“Recovery Evidence” Under Section 27 Of The Evidence Act- Questions & Answers By Justice V Ramkumar [Part-III]

Q.6 Since the words used in Section 27 are “a person accused of an offence” should there not be a formal accusation against the person in the form of registering an FIR against him?.

Ans. No. The words “person accused of an offence” occurring in Section 27 of the Evidence Act are only descriptive of his status and it is enough that after the disclosure statement is recorded, he is subsequently made an accused. (Vide para 51 of Pakala Narayana Swamy v. Emperor AIR 1939 PC 47 – Lord Atkin, Lord Thankerton, Lord Wright, Lord Porter, Sir George Rankin – JJ; Para 7 of State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges – S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah - JJ; Para 16 of Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 – Dr. A. S. Anand, Faizan Uddin – JJ; Para 11 of Vikram Singh v. State of Punjab AIR 2010 SC 1007 = (2010) 3 SCC 56 – Harjit Singh Bedi, J. M. Panchal – JJ.)

Q.7 Should there not be “formal arrest” of the accused for the applicability of Sec. 27 of the Evidence Act ?

Ans. No. It is enough if the accused is in “custody” of the police for which arrest is not a pre-requisite. (Vide - Vikram Singh v. State of Punjab AIR 2010 SC 1007 = 2010 (3) SCC 56 - Harjit Singh Bedi, J. M. Panchal – JJ and Para 69 of Mohd Arif @ Ashfaq v. State of NCT of Delhi - 2011 (8) SCALE 328 = (2011) 13 SCC 621 - V. S. Sirpurkar, T. S. Thakur - JJ.

“Custody” under Section 26 of the Evidence Act need not necessarily be post-arrest custody. The word “custody” should be understood in a pragmatic sense. If the accused is within the “ken of surveillance” of the police during which his movements are restricted, it can be regarded as custodial surveillance for the purpose of Section 26 of the Evidence Act. (Vide para 19 of State of A.P. v. Gangula S. Murthy (1997) 1 SCC 272 = AIR 1997 SC 1588 - A. S. Anand, K. T. Thomas - JJ.)

A person can be deemed to have surrendered to the police when he offers to give information leading to a discovery falling under Section 27 of the Evidence Act. (Vide para 12 of State of U. P. v. Deoman Upadhyaya AIR 1960 SC 1125 = 1960 Cri.L.J. 1604 – 5 Judges – S. K. Das, J. L. Kapur, K. Subba Rao, M. Hidayatullah, J. C. Shah – JJ; Paras 19 and 39 of Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632 = (1980) 2 SCC 565 – 5 Judges – Y. V. Chandrachud – CJI, P. N. Bhagwati, N. L. Untwalia, R. S. Pathak, O. Chinnappa Reddy – JJ.)

Q.8 In the absence of a “panchanama” (“mahazar”) incorporating the disclosure statement by the accused and attested by at least 2 independent witnesses, will the consequent recovery fall under Section 27 of the Evidence Act ?.

Ans. Yes. The law does not insist that a “panchanama” should be prepared or that independent witnesses should be called to overhear the disclosure statement by the accused or to witness the subsequent recovery of the incriminating article. The only two provisions in the Cr.P.C. which insist on a “panchanama” in the sense that two or more independent and respectable inhabitants of the locality should be called upon, is in the case of a “search” from an enclosed place falling under Section 100 (4) Cr.P.C. and in the case of an “inquest” under section 174 (1) Cr.P.C. A recovery falling under Section 27 of the Evidence Act is not “search” of an enclosed place or an “inquest” necessitating a “panchanama” or a “mahazar”. The view taken by a 3 Judge Bench decision in dated 13-10-2022 in Ramanand @ Nandlal Bharti v. State of U.P. 2022 SCC OnLine SC 1396 = 2022 KHC 7083 – 3 Judges - Uday U Lalit CJI, S. Raveendra Bhat, J. B. Pardiwala – JJ, insisting on the investigating police officer to take the accused in custody to the police station and to call two independent witnesses to the police station and to incorporate the “disclosure statement” given by the accused in a “panchanama” and thereafter to take the accused and the witnesses to the place of concealment of the incriminating article and to incorporate the recovery also in the “panchanama”, is opposed to law and the binding judicial precedents in that regard. There are two other decisions of the Supreme Court taking similar erroneous view of the law on the point. (Vide Subramaniya v. State of Karnataka AIR 2022 SC 5110 = 2022 SCC OnLine SC 1400 - Uday U. Lalit- CJI, J. B. Pardiwala – JJ; Boby v. State of Kerala 2023 (1) KLT 543 (SC) – B. R. Gawai, M. M. Sundresh – JJ.)

The above view in Ramanand case had impelled this author to pen a couple of articles titled –

• “Section 27 of the evidence Act re-visited in the Wake of Ramanand @ Nandlal Bharti 2022 SCConLine SC 1396”
• “Section 27 of the Evidence Act – More Miscontrued than comprehended”
• “Section 27, For More Lucidity”
• “Section 27 of the Evidence Act – Some Useful Tips to Comprehend its Full Scope”

Q.9 What is the mode of bringing on record “the fact discovered” under Section 27 of the Evidence Act ?

Ans. This question was necessitated in view of an observation made by a Division Bench of the High Court of Kerala in Balu v. State of Kerala 2021 KHC 532 – K. Vinod Chandran, Ziyad Rahman A. A. – JJ, wherein it was held that when the confession incorporated in the “mahazar” was marked at the instance of the investigating officer, it was not necessary for the said officer to state in his deposition the exact words stated by the accused. The above observation was doing violence to the wording of Section 27 and also to the judicial precedents holding the field. What is required by law is that the investigating officer or a witness should “depose” before Court the exact words spoken by the accused ipsissima verba i.e. in the words of the accused himself.

NOTES BY THE AUTHOR:- The above verdict of the Division Bench had induced me to write an article titled “The Mode of Bringing On Record, “The Fact Discovered” under Section 27 of the Evidence Act”.

Q.10 After making a “disclosure statement” regarding the weapon of offence, the accused does not “lead” the police to the place of concealment. Instead, the Police Officer on the strength of the disclosure statement proceeds to the spot and takes out the weapon and seizes it under a mahazar. Whether it is a recovery falling under Sec. 27 ?.

Ans. Yes. It is not a requirement of law that the accused should himself lead the police party to the spot and take out the weapon. It is enough if the accused discloses to the investigating officer such information which leads to the discovery of the thing sold by him or hidden or kept with him which the Police did not know until then. (Vide –

• Reveendran and Others v. State – 1989 (2) KLJ 534 DB - S. Padmanabhan, P. K. Shamsuddin - JJ.
• Para 24 - Himachal Pradesh Administration v. Om Prakash - AIR 1972 SC 975 = 1972 SCC (Crl.) 88 - P. Jaganmohan Reddy, D. G. Palekar - JJ.
• Bahadul v. State of Orissa - 1979 (4) SCC 346 : 1979 SCC (Cri) 982 : AIR 1979 SC 1262 : 1979 CriLJ 1075 - S. Murtaza Fazl Ali, A. D. Koshal - JJ.
• Prakash Chand v. State (Delhi Admn.) - 1979 (3) SCC 90 : 1979 SCC (Cri) 656 : AIR 1979 SC 400 : 1979 CriLJ 329 - R. S. Sarkaria, O. Chinnappa Reddy - JJ;
• Para 142 of State (NCT of Delhi) v. Navjot Sandhu (2005) 11 SCC 600 - P. Venkatarama Reddi, P. P. Naolekar - JJ.)

But there may be cases like Karan Singh v. State of U.P (1973) 3 SCC 662 = AIR 1973 SC 1385 - A. Alagiriswami, I. D. Dua, C. A. Vaidialingam – JJ, where the accused merely says that he will show the place where the knife is hidden and then take the police party to that place. Again in paragraph 11 Lachhman Singh v. State AIR 1952 SC 167 = 1952 Cri.L.J. 863 - Saiyid Fazl Ali, Vivian Bose - JJ, after 3 of the accused persons made a confession to the police to the effect that the dead bodies of the two brothers could be recovered from Sakhinala, a stream running through several miles, one of them had led the police party to the spot from where bloodstained earth and the trunk of one of the dead persons were recovered.