Report No. 273

B. Statutory Provisions

(i) Indian Evidence Act, 1872

4.7 Section 24 provides that any confession obtained by inducement, threat or promise from an accused or made in order to avoid any evil of temporal nature would not be relevant in criminal proceedings. A confession made by an accused is rendered irrelevant in a criminal trial, if in the opinion of the court, it has been caused by inducement, threat or promise with reference to the charge against the accused.

4.8 Section 25 of the Act provides that a confessional statement of an accused to police officer is not admissible in evidence and cannot be brought on record by prosecution to obtain conviction 77 .

In Aghnu Nagesia v. State of Bihar78, the Supreme Court held that "if the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by section 25."

4.9 Sections 26 provides that confession by an accused while in police custody could not be proved against him. In fact, statement made in police custody remains unreliable unless it is subjected to cross examination or judicial scrutiny.79

4.10 Section 27 provides as to how much of information received from an accused may be proved. For the application of section 27, the statement of the accused is required to be split into its components and the admissible part of it is to be separated. Only those portions which were immediate cause of discovery would be admissible in evidence.80 In Kathi Kalu Oghad81, the Supreme Court held that: Compulsion is not however inherent in the receipt of information from an accused person in the custody of a police officer. There may be cases where an accused in custody is compelled to give the information later on sought to be proved under section 27.

These will be other cases where the accused gives the information without any compulsion. Where the accused is compelled to give information it will be an infringement of Article 20(3); but there is no such infringement where he gives the information without any compulsion. Therefore, compulsion not being inherent or implicit in the fact of the information having been received from a person in custody, the contention that section 27 necessarily infringes Article 20(3) cannot be accepted.

4.11 Section 132 provides that witness is not excused from answering the question on the ground that answer will criminate him. However, the proviso therefor reads as under:

"Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."

4.12 In R Dinesh Kumar v. State & Ors.82, the Supreme Court explained the scope of the proviso observing that the proviso to section 132 of the Evidence Act is a necessary corollary to the principle enshrined under Article 20(3) of the Constitution of India which confers a fundamental right that "no person accused of any offence shall be compelled to be a witness against himself". Though such a fundamental right is available only to a person who is accused of an offence, the proviso to section 132 of the Evidence Act creates a statutory immunity in favour of a witness who in the process of giving evidence in any suit or in any civil or criminal proceeding makes a statement which criminates himself which deserves the most liberal construction.

Without such an immunity, a witness who is giving evidence before the court to enable the court to reach a just conclusion (and thus assisting the process of law) would be in a worse position than an accused in a criminal case. Therefore, no prosecution can be launched against the maker of a statement falling within the sweep of Section 132 of the Evidence Act on the basis of the "answer" given by a person deposing as a "witness" before a court.

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