Rajesh and Another v. The State of MP : A Patently Erroneous Interpretation Of Section 27 Of Evidence Act By Supreme Court

C O N T E N T SSl. Such insensitivity by the companion Judges has resulted in a grave travesty of Justice by setting a bad precedent with regard to “recovery evidence” falling under Section 27 of the Evidence Act, Hereafter, it is open to any lawyer in any part of the country to successfully argue even before a Magistrate that the recovery evidence should be eschewed from consideration since the person concerned was yet to be arrested by the Police without which he cannot be said to be in “police custody” and that since an FIR had not been registered against him, he cannot be said to be a “person accused of an offence” within the meaning of Section 27 of the Evidence Act. Again in para 15 of Pandurang Kalu Patil v. State of Maharashtra AIR 2002 SC 733 = 2 SCC 490 – K. T. Thomas, S. N. Phukan – JJ, it was held that the expression “fact discovered” in Section 27 was certainly not the “gun recovered” but the fact that “A2 had concealed the “gun” behind the old house under a heap of wood” and “the knowledge of A2 regarding the said place of concealment as revealed to the police.” NOTES BY THE AUTHOR: The judicial indiscipline committed by the Division Bench of the Bombay High Court in venturing to disagree with the ratio in Pulukuri Kottaya which had become the “locus classicus”, was commented upon by the Supreme Court by observing that the Division Bench was violating the principle laid down by Chief Justice M.C. Even though the “authorship of concealment” may not be a condition precedent to bring the disclosure statement of the accused within the ambit of Section 27 of the Evidence Act as held in Ajayan@Baby v. State of Kerala 2011 KLT 8 – J. Chelameswar – CJ, Thomas P. Joseph, P. R. Ramachandra Menon, the fact that it was the accused himself who had hidden the object thereby becoming the author of concealment, goes a long way to connect him with the offence. The very fact that the interdict under Section 162 Cr.P.C against the user of any statement made by a person to a police officer during the course of investigation is expressly taken away by Section 162 Cr.P.C in the case of a recovery falling under Section 27 of the Evidence Act, itself shows that the police officer should be able to depose before Court the “fact” disclosed by the accused resulting in the recovery of the incriminating article.