Aghnoo Nagesia v State of Bihar: analysing section 25 of the Indian Evidence Act, 1872

By Somyajit Mohanty

Introduction

“There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.”[1]

A three-judge bench of the Supreme Court of India, in the case of Aghnoo Nagesia v State of Bihar,[2] interpreted the application of Section 25 of the Indian Evidence Act, 1872 (hereinafter the Act) to an interesting set of facts where Aghnoo Nagesia gave a full-fledged confessional first information report stating that he had committed the murders. While holding Section 25 as a ‘bright-line rule’ to provide sufficient safeguards to the accused against self-incrimination, the Court laid down that Section 27 of the Act serves as the only exception to Section 25 of the Act,[3] and in pursuance of it, assumed Aghnoo Nagesia to be in the ‘constructive custody’ of the police and thus admitted the information, distinctly related to the discovery of bodies and the murder weapon, as evidence.

In light of this, it is argued that Section 27 of the Act only serves as an exception to Section 26 and not to Section 25. Further, the Supreme Court’s interpretation of the application of Section 27 in Aghnoo Nagesia’s case is problematic as the essential requirement of the accused being in ‘police custody’ is not satisfied in Aghnoo Nagesia’s case.

Section 25 and Section 27 of the Act: An Analysis

Section 25 of the Act provides that any confession, made by an accused, to a police officer will not be proved as against him. The primary purpose behind the enactment of such a provision is to put a stop to the malpractices of the police officers to extort confessions and avoid the peril of false confessions being admitted.[4] Section 25 is based upon grounds of public policy to protect the accused against the might of State and counterbalance the power imbalances against the accused and thus serve as a limitation to the power of the State, which is subject to misuse.[5] Thus the section acts as an incentive for the police to conduct a proper investigation into the matter.

Section 25 does not mandate that the person must be in police custody while confessing to the police officer, nor is it necessary that he must be accused of any offence of the time when he confessed. The same has been reiterated by the judges in Aghnoo Nagesia’s case.[6] What is contemplated in this section is that when the person accused is being tried for an offence, a confession made on a previous occasion shall not be proved against him.[7]

Section 27 constitutes a partial removal of the ban placed on the reception of a confessional statement under Section 26 of the Act, which describes a situation when the accused is in police custody. Section 27, in the form of a proviso, states that any information in a statement, confessional or not, made in police custody, can be proved against an accused if the same leads to the discovery of an unknown fact and the information must “distinctly relate to the fact discovered.” Thus, two of the important pre-requisites of the section are that the person must be accused and should be in police custody while making the statement.[8]  If either of the two conditions is not satisfied, then the statement would fall outside the purview of this section.

In Pakala Narayana Swami case, it was held “in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument.” The Privy Council was of the opinion that only when the confession is made in police custody, does Section 27 apply to lift the bar to a certain extent and observed that Section 27 is intended to be a proviso to Section 26 of the Act. The same view was also expressed in the judgment of Pulukuri Kottaya v King-Emperor and by the Supreme Court of India in Udai Bhan v State of UP.[9] In the case of State of UP v Deoman Upadhyaya,[10] where the constitutionality of Section 27 was challenged, a five-judge bench of the Supreme Court of India while upholding the constitutionality of Section 27 of the Act stated that the distinction between those in custody and those who are not is of little practical relevance. However, both the majority and the dissenting opinions proceeded on the view that Section 27 operates as a proviso to only Section 26.[11]

Further, let us draw an analysis through the text of the Criminal Procedure Code, 1973. Section 162 of the CrPC, 1973, provides Section 27 of the Act as an exception to the statements made by any person to the police during the investigation. However, this cannot be applied to Section 25 of the Act. To explain it better, let us consider the example of admissions and confessions. Confessions are a subset of “admissions” under the Act; however, they are not admissible in evidence and serve as an exception within the purview of “admissions” under the Act.

Similarly, Section 27 of the Act serves as an exception to any Section 162 CrPC statement. However, if such statement amounts to a confession under Section 25 of the Act, then Section 27 will not be applicable. It works as an exception to the exception under Section 162 CrPC. Hence, it is argued that Section 25 of the Act does not fall under the purview of exception created under Section 162 of CrPC.

Hence, following the Supreme Court’s decision in Dawoodi Bohra’s case, the view of the Court in Deoman Upadhyaya’s case that Section 27 serves as a proviso to only Section 26 should have been followed by the Court in Aghnoo Nagesia’s case where the Court held that Section 27 of the Act operates as an exception to Section 24, 25 and 26 of the Act[12] and which has become the precedent for subsequent cases to hold such a position. Further, every information might lead to the discovery of some facts.[13] If Section 27 is intended to be an exception to Section 25, then all information in the confession made under Section 25 to the police officer could be admitted thus, making the protection given to the accused under Section 25 redundant in its application. Thus, the Supreme Court, by its decision, has obliterated the safeguards provided under Section 25 of the Act.

Moreover, Section 27 of the Act is the re-embodiment of Section 150 of the Criminal Procedure Code, 1861, as amended by Act 8 of 1969, as per which custody of the police officer was not a mandatory requirement.[14] While Section 27 was being drafted, Sir James Stephen had specifically excluded the word ‘or’ between “person accused of an offence” and “custody of police officer.”[15] This shows that the operation of the section is restricted to information from an accused person in custody of the police and does not apply to information from an accused person, not in the custody of the police, and hence is intended to be a proviso to Section 26 of the Act. Thus for Section 27 to apply, the person who gives the information must fulfil the conditions laid down in Section 26 of the Act and all confessions made to police officers, whether in the custody of police or not, should not be proved against the accused even if it leads to the discovery of facts. Further, one need not blame Sir James Stephen for ‘accidentally omitting’ the word ‘or’ from the precursor of Section 27.[16]

Police Custody or Not?

As reiterated above, for Section 27 of the Act to apply the two pre-requisites of a person being accused and must be in police custody while giving the statement has to be satisfied. ‘Custody’ has not been defined under the Indian law. It is generally held that when a person is arrested under Section 46(1) of Code of Criminal Procedure, 1973, the person is deemed to be in police custody.[17] However, arrest is not necessary for custody.

For a person to be in custody, there must be such constraint or restriction of the person’s liberty that the person’s freedom of movement is under the control of another. The police can impose such restrictions directly or indirectly.[18] If a person is not permitted to depart on his own free will, he is deemed to be in custody.[19] Thus it can be said that when one is in a situation where a reasonable person would feel that they cannot terminate an encounter with the police and walk away on their own will, one is in the custody of the police.

In light of the above, it is argued that Aghnoo Nagesia was not in the custody of the police when he made the statement to the sub-inspector. The Court’s assumption that he is in ‘constructive custody’ of the police is erroneous. The judges did not clarify what they meant by constructive custody. They gave no reason for assuming Aghnoo Nagesia to be in constructive police custody, which might be because he confessed to the police officer, even after admitting that there is a difference of opinion on what constitutes police custody under Section 27[20] as stated in Deoman Upadhyaya’s case.

The facts of Aghnoo Nagesia’s case show that he himself came to the police station and made the confession, in the form of an FIR, to the Sub-Inspector.[21] Aghnoo Nagesia was only arrested the next day, even though the confession was made in the afternoon.[22] Aghnoo Nagesia was free to walk away from the police after confessing, and only when he was arrested the next day, he came in the custody of the police. There was no constraint on his liberty, nor was his movement controlled by the police officer when he gave the confession in the form of an FIR. It is argued that Aghnoo Nagesia’s confession falls under the protection provided under Section 25 of the Act. For the application of Section 27, the confession must fall under Section 26 of the Act, which has a mandatory requirement of police custody. Since there was no police custody when the confession was made, Section 26 is ruled out, and Section 27 of the Act would not apply.

Conclusion

Section 25 serves as important protection granted to the accused considering the power imbalances between the State and the accused person. In the absence of such protection, it might lead to an innocent person getting convicted for an offence, which he/she did not commit and where influential and powerful people are concerned. By carving out an exception under Section 25, the provision has become redundant as a similar situation has been provided for in Section 26 of the Act. With Aghnoo Nagesia defining the position of law, i.e., Section 27 serving as an exception to Section 25, it is important to discuss whether Section 27 was meant to be the exception to the ‘Bright-Line Rule’ under Section 25.

Going by the construction of Section 27 and the judicial decisions, it is submitted that Section 27 serves as a proviso and as an exception to Section 26 of the Act only. Further, the application of the Section in Aghnoo Nagesia’s case is erroneous as the accused was not in police custody when he confessed to the police, thus not satisfying the pre-requisites of Section 27 of the Act. While the judgment elaborated that all incriminating facts including motive and preparation would form a part of confession and thus be barred by Section 25 to be proved,[23] it is necessary to reconsider the application of Section 27 as Aghnoo Nagesia’s case has set the precedent that Section 27 of the Act applies to Section 24, 25 and 26 of the Act.

[1] Sir James Fitzjames Stephen, History of Criminal Law in England [London; Macmillan and Co., 1883] Vol. 1 442.

[2] Aghnoo Nagesia v State of Bihar (1966) 1 SCR 134.

[3] Aghnoo Nagesia n 2 at ¶18.

[4] Queen Empress v Babulal and Anr. (1884) ILR 6 All 509.

[5] M Monir, Textbook on the law of Evidence (Universal Law Publishing, 2018) 124.

[6] Aghnoo Nagesia, n 2 at ¶9.

[7] John Woodroffe and Amir Ali, Law of Evidence (Eastern Book Company, 20^th edn., 2017) Vol. 2, 1511.

[8] Vepa P Sarathi, Law of Evidence (Eastern Book Company, 6^th edn. 2006) 151.

[9] Udai Bhan v State of Uttar Pradesh AIR 1962 SC 1116, ¶¶ 7, 11 at 1118.

[10] State of Uttar Pradesh v Deoman Upadhyaya (1961) 1 SCR 14.

[11] ibid at ¶ 7; V Nageswara Rao, The Indian Evidence Act (LexisNexis, 2012) 182.

[12] Aghnoo Nagesia, n 2 at ¶9.

[13] V Nageswara Rao, The Indian Evidence Act (LexisNexis, 2012) 198.

[14] Law Commission of India, Review of the Indian Evidence act, 1872 (Law Com. No. 185, Part 2, 2002).

[15] ibid.

[16] Vepa P. Sarathi, ‘Section 27 of the Indian Evidence Act (I of 1872)- Sir James Stephen and Deoman Upadhyaya’ 6(2/3) Journal of the Indian Law Institute 1964 337.

[17] Vepa P Sarathi, Law of Evidence (Eastern Book Company, 6^th edn. 2006).

[18] E v. Director of Public Prosecutions [2002] Crim LR 737.

[19] Allah Ditta v Crown AIR 1937 Lah 620.

[20] Aghnoo Nagesia, n 2 at ¶21.

[21] Aghnoo Nagesia, n 2 at ¶6.

[22] Aghnoo Nagesia, n 2 at ¶3.

[23] Aghnoo Nagesia, n 2 at ¶13.

[The author is a 4th Year Student of National Law School of India University, Bangalore.]