What are the pre-conditions to attract the provision of Section-27 of the Evidence Act?
Ans: Under Section-25 a confession, which is made to a police officer, cannot be proved against the person who is accused of an offence. That section does not set out anything regarding the state of the person who is making the confession. It is not necessary that the confession should be made when he is in police custody, nor is it necessary that he must be an accused person. The section merely enacts that when an accused person is being tried, a confession which he, on a previous occasion, made to a police officer, cannot be proved against him. It is not specified that the accused person must have been an accused person at the time of making the statement, nor need he has been in police custody. That section applied to cases where confessional statements, made by persons, who were not accused persons at the time of making the statements are tried subsequently. Section 26 deals with accused persons who make the statement while in police custody. Therefore, they must be accused persons. Under that section, when a confessional statement is made by an accused person, who is in police custody, that statement is inadmissible in evidence, unless it is made in the immediate presence of magistrate. This section provides an exception to Sections-25 and 26, because this section contains the phrase ‘in the custody of a police officer’. The confessional statement mentioned in this section is a statement made by a person in police custody, and accused of an offence. In other words, this section relates only to those confessional statements, which are made by accused persons while they are in police custody. The section lays down that such confessional statements are admissible in evidence, provided they lead to the discovery of a fact, in consequence of information received from the person accused of any offence in the custody of a police officer. If the statement is made by a person who is a stranger or is a prosecution-witness, then such statement is not admissible in evidence, despite the fact that it amounts to a confession and leads to the discovery of a new fact.
Before the provisions of this section can be attracted, two essential requirements should be satisfied, namely:
(i) the person making the statement must be accused of any offence; and
(ii) he must be in the custody or deemed to be in the custody of a police officer.
Considering the minimum requirements to attract the provision of Section-27 of the Evidence Act, Hon’ble Apex Court has observed in case of AMITSINGH BHIKAMSING THAKUR V/S STATE OF MAHARASHTRA- reported in 2007 AIR(SC) 676 that ………..
“The various requirements of the Section can be summed up as follows:
(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused’s own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.