Freedom of Religion and the Limits of Criminal Law

Seventy years on, the Indian state is yet to have a clear grasp of its relationship with the ideas of religious identity that each of its citizens is free to express under the Constitution. A secular state that has always been uncomfortable with expressing aloofness about religious beliefs, India has often struggled to clearly draw a line separating the ideas of religion from that of a nation, often creating a situation where the state finds its way into the realm of an individual's private space of her religious beliefs. This is not to say that I am in favour of a hard separation or think that it is necessary in each case, but only to make the limited point that these struggles to clearly demarcate zones of non-interference have existed for quite some time. 

At the same time, perhaps one basic line that (somehow) the state had maintained up till recently was a formal recognition of personal autonomy: laws might curb activities of those who aggressively proselytise to get people to change their religion (such as the Orissa Freedom of Religion Act 1967), but the law would not directly penalise the persons making this choice itself.     

Somewhere along the road though, it seems a switch was flipped, and it became acceptable for legislatures to no longer respect this precept. What followed is many laws which actively penalise the temerity to exercise the freedom of choice in favour of retaining a broader community interest in the expression of religious identity. In this version of reality, many laws masquerading as tools to secure the freedom of religion can be found, such as the Himachal Pradesh Freedom of Religion Act 2019. It is nothing short of a state-sponsored effort to create mechanisms and pathways which enable the society to totally overwhelm individual autonomy in matters of religious identity. After all, how else can one explain the law's bias when it creates a truly monstrous legal apparatus to deal with individuals who move out of a religious fold, but keeps it at bay if individuals are returning to whatever religious beliefs one is deemed to have had by virtue of being born into a fold.

The legal scheme works in two ways: criminalisation against those who allegedly force / induce / marry another to change their religion by way of offences that are non-bailable in nature and permit arrests without any warrants, but this is now broad and also punishes anyone who abets this act and so potentially applies to the person changing their religion. This is coupled with the creation of an oppressive legal regime which requires any person desirous of changing religious beliefs to make declarations to this effect before a District Magistrate, with similar notice requirements also being imposed on priests involved in any ceremonies that might be involved (All this, remember, won't apply if one returns to the parental religious fold). The Magistrate is legally-bound to inquire into the intention behind any such proposed move, and what's more, this inquiry can even be through the police. Yes: a law requires you to tell the state if you plan on changing your religious beliefs, and empowers the police to "inquire" into why you're doing it — all this while the Constitution is busy guaranteeing your privacy.

But all this is not what makes the law monstrous: this epithet is earned by the provision which states that the burden to prove that any "conversion" of religion is free from fear / inducement / even marriage, lies on the person who chooses to change her religious beliefs along with whoever facilitated this exercise of religious freedom. In one fell swoop, not only does the law manage to place individual autonomy under suspicion, but it also exposes the individuals and their loved ones to a trial by fire for a private choice that they make. This is the bottom line in a system like ours — it is never about trial and punishment, which rarely anyone cares about, but it is about merely triggering the criminal process which ensures even the innocent must face considerable harassment before clearing their name. 

What is this "Freedom of Religion Act" telling us then? That one is free to exercise the right to choose one's religious beliefs, subject to the state's satisfaction with possible penal consequences. Of course, the state will bother to inquire only if individuals choose to leave their parental religious fold, not when they "choose" to return to it. Thus, state and society seamlessly merge to combine the forces of public disapproval with the might of police / other agencies, leaving privacy and individual autonomy out in the cold. 

I won't be surprised if the current sprint between many states to suitably "protect" individuals being forced / conned into changing their religion ends up with the Himachal Pradesh statute being replicated across the length and breadth of the country soon. I will wonder, though, if that might be that gust of wind which blows out the dying embers of India's tryst with its transformative constitutional vision.  

Guest Post: Circumstantial Evidence — Time to Reassess the "Panchsheel" Approach?

(This is a guest post by Anam Chowdhary)

A trial more often than not revolves around disputed facts – facts that one side would want to prove and the other would want to disprove. The Indian Evidence Act, 1872 (hereinafter ‘Act’) essentially works in the realm of two categories of facts – facts in issue and relevant facts. While Section 3 of the Act clearly defines these facts, in colloquial terms, it can be stated that facts in issue are those facts which underpin the entire trial, in the sense that if these facts are proved or disproved, the matter in enquiry would come to an end, and liabilities, rights, etc. would be put forth for the parties concerned. As an example, in a trial for murder, the facts of mens rea, actus reus, and causation, would be required to be proved in order to establish the guilt (liability) of the accused and thus these facts would be the facts in issue i.e once proved/disproved would answer the question of guilt or of any other liability or right. Relevant facts on the other hand are such facts which are connected to the facts in issue and when proved/disproved, lead to an inference about the facts in issue. Whether a fact is relevant or not is purely a question of law and has to be decided keeping in mind the instances of relevancy provided in the Act.

Facts are proved / disproved via evidence i.e. the existence / non-existence of facts shown through evidence. Section 5 of the Act makes it clear that the Act envisages evidence to be provided for only Facts in issue and Relevant facts. Thus, it can be stated that a party can provide direct evidence for a fact which is in issue and for a relevant fact. While providing evidence for a fact in issue would help determine the core question of rights or liabilities, evidence would be provided for relevant facts so that these facts would lead to an inference about the existence or non-existence of facts in issue, would prove / disprove the fact in issue. This is where circumstantial evidence enters the discourse of the Indian Evidence Act. By allowing evidence to be provided for relevant facts the Act, though not expressly, paves the way for these facts to become evidence for the facts in issue – these relevant facts then become circumstantial evidence for facts in issue. Thus, circumstantial Evidence can be defined as those unrelated facts (relevant to a facts in issue) which when considered together lead to an inference regarding a fact in issue. Circumstantial evidence can be the basis of conviction, and thus, is an integral part of criminal trials.

In this context, I want to deal with a simple issue that is often discussed: the parameters regulating what courts accept as “circumstantial evidence”. My argument is that the existing threshold, established by the Supreme Court, is flawed as it fails to properly filter out unreliable and irrelevant facts, while building up a chain of inferences towards proving guilt based on circumstantial evidence.

The Panchsheel Test (hereinafter ‘Test’)

The law on convictions based on circumstantial evidence has been put forth by the Supreme Court in form of a‘Panchsheel Test’: 

“(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.”

The usage of circumstantial evidence is largely based on inferential reasoning (read on) and this test attempts to provide a yardstick for this inference to go in the ‘right direction’. But, the loose wording and the subsequent application of the Test has shown that much of the jurisprudence around circumstantial evidence is still unclear, problematic, and left too susceptible to judicial discretion, as shall be discussed below.

Panchsheel - A Weak Gatekeeper of Facts

On a plain reading of the Test, one can make out that it governs the facts that can become a link in the chain of circumstantial evidence. Point (1) and (3) of the Test hint towards the proposition that the facts that form the basis of inference should be proved. This when read in consonance with the Section 5 of IEA, can be understood to include only relevant facts which have to be proved by evidence. The way courts have applied this Test shows that not much thinking has gone into these basic requirements that the facts must fulfil as the first step — relevancy and then being proved. Time and again irrelevant facts have been included as the links in the chain of circumstantial evidence using the Test, and often such facts have been included which have not been proved properly and can be discarded as ‘not proved’ under Section 3 of IEA. This poses a problem as the Courts can then include everything and anything as a link in the chain of circumstantial evidence which can ultimately prove fatal to the cause of justice.

In State of Uttar Pradesh v Rajesh Talwar, to ‘fill the missing links’ in a case revolving around circumstantial evidence, the trial court considered the denial of the incriminating circumstances by the accused persons under Section 313 of CrPC as a relevant fact whereas the section clearly mentions that false pleas would be used as evidence . By using false pleas as a missing link, the court considered it as a relevant fact when it was never a "fact" in the first place. This shows how facts which are not relevant or are not even facts, are made relevant for the sake of the Test. Another example could be the Priyadarshini Mattoo case, where the court made the mother’s suspicions about the accused relevant under Section 6 of the Act in a very unclear manner even though the fact did not lead to much of an inference about the fact in issue. The dissenting judgement in Sharad Birdichand Sarda [the progenitor of Panchsheel] throws light on the problem of how facts which are not even proved properly enter the realm of circumstantial evidence using the Test. The issue there was whether the husband had murdered his wife by poisoning her. The Court decided that the wife had committed suicide. The dissenting opinion points out how the majority opinion includes facts (like extra-marital affair of the husband, ill-treatment by in-laws, etc. to show why the woman would have committed suicide) which were not even proved, to complete the link in the chain of the circumstantial evidence. It can be said that such inclusion of facts can also be the result of the judge having drawn a conclusion beforehand (in this case, the conclusion that the woman committed suicide) based on the available facts and now trying to fill the missing links in a manner that could support that preconceived conclusion.

Thus the manner in which the Courts have acted in contravention to basic principles of IEA (relevancy and the need for the fact to be proved) to consider a fact as a link in the chain of circumstantial evidence is apparent. If it was not for the links in the chain and satisfying the Test, these facts would not have qualified as relevant facts or facts which are proved.

The Obsession With The ‘Chain Metaphor’

It is quite apparent that the Test lays much emphasis on the completion of a chain by using the facts as the links. This has popularly been called the ‘chain metaphor’ in R v Exall. This metaphor gives importance to the completion of the chain but it is pertinent to mention here that not all cases are links in chain type of cases, some can even be ‘strands in a cable’ cases. The express mention of a chain metaphor in the Test excludes the possibilities of such cases being decided on the basis of circumstantial evidence, where the situation could not be proved by the chain metaphor but by the ‘strands in a cable’ metaphor as explained in the case of R v Exall.

If the Test only foresees the chain metaphor kind of cases, it might seem that for the ultimate inference to be drawn (as inferred from point (2) of the Test), all links must be there which would make the ‘story’ complete. Instead, using ‘strands in a cable’ metaphor would allow for having different facts which may not be links of a chain per se, but could then be considered in total to determine the inference to be drawn. Anyways, the inference has to be drawn not from one line of proof alone but from all the present lines of proofs which would make the whole story incriminating and including only the chain metaphor would be equivalent to narrowing the ambit of circumstantial evidence. Further, looking at the issue practically, the cable logic involves greater judicial discretion than what might be imagined while thinking within the chain logic. If we only limit the discretion to chain the metaphor, then it is more likely than not that for the sake of completion of the chain, bad decisions might be rendered which might be reversed in appeals – the Rajesh Talwar and Sharad Birdichand  are good examples of this. Therefore, usage of the cable metaphor might help to reduce the costs incurred in obtaining appellate reversals.

Having said that, it has to be understood that determining which metaphor applies to which case is not an easy task and sometimes, a case can be an amalgamation of the two metaphors — testimonies of fact would be under the chain metaphor and then other facts can be added to this fact using the cable metaphor. Keeping the issues in mind, it would be prudent that the Test should include not only the chain logic but the cable logic as well, to include every possible situation within the realm of circumstantial evidence and draw proper conclusions from the same.

The Question of Proof Beyond Reasonable Doubt

In Chamberlain v Queen, it was stated that all the constituent facts have to be proved beyond a reasonable doubt and this came to be known as the ‘Chamberlain direction’ which is also followed in India as can be seen in Sathya Narayan v State.

Contrary to this understanding, it is suggested that the Test should state that for the individual facts that make up the links of the chain or the strands of the cable, the standard of proof should be based on the requirements of Section 3 IEA and not necessarily beyond reasonable doubt. When the ultimate inference is to be drawn from the total set of facts and not these individual facts, it does make much sense to subject the individual facts to such a high degree of proof. It does nothing but make the entire situation unreasonably difficult from the side of the prosecution. The ultimate inference which would decide the question of guilt should be an independent stage where it should be necessary to subject the inference to the standard of proof beyond reasonable doubt. As a word of caution, it can be said that nothing much can be proved if each and every detail will have to be proved beyond reasonable doubt. Hence, it should be made clear in the Test that the standard of establishing the individual facts may not necessarily be the standard of beyond a reasonable doubt.

The Judge Judging Too Much – The Problem of Inference

The degree of inferential reasoning involved in circumstantial evidence is problematic as there are no yardsticks mentioned in the Test to judge the parameters of inferences drawn. The ‘Hodge warning’, which discussed the apprehension of conflation of conjecture with inference, has also been taken into consideration by Indian judgements in cases like Hanumant v State of Madhya Pradesh and this substantiates the claim that unchecked inferences can be dangerous.

While it is true that inference is at work even in the case of direct evidence, the journey from evidence to the fact-in-issue is longer in the case of circumstantial evidence, as presented below:

Figure 1:

Figure 2:

The personal biases of judges play a big role in the kind of inferences that they draw from a particular situation. ‘General experience’, ‘common sense’, ‘society’s knowledge’, etc. are all misnomers as basis of this knowledge or experience would vary according to the judge. Why this becomes an issue especially in circumstantial evidence cases is because in such cases the very basis of determining guilt is a story from which an inference has to be drawn and based on such inference that the judge might have already chosen, facts only bolstering these inferences would be allowed. I would argue that this phenomenon can be seen at play in Sharad Birdichand. The majority seems to have already drawn the inference that it was a case of suicide and then went on to infer other facts in light of the inference of suicide. For instance, it was held that the door was not closed from inside because the deceased wanted her husband to come into the room once she had committed suicide. This is nothing but a bootstrapping technique at play. The problem of inference in this case did not begin here actually, the very understanding of the facts have taken place from a dominantly male perspective which impacted the manner in which rest of the facts were understood as links in the chain of circumstantial evidence for suicide.

Conclusion

The issues mentioned above show that the Panchsheel test is in need of a revamp to set a definite standard to be used in cases of circumstantial evidence. The Test can be modified into its simpler yet more definite version as follows:

1. The circumstances (facts) from which the guilt is to be drawn should be relevant to the fact in issue, under Chapter II of the IEA, 1872;
2. Such facts must be proved using admissible evidence;
3. The standard of proof of such facts should be as per Section 3 of the IEA, 1872;
4. Depending upon the case in hand, the facts can make up links in the chain of circumstantial evidence or could act as strands in the final cable of circumstantial evidence, and;
5. The inference derived from the cumulative effect of the above mentioned facts must be such that it only leads to the inference of the inference of the guilt of the accused and does not leave any reasonable ground for an alternative hypothesis of the innocence of the accused.

It is true that such redefining of the Test still does not deal with the problem of inferences but the same can be regulated to some extent if the facts that are introduced as the links in the chain or strands in the cable are relevant and proved as required by the IEA. This would at least ensure that such facts enter the realm of circumstantial evidence, which are not randomly accepted by the judge. In any circumstance it cannot be said with certainty that inferences can be regulated. But there could certainly be systemic efforts to try and reduce the impact of biases on decision-making, bolstering the existing training for judges that already takes place. The need for it cannot be over-emphasised — for in several of these cases, a person's liberty is at stake.

The Three Justices' Bench Decision in Tofan Singh

This past week, a Three Justices' Bench rendered its decision in the Tofan Singh reference [Crl. Appeal No. 152 of 2013, decided on 29.10.2020]. To recap, two questions had been placed before the Three Justices' Bench: 

• Whether an officer of the central / state government investigating a case under the NDPS Act is a "police officer"? 
• Whether statements recorded under Section 67(c) of the NDPS Act can be treated as confessional statements, regardless of whether the officer is a police officer?

By a 2-1 split [Banerjee, J. dissenting], the majority held that an officer of the central / state government empowered to investigate a case under the NDPS Act was a "police officer" for purposes of Section 25 and decisions that held to the contrary were overruled. The majority also held that statements under Section 67(c) of that Act could not be treated as confessional statements [Paras 154-55]. As this blog has considered the issues before the Court in Tofan Singh in considerable detail on earlier occasions, I am not recounting the arguments and jumping straightaway to discussing the opinions in this post.   

On Reading Section 67 Statements 

The majority took up the issue of Section 67 statements first [Paras 58 to 85]. This provision allows the officers empowered under Section 42 to record statements in connection with any "enquiry" under the NDPS Act. For the majority, this "enquiry" was different from an "investigation" conducted under Section 53 of the NDPS Act as well as an "inquiry" as it is defined in the Cr.P.C. Since an officer empowered under Section 42 had the ability to conduct all of the above, it meant that the scope of Section 67 had to be restricted to whatever the scope of this "enquiry" was. This "enquiry", according to the majority, referred to the process by which an officer arrived at a "reason to believe" that her powers of arrest / search / seizure under Section 42 had to be exercised in a case. As the majority strongly emphasised, a person's privacy is not something to be trifled with, and that is why the NDPS Act empowered officers to even record statements before exercising their powers of arrest or search and seizure. 

The majority also clarified that officers only empowered for the purposes of Section 42, but not under Section 53, could not investigate a case but only discharge the burden of Section 42, after which the case had to be handed over to a competent officer. Allowing officers to record statements under Section 67 beyond this stage would create an unseemly situation where they would not be bound by the restraints placed under the general law upon officers recording statements. Furthermore, allowing for confessions to be recorded under Section 67 would render Section 53-A of the NDPS Act entirely otiose. 

 

The dissent did not agree that the scope of Section 67 could be restricted thus, as it was of the opinion that officers empowered only under Section 42 but not Section 53 could continue to investigate a case. The neat distinction between "inquiry" and "enquiry" was made short shrift of by referring to cases where these two terms had been read as carrying the same meaning, which cast doubt on whether the majority was correctly reading legislative intent. Further, the dissent was not particularly perturbed by the issue of these statements not being governed by the legal restraints of the general law or about the impact this interpretation had on Section 53-A of the NDPS Act, as ultimately the statements would require to pass the rigours of a trial before they could become evidence of guilt. 

I must admit at having a chuckle when I read the "inquiry" versus "enquiry" discussion in the majority opinion as this had once formed the subject of an intense debate with a dear mentor. While we did not have access to "Lexico", which has been referred to by the majority, we did have Garner's Modern English Usage, which noted that the distinction between these words is not well-observed, especially in British English. A look across statutes and decisions in the context of various Indian laws would confirm that this is indeed how our legal system has also commonly treated the phrases, and not with the sharp distinction that the majority would have us work with. 

Thus, I find it difficult to agree with the majority's reasoning, where it hangs solely on this peg of "inquiry" versus "enquiry" to conclude that Section 67 is only empowering officers to record statements to decide whether or not there exist reasons to believe to arrest somebody. By no means does this take away from the seriousness of the issues that the majority identifies, i.e., the absence of safeguards governing recording of statements under the NDPS Act similar to those under Sections 161-164 of the Criminal Procedure Code. However, given the specious nature of this definitional conflict, a more legally sound alternative was to tackle this problem head on and give guidance on how Section 67 statements ought to be considered by lower courts. A good place to start could have been a clarification that Section 67 only applied to unsigned statements, as Section 53-A is a specific provision catering to signed statements, and this naturally reduced their veracity.

Section 53 Officers are Police Officers

This brings us to the other critical issue before the bench: Are government officers empowered to investigate cases under the NDPS Act under Section 53 "police officers"? It would be helpful to break up the components behind the majority opinion's logic for ease of understanding [Paras 86 to 154]:

• The term police officer is not defined anywhere and must be given a broad view, coloured by the particular statutory context in which officers are invested with powers traditionally conferred upon police officers under the Criminal Procedure Code;
• The reason behind restricting the admissibility of statements made before police officers was the acknowledgment of coercion involved in the investigative process by police officers to extract evidence from accused persons;
• Where officers are conferred such powers under a "Penal Statute" and where the purpose behind this investiture of powers is primarily to enable them to discharge an investigative function, and this investigative function is not merely incidental towards the officer discharging other functions such as revenue collection etc., such officers should be seen as "police officers" 
• The NDPS Act is clearly a "Penal Statute" and, therefore, officers empowered under Section 53 ought to be treated as police officers.

The correctness of this conclusion was buttressed for the majority by the unique statutory context of the NDPS Act. Not only was this context relied upon to conclude that it was a penal statute, but furthermore it was a unique legislation insofar as powers of investigation had been conferred under the same law to those officers who were registered as police officers under Police Acts as well as officers belonging to many other government agencies. Creating a difference in terms of the kind of material potentially available as evidence in cases which are simply dependent on the agency investigating the case would result in an outcome that is manifestly arbitrary and contrary to Article 14 of the Constitution. 

At the same time, the unique statutory context of the NDPS Act is what throws up a stumbling block for this argument in Section 36-A(1)(d), which states that a Special Court may take cognizance of offences on the basis of either a police report, or a complaint filed by officers of the central  / state government. Given that Constitution Bench judgments have held that whether the officer concerned filed a "police report" was critical towards determining whether the investigating officer was a "police officer", how did the majority still arrive at its conclusion? In a very wishy-washy way is my initial answer, as I am still unsure of what to make of the reasoning here. 

At first [Para 137], the majority opinion resembles a boxer flailing at the opponent, throwing many punches but failing to land any of them. It flags many points about why the NDPS process is different, but on its own merit, none of those points is good enough to dislodge the weight of binding precedent on this issue. Then, there is a practical argument [Para 140] about how treating these reports as complaints simplicter would preclude further investigations as that is a process reserved for police reports. Finally [Para 145], the opinion gets tired of beating around the bush and tells it like it is: Given the overarching penal context of this investigation, it should not matter what it is that the officer ends up filing, be it a police report or a complaint, to decide whether this person is a police officer. I guess the majority refrained from saying this too clearly because that might have had an impact on other statutory contexts.

The dissent did not agree with characterising the NDPS Act as a penal statute — even though it spent a fair bit of time extolling the seriousness of the drug menace and the need for stern penalties. At the same time, it held that even if the NDPS Act were to be treated as a penal statute, the existing Constitution Bench decisions on the subject had confirmed that the fact of whether or not the investigating officer has the power to file a police report is determinative for deciding if she is a police officer. When the majority concluded that Section 36A(1)(d) in no uncertain terms required Section 53 officers to file a complaint, it could not sidestep this factual finding and judicial propriety demanded that it follow binding precedent [Para 264].    

The Issue of Binding Precedent

Was the Tofan Singh majority bound by the Constitution Bench in Barkat Ram, then? I honestly think that this is an issue that deserves some serious scrutiny in light of how the majority opinion goes about arriving conclusions. The majority could have clarified the existing position and held that it was not necessary for the statutory text to specifically confer powers to file a police report as had been the case in the peculiar facts of Raja Ram Jaiswal and Section 78 of the Bihar and Orissa Excise Act. Or, the majority could have held that the terms of Section 53 of the NDPS Act meant an unrestricted conferral of police powers on such officers, which would mean that what they filed at the end of an investigation before the court would be deemed to be a police report. The majority did not clarify the holding in Raja Ram Jaiswal, and concluded that Section 53 officers did indeed file complaints, but then tried to very unconvincingly explain how the peculiar terms of Section 36A meant that the officers still had to be treated as police officers, given the context of the NDPS Act. 

Ultimately, whether we agree with the majority view depends on whether we agree with how the opinion reads Barkat Ram. If you agree with the majority, like I do, that Barkat Ram does not blindly ask us to look at whether or not an officer has specifically been conferred with a power to file a police report but instead it asks us to carefully consider the entirety of the statutory context, then it is difficult to argue that the majority view is per incuriam. The problem is that the holding in Barkat Ram is easily capable of being oversimplified as prescribing a "chargesheet test" to decide who is a police officer. This is something that many prior decisions have done, and the dissent also seems to advocate a similar approach. 

It is quite possible that a different bench in the future might agree with this approach to reading the holding in Barkat Ram and disagree with the majority in Tofan Singh. That would presumably throw the doors open to re-litigating the issue before a Constitution Bench. An indirect way in which the correctness of the majority in Tofan Singh might come into question later on is if, based on the strength of this opinion, a bench of the Supreme Court is convinced that the previous holdings of High Courts in some other statutory contexts - such as, say, the Prevention of Money Laundering Act - need reconsideration. 

Conclusions - The End of An Era

When the news broke that the Tofan Singh reference had been decided, someone messaged on a lawyers' group that it marked the end of an era. It certainly would have felt like that for a number of litigants who have litigation pending on the basis of this reference which has taken seven years to reach its end. As it had been predicted by many persons during that seven-year wait (including this Blog), the conclusions in Tofan Singh are unique to its statutory context. At the same time, the majority opinion has offered some hints to build an argument for other statutory contexts in the future as well, though I genuinely wonder if any other existing statute has a similar framework and is anywhere nearly as draconian as the NDPS Act.     

As an aside, a mention must be made about the length of the opinions: their combined length runs into more than three hundred pages. In an age when we talk about the need for law and judicial decisions to be more accessible, it is unfortunate that the Bench chose to replicate copious extracts of past decisions. Not only does this make the opinions difficult to read, but it contributes to repetition between opinions, on occasion, and reduction in the clarity of reasoning that is offered for the different sets of conclusions.

Guest Post: Locating the Automatic Reversal and Harmless Error Doctrines in India

(This is a guest post by Shailja Rawal)

'What defines us is not how we make mistakes rather how we correct them’

-Rachel Wolchin

The above mentioned proverb by Rachel Wolchin stands true even in the context of improper admission or rejection of evidences by court of law. To err is human and there is nothing one can do to change [the past]; so one should better get used to it and figure out how one’s going to fix it. The question which should ideally arise in such cases involving improper admission or rejection of evidences should not be about why any such error was committed in the first place rather after it being committed; the question can be framed on the lines of approach which needs to be followed for rectification of the same. For example: Should there be a guaranteed fresh trial for every case, provided that there has been an erroneous admission or rejection of a particular piece of evidence at the trial level?

I seek to deal with this question by demonstrating the functionality of a pendulum. Prima Facie, the discussion advanced in order to answer the said question may seem simplistic yet the entire status of law of evidence, as well as the efficiency of our methods of doing justice, is dependent upon this answer. Moreover, it not only helps us realise the varied facets of justice, in which truth does not necessarily achieve an overarching thrust, but also uncovers the debate between consequentialism and non-consequentialism. Non consequentialists believe that certain kind of acts are wrong in themselves and argue that morally unacceptable means cannot justify even a sound end; whereas consequentialists assert that the rightness or wrongness of an action should be judged by its plausible impact.

Philosophers like Weber also link the existing debate between consequentialism and non-consequentialism to an action having an intrinsic or an instrumental value i.e. Whether the law of evidence should be considered as a mere means to an end or it should be seen as an end in itself-an end which sometimes get so independent of justice, that it must be attained even by making a trade off to justice? Both the schools represent two distinct models to deal with such improprieties. Through this paper, I argue that sole application of either of these models do not help us realise the true meaning of justice rather a ‘hybrid model’ should be adopted so that instead of working on either of the extremities of a pendulum, an equilibrium within the same can be restored.

Before we begin, though, some caveats. This paper relies heavily on U.S. cases and the engagement with these issues in that jurisdiction, and where I turn to India it is in the context of the Indian Evidence Act and not other statutes such as the Criminal Procedure Code where doctrines of automatic reversal and harmless error will also be of great importance.

Doctrine of Automatic Reversal

As propounded by the non-consequentialists, this doctrine is based upon the presumption that certain rights attach an intrinsic value to themselves and their violation should per se constitute a ground for reversal. It was also known as the ‘exchequer rule’ which presumed that rights are "too fundamental and absolute to allow courts to exercise discretion and calculate its prejudicial effect." 

Their aim is to take rights seriously and requires conviction to be reversed, but the next time by restoring the defendant’s rights. Admittedly, the process becomes more predictable and reduces discretion because it considers every error as being presumptively prejudicial. They don’t believe in quantification since according to them value placed for a right is ‘grounded in’ on certain non-evaluative features. Unfortunately, excessive usage of this, led to the adoption of a highly pedantic approach owing to which automatic reversal of even minor and negligible errors became the new norm. 

Gradually cases started getting appealed for maddeningly technical errors. For example in Williams v. State the conviction was reversed because the judge missed the word ‘dignity’ in the phrase ‘against the peace of the state’. Similarly in Gragg v. State a person accused for murder got his conviction reversed because the judgement merely stated that Gragg had 'drowned' his wife and failed to mention the ‘means’ by which such drowning was accomplished. This approach got even worse when omission of mere prepositions started becoming grounds for reversal. It started getting known as an ‘impregnable citadel of technicality’ which in the pursuit of ‘right’ outcome ended up putting efficiency, finality and public confidence in a vulnerable position. 

Lack of efficiency could be witnessed due to a significant loss in terms of costs, time and efforts while dealing with automatic reversal cases. An inherent value is attached to finality since it lends credibility to the entire system and keeps it functional. Even today, irrespective of the good or the bad, the judge’s word is still considered final. However, automatic reversal cases led to unending proceedings which on one hand frustrated the efforts of the litigants and on the other hand increased the judiciary’s burden due to a prolonged list of cases pertaining to reversal.

Some scholars critique it as being an obsession with the appearance of justice at the cost of justice itself. This also makes one question if the sole aim of justice is restricted to reaching to the ‘right’ outcome. Additionally, this approach also produced lamentable results by causing delays, increasing expenses and encouraging litigation-gambling. The losing party often began to hide behind the shield of technical errors and got cases delayed indefinitely. Unfortunately, adjudication transformed from ‘who is right’ to ‘who can endure the longest’. Observing this, Justice Freeman contended that the problem now is not about the slight possibility of punishing an innocent; rather the real struggle lies in convicting the guilty.

Doctrine of Harmless error

The proverb to err is human recognises the possibility of error being committed even by a court of law and this gives the indication that even trials are imperfect. The section [167] states that, such error, per se should not lead to reversal of judgement until it changes the verdict after exclusion of such improperly admitted/rejected evidence. It requires the judge to determine if the error was prejudicial or harmless in nature. Consequentialists would argue in support of this doctrine as the judge in these cases is required to assess the impact of error on decision and if there is no such consequence then according to them the second trial would be merely wasteful and redundant. 

Moreover, it is often said that "a defendant is entitled to a fair trial and not a perfect one" and this approach becomes even more important when imperfections do not affect the substantial merits of the case rather, to seek reversal, they are intentionally introduced by the officials themselves. Automatic reversal in these cases imposes extraordinary financial and social costs.

Its applicability in the Indian context can be seen under Section 167 of the Indian Evidence Act 1872 which talks about improper admission or rejection of evidences and how they do not warrant an automatic reversal in every case. It will be too soon if it is concluded that doctrine of harmless error should be the ultimate solution because even this approach has its own limitations. While categorising an error as prejudicial or trivial, judges often resort to counterfactual speculations. These decisions are likely to be coloured by existing biases with no available solutions. Section 167 also witnesses the problem of bias in improper admission or rejection of evidences. 

The phraseology of the section requires the judges to evaluate the case "independently of the evidence objected to and admitted", but practically speaking is it even possible? There exists a psychological problem with deliberately disregarding those improperly admitted evidences which the judge has already been exposed to. Several theories point out that, instructions to ignore materials may increase the desire to attend to it. Ironic process theory states that generally more time is spent in thinking of how to not think about a particular fact. 

There also exists a possibility that the earlier misinformation may lead to a ‘mental contamination’ that remains even after knowing that earlier information was false. This was observed in the case of Daya Shankar and Anr. v. Deputy director of Consolidation and Anr where discretion exercised during improper rejection was held to be in fact vast in nature. This can be seen from the very wordings of the section, ‘It ought not to have varied the decision’ which uses future tense and gives the judges enough discretion to justify that the hypothetical evidence even if admitted might not have made a substantial difference. 

For example, Gopalnarain Mozoomdar and Anr v. Muddomutty and Anr was a case about fraudulent transfer of property. Although, an entry in the books of accounts was improperly rejected yet judges conjectured that since it was made by the defendant’s brother in law it would not have made any difference. Ideally, each evidence is required to go through all the given doors of relevancy, admissibility and sufficiency however improper rejection of evidence proscribes it from following this entire process of judicial appreciation. Graver injustice is done towards that party who offered it in the first place having a legitimate expectation that it will have some bearing in the case and thus might not have advanced any other proof in lieu of the same. Since all these facts are together arranged in the form of a web, absence of even one of them could lead towards a gap in the entire factual matrix.

Additionally, it also poses a threat to the defendants. Each verdict of harmlessness effectively curtails the rights of the accused. Justice Stevens argued that a completely ‘harmless’ error is an exceptional situation and if this is taken to be true then it affects the burden of persuasion issue, i.e. it shifts the burden of proof on the accused to show how the error might have posed an opportunity of prejudice. Moreover, increased usage of harmless error rule lessens the incentive of the police to follow proper procedures and also encourages the prosecution side to meddle with defendant’s rights.

Has the pendulum swung too extreme?

The rules governing reversal of judgements on the basis of improper admission or rejection of evidences can be seen to resemble the functioning of a pendulum. The pendulum has swung from one extreme of overemphasising the intrinsic and inherent values of a right leading towards automatic reversal in almost all cases; to the other extreme of merely evaluating its consequence and thereby justifying the violation of even fundamental rights. The current approach demonstrable in the United States, of declaring almost every error as harmless, was meant to be a solution to the automatic reversal doctrine however currently this has become a problem in itself by reflecting poorly on the values placed on individual rights.

Neither consequentialism and non consequentialism is per se wrong because justice as a concept cannot be viewed in isolation. Rather there is no objective definition of justice and it changes from time to time. Its meaning is contingent upon different people and the circumstances surrounding them. Therefore, solely achieving perfection at the cost of efficiency and fairness or vice versa does not explain justice to its fullest extent. 

When analysed in totality, these problems do not avail of a one-size-fits-all solution. In the first extreme a legal system without any allowance for harmless error would be paralysed due to retrial of every case even if involving trivial errors Similarly, on the other extreme end, indiscriminate application of harmless error rule offers a mere lip service towards the acknowledgement of procedural rights. Just like many other jurisdictions, an objective definition of ‘justice’ does not exist in India also however depending on the facts and circumstances a hybrid mixture of both these models could be applied.

Hybrid Model: A Viable Solution

Instead of presumably adopting any one extreme model to the exclusion of other, a plausible middle ground could be found out by adopting a hybrid model. Preferred approach towards this can be adoption of automatic reversal in cases of violation of fundamental rights; and usage of harmless error in other cases where fundamental rights do not get affected. 

The reason behind this is that such rights are considered to be intrinsically valuable not just as means but also as ends. Thus, their violation can justify automatic reversal unlike some other legal rights for which their plausible ‘impact’ or consequence can be ascertained by weighing of scales. Factors which could be used in this regard are effect of improprieties on accused, degree of seriousness, importance of the evidence etc. 

Thus, the hybrid model maintains a healthy balance between both extremes instead of and makes reversal possible if either the fundamental right is violated or the prejudice caused by error exceeds the probative value of interests served by the infringement of any other procedural rule. An illustration to this can include violation of the Right to Privacy which is protected under Article 21 post Puttuswamy. 

Through this model, material obtained via illegal telephone tapping, eavesdropping, overhearing any conversation containing incriminating remarks etc can be said to have been obtained illegally or improperly, thereby, making reversal possible instead of relying upon them for ascertaining their impact and then following the established precedents. 

Although, this riddle pertaining to harmless error still remains unsolved yet this paper has attempted to make an educated guess rather than surmising an answer on any of the extremes. 

Guest Post: A Critical Analysis of GJ Raja v. Tejraj Surana and 143A of the Negotiable Instruments Act

(This is a guest post by Kratika Indurkhya) 

Background

In an era where credit transactions are not only convenient but also the need of the hour, the Supreme Court has given a judgment detrimental to the interests of lending institutions. In July 2019, the Supreme Court gave a decision in G.J. Raja v. Tejraj Surana [2019 SCC OnLine SC 989] holding that Section 143A of the Negotiable Instruments (Amendment) Act, 2018 [‘Amendment Act, 2018’] is only prospectively applicable. The case was lodged in the year 2016 and the Amendment Act came into force on 1st September, 2018. This judgment has not been in vogue, albeit decided recently by the Supreme Court after a lot of skepticism and divergent views of different High Courts of the country on this issue. Section 148 and Section 143A, the only sections of the Amendment Act, 2018 have been dealt quite differently, hence creating an imbroglio situation. Whereas the High Court of Allahabad [Application u/s 482 No. 11055 of 2019, Date of Decision -11.04.2019] held that Section 143A would have a retrospective effect, the High Courts of Punjab & Haryana [2019 SCC OnLine P&H 747], Madras [2019 SCC OnLine Mad 4091] and Bombay [2019 SCC OnLine Bom 436] were at consensus and held that although Section 148A is retrospective, Section 143A will be prospective. It was the Madras High Court judgment which was taken in appeal to the Apex Court, challenging the prospective application of the section. 

Statutory Context and the SC Decision

The case made an attempt to differentiate itself from Surinder Singh Deswal v. Virender Gandhi [(2019) 11 SCC 341], which dealt with the same question about retrospective effect with respect to Section 148 of the Amendment Act, 2018. Section 148 states that ‘in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the Trial Court’. 

Prior to the 2018 amendment, the imposition and consequential recovery of fine or compensation either through the modality of Section 421 or Section 357 of CrPC could arise only after the person was found guilty of an offence. This position of law was sought to be changed by introducing Section 143A. Section 143A states that ‘if the Trial Court is trying an offence under Section 138 of the Negotiable Instrument Act, 1881, interim compensation, not exceeding 20% of the cheque amount may be given’. Further, the interim compensation can be recovered by mode of recovery mentioned under Sections 421 or 357 of Code of Criminal Procedure, 1973 [‘CrPC’]. 

The Supreme Court in the case at hand held that since fine and compensation under Section 421 and Section 357 of the CrPC 1973, respectively, are for post-conviction, and the compensation in the present case is interim compensation, they create a new obligation and hence would be prospective. Precisely, the Supreme Court decided that since Section 143A not only changes the procedure but also creates new rights and liabilities, it shall be construed to be prospective in operation. While differentiating from Section 148 of the Amendment Act, 2018 it held that since Section 148 was to be applied post-conviction, it "depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act."

Analysis

The Supreme Court has held that since under Section 148 a convict goes to appeal and is not merely an accused, Section 421 and 357 of CrPC 1973, i.e., the existing legal machinery is enough and no new liability would be created. Further, it held that since Section 143A is for the trial stage, there is no applicability of Section 421 and 357 and hence the said section exposes the accused to a new obligation. 

In my opinion, there are two major problems with this differentiation which requires us to revisit the CrPC. Under the head of ‘warrant of levy of fine’, Section 421 states that "the Court passing the sentence may take action for the recovery of the fine …" [emphasis supplied]. This means that the section is limited to the Court passing the sentence and does not apply to the Appellate Court. The same reason flows for Section 357 which states that "When a Court imposes a sentence of fine or a sentence … the Court may, when passing judgment" [emphasis supplied]. Hence it is incorrect to consider Sections 421 and 357 as being applicable at the appellate level. 

Further, the only reason given for the retrospective application of amended Section 148 was a purposive interpretation of the clause. Towards this, the Statement of Objects and Reasons was read within the section, which says: 

"[B]ecause of delay tactics of unscrupulous drawers of dishonoured cheques... compromise the sanctity of cheque transactions. With a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money." 

As relied upon in case at hand, in Vatika Township Pvt Ltd [2014 SCC OnLine SC 712], it was held that “of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation.” Since the reason for holding Section 143A prospective was that it creates a substantive and not a purely procedural right, the Court ought to have at least considered the Objects and Reasons which confirms that the legislative intent was to render Section 143A retrospectively applicable.

Lastly, in overlooking and blurring of the differentiation between civil and criminal remedies is where I argue that the Court has gravely erred. It is undoubted that Section 138 states the offence for which the punishment is given in Section 142 of the Negotiable Instrument Act, 1881, but the point to be considered here is that Section 143A (which again is for offences committed given under Section 138) provides for a civil remedy. On this issue, the Supreme Court in R. Vijayan v. Baby and Anr [(2012) 1 SCC 260 ] observed that :

“Though a complaint under section 138 of the Act is in regard to criminal liability for the offence of dishonouring the cheque and not for the recovery of the cheque amount, (which strictly speaking, has to be enforced by a civil suit), in practice once the criminal complaint is lodged under section 138 of the Act….It provides a single forum and single proceeding, for enforcement of criminal liability (for dishonouring the cheque) and for enforcement of the civil liability (for realization of the cheque amount) thereby obviating the need for the creditor to move two different fora for relief.”

This excerpt clears that the obligation is of civil nature and not criminal as the interim compensation, which is deducted from the final cheque amount to be recovered which is a civil obligation. 

But why does this distinction between civil and criminal matter here? It is because Article 20(1) of the Indian Constitution only prohibits the retrospective imposition of criminal liability and not civil. In my opinion, interim compensation is a civil remedy as it is neither an ‘offence’ nor a ‘penalty’ which is a prerequisite to fall under the criminal legal system and to be barred from retrospective application. 

The expression ‘offence’ is not defined anywhere in the Constitution. Article 367 of the Constitution says that unless the context otherwise provides for words which are not defined in the Constitution, the meaning assigned in the General Clauses Act, 1897 may be given. Under Section 3 (38) of the General Clauses Act, the term means "an act or omission punishable any law for the time being in force." Further, when a statute imposes a civil obligation, the failure to discharge it is not an offence unless the statute expressly makes it so. Hence, in Hathising Mfg Co. v. Union of India [(1960) 3 SCR 528] it was held that the insertion of Sec. 25FFF(1) in the Industrial Disputes Act, 1947, with retrospective effect, does not constitute a violation of Article 20(1) because the failure to pay the compensation required to be paid by the section is not made an offence though the money may be recovered by a coercive process, and the person may be imprisoned for failure to pay, under the revenue law for coercive recovery of the amount. Even Section 143A of the Amendment Act, 2018 does not make the failure to pay this interim compensation an offence. Moreover, its clause (5) is restricted to equating the modality of recovery of compensation with that of fine and does not intend to replace the civil remedy with criminal. Further, ‘fine’ means ‘to sentence a person convicted of an offence to pay a penalty in money’, and hence cannot be equated with interim compensation as the latter is awarded during the pendency of the proceedings and not when one is convicted.

It must also be noted that in Depot Manager, A.P.S.R.T.Corpn v. Mohd. Yusuf Miya [AIR 1997 SC 2232] it was held that, “offence generally implies infringement of public duty, as distinguished from mere private rights.” Even though dishonour of cheque is a criminal liability (public wrong), interim compensation is a percentage of the cheque amount to be recovered which is strictly a private right. 

Article 20(1) avails only against punishment for an act which is treated as an offence, which when done is not an offence. As per the case of Jawala Ram v. State of Pepsu [AIR 1962 SC 1246], unless there is a law forbidding the doing or the omission to do something, no question of ‘punishment’ comes. Hence in this case, although the mode of recovery is ‘coercive’, non-payment of the interim compensation is still not an offence and being a civil remedy, can be retrospective. Hence, the first condition of interim compensation being an offence is not attracted. 

Although there is no argument of greater amount being imposed post the Amendment Act, 2018, the author would like to clarify that interim compensation does not fall under the definition of ‘penalty’ as required in the second part of Article 20(1). In Sova Ray v. Gostha Gopal Dey [(1988) 2 SCC 134], the expression ‘penalty’ was held to mean ‘an elastic term with many different shades of meaning but it always involves an idea of punishment.’ Further, in Shiv Dutt Rai Fateh Chand [(1983) 3 SCC 529], the Apex Court held that this expression is used in the narrow sense as meaning a payment which has to be made or a deprivation of liberty which has to be suffered as a consequence of a finding that the person accused of a crime is guilty of the charge. Since interim compensation does not involve the idea of ‘punishment’ as it is awarded during the pendency of the proceedings, it does not fall under this definition. Hence, the latter part of Article 20(1) is not attracted as well. Even if there was any enhancement of the amount, in Mukandi Ram v. Executive Engineer [1956 SCC OnLine Pepsu 3], it was held that since the levy of an enhanced rate for unauthorised use of water created only a civil liability, a criminal prosecution for such unauthorised use is not barred under Article 20(1). 

In conclusion, missing this question and the differentiation between criminal and civil remedies has led to an erroneous judgment by the Supreme Court and a grave injustice to creditors. Additionally, this judgment, while realising that Section 143A is a procedural law affecting the substantive rights of an individual, completely ignored the intention of the legislature and thus failed to spot that the true purpose was to save creditors and lending institutions from pending litigation as part of unscrupulous activities of debtors. Rather than a judgment which protects the lending institution and others, we have a judgment which does not help status quo. 

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.