Report No. 14
29. Public co-operation.-
The police officers have complained that investigation is hampered by lack of co-operation on the part of the public. It is said that it is not unusual for even persons who have been eye-witnesses to the commission of an offence to evade or attempt to evade giving evidence. In our view, one of the reasons for this lack of co-operation is the scant regard which the police department pays to the convenience of persons who may offer to give evidence and the general discourtesy and even suspicion with which they are treated. Witnesses should receive a far better treatment both when they appear before the police and in court than they actually receive.
The manner of their cross-examination by the opposing counsel not unoften borders on the insulting and offensive. This naturally leads to a disinclination on their part to appear in court. No one can expect a citizen, zealous though he may be, to assist in the detection of crime and the promotion of justice, to interrupt his normal life and avocation if he is to be subjected to such treatment. Very often the provision of elementary conveniences to persons appearing in courts as witnesses is sadly lacking. Witnesses in the rural and smaller urban areas are not assured even of their expenses of going to and coming from police stations and courts. All these factors undoubtedly add to the difficulties of investigation.
30. The Inspector-General of Police, West Bengal, fully appreciated the difficulties of the witnesses. He told us that the long delay in the disposal of cases leads to difficulties in the production of witnesses; witnesses forget many of the details; and they are not examined when they appear. In fact, the witness feels he is harassed by having to appear in court more often than necessary.
31. In dealing with the question of the want of co-operation on the part of the public with the police, we cannot ignore the erstwhile traditions of the Indian police, the part they were compelled to play in the history of the country and the use to which they were put in the past. The police force was not unoften employed as a weapon of oppression by the then ruling power.
The past is too recent to be forgotten by the public. As some of the police officers have conceded, in those days they could detain witnesses with impunity for a considerable length of time. They inspired fear and were never looked upon with trust or confidence. Even though that fear of the police no longer exists, their continued use in law and order situations prevents the citizen from regarding them as the protectors of his rights and liberties. This is another and an important reason for the investigating staff being as far as possible separated from the rest of the police organisation.
As to the wider question of begetting public co-operation, the police force can earn the confidence of the public only by the rectitude of its own future conduct. What is needed is an orientation in the outlook of the police officers towards their duties and their attitude towards the public so that the people should consider them as friends to whom they could resort for succour and aid. This is bound to take time. But we hope that in the meanwhile, the division of the police into two wings as suggested above, will help in inducing the co-operation of the public in the detection and investigation of crime.
32. Admissibility of Confessions.-
We shall now deal with confessions. The Indian Evidence Act, 1872 has laid down certain rules regarding confessions. Section 24 provides that a confession made by an accused person which appears to the Court to have been caused by an inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority under the circumstances mentioned in the section, is irrelevant in a criminal proceeding. By section 25 a confession made to a police officer is prohibited from being used as against the person accused of any offence. Further, under section 26, no confession made by an accused person in the custody of a police officer can be proved against him unless he made it in the immediate presence of a magistrate.
33. What is a confession?-
A "confession" has been explained by the Privy Council as a statement which "must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence".1 A self-exculpatory statement will not amount to a confession. A statement so worded that some of the facts establish the commission of an offence while some others are exculpatory in nature thereby negativing the offence would obviously be not a confession. Section 27 of the Evidence Act permits the proving of a statement, whether it amounts to a confession or not, if in consequence of that statement, any fact is deposed to as discovered.
1. Pakala Narayanaszvami v. King Emperor, 66 IA 66 (81).
34. Distrust of the police (The case for making confessions admissible).-
It is not necessary to deal with the voluminous case-law on the true interpretation of section 27. The extent of its application has been laid down by the Supreme Court in a recent decision.1 The important and controversial question which arises for consideration is; whether the prohibition against the admission of confessional statements made to a police officer is justified in the present conditions. It was claimed by the police officers all over India that this provision, based on a lack of confidence in the integrity and honesty of the police, should in view of our independent status and the changed set-up in the country, be discarded and a certain measure of trust be reposed in the police.
It was urged that the restrictions upon the admissibility of a confessional statement were imposed at a time when the police in general did not enjoy a good reputation. The conditions have now altered and persons who man the higher levels of the police machinery belong to the same strata of society as those in the other services of the State, including the judiciary. It was claimed that the character of the police as a whole had risen considerably and that it was desirable that confessions made to police officers should be made admissible in evidence subject of course to the court examining their probative value as in the case of any other evidence.
It was conceded that historically considered, the police organization had come into existence primarily for the maintenance of law and order and for the support of the foreign rule and that its function of detection and investigation of crime were in the past treated as of secondary importance. In days when the police force was used for the suppression of the people, the Government was not much interested in the beneficial aspects of the police organization. The two ideas were to a certain extent mutually inconsistent. It was not necessary for the Government to get a police officer of high integrity if it was proposed to make use of him for suppressing national aspirations.
These facts were recognized by the police officers and they conceded that under conditions which existed in the pre-independence period, their character and status were not such as to inspire public confidence. But they claimed that it was of the utmost importance in the present conditions that the police should be shown a greater measure of confidence in the interests of the development of the nation. It remains to be considered whether this claim can be accepted; and if so; to what extent we can advance in this respect.
1. Ramkrishnan Mithanlal Sharma v. State of Bombay, AIR 1955 SC 104.
35. Contrast with the English police force.-
We may refer in this connection to the position of the London Metropolitan Police Force.
This Force was established in 1829. The first two Commissioners of Police laid down the following two principles in 1829.1
(1) That the Police are not above the law but subject to it like any ordinary citizen and answerable for every action exceeding their legal powers; and
(2) That the Police must be strict and impartial and must seek to administer the Law without fear or favour whatever the political, national or social complexion of the persons with whom they have to deal.
Sir Harold Scott, himself a Commissioner of Police, observes:
"The Police in this country have fortunately never been involved in politics. Not only are the individual officers expressly forbidden to take part in political activities but it has become the rule of Government of whatever party to avoid any action which might impair the reputation of impartiality which the Police have gained over so many years2. During the blitz for the first time, people who looked at the Police as their natural enemies found that the Police were in fact their best friends."3
1. Scotland Yard by Sir Harold Scott, p. 18.
2. Ibid., p. 17.
3. Ibid., p. 22.
In answer to the oft-repeated question how a London policeman is regarded by every law-abiding citizen as a friend and helper, Sir Harold Scott writes:
"My reply was always that this relationship is not to be achieved in a day and it is necessary to begin a hundred years ago with the sound principles laid down by Mayne and Rowan. Successive generations of Police officers have been schooled to regard themselves not as masters but as servants of the public. They have been taught that even when prosecuting a case against an offender they must be scrupulously fair and that when they have put a case before the court, their duty is done; and that they are not concerned with the verdict. If there is anything to be said in favour of the accused, it must not be withheld from the court after conviction, and if a piece of evidence favourable to the accused comes to light during their inquiry, it must as a matter of course be communicated to the defence."1
1. Scotland Yard by Sir Harold Scott, p. 98.
36. Position in India different.-
When the police officers who gave evidence before us attacked the provisions in the Indian Evidence Act as derogatory to the force as a whole, they referred to the law in England in support of their point of view. They pointed out that in England a statement made to a police officer is accepted in evidence. They pleaded that the police in India should be similarly treated. In taking up this position, they seemed to ignore the circumstances which have made the Indian policeman what he is. It must be conceded that in India, the police force as a whole is not, even today regarded as a friend of the citizen.
This is natural as the facts and circumstances of its creation and the use made of it by an alien government cannot be forgotten so soon. The principles referred to above which entered into the making of the Metropolitan Police Force were at no time sought to be adopted in the formation of our police force. It is the application of these principles for over a century which has made the Englishman regard the policeman as his friend and protector. In order that the citizen in this country should come to look upon the Indian policeman in the same manner, the police force in the country will have for many years to conform to the principles and practice which have governed the conduct of the British Police. Such a course of conduct alone can win for them the confidence and esteem of the public.
37. Relaxation of sections 25 and 26 (All statements to police cannot be made admissible).-
The police officers who gave evidence seemed to forget that the rules laid down in the Evidence Act are not a reflection on individual members of the police force but only a recognition of the imperfections of the system as it prevails today. The large mass of offences in our country are investigated only by the subordinate police officials. The high sense of fairness and justice which might actuate the superior personnel does not permeate the lower ranks. To make a confession made to a subordinate police official admissible in evidence would therefore be fraught with dangerous consequences.
It is seldom that a confession is voluntar4 made to a police officer. It is probably only after a considerable amount of questioning that a statement is obtained from an accused person. At what stage the questioning takes the form of undesirable methods can never be known. The questioning itself may be of such a nature as to deprive the statement of its voluntary character. The reasons which have led to the laying down of the rules mentioned above are equally valid today. We are, therefore, unable to accept the suggestion that these provisions of the Indian Evidence Act should be modified so as to make all confessions made to the police or at a time when the accused persons are in the custody of the police, admissible in evidence.
38. A suggested relaxation (Statements to superior officers).-
It is, however, true that the superior officers of the police are today recruited from the same social strata as officers of other departments including even the judiciary. The change that can be suggested must, therefore, be a limited one and must have reference to these officers. Though some of the lawyer witnesses who appeared before us were not inclined to see any merit in the proposal that the higher officers of the police should be regarded as persons fit to be trusted in this respect, a large number expressed themselves in favour of it. We are of the view that officers of the status of a deputy superintendent of police and above might be trusted and that confessions made to them can be accepted in evidence.
This relaxation must necessarily be restricted to cases which such officers themselves investigate. If the investigation is in the hands of a subordinate police officer, he might so work on the accused as to bring him to the point of making a confession and then produce him before the superior officer. In such cases the safeguard of the confession having been made to a superior police officer will not be present. In cases of serious offences and grave crimes, it should be the general rule that a superior officer of the police of the status referred to should conduct the investigation.
If during such an investigation, a confessional statement is made by an accused it should be made admissible in evidence. A rule should also be made obliging the police officer before he receives such a statement to warn the accused person that any statement made by him may be used in evidence against him. We are aware that this proposal can be of only limited application. This is, however, a matter in which we must proceed with great caution and we can only make a beginning, the scope being broadened later on proof of its successful working.
39. In certain areas to be admissible.-
We are further of the view that this change cannot be introduced at once all over the country. We are suggesting it as an experimental measure. We feel that it should be first tried in the Presidency towns or places of like importance where investigations can be conducted by superior police officers and where the average citizen would be more educated and conscious of his rights. The extent to which this change in the law helps the administration of justice will have to be carefully watched for some years before its extension to other areas can be decided upon. If our proposal regarding the admissibility of such confessions is accepted, consequential amendments to sections 25 and 26 of the Indian Evidence Act would be necessary.
In the three Presidency towns, we have a magistracy which is directly under the control of the High Court. We feel, therefore, that such a magistracy would take a detached view of the evidence before it and not be led into accepting without due scrutiny, the evidence in the shape of such confessions. The introduction of this change in other areas should in our view be preceded by the separation of the judiciary from the executive. Without this safeguard, we would not feel justified in recommending the admissibility of confessional statements made even to superior police officers.
Even the limited change proposed by us was objected to by certain witnesses on the ground that if the accused is willing to make a confession it should be easy for the police to produce him before the magistrate so that, after observing the formalities laid down in section 164 of the Criminal Procedure Code, a judicial confession might be recorded. No doubt, when an offence has been deliberately committed, the accused person is unlikely to confess to the offence in a fit of remorse.
However, in the normal run of cases where an investigation speedily follows upon the report of the offence and the offender is present during the investigation or is aware of the evidence collected against him, he is likely to feel impelled to state how the offence was committed. It is generally the time-lag that causes an accused person to refrain from admitting the facts. The delay that would be occasioned by having to produce the accused before a magistrate would thus have the effect of preventing the accused from admitting the facts.
40. Section 27 of the Evidence Act.-
Section 27 of the Indian Evidence Act is in the nature of an exception to the rigid requirements of the earlier sections 25 and 26. The view has been repeatedly expressed that it has been grossly misused. It is urged that while sections 25 and 26 are intended to afford protection to the accused, that protection is to a large extent destroyed by the ingenuity of the police officers in recording the "information" given by the accused. The information is deliberately recorded in a manner so as to make it appear that it has led to the discovery of some facts incriminating the accused person.
Section 27 follows the English law, where the principle underlying it is called the theory of confirmation by subsequent facts. But the admissibility of the information, whether it amounts to a confession or not, is bounded by the requirement that only "so much of such information" as relates "distinctly" to the fact discovered can be proved. The view that any information which served to connect the object discovered with the offence charged was admissible, was negatived by the Privy Council in Pulukuri Kotayya v. Emperior, AIR 1947 PC 67.
It has been urged on the one hand that even on the interpretation put by the Privy Council on section 27, its operation leads to an abuse by the police, as the police manipulate the information recorded by them in the manner mentioned above and that therefore section 27 should be repealed. This view has been met by the argument that the section embodied a well-accepted principle of English criminal jurisprudence and that there is no reason why a statement by an accused person which is corroborated by the discovery of a fact should not be available for use against him.
We are not prepared on the material which we have been able to gather to recommend a repeal of the section. To discard this principle accepted for years both in British and Indian criminal law would be to impose a handicap on the proof of crime in our courts. The repeal of the section will also be contrary to the principles which have been accepted by our courts generally that statements by accused persons and accomplices could be acted upon, if corroborated by independent testimony or facts.
It may be that a closer study may reveal some method of preserving in many cases the valuable evidence of the commission of a crime consistently with preventing abuse by the police of this method of adducing proof of the crime. This aspect of the matter may be considered by us later when the revision of the Indian Evidence Act is taken up.
Modification in special areas- However, the recommendation which we have made in regard to the admissibility of confessions made to superior police officers in the Presidency towns will necessitate abrogation of the rule laid down in section 27 in cases in which such confessions are admissible. The rule in the section is, as already stated, in the nature of an exception to the requirements of the provisions of sections 25 and 26. As we are relaxing the application of the requirements of that section in the case of statements made to superior police officers in the Presidency towns, there can be no room for the application of the exception in such cases.