Difference between Section 25 and 26 PDF

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Difference between Section 25 and 26: In case of confession made to police under section 25 of the Indian Evidence Act explains that any kind of confession made before the police officer shall not be held against the accused of any offence. Further, any confession made by the accused whilst he is in the custody of a police officer shall not be proved against him unless it is made in the immediate presence of the magistrate as per section 26 of the Indian Evidence act. Therefore, a confession made in the first information report shall be excluded as hit by section 25. Now when we talk about both these two sections one question always arises which is regarding the evidentiary value of the confession when proved in both the Sections. When and how can it be used against the accused which was explained by the following cases: In Birey Singh v. State AIR 1953 All 785, it was observed that there is always a question as to whether a conviction can be based solely upon extra-judicial confession but in case of judicial confession conviction can be made without hesitation. There is a great level of caution that needs to apply when receiving extra-judicial confessions. The guideline relating to rule of caution was provided in the case Wakil Navak v. State of Bihar where it was observed that before the court proceeds with the extra-judicial confession it has to also keep in view with the circumstance under which the statements were made and the person who gave the statements shall also be considered by following two rules relating to caution. First, careful examination of the evidence of confession in order to determine whether it is reliable or not and second, whether it is corroborated with the material facts of the case. In the case of Balbir Singh v. State of Punjab 58 Cr. L.J. 481. , the amount of corroboration required is been discussed, where it was stated that it not necessary that each and every circumstance mention in the statement with regard to the accused person in the crime must be separately corroborated. If such rule is made mandatory then the whole rule would be meaningless as independent evidence itself can be sufficient for proving conviction. As discussed earlier the confession is a weak form of evidence it is therefore recommended that even judicial confessions shall seek corroboration.

In Thima and Thima Raju v State of Mysore A.I.R. 1971 S.C. 1871 , it was observed that probative value of confession made before the police officer shall depend on various external factors such character of the person giving the confession, time and place of making it and circumstance in which such statements were made. Therefore, in the case of the State of Karnataka v. A.B. Nag Raj, it was held since the alleged extra-judicial confession was given in a forest office without any presence of the witness it cannot be relied upon. In Guramma v. State of Mysore, it was well explained that the confession made to the police does not stand in par with the confession made to Magistrate. As in the case of confession made to Magistrate, the court scrutinizes the statements carefully in order to verify whether it was given under pressure or threat whereas in case of extra-judicial confession there are no such safeguards. It is because of this obstruction law insisted that as far as the extra-judicial confession is concerned it should be made before a Magistrate with material corroboration with establishes an unquestionable connection of the accused with the offense. Thus, the introduction of section 164 of the Criminal Procedure Code aims to provide a method deriving a reliable statement in the record made before police during the investigation process which is recorded by a Magistrate can defy section 25 of the Indian Evidence Act and can be used as admissible evidence in a trial proceeding. Section 27 of the Indian Evidence Act, 1872 incorporates the theory of confirmation by subsequent facts, that is, statements made in police custody are admissible to the extent that they can be proved by subsequent discovery of facts. Discovery statements made under Section 27 of the Indian Evidence Act, 1872 can be described as those which furnish a link in the chain of evidence needed for a successful prosecution. Section 27 permits derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda warnings. However, in circumstances where it is shown that a person was indeed compelled to make statements

while in custody, relying on such testimony as well as its derivative use will offend Article 20(3) of the Constitution of India, 1950.

The quintessential requirements of Section 27 of the Indian Evidence Act, 1872 have been succinctly summed up in the matter of: Anter Singh V/s State of Rajasthan, (2004) 10 SCC 657 in the following words: (i) Information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible under Section 27 of the Indian Evidence Act, 1872. (ii) Section 27 of the Indian Evidence Act, 1872 provides that a confessional statement made to a police officer or while an accused is in police custody, can be proved against him, if the same leads to discovery of an unknown fact. (iii) The rationale of Sections 25 and 26 of the Indian Evidence Act, 1872 is that police may procure a confession by coercion or threat. The exception postulated under Section 27 of the Indian Evidence Act, 1872 is applicable only if the confessional statement leads to the discovery of some new fact. The relevance under the exception postulated by Section 27 of the Indian Evidence Act, 1872, is limited “…as relates distinctly to the fact thereby discovered…” (iv) The rationale behind Section 27 of the Indian Evidence Act, 1872 is that facts in question would have remained unknown but for the disclosure of the same by the accused. The discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 of the Indian Evidence Act, 1872 has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the of the Indian Evidence Act, 1872. (v) So far as Section 27 of the Indian Evidence Act, 1872 is concerned, in the absence of any connecting link between

the crime and the things recovered, the recovery of things at the behest of accused will not have any material bearing on the facts of the case.

When recovery is made pursuant to the statement of accused, seizure memo prepared by the Investigating Officer need not mandatorily be attested by independent witnesses. In the matter of: State Govt. of NCT of Delhi V/s Sunil & Anr, (2001) 1 SCC 652, it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles’ list consequent upon the statement of the accused. It was further held that there is no requirement, either under Section 27 of the Indian Evidence Act, 1872 or under Section 161 of the Code of Criminal Procedure, 1973 to obtain signatures of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos. In the landmark case of: Pulukuri Kottaya V/s KingEmperor, AIR 1947 PC 67, the Privy Council has laid down the test for relevance of information received from the accused for the purpose of Section 27 of the Indian Evidence Act, 1872. The relevant extract from the judgment is as under: “…10. Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that the discovery of a fact in consequence of information received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence; but clearly the extent of

the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate…” In the matter of: Raju Manjhi V/s State of Bihar it was held that: a. It is true, no confession made by any person while he was in the custody of police shall be proved against him. But, the Indian Evidence Act, 1872 provides that even when an accused being in the custody of police makes a statement that reveals some information leading to the recovery of incriminating material or discovery of any fact concerning the alleged offence, such statement can be proved against him. b. Test identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure, 1973 which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. Test identification parades do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure, 1973. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.

In the matter of Selvi & Ors V/s State of Karnataka, it was held that: no individual should be forcibly subjected to any of the techniques (Lie Detector Test, Polygraph Test, NarcoAnalysis Test and Brain Mapping Test) in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872…”

CONCLUSION: These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of police officer not to be trusted, and should not be used in evidence against him. They are based upon Grounds of public policy, and the fullest effect should be given to them. These sections are drafted in a very meticulous way but at the same time, are subjected to very interpretations and criticisms. Over the time, with the development of judicial pronouncements, the concepts under these sections should be refined. Otherwise it would become even more vulnerable and exploitable sections which will totally be in the hands of the Police on which much reliance cannot be placed....