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

Q.56 Supposing, in the above question “police custody” of the accused is wrongly obtained from the Court and while so, a recovery falling under Section 27 of the Evidence Act is effected. Is the recovery evidence admissible? Ans. Yes. Such a confession is not liable to be excluded merely on the ground that it was obtained under an illegal order of remand. (Vide State v. N.M.T Joy Immaculate – (2004) 5 SCC 729 = AIR 2004 SC 2282 - S. Rajendra Babu, C. J.I, Dr. AR. Lakshmanan; G. P. Mathur – JJ). This is similar to the admissibility of the evidence procured illegally or obtained in a sting operation. In M.N.Sreedharan v. State of Kerala 1980 KLT 829 = 1981 Cri.LJ 119 (U.L.Bhat-J) it was held that if the accused while on bail told the Court in clear and unambiguous manner that they had no knowledge or information regarding the existence or the whereabouts of the material objects sought to be recovered from them, then it would be unlikely that they would tell the police about the whereabouts of those articles unless the police adopt means of interrogation not approved by law. Remanding the accused to police custody in such a case would be improper. In Divides v. State of Kerala 1979 KLT 642 = ILR 1979 (2) Kerala 497 (Khalid –J) it was held that the Court has no right to direct an accused person who is on bail be committed to police custody for the purpose of securing information under Section 27 of the Evidence Act. In Fr. Benedict v. State of Kerala 1967 KLT 466 = ILR 1967 (2) Kerala 21 (P.T. Raman Nair & V.P. Gopalan Nambiar-JJ) it was held that if the accused had maintained his innocence before the Magistrate and contends that the subsequent confession was made under police torture, then the confession and recovery of the articles would naturally be hit by testimonial compulsion offending Article 20 (3) of the Constitution of India. In Kochuvarkey v. The Circle Inspector of Police 1985 KLT 1156 = ILR 1985 (2) Kerala 574 (M.M.Pareeth Pillai-J) it was held that the right of the police to question the accused during investigation and discover relevant facts cannot be pre-empted or defeated by a declaration by the accused before the Magistrate that he has nothing to confess to the police. Notwithstanding his protest the Magistrate can remand him to police custody for the purpose of recovery of the weapon. NOTES BY THE AUTHOR: As a Sessions Judge I used to find the above verdict in Kochuvarkey rendered by Justice M. M. Pareeth Pillai (as he then was before becoming Chief Justice) to be more useful and practicable. Q.57 It is argued by the defense that Section 27 of the Indian Evidence Act is violative of Article 14 of the Constitution of India since “persons in custody” and “persons not in custody” are treated differently. Is it not a sound argument? Ans. No. In the normal course, it is unlikely that a person not in custody will go to the police and make a confession of the offence. “Custody” has already been understood to include surveillance. The question of a person in custody and a person not in custody being differently treated is only a theoretical or artificial possibility. If a person not in custody were to go to the police and make a clean breast of himself, there is no reason to suspect his bona fides. This aspect of the matter was considered by the Constitution Bench of the Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya - AIR 1960 SC 1125 - S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah – JJ, where the majority speaking through J.C. Shah –J held in para 12 that - “When a person not in custody approaches a police officer and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken into custody. Submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the “custody” of the police officer within the meaning of Section 27 of the Indian Evidence Act”. Q.58 Whether “recovery evidence” by itself is substantive evidence? Ans. The answer to this question can be in the “negative” in the majority of cases and “positive” in certain limited category of cases. The celebrated Pulukuri Kottaya v. Emporer AIR 1947 PC 67 (Lord Wright, Lord Simonds, Lord Uthwatt and Sir John Beaumont), itself contains the answer to this question. Supposing the accused is having in his possession or is concealing in his room an “unlicensed firearm” or some “narcotic substance”, that by itself is an offence under the ...

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

Justice V Ramkumar

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