Desai, J. - (1.) I respectfully dissent from the view taken by my learned brothers that Section 27, Evidence Act, and Section 162(2), Cr. P. C. are void on account of denying equality before the law guaranteed by the Article 14 of the Constitution.
(2.) Admission is defined in Section 17 of the Evidence Act to mean a statement suggesting any inference as to any act in issue of relevant fact made by a party to a proceeding, such as an accused. Admissions are relevant and may be proved as against the person making them, vide Section 21. A confession is a specie of an admission of an accused; it is an acknowledgment in express words of the truth of the guilty fact charged; Wigmore on Evidence, Volume III, third edition, paragraph 821. In other words it is admission of all the facts in issue and Consists expressly or impliedly of as many admissions as there are facts in issue. In Pakala Naravana Swami v. King Emperor. 66 Ind App 66: (AIR 1939 PC 47) Lord Atkin observed at page 81 (of Ind App): fat p. 52 of AIR) "A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession". No confession made to a police officer can be proved; this is Section 25 of the Evidence Act. This provision is narrow inasmuch as it bars proof of a confession, and not of an admission, by an accused to a police officer and is wide inasmuch as proof of a confession made to a police officer is barred regardless of whether the accused was in custody or not and whether the confession was made during investigation or not Section 26 lays down that no confession made by any person while he is in the custody of a police officer shall be proved as against him unless it be made in the immediate presence of a Magistrate. While Section 25 deals generally with all accused, Section 26 deals specifically with those in the custody of a police officer (referred to, for the sake of brevity, as those in custody). These two provisions are based upon the principle of unreliability of the police. Section 27 lays down 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 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." Whether the section is an exception to only Section 26, which immediately precedes it, or to Sections 25 and 26, or to Sections 24, 25 and 26 was once a matter in controversy. It is more than a mere exception to all or any of the preceding sections; it deals with ''information" whereas the preceding section or sections deal with only confessions; Sections 25 and 26 overlap to some extent; a confession by a person in custody to a police officer is hit by both of them. Section 27 deals with any information confirmed by subsequent facts received from a person in custody; information received by a police officer is as much within its scope as information received by someone else. In practice it is the information received by a police officer that is sought to be proved under the section. Had the legislature intended to exclude this information from the scope of Section, 27 it should have added appropriate words in the section. Once it is conceded that it deals with information received by a police officer one would have no difficulty in holding that it is an exception to Sections 25 and 26 both. It was held by the Supreme Court in Ram Kishan v. State of Bombay, 1955-1' SCR 903: (AIR 1955 SC 104) and by this Court in Queen-Empress v. Babu La'1, ILR 6 All 509 that it is a proviso to Sections 2.5 and 26 both and that consequently so much of a confession made by an accused in custody as relates distinctly to the discovery of any fact can be proved against him even if the confession was made to a police officer. The section is based on the doctrine of Confirmation by subsequent facts e.g. that so much of the confession as relates distinctly to the fact discovered by it may be given in evidence because this part at least of the confession cannot have been False. Sections 25 and 26 bar the proof of a confession but Section 27 makes an exception in favour of that part of a confession made by an accused person in custody which is confirmed to be true by subsequent discovery. It was pointed out by Straight C. J. in the case of Babu Lal, ILR 6 All 509 at p. 546 that "Section 27 was not intended to let in a confession generally, but only such particular part of it as set the person to whom it was made in motion, and led to his ascertaining the fact or facts of which he give's evidence." The provisions of the section have been explained by the Judicial Committee of the Privy Council in Pulukuri Kotayya v. Emperor 74 Ind App 65: (AIR 1947 PC 67). Sir John Beaumont observed at page 76 (of Ind App): (at p 70 of AIR) that "normally the Section is brought into operation when a person in police custody produces from some place of concealment some object, such as a dead body, a weapon or ornaments, said to be connected with the crime of which the informant is accused .....The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered." His Lordship emphasised that Section 27 did not mean to let in the evidence that the body produced was that of the person murdered by the accused or that the weapon produced was the one used by him in murdering him. The word "it" in the expression "whether it amounts to a confession or not" means "information" and not "so much of"; see Woodroffe and Ameer Ali's Evidence, 10th Edition, Vol. I, page 414.
(3.) Evidence can be given only about the existence or non-existence of a fact in issue and of a relevant fact and of no other matter, vide Section 5 of the Evidence Act. Section 27 does not make the evidence of discovery of a fact admissible; if it is admissible it must be under Section 5. What it makes admissible is the evidence of a statement of the accused leading to the discovery of the fact. Though Section 27 is worded as if it was only an exception to the preceding sections i.e. Sections 25 and 26 and probably 24 also), it really is more than that and contains something not within the scope of the preceding sections. It deals with part of "information" which is a wider term than "confession", which is all that is dealt with in the preceding sections. Ignoring irrelevant matter, information must consist of a confession or an admission of a fact in issue or a relevant fact. The part of it that is confirmed by subsequent facts and is made receivable in evidence by Section 27 must be a confession or an admission of a fact in issue or a relevant fact. If the whole confession is confirmed by subsequent facts, the whole is receivable in evidence under Section 27 notwithstanding the bans imposed by the preceding sections. If the information is a confession and the part of it that is confirmed by subsequent facts is an admission of a fact in issue, it may be barred from evidence by the preceding sections but is made receivable in evidence by Section 27. If the information is a confession and the part of it confirmed by subsequent facts is an admission of a relevant fact, its admissibility is governed by Section 21 and not by Section 24 to 26 and would be receivable in evidence even in the absence of Section 27. If the inforrnation is an admission of a fact or facts in issue, the part of it that is confirmed by subsequent facts must be an admission of a fact in issue or of a relevant fact; in either case its admissibility is governed by Section 21 and not by Sections 24, 25 and 26 and it would be receivable in evidence even if Section 27 did not exist. If the information is an admission of a relevant fact, or relevant facts the part of it confirmed by subsequent fact can only be an admission of a relevant fact, the admissibility of which is governed by Section 21 and not by Sections 24, 25 and 26 and which would be receivable in evidence even if Section 27 did not exist. Some of these statements need explanation. Irrelevant matter contained in an information is inadmissible even though confirmed by subsequent facts. No evidence that is irrelevant and, therefore cannot be received in evidence, vide Section 5, is made admissible by Section 27. If an irrelevant matter contained in an information is confirmed by subsequent facts, the evidence about the subsequent facts itself would be irrele- vant and if it cannot be received in evidence no question will arise of receiving in evidence the part of the information. Sections 24, 25 and 26 bar a confession, that is an admission of all the facts in issue, but not an admission of only some fact or facts in issue or of a relevant fact. A confession cannot be split up into two or more admissions of facts in issue and one of them cannot be received in evidence as an admission if the whole confession is barred. When some authorities lay down that an admission is receivable in evidence though the confession is, pr would be. barred, it is either an admission of a relevant fact and, therefore, not forming part of the confession or an admission of some fact or facts in issue standing alone. If an accused admits only some fact or facts in issue and not all the facts in issue, his statement is an admission and not a confession and its admissibility is not governed by the provisions deling with confessions. If a statement of an accused contains not only a confession but also an admission, which can only be of a relevant fact, the latter would be receivable in evidence under Section 21 even though the confession is barred by Section 24 etc., the reason being that an admission of a relevant fact receivable in evidence under Section 21 is not made non-reeeivable merely because it accompanies a confession hit by Sections 24 etc.;