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Does S. 27 Of The Indian Evidence Act Violate The Terms Of Article 14? Analysis Through State Of U.P v/s Deoman Upadhyaya

Facts:
Deoman Upadhyaya was married to one Dulari, who was brought up by her cousin Sukhdei. Sukhdei had gifted some agricultural land to Dulari. Mahabir, uncle of Deoman and the cultivator of the gifted lands and Sukhdie's lands. Deoman and Mahabir entered into talks for the sale of some of these properties situated at village Anandadih to which Sukhdei refused to agree.

Citation: AIR 1960 Supreme Court 1125
Bench Members: S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah , JJ (Constitution Bench)
Date of the judgment of the Supreme Court: May 06, 1960

On the evening of June 18, 1958, an altercation between Deoman and Sukhdei broke out in which Deoman slapped Sukhdei on her face and threatened to smash it in the presence of Shobh Nath and Mahesh.

On the evening of June 18, 1958, Deoman borrowed a gandasa from one Mahesh. On June 19, 1958, in the early morning, Deoman using the gandasa murdered Sukhdei, who was sleeping in the courtyard near her house. At about dawn on June 19, 1958, Deoman was seen by Khusai hurrying towards a tank and shortly was seen by Maha Dihal (taking bath in that tank). Deoman absconded immediately after that and was not found in the village on that day.

On June 21, 1958, Deoman in the presence of the investigating officer, Shobh Nath, and Raj Bahadur Singh stated to hand over the gandasa and led the investigating officer and same witness to the tank and in their presence fetched the gandasa out of the tank, that was found by the Chemical Examiner and Serologist to be stained in human blood.

The case then moved to the trial court where Deoman was convicted and sentenced to death. Deoman moved to the high court through appeal where he was acquitted on procedural grounds. The state of UP appealed to the supreme court where the trial further proceeded.

Issues:
  1. Does S. 27 of the Indian Evidence Act violate the terms of Article 14 of the Constitution, rendering it invalid?
  2. Is Section 162(2) of the Code of Criminal Procedure invalid in so far as it relates to Section 27 of the Indian Evidence Act?

Courts Holding:
The Supreme Court set aside the decision of the High Court and declared Section 27 of the Indian Evidence Act and sub-sec. (2) of S. 162 of the code of Criminal Procedure in so far as that section relates to S.27 of the Evidence Act, are intra vires and are not contrary to Article 14 of the Constitution. Holding the Session court's decision and in the exercise of its power under Article 136 of the Constitution, The Supreme Court confirmed the sentence of death.

Ratio Decidendi:
The High Court agreed to the facts of the case but stated that the statement which led to the discovery of gandasa was inadmissible. The Supreme Court held that even though the evidence relating to confessional or other statements made by a person in the custody of a police officer is inadmissible if a part or whole statement led to the discovery of a fact, it may be presumed as untainted and is therefore declared provable. There is intelligible differentia between the accused in custody and the accused not in custody.

The legislation has two objects:
  1. To make important evidence available to the Court in the way of confession to reach the truth; and
  2. To protect the accused against coercive actions that may be adopted by the officer.

The object sought to be achieved by the difference between the two categories are:

  1. Extrajudicial confessions are not admissible as evidence in the case of an accused who is in custody, but they are admissible in the case of an accused who is not in custody.
     
  2. The number of accused who confess or provide information to the police while they are holding them would be negligible in comparison to the number of accused who do so when they are in their custody.
     
  3. An accused who is not in jail who confesses to a police officer does not receive a warning before the confession is recorded, whereas an accused who is in custody receives a factum of custody and is kept on guard; and
     
  4. In the case of an accused person who is in custody, protection through the imposition of a requirement for the admissibility of confessions is required; however, an accused person who is not in jail does not require such protection.

The classification formed by the legislature is appropriate and exempts the current case from the application of Article 14 of the Constitution as a result of these disparities between the two categories, the argument continues.

Dissenting Opinion:
Justice Subba Rao S. 27 of the Indian Evidence Act is void as it violated Article 14 of the Constitution. According to him, there was no intelligible differentia in the caution needed to be implied by the accused being taken into custody. A classification is made between the accused not in custody making a statement and the accused in custody making a statement in which the former is admissible while the latter is not.

The point raised is questioning this discrimination between these two categories of accused that is based on an extremely arbitrary distinction. There was no justifiable reason why a confession given to a police officer by an accused person who is in custody should be accepted but not one given by an accused person who is not in custody. The requirement placed in the case of the former may, to some extent, lessen the strictness of the rule, but it is irrelevant for determining whether the classification is acceptable.

Obiter Dictum:
The following significant propositions are revealed by an examination of Ss. 24 to 27 of the Indian Evidence Act and S. 162 of the Code of Criminal Procedure:
  1. Regardless of whether a person is in custody or not, any confession he makes to a police officer or whose making is procured by an inducement, threat, or promise referring to the charge against him and coming from a person in authority is not admissible against him in any proceeding in which he is charged with the crime.
     
  2. Unless it is made in the immediate presence of the Magistrate, a confession made by a person while they are in the custody of a police officer to a person other than a police officer is not admissible as evidence in a case where they are accused of committing an offense.
     
  3. The information provided by a person while in police custody, whether it be confessional or otherwise, is provable in a court action when he is accused of committing an offense if it distinctly pertains to the fact that was discovered as a result.
     
  4. If it is otherwise relevant, a remark someone makes to someone else while they are not in jail, regardless of whether it amounts to a confession, can be proven.
     
  5. Except to the extent permitted by Section 27 of the Indian Evidence Act, a statement made by a person to a police officer during an investigation of an offense under Chapter 14 of the Criminal Procedure Code may not be used for any purpose at any inquiry or trial in respect of any offense that was under investigation at the time the statement was made in which the person is concerned as a person accused of an offense.

Conclusion:
This case decided upon the question of whether Section 27 of the Indian Evidence Act reading with Section 162(2) of the Code of Criminal Procedure is intra vires or not. The majority judgment answered this question and established this landmark judgment that explains why the above article is not against Article 14 of the Constitution. The case travel through the session court to the high court and finally to the supreme court where this constitutional question was decided.

The high court of UP ruled in the favour of Deoman Upadhyaya and acquitted him on the grounds that Section 27 of the Indian Evidence Act is ultra vires. The supreme court corrected the decision that Section 27 of the Indian Evidence Act reading with Section 162(2) of the Code of Criminal Procedure is intra vires and sentenced Deoman to death using its power under Article 136 of the Constitution to put an end to this case.

Analysis Of The Author:
The majority opinion of the case reasoned upon the idea that the classification made under Section 27 of the Indian Evidence Act reading with Section 162(2) of the Code of Criminal Procedure is intra vires and not contrary to Article 14 of the Constitution, holds more ground than the Judgement of Justice Subba Rao who went to dissent with the majority judgment.

The majority decision also follows the doctrine of double effect, i.e., everything has some good effects and some bad effects, but due to those little bad effects of the stated article good effects must not be overshadowed. The part of the Judgment that explains if the person in custody has some benefits so does the person, not in custody enjoys some benefits as well is the key aspect of this Judgement.

Mentioning the objects sought by the article that is extremely important to bring justice put the final nail in the coffin to wrap the judgment. The case is a prime example where a procedural ambiguity can lead a murderer set free, but the bench handled this case beautifully and ended up serving the Justice. Written By: Abdul Haseeb, National Law University Lucknow.

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