Section 27 of the Indian Evidence Act, 1872 and its link with Custodial Violence

July 4, 2023

Section 27 of the Indian Evidence Act, 1872 and its link with Custodial Violence

This article has been written by Rashmi Singh, a student of Shambhunath Institute of Law (Prayagraj), Uttar Pradesh.

Introduction

As defined by Mr. Stephen,J., in his ‘Digest of the Law of Evidence’, “Confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.” The provisions relating to confession have been dealt with under Sections 24-30 of the Indian Evidence Act, 1872. Section 27 of the act cannot be discussed without a mention of Section 25 & 26 of the same. Section 25 & 26 lay down the basic principle that no confession of an accused, made to a police officer or while he is in police custody shall be proved against the accused, and therefore, such a confession is inadmissible as evidence in a Court.

Overview of section 27 of the Indian evidence Act, 1872

Section 27, however, provides an exception to this general rule laid under Section 25 & 26. The section reads as follows:

“27. How much of information received from accused may be proved.-Provided 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 a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, maybe proved.”

Therefore, Section 25 & 26 of the Act impose a complete ban on the admissibility of any confession made by an accused in police custody, but the same would stand lifted if the statement distinctly related to discovery of fact, as was held in the case of Pandurang Kalu Patil & Anr. v. State of Maharashtra (AIR 2002 SC 733). The rule laid down under Section 27 of the act is often known as the “Theory of confirmation by subsequent facts”, and the statements made in custody are admissible only to the extent that they can be proved by subsequent discovery of facts, as was observed in the case of Selvi v. State of Karnataka (AIR 2010 SC 1974). Only that part of the statement is admissible in evidence which leads to the discovery of fact alone [Raju Manjhi v State of Bihar (AIR 2018 SC 3592)].

Following are the essential requisites for the application of Section 27 of the Act, as explained by the Privy Council in the case of Pulukuri Kottaya and Ors. v. Emperor (AIR 1947 Privy Council 67) and in the subsequent decisions given by the Hon’ble Supreme Court on the point:

A fact has been discovered.

The word “fact” under Section 27 is not limited to “actual physical material object”, but also includes the place from where the concealed object was produced and the exclusive knowledge or mental awareness of the accused as to its existence.

The fact was discovered in consequence of the “information” received from the accused.

While giving the information, the accused was in the custody of a police officer.

The fact discovered has been deposed to.

Such deposition may be done either by the police officer himself, or by any other person who witnessed the same.

What can be proved before the Court thereafter is “only so much of the information which distinctly related to the fact thereby discovered”.

The very object of this provision is to allow a certain portion of the statement made to a police officer by an accused of an offence admissible in evidence, whether such statement is confessional or not. The subsequent discovery of fact affords some guarantee as to the truthfulness of the information relating to the fact and provides a presumption as to the genuineness of the information provided by the accused in police custody, which is why such part of the statement is allowed in evidence.

Misuse of Section 27 of the Act for Custodial Violence by the Police

The ban on admissibility of statements or confessions made by accused to the police officers or in police custody is a provision brought for the protection of the accused from custodial violence, torture, etc. by the police officials. However, Section 27 of the Act defeats this purpose by allowing the statement made by accused in police custody to be proved against him to the extent that the information relates distinctly to the discovery of a fact. The section, on one hand, provides relaxation to the total exclusion rule, and on the other hand, it is a provision which is most prone to a blatant misuse by the police, as was observed in the case of Vijay Singh v. State of M.P. (2005 Cr. L.J. 299, M.P. HighCourt).

Interrogation to elicit confessions remains a major pretext for the use of torture in India. Although there are a number of provisions in Indian laws to prevent such torture against the accused, the leading one being Article 20(3) of the Constitution of India, which provides protection against self-incrimination. Accordingly, no person accused of any offence can be compelled to be a witness against himself. Sections 25 & 26 of the Evidence Act also make confessions by accused to police or whilst they are in police custody, inadmissible in evidence. However, Section 27 of the Indian evidence Act, 1872 allows the admissibility of such information as have been an immediate effect or link for the discovery of any fact, thereby leaving a huge loophole for misuse by the police in the process of investigation. The main point that this section focuses on is the “discovery of fact” as a result of the information given by the accused in police custody. Therefore, little importance is given to the process by which such information has been attained, as the “desire for information” is greater in such cases, instead of the focus on violent act by the police. Police uses methods such as torture, threat, physical or mental violence etc. in the garb of extracting information from the accused.

As per the reports of the National human Rights Commission, there have been 155 deaths in police custody in the year 2021-2022. Section 24 of the Act clearly lays down that any confession obtained from the accused by the application of inducement, threat or promise shall be inadmissible in evidence, as the basic requirements are that the confessions made must be voluntary in nature so as to not hit Article 20(3) of the Constitution of India. However, Section 27 being a proviso to Sections 24-26 of the Act (as was held in the case of Queen Empress v. Babul Lal, 6 All. 509 (FB) and in Jafarudheen v. State of Kerala AIR 2022 SC 3627), allows the admissibility of confessions obtained in the manner aforesaid if it relates distinctly to the discovery of a fact. Therefore, it gives an edge to the police officials to obtain information by using any means whatsoever, and the custodial violence inflicted may not always necessarily be physical in nature. If the violence applied by police in obtaining the information from the accused is proved before the Court, then such statement or information becomes inadmissible in evidence. However, it is not always possible to prove the violent act before the Court because sometimes it may be in the form of mental torture, threats, coercion etc. which are not so easy to be proved in Courts, thereby subjecting the accused in police custody to a greater evil, without an actual resort.

As held in the case of Babudas v. State of M.P. (2003 Cr. L.J. 2536 (SC)), in police custody, an accused may be forced or tortured, because of which the accused may reveal false information on the path of which the police may recover/discover false articles (facts). Such a provision can even be misused to the accused person’s detriment and trap him in a false case by bringing false or fabricated evidence into being as there are not sufficient safeguards to ensure whether such information was actually given in the police custody or not.

The main purposes for which the police misuse their powers through this section are:

To end the investigation of the case as soon as possible, and get rid of it.
Speedy investigation of cases is one of the factors significant for promotion of the police officer.
Since the rate of conviction is comparatively lower in criminal cases, therefore, the recovery rate of materials is a proof of the success of the police officers, and is a point of competition among states as the data regarding the recovery of property is reported each year in the reports of the National Crime Records Bureau (NCRB).

However, the Judiciary in India has, time and again, provided various guidelines and precautionary rules by means of various judgments such as those provided in D.K. Basu v. State of West Bengal (AIR 1997 SC 610) and in Pulukuri Kottaya v. Emperor (AIR 1947 PC 67). But still, due to lack of appropriate legislations in that regard and of specific anti-torture laws, the horrors of custodial violence still continue in India, that too with a constant increase in the numbers of custodial deaths every year as reported by the NHRC, NCRB and data from other trusted survey reports. As a rule of precaution while recording the confession of accused under section 27, the Supreme Court in Subramanya v. State of Karnataka (2022 SCC OnLine SC 1400) laid down that a Panchnama should be prepared initially at the police station and two witnesses should also be called at the police to witness the confessional statement and thereafter to witness the discovery of fact (both of which must be incorporated in the Panchnama). However, in various other cases, it has been held that such a requirement is merely a rule of precaution formulated by the Indian courts and is not a sine qua non for recording confessions under the said section.

Conclusion

The right to life and personal liberty as guaranteed under article 21 of the Constitution of India is one of the most important fundamental rights available to all persons, and the same cannot be denied to an accused person as well, although it can be regulated by appropriate restrictions. Custodial violence is a grave violation of this very basic right of the accused persons. Various measures are being taken by the Indian courts to curb this menace, such as the direction by the Hon’ble Supreme Court in the case of Paramvir Singh Saini v. Baljit Singh & Ors. (SLP (Criminal) No. 3542 of 2020) to install CCTV cameras in police stations. The Law Commision of India has also suggested that Section 27 of the Indian Evidence Act, 1872 must be revisited and appropriately amended in the wake of rising number of custodial violence and custodial deaths. It has also been recommended that India should ratify the United Nations Convention Against Torture and enact a domestic legislation against such torture.

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July 4, 2023