CONSTITUTIONAL VALIDITY OF SECTION 27 OF

INDIAN EVIDENCE ACT 1872

(2017-18)

SUBMITTED TO: PROFESSOR DOCTOR PKV SITA RAMA RAO

SUBMITTED BY: MISS NIDHI GUPTA

ACADEMIC SESSION:2016-21

ROLL NUMBER: 1632

CHANAKYA NATIONAL LAW UNIVERSITY

First and above all, I thank God, the almighty for providing me this opportunity and granting me
the capability to proceed successfully. This project appears in its current form due to the
assistance and guidance of several people.

Immeasurable appreciation and deepest gratitude is extended to Prof. PKV Sita Rama Rao, the
professor of Law of Evidence for his valuable suggestions towards this project work.

I am highly indebted to my parents for their constant support, guidance and supervision.

I would like to thank my friends who provided me expertise that greatly assisted the research,
and food, while I was making the project.

Appreciation is also extended to search engines such as Manupatra that have made legal research
so simple.
 TABLE OF CONTENTS

Contents
ACKNOWLEDGEMENT .............................................................................................................. 2
TABLE OF CONTENTS ................................................................................................................ 3
RESEARCH METHODOLOGY AND HYPOTHESIS ................................................................ 4
INTRODUCTION .......................................................................................................................... 6
ANALYSIS OF SECTION 27 ........................................................................................................ 8
CONSTITUTIONALITY OF SECTION 27 ................................................................................ 12
KEY JUDGMENTS ON SECTION 27 ........................................................................................ 15
CONCLUSION ............................................................................................................................. 17
BIBLIOGRAPHY ......................................................................................................................... 18
 RESEARCH METHODOLOGY AND HYPOTHESIS
This project is based upon doctrinal method of research. This project has been done after a
thorough research based upon intrinsic and extrinsic aspects of the project.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Articles.
2. Books
3. Journals
4. Websites

Method of Writing:

The method of writing followed in the course of this research project is primarily analytical.

Mode of Citation:

The researcher has followed a uniform mode of citation throughout the course of this project.

Hypothesis

The procedure for reference is relevant, in light of Article 228 of the constitution.

Objective

Study the relevance of the provision and examine how is it different from Article 228 of
constitution.
 INTRODUCTION
Police interrogation constitutes a very important part of the existing criminal justice system.
Although The Indian Evidence Act 1872 and Criminal Procedure Code 1973 do not cast much
weight on any statement coming out of an accused person while interrogated by the police and it
is not considered as an admissible part of evidence as per Section 25 1 of the Indian Evidence
Act, 1872.

CONFESSIONAL STATEMENTS

The term confession is nowhere defined in the Evidence Act. All the provisions relating to
confessions occur under the heading of ‘admission’. Therefore, the definition of admission as
given in Section 172 becomes applicable to confession also. However confession has been
defined in various judgments such as, In Pakala Narayan Swami v Emperor3 Lord Atkin
observed

“A confession must either admit in terms the offence or at any rate substantially all the facts
which constitute the offence. An admission of a gravely incriminating fact, even a conclusively
incriminating fact is not in itself a confession”. Section 24-28 are the key provisions relating to
confession.

Section 27 of Evidence Act reads as

“How much of information received from accused may be proved: 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 information (whether it amounts to confession or not) as
relates distinctly to the fact thereby discovered, may be proved.”

Section 27 is founded on the principle that if the confession of the accused is supported by a
discovery of a fact, it may be presumed to be true and not to have been extorted. 4 The section is
quite apparently laid out as a proviso or an exception to the section 25 which deals with

1
Section 25 reads as: “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.”
2
Section 17 defines admission as “a statement oral or documentary which suggests any inference to any fact in issue
or relevant fact.”
3
Pakala Narayan Swami v. Emperor, 1939 (41) BOMLR 428.
4
Mohammed Ajmal Mohammad Amir Kasab @ Abu Mujahid Vs. State of Maharashtra, MANU/SC/0681/2012
confessions in police custody and other involuntary confessions. Thus it seems that the intention
of the legislature is that all objections to the validity of that part of the statement are washed off
which leads to the discovery of an article connected with the crime. Whether such a statement
proceeds out of inducements, threats or torture are absolutely immaterial. The Evidence Act
provides some safeguards as to the time when a person is interrogated by police. While
interrogating a suspect the questioning must not be coercive or too intimidating. The police
should not extract admission or confession by third degree method. [Section 25 of the Evidence
Act5.] Statement made to police officer by the accused is not admissible in evidence except that
part of the statement which leads to discovery of incriminating material 6. The caution as to the
admissibility of confession made to a police officer is intended to protect the accused person
against third degree method by the police. The evidencing law is very clear in that a confession
made to a police officer is not admissible, but it can be used in evidence of the thing recovered as
a result of the confession made to a police officer by the accused. Thus if a weapon used in a
number of cases is recovered by the police as a result of confession made by an accused person,
the recovery is a relevant piece of evidence. Thus it would not be wrong to say that the
provisions of the Evidence Act clearly malign the police and do not keep trust on them. If we
read together the provisions of the Constitution and the Evidence Act, the message is very clear.
There is no mandate under the scheme of the Constitution7 and Evidence Act that a person can
be threatened, tortured or any way manipulated for the purpose of extracting any kind of
statement which has incriminating impact on the arrested or accused person.

This project analyzes constitutionality.

5
Section 27
6
Ibid.
7
As being violative of the provisions of the Part III rights under Article 20(3), Article 21 and Article 14 of the
Constitution of India.
 ANALYSIS OF SECTION 27
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 information (whether it
amounts to confession or not) as relates distinctly to the fact thereby discovered, may be proved.

Section 27 is founded on the principle that if the confession of the accused is supported by a
discovery of a fact, it may be presumed to be true and not to have been extorted. In the famous
case of Pulukari Kottaya v Emperor8 the scope of Section 27 was explained by their lordships:

“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
be proved. The condition necessary to bring the section into operation is that the discovery of a
fact in consequence of information received from a person accused of any offence in the custody
of a 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 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; but clearly the extent of the information admissible must depend on the exact
nature of the fact discovered to which such information is required to relate. 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”

PRINCIPLE OF CONSTRUCTION AND SECTION 27

In Pulukuri judgment itself, the Privy council had held that, 9Information given by a person that
the body produced is that of a person murdered by him, that the weapon produced is the one used
by him in the commission of a murder, or that the ornaments produced were stolen in a dacoity
would all be admissible. If this be the effect of Section 27, little substance would remain in the
ban imposed by the two preceding sections on confessions made to the police, or by persons in
police custody. That ban was presumably inspired by the fear of the legislature that a person

8
Pulukari Kottaya v Emperor AIR 1947 PC 67, ¶9.
9
Ibid.
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, it seems reasonable to suppose that the persuasive powers of the
police will prove equal to the occasion, and that in practice 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" 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. But if to the statement the words
be 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.

Various requirements of Section 27 of Evidence Act, 1872 have been summed up as follows10 :

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be
borne in mind that the provision has nothing to do with question of relevancy. The relevancy of
the fact discovered must be established according to the prescriptions relating to relevancy of
other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the
accused and not by accused's own act.

(4)The persons giving the information must be accused of any offence.

10
Amitsingh Bhikamsing Thakur vs. State of Maharashtra: MANU/SC/7004/2007
(5) He must be in the custody of a police officer.

(6) The discovery of a fact in consequence of information received from an accused in custody
must be deposed to.

(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact
discovered can be proved. The rest is inadmissible.

The expression "fact discovered" in Section 27 includes not only physical object produced but
also place from where produced--And knowledge of accused as to this.

It was held in case State of Himachal Pradesh V Jeet Singh, 1991 AD (Cr.) SC 62811 as under :--

There is nothing in Section 27 of the Evidence Act which renders the statement of the accused
inadmissible if recovery of the articles was made from any place which is "open or accessible to
others". It is a fallacious notion that when recovery of any incriminating article was made from a
place which is open or accessible to others it would vitiate the evidence under Section 27 of the
Evidence Act. Any object can be concealed in places which are open or accessible to others. For
example, if the article is buried on the main roadside or if 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 court in the case of Nathuni Yadav vs State Of Bihar,12 had
given certain recommendations regarding section 27-

The accused should sign a document stating whether any fact discovered is not due to extortion
or threat. The accused can be induced only if it is a valid and legal inducement.

After all these steps, the accused gives a statement which leads to the discovery of a relevant
fact, then the whole statement should be made relevant rather than only the statement which lead
to the discovery of the fact. The accused should, after making the statement and the police
discovering the relevant fact stated in the statement, again sign a document purporting that he has
made the signature and seen what has been discovered from his statement. A District
Judge/Metropolitan Judge should be present as in when the accused signs the statement.

11
State of Himachal Pradesh V Jeet Singh, 1991 AD (Cr.) SC 628
12
Nathuni Yadav vs State Of Bihar, [1998 (9) on 30 September, 2009, sessions case no. 87 of 2007
It should be made mandatory that all these provisions are read out to the accused as soon as he is
arrested. This would help knowing the accused of his rights and he wouldn’t be unaware and act
accordingly. Section 27 is built in as an exception to section 25 which puts a blanket prohibition
on admitting evidence given to police in custody. The following chapter seeks to analyze the
constitutionality of the section.

The judgement Mohammed Inayuttillah v. The State of Maharashtra gives the following
understanding to the section-13

The expression "provided that" together with the phrase "whether it amounts to a confession or
not" show that the section is in the nature of an exception to the preceding provisions particularly
Section 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any
extent, Section 24, also. It will be seen that the first condition necessary for bringing this Section
into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information
received from a person accused of an offence. The second is that the discovery of such fact must
be deposed to. The third is that at the time of the receipt of the information the accused must be
in police custody. The last but the most important condition is that only "so much of the
information" as relates distinctly to the fact thereby discovered is admissible. The rest of the
information has to be excluded. The word "distinctly" means "directly", "indubitably", "strictly",
"unmistakably". The word has been advisedly used to limit and define the scope of the provable
information. The phrase "distinctly" relates "to the fact thereby discovered" and is the linchpin of
the provision. This phrase refers to that part of the information supplied by the accused which is
the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban
against confessions and statements made to the police, is that if a fact is actually discovered in
consequence of information given by the accused, it affords some guarantee of truth of that part,
and that part only, of the information which was the clear, immediate and proximate cause of the
discovery.

13
Mohammed Inayuttillah v. The State of Maharashtra MANU/SC/0166/1975 in Amitsingh Bhikamsing Thakur vs.
State of Maharashtra (05.01.2007 - SC) : MANU/SC/7004/2007
 CONSTITUTIONALITY OF SECTION 27

This section will analyze the constitutionality of the section by examining whether it infringes
Article 14 and Article 20 (3) of our constitution.

The Rights Enshrined Under Article 14 Are Violated.

The State is bound to protect every human being from inequality. (National Human Rights
Commission v. State of Arunachal Pradesh,)14 Article 14 protects from legislative as well as
executive discrimination.15 It requires reasonableness in State action,16 as equality is antithetical
to arbitrariness.17 The term ‘arbitrarily’ encompasses within itself action or inaction at pleasure,
non-rational behaviour and conducts devoid of reason and judgment and rooted in will alone.18

The question whether section 27 of the Evidence Act was unconstitutional because it offended
Article 14 of the Constitution was considered by this court in the case of State of U. P. v.
Deomen Upadhya19. It was held by this Court that section 27 of the Evidence Act did not offend
Article 14 of the Constitution and was, therefore, intra vires. The analysis provided for the same
was-

Procedure did not offend Art. 14 of the Constitution and were not void. Article 14 does not
provide that all laws must be uniform and universally applicable; it merely forbids improper
or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily
selected from out of a larger group who ,are similarly circumstanced, and between whom and
others not so favoured, no distinction reasonably justifying different treatment exists.

Between persons in custody and persons not in custody the legislature has made a real
distinction by enacting distinct rules regarding admissibility of statements confessional or
otherwise made by them. In considering the constitutionality of a statute on the ground whether it

14
National Human Rights Commission v. State of Arunachal Pradesh, A.I.R. 1996 SC 1234.
15
Amita v. Union of India, (2005) 13 S.C.C. 721.
16
Basheshar Nath v.The Commissioner of Income Tax, Delhi & Rajasthan, A.I.R. 1959 SC 149.
17
Saujat Ali v. Union of India, A.I.R. 1974 SC 1631.
18
Sharma Transport v. Govt. of A.P, A.I.R. 2002 SC 322.
19
State of U. P. v. Deomen Upadhyaya MANU/SC/0060/1960 : 1960CriLJ1504
has given equal treatment to all persons similarly circumstanced it has to be remembered that
the legislature has to deal with practical problems; the question is not to be judged by merely
enumerating other theoretically possible situations to which the statute might have been but has
not applied. A doctrinaire approach is to be avoided. Persons not in custody making statements
to the police leading to discovery of facts were a possible but rare class. A person who
approaches a police officer investigating an offence and offers to give information leading
to the discovery of an incriminating fact must be deemed to have surrendered himself to the
police and to be in custody within the meaning of S. 27 of the Indian Evidence Act.

A law which makes provision for cases where the need is most felt cannot be struck down
because there are other instances to which it might have been applied. The object of the
legislation being both to punish offenders proved to be guilty and to protect persons who
may be compelled to make confessional statements, the provisions of S. 27 are reasonable as
they make information admissible on the ground that the discovery of a fact pursuant to the
statement made by a person in custody is a guarantee of the truth of that statement.

THE PROCEDURE PRESCRIBED UNDER SECTION 27 DOES NOT VIOLATE ARTICLE

The Supreme Court in State of Bombay v. Kathi Kalu Oghad20

In order to bring the evidence within the inhibitions of clause (3) of Article 20 it must be shown
not only that the person making the statement was an accused at the time he made it and that it
had a material bearing on the criminality of the maker of the statement, but also that he was
compelled to make that statement. 'Compulsion' in the context, must mean what in law is called
'duress'. In the Dictionary of English Law by Earl Jowitt, 'duress' is explained as 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 threat of being killed, suffering some grievous
bodily harm, or being unlawfully imprisoned (sometimes called menace, or duress per minas).
Duress also includes threatening, beating or imprisonment of the wife, parent or child of a
person. " 17. The compulsion in this sense is a physical objective act and not the state of mind of
the person making the statement, except where the mind has been so conditioned by some

20
State of Bombay v. Kathi Kalu Oghad, MANU/SC/0134/1961, ¶ 14.
extraneous process as to render the making of the statement involuntary and, therefore, extorted.
Hence, the mere asking by a police officer investigating a crime against a certain individual to do
a certain thing is not compulsion within the meaning of Article 20(3).

What is compulsion within the meaning of Article 20 (3)?

A question was raised in the course of the discussion as to when a person can be said to have
been "compelled" within the meaning of Article 20(3). One view is that there must be an element
of constraint or coercion in the physical sense before it can be said that an accused person has
been "compelled". The other view is that in addition to cases where there has been such
constraint or coercion an accused should be said to have been "compelled" to be a witness
whenever there has been inducement or promise which persuaded the accused to be a witness,
even though there has been no such coercion or constraint.21

21
Ibid, ¶41.
 KEY JUDGMENTS ON SECTION 27

Pulukari Kottaya v Emperor22 the scope of Section 27 was explained by their lordships:

“Section 27 provides one exception to the prohibition imposed by Section 26 and enables certain
statements made by a person in police custody to be proved. The condition necessary to bring
Section 27 in operation is that the discovery of fact in consequence of information received from
accused must be deposed to, and thereupon so much of the information as related distinctly to the
fact thereby discovered may be proved. The section seems to be 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 e.g. a dead body, a weapon or ornaments, said to be
connected with the crime of which the informant is accused.”

Section 27 and Narco Analysis, Polygraph and BEAP Tests

In Selvi v. State of Kainataka23, it was held that no individual should be forcibly subjected to any
of the techniques (namely, narcoanalysis, polygraph examination and the Brain Electrical
Activation Profile (BEAP) test) in question, whether in the context of investigation in criminal
cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty.
The Court left room for the voluntary administration of the impugned techniques in the context
of criminal justice provided that certain safeguards are in place. Even when the subject has given
consent to undergo any of these tests, the test results by themselves cannot be admitted as
evidence because the subject does not exercise conscious control over the responses during the
administration of the test. However, any information or material that is subsequently discovered
with the help of voluntary administered test results can be admitted in accordance with section
27 of the Evidence Act, 1872 but the same should be supported with the guidelines given by the
National Human Rights Commission (Guidelines for the Administration of Polygraph Test (Lie
Detector Test) on an Accused in 2000).

22
AIR 1947 PC 67: 74 IA 65: 48 Cr Lj 533
23
(2010) 7 SCC 263: AIR 2010 SC 1974: 2010 AIR SCW 3011
Section 27 and Article 20 (3) (Self-incrimination)

In State of Bombay v. Kathi Kalu Oghad24, it was urged that section 27 was ultra rires against the
protection guaranteed under Article 20(3) against testimonial compulsion. The Supreme Court of
India in Kathi Kalu Oghad's case held that compulsionnot being inherent or implicit the fact of
the information having been received from a person in custody, the contention that section 27 of
the Evidence Act necessarily infringes Article 20(3) of the Constitution cannot be accepted.
Sinha, C.J., observed that whether compulsion was used or not “will be question of fact in each
to be determined by the Court on weighing the facts and circumstances disclosed in the evidence
before it.”

24
(1963) 1 SCJ 195: AIR 1961 SC 1808: (1961) 2 Cr Lj 856
 CONCLUSION
After a clear perusal of the topic and going through various judgments, the researcher concludes
that section 27 is constitutional. While the legislature while drafting the evidence act had placed
great mistrust and were apprehensive about the police brutality, yet in the interest of justice
installed safeguards in the form of section 27 so that if any confession is legitimate, it doesn’t get
declared inadmissible merely because of the principle of it. While section 27 is constitutional, yet
the scope of misuse in this section is very wide. In fact the scope can also defeat the very purpose
of instating section 25. The police can just as easily force the accused by third degree methods to
disclose some aspect of information vital to the case.

Therefore the section should have an element of discretion and the judges should use it with
caution such that the purpose of law and justice is not defeated.
 BIBLIOGRAPHY
Books

 Kelkar, R.V., Criminal Procedure Code, 5th edition Eastern Book Company, Lucknow, ,
(2008)
 Batuk Lal Evidence Law.
 Ratanlal & Dhirajlal, Code of Criminal Procedure, 17th edition, Lexis Nexis
Butterworths Wadhwa, Nagpur (2004)

Websites

 www.manupatrafast.com
 www.scconline.com
 www.legalservice.com
 www.legalcrystal.com

REVIEW OF LITERATURE

Most of the footnotes are judgments of Supreme court which according to Article 141 of our
constitution are precedents and therefore are authorities while tracing the evolution of law.
The websites were used for understanding the background before delving into the
technicalities and are not used to state position of law. The authors are well acclaimed jurists
of criminal law.