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IN THE HIGH COURT OF ALLAHABAD
M. C. Desai, B. Mukerji and A. P. Srivastava, JJ.
DEOMAN UPADHYAYA - Appellant
Versus
STATE - Respondents
Criminal Appeal 325 Of 1959
Decided On : 08/24/1959
Whether Section 27 of the Indian Evidence Act is void because it offends against the provisions of Article 14 of the Constitution?
Fact of the Case:
The appellant was convicted under Section 302 I.P.C. for the murder of Smt. Sukhdei. No direct evidence was available to prove that the appellant had committed the murder. Only certain circumstances were relied upon, the principal among them being that in course of the investigation while the appellant was in police custody he had given some information leading to the discovery of a blood-stained gandasa lying in a tank of the village. The statement was sought to be proved under Section 27 of the Indian evidence Act. In the appeal against his conviction by the appellant one of the points raised by his learned counsel was that as Section 27 of the Indian Evidence Act was ultra vires, the prosecution could not take advantage of it for proving the alleged statement of the appellant against him.
Finding of the Court:
Section 27 of the Indian Evidence Act creates an unjustifiable discrimination between persons in custody and persons out of custody and in that way offends Article 14 of the Constitution and is unenforceable in its present form.
Issues: 1. Whether Section 27 of the Indian Evidence Act is void because it offends against the provisions of Article 14 of the Constitution? 2. Whether Sub-section (2) of Section 162 in so far as it relates to Section 27 of the Act is void?
Ratio Decidendi: 1. Section 27 of the Indian Evidence Act enacts a very salutary rule and that there is nothing inherently wrong with the principle on which it is based. Keeping in view the conditions prevailing in this country and particularly the behaviour of police-officers while investigating offences the legislature enacted in Section. 25 and 26 of the Evidence Act and Section 162 Cr. P. C. the general rule that confessions made before police-officers or statements made during investigation to such officers, should not be allowed to be proved against the accused persons. Section 27 of the Evidence Act was, however, enacted as an exception to the rule and statements which led to the discovery o facts afforded a guarantee of their correctness. So far no reasonable exception can be taken to the provision. 2. A condition was, however, attach-ed to the admissibility provided for in the sec-tion by the introduction of the words "in the custody of a police-officer." On account of this stipulation statements contemplated by the section made by persons in custody can be proved but statements of persons not in custody cannot be proved though both may be statements made by accused persons and both may satisfy the test of having led to the discovery of facts. The argument is that this is an unreasonable classification which has no connection whatsoever with the object of the enactment. According to the learned counsel for the appellant on account of this unjustified discrimina-nation between persons in custody and persons out of custody while making statements the whole section becomes void as it infringes the guarantee of equal protection before the law contained in Article 14 of the Constitution, It is therefore urged that Section 27 of the Evidence Act must be struck down as in conflict with the fundamental right guaranteed by the Constitution and with it must go the provision in the second sub-section of Section 162 Cr. P. C. according to which nothing in that section is to affect the provisions of Section 27 of the evidence Act.
Final Decision: Both the questions referred to this Bench are answered by saying that inasmuch as Section 27 of the evidence Act creates an unjustifiable discrimination between "persons in custody" and "persons out of custody" and in that way offends Article 14 of the Constitution it and Sub-section (2) of section 162 Cr. P. C. in so far as it relaites to Section 27 of the Evidence Act are void to the extent of that inconsistency. In their present form they arc and must remain ineffective as long as that discrimination is there.
( 1 ) I respectfully dissent from the view taken by my learned brothers that Section 27, Evidence act, and Section 162 (2), Cr. P. C. are void on account of denying equality before the law guaranteed by the Article 14 of the Constitution.
( 2 ) ADMISSION is defined in Section 17 of the Evidence Act to mean a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide section 21. A confession is a specie of an admission of an accused; it is an acknowledgment in express words of the truth of the guilty fact charged; Wigmore on Evidence, Volume III, third edition, paragraph 821. In other words it is admission of all the facts in issue and Consists expressly or impliedly of as many admissions as there are facts in issue. In Pakala Naravana swami v. King Emperor. 66 Ind App 66: (AIR 1939 PC 47) Lord Atkin observed at page 81 (of ind App): fat p. 52 of AIR)
"a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e. g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other mans possession".
No confession made to a police officer can be proved; this is Section 25 of the Evidence Act. This provision is narrow inasmuch as it bars proof of a confession, and not of an admission, by an accused to a police officer and is wide inasmuch as proof of a confession made to a police officer is barred regardless of whether the accused was in custody or not and whether the confession was made during investigation or not Section 26 lays down that no confession made by any person while he is in the custody of a police officer shall be proved as against him unless it be made in the immediate presence of a Magistrate. While Section 25 deals generally with all accused, Section 26 deals specifically with those in the custody of a police officer (referred to, for the sake of brevity, as those in custody ). These two provisions are based upon the principle of unreliability of the police. Section 27 lays down that"when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. "
Whether the section is an exception to only Section 26, which immediately precedes it, or to sections 25 and 26, or to Sections 24, 25 and 26 was once a matter in controversy. It is more than a mere exception to all or any of the preceding sections; it deals with information" whereas the preceding section or sections deal with only confessions; Sections 25 and 26 overlap to some extent; a confession by a person in custody to a police officer is hit by both of them. Section 27 deals with any information confirmed by subsequent facts received from a person in custody; information received by a police officer is as much within its scope as information received by someone else. In practice it is the information received by a police officer that is sought to be proved under the section. Had the legislature intended to exclude this information from the scope of Section, 27 it should have added appropriate words in the section. Once it is conceded that it deals with information received by a police officer one would have no difficulty in holding that it is an exception to Sections 25 and 26 both. It was held by the Supreme Court in Ram Kishan v. State of Bombay, 1955-1 SCR 903: (AIR 1955 SC 104) and by this Court in Queen-Empress v. Babu la1, ILR 6 All 509 that it is a proviso to Sections 2. 5 and 26 both and that consequently so
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