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PETITIONER: STATE OF U. P.

       Vs.

RESPONDENT: DEOMAN UPADHYAYA

DATE OF JUDGMENT: 06/05/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. KAPUR, J.L. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1960 AIR 1125  CITATOR INFO :  RF         1961 SC1808  (13)  F          1963 SC 222  (50)  E          1963 SC1074  (11)  D          1963 SC1113  (11)  RF         1966 SC 119  (11,21)  R          1972 SC  66  (13)  RF         1973 SC1461  (1197)  RF         1976 SC1750  (4)  RF         1980 SC1382  (51)  RF         1980 SC1632  (19)

ACT: Criminal  Law--Evidence--Statement  made to  Police  officer leading  to discovery--Statute making  statement  admissible when made by person in custody and inadmissible when made by person  not in custody--Whether offends equality before  the law--" Persons in custody "--" Person accused of an  offence "--Connotation of--Circumstantial evidence--Indian  Evidence Act,  1872 (1 of 1872), s. 27--Code of  Criminal  Procedure, 1898 (Act 5 of 1898), s. 162(2)--Constitution of India, Art. 14.

HEADNOTE: The respondent was tried for the murder of one Sukhdei early on  the morning of June 19, 1958.  The evidence against  him was  entirely circumstantial and consisted of the  following facts  :  (i) on the 18th evening there was  an  altercation between  the respondent and Sukhdei during which he  slapped her and threatened that he would smash her face; (ii) on the 18th  evening  the respondent borrowed a  gandasa  from  one Mahesh  ;  (iii) before day break on the 19th  he  was  seen going  towards and taking a bath in the village  tank;  (iv) the respondent absconded immediately thereafter; (v) he  was arrested on the 20th and on 21st he offered to hand over the gandasa  which  he  said  he had  thrown  in  the  tank  and thereafter he took the gandasa out of the tank, and (vi) the gandasa  was  found  to be stained with  human  blood.   The Sessions  judge  accepted  this  evidence,  found  that  the irresistible conclusion was that the respondent had  commit-

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ted  the murder and sentenced him to death.  On  appeal  the High  Court  held  that S. 27 of  the  Indian  Evidence  Act offended  Art.  14 of the Constitution and was  void  as  it created  an unjustifiable discrimination between persons  in custody  whose  statement  leading  to  discovery  was  made admissible  and persons not in custody whose  statement  was not  made  admissible even if it led to a  discovery  ;  and consequently  they held sub-s. (2) of s. 162 of the Code  of Criminal  Procedure in so far as it related to S. 27 of  the Indian Evidence Act also to be void.  As a result, the  High Court ruled out the statement of the respondent that he  had thrown  the  gandasa  in the  tank  as  inadmissible.   They further held that the story that the appellant had  borrowed the  gandasa  from Mahesh was unreliable.  The rest  of  the evidence in the view of the High Court was not sufficient to prove  the  guilt  of the respondent  and  accordingly  they acquitted him. Held,  (per S. K. Das, J. L. Kapur, Hidayatullah  and  Shah, JJ.,  Subba Rao, J., dissenting), that S. 27 of  the  Indian Evidence  Act  and  sub-s.  (2) of s. 162  of  the  Code  of Criminal 15 Procedure  did  not offend Art. 14 of the  Constitution  and were not void. Article  14 does not provide that all laws must  be  uniform and  universally applicable; it merely forbids  improper  or invidious  distinctions by conferring rights  or  privileges upon  a class of persons arbitrarily selected from out of  a larger  group who ,are similarly circumstanced, and  between whom  and others not so favoured, no distinction  reasonably justifying  different treatment exists.  Between persons  in custody and persons not in custody the legislature has  made a  real  distinction by enacting  distinct  rules  regarding admissibility  of statements confessional or otherwise  made by them. In  considering  the constitutionality of a statute  on  the ground  whether it has given equal treatment to all  persons similarly  circumstanced  it has to be remembered  that  the legislature  has  to  deal  with  practical  problems;   the question  is  not to be judged by merely  enumerating  other theoretically possible situations to which the statute might have been but has not applied.  A doctrinaire approach is to be avoided.  Persons not in custody making statements to the police  leading  to discovery of facts were a  possible  but rare  class.   A  person who  approaches  a  police  officer investigating  an  offence and offers  to  give  information leading  to the discovery of an incriminating fact  must  be deemed  to have surrendered himself to the police and to  be in  custody  within  the  meaning of S.  27  of  the  Indian Evidence  Act.  A law which makes provision for cases  where the  need is most felt cannot be struck down  because  there are  other  instances to which it might have  been  applied. The object of the legislation being both to punish offenders proved  to  be  guilty and to protect  persons  who  may  be compelled to make confessional statements, the provisions of S. 27 are reasonable as they make information admissible  on the  ground  that the discovery of a fact  pursuant  to  the statement made by a person in custody is a guarantee of  the truth of that statement. Legal  Remembrancer v. Lalit Mohan Singh Roy, (1921)  I.L.R. 49  Cal.  167 and Santokhi Beldar v.  King  Emperor,  (1933) I.L.R. 12 Pat. 241, referred to. West Coast Hotel Company  v. Parrish, (1937) 300 U. S.  379: 81 L. Ed. 703, Weaver v. Palmer Bros.  Co., (1926) 270 U. S. 402:  70 L. Ed. 654 and Miller v. Wilson, (1915) 236  U.  S.

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373: 59 L.     Ed. 628, relied on. The expression " a person accused of any offence " in s.  27 is  merely descriptive of the persons against whom  evidence is  sought  to be led in a criminal proceeding.  It  is  not necessary  that  the person should have been accused  of  an offence  at the time when he made the statement  leading  to the discovery of a fact. The statement made by the respondent that he will recover 16 the gandasa which he has thrown in the tank is admissible in evidence  and  may  be used  against  him.   This  statement together    with the other facts proved, even if the fact of the respondent borrowing gandasa from Mahesh Were  excluded, established a chain which was consistent only with his guilt and inconsistent    with his innocence. Pakala  Narayan Swami v. Emperor, (1939) L. R. 66  I.A.  66, applied. Per Subba Rao, J.-Section 27 of the Indian Evidence Act  was void  as  it  violated Art. 14  of  the  Constitution.   The classification of accused persons for the purpose of  making their confessions admissible into those in custody and those not   in  custody  was  not  based  upon  any   intelligible differentia  nor was it reasonable.  It was a  pure  surmise that the legislature may have thought that the confession of an accused in custody leading to a recovery was a substitute for an extra-judicial confession that he might have made  if he  was not in custody.  It was not correct that the  number of  accused not in custody making statements or  confessions leading  to  a discovery was not appreciable and  that  they need   not  be  provided  for.   Till  the  year  1872   the legislature  treated  accused in custody and  those  not  in custody  in  a  similar  manner  but  in  that  year  by  an accidental omission of the word " or " it made a distinction between them.  It was, therefore, not right to speculate and hold  that  the legislature consciously  excluded  from  the operation of S. 27 accused not in custody on the ground that they  were few in number.  Besides, the authorities did  not justify classification on the basis of numbers or enable the legislature to include the many and exclude the few from the operation  of  law  without  there  being  an   intelligible differentia  between them.  The taking into custody did  not amount to the giving of the statutory or implied caution and did  not  provide  any  intelligible  differentia  for   the classification. In re Mottai Thevar, A.I.R. 1952 Mad. 586, Durlav  Namasudra v.  King  Emperor,  (1932) I.L.R. 59  Cal.  1040,  Deonandan Dusadh  v. King Emperor, (1928) I.L.R. 7 Pat. 411,  Santokhi Beldar  v. King Emperor, (1933) I.L.R. 12 Pat. 241,  Bharosa Ramdayal  v. Emperor, A.I.R. 1941 Nag. 86 and jalla  v.  Em- peror, A.I.R. 1931 Lah. 278, referred to. Sakhawat  Ali V. The State of Orissa, [1955] 1 S.C.R.  1004, distinguished. John  A. Watson v. State of Maryland, (1910) 218 U. S.  173: 54 L. Ed. 987, Jeffrey Manufacturing Co. v. Harry 0.  Blagg, (1915)  235  U.  S.  571: 59 L. Ed.  364,  St.  Louis,  Iron Mountain & Southern Railway Co. v. State of Arkansas, (1916) 240  U. S. 518: 60 L. Ed. 776, Weaver v. Palmer Bros.   Co., (1926)  270  U. S. 402: 70 L. Ed. 654 and West  Coast  Hotel Company  v.  Parrish, (1937) 300 U. S. 379: 81 L.  Ed.  703, considered. 17 Per  Hidayatullah, J.-There was always a  clear  distinction between  a  person  not accused of an  offence  nor  in  the custody of a police officer and one who was.  Section 27 has been  bodily taken from the English law.  In both  the  laws

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there  was  greater  solicitude  for a  person  who  made  a statement  when  the danger in which he stood had  not  been brought home to him than for one who knew of the danger.  In English law, the caution gave him the warning, and in  India the  fact  of  his being in custody took the  place  of  the caution.  The law thus classified accused persons into  two: (i)  those  who  had  the danger brought  home  to  them  by detention  on  a charge and (ii) those who were  free.   The protection  given to these two classes was  different.   The law  was  concerned  with  seeing  fairplay,  and  this  was achieved  by insisting that an unguarded statement  was  not admissible.   The need for the caution was there,  and  this caution  was forcefully brought home to an accused  when  he was  in police custody.  There was ample protection  to  the accused in custody as only that portion of his statement was made  admissible  which  resulted  in  the  discovery  of  a material fact otherwise unknown to the police. Case law discussed.

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION Criminal Appeal No.  1  of 1960. Appeal from the judgment and order dated September 11, 1959, of the Allahabad High Court in Criminal Appeal No. 325/1959. H.   N. Sanyal, Additional Solicitor-General of India, G.   C. Mathur and C. P. Lal, for the appellant. H.   J.  Umrigar,  O.  P. Rana and  D.  Goburdhan,  for  the respondent. C.   K. Daphtary, Solicitor-General of India, H. N.  Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar  and T.  M.  Sen, for the Intervener  (The  Attorney-General  for India). 1960.  May 6. The Judgment of S. K. Das, J. L. Kapur and  J. C.  Shah, JJ., was delivered by Shah, J. K. Subba  Rao,  J., and M. Hidayatullah, J., delivered separate Judgments. SHAH  J.-The  Civil and Sessions Judge,  Gyanpur,  convicted Deoman Upadhyaya-respondent to this appeal-of  intentionally causing the death of one Sukhdei in the early hours of  June 19, 1958, at 3 18 village  Anandadih, District Varanasi, and sentenced him  to death subject to confirmation by the High Court.  The  order of  conviction and sentence was set aside by the High  Court of   Judicature  at  Allahabad.   Against  that   order   of acquittal,  the State of Uttar Pradesh has appealed to  this court with a certificate granted by the High Court. Deoman was married to one Dulari.  Dulari’s parents had died in  her  infancy  and she was brought  up  by  Sukhdei,  her cousin.  Sukhdei gifted certain agricultural lands inherited by  her  from  her father to Dulari.  The  lands  gifted  to Dulari and the lands of Sukhdei were cultivated by  Mahabir, uncle   of   Deoman.   Mahabir  and  Deoman   entered   into negotiations for the sale of some of these lands situated at village  Anandadih,  but  Sukhdei refused to  agree  to  the proposed sale.  According to the case of the prosecution, in the  evening  of  June 18, 1958, there  was  an  altercation between  Deoman and Sukhdei.  Deoman slapped Sukhdei on  her face and threatened that he would smash her face.  Early  in the morning of June 19, Deoman made a murderous assault with a  gandasa (which was borrowed by him from one Mahesh)  upon Sukhdei who was sleeping in the courtyard near her house and killed her on the spot and thereafter, he threw the  gandasa

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into the village tank, washed himself and absconded from the village.  He was arrested in the afternoon of the 20th  near the  village Manapur.  On June 21, he offered to  hand  over the  gandasa  which he said, he had thrown  in  the  village tank,  and in the presence of the investigating officer  and certain  witnesses,  he waded into the tank and took  out  a gandasa, which, on examination by the Serologist, was  found to be stained with human blood. Deoman was tried for the murder of Sukhdei before the  Court of session at Gyanpur.  The trial Judge, on a  consideration of  the evidence led by the prosecution, held the  following facts proved:- (a)  In  the  evening  of  June  18,  1958,  there  was   an altercation  between  Sukhdei and Deoman over  the  proposed transfer of lands in village Anandadih and 19 and in the course of the altercation, Deoman slapped Sukhdei and threatened her that he would smash her mouth " (face). (b)  -In the evening of June 18, 1958, Deoman borrowed a gandasa (Ex. 1) from one Mahesh. (c)  Before daybreak on June 19, 1958, Deoman was seen by  a witness  for the prosecution hurrying towards the  tank  and shortly  thereafter fie was seen by another  witness  taking his bath in the tank. (d)  Deomap absconded immediately thereafter and was not  to be found at Anandadih on June 19, 1958. (e)  That  on June 21, 1958, Deoman, in the presence of  the investigating  officer  and two witnesses, offered  to  hand over  the gandasa which he said he had thrown into  a  tank, and  thereafter he led the officer and the witnesses to  the tank at Anandadih and in their presence waded into the  tank and  fetched  the gandasa (Ex. 1) out of  the  water.   This gandasa was found by the Chemical Examiner and Serologist to be stained with human blood. In the view of the Sessions Judge, on the facts found, the ’ only irresistible conclusion’ was that Deoman had  committed the murder of Sukhdei early in the morning of June 19, 1958, at  Anandadih.   He observed, " The conduct of  the  accused (Deoman)  as appearing from the movements disclosed by  him, when taken in conjunction with the recovery at his  instance of  the gandasa stained with human blood, which gandasa  had been  borrowed  only  in the evening  preceding  the  brutal hacking of Sukhdei, leaves no room for doubt that Deoman and no  other  person was responsible for  this  calculated  and cold-blooded murder".  At the hearing’ of the reference made by the court of Session for confirmation of sentence and the appeal  filed by Deoman before the High Court at  Allahabad, it  was  contended  that the evidence  that  Deoman  made  a statement  before the police and two witnesses on  June  21, 1958, that he had thrown the gandasa into the tank and  that he  would take it out and hand it over, was inadmissible  in evidence, because s. 27 of the Indian Evidence Act which 20 rendered such a statement admissible, discriminated  between persons  in  custody  and persons not  in  custody  and  was therefore void as violative of Art. 14 of the  Constitution. The Division Bench hearing the appeal referred the following two questions for opinion of a Full Bench of the court:- 1.   Whether s. 27 of the Indian Evidence Act is void  because it offends against the provisions of Art. 14 of   the Constitution ? and 2.   Whether  sub-s. (2) of s. 162 of the Code  of  Criminal Procedure  in  so far as it relates to s. 27 of  the  Indian Evidence Act is void ? The reference was heard by M. C. Desai, B. Mukherjee and  A.

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P.  Srivastava,  JJ.   Mukherjee, J.,  and  Srivastava,  J., opined  on  the first question, that " s. 27 of  the  Indian Evidence Act creates an unjustifiable discrimination between " persons in custody " and "  persons out of custody  ", and in  that it offends against Art. 14 of the Constitution  and is  unenforceable in its present form ", and on  the  second question, they held that sub-s. (2) of s. 162 of the Code of Criminal Procedure " in so far as it relates to s. 27 of the Indian  Evidence Act is void ". Desai, J., answered the  two questions in the negative. The reference for confirmation of the death sentence and the appeal filed by Deoman were then heared by another  Division Bench.   In the light of the opinion of the Full Bench,  the learned  Judges  excluded from consideration  the  statement made by Deoman in the presence of the police officer and the witnesses  offering  to point out the gandasa which  he  had thrown  in the village tank.  They held that the story  that Deoman  had  borrowed a gandasa in the evening of  June  18, 1958,  from  Mahesh  was  unreliable.   They  accepted   the conclusions of the Sessions Judge on points (a), (c) and (d) and  also  on  point  (e) in so far as  it  related  to  the production  by Deoman in the presence of the police  officer and  search witnesses of the gandasa after wading  into  the tank, but as in their view, the evidence was insufficient to prove  the  guilt of Deoman beyond  reasonable  doubt,  they acquitted him of the offence of murder.  At the instance  of the 21 State of Uttar Pradesh, the High Court granted a certificate that  "  having  regard to the  general  importance  of  the question  as to the constitutional validity of s. 27 of  the Indian  Evidence Act", the case was fit for appeal  to  this court. Section  27 of the Indian Evidence Act is one of a group  of sections  relating  to  the relevancy of  certain  forms  of admissions made by persons accused of offences.  Sections 24 to  30  of the Act deal with admissibility  of  confessions, i.e.,  of statements made by a person stating or  suggesting that  he  has committed a crime.  By s. 24,  in  a  criminal proceeding against a person, a confession made by him is in- admissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority.  By s. 25,  there is  an absolute ban against proof at the trial of  a  person accused  of  an offence, of a confession made  to  a  police officer.  The ban which is partial under s. 24 and  complete under  s.  25  applies equally whether  or  not  the  person against  whom  evidence is sought to be led  in  a  criminal trial  was at the time of making the confession in  custody. For  the ban to be effective the person need not  have  been accused  of  an offence when he made  the  confession.   The expression, " accused person " in s. 24 and the expression " a person accused of any offence " have the same connotation, and  describe the person against whom evidence is sought  to be  led  in a criminal proceeding.  As  observed  in  Pakala Narayan  Swamy v. Emperor(1), by the Judicial  Committee  of the  Privy  Council, " s. 25 covers a confession made  to  a police  officer  before  any  investigation  has  begun   or otherwise  not  in  the course of an  investigation  ".  The adjectival  clause " accused of any offence "  is  therefore descriptive  of  the  person  against  whom  a  confessional statement made by him is declared not provable, and does not predicate a condition of that person ,at the time of  making the statement for the applicability of the ban.  Section  26 of the Indian Evidence Act by its first paragraph provides "

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No confession (1)  (1939) L.R. 66 I.A. 66. 22 made  by any person whilst he is in the custody of a  police officer,  unless it be made in the immediate prosence  of  a Magistrate, shall be proved as against a per. son accused of any offence." By this section, a confession made by a person who is in custody is declared not provable unless it is made in  the immediate presence of a Magistrate.  Whereas  s.  25 prohibits  proof  .of  a confession made by a  person  to  a police  officer  whether or not at the time  of  making  the confession,  he was in custody, s. 26 prohibits proof  of  a confession by a person in custody made to any person  unless the  confession  is  made in the  immediate  presence  of  a Magistrate.  Section 27 which is in form of a proviso states "  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 thereby  discovered, may  be proved." The expression, " accused of any offence  " in  s.  27, as in s. 25, is also descriptive of  the  person concerned,  i.e.,  against  a person who is  accused  of  an offence,  s. 27 renders provable certain statements made  by him  while be was in the custody of a police officer.   Sec- tion  27  is founded on the principle that even  though  the evidence  relating to confessional or other statements  made by  a  person,  whilst  he is in the  custody  of  a  police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the  discovery of  a  fact,  it  may be presumed to  be  untainted  and  is therefore  declared  provable  in so far  as  it  distinctly relates  to the fact thereby discovered.  Even though s.  27 is  in the form of a proviso to s. 26, the two  sections  do not   necessarily  deal  with  the  evidence  of  the   same character.  The ban imposed by s. 26 is against the proof of confessional  statements.  Section 27 is concerned with  the proof  of information whether it amounts to a confession  or not, which leads to discovery of facts.  By s. 27, even if a fact is deposed to as discovered in consequence of  informa- tion  received,  only  that  much  of  the  information   is admissible as distinctly relates to the fact discovered. 23 By s. 26, a confession made in the presence of a  Magistrate is made provable in its entirety. Section 162 of the Code of Criminal Procedure also enacts  a rule of evidence.  This section in so far as it is  material for  purposes  of  this case, prohibits, but not  so  as  to affect  the  admissibility  of  information  to  the  extent permissible  under  s.  27  of  the  Evidence  Act,  use  of statements  by any person to a police officer in the  course of  an  investigation  under Ch.  XIV of the  Code,  in  any enquiry  or  trial in which such person is charged  for  any offence, under investigation at the time when the  statement was made. On  an analysis of ss. 24 to 27 of the Indian Evidence  Act, and s. 162 of the Code of Criminal Procedure, the  following material propositions emerge:- (a)  Whether a person is in custody or outside, a confession made  by him to a police officer or the making of  which  is procured  by inducement, threat or promise having  reference to  the charge against him and proceeding from a  person  in authority, is not provable against him in any proceeding  in which he is charged with the commission of an offence. (b)  A  confession  made  by a person whilst he  is  in  the

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custody of a police officer to a person other than a  police officer  is  not  provable in a proceeding in  which  he  is charged with the commission of an offence unless it is  made in the immediate presence of a Magistrate. (c) That part  of the  information given by a person whilst in police  custody whether the information is confessional or otherwise,  which distinctly  relates  to the fact thereby discovered  but  no more,  is  provable in a proceeding in which he  is  charged with the commission of an offence. (d)  A  statement whether it amounts to a confession or  not made  by  a  person when he is not in  custody,  to  another person such latter person not being a .police officer may be proved if it is otherwise relevant. (e) A statement made by a person to a police officer in  the course  of an investigation of an offence under Ch.  XIV  of the Code of Criminal Procedure, cannot except to the  extent permitted by s. 27 of the 24 Indian Evidence Act, be used for any purpose at any  enquiry or  trial in respect of any offence under  investigation  at the  time  when  the  statement was  made  in  which  he  is concerned as a person accused of an offence. A  confession made by a person not in custody  is  therefore admissible in evidence against him in a criminal  proceeding unless  it is procured in the manner described in s. 24,  or is made to a police officer.  A statement made by a  person, if  it is not confessional, is provable in  all  proceedings unless  it is made to a police officer in the course  of  an investigation,  and the proceeding in which it is sought  to be  proved  is  one for the trial of  that  person  for  the offence  under  investigation when he made  that  statement. Whereas  information given by a person in custody is to  the extent  to  which it distinctly relates to  a  fact  thereby discovered,  is  made  provable, by s. 162 of  the  Code  of Criminal  Procedure, such information given by a person  not in  custody  to  a  police officer  in  the  course  of  the investigation  of  an offence is not  provable.   This  dis- tinction may appear to be somewhat paradoxical.  Sections 25 and  26  were  enacted  not because  the  law  presumed  the statements  to be untrue, but having regard to  the  tainted nature  of the source of the evidence, prohibited them  from being  received in evidence.  It is manifest that the  class of  persons  who needed protection most where those  in  the custody  of  the police and persons not in  the  custody  of police  did not need the same degree of protection.  But  by the  combined operation of s. 27 of the Evidence Act and  s. 162 of the Code of Criminal Procedure, the admissibility  in evidence  against  a person in a criminal  proceeding  of  a statement made to a police officer leading to the  discovery of  a  fact depends for its determination  on  the  question whether  he  was  in  custody at  the  time  of  making  the statement.  It is provable if he was in custody at the  time when he made it, otherwise it is not. Are  persons in custody, by this distinction deprived  of  " equality before the law, or the equal protection of the laws " within the meaning of Art. 14 of the 25 Constitution   ?  By  the  equal  protection  of  the   laws guaranteed  by  Art.  14 ’of the  Constitution,  it  is  not predicated  that  all laws must be uniform  and  universally applicable;   the  guarantee  merely  forbids  improper   or invidious  distinctions by conferring rights  or  privileges upon  a class of persons arbitrarily selected from out of  a larger  group who are similarly circumstanced,  and  between whom  and others not so favoured, no distinction  reasonably

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justifying  different treatment exists: it does not  give  a guarantee  of the same or similar treatment to  all  persons without  reference to the relevant differences.   The  State has  a wide discretion in the selection of  classes  amongst persons, things or transactions for purposes of legislation. Between  persons  in  custody and persons  not  in  custody, distinction  has evidently been made by the Evidence Act  in some matters and they are differently treated.  Persons  who were,  at the time when the statements sought to  be  proved were  made,  in  custody have been  given  in  some  matters greater  protection  compared  to persons  not  in  custody. Confessional  or  other statements made by  persons  not  in custody may be admitted in evidence, unless such  statements fall   within  ss.  24  and  25  whereas  all   confessional statements  made by persons in custody except those  in  the presence of a Magistrate are not provable.  This distinction between  persons in custody and persons not in  custody,  in the  context  of admissibility of statements  made  by  them concerning  the offence charged cannot be called  arbitrary, artificial  or  evasive:  the legislature has  made  a  real distinction  between  these  two classes,  and  has  enacted distinct  rules  about  admissibility  of  statements   con- fessional or otherwise made by them. There  is nothing in the Evidence Act which precludes  proof of  information  given  by a person not  in  custody,  which relates to the facts thereby discovered; it is by virtue  of the ban imposed by s. 162 of the Code of Criminal Procedure, that  a statement made to a police officer in the course  of the  investigation of an offence under Ch.  XIV by a  person not in police 4 26 custody  at  the time it was made even if it  leads  to  the discovery of a fact is not provable against him at the trial for  that  offence.   But the distinction which  it  may  be remembered does not proceed on the same lines as under  the. Evidence Act, arising in the matter of admissibility of such statements  made to the police officer in the course  of  an investigation between persons in custody and persons not  in custody,  has little practical significance.  When a  person not in custody approaches a police officer investigating  an offence  and  offers  to give  information  leading  to  the discovery  of a fact, having a bearing on the  charge  which may  be made against him he may appropriately be  deemed  to have  surrendered himself to the police.  Section 46 of  the Code   of  Criminal  Procedure  does  not  contemplate   any formality  before  a  person  can be said  to  be  taken  in custody:  submission to the custody by word or action  by  a person in sufficient.  A person directly giving to a  police officer  by word of mouth information which may be  used  as evidence  against  him,  may be  deemed  to  have  submitted himself  to the custody " of the police officer  within  the meaning  of  s.  27  of  the  Indian  Evidence  Act:   Legal Remembrancer  v. Lalit Mohan ’Singh (1), Santokhi Beldar  v. King  Emperor (2).  Exceptional cases may certainly be  ima- gined  in  which  a  person  may  give  information  without presenting   himself   before  a  police  officer   who   is investigating  an  offence.  For instance, he  may  write  a letter and give such information or may send a telephonic or other  message  to the police officer.  But  in  considering whether a statute is unconstitutional on the ground that the law  has  given  equal treatment to  all  persons  similarly circumstanced,  it must be remembered that  the  legislature has to deal with practical problems; the question is not  to be judged by merely enumerating other theoretically possible

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situations  to which the statute might have been but is  not applied.   As  has often been said  in  considering  whether there has been a denial of the equal protection of the laws, a  doctrinaire approach is to be avoided.  A person who  has committed an offence, but who is not in (1) (1921) I.L.R. 49 Cal, 167. (2) (1933) I.L.R. 12 Pat. 241. 27 custody. normally would not without surrendering himself  to the police give information voluntarily to a police  officer investigating the commission of that offence leading to  the discovery  of material evidence supporting a charge  against him  for  the  commission of the  offence.   The  Parliament enacts laws to deal with practical problems which are likely to arise in the affairs of men.  Theoretical possibility  of an  offender  not  in custody  because  the  police  officer investigating  the offence has not been able to get  at  any evidence  against  him  giving  information  to  the  police officer  without surrendering himself to the  police,  which may  lead  to  the discovery of an  important  fact  by  the police,  cannot be ruled out; but such an  occurrence  would indeed  be rare.  Our attention has not been invited to  any case  in which it was even alleged that information  leading to  the  discovery of a fact which may be used  in  evidence against a person was given by him to a police officer in the course   of   investigation  without  such   person   having surrendered  himself  Cases like Deonandan  Dasadh  v.  King Emperor  (1),  Santokhi Beldar v. King Emperor  (2),  Durlav Namasudra  v.  Emperor (3), In re Mottai Thevar (4),  In  re Peria  Guruswami (5 ), Bharosa Ramdayal v. Emperor  (6)  and Jalla  v. Emperor (7) and others to which our attention  was invited are all cases in which the accused persons who  made statements leading to discovery of facts were either in  the actual  custody  of  police  officers  or  had   surrendered themselves  to the police at the time of, or  before  making the statements attributed to them, and do not illustrate the existence of a real and substantial class of persons not  in custody giving information to police officers in the  course of investigation leading to discovery of facts which may  be used as evidence against those persons. In   that premise and considered in the background that persons in custody " and " persons not in custody    do not stand on the same footing nor require (1)  (1928) I.L.R. 7 Pat. 411. (3)  (1932) I.L.R. 59 Cal. 1040. (5)  I.L.R. 1942 Mad. 77. (2)  (1933) I.L.R. 12 Pat. 241. (4)  A.I.R. 1952 Mad. 586. (6)  I.L.R. 1940 Nag. 679. (7)  A.I.R. 1931 Lah. 278. 28 identical protection, is the mere theoretical possibility of some  degree  of inequality of the protection  of  the  laws relating to the admissibility of evidence between persons in custody  and  persons not in custody by itself a  ground  of striking down a salutary provision of the law of evidence ? Article 14 of the Constitution of India is adopted from  the last   clause  of  s.  1  of  the  14th  Amendment  of   the Constitution  of  the United States of America, and  it  may reasonably be assumed that our Constituent Assembly when  it enshrined  the guarantee of equal protection of the laws  in our  Constitution,  was aware of its  content  delimited  by judicial interpretation in the United States of America.  In considering  the authorities of the superior courts  in  the United  States,  we  would not  therefore  be  incorporating

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principles  foreign  to our Constitution, or  be  proceeding upon   the  slippery  ground  of  apparent   similarity   of expressions or concepts in an alien jurisprudence  developed by  a society whose approach to similar problems on  account of  historical or other reasons differs from ours.  In  West Coast  Hotel  Company v. Parrish (1), in  dealing  with  the content  of  the guarantee of the equal  protection  of  the laws, Hughes, C. J., observed at p. 400:- "  This  court  has frequently  held  that  the  legislative authority,  acting within its proper field, is not bound  to extend  its regulation to all cases which it might  possibly reach.  The legislature "is free to recognise degree of harm and  it  may confine its restrictions to  those  classes  of cases  where the need is deemed to be clearest ". If  "  the law  presumably hits the evil where it is most felt,  it  is not  to be overthrown because there are other  instances  to which  it  might  have  been  applied  ".  There  is  no   " doctrinaire  requirement  " that the legislation  should  be couched in all embracing terms ". Holmes,  J.,  in  Weaver v. Palmer Bros.  Co.  (2),  in  his dissenting judgment observed :- " A classification is not to be pronounced arbitrary (1)  (1937) 300 U.S. 379: 81 L. Ed. 703. (2)  (1926) 270 U.S. 402 : 70 L. Ed. 654. 29 because it goes on practical grounds and attacks only  those objects that exhibit or foster an evil on a large scale.  It is not required to be mathematically precise and to  embrace every  case that theoretically is capable of doing the  same harm.   " if the law presumably hits the evil, where  it  is most  felt,  it is not to be overthrown  because  there  are other instances to which it might have been applied." Miller v. Wilson(1). McKenna, J., in Health and Milligan Mfg.  Co. v. Worst  (2), observed: "  Classification must have relation to the purpose  of  the legislature.   But logical appropriateness of the  inclusion or  exclusion  of  objects or persons  is  not  required.  A classification may not be merely arbitrary, but  necessarily there  must be great freedom of discretion, even  though  it result    in    ’illadvised,   unequal,    and    oppressive legislation.......   Exact  wisdom  and  nice  adaption   of remedies  are  not required by the 14th Amendment,  nor  the crudeness  nor the impolicy nor even the injustice of  state laws redressed by it." Sections  25  and 26 are manifestly intended to  hit  at  an evil,  viz.,  to guard against the danger  of  receiving  in evidence  testimony  from tainted sources  about  statements made  by  persons accused of offences.  But  these  sections form  part of a statute which codifies the law  relating  to the  relevancy  of evidence and proof of facts  in  judicial proceedings.  The State is as much concerned with  punishing offenders who may be proved guilty of committing offences as it is concerned with protecting persons who may be compelled to   give  confessional  statements.   If  s.   27   renders information admissible on the ground that the discovery of a fact pursuant to a statement made by a person in custody  is a  guarantee of the truth of the statement made by him,  and the  legislature  has  chosen  to make  on  that  ground  an exception  to the rule prohibiting proof of such  statement, that  rule is not to be deemed unconstitutional, because  of the   possibility  of  abnormal  instances  to   which   the legislature might have, but has not extended the rule.   The principle of admitting (1)  (1915) 236 U.S. 373; 59 L. Ed. 628.

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(2)  (1907) 207 U.S. 338; 52 L. Ed. 236. 30 evidence  of statements made by a person giving  information leading  to  the  discovery of facts which may  be  used  in evidence  against  him is manifestly reasonable.   The  fact that the principle is restricted to persons in custody  will Dot  by  itself  be a ground for holding that  there  is  an attempted   hostile  discrimination  because  the  rule   of admissibility of evidence is not extended to a possible, but an uncommon or abnormal class of cases. Counsel  for the defence contended that in any event  Deoman was not at the time when he made the statement attributed to him,  accused of any offence and on that account also  apart from   the  constitutional  plea,  the  statement  was   not provable.   This contention is unsound.  As we have  already observed,  the  expression  " accused of any  offence  "  is descriptive of the person against whom evidence relating  to information  alleged to be given by him is made provable  by s.  27 of the Evidence Act.  It does not predicate a  formal accusation  against him at the time of making the  statement sought to be proved, as a condition of its applicability. In that view, the High Court was in error in holding that s. 27 of the Indian Evidence Act and s. 162, sub-s. (2), of the Code  of  Criminal  Procedure in so far as  ’  that  section relates  to  s. 27 of the Indian Evidence Act’ are  void  as offending Art. 14 of the Constitution. The  High  Court  acquitted Deoran on the  ground  that  his statement  which  led  to the discovery of  the  gandasa  is inadmissible.   As  we differ from the High  Court  on  that question,  we  must proceed to review the  evidence  in  the light  of that statement in so far as it distinctly  relates to the fact thereby discovered being admissible. The  evidence discloses that Deoman and his uncle,  Mahabir, were  anxious to dispose of the property of Sukhdei  and  of Dulari and Sukhdei obstructed such disposal.  In the evening of  June 18,1958, there was an altercation  between  Sukhdei and  Deoman over the proposed disposal of the  property,  in the presence of witnesses, Shobhnath and Mahesh, and  Deoman slapped Sukhdei and threatened that he would " smash her 31 mouth  ". In the morning of June 19, 1958, the dead body  of Sukhdei  with several incised injuries caused by  a  gandasa was  found lying in her court-yard.  Deoman was seen in  the village  on that day early in the morning  hurrying  towards the  village tank and I taking a bath ’, but  thereafter  he absconded  from the village and was not found till  sometime in  the  afternoon of the 20th.  In his examination  by  the court, be has stated that he had left Anandadih early in the morning  of  June  19,  on business  and  that  he  was  not absconding,  but  there is no evidence in  support  of  that plea.   The  evidence  discloses that  in  the  presence  of witnesses,  Shobbnath and Raj Balladur Singh,  Deoman  waded into the village tank and " fetched the gandasa " which  was lying  hidden in the mud at the bottom of the tank and  that gandasa  was  found by the Serologist on examination  to  be stained  with human blood.  The High Court has  agreed  with the  findings  of  the Trial Court on  this  evidence.   The evidence  that Deoman had in the presence of the  witnesses, Shobhnath  and  Raj Bahadur Singh offered to point  out  the gandasa  which  he  said he had thrown  into  the  tank  was accepted  by  the  Trial Court and the High  Court  has  not disagreed  with  that  view of the Trial  Court,  though  it differed from the Trial Court as to its admissibility.   The evidence  relating  to  the borrowing of  the  gandasa  from witness, Mahesh, in the evening of June 18, 1958, by  Deoman

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has not been accepted by the High Court and according to the settled  practice  of  this  Court,  that  evidence  may  be discarded.  It was urged that Deoman would not have murdered Sukhdei, because by murdering her, he stood to gain  nothing as  the  properties  which belonged  to  Sukhdei  could  not devolve  upon  his  wife  Dulari in  the  normal  course  of inheritance.   But the quarrels between Deoman  and  Sukhdei arose  not because the former was claiming that  Dulari  was heir  presumptive to Sukhdei’s estate, but  because  Sukhdei resisted  attempts  on  Deoman’s  part  to  dispose  of  the property belonging to her and to Dulari.  The evidence  that Deoman  slapped Sukhdei and threatened her that he  would  " smash her face " coupled with the circumstances that on  the morning of the murder of 32 Sukhdei,  Deoman  absconded from the village  after  washing himself  in  the village tank and after his  arrest  made  a statement  in the presence of witnesses that he  had  thrown the  gandasa  in  the village tank and  produced  the  same, establishes  a strong chain of circumstances leading to  the irresistible  inference that Deoman killed Sukhdei early  in the morning of June 19, 1958.  The learned trial Judge  held on  the evidence that Deoman was proved to be the  offender. That  conclusion is, in our view, not weakened  because  the evidence  relating  to  the borrowing of  the  gandasa  from witness  Mahesh in the evening of June 18, 1958, may not  be used against him.  The High, Court was of the view that  the mere  fetching of the gandasa from its hiding place did  not establish that Deoman himself had put it in the tank, and an inference  could legitimately be raised that  somebody  else had  placed it in the tank, or that Deoman had seen  someone placing  that gandasa in the tank or that someone  had  told him  about the gandasa lying in the tank.  But  for  reasons already set out the information given by Deoman is  provable in  so  far  as it distinctly relates to  the  fact  thereby discovered: and his statement that he had thrown the gandasa in  the tank is information which distinctly relates to  the discovery  of  the  gandasa.  Discovery from  its  place  of hiding,  at  the instance of Deoman of the  gandasa  stained with  human blood in the light of the admission by him  that he had thrown it in the tank in which it was found therefore acquires  significance, and destroys the theories  suggested by the High Court. The  quarrel  between  Deoman and  Sukhdei  and  the  threat uttered  by  him that he would smash Sukhdei’s  "    mouth " (face)  and  his absconding immediately after the  death  of Sukhdei  by violence, lend very strong support to  the  case for  the prosecution.  The evidence, it is true,  is  purely circumstantial but the facts proved establish a chain  which is  consistent  only  with  his  guilt  and  not  with   his innocence.  In our opinion therefore the Sessions Judge  was right  in  his  view that Deoman had  caused  the  death  of Sukhdei by striking her with the gandasa produced before the court. 33 On the evidence of the medical officer who examined the dead body  of  Sukhdei, there can be no doubt  that  the  offence committed  by  accused Deoman is one of murder.   The  Trial Judge convicted the accused of the offence of murder and  in our view, he was right in so doing.  Counsel for Deoman  has contended  that in any event, the sentence of  death  should not be imposed upon his client.  But the offence appears  to have  been brutal, conceived and executed with  deliberation and not in a moment of passion, upon a defenseless old woman who  was the benefactress of his wife.  The assault  with  a

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dangerous  weapon  was  made only  because  the  unfortunate victim  did not agree to the sale of property  belonging  to her  and to her foster child.  Having  carefully  considered the  circumstances  in which the offence is proved  to  have been  committed, we do not think that any case is  made  out for not restoring the order imposing the death sentence.  We accordingly set aside the order passed by the High Court and restore the order passed by the Court of Session. It  may  be observed that the sentence of  death  cannot  be executed unless it is confirmed by the High Court.  The High Court has not confirmed the sentence, but in exercise of our powers  under Art. 136 of the Constitution, we may pass  the same order of confirmation of sentence as the High Court is, by  the Code of Criminal Procedure, competent to pass.   ’We accordingly confirm the sentence of death. SUBBA  RAO  J.-I  have had the advantage  of,  perusing  the judgment  of  my  learned  brother, Shah,  J.  I  regret  my inability  to  agree  with his reasoning  or  conclusion  in respect of the application of Art. 14 of the Constitution to the facts of the case.  The facts have been fully stated  in the  judgment  of my learned brother and they  need  not  be restated here. Article 14 of the Constitution reads: " The State shall not deny to any person equality before the law  or equal protection of the laws within the  territories of India." 5 34 Das, C. J., in Basheshar Nath v. The Commissioner of Income- tax(1)  explains  the scope of the equality  clause  in  the following terms: "The  underlying  object of this Article is  undoubtedly  to secure  to  all  persons,  citizens  or  non-citizens,   the equality  of  status and of opportunity referred to  in  the glorious  preamble  of our Constitution.   It  combines  the English doctrine of the rule of law and the equal protection clause  of  the  14th  Amendment  to  the  American  Federal Constitution which enjoins that no State shall " deny to any person  within its jurisdiction the equal protection of  the laws  ". There can, therefore, be no doubt or  dispute  that this Article is founded on a sound public policy  recognised and valued in all civilised States...................... The command  of  the Article is directed to the  State  and  the reality  of the obligation thus imposed on the State is  the measure  of the fundamental right which every person  within the territory of India is to enjoy." This subject has been so frequently and recently before this Court  as  not to require an extensive  consideration.   The doctrine  of equality may be briefly stated as follows:  All persons  are  equal before the law is fundamental  of  every civilised  constitution.  Equality before law is a  negative concept;  equal protection of laws is a positive  one.   The former declares that every one is equal before law, that  no one  can claim special privileges and that all  classes  are equally  subjected  to the ordinary law of the  land  ;  the latter  postulates an equal protection of all alike  in  the same  situation and under like circumstances.  No  discrimi- nation can be made either in the privileges conferred or  in the  liabilities imposed.  But these propositions  conceived in  the interests of the public, if logically stretched  too far,  may  not achieve the high purpose behind them.   In  a society  of  unequal  basic  structure,  it  is  well   nigh impossible to make laws suitable in their application to all the  persons alike.  So, a reasonable classification is  not only permitted but is necessary if society should  progress.

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But  such a classification cannot be arbitrary but  must  be based (1)  [1959] Supp. (1) S.C.R. 528. 35 upon differences pertinent to the subject in respect of  and the purpose for which it is made. Das, C. J., in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar  (1) culled out the rules of construction  of  the equality   clause  in  the  context  of  the  principle   of classification from the various decisions of this Court  and those  of the Supreme Court of the United States of  America and  restated the settled law in the form of  the  following propositions at pp. 297298: "  (a)  that  a law may be  constitutional  even  though  it relates  to  a  single individual if,  on  account  of  some special  circumstances or reasons applicable to him and  not applicable to others, that single individual may be  treated as a class by himself; (b)  that  there  is always a presumption in favour  of  the constitutionality of an enactment and the burden is upon him who  attacks  it  to  show  that  there  has  been  a  clear transgression of the constitutional principles; (c)  that   it  must  be  presumed  that   the   legislature understands  and correctly appreciates the need of  its  own people, that its laws are directed to problems made manifest by  experience  and that its discriminations  are  based  on adequate grounds; (d)  that  the legislature is free to recognise  degrees  of harm  and may confine its restrictions to those cases  where the need is deemed to be the clearest; (e)  that   in   order  to  sustain   the   presumption   of constitutionality  the  court may  take  into  consideration matters  of common knowledge, matters of common report,  the history  of  the times and may assume every state  of  facts which can be conceived existing at the time of  legislation; and (f)  that  while  good faith and knowledge of  the  existing conditions on the part of a legislature are to be  presumed, if  there  is  nothing  on  the  face  of  the  law  or  the surrounding circumstances brought to the notice of the court on  which the classification may reasonably be  regarded  as based,  the  presumption  of  constitutionality  cannot   be carried to the extent of always (1)  [1959] S.C.R. 279. 36 holding  that  there must be some  undisclosed  and  unknown reasons  for subjecting certain individuals or  corporations to hostile or discriminating legislation:" In  view  of  this  clear statement  of  law,  it  would  be unnecessary to cover the ground over again except to add the following  caution  administered  by Brewer,  J.,  in  Gulf, Colorada and Santa Fe Rly.  Co. v. Ellis (1): " While good faith and a knowledge of existing conditions on the  part of a Legislature is to be presumed, yet  to  carry that presumption to the extent of always holding that  there must ’be some undisclosed and unknown reason for  subjecting certain   individuals   or  Corporations  to   hostile   and discriminating Legislation is to make the protecting clauses of  the  14th Amendment a mere rope of sand,  in  no  manner restraining state action." It  will  be seen from the said rules that  a  weightage  is given  to  the State as against an individual  and  a  heavy burden is thrown on the latter to establish his  fundamental right.  If the caution administered by Brewer, J., in  Gulf, Colorada and Santa Fe Rly.  Co. v. Ellis (1) and restated by

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Das, C. J., in Shri Ram Krishna Dalmia’s case (2) were to be ignored,  the burden upon a citizen would be  an  impossible one,  the  rules  intended  to  elucidate  the  doctrine  of equality would tend to exhaust the right itself, and, in the words of Brewer, J., the said concept becomes " a mere  rope of sand, in no manner restraining state action ". While  the Court may be justified to assume certain facts to sustain  a reasonable classification, it is not permissible to rest its decision  on some undisclosed and unknown reasons;  in  that event,  a Court would not be enforcing a  fundamental  right but  would  be  finding  out  some  excuse  to  support  the infringement of that right. It will be convenient at the outset to refer to the relevant sections.   Under s. 25 of the Evidence Act,  no  confession made to a police-officer shall be proved as against a person accused  of an offence.  Section 26 says that no  confession made  by any person while he is in the custody of a  police- officer,  unless it is made in the immediate presence  of  a ’Magistrate, shall be (1) [1897] 165 U.S. 150; 41 L. Ed. 666. (2) [1959] S.C.R. 279. 37 proved as against such person.  Section 27, which is in  the form of a proviso, enacts 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 thereby discovered, may be proved." Section 162 of the  Code of  Criminal Procedure lays down that no statement  made  by any  person  to  a  police-officer  in  the  course  of   an investigation  shall be used for any purpose at any  inquiry or  trial in respect of any offence under  investigation  at the  time when such’ statement was made.  Sub-s. (2)  of  s. 162  of the said Code which was amended by s. 2 of the  Code of  Criminal Procedure (Second Amendment) Act, 1941 (Act  XV of  1941), provides that the said section shall  not  affect the provisions of s. 27 of the Indian Evidence Act. A  combined  effect of the said provisions relevant  to  the present  enquiry may be stated thus: (1) No confession  made to a police-officer by an accused can be proved against him; (2)  no  statement made by any person  to  a  police-officer during  investigation  can be used for any  purpose  at  any inquiry or trial; (3) a confession made by any person  while he  is in the police custody to whomsoever made, such  as  a fellow-prisoner,  a  doctor  or a  visitor,  can  be  proved against  him if it is made in the presence of a  Magistrate; and (4) if a person accused of an offence is in the  custody of  a police-officer, any information given by him,  whether it is a statement or a confession, so much of it as  relates distinctly  to  the fact thereby discovered may  be  proved. Shortly  stated,  the  section divided  the  accused  making confessions or statements before the police into two groups: (i)  accused not in custody of the police, and (ii)  accused who  are in the custody of the police.  In the case  of  the former  there is a general bar against the admissibility  of any  confessions or statements made by them from being  used as evidence against them; in the case of the latter, so much of  such statements or confessions as relates distinctly  to the fact thereby discovered is made admissible. 38 Shorn  of  the verbiage, let us look at the  result  brought about  by the combined application of s. 27 of the  Evidence Act  and s. 162 of the Code of Criminal Procedure.  A and  B stabbed  C  with knives and hid them in a  specified  place.

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The evidence against both of them is circumstantial.  One of the  pieces of circumstantial evidence is that both of  them gave  information to the police that each of them stabbed  C with  a knife and hid it in the said place.  They showed  to the  police the place where they had hidden the  knives  and brought  them  out and handed them over to the  police;  and both  the knives were stained with human  blood.   Excluding this  piece  of  evidence, other  pieces  of  circumstantial evidence do not form a complete chain.  If it was  excluded, both  the accused would be acquitted; if included,  both  of them would be convicted for murder.  But A, when he gave the information was in the custody of police, but B was not  so. The result is that on the same evidence A would be convicted for  murder  but B would be acquitted : one would  lose  his life  or  liberty  and the other would be  set  free.   This illustration establishes that prima facie the provisions  of s.  27  of  the  Evidence  Act  accord  unequal  and  uneven treatment to persons under like circumstances. Learned  Additional Solicitor General tries to  efface  this apparent  vice  in  the sections by attempting  to  forge  a reasonable basis to sustain the different treatment given to the  two groups of accused.  His argument may be  summarized thus: Accused are put in two categories, namely, (1) accused in  custody  ; and (2) accused not in  custody.   There  are intelligible differentia between these two categories  which have reasonable relation to the objects sought to be  achie- ved by the legislature in enacting the said provisions.  The legislature has two objects, viz., (i) to make available  to the Court important evidence in the nature of confessions to enable  it to ascertain the truth ; and (ii) to protect  the accused in the interest of justice against coercive  methods that may be adopted by the police.  The differences  between the  two  categories relating to the objects  sought  to  be achieved are the following: 39 (a)while  extra-judicial  confessions  in  the  case  of  an accused not in custody are admissible in evidence, they  are excluded  from evidence in the case of accused  in  custody; (b)  compared with the number of accused in the  custody  of the police who make confessions or give information to them, the number of accused not in custody giving such information or  making  confessions would be insignificant; (c)  in  the case of confession to a police-officer by an accused not  in custody, no caution is given to him before the confession is recorded, whereas in the case of an accused in custody,  the factum of custody itself amounts to a caution to the accused and  puts  him  on  his guard; and  (d)  protection  by  the imposition   of  a  condition  for  the   admissibility   of confessions is necessary in the case of accused in custody ; whereas  no  such protection for accused not in  custody  is called  for.  Because of these differences between  the  two categories,  the argument proceeds, the classification  made by  the legislature is justified and takes the present  case out of the operation of Art. 14 the Constitution. I shall now analyse each of the alleged differences  between the  two  categories of accused to  ascertain  whether  they afford   a   reasonable   and   factual   basis   for    the classification. Re.  (a):  Whether  the  accused is in  custody  or  not  in custody,  the prosecution is not prevented  from  collecting the  necessary  evidence  to bring home  the  guilt  to  the accused.  Indeed, as it often happens, if the accused is not in  custody  and if he happens to be an  influential  person there   is  a  greater  likelihood  of  his  retarding   and obstructing the progress of investigation and the collection

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of  evidence.   Nor all the extra-judicial  confessions  are excluded during the trial after a person is put in  custody. The  extra-judicial confession made by an accused before  he is  arrested  or after he is released on bail  is  certainly relevant evidence to the case.  Even after a person is taken into  custody  by a police-officer,  nothing  prevents  that person  from  making a confession to a third-party  and  the only limitation imposed by s. 26 of the Evidence Act is that he shall make it only in the presence of a 40 Magistrate.   The confession made before a Magistrate  after compliance with all the formalities prescribed has certainly greater probative force than that made before outsiders.  On the  other  hand,  though extra.  judicial  confessions  are relevant  evidence, they are received by Courts  with  great caution.   That  apart,  it  is  a  pure  surmise  that  the legislature  should have thought that the confession  of  an accused  in  custody to a police-officer  with  a  condition attached  would  be  a  substitute  for  an   extra-judicial confession that he might have made if he was free.   Broadly speaking,  therefore,  there  is no  justification  for  the suggestion  that the prosecution is in a better position  in the matter of establishing its case when the accused is  out of  custody  than  when he is in  custody.   Moreover,  this circumstance  has not been relied upon by the State  in  the High Court but is relied upon for the first time by  learned counsel  during  his  arguments.  In my view,  there  is  no practical  difference  at all in the  matter  of  collecting evidence between the two categories of persons and that  the alleged difference cannot reasonably sustain a classification. Re. (b): The second circumstance relied upon by the  learned counsel leads us to realms of fancy and imagination.  It  is said  that  the  number of persons  not  in  custody  making confessions  to  the police is insignificant  compared  with those  in custody and, therefore, the legislature  may  have left  that category out of consideration.  We are  asked  to draw  from our experience and accept the said argument.   No such   basis   was  suggested  in  the  High   Court.    The constitutional  validity  has  to be  tested  on  the  facts existing  at  the time the section or  its  predecessor  was enacted  but  not  on  the  consequences  flowing  from  its operation.   When  a statement made by accused  not  in  the custody  of  police  is  statutorily  made  inadmissible  in evidence,  how can it be expected that many  such  instances will  fall within the ken of Courts.  If the ban be  removed for a short time it will be realized how many such instances will  be  pouring  in  in the same  way  as  confessions  of admissible  type  have become the common feature  of  almost every criminal case involving grave 41 offence.   That apart, it is also not correct to state  that such confessions are not brought to the notice of Courts. In re Mottai Thevar (1) deals with a ease where the  accused immediately  after killing the deceased goes to  the  police station and makes a clear breast of the offence.  In  Durlav Namasudra v. King Emperor (2) the information received  from an accused not in the custody of a police-officer which  led to  the discovery of the dead-body was sought to be  put  in evidence.   Before a division bench of the Patna High  Court in  Deonandan  Dusadh v. King Emperor  (3)  the  information given  to the Sub-Inspector of Police by a husband  who  had fatally assaulted his wife which led to the discovery of the corpse  of the woman was sought to be admitted in  evidence. In  Santokhi Beldar v. King Emperor (4) a full bench of  the

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Patna  High Court was considering whether one of the  pieces of  evidence  which led to the  discovery  of  blood-stained knife  and other articles by the Sub-Inspector of Police  at the  instance  of  the accused was  admissible  against  the informant.  A statement made by an accused to a  responsible police-officer voluntarily confessing that he had  committed an  act of crime was considered by a division bench  of  the Nagpur  High Court in Bharosa Ramdayal v. Emperor (5).   The Lahore  High Court in Jalla v. Emperor (6) had before  it  a statement made by an accused to the police which led to  the discovery  of  the  dead-body.  In re  Peria  Guruswamy  and Another (7) is a decision of a division bench of the  Madras High  Court  wherein  the question  of  admissibility  of  a confession  made by a person to a police officer  before  he came into his custody was considered. I  have cited the cases not for considering the validity  of the questions decided therein, namely, when a person can  be described  as  an accused and when he can be  considered  to have come into the custody of (1)  A.I.R. 1952 Mad. 586. (3)  (1928) I.L.R. 7 Pat. 411. (5)  A.I.R. 1941 Nag. 86. (2)  (1932) I.L.R- 59 Cal. 1040. (4)  (1933) I.L.R. 12 Pat. 241. (6)  A.I.R. 1931 Lah. 278. (7)  A.I.R. 1941 Mad. 765. 42 the  police, but only to controvert the argument  that  such confessions are in practice non-existent.  I have given only the representative decisions of various High Courts and I am sure  if  a  research  is made  further  instances  will  be forthcoming. The historical background of s. 27 also does not warrant any assumption  that  the  legislature  thought  that  cases  of persons   not   in  custody  of  a   police-officer   making confessions  before  him would be very few  and,  therefore, need  not  be provided for.  Sections 25, 26 and 27  of  the Indian  Evidence Act correspond to ss. 148, 149 and  150  of the Code of Criminal Procedure of 1861.  Section 148 of  the Code  prohibited  the  use as  evidence  of  confessions  or admissions  of guilt made to a police-officer.  Section  149 provided: "  No  confession or admission of guilt made by  any  person while 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." Section 150 stated "  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 be received in evidence." Section  150 of the Code of 1861 was amended by Act VIII  of 1869 and the amended section read 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 ad. mission of guilt, or not,  as  relates distinctly  to the fact thereby discovered, may be  received in evidence." It would be seen from the foregoing sections that there  was an absolute bar against the admissibility of confessions  or admissions  made by any person to a polioe-officer and  that

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the said bar was partially 43 lifted in a case where such information, whether it amounted to a confession or admission of guilt, related distinctly to the fact discovered.  The proviso introduced by Act VIII  of 1869 was in pari materia with the provisions of s. 27 of the Evidence Act with the difference that in the earlier section the phrase a person accused of any offence and the phrase in the  custody  of  a police officer  were  connected  by  the disjunctive  ’,or".  The result was that  no  discrimination was  made  between  a person in custody or  out  of  custody making a confession to a police-officer.  Section 150 of the Code  before  amendment  also,  though  it  was  couched  in different terms, was similar in effect.  It follows that, at any   rate  till  the  year  1872,  the  intention  of   the legislature  was  to  provide for all  confessions  made  by persons  to the police whether in custody of the  police  or not.   Can it be said that in 1872 the legislature  excluded confessions or admissions made by a person not in custody to a police-officer from the operation of s. 27 of the Evidence Act  on the ground that such cases would be rare  ?  Nothing has  been placed before us to indicate the reasons  for  the omission  of the word " or " in s. 27 of the  Evidence  Act. If  that  be the intention of the legislature,  why  did  it enact  s. 25 of the Evidence Act imposing a general  ban  on the  admissibility of all confessions made by accused  to  a police-officer  ?  Section 27 alone would  have  served  its purpose.  On the other hand, s. 25 in express terms provides for the genus, i.e., accused in general, and s. 27  provides for the species out of the genus, namely, accused who are in custody.  A general ban is imposed by one section and it  is lifted  only in favour of a section of accused of  the  same class.   The omission appears to be rather by accident  than by  design.   In  the  circumstances  it  is  not  right  to speculate and hold that the legislature consciously excluded from  the  operation  of s. 27 of the  Act  accused  not  in custody on the ground that they were a few in number. During  the course of the arguments of the  learned  counsel for  the  respondent,  to the question put  from  the  Bench whether an accused who makes a confession 44 of  his  guilt to a police-officer would not by the  act  of confession  submit  himself  to  his  custody,  the  learned counsel  answered that the finding of the High Court was  in his  favour, namely, that such a confession would not  bring about that result.  Learned Additional Solicitor-General  in his reply pursued this line of thought and contended that in that  event  all possible cases of confession to  a  police- officer  would  be covered by s. 27 of the  Indian  Evidence Act.  The governing section is s. 46 of the Code of Criminal Procedure, which reads: " (1) In making an arrest the police-officer or other person making the same shall actually touch or confine the body  of the  person to be arrested, unless there be a submission  to the custody by word or action. ".................................................... . It  has  been held in some decisions that "  when  a  person states  that  he has done certain acts which  amount  to  an offence,  he accuses himself of committing the offence,  and if  he makes the statement to a police-officer, as such,  he submits to the custody of the officer within the meaning  of cl.  (1)  of this section, and is then in the custody  of  a police-officer  within  the meaning of s. 27 of  the  Indian Evidence Act ". But other cases took a contrary view.  It is not possible to state as a proposition of law what words  or

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what kind of action bring about submission to custody ; that can  only  be  decided on the facts of each  case.   It  may depend upon the nature of the information, the circumstances under, the manner in, and the object for, which it is  made, the attitude of the police-officer concerned and such  other facts.   It  is not, therefore, possible to  predicate  that every  confession  of guilt or statement made to  a  police- officer  automatically brings him into his custody.  I  find it very difficult to hold that in fact that there would  not be  any appreciable number of accused making confessions  or statements outside the custody of a police-officer.   Giving full  credit  to all the suggestions thrown out  during  the argument, the hard core of the matter remains, namely,  that the same class, i.e., accused making confessions 45 to  a police-officer, is divided into two groups-one may  be larger than the other-on the basis of a distinction  without difference. Let me now consider whether there is any textual or  decided authority in support of the contention that the  legislature can  exclude  from  the operation of s. 27  accused  not  in custody on the ground that they are a few in number. In  support  of  this contention  learned  counsel  for  the appellant cited a decision of this Court and some  decisions of  the Supreme Court of the United States of America.   The decision  of this Court relied upon is that in Sakhawat  Ali v.  The  State of Orissa (1).  In that case,  Bhagwati,  J., observed at p. 1010 thus: "The  simple answer to this contention is  that  legislation enacted  for  the  achievement of  a  particular  object  or purpose   need  not  be  all  embracing.   It  is  for   the Legislature  to determine what categories it  would  embrace within  the scope of legislation and merely because  certain categories  which would stand on the same footing  as  those which are covered by the legislation are left out would  not render  legislation  which has been enacted  in  any  manner discriminatory  and  violative  of  the  fundamental   right guaranteed by article 14 of the Constitution." These observations, though at’ first sight appear to support the appellant, if understood in the context of the facts and the  points decided in that case, would not in any way  help him.   By  the  provisions  of s.  16(1)(x)  of  the  Orissa Municipal Act, 1950, a paid legal practitioner on behalf  of or against the Municipality is disqualified for election  to a  seat in such Municipality.  One of the  questions  raised was that the said section violates the fundamental right  of the appellant under Art. 14 of the Constitution.  The  basis of  that argument was that the classification  made  between legal practitioners who are employed on payment on behalf of the  Municipality  or who act against the  Municipality  and those  legal practitioners who are not so employed  was  not reasonable.   Bhagwati, J., speaking for the  Court,  stated the well-settled (1)  [1955] 1 S.C.R. 1004. 46 principles of classification and gave reasons justifying the classification  in  the contex of the object  sought  to  be achieved  thereby.  But it was further argued in  that  case that  the  legislature should have also  disqualified  other persons, like clients, as even in their case there would  be conflict   between  interest  and  duty.    Repelling   that contention   the   learned   Judge   made   the    aforesaid observations.   The said observations could only mean  that, if  there was intelligible differentia between  the  species carved  out of the genus for the purpose of legislation,  in

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the  context of the object sought to be achieved,  the  mere fact  that the legislation could have been extended to  some other    persons    would   not   make    the    legislation constitutionally void.  On the other hand, if the passage be construed in the manner suggested by learned counsel for the appellant, it would be destructive of not only the principle of classification but also of the doctrine of equality. Nor  do  the  American  decisions lay  down  any  such  wide proposition.  In John A. Watson v. State of Maryland (1) the constitutional validity of Maryland Code of 1904 which  made it a misdemeanor for any doctor to practise medicine without registration,  was challenged.  The said Code exempted  from its  operation physicians who were then practising  in  that State  and  had so practised prior to January 1,  1898,  and could  prove that within one year of the said date they  had treated  at  least  twelve  persons  in  their  professional capacity.   The  Supreme  Court  of  America  affirmed   the validity   of   the   provision.    The   reason   for   the classification is stated at p. 989 thus: " Dealing, as its followers do, with the lives and health of the  people,  and  requiring  for  its  successful  practice general  education  and  technical skill, as  well  as  good character, it is obviously one of those vocations where  the power of the state may be exerted to see that only  properly qualified  persons  shall  undertake  its  responsible   and difficult duties." Then the learned Judge proceeded to state "  Such exceptions proceeds upon the theory that  those  who have acceptably followed the profession in (1)  (1910) 218 U.S. 173; 54 L. Ed. 987. 47 the  community for a period of years may be assumed to  have the qualifications which others are required to manifest  as a  result  of  an  examination before  a  board  of  medical experts." The  classification  is, therefore, not sustained  upon  any mathematical calculation but upon the circumstance that  the groups  excluded  were  experienced  doctors  whereas  those included  were  not.  In Jeffrey  Manufacturing  Company  v. Harry O. Blagg (1) the Supreme Court of America justified  a classification  under Ohio Workmen’s Compensation Act  which made  a distinction between employers of shops with five  or more employees and employers of shops having a lesser number of  employees.   Employers of the former class  had  to  pay certain  premiums for the purpose of establishing a fund  to provide for compensation payable under the said Act.  If  an employer  did not pay the premium, he would be  deprived  of certain  defences  in  a  suit filed  by  his  employee  for compensation.   It  was contended that  this  discrimination offended  the  provisions  of  the  14th  Amendment  of  the Constitution.  Day, J., sustained the classification on  the ground  that  the  negligence of a fellow  servant  is  more likely to be a cause of injury in the large  establishments, employing  many in their service, than in smaller ones.   It was also conceded that the State legislature was not  guilty of  arbitrary  classification.  It is,  therefore,  manifest that  the  classification  was  not  based  upon   numerical strength  but on the circumstance that the negligence  of  a fellow  servant  is  more likely to happen in  the  case  of larger  establishments.   The  passage at  p.  369  must  be understood in the light of the facts and the concession made in that case.  The passage runs thus: "..................  having regard to local  conditions,  of which  they  (State legislature) must be  presumed  to  have better  knowledge than we can have, such regulation  covered

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practically  the whole field which needed it,  and  embraced all  the establishments of the state of any size,  and  that those  so  small  as to employ only four or  less  might  be regarded as a negligible (1)  (1915) 235 U.S. 571: 59 L. Ed. 364. 48 quantity,  and need not be assessed to make up the  guaranty fund,  or covered by the methods of compensation  which  are provided by this legislation." The  passage presupposes the existence of  a  classification and  cannot,  in  my  view, support  the  argument  that  an arbitrary  classification shall be sustained on  the  ground that  the legislature in its wisdom covered the field  where the   protection,  in  its  view,  was  needed.    Nor   the observations  of McKenna, J., in St. Louis, Iron Mountain  & Southern  Railway Company v. State of Arkansas  (1)  advance the case of the appellant.  The learned Judge says at p. 779 thus: " We have recognized the impossibility of legislation  being all-comprehensive, and that there may be practical groupings of  objects which will as a whole fairly present a class  of itself,  although there may be exceptions in which the  evil aimed at is deemed not so flagrant." In  that  case the State legislature made  an  exemption  in favour  of railways less than 100 miles in length  from  the operation  of the statute forbidding railway companies  with yards  or  terminals  in  cities of  the  state  to  conduct switching  operations across public crossings in  cities  of the first or second class with a switching crew of less than one  engineer,  a  fireman, a foreman,  and  three  helpers. McKenna,  J., sustained its constitutional validity  holding that the classification was not arbitrary.  The observations cited  do not in any way detract from  the  well-established doctrine  of  classification,  but only lay  down  that  the validity of a classification must be judged not on  abstract theories   but  on  practical  considerations.   Where   the legislature  prohibited the use of shoddy, new or old,  even when  sterilized,  in the manufacture  of  comfortables  for beds, the Supreme Court of America held in Weaver v.  Palmer Brothers  Co. (2) that the prohibition was  not  reasonable. It  was held that constitutional guaranties may not be  made to yield to mere convenience.  Holmes, J., in his dissenting judgment observed at p. 659 thus: (1)  (1916) 240 U. S. 518; 60 L. Ed. 776. (2)  (1926) 270 U. S. 402 ; 70L.  Ed. 654. 49 "A classification is not to be pronounced arbitrary  because it goes on practical grounds and attacks only those  objects that exhibit or foster an evil on a large scale.  It is  not required  to be mathematically precise and to embrace  every case that theoretically is capable of doing the same harm." Even this dissenting opinion says nothing more than that, in ascertaining  the  reasonableness of  a  classification,  it shall be tested on practical grounds and not on  theoretical considerations.  In West Coast Hotel Company v. Parrish  (1) a state statute authorized the fixing of reasonable  minimum wages  for women and minors by state authority, but did  not extend it to men.  In that context, Hughes, C. J.,  observed at p. 713 thus: "  This  Court  has frequently  held  that  the  legislative authority,  acting within its proper field, is not bound  to extend  its regulation to all cases which it might  possibly reach." These observations assume a valid classification and on that basis  state  that a legislation is not bound to  cover  all

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which it might possibly reach. A neat summary of the  American law on the subject is  given in  "  The Constitution of the United States of  America  ", prepared  by the Legislative Reference Service,  Library  of Congress (1952 Edn.) at p. 1146 thus: "  The legislature is free to recognize degrees of  harm;  a law  which hits the evil where it is most felt will  not  be overthrown  because  there are other instances to  which  it might  have been applied.  The State may do what it  can  to prevent what is deemed an evil and stop short of those cases in  which  the  harm to the few concerned  is  thought  less important  than the harm to the public that would  ensue  if the   rules  laid  down  were  made  mathematically   exact. Exceptions  of  specified classes will not  render  the  law unconstitutional unless there is no fair reason for the  law that would not equally require its extension to the excepted classes." (1)  (1937) 300 U. S. 379; 81 L. Ed. 703. 7 50 These  observations  do  not  out  across  the  doctrine  of classification, but only afford a practical basis to sustain it.   The prevalence of an evil in one field loudly  calling for  urgent mitigation may distinguish it from  other  field where the evil is incipient.  So too, the deleterious effect of  a law on the public, if it is extended to  the  excluded group,  marks  it off from the  included  group.   Different combination of facts with other. wise apparently  indentical groups  may  so accentuate the difference as  to  sustain  a classification.  But if the argument of the learned counsel, namely,  that the legislature can in its discretion  exclude some  and  include others from the operation of the  Act  in spite of their identical characteristics on the ground  only of  numbers  be  accepted, it will  be  destructive  of  the doctrine of equality itself. Therefore,  the  said and similar decisions do  not  justify classification  on  the  basis  of  numbers  or  enable  the legislature to include the many in and exclude the few  from the  operation  of law without there being  an  intelligible differentia  between  them.  Nor do they support  the  broad contention that a legislature in its absolute discretion may exclude some instances of identical characteristics from  an Act  on alleged practical considerations.  Even  to  exclude one arbitrarily out of a class is to offend against Art.  14 of the Constitution. Let  us  now apply the said principles to the facts  of  the present case.  Assuming for a moment that the ratio  between the accused in the context of confessions is 1000 in custody and  5  out  of custody, how could that  be  conceivably  an intelligible ground for classification ? Assuming again that the  legislature thought such an exemption  is  unwarranted- that  such  cases  would not arise at all and  need  not  be provided  for, could that be a reasonable assumption  having regard to the historical background of S. 27 of the Evidence Act  and  factual existence of such instances  disclosed  by decisions  cited supra ? As I have already stated that  such an  exemption  is an unwarranted flight into the  realms  of imagination  in the teeth of expressed caution  administered by Das, C. J., in Shri Ram 51 Krishna  Dalmia’s  Case  (1) and by  Brewer,  J.,  in  Gulf, Colorada and Santa Fe Rly.  Co. v. Ellis (2). Re. (c): Nor can I find any intelligible differentia in  the caution  alleged to be implied by accused being  taken  into custody.   The argument is-that under s. 163 of the Code  of

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Criminal Procedure " no police-officer or other person shall prevent, by any caution or otherwise, any person from making in  the course of any investigation under this  Chapter  any statement  which he may be disposed to make of his own  free will," and as an accused is allowed to make any statement he chooses without his being placed on guard by timely caution, no statement made by him is permitted to be proved;  whereas by  the  accused  being taken  into  custody,  the  argument proceeds, by the said act itself the accused gets sufficient warning that his statement may be used in evidence and  that this   difference  affords  a  sufficient  basis   for   the classification.  I am not satisfied that taking into custody amounts  to a statutory or implied caution.  If that be  the basis for the distinction, there is no justification that an accused  once taken into custody but later released on  bail should not be brought in within the meaning of s. 27 of  the Indian Evidence Act. Re.  (d):  The  fourth  item  of  differentia  furnishes  an ironical   commentary   on  the  argument   advanced.    The contention is that an accused in custody needs protection in the  matter of his confession and therefore a  condition  is imposed before the confession is made admissible.  There  is an   obvious   fallacy  underlying   this   argument.    The classification is made between accused not in custody making a confession and accused in custody making a confession to a police-officer: the former is inadmissible and the latter is admissible subject to a condition.  The point raised is  why should  there  be  this  discrimination  between  these  two categories of accused ? It is no answer to this question  to point  out  that  in the case of an  accused  in  custody  a condition  has  been  imposed on the  admissibility  of  his confession.   The  condition imposed may be to  some  extent affording a guarantee for the truth (1) [1959] S.C.R. 279. (2) [1897] 165 U. S. 150; 41 Ed. 666. 52 of  the  statement, but it does not efface  the  clear  dis- tinction  made between the same class of  confessions.   The vice  lies  not  in  the  condition  imposed,  but  in   the distinction  made  between  these  two  in  the  matter   of admissibility of a confession.  The distinction can be wiped out  only  when  confessions made by all  accused  are  made admissible subject to the protective condition imposed. Not  only  the alleged differentia are not  intelligible  or germane  to the object sought to be achieved, the basis  for the  distinction is also extremely arbitrary.  There  is  no acceptable  reason  why a confession made by an  accused  in custody to a police-officer is to be admitted when that made by  an  accused  not in custody has  to  be  rejected.   The condition  imposed  in the case of the former may,  to  some extent, soften the rigour of the rule, but it is  irrelevant in  considering  the  question  of  reasonableness  of   the classification.  Rankin, J., in Durlav Namasudra v.  Emperor (1)  in  a strongly worded passage  criticised  the  anomaly underlying s. 27 thus at p. 1045: "............   in  a  case  like  the  present  where   the confession was made to the police, if the man was at liberty at  the  time he was speaking, what he said  should  not  be admitted in evidence even though something was discovered as a  result of it................... It cannot be admitted  in evidence,  because  the  man was not in  custody,  which  of course  is  thoroughly  absurd.  There might  be  reason  in saying  that, if a man is in custody, what he may have  said cannot  be admitted; but there can be none at all in  saying that  it is inadmissible in evidence against him because  he

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is not in custody." In  the present case, the self-same paradox is sought to  be supported   as   affording  a  reasonable  basis   for   the classification. The  only  solution  is for the  legislature  to  amend  the section  suitably  and not for this Court to  discover  some imaginary   ground  and  sustain  the   classification.   1, therefore,  hold  that s. 27 of the Indian Evidence  Act  is void as violative of Art. 14 of the Constitution. (1)  (1932) 59 Cal. 1040, 53 If  so,  the  question is whether there  is  any  scope  for interference  with the finding of the High Court.  The  High Court considered the entire evidence and found the following circumstances to have been proved in the case: (a)  "  that in the evening of June 18, 1958, there  was  an altercation  between Sukhdei and Deoman, accused,  over  the proposed transfer of property in Anandadih, in the  presence of Shobh Nath (P.  W. 5) and Mahesh (P.  W. 7), and that  in the  course  of  this altercation  Deoman  slapped  her  and threatened that he would smash her mouth"; (b)  " that at about dawn on June 19, 1958, the accused   was seen by Khusai (P.  W. 8) hurrying to wards a     tank,  and shortly  afterwards  was  seen by Mata  Dihal  (P.   W.  11) actually bathing in that tank, before it was fully light " ; (c)  " that the accused absconded immediately afterwards and was not to be found at Anandadih on June 19, 1958 "; and (d)  " that on June 21, 1958, the accused in the presence of the investigating officer (P.  W. 14), Shobh Nath (P.  W. 5) and  Raj Bahadur Singh (P.  W. 6) stated that he could  hand over  the " gandasa " which he had thrown into a tank;  that he  was then taken to that tank and in the presence  of  the same  witnesses waded in and fetched the " gandasa " Ex.   I out of the water; and that this " gandasa " was found by the Chemical  Examiner and Serologist to be stained  with  human blood ". The  High Court held that the said circumstances are  by  no means sufficient to prove the guilt of the accused-appellant beyond  reasonable doubt.  On that finding, the  High  Court gave  the benefit of doubt to the accused and acquitted  him of the offence.  The finding is purely one of fact and there are no exceptional circumstances in the case to disturb  the same. In the result, the appeal fails and is dismissed. HIDAYATULLAH  J.-The facts of the case have been  stated  in full  by Shah, J., in the judgment which he  has  delivered, and which I had the advantage of 54 reading.   I  have  also had the advantage  of  reading  the judgment  of  Subba Rao, J. I respectfully  agree  generally with the conclusions and the reasons, therefor, of Shah,  J. I wish, however, to make a few observations. Section  27 of the Indian Evidence Act is in the Chapter  on admissions, and forms part of a group of sections which  are numbered 24 to 30, and these sections deal with  confessions of persons accused of an offence.  They have to be read with ss. 46 and 161164 of the Code of Criminal Procedure. Section 24 makes a confession irrelevant if the making of it appears  to  the Court to have been  caused  by  inducement, threat or promise having reference to the charge against the accused person, from a person in authority and by which  the accused  person hopes that he would gain some  advantage  or avoid  some  evil of a temporal nature in reference  to  the proceedings against him.  Section 25 makes a confession to a police officer inadmissible against a person accused of  any

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offence.   Section  26  says that no confession  made  by  a person whilst he is in the custody of a police officer shall be  proved unless it be made in the immediate presence of  a Magistrate.  Section 27 then provides: "  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 thereby  discovered, may be proved." Section  161  of the Code of Criminal Procedure  empowers  a police  officer of stated rank to examine orally any  person supposed  to be acquainted with the facts and  circumstances of  the case.  Such person is bound to answer all  questions relating  to the case but not questions which would  have  a tendency to expose him to a criminal charge or to a  penalty or forfeiture.  The police officer may make a written record of  the statement.  Section 163 of the Code then  lays  down the rule that no police officer or other person in 55 authority  shall  offer or make, or cause to be  offered  or made,  any inducement, threat or promise as is mentioned  in the  Indian Evidence Act, s. 24 and further that  no  police officer  or  other person shall prevent, by any  caution  or otherwise,  any  person  from making in the  course  of  any investigation any statement which he may be disposed to make of  his own free will.  Section 162 of the Code  then  makes statements reduced into writing inadmissible for any purpose except  those  indicated, but leaves the door open  for  the operation of s. 27 of the Indian Evidence Act.  Section  164 confers  the power to record confessions, on Magistrates  of stated  rank during investigation or at any time  afterwards before  the  commencement  of the enquiry  or  trial.   Such confessions  are  to be recorded after due  caution  to  the person making the confession and only if there is reason  to believe  that  they are voluntary.  Section 46 of  the  Code provides  that  in making an arrest the  police  officer  or other person making the same shall actually touch or confine the  body  of the person to be arrested, unless there  be  a submission to the custody by word or action. When  an offence is committed and investigation starts,  the police  have  two  objects  in  view.   The  first  is   the collection of information, and the second is the finding  of the offender.  In this process, the police question a number of persons, some of whom may be only witnesses and some  who may  later figure as the person or persons  charged.   While questioning  such persons, the police may not  caution  them and the police must leave the persons free to make  whatever statements they wish to make.  There are two checks at  this stage.   What  the witnesses or the suspects say is  not  be used  at  the  trial, and a person cannot  be  compelled  to answer a question, which answer may incriminate him.  It  is to be noticed that at that stage though the police may  have suspicion  against  the  offender, there  is  no  difference between him and other witnesses, who are questioned.   Those who turn out to be witnesses and not accused are expected to give  evidence at the trial and their former statements  are not evidence.  In so far as those ultimately charged 56 are concerned, they cannot be witnesses, save exceptionally, and their statements are barred under s. 162 of the Code and their  confessions, under s. 24 of the Indian Evidence  Act. Their confessions are only relevant and admissible, if  they are recorded as laid down in s. 164 of the Code of  Criminal Procedure after due caution by the Magistrate and it is made

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clear  that they are voluntary.  These rules are based  upon the  maxim: Nemo tenetur prodere seipsum (no one  should  be compelled  to incriminate himself): In an address to  Police Constables  on  their  duties,  Hawkins,  J.,  (later,  Lord Brampton), observed: " Neither Judge, magistrate nor juryman, can interrogate  an accused person...... or require him to answer the  questions tending  to  incriminate himself.  Much less, then  ought  a constable  to  do so, whose duty as regards that  person  is simply to arrest and detain him in safe custody." In  English law, the statement of an accused person  can  be tendered in evidence, provided he has been cautioned and the exact  words  of  the accused are  deposed  to.   Says  Lord Brampton: "  There is, however, no objection to a constable  listening to any mere voluntary statement which a prisoner desires  to make, and repeating such statement in evidence, nor is there any objection to his repeating in evidence any  conversation he may have heard between the prisoner and any other person. But he ought not, by anything he says or does, to invite  or encourage  an accused person to make any statement,  without first  cautioning him, that he is not bound to say  anything tending to criminate himself, and that anything he says  may be used against him.  Perhaps the best maxim with respect to an accused person is ’Keep your ears and eyes open, and your mouth shut ’ ". See Sir Howard Vincent’s " Police Code In  Ibrahim v. Emperor (1), Lord Sumner gave the history  of rules of common law relating to confessions, and pointed out that they were " as old as Lord Hale ". Lord Sumner observed that in Reg. v. Thompson(2) (1) [1914] A.C. 599. (2) (1893) 2 Q.B. 12. 57 and earlier in The King v Jane Warrickshall (1) it was ruled (to quote from the second case): " A confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when  it is to be considered as the evidence of guilt,  that no credit ought to be given to it." Lord Sumner added: "  It  is not that the law presumes such  statements  to  be untrue but from the danger of receiving such evidence Judges have   thought   it  better  to  reject  it  for   the   due administration of justice: Reg. v. Baldry (2).   Accordingly when hope or fear were not in question, such statements were long  regularly  admitted  as  relevant,  though  with  some reluctance,  and  subject  to strong warnings  as  to  their weight." Even so, in the judgment referred to by Lord Sumner,  Parke, B., bewailed that the rule had been carried too far out of " too much tenderness towards prisoners in this matter ",  and observed : " I confess that I cannot look at the decisions without some shame,  when  I consider what objections have  prevailed  to prevent the reception of confessions in evidence Justice and commonsense  have  too  frequently been  sacrificed  at  the shrine of mercy." Whatever the views of Parke, B., Lord Sumner points out that "  when  Judges  excluded  such  evidence,  it  was   rather explained  by their observations on the duties of  policemen than justified by their reliance on rules of law." Lord  Sumner  has  then traced the history  of  the  law  in subsequent  years.  In 1905, Channel, J., in Beg  v.  Knight and  Thavre  (3) referred to the position of an  accused  in

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custody thus: "  When  he has taken any one into custody he ought  not  to question the prisoner I am not aware of any distinct rule of evidence  that,  if such improper questions are  asked,  the answers  to  them  are  inadmissible,  but  there  is  clear authority for saying that the (1) (1783) 1 Leach 263 ; 168 E.R. 234. (2) (1852) 5 Cox  C.C. 523. (3)  (1905) 20 Cox C.C. 711 8 58 Judge at the trial may in his discretion refuse to allow the answers to be given in evidence." Five years later, the same learned Judge in Rex v. Booth and Jones (1) observed: " The moment you have decided to charge him and  practically got him into custody, then, inasmuch as a Judge cannot ask a question or a Magistrate, it is ridiculous to suppose that a policeman  can.  But there is no actual authority yet,  that if a policeman does ask a question it is inadmissible;  what happens is that the Judge says it is not advisable to  press the matter." it is to be noticed that Lord Sumner noted the difference of approach  to the question by different Judges, and  observed that: "Logically these objections all go to the weight and not  to the  admissibility  of the evidence.  What a  person  having knowledge  about  the matter in issue says of it  is  itself relevant to the issue as evidence against him.  That he made the statement under circumstances of hope, fear, interest or otherwise  strictly goes only to its weight......  Even  the rule  which  excludes  evidence  of  statements  made  by  a prisoner,  when they are induced by hope in authority, is  a rule of policy." The  Judicial  Committee did not express any opinion  as  to what  the law should be.  The state of English law  in  1861 when  these  rules  became a part of the  Indian  law  in  a statutory  form was thus that the police could question  any person  including a suspect.  The statements of persons  who turned out to be mere witnesses were entirely  inadmissible, they  being  supposed to say what they could,  on  oath,  in Court.  Statements of suspects after caution were admissible but  not  before the caution was administered or  they  were taken in custody; but confessions were, as a rule,  excluded if they were induced by hope, fear, threat, etc. When  the Indian law was enacted in 1861, it is  commonplace that  the  statute was drafted in England.   Two  departures were  made,  and they were (1) that no statement made  to  a police officer by any (1)  (1910) 5 Cr.  App.  Rep. 177. 59 person was provable at the trial which included the  accused person, and (2) that no caution was to be given to a  person making a statement. In  so  far as the accused was concerned, he  was  protected from his own folly in confessing to a charge both after  and before  his  custody unless he respectively did  so  in  the immediate  presence of a Magistrate, or his  confession  was recorded  by a Magistrate.  In either event, the  confession had to be voluntary and free from taint of threat,  promise, fear, etc.  The law was framed to protect a suspect  against too  much  garrulity before he know that he  was  in  danger which sense would dawn on him when arrested and yet left the door  open to voluntary statements which might clear him  if made  but  which  might  not  be  made  if  a  caution   was

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administered.   Without the caution an innocent  suspect  is not  in  a  position  to know his  danger,  while  a  person arrested  knows  his position only too  well.   Without  the caution,  the line of distinction ceased, and the  law  very sensibly  left out the statements altogether.  Thus,  before arrest  all suspects, whether rightly suspected or  wrongly, were  on par.  Neither the statements of the one nor of  the other were provable, and there was no caution at all. The  English  law then was taken as a model for  accused  in custody.   Section  27 which is framed as an  exception  has rightly been hold as an exception to ss. 24-26 and not  only to  s. 26.  The words of the section were taken bodily  from The King v. Lockhart where it was said: "  But  it  should seem 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  thereby  induced to say what is false;  but  the  fact discovered   shews  that  so  much  of  the  confession   as immediately relates to it is true." That  case  followed immediately after  Warrickshall’s  case (2),  and summarised the law laid down in the earlier  case. The accused in that case had made a (1)  (1785) 1 Leach 386: 168 E.R. 295 and footnote to (1783) Leach 263. (2)  (1783) 1 Leach 263: 168 E. R. 234. 60 confession  which  was  not receivable, as  it  was  due  to promise of favour.  As a result of the confession, the goods stolen were found concealed in a mattress.  It was contended that the evidence of the finding of the articles should  not be admitted.  Nares, J., with Mr. Baron Eyre observed: "It  is a mistaken notion, that the evidence of  confessions and  facts  which  have  been  obtained  from  prisoners  by promises  or  threats, is to be rejected from  a  regard  to public  faith;  no such rule ever prevailed.   The  idea  is novel in theory, and would be as dangerous in practice as it is  repugnant  to the general principles  of  criminal  law. Confessions  are  received  in  evidence,  or  rejected   as inadmissible, under a consideration whether they are or  are not  intitled  to credit ......  This  principle  respecting confessions has no application whatever as to the  admission or  rejection  of facts, whether the knowledge  of  them  be obtained  in  consequence  of  an  extorted  confession,  or whether it arises from any other source ; for a fact, if  it exists  at  all, must exist invariably in the  same  manner, whether the confession from which it is derived be in  other respects true or false." Another case is noted in the footnote in the English  Report Series.  In February Session, 1784, Dorothy Mosey was  tried for  shop-lifting and a confession had been made by her  and goods  found  in consequence of it, as in  the  above  case. Buller, J., (present Mr. Baron Perryn, who agreed), said: "  A  prisoner was tried before me (Buller,  J.)  where  the evidence  was  just  as  it is  here.   I  stopped  all  the witnesses  when they came to the confession.   The  prisoner was acquitted.  There were two learned Judges on the  bench, who  told me, that although what the prisoner said  was  not evidence, yet that any facts arising afterwards may be given in  evidence,  though they were done in consequence  of  the confession.   This  point,  though it  did  not  affect  the prisoner  at the bar, was stated to all the Judges: and  the line   drawn  was,  that  although  confessions   improperly obtained  cannot be received in evidence, yet that the  acts done after-

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61 wards  may  be given in evidence, though they were  done  in consequence of the confession." Where,  however, no fact was discovered, the  statement  was not held admissible.  See Rex v. Richard Griffin (1) and Rex v. Francis Jones (2). In  Rex  v. David Jenkins(1), the prisoner  was  con  victed before  Bayley, J., (present Park, J.), of stealing  certain gowns and other articles.  He was induced by a promise  from the  prosecutor  to  confess  his  guilt,  and  after   that confession,  he carried the officer to a  particular  house, but  the  property  was  not found.   The  evidence  of  the confession  was not received; the evidence of  his  carrying the officer to the house as abovementioned was.  But Bayley, J., referred the point for consideration of the Judges.  The Judges were of opinion that, "  the  evidence was not admissible and the  conviction  was therefore  wrong.  The confession was excluded,  being  made under  the  influence of a promise it could  not  be  relied upon,  and  the  acts  of  the  prisoner,  under  the   same influence,  not  being  confirmed  by  the  finding  of  the property,  were open to the same objection.   The  influence which  might  produce  a groundless  confession  might  also produce a groundless conduct." It would appear from this that s. 27 of the Indian  Evidence Act has been taken bodily from the English law.  In both the laws  there is greater solicitude for a person who  makes  a statement at a stage when the danger in which he stands  has not  been brought home to him than for one who knows of  the danger.  In English law, the caution gives him the necessary warning, and in India the fact of his being in custody takes the  place of caution which is not to be given.   There  is, thus, a clear distinction made between a person not  accused of an offence nor in the custody of a police officer and one who is. It  remains  to  point out that in 1912 the  Judges  of  the King’s  Bench Division framed rules for the guidance of  the police.  These rules, though they had no (1) (1809) Russ. & Ry. 151 : 168 E.R. 732. (2) (1809) Russ.  & Ry. 152. (3) (1822) Russ. & Ry 492: 168 E.R. 914. 62 force  of law, laid down the procedure to be  followed.   At first,  four  rules were framed, but later, five  more  were added.   They are reproduced in Halsbury’s Laws of  England, 3rd  Edn.,  Vol. 10, p. 470, para. 865.   These  rules  also clearly divide persons suspected of crime into those who are in police custody and those who are not.  It is assumed that a  person in the former category knows his danger while  the person in the latter may not.  The law is tender towards the person  who may not know of his danger, because in his  case there is less chance of fairplay than in the case of one who has been warned. It  is to be noticed that in the Royal Commission on  Police Powers and Procedure (1928-29) CMD 3297, nothing is said  to show  that there is anything invidious in making  statements leading  to the discovery of a relevant fact  admissible  in evidence,  when  such  statements are  made  by  persons  in custody.    The  suggestions  and  recommendations  of   the Commission  are  only  designed to  protect  questioning  of persons  not yet taken in custody or taken in custody  on  a minor  charge  and the use of statements obtained  in  those circumstances. The  law has thus made a classification of  accused  persons into two: (1) those who have the danger brought home to them

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by  detention on a charge; and (2) those who are  yet  free. In the former category are also those persons who  surrender to the custody by words or action.  The protection given  to these  two  classes is different.  In the  case  of  persons belonging  to  the second category the law  has  ruled  that their statements are not admissible, and in the case of  the first  category,  only  that portion  of  the  statement  is admissible  as is guaranteed by the discovery of a  relevant fact  unknown  before  the statement  to  the  investigating authority.   That  statement  may even  be  confessional  in nature,  as when the person in custody says ; "I pushed  him down such and such mineshaft", and the body of the victim is found  as a result, and it can be proved that his death  was due to injuries received by a fall down the mineshaft. It is argued that there is denial of equal protection 63 of  the  law,  because if the  statement  were  made  before custody  began,  it would be inadmissible.  of  course,  the making  of  the statement as also the stage at which  it  is made,  depends  upon  the  person making  it.   The  law  is concerned  in  seeing  fairplay  and  this  is  achieved  by insisting   that  an  unguarded  statement  should  not   be receivable.  The need for caution is there, and this caution is  very forcefully brought home to an accused, when  he  is accused  of an offence and is in the custody of the  police. There  is thus a classification which is reasonable as  well as  intelligible, and it subserves a purpose recognised  now for over two centuries.  When such an old and time-worn rule is challenged by modern notions, the basis of the rule  must be  found.   When this is done, as I have attempted  to  do, there  is no doubt left that the rule is for advancement  of justice  with protection both to a suspect not yet  arrested and to an accused in custody.  There is ample protection  to an  accused, because only that portion of the  statement  is made  admissible  against  him which  has  resulted  in  the discovery  of  a  material fact  otherwise  unknown  to  the police.   I  do not, therefore, regard this as  evidence  of unequal treatment. Before  leaving  the  subject,  I may  point  out  that  the recommendation of the Royal Commission was: "  (xlviii)  A  rigid instruction should be  issued  to  the Police  that no questioning of a prisoner, or a ‘ person  in custody’,  about any crime or offence with which he  is,  or may be charged, should be permitted.  This does not  exclude questions  to remove elementary and obvious  ambiguities  in voluntary statements, under No. (7) of the Judges’ Rules but the  prohibition should cover all persons who, although  not in  custody,  have been charged and are out  on  bail  while awaiting trial." This is a matter for the legislature to consider. In  view of what I have said above and the reasons given  by Shah, J., I agree that the appeal be allowed, as proposed by him. BY COURT: In accordance with the opinion of the majority the appeal  is allowed.  Section 27 of the Indian  Evidence  Act and s. 162, sub-s. (2), of the Code 64 of Criminal Procedure in so far as "that section relates  to s.  27 of the Indian Evidence Act", are intra vires  and  do not  offend Art. 14 of the Constitution.  The order  of  the High  Court acquitting the respondent is also set aside  and the  order of the Court of Sessions convicting  the  accused (respondent)  under  s. 302 of the Indian  Penal  ("ode  and sentencing him to death is restored.                               Appeal allowed.

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