State of U.P. vs Deoman Upadhyaya

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 1 of 1960

Decision Date: 6 May 1960

Coram: J.C. Shah, S.K. Das, J.L. Kapur, M. Hidayatullah, K. Subba Rao

The judgment in State of U. P. versus Deoman Upadhyaya was delivered by the Supreme Court of India on 6 May 1960. The opinion was authored by Justice J. C. Shah and the bench included Justices S. K. Das, J. L. Kapur and M. Hidayatullah. The case is reported in the All India Reporter at page 1125, citation 1960 AIR 1125, and is referenced in several subsequent reports. The petitioner in the proceeding was the State of Uttar Pradesh and the respondent was Deoman Upadhyaya. The issues presented concerned admissibility of police statements, operation of Section 27 of the Indian Evidence Act and Section 162(2) of the Code of Criminal Procedure, and whether provisions violated Article 14 of the Constitution. The factual background, as summarized in the headnote, indicated that the respondent was charged with the murder of a woman named Sukhdei on the early morning of 19 June 1958. The prosecution's case relied entirely on circumstantial evidence consisting of six principal facts. First, on the evening of 18 June an altercation occurred between the respondent and Sukhdei during which the respondent slapped her and threatened to smash her face. Second, also on the evening of 18 June the respondent borrowed a gandasa, a traditional weapon, from a person identified as Mahesh. Third, before daybreak on 19 June the respondent was observed moving toward the village tank and taking a bath in the tank. Fourth, after bathing the respondent immediately absconded from the scene, avoiding any further contact with law‑enforcement officials present. Fifth, the respondent was apprehended on 20 June and, on 21 June, he offered to surrender the gandasa, claiming he had thrown it into the tank and subsequently retrieved it. Sixth, forensic examination established that the retrieved gandasa was stained with human blood, providing material evidence linking the weapon to the homicide. The Sessions Judge accepted all of this circumstantial evidence, concluded that the only reasonable inference was that the respondent had committed the murder, and sentenced him to death. On appeal, the High Court held that Section 27 of the Indian Evidence Act violated Article 14 of the Constitution because it created an unjustifiable distinction between persons in custody and persons not in custody. The Court reasoned that statements made by persons in custody were admissible to lead to discovery, whereas similar statements made by persons not in custody were excluded. Consequently, the High Court declared Section 27 and the corresponding provision of Section 162(2) of the Code of Criminal Procedure void as they infringed the equality guarantee of Article 14. As a result of this declaration, the High Court excluded the respondent's statement that he had thrown the gandasa into the tank, holding that it was inadmissible. The Court also found the allegation that the appellant had borrowed the gandasa from Mahesh to be unreliable. The rest of the evidence

In this case the Court held, with the majority comprising S. K. Das, J., L. Kapur, J., Hidayatullah and Shah, JJ., and a dissent by Subba Rao, J., that Section 27 of the Indian Evidence Act and subsection (2) of Section 162 of the Code of Criminal Procedure did not contravene Article 14 of the Constitution and therefore were not void. The Court explained that Article 14 does not require every law to be uniformly applicable to all persons; rather, it forbids arbitrary distinctions that confer rights or privileges on a selected class while denying them to others who are similarly situated and for whom no reasonable justification for different treatment exists.

The Court observed that the legislature has drawn a real distinction between persons who are in custody and those who are not, by enacting separate rules concerning the admissibility of statements, whether confessional or otherwise, made by each group. In evaluating the constitutional validity of a statute on the ground of equal treatment, the Court noted that the legislature must address practical problems and should not be judged merely by hypothetical situations that the statute might have covered but did not. A doctrinaire approach, the Court warned, would be inappropriate. Although statements made by persons not in custody that lead to the discovery of facts are a possible but rare class, a person who approaches a police officer investigating an offence and offers information that results in the discovery of an incriminating fact is deemed to have surrendered himself to the police and, accordingly, is considered to be in custody within the meaning of Section 27.

The Court asserted that a law designed to address the circumstances where it is most needed cannot be invalidated simply because other situations exist to which it might have been applied. The purpose of the legislation, the Court said, is two‑fold: to punish offenders who are proven guilty and to protect individuals who may be compelled to make confessional statements. Accordingly, the provisions of Section 27 are reasonable because they permit the admission of information on the basis that the discovery of a fact following a statement made by a person in custody serves as a guarantee of the truth of that statement. The Court referred to Legal Remembrancer v. Lalit Mohan Singh Roy, (1921) I.L.R. 49 Cal. 167 and Santokhi Beldar v. King Emperor, (1933) I.L.R. 12 Pat. 241, and relied on West Coast Hotel Company v. Parrish, (1937) 300 U.S. 379: 81 L.Ed. 703; Weaver v. Palmer Bros. Co., (1926) 270 U.S. 402: 70 L.Ed. 654; and Miller v. Wilson, (1915) 236 U.S. 373: 59 L.Ed. 628. The Court further explained that the expression “a person accused of any offence” in Section 27 is merely descriptive of the individuals against whom evidence is sought to be led in a criminal proceeding and does not require the person to have been formally accused at the time the statement leading to the discovery was made.

In this case the Court observed that the respondent’s statement that he would recover the gandasa he had thrown into the tank was admissible as evidence and could be used against him. The Court held that, even if the fact that the respondent had borrowed the gandasa from Mahesh Were were excluded, the statement when read together with the remaining proved facts formed a chain of circumstances that was compatible only with the respondent’s guilt and incompatible with any claim of innocence. The Court applied the principle stated in Pakala Narayan Swami v. Emperor, (1939) L. R. 66 I.A. 66.

Justice Subba Rao expressed the view that Section 27 of the Indian Evidence Act was void because it contravened Article 14 of the Constitution. He explained that the classification of accused persons for the purpose of admitting their confessions into the two categories of those in custody and those not in custody was not founded on any intelligible differentia and was not reasonable. The Court noted that it was merely a conjecture that the Legislature might have believed that a confession made by an accused in custody, which led to the recovery of property, could substitute for an extra‑judicial confession that the accused might have made if he were not in custody.

The Court rejected the argument that the number of accused not in custody who made statements or confessions leading to a discovery was insignificant and therefore need not be provided for. It observed that until the year 1872 the Legislature had treated accused persons in custody and those not in custody alike, but that in 1872, by an accidental omission of the word “or,” a distinction was introduced. Consequently, the Court found it untenable to speculate that the Legislature had consciously excluded from the operation of Section 27 those accused not in custody on the ground that they were few in number. Moreover, the authorities cited did not support a classification based on numerical considerations, nor did they permit the Legislature to include the many and exclude the few without an intelligible differentia.

The Court further held that the act of taking a person into custody did not amount to giving a statutory or implied caution and therefore did not supply any intelligible differentia for the classification. The Court referred to In re Mottai Thevar, A.I.R. 1952 Mad. 586; Durlav Namasudra v. King Emperor, (1932) I.L.R. 59 Cal. 1040; Deonandan Dusadh v. King Emperor, (1928) I.L.R. 7 Pat. 411; Santokhi Beldar v. King Emperor, (1933) I.L.R. 12 Pat. 241; Bharosa Ramdayal v. Emperor, A.I.R. 1941 Nag. 86; and Jalla v. Emperor, A.I.R. 1931 Lah. 278 as authorities supporting this view. The Court distinguished Sakhawat Ali v. The State of Orissa, [1955] 1 S.C.R. 1004, and also considered the foreign decisions in John A. Watson v. State of Maryland, (1910) 218 U.S. 173: 54 L. Ed. 987; Jeffrey Manufacturing Co. v. Harry O. Blagg, (1915) 235 U.S. 571: 59 L. Ed. 364; St. Louis, Iron Mountain & Southern Railway Co. v. State of Arkansas, (1916) 240 U.S. 518: 60 L. Ed. 776; Weaver v. Palmer Bros. Co., (1926) 270 U.S. 402: 70 L. Ed. 654; and West Coast Hotel Company v. Parrish, (1937) 300 U.S. 379: 81 L. Ed. 703.

In his discussion, the Court referred to the United States decision Parrish, reported in 1937 at 300 U. S. 379, 81 L. Ed. 703. The Court then quoted Justice M. Hidayatullah, noting that a constant distinction existed between a person who was not alleged to have committed an offence and was not in police custody and a person who was both accused and detained. The Court observed that Section 27 of the Indian Code had been taken wholesale from English law. It further explained that both the English and Indian statutes showed greater concern for a person who gave a statement before the danger of self‑incrimination was made clear to him than for a person who already understood the danger. Under English law the requirement of a caution served to warn the individual, whereas in India the mere fact of being placed in custody served the same purpose. Consequently the law divided accused persons into two categories: those whose danger was made known to them by being detained on a charge and those who remained at liberty. The protection afforded to each class differed. The purpose of the law was to ensure fairness, which was pursued by prohibiting the admission of an unguarded statement. The necessity of the caution was therefore fulfilled when the accused was in police custody. The Court held that a person in custody received sufficient protection because only the portion of his statement that revealed a material fact otherwise unknown to the police could be admitted. Various precedents were discussed in support of this reasoning.

The judgment that follows relates to Criminal Appeal No. 1 of 1960, an appeal from the order of the Allahabad High Court dated 11 September 1959 in Criminal Appeal No. 325/1959. Counsel for the appellant included the Additional Solicitor‑General of India and two other lawyers, while counsel for the respondent comprised three advocates. The Attorney‑General for India appeared as intervenor together with the Solicitor‑General and other counsel. The appeal was heard on 6 May 1960, and the judgments of Justices S. K. Das, L. Kapur and J. C. Shah were delivered by Justices Shah, K. Subba Rao and M. Hidayatullah, each writing a separate opinion.

Justice Shah noted that the Civil and Sessions Judge of Gyanpur had convicted Deoman Upadhyaya, the respondent, of intentionally causing the death of Sukhdei on the early morning of 19 June 1958 at Anandadih village, Varanasi district, and had sentenced him to death pending confirmation by the High Court. The High Court set aside the conviction and sentence. The State of Uttar Pradesh therefore appealed the acquittal, obtaining a certificate of appeal. The factual background disclosed that Deoman was married to Dulari, who had been orphaned in childhood and raised by her cousin Sukhdei. Sukhdei had transferred certain agricultural lands, inherited from her father, to Dulari. Both Dulari’s lands and Sukhdei’s lands were being cultivated by Mahabir, who was Deoman’s uncle. Mahabir and Deoman were negotiating the sale of some of these lands.

In this case, the evidence showed that the disputed land lay at the village of Anandadih, but Sukhdei did not consent to its sale. According to the prosecution, on the evening of 18 June 1958 an altercation broke out between Deoman and Sukhdei over the proposed transfer of those lands. During that confrontation Deoman slapped Sukhdei on the face and threatened that he would smash her face. The next morning, before daylight, Deoman is said to have carried out a murderous attack on Sukhdei. He used a large axe‑like weapon called a gandasa, which he had borrowed that same evening from a man named Mahesh. While Sukhdei was asleep in the courtyard near her house, Deoman struck her with the gandasa, causing instant death. After the killing he is alleged to have thrown the gandasa into the village tank, washed himself, and then fled from Anandadih. He was apprehended in the afternoon of 20 June near the village of Manapur. On 21 June Deoman told the investigating officer that he had thrown the gandasa into the tank and offered to return it. In the presence of the officer and two witnesses, he waded into the tank, retrieved the same gandasa, and handed it over. The chemical examiner and serologist who examined the instrument found it stained with human blood.

The Sessions Judge, after evaluating the evidence presented by the prosecution, recorded the following facts as proved: (a) an altercation on the evening of 18 June 1958 between Deoman and Sukhdei over the proposed land transfer, during which Deoman slapped her and threatened to smash her face; (b) Deoman’s borrowing of the gandasa from Mahesh on that evening; (c) a witness’s observation that, before daybreak on 19 June, Deoman hurried toward the tank and was later seen taking a bath in the tank; (d) Deoman’s immediate flight from Anandadih after the murder, resulting in his absence from the village on 19 June; and (e) on 21 June, Deoman’s voluntary presentation of the gandasa in the presence of the investigating officer and two witnesses, his retrieval of the weapon from the tank, and the subsequent forensic finding that the weapon was stained with human blood. The judge concluded that, based on these facts, the only unavoidable conclusion was that Deoman had committed the murder of Sukhdei in the early hours of 19 June 1958 at Anandadih. He observed that Deoman’s movements, together with his recovery of the blood‑stained gandasa that had been borrowed only the evening before the brutal killing, left no doubt that Deoman, and no other person, was responsible for the calculated and cold‑blooded murder.

At the hearing on the reference made by the Court of Session for confirmation of the sentence and on the appeal filed by Deoman before the High Court at Allahabad, it was contended that the statement made by Deoman before the police officer and two witnesses on 21 June 1958, in which he said that he had thrown the gandasa into the tank and that he would later retrieve it and hand it over, was inadmissible. The contention was based on the proposition that section 27 of the Indian Evidence Act, which rendered such a statement admissible, distinguished between persons who were in custody and those who were not in custody, and therefore violated article 14 of the Constitution. The Division Bench hearing the appeal referred two questions to a Full Bench of the court: first, whether section 27 of the Indian Evidence Act was void because it offended the provisions of article 14 of the Constitution; and second, whether sub‑section (2) of section 162 of the Code of Criminal Procedure, insofar as it related to section 27 of the Indian Evidence Act, was void. The reference was heard by judges M. C. Desai, B. Mukherjee and A. P. Srivastava. Judges Mukherjee and Srivastava expressed an opinion on the first question, stating that section 27 of the Indian Evidence Act created an unjustifiable discrimination between “persons in custody” and “persons out of custody”, thereby offending article 14 of the Constitution and rendering the provision unenforceable in its present form. On the second question they held that sub‑section (2) of section 162 of the Code of Criminal Procedure, insofar as it related to section 27 of the Indian Evidence Act, was void. Judge Desai answered both questions in the negative. After receiving the opinion of the Full Bench, another Division Bench considered the reference for confirmation of the death sentence and the appeal filed by Deoman. In light of the Full Bench’s opinion, the judges excluded from consideration the statement made by Deoman in the presence of the police officer and the witnesses offering to point out the gandasa that he had thrown into the village tank. They also held that the narrative that Deoman had borrowed a gandasa on the evening of 18 June 1958 from Mahesh was unreliable. The judges accepted the conclusions of the Sessions Judge on points (a), (c) and (d) and also on point (e) to the extent that it related to Deoman’s production of the gandasa after wading into the tank in the presence of the police officer and the witnesses. However, finding that the evidence was insufficient to prove Deoman’s guilt beyond reasonable doubt, they acquitted him of the offence of murder. At the instance of the State of Uttar Pradesh, the High Court granted a certificate stating that, having regard to the general importance of the question of the constitutional validity of section 27 of the Indian Evidence Act, the case was fit for appeal to the Supreme Court.

In the present appeal, the High Court issued a certificate stating that, given the general importance of the question concerning the constitutional validity of section 27 of the Indian Evidence Act, the matter was appropriate for presentation to this Court. Section 27 belongs to a series of provisions that deal with the relevance of certain admissions made by individuals who are accused of offences. The broader range of sections, namely sections 24 through 30, govern the admissibility of confessions, that is, statements in which a person declares or suggests that he has committed a crime. Section 24 provides that a confession made by an accused person in a criminal proceeding is inadmissible if the Court is satisfied that the confession was induced by an inducement, threat, or promise that relates to the charge and that the pressure came from a person in authority. Section 25 imposes an absolute prohibition on the use of any confession made to a police officer at trial. This prohibition operates in the same manner whether or not the accused was in custody at the time the confession was made, and it applies even if the individual had not yet been formally accused when the confession was given. The expressions “accused person” in section 24 and “a person accused of any offence” in section 25 bear the same meaning and refer to the individual against whom evidence is sought in a criminal proceeding. The Judicial Committee of the Privy Council, in Pakala Narayan Swamy v. Emperor (1939) L.R. 66 I.A. 66, observed that section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation. Consequently, the phrase “accused of any offence” merely describes the individual whose confession is excluded, and it does not impose a condition that the person must already be accused at the time of making the statement for the exclusion to operate.

Section 26, by its first paragraph, states that no confession made by any person while he is in the custody of a police officer shall be proved against an accused person unless the confession is made in the immediate presence of a Magistrate. Thus, while section 25 bars the use of confessions made to police officers regardless of custody, section 26 specifically prohibits the use of confessions made by a person who is already in custody unless the confession occurs directly before a Magistrate. Section 27, which is framed as a proviso, provides that when any fact is deposed to as discovered because of information received from a person accused of any offence while in police custody, then the portion of that information that directly relates to the discovered fact may be proved, whether that portion amounts to a confession or not. The phrase “accused of any offence” in section 27, like in section 25, serves only to describe the person concerned and does not impose a temporal condition. Accordingly, section 27 renders certain statements made by an accused while in police custody admissible, on the ground that the truth of those statements is assured by the subsequent discovery of a fact, which eliminates the suspicion of taint and permits the statements to be proved to the extent that they distinctly relate to the discovered fact.

In this case, the Court noted that Section 27 of the Indian Evidence Act provides that when a fact is proved as having been discovered as a result of information obtained from a person accused of an offence while that person is in the custody of a police officer, any part of that information—whether it constitutes a confession or not—may be proved if it relates specifically and distinctly to the fact that was discovered.

The Court explained that the words “accused of any offence” in Section 27, as in Section 25, describe the person whose statements are at issue; consequently, Section 27 makes certain statements made by that person while he was in police custody admissible. The provision is based on the principle that although confessional or other statements made in police custody are generally considered tainted and therefore inadmissible, the truth of the information can be presumed when it leads to the discovery of a fact, and such information may be admitted so far as it directly relates to the discovered fact.

Although Section 27 is framed as a proviso to Section 26, the Court clarified that the two sections do not necessarily address the same type of evidence. Section 26 imposes a blanket prohibition on the proof of confessional statements made in police custody, whereas Section 27 concerns the admissibility of information—confessional or otherwise—that results in the discovery of facts. Under Section 27, only that portion of the information that is directly connected to the fact discovered is admissible.

The Court further observed that Section 26 allows a confession made in the immediate presence of a Magistrate to be proved in its entirety. By contrast, Section 162 of the Code of Criminal Procedure also sets out a rule of evidence. For the purposes of this case, that rule prohibits the use of statements made to a police officer during an investigation under Chapter XIV of the Code in any enquiry or trial in which the person who made the statement is charged with an offence, except to the extent that such statements are admissible under Section 27 of the Evidence Act.

After analyzing Sections 24 to 27 of the Indian Evidence Act together with Section 162 of the Code of Criminal Procedure, the Court derived several key propositions. First, regardless of whether a person is in custody or not, a confession made to a police officer—or a confession obtained by inducement, threat, or promise related to the charge and coming from a person in authority—is not provable against that person in any proceeding where he is charged with an offence. Second, a confession made while the person is in police custody to someone other than a police officer is not provable unless it is made in the immediate presence of a Magistrate. Third, only that part of the information given by a person in police custody which distinctly relates to the fact discovered, whether confessional or not, may be proved in a proceeding where the person is charged with the offence. Fourth, a statement—confessional or otherwise—made by a person who is not in custody to another person who is not a police officer may be proved if it is otherwise relevant. Fifth, a statement made to a police officer during an investigation under Chapter XIV of the Code of Criminal Procedure cannot be used for any purpose except to the extent permitted by Section 27 of the Evidence Act.

In this case, the Court explained that a statement made by a police officer to a person who is not a police officer could not be proved in a proceeding in which the person was charged with an offence unless the statement was made in the immediate presence of a Magistrate. The Court further observed that the portion of information supplied by a person while in police custody, whether the information is confessional or not, becomes admissible only to the extent that it directly relates to the fact discovered by that information and no further, and that such limited information may be proved in a proceeding in which the person is charged with the commission of an offence. The Court then held that a statement, whether or not it amounts to a confession, made by a person who is not in custody to another individual who is not a police officer may be proved provided that the statement is otherwise relevant to the matter before the court. Next, the Court stated that a statement made by a person to a police officer during the course of an investigation under Chapter XIV of the Code of Criminal Procedure cannot, except to the extent permitted by section 27 of the Indian Evidence Act, be used for any purpose in any enquiry or trial relating to any offence that was under investigation at the time the statement was made when the person concerned was an accused. Consequently, the Court concluded that a confession made by a person who is not in custody is admissible as evidence against that person in a criminal proceeding unless the confession was obtained by inducement, threat or promise as described in section 24, or unless it was made to a police officer. The Court further clarified that a non‑confessional statement is admissible in all proceedings unless it was made to a police officer during an investigation and the proceeding in which it is sought to be proved is the trial of that same person for the offence that was under investigation when the statement was made. While information given by a person in custody is admissible to the limited extent that it directly relates to a discovered fact, pursuant to section 162 of the Code of Criminal Procedure, the Court noted that the same kind of information given by a person who is not in custody to a police officer during an investigation is not admissible. The Court acknowledged that this distinction may appear paradoxical, but explained that Sections 25 and 26 were enacted not because the law presumed such statements to be false, but because, in view of the tainted source of the evidence, they were prohibited from being received as evidence. The Court observed that the class of persons requiring the greatest protection were those in police custody, whereas persons not in custody did not require the same degree of protection. Finally, the Court emphasized that, by the combined operation of section 27 of the Evidence Act and section 162 of the Code of Criminal Procedure, the admissibility of a statement made to a police officer that leads to the discovery of a fact depends on whether the maker of the statement was in custody at the time the statement was made.

In determining whether a statement was made while a person was in custody, the Court examined the rule that a statement was admissible only if the maker was in custody at the time of making it; if the maker was not in custody, the statement was not admissible. The Court then considered whether this distinction denied persons in custody the guarantee of “equality before the law, or the equal protection of the laws” as contemplated in Article 14 of the Constitution. The Court explained that Article 14 does not require every law to be identical for all citizens; rather, it forbids arbitrary or unjustifiable distinctions that confer rights or privileges on a select group drawn from a larger, similarly situated class without a reasonable basis for different treatment. The Constitution therefore allowed the State a broad discretion to classify persons, objects, or transactions for legislative purposes. Accordingly, the Evidence Act created a distinction between persons who were in custody and those who were not, and treated these two groups differently. The Court noted that, in certain contexts, persons who were in custody at the time of making a statement received greater protection than those who were not. Statements made by persons not in custody could be admitted as evidence unless they fell within Sections 24 or 25, whereas confessional statements made by persons in custody were generally inadmissible unless taken in the presence of a Magistrate. The Court held that this division between custodial and non‑custodial persons concerning the admissibility of statements related to the offense charged was neither arbitrary nor artificial; the legislature had deliberately created two separate classes and enacted distinct rules for each. The Court further observed that the Evidence Act itself did not bar the use of information supplied by a non‑custodial person if the information related to facts discovered, but Section 162 of the Code of Criminal Procedure imposed a ban on using statements made to a police officer during an investigation when the maker was not in police custody, even if the statement led to the discovery of a fact. The Court clarified that this statutory prohibition operated independently of the Evidence Act’s provisions on admissibility of statements and, in practice, had limited effect on the overall distinction between custodial and non‑custodial persons.

The Court pointed out that when a person who was not in custody approached a police officer and offered information that could lead to the discovery of a fact relevant to a charge, such a person could be deemed to have submitted himself to police custody. Section 46 of the Code of Criminal Procedure did not require any formal procedure before a person could be said to be taken into custody; a voluntary submission, whether by words or actions, was sufficient. Consequently, a non‑custodial individual who directly provided verbal information to a police officer that might be used as evidence against him could be considered to have placed himself under the custody of that officer within the meaning of Section 27 of the Indian Evidence Act. The Court cited earlier judgments to support this view and noted that, while exceptional situations might arise where a person furnished information without physically appearing before the investigating officer—such as by writing a letter or making a telephone call—these instances were unusual. Nonetheless, the statutory framework distinguished between statements made to police officers by persons in custody and those made by persons not in custody, and this distinction remained substantively significant in determining the admissibility of such statements at trial.

When a person who is not already in police custody approaches an officer who is investigating an offence and voluntarily offers information that may lead to the discovery of a fact bearing on a charge that could be made against him, the law may treat that conduct as a surrender to the police. Section 46 of the Code of Criminal Procedure does not require any special formality before a person can be said to be taken into custody; a simple submission to custody by words or by conduct is sufficient. Accordingly, a person who directly tells a police officer, by oral statement, information that could be used as evidence against him may be regarded as having submitted himself to the custody of that officer within the meaning of section 27 of the Indian Evidence Act. This principle has been recognized in cases such as Legal Remembrancer v. Lalit Mohan Singh (1) and Santokhi Beldar v. King Emperor (2). The Court also acknowledged that exceptional situations can be imagined in which a person conveys information without physically appearing before the investigating officer, for example by sending a written letter, a telephonic communication, or any other message. However, when assessing whether a statute is unconstitutional on the ground that it treats all similarly situated persons alike, the Court emphasized that the legislature must confront practical problems rather than hypothetical possibilities. The assessment should not be reduced to a theoretical enumeration of alternative situations that the statute might have covered but does not. As repeatedly stated in the context of equal‑protection challenges, a doctrinaire approach must be avoided. Typically, an individual who has committed an offence but is not in custody would not, without first surrendering, voluntarily give information to the investigating officer that leads to material evidence supporting a charge against him.

The legislature enacts provisions to address realistic scenarios likely to arise in everyday affairs. Although it is theoretically possible that an offender who is not in custody might provide information to the police without surrendering, thereby enabling the discovery of a crucial fact, such an occurrence would be exceedingly rare. The Court noted that no case had been brought before it alleging that a person, without having surrendered, gave information to a police officer during the investigation that later resulted in evidence used against him. Authorities such as Deonandan Dasadh v. King Emperor (1), Santokhi Beldar v. King Emperor (2), Durlav Namasudra v. Emperor (3), In re Mottai Thevar (4) and others involved circumstances where the accused either were already in the actual custody of police officers or had surrendered themselves before making the statements that led to the discovery of facts. Consequently, those decisions do not demonstrate the existence of a substantial class of persons not in custody who provide information to police that becomes evidential against them. The Court therefore concluded that the statutory scheme, as applied, does not create an unreasonable classification inconsistent with the principle of equal protection.

In the judgments of Peria Guruswami (5), Bharosa Ramdayal v. Emperor (6) and Jalla v. Emperor (7), together with other cases referred to earlier, the Court observed that each accused who gave statements that led to the discovery of facts was either already in the actual custody of the police or had voluntarily surrendered before making those statements; consequently, those decisions do not demonstrate a substantial class of individuals who are free‑not‑in‑custody yet provide information to investigators that later becomes admissible evidence against them. The Court noted that persons who are in custody and those who are not in custody do not occupy the same position and therefore do not merit identical protection under the law, and it asked whether a mere theoretical possibility of some inequality in the admissibility‑of‑evidence rules between these two categories can, by itself, justify striking down a beneficial evidentiary provision. Turning to the constitutional guarantee, the Court explained that Article 14 of the Indian Constitution was adopted from the terminal clause of section 1 of the Fourteenth Amendment of the United States Constitution, and it is reasonable to infer that the Constituent Assembly, when embedding the principle of equal protection, was aware of the United States’ judicial interpretation of that clause. The Court further held that referring to the authorities of the United States Supreme Court does not import foreign principles into Indian law, nor does it rest on a tenuous similarity of language between distinct legal systems that have developed under different historical circumstances. In citing West Coast Hotel Company v. Parrish (1), the Court reproduced Chief Justice Hughes’s observation at page 400 that a legislature acting within its proper domain “is not bound to extend its regulation to all cases which it might possibly reach” and that it may target those classes of cases where the need for protection is clearest, adding that a law need not be overturned simply because it could have been applied to other instances. The Court also quoted Justice Holmes in Weaver v. Palmer Bros. Co. (2), emphasizing that there is no “doctrinaire requirement” that legislation must be framed in all‑encompassing terms.

In the dissenting opinion, the judge observed that a classification cannot be declared arbitrary merely because it is based on practical considerations and targets only those objects that exhibit or promote a large‑scale evil; it need not be mathematically precise nor encompass every case that could theoretically cause the same harm. The judge further quoted the principle that if a law strikes the evil where it is most felt, it should not be struck down merely because other possible instances might also have been covered, citing Miller v. Wilson. Justice McKenna, speaking in Health and Milligan Manufacturing Co. v. Worst, added that a classification must be related to the legislature’s purpose, but logical exactness in including or excluding persons or objects is not required. He noted that a classification may not be purely arbitrary, yet the legislature enjoys great discretion even if the result is “ill‑advised, unequal, and oppressive legislation,” and that the Fourteenth Amendment does not demand perfect wisdom, neat adaptation, or the elimination of crude or unjust state laws.

Sections 25 and 26 of the relevant statute were described as clearly intended to combat an evil, namely the danger of admitting testimony derived from tainted sources about statements made by persons accused of offences. These sections form part of a law that codifies the rules of relevance of evidence and proof of facts in judicial proceedings. The State’s interest, the judgment noted, lies both in punishing offenders who can be proven guilty and in protecting individuals who might be compelled to give confessional statements. If Section 27 makes information admissible on the ground that a fact discovered pursuant to a statement made by a person in custody guarantees the truth of that statement, and the legislature has chosen to carve out an exception to the general rule prohibiting such proof, that exception should not be deemed unconstitutional merely because abnormal situations might exist that the legislature has not addressed. The principle that evidence of statements leading to the discovery of facts which may be used against the maker is reasonable was affirmed, with citations to the United States cases of 1915 and 1907. The judgment further stated that limiting this principle to persons in custody does not, by itself, constitute hostile discrimination, because the rule of admissibility is not extended to a possible but uncommon 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

The defence argued that, because Deoman was not formally accused of any offence at the time he made the statement, the statement could not be proved, and moreover raised a constitutional challenge. The Court found this contention to be unsound. The Court previously observed that the phrase “accused of any offence” merely describes the person against whom evidence concerning information alleged to have been given by him is made admissible under section 27 of the Evidence Act. The phrase does not impose a requirement that a formal accusation must exist at the moment the statement is made as a condition for the provision’s operation. Consequently, the High Court was incorrect in holding that section 27 of the Indian Evidence Act and section 162, subsection (2), of the Code of Criminal Procedure, insofar as that provision relates to section 27, are void for violating article 14 of the Constitution. The High Court had acquitted Deoman on the ground that his statement, which led to the discovery of the gandasa, was inadmissible. Because the Court disagrees with that conclusion, it must examine the evidence concerning the statement to the extent that it directly relates to the fact that was discovered and is admissible.

The evidence on record shows that Deoman and his uncle Mahabir were eager to dispose of the property belonging to Sukhdei and Dulari, and that Sukhdei resisted such disposal. On the evening of 18 June 1958, an altercation took place between Sukhdei and Deoman in the presence of witnesses Shobhnath and Mahesh. During that confrontation Deoman slapped Sukhdei and threatened that he would “smash her mouth.” The following morning, 19 June 1958, the dead body of Sukhdei was discovered in her courtyard, bearing several incised injuries inflicted by a gandasa. On that same morning Deoman was observed in the village early, hurrying toward the village tank to take a bath, after which he disappeared from the village and was not located again until the afternoon of 20 June. In his examination before the court Deoman stated that he had left Anandadih early on 19 June on business and that he was not absconding; however, the record contains no evidence to support that explanation.

The record also establishes that, in the presence of witnesses Shobhnath and Raj Bahadur Singh, Deoman entered the village tank and retrieved a gandasa that had been hidden in the mud at the bottom of the tank. The serologist later examined that gandasa and found it stained with human blood. The High Court concurred with the trial court’s findings on this piece of evidence. Moreover, the evidence that Deoman, while before the witnesses Shobhnath and Raj Bahadur Singh, offered to point out the gandasa which he said he had thrown into the tank was accepted by the trial court, and the High Court did not disagree with that view of the trial court, though the discussion continues.

In this case the High Court differed from the Trial Court regarding the admissibility of certain evidence. Specifically, the High Court did not accept the evidence that Deoman had borrowed the gandasa from the witness Mahesh on the evening of 18 June 1958, and, following the settled practice of this Court, that evidence may be discarded. The prosecution argued that Deoman could not have murdered Sukhdei because, according to the alleged motive, he would have gained nothing from her death; the property belonging to Sukhdei could not have passed to his wife Dulari under the normal rules of inheritance. However, the quarrel between Deoman and Sukhdei was not based on a claim that Dulari was the presumptive heir to Sukhdei’s estate. Rather, the dispute arose because Sukhdei resisted Deoman’s attempts to dispose of the property that she owned jointly with Dulari. The record shows that Deoman slapped Sukhdei and threatened to “smash her face.” In addition, on the morning of the murder Deoman washed himself in the village tank, then absconded from the village. After his arrest he made a statement, in the presence of witnesses, that he had thrown the gandasa into the tank and subsequently produced the very weapon that was later found stained with human blood. This sequence of facts creates a strong chain of circumstances that leads inevitably to the inference that Deoman killed Sukhdei on the early hours of 19 June 1958. The learned trial judge, relying on the evidence, concluded that Deoman was proved to be the offender. That conclusion, in our view, is not weakened by the exclusion of the evidence concerning the borrowing of the gandasa from Mahesh, even though that evidence cannot be used against him. The High Court had held that the mere act of fetching the gandasa from its hiding place did not establish that Deoman himself had placed it in the tank; it was possible to infer that another person had placed it there, that Deoman had merely observed someone else doing so, or that he had been told of its presence. Nevertheless, the information supplied by Deoman—specifically his admission that he had thrown the gandasa into the tank—directly relates to the fact of its discovery. The discovery of the gandasa, stained with human blood, at the very spot where Deoman said he had disposed of it gives that admission significant probative value and defeats the theories advanced by the High Court. The proven quarrel between Deoman and Sukhdei, his explicit threat to “smash” her face, and his immediate flight after the violent death all lend very strong support to the prosecution’s case. Although the evidence is purely circumstantial, the facts established create a chain that is consistent only with Deoman’s guilt and not with any claim of innocence.

In the case before the Court, the evidence formed a chain that pointed only to the guilt of the accused and could not be reconciled with any claim of innocence. Accordingly, the Court agreed with the Sessions Judge that Deoman had caused the death of Sukhdei by striking her with the gandasa that had been produced as evidence. The medical officer who examined Sukhdei’s dead body gave testimony that left no doubt that the offence committed by the accused constituted murder. On the basis of this medical evidence, the Trial Judge convicted Deoman of murder, and the Court found that the Trial Judge’s conviction was proper. Counsel for Deoman argued that, irrespective of the conviction, a death sentence should not be imposed on his client. The Court considered the nature of the offence and observed that it was a brutal act, planned and executed with deliberation rather than arising in a sudden fit of passion. The victim was a defenseless elderly woman who had acted as a benefactress to Deoman’s wife, and the assault with a dangerous weapon was motivated by her refusal to consent to the sale of property belonging to her and to her foster child. After a careful assessment of all the circumstances surrounding the offence, the Court concluded that no ground existed to set aside the order imposing the death sentence. Consequently, the Court set aside the order of the High Court, restored the order of the Court of Session, and noted that a death sentence cannot be carried out unless it is confirmed by the High Court. Although the High Court had not confirmed the sentence, the Court exercised its power under Article 136 of the Constitution to confirm the death sentence, an act it is competent to perform under the Code of Criminal Procedure.

Justice Subba Rao, having examined the judgment of his colleague Justice Shah, expressed his inability to agree with the reasoning and conclusion reached concerning the application of Article 14 of the Constitution to the facts of the case. He observed that the facts had already been fully set out in the earlier judgment and required no repetition. Article 14 of the Constitution provides, “The State shall not deny to any person equality before the law or equal protection of the laws within the territories of India.” Citing the judgment of Chief Justice Das in Basheshar Nath v. The Commissioner of Income‑Tax, Justice Subba Rao explained that the object of Article 14 is to guarantee all persons, whether citizens or non‑citizens, equality of status and opportunity as enshrined in the Preamble. He further noted that the provision incorporates the English doctrine of the rule of law together with the equal‑protection clause of the Fourteenth Amendment of the United States Constitution, which prohibits any State from denying any person within its jurisdiction the equal protection of the laws. On this basis, he argued that the principle of equality before the law imposes a substantive limitation on the State’s power in matters such as the imposition of capital punishment.

There can be no doubt or dispute that Article 14 is founded on a sound public policy that is recognised and valued in every civilised State. The command contained in that Article is addressed to the State, and the actual obligation imposed on the State determines the extent of the fundamental right that every person within the territory of India is entitled to enjoy. The Court observed that this subject has been presented before it so frequently and so recently that an exhaustive discussion was unnecessary. The doctrine of equality, however, may be summarised briefly. All persons being equal before the law is a basic feature of every civilised constitution. Equality before the law is a negative principle, whereas equal protection of the laws is a positive principle. The negative principle states that every individual is equal before the law, that nobody may claim special privileges, and that all classes are equally subject to the ordinary law of the land. The positive principle requires that persons who are alike in their situation and under like circumstances receive equal protection. Consequently, no discrimination may be made either in the privileges conferred or in the liabilities imposed. Nevertheless, those propositions, though conceived for the public interest, if extended without restraint, may fail to achieve their lofty purpose. In a society whose basic structure is unequal, it is virtually impossible to fashion laws that apply identically to every individual. Therefore, a reasonable classification is not only permissible but also necessary for societal progress. Such a classification, however, may not be arbitrary; it must be based on differences that are pertinent to the subject matter and to the purpose for which the law is made. (1) [1959] Supp. (1) S.C.R. 528. Das, C. J., in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar (1) extracted the rules of construction of the equality clause with reference to the principle of classification from numerous decisions of this Court and from the United States Supreme Court, and he restated the settled law in the following propositions (pp. 297‑298): (a) a law may be constitutional even if it relates to a single individual, provided that, because of special circumstances or reasons applicable to that individual and not to others, the individual may be treated as a class of his own; (b) there is a general presumption in favour of the constitutionality of an enactment, and the burden of proving a clear breach of constitutional principles rests on the party challenging it; (c) it must be presumed that the legislature understands and correctly appreciates the needs of its people, that its laws address problems made evident by experience, and that any discrimination is founded on adequate reasons; (d) the legislature is free to recognise degrees of harm and may limit its restrictions to those cases where the need is most evident; (e) in order to sustain the

In discussing the presumption of constitutionality, the Court explained that it may consider matters of common knowledge, reports that are generally accepted, and the historical background of the period in which the legislation was enacted. The Court may also assume any factual situation that could logically be imagined to have existed at the time the law was passed. The Court further stated that while a legislature is presumed to act in good faith and with an awareness of existing conditions, this presumption does not extend to a point where the Court must always conclude that some undisclosed or unknown reason must exist for subjecting particular individuals or corporations to hostile or discriminatory legislation, especially where the face of the law or the surrounding circumstances provide no basis for the classification. The Court cited the decision reported in 1959 S.C.R. 279 to support this proposition. In view of this clear articulation of the law, the Court found it unnecessary to repeat the doctrine, but chose to add the caution expressed by Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. Ellis. Brewer, J. warned that although good faith and knowledge of conditions by the legislature are presumed, extending that presumption to always require an undisclosed reason would render the protective clauses of the Fourteenth Amendment ineffective, turning them into “a mere rope of sand” that fails to restrain state action. The Court observed that the established rules assign a greater weight to the State than to the individual, thereby imposing a heavy burden on the individual to prove a violation of a fundamental right. If the caution articulated by Brewer, J., and later restated by Das, C.J., in Shri Ram Krishna Dalmia’s case were ignored, the burden on a citizen would become practically impossible to meet, and the principles meant to illuminate the doctrine of equality would instead exhaust the right itself, again reducing the protective concept to “a rope of sand.” While the Court may be justified in assuming certain facts to sustain a reasonable classification, it is not permissible for the Court to base its decision on undisclosed or unknown reasons; doing so would not constitute enforcement of a fundamental right but rather a finding of an excuse to justify its infringement. Finally, the Court turned to the relevant statutory provisions, noting that under section 25 of the Indian Evidence Act, a confession made to a police officer cannot be proved against an accused person. Section 26 provides that a confession made while a person is in police custody, unless made in the immediate presence of a magistrate, shall not be proved, a principle supported by the authorities reported in 1897 U.S. 165 and 1959 S.C.R. 279.

Section 27 of the Indian Evidence Act, presented as a proviso, provides that when any fact is disclosed as a result of information received from a person who is accused of an offence and who is in the custody of a police officer, the portion of that information that directly relates to the fact discovered may be proved, irrespective of whether the information is a confession. Section 162 of the Code of Criminal Procedure declares that no statement made by any person to a police officer during the course of an investigation may be used for any purpose at any inquiry or trial concerning the offence that was under investigation when the statement was made. Sub‑section (2) of Section 162, which was amended by Section 2 of the Code of Criminal Procedure (Second Amendment) Act, 1941, clarifies that this provision does not affect the operation of Section 27 of the Indian Evidence Act. The combined effect of these provisions can be summarised as follows: first, a confession made to a police officer by an accused person cannot be proved against that accused; second, any statement made by any person to a police officer during an investigation cannot be used for any purpose at any inquiry or trial; third, a confession made by any person while in police custody may be proved against that person only if it is made in the immediate presence of a magistrate; and fourth, if an accused person is in the custody of a police officer, any information supplied by him, whether it is a statement or a confession, may be proved to the extent that it relates distinctly to the fact that was discovered as a result of that information. In effect, the law divides accused persons who make confessions or statements before the police into two categories: those who are not in police custody and those who are in police custody. For the former category, there is a general prohibition against admitting any confession or statement as evidence against the accused. For the latter category, the portion of the confession or statement that directly pertains to the fact discovered is admissible. To illustrate the practical result of applying Section 27 together with Section 162, consider a situation where two persons, identified as A and B, stabbed a third person, C, with knives and then concealed the knives in a particular location. The prosecution's case against A and B relies on circumstantial evidence, one piece of which is that both A and B gave information to the police stating that each of them had stabbed C with a knife and had hidden the knives in the specified place. They also guided the police to the concealed location, retrieved the knives and handed them over to the police; the knives were found to be stained with human blood. If this piece of evidence were excluded, the remaining circumstantial evidence would not be sufficient to form a complete chain, and both accused would be acquitted. If the evidence were admitted, both would be convicted of murder. However, at the time A gave his information, he was in police custody, whereas B was not in police custody. Consequently, on the same factual basis, A would be convicted of murder while B would be acquitted, leading to vastly different outcomes for persons in similar circumstances. This illustration demonstrates that, on its face, Section 27 of the Evidence Act creates unequal and uneven treatment of accused persons who are similarly situated.

The knives that were recovered were handed over to the police and both knives bore stains of human blood. When this piece of evidence is excluded, the remaining circumstantial material does not establish a complete chain of proof; consequently, without the blood‑stained knives, the two accused would each be acquitted. If, however, the knives are admitted as evidence, the same set of facts would lead to the conviction of both accused persons for murder. In the factual scenario, accused A disclosed the information while he was already in police custody, whereas accused B made the same disclosure while he was not in custody. As a result, the identical evidence would produce a conviction for murder against A, while B would escape liability, meaning that one person would suffer loss of liberty or even life whereas the other would be set free. This illustration demonstrates, on its face, that the provisions of section 27 of the Evidence Act give unequal and inconsistent treatment to persons who are in essentially similar circumstances. The learned Additional Solicitor General attempts to remove this apparent defect in the statutory provisions by offering a justification for the disparate treatment accorded to the two groups of accused. His argument can be summarized as follows: the accused are divided into two categories, namely (1) those who are in police custody and (2) those who are not in police custody. He asserts that there are clear differentiating factors between these two categories that bear a reasonable relationship to the objectives that the legislature intended to achieve when enacting the provisions. According to the counsel, the legislature pursued two principal goals: first, to make available to the court substantive evidence in the form of confessions so that the truth may be ascertained; and second, to protect the accused, in the interests of justice, from coercive methods that might be employed by the police. The alleged differences that relate to these objectives are enumerated as follows: (a) extrajudicial confessions made by an accused who is not in custody are admissible, whereas confessions by an accused who is in custody are excluded; (b) the number of accused persons in custody who make confessions or provide information to the police is comparatively large, while the number of accused persons not in custody who do so would be insignificant; (c) when an accused who is not in custody confesses to a police officer, no precautionary warning is given before the confession is recorded, whereas the very fact of being in custody serves as a caution to an accused who is detained and places him on guard; and (d) a protective condition attached to the admissibility of confessions is necessary for accused persons in custody, but no such protection is required for those not in custody. On the basis of these purported differences, the counsel argues that the legislative classification is justified and that the present case consequently falls outside the operation of Article 14 of the Constitution. The Court will now examine each of these alleged differences between the two categories of accused to determine whether they provide a reasonable and factual foundation for the statutory classification. Regarding point (a), the question is whether the distinction concerning the admissibility of confessions for accused in custody versus those not in custody is justified.

In this case, the Court observed that whether an accused is in custody or out of custody does not stop the prosecution from gathering the evidence needed to prove guilt. The Court noted that, in practice, an accused who is not in custody and who may be influential often has a greater chance of delaying or obstructing the investigation and the collection of evidence. The Court further explained that not all extra‑judicial confessions are excluded at trial after a person has been taken into custody. An extra‑judicial confession made by an accused before his arrest or after he has been released on bail remains relevant evidence to the proceeding. Moreover, even after a person has been placed in custody by a police officer, nothing prevents that person from making a confession to a third party; the only restriction imposed by section 26 of the Evidence Act is that a confession made to a magistrate must be recorded in the magistrate’s presence. The Court held that a confession made before a magistrate, after complying with all prescribed formalities, carries greater probative force than a confession made to outsiders. Nonetheless, the Court stressed that although extra‑judicial confessions are admissible, courts receive them with great caution. The Court rejected the supposition that the legislature intended a confession made to a police officer while the accused is in custody, subject to a condition, to replace any extra‑judicial confession that the accused might have made if he were free. Consequently, the Court concluded that there is no justification for the claim that the prosecution is in a stronger position to establish its case when the accused is out of custody than when the accused is in custody. The Court further observed that the State did not rely on this circumstance before the High Court and that it was raised for the first time by learned counsel during the arguments. In the Court’s view, there is no practical difference in the collection of evidence between the two categories of persons, and the alleged difference cannot reasonably support a classification. Regarding the second argument raised by learned counsel, the Court described it as fanciful. The counsel suggested that the number of persons not in custody who make confessions to the police is insignificant compared with those in custody, and therefore the legislature may have omitted that category from consideration. The Court rejected this inference, noting that no such basis was advanced before the High Court. The Court clarified that constitutional validity must be examined on the facts existing at the time the provision or its predecessor was enacted, not on the consequences that have arisen from its operation. The Court explained that if statements made by accused not in police custody are statutorily deemed inadmissible, it cannot be expected that many such instances will come before the courts. The Court pointed out that if the ban were temporarily lifted, the volume of such statements would become apparent.

In the same manner that admissible confessions have become a routine element of virtually every serious criminal trial, it is also inaccurate to claim that such confessions are never presented before the courts. For example, the case reported as In re Mottai Thevar (1) involved a situation in which the accused, immediately after having killed the deceased, went to a police station and made a clear confession of the offence. In the matter of Durlav Namasudra v. King Emperor (2), information obtained from an accused who was not in police custody led to the discovery of a dead body and was then sought to be introduced as evidence. Similarly, before a division bench of the Patna High Court in Deonandan Dusadh v. King Emperor (3), the police Sub‑Inspector received a statement from a husband who had fatally assaulted his wife; that statement resulted in the recovery of the woman’s corpse and was also urged to be admitted in evidence. In Santokhi Beldar v. King Emperor (4), a full bench of the Patna High Court examined whether a piece of evidence – namely, the discovery of a blood‑stained knife and other articles by a Sub‑Inspector acting on information supplied by the accused – could be used against the informant who provided that information. A division bench of the Nagpur High Court considered in Bharosa Ramdayal v. Emperor (5) a voluntary statement made by an accused to a responsible police officer in which the accused confessed to having committed a criminal act. The Lahore High Court, in Jalla v. Emperor (6), was presented with a statement made by an accused to the police that resulted in the discovery of a dead body. The decision reported as In re Peria Guruswamy and Another (7) by a division bench of the Madras High Court dealt with the question of whether a confession made to a police officer before the person came under the officer’s custody could be admitted as evidence. The foregoing authorities are cited not to revisit the substantive legal questions decided in those cases – such as the precise moment when a person becomes an accused or when he is deemed to be in police custody – but rather to challenge the contention that confessions from persons not in police custody are, in practice, nonexistent. The citations listed are (1) A.I.R. 1952 Mad. 586; (2) (1932) I.L.R. 59 Cal. 1040; (3) (1928) I.L.R. 7 Pat. 411; (4) (1933) I.L.R. 12 Pat. 241; (5) A.I.R. 1941 Nag. 86; (6) A.I.R. 1931 Lah. 278; (7) A.I.R. 1941 Mad. 765. Only representative decisions from various high courts have been provided, and a more exhaustive research would undoubtedly uncover additional instances. Moreover, the historical background of section 27 of the Evidence Act does not justify the assumption that the legislature believed confessions by persons not in police custody would be so rare as to be excluded from legislative provision. Sections 25, 26 and 27 of the Indian Evidence Act correspond respectively to sections 148, 149 and 150 of the Code of Criminal Procedure of 1861.

In the Code that was in force in 1861, section 148 expressly barred the use of any confession or admission of guilt that had been made to a police‑officer as evidence. Section 149 added that a confession or admission made by a person while he was in the custody of a police‑officer could be used against him only if the confession was given in the immediate presence of a Magistrate. Section 150 dealt with the situation in which a police‑officer testified that a fact had been discovered as a result of information received from a person accused of an offence. It provided that any portion of that information, whether it amounted to a confession or an admission of guilt or not, could be admitted as evidence to the extent that it related directly and distinctly to the fact that had been discovered. In 1869, Act VIII amended section 150 of the 1861 Code. The amended provision read: “Provided that when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt, or not, as relates distinctly to the fact thereby discovered, may be received in evidence.” From these provisions it was clear that there was an absolute prohibition against admitting any confession or admission made to a police‑officer, and that this prohibition was only partially relaxed when the information, even if it was a confession or admission, bore a direct and distinct connection to a fact that had been discovered. The proviso introduced by Act VIII of 1869 was in the same subject‑matter as section 27 of the Evidence Act, the difference being that the earlier Code language linked the expressions “a person accused of any offence” and “in the custody of a police officer” with the disjunctive “or”. Consequently, no distinction was drawn between a person who was in police custody and one who was not when making a confession to a police‑officer. Even before the amendment, the wording of section 150, although expressed differently, produced a similar effect. The inference was that up to the year 1872 the legislature intended to provide for the admissibility of all confessions made to the police, irrespective of whether the confessor was in custody. The question then arose whether, in 1872, the legislature deliberately excluded confessions or admissions made by a person not in custody from the operation of section 27 of the Evidence Act on the ground that such instances would be rare. No material was placed before the Court to indicate any reason for the omission of the word “or” in section 27. If that omission reflected a legislative intention, the Court wondered why the legislature also enacted section 25 of the Evidence Act, which imposed a general ban on the admissibility of all confessions made by an accused to a police‑officer.

The Court noted that Section 27 of the Evidence Act by itself would have achieved the legislative purpose, but Section 25, in explicit terms, defines the broader class of accused in general, while Section 27 delineates the narrower subset of accused who are in custody. Consequently, a comprehensive prohibition on the admissibility of confessions is introduced by Section 25 and is lifted only for the specific category covered by Section 27, which belongs to the same overall class. The omission of any explicit reference to accused not in custody appears to be accidental rather than intentional. In view of this, the Court considered it inappropriate to presume that the legislature deliberately excluded from the operation of Section 27 those accused who were not in custody on the ground that such persons were few. During the oral arguments, counsel for the respondent was asked whether an accused who confesses guilt to a police‑officer necessarily submits himself to the officer’s custody; counsel responded that the High Court’s finding supported his position, namely that such a confession does not automatically result in custody. The Learned Additional Solicitor‑General, in his reply, pursued this line of reasoning and argued that, if accepted, every possible confession made to a police‑officer would fall within the ambit of Section 27 of the Indian Evidence Act. The Court then referred to the governing provision, Section 46 of the Code of Criminal Procedure, which provides: “(1) 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.” The Court observed that certain decisions have held that when a person acknowledges having performed acts constituting an offence and makes such a statement to a police‑officer, he thereby submits to the officer’s custody within the meaning of clause (1) of Section 46, and consequently he is deemed to be in custody for the purposes of Section 27. However, other authorities have taken the opposite view. The Court emphasized that it is not possible to formulate a universal rule describing precisely which words or actions amount to submission to custody; such determination must be made on the facts of each case, considering the nature of the information, the circumstances, the manner and purpose of the statement, the attitude of the police‑officer, and other relevant factors. Therefore, it cannot be presumed that every confession of guilt or statement made to a police‑officer automatically places the accused in custody. The Court found it difficult to accept that no appreciable number of accused could make confessions or statements while not being in police custody, and gave full consideration to all arguments presented.

During the hearing, various suggestions were raised by counsel, yet the essential issue remained unchanged: the class of accused persons who make confessions to a police‑officer was being divided into two subsets, one possibly larger than the other, based on a distinction that in substance made no difference. The Court then examined whether any statutory language or judicial precedent supported the argument that the legislature could deliberately exclude from the operation of section 27 those accused who were not in custody merely because such individuals might be few in number. To advance this line of reasoning, counsel for the appellant relied on a decision of this Court and on several rulings of the Supreme Court of the United States of America. The Indian case cited was Sakhawat Ali v. The State of Orissa (1). In that decision, Justice Bhagwati observed at page 1010 that “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.” Although these remarks might initially appear to aid the appellant, the Court noted that when read in the factual context and the specific points decided in Sakhawat Ali v. Orissa, they did not support the appellant’s position. The case involved the provisions of section 16(1)(x) of the Orissa Municipal Act, 1950, which barred a paid legal practitioner, whether representing or opposed to the municipality, from being elected to a municipal seat. One of the questions presented was whether that provision infringed the appellant’s fundamental right under article 14 because it created a classification between legal practitioners who were employed on a salary by the municipality or acted against it and those who were not so employed. Justice Bhagwati, speaking for the Court, reiterated the well‑settled principles of classification and explained, with reference to the legislative purpose, why the distinction was reasonable. The appellant further argued that the legislature should have extended the disqualification to other persons, such as clients, alleging a conflict of interest in their cases as well. The learned judge dismissed that contention, relying on the earlier observations that when a intelligible differentia is drawn between the species carved out of a genus for legislative purposes, the mere possibility that the legislation could have been broadened to include other persons does not render it constitutionally invalid. On the other hand, if the

The Court observed that if the passage were interpreted in the way proposed by counsel for the appellant, such an interpretation would undermine both the principle of classification and the doctrine of equality. The Court further noted that American case law does not endorse such a broad proposition. In the United States case of John A. Watson v. State of Maryland, the constitutionality of the Maryland Code of 1904, which made it a misdemeanor for any physician to practice medicine without registration, was challenged. That Code exempted physicians who were already practicing in the State and who could demonstrate that, before 1 January 1898, they had treated at least twelve patients within a year. The United States Supreme Court upheld the validity of the provision. The Court explained the basis for the classification at page 989 of the opinion, stating that the practice of medicine deals with the lives and health of the people, requires general education, technical skill, and good character, and therefore it is a profession where the State may lawfully ensure that only properly qualified persons perform its responsible duties. The Court added that the exemption was justified on the theory that individuals who had long‑standing practice in the community could be presumed to possess the qualifications that others must prove through an examination before a medical board. The judgment further observed that, considering local conditions better known to the State legislature, the regulation effectively covered the entire field that required control, including establishments of any size, while smaller operations employing four or fewer persons could be treated as negligible and need not contribute to the guarantee fund or be subject to the compensation methods set out in the legislation. The Court emphasized that the passage presupposes a legitimate classification and cannot be used to support the argument that an arbitrary classification should be sustained merely because the legislature, in its wisdom, deemed the field necessary for protection. The Court also rejected the reliance on the observations of McKenna, J., in St. Louis, Iron Mountain & Southern Railway Company v. State of Arkansas. At page 779, McKenna, J., recognized that legislation cannot be all‑comprehensive and that practical groupings of objects may fairly constitute a class, even though exceptions may exist where the evil addressed is not as flagrant. The Court concluded that those observations do not advance the appellant’s case.

In this case the Court examined a provision that prohibited railway companies having yards or terminals in the state from performing switching operations across public crossings in cities classified as first‑ or second‑class when the switching crew consisted of fewer than one engineer, a fireman, a foreman, and three helpers. The Court noted that Justice McKenna had upheld the constitutional validity of that classification, finding it not to be arbitrary. The Court emphasized that the cited observations did not undermine the well‑established doctrine of classification; rather, they clarified that the legitimacy of a classification must be assessed on practical considerations rather than on abstract theory. The Court referred to an American decision, Weaver v. Palmer Brothers Co., in which the Supreme Court held that a statute forbidding the use of shoddy material—whether new or old, even when sterilized—in the manufacture of comforters for beds was unreasonable, stressing that constitutional guarantees may not be surrendered merely for convenience. In a dissenting opinion, Justice Holmes observed that a classification should not be deemed arbitrary simply because it is based on practical grounds and targets only those objects that produce or encourage a widespread evil; it does not need to be mathematically precise or to encompass every conceivable case that could cause the same harm. The Court further cited West Coast Hotel Company v. Parrish, where a state law authorized the fixing of reasonable minimum wages for women and minors but did not extend the rule to men, and Chief Justice Hughes remarked that a legislature acting within its proper domain is not required to regulate every case it could possibly reach. A concise summary of American law on the subject, as presented in the Legislative Reference Service’s publication on the Constitution of the United States, was also quoted. That summary explained that legislatures may recognize varying degrees of harm and that a law aimed at the most serious injury will not be invalidated simply because it does not address every possible instance. The State may act to prevent a perceived evil and may limit its regulations when the harm to a few is considered less significant than the broader public interest that would be jeopardized by applying the rules universally. Exceptions that create specified classes will not render a law unconstitutional unless there is no reasonable justification for not extending the law equally to those excluded classes.

The Court observed that the earlier statements do not overturn the doctrine of classification but merely provide a pragmatic foundation for supporting it. It noted that when an evil is widespread in one area and calls for urgent mitigation, that situation can be distinguished from another area where the evil is only beginning to appear. Likewise, the harmful effect on the public that would result from extending a law to an excluded group can set that group apart from those included. The Court explained that varying combinations of facts, even among groups that appear similar, may highlight differences sufficient to sustain a classification. However, the Court rejected the argument advanced by counsel that the legislature may, at its discretion, exclude some individuals and include others in the operation of the Act despite their identical characteristics solely on the basis of numbers. Accepting such a proposition would undermine the principle of equality. Accordingly, the Court held that the cited decisions do not permit classification on numerical grounds, nor do they empower the legislature to include the many while excluding the few without an intelligible differentia between them. The Court further rejected the broad claim that a legislature enjoys absolute discretion to omit instances possessing identical characteristics from an Act on alleged practical considerations, emphasizing that arbitrarily excluding a single member of a class offends Article 14 of the Constitution. Applying these principles to the facts of the present case, the Court considered a hypothetical ratio of accused persons who give confessions—one thousand in custody and five out of custody—and questioned whether such a ratio could constitute a reasonable ground for classification. The Court also examined the possibility that the legislature might have believed such an exemption unnecessary because the situations would not arise, noting that this assumption would be unreasonable given the historical background of Section 27 of the Evidence Act and the factual instances identified in the earlier decisions. The Court reiterated that such an exemption would constitute an unwarranted foray into speculation, contrary to the caution expressed by Chief Justice Das in the Shri Ram Krishna Dalmia case and by Justice Brewer in Gulf, Colorado and Santa Fe Railway Co. v. Ellis. Regarding the claim that the distinction is based on the caution implied by placing an accused in custody, the Court found no intelligible differentia. It observed that Section 163 of the Code of Criminal Procedure allows any person to make a statement of his own free will during an investigation, and that no police officer or other person may prevent a statement by any caution or otherwise. Consequently, the Court was not satisfied that taking an accused into custody amounts to a statutory or implied caution that would justify a classification, nor could it accept the contention that an accused once taken into custody but later released on bail should be excluded from the ambit of Section 27 of the Evidence Act.

In the discussion, the Court observed that when a person is placed under guard after receiving a timely caution, the law does not permit any statement made by that person to be proved. By contrast, the argument submitted by the other side claimed that when an accused is taken into custody, that very act of custody itself serves as a sufficient warning that any statement made may be used as evidence, and that this perceived difference supports a classification under section 27 of the Indian Evidence Act. The Court expressed dissatisfaction with this reasoning, stating that taking a person into custody does not amount to a statutory or implied caution. Moreover, the Court noted that if the distinction were to rest on the fact of custody, there would be no rational basis for excluding from the operation of section 27 an accused who had initially been taken into custody but was later released on bail. The Court therefore found the reliance on custody as a differentiating factor unconvincing and unsupported by any statutory provision.

Regarding the fourth alleged differentiating factor, the Court described it as an ironic commentary on the argument. The contention put forward was that an accused who is in custody requires protective measures concerning any confession he may make, and consequently a condition is imposed before such a confession can be admitted as evidence. The Court identified a fundamental fallacy in this line of reasoning. It observed that the classification creates a distinction between two categories of accused: those not in custody who make a confession, and those in custody who make a confession to a police officer. Under the existing rule, the former category’s confession is inadmissible, while the latter’s confession is admissible subject to a condition. The Court questioned why such discrimination should exist and rejected the suggestion that the mere existence of a protective condition for the accused in custody justified the disparity. While acknowledging that the condition may provide a limited guarantee of truth – as noted in the authorities (1) [1959] S.C.R. 279 and (2) [1897] 165 U.S. 150; 41 Ed. 666 – the Court held that this does not erase the clear distinction between the two classes of confessions. The problem, the Court said, lies not in the condition itself but in the unequal treatment of confessions based on the accused’s custody status. The Court further argued that the distinction could be eliminated only if confessions by all accused were admitted, subject to the same protective condition. It concluded that the alleged differentiating factors were neither intelligible nor relevant to the purpose of section 27, and that the basis for the distinction was arbitrary. There is no satisfactory reason for admitting a confession made by an accused in custody to a police officer while rejecting a confession made by an accused who is not in custody. Although the condition attached to the former may somewhat temper the strictness of the rule, it does not affect the reasonableness of the classification. The Court cited Rankin, J., in Durlav Namasudra v. Emperor (1), who, in a strongly worded passage on page 1045, criticised the anomaly underlying section 27, stating: “in a case like the present where the confession was made to the police, if the man was at liberty at the time he was speaking, what he said should not be admitted in evidence even though something was discovered as a result of it.”

The Court observed that it is absurd to exclude a statement merely because the maker was not in custody. While it is conceivable to argue that a declaration made by a person who is in custody might be inadmissible, the converse – that a statement is inadmissible because the person is not in custody – has no rational basis. In the present case, the same contradictory reasoning was advanced as a justification for the classification created by section 27. The Court held that the appropriate response is for the legislature to amend the provision, not for the judiciary to fabricate an imagined justification and uphold the classification. Consequently, the Court declared section 27 of the Indian Evidence Act to be void for contravening Article 14 of the Constitution. The citation to the earlier decision reads as follows: (1) (1932) 59 Cal. 1040.

The Court then considered whether there was any scope to disturb the findings of the High Court. The High Court had examined the entire evidentiary record and identified several circumstances as proved: (a) on the evening of 18 June 1958, an altercation occurred between Sukhdei and the accused, Deoman, concerning a proposed transfer of property at Anandadih, in the presence of Shobh Nath (PW 5) and Mahesh (PW 7); during this confrontation Deoman allegedly slapped the woman and threatened to break her mouth; (b) at about dawn on 19 June 1958, the accused was seen by Khusai (PW 8) hurrying toward a tank, and shortly thereafter was observed by Mata Dihal (PW 11) actually bathing in that tank before daylight fully broke; (c) the accused fled immediately afterwards and could not be located at Anandadih on 19 June 1958; (d) on 21 June 1958, in the presence of the investigating officer (PW 14), Shobh Nath (PW 5) and Raj Bahadur Singh (PW 6), the accused declared that he could retrieve the “gandasa” he had thrown into the tank; he was then taken to the tank, waded in with the same witnesses, and recovered the “gandasa” (Exhibit I), which the Chemical Examiner and Serologist later found to be stained with human blood. The High Court concluded that these circumstances, taken together, were insufficient to establish the accused’s guilt beyond reasonable doubt. Accordingly, the High Court accorded the benefit of doubt to the accused and acquitted him of the offence. The Court held that this finding was purely factual, with no exceptional circumstances warranting disturbance. Therefore, the appeal failed and was dismissed. Justice Hidayatullah noted that the factual matrix had been fully articulated by Justice Shah in his judgment, which he had read, and that he had also reviewed Justice Subba Rao’s judgment, expressing general agreement with their conclusions and reasoning.

Having read the judgment of Shah, J. and also having examined the judgment of Subba Rao, J., the author respectfully concurs in general with the conclusions and reasons expressed by Shah, J. Nevertheless, a few observations are offered. The discussion begins with Section 27 of the Indian Evidence Act, which is situated within the Chapter on admissions and forms part of a series of sections numbered 24 to 30. These provisions collectively regulate confessions of persons accused of an offence and must be read together with sections 46 and 161 to 164 of the Code of Criminal Procedure. Section 24 renders a confession irrelevant when the Court is convinced that the confession was produced by inducement, threat, or promise relating to the charge, made by a person in authority, and intended to secure some advantage or to avoid some temporal evil in the proceedings. Section 25 further excludes any confession made to a police officer from being admissible against an accused of any offence. Section 26 provides that a confession made while the accused is in police custody may be proved only if it is made in the immediate presence of a Magistrate. Section 27 then provides: “Provided 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 161 of the Code of Criminal Procedure authorises a police officer of a prescribed rank to examine orally any person who is believed to be acquainted with the facts and circumstances of the case. The examined person is bound to answer all questions that relate to the case, but is not obliged to answer any question that might expose him to a criminal charge, penalty, or forfeiture, and the police officer may reduce the statement to writing. Section 163 of the Code lays down that no police officer or other authority may offer, make, or cause to be offered any inducement, threat, or promise as described in Section 24 of the Evidence Act, and further that no officer may, by any caution or otherwise, prevent a person from making a voluntary statement during an investigation. Section 162 declares that statements reduced to writing are inadmissible for any purpose except as permitted by Section 27 of the Evidence Act. Finally, Section 164 confers upon Magistrates of a prescribed rank the power to record confessions during the investigation or at any time thereafter, prior to the commencement of an enquiry or trial, provided that such confessions are recorded after due caution is given to the person making the confession and only if there is reason to believe that the confession is voluntary.

The Court explained that a confession could be recorded only after the individual making it had been cautioned and only if there was reason to believe that the confession was voluntary. Section 46 of the Code of Criminal Procedure states that, for an arrest to be valid, the police officer or other person making the arrest must actually touch or confine the body of the person, unless the person submits to custody by word or action. When an offence is committed and the investigation begins, the police pursue two primary objectives: the collection of information and the identification and apprehension of the offender. In carrying out these objectives, the police question many persons, some of whom are merely witnesses while others may later become the persons charged with the offence. During such questioning, the police are not permitted to caution the individuals, and they must allow each person to speak freely without any coercion. Two safeguards operate at this stage: the statements made by witnesses or suspects are not admissible at trial, and no person can be compelled to answer a question that might incriminate him. It is noteworthy that, although the police may suspect a particular individual, that individual is treated no differently from other witnesses while being questioned. Persons who later are identified as witnesses are expected to testify at trial, and any earlier statements they gave to the police are not considered evidence. Conversely, individuals who are ultimately charged cannot ordinarily serve as witnesses, and their statements are barred under section 162 of the Code. Their confessions are also excluded by section 24 of the Indian Evidence Act unless they are recorded in accordance with section 164 of the Code after a magistrate has given due caution and confirmed voluntariness. These principles are rooted in the maxim nemo tenetur prodere seipsum, which means that no one shall be compelled to incriminate himself. In an address to police constables, Hawkins J., later known as Lord Brampton, observed that neither a judge, magistrate nor juryman may interrogate an accused or require him to answer self‑incriminating questions. He added that a constable’s duty is merely to arrest and keep the person in safe custody, not to press him for incriminating answers. English law permits the statement of an accused to be admitted as evidence provided that the accused has been cautioned and that the exact words are recorded verbatim. Lord Brampton further explained that a constable may listen to any voluntary statement a prisoner chooses to make and may repeat it in evidence, provided he does not encourage or induce the prisoner to speak.

In the discussion, the Court observed that a police officer must not obtain a statement from an accused person without first cautioning the individual that he is not compelled to say anything that may incriminate him and that any remark he makes may be used against him. The Court then remarked that perhaps the best maxim concerning an accused is “Keep your ears and eyes open, and your mouth shut.” The Court referred to Sir Howard Vincent’s “Police Code” and noted that in Ibrahim v. Emperor the learned Lord Sumner traced the history of the common‑law rules relating to confessions, pointing out that those rules were “as old as Lord Hale.” Lord Sumner further observed that in Reg. v. Thompson (1914) A.C. 599 and, earlier, in The King v. Jane Warrickshall (1783) 1 Leach 263, 168 E.R. 234, the court had ruled, quoting the latter case, that “a confession forced from 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.” Adding to this, Lord Sumner stated that the law does not presume such statements to be untrue, but because of the danger of receiving unreliable evidence, judges have thought it preferable to reject such statements for the due administration of justice, as reflected in Reg. v. Baldry (1893) 2 Q.B. 12. He further explained that when hope or fear were not factors, statements obtained from an accused were, for a long time, regularly admitted as relevant evidence, though with reluctance and subject to strong warnings regarding the weight to be accorded them. The Court also recorded that, in the judgment cited by Lord Sumner, Justice Parke, B., lamented that the rule had been carried too far out of “too much tenderness towards prisoners,” and he expressed shame at decisions that barred confession evidence, observing that “justice and commonsense have too frequently been sacrificed at the shrine of mercy.” Lord Sumner pointed out that when judges excluded such evidence, their explanations were more often based on observations about the duties of policemen than on any firm rule of law. The Court then traced later developments. In 1905, Channel, J., in Beg v. Knight and Thavre (1905) 20 Cox C.C. 711, held that once a person is taken into custody the police ought not to question the prisoner. He noted that there is no distinct rule of evidence declaring answers to improper questions inadmissible, but there is clear authority allowing the trial judge, in his discretion, to refuse to admit those answers. Five years later, the same learned judge, in Rex v. Booth and Jones (1), observed: “The moment you have decided to charge him and practically.”

The Court observed that once a person had been taken into custody, it was unreasonable to assume that a police officer could lawfully pose questions, because a Judge or a Magistrate is not permitted to ask such questions and therefore a policeman could not be expected to do so. Nevertheless, the Court noted that there was no definitive authority stating that a question asked by a police officer automatically rendered the answer inadmissible; in practice, a Judge would simply advise that it was not advisable to pursue the line of enquiry. The Court further recorded that Lord Sumner had commented on the divergent approaches taken by various Judges to this issue and had remarked that, logically, the objections raised by the Judges concerned the weight of the evidence rather than its admissibility. He explained that a statement made by a person who possessed knowledge of the matter in issue was itself relevant to the question and could be used as evidence against that person. The circumstances under which the statement was made—such as hope, fear, personal interest or any other motive—affected only the weight to be given to the statement and did not by themselves render the statement inadmissible. Lord Sumner added that even the rule which excluded statements made by a prisoner when those statements were induced by hope or expectation of authority was a rule of policy rather than a rule of law. The Judicial Committee, the Court noted, had not expressed any definitive opinion on what the proper rule should be. According to the Court, the position of English law in the year 1861, when these principles were incorporated into Indian law by statute, was that police officers were authorised to question any person, including a suspect. Statements made by persons who later turned out merely to be witnesses were wholly inadmissible, because such persons were expected to give their testimony under oath in Court. By contrast, statements made by suspects after they had been cautioned were admissible, whereas statements made before a caution was administered or before the suspect was taken into custody were not admissible; moreover, confessions were ordinarily excluded if they were obtained by means of hope, fear, threat or similar inducements. When the Indian statute was enacted in 1861, the drafting of the statute took place in England, and two notable departures from the English common law were introduced. First, no statement made to a police officer by any person—see (1) (1910) 5 Cr. App. Rep. 177—was to be proved at the trial, even if the accused was present. Second, the statute omitted any requirement that a caution be given to a person making a statement. Regarding the accused, the Court explained that the law protected him from his own folly in confessional statements made both after and before his custody, unless the confession was made in the immediate presence of a Magistrate or was recorded by a Magistrate. In each of those circumstances, the confession had to be voluntary and free from any taint of threat, promise, fear or similar influences. The legislative scheme was intended to shield a suspect from excessive interrogation before he realised that he was in danger—a danger that would become apparent only after arrest—while still allowing voluntary statements that might exonerate him if made. Without the precaution of a caution, an innocent suspect would be unaware of his peril, whereas a person who had already been arrested would be fully cognisant of his situation. Consequently, the absence of a caution eliminated the distinction between voluntary and involuntary statements, and, as the Court observed, the legislature wisely chose to exclude such statements altogether.

In the view expressed, all statements made by suspects before their arrest were regarded as equally inadmissible, irrespective of whether the suspicion was justified or unfounded, and no caution was required at the time of making such statements. The English common law was then adopted as the model for dealing with accused persons who were already in custody. Section 27, which is enacted as an exception, has been correctly interpreted as an exception applying not only to section 26 but also to sections 24 through 26. The language of Section 27 was taken directly from the decision in The King v. Lockhart, where the court observed that “but it should seem that so much of the confession as relates strictly to the fact discovered by it may be given in evidence, for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby induced to say what is false; but the fact discovered shews that so much of the confession as immediately relates to it is true.” This ruling followed immediately after the earlier case of Warrickshall and summarized the legal principles set out in that precedent. In the Lockhart case the accused had made a confession that was deemed inadmissible because it was obtained by a promise of favour; the citation for that decision is (1) (1785) 1 Leach 386 : 168 E.R. 295 with a footnote to (1783) Leach 263, and the related case is reported as (2) (1783) 1 Leach 263 : 168 E.R. 234. Although the confession itself was excluded, the stolen goods were subsequently discovered hidden in a mattress as a consequence of the confession, leading to a dispute over whether the evidence of the discovery should be admitted. Justice Nares, sitting with Mr. Baron Eyre, rejected the contention and held that it was a mistaken notion to refuse evidence of confessions and of facts derived from prisoners through promises or threats on the ground of public policy. He explained that no such rule ever existed, that the idea was novel and dangerous, and that the admissibility of a confession depends solely on whether it is credible. Moreover, he clarified that this principle concerning confessions does not affect the admission or rejection of factual matters, whether the knowledge of those facts was obtained through an extorted confession or through any other source, because a fact, if it exists, exists in the same manner regardless of the reliability of the confession from which it was derived. An additional case noted in a footnote of the English Report Series involved the February 1784 session in which Dorothy Mosey was tried for shop‑lifting; she made a confession and the goods were subsequently recovered, mirroring the earlier situation. Justice Buller, with Mr. Baron Perryn concurring, observed that in a similar trial before him he had suppressed the confession evidence, yet the factual findings that followed were admissible, reinforcing the principle that improperly obtained confessions may be excluded while the subsequent factual evidence derived therefrom may be admitted.

In the case discussed, the Court observed that although the prisoner’s own confession could not be treated as evidence, any subsequent facts that were discovered as a result of that confession could be admitted, even though they arose because of the confession. The Court made it clear to all the Judges that while improperly obtained confessions were excluded from evidence, the acts performed after the confession were permissible to be proved, notwithstanding their connection to the confession. However, the Court added that if no factual discovery resulted from the confession, then the statement remained inadmissible. The Court referred to the authorities Rex v. Richard Griffin and Rex v. Francis Jones for this principle. In the case of Rex v. David Jenkins, the prisoner had been convicted before Bayley, J., for the theft of certain gowns and other articles. The prisoner had been induced by a promise from the prosecutor to confess his guilt, and after confessing he led an officer to a particular house, but the alleged stolen property was not found there. The confession itself was excluded, but the evidence that the prisoner had taken the officer to the house was initially allowed. Bayley, J. referred the issue to the full bench. The Judges unanimously held that the evidence was inadmissible and that the conviction was therefore erroneous. They explained that the confession was excluded because it had been obtained under the influence of a promise, rendering it unreliable, and that the prisoner’s subsequent conduct, also motivated by the same promise and not corroborated by the discovery of the property, was likewise vulnerable to the same objection. The Judges emphasized that the same influence that might produce a false confession could also produce false conduct.

The Court then noted that section 27 of the Indian Evidence Act appears to have been taken directly from English law. Both legal systems, the Court said, showed greater concern for a person who makes a statement before he fully understands the danger he faces than for one who is already aware of the danger. In English law, a caution provides the necessary warning, whereas in India the mere fact that a person is in custody serves as a substitute for such a caution, which is not otherwise required. Consequently, a clear distinction existed between a person who was not accused of any offence and not in police custody and a person who was in custody. The Court further pointed out that in 1912 the Judges of the King’s Bench Division had framed rules to guide police conduct. Although those rules did not have the force of law, they laid down procedural guidance. Initially four rules were formulated, and later five additional rules were added. These rules are reproduced in Halsbury’s Laws of England, 3rd edition, volume 10, page 470, paragraph 865, and they explicitly separate persons suspected of crime into those who are in police custody and those who are not.

It was observed that a person who belongs to the first class – that is, a person who is already detained on a charge – is presumed to be aware of the danger that his situation presents, whereas a person who is not in custody may remain ignorant of such danger. The law therefore adopts a more protective stance toward the latter individual, because the lack of awareness creates a greater risk that the process will not be fair. It was further noted that the Royal Commission on Police Powers and Procedure, which reported in 1928‑29 (CMD 3297), made no statement indicating that it was improper to admit into evidence statements that lead to the discovery of a relevant fact when those statements are made by persons who are already in custody. The Commission’s suggestions and recommendations were confined to safeguarding the questioning of persons who have not yet been taken into custody, or who have been taken into custody only on a minor charge, and to regulating the use of statements obtained under those circumstances.

The law, accordingly, has drawn a clear distinction between two categories of accused persons. The first category comprises those whose danger has been brought to their attention by being detained on a charge; this category also includes individuals who voluntarily surrender to custody, either by spoken words or by their actions. The second category consists of persons who remain at liberty and have not been placed under police custody. Different levels of protection are accorded to these two groups. For persons in the second category, the law has held that their statements are inadmissible. By contrast, for persons in the first category, only the portion of a statement that leads to the discovery of a material fact previously unknown to the investigating authority is admissible. Such a portion may even be confessional; for example, if a detained person declares, “I pushed him down the mineshaft,” and the victim’s body is subsequently located, establishing that death resulted from the fall, that confession becomes admissible because it has produced a new, material fact.

It was argued that this differential treatment amounts to a denial of equal protection of the law, on the ground that a statement made before a person is taken into custody would be inadmissible, whereas the same statement made after custody would be admissible. Of course, the timing of the statement and the stage at which it is made depend upon the individual who makes it. The law seeks to ensure fairness, and it does so by insisting that an unguarded statement, made without the safeguards of custody, should not be received as evidence. The need for caution is therefore present, and that caution is forcefully emphasized when a person is accused of an offence and is in police custody.

This classification is both reasonable and intelligible, and it serves a purpose that has been recognized for more than two centuries. When an ancient, time‑worn rule is challenged by modern ideas, the foundation of the rule must be examined. Upon such examination, as was attempted here, it becomes clear that the rule exists to advance justice while protecting both a suspect who has not yet been arrested and an accused who is already in custody. There is ample protection to an

The Court observed that only the portion of the accused’s statement which led to the discovery of a material fact previously unknown to the police may be admitted against him. Accordingly, the Court did not consider this limitation to be evidence of unequal treatment. The Court then referred to a recommendation made by the Royal Commission, which was recorded as follows: “(xlviii) A rigid instruction should be issued to the Police that no questioning of a prisoner, or a ‘person in custody’, about any crime or offence with which he is, or may be charged, should be permitted. This does not exclude questions to remove elementary and obvious ambiguities in voluntary statements, under No. (7) of the Judges’ Rules, but the prohibition should cover all persons who, although not in custody, have been charged and are out on bail while awaiting trial.” The Court noted that the implementation of this recommendation is a matter for the legislature to consider.

Having set out the foregoing observations and relying on the reasons given by Justice Shah, the Court agreed that the appeal should be allowed in the manner proposed by him. In accordance with the view expressed by the majority of the Court, the appeal was allowed. The Court held that Section 27 of the Indian Evidence Act and Section 162, sub‑section (2), of the Code of Criminal Procedure, insofar as that sub‑section relates to Section 27 of the Indian Evidence Act, are intra vires and do not violate Article 14 of the Constitution. Consequently, the order of the High Court acquitting the respondent was set aside, and the order of the Court of Sessions convicting the accused under Section 302 of the Indian Penal Code and sentencing him to death was restored. The appeal was thus allowed.