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Analysis Of Law Of Recovery Under The Indian Evidence Act

In my opinion, the process of recovery should be used in criminal trials but with reasonable restrictions. When we talk about the process of recovery which is derived from the theory of subsequent facts it becomes all the more important to refer to Section 27^[1*] which states "a person accused of any offence, in the custody of a police officer"^[2*]. Now the question arises that whether the discovery is admissible when the accused is in police custody or not in police custody. This has been in debate since the year 1884 as in Queen Empress v. Babu Lal^[3*] where the privy council held that the accused should be in police custody. This was later reversed in 1932 in the case of Namasudra v. Emperor^[4*] that held information to discovery could be outside the custody also. The current position is that what was held in the case of State of U.P. v. Deoman Upadhyay^[5*] where Shah, J. mentioned the said provision is not violative of Article 14 of the Constitution^[6*] as this is manifestly reasonable and creates an intelligible differentia between police custody and outside it. They also expanded the scope of police custody to constructive custody. This concept arises due to flexible interpretation of Section 46 of the Code of Criminal procedure^[7*]. This was again followed in Aghnoo Nagesia v. State of Bihar^[8*]. Also, in Lachman Singh v. State of U.P.^[9*] it was held that Section 27^[10*] is admissible only when accused is in police custody otherwise barred by Section 162 of Cr.P.C.^[11*].

[1* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[2* Ibid.]

[3* Queen Empress v. Babu Lal, (1899) ILR 21 AII 106 (India).]

[4* Durlav Namasudra v. Emperor, (1931) SCC OnLine Cal 146 (India).]

[5* State of U.P. v. Deoman Upadhyay, (1961) 1 SCR 14 (India).]

[6* Indian Constitution, Article 14.]

[7* The Code of Criminal Procedure, Section 46 (1898).]

[8* Aghnoo Nagesia v. State of Bihar, (1966) 1 SCR 134 (India).]

[9* Lachman Singh v. State, (1952) SCR 839 (India).]

[10* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[11* The Code of Criminal Procedure, Section 162 (1898).]

From the above position it is clear that the accused should be in police custody which is the constructive custody and in no way does it allow the accused to be outside the police custody. So the "," in Section 27^[12*] should be omitted and "and" should be inserted that is "a person accused of any offence and in the custody of a police officer". This would lead to clarity with both of these being essential for Section 27^[13*] to act as an exception to the general rule. Also this was the legislative intent as before the enactment of this section under the Indian Evidence Act, these provisions were present in the then Section 149 of the Code of criminal procedure code and which included "or" and which was removed in the year 1872 and changed it to ",".

[12* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[13* Ibid.]

The second question is concerning the admissibility of this section as being violative of Article 20(3)^[14*]. This position was clarified by a twofold test given in the case of State of Bombay v. Kathi Kalu Oghad^[15*] which also held that the discovery is not self-incriminatory if it is not given under any threat. The test was as follows -

1) The testimony does not tend to incriminate the accused

2) Does this testimony make the accused at least probable for committing the crime

[14* Indian Constitution, Article 20, Clause 3.]

[15* State of Bombay v. Kathi Kalu Oghad (1962) 3 SCR 10 (India).]

This position was reiterated in Selvi v. State of Karnataka^[16*] which added two more tests to protect the rights of the accused. These are as follows-

1) The extent to which the accused was compelled.

2) Exercise of Judicial discretion concerning the unfair operation principle.

[16* Selvi v. State of Karnataka, (2010) 7 SCC 263 (India).]

After these tests it is clear that Section 27^[17*] is not violative of Article 20(3) of the Constitution^[18*].

[17* Section 27, The Indian Evidence Act, 1872, Acts of Parliament, 1872 (India).]

[18* Indian Constitution, Article 20, Clause 3.]

Section 26^[19*] of the act talks about the accused's confessions not being admissible under police officer in the police custody. Thereby restricting its scope to just the police custody which was expanded to constructive custody as mentioned above. Whereas Section 25^[20*] talks about general confessions under the police whose ambit is wider and includes confessions made outside the police custody. Now what section 27^[21*] does is it talks about the exception to the general rule of admissibility of confessions under a police officer by the accused by providing certain requirements that need to be perused. That is why the language of the section starts with the word provided. Since the section is an exception there is vagueness and a grey area concerning which particular provision this exception applies to. It is essential for the accused to be in police custody for this exception to take place. Therefore the second amendment that I propose is that this provision is an exception to only Section 26^[22*] and this should be added as an exception to this provision. This position was also held in Udai Bhan v. State of U.P.^[23*] where they held that "Section 27 is nature of proviso to Section 26"^[24*].

[19* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[20* Section 25, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[21* Section 27, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[22* Section 26, The Indian Evidence Act , 1872, Acts of Parliament, 1872 (India).]

[23* Udai Bhan v. State of U.P., (1962) 2 Cri LJ 251 (India).]

[24* Ibid.]

I am also in favour of the 185th Law commission report^[25*] to the extent that it strikes down the 152nd law commission report's view to completely repeal Section 27 as all confessions to police to be excluded. Also, it rejects the 69th report's claim as to Section 27 being the exception to Section 24 as it includes confessions by " threat, inducement and promise". This would lead to the use of third-degree torture methods. Also I do not agree with the recommendations of adding "or" to the provision so that it becomes an exception to both Section 26 and Section 27 as although by expanding the scope of police custody by using constructive custody the courts have said that Section 27 would not extend to recovery being outside the police custody.

[25* 185th Law Commission Report, Government of India, Part II http://lawcommissionofindia.nic.in/reports/185thReport-PartII.pdf.]

So the changes I am proposing is Section 27 be repealed and added to Section 26 with one amendment which as follows-

"Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence and in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

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