Is Formal Accusation/Police Custody Required To Invoke Section 27 Evidence Act? Supreme Court Corrects Itself !

Section 27 of the Indian Evidence Act 1872, which explains how much of information received from accused may be proved, reads as follows: “Provided that, when any fact is deposed to as discovered inconsequence 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.”

Interestingly, the Section 27 starts with the expression ‘provided that’. This implies that Section 27 is in the nature of proviso to its earlier provisions viz. Sections 25 and 26. As per Section 25, a confession made to a police officer is prohibited and cannot be admitted in evidence. Section 26 of the Evidence Act provides that no confession made by any person whilst he is in the custody of a police officer shall be proved against such person, unless it is made in the immediate presence of a Magistrate. Section 27 is thus an exception to Sections 25 and 26. Section 25-27 is clubbed into one provision as Section 23 In Bharatiya Sakshya Adhiniyam 2023.

So Section 27 talks about information received from a person accused of any offence, in the custody of a police-officer, so much of such information. The question is whether Section 27 can be invoked only if the person is accused of any offence and is in the custody of the officer? In other words, whether formal accusation and formal police custody are essential pre-requisites under Section 27?

Last year, a three judges bench of the Supreme Court, in Rajesh vs State of MP 2023 INSC 839, observed that being in ‘the custody of a police officer’ and being ‘accused of an offence’, are  indispensable pre-requisites to invoke the exception postulated under Section 27. In that case, the accused’s name was not in the FIR. He was taken to the police station. Before his arrest was recorded, he is said to have made a confession. The question is whether recovery made pursuant to this confession at his behest will be admissible? The court held thus: “It was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact.”

Yesterday, in Perumal Raja @ Perumal vs State 2024 INSC 13, a two judges bench of the Supreme Court noted the law laid down in Rajesh but refused to follow it as it was bound by the law laid down by the Constitution Bench in the State of U.P. v. Deoman Upadhyaya (1961) 1 SCR 14 :: AIR 1960 SC 1125 . The Court further noted that the words “person accused of an offence” and the words “in the custody of a police officer” in Section 27 are separated by a comma and thus, they have to be read distinctively. The court observed that as soon as an accused or suspected person comes into the hands of a police officer, he is no longer at liberty and is under a check, and is, therefore, in “custody” within the meaning of Sections 25 to 27 of the Evidence Act. Referring to other decisions in this regard, the Court observed: Even if the accused was not formally arrested at the time of giving information, the accused is, for all practical purposes, in the custody of the police and the bar vide Sections 25 and 26 of the Evidence Act, and accordingly exception under Section 27 of the Evidence Act, apply.

Leave a Comment

Your email address will not be published. Required fields are marked *