Taken From: Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam,
Saji Koduvath & James Joseph, Advocates, Kottayam.
| Section 25, 26 and 27, Indian Evidence Act | Section 23, Bhartiya Sakshya Act |
| 25. Confession to police officer not to be proved. –– No confession made to a police-officer, shall be proved as against a person accused of any offence. 26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Explanation.––In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18827 (10 of 1882). 27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. | 23. Confession to police officer. (1) No confession made to a police officer shall be proved as against a person accused of any offence. (2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him: Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved |
Introduction
The proposed Bhartiya Sakshya Act, 2023 introduces two significant changes in Sec. 27 of the Indian Evidence Act, 1872.
Changes in the New Act (Made to Sec. 27, IEA)
First –
- Now, from the words of Sec. 27 of the Indian Evidence Act, it is clear (i) what is to be proved by Sec. 27 is the fact deposed by the Investigating Officer in court; and (ii) it must be as to the ‘discovery’ on ‘information’ (or disclosure) from the accused.
- From the words of Sec. 27 of the Evidence Act, it could be shown or argued (though not correct) that the fact ‘discovered’ embraces (a) the “recovery” (b) of the “object” (c) in the immediate presence of the accused – to have it “in consequence of (his) information”.
- The possibility of these (incorrect) arguments are averted by removing the word “thereby” in Section 27 (in the proviso to Section 23 of the new Bhartiya Sakshya Act).
Second –
- Now, the Sec. 27 of the Indian Evidence Act begins with a ‘Proviso’.
- This impropriety is removed by clubbing Section 25, 26 and 27 (of the Indian Evidence Act) in the new Bhartiya Sakshya Act (in Sec. 23).
A Discordant Note
- Now, under Sec. 25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. But, if it falls under Sec. 27 (that is, if it leads to a discovery as provided in Sec. 27), it can be proved.
- Though Section 25 is retained in the new Bhartiya Sakshya Act, 2023, under Sec. 23(1), the proviso is not made applicable to the Section, 23(1).
- Note: 1. The proviso is limited (or made applicable) to subsection (2) of Section 23 of the Bhartiya Sakshya Act (alone) – See the colon (:) at the end of subsection (2).
- Note: 2. It appears to be a mistake in drafting the section; because,
- (i) Sec. 25 of the Indian Evidence Act is a general provision which governs Sec. 26 also; and Sec. 27 applies to both Sec. 25 and 26;
- (ii) but, the proviso in Sec. 23 of the Bhartiya Sakshya Act is made applicable to Sec. 23(2) alone, and not to Sec. 23(1); thereby the vigor of Sec. 23(1) prevails – without being governed by the Proviso to Section 23(2);
- (iii) and, in such a case, Section 23(2) of the Bhartiya Sakshya Act, cannot work at all, inasmuch as Sec. 23(1) makes a total bar – “No confession made to a police officer shall be proved as against a person accused of any offence”.
End Notes
Sec. 27 Indian Evidence Act (Proviso to Sec. 23 Bhartiya Sakshya Act) Analysed
Who has to “depose” – It is by the police officer, and before the court.
What is to be Deposed – It is the fact he discovered as disclosed by the accused.
“As Discovered” (in consequence of information from accused)
- It is the fact deposed to (as disclosed by the accused) by the police officer before the court. It should have been ‘discovered’ from the “Place of Concealment”.
‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused
The classic Privy Council verdict, Pulukuri Kotayya v. King Emperor, AIR 1947 PC 67, consistently followed by the courts in India, made it clear, as regards the concealment of a knife, as under-
- “In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. 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; knives were discovered many years ago. It leads to the discovery of the 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 commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘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.”
‘Fact Discovered’ is the “Place to the Knowledge of the Accused”
From Pulukuri Kotayya v. King Emperor it is clear –
- Even if the knife was discovered many years ago,
- if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
- it is relelvent and admissible under Sec. 27 Evd. Act.
