Proviso to Section 23(2), BSA

Provided 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 a 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.

Location

Section 27, a free-standing section

A proviso to Section 23(2)

Wording

—

Carried forward unchanged

Effect of the change

Its relationship to Sections 25 and 26 had to be worked out by construction

The drafting makes explicit that it is an exception carved out of the prohibition, and it must be construed as an exception rather than as an independent enabling provision

📖 Mohd. Inayatullah v. State of Maharashtra, (1976) 1 SCC 828

Facts: The accused, charged with theft of chemical drums, stated that he would tell the place of deposit of the three drums which he had removed from a particular place. The drums were then recovered.

Held: The Court analysed the provision into its component conditions. The first is the discovery of a fact in consequence of information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of receiving the information the accused must be in police custody. The last is that so much of the information as relates distinctly to the fact thereby discovered is admissible; the word 'distinctly' means directly, indubitably, strictly and unmistakably. The portion stating that the accused had removed the drums from a particular place was held inadmissible, since it did not relate distinctly to the fact discovered.

Ratio: The leading modern analysis, and the authority on the meaning of 'distinctly'.

1. A fact is discovered

Something previously unknown to the police is found

The article was already in police possession, or the place was already known, or the recovery had already been made

2. The discovery is deposed to

A witness — ordinarily the investigating officer, supported by independent seizure witnesses — deposes to the discovery

The seizure witnesses resile, leaving only the officer's testimony

3. Information received from the accused

It must be proved that the accused gave the information, and what he said

No memorandum was prepared; the words are not reproduced; the information is attributed to several accused jointly

4. The accused was in police custody

Custody at the time the information was given, formal or otherwise

Rarely disputed, since the provision is invoked precisely where custody existed

5. The discovery was in consequence of the information

A causal connection between the words and the finding

The recovery was effected independently and the statement was recorded afterwards to support it

6. Only so much as relates distinctly

The admissible portion must be severed from the rest

The whole statement is placed on record, including the confession of the offence

⚠ The two things that must be proved together

The provision requires both the information and the discovery, and each without the other is worthless. A proved statement followed by no discovery is simply a custodial statement, excluded by Section 23(2). A discovery unconnected with any information is a recovery like any other, provable on its own footing but carrying none of the significance the proviso attaches to it. The causal link between the two is what the provision rests on, and it is where the defence directs its attack.

📖 Pulukuri Kottaya v. Emperor, AIR 1947 PC 67

Held: The extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. 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 that fact. Information as to past user, or the past history, of the object produced is not related to its discovery.

The classic illustration: where the accused says 'I will produce a knife concealed in the roof of my house with which I stabbed A', the whole is not admissible. The words 'with which I stabbed A' do not relate to the discovery of the knife in the house; they relate to its past use, and are inadmissible.

Ratio: The foundational construction of the provision, applied without variation to the proviso to Section 23(2).

📖 State of Maharashtra v. Damu Gopinath Shinde, (2000) 6 SCC 269

Held: The 'fact discovered' envisaged in the provision embraces the place from which the object was produced, the knowledge of the accused as to it, and the object itself. The decision in Pulukuri Kottaya is the most quoted authority on the subject and its interpretation continues to hold the field. The discovery of a fact may include the discovery that the accused had knowledge of a particular fact, and where the discovery is of such a mental element it must equally satisfy the requirement of a causal connection with the information.

Ratio: The fact discovered comprises three elements — the object, the place, and the knowledge of the accused as to the place.

The object

That the article exists and is in the condition found

The place

Where it was concealed

The knowledge of the accused as to the place

The element of real evidentiary significance. It is what connects the accused to the article, and it is what the discovery confirms

⚠ The discovery confirms knowledge, not guilt

That the accused knew where a weapon lay is consistent with his having used it, but equally with his having seen it concealed, or having been told of it, or having concealed it for another. The discovery establishes a link in the chain and nothing more. This is precisely why the provision admits only the portion leading to the discovery: the confirmation extends no further than the confirming event.

📖 Prabhu v. State of Uttar Pradesh, AIR 1963 SC 1113

Held: Where the information given by the accused led to the discovery of bloodstained clothes and a weapon, the portion of the statement leading to the discovery was admissible, but the accompanying assertion by the accused that the weapon was the one used in the commission of the offence was not. Self-incriminatory statements and narrative details given by the accused which do not lead to the discovery of any new fact must be excluded from evidence.

Ratio: The admissible portion is severable, and the court must sever it.

'I will show the place where the knife is hidden'

Yes

Relates distinctly to the discovery and to the accused's knowledge of the place

'The knife is buried under the neem tree behind my house'

Yes

Identifies the place from which the object is produced

'I will take you to the field where I threw the ornaments'

Yes, as to the place and the knowledge

The place and the knowledge are both part of the fact discovered

'with which I stabbed A'

No

Past use of the object; not related to its discovery

'which I took from the house of the deceased'

No

Past history of the object

'after I killed him I concealed the body there'

The confession no; the portion identifying the place yes

The two are severable, and only the latter leads to the discovery

'I hid it there because I was afraid of being caught'

No as to the reason

The motive for concealment is not part of the fact discovered

📖 Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119

Held: Where a first information report is lodged by the accused himself and amounts to a confession, the whole of it is inadmissible. A confessional statement cannot be split up so as to admit the portions that are not directly self-incriminating; the ban applies to the confession as a whole, including the parts describing motive, preparation, opportunity and conduct. The only portion that may be proved is that which falls within the discovery provision.

Ratio: The rule against splitting a confession and the rule requiring severance under the proviso operate in different directions and must not be confused. A confession cannot be split to save its favourable parts; it can be split only to extract the portion protected by the proviso.

The problem

A confession made in custody may have been extracted, and neither its truth nor its freedom can be assumed

The confirming event

Something previously unknown to the police is found in consequence of what the accused said. It is an objective occurrence, and it is not within the power of the investigating agency to fabricate

What is confirmed

That the accused had knowledge of the place or the object. The discovery vouches for the accuracy of that much of the information, whatever the circumstances in which it was given

How far the confirmation extends

Only to the fact discovered. It confirms nothing about the past use or history of the object, and nothing about the commission of the offence

Statutory expression

The words 'so much of such information as relates distinctly to the fact thereby discovered'

Why the words 'whether it amounts to a confession or not'

The doctrine operates on the reliability of the information, not on its character. Whether the words constitute a confession is immaterial once the discovery has confirmed them

📖 State of Uttar Pradesh v. Deoman Upadhyaya, AIR 1960 SC 1125

Held: The provision was challenged as violating Article 14, on the ground that it discriminates between an accused in the custody of a police officer and one who is not, since the information of the former may be proved while that of the latter is protected. A majority of the Court upheld the provision, holding that persons in custody and persons not in custody do not stand on the same footing, and that the classification bears a rational relation to the object of the provision. The Court explained that the section proceeds on the footing that where the information is confirmed by the discovery of a fact, the taint attaching to a custodial statement is removed to that extent.

Ratio: The constitutional validity of the discovery provision, and a statement of the reasoning on which it rests.

📖 A.N. Venkatesh v. State of Karnataka, (2005) 7 SCC 714

Held: Where the accused, pursuant to information given by them, led the police and the witnesses to the place where the dead body was concealed and pointed it out, the conduct of the accused in doing so falls within Section 8 of the Indian Evidence Act, now Section 6 of the Adhiniyam, and is admissible irrespective of whether the statement accompanying it satisfies the requirements of the discovery provision.

Ratio: The conduct of pointing out is admissible independently of the proviso.

The disclosure memorandum

A record of what the accused said, prepared at the time, in his words, attested by independent witnesses

Prepared afterwards; the words are paraphrased; only police witnesses attest it

Independent witnesses

Persons of the locality who witness the disclosure and the recovery

Stock witnesses used repeatedly by the same police station; or the witnesses resile at trial

The place of recovery

A place within the exclusive knowledge or access of the accused

An open field, a public place, or a room accessible to many, which defeats the inference of exclusive knowledge

Sealing at the spot

The article sealed immediately, with the seal described and the specimen preserved

Not sealed at the spot; the seal is not described; the specimen is unavailable

Chain of custody

An unbroken record of the movement of the sealed parcel from seizure to the forensic laboratory

Gaps in the malkhana register; the parcel is unaccounted for during an interval

Forensic connection

An opinion connecting the article to the offence — the weapon to the injuries, the stains to the blood group

The weapon is recovered but never examined, or the report is inconclusive

Audio-video record

The search and seizure recorded under Section 105 of the BNSS, 2023

Not recorded, or recorded but not proved as an electronic record under Sections 57, 61 and 63

⚠ Joint or simultaneous disclosures

A disclosure attributed to several accused simultaneously, leading to a single recovery, is of doubtful value. The provision requires that the information be received from a person accused of an offence, and where a single statement is attributed to two or three accused together, it becomes impossible to say which of them had the knowledge that the discovery confirms. The evidentiary significance of the discovery lies in the exclusive knowledge of one person, and a joint disclosure destroys precisely that feature.

Provision

Sections 22 and 23

Proviso to Section 23(2)

Section 6(2)

What is admitted

The statement, where admissible; nothing where excluded

So much of the information as relates distinctly to the fact discovered

The act of leading and pointing out; no words are proved

Must it be a confession?

By definition, yes

No — 'whether it amounts to a confession or not'

No statement is involved at all

Requires a discovery?

No

Yes

No, though the conduct is far stronger where something is found

Requires custody?

Section 23(2) applies where the maker is in custody

Yes

No

What it establishes

The offence, or the facts constituting it

Knowledge of the place or the object

The same

Severability

A confession cannot be split to admit its favourable parts

The admissible portion must be severed

Not applicable

📖 Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116

Held: The circumstances from which the conclusion of guilt is drawn must be fully established, and the facts must be established and not merely 'may be' established; they must be consistent only with the hypothesis of guilt; they must be of a conclusive nature and tendency; they must exclude every possible hypothesis except the one to be proved; and there must be a chain of evidence so complete as to leave no reasonable ground for a conclusion consistent with innocence.

Application to a discovery: The discovery must itself be fully established — the disclosure, the seizure, the sealing, the custody and the forensic connection. It must be consistent only with guilt, which requires that the place should not have been accessible to others. And it must form part of a complete chain, since knowledge of where an article lies is not proof that the accused used it.

Confession under Sections 22, 23 and 24

The prohibition of which the proviso is an exception

Voluntary and Involuntary Confession

Section 22, and the tests of voluntariness

Recovery as Circumstantial Evidence

The discovery treated as a circumstance in a circumstantial case

Conduct of the Accused as Circumstantial Evidence

The alternative route under Section 6(2)

Chain of Circumstances and Missing Links

The gap between knowledge of a place and authorship of the offence

Section 39, BSA

Expert opinion, by which the article recovered is connected to the offence

Sections 57, 61 and 63 and the Schedule, BSA

Proof of the audio-video record of the search and seizure

Section 105, BNSS, 2023

Audio-video recording of search and seizure

Article 20(3), Constitution of India

Testimonial compulsion, and the treatment of material discovered through a voluntary test in Selvi