“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-I]

I N T R O D U C T I O N Any discussion on Section 27 of the Indian Evidence Act, 1872 will be incomplete without reference to Sections 25 and 26 of the Evidence Act. Section 25 prohibits proof of “confession” made directly to a “police officer” by an accused person. Section 26 interdicts proof of a “confession” made by an accused person while he is in the custody of a “police officer”. Section 27 is an unusual Section which is couched in the form of a “proviso”. This section has always been understood as a “proviso” to the preceding Sections 25 and 26. (Vide para 433 of Mukesh v. State (NCT of Delhi) (2017) 6 SCC 1 – 3 Judges – Dipak Misra, R. Banumathi, Ashok Bhushan - JJ.) But, in para 10 of Pulukuri Kotayya v. Emperor AIR 1947 PC 67 – Sir John Beaumont, it has been observed that Section 27 is a proviso to the preceding section, intending thereby Section 26 only. Section 27 reads as follows:- “ 27: 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.” 2. The words of this Section were bodily taken from R. v. Lockhart (1785) 1 Leach 386 = 168 ER 295. (Vide para 65 of the Judgment of M. Hidayatullah – J in State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ.) Section starting as a “proviso” 3. It is only very rarely that a Section itself starts as a “proviso”. Section 108 of the Evidence Act is another Section which starts as a “proviso” to the previous Section 107. Yet another Section which starts as a “proviso” is Section 2 of the Fatal Accidents Act, 1855. 4. Section 27 is considered to be a proviso to Section 26. In para 10 of the celebrated decision of the Privy Council in Pulukuri Kottaya v. Emperor AIR 1947 PC 67 – Lord Wright , Lord Simonds, Lord Uthwatt, Sir John Beaumont – JJ, it is observed as follows:- “Section 27 provides an exception to the prohibition imposed by the preceding section”……………. “the proviso to section 26 added by section 27 should not be held to nullify the substance of the section.”. Section 27 is an exception to the preceding provisions particularly Sections 25 and 26. (Vide para 14 of Anter Singh v. State of Rajasthan (2004) 10 SCC 657 = AIR 2004 SC 2865 - Doraiswamy Raju, Arijit Pasayat - J; Para 7 of Delhi Admn. V. Bal Krishan AIR 1972 SC 3 = (1972) 4 SCC 659 – A. N. Ray, D. G. Palekar – JJ; Para 17 of Mohd. Inayatullah v. State of Maharashtra (1976) 1 SCC 828 – P. N. Bagwati, R. S. Sarkaria – JJ; Para 17 of Sanjay v. State (NCT of Delhi) AIR 2001 SC 979 = (2001) 3 SCC 190 – K. T. Thomas, R. P. Sethi – JJ; Para 7 of State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 – S. K. Das, J. L. Kapur, K. Subba Rao, Hidayatullah, J. C. Shah – JJ.) (In para 65 observes that Section 27 is not merely an exception to Section 26 but is an exception to Sections 24 to 26 of the Evidence Act - This view has been reiterated in Jafarudheen v. State of Kerala AIR 2022 SC 3627 = (2022) 8 SCC 440 – Sanjay Kishan Kaul, M. M. Sundresh – JJ.) The ingredients of the Section are the following :-a) The accused is in the custody of a police officer.b) While so, he provides an information.c) A fact is deposed to as discovered in consequence of such information.d) So much of such information as relates distinctly to the fact thereby discovered, may be proved; ande) This is irrespective of whether such information amounts to a confession or not.Q.1 What is the basic idea or doctrine embedded in Section 27 of the Evidence Act ? Ans. The basic idea embedded in Sec. 27 is the “doctrine of confirmation by subsequent events”. (Vide – Bodhraj v. State of Jammu and Kashmir – AIR 2002 SC 3164 - Ruma Pal, Arijit Pasayat - JJ;State of Karnataka v. David Rozario – 2002 (7) SCC 728 - U. C. Banerjee, Arijit Pasayat – JJ; Reveendran and others v. State 1989 (2) KLJ 534 - S. Padmanabhan, P. K. Shamsuddin - JJ; H. P. Administration v. Om Prakash 1972 (1) SCC 249 :1972 SCC (Cri) 88 : AIR 1972 SC 975 - P. Jaganmohan Reddy, D. G. Palekar - JJ; State of Maharashtra v. Damu (2000) 6 SCC 269 - K. T. Thomas, D. P. Mohapatra – JJ;Pawan Kumar v. State of U.P. (2015) 7 SCC 148 = AIR 2015 SC 2050 - S. J. Mukhopadhaya, N. V. Ramana - JJ; Raja v. State of Haryana (2015) 11 SCC 43 - Dipak Misra, N. V. Ramana - JJ.)Q.2 The words “fact discovered” in Section 27 of the Evidence Act embrace what all aspects ?. Ans. The word “fact discovered” embraces – the “place” from where the object is produced and ...

“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-I]

Justice V Ramkumar

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“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-I]

Justice V Ramkumar

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