Oldfield, J.:— s. 27 of the Indian Evidence Act is as follows:—“Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered may he proved;” and the question we have to determine is whether it is intended by the section that information amounting to a confession may be proved when such information is received by a police officer, or only when it is received by some person other than a police officer.
In my opinion, the section refers to information whether received by a police officer or by other persons.
I can find nothing in the language of the section to justify any distinction in respect of the person to whom the information is to be given. The section itself makes no such distinction, which could only he given effect to by adding words to it. S. 25 is to the effect that “no confession made to a police officer shall be proved against a person accused of any offence and s. 26,” no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. And then follows s. 27, which is in the way of a proviso, and appears to ??? intended to govern both the preceding sections, and to have a general application to information received from an accused person in custody of the police, and to allow proof of information amounting to a confession received from an accused person in custody of the police, whether given to a police officer or not. Had the proviso been intended to be a proviso to s. 26 only, it would not have been put in the form of a separate section, but as part of s. 26.
These sections were embodied in the Indian Evidence Act with some alteration from the Criminal Procedure Code, and, in examining the changes in the sections, I can find nothing to show that the Legislature intended s. 27 of the Indian Evidence Act not to apply to information received by a police officer from an accused person in custody of the police. The sections in Act XXV of 1861 are as follow:—
“148. No confession or admission of guilt made to a police officer shall be used as evidence against a person accused of an offence.
“149. No confession or admission of guild made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be used as evidence against such person.
“150. When any fact is deposed to by a police officer as discovered by him in consequence of information received form a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered by it, may be received in evidence.”
It cannot be said that this section will not apply to information received by a police officer.
S. 150 was thus altered by Act VIII of 1869:—“Provided that when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact thereby discovered, may be received in evidence.”
It will be seen that s. 150, Act XXV of 1861, referred to depositions by a police officer as to a fact discovered by him in consequence of information received from a person accused of an offence, whereas the amended section so far enlarged the proviso as not to restrict its operation to depositions by police officer, only, or to information received from a person accused of an offence, but to extend it to information received from a person in custody of a police officer; but there is nothing in the amended section to render the proviso inapplicable to information received by a police officer. In fact, s. 150 was intended to govern both the preceding ss. 148 and 149.
These lections were re-embodied in ss. 25, 26, 27, Indian Evidence Act, with very slight alterations of language.
Ss. 25 and 26 make no material changes.
The only alterations in s. 27 are the omission of the words “in evidence,” the omission of the word “or” before “in custody”, and the substitution, in the last time, of the words “may be proved” for “may be received in evidence.”
The only alteration on which any stress can be laid is the omission of the word “or;” but this only shows that the operation of the proviso is restricted to information from an accused person in custody of the police, and does not apply to information from accused persons not in custody of the police. It in no way touches the point we are concerned with, namely, to what person the information is given.
S. 162 of the Criminal Procedure Code affords a ground for assuming that no such distinction as is contended for was contemplated by the legislature. That section, after declaring the rule that no statement, other than a dying declaration, made by any person to a police officer in course of an investigation under the chapter, shall be used in evidence against the accused, goes on to provide that “nothing in the section shall be deemed to affect the provisions of s. 27, Indian Evidence Act,” evidently on the assumption that s. 27 contemplates information received by a police officer, otherwise the proviso would have been out of place in a section like 162, which deals with statements made to a police officer.
The broad ground for not admitting confessions made to a police officer is to avoid the danger of admitting false confessions, but the necessity for the exclusion disappears in a case provided for by s. 27, when the truth of the confession is guaranteed by the discovery of facts in consequence of the information given.
There seems no advantage to be gained by drawing a distinction between information amounting to a confession received by a police officer, and by some person other than a police officer, and excluding proof of the former while ad matting it of the latter; for while an accused person is in custody of a police officer, the confession in both cases would be liable to distrust.
It would be easy to show that, in practice, information received by a police officer has been also wed to be proved, under the provisions of s. 27, without any question being raised hitherto that the section did not contemplate such information. Only so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, mar be provide and, in the case referred, proof will be confined to the statement of Hafiz-ullah, that the accused told him they had sold a cow and colf at Madanpur to Abdul Rahman.
Brodhurst, J.:— The object of this reference is, in fact, to obtain a ruling of the Full Bench as to whether the proviso contained in s. 27 of the Indian Evidence Act is applicable to s. 26 of the Act only, or applies to both ss. 25 and 26.
It is important, then, to see how ss. 25, 26, and 27 have been in produced into the Evidence Act (I of 1872). These three sections have, with very slight alterations, been brought into the latter Act from Act XXV of 1861, the first Code of Criminal Procedure. They are to be found in ss. 148, 149, and 150 of that Code. They there stand in the same order towards each other as do ss. 25, 26 and 27 in the Evidence Act, and neither the preceding nor the following section has been transferred along with them. So that from this fact, as well as from their contents, these three sections are strongly connected one with the other.
Up to the time that Act XXV of 1861 came into force, a concession made to a police officer could be used as evidence against a person accused of an offenee, but ss. 148 to 150 of the latter Act effected an entire change of procedure. By s. 148 it was enacted that “no confession or admission of guilt made to a police officer shall be used as evidence against a person accused of any offence”; and by s. 149, “no confession or admission of guilt made by any person whilst he is in the custody of a police officer, unless it he made in the immediate presence of a Magistrate, shall be used as evidence against such person.” But notwithstanding the provisions of the two preceding sections, it was in s. 150 enacted that “when any fact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact discovered by it, may he received in evidence.”
It is obvious that s. 150 governed the general rule laid down in s. 148, and that, under its provisions, a police officer was competent to give in evidence so much of any statement or confession made to him by the accused person as related distinctly to a fact thereby discovered. Ss. 148 and 149 remained intact for eleven years, or so long as Act XXV of 1861 continued in force; but s. 150, after being tested by an experience of about eight years, was re-enacted in s. 150 of Act VIII of 1869, under a slight modification, as follows:—“Provided that when any fact is deposed to in evidence as discovered in consequent of information received from a person accused of any offence or in the custody of a police officer, so much of a such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact there by discovered, may be received in evidence.”
There is nothing whatever to show that the legislature by this modification intended that a police officer should he excluded from deposing to the fact therein referred to; on the contrary, from the words “a person accused of any offence” and ‘or in the custody of a police officer,” adopted from ss. 148 and 149 of Act XXV of 1861 respectively, it is apparent that s. 150 still governed both of the two preceding sections, and the result of the amendment was to render all persons, inclusive of police officers, competent to depose to facts therein referred to.
Act XXV of 1861 was repealed by Act X of 1872. The provisions of ss. 148, 149, and 150 of the repealed Act were not introduced into the new Code of Criminal Procedure, but were, as has already been observe, brought, with very slight modifications, into the Indian Evidence Act (1 of 1872) ss. 25, 26, and 27.
I here place ss. 148, 149, and 150 of Ac XXV of 1861, s. 150 of Act VIII of 1869, and 25, 26, and 27 of Act 1 of 1872 in juxtaposition, so that it may, at a clause, be seen to what extent these important sections differ.
Act XXV of 1861.
Act VIII of 1869
Act I of 1872.
S. 148. No confession or Admission of guilt made to a police officer shall, be used as evidence against a person accused of any offence
S. 25 No confession made to a police officer shall be used as evidence against a person accused of any offence.
S. 149. No confession of admission of guilt made by any person whilst he is in custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be used as evidence against such person.
S. 26 No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
S. 150. When any fact is deposed to by a police officer as discovered by him inconsequence of information received from a person accused of any offence so much of such information, whether it amounts to a confession or admission of guilt or not as relates distinctly to the tact discovered by it may be received in evidence.
S. 150. Provided that when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information whether it amounts to a confession or admission of guile or not as relates distinctly to the fact thereby discovered, may be received in evidence.
S. 27. Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact there by discovered, may be proved.
Paragraph I of s. 162 of the Criminal Procedure Code now in force is to the effect that statement to the police are not to be signed or admitted in evidence; and para. 2 is as follows:—“Nothing in this section shall be deemed to affect the provisions of s. 27 of the Indian Evidence Act, 1872.” Unless s. 27 is applicable, not only to s. 26, but also to s. 25 of Act I of 1872, the meaning of the last paragraph of s. 162, Act X of 1882, is not apparent.
Mr. Taylor, in s. 791 of his “Treatise on the Law of Evidence,” remarks:—“Indeed, all reflecting men are now generally agreed that deliberate and voluntary confessions of guilt, if clearly, proved, are among the most effectual proofs in the law; their value depending on the sound presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Such confessions, therefore, so made by a prisoner to any person, at any time and to any place, are at common law receivable in evidence, while the degree of credit due to them must be estimated by the jury according to the particular circumstances of each case.
“793. Extra-judicial confections are those which are made by the party elsewhere than before a Magistrate or in Court; this term embracing not only express confessions of crime, but, all those admission and acts of the accused from which may he implied. All voluntary confessions of this kind are receivable in evidence, on being proved like other facts.
“824. Where, inconsequence of information unduly obtained from the prisoner, the property stolen, or the instrument of the crime, or the body of the person murdered, or any other material fact, has been discovered, proof is admissible that such discovery was made conformably with the information so obtained. The prisoner's statement as to his knowledge of the place where the properly or other article was to be found, being thus confirmed by the fact, is shown to be true, and not to have been fabricated in consequence of any inducement. It is therefore competent to prove that the prisoner stated that the thing would he found by searching a particular place, and that it wan accordingly so found; but it would not be competent to inquire whether he confessed that he had concealed it there. Lord Eldon has laid down the rule somewhat more strictly, saying, in Hareey's Case, that, where the knowledge of any fact was obtained from a prisoner under such a promise in excluded the confession from being given in evidence, he should direct an acquittal, unless the fact proved would itself have been sufficient to warrant a conviction, without any confession leading to it. But the sounder doctrine seems to be that so much of the confession as relates distinctly to the fact discovered by it may he given in evidence, as this part at least of the statement cannot have been false.”
From the language used it is clear that s. 150 of Act XXV of 1861 and s. 27 of the Evidence Act were framed on the four lines last quoted from Mr. Taylor's work.
I am under the impression that the Indian Legislatures endeavor to clothe their Acts in clear and simple language, so that they may be understood by all who read them; that they also keep themselves acquainted with the rulings of the High Courts; and that when they see occasion to make important changes in any Act, they let their intentions he known by publishing in the Government Gazettes the objects and reasons of the Bill, and the discussions in Council on the various sections of the Bill, and that they finally make the requisite modifications in language which should admit of no mistake. The meaning of the three sections, 25, 26, and 27, of the Evidence Act, appears to mo to be open to no doubt. During the twelve years that, have elapsed since Act I of 1872 came into force, a very large number of cases must have been disposed of by Magistrates and Judges with reference to the provisions of s. 27, and I think I may correctly say that a considerable number of such cases has come before myself; but, prior to the judgment that has occasioned the present reference, I do not remember to have beard even a doubt, expressed that, when any fact was deposed to by a police officer as discovered in consequence of information received from an accused person in custody of a police officer, so much of such information, whether it amounted to a confession or not, as related distinctly to the fact there by discovered, might be proved. It is, I hold, impossible that the Legislature can bare intended that the language of s. 27 should have any other meaning than that which has generally been placed upon it, and I find it equally difficult to believe that the Legislature would not, are this have altered the language of s. 27 had they seen reason to think that, owing to its being misinterpreted, convictions were constantly being based on evidence that was legally inadmissible.
Amongst the judgments that support my view of the cane are the following rulings of the High Courts:—Calcutta, 19 W.R, p. 51 (Criminal Rulings), Kemp and Glover, JJ.; Bombay, H.C Rep., 1874, p. 242, West and Pinhey, JJ.; Allahabad, I.L.R, Vol., 4 p. 196, Stuart, C.J No difference is noticeable in these rulings as to the extent to which statements or confessions of the accused person can be proved by a police officer under the provisions of s. 27 of the Evidence Act.
I can best express my own opinion as to the meaning of s. 27 by staling a case as follows:—The chaukidar of mauza Rampur gives information at the neighbouring police-station that Zalim Singh, of the said village, is missing, and that fears are entertained that he has been murdered. The sub-inspector, immediately on receiving this report, repairs to Rampur, and on his arrival there, and whilst he is standing close to a well, Gobind Kahar comes up to him and says, “I give myself up; I am guilty,” and then makes a voluntary and full confession, stating the particulars of the crime and the reason for committing it, and concluding by saving, the knife with which I committed the murder is, together with the body, in this well. The well is thereupon searched, and a knife and the body of Zalim Singh with a knife-would through the heart, are thence recovered.
The entire confession made to the sub-inspector cannot, with reference to s. 25 of the Evidence Act, he used as evidence against Gobind Kahar, but the sub-inspector, when giving evidence in Court as to the discovery of the corpse and the knife, is, under the provisions of s. 27 of the Act, competent to depose that he had searched the well, and had found the body of Zalim Singh and a knife owing to Gobind Kahar having given the following information, viz., “the knife with which I committed the murder is, together with the body, in this well.”
I have had cases before me in which a man, immediately after committing a murder, went to the police-station and gave himself up to a police officer, made before that officer and his sub-ordinates a full and voluntary disclosure of the whole facts, pointed cut the body of his victim, and gave up the weapon with which he had committed the murder. In one or more of these cases there was not a single eye-witness, but the circumstances as disclosed to the police were so remarkably clear as to leave not a particle of a doubt as to the guilt of the accused. It is frequently the case that persons who confess their guilt when first arrested plead not guilty when brought into Court. Under such circumstances, it is quite possible that, in a case such as I have stated above, were a police officer incompetent to depose, under s. 27 of the Evidence Act, to the extent I have mentioned, no sufficient legal proof for a conviction would be obtainable, although there would he no room for doubt as to the guilt of the accused.
For the reasons I have now stated, I am clearly of opinion that s. 27 of the Evidence Act governs both of the two preceding sections; and the above remarks contain, I think, a sufficient reply to the reference that has been made to us.
Mahmood, J.:— I understand the question referred to the Full Bench to be whether, under s. 27 of the Evidence Act a, confession made by the accused to a police officer is admissible is evidence, if it leads to the discovery of the stolen property.
The reference has arisen on account of certain observations made by me in Empress v. Kuarpala wherein I held that “s. 27 cannot be regarded as governing the general rule laid down in s. 25, but, only that contained in s. 26” of the evidence Act. In that case, I stated briefly the reasons which led me to that conclusion but as the correctness of the law has been doubted on account of rulings of this Court, and the question has, in consequence, been referred to the Full Bench. I feel called upon to state the reasons for my view mere fully than I had considered it necessary to do in the case of Kuarpala .
The question raised by this reference is one of interpretation of the statute, and it may be briefly stated in be, whether the proviso contained in s. 27 of the Evidence Act governs only the last preceding section, or also s. 25. In order to arrive at a satisfactory conclusion upon this point, it seems to me advisable to trace the history of the rules contained in ss. 25, 26, and 27 of the Evidence Act, and to ascertain how these provisions find a place in the Code of Evidence for India. I take it as an undoubted proposition relating to the administration of justice in British India, that before the passing of the Indian Evidence Act (1 of 1872), this country did not possess any uniform law on the subject of evidence. In the Presidency towns, the rules of the English law of evidence were followed, subject to such modifications as certain Acts of the Indian legislature had introduced. Of these enactments, Act II of 1855 may be said to be the most important, but that Act, even taken with the others, was far too inadequate to supply a substantial code of the rules of evidence. In the Mufassal, where the English law did not prevail, there were scattered rules of evidence based upon the practice of the Courts, which had never assumed any definite or systematic form. The practice had grown probably on the basis of the Muhammadan law which continued to govern the administration of justice for many years, even after the advent of the British rule in India. That law was therefore more or less followed, especially in criminal cases, till express enactments prohibited its operation Act. II of 1855, whilst laying down certain isolated rules of evidence, did not prohibit the adoption either of the English law or of the rules of Muhammadan law which, by custom or practice, had been followed by the Courts. Indeed, s. 58 of the Act expressly laid down that “nothing in this Act contained shall be so construed as to render inadmissible in any Court any evidence which, but for the passing of this Act, would have been admissible in such Court.” The Act, therefore, did not operate to repeal the rules of evidence which existed before, and, although it did not require the Courts to follow the English law or any other particular system of evidence, it did not at the same time preclude them from adopting the English rules of evidence where they appeared to be the most equitable. And I have no hesitation in saying that, in the vast majority of cases, where difficulties as to the admissibility of evidence arose, the Mufassal Courts, guided as they were by Judges of the English race, usually and naturally adopted the English rules of evidence as their guide.
Such was the state of things found by the Legislature when the Indian Evidence Act was undertaken as a legislative measure having for its object the consolidation of the rules of evidence and repeal of all others that had prevailed before. This appears from the express words of s. 2 of the Act; and the saving clause contained in the last paragraph of that section may be taken, in fact, to have an extremely limited operation. The Act became law on the 15th March, 1872, at a time when the Legislature had also in hand an equally important measure connected with the consolidation of the ruins of Criminal Procedure. The Criminal Procedure Code, (Act X of 1872) became law on the 25th of April, 1872.
I have stated these facts as introductory of the observations which I am about to make, that the rules contained in ss. 25, 26, and 27 of the Evidence Act were not originally treated in British India as, strictly speaking, rules of evidence, but rather as rules governing the action of police officers, and as mutters of criminal procedure. I may take it that no such rules existed either in the Muhammadan law or in the English law of evidence—the only two systems to which the Courts resorted for guidance on questions of evidence in criminal matters. How, then, have the rules found a place in the Statute-book of British India?
As far back as the year 1817, the Legislature, repealing the older rules upon the subject, passed Regulation XX of that year, which, inter alia, had for its object the consolidation of the rules for the guidance of police officers. (Clause (1) of s. 19 of the Regulation laid down that “whenever any person may be apprehended and brought before a darogah, or other police officer, under the provisions of this Regulation, the examination of the prisoner shall he taken, without oath, in the presence of three or more credible witnesses, who are to attest the examination; and the police officer presiding at the inquiry shall question the prisoner fully regarding the whole of the circumstances of the case, the persons concerned in the commission of the crime, and, if any property may have been states or plundered, the persons in possession of such property, or the place where it has been deposited. In the event of the prisoner's making free and voluntary confession, it shall he immediately written down, if practicable, in the language best understood by the person confessing, and in the presence of three or more credible witnesses, who can sign their names, and are not officers of the police or connected with the thana establishment, if no persons can be found who may be able to read or write, the most respectable persons in the village shall be required to bear witness, and to affix their marks in attestation of the writing. The party confessing, as well as the witnesses, shall be allowed to read the same when finished, or, if unable to read, the police officer recording the confession shall invariably read it over in the presence of the party and witnesses, before it is signed and attested, and shall state, at the foot of the paper, the day of the week, date, hour, and place at which it may betaken; the original confession, bearing the signatures of the party and witnesses, shall invariably he transmitted to the Magistrate, and not a copy; and the police officer presiding at the inquiry, as well as the person by whom the confession may be taken down in writing, shall subscribe their signatures to the papers in attestation of its authenticity.” Again, clause (2) of the same section provided that “no compulsion shall be used either towards parties or witnesses for the purpose of obtaining any information whatsoever; and police officers are strictly enjoined not, on any occasion or under any pretext whatever, to encourage a prisoner apprehended upon a criminal charge to confess the same, or to excite the hopes or fears of a prisoner by holding forth a prospect of pardon, or using threats, or otherwise persuading or intimidating the prisoner with the view of inducing him to confess: any species of maltreatment inflicted on a prisoner or witness by a police officer, landholder or farmer, or by any other person whatever whether with a view to extort a confession or to procure information will subject the offender to exemplary punishment, on conviction, before the Magistrate or Court of Circuit. After laying down these stringent rules, clause (3) of the section goes on to say: “whenever a confession may be taken at night, or at any other place than the police thana, the special reasons for its having been so taken shall be stated in the darogah's report.
These legislative provisions leave no doubt in my mind that the Legislature bad in view the malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a atop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused persons.
That the extortion of confessions by torture continued to be a rampant evil in India is further shown by the fact that the Legislature, in framing the Indian Penal Code (which became law on the 16th October, 1860), provided two special sections (330 and 331), directed especially against such malpractices; and it is very significant that out of the four illustrations appended to s. 330, two contemplate torture by a police officer, one describes torture to obtain a confession, and the other relates to torture for procuring discovery of stolen property.
The provisions of Regulation XX of 1817 remained undisturbed in the Statute-book up to a very recent tune, when they were expressly repealed by Act XVII of 1862. Soon after the Indian Penal Code, on the 25th of September, 1861, the Legislature consolidated the rules of Criminal Procedure in Act XXV of 1861. That enactment, althought it did not expressly and immediately repeal s. 19 of Regulation XX of 1817, reproduced the rules contained in the first two clauses of that section, but modified and reversed them in some important and essential details, so as to render them even more stringent—I circumstance which shows that the checks placed by the Regulation on the malpractices of police officers had proved inadequate. S. 98 of the Act adopted the spirit of clause (2), s. 19 of the Regulation, and, whilst prohibiting police officers from preventing the accused person “from making any disclosure which he may be disposed to make of his own free will,” laid down the rule that “no police officer or other person shall offer to the person arrested any inducement, by threat or promise or otherwise, to make any disclosure.” Again, s. 146 of the Act, repeating the rule, provided that “no police officer or other person, shall offer any inducement to an accused person, by threat or promise or otherwise, to make any disclosure or confession. The next section (147) of the Act, markedly reversing the law as it stood in clause (1) of s. 19 of the Regulation, laid down the rule that “no police officer shall record any statement, or any admission or confession of guilt, which may be made before him by a person accused of any offence.” The rule was rendered subject to a proviso allowing a police officer to reduce into writing any statement or admission or confession “for his own information or guidance.” But the most important change consisted in the introduction of a new rule, contained in s. 148, which, in the most imperative terms, laid down that no “confession or admission of guilt made to a police officer shall be used as evidence against a person accused of any offence.” as if these safeguards against the extortion of confessions were not adequate, the next sections (149), going even further in that same direction, laid down that “no confession or admission of guilt made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be used as evidence against such person.” Then followed a distinct proposition if law contained in a separate section (150), which was thus worded:—“When any tact is deposed to by a police officer as discovered by him in consequence of information received from a person accused of any offence, so much or such information, whether it amounts to a confusion or admission of guilt or not, as relates distinctly to the fact discovered by it, may be received in evidence.”
Before proceeding any further, it is important to analyse the five sections which I have quoted, in order to ascertain what the exact law was under Act XXV of 1861, upon the question which we are now considering. Ss. 146 and 147 ware purely, administrative prohibitions to police officers against employing any inducement, threat, or promise for obtaining any disclosure or confession, and against reducing to writing any statements or confessions made by accused persons. The next three sections (148, 149, and 150) contained even more important rules, which perhaps did not properly belong to lite province of Criminal Procedure, but to that of Evidence. Now, it is important to notice that ss, 148 and 149 must not be understood to contain identical propositions of law. The former section laid down a general proposition against the admissibility of confessions made to police officers. The next section carried the principle further by rendering similar confessions inadmissible, even though not made to a police officer, but made by a person “whilst he is in the custody of a police officer.” Then came a general proposition, which extended over an area covered by both the preceding sections, and, under certain conditions, rendered such confessions admissible as would otherwise be inadmissible under those two sections. This general proposition appeared in the form of a separate and independent section (150), laying down that a police officer might “depose to” any confession made by an accused person, so far as such confession led to discovery of some fact, whether such confession was made to a police officer, or to a third person whilst the accused was in the custody of a police officer. The words of the section are general, and must be understood to govern confessions contemplated by both the preceding two sections. For example, suppose the accused to have said to the policeman:—“I concealed the articles which I got in the dacoity A under my stack of straw, and those which I got in dacoity B under the fluor of my cow-house.” As long as the information related distinctly to that fact discovered in consequence of it, it might be received in evidence under s. 150 of the Criminal Procedure Code of 1861, even though the confession was made to a police officer and by a person in his custody . But an essential feature of the section was, that the confession must be proved by the deposition of the police officer himself to render it admissible in evidence. In the case of Bishoo Manjee Jackson, J., observed:—“The police officer to whom the statement was made was not examined at all, and, therefore, it seems that the admission, so far as it was an admission, is not taken out of the general terms of s. 148, which execute such admissions generally.” But in that case another important rule was also laid down, which has a bearing upon the interpretation of s. 150, as it originally stood in the Code of 1861, it was held that an admission obtained by a police officer from a prisoner by persuasion and promises of immunity in contravention of s. 146 was not admissible in evidence, even though it led to the discovery of facts. The rule had already been previously adopted by a Division Bench of the Calcutta High Court in the case of Queen v. Dharum Dutt Ojha (3), and these two cases therefore, are distinctly authorities for the proposition that, notwithstanding the general terms of s. 150, it was never taken to qualify the prohibition contained in s. 156.
Such was the law in 1869, when Act VIII of that year was passed. The Act repealed s. 150 of the Code of 1861 and substituted is its place a section in which the change of language is noticeable. The new s. 150 ran as follows:—“Provided that, when any fact is deposed to in evidence as discovered in consequence of information received from a person accused of any offence, or in the custody of a police officer, so much of such information, whether it amounts to a confession or admission of guilt or not, as relates distinctly to the fact thereby discovered, may be received in evidence.”
What was the exact change of language introduced by the new section? Why was it introduced? What was its effect? These are questions which must be considered with reference to the point now before us. It seems clear to me that the change of language limited the operation of s. 150 of Act XXV of 1861, by taking away from it the force of a separate and independent proposition of law, and by reducing it to a mere proviso. But a proviso to what proposition of law? Surely dot to all the propositions contained in the four preceding sections. The change of language consisted in the introduction of the words “provided that” as the opening words of the section. Further, after the words “when any fact is deposed to,” the words “by a police officer” were removed, and the words “in evidence” substituted; the words “by him” which referred to the police officer, were absolutely removed; after the words “a person accused of any offerce” the words “or in the custody of a police officer” were inserted, and instead of the words “by it,” the wordes “thereby discovered” were substituted. All the changes of language thus introduced are not, of course, important for the Preston question; but the introduction of the opening words in the new section, and the removal of all such words as refer to the evidence of a police officer, are very significant indeed. They leave no doubt in my mind that the Legislature was conscious of the fact that the general rule laid down in s. 148, prohibiting the admission of confessions made to police officers, was defeated by the rule contained in s. 150 of the same Act. The new section by its change of language allowed the imperative rule laid down in s. 148 to stand supreme, by rendering the language of s. 150 a mere proviso to the rule contained in the immediately preceding sections 149, which was expressly limited to confessions made by a person “whilst he is in the custody os a police officer”—confessions which if made to the police officer himself, would not, as I shall presently show, be admissible under the provisions of s. 148.
I am of opinion that the comparison of the language of s. 150 of Act XXV of 1861 with the language of modification introduced by Act VIII of 1869 leaves no doubt upon the question. For if the rule contained in s. 150 was intended to govern the confessions which fell under both the two preceding sections, it seems difficult to conceive why the Legislature transformed it into a proviso. The exigencies of drafting did not absolutely require it, unless, indeed, the object was, as I take it, to have been to limit the operation of the section only to cases falling under s. 149 viz., confessions made by a person whilst in the custody of a police officer. This interpretation is borne by the circumstance that, in changing the language of s. 150, the Legislature removed the words which empowered a police officer to depose to confessions made by accused persons. Why were these words removed if the Legislature intended that the new s. 150 should allow confessions made to police officers to be proved in cases where such confessions led to discovery sections? Again, what explanation can there be for the insertion of the words “or in the custody of a police officer” other that the view that s. 150 being converted from an independent rule into a proviso, it was desirable to render the language of the proviso uniform with, and suitable to, the language employed in the main proposition which it qualified? It has been suggested that the language of the new section contains the words “a person accused of any offence” which are common to s. 148; that the words “in the custody of a police officer” occur also in s. 149; that between the two phrases the disjunctive word ‘or” has been employed; and that these circumstance supply a reason for interpreting s. 150 as a proviso to both the preceding sections. I am unable to see any force in this view, for the “confession or admission of guilt made by any person” contemplated by s. 140 covers both the phrases of s. 150, to which the argument relates; and I cannot understand it to furnish any reason for extending the operation of the proviso to the rule contained ins. 148. To extend the operation of the proviso beyond the immediately preceding s. 149 would involve the logical consequence that it not only governed s. 148, but also ss. 147, and 146. So that a police officer who, in contravention of s. 146, obtained a confession by inducement, threat or promise and, in contravention of s. 147, recorded such confession, might prove it, if such confession led to discovery, I have already said that such an interpretation was never placed upon these sections an interpretation which, if adopted, would go for to defeat the policy which the Legislature had obviously in view I take it, therefore, that the law as it stood in the Criminal Procedure Code of 1861, as amended by Act VIII of 1859, prohibited the admission in evidence of all confessions made by the accused to police officers, whether such confessions led to discovery or not. And it follows from this that the confessions contemplated by s. 149 were those made to persona, other than police officers, by the accused whilst in the custody of the police.
Such then, according to my view, was the law as it stood when the Evidence Act (I of 1882) and the Criminal Procedure Code, Act X of that year, were under the consideration of the Legislature. Both the Acts were framed with reference to each other, so far as the question now before us is concerned. The Legislature decided—and decided rightly—that whilst the rules contained in ss. 146 and 147 of Act XXV of 1861 fell property under the category of the rules of Criminal Procedure, to reappear as ss. 120 and 121 of the proposed Criminal Procedure Code of that year, the rules contained in ss. 148, 149, and 150 of the Act were misplaced in the Code of Criminal Procedure. Those were rules relating to the admissibility of evidence, whatever the policy may have been on which they were based; and it is intelligible that the Legislature considered it only fit and proper that they should find a place in the consolidated Code of Evidence which it was then framing. Accordingly, we find that ss. 148, 149, and 150 of Act XXV of 1861 were exiled from the region of Criminal Procedure: they found noplace in the new Code, Act X of 1872, but appeared in their proper place as ss. 25, 26, and 27 of the Evidence Act, under the category of Admissions. They have been imported bodily in the same order as they existed in the Code of 1861; they are identical in the rules which they lay down, though the language has been improved by some verbal alterations which require no special mention, except the omission of the word “or” from the clause “a person accused of my offence or in the custody of a police officer.” In the place of the omitted word “or” a comma has been substituted, rendering the words “in the custody of a police officer” a parenthetical clause forming the qualification of the person whose confession would fall under the section. The removal of the disjunctive word is remarkable, and, if it has any effect, it is that of limiting the scope of the proviso.
There is no question that the admissions which we are now considering were confessions of guilt made to a police officer, and that they led to discovery. Nor is it doubted that, unless they fall under the purview of s. 27 of the Evidence Act, they are wholly inadmissible in evidence, by reason of the imperative rule contained in s. 25 of that Act. The only question then is, whether s. 27 contain plates such confessions.
Having heard the argument of the learned Public Prosecutor and having had the advantage of conferring with my learned brother Judges. I adhere to the rule which I laid down in the case of Kuarpala . It appears to me, and indeed it is conceded, that the difficulty has arisen solely by the circumstances that the proviso contained in s. 27 appears as a separate lection: that is to say, if the namerals “27” were obliterated, the View which I take would he absolutely correct. But the figures stand in the statute, and, on this ground, it is contended that the proviso governs not only the immediately preceding section, but also s. 25 and the learned Police Prosecutor conceded at the hearing that the logical result of his argument is to render s. 24 also subject to the proviso.
I am unable to accept this contention, as I hold that, in interpreting these sections, the history of their origin, and the changes which they have from time to time undergone, cannot be lost sight of. I have already endeavoured to show that it would be impossible to place the interpretation advocated by the learned Public Prosecutor on these sections as they stood in Act XXV of 1861 after their amendment by Act VIII of 1869. And, if I am right so far, it seems to me that there is absolutely nothing to show that the Legislature, in transferring them from one Act to the other, intended them to undergo any such change in their operation as would extend the scope of the proviso. But, irrespective of the reasons based upon their position in the Code of 1861, I am of opinion that these sections, even if taken by themselves in their place in the Evidence Act, do not justify the construction sought to be placed upon them by the learned Public Prosecutor. So far as his argument is based upon the fact that the proviso contained in s. 27 stands as a separate section and not as a part of s. 26, I have only to say that the division of statutes into sections is a matter of comparatively recent growth, and that such division does not affect the principle of construction that each clause of the statute should be read with reference to the other, and with due regard to its own language, s. 27 is obviously not a separate rule independent of the other sections; it is not a main proposition of law, as it originally was in Act XXV of 1861, before the repeal by Act VIII of 1869. The section 39 a proviso to some main proposition or propositions which precede it, and the accident that it has been numbered as a separate section has in itself no significance as a matter of interpretation. “A proviso is of great importance when the Court has to consider what cases come within the enacting part of a section, and it is always to be construed with reference to the preceding parts of the clause to which it is appended. The mere fact, indeed, that a proviso was printed as part of any one section did not, at the time when statutes were not divided into sections upon the roll, limit the effect or construction of the proviso.” To use the words of Holroyd, J.—“the question whether a proviso in the whole or in part relates to, and qualifies, restrains or operates upon the immediately preceding provisions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend upon its words and import, and not upon the division in sections that may be made for convenience of reference in the printed copies of the statutes” (Wilberforce on Statute Law, pp. 302-3). I therefore hold that on argument, one way or the other, can be based on the mere fact of the proviso in question being framed as a separate section. The real question is, whether the words of the proviso itself can be taken to extend to any proposition in the Evidence Act other than that contained in s. 26. Before proceeding to consider this question, it may be premised that “where an enacting clause, which is general in its language and objects, is followed by a proviso, that proviso must be construed strictly; it cannot enlarge the words of the enacting clause.” (Wilberforce on Statute Law, p. 303), I have already pointed out that, in importing the section from the Code of 1861, the Legislature has omitted the word “or,” and that such omission, if it has any effect, must be taken to have restricted the application of the proviso. Analysing the section carefully, it seems to me that the confessions which fall under its purview must possess every one of the following qualifications:—
(i) The person making the confession must be “a person accused of any offence.”
(ii) He must be “in the custody of a police officer whilst making the confession.”
(iii) The confession must “relate distinctly to the fact thereby discovered.”
And I shall presently give my reason for holding that, by necessary implication, it must be held as an additional condition Empress that—
(iv) The confession must not be a “confession made to a police officer” within the meaning of s. 25, nor most it have been “caused by any inducement, threat, or promise” within the meaning of s. 24.
The first step in considering this question is to realise the fact that Ss. 25 and 26 do not overlap each other, for then there would obviously be no necessity for framing two separate sections to lay down one and the same proposition of law. On the other band, s. 26, cannot be treated as an exception or proviso to s. 25, there being no words to justify such an interpretation. The two sections laid down two clear and definite rules. In s. 25, the criterion for excluding the confession is the answer to the question—To whom was the confession made? If the answer is that it was made to a police officer, the law says that such confession shall be absolutely excluded from evidence, because the person to whom it was made is not to be relied on for proving such a confession, and he is moreover suspected of employing coercion to obtain confessions. On the other hand, the criterion adopted in s. 26 for excluding confession is the answer to the question—Under what circumstances was the confession made? If the answer is that it was made whilst the accused was in the custody of a police officer, the law lays down that such confession shall be excluded from evidence, unless it was “made in the immediate presence of a Magistrate.” The reason of the rule seems to be that the custody of a police officer provides easy opportunities of coercion for extorting confessions. Now, it seems to me that a comparison of these two sections leaves no doubt that confessions to a police officer, even though made in the presence of a Magistrate, would be wholly inadmissible, for the simple reason that the saving clause contained in s. 26 does not exist in s. 25. Such was the view taken of the law, as contained in the corresponding s. 149 of Act XXV of 1861, by a Division Bench of the Calcutta High Court in the case of Queen v. Domun Kahar . Here, then, is a marked difference between the incidents of a confession made to a police officer and a confession made not to a police officer, but to a third person, by the accused “whilst he is in the custody of a police officer.” To dispute this proposition is to say that the words in s. 26 preceding the saving clause are wholly superfluous, and that the saving clause should have properly found, place in s. 25. I cannot credit the Legislature with such verbiage. And if s. 26 does not contemplate and include within its scope confessions made to a police officer within the meaning of s. 25, it seems to follow, a fortiori, that such confessions do not fall within the purview of s. 27. For both the sections, so far as this point is concerned, depend exactly upon the same principle, it seems to me that the opposite view implies three propositions which are wholly opposed to what I regard as a fundamental rule of interpreting statutes. The first of these proposition would be that the words occurring in s. 26, “unless it be made in the immediate presence of a Magistrate,” should be inserted in s. 25. The second proposition would he that the words “in the custody of a police officer,” occurring as they do as an essential condition of the rule contained in s. 27, should be treated as meaningless or superfluous. The third proposition would be that the words “whether such confession was made to a police officer or not” must he read as forming a part of s. 27. I am wholly unable to hold that the Legislature intended these sections to be read in this manner. Indeed, there is ample reason to show that this was not what the Legislature intended. I have already pointed out that these rules own their origin to the safeguards which the Legislature intended to provide against torture being employed by police officers for the purpose of exporting confession and enforcing disclosures. This appears from Regulation XX of 1817, which I have quoted, and the history of the various changes which these sections have undergone shows a steady tendency in the direction of excluding confessions which are liable to the suspicion of having been extorted. Now, if this is a true interpretation of the policy of the Legislature, it seems to me that the interpretation which the learned Public Prosecutor seeks to place upon these sections would lead to the most anomalous results. As an illustration of this:—A confession made to a police officer by a person who is not in the custody of the police, even though such confession led to discovery, would not her admissible is evidence, because it could not fall under the put view of s. 27, which is restricted to persona “in the custody of a police officer.” But if that same confession were made to a police officer whilst the accused is in the custody of that officer, such confession would, according to the contention of the learned Public Prosecutor, be admissible under s. 27 of the Act. In other words, confession made to the police officer by the accused, whilst he is entirely under the power and control of such officer, may be admitted in evidence, but that same confession, if made before arrest, and whilst the accused is free, cannot be admitted in evidence, even though it led to discovery. What, then, becomes of the principle that the obvious policy of these sections was to check torture of prisoners for extortion of confessions? It seems clear to my mind that the confession contemplated by s. 27 must have been made to some person other than a police officer. This view seems to be the only one which does not clash with the policy of the law—the presence of a third person to whom the confession is ??? a being a check upon maltreatment of the prisoner, the discovery which takes place in consequence of the confession being a guarantee of its truth. In other words, under this view a confession must not, and cannot, depend for its proof solely upon the testimony of the police officer in charge of the prisoner. If the rule were otherwise, as advocated by the learned Public Prosecutor, the prohibition contained in s. 25 would be ineffective. It would certainly not have the effect of preventing torture for extorting confessions. For such malpractices would still continue on the part of the police, in the hope of discovery, which home, if realised, would render the confession admissible under s. 27: the policeman to whom the confession was made being the only witness to say whether it was extorted or not. I can readily conceive cases in which discovery has actually taken place, either by accident or owing to information received from sources other than any confession made by the accused, Now, if s. 27 be taken to include confession made to the police officer, it may be that the only evidence to connect the discovery with the alleged confession of the accused would be the evidence of the policeman, and of no one else. Indeed, such seems to be the case now before us. That the policy of the law is intended to obviate such a contingency, is apparent from other cognate provisions. S. 103 of the present Criminal Procedure Code, which reproduces much older law, lays down that every search to be made by the police shall be made in the presence of witness, who must obviously be persona other than police officers. The reason is that the uncorroborated testimony of the police officer alone is not accepted, for it is not an uncommon plea raised by the accused that the stolen property or other thing affording evidence of crime, and said to have been found in his house, was brought there by the police themselves. It seems to me that the analogy of the rules which imperatively require the presence of witnesses at a search by the police is very strong with the rule now under consideration; and if the fact that stolen property was found in the house of the accused person needs proof by testimony of persons other than the police officer, a fortiori an alleged confession by the accused must need Independent testimony also.
The learned Public Prosecutor has attempted to support a portion of his argument by comparing the sections in question with the rules of evidence adopted by the Courts of Justice in England, in regard to confessions caused by inducement, threat, or promise, when such confessions distinctly relate to facts discovered in consequence. He contends that it is a settled rule of law in England that such confessions are admissible so far as they relate to the discovery of facts, and, as and authority for this proposition, he relies on Mr. Justice Stephen's Digest of the Law of Evidence, art. 22. And, on this ground, he contends that the proviso contained in s. 27 must he taken to govern not only ss. 26, and 25, but also s. 24. The question arises in this case only indirectly but I am prepared to hold that the contention is unsound. In the case of Kuarpala I expressed the opinion that in no case could Confessions obtained under the circumstances described in s. 24 be admitted in evidence, whether they led to discovery or not unless indeed they fell under s. 28 of the Evidence Act, but then the question of discovery would be immaterial. In that case I also observed that “the rule upon this point adopted in the Indian Act seems to be more stringent than, and at variance with, that of the English Law of Evidence as explained in ss. 824 and 825 of Taylor's celebrated work. But the difference between the state of things in England and in this country amply accounts for the difference which the legislature has thought fit to make. Even in England, Lord Eldon, in Harvey's case, cited by Taylor, laid down the rule by saying that when the knowledge of a fact was obtained from a prisoner under such a promise as excluded the confession from being given in evidence, be should direct an acquittal, unless the fact proved would itself have been sufficient to warrant a conviction without any confession leading up to it.”
I still hold the same view, and may here add some reasons for it. In England the rules excluding confessions caused by any inducement, threat, or promise proceeding from a person in authority are based upon a consideration that such confessions are valueless in evidence, and do not afford safe data for arriving at the truth, I am not aware that there is any other reason assigned for the rule; and it is therefore intelligible that when facts are discovered in consequence of confessions improperly obtained, so much of such confessions as distinctly relate to such facts may be proved—the reason of the rule being that the discovery of the facts affords a guarantee that the confessions were true. Now, it appears from what I have already said that the rule has, in India, an additional policy as its basis, viz., the check which the Legislature has thought fit to impose upon the extortion of confessions. Ss. 98 and 146 of Act XXV of 1861, ss. 120 and 184 of Act X of 1872, and, finally, s. 163 of the present Criminal Procedure Code, obviously proceed upon the policy to which I have referred; and it must be remembered that all these sections are meant to be prohibitions addressed not only to police officers, but also to all other persons. The last of these sections, which has consolidated the rules upon the subject, lays down that “no poi ice officer or person in authority shall offer or make, or cause to be offered or made, any such inducement, threat, or promise as is mentioned in the Indian Evidence Act, 1872, s. 24.” There is thus a statutory prohibition in the most positive language against the employment of inducement, threat, or promise for the purpose of obtaining confession from the accused. I am not aware that such statutory prohibitions exist to England. They were probably not called for by the conditions of life in that country. Therefore, in interpreting statutory rules peculiar to India, it cannot be altogether safe to deduce any conclusions by following the rule in pari materia in England. But I think I may safely say that, even in England, confessions to the police are received with especial caution the police officer being invariably taken to be a person in authority, any tangible inducement, threat, or promise from him of the nature described in s. 24 of our Evidence Act, would render the confession inadmissible, unless it led to discovery. But in this country the prohibitions existed long before the Evidence Act was passed, and they were understood by the Courts to exclude confessions obtained in contravention of the rule, even though such confessions led to the discovery of facts-Queen v. Dharum Dutt Ojha ; Queen v. Bishoo Manjee . S. 24 of the Evidence Act is therefore only a reproduction of the old law, and there is nothing in that Act to show that it intended to alter the old rules. S. 27 cannot therefore be taken to govern s. 24. Indeed in the case of Mussamat Lachoo , Spankie, J., gave very strong effect to the flection, by applying in even to a confession made to a police officer, repeated before a Magistrate, and repeated again before the Sessions Judge—a confession which the report shows had led to discovery.
But it has been suggested that the provisions of s. 162 of the present Criminal Procedure Code (Act X of 1882), which refer expressly to s. 27 of the Evidence Act, favour the contention of the learned Public Prosecutor regarding the scope of the latter section. Upon this point, I wish to observe that no such reference fo s. 27 of the Evidence Act existed in the corresponding s. 119 of the Code of 1872, which was enacted ??? with the Evidence Act, and that the wording of a statute passed in 1882 cannot be a safe guide to the interpretation of another statute passed ten years before. But, apart from this consideration, I am unable to see any force in the view thus desired to be deduced from a comparison of s. 27 of the Evidence Act with the, saving clause of s. 162 of the present Criminal Procedure Code. It is obvious to my mind that s. 27 of the Evidence Act, when in speaks of “information,” includes statements which fall short of confession as well as statements which amount to confession; and my interpretation would he that the saving clause of s. 162 of the Criminal Procedure Code relates only to the former class of statements. There is certainly not one word in the section to warrant the inference that it contemplates “confession” made to the police within the meaning of s. 25 of the Evidence Act. And it is needless to any that this reference to the Full Bench relates only to such confessions, and not to statements in general.
But there are some other considerations also in favour of the view which I have taken of ss 24, 25, 26, 27, and 28 of the Evidence Act. The principle of relevancy is a doctrine relating ta evidence which may be said to be based upon a consideration of the question—What facts offord sufficiently safe data for arriving at the truth? The principle, which is an essential law of the human mind, is universal to all mankind, though, in adopting it as a rule of judicial investigation, various nations, according to the exigencies of their position and the stage of civilization at which they have arrived, have made differences in matters of detail. The Indian Evidence Act in s. 5 lays down clearly that evidence may be given only in respect of “relevant facts, and of no others. Now s. 24 declares that confessions caused by inducement, threat, or promise are “irrelevant,” unless, as s. 28 provides, they are made “after the impression caused by any such inducement, threat, or promise has been fully removed.” The rule thus laid down is, speaking strictly, a rule of relevancy; and the Legislature might have stopped there, if it had no further object in view. But it did not stop there. It went on to lay down three other rules contained in ss. 25, 26 and 27, which are not, strictly speaking, rules of relevancy called forth by the abstract principles of evidence. They are positive prohibitions necessitated by the exigencies of the situation in British India. Accordingly, we find that none of these three sections refer to relevancy or irrelevancy of confessions to the police, and the readoption of the expressions “relevant” and “irrelevant” in ss. 28 and 29 is significant. Indeed, upon the general principles of evidence, it would be erroneous to describe such confessions as “relevant,” because there is no reason, as a matter of abstract principle, why a confession properly made to A should be relevant if he is not serving in the police, and the same confession irrelevant if A happens to be a police officer. These considerations alone appear to mo to be sufficient to justify the conclusion that the rule contained in ss. 24, 28, and also s. 29 belong to a species different to that under which ss. 25, 26, and 27 fall, and they might perhaps have been better arranged if the former set of sections were grouped together. But circumstance that they are not so grouped would not alter the principle which should guide their interpretation. To hold, then, that s. 27 is a proviso to s. 24; also is to mix up two different principles altogether. It might, indeed, be that a person whose case would otherwise fall under s. 27, has made a confession which was “caused by any inducement, threat of promise,” such as is contemplated by s. 24. Under such circumstances, s. 27 would be available, and I would hold, as Spankie, J., actually held in the case of Massamut Luckoo that such confession was “irrelevant” within the meaning of s. 24, and therefore not provable in evidence under s. 5, even though it may have led to discovery.
I have dwelt upon this question at such length because I am not aware of any reported case decided by this or any other High Court in which the exact question now before us has been fully considered and decided. And in order to guard against being misunderstood, I wish to say that I must not be taken to lay down any such rule as would ignore the distinction between statements which amount to confessions ani those which fall shart of them. The expression “confession” has not been defined in the Evidence Act. It, however, occurs under the category of admissions, and, to make my meaning clear, I adopt the definitions given by Mr. Justice Stephen in art. 21 of his Digest of the Law of Evidence by saying that “a confession is an admission made at any time by a person charged with a charged stating or suggesting the inference that he committed that crime.”
Having thus explained the exact scope of the rule which I lay down, I consider it unnecessary to discuss the rulings in the case of Jora Husji and in that of Paguree Shaha , to which the learned Public Prosecutor has called our attention. I may, however, observe that I do not regard the former of these cases as apposed to my view, and that I understand the rule laid down by Tyrrell, J., in the case of Empress v. Nanhe Beg (4) to be in fall accord with my view. And it seems to me that the recognized rules of interpretation applied to the clause of the statute now Empress under consideration, scarcely leave room for any other construction. I have already said that, as a general rule, and almost always, a proviso must be taken to govern the main proposition of law which immediately precedes such proviso, unless indeed the language of the statute shows a different intention. Indeed, an illustration of this is to be found in ss. 107 and 108 of the Evidence Act itself, the former section being the main proposition, and the latter constituting the proviso. And the illustration is especially applicable to the matter now under consideration, as s. 108 of the Evidence Act, like the original s. 150 of the Criminal Procedure Code of 1861 (corresponding to s. 27 of the Evidence Act) originally-stood as a main and independent proposition of law, S. 9 of Act XVIII of 1872 did to s. 108 of the Evidence Act what Act VIII of 1869 had done to s. 150 of the Code of 1861, it reduced the section into a mere proviso by introducing the words “provided that” at the beginning of the section—a change which Sir James Stephen, in a postscript to his edition of the Evidence Act, has described as having made a “substantial alteration” in the Act. What was the substantial alteration? It was simply this, that, from being an independent proposition of law, the section sank into a mere proviso to the main proposition contained in the immediately preceding s. 107. As the statute now stands, it seems obvious that s. 108 must be taken to be a proviso to s. 107 and to no other; and it appears to me that there is no mure reason for holding that s. 27 governs not only s. 26, but also ss. 25 and 24, than there would be for the untenable proposition that s. 108 is a proviso, not only to s. 107, but also to the six preceding sections which relate to burden of proof. I confess I am unable to conceive how the contention of the learned Public Prosecutor can be substantiated unless he can establish the proposition that the introduction of the words “provided that” by Act VIII of 1869 into s. 150 of Act XX of 1861, and by Act XVIII of 1872 into s. 108 of the Evidence Act, were equally meaningless changes of diction. I am unable to accept any such view, for it is wholly opposed to my nation of the rules by which the drafting and interpretation of statutes are governed.
As a summary of my observations, I hold that the rule laid down by the Legislature is s. 24 (read with s. 28) of the Evidence Act, is a rule absolutely independent of the question of discovery or no discovery to which s. 27 relates; that the state of things in India has in ??? the Legislature to frame, in s. 25, an equally absolute rule in regard to confessions made to police officers, which are presumed to have been made under conditions prohibited by s. 24; that the Legislature, going further in the same direction, has prohibited the admission of even such confessions as are made to third persons by the accused whilst in the custody of a police officer; that not the two first rules, but only the last rule so enunciated, is made subject to the saving-clause contained in s. 26 rendering confessions admissible, if they are not made to the police officer, but to a third person, “in the immediate presence of a Magistrate,” which affords a guarantee that the confession was not extorted; that the proviso contained in s. 27 is not intended to qualify the absolute rules contained in ss. 24 and 25, but only the rule contained in the immediately preceding s. 26, which relates to confessions made, not to the police officer, but to third persons, whilst the person making the confession is in the custody of the police. In Short, I hold that the law of India as to confessions improperly obtained is the same as the rule laid down by Lord Eldon in Harvey's case and that confessions to a police officer are conclusively presumed to have been improperly obtained, so as to be subject to the same rule, unaffected by the question of discovery.
With reference to the case of Empress v. Pancham which has been cited, I observe with regret that the views which I have expressed do not accord with those indicated by Stuart, C.J, but they are not necessarily inconsistent with the observations made by Straight, J., in the same case.
And now I wish to add that, in considering this case, it has been my endeavour to avoid the necessity of my expressing views dissentient from those which my honourable colleagues are disposed to take, and it is not without much regret that I have left myself constrained to dissent from them upon a question of such significance. My answer to this reference must, however, be in the negative.
Straight. Offg. C.J:— I have very carefully read and anxiously Empress considered the able and elaborate judgment prepared by my brother Mahmood, which may fairly be said to exhaust the subject of the Bubu Lal, reference before us. I most cordially sympathise with him in his anxiety to rigidly apply every restriction the law imposes upon police officers in this country, for—and I say it advisedly—my experience in this Court has conclusively satisfied my mind of two things; first, that in almost every case of serious gravity or difficulty, the primary object towards which the police direct their attention and energies is, if possible, to secure a confession; secondly, that such confession, if subsequently retracted, is, as an item of judicial proof, unless corroborated by strong and independent evidence, positively worthless. If requires no very vivid imagination to picture what too often takes place when two or three of these not very intellectual or highly-paid police officials are called away to a village to investigate a grave crime, of which there are no very clear traces. Naturally it is much the easier way for them to begin by endeavouring to obtain a confession from the suspected person or persons, instead of by searching out the clue to the evidence from independent sources, and seeing what entranceous proof there is. But, as I have more than once been constrained to remark from this Bench, the effect of this sanction given by s. 164 of the Criminal Procedure Code to a Magistrate recording in the course of the investigation the confessions of accused persons thus obtained, not from the hands of the police, is not so beneficial to the elucidation of guilt as is supposed, for it continually happens that, while the police have been occupying themselves in getting the confession, many of the traees of the crime, which, if at once followed up, would have produced valuable proof, have disappeared. To repeat a phrase I used on a former occasion, instead of working up to the confession, they work down from it, with the result that we frequently find ourselves compelled to reverse convictions simply because, beyond the confession, there is no tangible evidence of guilt. Moreover, I have said, and I repeat now, it is incredible that the extraordinarily large number of confessions, which come before us in the criminal cases disposed of by this Court, either in appeal or revision, should have been voluntarily and freely made in every instance as represented. I may claim some knowledge of, and acquaintance with, the ways and conduct of persons accused of crime, and I do not believe that the ordinary Empress inclination of their minds, which in this respect I take to be pretty much the same with humanity all the world over, is to make any admission of guilt. I certainly can add, that, during fourteen years' active practice in the criminal Courts in England. I do not remember half-a-dozen instances in which a real confession, once having been made, was retracted. In this country, on the contrary, the retractation follows almost invariably as a matter of course, and though I am well aware how this is sought to be explained by a suggestion of the influence brought to bear upon the confessor by other prisoners in hava lat, the fact remains as an endless source of anxiety and difficulty to those who have to see that justice is properly administered. I say it in no harsh sense of disparagement, but it is impossible not to feel that the average Indian policeman, with the desire to satisfy his superiors before, and the terms of the Police Acts and Rules behind, him is not likely to be overnice in the methods he adopts to make a short cut to the elucidation of a difficult case by getting a suspected person to confess.—As instances of what may he done I need only refer to the cases of Empress v. Wahid Ali, tried by my brother Tyrrell in this Court at the Sessions of January, 1883, and of Empress v. Jugal Kishore recently decided on appeal by my brother Duthoit. I have made these remarks, which may seem somewhat beside the question immediately before me, out of deference to certain observations of my brother Mahmood, and to let him understand that I appreciate to the full and sympathise with all that he has said upon the same subject. No one scrutinizes with more closeness than I do these confessions, which are legally receivable as having been recorded under s. 164 of the Criminal Procedure Code; no one is more inclined to construe strictly the provisions of ss. 25, 26, and 27 of the Evidence Act than I am. But in interpreting the law it is necessary, for the moment, to silence ones strong feelings and impressions, as there is nothing so likely to mislead the judgment, when determining the interpretation to be placed upon the legal phraseology of a statute. My brother Mahmood in the case of Empress v. Kuarpala , which has virtually brought about this reference, took occasion to refer to a decision of mine in Empress v. Pancham, and he again mentions it in his present judgment. In order to avoid any misapprehension, I think it right to remark bere that I did not there lay down that a police officer who deposes to a fact as discovered in consequence of information received from a person accused in his custody, is prohibited from stating so much of the information received as relates distinctly to the fact thereby discovered, even though it amounts to a confession, the point upon which my judgment proceeded in that case was that no fact had been discovered in consequence of the statement of the accused, and what I did say was—“In short, it was by his own act, and not by any information given by him, that the discovery took place.” At best, Pancham's statements were declarations amounting to confessions accompanying acts by the accused himself, which, in my opinion, were inadmissible I adhere to every word I used in that judgment, but I took pains to carefully guard myself from misconception by saying. “It is manifest that the prohibit oil laid down in these two sections (25 and 26) must be strictly applied, and any relaxation of it in accordance with the proviso of s. 27 should be sparingly admitted, and only to the extent of so much of the accused's statements as directly and distinctly relates to the fact alleged to have been discovered in consequence of it.” Far from being an indication that I held s. 27 not to govern ss. 25 and 26, the latter portion of my remarks suggests an inference in the other direction.
My brother Mahmood addresses himself with much labour and skill to the discussion of the policy and intentions of the Legislature in enacting the successive provisions which have new found final embodiment in ss. 25, 26, and 27 of the Evidence Act. No doubt those whose business it was to frame the law, as time passed on, learned by experience that unauthenticated confessions made to the police were liable to be not only extorted but occasionally invented, and that grave danger was likely to be run if the Courts were allowed to attach any value whatever to them as evidence. They were accordingly, in the result, declared by s. 25 of Act I of 1872 to be incapable of proof against a person subsequently accused. But the Legislature went oven further than this and said, in effort that if a person, while he was in the custody, and consequently under the influence, of the police made a confession to a third person, such confession should he incapable of proof, unless made in the immediate presence of a Magistrate (s. 26). Both those provisions obviously proceeded on the assumption that confessions made to the police by accused persons while in their custody or not, or to third persons while in their custody, unless, in the latter case, they were guaranteed by the presence of a Magistrate, were Valueless as evidence, because of the experience which has created an apprehension that they might not he voluntary, and consequently that they might be false. But it was never intended, and indeed such an idea could never have been carried out without absolutely disqualifying them from giving evidence at all, to debar police officers from deposing to facts discovered by them, no matter by what means they have obtained the information that led to discovery from the accused. Whatever the torture, or inducement, or promises, or threats that may have been applied, or made use of towards him, there is nothing in the law which forbids policemen from, at any rate, going so far as to say:—“in consequence of what the prisoner told me, I went to such and such a place, and found such and such a thing.” They may have committed offences against the Penal Code for which they are punishable, but they are not prohibited from stating a fact or facts discovered, and that they did discover them owing to information given them by the prisoner. Nay more, they may repeat the words in which the information was couched, but—and it is at this point my brother Mahmood introduces the reservation—not if they amount to a confession. Now, it is here that I fail to appreciate the force of his argument based upon the matter of torture and the policy of the Legislature in that direction. If a police officer, no matter whether torture has been used or not, may prove that he discovered a fact, and that he did so in consequence of information received from the accused, and may give the words of the accused, embodying such information, so long as they do not amount to a confession, I cannot appreciate what additional harm could have been contemplated as likely to result from his being permitted to give “so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered.” It certainly seems to me that to draw such a very fine distinction would be straining at a gnat and swallowing a camel and, after all, are not the provisions of s. 27 sufficiently stringent to obviate any serious interference with the broad rule laid down in s. 25? I say it with the deepest respect for the learned authors, that s. 27 is not perhaps as happily drawn as it might have been; but if its terms are strictly and properly construed and applied, I do not see why the interpretation ??? place upon them should be productive of any serious harm. It is only “so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered,” that may be proved. No judicial officer dealing with such provisions should allow one word more to be deposed to by the police officer detailing a statement made to him by an accused, in consequence of which he discovered a fact than is absolutely necessary to show how the fact that was discovered is connected with the accused, so as in itself to be a relevant fact against him. S. 27 was not intended to let in a confession generally, but only such particular part of it as set the person to whom it was made in motion, and led to his ascertaining the fact or facts of which he gives evidence. Moreover, I am by no means sure that the Courts in this country would not too often be disposed to attach a great deal more significance and meaning to the bare phrase “from information I received” as against an accused than what he actually said to the constable would deserve. It is an expression which, standing by itself, might in certain conditions of facts and circumstances convey a great deal more than it should. As far as my memory serves me, the practice as I have always seen it followed in the Courts of England in such matters—though cases on the subject of late years have been of rare occurrence—is that described by Mr. Russell in the third volume of his admirable work on “Crimes and Misdemeanors,” page 420, in the following terms:—“But the more established rule, according to later practice and later authorities, is that so much of the confession as relates strictly to the fact discovered by it may be given in evidence; for the reason of rejecting extorted confessions is the apprehension that the prisoner may have been induced to say what is false; but the fact discovered shows that so much of the confession as immediately relates to it is true. [R. v. Butcher, 1 Leach, 265, note (a) to Warickshall's Case, 2 East, P.C c. 16, s. 94, p. 658.] Thus it is proper, and it is now the common practice, to leave to the consideration of the jury, where a confession has been improperly obtained, the fact of the witness having been directed by the prisoner where to find the goods, and his having found them accordingly, but not the acknowledgment of the prisoner having stolen or put them there, which is to be collected or not from all the circumstances of the case. [2 East P.C, c. 16, s. 94, p. 658).] So where on an indictment for burglary it appeared that the prisoner had made a statement to a policeman, under some particular circumstances which induced the counsel for the prosecution, with the approbation of the Court, to decline offering it in evidence; but in consequence of the statement containing some allusion to a lantern, which was afterwards found in a particular place, the policeman was asked whether, in consequence of some thing which the prisoner had said, he made a search for the lantern, Tindal, C.J, and Parke, B., were both of opinion that the words used by the prisoner with reference to the thing found ought to be given in evidence, and the policeman accordingly stated that the prisoner told him that he had thrown a lantern into a pond in Pocock's fields. The other parts of the statement were not given in evidence. [R. v. Gould, 9 C. & P. 364.] Mr. Phillips (vol. 1., p. 412) after slating this case, adds:—‘But the Judge in such a case would direct the jury, and so it is understood did direct the jury in that case, that his statement must not be taken as proof that he concealed, but merely as evidence that be knew of, or was privy to, the concealment, from which, together with the rest of the evidence, they would consider whether it was probable that he concealed it himself.”’
It is the principles of practice thus enunciated which, in my opinion, have been incorporated in s. 27 of the Evidence Act, and as I have already remarked, if the provisions of that section are properly used by the Courts and not abused, but are administered strictly, the damages of which my brother Mahmood is apprehensive should be minimised. But it is said, police officers will fabricate facts for the purpose of dragging in a damaging statement or confession by an accused, and that they will put admissions upon him which he never made, as leading to the discovery of facts. The only answer I can make to this is that no legal provision short of one rendering a police officer altogether incompetent as a witness can prevent him, if he is minded, from committing perjury. It rests with the tribunals, whose business it is to administer criminal justice, to be alert and watchful to see that they are not deceived by false testimony, and they will do well to remember, when they are called upon to apply the provisions of s. 27, even where third persons are deposing to information amounting to a confession received from an accused, that the detail of it is to be sternly limited in the manner I have already indicated. The law, as it at present stands, permits the police to give evidence of the fact discovered, and, even according to my brother Mahmood's view, that they discovered it inconsequence of what the prisoner told them, no matter how improperly they may have obtained the information from him. If all this is evidence, despite torture, threat, inducement, or promise, it seems inconsistent to stop short there and forbid them giving the words used by the accused, which they assert led to the discovery, simply because they contain an admission of guilt. What the Courts in dealing with such matters ought to do is to bear in mind that police evidence in this country necessarily partakes more or less of a, so to speak, professional bias, that it is frequently, if not invariably, highly coloured, and that it requires to be received and weight with much caution and discrimination. “Their business,” as I once beard the late Mr. Justice Byles remark of English policeman, “is to catch thieves, ours to give them a fair trial.” No system of evidence, however perfect, can escape occasional misuse, and it is unavoidable that much must be left to the good sense and discretion of judicial officers. If they fail in properly applying the rules of law laid down for their guidance there are ample facilities afforded in the powers given to this Court by which their mistakes can be corrected and justice can be done. It is with no want of respect for, or appreciation of my brother Mahmood's judgment, from which I regret to differ, that I refrain from following him at length through the long and elaborate arguments which he has so exhaustively employed. It would be impertinent for me, if I thought so, which I do not, to say they are not deserving of the most careful attention. But they have not convinced me that my view of ss. 25, 26 and 27 of the Evidence Act, as I have endeavoured to express it in the preceding remarks, is erroneous, and I therefore think that the general question raised by this reference should be answered in the affirmative.
As, however, the opinion of the Full Bench is, so I understand it, also asked particularly with regard to the so-called confessions in the case out of which the reference has arisen, I now address myself to them specifically.
It seems to me that the evidence of Hafiz-ullah, the constable, who deposes these so-called confessions, has been most carelessly taken by the Sessions Judge, and contrary to all recognised rules as to the mode in which the testimony of witnesses should be recorded. I have more than once pointed out that it is not a proper course, where two persons are being tried, to allow a witness to state “they said this,” or “they said that,” or “the prisoner then said.” It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used. And, I may add, where a statement is being detailed by a constable as having been made by an accused, in consequence of which he discovered a certain fact or certain facts, the strictest precision should be enjoined on the witness, so that there may be no room for mistake or misunderstanding. This was not done in the case before us, and indeed the Judge in his judgment remarks, “the police witness Hafiz-ullah gave his evidence in the vaguest possible maimer.” Moreover, the Judge does not appear to have had present to his mind the provisions of s. 27 of the Evidence Act, and seems to have accepted the statements of the constable wholesale, without the slightest regard to whether they were or were not admissible under that section. If he had applied as be should have done, the rule thereby laid down, he ought to have held that portion of Hafiz-ullah's statement in which he deposed “they said they got” (I suppose this was intended to mean stole) “the cow from Lachman Teli,” “they said they had stolen a cow and a calf,” “they have stolen it from Sukhni Garaiyin of Jaitpur,” “they had stolen a goat in Belupur and sold it.” was inadmissible. The only fact about the cow and calf which was admissible, as distinctly relating to the Discovery of those animals at Abdul Rahman Jula's, was that they sold it at Madanto him. As to the goat, there is nothing to show from the constable's deposition that it was in consequence of what the accused told him that he found the goat in Chelganj. In detailing statements of this kind, which are alleged to have led to discovery it is of the essence of tilings that what each prisoner said should be precisely and separately stated. If the evidence was not clear upon this point, and the witness refused to be more explicit, the Judge should have paid no attention to it. It seems to me quite possible that the man Raghubar, who, unlike his companion, had never before been previously convicted, has been seriously prejudiced, and that it would he safer to order his acquittal. As to Babu Lal, there is direct evidence that he was actively dealing with property recently stolen, of the possession of which he was unable to give a satisfactory account, and, without the irregularly received so-called confession, he may have been properly convicted.
With these remarks I would return the case to the Division Bench for disposal.
Duthoit, J.:— In the conclusions at which the learned Chief Justice has arrived, and in the answer which he proposes to make to this reference, I entirely concur. But I am unable to agree with all that is said in the opening portion of the judgment. I place a higher value than the learned Chief Justice seems to be inclined to assign to them, upon the provisions of s. 164 of the Criminal Procedure Code, I think that if they were omitted from the Code, the interests of justice would suffer materially. And I do not think that, in the matter of confessions of crime, the tendency of humanity all the world over is the same. There is, I think, a great difference in this respect between the East and the West. The Oriental has not same tenacity of purpose that his Western brother has, and the latter is, as a rule, no fatalist. In the parts of India with which I am acquainted, a man who has been guilty of culpable homicide not infrequently gives in at once. He looks upon himself as the instrument of fate, and pays of the victim of his malice or ungovernable rage, “his time had come.” He is, for the moment, in despair, and glad to purchase immediate case by making a confession. I believe that confessions are more often induced by these motives than they are by torture and had usage. Speaking from my own experience, I can say that, at a single sessions in the Budaon district (a bi-monthly jail delivery), have known quite half-z-dozen instances of undoubtedly genuine confessions retracted. When a man's confession has been made and he is transferred to the Magistrate's lock-up, the petty indulgences which the police allow to a confessing prisoner cease, his mind recovers its balance his fellow-prisoners (especially in the lock-up of a district with traditions such as those of the district to which I have referred) prove to him how foolish he has been, and the confession is retracted.