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1960 (5) TMI 27
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....er cousin. Sukhdei gifted certain agricultural lands inherited by her from her father to Dulari. The lands gifted to Dulari and the lands of Sukhdei were cultivated by Mahabir, uncle of Deoman. Mahabir and Deoman entered into negotiations for the sale of some of these lands situated at village Anandadih, but Sukhdei refused to agree to the proposed sale. According to the case of the prosecution, in the evening of June 18, 1958, there was an altercation between Deoman and Sukhdei. Deoman slapped Sukhdei on her face and threatened that he would smash her face. Early in the morning of June 19, Deoman made a murderous assault with a gandasa (which was borrowed by him from one Mahesh) upon Sukhdei who was sleeping in the courtyard near her house and killed her on the spot and thereafter, he threw the gandasa into the village tank, washed himself and absconded from the village. He was arrested in the afternoon of the 20th near the village Manapur. On June 21, he offered to hand over the gandasa which he said, he had thrown in the village tank, and in the presence of the investigating officer and certain witnesses, he waded into the tank and took out a gandasa, which, on examination by th....
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....the Indian Evidence Act which rendered such a statement admissible, discriminated between persons in custody and persons not in custody and was therefore void as violative of Art. 14 of the Constitution. The Division Bench hearing the appeal referred the following two questions for opinion of a Full Bench of the court:- 1. Whether s. 27 of the Indian Evidence Act is void because it offends against the provisions of Art. 14 of the Constitution ? and 2. Whether sub-s. (2) of s. 162 of the Code of Criminal Procedure in so far as it relates to s. 27 of the Indian Evidence Act is void ? The reference was heard by M. C. Desai, B. Mukherjee and A. P. Srivastava, JJ. Mukherjee, J., and Srivastava, J., opined on the first question, that " s. 27 of the Indian Evidence Act creates an unjustifiable discrimination between " persons in custody " and " persons out of custody ", and in that it offends against Art. 14 of the Constitution and is unenforceable in its present form ", and on the second question, they held that sub-s. (2) of s. 162 of the Code of Criminal Procedure " in so far as it relates to s. 27 of the Indian Evidence Act is void ". Desai, ....
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....e connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swamy v. Emperor((1939) L.R. 66 I.A. 66), by the Judicial Committee of the Privy Council, " s. 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation ". The adjectival clause " accused of any offence " is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person ,at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides " No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate prosence of a Magistrate, shall be proved as against a per. son accused of any offence." By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas s. 25 prohibits proof .of a confession made by a person to a police officer whe....
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...., under investigation at the time when the statement was made. On an analysis of ss. 24 to 27 of the Indian Evidence Act, and s. 162 of the Code of Criminal Procedure, the following material propositions emerge:- (a) Whether a person is in custody or outside, a confession made by him to a police officer or the making of which is procured by inducement, threat or promise having reference to the charge against him and proceeding from a person in authority, is not provable against him in any proceeding in which he is charged with the commission of an offence. (b) A confession made by a person whilst he is in the custody of a police officer to a person other than a police officer is not provable in a proceeding in which he is charged with the commission of an offence unless it is made in the immediate presence of a Magistrate. (c) That part of the information given by a person whilst in police custody whether the information is confessional or otherwise, which distinctly relates to the fact thereby discovered but no more, is provable in a proceeding in which he is charged with the commission of an offence. (d) A statement whether it amounts to a confession or not made by a person w....
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....or the equal protection of the laws " within the meaning of Art. 14 of the Constitution ? By the equal protection of the laws guaranteed by Art. 14 'of the Constitution, it is not predicated that all laws must be uniform and universally applicable; the guarantee merely forbids improper or invidious distinctions by conferring rights or privileges upon a class of persons arbitrarily selected from out of a larger group who are similarly circumstanced, and between whom and others not so favoured, no distinction reasonably justifying different treatment exists: it does not give a guarantee of the same or similar treatment to all persons without reference to the relevant differences. The State has a wide discretion in the selection of classes amongst persons, things or transactions for purposes of legislation. Between persons in custody and persons not in custody, distinction has evidently been made by the Evidence Act in some matters and they are differently treated. Persons who were, at the time when the statements sought to be proved were made, in custody have been given in some matters greater protection compared to persons not in custody. Confessional or other statements ma....
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....nformation 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. Theor....
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.... interpretation in the United States of America. In considering the authorities of the superior courts in the United States, we would not therefore be incorporating principles foreign to our Constitution, or be proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence developed by a society whose approach to similar problems on account of historical or other reasons differs from ours. In West Coast Hotel Company v. Parrish ((1937) 300 U.S. 379: 81 L. Ed. 703.), in dealing with the content of the guarantee of the equal protection of the laws, Hughes, C. J., observed at p. 400:- " This court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature "is free to recognise degree of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest ". If " the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied ". There is no " doctrinaire require....
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....he rule. The principle of admitting evidence of statements made by a person giving information leading to the discovery of facts which may be used in evidence against him is manifestly reasonable. The fact that the principle is restricted to persons in custody will Dot by itself be a ground for holding that there is an attempted hostile discrimination because the rule of admissibility of evidence is not extended to a possible, but an uncommon or abnormal class of cases. Counsel for the defence contended that in any event Deoman was not at the time when he made the statement attributed to him, accused of any offence and on that account also apart from the constitutional plea, the statement was not provable. This contention is unsound. As we have already observed, the expression " accused of any offence " is descriptive of the person against whom evidence relating to information alleged to be given by him is made provable by s. 27 of the Evidence Act. It does not predicate a formal accusation against him at the time of making the statement sought to be proved, as a condition of its applicability. In that view, the High Court was in error in holding that s. 27 of the Indian....
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....ot been accepted by the High Court and according to the settled practice of this Court, that evidence may be discarded. It was urged that Deoman would not have murdered Sukhdei, because by murdering her, he stood to gain nothing as the properties which belonged to Sukhdei could not devolve upon his wife Dulari in the normal course of inheritance. But the quarrels between Deoman and Sukhdei arose not because the former was claiming that Dulari was heir presumptive to Sukhdei's estate, but because Sukhdei resisted attempts on Deoman's part to dispose of the property belonging to her and to Dulari. The evidence that Deoman slapped Sukhdei and threatened her that he would " smash her face " coupled with the circumstances that on the morning of the murder of Sukhdei, Deoman absconded from the village after washing himself in the village tank and after his arrest made a statement in the presence of witnesses that he had thrown the gandasa in the village tank and produced the same, establishes a strong chain of circumstances leading to the irresistible inference that Deoman killed Sukhdei early in the morning of June 19, 1958. The learned trial Judge held on the evidence....
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.... victim did not agree to the sale of property belonging to her and to her foster child. Having carefully considered the circumstances in which the offence is proved to have been committed, we do not think that any case is made out for not restoring the order imposing the death sentence. We accordingly set aside the order passed by the High Court and restore the order passed by the Court of Session. It may be observed that the sentence of death cannot be executed unless it is confirmed by the High Court. The High Court has not confirmed the sentence, but in exercise of our powers under Art. 136 of the Constitution, we may pass the same order of confirmation of sentence as the High Court is, by the Code of Criminal Procedure, competent to pass. 'We accordingly confirm the sentence of death. SUBBA RAO J.-I have had the advantage of, perusing the judgment of my learned brother, Shah, J. I regret my inability to agree with his reasoning or conclusion in respect of the application of Art. 14 of the Constitution to the facts of the case. The facts have been fully stated in the judgment of my learned brother and they need not be restated here. Article 14 of the Constitution reads: &q....
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....urpose for which it is made. Das, C. J., in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendo[1959] S.C.R. 279. lkar ([1959] S.C.R. 279.) culled out the rules of construction of the equality clause in the context of the principle of classification from the various decisions of this Court and those of the Supreme Court of the United States of America and restated the settled law in the form of the following propositions at pp. 297298: " (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recog....
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....t permissible to rest its decision on some undisclosed and unknown reasons; in that event, a Court would not be enforcing a fundamental right but would be finding out some excuse to support the infringement of that right. It will be convenient at the outset to refer to the relevant sections. Under s. 25 of the Evidence Act, no confession made to a police-officer shall be proved as against a person accused of an offence. Section 26 says that no confession made by any person while he is in the custody of a police- officer, unless it is made in the immediate presence of a 'Magistrate, shall be proved as against such person. Section 27, which is in the form of a proviso, enacts that " when any fact is deposed to as discovered in consequence 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." Section 162 of the Code of Criminal Procedure lays down that no statement made by any person to a police-officer in the course of an investigation shall be used for any purpose at any inquiry or tr....
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....uitted; if included, both of them would be convicted for murder. But A, when he gave the information was in the custody of police, but B was not so. The result is that on the same evidence A would be convicted for murder but B would be acquitted : one would lose his life or liberty and the other would be set free. This illustration establishes that prima facie the provisions of s. 27 of the Evidence Act accord unequal and uneven treatment to persons under like circumstances. Learned Additional Solicitor General tries to efface this apparent vice in the sections by attempting to forge a reasonable basis to sustain the different treatment given to the two groups of accused. His argument may be summarized thus: Accused are put in two categories, namely, (1) accused in custody ; and (2) accused not in custody. There are intelligible differentia between these two categories which have reasonable relation to the objects sought to be achie- ved by the legislature in enacting the said provisions. The legislature has two objects, viz., (i) to make available to the Court important evidence in the nature of confessions to enable it to ascertain the truth ; and (ii) to protect the accused in t....
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....made before a Magistrate after compliance with all the formalities prescribed has certainly greater probative force than that made before outsiders. On the other hand, though extra. judicial confessions are relevant evidence, they are received by Courts with great caution. That apart, it is a pure surmise that the legislature should have thought that the confession of an accused in custody to a police-officer with a condition attached would be a substitute for an extra-judicial confession that he might have made if he was free. Broadly speaking, therefore, there is no justification for the suggestion that the prosecution is in a better position in the matter of establishing its case when the accused is out of custody than when he is in custody. Moreover, this circumstance has not been relied upon by the State in the High Court but is relied upon for the first time by learned counsel during his arguments. In my view, there is no practical difference at all in the matter of collecting evidence between the two categories of persons and that the alleged difference cannot reasonably sustain a classification. Re. (b): The second circumstance relied upon by the learned counsel leads us t....
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....peror (A.I.R. 1931 Lah. 278.) had before it a statement made by an accused to the police which led to the discovery of the dead-body. In re Peria Guruswamy and Another (A.I.R. 1941 Mad. 765.) is a decision of a division bench of the Madras High Court wherein the question of admissibility of a confession made by a person to a police officer before he came into his custody was considered. I have cited the cases not for considering the validity of the questions decided therein, namely, when a person can be described as an accused and when he can be considered to have come into the custody of the police, but only to controvert the argument that such confessions are in practice non-existent. I have given only the representative decisions of various High Courts and I am sure if a research is made further instances will be forthcoming. The historical background of s. 27 also does not warrant any assumption that the legislature thought that cases of persons not in custody of a police-officer making confessions before him would be very few and, therefore, need not be provided for. Sections 25, 26 and 27 of the Indian Evidence Act correspond to ss. 148, 149 and 150 of the Code of Criminal ....
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....n not in custody to a police-officer from the operation of s. 27 of the Evidence Act on the ground that such cases would be rare ? Nothing has been placed before us to indicate the reasons for the omission of the word " or " in s. 27 of the Evidence Act. If that be the intention of the legislature, why did it enact s. 25 of the Evidence Act imposing a general ban on the admissibility of all confessions made by accused to a police-officer ? Section 27 alone would have served its purpose. On the other hand, s. 25 in express terms provides for the genus, i.e., accused in general, and s. 27 provides for the species out of the genus, namely, accused who are in custody. A general ban is imposed by one section and it is lifted only in favour of a section of accused of the same class. The omission appears to be rather by accident than by design. In the circumstances it is not right to speculate and hold that the legislature consciously excluded from the operation of s. 27 of the Act accused not in custody on the ground that they were a few in number. During the course of the arguments of the learned counsel for the respondent, to the question put from the Bench whether an accused....
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....support of the contention that the legislature can exclude from the operation of s. 27 accused not in custody on the ground that they are a few in number. In support of this contention learned counsel for the appellant cited a decision of this Court and some decisions of the Supreme Court of the United States of America. The decision of this Court relied upon is that in Sakhawat Ali v. The State of Orissa ([1955] 1 S.C.R. 1004.). In that case, Bhagwati, J., observed at p. 1010 thus: "The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution." These observations, though at' first sight appear to support the appellant, if understood in the context of the facts and the points decided in ....
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....ves and health of the people, and requiring for its successful practice general education and technical skill, as well as good character, it is obviously one of those vocations where the power of the state may be exerted to see that only properly qualified persons shall undertake its responsible and difficult duties." Then the learned Judge proceeded to state " Such exceptions proceeds upon the theory that those who have acceptably followed the profession in the community for a period of years may be assumed to have the qualifications which others are required to manifest as a result of an examination before a board of medical experts." The classification is, therefore, not sustained upon any mathematical calculation but upon the circumstance that the groups excluded were experienced doctors whereas those included were not. In Jeffrey Manufacturing Company v. Harry O. Blagg ((1915) 235 U.S. 571: 59 L. Ed. 364.) the Supreme Court of America justified a classification under Ohio Workmen's Compensation Act which made a distinction between employers of shops with five or more employees and employers of shops having a lesser number of employees. Employers of the for....
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....f railways less than 100 miles in length from the operation of the statute forbidding railway companies with yards or terminals in cities of the state to conduct switching operations across public crossings in cities of the first or second class with a switching crew of less than one engineer, a fireman, a foreman, and three helpers. McKenna, J., sustained its constitutional validity holding that the classification was not arbitrary. The observations cited do not in any way detract from the well-established doctrine of classification, but only lay down that the validity of a classification must be judged not on abstract theories but on practical considerations. Where the legislature prohibited the use of shoddy, new or old, even when sterilized, in the manufacture of comfortables for beds, the Supreme Court of America held in Weaver v. Palmer Brothers Co. ((1926) 270 U. S. 402 ; 70L. Ed. 654.) that the prohibition was not reasonable. It was held that constitutional guaranties may not be made to yield to mere convenience. Holmes, J., in his dissenting judgment observed at p. 659 thus: "A classification is not to be pronounced arbitrary because it goes on practical grounds and ....
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....to sustain a classification. But if the argument of the learned counsel, namely, that the legislature can in its discretion exclude some and include others from the operation of the Act in spite of their identical characteristics on the ground only of numbers be accepted, it will be destructive of the doctrine of equality itself. Therefore, the said and similar decisions do not justify classification on the basis of numbers or enable the legislature to include the many in and exclude the few from the operation of law without there being an intelligible differentia between them. Nor do they support the broad contention that a legislature in its absolute discretion may exclude some instances of identical characteristics from an Act on alleged practical considerations. Even to exclude one arbitrarily out of a class is to offend against Art. 14 of the Constitution. Let us now apply the said principles to the facts of the present case. Assuming for a moment that the ratio between the accused in the context of confessions is 1000 in custody and 5 out of custody, how could that be conceivably an intelligible ground for classification ? Assuming again that the legislature thought such an....
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....es of accused ? It is no answer to this question to point out that in the case of an accused in custody a condition has been imposed on the admissibility of his confession. The condition imposed may be to some extent affording a guarantee for the truth of the statement, but it does not efface the clear dis- tinction made between the same class of confessions. The vice lies not in the condition imposed, but in the distinction made between these two in the matter of admissibility of a confession. The distinction can be wiped out only when confessions made by all accused are made admissible subject to the protective condition imposed. Not only the alleged differentia are not intelligible or germane to the object sought to be achieved, the basis for the distinction is also extremely arbitrary. There is no acceptable reason why a confession made by an accused in custody to a police-officer is to be admitted when that made by an accused not in custody has to be rejected. The condition imposed in the case of the former may, to some extent, soften the rigour of the rule, but it is irrelevant in considering the question of reasonableness of the classification. Rankin, J., in Durlav Namasudr....
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....hed the " gandasa " Ex. I out of the water; and that this " gandasa " was found by the Chemical Examiner and Serologist to be stained with human blood ". The High Court held that the said circumstances are by no means sufficient to prove the guilt of the accused-appellant beyond reasonable doubt. On that finding, the High Court gave the benefit of doubt to the accused and acquitted him of the offence. The finding is purely one of fact and there are no exceptional circumstances in the case to disturb the same. In the result, the appeal fails and is dismissed. HIDAYATULLAH J.-The facts of the case have been stated in full by Shah, J., in the judgment which he has delivered, and which I had the advantage of reading. I have also had the advantage of reading the judgment of Subba Rao, J. I respectfully agree generally with the conclusions and the reasons, therefor, of Shah, J. I wish, however, to make a few observations. Section 27 of the Indian Evidence Act is in the Chapter on admissions, and forms part of a group of sections which are numbered 24 to 30, and these sections deal with confessions of persons accused of an offence. They have to be read with ss. ....
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....g the confession and only if there is reason to believe that they are voluntary. Section 46 of the Code provides that in making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. When an offence is committed and investigation starts, the police have two objects in view. The first is the collection of information, and the second is the finding of the offender. In this process, the police question a number of persons, some of whom may be only witnesses and some who may later figure as the person or persons charged. While questioning such persons, the police may not caution them and the police must leave the persons free to make whatever statements they wish to make. There are two checks at this stage. What the witnesses or the suspects say is not be used at the trial, and a person cannot be compelled to answer a question, which answer may incriminate him. It is to be noticed that at that stage though the police may have suspicion against the offender, there is no difference between him and other witnesses, who are questioned. Those who turn o....
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....om the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it." Lord Sumner added: " It is not that the law presumes such statements to be untrue but from the danger of receiving such evidence Judges have thought it better to reject it for the due administration of justice: Reg. v. Baldry ((1852) 5 Cox C.C. 523.). Accordingly when hope or fear were not in question, such statements were long regularly admitted as relevant, though with some reluctance, and subject to strong warnings as to their weight." Even so, in the judgment referred to by Lord Sumner, Parke, B., bewailed that the rule had been carried too far out of " too much tenderness towards prisoners in this matter ", and observed : " I confess that I cannot look at the decisions without some shame, when I consider what objections have prevailed to prevent the reception of confessions in evidence Justice and commonsense have too frequently been sacrificed at the shrine of mercy." Whatever the views of Parke, B., Lord Sumner points out that " when Judges ....
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....excluded if they were induced by hope, fear, threat, etc. When the Indian law was enacted in 1861, it is commonplace that the statute was drafted in England. Two departures were made, and they were () that no statement made to a police officer by any person was provable at the trial which included the accused person, and (2) that no caution was to be given to a person making a statement. In so far as the accused was concerned, he was protected from his own folly in confessing to a charge both after and before his custody unless he respectively did so in the immediate presence of a Magistrate, or his confession was recorded by a Magistrate. In either event, the confession had to be voluntary and free from taint of threat, promise, fear, etc. The law was framed to protect a suspect against too much garrulity before he know that he was in danger which sense would dawn on him when arrested and yet left the door open to voluntary statements which might clear him if made but which might not be made if a caution was administered. Without the caution an innocent suspect is not in a position to know his danger, while a person arrested knows his position only too well. Without the caution, ....
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.... in the English Report Series. In February Session, 1784, Dorothy Mosey was tried for shop-lifting and a confession had been made by her and goods found in consequence of it, as in the above case. Buller, J., (present Mr. Baron Perryn, who agreed), said: " A prisoner was tried before me (Buller, J.) where the evidence was just as it is here. I stopped all the witnesses when they came to the confession. The prisoner was acquitted. There were two learned Judges on the bench, who told me, that although what the prisoner said was not evidence, yet that any facts arising afterwards may be given in evidence, though they were done in consequence of the confession. This point, though it did not affect the prisoner at the bar, was stated to all the Judges: and the line drawn was, that although confessions improperly obtained cannot be received in evidence, yet that the acts done after- wards may be given in evidence, though they were done in consequence of the confession." Where, however, no fact was discovered, the statement was not held admissible. See Rex v. Richard Griffin (1) and Rex v. Francis Jones (2). In Rex v. David Jenkins(1), the prisoner was con victed before Bayle....
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....be noticed that in the Royal Commission on Police Powers and Procedure (1928-29) CMD 3297, nothing is said to show that there is anything invidious in making statements leading to the discovery of a relevant fact admissible in evidence, when such statements are made by persons in custody. The suggestions and recommendations of the Commission are only designed to protect questioning of persons not yet taken in custody or taken in custody on a minor charge and the use of statements obtained in those circumstances. The law has thus made a classification of accused persons into two: (1) those who have the danger brought home to them by detention on a charge; and (2) those who are yet free. In the former category are also those persons who surrender to the custody by words or action. The protection given to these two classes is different. In the case of persons belonging to the second category the law has ruled that their statements are not admissible, and in the case of the first category, only that portion of the statement is admissible as is guaranteed by the discovery of a relevant fact unknown before the statement to the investigating authority. That statement may even be confessi....