In Re: Krishna Pillai

Ramaswami, J.—This appeal is preferred against the conviction and sentence by the learned Sessions Judge of Kanyakumari in Sessions

Case No. 1 of 1959.

The facts of this case are within a brief compass. It is common ground that there have been bitter ill-feelings between the accused Krishna Pillai

and the deceased Velu Nadar over the leasing and enjoyment of palmyra trees standing on the southern plot of Chudukattuvilai and therefore we

need not re-set the details of this ill feeling set out by the learned Sessions Judge in paragraphs 3 and 4 of his judgment.

On 17th November 1958 at about 5 p.m., according to P.W. 1, son of the deceased, himself and the deceased as usual left their house for

tapping coconut trees. Then at about 8 p.m. when P.W. 1 was climbing trees in the garden adjoining the Chudukattuvilai, known as

Arappuravilakam, the deceased was climbing the trees in the southern half of Chudukattuvilai. Then P.W. 1 heard an exchange of hot words

between the deceased and accused. How the altercation arose was in this wise.

The deceased was on the top of the tree and the accused questioned him as to who was on the top of the tree and the deceased announced his

identity. Then the accused interrogated him as to with whose permission he was climbing the trees. The deceased replied that he need not ask for

anybody''s permission as ho (deceased) was pattomdar. The accused then stated that if he wanted to exercise his rights as pattomdar, he must pay

the pattom to him (accused). The deceased stated that he had paid portion of the pattom due for that year and has also paid the advance and

therefore he would pay the pattom only from next year onwards. The accused persisted that unless he was paid, the deceased could not climb the

trees in that garden. In the course of this altercation P.W. 1 heard the deceased cry that the accused had stabbed him. P.Ws. 3, 4, 7 and 8, who

were in the vicinity, hearing this galatta came there. Meanwhile, P.W. 1 got down from the tree on hearing the hot exchange of words. When P.W.

1 was 150 feet away from the scene, he heard the alarm of his father that the accused had stabbed him. P.W. 1 then saw the accused running with

the dagger, M.O. 5 in his hand towards Melavilai. On P.W. 1 obstructing the accused and asking him why he stabbed his father, the accused

brandished the dagger saying that P.W. 1 would also meet with the same fate as his father. Therefore, P.W. 1 got frightened and went behind a

palmyra tree. The accused ran towards his wife''s house, i.e., P.W. 5. This was witnessed by P.Ws. 3 and 4. P.W. 8 noticed only the accused

running towards his wife''s house. P.W. 7, who was climbing the trees in the adjoining Kattuvila, came there on hearing the cries and saw the

injured man being lifted by his son (P.W. 1) and held close to his chest. P.W. 6, the wife of the deceased, and her daughters (not examined) came

to the scene. Then the injured man was taken to his house and before he could be sent to the Hospital, he died. Information of this occurrence had

been given at the Arumana outpost and the Tiruvattar Police station. The Sub-Inspector of the Tiruvattar police station investigated the case and

sent the dead body for postmortem examination. P.W. 2 conducted the autopsy and found a stab injury near the neck which, in his opinion, was

necessarily fatal and could be caused by a weapon like M.O. 5 at the time and in the manner mentioned by the prosecution. The accused was

looked for but he was absconding. He was arrested by P.W. 10 at Trivandrum at 7-30 p.m. on 21st November 1958 and on the information

given by him M.O. 5 was recovered on 24th November 1959 from the top of a beam in the shop of D.W. 3 Ramakrishnan and the seizure was

duly recorded under a mahazar, Exhibit P-6.

The accused stated that his wife and her children were in possession of the properties in pursuance of a partition deed, even from the date of

partition. In spite of the deceased having agreed, in the presence of his father-in-law, to give sweet toddy on alternate days (called Akkani),

according to the varappanai arrangement, he did not do so. On the date of occurrence, P.W. 5''s son (through her first husband) informed the

accused, at the place where he was rolling beedies, that the deceased had not given their share of sweet toddy. After ascertaining from him that the

deceased had climbed the trees that morning also and gone away, he stated that he would look into it when he returned home from work. On his

way home, he had to cross the Chudukatuvilai. At that time, the deceased was climbing the tree allotted to D.W. 2. When he got down from that

tree, the accused asked him why he had not given the sweet toddy. The deceased threw chunam and asked him what business he (accused) had

there. The accused stepped aside with the stick marked as M.O. 1. The deceased beat him on his leg below the knee. The accused held M.O. 1,

but after snatching it, the deceased attempted to beat the accused on his head with it. Apprehending that he, the accused might loose his life, he

took the pen-knife (not M.O. 5) from his waist and stabbed the deceased. P.W. 1 came running then, shouting that the accused should be killed,

without knowing that the deceased had been stabbed by the accused. The accused became afraid and ran away. P.Ws. 3, 4 and 8 are the

relations of the deceased and, therefore, they are deposing falsely.

On the evidence on record, there cannot be the slightest doubt that the prosecution has brought home the offence to the accused beyond

reasonable doubt. The motive for the commission of the offence was the grievance felt by the accused that the deceased was persisting in climbing

trees without paying the pattom to him. P.W. 1 has heard the altercation between the deceased and the accused narrated above and in the course

of which, the accused had stabbed the deceased with M.O. 5. The cry of the deceased that he had been stabbed by the accused, had also been

heard by P.Ws. 3 and 4. P.W. 3 on going near the place of stabbing, had also seen the accused brandishing a dagger and threatening to stab P.W.

1 also if he obstructed him, and whereupon P.W. 1 went behind a palmyra tree, which, as already stated, is spoken to by P.W. 1. P.W. 4 also

speaks to his seeing the accused threatening P.W. 1 and P.W. 1 hiding himself behind a palmyra tree and the accused running away from the place

where the deceased was lying speechless with injuries. P.W. 6, the wife of the deceased, on hearing the cries of P.W. 1 from Chudukattuvilai,

went there with her daughters and learnt from P.W. 1, then and there, that the accused had stabbed the deceased. P.W. 7 who was climbing trees

in Kattuvila, south of Chudukattuvilai, came on hearing the cries of the deceased that he was stabbed by the accused and saw P.Ws. 1, 3 and 4

there and P.W. 6 and her daughters coming there. P.W. 8, who was tapping trees in Sundavilai, near Chudukattuvilai, corroborates P.W. 1 about

the altercation between the deceased and the accused and subsequently hearing the cry of the deceased that he had been stabbed by the accused

and his seeing the accused run towards the west and the injured man being removed to his house. He speaks to the other witnesses P.Ws. 1, 3 and

7 being present there. The accused has immediately absconded and could be arrested at Trivandrum and later, on the information given by him, the

weapon of offence M.O. 5 had been recovered.

The two pleas of defence raised on behalf of the accused in the lower Court and which were rightly rejected by the learned Sessions Judge,

were grave and sudden provocation and self-defence. In this case the plea of grave and sudden provocation will not apply, because it was the

accused who picked up quarrel with the deceased, as spoken to by P.W. 1 and secondly, the argumentativeness of the deceased setting up his

own point of view would certainly not constitute grave and sudden provocation. In fact, the first proviso to exception 1 of Section 300, Indian

Penal Code, lays down that

the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Turning to the plea of self-defence the version of the accused that the deceased beat him on the leg below the knee with the stick marked as

M.O. 1, and that on that account he took a penknife from his waist and stabbed the deceased which brought about his death, is not even

probabilised by the evidence. It is nothing more than an uncorroborated and untested statement of the accused from the dock. In fact it was not

even referred to by him in the committing Court, where the accused merely denied knowledge of the occurrence. On his being arrested, the

accused was sent to the doctor P.W. 2 as he (accused) complained of pain, apparently to put forward a plea of self-defence. But P.W. 2 was not

able to see any external injury. The wife of the accused, who turned hostile obligingly stated that she gave fomentation for the injury. This is found

to be an after-thought mentioned in the Sessions Court for the first time. Therefore, the learned Sessions Judge rightly held:

In the circumstances, I am unable to hold that the accused was exercising his right of private defence, either of person or property at the time he

stabbed the deceased.

The learned Advocate for the accused Mr. Namasivayam, puts forward the contention based on the recent decision of the Allahabad High

Court in Upadhyaya v. State 1959 A.L.J. 651, of the trial being vitiated by the reception of evidence u/s 27 of the Indian Evidence Act and which

he urges is void by reason of Article 14 of the Constitution of India.

The principle on which Section 27 of the Indian Evidence Act is based may be briefly set out as follows:-The broad ground for not admitting

confessions made under inducement, or to a police officer, or by persons whilst in custody, is the danger of admitting false confession. But the

necessity for the exclusion disappears in a case provided for by Section 27, when the truth of the confession is guaranteed by the discovery of facts

in consequence of the information given. It is this guarantee, afforded by the discovery of the property, for the correctness of the accused''s

statement, which is the ground of the admission of the exception to the general rule. The fact discovered shows that so much of the confession as

immediately relates to it is true, and voluntary : Queen-Empress v. Babu Lal I.L.R.(1884) All. 509 (F.B.), Queen-Empress v. Nana I.L.R(1889)

14 Bom. 260 (F.B.), Kotayya v. King-Emperor ILR [1948] Mad. 1 , Ramkishan Mithanlal Sharma Vs. The State of Bombay, Taylor''s Evidence

Act, Sections 902 and 903.

But not only are confessions excluded when obtained by means of improper inducements, but also the acts of the prisoner done under the influence

of such inducements unless confirmed by the finding of the property; for the same influence which might produce a groundless confession, might

produce groundless conduct.

See also 3 Russell on crimes (485 Stephen Digest Article 22; Phipson Evidence, ninth edition 272, Roscoe, Criminal Evidence, sixteenth

edition 61).

Section 150 of Act XXV of 1861, as amended by Act VIII of 1869, was re-embodied in the 27th Section of the Evidence Act with slight

alterations of language. The only alteration on which any stress can be laid is the omission of the word ''or''. Section 150 runs:

accused of any offence or in the custody of a police officer.

The term accused means one who is charged with a crime Queen Empress v. Mutasaddi Lal I.L.R.(1898) All. 107 Sheddin v. King-Emperor

6 S.C. 262. The term custody means to the lexicographer'' care, keeping, charge (M.L.J. Law Lexicon) p. 270.

In regard to the interpretation placed thereon there are two schools of legal thought. One school considers, and this is emphasised by the

majority decision in Upadhyaya v. State [1959] A.L.J. 651, that the operation of the proviso 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 : Queen-Empress v. Babu Lal

I.L.R.(1884) All. 509 (F.B.). It would appear, therefore, that in order to bring a case of discovery within the scope of Section 27, it is necessary

that the party making the statement should be both accused and in custody at such time and that (a) a confession obtained by inducement under the

circumstances mentioned in Section 24; or (b) a confession made to a police officer, will not be affected by the operation of the 27th section when

the person confessing is at the time, (a) neither accused nor in custody, (b) in custody, but not accused, (c) accused but not in custody-

notwithstanding any discovery in consequence thereof, (d) a confession made to any person other than a police officer by a person who was at the

time in the latter''s custody but not accused, is inadmissible, even though it may lead to discovery, unless indeed it was made in the immediate

presence of a Magistrate. But the arrest and custody need not be in respect of the offence under investigation.

See AIR 1931 278 (Lahore) , Chetu v. Emperor AIR 1948 Lab. 69, Queen-Empress v. Babu Lal I.L.R.(1884) All. 509 (F.B.), Deonandan

Dusadh Vs. Emperor, .

The second school of thought, is represented by Chief Justice Monir, in his Principles and Digest of the Law of Evidence, 4th edition, volume I,

page 183, who expresses a doubt, about the correctness of this interpretation. He sees no reason why a statement of an accused person not in the

custody of a police officer, contained in a confession made to a police officer, should not be receivable. He referred to the observation of Rankin,

C.J., in Durlav Namasudra v. Emperor I.L.R (1931) Cal. 1040 that the section is paradoxical and thought that the Legislature might have used the

expression person accused of any offence in the custody of a Police officer'' as a compendious mode of describing the persons whose confessions

are excluded under Sections 24, 25 and 26 and that the object of the Section 27 was to declare that parts of the confessions which are excluded

under any of these three sections become admissible if they are confirmed by subsequent facts. Then he proceeded to observe that since Sections

24, 25 and 26 are themselves an exception to Section 27, Section 27 cannot possibly mean that the statement of an accused person confirmed by

subsequent facts cannot be proved unless he was in custody at the time of making it. If this interpretation of the section by Monir is correct, there is

no classification of accused persons into two classes (1) of those in custody of a police officer and (2) of those not in custody of a police officer

and no question arises of infringement of Article 14 of the Constitution.

It can be noted that there is a comma between the words ''person accused of any offence'' and the words ''in the custody of a police officer''.

These two sets of words respectively may be taken to refer to persons accused of any offence in Section 25, and a person in the custody of a

police officer in Section 26. In other words, the two clauses ''person accused of any offence'' and ''in custody of a police officer'' may be read

distributively as referring respectively to the persons referred to in Sections 25 and 26. If Section 27 is read in this manner, there ran be no

question of the admissibility being restricted only to the confession of a person in the custody of a police officer. Thus viewed, the law embodied in

Section 27 cannot be stated to make a discrimination in favour of persons who are not in police custody and against persons who are in police

custody.

But we shall proceed to discuss the point raised on the foot of the former interpretation that the plain language of Section 27 is that the person

giving information must be an accused and that he must be in the custody of a police officer. But what is ''custody of a police officer?''

The term ''custody'' used in Section 27 has been the subject-matter of several decided cases and the trend of modern decisions is that it is not

confined to formal arrest. They have been collected in the following two extracts from (i) Woodroffs and Ameer Ali''s Law of Evidence in India,

tenth edition, edited by Malik, C.J. (1957), volume I, page 407 and (ii) in AIR commentaries on the Indian Evidence Act, volume II, Section 27,

note 12 as follows:

(i) When a person states that he has done certain acts which amount to an offence, he accuses himself of committing the offence; and if he makes

the statement to a police officer, as such, he submits to the custody of the officer within the meaning of Section 46(1), Code of Criminal Procedure,

and is then in the custody of a police officer within the meaning of Section 27, Evidence Act:

Santokhi Beldar and Another Vs. Emperor, Legal Remembrancer v. Lalit Mohan Singh Roy I.L.R (1921) Cal. 167, Bharosa Ramdayal v.

Emperor AIR 1941 Nag. 86.

For the purposes of Section 27, Evidence Act, the word ''custody'' does not necessarily mean detention or confinement; but submission to custody

by word or action u/s 46(1), Code of Criminal Procedure may be taken to amount to custody; (1) AIR 1931 278 (Lahore) Legal Remembrancer

v. Lalit Mohan Singh Roy I.L.R (1921) Cal. 167. The word ''custody'' in Section 26 or 27, Evidence Act, does not mean formal custody, but

includes such state of affairs in which the accused can be said to have come into the hands of a police officer, of can be said to have been under

some sort of surveillance or restriction and cannot break away from the company of the police officer and get away. Mt. Maharani Vs. Emperor,

Chhotey Lal Vs. State of Uttar Pradesh, , relying on Mt. Maharani Vs. Emperor, Wirsa Singh Inder Singh v. The State AIR 1955 N.U.C. Pepsu

In re Chandra Pallayya AIR 1943 Mad. 315.

(ii) The word ''custody'' does not only mean custody after formal arrest but also includes such state of affairs in which the accused can be said to

have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction Mt. Maharani Vs. Emperor,

Chhotey Lal Vs. State of Uttar Pradesh, Jamama v. Emperor AIR 1936 Nag. 200; AIR 1934 150 (Lahore) and Sudam Chandra Bag Vs.

Emperor,

Person suspected of being in possession of cocaine-Police officer interviewing for a long time and walking with him to the place pointed out-

Though person was arrested only after discovery of cocaine he was in custody when he made the statement AIR 1933 516 (Lahore) . Detention

of the accused as a suspect at the time of his giving information is sufficient to make the information admissible u/s 27 : AIR 1932 609 (Lahore) .

The word ''custody'' for the purpose of Section 27 would also include submission to custody by word or action u/s 46(1) AIR 1931 278

(Lahore) , Santokhi Beldar and Another Vs. Emperor, , Bharosa Ramdayal v. Emperor AIR 1941 Nag. 86.

As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of clear and unmistakable evidence

to the contrary, no longer at liberty and is therefore in custody within the meaning of Sections 26 and 27, Maung Lay v. Emperor AIR 1924 Rang.

Where at the time the accused made a statement the police had arrived on the spot, the custody of the police should be held to have

commenced Choda Atchenah (1867) 3 M.H.C.R. 318.

Two decisions may be specifically referred to, In M.J. Mt. Jamunia Partap Lohar v. Emperor AIR 1936 Nag. 200, Grille and Gruer, JJ.,

observed that even if the accused in the case had not been formally arrested at the time when she gave the information, she was for all practical

purposes in police custody, and that Section 27, therefore applied. In Ram Babu Jadav and Others Vs. Emperor, the accused was in hospital, in

judicial custody, and the police officer examined him with the permission of Court. The Patna High Court observed that Section 27 could well be

applied to a case of that kind, because actual police custody was then prevailing.

Subsequent to the decisions referred to above, we have further decisions. In Akmat Ali Vs. The State of Tripura, , it was held that the

''custody'' contemplated by Section 26 does not necessarily mean a formal arrest and what is necessary is that at the time of making the confession

or giving information, the accused should be in the hands of a police officer, i.e., not free to depart at his own free will. In In Re: Man Singh Parma

Teli, , it was held that for the purpose of Section 27, the word ''custody'' does not necessarily mean detention or confinement and that submission

to custody by any action or by arrest is also custody within the meaning of that section. In a Bench decision of this Court, In re Ramachandran

(Referred Trial No. 65 of 1959), to which one of us was a party, it was held after a review of the relevant decisions:

... We see no reason at all why the expression relating to police custody occurring in Section 27 of the Indian Evidence Act, should be rigidly

interpreted. After all, what the spirit of the language employed appears to imply is that, where a person submits himself to the custody of a police

officer, with the consciousness that temporarily at least he is in such custody, or under such control, whether formally authorised in some manner or

otherwise, the information given by hira to such officer, leading to the discovery of a relevant fact, may be proved within the scope of the section.

To limit the meaning of the expression further, by imposing conditions as to the time of arrest, the existence or absence of a formal magisterial order

authorising police custody or interrogation, etc., does not seem to bo justified either by the context, or by any inherent feature of the scheme of

Sections 25 and 26, to which Section 27 clearly constitutes a proviso or exception. Please see the decision of the Supreme Court in Ramkishan

Mithanlal Sharma v. The State of Bombay [1955] 1 S.C.E. 903.

Therefore, the term ''custody'' used in Section 27 has to be interpreted within wide limits. In practice it would be found that in almost all the

criminal cases in which information given to the police officer is sought to be introduced under the provisions of Section 27, it would have been the

information given by persons in custody within the wide limits of the interpretation set out above. Therefore, the category of persons referred to by

the majority Judges in the Allahabad decision referred to above, viz., the category of persons not in police custody giving information and which

information is sought to be introduced u/s 27, will be practically non-existent and render the discussion about the application of Article 14 of the

Constitution clearly academical.

The majority decision in Upadhyaya v. State [1959] A.L.J. 651, seems to hold that ''A'' may be hanged on the basis of the statement made by

him u/s 27 of the Evidence Act, while in police custody, whereas ''B'' a co-accused who made a similar statement will be allowed to escape

because he was not in police custody, when he made the statement. It is difficult to accept this view, for, all that Section 27 does is only to render

certain evidence admissible; it is but a link in the chain of the prosecution case. It does not thereby seal the fate of the accused against whom it is

admitted. What is made admissible is but a part of information relating to the existence of corpus delicti or an incriminating article in a certain place;

it is this part that relates distinctly to the fact discovered. Now, this part of information in its very nature therefore is only an admission of a relevant

fact and not a fact in issue. Unless the offence consists wholly or partly of keeping an article in a certain place or knowing that an article is placed in

a certain place, the mere statement that an article is kept by the accused or is known to him to be in a particular place, will not amount to a

confession of a fact in issue. In practice however one does not come across but rarely a case in which the aid of Section 27 may have to be

invoked in order to prove a fact in issue.

In practice after the decision in Kotayya v. King-Emperor ILR [1948] Mad. 1 the extended use of Section 27 has been severely curtailed and

in fact it is even felt that the section has been emasculated. The Law Commission of India in their fourteenth report, volume II at page 748, has

gone to the extent suggesting a relaxation, viz., that as an experimental measure in Presidency Towns or places of like importance where

investigations, are conducted by superior police officers of the status of Deputy Superintendent of Police and above, confessions made to them

should be admissible in evidence and Sections 25 and 26 of the Evidence Act should be amended accordingly and that in such cases there should

be no scope for the application of Section 27 and which they suggest should be suitably amended. It is a moot point, having regard to our fairly

considerable experience, whether this suggested relaxation will be in the best interests of the administration of justice. In other words, the

information got u/s 27 is nothing more than a pointer to the investigating officers that they are proceeding on the right lines and secondly, so far as

Courts are concerned, it affords in practice corroboration for the other substantive evidence in the case. To give one illustration, in the case of a

theft, stolen properties soon after the commission of the theft might be recovered on the information given by the accused. But before that

information becomes useful evidence on which a conviction can be rested making use of the presumption in illustration (a) to Section 114 of the

Evidence Act, the other requirements have got to be fulfilled. Firstly, the identity of the properties stolen and recovered has got to be established;

secondly, the possession brought home by the recovery on the information given by the accused has got to be established as exclusive possession;

thirdly, if the accused gives a reasonable and plausible explanation for the legitimate possession of the articles recovered, that would be a good

ground for his acquittal. It is well-settled principle of criminal jurisprudence based on the Anglo-Saxon system of criminal law that the accused is

not bound to prove beyond reasonable doubt the defence set up by him and his task has been approximated to that of a Defendant in a civil suit.

Then Courts have also been enjoined before acting upon the information of the accused leading to discovery of the articles in a case of this nature

to guard themseves, against four possibilities, viz., (a) the complainant might have been persuaded by the police to state in the first information

report that property which in fact was not stolen had been stolen and to hand over such property to the police to be used in fabricating recoveries

from the accused persons; (b) the police might have obtained property similar to the stolen property from the complainant or some one else and

used it for the purpose of fabricating the recoveries. In considering this hypothesis, regard must necessarily be had, to the nature and value of the

property recovered; (c) the police might have suppressed some of the stolen property recovered from an accused person and utilised it in inventing

a recovery from another accused person; and (d) the property might have been recovered from a third party and used by the police in one of the

impugned recoveries Uma Kishana and Others Vs. State of Ajmer, We are mentioning these details to show how circumscribed is the use of the

information given by the accused leading to discoveries and recoveries as the basis for resting a conviction.

The next question to which we shall turn our attention is whether Section 27 of the Evidence Act is hit by Article 14 of the Constitution of

India.

Article 14 may be related to the preamble to the Constitution directly. The preamble declares as one of the objects of the Constitution the

securing to all the citizens equality of status and of opportunity. This article is the first of a series which embodies the ideal of equality expressed in

the preamble. This article expresses the general rule while the succeeding Articles 15, 16, 17 and 18 enact particular applications of the rule. This

article may be treated as the residuary provision on the subject. Article 15 is aimed at the abolition of disabilities and inequalities founded upon

differences of religion, race, caste, sex and place of birth. The article must be taken with Article 17 which formally abolishes untouchability and

forbids its practice in any form. Article 16 guarantees equality of opportunity in matters of public employment. Article 18 is aimed against the

coming into existence of a class of ''title-holders''. The article embodies a concept which is familiar to practically all modern systems of

jurisprudence. But reference may be made here to the English conception of the rule of law and to the Fourteenth Amendment of the Constitution

of the United States of America as forming the main inspiration behind the article.

The principle of the rule of law or the supremacy of law is one which Dicey Dicey : Introduction to the Study of the Law of the Constitution,

1939 edition, pages 202 to 203 claimed as the speciality of the English Law. For understanding the conception better it will be useful to refer to

Dicey''s analysis of the concept. According to him the supremacy or the rule of law which is a characteristic of the English Constitution generally

includes under one expression at least three distinct, though kindred conceptions. These are:

(i) No man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal

manner before the ordinary Courts of the land. In this sense the rule of law is contrasted with every system of Government based on the exercise

by persons in authority of wide, arbitrary or discretionary powers of constraint.

(ii) In England, not only no man is above the law, but (what is a different thing) every man, whatever be his rank and condition, is subject to the

ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.

(iii) The general principles of the Constitution (e.g., the right to personal liberty or tho right of public meeting) are in England the result of judicial

decisions determining the rights of private persons in particular cases brought before the Courts.

Section 1 of the Fourteenth Amendment of the Constitution of the United States of America states:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection

of the laws.

We have now to construe the phrases ''equality before the law'' and ''equal protection of the laws '' guaranteed by Article 14 of the

Constitution.

''Equality before the law'' is an expression borrowed from the English Common Law, while the expression'' equal protection of the laws'' can

be traced to the Fourteenth Amendment of the American Constitution. While the phrase ''equality before the law'' finds a place in almost all written

constitutions of the world, the phrase ''equal protection of the laws'' does not occur in so many words in the said Constitutions. Both these

expressions have, however, been used in the Universal Declaration of Human Rights, and find a place in Article 14 of the Indian Constitution.

Both these expressions aim at establishing what is called ''equality of status'' in the preamble of the Indian Constitution. But they do not convey

the same meaning. While ''equality before the law'' is a somewhat negative concept implying the absence of any special privilege in favour of any

individual and the equal subjection of all classes to the ordinary law, ''equal protection of the laws'' is a more positive concept implying equality of

treatment in equal circumstances. There is, however, one dominant idea common to both the expression, that is, equal justice. In substance,

however, the two expressions mean one and the same thing.

Equality does not mean absolute equality of men, which is a physical impossibility. Nor does it mean that things which are different shall be

treated as though they were the same. What it does mean is the denial of any special privilege by reason of birth, creed or the like, and also equal

subjection of all individuals and classes to the ordinary law of the land. ''One of the most fundamental social interests is that law should be uniform

and impartial'' said Cordozo: The Growth of the Law, page 37. There must be nothing in the action of the State that savours of prejudice or favour

or even arbitrary whim or fitfulness. It means that every man''s civil liberty is the same with that of others-that all men are equal before the law in

rights, privileges and legal capacities. Professor Jennings in his Law and the Constitution (third edition, page 49) says:

Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike. The

right to sue and be sued, to prosecute and be prosecuted, for the same kind of action should be the same for all citizens of full ago and

understanding, and without distinction of race, religion, wealth, social status, or political influence.

It merely means that one man should not merely be used as instrument for satisfying the needs of another and that the good things of life like

wealth, comfort, power and influence should not be monopolised by the small minority who constitute the privileged class whether on the basis of

birth, religion or an any other basis. The right to equality has nothing to do with the law of status. In short, equality before law means, that as

between two persons similarly circumstanced the law shall not discriminate in favour of one against another, and the State shall not make a law to

the detriment of one person with a view to favour another. It means that the same law shall govern persons similarly circumstanced. It involves the

concept of a rule or principle which applies universally over a given field. It means that among equals the law should be equal and should be equally

administered and that the like should be treated alike. The marks of justice according to law in the modern sense are generality and equality. It

implies that all rights of the same kind are equal as between different individuals.

The expression ''equal protection of the laws'' means the right to equal treatment in similar circumstances, both in the privileges conferred and in

the liabilities imposed by the laws. The rule was designed to prevent any person or class from being singled out as a special subject of hostile or

discriminatory legislation. The principle is to secure every person against intentional and arbitrary discrimination whether occasioned by express

terms of the statute or by its improper execution through directly constituted agents. It prohibits the Legislature to select a person, natural or

artificial, and impose upon him or it, burdens and liabilities which are not cast upon others similarly situated.

The equal protection clause is, however, not susceptible of exact delimitation. No definite rule, which automatically will solve the question in

specific instances, can be formulated. Certain general principles, however, have been established in the light of which the cases as they arise are to

be considered. It may generally be said that the equal protection clause means that the rights of all persons under similar circumstances must rest

upon the same rule, and applies to the exercise of all the powers of the State which can affect the individual or his property. So long as the law

applies to all alike, the requirements of equal protection are met. The equal protection of laws is secured if the laws operate on all alike and do not

subject the individual to an arbitrary exercise of the powers of the Government. It has been said that ''the equal protection of the law is a pledge of

the protection of equal laws''.

It does not prevent a State from adjusting its legislation to differences in situation or forbid classification in that connection, but it does require

that the classification be not arbitrary, but based on a real and substantial difference, having a reasonable relation to the subject of the particular

legislation. Besides, lack of equal protection is to be found in the existence of an invidious discrimination, not in the mere possibility that there will

be like or similar cases which will be treated more leniently. The Legislature is entitled to hit the evil that exists and is not bound to take account of

new and hypothetical inequalities that may come into existence as time passes or as conditions change. Inequalities of minor importance do not

render a law invalid on the ground of infringing equal protection. In other words, in order to support the constitutional validity of its regulation, the

Legislature is not bound to extend it to all cases which it might possibly reach. It may proceed cautiously, step by step, and if an evil is specially

experienced in a particular branch of business, it is not necessary that the prohibition should be couched in all embracing terms. If the law

presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. In

short, mere production of inequality is not enough to hold that equal protection has been denied. For, every selection of persons for regulation,

produces inequality, in some degree. The inequality produced in order to encounter the challenge of the Constitution, must be actually and palpably

unreasonable and arbitrary. There must in short be intentional or purposeful discrimination between particular persons or classes.

In other words, the Court will not adjudicate upon the validity of the legislation solely because the Counsel for the complainant ingeniously

united with arguments of inseparability, the suggestion that in unusual hypothetical situations the statute may encroach upon the constitutional rights.

We do not sit as a super-legislature or a censor. To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and

oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require rough

accommodations, illogical, it may be, and unscientific. Delusive exactness is a source of fallacy throughout the law and a classification having some

reasonable basis cannot be struck down merely because it has not met with mathematical nicety or because in practice it results in some inequality.

Courts should be very cautious in condemning what Legislatures have approved. It is but a decent respect due to the wisdom, the integrity and the

patriotism of the legislative body by which any law is passed to preserve in favour of its validity, until its violation of the Constitution is proved

beyond all reasonable doubts by the person who impeaches the law.

These principles will be found expounded in the following leading treatises of American Constitutional Law.

Willis: Constitutional Law of the United States, chapter XX, page 572 and following; Rottscliaeffer American Constitutional Law (Hornbook

Series) chapter 14, page 439 and following; Willoughby on the Constitution of the United States, second edition, volume 3, chapter CIV, page

1919 and following; Justice William Douglas of Supreme Court of U.S.A.- From Marshall to Mukherjea (Studies in American and Indian

Constitutional Law), chapter XI, page 308 and following; Cooley : and 817.

The following decisions arising under Article 14 of the Constitution of India and the concepts equality before the law and equal protection of

laws in the United States of America may be studied with profit:

Hayes v. Missouri 113 U.S. 27; Yick Wo v. Hopkins 118 U.S. 356; Lindsey v. Natural Carboni Gas Co. 220 U.S. 61; Central Lumber Co. v.

South Dekota 226 U.S. 157; Metropolis Theater Co. v. Chicago 228 U.S. 61; Keokee Consol Coke Co. v. Taylor 234 U.S. 224; Barbier v.

Conolly 113 U.S. 27; Truax v. Corrigan 257 U.S. 312; Power Manufacturing Co. v. Saunders 274 U.S. 490; Tigner v. Texas 310 U.S. 141;

Morey v. Doud 353 U.S. 457.

Indian Decisions. Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, ; The State of Bombay and Another Vs. F.N. Balsara, The

State of West Bengal Vs. Anwar Ali Sarkar, Kathi Raning Rawat Vs. The State of Saurashtra, ; Ameerunnissa Begum and Others Vs. Mahboob

Begum and Others, Sakhwant Ali v. The State of Orissa [1955] S.C.R. 1004; Budhan Choudhry and Others Vs. The State of Bihar, In Re: The

Kerala Education Bill, 1957. Reference Under Article 143(1) of The Constitution of India, ; Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar

and Others, and Moti Das Vs. S.P. Sahi, The Special Officer In Charge of Hindu Religious Trusts and Others,

Before examining whether in the light of the principles set out above, Section 27 of the Evidence Act can be said to be repugnant to Article 14

of the Constitution, we have to point out that there is a Bench decision of the Allahabad High Court in Brijesh Kumar and Another Vs. State,

which held that Section 27 of the Evidence Act does not contravene Article 14 of the Constitution. The Full Bench of the Allahabad High Court

did not approve the reasoning of this Bench decision.

The pertinent questions that arise for consideration are those posited by Desai, J., at page 659 of Upadhyaya v. State [1959] A.L.J. 651 as

follows:

Is there in the law contained in Section 27, an element of intentional or purposeful discrimination? Has the law been enacted in a spirit of prejudice

and favouritism? Is there a clear and hostile discrimination between accused in custody and accused not in custody? Is there a clearly and actually

arbitrary and unreasonable discrimination? Is the discrimination the result of caprice or so unreasonable and extravagant as to be a mere arbitrary

mandate? Is there any intentional violation of the essential principle of practical uniformity?

The answer to these questions is a categorical negative and one cannot find any element of hostility towards accused persons in custody on the

part of the Legislature. There is no element of purposeful or intentional discrimination between accused in custody and accused not in custody. The

section is not found to display a spirit of prejudice and favouritism as between the accused in custody and the accused not in custody. There is no

abuse of the power of classification which undoubtedly vests in it. There is no apparent denial of equality before the law in the provisions of Section

27 of the Evidence Act. The section is based upon the wholesome principle of law based on the Anglo-American system of criminal jurisprudence.

The Law Commission of India in their fourteenth report, volume II at page 746, points out the contrast between the Indian and English Police

forces, and observe that the rules laid down in the Indian Evidence Act are based upon the recognition of the imperfections of the police system in

this country. High sense of fairness and justice which alone would enable confessions made to police officers admissible in evidence have not come

to permeate the entire ranks of the police. Therefore, the Commission found, to make a confession made to such officials admissible in evidence,

would be fraught with dangerous consequences. Therefore, Section 27 of the Evidence Act, which has been held to be a proviso to Sections 25

and 26, Indian Evidence Act, has been enacted, because, when the information given by the accused is confirmed by consequent facts discovered,

there is a prima facie guarantee of truth to enable such information to be acted upon. On account of its confirmation by subsequent facts, it is

received in evidence. Thus, Section 27 has been enacted to advance the cause of justice and, therefore, it cannot be struck down on the mere

ground that accused persons who are not in custody and whom, as we have already pointed out in so far as the practical working of Section 27 of

the Evidence Act is concerned would be like the proverbial snakes in Iceland, more advantageously placed. It would be a case of unwarranted

interference and striking down a useful piece of legislation, the grounds being nothing more than that Section 27 has not been made with

mathematical nicety or delusive exactness or has resulted in some inequality or an unusual hypothetical situation has not been covered or a

meticulous adjustment has not been made, in order to ensure a delusive exactness. On the other hand this statute has stood the test of time and no

one has ever thought of manufacturing a grievance that the section is not couched in all embracing terms and that the doctrinaire requirement has

not been fulfilled. To strike down the very useful provision u/s 27 of the Evidence Act on the ground of this doctrinaire requirement would very well

be a case of cutting off the nose to spite the face. In fact to quote Bentham Cited by Prof. Glanvile Williams. The proof of guilt Hanly Lectures (P.

51) if all the criminals of every class in India had assembled and framed a system after their own wishes, is not this Section 27 the very first which

they would have abolished for their security? Innocence claims the right of speaking, as guilt invokes the privilege of silence. To invoke Article 14

of the Constitution in such circumstances would be like the proverbial Father of the Evil citing the scriptures, and the Constitution of India instead

of enshrining cur cherished Fundamental Rights, could very well become in the language of Wigmore, ''the hiding place of crime''.

The net result of this analysis is that Section 27, Indian Evidence Act as already held by one of us (Somasundaram, J,) in Criminal Revision

Case No. 614 of 1959 Alagiri Naidu and Anr. v. The State (judgment on 10th December 1959) does not create an unjustifiable discrimination

between accused persons in custody and accused persons out of custody and in that way does not offend Article 14 of the Constitution of India.

The conviction and sentence by the learned Sessions Judge are confirmed and this appeal is dismissed.