CHAPTER-V

RELEVANCE OF INFORMATION OF ACCUSED

5.1 Introduction
A part of a confession hit by Sections 25 and 26 of Evidence Act may

still be proved against the accused if it distinctly leads to discovery of any fact

during the course of investigation by virtue of section 27. The provision is

couched in the form of a proviso, an exception, though it is not clear from its

terms as to which provisions it qualifies. Fortunately, the controversy has been

set at rest by judicial pronouncements and it is accepted that the section

qualifies only Section 25 and 26 and not section 24, as shall be seen later in
this chapter. First, we examine the nature of and reasons for creating this all

important exception to the rule of total exclusion of custodial confessions.

Section 27 enacts the English doctrine of confirmation by subsequent

facts. The two broad reasons based on which the total exclusion rule in Section

25 and 26 has been justified are:

a. Confession made to police or in the presence of the police may be false

and could have been made by the accused as the only way to escape

police torture.

b. Even if true, admitting such confession in evidence will encourage the

illegal and inhuman atrocities committed by the police.

If a part of a statement made by the accused when he is in police

custody directly and distinctly leads to discovery of a fact relevant to the

investigation, the veracity of the said part gets confirmed. This makes at least
reason cited at (a) above not applicable so far as that particular part of the
statement is concerned. As regards reason (b), its absence is ensured by the

Supreme Court in the Landmark judgement delivered by a bench of eleven

 163

judges hold that the provision of section 27 is constitutionally valid subject to

the condition that the information has not been obtained by compulsion.1

Thus, a statement of an accused or part thereof as made admissible in

evidence by section 27 assumes a great significance both because it provides

for a well justified relaxation to the total exclusion rule in case of confirmation
of the statement be subsequent facts and also may, more so, because this is one

provision which is susceptible to the most blatant misuse by the police.

Discoveries can be planted on the accused. They can also be made by way of

an illegal search and shall be admissible in evidence ever if illegality is

proved, because of the absence in the Indian Constitution, of a right akin to the
IV amendment to the U.S. Constitution.2 It has been specifically held by the

Indian Supreme Court that an evidence obtained by illegal search and seizure
is nevertheless admissible.3

5.2 Conditions necessary for application of Section 27

The conditions necessary for application of this provision are:

(i) The fact of which evidence is sought to be given must be

relevant to the issue;

(ii) The fact must have been discovered in consequence of some

information received from the accused whether the said

information amounts to a confession or not;

(iii) The person giving the information must be accused of any

offence;

(iv) He must be in custody of a police officer;

(v) The discovery of a fact in consequence of information

received from an accused in custody must be deposed;

1
State ofBombay v. Kathi Kalu, AIR 1961 S.C. 1808.
2
Ratan Lai & Dhiraj Lai: The law of Evidence, p. 198, (Edi 21, 2005).
3
Vijay Singh v. State ofM.P„ 2005 Cr. L,J. 299 (M. P. High Court).
 164

(vi) That portion only of the information which relates distinctly

to the fact discovered can be proved.

5.3 The Facts Discovered

The fact discovered in consequence of information must be a relevant

fact. The fact must be the consequence and the information, the cause of its

discovery. The information and the fact should be connected with each other

as cause and effect. If any portion of the information does not satisfy this test,
it should be excluded.4 Therefore, it is the connection of the thing discovered
with the offence which renders it is a relevant fact.5 The mere pointing out of

places by the accused where the occurrence took place without any material
thing having been found there would not be included within the term fact
discovered under Section 27.6 Similarly, a discovery of a person who

afterwards comes to rank as a co-accused does not come within the term ‘fact’
as postulated in section 27.7

The fact discovered may be the stolen property, the instrument of

crime, the corpse of the person murdered or any other material thing; or may
be a material thing in relation to the place or the locality where it is found.8

“Fact” as defined in Section 3 of the Evidence Act includes both

physical and psychological facts. But it appears that discovery of any fact

referred to in Section 27 of the act does not include mental or psychological

facts, for example, the mental acts of becoming aware of something or

intention. The word ‘fact’ is used in the sense of physical fact which can be

perceived by the sense and discovery of such facts alone can eliminate the fear

Rajender Kumar v. State ofRajasthan, 2003 Cri. L.J. 4344 (S.C.)

Ayyappan v. State ofKerala, 2005 Cri. L.J. 57 (Kerla High Court).
Charat alias Sunda v. State of Haryana, 2005, Cri. L.J. 1523 (Punjab & Haryana High
Court).
R.V. Babulal (1884)6 All 509.
Surjit Singh v. State ofPunjab, 2005 Cri. L.J. 1176 (Punjab & Haryana High Court).
 165

of confession being extracted by improper inducement and confirm the truth of

the information received from the accused. It is laid down that normally the
section is brought into operation when a person in police custody produced

form some place of concealment some object such as a dead body, a weapon

or ornaments said to be connected with the crime of which the information is

the accused.9 The fact discovered embraces the place from which the object is

produced and the knowledge of the accused as to this.

In Udai Bhan v. The State of Uttar Pradesh,10 the facts and the decision

thereon were as follows:

The complainant went out for a short while by locking his shop. On his
return after about 3/4th of an hour he found his shop broken open and above

containing Rs. 2,000/- and clothes and another box from the pond containing
Rs. 200/- stolen. During the investigation on being interrogated the accused

while in police custody brought a box from the pond near his field and handed

it over to the police. The accused also handed over to the police the key which

fitted the lock and said that he had opened the lock of the shop of the
complainant with that key. Recovery memos were prepared in which the

police had stated those matter relating to discovery. It was held that the

evidence in regard to the discovery of the key as well as the box was

admissible in evidence under section 27 of the evidence Act. The handing over

of the key was not a confessional statement but the confession made in fact is
that with that key the shop of the complainan was opened and therefore that
portion was inadmissible in evidence and only that portion was admissible
which distinctly related to the fact discovered, i.e., the finding of the key.

Similarly, the recovery of the box was provable because there was no

Bharat v. State ofMP., 2003 Cri L.J. 1297 S.C.

AIR 1962, SC 1116.
 166

statement of a confessional nature in the recovery memo relating to it. It was

also observed that a discovery of a fact includes the object found, the place
form which it is produced and the knowledge of the accused as to its existence.

5.4 Information must be Received form a Person Accused of any Offence

The expression ‘accused person’ in section 24 and the expression

‘person accused of any offence’ in Section 25 have the same connotation, and

describes the person against whom evidence is sought to be led in a criminal

proceeding. The expression ‘accused of any offence’ in Section 27 as in

Section 25, is also descriptive of the person concerned against whom evidence

relating to information alleged to be givdn by him is made provably by section

27 of the evidence Act. It does not predicate a formal accusation against him at

the time of making the statement sought to be proved as a condition of its

applicability.11

5.5 Information should come from Accused himself

When information under Section 27, Evidence Act, is sought to be

admitted, the condition imposed is that it should be an information coming

form a person accused of any offence in the custody of a police officer. This

information must, therefore, come from an accused himself, and not from

anybody else, and this must lead to the discovery of some relevant fact. The

discovery of the dead body had been made by the accused himself but the

information that the dead body lay at a certain place before the accused had

discovered it, was given by somebody else, and it was therefore, held that this
information could not be admitted in evidence.12 On accused’s statement,

while in police custody, the police officer went to the house of one Bhupat
Singh. The property was not found in Bhupat Singh’s house but in evidence

State ofU.P. v. Deoman Upadhyay, AIR 1960 S.C. 1125.

In re Addanki Vankadu, AIR 1939 Mad. 266.
 167

Bhupat Singh had stated that the accused had brought a handle to his house

and buried it in a room there. He had also stated that later one Dilipat Singh,

brother of the accused, had asked him to make over the property to Ram

Piarey, and he had accordingly handed it over to him. The property was

ultimately recovered from Ram Piarey who deposed in court that Bhupat
Singh had given him certain properties and that he gave them to the sub­

inspector. The court held that it was the information of Bhupat Singh and Ram

Piarey that led to the discovery and not the information of the accused and

therefore, what they had stated in this connection was not admissible in
evidence under section 27 Evidence Act.13 In fact when there has to be a

further inquiry of an independent nature before the discovery is made one

cannot say that it is ‘distinctly’ related to the information, and so the

information is not admissible under the Section.14 The accused made a

statement that the box which he stole was lying concealed under his fodder

and that he would produce it. On a search, the accused failed to find the box.

Thereupon, he stated that perhaps his mother had placed the box somewhere.

The box was discovered as a result of the information furnished by the mother.
The court held that none of the statements of the accused has lead to any

discovery. The knowledge of the stolen property could not be attributed to the
accused.15

5.6 Information Emanating from more than one Accused

For information to be admissible under Section 27, should proceed
from a person accused of any offence. It is not un-often that there are more
than one such person, and the information that is given by one may be known
to others also who are similarly conditions. But where one such person had

13
Kartar Singh v. State, AIR 1952 A.P. 42.
14
Ponu Pilli v. State, 1955 Kerala Law Times 214.
15
Bala v. State, 1955 Rajasthan Law Weekly 314.
 168

made a statement which leads to the discovery of the incriminating article, a

similar statement by another person would be of no avail to the police because
the police already knows where the incriminating article is, and it would be
merely repeating things if others are also asked about it. The High Court of
Kutch held that if the whereabouts of the stolen articles were discovered from
the statement of one accused then the statements of the other accused would
not be admissible as they do not lead to discovery.16 Once properly has been

discovered in consequence of information received from a suspected person, it

cannot be re-discovered in consequence of information received from another
suspected person, and therefore, it is only the information that was given by
the first person and which led to the actual discovery which may be proved
under the terms of Section 27.17 Even where the information which leads to the
discovery of the incriminating articles comes from one person, but the actual
discovery is made by the other, anything which this person might have said in
the matter is not admissible in evidence under Section 27. It is clear that where •
the case of the prosecution is that discovery was made in consequence of
information coming from two persons, evidence must be led to indicate as to
which of them first made the statement which led to the discovery. It is the
statement made by the first individual which can be admitted under Section
27, as against him. The statement made by the other cannot be used in
evidence. But where the prosecution is not in a position to establish in a case
of joint statement as to who made the first statement that led to the discoveiy,
the evidence under the section would not be admissible to establish the guilt of
either of the accused and therefore, the evidence is to be discarded
altogether.18

Mala Bijal v. Slate, AIR 1954 Kutch 22.

Budh v. Emperor, AIR 1922 Lah.
Gurubaru v. The King, AIR 1949 Orr; Abdul Qudir v. Emperor, AIR 1946 Cal. 452.
 169

The statement attributed to the accused Choteylal was “I and Hirachand

have kept (them) hidden at mile No. 313 in the jungle near the railway line-2
bales in the nala and 2 bales in the bushes. I can go and point for which I shall

go and point out.” Hirachand, the second accused had made the statement.

“All these five bales were kept hidden on the same day in the night
before sunrise. I am prepared to go and point out. I may be excused.” Both the

accused were stated to have given the statement in the, presence of each other,

but the discovery was made at the instance of individual accused, three bales
by one accused and tow bales by the other accused. The prosecution did not
lead evidence as to which accused had made the statement first. The court held
that it was clear enough that the sub-inspector had made Hirachand to discover

two bales and Chhoteylal to discover three bales not because Hirachand or

Chhoteylal was individually not in a position to discover all the five bales, but

to establish the fact that both accused persons knew the places where the bales

were kept. That simultaneous statements were per se inadmissible in evidence

but since in the case discoveries had been made by individual accused which

afforded a guarantee about the truth of the statements and therefore, these

simultaneous or joint statements were admissible and could be considered

against each of the accused.19

“It therefore, follows that if the statement is jointly recorded or the

statement attributed to different accused is of the same pattern that would

constitute but one oAmnnottp
V” VIA UlJlkW
ctpf^m^nt
LlkUiVlllVlllr hilUb H VUlbi llb/b JV1 V V IV/ 1UOIV1 ini'

individual guilt, for there would be no knowing on whose information the

material fact was discovered.20 However, each case will have to be judged on

its own facts but the underlying principle seems to be that the information is

State ofM.P. v. Chhoteylal, AIR 1955 Nag. 71.

Karappa Vallayan v. State, AIR I960 Kerla 238.
 170

such information as cannot be said to be already in the possession of the police

and the discovery is made in consequence of that information and further that
the discovery is not re-discovery of something already discovered.21

5.7 Consequential discoveries must from Confessions to Police

Under the Evidence Act, there are two situations in which confessions
to police are admitted in evidence. One is when the statement is made in the
immediate presence of a Magistrate, and the second, when the statement leads
to the discovery of a fact connected with the crime. The discovery assures the
truth of the statement and makes it reliable even if it was extorted. This is so
provided in Section 27. In order to assure genuineness of recoveries, it has
become a matter of practice that recoveries should be effected in the presence
of witnesses. The Supreme Court has pointed out that there is no such practice
that where recoveries have to be effected form different places, different sets
of persons should be called to witness them. The fact that the witnesses to
recoveries are the neighbours of the deceased and, therefore, sympathetic to
him, is not material.22
The section is quite apparently laid out as a proviso or an exception to
the preceding section which deal with confessions in police custody and other
involuntary confessions. Thus it seems that the intention of the legislation that

Nathu v. State, AIR 1958 All 467. ,

Khujji v. State of M.P., AIR 1991 SC 1853, following Himachal Pradesh Admn. v. Om
Prakash, (1972)2 SCR 765 : AIR 1972 SC 975. But see Banifas Samad v. State, 1992.
Cr. L.J. 2271 (Orissa), statements of witnesses not recorded, nor any witness to testify as
to what information was given by the accused, evidence ruled out. Relying upon Madan
Singh v. State ofRajasthan, AIR 1978 SC 1511, where the facts were similar; also of the
same kind Bhago Gowda v. State, (1988)1 GCR 400. Khalaksingh v. State ofM,P., 1992
Cr. L.J. 1150 (MP) respectable residents of the locality not joined as witnesses to
recovery and whatever witnesses were there, their signatures were obtained at police
station, recovery not admissible. Recovery was that of a shirt belonging to the victim,
recovery after 3 months, not good evidence. Ram Singh v. State of Punjab, 1992 Cr LJ
805 (P & H), recovery witness, related to accused, also resident of a distant village,
unnatural, evidence of recovery rejected. R. v. Keeman. (1989)1 All ER 598 recording of
a statement leading to a recovery some six weeks after the arrest of the accused would
require a statement of the reasons for the delay. R. v. Delaney, (1989)88 Cr. App. R. 338
at 341-342 by failing to make a contemporaneous note as soon as practicable, the police
officers deprive the court of a cogent piece of evidence.
 171

all objections to the validity of that part of the statement are washing which
leads to the discovery of an article connected with the crime finding of articles
in consequence of the confession appears to the trustworthy that part which
relates to them.”23 Whether such a states are proceeds out of inducements,
threats or torture are absolutely immaterial Statements made by the accused in
connection with an investigation in the other case which lead to the discovery
of a fact are also relevant.24 That is of an involuntary confession confirmed by

the discovery of real evidence admissible because the truth of the statement is
established by that evidence.
5.8 Sections 26 and 27 Compared

Though the section is in the form of a proviso to Sec. 26, these sections

do not deal with evidence of the same character. Section 26 of the confession

to police altogether, but S. 27 lets in a statement which leads or crucial

discovery whether it amounts to confession or not. Under Section 27 a

confession made in the presence of a Magistrate is wholly provable, whereas

Cockels cases and statutes on evidence, 199 (11th ed, by G.D. Nokes, 1970, based on R. v.
Gould, (1840) 9 C. & P. 364 : 173 E.R. 870. See Narayan Singh v. State of MP., AIR
1985 SC 1678: (1985) 4 SCC 26, where it is observed that evidence regarding recoveries
affords a guarantee to the truth of the prosecution case. Thus in State of Maharashtra v.
P.K. Pathak, AIR 1980 S.C. 1224, the conviction of a person on the basis of recoveries if
smuggled goods affected as indicated by him was sustained. Anber Singh v. State of
Rajasthan, AIR 2004 SC 2865 : (2004) 10 SCC 657 requirements of the section restate
many irregularities found in the process of recovery. The words : “so much of such
information as related directly to the fact thereby discovered” refers to that part of the
information supplied by the accused .which is the direct and immediate cause o the
discovery. This affords some guarantee of the truth of the statement and makes it
admissible and this is not true of the other parts of the statement which are indirectly or
remotely connected with discovery. The Court also remarked that recovery from an open
place does not always render it vulnerable. The recovery was of a pistol from an open
place accessible and visible to all, credibility of prosecution version affected. The
evidence was not to be rejected because the non-official witnesses was not supporting the
recovery. State of M.P. v. Kriparam, (2003) 12 SCC 675, recoveries by themselves do
not take the prosecution case any further where the eye-witnesses are not acceptable. The
Allahabad High Court held in Safi Mohd. Husain v. State of U.P., 1992 Cr. L.J. 1755
(AIL). That if the statement does not amount to a confession, it would be barred by S. 162
Cr. P.C. But the language of the section is quite clear, it says whether the statement
“amounts to a confession or not”.
State ofRajasthan v. Bhup Singh, (1997)10 S.C.C. 675.
 172

Section 27 permits only that part of the statement which leads to the discovery

of fact.25 The scope of the section was explained by the Privy Council in

Pulukuri Kottaya v. Emperor.

A number of accused persons were prosecuted for rioting and

murder. Some of them were sentenced to death and some

transportation for life. They appealed to the Privy Council on

grounds among others, that the statements of some of them were

admitted is violation of Sections 26 and 27. The statement of

one of them was “About 14 days ago I, Kottaya, and people of

my party lay in wait for Sivayya and others... We all beat

Sivayya and Subayya to death. Ramayya who was in our party

received blows on his hands. He had a spear in his hands. He

gave it to me then. I hid it and my stick in the trick of my

village. I will show if you come. We did all this at the instance

of Pulukuri Kottaya”. Another accused said : “I stabbed Sivayya

with a spear. I hid the spear in a yard in my village. I will show

you the place”. The relevant articles were produced from their

respective places of hiding.

The High Court of Madras admitted the whole of the above statement.
Proceeding against the weight of Indian authority, the High Court held that
unless the whole of the statement is admitted, it would be difficult to connect
the articles produced with the offence, the only connecting link being the
confessional statement. The court followed its own earlier Full Bench decision
in Athappa Goundan v. Emperor.27 In that case the court had to deal with a
confession of murder made by a person in police custody, and the court

25 State ofU.P., v. Deoman Upadhaya, AIR 1960 S.C. 1125 at p. 1129.

26 AIR 1947 PC 67.
27 ILR 1937 Mad. 695 : AIR 1937 Mad. 618 : 171 I.C. 245 (F.B.)
 173

admitted the confession because in the last sentence (readily separable from
the rest) there was offer to produce two bottles, a rope and a cloth bag, which,
according to the confession, had been used in the commission of the murder,
and the objects were in fact produced. The court was impressed by the
consideration that as the objects produced were not in themselves of
incriminating nature their production would be irrelevant unless they were
shown to be connected with the murder and there was no evidence so to
connect them apart from the confession.
Sir John Beaumont, who delivered the judgement of the Privy Council,

at once pointed out that the case was wrongly decided and was against the

trend of Indian authority.28 The result of the decision was to read in Section 27

something which is not there and admit in evidence a confession barred by

Section 26.

Explaining the relationship between Sections 26 and 27 and the ban

imposed by Section 26, their Lordships said:

That ban was presumably inspired by the fear of the

Legislature that a person under police influence might be

induced to confess by the exercise of undue pressure. But if all

that is required to lift the ban be the inclusion in the confession

of information relating to an object subsequently produced, the

ban will lose its effect. On normal principles of construction

their Lordships think that the proviso to Section 26 added by

Section 27 should not be held to nullify the substance of the

section. In their Lordships’ view it is fallacious to treat the “fact

discovered” as equivalent to the object produced; the fact

28 It was against the decision of the Bombay and Lahore High Courts in Sukhan v. Emperor.
ILR (1929) 10 Lah. 283 : AIR 1929 Lah. 344 : 115 I.C. 6 (F.B.); Ganu Chandra v.
Emperor, ILR (1932)56 Bom. 172 AIR 1932 Bom. 286 : 137IC 174.
 174

discovered embraces the place from which the object is

produced and the knowledge of accused as to this, and the

information given must relate distinctly to this fact. Information

as to the past use of the object produced is not related to its

discovery. Information supplied by a person in custody that “I

will produce a knife concealed in the roof of my house” does

not lead to the discovery of a knife. It leads to the discovery of a

fact that a knife is concealed in the house of the informant to his

knowledge, and if the knife is proved to have been used in the

■■l

commission of the offence, the fact discovered is very relevant.

' But if to the statement the words are added “with which I

stabbed A” these words are inadmissible since they do not relate

to the discovery of the knife in the house of the informant.29

Explaining the scope of the section in general terms, their Lordships observed:

“Section 27, which is not artistically worded, provides an

exception to the prohibition imposed by the preceding section,

and enables certain statements made by a person in police

custody to the proved. The condition necessary to bring the

section into operation is that discovery of a fact in consequence

of information received from a person accused of any offence in

the custody of police officer must be deposed to, and thereupon

so much of the information as relates distinctly to the fact

thereby discovered may be proved. The section seems to be

29 AIR 1947 PC 67 at p. 70. This was reiterated by the Supreme Court in State ofU.P. v.
Jogeshwar, (1983)2 SCC 305 : AIR 1983 SC 349 Cr. L.J. 686 : 1983 All LJ. 231, that
fact discovered means the authorship of concealment, and not the guns and daggers used
in the crime. Conduct and concealment are incriminating circumstances. This conduct
substantiated by discoveries constitutes evidence.
 175

based on the view that if a fact is actually discovered in

consequence of information given, some guarantee is afforded

thereby that the information was true and accordingly can be

safely allowed to be given in evidence. Normally the section is

brought into operation when a person in police custody produces

from some place of concealment some object, such as, a dead

body, a weapon or ornaments, said to be connected with the

crime of which the informant is accused.”30

Referring to the facts of the case their Lordships held that the whole of

statement except the passage, “I hid it (a spear) and my stick in the trick in the

village. I will show if you come” is inadmissible. Referring to the statement of

the other accused, that “I stabbed Sivayya with a spear. I hid the spear in a

yard of my village. I will show you the place,” their Lordships held that the

first sentence must be omitted.

Only the information that definitely relates to the facts discovered is

admissible. But the information should not be truncated in such manner as to

make it insensible. The information must be recorded. Where it is not

recorded, the exact information must be adduced through evidence.31

In a case involving robbery and murder, one of the accused persons

told: “I am wearing the pant which I washed after the commission of the

offence,” The other accused said “I can recover the looted property.” The

property was then recovered at his instance from the place of hiding. An

j0 AIR 1947 PC 67 at p. 70. This ruling was endorsed in Jaffar Hussain Dastagir v. State of
Maharashtra, AIR 1970 SC 1934 : (1969)2 SCC 872 : K. Chinnapaswamy Reddy v. State
ofA.P., AIR 1962 SC 1788 and Shamshul Kanwar v. State ofU.P. (1995)4 S.C.C. 430 :
1995 AIR SCW 274. Inculpatory statements are relevant if they are connected with the
discovery of facts.
31 Bodh Raj v. State ofJ. & K. AIR 2002 S C. 3164.
 176

objection to the admissibility of these statements was overruled. The words did

not implicate the accused persons with the commission of the crime. They

referred only to the articles connected with the crime.32

Where the accused took the investigation officer and panchas to the

dealer from whom he purchased the weapon of murder, the information was

held to be inadmissible under S. 27. It was, however, admissible under S. 8 as

showing the conduct of the accused person.33

It is necessary that the person in question should be accused of some

offence. Where without any accusation a person was brought to the police

station for interrogation, his statement and consequential discovery of a fact

were held to be not relevant under S. 27.34

Where the accused disclosed: “I have kept the firearm concerned

behind the old house under a heap of wood”. The same was recovered from

that place. The court said that the fact discovered was not the gun but the fact

that the accused had concealed it at the place from where it was found

according to his disclosure.35 ‘Discovery of fact’ means something more than

the thing produced. The discovery of the fact arises by reason of the fact that

the information given by the accused exhibited his knowledge or mental

Sanay v. State (NCT of Delhi), AIR 2001 S.C. 979. The brother of the deceased was
taken as a witness to the process of recovery. The Court said that he served the purpose of
an independent witness. The articles were identified by the daughter of the deceased.
That was. also held to be the most natural evidence. Golakonda Venkateswara Rao v.
State of A.P., AIR 2003 SC 2546. recovery of skeletal remains of the deceased from a
well as indicated by the accused. Conviction on that basis alone was found to be proper.
State of Karnataka v. David Rozario, AIR 2002 SC 3272, the articles proved to have
been stolen by the accused were of very small value, articles of higher value remained
untouched in the house of the deceased, whether this could be exculpatory circumstance
in a charge of murder with robbery, or whether such evidence could be sole basis of
conviction, question left unanswered.
H.P. Administration v. Om Prakash, AIR 1972 SC 975.
Manoranjan Singh v. State ofDelhi, (1998)3 SCC 523.
Pandurang Kalu Patil v. State ofMaharashtra, AIR 2002 SC 733.
 177

consciousness. Only the information which distinctly related to the discovery

is provable. The rest of the information has to be excluded. The word

‘distinctly’ means ‘indirectly’, ‘indubitably’, ‘strictly’, ‘unmistakably’. The

word has been advisedly used to limit and define the scope of provable

information. The phrase refers to that part of the information which is the

direct and immediate cause of the discovery. Only such information is

admissible whether it amounts to confession or not.36

The fact discovered on the basis of information supplied may qualify

for relevancy if it is the immediate and proximate cause of the information. It

is not necessary that the accused should be taken to the spot to point to the

place of hiding, through this fact may be taken into account for evaluation of

evidentiary value.37 The fact that the disclosure statement was signed by the

accused does not detract it from its admissibility.38 A joint and simultaneous

disclosure is also relevant. But such a thing being rare, it will be one of factors

to go towards evaluation.39 The information which brings about discoveries is

relevant only against the accused who furnished such information and not

against other accused. Where the discovery was due to the knowledge gained

by the police from other sources, the statement of the accused was not relevant

under Section 27. But his conduct in pointing out the shop and its proprietor

was relevant under Section 8.

State (NCT) of Delhi v. Navjot Sandhu, (2005)11 S.C.C. 600; Murugan v. State ofT.N.,
AIR 2008 S.C. 2876, blood-stained clothes recovered on the basis of confessional
statement of accused, relevant.
Ibid.
Ibid.
State (NCT) ofDelhi v. Navjot Sandhu, (2005) 11 S.C.C. 600.
 1/8

5.9 Constitutional Validity Upheld

The principles thus laid down were affirmed by the Supreme Court in a

number of cases leading among them being State of U.P. v. Deornan

Upadhaya,40 which also involved an extensive discussion of the

constitutionality of section 27.

Deornan, the accused, was married to one Dulari. Dulari’s parents had

died in her infancy and she was brought up by her cousin, Sukhdei. Skhdei

gifted a part of her own inherited lands to Dulari, and the whole of the land

was being cultivated by Deornan’s uncle, Mahabir, Deornan and Mahabir were

negotiating sale of some of the lands, but Sukhdei protested. Deornan slapped

her and threatened to smash her face. Early in the next morning Sukhdei was

lying dead on her bed with a number of wounds and a pool of blood below the

cot. Deornan was missing. When he was apprehended some two days later he

told the police that he attacked Sukhdei with a gandasa which he had earlier

borrowed from another and killed her on the spot and thereafter threw the

gandasa into the village tank, washed himself and absconded. In the presence

of the investigating officer and certain witnesses, he waded into the tank and

took out the gandasa. A serologist examined it and testified that it was stained

with human blood. Thus its connection with the murder was clearly

established.

The statement of the accused to the police and consequential discovery

of the gandasa when seen in the background of his anger with Sukhdei, the
borrowing of gandasa, some persons having seen him running towards the
tank, taking bath in it and his disappearance, left no doubt that he was guilty
and the Sessions Judge accordingly convicted him.

40
AIR 1960 SC 1125.
 179

He appealed to the High Court, among others on the ground that S. 27

was violative of the Constitution of India, The High Court declared S. 27 to be

unconstitutional. The High Court excluded statement of the accused and

without it there being not much evidence, acquitted the accused. The State

appealed to the Supreme Court, where by a majority, acquitted the accused.

The State appealed to the Supreme Court, where by a majority, the section was

declared to be constitutional and the conviction of Deoman was restored. The

Supreme Court held that, that part of the statement of the accused by which he

said that he had killed Sukhdei was not relevant. This should be excluded, but

the rest was relevant and even then there was sufficient proof of his guilt. The

discussion in the Supreme Court centered round the constitutional validity of

section 27, Shah, J., (afterwards C J.), with whom majority agreed, pointed out

that the expression “accused of any offence” is descriptive of the person

against whom the information is provable under section 27. “It does not

predicate a formal accusation against him at the time of making the statement

sought to be proved, as condition of its applicability.”41

The Court rejected the suggestion that the provisions of section 161 of.

the Criminal Procedure Code and those of section 27 of the Evidence Act were

discriminatory and, therefore, violative of Article 14 of the Constitution.

Under the Criminal Procedure Code if a person not in police custody has given

some information to the police in consequence of which something connected

with a crime is discovered, the information is not provable against him if he is

subsequently prosecuted for the crime; but if he were in police custody at the

time that he gave the information, it would have become provable against him.

41 AIR I960 S.C. 1125 at p. 1132. On the authority of Pakala Narayan Swami v. Emperor,
66 Ind. App. 66 : AIR 1939 PC 47.
 180

Thus the classification is between persons not in custody and those in custody.

The Supreme Court held the classification to be reasonable. “This distinction

between persons in custody and persons not in custody, in the context of

admissibility of statement made by them concerning the offence charged

cannot be called arbitrary, artificial or evasive : the legislature has made a real

distinction between these two classes, and has enacted distinct rules about

admissibility of statements confessional or otherwise made by them.42 The

reason for the classification is to encourage people not in custody to give

information about crimes.

5.10 Recovery During Illegal Remand to Police

Confessional statements made in police custody led to recovery of

incriminating articles. The Court said that such evidence could not be excluded

on the ground that the statement was obtained while the accused was under an

illegal order of remand to police custody.43

5.11 Some Examples

In Mohan Lai v. Ajit Singh,44 the accused was arrested within four days
of the fact of murder and robbery. He immediately indicated the place where
he had hidden the stolen articles; and a gold ring and currency notes which
bore his finger impressions were recovered within six days. On these facts the
Supreme Court observed that, it must be concluded that the incriminating
articles were acquired by the respondent at one and the same time and that it

AIR I960 SC 1125 at p. 1130.

State v. NMT Joy Immoculate, AIR 2004 S.C. 2282.
AIR 1978 SC 1183 at p. 1196. Evidence of recovery even when relevant may fade in
importance where there is direct evidence. Pradumaninh Kaubha v. State of Gujarat,
1992 Cr. L.J. 1111 : AIR 1992 S.C. 881; Swamy Shraddonanda v. State of Karnataka,
AIR 2007 S.C. 2531 : (2007) 12 S.C.C. 288, husband prosecuted for murder of wife,
buried in a big courtyard, he pointed out the exact place of burial, had marked that place,
skeleton exhumed from the marked place. This portion of confessional statement before
the police, held admissible.
 181

was he and no one else who had robbed the deceased of the money and the
ring and had hidden them at a place and in a manner which was known to him.
Where the police had already recovered the dead body, the statement of the
accused persons as to where they had thrown off the dead body was held to be
not relevant.45 Recovery of bushirt, pant and a gold ring at the instance of the
accused person was not accepted as a good piece of evidence because it was
not probable that he should have taken away the clothings also and buried
them alongwith the gold ring in the courtyard of his house.46 Two axes were
recovered on the basis of the statements. The blood on one of them was found
to be of human origin. The rejected of the evidence of recovery was not
proper.47
Recovery of a weapon of offence which has no nexus with the type of

injuries found on the person of the victim was held to be inadmissible.48

Vijender v. State of Delhi, (1997)6 S.C. C.171 Inspector of Police v. Bala Prasanna,
(2008) 11 S.C.C. 645 : 2008 Cri. L.J. 4332 belated confession made after five months,
creates doubts about authenticity and voluntariness.
Shambhu Dayal v. Subhash Chandra, AIR 1998 S.C. 1732 ; Deva v. State of Rajasthan
1999 Cri. L.. 265, merely because of the alleged recovery of knife at the instance of the
accused, it could not be said that be was perpetrator of the crime of murder.
State of Rajasthan v. Teja Ram, 1999 Cri. L.J. 2588. See also Lai Singh v. State of
Gujarat AIR 2001 SC 746, arms and ammunition which had to be recovered from hiding
of terrorists being huge, a raid had to be organised and they had to be kept at police head
quarters after recovery, held, these two factors had not reduced the evidentiary value of
the recovery -State of Maharashtra v. Suresh, (2001) 1 S.C.C. 471, dead body discovered
on guidance provided by the accused, the circumstances of concealment were such that
there were three possibilities, viz., the accused himself might have done the concealment,
might have seen another to do it or might have been told of it by others. Excluding other
possibilities, the Court believed that it was the work of the accused. State of M.P. v.
Palun Mallah, AIR 2005 S.C. 733, in his disclosure statement, the accused said that he
concealed the country made pistol himself, it was recovered at his instance, accompanied
with extra-judicial confession, relevant ballistic expert verified recovery from the body
pellets fired from country made pistol. State of Rajasthan v. Kashi Ram, AIR 2007 S.C.
144, doubtful recovery of waist chord used for strangulation, not even produced before
the court, evidence not proper. Ponnusamy v. State ofT.N., (2008)5 S.C.C. 587 : AIR
2008 S.C. 2110, extra-judicial confession led to the discovery of dead body in a canal and
jewellery worn by the woman who was identified as murdered wife of the accused, held,
confession voluntary and truthful. Bishnu Prasad Sinha v. State ofAssam, AIR 2007 S.C.
848, confession not retracted even at the later stages of the trial, it was also accepted by
the accused in examination under S. 313, Cr. P.C. can be fully relied upon.
Keshav v. State ofMaharashtra, (2007)13 S.C.C. 284.
 15Z

5.12 Place of Hiding

In a matter before the Supreme Court,49 the accused stated : “I will tell
the place of deposit of the three chemical drums which I took out from the
Haji Bunder on first August.” It was held that only the first part of the
statement, namely, “I will tell the place of deposit of the three chemical
drums” was relevant because only this part was the immediate and direct cause
of the fact discovered. The rest of the statement was a pure and simple
confession which led to no discovery. The facts of the case also demonstrated
the advantage to the accused of this kind of editing of his statement. The place
indicated by him was a railway platform and the drums were recovered from
there. Since it was a public place and not a place of hiding, anyone could have
put them there and the accused might have only knowledge of that fact, he was
given benefit of the doubt, whereas if;,the whole of his statement had been
admitted he would undoubtedly have been held guilty.50 Recovery of dead

Mohd. Inayatullah v. State ofMaharashtra, AIR 1976 S.C. 483. See also Earabhadrappa
v. State of Karnataka, AIR 1983 S.C. 446 involving recovery of stolen articles. It has
been held by the Supreme Court that recovery at the instance of the accused is not in
itself a proof of the fact that the accused wielded the weapon. In Dudh Nath Pandey v.
State of U.P., (1981)2 S.C.C. 116 : AIR 1981 S.C. 911 : 1981 Cr. L.JU. 618 : 1981 All.
L.J. 228, the Supreme Court has also pointed out that the mere failure on the part of the
police to interrogate the person at whose instance recovery has been effected cannot in
itself lead to the conclusion that the recovery was false. Abdul Sattar v. Union Territory
Chandigarh, (1985) Supp. S.C.C. 599 : AIR 1986 S.C. 1438, articles recovered from an
open place. The evidentiary value of the articles recovered does not suffer only because
they are market-place articles, State of Kerala v. Thomas, (1986)2 S.C.C. 411. In a case
of cross-free only two cartridges were recovered and those also the next day after the
preparation of the cite map, held not relevant because circumstances indicated planting of
the cartridges. Awadhesh v. State of M.P., (1988)2 S.C.C. 557 : AIR 1988 S.C. 1158;
Recovery of something unconnected with the charge is not relevant, Vishnudeo Kumar v.
State ofBihar, 1986 S.C.C. 656.
Where there was nothing to show how the recovered articles were connected with the
deceased or how they incriminated anybody, the Supreme Court rejected the evidence.
Basanti v. State of H.P., (1987) 3 S.C.C. 227: AIR 1987 S.C. 1572. See also State of
Punjab v. Gurnam Singh, AIR 1984 SC 1791 : 1984 Supp. S.C.C. 502, where the
Supreme Court pointed out that the alleged recoveries which were hot witnessed or
corroborated by any witness deserved to be rejected entitling the accused to benefit of
doubt. Mohd. Abdul Hafeez v. State of A.P., AIR 1983 S.C. 367 : 1983 Cr. L.J. 689 :
(1983) 1 S.C.C. 143, where in the case of several accused it was not shown who made
the statement leading to discoveries, the statement was rejected, or as in Pohalya Motya
Valvi v. State of Maharashtra, (1980)1 S.C.C. 530, there being no evidence as to who
had concealed the things; AIR 1979 S.C. 1949 : 1979 Cr. L.J. 1310; Recoveries
unaccompanied by any proof of the statement by which they were effected, Bahadul v.
State of Orissa, (1979)4 S.C.C. 346 : 1979 Cr. L.J. 1075. Another case where recovery
was effected from a public place which was open and accessible to all and, therefore,
rejected, was Puran Lai v. State ofU.P., 1997 Cr. L.J. 3813 (All.)
 183

bodies after three months from an open field which was surrounded by other
fields would not bring the matter under this section because an open field is
not such a place of concealment of which it could be said that only the accused
had exclusive knowledge.51 Recovery of a knife and gloves in the presence of
the accused lying open in a paddy field was held to be not sufficient to connect
the accused with the crime. Where the recovery was effected at the instance of
the accused from the house of one C, the Court said that the recovery could not
be said to be from a place to which the accused alone had the exclusive access.
The possibility could not be ruled out that the weapon was always there at C’s
place. Much importance could not be attached to a recovery of this nature.52
The accused had also denied having made any such statement which was
supposed to have led to the discovery.53 But where looted articles were
recovered at the instance of the accused concealed under a stone under a
bridge, that was held to be a place of hiding which was not accessible to all.54
The Supreme Court has given a new meaning to the expression place of

hiding. Certain articles connected with the murder of the wife of the accused

were found from places at the bidding of the accused. The court said:55

“It is a fallacious notion that when recovery of any incriminating article

was made from a place which is open or accessible to others to would vitiate

the evidence. An object can be concealed in places which are open or

Makhan Singh v. State ofPunjab, AIR 1988 S.C. 1705 : 1988 Supp S.C.C. 526.
State ofM.P. v. Ghudan, AIR 2004 S.C. 797 : (2003) 12 S.C.C. 485.
Varghese v. State ofKerala, (1998) S.C.C. (Cri.) 890.
Lacchman Ram v. State of Orissa, AIR 1985 S.C. 486 ; articles recovered from places
where they were thrown by the running accused on being chased, held relevant. State of
Rajasthan v. Sukhpal Singh, (1983)1 S.C.C. 393 : 1983 S.C.C. (Cri.) 213. Kabul v. State
of Rajasthan 1992 Cr. L.J. 1491 (Raj) recovery of narcotic drugs from an open public
place. Khalaksingh v. State of M.P., 1992 Cr. L.J. 1150 (M.P.) aricles brought out from
home by the brother of the accused, not relevant under S. 27; Brij Mohan v. State of
Rajasthan, AIR 1994 S.C. an unnatural hiding place. Peerappa v. State of Karnataka,
(2005) 12 S.C.C. 461, there was no blood on the weapon found and it was also produced
from a place of public access, the statement was recorded after recovery, all these things
demolished relevancy.
State of H.P. v. Jeet Singh, 1999 2025 (S.C.) at p., 2030 : AIR 1999 S.C. 1283. Another
similar ruling of the Supreme Court is in Limbaji v. State ofMaharashtra, AIR 2002 S.C.
491, stolen articles concealed under earth in the field of a third party which acts open and
accessible to all. The accused led the I.O. to the place. Relevant under Section 27 and
also under Section 114 as showing recent possession. The articles were ornaments
belonging to the deceased.
 184

accessible to others. For example, if an article is buried on a main road side of

it is concealed beneath dry leaves lying on public places or kept hidden in a

public office, the article would remain out of the visibility of others in normal

circumstances. The person who hid it alone knows where it is until he

discloses that fact to any other person. Hence, the crucial question is not

whether the place was accessible to others but whether it was ordinarily visible

to others. If it is not, then it is immaterial that the place of concealment is

accessible to others.”

The discovery of the instrument of murder at the instance of the

accused from a place of concealment"under a heap of soil was held to be a

discovery from a secret place of hiding though that place was in an abandoned

dilapidated building. The Court observed that it could not be said that the thing

was found from an open place accessible to all. Nor it was found from a public
place.36 The recovery of hand grenades and detonators from a place of a burial

under a tree was held to be the discovery of a fact for the purposes of the
section.37

In a case arising out of child sacrifice, the statement of the accused was

that the dead body of the child was carried on a motor cycle up to a particular

spot. A broken piece of glass which was a part of the tail lamp of the motor

cycle was found at that place. That was held to be the discovery of a fact

making the information given by the accused leading to that discovery was

Mahbub Samsuddin Malak v. State of Gujarat, (1996) 10 S.C.C. 480; Mani v. State of
Tamil Nadu, AIR 2008 S.C. 1021, discovery from an open ground after more than 10
days of the incident and about 300 feet away from dead body, not believable that
unguarded articles remained there for so many days, discovery farcicle.
Surjit Singh v. Haryana, (1996)10 S.C.C. 281. Handing over of the stolen articles to
others under sale or otehrwsie from whom they were recovered is the discovery of a fact
connected with the crime, Shankar Gajanan Kalar v. State of Maharashtra, (1996) 11
S.C.C. 151.
 185

relevant. The recovery of a brass pitcher (kalash) used for collecting the blood
of children also provided a useful missing link in the chain of circumstances.58

Where one of the articles connected with the murder was discovered

lying in tall grass and others were found to be buried there, the Supreme Court

held that they were out of the visibility of others in normal circumstances and

were, therefore, relevant under S. 21.59

5.13 Evidence only Against Maker of Statement

The Calcutta High Court laid down in Satish Chandra Seal v.

Emperor,60 that statement admissible under S. 27 are not admissible against

persons other than the maker of the statement. Following this, the Patna High

Court did not allow the evidence of the discovery of the dead body in

consequence of the statement of one of the accused persons to be used against

others.61

Where in a case of murder, the first accused made a confession to the

Circle Inspector which led to the discovery of certain jewels of the murdered

woman, and also a blood-stained brick which, the first accused stated, the

second accused had used to beat her with and in consequence of which beating

she died, it was held that the statement of the first accused so far as it related to

the discovery of the jewels was admissible under this section, and that it could

not be taken into consideration as against the second accused under S. 30.62

58 State of Maharashtra v. Damu Gopinath Shinde, 2000 Cri. L.J. 2301 (S.C) : AIR 2000
S.C. 1691 : 2000 AIR SCW 1617 : (2000)6 S.C.C. 269.
59 State of Maharashtra v. Bharat Fakira Dhiwar, AIR 2002 S.C. 16.
60 AIR 1943 Cal. 137 : (1945)46 Cri. L.J. 580. Even as against the maker the evidence was
taken to be very weak when neither his thumb impression nor signature were taken on the
statement, nor the panch witnesses were examined, Jackaran Singh v. State of Punjab,
(1995) Cri L.J. 3992 (S.C.)
61 Surendra Prasad v. State ofBihar, 1992 Cri. L.J. 2190 (Pat.)
62 Abdul Basha Sahib, Re, (1940) Mad. 1028 : AIR 1941 Mad. 316.
 186

5.14 Proof of Exact Statement Necessary

Since the court has to see in each case what part of the statement led to
the discovery, it is necessary that the exact words in which the accused gave
the information must be on record. In the absence of proof of the statement,
recoveries will not speak anything by themselves and will be
inconsequential.63 “The exact information given by the accused while in
custody which led to recovery of the articles has to be proved. It is necessary
for the benefit of both the prosecution and the accused that the information
given should be recorded and proved and if not so recorded, the exact
information should be adduced through evidence. A mere, statement that the
accused led the police and the witnesses to the place where he had concealed
the articles is not indicative of the information given.”64 Where the disclosures
made by the accused were confirmed by discovery of things belonging to the
deceased, it was held to be immaterial that the disclosures were not recorded
or that the witnesses to discovery were not examined.65
5.15 Police Display of Weapons Recovered
It has been held by the Supreme Court that the mere fact that the

weapons seized were displayed by the police at a press conference was not a
ground for disbelieving the factum of recovery.66

Bhimappa Jinnappa Naganur v. State ofKarnataka, AIR 1993 SC 1469.

Baladevkihes' v. State of Orissa, 1992 Cr. L.J. 2059 (Orissa), citing Bhaga Godwa v.
State, 1983 OCR 400; Bahadul v. State of Orissa, AIR 1979 S.C. 1262 : 1979 Cr. LJ.
1075, recovery from under the cot of the accused without any statement: Followed in
Pandru Khadia v. State of Orissa, 1992 Cr. L.J. 762 (Orissa), weapon of offence
recovered without any statement. Sukhvinder Singh v. State of Punjab, (1994)5. S.C.C.
152, dead body discovered at the instance of one accused, obtaining similar information
from other accused persons would constitute no evidence against them.
Suresh Chand Bahri v. State ofBihar, AIR 1994 S.C. 2420. The court distinguished Nari
Santa v. Emperor, AIR 1945 Pat. 161 where the accused produced the stolen things and
then disclosed the place of hiding and the same was held to be not relevant Dhananjay v.
State ofW.B., (1994)2 S.C.C. 220; “fact discovered” includes the object found, the place
from where found and the accused’s knowledge of that place. Bodh Raj v. State of J.&
K., AIR 2002 S.C. 3164, in information must be recorded. Where it is not recorded, the
exact information must be adduced through evidence.
State of Maharashtra v. Bharat Chaganlal Raghani, AIR 2002 S.C. 409, the panch
witness had proved the recovery, a different version given by the accused some 2 months
after first statement which led to recovery not to be given credit.
 187

5.16 Witness to Statement

Absence of independent witnesses at the time of making the statement

is not fatal. Section 27 does not require that statements to police should always
be made in the presence of independent witnesses.67

5.17 Witnesses of Recovery

Where the witnesses to recovery were interested in the accused and no

independent witness was found for the purpose, it was held that it created a

doubt because it could have been a tailor-made episode. The benefit of such

doubt must go to the accused. The High Court had acquitted one of the

accused persons on the basis of discrepancy between oral testimony and

documentary evidence of recoveries.68

5.18 Witnesses to Statement

Absence of independent witnesses at the time of making the statement

is not fatal. Section 27 does not require that statements to police should always
be made in the presence of independent witnesses.69

5.19 Witnesses or Recovery

Where the witnesses to recovery were interested in the accused and no

independent witness was found for the purpose, it was held that it created a

doubt because it could have been a tailor-made episode. The benefit of such

doubt must go to the accused. The High Court had acquitted one of the

accused persons on the basis of discrepancy between oral testimony and

documentary evidence of recoveries.70 Where the independent witness who

was supposed to be present at the recovery site was not examined and the

Praveen Kumar v. State ofKarnataka, (2003) 12 S.C.C. 199.

State ofHaryana v. Ram Singh, AIR 2002 S.C. 620.
Praveen Kumar v. State ofKarnataka, (2003)12 S.C.C. 199.
State ofHaryana v. Ram Singh, AIR 2002 S.C. 620.
 188

presence of the police inspector with the 10 was also doubtful, recovery and
seizures made were held to be not relevant.71

5.20 Identification of Recovered Articles

There was recovery of ornaments from the house of the accused which

were supposed to belong to the deceased. They were not of any particular

design and were available in the market. Almost every family of the village

had similar ornaments. They could not, therefore, be properly identified as

belonging to the deceased. Signatures of recovery witnesses were taken on

dotted lines as the recovery memo and the thumb impression of the accused

was also similarly managed. The Court, therefore, said that no reliance could
be placed upon the testimony of the police officer as to the fact of recovery.72

Where the articles recovered at the instance of the accused were gold bangles

of the deceased and they were identified as belonging to the deceased by the

goldsmith who had made and who had put his marks on them and they were

also identified by the husband of the deceased and neighbours, the court said

that their identity was fully established and much importance could not be
attached to the fact that they were not sealed at the time of recovery.73

5.21 Delay in Discovery

Where blood-stained clothes and a knife were recovered at the instance

of the accused but the recovery was delayed having been effected after the

second remand of the accused, the Supreme Court said that this circumstances
cast a serious doubt on the reliability factor of the evidence produced.74 There

Lakhwinder Singh v. State of Punjab, AIR 2003 S.C. 2577 : Mousam Singha Roy v. State
ofW.B., (2003) 12 S.C.C. 377, panch witnesses did not see the actual recovery, only the
I.O. went in and brought out articles and obtained signatures of panch witnesses. This
will held to be not proper.
Bharat v. State ofM.P. AIR 2003 S.C. 1433.
Rajendra Kumar v. State ofRajasthan, AIR 2003 S.C. 3190.
Ashish Batham v. State ofM.P., AIR 2002 S.C. 3206.
 189

is, however, no restriction under Section 27 that recovery should be made

immediately after the disclosure statement is made by the accused. Recoveries

were made in this case on the next day. The place was such that only the
accused had special knowledge.75

Non recovery

The fact that nothing could be recovered as a consequence of the

statement was held by the Supreme Court as not to mean that the prosecution

case should be thrown out. The weight of the other evidence does not become
lessened.76

5.22 S. 28. Confession made after removal of impression caused by

inducement, threat or promise relevant

If such a confession as is referred to in section 24 is made after the

impression caused by any such inducement, threat or promise has, in the

opinion of the court, been fully removed it is relevant.

5.23 Confession made after Removal of Inducement

Section 28 deals with the validity of confession which is made after the

effect of inducement is already over. Once the mind is set free from the fear

created by threats of evil or from hopes of advantage from confessing any

confession made is likely to be free and voluntary and there can hardly be any

objection to its validity. It is necessary that the effect of threats or inducements

has been fully removed and to the satisfaction of the court. All promises or
threats should have been withdrawn.77

Where, by reason of exculpatory parts in the statement, the statement

does not amount to a confession and, though not be relevant as a confession, it

75
Praveen Kumar v. State ofKarnataka, (2003)12 S.C.C. 199.
76
Rajidner v. State ofHaryana, AIR 2004 S.C. 4352.
77
See, for example, Venkata Narayan v. Emperor, (1938) Mad. W.N. 24; Bhagirathi v.
State ofM.P„ AIR 1950 M.P. 17.
 190

can be included in evidence if it is relevant under any other section and then it

will not be marked that it was the result of some inducement, threat or

promise. This has been pointed out by the Supreme Court in a case in which a

truck operator admitted to the Customs Officers that his truck was carrying

contraband but he did not know how it came there. The statement being not a

confession in the real sense of the word was not hit by S. 24 and was
receivable as an admission.78

5.24 S. 29. Confession otherwise relevant not to become irrelevant because

of promise of secrecy, etc.

If such a confession is otherwise relevant it does not become irrelevant

merely because it was made under a promise of secrecy, or in consequence of

a deception practiced on the accused person for the purpose of obtaining it, or

when he was drunk or because it was made in answer to questions which he

need not have answered, whatever may have been the form of those questions,

or because he was not warned that he was not bound to make such confession

and that evidence of it might be given against him.

5.25 Confession made under Promise of Secrecy etc.

A confession, unlike an admission, is relevant even if it is made under

promise of secrecy. In addition to this, Section 29 provides for many other
things also. The effect of the section is that a confession is relevant even if it is
obtained under the following circumstances.
1. By making a promise to the accused that it will be kept secret, or that
evidence of it shall not be given against him.- It may be recalled that an
admission made in a civil case under promise that evidence of it shall not be
given is not relevant,79 the policy being that litigants should be encouraged to

78 Veera Ibrahim v. State ofMaharashtra, (1976)2 S.C.C. 302.

79 S. 23, English law is the same. See R. v. Thomas, (1836)7 C & P. 345; R. v. Shaw, (1834)
6 C. & P. 372.
 191

compromise their differences. That policy has no relevance to criminal cases

because here the public interest lies in prosecuting criminals and not
compromising with them. Consequently, therefore, where an accused person is
persuaded to confess by assuring him of the secrecy of his statements, the
confession is nevertheless relevant.
2. By practicing a deception on the accused for the purpose of obtaining
his confession.- Where the confession is the outcome of a fraud being played
with the accused, it is nevertheless relevant. Thus, where the two accused
persons were left in a room where they thought they were all alone, but secret
tape recorders were recording their conversation, the confessions thus recorded
were held to be relevant.80 Similarly, where an accused was persuaded to

submit for a medical examination for an innocent purpose which was in fact
conducted for criminal purpose, his statements to the doctor and the doctor’s
report were held to be relevant at the discretion of the court.81 He was charged

with drunken driving and he was told that the medical examination was not to
ascertain his fitness to drive but to determine other illness or physical
disability and in particular whether he was fit to leave the police station.
Basing his judgment on the Court’s case,82 Lord Parker, C.J., ruled that the

court should have in its discretion refused to allow the evidence to be given on
the basis that if the defendant realized that the doctor was likely to give
evidence on the mater, he might refuse to submit himself to examination.83
The Privy Council also ruled in R. v. Kuruma,M that:

R. v. MaqsudAli, also cited as Ali and Hussain, (1966)1 Q.B. 688, C.C.A. ; Kuldip Singh
v. State of Punjab, (1996) 10 S.C.C. 659, it was recognised as a rule that evidence must
be relevant; it is irrelevant as to how it was obtained. In this case, a confession made to
police officer was received in evidence in a disciplinary proceeding where it is believed
that strict rules of evidence are not applicable. The Supreme Court refused to go into the
finding of the High Court that the confession was voluntary.
R. v. Payne, (1963) 1 W.L.R. 637 C.C.A.
(1962) Crime L.R. 697.
(1963)1 W.L.R. 637 at p. 638.
(1955) A.C. 197 at p. 203.
 192

“The test to be applied in considering whether evidence is admissible is

whether it is relevant to the matter in issue. If it is, it is admissible and the

Court is not concerned how the evidence is obtained.” A confession secured

by intercepting and opening a letter has also been held to be relevant.”85

3. When the accused was drunk.- A confession obtained by intoxicating the

accused is equally relevant. The law is concerned to see that the confession is

free and voluntary and if this is so it does not matter that the accused
confessed under the influence of drink.86 According to the English practice the

judge will have discretion in the matter.

4. In answer to questions which he need not have answered.- A confession

obtained in answer to questions which the accused need not have answered is

valid, whatever may have been the form of those questions. Such a confession

will be relevant even if the accused was not warped that he was not bound to

answer such questions or that his answers will be used in evidence against

him. This principle applies only to extra-judicial confessions that is to say,

confessions which are made outside the court to a private person.87 For

recording a confession before the court the provisions of Section 164 (3) of the

Criminal Procedure Code, 1973 would have to be observed. It has been held
by the Supreme Court in State of UP. v. Singhara Singh,88 that this section

overrides Section 29 of the Evidence Act. The relevant provision is that the

Magistrate should before recording the confession warn the accused that he is

not bound to make it and that if he did make it, it will be used in evidence

against him. In English law it is one of the judge’s rules that the person being

interrogated should be told: “You are not obliged to say anything unless you

85 R. v. Derrington, (1826)2 C. & P. 418.

86 R. v. Salisbury, (1835)7 S. and P. 187.
87 So held in Emperor v. Jama Singh, AIR 1947 Pat. 305.
88 AIR 1964 S.C. 358.
 193

wish to do so but what you say may be put into writing and given in
evidence.”89

S. 30. Consideration of proved confession affecting person making it and

others jointly under trial for same offence.- When more persons than one

are being tried jointly for the same offence and a confession made by one of

such persons affecting himself and some other of such persons is proved, the

court may take into consideration such confession as against such other person

as well as against the person who makes such confession.

Explanation - “Offence” as used in this section, includes the abetment of, or

attempt to commit, the offence.

Illustrations

(a) A and B are jointly tried for the murder of C. It is proved that A said :

“B and I murdered C”. The court may consider the effect of the

confession against B.

(b) A is on his trial for the murder of C. There is evidence to show that C

was murdered by A and B, and that B- said : “A and I murdered C”.

This statement may not be taken into consideration by the court against

A as B is not being jointly tried.

5.26 Misuse of Section 27

Section 27, Evidence Act being in the nature of a proviso to the total

exclusion rule has an could be expected, become a floodgate for letting in not

only compulsive extorted confessions, but also confessions fabricated by

police officers.

See Practice Note (Judge’s Rules), Court of Criminal Appeal), (1964) 1 W.L.R. 152;
Admissibility of Evidence procured through Illegal Searches and Seizures, in Cowen and
Center, Essays on the Law of Evidence, 72.
 194

It has come to be firmly established after the decision in Oghad the

involuntary confessional statements even if leading to discovery of a fact are

inadmissible in evidence in as much as Section 27 does not create any

exception to Section 24. However this has not dampened the spirit of the

police officer who are making wholesale misuse of the provision and are

recoding full confessional statements of accused persons in all cases. Planting

a ‘discovery’ on any person is not difficult for them. Once a person is

apprehended on any charge, a confessional statement of his is recorded ending

with words”...I can produce such as such object...” An object whether

actually stolen property in the case or not, is planted on him and he is

produced before the Magistrate. With this, the police officer wins accolades

and is given credit for solving the crime. His job is over. Even if it is later

found that the accused was wrongly apprehended nothing was ever recovered

from him and that he never made a statement on which, as per the records, the

whole investigation was based, he is hardly bothered. So far as he is

concerned, he has solved the crime by sending up some confessional statement

recorded by him (whether actually made by the accused or not) and shown to

be duly supported by discovery of some incriminating evidence (mostly,

planted by him). In the court, the accused will be acquitted or discharged, but

his credit for solving the crime does not depend upon his being able to secure a

conviction from the court. Working as a judicial officer in Delhi, the writer has

personally experienced that very rarely a charge sheet is field by the Delhi

Police that does not have a page containing a “Disclosure Statement” made by

the accused. All these disclosure are then shown to be leading to some

recovery, through it may be an article worth Rs. 100/- in a case of theft of

household articles worth lakhs of rupees. Do all persons apprehended by the

 195

Delhi Police make “voluntary” confessions as soon as they are apprehended,

leading to discovery of evidence against them is anybody’s guess. A small,

used household article can be easily procured from anywhere and a Delhi

Police Investigating Officer can solve a sensational burglary case just by

planting it on any person found loitering on the road, thanks to Section 27 of

the Evidence Act.

5.27 Extra Judicial Confession vis-a-vis Fundamental Rights

Fundamental right are considered to be the heart and soul of the

constitution of India. Part III of the Indian constitution has very well been
described as the Magna Carta90 of India. The inclusion of a chapter on

fundamental rights in the constitution is in accordance with the tend of modem

democratic thought, the idea being to preserve that which is in an

indispensable condition of a free society. The aim of having a declaration of

fundamental right such as right to life, liberty, freedom of speech, freedom of

faith and so on should be regarded as invoidable able under all condition and

that the shifting majority in legislature of the country should not have a free

hand in interfering with these fundamental rights. These rights have a

similarity of nature with the Bill of Rights the nature and objective where of
was explained by the US Supreme Court in West Virginnia State Board of
Education v. Wolter Barnette91 Honourable Mr. Justice Jakson observed:

“The very purpose of a Bill of Rights was to withdraw certain

subjects from the vicissitudes of political controversy to plan

them beyond the reach of majority and officials and to establish

them as legal principles to be applied by the courts one’s right to

Rama Chandran v. G. Fundamental Rights and Constitutional Remedies, vol. 1, 1964

p. 1.
319 U.S. 624.
 196

life liberty and property to free speech, a free press, freedom of

worship and assembly and other fundamental rights may not be

submitted to vote, they depend on the outcome of no. elections.”

Supreme Court of India in a historic decision in Manek Gandhi v.

Union ofIndia,92 delineated the importance of the fundamental right under our

constitution Justice Bhagwati observed:

“These fundamental rights prevent the basic values classified by

the people of this country since the Vedic time and they are

calculated to protect the dignity of the individual and create

condition in which every human being can develop his

personality. to the fullest extent. They weave a pattern of

guaranteed on the basic structure of human rights and impose

negative obligation on the state net to encroach on individual

liberty in its various dimension”.

5.28 Jurisprudence of Fundamental Rights

Dr. N.V. Paranjape explain the jurisprudence of the constitution93 as is

contained in Parts III and IV. In his words:

“Law is an effective tool to translate the aspirations of common

man in to reality. It significance and sacredness should be

preserved by all those who make it and also by these for whom

it is made. The Indian constitution itself is a great social

document/ It underlines the supremacy of the lav/, social,

economic and political justice, secularism and democracy. The

Fundamental Rights guaranteed to Indian citizen constitute the

basic of free and democratic society. The Directive Principles

92
AIR 1978 Supreme Court 597.
93
Pranjape, N. V. Studies in Jurisprudence and legal theory 1994 Edition.
 197

contained in Part IV on the other hand provide guidelines for the

State to initiate meanness to ensure welfare of the community.

The physical integrity of life and liberty forms the most

important aspect of individual freedom. It had been well safe

guarded in the constitution and liberally interpreted by law

courts. The doctrine of Rule of law enshrined in the Indian

Constitution seeks to balance individual rights with legal

responsibility. It ensure equality beloved law and equal

protection to all individuals and exclude the possibility of

autocratic and totalitarian exercise of power by the state.”

A great Indian Jurist, Nani A. Palkhiwala94 finds the human rights

principle contained in the Fundamental Rights under the Indian Constitution in

his pregnant words:

“The substance of the Universal Declaration of Human Rights

adopted by the UNO on 10th December 1948 is embodied as

Fundamental rights in our constitution. The right to equality

before the law is guaranteed to citizen and non citizen alike. In

one respect our constitutional law is more secular than United

Kingdom religion is no bar to the holdings of any public office

whatsoever in the state. In another respect our constitution may

claim to be more progressive than that of the USA equality of

the sexes is guaranteed right in India whereas the recent attempt

to in corporate a similar right in the USA constitution has so

been unsuccessfully”
India is the only country in the world where in the State which are

governed by the Communist party, Human Rights are fully respected and that
94
Paikhi wala Nani A, we, the Nation: the Last Decades, Tenth Reprint 1994.
is only because the Bill of Right is firmly in grained in our National
Constitution.95

On Fundamental Rights, of the citizen of an independent India, Karachi

Congress passed a resolution in the year 1931. The resolution inter-alias

interracial provided:

l(i)........
(iv) All the citizen are equal before the law irrespective of religion caste creed
or sex

(ii) No person shall be deprived of his dwelling or property be entered

requested of confiscated save in accordance with law...........

The very objective behind the inclusion of the chapter of Fundamental

Rights in Indian Constitution is to establish ‘A Government of law and not of

man, a Governmental system where the tyranny of majority does not oppress

the minority. In short the object is to establish Rule of Law and it would not be

wrong to say that the Indian constitutions in this respect goes much ahead than

any other constitution of the world, the object is not merely to provide security

and equality of citizenship of the people living in this land and thereby helping

the process of nation building but also and not less important to provide

certain standard of conduct, citizenship, justice and fair play. They were

intended to make all citizen and person appreciated that the paramount law of
the land has swept away privilege and has laid down the paramount perfect

equality between one section of the community and another in the matter of all

those rights which are essential for the material and moral perfection of man
Fundamental Right jurisprudence is aimed at guaranteeing to all citizens of

India a life of liberties, freedoms and equality essential for their proper growth
95
Pandey, J.N. Constitutional Law of India, 27th Edition, 1994 p. 47.
 199

and development in democratic society. The accused person also being the
citizen in the Indian polity are also protected under umbrella of such liberties.

They in such a capacity as makes of extra-judicial confession enjoy some of

fundamental rights.

5.29 Fundamental Rights for Accused Persons

Out of part III of the Constitution 3 Article viz. Article 20, 21 and 22
are of direct relevance for the accused persons bestowing some rights on
them96 therefore these articles require dome dealing.

Article 20

The Article placed after the one dealing with the freedom of citizen
reads: “20 Protection in respect of conviction for offences:-”
(i) No person shall be convicted of any offence except for violation of

law in force at the time of the commission of the act charged as an

offence, he be subjected to penalty greater than that which might

have been inflicted under the law in force at the time of the

commission of the offence.

(ii) No person shall be prosecuted and punished for the same offence

mese than once.

(iii) No person accused of any offence shall be compelled to be a

witness against himself: our constitution in Article 20 and 22

provides certain safeguard to the persons accused of crimes. The

protection secured by this article may conveniently be considered

under the heading of

(1) Ex post facto laws

(2) Double jeopardy

(3) Prohibition j eopardy against self incrimination
96
Dr. J.N. Pandey, Constitutional Law of India.
 200

Clause (1) - Ex Post Facto Laws

The first part of clause (1) lays down that no person shall be convicted
of any offence except for violation of law in force at the time of the

commission of the act charged as an offence.

This mean that a person can only be convicted of an offence it the act

charged against him was an offence under the law in force at the date of the

commission of the act. Thus article 20 prohibits the legislature form making
retrospective criminal laws.97

The protection given by clause (1) is available only against conviction

as or sentence for a criminal offence under ex-factor laws and not98 against the

trial. The right secured by clause (1) corresponds to the prevision against ex

post factor laws of the American constitution which declared that no ex post

facto laws shall be passed. Broadly speaking ex post factor laws are laws

which nullified and perished what had been lawful when done.

“There can be no doubt”, said Jaganathadas J. “As to the paramount

importance of the principle that such ex post factor laws which retrospectively

create offence and punish them are bad as being highly inequitable and
unjust”.

Clause (2) Prohibition against Double Jeopardy:

Clause (2) of article 20 embodies the common law rule of nemo debet

vis vexari datives veer which mean that no man should be put twice in peril for

the same offence. If he is prosecuted again for the same offence for which, he

has already been prosecuted he can taken complete defense of his formal
acquittal or conviction and he can take the plea of autrefois acquit or autrefois
quatrefoils convict.

97 Hathising Manufacturing Company v. Union ofIndia, AIR 960, S.C. 923.

98 Spaeth, Harold J & Smith Edwied conceal, the Constitution of the United State, 1991.
 201

Article 20(2) however, will have no application where punishment is

not for the same offence. Thus if the offence are distinct the rule of doubly
jeopardy will not apply. Accordingly in Leo Roy v. Superintendent District
Jail, the Honourable Supreme Court of India declared that person, who was

earlier prosecuted and punished under Sea Custom Act, could later on be

prosecuted under the Indian Penal Code for criminal conspiracy.

Article 20(21) embodies the following three essentials.

(a) Thee must be a person accused of an offence, the word ‘offence’

has to be taken in the sense in which it is used in the General

Clauses Act. 1897 as meaning ‘An act of omission made

punishable by any law for the time being in force.’

(b) The proceeding or the prosecution should have taken place

before ‘Court’ or ‘Judicial Tribunal’:

(c) The proceeding should have been taken before the judicial

tribunal as court in reference to the law which creates offences.

The US constitution in corporate the same rule in the Fifth Amendment

“no person shall be twice put in jeopardy of life or limb.” The American
provision though border than the Indian clause, the former does have some
restriction on the rule have some restriction on the rule.
In Benton v. Maryland, it was decided over ruling in Palko v.

Connecticut that Fifth Amendment guarantee against double jeopardy was

binding on the states. It was a trial for burglary and larceny, wherein the

defendant was convicted of burglary but equated of larceny. He was convicted

to both burglary and larceny. The court was held larceny conviction subjected
the defendant to jeopardy a second time. However, in Lauisianaex Rel.
Francis v. Res weber," a convicted murderer who had escaped death because

99
Case of 1937.
 202

of mechanical failure of the electric chair sought to prevent a second attempt at

execution on the grounds of double jeopardy and cruel and unusual
punishment. The court held, 5 to 4, that the state is second effort to execute

him does not violate the constitution.

Again in Bartkus v. Illinois,100 5 to 4 majority reiterated its position that

the due process clause of the Fourteenth Amendment does not apply all the

provisions of the Bills of Rights to the State. In this case conviction for an
offence (robbery of federally insured loan association) in a state court after the

defendant had been acquitted of the same offence in a federal court, did not

violate due process raise any valid question of double jeopardy.

1. Prohibition against self incrimination

This is the right of an accused enshrined in clause (3) if article 29

which is of our direct interest. It provides that no person accused of any

offence shall be compelled to be a witness against himself.

Article 20(3) embodies the general principles of English and American

Jurisprudence that no one shall be compelled to give testimony which may
expose him to prosecution for crime.
The cardinal principle of criminal law which is really the bedrock of
English Jurisprudence is that an accused must be presumed to be innocent till
the contrary is proved. The accused need not make any statement or admission
against his on free will. The Fundamental Rule of Criminal Jurisprudence
against self incrimination has been raised to a rule of constitution law in article
20(3). This guarantee extends to any person accused of an offence and
prohibited all kinds of compulsion to make him witness against himself.
The Supreme Court of India, delineating the scope this law in M.P. Sharma v.
Satish Chandra,m observed that this right embodies the following essential

100
Case of 1947.
101
AIR 954 S.C. 300, also see : RajaNarayan Lai v. M.P. Mistri, AIR 1961 S.C. 29.
 203

1. It is a right pertaining to a person who is accused of an offence.

2. It is a protection against “compulsion to be witness”.

3. It is a protection against such compulsion relating his giving evidence

against himself.

The essential being quit important form the angle of the accused make in a

confession need to be briefly discussed further:

1. Person can be accused of an offence The privilege under clause (3) is

confined only to accused i.e. a person against whom a formal accusation

relating to the commission of an offence had been leveled which in the normal

course may result in the prosecution. It is not necessary that actual trial or
enquiry should have commence before the court or tribunal.

In America the privilege against self incrimination is not confined to

the accused only. It is also available to witness. Under English law too a
witness is protected from answering question which may lead to criminal

prosecution or any other penalty or forfeiture.

In Veer Ibrahim v. State of Maharashtra,m it was declared that mere

fact the relevant time the person was arrested on suspicious of having

committed an offence under section 124 of the Bombay Police Act, and a

Panchnama has been prepared seizing the good was immaterial when neither
the case was registered nor the F.I.R. was recorded by the police.
In Delhi Judicial Service Association v. State of Gujarat,lto ,it was

declared that new insurance of notice for tendency of content preceding did
not attract article 20(3) as the contemns were not ‘accused of an offence.’ The

SC observed that a criminal Contempt was different form an ordinary offence.

2. Protection against compulsion to be a witness

102
AIR 1976 S.C. 1167.
103
(1991)4 S.C. C. 406.
 204

The guarantee in Article 20(3) is against the compulsion ‘to be a

witness’ to be a witness means making of oral or written statement in or out of
court by a person accused of an offence. Such statement are not confined to
confession but also cover incriminatory statements i.e. to the statement is
which have reasonable tendency strongly 2 point out to the guilt of the
accused.
In Malloy v. Hugen,104 the US Supreme Court reversal witnesses

contempt citation for refusing to answer question on the ground that this
answer might incriminate him. The decision over ruled Troining v. New Jersey
and Aamson v. Calfornia and made the self incrimination clause binding on
the states. The court held it could ‘incongruous to have different standard to
determine the validity of a claim of privilege depending on whether the claim
was asserted in state or federal court.’
In Slochawre v. Board ofHigher Education,103 the court invalidated the

discharge of tenured Professor in the Municipal college who invoked the Fifth
Amendments in a Congressional investigation of communist activities.
Invocation the self incrimination clause provides only procedural protection it
does not employ guilt as professional in competence.
In Ulman v. United States,106 the court upheld the constitutionally of

legislation granting immunity from criminal prosecution to person whose

testimony in national security matters was demanded by congressional
committees. A witness can be compelled the court declared to testify under
such immunity even, though loss of job, denial of passport or pubic
opprolerium may result the court said : ‘Protection against compulsory self
incrimination applies only to prosecution for crime’.

104
Willies Constitutional Law 1936.
105
1956 U.S. Case.
106
1957 U.S. Case.
 205

Mollory v. United States,107 it is also an important case on judicial

confession. The Hon’ble Justices invalidated a confession because it had been

obtained from defendant who was detained by arresting officers for an unduly
long time about 18 hours before he was brought before Magistrate the
confession was held to be violate of the Federal Rule of Criminal Procedure.
Albernson v. Subversive Activities Control Board,108 the court voided

provision of the Internal Security Act acquiring individual communities to

register because admission of communist affiliation would expose the restraint
to criminal persecution. The decision rendered inoperative provision of other
laws requiring the registration of Communist Party and Communist Front
Organizations.
Zicarell v. New Jersey,109 in this case the court uphold a sentence for

contempt of court against a witness who refused to testily when state law
provides that neither the testimony given nor leads therefore could be used in
any subsequent persecution. The prohibition against self-incrimination had not
been breached, because the witness remained in the same poison whether test
lying or silent.
The court said : “Immunized individuals may be prosecuted only on
evidence derived form a legislature source wholly independent of the
compelled testimony”.
It is clear from the above decision of the US and Indian position that
our provision are narrower than then American Law.
3. Compulsion must be of giving evidence against himself
The prohibition is only against the compulsion of the accused to give
evidence against himself in Kalawati v. H P. State,110 the Supreme Court has

107 1972 U.S. Case.

108 1956 U.S. Case.
109 1956 U.S. Case.
110 State ofU.P. v. Boota Singh (1979)1 SCC 31 : AIR 1978 S.C. 1770.
 206

held that Article 20(3) does not apply at all to a case where the confession is
made by an accused without any inducement threat or promise. Similarly,
retracted confessions, although they have very little probative value, are not
repugnant to this clause.
To bring the evidence within the inhibition of Article 20(3) it must be
shown that the accused was compelled to make the statement having a material
bearing on the criminality of the maker.111 Compulsion here means what in

law is called ‘duress’, which is explained follows:

‘Duress is where a man is compelled to do an act by injury,
beating or unlawful imprisonment (sometimes called ‘duress’ in
strict sense) or by the teat of being killed, suffering some
grievous bodily harm or being unlawfully imprisoned
(sometimes called menace or ‘duress’ per mines), ‘duress’ also
includes threatening, beating or imprisoning of the wife, parent
or child of a person.”112
In Mohd. Dastagir v. State of Madras,113 the appellant had gone to the

bungalow of the Dy. Superintendent of Police to offer him a bribe contained in

a closed envelope. The police office threw the envelope at the appellant who
took it up. Soon thereafter, he was asked by the police to produce the envelope
and he tool out fifom his pocket some currency notes which were seized by the
police. The appellant pleaded that the currency notes which were seized by the
police should not be allowed to be produced as that would amount to the
admission of compelled evidence. The Court held that clause (3) did not apply
firstly because no compulsion or duress was exercise against the accused and
secondly because at the time the currency not were seized he was no an

State ofBombay v. KathiKalu Oghad AIR 1961 SC 1808.

Id at p. 1816.
AIR 1960 SC 756.
 AVI

accused. So also the tape-recorded evidence, which is unknown to the accused,

is not rendered inadmissible as the accused’s conversation was not extracted
under duress or compulsion.114
In A.P. Grain & Seed Merchants Association v. Union of India,115 a

provision of the Prevention of Food Adulteration Act, 1954, whereby a

certificate signed by the Director of the Central Food Laboratory stating that a
sample contains adulteration, shall be final and conclusive evidence and that
the vendor is not free to plead ignorance of the nature, substance or quality in
defence, was attacked as being inconsistent with the guarantee of self­
incrimination. The Supreme Court upheld that clause. It was observed that the
provision has been made with a view to securing formal evidence of facts
without requiring the director to remain present. The Director is a highly
placed official, an expert in determining the nature, substance and quality of
food, and is wholly disinterested in the result of any case.
5.30 Section 27, Evidence Act
It has been held that the information furnished by an accused person
after his arrest to the investigation officer which leads to the discovery of
articles under Section 27 of the Evidence Act, 1872 is admissible in evidence
and does not in any way offend Article 20(3) of the Constitution of India,116
because an accused person a cannot be said to have been compelled to be
witness against himself simply because he made a statement while in police
custody, without anything more,117 the mere fact of being in police custody at

the time or making the statement would not by itself, as a proposition of law,
lend itself to the inference that the accused was compelled to make the

R.M. Malkanni v. State ofMaharashtra (1973)1 SCC 471 : AIR 1973 SC 157.
(1970)2 SCC 71 : AIR SC 2346.
Gobinda Reddy, Re AIR 1958 Mys. 150; Fettya v. State, AIR 1955 Raj. 147.
State ofBombay v. Kathi Kaln Oghad AIR 1961 SC 1808.
 208

statement. In Pershadi v. U.P. State,118 the Supreme Court held that where in
murder charge the accused has stated to the police officer that he would give
the clothes of the deceased which he had placed in a pit and took out the
clothes which were identified as the clothes belonging to the deceased the
statement of the appellant was held to be admissible. But if the police has
obtained the statement by employing third degree methods, the statement
would be barred under clause (3).119

5.31 Life and Personal Liberty

The words of article 21 says “No person shall be deprived of his life or

personal liberty except according to procedure established by law.” Though

couched in negative language, confers on every person the fundamental right

to life and personal liberty. The two rights have been given paramount position

by our Courts. The right to life which is the most fundamental of all is also the

most difficult to define. Certainly it cannot be confined to a guarantee against

the taking away of life; it must have a wider application. With reference to a
corresponding provision in the 5th and 14th amendments of the U.S.

Constitution, which says that no person shall be deprived of his “life, liberty or
property without due process of law”, in Munn v. Illinois,120 field, J. spoke of

the right to life in the following words:

“By the term ‘life’ as here used something more is meant that

mere animal existence. The inhibition against its deprivation

extends to ail those limbs and faculties by which life is enjoyed.

The provision equally prohibits the mutilation of the body by

the amputation of an arm or leg, or the putting out of an eye, or

AIR 1952 SC 211.

Ghazi v. State AIR 1966 All 142.
94 U.S. 113.
 209

the destruction of any other organ of the body through which the

soul communicates with the outer world.”

Supreme Court, has been further expanded in Francis Coralie v. Union

Territory of Delhi,121 by the statement “that any act which damages or injures
or interferes with the use of any limb or faculty of a person, either permanently
or even temporarily, would be within the inhibition of Article 21”. In the same
case Bhagwati, J. held:
“we think that the right to life includes the right to live with
human dignity and all that goes along with it, namely, the bare
necessaries of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing and
expressing oneself in diverse forms, freely moving about and
mixing and commingling with fellow human beings.”122

Again, relying on Fracnis Coralie, in Bandhua Mukti Morcha v. Union of

India,123 where the question of bondage and rehabilitation of some laborers

was involved, Bhagwati, J. held:

“It is the fundamental right of everyone in this country.... to live
with human dignity, free from exploitation. This right to live
with human dignity enshrined in Article 21 derives its life
breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Article 41 and
42 and at least, therefore, it must include protection of the health
and strength of the workers men and women, and of the tender
age of children against abuse, opportunities and facilities for
children to develop in a healthy manner and in conditions of

121
(1981) SCC 608: AIR SC 746.
122
Francis Corale v. Union Territory ofDelhi (1981) SCC 608.
123
(1984)3 SCC 161 : AIR SC 802.
 210

freedom and dignity, educational facilities, just and humane

conditions of work and maternity relief. These are the minimum
requirements which must exist in order to enable a person to live
with human dignity, and no State .... has the right to take any
action which will deprive a person of the enjoyment of these,
basic essentials”.
In A.K. Gopalan v. State ofMadras,124 though that case was concerned

about the constitutionality of preventive detention of the petitioner which in

any case was an infringement of the ‘personal liberty’ even in the narrowest
sense of the term and therefore it may be said that the scope of ‘personal
liberty’ was not an issue in that case, yet some of the learned judges looking at
the difference in the expression in the U.S. and Indian Constitutions and
relying upon the meaning given to ‘personal liberty’ by some English jurists
concluded that ‘personal liberty’ by some English jurists concluded that
‘personal liberty’ was confined to freedom from detention or physical
restraint. “But there was no definite pronouncement made on this point since
the question before the court was not so much the interpretation of the words
‘personal liberty’ as the inter-relation between Articles 19 and 21.”125

For the first time the meaning and scope of ‘personal liberty’ came up
pointedly for consideration in Kharam Singh v. State of UP.126 In that case

validity of certain police regulation which, without any statutory basis,

authorize the police to keep under surveillance persons, whose names were
recorded in the ‘history-sheet’ maintained by the police in respect of persons
who are or are likely to become habitual criminals. Surveillance as defined in
the impugned regulation included secret picketing of the house, domiciliary

AIR 1951 SC 27.

Maneka Gandhi v. Union ofIndia (1978)1 SCC 248.
AIR 1963 SC 1295.
 211

visits at night periodical inquiries about the person, an eye on his movements,
etc. the in Article 19(1) (d) and ‘personal liberty’ in Article 21. For
determining the claim of the petitioner the Court, apart from defining the
scope of Article 19(1) (d), had to define the scope of ‘personal liberty’ in
Article 21.
He also held that “the right to privacy is not a guaranteed right under
our Constitution and therefore the attempt to ascertain the movement of an
individual which is merely a manner in which privacy is invaded is not and
infringement of a fundamental right guaranteed by Part III”. For the minority
Subba Rao, J. held:
“No doubt the expression ‘personal liberty’ is a comprehensive
one and the right to move freely is an attribute of personal
liberty. It is said that the freedom to move freely is carved out of
personal liberty and, therefore, the expression ‘personal liberty’
in Article 21 excludes that attribute. In our view, this is not a
correct approach. Both are independent fundamental rights,
though there is overlapping there is no question of tone being
carved out of another. The fundamental rightly of life and
personal liberty have many attributes and some of them are
found in .Article 19, if a person’s fundamental right under
Article 21 is infringed, the State can rely upon a law to sustain
the action; but that cannot be a complete answer unless the said
law satisfies the test laid down in Article 19(2) so far as the
attributes covered by Article 19(1) are concerned.”
He held that right to privacy “is an essential ingredient of personal
liberty” and that the right to personal liberty is “a right of an individual to be
free from restrictions or encroachments are directly imposed or indirectly
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brought about by calculated measures”. Applying that test he found the entire
regulation violative of Article 21, and also of Article 19(l)(a) and (d).
Reviewing the foregoing and some other decisions and agreeing with the
approach of the minority in Kharak Singh Bhagwati, J. in Maneka Gandhi v.
Union ofIndia,121 concluded :
“The expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go to constitute
the personal liberty of, an and some of them have been raised to
the status of distinct fundamental rights and given additional
protection under Article 19.”
Upholding the right of the petitioner to have interviews with her family
members, friends and lawyer during her preventive detention, in Francis
Coralie v. Union Territory of Delhi Bhagwati, J. quoting his above mentioned
statement in Maneka Gandhi held that personal liberty includes right to socialize
with family members and friends as well as to have interview with the lawyer.
5.32 Procedure Established by Law
The expression ‘procedure established by law means procedure laid
down by statute or procedure prescribed by the law of the State. Accordingly,
first, there must be a law justifying interference with the person’s life or
personal liberty, and secondly, the law should be a valid law, and thirdly, the
procedure laid down by the law should have been strictly followed. The
executive in the absence of any procedure prescribed by the law sustaining the
deprivation of personal liberty shall act in violation of Article 21 if It interferes
with the life or personal liberty of the individual.
In A.K. Gopalan v. State of Madras,128 it was held that the expression

‘procedure established by law’ means procedure enacted by a law made by the

127
(1978)SCC 248 : AIR 1978 SC 597, 622.
128
AIR 1950 SC 27.
 213

state. The Supreme Court, by a majority, rejected the argument that the Taw’
in Article 21 is used in the sense ofjus and lex, and that it means the principles
of natural justice oh the analogy of ‘due process of law’ as interpreted by the
American Supreme Court. That in effect amounted to holding that Article 21
A.D.M., Jabalpur v. Shivakant Shukla,129 where the Supreme Court held that

Article 21 was the sole repository of the right to life and personal liberty
against its illegal deprivation by executive and in case enforcement of Article
21 was suspended by a presidential order under Article 359, the Court could
not enquire whether the executive action depriving a person of his life or
personal liberty was authorized by law.
Maneka Gandhi Bhagwati, J, who delivered the leading opinion in
Maneka Gandhi, held that the law must now be taken to be well settled that
Article 21 does not exclude Article 19 and a law prescribing a procedure for
depriving a person of ‘personal liberty’ will have to meet the requirement of
Article 21 and also of Article 19 as well as of Article 14. In his exposition of
the concept of ‘procedure’ in Article 21 Bhagwati, J. was inspired by the great
equalizing principle enunciated in Article 14.
It was explained that the principle that the principle of reasonableness,
which is an essential element of equality or non-arbitrariness pervading Article
14, must also apply with equal force to the ‘procedure contemplated by Article
21, that is, the procedure must be ‘right, just and fair’ and not arbitrary,
fanciful or oppressive’. In order that the ‘procedure’ is ‘right, just and fair’, it
should confirm to the principle of‘natural justice’, that is, ‘fair-play in action’.
5.33 From ‘Procedure Established by Law’ to ‘Due Process of Law’
While Bhagwati J. in Maneka Gandhi case, established the requirement
of reasonableness of procedure in Article 21 through Article 14, some of the

129
(1976)2 SCC 521 : AIR 1976 SC 1207.
 214

judges in that case and in some other subsequent cases have read it in Article
21 itself and particularly in this word ‘law’ into ‘due process of law’ in the
American sense which the Constitution makers had intended to avoid by
replacing the latter expression by the former. This in Maneka Gandhi,
Chandrachud, J. said that the procedure in Article 21 “has to be fair, just and
reasonable, not fanciful, oppressive or arbitrary” and Krishna Iyer, J. said that
‘law’ in Article 21 is reasonable law, not any enacted piece.
Again in Sunil Batra v. Delhi Administration,130 Krishna Iyer, J. said,

“true our Constitution has no ‘due process’ clause... but...after Cooper ... and
Maneka Gandhi ...., the consequence;,is the same and added the Article 21 is
the counterpart of the procedural due process in the United States, in the same
case speaking for the rest of the Court Desai, J. said:
“The word Taw in the expression ‘procedure established by law’
in Article 21 has been interpreted to mean in Maneka Gandhi
case.. .that the law must be right, just and fair, and not arbitrary,
fanciful or oppressive.”
In Mithu v. State of Punjab,131 a constitutional bench, for the first time
and unanimously invalidated a substantive law.... Section 303 of the Indian
Penal Code ... which provided for the mandatory data sentence for murder
committed by a life convict. Quoting fro Maneka, Sunil Batra and Bachan
Singh the Court observed:
“These decisions have expanded the scope of Article 21 in a significant way

and it is now too late in the day to contend that it is for the legislature to

prescribe the procedure and for the Courts to follows it; that it is for the

legislature to provide the punishment and for the Courts to impose it ... the

last word on question of justice and fairness does not rest with the legislature.

130
((1978)4 SCC 494 : AIR 1978 SC 1675.
131
(1983)2 SCC 277 : AIR 1983 SC 473.
 215

5.34 Protection Against Arrest and Detention in Certain Cases

(1) No person who is arrested shall be detained in custody without being

informed, as soon as may be, of the grounds for such arrest nor shall be denied

the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced

before the nearest magistrate within a period of twenty-four hours of such

arrest excluding the time necessary for the journey from the place of arrest to

the court of the magistrate and no such person shall be detained in custody

beyond the said without the authority of a magistrate.

Clauses (1) and (2) of Article 22 confer four right upon a person who

has been arrested. Firstly he shall not be detained in custody without being

informed, as may be, of the grounds of his arrest. If information is delayed,

there must be some reasonable ground justified by the circumstances, 70

Secondly, he shall have the right to consult and to be represented by a lawyer

of his own choice. 71 This right too is not lost if he. is released on bail. 72

Thirdly, every person who has been arrested has the right to be produced

before the nearest Magistrate within 24 hours of his arrest. In computing his

period of 24 hours, the time spent on the journey from the place of arrest to the

court of the Magistrate is to be excluded. This requirement is dispensed with if

the person arrested is admitted to bail. 73 Fourthly, he is not be detained in

custody beyond the said period of 24 hours without the authority of the Court.

74 Even if an accused was initially illegally detained, the detention became

lawful when subsequently he was arrested and produced before a Magistrate

within 24 hours. But where remand order are obtained by the police from the

magistrate or judge within 24 hours, Article 22(2) is violated. 75

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The two requirements of clause (1) of Article 22 are meant to afford the

earliest opportunity to the arrested person to remove any mistake,

misapprehension or misunderstanding in the mind of the arresting authority

and also to know exactly what the accusation against him is, so that he can

exercise the second right, namely, of consulting a legal practitioner of his

choice and to be defended by him. Clause (2) of Article 22 provides the next

and most material safeguard that the arrested person must be produced before

a magistrate within 24 hours of such arrest so that an independent authority

exercising judicial powers may without delay apply its mind to his case. The

Code of Criminal Procedure contains analogous provisions in Section 56 and

303, but Constitution makers were anxious to make these safeguards and

integral part of the fundamental rights. Thus, once it is shown that the arrests

made by the police officers were illegal, it is necessary for the State to

establish that at the stage of remand the magistrate directed detention in jail

custody after applying his mind to all relevant matters.

5.35 Relationship of Fundamental Rights and Extra Judicial Confession

The Fundamental Rights as read from the bar provision under Article

20, 21, 22 of the constitution of India and the interpretation given by the SC of

India we find that it answer and ensures that an accused person or a suspect

cannot be compelled to make an inculpatory statement against himself, he has

a right to speedy trail a well as right to legal and as a part of his right to life; he

cannot be detained for ling without judicial permission. The laws in order to

ensure all this must be fair regardable in their substance and with the study of

Fundamental Rights R if we test the provision of extra judicial confession

under the Evidence Act were recall that the very purpose of admissibility of