The Doctrine of Discovery of Fact is predicated upon the principle that if any fact is uncovered during a search conducted on the basis of information obtained from a detainee, such a discovery serves as a corroboration of the veracity of the information provided by the detainee. This information may be either exculpatory or inculpatory in nature, but once it leads to the discovery of a fact, it attains the status of reliable information.
It should be noted that the Discovery of Fact doctrine is distinct from the recovery of property, though the latter may be a component of the former. In a scenario where an individual, A, visits a police station prior to the filing of an FIR, without being arrested or taken into custody, and requests a discovery of fact with a police officer, the question arises as to whether this action is valid under Section 27 of the Indian Evidence Act.
On this matter, there exists a divergence of opinion. The Bombay High Court has held that such an action would constitute a deemed custody, while the Punjab High Court has taken a different stance. In the case of Sarabjit Singh v. State of Punjab, the court determined that a true custody must be established, and that merely visiting a police station does not qualify as a deemed custody.
Section 27: 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.
This section of the law is based on the principle that if the accused voluntarily leads to the discovery of a fact that only he has knowledge of, that fact may be presumed to be true. However, for Section 27 to be applicable, the following conditions must be met:
(1) the discovery of the fact must be in accordance with the information provided by the accused,
(2) the accused must be in police custody, and
(3) the information must relate specifically to the fact discovered.
In some cases, the information provided by the accused may amount to a confession made before a police officer. However, this is not a mere verbal confession, but rather, it is directive information that is known only to the accused and which leads to the discovery of a fact. It is incorrect to equate the discovery of a fact with the recovery of an object. Rather, it is the discovery of the fact that a particular item or material has been found.
For example, if an accused person states that ‘he is willing to produce the knife with which he killed the victim’, that part of the statement would be inadmissible under Section 25 of the law. However, the statement that ‘he can produce a knife would be relevant as evidence’.
In the case of P. Kottaya v. Emperor 1946, it was specifically noted that Section 27 of the law pertains to the discovery of a fact. Therefore, when an accused person states that he will produce a knife that is concealed on the roof of his house, it is not the discovery of the knife itself but rather the discovery of the fact that a knife is concealed in the house of the accused.
Section 27 of the Indian Evidence Act, 1872 deals with the admissibility of the evidence obtained as a result of information given by an accused person while in police custody. Here are the key points to remember about Section 27:
- The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminating has been made admissible in evidence by the section, unless compulsion has been used in which case it will be an infringement of Article 20(3) of the Constitution.
- Section 27 controls Sections 24, 25, and 26 and is the proviso to all these sections.
- It is not obligatory on the part of the investigating officer to get the signature of the accused on a confessional statement recorded under section 27.
- If at the time when the confession was made the person was not the accused then section 27 will have no operation.
- The word “custody” in Section 27 would mean a formal custody and not a deemed custody. Recovery underneath section 27 can only be made once by the accused. We cannot let co-accused go for the same discovery after that it has been discovered. One cannot discover a fact again and again.
- Whenever we discover any aspect, the first thing which we see is if the recovery is natural. Recovery of currency notes from a well could be called a natural discovery.
- The manner in which the alleged recovery is made also creates a lot of doubt in our mind. The recovery of the material object should be genuine and not staged.