V. Khalid, J.
1. This is an application filed under Section 482 of the Code of Criminal Procedure by the second accused in Crime No. 757 of 1978 of the Central Police Station, Ernakulam, to quash the order passed by the Chief Judicial Magistrate, Ernakulam, directing the petitioner to appear in his court on 15-3-1979 to be placed in the custody of the police for a period of four days from 15-3-1979 noon till 19-3-1979 noon.
2. The circumstances under which this petition has been filed are as follows: Crime No. 757 of 1978 was registered by the police against the petitioner and another person for offences punishable under Sections 419, 420 and 471, read with Section 34 of the I.P.C. The accusation against the accused is that they forged certain documents and cheated the Andhra Bank to the tune of Rs. 500/- and took delivery of certain steel items meant for some other consignee. It was further alleged that the steel items were sub-sequently sold by the accused persons to some other dealers. The occurrence is alleged to have taken place on 28-9-1978 and the crime was registered on 8-10-1978. When the petitioner learnt about the registration of the crime, he surrendered before the Chief Judicial Magistrate, Ernakulam on 21-12-1978 and moved for bail. He was released on bail on the same day. sub-sequently on the request made by the investigating officer, the Chief Judicial Magistrate directed the petitioner to appear before the officer for interrogation in connection with the investigation of the case. Pursuant to the said direction, the petitioner appeared before the officer on 3-1-1979 and he was interrogated by the head constable attached to the Central Police Station. It was thereafter that the investigating officer submitted a further report requesting the Court that the petitioner be remanded to custody of the police to enable him to effect certain recoveries on information to be furnished by the petitioner. The petitioner objected to this request. The Chief Judicial Magistrate, however, allowed the petition and passed an order -which is under attack in this petition.
3. The petitioner's counsel submits that the order passed by the Court below amounts to an abuse of the process of Court, and is violative of Article 20(3) of the Constitution. Even in the bail application submitted by the petitioner, he had made it clear that he had no information to be passed on to the police in connection with the crime. In the written objection filed by him, to the report made by the police for his custody, he had further stated reiterating his earlier submission that he knew nothing about the facts and circumstances relating to the alleged crime. Counsel further submitted that there -was no provision in the criminal procedure code to enable a Court to remand an accused person to custody for the purpose of getting a confession for the purpose of recovery on the information to be furnished by the accused.
4. The State has filed a counter-affidavit. that is sworn to by the investigating officer. What is stated in para' 3 is:
On these informations the respondent-officer wanted the custody of the petitioner to make an effective recovery under Section 27 of the Evidence Act. For this purpose, the respondent moved the Chief Judicial Magistrate on 15-3-1979,
And in para 4 that: 'the learned Chief Judicial Magistrate has got ample powers to issue such an order', to remand the petitioner to custody lender Section 437(5) of the Code of Criminal Procedure.
5. From the materials available it is clear that the specific purpose for which handing over of the petitioner to the police custody is sought, is to make 'an effective recovery under Section 27 of the Evidence Act.' Apart from the constitutional guarantees available to an accused person, I have no-hesitation to hold that to accede to the request now made in the petition by the investigating officer would be lending the assistance of this Court to aid the police to bring pressure on the accused person to extract information from him which he voluntarily is not prepared to give or bound to give. There is no obligation on the part of the accused person to make any statement to the police. He can always keep his mouth shut. The police cannot compel him to make any statement. In this case, the petitioner has made it abundantly clear that he has no further information with him to be passed on to the police regarding any recovery except that was given by him to the police. Under these circumstances, to file a petition to persuade the Court with the avowed object of getting the petitioner into custody is nothing more then an abuse of the process of Court and this can never be countenanced in law.
6. Narayana Pillai J., in a recent judgment reported in Sekharan v. State of Kerala 1979 Ker LT 337, has this to say about Section 27 of the Evidence Act:
It is high time to consider whether our Evidence Act which was enacted more then a century back in colonial days of the West should not be radically altered to suit the genius of the Orient. Before embarking on any reform in that direction careful study has to be made about the clear demarcation to be made of the areas where each of the two values-value of truth and value of justice-should be allowed to prevail over the other. Serious thought has also to be given to the question whether the provision as it is in Section 27 should not be taken away from the Evidence Act, it being a blot affecting the self-respect of the nation. But so long as that section forms part of our Evidence Act Courts have to give effect to it.
With respect, I am in complete agreement with the desire to change the law, expressed by my learned brother in the portions extracted above.
7. It has been the experience of courts dealing with criminal cases to see an unnecessary anxiety on the part of the investigating officers to somehow bring on record a Section 27 recovery, for, they fear that in the absence of a Section 27 recovery the entire investigation will be looked at with suspicion by courts of law. The apprehension cannot, from experience, be said to be well founded. It is where courts of law see an unseemly anxiety on the part of the investigating officers to bring to record an artificial Section 27 recovery, based on confession wholly suspicious, that the entire investigation becomes suspect. And more often then not, such recovery tends to taint the entire investigation with an element of dishonesty. The investigating officers, when not possible, should present to Court a neat investigation, without bringing on record the recovery based on incorrect and false materials, An accused does not normally unburden himself with the information about the weapon with which he committed the offence. It is only rarely that an accused person voluntarily gives information about such weapons and when such statements are made voluntarily, the police can make use of it under Section 27 of the Evidence Act. In this case, when the Investigating Officer has admitted that he has with him the names of the dealers to whom steel items have been sold by the petitioner, it is too much for him to request the court again to get the petitioner to custody to get information from him about the items alleged to be sold by the petitioner to the dealers. Any amount of deprecation of this procedure will not be too much and the Court below committed a grievous error of law in allowing the petition and directing the petitioner to appear before him to be handed over to the police for this specific purpose.
8. In the United States, where investigation is done in a far more open way, confessions are admitted if there is clear evidence that no undue influence, pressure or inducement is brought to bear upon the accused. Under the American law, the mere fact that a confession is made while the confessor is under arrest or in the custody of a police officer does not render it inadmissible in the absence of any force or violence compelling the confession or of any inducement, threat or promise or hope of benefit or reward held out by persons in authority. The prosecution cannot vise statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. These safeguards include a right to counsel during such interrogation and warnings to the suspect or accused of his right to counsel and to remain silent. The right to counsel during interrogation is not only denied to the accused in our country but the police look down upon the presence of counsel at the time of interrogation. Neither in, England nor in America is there a provision of law similar to Section 27 of the Evidence Act. Perhaps, Section 27 was enacted to facilitate investigation to achieve the desired object, for, it is said that a Section 27 recovery is a guarantee that the information given is true which thus helps the investigating officers to establish the guilt. Over the years, the danger latent in this section has been felt by the Judges and lawyers alike. This perhaps was the very reason Which persuaded Narayana Pillai, J. to say that it was high time that this section be deleted from the statute.
9. It was contended by the petitioner's counsel that to allow the petitioner to be remanded to police custody for the purpose of securing a confession within the ambit of Section 27 of the Evidence Act is violative of Art 20(3) of the Constitution. In support of this contention he brought to my notice the decision reported in Nandini Satpathy v. P.L. Dani : 1978CriLJ968 , which states in paras 53 and 54 thus:
We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Artcle 20(3) goes back to the stage of police interrogation-not, as contended, commencing in court only. In our judgment the provisions of Artcle 20(3) and Section 161(1) sub-stantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is underway, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative polixity, overbearing and intimidatory methods and the like-not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Artcle 20(3).... A police officer is clearly a person in authority. Insistence on answering is a form of pressure especially in the atmosphere of the police station unless certain safeguards erasing duress are adhered to. Frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure violating Artcle 20(3). Legal penalty may by itself not amount to duress but the manner of mentioning it to the victim of interrogation may introduce an element of tension and tone of command perilously hovering near compulsion.
Therefore, a confession obtained by unfair means including a command from a person placed in authority will be violative of Artcle 20(3). An accused person or even a suspect will therefore be justified in seeking the aid of the Court to save him from the clutches of the police in exercise of the constitutional right guaranteed under Artcle 20(3).
10. The learned State Prosecutor contended that the Court had ample powers under Section 437(5) to cancel the bail of a person enlarged on hail and remand him to custody and therefore there was nothing wrong in the report made. The section is perfectly understandable. But this section cannot be used for the purpose on hand. The section reads:
Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
The object of the section is to enable the Court, on sufficient materials being placed before it, to cancel the bail granted or to direct that such person be arrested and committed to custody. This. sub-section contemplates a situations where a person enlarged on bail has misused the freedom granted or has disobeyed the conditions imposed or has imperilled the smooth course of investigation or has done such acts as in the opinion of the Court are sufficient, in its opinion to cancel the bail already given. To extend the principle contained in the above sub-section to the case on hand would not only be doing violence to the sub-section but to override the principles under which a citizen's liberty is safeguarded. A Court has no right to direct a person to be committed to custoday for the purpose of securing recovery under Section 27. Sections 25 - 27 were enacted out of distrust of the existing police (1872) and the apprehension that they may misuse extensive powers if confessions made to them by the accused persons are made admissible in evidence. While admissions under Sections 25 and 26 are wholly inadmissible, Section 27 is an exemption or a proviso to the above sections. Though there is safeguard in the section not to use anything other then the material' which leads to discovery, the section is more misused then used. The prayer to allow the person accused of a crime to be remanded to police custody for the specific purpose of securing a confessional statement has therefore to be negatived.
11. Before setting aside the order of the Court below I would also wish to observe that it is time for the powers that be to consider the deletion of Section 27 from the statute. The blatant manner in which the investigating officer has made the request to the Chief Judicial Magistrate to make available the petitioner to custody of the police for the purpose of an 'effective recovery' speaks eloquently in favour of deletion of this section from the statute.
In the result, the Crl. M.P. is allowed and the direction of the Court below is set aside.