There is yet another angle of looking at the issue. The(28 of 32)
sanctity attached to confidentiality of investigation is imperative
and the same cannot be allowed to be brought into public domain
because the very purpose of investigation would then be
compromised. The conversation which takes place between the
Investigating Officer and the accused is privileged and classified
and cannot be allowed to become common place. In a recent
decision in the case of Senior Intelligence Officer Vs. Jugal
Kishore Samra reported in (2011)12 SCC 362;
(MANU/SC/0731/2011), the Hon'ble Supreme Court
considered the controversy as to whether the person, who is
arrested, has a right to insist for presence of an Advocate at the
stage of Police interrogation. The purpose behind seeking
presence of an Advocate during investigation or requiring
presence of witnesses during proceedings under Section 27 of the
Evidence Act is virtually the same. Both are insisted upon so as to
ensure that the Investigating Officer does not misuse his position;
by using third degree methods, force, threat, coercion or duress
upon the accused during interrogation. After examining the entire
controversy, the Hon'ble Supreme Court in the above referred
case went on to hold that the judgment rendered by the Hon'ble
Supreme Court in the case of Nandini Satpathy Vs. P.L.Dani
reported in (1978)2 SCC 424; (MANU/SC/0139/1978) ran
contrary to the ratio of two earlier Constitution Bench decisions in
the cases of Illias Vs. Collector of Customs, Madras reported
in 1969 (2) SCR 613; (MANU/SC/0297/1968) and Romesh
Chandra Mehta Vs. State of West Bengal reported in
1969(2) SCR 461; (MANU/SC/0282/1968). The relevant(29 of 32)
quotes made by the Hon'ble Supreme Court in the above
judgment are extracted below:-
“In Poolpandi and Ors. v. Superintendent, Central Excise
and Ors.: (1992) 3 SCC 259, the question before a three
judge bench of this Court was directly whether a person
called for interrogation is entitled to the presence of his
lawyer when he is questioned during the investigation under
the provisions of the Customs Act, 1962 and the Foreign
Exchange Regulation Act, 1973. On behalf of the persons
summoned for interrogation, strong reliance was placed on
Nandini Satpathy. The Court rejected the submission tersely
observing in paragraph of 4 of the judgment as follows:
“4. Both Mr. Salve and Mr. Lalit strongly relied on
the observations in Nandini Satpathy v. P.L.
Dani: (1978) 2 SCC 424. We are afraid, in view
of two judgments of the Constitution Bench of
this Court in Ramesh Chandra Mehta v. State of
W.B.: (1969) 2 SCR 461, and Illias v. Collector
of Customs, Madras: (1969) 2 SCR 613, the
stand of the Appellant cannot be accepted. The
learned Counsel urged that since Nandini
Satpathy case was decided later, the
observations therein must be given effect to by
this Court now. There is no force in this
argument.”
28. …….. Taking a cue, therefore, from the direction made in
DK Basu and having regard to the special facts and
circumstances of the case, we deem it appropriate to direct
that the interrogation of the Respondent may be held within
the sight of his advocate or any other person duly authorized
by him. The advocate or the person authorized by the
Respondent may watch the proceedings from a distance or
from beyond a glass partition but he will not be within the
hearing distance and it will not be open to the Respondent to
have consultations with him in course of the interrogation.”
The ratio of the above judgment was based on the Three
Judges Bench Judgment rendered by the Supreme Court in the(30 of 32)
case of Poolpandi Vs. Supdt., Central Excise reported in
(1992)3 SCC 259; (MANU/SC/0339/1992), wherein it was
held that the person called for interrogation is not entitled to
insist for presence of a lawyer during interrogation.
As observed above, there is a strong sanction for following
such a procedure because presence of a third person during
investigation would directly infringe in the privilege available to
the Investigating Officer to investigate the case without any
external interference and would adversely affect the
confidentiality attached to investigation. The steps taken by the
Investigating Officer during investigation are classified and are
recorded in the case diary which is a privileged document. The
Hon'ble Supreme Court has time and again held that no-one can
have access to the case diary except the Court or the
Investigating Officer. Reference may be had to judgments
rendered by Hon'ble Supreme Court in the cases of Sidharth Vs.
State of Bihar reported in AIR 2005 SC 4352;
(MANU/SC/0949/2005) and State of NCT of Delhi Vs. Ravi
Kant Sharma & Ors. reported in AIR 2007 SC 1135;
(MANU/SC/7098/2007). Thus, allowing presence of a witness
during confidential investigation would directly run contrary to
this proposition of law.
As an upshot of the discussion made hereinabove, we are of
the firm view that the ratio of the Judgments rendered by Division
Benches of this Court in the cases of Rameshwar and Surjeet
(supra) propounding that the information given by the accused to(31 of 32)
the Investigating Officer under Section 27 of the Evidence Act
should be recorded in presence of and attested by independent
witnesses do not lay down the correct proposition of law.
Furthermore, in view of decision of Three Judge Bench of
Supreme Court in the case of Poolpandi (supra) followed in the
case of Sr.Intelligence Officer, Directorate of Revenue
Intelligence Vs. Jugal Kishore Samra (supra), the presence of
a witness at the time of investigation is absolutely impermissible
as it would breach the confidentiality of investigation. For the
sake of repetition, it may be noted here that the earlier decisions
of a three Judges Bench of the Hon'ble Supreme Court in the case
of Poolpandi (supra) and the Two Judges Bench decisions in the
cases of Himachal Pradesh Administration Vs. Om Prakash
(supra) and State, Govt. of NCT of Delhi Vs. Sunil & Anr.
(supra) were also not noticed and considered in Harjit Singh’s
case.
In view of the discussion made hereinabove, we answer the
reference in the following terms:
“In the entire scheme of Code of Criminal
Procedure and the Evidence Act, there is no
requirement that the information given by an
accused to the Investigating Officer under
Section 27 of the Evidence Act leading to the
discovery of a relevant fact should bear
attestation by independent witnesses and the
Division Bench Judgments in the cases of(32 of 32)
Rameshwar and Surjeet (supra) do not lay
down correct proposition of law on this
aspect.”
Reportable
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Leave To Appeal No. 94 / 2017
State of Rajasthan
V
Mangal Singh
MR. JUSTICE GOPAL KRISHAN VYAS
MR. JUSTICE SANDEEP MEHTA
MR. JUSTICE PANKAJ BHANDARI
(LARGER BENCH)
Dated : 1st March 2017
While considering D.B.Criminal Leave to Appeal No.94/2017,
the Division Bench of this Court was persuaded to refer the(2 of 32)
following question for consideration by a Larger Bench:
“Whether during interrogation of the accused at
the time of recording information from him/her
with regard to effecting recovery of fact, articles
and weapon, the presence of two independent
witnesses is necessary or not?”
Under orders of Hon’ble the Chief Justice, the matter has
been placed before this three Judges Bench for deciding the
reference made to it in the above terms. Since the Bench is in
seisin of a controversy arising from the conflicting views taken by
the Division Benches of this Court on the issue as to whether or
not, it is essential to have attestation of the information given by
a person accused of an offence to an Investigating Officer under
Section 27 of the Evidence Act by independent witnesses,
background of the provision requires a brief reference.
Background of the Enactment.- It is common place that
the Evidence Act 1872 was drafted in England. Two departures
were made from the law existing in England regarding
confessions and they were (i) that no statement made to a Police
Officer including the confession of an accused could be proved at
the trial; and (ii) that no caution was to be given to a person
making a statement.
When an offence is committed and investigation
commences, the Investigating Agency or the Police has two
objectives in view. The first is collection of information/evidence,
and the second is finding out the offender. In this process, the(3 of 32)
police may question a number of persons, some of whom may be
only witnesses and some who may later turn out to be the person
or persons charged. While questioning such persons, the police
need not caution them and may leave them free to make
whatever statement they wish to make. There are two checks and
balances available at this stage. What the witnesses or the
suspects say is not to be used at trial as substantive evidence,
and a person cannot be compelled to answer a question, which
may tend to incriminate him. It is to be noticed that though the
police may, at one stage only consider the offender as a suspect
and at that point of time, there is no difference between him and
other witnesses who are questioned. Those who turn out to be
witnesses, and not accused are expected to give evidence at the
trial and their former statements are not admissible in evidence.
In so far as those ultimately charged are concerned, they cannot
be witnesses, save exceptionally, and their statements are barred
under Sec. 162 of the Code and their confessions, under Sections
24, 25 and 26 of the Evidence Act. Their confessions are only
relevant and admissible, if they are recorded as provided in
Section 164 of the Criminal Procedure Code after due caution by
the Magistrate and it is ascertained that they are voluntary. These
rules are based upon the maxim : Nemo etntur prodere seipsum
(no one should be compelled to incriminate himself).
So far as the accused is concerned, he is protected from the
mischief of a confession to a charge both after and before his
custody unless he did so in immediate presence of a Magistrate,(4 of 32)
or his confession was recorded by a Magistrate. In either event,
the confession has to be voluntary and free from taint of threat,
promise, fear, coercion etc. The law was so framed to protect a
suspect against abuse of powers and use of third degree methods
by the Investigating Agency. The English Law as it stood then was
taken as a model for accused in custody. However, Section 27 has
been framed as an exception to Sections 24, 25 and 26 of the
Evidence Act.
The Celebrated author Mr.Taylor in his Treatise on the Law of
Evidence made the following remarks:
“Where in consequence of information unduly obtained
from the prisoner, the property stolen, or the instrument of
the crime, or the body of the person murdered, or any other
material fact has been discovered, proof is admissible that
such discovery was made conformably with the information
so obtained. The prisoner’s statements as to his knowledge
of the place where the property or other articles was to be
found, being thus confirmed by the fact, is shown to be true,
and not to have been fabricated in consequence of any
inducement. It is, therefore, competent to prove that the
prisoner stated that the thing would be found by searching a
particular place, and that it was accordingly so found; but it
would not be competent to enquire whether he confessed
that he had concealed it there.”
Principle underlying the Section:-Section 27 is an exception
to the rule enacted in Sections 24, 25 and 26 of the Act which
provide that no confession made to a police officer shall be
proved as against a person accused of an offence and that no
confession made by any person whilst he is in the custody of a
police officer unless it be made in the immediate presence of a
Magistrate, shall be proved or used as against such person.(5 of 32)
Where however, any fact is discovered in consequence of
information received from a person accused of any offence in the
custody of a police officer, that part of the information as relates
distinctly to the fact thereby discovered can be proved whether it
amounts to a confession or not.
The law may be taken as well settled that if the accused
himself is the informant of cognizable offence or gave a
confession admissible to a limited extent under Section 27 of
Evidence Act or made extra-judicial confession before an
independent person, in such event, the statement made in the
F.I.R. or extra-judicial confession or confession made to Police,
can be to the extent it is favourable to accused for any purpose
either for consideration of acquittal or for modifying conviction –
admitted.
Two conditions are pre-requisite for the applicability of
Section 27: (i) the information must be such as caused discovery
of a relevant fact, (ii) the information must relate distinctly to the
fact discovered. In such a situation, so much of the information
which relates distinctly to a fact thereby discovered, whether it
amounts to a confession or not, may be proved. It is also
essential that there should be a statement followed by the
discovery. If there was first discovery followed by the statement,
then such statement would be inadmissible. It is also settled
proposition of law that the statement of the accused must be
volunteered; it should not be given by prompting, threat or in
answer to any pointed question.(6 of 32)
The Division Bench of this Court, noticed the divergence of
opinion in the views taken by different Division Benches of this
Court and the question quoted above was framed and referred to
the Larger Bench for resolution.
Notice of hearing was issued to the members of the Bar and
arguments were heard.
Sarva Shri H.S.S.Kharlia learned Sr.Counsel assisted by Shri
D.S.Gharsana, Shri H.S.Sandhu, Shri Hemant Nahta and Shri
Amit Sharma Advocates fervently supported the view taken by
Division Benches of this Court in the cases of Rameshwar and
Surjeet (supra). They urged that the provisions contained in
Section 27 of the Evidence Act are by way of an exception to the
fundamental right against self-incrimination available to every
accused under Article 20(3) of the Constitution of India and as
such, strict proof is required before the statement of an accused
recorded under the said provision leading to disclosure of fact is
admitted in evidence. For ensuring the truthfulness and voluntary
nature of the virtual confession, presence of independent
witnesses is absolutely essential and mandatory. They thus urged
that the view as taken by the Division Bench in these two cases
should be affirmed. It was further contended that as the ratio
decidendi of the Division Bench Judgments in the cases of
Rameshwar and Surjeet (supra) is based on the law as laid
down by the Hon'ble Supreme Court in Harjit Singh's
Judgment, the very competence of this Bench to answer the
reference is debatable. They contended that the controversy if(7 of 32)
any, is to be resolved, consideration has to be made by the
Hon'ble Supreme Court.
Sarva Shri Shridhar Purohit, Shri K.L.Thakur, Addl.Advocate
General and Shri J.P.S.Choudhary, Public Prosecutor, on the other
hand, contended that the view taken by Division Bench of this
Court in Rameshwar and Surjeet’s cases (supra) does not lay
down the correct proposition of law. There is no such requirement
in the Criminal Procedure Code that a memorandum prepared
under Section 27 of the Evidence Act should bear attestation of
independent witnesses. They urged that this requirement, if
allowed to stand, would virtually destroy the sanctity of
investigation. Unscrupulous accused would get away in their
endeavour of escaping punishment by tampering and winning
over Panch witnesses. Situation may even arise that soon after
the memo under Section 27 of the Evidence Act is prepared in the
presence of the witnesses, they would leak the information and
material piece of evidence would be either destroyed or removed,
frustrating and setting at naught the information so recorded by
the Investigating Officer. Reliance was placed on the Supreme
Court judgments in the cases of State, Govt. of NCT of Delhi
Vs. Sunil & Anr. reported in (2001)1 SCC 652;
(MANU/SC/0735/2000) and Pawan Kumar @ Monu Mittal
Vs. State of Uttar Pradesh & Anr. reported in (2015)7 SCC
148; (MANU/SC/0240/2015) and it was urged that the
reference should be answered in the manner that there is no
requirement of seeking attestation by independent witnesses on(8 of 32)
the memorandum prepared under Section 27 of the Evidence Act.
We have given our thoughtful consideration to the
arguments advanced at the bar and have gone through the
material available on record and have carefully and respectfully
perused the precedents cited by the learned members of the Bar.
At the inception, we propose to deal with the objection
raised by learned counsel Sarva Shri H.S.S. Kharlia, Sr.Advocate
and Shri H.S.Sandhu regarding the maintainability of the
reference/competence of the Bench to answer the same.
COMPETENCE OF THE BENCH TO ANSWER THE
REFERENCE:
So far as the maintainability of the reference/competence of
this Bench to answer the reference is concerned, at the outset we
may emphasise that this Bench is not directly called upon to
decide on validity of the judgment in the case of Harjit Singh
(supra), as is sought to be projected by learned Senior Counsel
raising the objection. In fact, as the Division Bench while
considering the Leave to Appeal did not concur with the opinion
expressed in the case of Rameshwar and Surjeet (supra)
delivered by a coordinate Bench, which judgments in turn had
taken a particular view of the observations made in the judgment
in the case of Harjit Singh (supra), therefore, keeping judicial
discipline, it chose to refer the issue to the Larger Bench. Hon’ble
Supreme Court in U.P.Gram Panchayat Adhikari Sangh Vs.
Daya Ram Saroj reported in (2007)2 SCC 138;(9 of 32)
(MANU/SC/8775/2006) observed:
“26. Judicial Discipline is self-discipline. It is an inbuilt
mechanism in the system itself. Judicial discipline
demands that when the decision of a coordinate Bench of
the same High Court is brought to the notice of the
Bench, it is to be respected and is binding, subject of
course, to the right to take a different view or to doubt
the correctness of the decision and the permissible course
then open is to refer the question or the case to a larger
Bench. This is the minimum discipline and decorum to be
maintained by judicial fraternity.”
In view of the above, there is no substance in the objection
raised in this regard.
ISSUE OF REFERENCE:
Having narrated these admitted aspects on interpretation of
Section 27 of the Evidence Act, now we may advert to the
controversy at hand.
A Division Bench of this Court in the case of State of
Rajasthan Vs. Rama & Ors. reported in 1973(1) WLC 934;
(MANU/RH/0186/1973) held that law does not require the
presence of independent witnesses before whom the information
under Section 27 of the Evidence Act may be given and recorded.
The Division Bench further went on to hold that if the presence of
independent witness was insisted before an accused gave
information, in some cases, the information may not be
forthcoming. However, the legal scenario assumed a different
character with the Division Bench Judgment in the case of
Rameshwar Vs. State of Rajasthan reported in 2015(1)(10 of 32)
Cr.L.R. (Raj.) 399 and the subsequent judgment in the case of
Surjeet Vs. State of Rajasthan reported in 2016(1) Cr.L.R.
303, wherein the ratio of Rameshwar’s judgment was followed. In
Rameshwar’s case, the Division Bench of this Court, relied on the
Supreme Court judgment in the case of Harjit Singh & Ors. Vs.
State of Punjab reported in AIR 2002 SC 3040;
(MANU/SC/0684/2002) and held that it is essential for the
prosecution to prove that the disclosure statement was made
voluntarily without any duress or coercion. To justify voluntary
character of disclosure statement, it ought to be recorded in the
presence of independent witnesses.
The entire edifice of the view taken by Division Bench of this
Court at Jaipur in Rameshwar’s case (supra), which is first in the
line of a series of judgments in which, a proposition was laid
down that the memorandum under Section 27 of the Evidence Act
should be attested by independent witnesses, is based on the
following observation made by the Hon’ble Supreme Court at
para-50 of Harjit Singh’s judgment (supra):-
“50. Apart from the version of eye-witnesses discussed
above, the trial court attached importance to the fact that
on a disclosure statement of accused Satinderpal Singh,
pistol alleged to have been used by Inderjit Singh was
recovered under memorandum Ext. P-19. We have
referred to the statement of Investigating Officer Puran
Singh (PW 9). He is unable to explain the reason for not
procuring the attendance and signature of independent
witnesses on the disclosure statement Ext. PV and
memorandum of recovery Ext. PU 1. We have noted that
these memoranda have been signed only by two police
officers Faqir Chand and Virsa Singh. It is unbelievable(11 of 32)
that all the accused persons who have alleged to use
their firearms/weapons kept all the arms concealed in an
open field in a gunny bag under a heap of straw. In the
absence of independent witnesses and the alleged place
of concealment being accessible to the public, the
evidence of disclosure statement and the consequent
recovery of arms and weapons do not at all inspire
confidence. In any case, it is not a piece of evidence
which could be relied on by the trial court to convict the
accused by treating it as eye-witnesses account.”
[Emphasis supplied]
From a plain reading of the above quoted portion of Harjit
Singh’s judgment (supra), it is apparent that a passing
reference was made by the Hon'ble Supreme Court in the said
judgment that the memorandum of information was signed by
Police Officers and not attested by independent witnesses and
thus, could not be accepted as being a reliable piece of evidence.
In the said case, the recoveries effected by the Investigating
Officer at the instance of the accused in furtherance of
information recorded under Section 27 of the Evidence Act were
discarded on numerous grounds; one of them being that the
Investigating Officer failed to associate independent witnesses in
the recovery proceedings. The Hon'ble Supreme Court was not in
seisin of a controversy involving the procedure applicable to
Section 27 of the Evidence Act in the said case. It is manifest that
the observations made are limited to peculiar facts of that specific
case and even do not amount to obiter dicta.
We are of the firm opinion that the insistence to keep
attesting witnesses present when the Investigating Officer records
the information supplied by the accused under Section 27 of the(12 of 32)
Evidence Act is absolutely unwarranted and rather amounts to a
direct infringement in confidentiality of investigation. There are
strong reasons behind this conclusion. We summarize a few
illustrations in order to fortify the same:-
(a) Investigation commences the moment an F.I.R. is
registered for a cognizable offence. An Investigating Officer,
having custody of the accused cannot predict in advance the
precise moment when the accused would decide to reveal the
information, which could lead to discovery of an incriminating
fact. Thus, if attestation of the information by independent
witness is persisted upon, as a direct corollary thereto, the
Investigating Officer would be required to keep the witnesses in
attendance right from the moment, the accused is arrested till the
information is elicited. This would lead to an absolutely absurd
situation and is likely to frustrate the investigation. The very
sanctity of investigation and the privilege available to the
Investigating Officer to keep the investigation secluded from
prying eyes would be compromised.
(b) Another possible situation may be that the accused
might divulge the information under Section 27 of the Evidence
Act to the Investigating Officer at a particular point of time when
independent witnesses are not available. For adhering to the
procedure of seeking attestation by independent witnesses, the
Investigating Officer would then be required to summon
independent witnesses and request the accused to repeat the
information in their presence. At this point of time, the accused(13 of 32)
may either refuse to divulge the information given earlier or may
oblige the Investigating Officer with the information which would
then be taken down in writing in presence of the independent
attesting witnesses. However, there is a fundamental glitch in
adopting this procedure, which would certainly make the
information, if any received the second time around in presence
of the witnesses inadmissible in evidence. Law is well settled by a
catena of decisions of the Hon'ble Supreme Court including the
judgment in the case of Aher Raja Khima Vs. The State of
Saurashtra reported in AIR 1956 SC 217;
(MANU/SC/0040/1955) that information of a fact already
known to the Investigating Officer is inadmissible in evidence.
Thus, in case the Investigating Officer, while making investigation
from the accused in his custody is provided an information under
Section 27 of the Evidence Act and soon thereafter, calls the
Panchas and records the same in their presence, then he would
be recording the memorandum of information already known to
him. Such information would be inadmissible at the outset and
thus, the entire endeavour would become nothing short of an
exercise in futility.
(c) There is yet another risk involved, which could severely
prejudice the accused if the information provided by the accused
under Section 27 is recorded in presence of independent
witnesses. The information under Section 27 of the Evidence Act
often comprises of two parts; one being confessional which has to
be excluded and the other which leads to the discovery of an(14 of 32)
incriminating fact and is admissible in evidence to the extent of
the discovery made in pursuance thereof. In case, independent
witnesses are kept present when the information is given by the
accused, the prosecution may make an endeavour to prove even
the confessional part of the information as being an extra judicial
confession made in presence of independent witnesses. There
may even arise a situation where, the independent witness
present to attest the memorandum prepared under Section 27 of
the Evidence Act is a Magistrate. In such a case, the confessional
part of the information under Section 27 of the Evidence Act
would almost assume the character of a confession under Section
26 of the Evidence Act thereby condemning the accused to face
severe consequences. There is a high probability of this situation
arising in cases involving recovery of narcotics where, the
Investigating Officer gives an option to the accused that he can
be searched in presence of a Magistrate or a Gazetted Officer.
Contemplating that option to be searched in presence of
Magistrate is given and search of the accused is conducted and
during the process, he is also questioned in the presence of the
Magistrate. At this time, the accused may provide an information
under Section 27 of the Evidence Act to the Investigating Officer
which is partly confessional in nature and is taken down in writing
and got witnessed by the Magistrate by adhering to the
requirement of attestation. In such a situation, the accused would
be faced with severe consequences because prosecution would
then, by lifting the prohibition contained in Section 26 of the
Evidence Act insist to prove whole of the information as(15 of 32)
amounting to a confession made in the presence of a Magistrate.
Thus, the requirement seeking attestation of the memorandum
prepared under Section 27 of the Evidence Act does not have any
logic or rationale behind it.
Now we proceed to consider as to whether the view taken
by the Division Bench of this Court in Rameshwar and Surjeet's
cases (supra) which in turn are based on the observations made
by the Hon'ble Supreme Court in Harjit Singh's Judgment
(supra) lay down the correct proposition of law or not by testing
them on the principles of obiter dicta, stare decisis, per-incuriam
and ratio decidendi.
In the case of Himachal Pradesh Administration Vs. Om
Prakash reported in AIR 1972 SC 975;
(MANU/SC/0118/1971), the Hon'ble Supreme Court held as
below:-
“9. Further having held this it nonetheless said that
there was no injunction against the same set of witnesses
being present at the successive enquiries if nothing could be
urged against them. In our view the evidence relating to
recoveries is not similar to that contemplated under Section
103 of the Criminal Procedure Code where searches are
required to be made in the presence of two or more
inhabitants of the locality in which the place to be searched
is situate. In an investigation under Section 157 the
recoveries could be proved even by the solitary evidence of
the Investigating Officer if his evidence could otherwise be
believed. We cannot as a matter of law or practice lay down
that where recoveries have to be effected from different
places on the information furnished by the accused different
sets of persons should be called in to witness them. In this
case P.W. 2 and P.W, 8 who worked with the deceased were(16 of 32)
the proper persons 'to witness the recoveries as they could
identify some of the things that were missing and also they
could both speak to the information and the recovery made
in consequence thereof as a continuous process. At any rate
P.W. 2 who is alleged to be the most interested was not
present at the time of the recovery of the dagger.”
[Emphasis supplied]
After adverting to the scheme of Criminal Procedure Code
and the Evidence Act, the Hon'ble Supreme Court held that the
recoveries made in pursuance of informations recorded by the
Investigating Officer during investigation cannot be equated to
those effected under Section 103 of the Cr.P.C. and such
recoveries made during investigation under Section 157 of the
Cr.P.C. are provable even by the solitary evidence of the
Investigating Officer. The above quoted portion of the judgment is
ratio decidendi on the issue as it lays down a proposition of law.
In the case of State Govt. of NCT of Delhi Vs. Sunil &
Anr. (supra) it was clearly laid down by a two Judges Bench of
Hon'ble Supreme court that the absence of independent
witnesses at the time of recording of information under Section
27 of the Evidence Act is not a ground to discard the evidence of
recovery made in pursuance to such information. The Supreme
Court conclusively held in the following terms that it is a fallacious
impression that when recovery is effected pursuant to any
statement made by the accused, the document prepared by the
Investigating Officer contemporaneous with such recovery must
necessarily be attested by independent witnesses:
“19. In this context we may point out that there is no(17 of 32)
requirement either under Section 27 of the Evidence Act or
under Section 161 of the CrPC, to obtain signature of
independent witnesses on the record in which statement of
an accused in written. The legal obligation to call
independent and respectable inhabitants of the locality to
attend and witness the exercise made by the police is cast
on the police officer when searches are made under Chapter
VII of the Code. Section 100(5) of the Code requires that
such search shall be made in their presence and a list of all
things seized in the course of such search and of the places
in which they are respectively found, shall be prepared by
such officer or other person "and signed by such witnesses".
It must be remembered that search is made to find out a
thing or document which the searching officer has no prior
idea where the thing or document is kept. He prowls for it
either on reasonable suspicion or on some guess work that
it could possibly be ferreted out in such prowling. It is a
stark reality that during searches the team which conducts
search would have to meddle with lots of other articles and
documents also and in such process many such articles or
documents are likely to be displaced or even strewn helterskelter.
The legislative idea in insisting on such searches to
be made in the presence of two independent inhabitants of
the locality is to ensure the safety of all such articles
meddled with and to protect the rights of the persons
entitled thereto. But recovery of an object pursuant to the
information supplied by an accused in custody is different
from the searching endeavour envisaged in Chapter VII of
the Code. This Court has indicated the difference between
the two processes in the Transport Commissioner, Andhra
Pradesh, Hyderabad and Anr. v. S. Sardar Ali. Following
observations of Chinnappa Reddy, J. can be used to support
the said legal proposition: (SCC p.254, para 8)
“Section 100 of the Criminal Procedure Code to
which reference was made by the counsel deals
with searches and not seizures. In the very nature
of things when property is seized and not
recovered during a search, it is not possible to
comply with the provisions of Sub-section (4) and
(5) of Section 100 of the Criminal Procedure Code.
In the case of a seizure [under the Motor Vehicles
Act], there is no provision for preparing a list of(18 of 32)
the things seized in the course of the seizure for
the obvious reason that all those things are seized
not separately but as part of the vehicle itself.”
20. Hence it is a fallacious impression that when recovery is
effected pursuant to any statement made by the accused
the document prepared by the Investigating Officer
contemporaneous with such recovery must necessarily be
attested by independent witnesses. Of course, if any such
statement leads to recovery of any article it is open to the
Investigating Officer to take the signature of any person
present at that time, on the document prepared for such
recovery. But if no witness was present or if no person had
agreed to affix his signature on the document, it is difficult
to lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted
and the recovery evidence unreliable. The court has to
consider the evidence of the Investigating Officer who
deposed to the fact of recovery based on the statement
elicited from the accused on its own worth.”
The Hon'ble Supreme Court, in the Constitution Bench
Judgment rendered in the case of State of U.P. Vs. Deoman
Upadhyaya reported in AIR 1960 SC 1125;
(MANU/SC/0060/1960) was in seisin of a challenge given to
validity of Section 27 of the Evidence Act in reference to Article
14 of the Constitution of India and it was observed:-
“10. A confession made by a person not in custody is
therefore admissible in evidence against him in a criminal
proceeding unless it is procured in the manner described in
S.24, or is made to a police officer. A statement made by a
person, if it is not confessional, is provable in all proceedings
unless it is made to a police officer in the course of an
investigation, and the proceeding in which it is sought to be
proved is one for the trial of that person for the offence
under investigation when he made that statement. Whereas
information given by a person in custody is to the extent to
which it distinctly relates to a fact thereby discovered is
made provable, by S.162 of the Code of Criminal Procedure,(19 of 32)
such information given by a person not in custody to a police
officer in the course of the investigation of an offence is not
provable. This distinction may appear to be somewhat
paradoxical. Sections 25 and 26 were enacted not because
the law presumed the statements to be untrue, but having
regard to the tainted nature of the source of the evidence,
prohibited them from being received in evidence. It is
manifest that the class of persons who needed protection
most were those in the custody of the police and persons not
in the custody of police did not need the same degree of
protection. But by the combined operation of S.27 of the
Evidence Act and S.162 of the Code of Criminal Procedure,
the admissibility in evidence against a person in a criminal
proceeding of a statement made to a police officer leading to
the discovery of a fact depends for its determination on the
question whether he was in custody at the time of making
the statement. It is provable if he was in custody at the time
when he made it, otherwise it is not.
12. There is nothing in the Evidence Act which precludes
proof of information given by a person not in custody, which
relates to the facts thereby discovered; it is by virtue of the
ban imposed by s. 162 of the Code of Criminal Procedure,
that a statement made to a police officer in the course of the
investigation of an offence under Ch. XIV by a person not in
police custody at the time it was made even if it leads to the
discovery of a fact is not provable against him at the trial for
that offence. But the distinction which it may be
remembered does not proceed on the same lines as under
the Evidence Act, arising in the matter of admissibility of
such statements made to the police officer in the course of
an investigation between persons in custody and persons not
in custody, has little practical significance. When a person
not in custody approaches a police officer investigating an
offence 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 in
custody : submission to the custody by word or action by a
person in sufficient. A person directly giving to a police
officer by word of mouth information which may be used as(20 of 32)
evidence against him, may be deemed to have submitted
himself to the "custody" of the police officer within the
meaning of s. 27 of the Indian Evidence Act : Legal
Remembrancer v. Lalit Mohan Singh I.L.R. (1921) Cal.167
Santokhi Beldar v. King Emperor I.L.R. (1933) Pat. 241
Exceptional cases may certainly be imagined in which a
person may give information without presenting himself
before a police officer who is investigating an offence. For
instance, he may write a letter and give such information or
may send a telephonic or other message to the police officer.
But in considering whether a statute is unconstitutional on
the ground that the law has given equal treatment to all
persons similarly circumstanced, it must 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 is not applied. As has often been said in
considering whether there has been a denial of the equal
protection of the laws, a doctrinaire approach is to be
avoided. A person who has committed an offence, but who is
not in custody, normally would not without surrendering
himself to the police give information voluntarily to a police
officer investigating the commission of that offence leading
to the discovery of material evidence supporting a charge
against him for the commission of the offence. The
Parliament enacts laws to deal with practical problems which
are likely to arise in the affairs of men. Theoretical possibility
of an offender not in custody because the police officer
investigating the offence has not been able to get at any
evidence against him giving information to the police officer
without surrendering himself to the police, which may lead
to the discovery of an important fact by the police, cannot be
ruled out; but such an occurrence would indeed be rare. Our
attention has not been invited to any case in which it was
even alleged that information leading to the discovery of a
fact which may be used in evidence against a person was
given by him to a police officer in the course of investigation
without such person having surrendered himself. Cases like
Deonandan Dusadh v. King Emperor I.L.R. (1928) Pat.411
Santokhi Beldar v. King Emperor I.L.R. (1933) Pat. 241
Durlav Namasudra v. Emperor I.L.R. (1932) Cal. 1040 in re
Mottai Thevar AIR 1952 Mad 586, In re Peria Guruswami(21 of 32)
I.L.R. 1942 Mad. 77 Bharosa Ramdayal v. Emperor I.L.R.
1940 Nag. 679 and Jalla v. Emperor A.I.R. 1931 Lah. 278
and others to which our attention was invited are all cases in
which the accused persons who made statements leading to
discovery of facts were either in the actual custody of police
officers or had surrendered themselves to the police at the
time of, or before making the statements attributed to them,
and do not illustrate the existence of a real and substantial
class of persons not in custody giving information to police
officers in the course of investigation leading to discovery of
facts which may be used as evidence against those persons.”
In the case of The State of Bombay Vs. Kathi Kalu
Oghad & Ors. reported in AIR 1961 SC 1808;
(MANU/SC/0134/1961), the Constitution Bench of Hon'ble
Supreme Court was called upon to examine the validity of Section
27 of the Evidence Act vis-a-vis Article 20(3) of the Constitution
of India. In para 36 of the judgment, the Hon'ble Supreme Court
expounded as below:-
“36. The question then is : Is an accused person
furnishing evidence when he is giving his specimen
handwriting or impressions of his fingers, or palm or foot ?
It appears to us that he is : For, these are relevant facts,
within the meaning of section 9 and section 11 of the
Evidence Act. Just as an accused person is furnishing
evidence and by doing so, is being a witness, when he
makes a statement that he did something, or saw
something, so also he is giving evidence and so is being a
"witness", when he produces a letter the contents of which
are relevant under section 10, or is producing the plan of a
house where a burglary has been committed or is giving his
specimen handwriting or impressions of his finger, palm or
foot. It has to be noticed however that Article 20(3) does
not say that an accused person shall not be compelled to be
a witness. It says that such a person shall not be compelled
to be a witness against himself. The question that arises
therefore is : Is an accused person furnishing evidence
against himself, when he gives his specimen handwriting, or(22 of 32)
impressions of his fingers, palm or foot ? The answer to this
must, in our opinion, be in the negative.”
Thus, in both these Constitution Bench Judgments (supra),
a theory was propounded that when the accused gives
information under Section 27 of the Evidence Act, he is virtually
acting in the capacity of a witness. Needless to say that the
statements of witnesses recorded under Section 161 Cr.P.C. are
not required to be signed even by the witness himself. It may be
mentioned here that neither of these two Constitution Bench
judgments were noticed or referred to in the case of Harjit
Singh (supra).
Law is well settled by a catena of decisions rendered by the
Hon'ble Supreme Court that where the Hon'ble Supreme Court
passes a judgment laying down ratio decidendi on a particular
issue of law, any other judgment wherein, reference to the same
issue is made by way of obiter dicta, the latter would be having
no persuasive value as compared to the judgment laying down
the ratio decidendi. In other words, what is required to be
followed is the ratio decidendi as opposed to obiter dicta when
the same prevail on the very same sphere. The concept of stare
decisis and per-incuriam was explained in detail by Hon'ble
Supreme Court in the case of Siddharam Satlingappa Mhetre
Vs. State of Maharashtra & Ors. reported in AIR 2011 SC
312; (MANU/SC/1021/2010), observing as below :
“149. The analysis of English and Indian Law clearly leads
to the irresistible conclusion that not only the judgment of
a larger strength is binding on a judgment of smaller(23 of 32)
strength but the judgment of a co-equal strength is also
binding on a Bench of judges of co-equal strength. In the
instant case, judgments mentioned in paragraphs 135 and
36 are by two or three judges of this Court. These
judgments have clearly ignored a Constitution Bench
judgment of this Court in Sibbia's case (supra) which has
comprehensively dealt with all the facets of anticipatory
bail enumerated under Section 438 of Code of Criminal
Procedure Consequently, judgments mentioned in
paragraphs 135 and 136 of this judgment are per incuriam.
150. In case there is no judgment of a Constitution Bench
or larger Bench of binding nature and if the court doubts
the correctness of the judgments by two or three judges,
then the proper course would be to request Hon'ble the
Chief Justice to refer the matter to a larger Bench of
appropriate strength.
151. In the instant case there is a direct judgment of the
Constitution Bench of this Court in Sibbia's case (supra)
dealing with exactly the same issue regarding ambit, scope
and object of the concept of anticipatory bail enumerated
under Section 438 Code of Criminal Procedure The
controversy is no longer res integra. We are clearly bound
to follow the said judgment of the Constitution Bench. The
judicial discipline obliges us to follow the said judgment in
letter and spirit.”
As per the rules of statutory interpretation, in case a Bench
headed by equal number of Judges of the Hon'ble Supreme Court
delivers a judgment on a particular issue without considering the
earlier judgment already existing on the very same issue having
been delivered by a similar number of Judges, the subsequent
judgment would be per-incuriam.
Since the earlier judgments rendered by Two Judge Benches
of Hon'ble Supreme Court in the cases of Himachal Pradesh
Administration Vs. Om Prakash and State, Govt. of NCT of(24 of 32)
Delhi Vs. Sunil & Anr. (supra) which dealt with the very same
controversy, were not brought to the notice and considered by
Hon’ble Two Judges Bench of Supreme Court in Harjit Singh’s
case (supra), the earlier judgments have binding precedential
value and are to be followed on the doctrine of stare decisis.
Moreover, as has been held above, the observations made in
Harjit Singh’s case (supra) can at best be termed as obiter dicta
whereas, the concept propounded in the cases of Om Prakash
and Sunil (supra) is ratio decidendi on the issue and thus, the
same would have binding value in preference to the observations
made in Harjit Singh’s judgment (supra). Furthermore, the
ratio of the Constitution Bench Judgments rendered by the
Supreme Court in the cases of Deoman Upadhyay and Kathi
Kalu Oghad was also not considered in Harjit Singh's
Judgment and thus, the observations made in the said judgment
cannot be accepted as having binding precedential value.
MISUSE OF POWERS BY THE INVESTIGATING
OFFICER:
The edifice of the argument that information under Section
27 of the Evidence Act should be recorded in presence of
independent witnesses is founded on the perception that the
Investigating Officer might misuse his powers and forcibly extract
the information from the accused in custody. The said
apprehension has no basis whatsoever. Hon'ble the Supreme
Court in the cases of Deoman Upadhyaya (supra) as well as in
the case of State of Maharashtra Vs. Damu reported in(25 of 32)
(2000)6 SCC 269; (MANU/SC/0299/2000) held that
admissibility of the information given by an accused in custody
under Section 27 of the Evidence Act is based on the doctrine of
“confirmation by subsequent events”. The Section was given
an expansive meaning in Damu’s case in the following words:
“37. The basic idea embedded in Section 27 of the
Evidence Act is the doctrine of 'confirmation by
subsequent events. The doctrine is founded on the
principle that if any fact is discovered in a search made on
the strength of any information obtained from a prisoner,
such a discovery is a guarantee that the information
supplied by the prisoner is true. The information might be
confessional or non-inculcator in nature, but if it results in
discovery of a fact it becomes a reliable information.
Hence the legislature permitted such information to be
used as evidence by restricting the admissible portion to
the minimum. It is now well-settled that recovery of an
object is not discovery of a fact as envisaged in the
section. The decision of Privy Council in Pullukurn Kottayya
v. Emperor AIR 1947 PC 67 as the most quoted authority
for supporting the interpretation that the "fact discovered"
envisaged in the Section embraces the place from which
the object was produced, the knowledge of the accused as
to it, but the information given must relate distinctly to
that effect.”
In view of the fact that the information becomes admissible
only to the extent of the part leading to the discovery of a fact,
the subsequent confirmation gives a guarantee about the sanctity
of such information. The facts discovered should be such which
are in exclusive knowledge of the accused and none else. If the
Investigating Officer, after recording information under Section 27
of the Evidence Act from an accused in his custody, recovers
some incriminating article from an open place accessible to all(26 of 32)
and sundry, the information and the discovery would loose
significance. Likewise, if the fact discovered is known to the
Investigating Officer in advance, then the discovery made in
furtherance of the subsequent information recorded under Section
27 at the instance of the accused would be inconsequential. The
only logical conclusion in these circumstances is that there is no
legal requirement of seeking attestation of the information
received from the accused under Section 27 of the Evidence Act
by independent witnesses. Attestation if any would be required
when discovery of the fact is made and memo thereof prepared.
The Hon'ble Supreme Court in the case of D.K.Basu Vs.
State of West Bengal reported in (1997)1 SCC 416;
(MANU/SC/0157/1997), gave numerous directions to be
followed as preventive measures in all cases of arrest and or
detention. The direction at Sr.No.10 of the said judgment is that
the arrestee may be permitted to meet his lawyer during
investigation though not throughout the investigation.
The entire endeavour of the learned counsel, who argued in
favour of the proposition that witnesses should be kept present to
attest the information memo prepared under Section 27 of the
Evidence Act, was based on the perception that the Investigating
Officer may indulge into use of force and third degree methods
for extracting the confession. The directions given by the Hon'ble
Supreme Court in D.K.Basu’s Judgment (supra) and the
consequent amendments brought around in the Cr.P.C.
particularly Sections 41-A, 41-B, 41-D, 50, 50-A, 53 and 54 are(27 of 32)
sufficient to alleviate these perceptions and apprehensions.
Furthermore, the accused, by leading appropriate evidence can
always challenge the sanctity of information recorded under
Section 27 of the Evidence Act if such information is recorded
under threat, duress or by coercion. It is essential to note that in
the entire framework of Code of Criminal Procedure, which
governs the process of investigation, there is no requirement of
keeping witnesses present at the time of recording information of
the accused under Section 27 of the Evidence Act.
In the case of A.R.Antulay Vs. Ramdas Sriniwas Nayak
reported in AIR 1984 SC 718; (MANU/SC/0082/1984), the
Constitution Bench of the Hon’ble Supreme Court held that in the
absence of a specific provision made in the statute indicating that
offences will have to be investigated, inquired into, tried and
otherwise dealt with according to that statute, the same will have
to be investigated, inquired into, tried and otherwise dealt with
according to the Criminal Procedure Code.
In other words, Criminal Procedure Code is the parent
statute which provides for investigation, inquiry and trial of cases
by Criminal Courts of various designations and there is no
provision in the Cr.P.C. requiring attestation of the information
recorded under Section 27 of the Evidence Act by independent
witnesses.
SANCTITY OF INVESTIGATION:
There is yet another angle of looking at the issue. The(28 of 32)
sanctity attached to confidentiality of investigation is imperative
and the same cannot be allowed to be brought into public domain
because the very purpose of investigation would then be
compromised. The conversation which takes place between the
Investigating Officer and the accused is privileged and classified
and cannot be allowed to become common place. In a recent
decision in the case of Senior Intelligence Officer Vs. Jugal
Kishore Samra reported in (2011)12 SCC 362;
(MANU/SC/0731/2011), the Hon'ble Supreme Court
considered the controversy as to whether the person, who is
arrested, has a right to insist for presence of an Advocate at the
stage of Police interrogation. The purpose behind seeking
presence of an Advocate during investigation or requiring
presence of witnesses during proceedings under Section 27 of the
Evidence Act is virtually the same. Both are insisted upon so as to
ensure that the Investigating Officer does not misuse his position;
by using third degree methods, force, threat, coercion or duress
upon the accused during interrogation. After examining the entire
controversy, the Hon'ble Supreme Court in the above referred
case went on to hold that the judgment rendered by the Hon'ble
Supreme Court in the case of Nandini Satpathy Vs. P.L.Dani
reported in (1978)2 SCC 424; (MANU/SC/0139/1978) ran
contrary to the ratio of two earlier Constitution Bench decisions in
the cases of Illias Vs. Collector of Customs, Madras reported
in 1969 (2) SCR 613; (MANU/SC/0297/1968) and Romesh
Chandra Mehta Vs. State of West Bengal reported in
1969(2) SCR 461; (MANU/SC/0282/1968). The relevant(29 of 32)
quotes made by the Hon'ble Supreme Court in the above
judgment are extracted below:-
“In Poolpandi and Ors. v. Superintendent, Central Excise
and Ors.: (1992) 3 SCC 259, the question before a three
judge bench of this Court was directly whether a person
called for interrogation is entitled to the presence of his
lawyer when he is questioned during the investigation under
the provisions of the Customs Act, 1962 and the Foreign
Exchange Regulation Act, 1973. On behalf of the persons
summoned for interrogation, strong reliance was placed on
Nandini Satpathy. The Court rejected the submission tersely
observing in paragraph of 4 of the judgment as follows:
“4. Both Mr. Salve and Mr. Lalit strongly relied on
the observations in Nandini Satpathy v. P.L.
Dani: (1978) 2 SCC 424. We are afraid, in view
of two judgments of the Constitution Bench of
this Court in Ramesh Chandra Mehta v. State of
W.B.: (1969) 2 SCR 461, and Illias v. Collector
of Customs, Madras: (1969) 2 SCR 613, the
stand of the Appellant cannot be accepted. The
learned Counsel urged that since Nandini
Satpathy case was decided later, the
observations therein must be given effect to by
this Court now. There is no force in this
argument.”
28. …….. Taking a cue, therefore, from the direction made in
DK Basu and having regard to the special facts and
circumstances of the case, we deem it appropriate to direct
that the interrogation of the Respondent may be held within
the sight of his advocate or any other person duly authorized
by him. The advocate or the person authorized by the
Respondent may watch the proceedings from a distance or
from beyond a glass partition but he will not be within the
hearing distance and it will not be open to the Respondent to
have consultations with him in course of the interrogation.”
The ratio of the above judgment was based on the Three
Judges Bench Judgment rendered by the Supreme Court in the(30 of 32)
case of Poolpandi Vs. Supdt., Central Excise reported in
(1992)3 SCC 259; (MANU/SC/0339/1992), wherein it was
held that the person called for interrogation is not entitled to
insist for presence of a lawyer during interrogation.
As observed above, there is a strong sanction for following
such a procedure because presence of a third person during
investigation would directly infringe in the privilege available to
the Investigating Officer to investigate the case without any
external interference and would adversely affect the
confidentiality attached to investigation. The steps taken by the
Investigating Officer during investigation are classified and are
recorded in the case diary which is a privileged document. The
Hon'ble Supreme Court has time and again held that no-one can
have access to the case diary except the Court or the
Investigating Officer. Reference may be had to judgments
rendered by Hon'ble Supreme Court in the cases of Sidharth Vs.
State of Bihar reported in AIR 2005 SC 4352;
(MANU/SC/0949/2005) and State of NCT of Delhi Vs. Ravi
Kant Sharma & Ors. reported in AIR 2007 SC 1135;
(MANU/SC/7098/2007). Thus, allowing presence of a witness
during confidential investigation would directly run contrary to
this proposition of law.
As an upshot of the discussion made hereinabove, we are of
the firm view that the ratio of the Judgments rendered by Division
Benches of this Court in the cases of Rameshwar and Surjeet
(supra) propounding that the information given by the accused to(31 of 32)
the Investigating Officer under Section 27 of the Evidence Act
should be recorded in presence of and attested by independent
witnesses do not lay down the correct proposition of law.
Furthermore, in view of decision of Three Judge Bench of
Supreme Court in the case of Poolpandi (supra) followed in the
case of Sr.Intelligence Officer, Directorate of Revenue
Intelligence Vs. Jugal Kishore Samra (supra), the presence of
a witness at the time of investigation is absolutely impermissible
as it would breach the confidentiality of investigation. For the
sake of repetition, it may be noted here that the earlier decisions
of a three Judges Bench of the Hon'ble Supreme Court in the case
of Poolpandi (supra) and the Two Judges Bench decisions in the
cases of Himachal Pradesh Administration Vs. Om Prakash
(supra) and State, Govt. of NCT of Delhi Vs. Sunil & Anr.
(supra) were also not noticed and considered in Harjit Singh’s
case.
In view of the discussion made hereinabove, we answer the
reference in the following terms:
“In the entire scheme of Code of Criminal
Procedure and the Evidence Act, there is no
requirement that the information given by an
accused to the Investigating Officer under
Section 27 of the Evidence Act leading to the
discovery of a relevant fact should bear
attestation by independent witnesses and the
Division Bench Judgments in the cases of(32 of 32)
Rameshwar and Surjeet (supra) do not lay
down correct proposition of law on this
aspect.”
The Application for grant of Leave to Appeal be now placed
before the concerned Division Bench for consideration.
(PANKAJ BHANDARI),J. (SANDEEP MEHTA),J. (GOPAL KRISHAN VYAS),J.
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