Friday, 14 April 2017

Whether attestation by independent witnesses is necessary for recording information from accused regarding recovery of articles?

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
D.B. Criminal Leave To Appeal No. 94 / 2017
State of Rajasthan

Mangal Singh 


Dated : 1st March 2017
Citation: AIR 2017 Raj 68
Read full judgment here: Click here

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