Important Point—Presence of a witness at the time of investigation is absolutely impermissible as it would breach confidentiality of investigation.

Sandeep Mehta, J.

While considering D.B. Criminal Leave to Appeal No.94/2017, the Division Bench of this Court was persuaded to refer the following question for consideration by a Larger Bench:-

“Whether during interrogation of the accused at the time of recording information from him/her with regard to effecting recovery of fact, articles and weapon, the presence of two independent witnesses is necessary or not?”

2. Under orders of Hon’ble the Chief Justice, the matter has been placed before this three Judges Bench for deciding the reference made to it in the above terms. Since the Bench is in seisin of a controversy arising from the conflicting views taken by the Division Benches of this Court on the issue as to whether or not, it is essential to have attestation of the information given by a person accused of an offence to an Investigating Officer under Section 27 of the Evidence Act by independent witnesses, background of the provision requires a brief reference.

Background of the Enactment.- It is common place that the Evidence Act 1872 was drafted in England. Two departures were made from the law existing in England regarding confessions and they were (i) that no statement made to a Police Officer including the confession of an accused could be proved at the trial; and (ii) that no caution was to be given to a person making a statement.

3. When an offence is committed and investigation commences, the Investigating Agency or the Police has two objectives in view. The first is collection of information/evidence, and the second is finding out the offender. In this process, the police may question a number of persons, some of whom may be only witnesses and some who may later turn out to be the person or persons charged. While questioning such persons, the police need not caution them and may leave them free to make whatever statement they wish to make. There are two checks and balances available at this stage. What the witnesses or the suspects say is not to be used at trial as substantive evidence, and a person cannot be compelled to answer a question, which may tend to incriminate him. It is to be noticed that though the police may, at one stage only consider the offender as a suspect and at that point of time, there is no difference between him and other witnesses who are questioned. Those who turn out to be witnesses, and not accused are expected to give evidence at the trial and their former statements are not admissible in evidence. In so far as those ultimately charged are concerned, they cannot be witnesses, save exceptionally, and their statements are barred under Sec. 162 of the Code and their confessions, under Sections 24, 25 and 26 of the Evidence Act. Their confessions are only relevant and admissible, if they are recorded as provided in Section 164 of the Criminal Procedure Code after due caution by the Magistrate and it is ascertained that they are voluntary. These rules are based upon the maxim : Nemo etntur prodere seipsum (no one should be compelled to incriminate himself).

4. So far as the accused is concerned, he is protected from the mischief of a confession to a charge both after and before his custody unless he did so in immediate presence of a Magistrate, or his confession was recorded by a Magistrate. In either event, the confession has to be voluntary and free from taint of threat, promise, fear, coercion etc. The law was so framed to protect a suspect against abuse of powers and use of third degree methods by the Investigating Agency. The English Law as it stood then was taken as a model for accused in custody. However, Section 27 has been framed as an exception to Sections 24, 25 and 26 of the Evidence Act.

5. The Celebrated author Mr. Taylor in his Treatise on the Law of Evidence made the following remarks:-

“Where in consequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact