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State Vs. Memon Mohamad HusaIn Ismail and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal Nos. 491 and 784 of 1958
Judge
Reported inAIR1959Bom534; (1959)61BOMLR715; 1959CriLJ1419; ILR1959Bom1244
ActsEvidence Act, 1872 - Sections 8, 24, 25, 26 and 27; Code of Criminal Procedure (CrPC) , 1898 - Sections 162; Code of Criminal Procedure (CrPC) , 1861 - Sections 150
AppellantState
RespondentMemon Mohamad HusaIn Ismail and anr.
Appellant AdvocateE.B. Ghaswala, ;Y.S. Murudkar and ;R.M. Joshi, Advs.
Respondent AdvocateC.C. Vaidya, Assistant Govt. Pleader
Excerpt:
.....police officer showing that offence committed by him -- such person whether deemed to be in police custody within section 27.;the words 'information received from a person accused of any offence' in section 27 of the indian evidence act, 1872, cannot be read to mean that he must be an accused when he gives the information but would include a person if he became subsequently an accused person, at the time when that statement is sought to be received in evidence against him.;deonandon dusadh v. king-emperor (1929) i.l.r. 7 pat. 411, jalla v. emperor [1931] a.i.r. lah. 278, queen-empress v. babu lal (1884) i.l.r. 6 all. 609, f.b. and emperor v. cunna (1920) 22 bom. l.r. 1247 referred to.;where a person goes to a police officer and makes a statement which shows that an offence has..........it is provided therein that no confession made to a police officer shall be proved as against a person accused of any offence. it has been observed in narayana swami v. emperor : 'a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession.'this being so the statements in exhibit 29 not being confession, cannot be excluded by provisions of section 25 of the evidence act. it would further appear that since this statement happens to have been made to the police prior to the commencement of the investigation in the case it could not possibly be hit by section 162 of the criminal procedure code, vide sital.....
Judgment:

Patel, J.

1. (After stating the facts and the contentions His Lordship continued:) Before dealing with the evidence at this stage I might dispose of the contention with regard to the admissibility of Exhibit 29 containing some admissions and of statements made by the accused and reproduced in the panchnama regarding the discovery of the body. So far as the question of Exhibit 29 is concerned, an objection to its admissibility was raised at the time when that document was put in and has been renewed in this Court at the time of arguments, though not very seriously. It would appear that the said statement would be admissible under Section 8 of the Evidence Act as showing the conduct of the accused subsequent to the death of the deceased in any event. It would also appear that it is not hit by the provisions of Section 25 at all in this case. In order that Section 25 should be operative to prevent an admission being received in evidence, it must amount to a confession for it is provided therein that no confession made to a police officer shall be proved as against a person accused of any offence. It has been observed in Narayana Swami v. Emperor :

'A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession.'

This being so the statements in Exhibit 29 not being confession, cannot be excluded by provisions of Section 25 of the Evidence Act. It would further appear that since this statement happens to have been made to the Police prior to the commencement of the investigation in the case it could not possibly be hit by Section 162 of the Criminal Procedure Code, vide Sital Chandra v. State, : AIR1956Cal82 . We are therefore of the view that Exhibit 29 is admissible not being a confession.

2. With regard to the panchnama Exhibit 54, or what will be more appropriate to state the statements of accused reproduced in the panchnama or deposed to by witnesses which are sought to be provide, it is argued that these are not admissible under Section 27 of the Indian Evidence Act. The learned counsel argues that Section 27, which says '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' would show that the information must be given or a statement must be made by a person who at that time is accused of any offence and is in the custody of the police. If these two conditions are not satisfied then even if it satisfied the other conditions of the section it is not admissible. For the proposition that at the time of making the statement he must be an accused person the learned counsel has relied on Deonandan Dusadh v. Emperor, reported in ILR Pat 411: AIR 1928 Pat 491, and Jalla v. Emperor reported in AIR 1931 Lah 278. In ILR Pat 411: AIR 1928 Pat 491, it was held that a statement made by a person who was not accused of an offence at the time of making the statement, was not admissible under that section. In coming to this conclusion reliance was placed on the case of Queen-Empress v. Babu Lal reported in ILR ALL 509 which is a Full Bench case. The question referred to the Full Bench was whether or not Section 27 was a qualification to both Sections 25 and 26 or only to Section 26. It appears there was some difference of opinion in the case decided in that Court; in one of the case Mr. Justice Mahmood had held that Section 27 was merely a proviso or a qualification to Section 26 and had no bearing on Section 25; which resulted in making every statement made to a police officer inadmissible in evidence even it satisfied the condition laid down in Section 27. The other view was that it was a proviso to both section 25 and 26. The majority of the Judges constituting the Full Bench held that Section 27 was applicable as a proviso to both Sections 25 and 26. Mr. Justice Oldfield does not construe the section in this manner, nor does Mr. Justice Brodhurst. It would appear that the learned Judge state at page 519, after giving an illustration of a person immediately after committing a murder going to the Police station and giving himself upto the Police office and making a statement before that officer and his subordinates of all the facts and pointing out the body of the victim and giving up the weapon with which he had committed the murder, that Section 27 would still be applicable to a case like that. The learned officiating Chief Justice held that Section 27 is applicable as a proviso to both Sections 25 and 26, and Mr. Justice Duthoit expressed a general opinion without expressing any opinion as to the construction of Section 27 itself. It is only Mr. Justice Mahmood who construed Section 27 in the manner suggested while dealing with the argument as to whether it is a qualification to Section 26 or to Section 25 as well. That case therefore cannot be regarded as an authority four the suggested construction. The Lahore case seems to construe the section in the same way.

3. In Section 24 of the Evidence Act, words precisely similar to those used in Section 27 are used; it refers to a confession made by an accused person and if the contention that is now made is accepted, it might introduce a great deal of injustice to persons accused of an offence because all confessions made by a person before he became an accused, would be admissible even if they were obtained by inducement, threat or promise. Section 24 in considered in the case of Emperor v. Cunna, 22 Bom LR 1247; AIR 1920 Bom 270. Sir Lallubhai Shah at p. 1261 (of Bom LR): (at page 273 of AIR) says that section will be applicable to a confession made by a person, who becomes subsequently accused on an offence. The other Judges in effect accept this, but they differed from the learned Chief Justice on the question of fact as to whether the confessions were made by inducement, threat or promise. The phrase has been used in both sections and it must be interpreted in the same manner in both sections. No possible reason can be suggested why it should have a different meaning. We are therefore of opinion that the words information received from 'a person accused of any offence' in Section 27 cannot be rad to man that he must be an accused when he gives the information but would include a person if he became subsequently an accused person, at the time when that statement is sought to be received in evidence against him.

4. So far as the further requirement of being in the custody of the police is concerned the words of the section are there. The object and reason of the rule, which excludes confessions and statements as inadmissible in evidence if they are made in the presence of or to police officers or where investigation is going on, is that there is likelihood of their having been obtained by unjustifiable means. The reason of the exception contained in Section 27 would appear to be that though they might have been improperly obtained, if a discovery of facts is made then there is great likelihood of the statements being true and if this is so, it is difficult to see the reason or the sense of the rule requiring that when the statement is made the person who makes that statement should and ought to be in custody before it could be received in evidence. If the reason of admitting this statement is what I have stated before, it would be much more likely to be true when made by a person who is not in custody as it would be without any pressure at all and being voluntary cannot offend any rules of moral Justice. One way out of the difficulty of the words in the statute would be to disregard those words as being superfluous and not intended by the legislature, in the sense in which they appear and that is the justifiable procedure. The other way is to read the words 'even if' before the words 'in the custody of Police' which is also permissible to give sensible meaning to the section. James Stephen the draftsman of the Indian Evidence Act in his Introduction to the Indian Evidence Act while discussing confessions at page 165 of the 1892 edition (which is a reprint of the 1872 edition) says:

'Admissions in reference to crimes are usually called confessions. I may observe upon the provisions relating to them that Sections 25, 26 and 27 were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act XXV of 1861.' Section 150 of the Criminal Procedure Code Act 25 of 1861 reads as under:

'When any fact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt, or not, as relates distinctly to the fact discovered by it, may be received in evidence.' It appears in 1869 in Act VIII of 1869 this section was modified by the addition of the words 'or in the custody of a police officer' after the words 'a person accused of any offence.' If the intention was to reproduce the provisions contained in Section 150 of the Code of Criminal Procedure 1861 it is apparent that the intention was to make the statements admissible even if a person was in custody. It appears therefore that it would be the better way of reading to provisions of the section which course is permissible in order to make the meaning of the section sensible. See Maxwell on Statutes pages 236, 237 (9th edition). If that is the correct view, then all these statements were made, as a result of which facts mentioned were discovered and would therefore be admissible in evidence.

5. Even assuming however that it will not be permissible to disregard the words of the section or read 'even if' as suggested then, we are clearly of the view that the case falls within the authority of cases Santokhi Balder v. Emperor, : AIR1933Pat149 and Legal Remembrancer v. Lalit Mohan Singh Roy, ILR Cal 167; AIR 1922 Cal 342 with the conclusions of which we agree. The ratio of those cases is that where a person goes to a police officer and makes a statement which shows that an offence has been committed, the accused himself and though he is formally not arrested since he is not free to move wherever he likes after disclosure of the information to the Police he must be deemed to be in custody of the Police. (Rest of the judgment is not necessary for the purposes of this report.

6. Appeal by the State allowed,

7. Appeal by the accused dismissed.


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