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ADMISSIBILITY AND RELIABILITY OF DISCOVERY STATEMENTS MADE UNDER SECTION 27 OF THE INDIAN EVIDENCE ACT: AN ANALYSIS
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ADMISSIBILITY AND RELIABILITY OF DISCOVERY STATEMENTS MADE
UNDER SECTION 27 OF THE INDIAN EVIDENCE ACT: AN ANALYSIS
AUTHORED BY
- VIRENDRA PRATAP SINGH RATHOD
Abstract: Statements
made or information supplied by the accused under section 27 of the Indian
Evidence Act, 1872 are rendered admissible in court insofar as it distinctly
relates to the discovery of a new fact (discovery statements). However, there
lie several nuances in the extent of its scope and applicability in different
circumstances. The present article is an attempt to explore the ambit and
purview of said discovery statements in two folds, concerning their
admissibility in court and the placing of reliance upon the same as evidence,
under the provisions of the aforementioned section 27.
In furtherance of the same, the
article begins with a brief introduction to section 27, tersely delving into
the history of its formulation whilst also laying down the necessary elemental
ingredients for its attraction. This is followed by an analysis concerning its
use and application in varied circumstances as stipulated by judicial
precedents to better comprehend the situations under which it may be employed
and the limitations regarding its utility as admissible evidence before the
court. Thereafter, the penultimate segment of the article deals with the impact
of historical and contemporary interpretations given by the courts, concerning
its use, upon key stakeholders. The article ends with remedial measures or
suggestions which may be incorporated for enhanced lucidity and efficiency in
the usage of section 27.
Keywords: Section 27, discovery statement,
scope, applicability, reliance, ingredients, judicial precedents, stakeholders,
lucidity, efficiency.
SECTION 27, THE INDIAN EVIDENCE ACT, 1872: AN INTRODUCTION
Section 27 of the Indian Evidence
Act, 1872, is a provision that provides for an exception to the general rule
against self-incrimination under Section 25 of the Act. It allows for the
admissibility of a discovery statement made by an accused person in police
custody, in certain circumstances, even if the rest of the statement itself is
not admissible as evidence.[1]
The section applies only to criminal
trials and not to civil proceedings since confessions or information supplied
by the accused hold great relevance in the eventual outcome of criminal
proceedings;[2]
therefore, the purpose of the section is to enable the discovery of material
evidence that would otherwise have been difficult to obtain.[3]
Section 25 of the said Indian
Evidence Act, provides that “no confession made to a police officer shall be
proved as against a person accused of any offense.”[4]
This is based on the principle that a confession made in police custody is
often the result of coercion, torture, or other forms of undue influence, and
therefore unreliable.[5]
Section 27, however, carves out an exception to this rule in cases where the
fact discovery is a result of information given by an accused person is made.
Usually, in practice, Section 27 is
often invoked in cases where the police have recovered incriminating evidence
based on information provided by the accused person. The section allows for the
admissibility of such evidence, provided that the discovery of the evidence was
a direct result of the information provided by the accused person.[6]
HISTORICAL ORIGINS
The historical origins of Section 27,
can be traced back to English Common Law, which established a similar rule
known as "Smith's Rule" or "The Confession Rule".[7]
This rule allowed or the admission of any fact discovered as a result of an
accused person's confession, even if the confession itself was inadmissible.[8]
It stems from the English case of R v. Thompson, where it was held that a
confession made by an accused which led to the discovery of incriminating
evidence was admissible as evidence against the accused. The rationale behind
the rule was that if the confession was true, then the evidence discovered as a
result of the confession would also be true.[9]
The historical backdrop in which the
Indian Evidence Act was enacted is also significant. The Act was enacted during
a period of British colonial rule in India, and its provisions were shaped by
the political and social conditions of the time. The Act was intended to
provide a uniform system of evidence law for the Indian subcontinent and was
designed to reflect the values and norms of British colonial society.[10]
Thus, when the Indian Evidence Act
was enacted in 1872, it was largely based on the English Common Law system.
Section 27 of the Act reflects the principle of Smith's Rule, with some
modifications. In this regard, it is important to note the distinction that the
Smith’s Rule is not limited to confessions made during the course of an
investigation to a police officer, but can include any statement made by an
accused person, such as a statement made in court or to a private individual.[11]
However, for Section 27 to apply, the discovery of the fact must be a direct
result of the information supplied by the accused.[12]
Thus, it was included in the Act to
allow for the admission of evidence that would otherwise be excluded due to the
general rule against the admissibility of statements made by an accused to a
police officer as a modified and restricted version of the Smith’s Rule owing
to colonial India’s socio-political climate at the time which was characterized
by increasing hostilities against the British at the time coupled with the
steady emergence of a national consciousness.[13]
NECESSARY INGREDIENTS
The attraction of penal punishment as
provided under any offense emerges with the successful adherence to all
ingredients that cumulatively constitute said offense.
The key ingredients essential to
attract Section 27 of the Indian Evidence Act, 1872, include firstly, the statement must be made by a
person accused of any offense because Section 27 applies only to information
received from a person who is in the custody of a police officer in connection
with an offense, which means that the statement must be made in the presence of
that police officer.[14]
Secondly, such
a statement made by the accused must be voluntary and not obtained by
inducement, threat, or promise. If the statement was obtained through any of
these means, it will not be admissible in court.[15]
Lastly, and perhaps
most importantly, a new fact must be discovered as a result of the statement
made under Section 27, and it must be a fact that the police officer did not
previously know.[16] Such a
statement may even form part of the confession as long as it leads to the
aforementioned discovery of a new fact with only that portion of said
confession being admissible that lead to such discovery.[17]
Furthermore, the term
"fact" in Section 27 refers to a relevant fact, which means any fact
that makes the existence or non-existence of any other fact more or less
possible than it would have been without the evidence of that fact. Therefore,
the new fact discovered must be relevant to the case at hand and must have some
probative value.[18] It is
also essential to note that the new fact discovered must be a distinct result
of the statement given by the accused, in that said statement directly and
unequivocally lead to the discovery of that fact.[19]
JUDICIAL PRECEDENTS CONCERNING THE ADMISSIBILITY AND RELIABILITY OF
DISCOVERY STATEMENTS AS MADE UNDER SECTION 27
Section 27, as previously described,
allows for the admissibility of any fact discovered as a result of information
provided by the accused person during police custody and thereby operates as an
exception to the general rule against the admissibility of a confession made by
an accused person in criminal proceedings.
The admissibility and reliability of
such information is a complex issue and has been the subject of several
decisions by Indian courts. Therefore, to attain a comprehensive understanding
regarding its use and applicability in courts, it becomes imperative to gain an
expansive account as to when shall it be valid to invoke said section.
In the early case of Queen-Empress v. Pakkirisamith, the
Privy Council had held that the admissibility of a discovery statement made
under section 27 of the Indian Evidence Act, 1872 depends on whether the
statement was made voluntarily or not.[20]
Further, “the statement must relate to a fact discovered as a result of the
information provided by the accused.” The same was affirmed in Emperor v. Bal Gangadhar Tilak[21]
and thereafter, in Pakala Narayana Swami
v. Emperor.[22]
However, it was in the landmark case
of Pulukuri Kottaya v. Emperor, where
the Privy Council had comprehensively discussed the admissibility and reliance
that is to be placed upon discovery statements as valid evidence in courts
whereby the council devised important distinctions regarding the use of section
27 so as to provide a more lucid legal framework for the same.
The case concerned the discovery of a
revolver and a knife by the police in the presence of the accused, Pulukuri
Kottaya. The accused had made a statement to the police that he had hidden the
weapons in a certain place and had subsequently taken the police to said place
leading to their discovery.[23]
In this regard, the council whilst delivering its judgment, made it clear that
the discovery of a fact must be more than mere production of evidence by the
accused for the attraction of section 27.
In other words, the mere fact that
the accused person led the police to the place where the evidence was found
would not be sufficient to establish a nexus between the discovery and the
statement made by the accused.[24]
Instead, there must be a clear link between the information provided by the
accused and the discovery of the fact wherein based on the information provided
by the accused, the police independently make the aforesaid discovery without
having the accused physically guide them to the location.[25]
This served as an important
discernment considering that it laid more down, more clearly and distinctly,
the circumstances in which section 27 may be called upon to counter ambiguity
and ambivalence. The same was built upon and expanded by the courts in
post-colonial India, becoming the bedrock of the law on discovery statements
made under Section 27.
In the initial years after
independence, the Supreme Court emphasized the need for the prosecution to
establish a clear link between the discovery and the statement made by the
accused in the State of Maharashtra v.
Praful Desai.[26]
The court observed that the mere fact that the accused led the police to the
place where the evidence was found would not be sufficient to establish the
nexus between the discovery and the statement, thereby reiterating the seminal
principles first enumerated in Pulukuri
Kottaya.
Subsequently, in the State of Rajasthan v. Kalki, the Supreme Court reiterated the
test laid down in Pulukuri Kottaya and observed that the statement must be
proved to have led to the discovery beyond a reasonable doubt.[27]
Over the years, the courts have
strengthened jurisprudence concerning the various other aspects involved in the
formulation of discovery statements as well. In Rameshwar v. State of Rajasthan, the court observed that the
statement need not be precise and accurate, but it must provide some
information that leads to the discovery of a fact.[28]
The court also held that the discovery statement need not necessarily relate to
physical evidence, but could also be “a statement that leads to the discovery
of a person or an object”, consequently broadening the ambit of the discovery
made.[29]
Furthermore, in Suresh Chandra Bahri v. State of Bihar, the Supreme Court held that
the admissibility of a discovery statement made under section 27 of the Indian
Evidence Act, 1872 depends on whether the statement was made voluntarily and
whether it relates to the discovery of a fact.[30]
The court also held that the statement must not be made under any inducement,
threat, or promise. The same was later affirmed by the court in the State of Maharashtra v. Bharat Fakira Dhiwar.[31]
Moreover, in M.P. Sharma v. Satish
Chandra, the court strictly placed the burden of proof as regards proving
the voluntary nature of said statement upon the prosecution.[32]
Additionally, the Court has clarified
that the discovery of the fact need not be immediate, and could be made even
after some time has passed since the statement was made.[33]
However, in State of Maharashtra v.
Saquib Abdul Hamid Memon, the court held that if there is a gap of several
months between the statement and the discovery, then the prosecution must
establish that the accused had not had access to the place where the evidence
was found during that period.[34]
However, if an accused person
retracts a discovery statement, it cannot be relied upon unless there is
independent corroboration, as was held by the Supreme Court in State of U.P. v. Jagdeo.[35]
Regarding the evidentiary value of a discovery statement as the basis for
conviction, the Supreme Court, in its judgment in State of Maharashtra v. Sukhdev Singh stated that while the
statement of the accused may not be admissible as a confession, it can still be
considered as a piece of evidence leading to the discovery of a fact.
Moreover, in State of U.P. v. Deoman Upadhyaya, the Supreme Court of India held
that discovery statements made under Section 27 are admissible even if they are
not recorded in writing, as long as there is oral evidence to prove their
truth. The court also noted that the fact discovered must be previously unknown
to the police and that the statement made by the accused must have been the
cause of that discovery.[36]
Lastly, such statements cannot be
held inadmissible merely because they were made in the presence of a co-accused
as held by the Supreme Court in M.P.
Sharma v. Satish Chandra. The court noted that the fact that the statement
was made in the presence of a co-accused is a factor to be considered in
determining its admissibility, but that it does not render the statement
inadmissible per se.[37]
In conclusion, the admissibility and
reliability of discovery statements have been the subject of extensive
discussion and analysis by the Indian courts leading to developed precedents
regarding their imploration in courts and associated weight as sound evidence.
STAKEHOLDER IMPACT ANALYSIS:
Having explored the multifaceted
interpretations given by the courts over the years governing the various
aspects surrounding the attraction and utilization of Section 27, it now
becomes imperative to evaluate the possible impacts of said interpretations
upon the two key stakeholders involved herein; primarily the accused and the
prosecution.
A. IMPACT UPON THE ACCUSED
Discovery statements made under
Section 27 of the Indian Evidence Act, 1872 have a significant impact on the
accused. These statements can be used as evidence against the accused in court,
and they can be a critical factor in determining the outcome of a trial. In
cases where the discovery statement is admissible and reliable, it can be used
to establish the guilt of the accused, leading to conviction and punishment.[38]
In some cases, a conviction can have a lasting impact on the accused's
reputation and future prospects.[39]
Additionally, the use of discovery
statements can also have psychological effects on the accused. The knowledge
that their own statements have been used to incriminate them can cause feelings
of guilt, shame, and remorse, particularly if the accused did not fully
understand the implications of making such a statement at the time. This can
have long-term effects on the accused's mental well-being and ability to cope
with the consequences of their actions.[40]
Furthermore, in cases where the
discovery statement is unreliable or inadmissible, it can compound the
detrimental impact on the accused. False discovery statements can lead to
wrongful convictions and punishments, which can result in severe consequences
for the accused, including loss of liberty and reputation.[41]
In light of these significant impacts
on the accused, it is important that courts carefully consider the
admissibility and reliability of discovery statements made under Section 27 to
insulate against the risk of wrongful convictions and miscarriages of justice.
B. IMPACT UPON THE PROSECUTION
The aforementioned discovery
statements made under Section 27 may have a significant impact on the
prosecution as well. The provision allows the prosecution to introduce crucial
evidence that may otherwise have been difficult or impossible to obtain. The
use of discovery statements can thus increase the chances of securing a
conviction, which is the ultimate goal of the prosecution in criminal trials.[42]
However, the reliance on discovery
statements as evidence can also make the prosecution vulnerable to challenges
regarding the reliability and authenticity of such statements. As discussed
earlier, the Supreme Court of India has laid down stringent requirements for
the admissibility of discovery statements. Failure to meet these requirements
can result in the statements being excluded as evidence, which can weaken the
prosecution's case.[43]
Furthermore, the use of discovery
statements can also lead to ethical concerns regarding the methods used to
obtain such statements. The accused may allege that the statement was obtained
through coercion, threats, or promises of leniency, leading to questions about
the voluntariness of the statement.[44]
Such allegations can damage the reputation of the prosecution and the criminal
justice system as a whole.
Therefore, while discovery statements
can be a powerful tool for the prosecution, their use is not without risks. The
prosecution must ensure that the statements meet the stringent requirements
laid down by the courts and that they were obtained in a lawful and ethical
manner.
REMEDIAL SUGGESTIONS
The discovery statement has been a
valuable tool for investigating agencies in the discovery of material evidence,
leading to the prosecution of the accused. However, the admissibility of
discovery statements has been a subject of extensive debate in the legal
system, with occasional concerns raised over its reliability and potential for
abuse. Therefore, the following remedial measures are proposed by the author to
impart greater clarity and efficiency to discovery statements made under the
provision of Section 27:
1. Standardisation of Judicial Interpretation: The standardization of judicial
interpretation of section 27 will enhance the consistency and reliability of
the provision. The Supreme Court of India should issue guidelines for the
interpretation of the provision, highlighting the key factors to be considered
in determining the admissibility and reliability of discovery statements. This
will enhance the clarity of the provision and promote consistency in its
application.
2. Development of Procedural Guidelines: The development of procedural guidelines, specific to
the recording and use of discovery statements will enhance the credibility and
reliability of the evidence. The guidelines should outline the procedures to be
followed in the recording of discovery statements, highlighting the need for
voluntary and non-coercive statements. The guidelines should also provide for
the verification of the statements by independent witnesses and the
cross-examination of the accused.
3. Emphasis on Corroboration of Discovery Statements: The courts should emphasize the need
for corroboration of discovery statements to enhance their reliability and
credibility. The courts should consider the circumstances of the discovery, the
nature of the evidence, and the credibility of the accused in determining the
reliability.
4. Independent Witnesses: The presence of independent witnesses during the discovery
process ensures that the discovery is genuine and not fabricated or manipulated
by the police or the accused. It also provides an additional layer of
corroboration for the discovery statement. The courts should encourage the
inclusion of independent witnesses during the discovery process to enhance the
credibility and reliability of the discovery statement.
5. Recording of Discovery Statements: The recording of discovery statements should be done
meticulously and systematically to avoid any ambiguity or confusion. The
statements should be recorded in the language of the accused, and the accused
should be given an opportunity to read and verify the statement. The recording
should be done in the presence of the accused, and the accused should be
allowed to make any corrections or additions
6. Training of Police Personnel: The police personnel involved in the discovery process should
be given adequate training and guidance to ensure that the process is carried
out fairly and transparently. The police personnel should be trained to ensure
that the discovery is genuine and not fabricated or manipulated. They should
also be trained to ensure that the accused's rights are protected and that the
process is carried out in a manner that is consistent with the law.
CONCLUSION
Discovery statements made under
Section 27 of the Indian Evidence Act, 1872 can be a powerful tool in the hands
of the prosecution. However, their usage must be tempered with caution to
ensure that they are not misused or abused. The above remedial measures, if
incorporated, can enhance the lucidity and efficiency in the usage of Section
27 and also ensure that the rights of the accused are protected. It is
essential that the courts, police personnel, and legal professionals work
together to ensure that the discovery process is carried out in a fair,
transparent, and reliable manner.
[1] The Indian Evidence Act, 1872, §
27, No. 1, Acts of Parliament, 1872 (India).
[2] Ratanlal
& Dhirajlal, The Law of
Evidence (LexisNexis 2019).
[3] Id.
[4] The Indian Evidence Act, 1872, §
25, No. 1, Acts of Parliament, 1872 (India).
[5] supra note 2.
[6] State of U.P. v. Singhara Singh, AIR 1964 SC 358.
[7] S.
Sarkar, Sarkar's Law of Evidence
420 (LexisNexis 2021).
[8] Id.
[9] S.N.
Mishra, Indian Evidence Act
96 (Central Law Publications 2017).
[10] Id.
[11] Pranjal Kishore, Section 27 of the Indian Evidence Act, 1872:
An Appraisal, 62 JILI 358 (2020).
[12] Id.
[13] Id.
[14] State of Maharashtra v. Damu, (2000) 6 SCC 269.
[15] State of Haryana v. Ram Singh, (2002) 6 SCC 641.
[16] Pulukuri Kottaya v. Emperor, AIR 1947 PC 67.
[17] Id.
[18] Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC
694.
[19] Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1.
[20] (1897) ILR 20 Mad 65.
[21] (1916) 18 Bom LR 116.
[22] AIR 1939 PC 47.
[23] AIR 1947 PC 73.
[24] Id.
[25] Id.
[26] (2003) 4 SCC 601.
[27] (1981) 2 SCC 752.
[28] AIR 1952 SC 54.
[29] Id.
[30] AIR 1995 SC 2053.
[31] (2003) 12 SCC 262.
[32] AIR 1954 SC 300.
[33] supra note 30.
[34] (2008) 13 SCC 21.
[35] AIR 1963 SC 612.
[36] (1992) 3 SCC 700.
[37] supra note 32.
[38] supra note 23.
[39] R. Venkata Rao, Discovery and Recovery under Section 27 of
the Indian Evidence Act, 1872: A Reassessment, 54 JILI, 175-193 (2012).
[40] Id.
[41] supra note 36.
[42] Varsha S. S., Use of Discovery Statements in Criminal Trials: A Comparative Study, 45
IBR, 122-143 (2018).
[43] Id.
[44] supra note 39.
Article Information
ADMISSIBILITY AND RELIABILITY OF DISCOVERY STATEMENTS MADE UNDER SECTION 27 OF THE INDIAN EVIDENCE ACT: AN ANALYSIS
Authors: VIRENDRA PRATAP SINGH RATHOD
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/24
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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