DISCOVERY OF FACT

CHAPTER 01: INTRODUCTION

The Police Force has long been infamous for its mannerisms and practices. Forcing
confessions out of persons who may not have necessarily committed an offence was believed
to be the status quo even in the years succeeding independence.1 Thus, a need arose for the
provisions contained in the Indian Evidence Act discussed below. Nowadays, however, it has
also been the practice of the accused persons to contend that statements they have provided
under police custody are in fact confessions and thus cannot be taken. Therefore, the accused
persons try to hoodwink the law by contending that their statements are inadmissible in
evidence. Thus, either the individuals have been wrongfully framed, or the Police have
been wrongfully accused of bringing someone into custody. The reason being, the Indian
Evidence Act has been in place since 1872 now, with section 27 being interpreted in a
plethora of judgements, however the provision continues to be a perplexing one for several
parties involved the Police included, the extent of applicability of the section being a major
factor in the same, which is the main purpose for the selection of this subject for this research
project. It is important to note down that section 27 does not function individually, but
rather as an exception to sections 25 and 26, so it is important to be familiar with those
provisions as well

[1.1] Section 25 of the Act:

On a bare reading of the provision, it is quite straightforward. A confession of guilt, although

made to a police officer shall not be admissible as evidence against the accused. The simple
reason behind this provision, as explained above, is that an environment known for
extorting out statements cannot be trusted for not using those very forceful tactics, since
the basic principle is that all confessions must be voluntary.2 Therefore, not having the
prohibitive nature that this section does in fact possess would be a violation of the right of
an accused to a fair trial3, which is one of the most important duties of the Juidiciary.

1
Sekhri, A. (2014). Confessions, Police Officers and S. 25 of the Indian Evidence Act, 1872. NUJS Law
Review, [online] 7(1), pp.55-56. Available at: <http://nujslawreview.org/wp-content/uploads/2015/07/Abhinav-
Sekhri.pdf> [Accessed 31 Jul. 2016].
2
See Supra Note at 1.
3
Basu, D. (2013). Introduction to the Constitution of India. 21st ed. Gurgaon: Lexis Nexis, pp.113-114.

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 DISCOVERY OF FACT

[1.2] Section 26 of the Act:

The above section embodies the identical principle as in the preceding one. It however, also
creates an exception to a police officer receiving the confession, i.e. in the presence of a
Magistrate. This section also covers a confession made in judicial custody or lock-up, as
long as policemen guard it,4 thereby necessitating the application of the provision as it states
police custody. Also, immediate presence shall mean in the same room, and not an
adjoining one. The reason being, a Magistrate being in a different or adjoining room affords
an opportunity to the police officer to force out a confession,5 means this word must be
strictly construed.

[1.3] Section 27 of the Act:

It is clear that this section is an exception to the previous one, and only that portion of the
statement is admissible in evidence, which helps the Police discover a fact relating to the
offence. But this discovery must be directly related to the offence, only then is it admitted.
Thus, if not for the Judiciary, with its interpretations, judgements and precedents that
have kept a check on the same, the usage of section 27 would become an arbitrary practice.

[1.4] In the subsequent chapters, the following cases have been discussed in detail

Chapter 02 discusses the case of Mehboob Ali and Anr. v. State of Rajasthan6, is a
judgement that goes beyond the ordinary meaning of fact discovered.
Chapter 03 discusses the case of Udai Bhan v. State of Uttar Pradesh7, wherein fact
discovered has been interpreted as the knowledge of the accused as well as the place of
the stolen property.
Chapter 04 deliberates upon the case of Mohmed Inayatullah v. State of Maharashtra 8,
wherein the judgement of the High Court was overturned by the Supreme Court as the
extent of Section 27 went beyond the legislative intent.

4
Iman Din v. Emperor, A.I.R. 1934 Lah. 36.
5
Zwing Lee Ariel v. State of Madhya Pradesh, A.I.R. 1954 SC 15.
6
Crl.A. No. 1088 of 2010.
7
AIR 1962 S.C. 1116.
8
A.I.R. 1976 SCR (1) 715.

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 DISCOVERY OF FACT

CHAPTER 02: MEHBOOB ALI AND ANR. v. STATE OF RAJASTHAN9

[2.1] Introduction:

This case is a fairly recent one decided upon by the Supreme Court by way of an appeal
preferred against the High Court of Rajasthan. The accused persons herein have acted in
conspiracy, leading to each person(s) being caught and arrested based on the statement of
one or more of the accomplices in custody of the police. This case discusses whether the
statements of the accomplices are admissible u/s 27 of the Indian Evidence Act as an
exception to confessions made while in police custody or in the presence of a police officer.

[2.2] Facts of the Case:

1. That the accused (as per FIR No.459 of 2003) was found possessing 5 currency notes
of Rupees 100 each bearing the same number, and was subsequently arrested u/s
489C, i.e. forged or counterfeit currency notes or bank notes r/w section 120B, i.e.
punishment for criminal conspiracy of the IPC.
2. That the accused, during the interrogation informed that he had received the said
currency notes from Mehboob Ali, Firoz, and Ram Gopal; following which
Mehboob Ali and Firoz were arrested.
3. That from Ram Gopals house possession of currency notes was recovered from
Puran Mal.
4. That Mehboob and Firoz informed the police that they had received the said currency
notes from one Anju Ali and that they would identify him.
5. That they were taken to Delhi to identify Anju Ali, who has thereafter arrested on
account of possession of fake currency notes.
6. That Anju Ali upon interrogation by the police informed that he received fake
currency notes from one Majhar, who was arrested for possession of the same.
7. That Majhar informed the police he used to receive fake currency notes from one
Liyakat Ali, from whose possession fake currency notes, semi-made notes of Rupees

9
Crl.A. No. 1088 of 2010.

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 DISCOVERY OF FACT

500 and equipment for fabricating notes were recovered, on account of which he was
arrested.

[2.3] Contentions of the Appellants:

The appellants (Mehboob Ali and Firoz) submitted that the confessional statements of the
accused persons were inadmissible as Evidence u/s 27 of the Act, as they were not facts
discovered as stated in the aforementioned section, but actually confessions of guilt. As per
section 26 of the Act, a confession made in police custody is inadmissible in evidence and
can therefore not be used in order to convict the accused.

[2.4] Issue:

Whether the knowledge when facilitated by a statement made by the accused in police
custody of the existence of an accomplice falls under fact discovered u/s 27 of the Act.

[2.5] Judgement:

As per the Court, there was a discovery of fact by way of the statement of the appellants.
Since, the accused persons had knowledge of Anju Ali, as they were the ones who
identified him and before the same, the police was not aware of the involvement of an
accomplice. The discovery of fact therefore, in this case, was the existence of their
accomplice, i.e. Anju Ali, and also the fake currency notes in his possession. Hence, the
statement is admissible u/s 27 of the Act.

The appeal was thereby dismissed, and the judgement and order of the Trial Court and High
Court of Rajasthan were in the interest of justice. The appellants having been sentenced to
rigorous imprisonment for 5 years, in addition to a fine of Rupees 1,000/- in default of
whose payment they would undergo one-month simple imprisonment each.

[2.6] Conclusion:

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 DISCOVERY OF FACT

It can be observed that the Supreme Court in this case has applied the Golden Rule of
Interpretation.10 The reason being, the term fact discovered as laid down in Section 27 has
not been restricted to the fact found, but has been extended to also mean the knowledge of
the accused. Fact discovered would usually mean a physical or material fact, for example
if the accused would state that he has murdered A and the knife, i.e. the murder weapon can
be found in a specific location, the admissible portion of the statement would be limited to
the location of the murder weapon, i.e. the knife.

But, in this case, not the physical or material fact, which, in this scenario for instance would
be the fake currency notes or printing equipment, came into question, but the mental fact, i.e.
the knowledge of the accused, which in this case led to discovering a fact. Thus, in this
case, fact discovered has not been restricted to anything, which may be perceived by the
senses, but has included mental fact as well, which gives the term fact discovered in this
provision, a new dimension like in the cases discussed hereinbelow.

Also, even though the fact discovered must be directly related to the statement made by the
accused the Apex Court laid down in this case that this condition of a direct relation shall not
be so narrow, so as to prohibit the provision from serving its purpose or making perfect
sense. The court in this laid down that along with the mental fact, even the location of the
object and the fact that the accused knew this location shall be considered.

10
Dhanda, A. (2014). N. S. Bindra's Interpretation of Statutes. 11th ed. Gurgaon: Lexis Nexis, pp.278-281.

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 DISCOVERY OF FACT

CHAPTER 03: UDAI BHAN v. STATE OF UTTAR PRADESH11

[3.1] Introduction:

The Supreme Court decided upon this case in 1962, following an appeal preferred against the
order and judgement of the Allahabad High Court. The appellant was accused of theft in
dwelling house and lurking house trespass. The accomplice was, however, acquitted by the
Magistrate. This case considers whether the act of the accused of excavating and handing
over the stolen box containing the belongings of the complainant is a confession made
under police custody or is admissible as per section 27 of the Indian Evidence Act.

[3.2] Facts of the Case:

1. That the complainant locked his shop at around 8 PM on 13th October, 1956 and went
out for sometime.
2. That when the complainant returned about 45 minutes later, he found that his shop
had been broken into.
3. That the complainant realised that a box containing Rupees 2,000 and some clothes,
and another box containing Rupees 200 were both missing.
4. That the complainant was told by prosecution witnesses one Liladhar and one Harnam
Singh and 2 other persons that they had seen the appellant and one Narain carry
away those boxes.
5. That the complainant lodged a report with the police on the following day.
6. That the appellant was arrested on 15th October, 1956, u/s 380 and 457 of the IPC.
7. That, in the presence of a police officer, the appellant brought out a box from a
pond near the field of the complainant when an inquiry was made regarding the
same and handed it over to the police officer, which contained the stolen property
of the complainant
8. That the appellant, from a bunch of keys belonging to himself, handed over a key to
the police officer that fit the lock of the complainants shop.

11
AIR 1962 S.C. 1116.

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 DISCOVERY OF FACT

[3.3] Contentions of the Appellant:

The appellant contended that his act of handing over the box brought from the pond and
keys amounted to a confessional statement made to a police officer u/s 25 of the Indian
Evidence Act and was therefore inadmissible as evidence. Thus, his conviction was bad in
law. The appellant also stated that handing over the box and keys to the police officer is not a
statement due to which a fact is discovered u/s 27 of the Act. It was argued that when a
stolen article is produced by the accused, it is an obvious confession of his guilt.

[3.4] Issue:

Whether the production of a stolen article by the accused amounts to fact discovered u/s 27
of the Act.

[3.5] Judgement:

Section 27 of the Act does not override the previous provision. A statement made in police
custody by the accused, whether it was a confessional one or not, is allowed into evidence but
only to that extent where it aids the discovery of a fact. Therefore, the discovery of fact
includes the object found, the place at which it is found and the knowledge of the
accused regarding it.

Thus, the Supreme Court ruled that the High Court of Allahabad was correct in admitting
into evidence the discovery of the key as well as the box. The High Court had also
concluded that the accused was seen carrying the box away and emerging from the shop of
the accused.

The appeal was dismissed as it had no merit, and the accused was sentenced to six months
of rigorous imprisonment u/s 380 of the IPC and 1 year of rigorous imprisonment u/s
457 of the Act consecutively.

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 DISCOVERY OF FACT

[3.6] Conclusion:

In this case, as one can observe, the identical definition to fact discovered has been
provided. Therefore, in this case as well, the Golden Rule of Interpretation has been used.12
However, in this case, it is not only the mental fact that has been considered like in the
previous one. In this case, the stolen property of the complainant was found in a pond near
his field itself. A pond being an unusual place to hide stolen articles, the fact that the
accused was aware of the location is to be kept in mind. Since, it is not a common place to
be visited by anyone. Thus, in this case the place of the stolen property along with the
knowledge of the accused as to this place has to be considered together and not separately.
It is a plausible assumption that only someone who had acted in conspiracy with another
person(s), or had committed the theft himself or herself would be aware of this location, i.e.
a pond.

Therefore, the term fact discovered has not been restricted to the physical object found, i.e.
the box with the money as well as the clothes, it has also been interpreted to include the
place where it was found, i.e. the pond and the knowledge of the accused as to where the
box was kept too.

12
See Supra Note at 10.

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 DISCOVERY OF FACT

CHAPTER 04: MOHMED INAYATULLAH v. STATE OF

MAHARASHTRA13

[4.1] Introduction:

This case is an appeal by Special Leave from a Bombay High Court Judgement, wherein the
appellant was found guilty of theft and subsequently punished u/s 379 of the IPC. This case
deals specifically with the question of how much of a statement can be taken into evidence
by the Police, and also highlights how this provision can be misused by them in order to
wrongly build a case against the accused. It is therefore up to the courts to set right the scales
of justice in such cases of abuse of power.

[4.2] Facts of the Case:

1. That the Shed Superintendent at Haji Bunder, Bombay Port Trust had reported for
duty at 8 AM on the morning of 1st August, 1968.
2. That the boy who worked in the Canteen had come into his office at around 8:40 AM
and told him a car had entered the premises and had removed 3 small drums of
phosphorus pentaoxide which were lying with several other drums placed between
Shed A and the canteen.
3. That the Shed Superintendent ordered the gatekeeper, who was present in his office
at the time, to go and look after the matter.
4. That the gatekeeper informed him that before he could reach the gate the car had
already began to leave, however he had managed to note down the car number.
5. That the gatekeeper also stated that he shouted out to the driver in order to stop the
car, but the driver drove away at a fast speed.
6. That the Shed Superintendent was shown by the boy who worked in the canteen the
place the 3 drums were stolen from and subsequently the Shed Superintendent
lodged an F.I.R.
7. That the owner of the car was traced from the number noted down by the gatekeeper
and the accused and his driver were called down to the police station.

13
A.I.R. 1976 SCR (1) 715.

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 DISCOVERY OF FACT

8. That the accused during interrogation told the police officer he would take them to
the place where the drums were kept that he took from Haji Bunder on 1 st
August.
9. That the same drums that were stolen on 1st August were found in the place
described by the appellant labelled Phosphorus Pentaoxide.

[4.3] Contentions of the Appellant:

That the Court has misunderstood the statement of the appellant in the sense that merely a
statement by the accused stating that he knows the location of the drums, and the fact that the
drums were in fact found at that place is not conclusive evidence of the fact that he stole the
drums from Haji Bunder in the first place. Therefore, by way of twisting the statement of the
accused, they have allowed into evidence more than what is permissible u/s 27 of the Act.

[4.4] Issue:

Whether the admissible part of the statement of the accused coupled with the fact that he
was aware of the location of the stolen drums is sufficient to convict him of theft of the
same.

[4.5] Judgement:

As it has stated in the preceding chapter, fact discovered not only includes the object
found, but also the place at which it is found and the knowledge of the accused
regarding the place.

The Supreme Court then pointed out the fallacy of the High Court in the interpretation of the
statement given by the accused. The statement given clearly stated that the accused was
acquainted with 2 facts

He was aware of the location of the drums.

He was the one who took them from Haji Bunder on 1st August.

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 DISCOVERY OF FACT

The second fact could not be considered, as it is prohibited u/s 26 to admit a confession
made in police custody into evidence.

However, the High Court had twisted the first fact, which only stated that the accused was
aware of the current location of the drums to also mean that he himself had placed the
drums there. Since, the location where the stolen drums were found was one that could be
accessed by anyone (a warehouse), and the drums were not kept under lock and key, the
Supreme Court decided that it would be unfair to not give the accused the benefit of the
doubt. Hence, the appeal was allowed and the conviction was set aside.

[4.6] Conclusion:

On a detailed analysis of the abovementioned case law, it can be deciphered that it is the
Mischief Rule that has been applied as a rule of interpretation. The mischief rule was laid
down clearly in Heydons Case14, and considered 4 aspects

1. What was the Common Law before the Act

2. What was the defect or mischief the Common Law did not provide for
3. What remedy did the Parliament resolve by enactment of the Act
4. The reason of the remedy.15

Section 27 of the Indian Evidence Act was enacted in order to curb the torture inflicted
upon persons in police custody, a practice that was prevalent before the enactment of the
Indian Evidence Act. As a result of this torture, even false confessions could be extracted, for
the sole purpose of concluding a case. Thus, this provision sought to protect the rights of
the accused, so that only the portion that lead to the discovery of a fact would be admissible.

In this case, the accused clearly stated that he knew the current location of the drums. The
latter part of the statement wherein he admitted to stealing them was inadmissible in
evidence, as has already been stated. But, the High Court of Maharashtra construed it as
that he had placed the drums there, which is interpreting beyond what was stated by the
accused. But, the Supreme Court did not permit the violation of the rights of the accused,

14
(1584) 76 ER 637.
15
See Supra Note at 10, pp.274-275.

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and his conviction was subsequently set aside. Therefore, in my opinion, this judgement
declared by the Supreme Court was a just one, which interpreted the intent of the
Legislature, and the purpose for which this provision was enacted.

Thus, it can be said that the rule of purposive interpretation has also been applied, as it can be
applied in 2 cases

1. In accordance with the legislative purpose.

2. Applying a strained meaning where the literal one is not in accordance with the
legislative intent.16

In this scenario, the first case applies.

16
Tandon, M. and Tandon, R. (2014). Interpretation of Statutes. 11th ed. New Delhi: Allahabad Law Agency,
p.79.

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CHAPTER 05: CONCLUSION

[5.1] It has been stated above that Section 27 and 26 create 2 exceptions to a confession
being received by either the police officer or in police custody. In this project, focus has been
laid on section 27. Section 27 is an exception to sections 25 and 26, which is a statement,
cannot be received by either a police officer or in custody.

[5.2] Ever since colonial times, the Police Force in our country has been infamous for
forcing out confessions, even from innocent people. Indeed, presence of a person in police
custody means that they have been accused and are suspected of committing an offence,
however, India never was, neither is a police state. India as a sovereign recognises that even
accused persons have certain rights, and must be treated humanely. Therefore, we saw the
advent of this provision, because an environment that is known for notorious practices
cannot be so trusted as to believe that the techniques that were once used will not be
applied.

[5.3] However, in recent times, even accused persons have been trying to circumvent the
law, by contending that statements that were not in fact confessions were made in police
custody or to a police officer, so as to escape conviction. Also, when a fact is discovered by a
police officer owing to the interrogation of the accused, the same is admissible in evidence
u/s 27 of the Act, since it is not a confession, but directly leads to, or is linked to a discovery
that helps with the investigation of the case at hand. Accused persons allege many a time that
these facts discovered are actually confessions, and therefore are inadmissible.

[5.4] What the two sides the Police for whose mischief to suppress this provision was
enacted and the accused for whose protection this section was enacted but is now being
wrongfully utilised for the purposes of escaping conviction and taking back the statements
made under investigation, there is one thing in common the extent of Section 27 of the
Act has not been understood in the complete sense yet by these parties. There exist, for this
reason, a plethora of judgements on the subjects of the extent and applicability of this
provision, which has been laid down by the courts over the years.

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 DISCOVERY OF FACT

[5.5] In the first case, i.e. Mehboob Ali and Anr. v. State of Rajasthan17, the Supreme
Court went beyond its generic meaning of fact discovered that initially generally meant a
physical object being found.

(5.5.1) Before, fact discovered contained within its purview

Any physical or material object found as a direct result of the statement of the accused. It
is pertinent to note here that the discovery of the object so found has to be distinctly related to
the offence that has been committed. That is, there shall be no investigation by the police to
find out how this object found and the offence are connected, there shall be a clear nexus.

(5.5.2) A wide interpretation in the Mehboob Ali Case was applied by considering the
following in addition to the material object found

The mental knowledge of the accused. This means, that when the accused is aware
of a fact, but that fact does not lead to the discovery of a physical object per se, it
leads to the police finding out what is mentally (internally) known by the accused, and
is not tangible, that is, an object.
The place or location at which the object was so found, that is, whether it was an
ordinary one, which several people visited, or not. Also, the fact that the accused was
aware of this location of the object has to be considered.

Therefore, in the case of Mehboob Ali, it can be said that the interpretation of Section 27 was
construed widely because in recent times, there have been several instances where the
accused have tried to dodge the law when evidence has been taken u/s 27 and the same is
rightfully admissible in evidence. The reason being, of course, escaping conviction.

[5.6] In the second case, that is Udai Bhan v. State of Uttar Pradesh18, the accused
contended that his action of going into the pond and bringing out the stolen box, which was
the discovered fact in this case, was a confession made to the police officer and therefore
inadmissible. The location of the object so found which was a pond, was considered in this
case, which is not a usual place to hide stolen property, nor is it a place that someone who
did not commit or abet the theft would be aware of.

17
Crl.A. No. 1088 of 2010.
18
AIR 1962 SC 1116.

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 DISCOVERY OF FACT

The second ingredient of the wide interpretation was the place at which the object was
found, and the accused having knowledge of the location of the stolen articles. Since, the
accused having knowledge may or may not mean he committed the offence.

[5.7] The location of an object was also considered in the case of Mohmed Inayatullah v.
State of Maharashtra19, wherein the stolen property, that is, the fact discovered was found
in a place that was open to everyone (a warehouse), and secondly, the stolen property was
not kept under lock and key.

[5.8] In the first case, i.e. the pond, it being an unusual place and not a common one being
accessed, the Court held that the accused was in fact guilty as the uncommon location to hide
property was known to the accused, and that was considered.

In the second scenario, i.e. the place of the stolen drums, was a warehouse accessible by
everybody, and the drums were not even kept locked.

Thus, the Apex Court held that the guilty was accused in the first instance, due to his
knowledge of the uncommon place, but the accused was not convicted in the second case, the
location being a warehouse, since it would be possible that he only saw the drums there and
did not keep them. Thus, basically, giving the accused (in the second case) the benefit of the
doubt.

[5.9] In the opinion of the researcher, the three judgements that have been elucidated and
discussed herein have succeeded in the advancement of justice. In the first case, i.e. Mehboob
Ali, wherein in order to better serve the purpose of the provision, the Golden Rule of
Interpretation was applied so that the accused cannot escape the clutches of the law. Before
cases such as Udai Bhan and Mohmed Inayatullah, fact discovered was given a rather
narrow interpretation, and included only physical objects. But, in these cases the knowledge
of the accused with regards to the location of the object so found was also given
consideration. Thus, in the opinion of the researcher, the widened interpretation better
serves the purpose in recent times, where the law is continuously being circumvented.

19
AIR 1976 SCR (1) 715.

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