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In 'Swadeshi Jurisprudence and the Colonial Afterlife of Order XXI', published in LiveLaw, it is observed that we have been handed a bamboo pole and told to dance upon it, and that we labour only at the dancing, falling and rising and adjusting our steps, each generation of practitioners trying to perform a little better than the last, but never asking whether the pole was ever a fit place to dance. Many prevalent laws and procedures exhibit the same discipline, out of which two loci classici are examined here.

The judgment in Pulukuri Kottayya v. King-Emperor (1946) is a celebrated authority on the interpretation of Section 27 of the Indian Evidence Act (IEA), which reads as an exception to Sections 25 and 26 of the IEA. These two provisions have now been combined under Section 23 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), with Section 27 of the IEA retained as the proviso to Section 23(2) of the BSA, rather than as a standalone section. Section 25 declares that no confession made to a police officer shall be proved against a person accused of any offence; Section 27 carves a narrow opening in that bar, providing, "How much of information received from accused may be proved. 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 thereby discovered, may be proved." The judgment, while interpreting the provisions, clarified that the "fact discovered" within the meaning of Section 27 is not the physical object recovered but a composite of three elements taken together: the object produced, the place from which it is produced, and the knowledge of the accused as to that place; and that only so much of the accused's statement as relates distinctly to the discovery so understood may be proved, while the remainder of the statement, whether or not it amounts to a confession, stays excluded. The judgment is an astounding interpretation of a complicated provision of law by the Privy Council, no second doubt about it. The Supreme Court has not only accepted it but adopted it by reaffirming its ratio in a long and unbroken line of decisions, including State of U.P. v. Deoman Upadhyaya (1960 INSC 107), K. Chinnaswamy Reddy v. State of A.P. (1962 INSC 216), Jaffar Hussain Dastagir v. State of Maharashtra (1969 INSC 235), State of Maharashtra v. Damu (2000 INSC 273), Pandurang Kalu Patil v. State of Maharashtra (2002 INSC 32), Jafarudheen v. State of Kerala (2022 INSC 464) and allowed it to govern the field.

To translate the rule in Pulukuri Kottaya into admissible evidence, the investigating agency ordinarily records the accused's disclosure statement, often in the presence of independent witnesses, proceeds to the indicated place with the accused, effects the discovery, and prepares a seizure list recording the circumstances. At trial, the prosecution must reconstruct each of these steps through oral testimony and documentary evidence. Witnesses are expected to speak not merely to the recovery of the object but to the sequence by which the accused disclosed its location and the discovery followed in consequence of that disclosure. The court must then isolate the precise portion of the statement that relates distinctly to the fact discovered and exclude the remainder. Every stage is vulnerable to challenge: whether the accused was in custody, whether the disclosure preceded the discovery, whether the police already knew of the place, whether the witnesses are reliable, whether the memorandum accurately records what was said, and whether the proved portion of the statement falls within the narrow confines of Section 27. The entire exercise is an interplay of words resting ultimately on human memory, documentary precision, and judicial interpretation. Because each of these elements is contestable, the finding remains inherently fragile. A trial court may consider the statutory requirements satisfied, only for an appellate or revisional court, reading the same words through a different interpretive lens, to conclude that the discovery has not been proved. The vulnerability never fully disappears; it merely shifts from one forum to the next.

But if the police dispense with all of this and simply state that the articles were seized from the accused, that vulnerability disappears almost entirely. The elaborate interpretive exercise, the marking of statements, the segregation of the confessional from the discovered, the burden of proving both the disclosure and its consequence, all of it vanishes. Nothing remains to be interpreted because nothing is placed before the court that calls for interpretation. Yet the prosecution may still invite the court to draw substantially the same inference from the seizure itself. If the evidentiary consequence is capable of being reached without traversing the doctrinal pathway so painstakingly constructed in Pulukuri Kottaya, the doctrine begins to appear less as a mandatory discipline governing investigation than as an optional route that can be bypassed without materially diminishing the prosecution's case. The question, then, is unavoidable: why does a framework this celebrated, this carefully reasoned, and this repeatedly reaffirmed by the Supreme Court remain one that the investigating agency can simply choose not to invoke?

The judgment in Tahsildar Singh v. State of U.P. (1959) is a comparably celebrated authority on the interpretation of Section 145 of the Indian Evidence Act (Section 148 of BSA), read together with Section 162 of the Code of Criminal Procedure (Section 181 of BNSS). Section 162 places a general bar on the use of statements made to a police officer during investigation, but carves out an exception permitting such a statement to be used to contradict the witness who made it, in the manner provided by Section 145. Section 145 itself provides, "Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." The Supreme Court in Tahsildar Singh has been treated as the settled word on this provision ever since, its ratio invoked and applied in decision after decision on the law of contradictions. Few provisions look this simple on the page while hiding this much difficulty in practice and few judgements tamed that difficulty as well as this one. It clarified that the statement recorded by the police under Section 161 (Section 180 of BNSS) can be put to a witness for one purpose only, to contradict what he says in the witness box, and for no other; that the contradiction contemplated is confined to what the witness actually stated to the police and actually stated in court, and not to any inference drawn from what he is said to have omitted to state; that a bare omission, standing alone, is ordinarily not a contradiction at all, since a statement cannot be said to include what was never said; and that only where an omission is significant enough to be treated as part of what was in fact recorded, so as to run counter to the testimony given at trial, does it acquire the character of a contradiction admissible under the section. The procedure this ratio sets in motion does not end with the cross-examination itself: the portion said to constitute the contradiction should be specifically marked, and if the witness does not accept having made that statement, the investigating officer must then be called to prove that it was recorded in those very terms before the contradiction can be treated as established.

To exemplify how this procedure actually plays out at trial: a witness is confronted with his statement recorded under Section 161 CrPC and asked, "You have not stated before the police that the accused persons used axe to assault the victim." The witness answers that he had in fact told the police so. His answer is then recorded by the Court in the double-negative format the procedure demands: "It is not a fact that I had not stated before the police that the accused persons had used axe to assault the victim." The same portion is put again to the investigating officer during his own examination before the court. The IO, bound by what his own case diary contains, says that the witness had not so stated, since he can say nothing else; the Section 161 statement he himself recorded carries no such assertion. That answer too is recorded, this time in the affirmative: "It is a fact that the witness had not stated before the police that the accused persons had used axe to assault the victim." With this, the procedure completes. What remains is left entirely to the court's subjective satisfaction: whether what has just been elicited amounts to a contradiction at all, whether, if it does, it is material or immaterial, and what effect, if any, it should have on the evidentiary value of the witness.

Four difficulties follow directly from this procedure. First, not every advocate is equally capable of identifying every contradiction buried in a statement recorded under Section 161 CrPC; where the contradiction is missed, it simply does not enter the trial. The standard of appreciation of evidence, as a result, is not uniform across accused persons, but depends on the competence of whoever happened to cross-examine on their behalf. Second, the confrontation to the IO is, in a great many cases, a formality without content: the IO can only depose to what his own case diary contains, and since the case diary (statement recorded under Section 161 CrPC) by definition does not contain the omitted fact, he will invariably confirm the omission. If the answer is foreordained by the document already on record, the necessity of the further step of confronting the IO becomes difficult to justify. Third, where the prosecution has a particular interest in a witness, that witness is not left to the risk of contradiction at all; he can simply be made to remember his Section 161 statement line by line before he enters the box. When his testimony then matches that statement without deviation, the absence of contradiction is read by the court as a mark of credibility, when it may equally be the mark of a truth that was rehearsed rather than recalled. Fourth, and most significant, the ultimate characterisation, contradiction or no contradiction, material or immaterial, remains a matter of subjective interpretation, even though contradictions are frequently the very basis on which acquittal or conviction turns. Courts at different levels of the hierarchy, reading the same recorded exchange, interpret it differently, often in a manner that appears to justify the outcome already arrived at rather than to have produced it.

If, instead, the police simply do not record a statement under Section 161 CrPC, the entire apparatus, and every uncertainty that attends it, disappears. Without a previous statement, there is nothing with which the witness may be contradicted under Section 145 read with Section 162. The Code nowhere requires that every witness be examined during investigation or that such examination be reduced into writing. Equally, it lays down no rule that the testimony of a witness whose statement was never recorded must, for that reason alone, be viewed with greater suspicion, nor does it make prior examination by the police a condition precedent to the witness giving evidence before the court.

Complexity of this kind is a form of theoretical study, satisfying to construct and rewarding to teach, but simplicity in procedure is a practical need of the hour, measured not in the elegance of a ratio but in the pendency figures and the length of litigation the elegance leaves behind. What the moment calls for is not another refinement of the old doctrine, not the same law poured into a newer jar and relabelled as reform, but the willingness to question what has so far gone unquestioned. The questioning matters first, because nothing else can follow without it. The concerns raised through these illustrations may in the end be answered, the procedures may survive scrutiny largely as they are, or they may not; that is not for this piece to settle in advance. But only the asking allows that process to begin, and it is in the asking itself that complexity finds room to be refined, unnecessary hurdles, once identified, to be removed, and the path paved for an indigenous jurisprudence, one that owes its shape to present necessity rather than to the well-worn grooves of the old.

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