Guest Post: Evidentiary Value of Memorandum Statements under Sec. 27, IEA for a Co-Accused

[This is a guest post by Mr. Priyank Agrawal, Advocate, M.P. High Court (Jabalpur)]

In criminal cases, it is regularly seen that investigating agencies tend to capture accused persons solely on the basis of a co-accused memorandum recorded under Section 27 of the Indian Evidence Act [Hereinafter referred as ‘Act’ for brevity]. However, through this post, I’ll attempt to illustrate that this is a wrong practice adopted by investigating agencies which stands in contrast with the law laid down by the Supreme Court. Further, I also make an an attempt to scrutinise the law as laid down by the Supreme Court in Mehboob Ali v. State of Rajasthan [(2016) 14 SCC 640].  

The general principal of law is that a confession made to a police officer is inadmissible in law, as is enumerated under Sections 25 and 26 of the Act. Section 25 provides that no confession made to a police officer by an accused person can be proved against him. Likewise, Section 26 states that no confession made whilst in police custody can be proved against the accused. However, Section 27 of the Act, which is not pleasingly articulated, carves out an exception to the prohibition contained under Sections 25 and 26 of the Act and enables certain statements made in police custody to be proved. 

Section 27 of the Act is reproduced herein for sake of reference:

Section 27. How much of information received from accused, may be proved

Provided that, when any fact is deposed to as discovered inconsequence 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. 

The scope and ambit of Section 27 of the Act was in issue before the Privy Council in Pulukuri Kottaya v. Emperor [AIR 1947 PC 67] , which still stands as the most quoted authority on the subject matter. Detailing the scope of Section 27 of the Act, the bench held as under: 

“[I]t is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact”    

As a result of this judgment — which has been followed in several other cases since — it was fairly settled that the expression ‘fact discovered’ includes not only physical object produced, but also the place from which it is produced and the knowledge of the accused as to this i.e. ‘mental state’ of an accused. 

An interesting observation was however placed by the Supreme Court in the case of Mehboob Ali (supra) wherein, the Hon’ble bench was posed with the question whether information regarding other accused persons to establish conspiracy considered as ‘fact discovered’ u/s 27 of the Act. 

The Court answered this in the affirmative. It was held as under:

“The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of the other accused persons and the entire chain of circumstances clearly make out that the accused acted in conspiracy as found by the trial court as well as the High Court.”   

The effect of the aforesaid proposition laid down in Mehboob Ali is that solely on the basis of a co-accused’s memorandum under Section 27 of the Act other accused persons can be nabbed. However, contrary opinions have been placed in other judgments of the Supreme Court which are of the view that a statement made under Section 27 of the Act can only be used as against the person making the statement and not against co-accused persons. In Lohit Kaushal v. State of Haryana [(2009) 17 SCC 106], it was held that disclosure statements made to police are hit by Sections 25 & 26 of the Act and can only be used to a limited extent provided under Section 27 of the Act, and that too only against the person making the statement. 

There is a catena of judgments wherein the courts have consistently taken a view that the disclosure statement of any accused can only be used against its author and not against any other co-accused person. In the pre-independence era, cases such as Abdul Basha Sahib v. R [AIR 1941 Mad 316] and Satish Chandra Seal v. Emperor [AIR 1945 Call 137], were of the view that Section 27 of the Act does not sanction letting in statements of one person made to a police officer as evidence against another person. 

In view of the above-mentioned contrasting pronouncement made by the Supreme Court in Mehboob Ali’s case, certain questions arise for consideration, which are as follows: -

• Whether a confession made by a co-accused in his memorandum under Section 27 of the Act is admissible as evidence against another co-accused? 
• If the answer to former question is in affirmative, then to what extent can the said evidence be used against the co-accused? Can he be solely arrested on the basis of the co-accused memorandum u/s 27 of the Act?
• Whether ‘fact discovered’ as envisaged under Section 27 of the Act includes information regarding other co-accused to establish charge of conspiracy? 

The law on this subject was deliberated by the Supreme Court in Hari Charan Kurmi v. State of Bihar [AIR 1964 SC 1184], and it held that in dealing with a criminal case where the prosecution relies upon the confession of one accused person against other accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court can turn to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. In other words, it was decided that the memorandum statement of a co-accused can be used against the accused only to lend assurance to the conclusion drawn by appreciating other evidence as against the said accused person. 

The Privy Council in the case of Bhuboni Sahu v. The King [AIR 1949 PC 257], was also of the view that the confessional statement cannot be used as substantive evidence against co-accused. 

On perusal of Section 30 of the Act, it is no doubt clear that confession of a co-accused has to be regarded as amounting to evidence in a general way, but the same cannot be considered as ‘Evidence’ as defined under Section 3 of the Act. A case against an accused cannot be solely made out on the basis of the confessional statement of a co-accused person, and such a statement can merely be used to lend support to other evidence against him. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by the Court in Kashmira Singh v. State of Madhya Pradesh [AIR 1952 SC 159], and has been reiterated in recent judgments as well such as Kusal Toppa and another v. State of Jharkhand [(2019) 13 SCC 676] and Asar Mohammad and others v. State of Uttar Pradesh [(2019) 12 SCC 253]. 

It is apposite to mention herein that the misuse of Section 27 of Act is not an unknown phenomenon, as was observed by the Supreme Court in Geejaganda Somaiah v. State of Karantaka [(2007) 9 SCC 315] where it was observed that Section 27 of Act is subject to being frequently misused by police and thus the courts are required to be vigilant about its application. It is largely seen that the memorandum under Section 27 of the Act almost always contains confession by the accused and therefore the possibility of fabrication / manipulation of such memorandum by the investigating agency cannot be ruled out.

The Supreme Court in Mehboob Ali’s case, in my opinion, has exceeded the ambit of ‘fact discovered’ to establish charge of conspiracy without deliberating much upon its legal ramifications. If such information of conspiracy is construed as ‘fact discovered’ and made admissible by virtue of Section 27, it would have a direct bearing on the co-accused person which is impermissible as per the law laid down by the Constitution bench in Hari Charan Kurmi’s case. 

Interpretation of Section 27 of the Evidence Act ought to be done with utmost care so that it doesn’t render Section 25 and 26 a nullity. If the position as has been laid down through Mehboob Ali is incorporated in practice, it would give unfettered power to the investigating agency to misuse Section 27. 

The appropriate approach has been enunciated by the Constitution bench in Kurmi, that although the memorandum statement of co-accused has to be considered as evidence by virtue of Section 30 of the Act, at the same time, it has to be borne in mind that it cannot be treated as substantive of evidence against a co-accused and so the prosecution cannot built its case upon the statement of a co-accused. The proper method would be to first gather other evidence against an accused, then arrive at a conclusion, and only after this the statement of co-accused can be considered to get assurance as to the propriety of the conclusion arrived.