to the facts in issue every one of these four causes." According to Aristotle there is a combination of four types of causes or reasons.

This is known as Aristotle's famous doctrine of Four Causes, Material Cause, Formal Cause, Efficient Cause and Final Cause. The "material" cause is the general body of surrounding circumstances in which the actual facts in issue are a potential event which may or may not emerge. The "formal" 'cause is the general type of occurrence of which the actual facts in issue are a particular example. The "efficient" cause is the well-known "causa causans" of the law reports, that event the happening of which sets in motion the forces that produce the events under consideration-as for example-the fall of a tree in a storm causing the death of a man standing under it.

The "final" cause is the motive of the agent or the state of things which he wants to realise, be it good or bad. "In a perfectly established case of causal inter-dependence we can reason both from effect to cause and from cause to effect; if one exists the other exists or in the language of Aristotle, their inter-dependence is reciprocal and convertible. So, in evidence we may infer the existence of the facts in issue by seeing them either as effects or as causes of the surrounding body a probative facts" (vide the Appendix to Stephen's-Digest of the Law of Evidence, pp. 235-236).

Causality plays an important role in the reasoning of substantive law-as for example in the discussion of proximateness of damages. It is also of great importance in the law of evidence as in the rules of relevancy. The facts in issue are only truly known to exist when connected with the surrounding body of facts which makes up the four causes giving the reason why the fact in issue exists. Thus 'relevance' is simply the logic of inference in a specialised form. The above definition indicates just what is asked of proof by evidence. It aims at relating the fact in issue to a wide surrounding field and then showing that there is implicit in that field some general law of behaviours. These laws are extremely various and of widely differing certainty but in every case the principle is the same.

The facts in issue are shown to be the conclusion which arises inferentially from the surrounding data; cogency of the inference arises from its revealing the operation in the particular case of some general law of behaviour. By exhibiting the facts in issue inferentially or as reasoned facts we justify our desire to have their existence believed in. Inference is, of course, always at work in our thoughts, though with varying degrees of explicitness and elaboration and accordingly the presentation of a case always involves an inference but in varying degrees of prominence. (See pp. 237-238, ibid.)

The law prohibits a witness from giving what is called 'opinions'. He is only to state facts, because an opinion means any statement which does 'not represent direct perception; it may vary from mere belief founded on no grounds at all to the fully reasoned conclusion of the scientific experts. The law, therefore, rejects opinions, (excepting opinions of experts) not so much on the ground that they may be erroneous as because. it wishes to know what are the premises on which the opinion is founded so that it may judge whether the witness knows those premises to be true and what is the strength of the inference arising from them.

With regard to the expert, the law requires the data on which the inference is founded either to be the fruits of his own observation or to have been proved to exist by the direct i.e. (perceptual) testimony of some other witness. In matters of science and art, the expert witness states what inference arises from his data and the court then appraises its cogency. In the case of ordinary i.e. non-scientific facts, the witness only states the facts and the court draws inference. Such is the theory of the law. It is perhaps fair to add that many logicians experience a difficulty in drawing such a hard and fast line between fact and inference as is done by lawyers.

It may therefore be fairly claimed that the operation of proving a case by evidence is simply specialised example of the process of claiming credit for a conclusion by exhibiting it as the inferential outcome of a set of data. The conclusion is the facts in issue and the data are the facts relevant to the facts in issue or probative facts, (see ibid, pp. 239-40).

It must be remembered, however, that judicial inference, that is, the inference as to the existence or non-existence of principal facts or facts in issue from the probative or evidentiary facts cannot amount to the demonstrative certainty of the mathematician or physical scientist. Dealing with human life and its affairs in complex social and jural relations, the logical inference we seek and draw from the proof of probative facts in law must be the inference of a practical nature in relation to which it would be wrong to accept the certainty of the mathematician or physical scientist. This is why from the same set of proved facts in a case before the court, different judges may draw different inferences and conclusions.

The reasons for this are not very far to see. Our passions and our inclinations towards, or our repulsions against, a particular point of view, our arrogance, our prejudices and other irrational and impulsive factors play an important role in this respect as in respect of every other aspect or department of our activities. Man's life is not pure logic and pure reason; man is compromise between passion and reason, between pride and prejudices on the one hand and intellect and knowledge on the other. The faculty of moral wisdom and dharma and the faculty of faith (shraddha), and the faculty of feeling which includes the good and the beautiful (Shivam and Sundaram) are developed in us only a rudimentary form if at all.

The defect of logical reasoning is that it has no sure foundation to stand upon because as just now mentioned, different persons may come to different conclusion from the premises. Not only in the. field of enquiry into supreme and extra-phenomenal problems sometimes faced by man such as freedom of the will, immorality of the soul and existence of God, but in the field of mundane problems facing us in our day to day life and activities, arguments and reasoning cannot give us any correct; satisfactory and true solution.

In relation to court proceedings also by which we try to solve one very important category of our mundane problems, we find that the decision which a lower court takes on the basis of the proved facts is sometimes strongly dissented from by the court of appeal on the basis of the same proved facts. In the case of Brown v. Allen [344 U.S. 443 at p. 540 (1953)], Jackson, J. of the U.S. Supreme Court observed-"There is no doubt that if there were a super-Supreme Court, a substantial portion of our reversals of State courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.

Thus, from the same premises and proved facts, varying inferences and conclusions can be and are actually drawn depending upon various factors such as the personal equation i.e. the major inarticulate promises of the persons concerned or in some cases their better knowledge etc. K.N. Llewellyn one of the most powerful exponents of the Realist School of Jurisprudence in America said in his book "The Bramble Bush"-Never forget that there is an indefinite number of sides to any argument; Never despise an idea no matter how imperfectly or tritely presented or from what source it comes; Never be satisfied with any piece of work, yours or another; because it can always be improved; Maintain your ideas with everything you have but without being dazzled by your own brilliance; you might conceivably be wrong; and always be interested in everything.

He again tells us that the law is not a self-contained set of logical propositions; that rules of law do not explain the result at law; that the stated reasons for a decision regularly mask inarticulate major promises i.e. the personality of the judge, that facts are slippery things, with a nasty habit of changing shape and colour, depending on who is looking at them; that judges are not automatons who announce the law but human beings, possible neurotic; that juries are barely human; that the truth is not in the law books which should nevertheless still be studied, that we do not know yet where the truth is but it is somewher.- in economies or in sociology or in anthropology or psychology or in the murky reaches of Freudian theory. These last words remind one of what Holmes declared in 1886 to the students of Harvar.- "If your subject is law, the roads are plain to anthropology, the science of man, to political economy, the theory of legislation, ethics and thus by several paths to your final view of life."

Without further elaborating this thesis it may now be said that one fact can never be relevant to another fact unless there is some sort of causal relation (in the Aristotelian sense of the four types of cause) between the two. In this sense it can be safely asserted that a fact can never be admissible in evidence unless it is relevant to the fact in issue.

But from what has been discussed above it is also amply clear that legal relevance for various reasons noted already, sometimes parts company with logical relevance and introduces a set of rules (not strictly logical) based entirely on the practical social policy of the law. A very good example is that the bad character of an accused person is deemed to be irrelevant except in reply (section 54 of the Evidence Act). To a layman, the bad character of an accused person is regarded as highly probative of his present guilt but the law of evidence generally regards such bed character as irrelevant except in few cases. Of course there appears to be very good reasons that the law generally treats the bad character of a person as irrelevant in the trial of a subsequent criminal case against that person. The reason is that even a man of bad character may change. He may be reformed.

No person is a born criminal. Modern criminology affirms this. When a person comes into this world, he comes like a pure flower. Thereafter his environments, bad company, training in such company and other facts join together in .gradually converting him into a bad character and a criminal but even then a change may come in him, he may be reformed and may become a decent citizen and even a man of saintly character. Therefore, the policy underlying the law that bad character is generally irrelevant appears to be based on sound foundations. Be that as it may, it may be said however that rules not strictly logical in the law of evidence based on the practical social policy of the law and considered necessary for the fair and smooth operation of the judicial process, are not very numerous and form no obstacle.

Regarding the subject in this light, hearsay evidence, opinion evidence, evidence as to character etc. are excluded (barring a few exception such as those enumerated in sections 32 and 33 etc. and the exceptions relating to opinions of experts and those relating to character in sections 45-55 and a few other minor exceptions) on cogent grounds because in such cases there is no direct perception by the witness of the probative facts to which a party to a suit or legal proceedings has called him as witness to depose. Upon all these considerations I would respectfully submit that the word "admissible" should not be substituted for the word "relevant" in any of the provisions of the Indian Evidence Act.

In order that a fact may be admissible in evidence for the purpose of proving another fact the fact in issue, it must be relevant but from this it does not necessarily follow that every fact which is relevant shall in very case be admitted in evidence for the purpose of proving a fact in issue; all probative facts must he relevant facts but all relevant facts need not be probative facts; again, in a few cases under a set of rules, not strictly logical, facts not strictly relevant in the sense of logic, may be admissible in evidence as probative facts on grounds of practical social policy of the law as evolved out of the exigencies of human affairs and the felt necessities of the times; in that case such facts become relevant under the rules of the law, though not under the rules of strict logic.

The definitions of the words "Relevant", "Facts in issue", "Evidence", "Proved" and "Disproved" in section 3, and the provisions of section 5, of the Indian Evidence Act lend support to this view. In other words, legal relevance need not always be logical relevance. This being so relevancy, that is, legal relevancy which means in the present context relevancy in accordance with the provisions of the Indian Evidence Act, 1872, is always the test of admissibility.

(S.P. Sen-Verma)
26-4-77

Should a New Section, Say, Section 26A, be Inserted in the Indian Evidence Act, 1872, Enabling and Requiring Investigating Police Officers to Record Confessional Statements of Accused Person?

The second point on which I have differed from the recommendations of the majority is with regard to the recording of confessions of an accused by a police officer. According to the majority view a new section may be inserted in the Indian Evidence Act after section 26 as section 26A for the recording of such confession by a police officer. In support of this view it is stated in paragraph 11.16 et seq that a suggestion has been made in the 14th Report of the Law Commission on Reform of Judicial Administration Volume II, page 748, paragraphs 38 and 39*, that as the superior officers of the police are today recruited from the same social strata as officers of other departments, a confession made to the officer of the status of the Deputy Superintendent of Police and above should be acceptable in evidence.

This relaxation, was to be restricted to cases which such officers themselves investigate and should be introduced as an exceptional measure only in the Presidency Towns or places of like importance where investigations can be conducted by superior police officers and where the average persons would be more educated and conscious of their rights. The recommendation for introducing the change in the Presidency Towns at the initial stage was made because the magistracy there was directly under the control of the respective High Courts. In other areas, it was observed, it should be introduced only after the separation of the judiciary from the executive.

*. Page nos. etc. as occurring in the Report Published by the Law Commission.

In a later report of the Law Commission on the Code of Criminal Procedure (48th Report of the Law Commission), the question of confessions made to the police was considered at length and the recommendations in the 48th Report were more or less on the lines of the recommendation made in the 14th Report. In the background of these two reports it is recommended by the majority in paragraphs 11.16-11.18 of the present report that in so far as these recommendations concern the Evidence a new section, say, Section 26A in the Evidence Act.

With respect I am strongly opposed to this recommendation. Whatever the social strata from which superior officers of the police are recruited and whatever the background and educational attainments which such police officers may be supposed to have, the attribute of voluntariness which is the hall-mark and sine quo non of a confessional statement under section 164 of the Code of Criminal Procedure is not likely to be present in an accused person when he is produced before a superior investigating police officer for making a confession under section 164 of the Code of Criminal Procedure, even though the accused person may have a counsel of his choice and such counsel is present when the confessional statement is recorded. It may be stated here in parenthesis that no change has been made in this respect in section 164 of the new Code of Criminal Procedure, 1973.

A police officer investigating a criminal case, however, high his status may be and however equal or superior may be his social stratum to the social strata from which officers of other departments are drawn, cannot be expected to possess and exhibit that attitude of mind and that spirit of detachment and impartiality while recording a confessional statement made by the accused in a case which is being investigated by. himself, which a judicial magistrate by his training, occupation, temperament, attitude and independence generated by such occupation and other factors, always brings to bear when recording a confessional statement of an accused person. We should not forget that a man's approach and attitude to the affairs which he is required to deal with in his official career is to a large extent determined by the nature of the duties which he performs by virtue of his official career.

An officer of the police develops a peculiar habit of mind which is very different from the habit of mind developed by a magistrate doing judicial work. We should not forget that since ancient times the essential function of the police has been maintenance of law and order which is par excellence an executive function of prime importance and the function of a judicial magistrate even while recording the confessional statement of an accused person, is par excellence a judicial function. The recording of a confession of an accused being essentially a judicial function, only the criminal judiciary (magistracy) may be expected to discharge it properly without fear or favour.

These qualities cannot be expected from a police officer, specially when such officer is the investigating police. Being there investigating officer he will have a natural leaning and tendency to prove the guilt of the accused. There is very likely unconscious inclination on the part of an investigating police officer to regard an accused person as the guilty person and he will try in every possible way to involve him in the commission of the offence and to prove his guilt. If by his investigation he cannot prove the guilt of the accused, his efficiency as a police officer will suffer and dwindle and he will come to be regarded by his superior officers as a worthless officer.

It is well known that the promotion of police officers not only in this country but in the United Kingdom also, depends to a substantial extent on the success of the investigating police officers in procuring conviction of the accused persons. It is difficult for such police officers to record a confessional statement made by an accused person in an absolutely detached and impartial manner. Human frailty being what it is, a police officer cannot take the risk of sacrificing his own personal interest when recording a confessional statement made by an accused person.

Moreover, the very presence in the law of such a provision as the one recommended, will lure and tempt the investigating police officer to shape and mould before hand the accused person by threat, inducement and promise and by extortion and oppression and by application of other thud degree methods, in such a way that when he is produced before the very same investigating officer for making his confessional statement, he will make the confession as if he were making it absolutely voluntarily out of his own free will when in fact and reality his moral backbone has already been completely broken and his voluntary will, atrophied and deadened. I am of opinion that the consequences of the introduction of the proposed provision in our statute law will be disastrous on the administration of criminal justice in this country.

The framers of the Indian Evidence Act, 1872, were men of great moral wisdom and circumspection and therefore they were cautious as regards the admissibility of statement made by an accused person before a police officer. The demands of impartial and independent and fair justice will be defeated and thwarted if the views of the majority are accepted.

We may state here that voluntariness on the part of an accused person is the basis of a Magistrate's jurisdiction to record a confession. Before recording a confession it is mandatory upon the Magistrate to ensure by questioning the accused that the statement about to be made by him is spontaneous and voluntary. The judicial magistrate cannot and must not record any confession unless after applying his judicial mind, he is fully satisfied about the voluntariness of the confession. This is imperative and is a matter of substance. The reason which influenced the Legislature in excluding a confession made to a police officer will appear from the following extract from the first Report of the Indian Law Commissioners-

"The police in the province of Bengal are armed with very extensive powers. They are prohibited from enquiring into cases of a petty nature but the complaints in cases of the more serious offences are usually laid before the police. Darogah (now Sub-Inspector or Inspector) who is authorised to examine the complainant, to issue process of arrest, to summon witnesses, to examine the accused and to forward the cases to the Magistrate or submit a report of his proceedings accordingly as the evidence may in his judgment, warrant the one or the other course.

The evidence taken by the Parliamentary Committees on Indian affairs during the sessions of 1852 and 1853, and other papers which have been brought to our notice, abundantly show that the powers of the police are often abused for purposes of extortion and oppression and we have considered whether the powers now exercised by the police might not be gradually abridged.

In one material point we propose a change in the duties of the police by the adoption of a rule prohibiting any examination whatever of an accused party by the police, the result of which is to constitute a written document. This, of course, will not prevent a police officer from receiving any, information which any one may voluntarily offer to him; but the police will not be permitted to put upon record any statement made by the party accused of an offence."

In 1876, Sir Richard Garth, C.J. in R. v. Huribulle, 1876 ILR 1 Cal 207, observed-

"A confession made to a police officer under any circumstance, is not admissible in evidence against him and that section 26 is not intended to qualify the plain meaning of section 25; but means that no confession made by a prisoner in custody, to any person other than a police officer shall be admissible, unless made in the immediate presence of a magistrate. It is an enactment to which the court should give the fullest effect, and I see no sufficient reason for reading section 26 so as to qualify the plain meaning of section 25."

In the well-known case of Queen Empress v. Babu Lal (1884 ILR 6 All 509)-it was observed:

"to repeat a phrase I used on a former occasion, instead of working upto the confession they work down from it, with the result that we frequently find ourselves compelled to reverse convictions simply because, beyond the confession there is no tangible evidence of guilt. Moreover I have said, and I repeat now, it is incredible that the extraordinarily large number of confessions which come before us in the criminal cases disposed of by this court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented.

I may claim some knowledge of, and acquaintance with, the ways and conduct of persons accused of crime and I do not believe that the ordinary inclination of their minds, which in this respect I take to be pretty much the same with humanity all the world over, is to make any admission of guilt. I certainly can add, that during fourteen years' active practice in, the criminal courts in England, I do not remember half-a-dozen instances in which a real confession, once having been made, was retracted.

In this country, on the contrary the retraction follows almost invariably as a matter of course, and though I am well aware how this is sought to be explained by a suggestion of the influence brought to bear upon the confessor by other prisoners in havalat, the fact remains as an endless source of anxiety and difficulty to those who have to see that justice is properly administered.

I say it in no harsh sense of disparagement, but it is impossible not to feel that the average Indian police man, with the desire to satisfy his superiors before, and the terms of the Police Acts and Rules behind him is not likely to be over-nice in the methods he adopts to make a short cut to the elucidation of a difficult case by getting a suspected person to confess (per Mehmood, J.)

Then as late as 1965 in the Mohan Singh case (AIR 1965 Punj 291) Dua, J. observed-

"The police investigating agency in our country has not yet acquired the reputation of being proof against the temptation of attempting to secure confessions by questionable methods."

It is needless to refer to scores of other important decisions on the subject. But it is my duty to bring to the notice of all concerned the views expressed in this behalf by no less a person than the world-renowned thinker, philosopher and mathematician, Bertrand Russell in his essay on "Power". Says Bertrand Russell-

"The gist of the matter is that a police man is promoted for action leading to the conviction of a criminal, that the courts accept confession as evidence of guilt and that, in consequence, it is to the interest of individual officers to forswear arrested persons until they confess. This evil exists in all countries in a greater or lesser degree. In India it is rampant For the taming of the power of the police, one essential is that a confession shall never in any circumstance be accepted as evidence."

Should we ignore the view of the world-famous savant and philosopher?

Section 164 of the Code of Criminal Procedure should be read together with sections 24, 25, 26 and 29 of the Evidence Act and so read the following result follows:

(1) confession shall not be made to a police officer;

(2) it must be made in the presence of a Magistrate;

(3) the Magistrate shall not record it unless he is, upon enquiring, satisfied that it is voluntary;

(4) he shall record it in the manner laid down in section 164 read with section 281 of the Code of Criminal Procedure; and

(5) only so recorded it will be relevant and admissible.

(vide Saw Min's case, AIR 1939 Rangoon 219; Nazir Ahmad's case, AIR 1936 PC 253).

With regards the recommendations of the present Law Commission in its 14th Report, it may be observed that even in England opinions have now been changing regarding statements or confessions made to the police. This is what Sarkar in his Law of Evidence 12th Edition says on p. 270-

"In this connection it may be observed that a section of the thinking people in England is of the opinion that statements or confessions made to the police during the questioning of accused persons should not be made admissible in evidence as under the existing law there. Speaking generally, though the British 'Bobby' has a good reputation, his discreditable conduct of the same members of the police force from time to time in their zeal to secure conviction, evokes much public comment. A disclosure in 1963 of the use of third degree methods by the Shefield C.I.D. to extort confession shocked the public. The Home Office tribunal's finding was that three defenceless victims were subject to "deliberate, unprovoked, brutal and sustained assaults".

In an address to Yorkshire magistrates in 1963, Lord Shawcross, the eminent lawyer and former Attorney-General criticised "kid glove" methods of interrogating suspects. He suggested that the police sometimes found themselves unduly handicapped by Judges' rules governing the questioning of suspects. Alternatively he suggested that Britain might with advantage adopt something like the procedure under the Indian Evidence Act.

The Guardian (Formerly the Manchester Guardian) in an editorial approving the idea of following of the Indian Model, described its gist as giving the police unlimited powers to question a suspect unhampered by the judges' Rules observed in the English procedure but prohibiting statements or confessions made by suspects to the police from being heard in evidence at the subsequent trial proceedings; they can be used by the police only as clues which will lead them to further evidence; and to be admissible as evidence, a confession must be made before a magistrate.

Mr. Dingle Foot, the Solicitor General at one time told that Labour Lawyers in 1963, that one of the troubles was confusion about powers. Not all confessions on which convictions were obtained were voluntary, he suggested that Britain should follow the procedure in the Indian Evidence Act, 1872, which restricts the use in court of confessions to a police officer".

Thus even in England a section of thinking people has been suggesting of late that Britain should follow the procedure in the Indian Evidence Act which restricts the use of 'confessions to a police officer'. We should, therefore, be very cautious in introducing any amendment in the Indian Evidence Act on the lines of the recommendations contained in the reports of the Law Commission. It may be noted here that section 164 of the new Code of Criminal Procedure, 1973, has not made any departure in this respect

Lastly, in my humble opinion a reliance on social stratum from which a person comes as an indication of his superior moral character appears to be a relic of feudalism under which birth in a particular social stratum was regarded as a sign of superior culture and virtue. Such a view is not at all in consonance with the basic human dignity as referred to in the Preamble to the Constitution of India; such an approach is opposed to the spiritual and moral worth of man. History is full of instances of great men and great leaders and teachers of mankind who were born in so-called lower social strata. These appear to be back dated ideas which are not at all in consonance with basic and fundamental traits of manhood and opposed not only to advanced notions and ideas, of the present day but also to the high ideals and heritage, which have, come down to us from the Veda Samhitas, the Upanishads and the Shrimad Bhagavad-Gita.

Even now many instances of torture, extortion undue influence having been exercised by the investigating police agency upon suspects, and accused persons are reported not only in the newspaper but also in the Law Reports.

Upon all these considerations I am opposed to the recommendations of the majority in this respect. No new section should be inserted in the Evidence Act for the purpose; That will be a highly retrograde step and will defeat and thwart impartial, independent and fair administration of justice. In final analysis, such a step will be contrary to our cherished ideal of Rule of Law which we seek to make real in our social, economic, political and jural rotations in the shape of justice, social, economic and political.

"If the lamp of justice", said Lord Bryce, "goes out in darkness, how great is the darkness!"

(S.P. Sen-Varma)
25-4-1977.



Indian Evidence Act, 1872 Back




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