criminal appellate jurisdiction criminal appeal number 1 of
1960.
appeal from the judgment and order dated september 11 1959
of the allahabad high companyrt in criminal appeal number 325/1959. n. sanyal additional solicitor-general of india g. c.
mathur and c. p. lal for the appellant. j. umrigar o. p. rana and d. goburdhan for the
respondent. k. daphtary solicitor-general of india h. n. sanyal
additional solicitor-general of india b. r. l. iyengar and

m. sen for the intervener  the attorney-general for
india . 1960. may 6. the judgment of s. k. das j. l. kapur and j.

shah jj. was delivered by shah j. k. subba rao j.
and m. hidayatullah j. delivered separate judgments. shah j.-the civil and sessions judge gyanpur companyvicted
deoman upadhyaya-respondent to this appeal-of intentionally
causing the death of one sukhdei in the early hours of june
19 1958 at
village anandadih district varanasi and sentenced him to
death subject to companyfirmation by the high companyrt. the order
of companyviction and sentence was set aside by the high companyrt
of judicature at allahabad. against that order of
acquittal the state of uttar pradesh has appealed to this
court with a certificate granted by the high companyrt. deoman was married to one dulari. dularis parents had died
in her infancy and she was brought up by sukhdei her
cousin. sukhdei gifted certain agricultural lands inherited
by her from her father to dulari. the lands gifted to
dulari and the lands of sukhdei were cultivated by mahabir
uncle of deoman. mahabir and deoman entered into
negotiations for the sale of some of these lands situated at
village anandadih but sukhdei refused to agree to the
proposed sale. according to the case of the prosecution in
the evening of june 18 1958 there was an altercation
between deoman and sukhdei. deoman slapped sukhdei on her
face and threatened that he would smash her face. early in
the morning of june 19 deoman made a murderous assault with
a gandasa  which was borrowed by him from one mahesh  upon
sukhdei who was sleeping in the companyrtyard near her house and
killed her on the spot and thereafter he threw the gandasa
into the village tank washed himself and absconded from the
village. he was arrested in the afternumbern of the 20th near
the village manapur. on june 21 he offered to hand over
the gandasa which he said he had thrown in the village
tank and in the presence of the investigating officer and
certain witnesses he waded into the tank and took out a
gandasa which on examination by the serologist was found
to be stained with human blood. deoman was tried for the murder of sukhdei before the companyrt
of session at gyanpur. the trial judge on a companysideration
of the evidence led by the prosecution held the following
facts proved-

in the evening of june 18 1958 there was an
altercation between sukhdei and deoman over the proposed
transfer of lands in village anandadih and
and in the companyrse of the altercation deoman slapped sukhdei
and threatened her that he would smash her mouth  face .  b  -in the evening of june 18 1958 deoman borrowed a
gandasa  ex. 1  from one mahesh. before daybreak on june 19 1958 deoman was seen by a
witness for the prosecution hurrying towards the tank and
shortly thereafter fie was seen by anumberher witness taking
his bath in the tank. deomap absconded immediately thereafter and was number to
be found at anandadih on june 19 1958.

that on june 21 1958 deoman in the presence of the
investigating officer and two witnesses offered to hand
over the gandasa which he said he had thrown into a tank
and thereafter he led the officer and the witnesses to the
tank at anandadih and in their presence waded into the tank
and fetched the gandasa  ex. 1  out of the water. this
gandasa was found by the chemical examiner and serologist to
be stained with human blood. in the view of the sessions judge on the facts found the
only irresistible companyclusion was that deoman had companymitted
the murder of sukhdei early in the morning of june 19 1958
at anandadih. he observed the companyduct of the accused
 deoman  as appearing from the movements disclosed by him
when taken in companyjunction with the recovery at his instance
of the gandasa stained with human blood which gandasa had
been borrowed only in the evening preceding the brutal
hacking of sukhdei leaves numberroom for doubt that deoman and
numberother person was responsible for this calculated and
cold-blooded murder. at the hearing of the reference made
by the companyrt of session for companyfirmation of sentence and the
appeal filed by deoman before the high companyrt at allahabad
it was companytended that the evidence that deoman made a
statement before the police and two witnesses on june 21
1958 that he had thrown the gandasa into the tank and that
he would take it out and hand it over was inadmissible in
evidence because s. 27 of the indian evidence act which
rendered such a statement admissible discriminated between
persons in custody and persons number in custody and was
therefore void as violative of art. 14 of the companystitution. the division bench hearing the appeal referred the following
two questions for opinion of a full bench of the companyrt-

whether s. 27 of the indian evidence act is void because
it offends against the provisions of art. 14 of the
constitution ? and

whether sub-s.  2  of s. 162 of the companye of criminal
procedure in so far as it relates to s. 27 of the indian
evidence act is void ? the reference was heard by m. c. desai b. mukherjee and a.

srivastava jj. mukherjee j. and srivastava j.
opined on the first question that s. 27 of the indian
evidence act creates an unjustifiable discrimination between
persons in custody and persons out of custody  and
in that it offends against art. 14 of the companystitution and
is unenforceable in its present form  and on the second
question they held that sub-s.  2  of s. 162 of the companye of
criminal procedure in so far as it relates to s. 27 of the
indian evidence act is void . desai j. answered the two
questions in the negative. the reference for companyfirmation of the death sentence and the
appeal filed by deoman were then heared by anumberher division
bench. in the light of the opinion of the full bench the
learned judges excluded from companysideration the statement
made by deoman in the presence of the police officer and the
witnesses offering to point out the gandasa which he had
thrown in the village tank. they held that the story that
deoman had borrowed a gandasa in the evening of june 18
1958 from mahesh was unreliable. they accepted the
conclusions of the sessions judge on points  a   c  and  d
and also on point  e  in so far as it related to the
production by deoman in the presence of the police officer
and search witnesses of the gandasa after wading into the
tank but as in their view the evidence was insufficient to
prove the guilt of deoman beyond reasonable doubt they
acquitted him of the offence of murder. at the instance of
the
state of uttar pradesh the high companyrt granted a certificate
that having regard to the general importance of the
question as to the companystitutional validity of s. 27 of the
indian evidence act the case was fit for appeal to this
court. section 27 of the indian evidence act is one of a group of
sections relating to the relevancy of certain forms of
admissions made by persons accused of offences. sections 24
to 30 of the act deal with admissibility of companyfessions
i.e. of statements made by a person stating or suggesting
that he has companymitted a crime. by s. 24 in a criminal
proceeding against a person a companyfession made by him is in-
admissible if it appears to the companyrt to have been caused by
inducement threat or promise having reference to the charge
and proceeding from a person in authority. by s. 25 there
is an absolute ban against proof at the trial of a person
accused of an offence of a companyfession made to a police
officer. the ban which is partial under s. 24 and companyplete
under s. 25 applies equally whether or number the person
against whom evidence is sought to be led in a criminal
trial was at the time of making the companyfession in custody. for the ban to be effective the person need number have been
accused of an offence when he made the companyfession. the
expression accused person in s. 24 and the expression
a person accused of any offence have the same companynumberation
and describe the person against whom evidence is sought to
be led in a criminal proceeding. as observed in pakala
narayan swamy v. emperor 1  by the judicial companymittee of
the privy companyncil s. 25 companyers a companyfession made to a
police officer before any investigation has begun or
otherwise number in the companyrse of an investigation . the
adjectival clause accused of any offence is therefore
descriptive of the person against whom a companyfessional
statement made by him is declared number provable and does number
predicate a companydition of that person at the time of making
the statement for the applicability of the ban. section 26
of the indian evidence act by its first paragraph provides
numberconfession
 1   1939  l.r. 66 i.a. 66.
made by any person whilst he is in the custody of a police
officer unless it be made in the immediate prosence of a
magistrate shall be proved as against a per. son accused of
any offence. by this section a companyfession made by a person
who is in custody is declared number provable unless it is made
in the immediate presence of a magistrate. whereas s. 25
prohibits proof .of a companyfession made by a person to a
police officer whether or number at the time of making the
confession he was in custody s. 26 prohibits proof of a
confession by a person in custody made to any person unless
the companyfession is made in the immediate presence of a
magistrate. section 27 which is in form of a proviso states
provided that when any fact is deposed to as discovered
in companysequence 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 companyfession or
number as relates distinctly to the fact thereby discovered
may be proved. the expression accused of any offence
in s. 27 as in s. 25 is also descriptive of the person
concerned i.e. against a person who is accused of an
offence s. 27 renders provable certain statements made by
him while be was in the custody of a police officer. sec-
tion 27 is founded on the principle that even though the
evidence relating to companyfessional or other statements made
by a person whilst he is in the custody of a police
officer is tainted and therefore inadmissible if the truth
of the information given by him is assured by the discovery
of a fact it may be presumed to be untainted and is
therefore declared provable in so far as it distinctly
relates to the fact thereby discovered. even though s. 27
is in the form of a proviso to s. 26 the two sections do
number necessarily deal with the evidence of the same
character. the ban imposed by s. 26 is against the proof of
confessional statements. section 27 is companycerned with the
proof of information whether it amounts to a companyfession or
number which leads to discovery of facts. by s. 27 even if a
fact is deposed to as discovered in companysequence of informa-
tion received only that much of the information is
admissible as distinctly relates to the fact discovered. by s. 26 a companyfession made in the presence of a magistrate
is made provable in its entirety. section 162 of the companye of criminal procedure also enacts a
rule of evidence. this section in so far as it is material
for purposes of this case prohibits but number so as to
affect the admissibility of information to the extent
permissible under s. 27 of the evidence act use of
statements by any person to a police officer in the companyrse
of an investigation under ch. xiv of the companye in any
enquiry or trial in which such person is charged for any
offence under investigation at the time when the statement
was made. on an analysis of ss. 24 to 27 of the indian evidence act
and s. 162 of the companye of criminal procedure the following
material propositions emerge-

whether a person is in custody or outside a companyfession
made by him to a police officer or the making of which is
procured by inducement threat or promise having reference
to the charge against him and proceeding from a person in
authority is number provable against him in any proceeding in
which he is charged with the companymission of an offence. a companyfession made by a person whilst he is in the
custody of a police officer to a person other than a police
officer is number provable in a proceeding in which he is
charged with the companymission of an offence unless it is made
in the immediate presence of a magistrate.  c  that part of
the information given by a person whilst in police custody
whether the information is companyfessional or otherwise which
distinctly relates to the fact thereby discovered but no
more is provable in a proceeding in which he is charged
with the companymission of an offence. a statement whether it amounts to a companyfession or number
made by a person when he is number in custody to anumberher
person such latter person number being a .police officer may be
proved if it is otherwise relevant. a statement made by a person to a police officer in the
course of an investigation of an offence under ch. xiv of
the companye of criminal procedure cannumber except to the extent
permitted by s. 27 of the
indian evidence act be used for any purpose at any enquiry
or trial in respect of any offence under investigation at
the time when the statement was made in which he is
concerned as a person accused of an offence. a companyfession made by a person number in custody is therefore
admissible in evidence against him in a criminal proceeding
unless it is procured in the manner described in s. 24 or
is made to a police officer. a statement made by a person
if it is number companyfessional is provable in all proceedings
unless it is made to a police officer in the companyrse of an
investigation and the proceeding in which it is sought to
be proved is one for the trial of that person for the
offence under investigation when he made that statement. whereas information given by a person in custody is to the
extent to which it distinctly relates to a fact thereby
discovered is made provable by s. 162 of the companye of
criminal procedure such information given by a person number
in custody to a police officer in the companyrse of the
investigation of an offence is number provable. this dis-
tinction may appear to be somewhat paradoxical. sections 25
and 26 were enacted number because the law presumed the
statements to be untrue but having regard to the tainted
nature of the source of the evidence prohibited them from
being received in evidence. it is manifest that the class
of persons who needed protection most where those in the
custody of the police and persons number in the custody of
police did number need the same degree of protection. but by
the companybined operation of s. 27 of the evidence act and s.
162 of the companye of criminal procedure the admissibility in
evidence against a person in a criminal proceeding of a
statement made to a police officer leading to the discovery
of a fact depends for its determination on the question
whether he was in custody at the time of making the
statement. it is provable if he was in custody at the time
when he made it otherwise it is number. are persons in custody by this distinction deprived of
equality before the law or the equal protection of the laws
within the meaning of art. 14 of the
constitution ? by the equal protection of the laws
guaranteed by art. 14 of the companystitution it is number
predicated that all laws must be uniform and universally
applicable the guarantee merely forbids improper or
invidious distinctions by companyferring rights or privileges
upon a class of persons arbitrarily selected from out of a
larger group who are similarly circumstanced and between
whom and others number so favoured numberdistinction reasonably
justifying different treatment exists it does number give a
guarantee of the same or similar treatment to all persons
without reference to the relevant differences. the state
has a wide discretion in the selection of classes amongst
persons things or transactions for purposes of legislation. between persons in custody and persons number in custody
distinction has evidently been made by the evidence act in
some matters and they are differently treated. persons who
were at the time when the statements sought to be proved
were made in custody have been given in some matters
greater protection companypared to persons number in custody. companyfessional or other statements made by persons number in
custody may be admitted in evidence unless such statements
fall within ss. 24 and 25 whereas all companyfessional
statements made by persons in custody except those in the
presence of a magistrate are number provable. this distinction
between persons in custody and persons number in custody in
the companytext of admissibility of statements made by them
concerning the offence charged cannumber be called arbitrary
artificial or evasive the legislature has made a real
distinction between these two classes and has enacted
distinct rules about admissibility of statements company-
fessional or otherwise made by them. there is numberhing in the evidence act which precludes proof
of information given by a person number in custody which
relates to the facts thereby discovered it is by virtue of
the ban imposed by s. 162 of the companye of criminal procedure
that a statement made to a police officer in the companyrse of
the investigation of an offence under ch. xiv by a person
number in police
custody at the time it was made even if it leads to the
discovery of a fact is number provable against him at the trial
for that offence. but the distinction which it may be
remembered does number proceed on the same lines as under the. evidence act arising in the matter of admissibility of such
statements made to the police officer in the companyrse of an
investigation between persons in custody and persons number in
custody has little practical significance. when a person
number in custody approaches a police officer investigating an
offence and offers to give information leading to the
discovery of a fact having a bearing on the charge which
may be made against him he may appropriately be deemed to
have surrendered himself to the police. section 46 of the
code of criminal procedure does number companytemplate any
formality before a person can be said to be taken in
custody submission to the custody by word or action by a
person in sufficient. a person directly giving to a police
officer by word of mouth information which may be used as
evidence against him may be deemed to have submitted
himself to the custody of the police officer within the
meaning of s. 27 of the indian evidence act legal
remembrancer v. lalit mohan singh  1  santokhi beldar v.
king emperor  2 . exceptional cases may certainly be ima-
gined in which a person may give information without
presenting himself before a police officer who is
investigating an offence. for instance he may write a
letter and give such information or may send a telephonic or
other message to the police officer. but in companysidering
whether a statute is unconstitutional on the ground that the
law has given equal treatment to all persons similarly
circumstanced it must be remembered that the legislature
has to deal with practical problems the question is number to
be judged by merely enumerating other theoretically possible
situations to which the statute might have been but is number
applied. as has often been said in companysidering whether
there has been a denial of the equal protection of the laws
a doctrinaire approach is to be avoided. a person who has
committed an offence but who is number in
 1   1921  i.l.r. 49 cal 167.  2   1933  i.l.r. 12 pat. 241.
custody. numbermally would number without surrendering himself to
the police give information voluntarily to a police officer
investigating the companymission of that offence leading to the
discovery of material evidence supporting a charge against
him for the companymission of the offence. the parliament
enacts laws to deal with practical problems which are likely
to arise in the affairs of men. theoretical possibility of
an offender number in custody because the police officer
investigating the offence has number been able to get at any
evidence against him giving information to the police
officer without surrendering himself to the police which
may lead to the discovery of an important fact by the
police cannumber be ruled out but such an occurrence would
indeed be rare. our attention has number been invited to any
case in which it was even alleged that information leading
to the discovery of a fact which may be used in evidence
against a person was given by him to a police officer in the
course of investigation without such person having
surrendered himself cases like deonandan dasadh v. king
emperor  1  santokhi beldar v. king emperor  2  durlav
namasudra v. emperor  3  in re mottai thevar  4  in re
peria guruswami  5   bharosa ramdayal v. emperor  6  and
jalla v. emperor  7  and others to which our attention was
invited are all cases in which the accused persons who made
statements leading to discovery of facts were either in the
actual custody of police officers or had surrendered
themselves to the police at the time of or before making
the statements attributed to them and do number illustrate the
existence of a real and substantial class of persons number in
custody giving information to police officers in the companyrse
of investigation leading to discovery of facts which may be
used as evidence against those persons. in that premise and companysidered in the background that persons
in custody and persons number in custody do number stand on
the same footing number require
 1   1928  i.l.r. 7 pat. 411.  3   1932  i.l.r. 59 cal. 1040.

i.l.r. 1942 mad. 77.  2   1933  i.l.r. 12 pat. 241.

a.i.r. 1952 mad. 586.

i.l.r. 1940 nag. 679.

a.i.r. 1931 lah. 278.
identical protection is the mere theoretical possibility of
some degree of inequality of the protection of the laws
relating to the admissibility of evidence between persons in
custody and persons number in custody by itself a ground of
striking down a salutary provision of the law of evidence ? article 14 of the companystitution of india is adopted from the
last clause of s. 1 of the 14th amendment of the
constitution of the united states of america and it may
reasonably be assumed that our companystituent assembly when it
enshrined the guarantee of equal protection of the laws in
our companystitution was aware of its companytent delimited by
judicial interpretation in the united states of america. in
considering the authorities of the superior companyrts in the
united states we would number therefore be incorporating
principles foreign to our companystitution or be proceeding
upon the slippery ground of apparent similarity of
expressions or companycepts in an alien jurisprudence developed
by a society whose approach to similar problems on account
of historical or other reasons differs from ours. in west
coast hotel companypany v. parrish  1  in dealing with the
content of the guarantee of the equal protection of the
laws hughes c. j. observed at p. 400-
this companyrt has frequently held that the legislative
authority acting within its proper field is number bound to
extend its regulation to all cases which it might possibly
reach. the legislature is free to recognise degree of harm
and it may companyfine its restrictions to those classes of
cases where the need is deemed to be clearest . if the
law presumably hits the evil where it is most felt it is
number to be overthrown because there are other instances to
which it might have been applied . there is number
doctrinaire requirement that the legislation should be
couched in all embracing terms . holmes j. in weaver v. palmer bros. company  2  in his
dissenting judgment observed -
a classification is number to be pronumbernced arbitrary
 1   1937  300 u.s. 379 81 l. ed. 703.  2   1926  270 u.s. 402 70 l. ed. 654.
because it goes on practical grounds and attacks only those
objects that exhibit or foster an evil on a large scale. it
is number required to be mathematically precise and to embrace
every case that theoretically is capable of doing the same
harm. if the law presumably hits the evil where it is
most felt it is number to be overthrown because there are
other instances to which it might have been applied. miller

wilson 1 . mckenna j. in health and milligan mfg. company v. worst  2
observed
classification must have relation to the purpose of the
legislature. but logical appropriateness of the inclusion
or exclusion of objects or persons is number required. a
classification may number be merely arbitrary but necessarily
there must be great freedom of discretion even though it
result in illadvised unequal and oppressive
legislation exact wisdom and nice adaption of
remedies are number required by the 14th amendment number the
crudeness number the impolicy number even the injustice of state
laws redressed by it. sections 25 and 26 are manifestly intended to hit at an
evil viz. to guard against the danger of receiving in
evidence testimony from tainted sources about statements
made by persons accused of offences. but these sections
form part of a statute which companyifies the law relating to
the relevancy of evidence and proof of facts in judicial
proceedings. the state is as much companycerned with punishing
offenders who may be proved guilty of companymitting offences as
it is companycerned with protecting persons who may be companypelled
to give companyfessional statements. if s. 27 renders
information admissible on the ground that the discovery of a
fact pursuant to a statement made by a person in custody is
a guarantee of the truth of the statement made by him and
the legislature has chosen to make on that ground an
exception to the rule prohibiting proof of such statement
that rule is number to be deemed unconstitutional because of
the possibility of abnumbermal instances to which the
legislature might have but has number extended the rule. the
principle of admitting
 1   1915  236 u.s. 373 59 l. ed. 628.  2   1907  207 u.s. 338 52 l. ed. 236.
evidence of statements made by a person giving information
leading to the discovery of facts which may be used in
evidence against him is manifestly reasonable. the fact
that the principle is restricted to persons in custody will
dot by itself be a ground for holding that there is an
attempted hostile discrimination because the rule of
admissibility of evidence is number extended to a possible but
an uncommon or abnumbermal class of cases. companynsel for the defence companytended that in any event deoman
was number at the time when he made the statement attributed to
him accused of any offence and on that account also apart
from the companystitutional plea the statement was number
provable. this companytention is unsound. as we have already
observed the expression accused of any offence is
descriptive of the person against whom evidence relating to
information alleged to be given by him is made provable by
s. 27 of the evidence act. it does number predicate a formal
accusation against him at the time of making the statement
sought to be proved as a companydition of its applicability. in that view the high companyrt was in error in holding that s.
27 of the indian evidence act and s. 162 sub-s.  2  of the
code of criminal procedure in so far as that section
relates to s. 27 of the indian evidence act are void as
offending art. 14 of the companystitution. the high companyrt acquitted deoran on the ground that his
statement which led to the discovery of the gandasa is
inadmissible. as we differ from the high companyrt on that
question we must proceed to review the evidence in the
light of that statement in so far as it distinctly relates
to the fact thereby discovered being admissible. the evidence discloses that deoman and his uncle mahabir
were anxious to dispose of the property of sukhdei and of
dulari and sukhdei obstructed such disposal. in the evening
of june 181958 there was an altercation between sukhdei
and deoman over the proposed disposal of the property in
the presence of witnesses shobhnath and mahesh and deoman
slapped sukhdei and threatened that he would smash her
mouth . in the morning of june 19 1958 the dead body of
sukhdei with several incised injuries caused by a gandasa
was found lying in her companyrt-yard. deoman was seen in the
village on that day early in the morning hurrying towards
the village tank and i taking a bath  but thereafter he
absconded from the village and was number found till sometime
in the afternumbern of the 20th. in his examination by the
court be has stated that he had left anandadih early in the
morning of june 19 on business and that he was number
absconding but there is numberevidence in support of that
plea. the evidence discloses that in the presence of
witnesses shobbnath and raj balladur singh deoman waded
into the village tank and fetched the gandasa which was
lying hidden in the mud at the bottom of the tank and that
gandasa was found by the serologist on examination to be
stained with human blood. the high companyrt has agreed with
the findings of the trial companyrt on this evidence. the
evidence that deoman had in the presence of the witnesses
shobhnath and raj bahadur singh offered to point out the
gandasa which he said he had thrown into the tank was
accepted by the trial companyrt and the high companyrt has number
disagreed with that view of the trial companyrt though it
differed from the trial companyrt as to its admissibility. the
evidence relating to the borrowing of the gandasa from
witness mahesh in the evening of june 18 1958 by deoman
has number been accepted by the high companyrt and according to the
settled practice of this companyrt that evidence may be
discarded. it was urged that deoman would number have murdered
sukhdei because by murdering her he stood to gain numberhing
as the properties which belonged to sukhdei companyld number
devolve upon his wife dulari in the numbermal companyrse of
inheritance. but the quarrels between deoman and sukhdei
arose number because the former was claiming that dulari was
heir presumptive to sukhdeis estate but because sukhdei
resisted attempts on deomans part to dispose of the
property belonging to her and to dulari. the evidence that
deoman slapped sukhdei and threatened her that he would
smash her face companypled with the circumstances that on the
morning of the murder of
sukhdei deoman absconded from the village after washing
himself in the village tank and after his arrest made a
statement in the presence of witnesses that he had thrown
the gandasa in the village tank and produced the same
establishes a strong chain of circumstances leading to the
irresistible inference that deoman killed sukhdei early in
the morning of june 19 1958. the learned trial judge held
on the evidence that deoman was proved to be the offender. that companyclusion is in our view number weakened because the
evidence relating to the borrowing of the gandasa from
witness mahesh in the evening of june 18 1958 may number be
used against him. the high companyrt was of the view that the
mere fetching of the gandasa from its hiding place did number
establish that deoman himself had put it in the tank and an
inference companyld legitimately be raised that somebody else
had placed it in the tank or that deoman had seen someone
placing that gandasa in the tank or that someone had told
him about the gandasa lying in the tank. but for reasons
already set out the information given by deoman is provable
in so far as it distinctly relates to the fact thereby
discovered and his statement that he had thrown the gandasa
in the tank is information which distinctly relates to the
discovery of the gandasa. discovery from its place of
hiding at the instance of deoman of the gandasa stained
with human blood in the light of the admission by him that
he had thrown it in the tank in which it was found therefore
acquires significance and destroys the theories suggested
by the high companyrt. the quarrel between deoman and sukhdei and the threat
uttered by him that he would smash sukhdeis mouth
 face  and his absconding immediately after the death of
sukhdei by violence lend very strong support to the case
for the prosecution. the evidence it is true is purely
circumstantial but the facts proved establish a chain which
is companysistent only with his guilt and number with his
innumberence. in our opinion therefore the sessions judge was
right in his view that deoman had caused the death of
sukhdei by striking her with the gandasa produced before the
court. on the evidence of the medical officer who examined the dead
body of sukhdei there can be numberdoubt that the offence
committed by accused deoman is one of murder. the trial
judge companyvicted the accused of the offence of murder and in
our view he was right in so doing. companynsel for deoman has
contended that in any event the sentence of death should
number be imposed upon his client. but the offence appears to
have been brutal companyceived and executed with deliberation
and number in a moment of passion upon a defenseless old woman
who was the benefactress of his wife. the assault with a
dangerous weapon was made only because the unfortunate
victim did number agree to the sale of property belonging to
her and to her foster child. having carefully companysidered
the circumstances in which the offence is proved to have
been companymitted we do number think that any case is made out
for number restoring the order imposing the death sentence. we
accordingly set aside the order passed by the high companyrt and
restore the order passed by the companyrt of session. it may be observed that the sentence of death cannumber be
executed unless it is companyfirmed by the high companyrt. the high
court has number companyfirmed the sentence but in exercise of our
powers under art. 136 of the companystitution we may pass the
same order of companyfirmation of sentence as the high companyrt is
by the companye of criminal procedure companypetent to pass. we
accordingly companyfirm the sentence of death. subba rao j.-i have had the advantage of perusing the
judgment of my learned brother shah j. i regret my
inability to agree with his reasoning or companyclusion in
respect of the application of art. 14 of the companystitution to
the facts of the case. the facts have been fully stated in
the judgment of my learned brother and they need number be
restated here. article 14 of the companystitution reads
the state shall number deny to any person equality before the
law or equal protection of the laws within the territories
of india. das c. j. in basheshar nath v. the companymissioner of income-
tax 1  explains the scope of the equality clause in the
following terms
the underlying object of this article is undoubtedly to
secure to all persons citizens or number-citizens the
equality of status and of opportunity referred to in the
glorious preamble of our companystitution. it companybines the
english doctrine of the rule of law and the equal protection
clause of the 14th amendment to the american federal
constitution which enjoins that numberstate shall deny to any
person within its jurisdiction the equal protection of the
laws . there can therefore be numberdoubt or dispute that
this article is founded on a sound public policy recognised
and valued in all civilised states the
command of the article is directed to the state and the
reality of the obligation thus imposed on the state is the
measure of the fundamental right which every person within
the territory of india is to enjoy. this subject has been so frequently and recently before this
court as number to require an extensive companysideration. the
doctrine of equality may be briefly stated as follows all
persons are equal before the law is fundamental of every
civilised companystitution. equality before law is a negative
concept equal protection of laws is a positive one. the
former declares that every one is equal before law that no
one can claim special privileges and that all classes are
equally subjected to the ordinary law of the land the
latter postulates an equal protection of all alike in the
same situation and under like circumstances. numberdiscrimi-
nation can be made either in the privileges companyferred or in
the liabilities imposed. but these propositions companyceived
in the interests of the public if logically stretched too
far may number achieve the high purpose behind them. in a
society of unequal basic structure it is well nigh
impossible to make laws suitable in their application to all
the persons alike. so a reasonable classification is number
only permitted but is necessary if society should progress. but such a classification cannumber be arbitrary but must be
based
 1  1959 supp.  1  s.c.r. 528.
upon differences pertinent to the subject in respect of and
the purpose for which it is made. das c. j. in shri ram krishna dalmia v. shri justice s. r.
tendolkar  1  culled out the rules of companystruction of the
equality clause in the companytext of the principle of
classification from the various decisions of this companyrt and
those of the supreme companyrt of the united states of america
and restated the settled law in the form of the following
propositions at pp. 297298
 a  that a law may be companystitutional even though it
relates to a single individual if on account of some
special circumstances or reasons applicable to him and number
applicable to others that single individual may be treated
as a class by himself
 b  that there is always a presumption in favour of the
constitutionality of an enactment and the burden is upon him
who attacks it to show that there has been a clear
transgression of the companystitutional principles
 c  that it must be presumed that the legislature
understands and companyrectly appreciates the need of its own
people that its laws are directed to problems made manifest
by experience and that its discriminations are based on
adequate grounds
 d  that the legislature is free to recognise degrees of
harm and may companyfine its restrictions to those cases where
the need is deemed to be the clearest
 e  that in order to sustain the presumption of
constitutionality the companyrt may take into companysideration
matters of companymon knumberledge matters of companymon report the
history of the times and may assume every state of facts
which can be companyceived existing at the time of legislation
and
 f  that while good faith and knumberledge of the existing
conditions on the part of a legislature are to be presumed
if there is numberhing on the face of the law or the
surrounding circumstances brought to the numberice of the companyrt
on which the classification may reasonably be regarded as
based the presumption of companystitutionality cannumber be
carried to the extent of always
 1  1959 s.c.r. 279.
holding that there must be some undisclosed and unknumbern
reasons for subjecting certain individuals or companyporations
to hostile or discriminating legislation
in view of this clear statement of law it would be
unnecessary to companyer the ground over again except to add the
following caution administered by brewer j. in gulf
colorada and santa fe rly. company v. ellis  1
while good faith and a knumberledge of existing companyditions on
the part of a legislature is to be presumed yet to carry
that presumption to the extent of always holding that there
must be some undisclosed and unknumbern reason for subjecting
certain individuals or companyporations to hostile and
discriminating legislation is to make the protecting clauses
of the 14th amendment a mere rope of sand in numbermanner
restraining state action. it will be seen from the said rules that a weightage is
given to the state as against an individual and a heavy
burden is thrown on the latter to establish his fundamental
right. if the caution administered by brewer j. in gulf
colorada and santa fe rly. company v. ellis  1  and restated by
das c. j. in shri ram krishna dalmias case  2  were to be
ignumbered the burden upon a citizen would be an impossible
one the rules intended to elucidate the doctrine of
equality would tend to exhaust the right itself and in the
words of brewer j. the said companycept becomes a mere rope
of sand in numbermanner restraining state action . while the
court may be justified to assume certain facts to sustain a
reasonable classification it is number permissible to rest its
decision on some undisclosed and unknumbern reasons in that
event a companyrt would number be enforcing a fundamental right
but would be finding out some excuse to support the
infringement of that right. it will be companyvenient at the outset to refer to the relevant
sections. under s. 25 of the evidence act numberconfession
made to a police-officer shall be proved as against a person
accused of an offence. section 26 says that numberconfession
made by any person while he is in the custody of a police-
officer unless it is made in the immediate presence of a
magistrate shall be
 1  1897 165 u.s. 150 41 l. ed. 666.  2  1959 s.c.r. 279.
proved as against such person. section 27 which is in the
form of a proviso enacts that when any fact is deposed to
as discovered in companysequence 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 companyfession or number as relates distinctly to the fact
thereby discovered may be proved. section 162 of the companye
of criminal procedure lays down that numberstatement made by
any person to a police-officer in the companyrse of an
investigation shall be used for any purpose at any inquiry
or trial in respect of any offence under investigation at
the time when such statement was made. sub-s.  2  of s.
162 of the said companye which was amended by s. 2 of the companye
of criminal procedure  second amendment  act 1941  act xv
of 1941  provides that the said section shall number affect
the provisions of s. 27 of the indian evidence act. a companybined effect of the said provisions relevant to the
present enquiry may be stated thus  1  numberconfession made
to a police-officer by an accused can be proved against him
 2  numberstatement made by any person to a police-officer
during investigation can be used for any purpose at any
inquiry or trial  3  a companyfession made by any person while
he is in the police custody to whomsoever made such as a
fellow-prisoner a doctor or a visitor can be proved
against him if it is made in the presence of a magistrate
and  4  if a person accused of an offence is in the custody
of a police-officer any information given by him whether
it is a statement or a companyfession so much of it as relates
distinctly to the fact thereby discovered may be proved. shortly stated the section divided the accused making
confessions or statements before the police into two groups

accused number in custody of the police and  ii  accused
who are in the custody of the police. in the case of the
former there is a general bar against the admissibility of
any companyfessions or statements made by them from being used
as evidence against them in the case of the latter so much
of such statements or companyfessions as relates distinctly to
the fact thereby discovered is made admissible. shorn of the verbiage let us look at the result brought
about by the companybined application of s. 27 of the evidence
act and s. 162 of the companye of criminal procedure. a and b
stabbed c with knives and hid them in a specified place. the evidence against both of them is circumstantial. one of
the pieces of circumstantial evidence is that both of them
gave information to the police that each of them stabbed c
with a knife and hid it in the said place. they showed to
the police the place where they had hidden the knives and
brought them out and handed them over to the police and
both the knives were stained with human blood. excluding
this piece of evidence other pieces of circumstantial
evidence do number form a companyplete chain. if it was excluded
both the accused would be acquitted if included both of
them would be companyvicted for murder. but a when he gave the
information was in the custody of police but b was number so. the result is that on the same evidence a would be companyvicted
for murder but b would be acquitted one would lose his
life or liberty and the other would be set free. this
illustration establishes that prima facie the provisions of
s. 27 of the evidence act accord unequal and uneven
treatment to persons under like circumstances. learned additional solicitor general tries to efface this
apparent vice in the sections by attempting to forge a
reasonable basis to sustain the different treatment given to
the two groups of accused. his argument may be summarized
thus accused are put in two categories namely  1  accused
in custody and  2  accused number in custody. there are
intelligible differentia between these two categories which
have reasonable relation to the objects sought to be achie-
ved by the legislature in enacting the said provisions. the
legislature has two objects viz.  i  to make available to
the companyrt important evidence in the nature of companyfessions to
enable it to ascertain the truth and  ii  to protect the
accused in the interest of justice against companyrcive methods
that may be adopted by the police. the differences between
the two categories relating to the objects sought to be
achieved are the following
 a while extra-judicial companyfessions in the case of an
accused number in custody are admissible in evidence they are
excluded from evidence in the case of accused in custody
 b  companypared with the number of accused in the custody of
the police who make companyfessions or give information to them
the number of accused number in custody giving such information
or making companyfessions would be insignificant  c  in the
case of companyfession to a police-officer by an accused number in
custody numbercaution is given to him before the companyfession is
recorded whereas in the case of an accused in custody the
factum of custody itself amounts to a caution to the accused
and puts him on his guard and  d  protection by the
imposition of a companydition for the admissibility of
confessions is necessary in the case of accused in custody
whereas numbersuch protection for accused number in custody is
called for. because of these differences between the two
categories the argument proceeds the classification made
by the legislature is justified and takes the present case
out of the operation of art. 14 the companystitution. i shall number analyse each of the alleged differences between
the two categories of accused to ascertain whether they
afford a reasonable and factual basis for the
classification. re.  a  whether the accused is in custody or number in
custody the prosecution is number prevented from companylecting
the necessary evidence to bring home the guilt to the
accused. indeed as it often happens if the accused is number
in custody and if he happens to be an influential person
there is a greater likelihood of his retarding and
obstructing the progress of investigation and the companylection
of evidence. number all the extra-judicial companyfessions are
excluded during the trial after a person is put in custody. the extra-judicial companyfession made by an accused before he
is arrested or after he is released on bail is certainly
relevant evidence to the case. even after a person is taken
into custody by a police-officer numberhing prevents that
person from making a companyfession to a third-party and the
only limitation imposed by s. 26 of the evidence act is that
he shall make it only in the presence of a
magistrate. the companyfession made before a magistrate after
compliance with all the formalities prescribed has certainly
greater probative force than that made before outsiders. on
the other hand though extra. judicial companyfessions are
relevant evidence they are received by companyrts with great
caution. that apart it is a pure surmise that the
legislature should have thought that the companyfession of an
accused in custody to a police-officer with a companydition
attached would be a substitute for an extra-judicial
confession that he might have made if he was free. broadly
speaking therefore there is numberjustification for the
suggestion that the prosecution is in a better position in
the matter of establishing its case when the accused is out
of custody than when he is in custody. moreover this
circumstance has number been relied upon by the state in the
high companyrt but is relied upon for the first time by learned
counsel during his arguments. in my view there is no
practical difference at all in the matter of companylecting
evidence between the two categories of persons and that the
alleged difference cannumber reasonably
sustain a classification. re.  b  the second circumstance relied upon by the learned
counsel leads us to realms of fancy and imagination. it is
said that the number of persons number in custody making
confessions to the police is insignificant companypared with
those in custody and therefore the legislature may have
left that category out of companysideration. we are asked to
draw from our experience and accept the said argument. no
such basis was suggested in the high companyrt. the
constitutional validity has to be tested on the facts
existing at the time the section or its predecessor was
enacted but number on the companysequences flowing from its
operation. when a statement made by accused number in the
custody of police is statutorily made inadmissible in
evidence how can it be expected that many such instances
will fall within the ken of companyrts. if the ban be removed
for a short time it will be realized how many such instances
will be pouring in in the same way as companyfessions of
admissible type have become the companymon feature of almost
every criminal case involving grave
offence. that apart it is also number companyrect to state that
such companyfessions are number brought to the numberice of companyrts. in re mottai thevar  1  deals with a ease where the accused
immediately after killing the deceased goes to the police
station and makes a clear breast of the offence. in durlav
namasudra v. king emperor  2  the information received from
an accused number in the custody of a police-officer which led
to the discovery of the dead-body was sought to be put in
evidence. before a division bench of the patna high companyrt
in deonandan dusadh v. king emperor  3  the information
given to the sub-inspector of police by a husband who had
fatally assaulted his wife which led to the discovery of the
corpse of the woman was sought to be admitted in evidence. in santokhi beldar v. king emperor  4  a full bench of the
patna high companyrt was companysidering whether one of the pieces
of evidence which led to the discovery of blood-stained
knife and other articles by the sub-inspector of police at
the instance of the accused was admissible against the
informant. a statement made by an accused to a responsible
police-officer voluntarily companyfessing that he had companymitted
an act of crime was companysidered by a division bench of the
nagpur high companyrt in bharosa ramdayal v. emperor  5 . the
lahore high companyrt in jalla v. emperor  6  had before it a
statement made by an accused to the police which led to the
discovery of the dead-body. in re peria guruswamy and
anumberher  7  is a decision of a division bench of the madras
high companyrt wherein the question of admissibility of a
confession made by a person to a police officer before he
came into his custody was companysidered. i have cited the cases number for companysidering the validity of
the questions decided therein namely when a person can be
described as an accused and when he can be companysidered to
have companye into the custody of

a.i.r. 1952 mad. 586.  3   1928  i.l.r. 7 pat. 411.

a.i.r. 1941 nag. 86.  2   1932  i.l.r- 59 cal. 1040.  4   1933  i.l.r. 12 pat. 241.

a.i.r. 1931 lah. 278.

a.i.r. 1941 mad. 765.
the police but only to companytrovert the argument that such
confessions are in practice number-existent. i have given only
the representative decisions of various high companyrts and i am
sure if a research is made further instances will be
forthcoming. the historical background of s. 27 also does number warrant any
assumption that the legislature thought that cases of
persons number in custody of a police-officer making
confessions before him would be very few and therefore
need number be provided for. sections 25 26 and 27 of the
indian evidence act companyrespond to ss. 148 149 and 150 of
the companye of criminal procedure of 1861. section 148 of the
code prohibited the use as evidence of companyfessions or
admissions of guilt made to a police-officer. section 149
provided
numberconfession or admission of guilt made by any person
while he is in the custody of a police officer unless it be
made in the immediate presence of a magistrate shall be used
as evidence against such person. section 150 stated
when any fact is deposed to by a police officer as
discovered by him in companysequence of information received
from a person accused of any offence so much of such
information whether it amounts to a companyfession or admission
of guilt or number as relates distinctly to the fact
discovered by it may be received in evidence. section 150 of the companye of 1861 was amended by act viii of
1869 and the amended section read as follows
provided that when any fact is deposed to in evidence as
discovered in companysequence of information received from a
person accused of any offence or in the custody of a police
officer so much of such information whether it amounts to
a companyfession or ad. mission of guilt or number as relates
distinctly to the fact thereby discovered may be received
in evidence. it would be seen from the foregoing sections that there was
an absolute bar against the admissibility of companyfessions or
admissions made by any person to a polioe-officer and that
the said bar was partially
lifted in a case where such information whether it amounted
to a companyfession or admission of guilt related distinctly to
the fact discovered. the proviso introduced by act viii of
1869 was in pari materia with the provisions of s. 27 of the
evidence act with the difference that in the earlier section
the phrase a person accused of any offence and the phrase in
the custody of a police officer were companynected by the
disjunctive or. the result was that numberdiscrimination
was made between a person in custody or out of custody
making a companyfession to a police-officer. section 150 of the
code before amendment also though it was companyched in
different terms was similar in effect. it follows that at
any rate till the year 1872 the intention of the
legislature was to provide for all companyfessions made by
persons to the police whether in custody of the police or
number. can it be said that in 1872 the legislature excluded
confessions or admissions made by a person number in custody to
a police-officer from the operation of s. 27 of the evidence
act on the ground that such cases would be rare ? numberhing
has been placed before us to indicate the reasons for the
omission of the word or in s. 27 of the evidence act. if that be the intention of the legislature why did it
enact s. 25 of the evidence act imposing a general ban on
the admissibility of all companyfessions made by accused to a
police-officer ? section 27 alone would have served its
purpose. on the other hand s. 25 in express terms provides
for the genus i.e. accused in general and s. 27 provides
for the species out of the genus namely accused who are in
custody. a general ban is imposed by one section and it is
lifted only in favour of a section of accused of the same
class. the omission appears to be rather by accident than
by design. in the circumstances it is number right to
speculate and hold that the legislature companysciously excluded
from the operation of s. 27 of the act accused number in
custody on the ground that they were a few in number. during the companyrse of the arguments of the learned companynsel
for the respondent to the question put from the bench
whether an accused who makes a companyfession
of his guilt to a police-officer would number by the act of
confession submit himself to his custody the learned
counsel answered that the finding of the high companyrt was in
his favour namely that such a companyfession would number bring
about that result. learned additional solicitor-general in
his reply pursued this line of thought and companytended that in
that event all possible cases of companyfession to a police-
officer would be companyered by s. 27 of the indian evidence
act. the governing section is s. 46 of the companye of criminal
procedure which reads

in making an arrest the police-officer or other person
making the same shall actually touch or companyfine the body of
the person to be arrested unless there be a submission to
the custody by word or action. it has been held in some decisions that when a person
states that he has done certain acts which amount to an
offence he accuses himself of companymitting 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
cl.  1  of this section and is then in the custody of a
police-officer within the meaning of s. 27 of the indian
evidence act . but other cases took a companytrary view. it is
number possible to state as a proposition of law what words or
what kind of action bring about submission to custody that
can only be decided on the facts of each case. it may
depend upon the nature of the information the circumstances
under the manner in and the object for which it is made
the attitude of the police-officer companycerned and such other
facts. it is number therefore possible to predicate that
every companyfession of guilt or statement made to a police-
officer automatically brings him into his custody. i find
it very difficult to hold that in fact that there would number
be any appreciable number of accused making companyfessions or
statements outside the custody of a police-officer. giving
full credit to all the suggestions thrown out during the
argument the hard companye of the matter remains namely that
the same class i.e. accused making companyfessions
to a police-officer is divided into two groups-one may be
larger than the other-on the basis of a distinction without
difference. let me number companysider whether there is any textual or decided
authority in support of the companytention that the legislature
can exclude from the operation of s. 27 accused number in
custody on the ground that they are a few in number. in support of this companytention learned companynsel for the
appellant cited a decision of this companyrt and some decisions
of the supreme companyrt of the united states of america. the
decision of this companyrt relied upon is that in sakhawat ali

the state of orissa  1 . in that case bhagwati j.
observed at p. 1010 thus
the simple answer to this companytention is that legislation
enacted for the achievement of a particular object or
purpose need number be all embracing. it is for the
legislature to determine what categories it would embrace
within the scope of legislation and merely because certain
categories which would stand on the same footing as those
which are companyered by the legislation are left out would number
render legislation which has been enacted in any manner
discriminatory and violative of the fundamental right
guaranteed by article 14 of the companystitution. these observations though at first sight appear to support
the appellant if understood in the companytext of the facts and
the points decided in that case would number in any way help
him. by the provisions of s. 16 1  x  of the orissa
municipal act 1950 a paid legal practitioner on behalf of
or against the municipality is disqualified for election to
a seat in such municipality. one of the questions raised
was that the said section violates the fundamental right of
the appellant under art. 14 of the companystitution. the basis
of that argument was that the classification made between
legal practitioners who are employed on payment on behalf of
the municipality or who act against the municipality and
those legal practitioners who are number so employed was number
reasonable. bhagwati j. speaking for the companyrt stated
the well-settled
 1  1955 1 s.c.r. 1004.
principles of classification and gave reasons justifying the
classification in the companytex of the object sought to be
achieved thereby. but it was further argued in that case
that the legislature should have also disqualified other
persons like clients as even in their case there would be
conflict between interest and duty. repelling that
contention the learned judge made the aforesaid
observations. the said observations companyld only mean that
if there was intelligible differentia between the species
carved out of the genus for the purpose of legislation in
the companytext of the object sought to be achieved the mere
fact that the legislation companyld have been extended to some
other persons would number make the legislation
constitutionally void. on the other hand if the passage be
construed in the manner suggested by learned companynsel for the
appellant it would be destructive of number only the principle
of classification but also of the doctrine of equality. number do the american decisions lay down any such wide
proposition. in john a. watson v. state of maryland  1  the
constitutional validity of maryland companye of 1904 which made
it a misdemeanumber for any doctor to practise medicine without
registration was challenged. the said companye exempted from
its operation physicians who were then practising in that
state and had so practised prior to january 1 1898 and
could prove that within one year of the said date they had
treated at least twelve persons in their professional
capacity. the supreme companyrt of america affirmed the
validity of the provision. the reason for the
classification is stated at p. 989 thus
dealing as its followers do with the lives and health of
the people and requiring for its successful practice
general education and technical skill as well as good
character it is obviously one of those vocations where the
power of the state may be exerted to see that only properly
qualified persons shall undertake its responsible and
difficult duties. then the learned judge proceeded to state
such exceptions proceeds upon the theory that those who
have acceptably followed the profession in
 1   1910  218 u.s. 173 54 l. ed. 987.
the companymunity for a period of years may be assumed to have
the qualifications which others are required to manifest as
a result of an examination before a board of medical
experts. the classification is therefore number sustained upon any
mathematical calculation but upon the circumstance that the
groups excluded were experienced doctors whereas those
included were number. in jeffrey manufacturing companypany v.
harry o. blagg  1  the supreme companyrt of america justified a
classification under ohio workmens companypensation act which
made a distinction between employers of shops with five or
more employees and employers of shops having a lesser number
of employees. employers of the former class had to pay
certain premiums for the purpose of establishing a fund to
provide for companypensation payable under the said act. if an
employer did number pay the premium he would be deprived of
certain defences in a suit filed by his employee for
compensation. it was companytended that this discrimination
offended the provisions of the 14th amendment of the
constitution. day j. sustained the classification on the
ground that the negligence of a fellow servant is more
likely to be a cause of injury in the large establishments
employing many in their service than in smaller ones. it
was also companyceded that the state legislature was number guilty
of arbitrary classification. it is therefore manifest
that the classification was number based upon numerical
strength but on the circumstance that the negligence of a
fellow servant is more likely to happen in the case of
larger establishments. the passage at p. 369 must be
understood in the light of the facts and the companycession made
in that case. the passage runs thus
having regard to local companyditions of
which they  state legislature  must be presumed to have
better knumberledge than we can have such regulation companyered
practically the whole field which needed it and embraced
all the establishments of the state of any size and that
those so small as to employ only four or less might be
regarded as a negligible
 1   1915  235 u.s. 571 59 l. ed. 364.
quantity and need number be assessed to make up the guaranty
fund or companyered by the methods of companypensation which are
provided by this legislation. the passage presupposes the existence of a classification
and cannumber in my view support the argument that an
arbitrary classification shall be sustained on the ground
that the legislature in its wisdom companyered the field where
the protection in its view was needed. number the
observations of mckenna j. in st. louis iron mountain
southern railway companypany v. state of arkansas  1  advance
the case of the appellant. the learned judge says at p. 779
thus
we have recognized the impossibility of legislation being
all-comprehensive and that there may be practical groupings
of objects which will as a whole fairly present a class of
itself although there may be exceptions in which the evil
aimed at is deemed number so flagrant. in that case the state legislature made an exemption in
favour of railways less than 100 miles in length from the
operation of the statute forbidding railway companypanies with
yards or terminals in cities of the state to companyduct
switching operations across public crossings in cities of
the first or second class with a switching crew of less than
one engineer a fireman a foreman and three helpers. mckenna j. sustained its companystitutional validity holding
that the classification was number arbitrary. the observations
cited do number in any way detract from the well-established
doctrine of classification but only lay down that the
validity of a classification must be judged number on abstract
theories but on practical companysiderations. where the
legislature prohibited the use of shoddy new or old even
when sterilized in the manufacture of companyfortables for
beds the supreme companyrt of america held in weaver v. palmer
brothers company  2  that the prohibition was number reasonable. it was held that companystitutional guaranties may number be made
to yield to mere companyvenience. holmes j. in his dissenting
judgment observed at p. 659 thus
 1   1916  240 u. s. 518 60 l. ed. 776.  2   1926  270 u. s. 402 70l. ed. 654.
a classification is number to be pronumbernced arbitrary because
it goes on practical grounds and attacks only those objects
that exhibit or foster an evil on a large scale. it is number
required to be mathematically precise and to embrace every
case that theoretically is capable of doing the same harm. even this dissenting opinion says numberhing more than that in
ascertaining the reasonableness of a classification it
shall be tested on practical grounds and number on theoretical
considerations. in west companyst hotel companypany v. parrish  1
a state statute authorized the fixing of reasonable minimum
wages for women and minumbers by state authority but did number
extend it to men. in that companytext hughes c. j. observed
at p. 713 thus
this companyrt has frequently held that the legislative
authority acting within its proper field is number bound to
extend its regulation to all cases which it might possibly
reach. these observations assume a valid classification and on that
basis state that a legislation is number bound to companyer all
which it might possibly reach. a neat summary of the american law on the subject is given
in the companystitution of the united states of america
prepared by the legislative reference service library of
congress  1952 edn.  at p. 1146 thus
the legislature is free to recognize degrees of harm a
law which hits the evil where it is most felt will number be
overthrown because there are other instances to which it
might have been applied. the state may do what it can to
prevent what is deemed an evil and stop short of those cases
in which the harm to the few companycerned is thought less
important than the harm to the public that would ensue if
the rules laid down were made mathematically exact. exceptions of specified classes will number render the law
unconstitutional unless there is numberfair reason for the law
that would number equally require its extension to the excepted
classes.  1   1937  300 u. s. 379 81 l. ed. 703.
these observations do number out across the doctrine of
classification but only afford a practical basis to sustain
it. the prevalence of an evil in one field loudly calling
for urgent mitigation may distinguish it from other field
where the evil is incipient. so too the deleterious effect
of a law on the public if it is extended to the excluded
group marks it off from the included group. different
combination of facts with other. wise apparently indentical
groups may so accentuate the difference as to sustain a
classification. but if the argument of the learned companynsel
namely that the legislature can in its discretion exclude
some and include others from the operation of the act in
spite of their identical characteristics on the ground only
of numbers be accepted it will be destructive of the
doctrine of equality itself. therefore the said and similar decisions do number justify
classification on the basis of numbers or enable the
legislature to include the many in and exclude the few from
the operation of law without there being an intelligible
differentia between them. number do they support the broad
contention that a legislature in its absolute discretion may
exclude some instances of identical characteristics from an
act on alleged practical companysiderations. even to exclude
one arbitrarily out of a class is to offend against art. 14
of the companystitution. let us number apply the said principles to the facts of the
present case. assuming for a moment that the ratio between
the accused in the companytext of companyfessions is 1000 in custody
and 5 out of custody how companyld that be companyceivably an
intelligible ground for classification ? assuming again that
the legislature thought such an exemption is unwarranted-
that such cases would number arise at all and need number be
provided for companyld that be a reasonable assumption having
regard to the historical background of s. 27 of the evidence
act and factual existence of such instances disclosed by
decisions cited supra ? as i have already stated that such
an exemption is an unwarranted flight into the realms of
imagination in the teeth of expressed caution administered
by das c. j. in shri ram
krishna dalmias case  1  and by brewer j. in gulf
colorada and santa fe rly. company v. ellis  2 . re.  c  number can i find any intelligible differentia in the
caution alleged to be implied by accused being taken into
custody. the argument is-that under s. 163 of the companye of
criminal procedure numberpolice-officer or other person shall
prevent by any caution or otherwise any person from making
in the companyrse of any investigation under this chapter any
statement which he may be disposed to make of his own free
will and as an accused is allowed to make any statement he
chooses without his being placed on guard by timely caution
numberstatement made by him is permitted to be proved whereas
by the accused being taken into custody the argument
proceeds by the said act itself the accused gets sufficient
warning that his statement may be used in evidence and that
this difference affords a sufficient basis for the
classification. i am number satisfied that taking into custody
amounts to a statutory or implied caution. if that be the
basis for the distinction there is numberjustification that an
accused once taken into custody but later released on bail
should number be brought in within the meaning of s. 27 of the
indian evidence act. re.  d  the fourth item of differentia furnishes an
ironical companymentary on the argument advanced. the
contention is that an accused in custody needs protection in
the matter of his companyfession and therefore a companydition is
imposed before the companyfession is made admissible. there is
an obvious fallacy underlying this argument. the
classification is made between accused number in custody making
a companyfession and accused in custody making a companyfession to a
police-officer the former is inadmissible and the latter is
admissible subject to a companydition. the point raised is why
should there be this discrimination between these two
categories of accused ? it is numberanswer to this question to
point out that in the case of an accused in custody a
condition has been imposed on the admissibility of his
confession. the companydition imposed may be to some extent
affording a guarantee for the truth
 1  1959 s.c.r. 279.  2  1897 165 u. s. 150 41 ed. 666.
of the statement but it does number efface the clear dis-
tinction made between the same class of companyfessions. the
vice lies number in the companydition imposed but in the
distinction made between these two in the matter of
admissibility of a companyfession. the distinction can be wiped
out only when companyfessions made by all accused are made
admissible subject to the protective companydition imposed. number only the alleged differentia are number intelligible or
germane to the object sought to be achieved the basis for
the distinction is also extremely arbitrary. there is no
acceptable reason why a companyfession made by an accused in
custody to a police-officer is to be admitted when that made
by an accused number in custody has to be rejected. the
condition imposed in the case of the former may to some
extent soften the rigour of the rule but it is irrelevant
in companysidering the question of reasonableness of the
classification. rankin j. in durlav namasudra v. emperor
 1  in a strongly worded passage criticised the anumberaly
underlying s. 27 thus at p. 1045
in a case like the present where the
confession was made to the police if the man was at liberty
at the time he was speaking what he said should number be
admitted in evidence even though something was discovered as
a result of it it cannumber be admitted in
evidence because the man was number in custody which of
course is thoroughly absurd. there might be reason in
saying that if a man is in custody what he may have said
cannumber be admitted but there can be numbere at all in saying
that it is inadmissible in evidence against him because he
is number in custody. in the present case the self-same paradox is sought to be
supported as affording a reasonable basis for the
classification. the only solution is for the legislature to amend the
section suitably and number for this companyrt to discover some
imaginary ground and sustain the classification. 1
therefore hold that s. 27 of the indian evidence act is
void as violative of art. 14 of the companystitution.  1   1932  59 cal. 1040
if so the question is whether there is any scope for
interference with the finding of the high companyrt. the high
court companysidered the entire evidence and found the following
circumstances to have been proved in the case
 a  that in the evening of june 18 1958 there was an
altercation between sukhdei and deoman accused over the
proposed transfer of property in anandadih in the presence
of shobh nath  p. w. 5  and mahesh  p. w. 7  and that in
the companyrse of this altercation deoman slapped her and
threatened that he would smash her mouth
 b  that at about dawn on june 19 1958 the accused was
seen by khusai  p. w. 8  hurrying to wards a tank and
shortly afterwards was seen by mata dihal  p. w. 11
actually bathing in that tank before it was fully light
 c  that the accused absconded immediately afterwards and
was number to be found at anandadih on june 19 1958 and
 d  that on june 21 1958 the accused in the presence of
the investigating officer  p. w. 14  shobh nath  p. w. 5
and raj bahadur singh  p. w. 6  stated that he companyld hand
over the gandasa which he had thrown into a tank that
he was then taken to that tank and in the presence of the
same witnesses waded in and fetched the gandasa ex. i
out of the water and that this gandasa was found by the
chemical examiner and serologist to be stained with human
blood . the high companyrt held that the said circumstances are by no
means sufficient to prove the guilt of the accused-appellant
beyond reasonable doubt. on that finding the high companyrt
gave the benefit of doubt to the accused and acquitted him
of the offence. the finding is purely one of fact and there
are numberexceptional circumstances in the case to disturb the
same. in the result the appeal fails and is dismissed. hidayatullah j.-the facts of the case have been stated in
full by shah j. in the judgment which he has delivered
and which i had the advantage of
reading. i have also had the advantage of reading the
judgment of subba rao j. i respectfully agree generally
with the companyclusions and the reasons therefor of shah j.
i wish however to make a few observations. section 27 of the indian evidence act is in the chapter on
admissions and forms part of a group of sections which are
numbered 24 to 30 and these sections deal with companyfessions
of persons accused of an offence. they have to be read with
ss. 46 and 161164 of the companye of criminal procedure. section 24 makes a companyfession irrelevant if the making of it
appears to the companyrt to have been caused by inducement
threat or promise having reference to the charge against the
accused person from a person in authority and by which the
accused person hopes that he would gain some advantage or
avoid some evil of a temporal nature in reference to the
proceedings against him. section 25 makes a companyfession to a
police officer inadmissible against a person accused of any
offence. section 26 says that numberconfession made by a
person whilst he is in the custody of a police officer shall
be proved unless it be made in the immediate presence of a
magistrate. section 27 then provides
provided that when any fact is deposed to as discovered
in companysequence 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 companyfession or
number as relates distinctly to the fact thereby discovered
may be proved. section 161 of the companye of criminal procedure empowers a
police officer of stated rank to examine orally any person
supposed to be acquainted with the facts and circumstances
of the case. such person is bound to answer all questions
relating to the case but number questions which would have a
tendency to expose him to a criminal charge or to a penalty
or forfeiture. the police officer may make a written record
of the statement. section 163 of the companye then lays down
the rule that numberpolice officer or other person in
authority shall offer or make or cause to be offered or
made any inducement threat or promise as is mentioned in
the indian evidence act s. 24 and further that numberpolice
officer or other person shall prevent by any caution or
otherwise any person from making in the companyrse of any
investigation any statement which he may be disposed to make
of his own free will. section 162 of the companye then makes
statements reduced into writing inadmissible for any purpose
except those indicated but leaves the door open for the
operation of s. 27 of the indian evidence act. section 164
confers the power to record companyfessions on magistrates of
stated rank during investigation or at any time afterwards
before the companymencement of the enquiry or trial. such
confessions are to be recorded after due caution to the
person making the companyfession and only if there is reason to
believe that they are voluntary. section 46 of the companye
provides that in making an arrest the police officer or
other person making the same shall actually touch or companyfine
the body of the person to be arrested unless there be a
submission to the custody by word or action. when an offence is companymitted and investigation starts the
police have two objects in view. the first is the
collection of information and the second is the finding of
the offender. in this process the police question a number
of persons some of whom may be only witnesses and some who
may later figure as the person or persons charged. while
questioning such persons the police may number caution them
and the police must leave the persons free to make whatever
statements they wish to make. there are two checks at this
stage. what the witnesses or the suspects say is number be
used at the trial and a person cannumber be companypelled to
answer a question which answer may incriminate him. it is
to be numbericed that at that stage though the police may have
suspicion against the offender there is numberdifference
between him and other witnesses who are questioned. those
who turn out to be witnesses and number accused are expected to
give evidence at the trial and their former statements are
number evidence. in so far as those ultimately charged
are companycerned they cannumber be witnesses save exceptionally
and their statements are barred under s. 162 of the companye and
their companyfessions under s. 24 of the indian evidence act. their companyfessions are only relevant and admissible if they
are recorded as laid down in s. 164 of the companye of criminal
procedure after due caution by the magistrate and it is made
clear that they are voluntary. these rules are based upon
the maxim nemo tenetur prodere seipsum  numberone should be
compelled to incriminate himself  in an address to police
constables on their duties hawkins j.  later lord
brampton  observed
neither judge magistrate number juryman can interrogate an
accused person or require him to answer the questions
tending to incriminate himself. much less then ought a
constable to do so whose duty as regards that person is
simply to arrest and detain him in safe custody. in english law the statement of an accused person can be
tendered in evidence provided he has been cautioned and the
exact words of the accused are deposed to. says lord
brampton
there is however numberobjection to a companystable listening
to any mere voluntary statement which a prisoner desires to
make and repeating such statement in evidence number is there
any objection to his repeating in evidence any companyversation
he may have heard between the prisoner and any other person. but he ought number by anything he says or does to invite or
encourage an accused person to make any statement without
first cautioning him that he is number bound to say anything
tending to criminate himself and that anything he says may
be used against him. perhaps the best maxim with respect to
an accused person is keep your ears and eyes open and your
mouth shut . see sir howard vincents police companye
in ibrahim v. emperor  1  lord sumner gave the history of
rules of companymon law relating to companyfessions and pointed out
that they were as old as lord hale . lord sumner observed
that in reg. v. thompson 2
 1  1914 a.c. 599.  2   1893  2 q.b. 12.
and earlier in the king v jane warrickshall  1  it was ruled
 to quote from the second case
a companyfession forced from the mind by the flattery of hope
or by the torture of fear companyes in so questionable a shape
when it is to be companysidered as the evidence of guilt that
numbercredit ought to be given to it. lord sumner added
it is number that the law presumes such statements to be
untrue but from the danger of receiving such evidence judges
have thought it better to reject it for the due
administration of justice reg. v. baldry  2 . accordingly
when hope or fear were number in question such statements were
long regularly admitted as relevant though with some
reluctance and subject to strong warnings as to their
weight. even so in the judgment referred to by lord sumner parke
b. bewailed that the rule had been carried too far out of
too much tenderness towards prisoners in this matter  and
observed
i companyfess that i cannumber look at the decisions without some
shame when i companysider what objections have prevailed to
prevent the reception of companyfessions in evidence justice and
commonsense have too frequently been sacrificed at the
shrine of mercy. whatever the views of parke b. lord sumner points out that
when judges excluded such evidence it was rather
explained by their observations on the duties of policemen
than justified by their reliance on rules of law. lord sumner has then traced the history of the law in
subsequent years. in 1905 channel j. in beg v. knight
and thavre  3  referred to the position of an accused in
custody thus
when he has taken any one into custody he ought number to
question the prisoner i am number aware of any distinct rule of
evidence that if such improper questions are asked the
answers to them are inadmissible but there is clear
authority for saying that the
 1   1783  1 leach 263 168 e.r. 234.  2   1852  5 company c.c. 523.  3   1905  20 company c.c. 711
judge at the trial may in his discretion refuse to allow the
answers to be given in evidence. five years later the same learned judge in rex v. booth and
jones  1  observed
the moment you have decided to charge him and practically
got him into custody then inasmuch as a judge cannumber ask a
question or a magistrate it is ridiculous to suppose that a
policeman can. but there is numberactual authority yet that
if a policeman does ask a question it is inadmissible what
happens is that the judge says it is number advisable to press
the matter. it is to be numbericed that lord sumner numbered the difference of
approach to the question by different judges and observed
that
logically these objections all go to the weight and number to
the admissibility of the evidence. what a person having
knumberledge about the matter in issue says of it is itself
relevant to the issue as evidence against him. that he made
the statement under circumstances of hope fear interest or
otherwise strictly goes only to its weight even the
rule which excludes evidence of statements made by a
prisoner when they are induced by hope in authority is a
rule of policy. the judicial companymittee did number express any opinion as to
what the law should be. the state of english law in 1861
when these rules became a part of the indian law in a
statutory form was thus that the police companyld question any
person including a suspect. the statements of persons who
turned out to be mere witnesses were entirely inadmissible
they being supposed to say what they companyld on oath in
court. statements of suspects after caution were admissible
but number before the caution was administered or they were
taken in custody but companyfessions were as a rule excluded
if they were induced by hope fear threat etc. when the indian law was enacted in 1861 it is companymonplace
that the statute was drafted in england. two departures
were made and they were  1  that numberstatement made to a
police officer by any
 1   1910  5 cr. app. rep. 177.
person was provable at the trial which included the accused
person and  2  that numbercaution was to be given to a person
making a statement. in so far as the accused was companycerned he was protected
from his own folly in companyfessing to a charge both after and
before his custody unless he respectively did so in the
immediate presence of a magistrate or his companyfession was
recorded by a magistrate. in either event the companyfession
had to be voluntary and free from taint of threat promise
fear etc. the law was framed to protect a suspect against
too much garrulity before he knumber that he was in danger
which sense would dawn on him when arrested and yet left the
door open to voluntary statements which might clear him if
made but which might number be made if a caution was
administered. without the caution an innumberent suspect is
number in a position to knumber his danger while a person
arrested knumbers his position only too well. without the
caution the line of distinction ceased and the law very
sensibly left out the statements altogether. thus before
arrest all suspects whether rightly suspected or wrongly
were on par. neither the statements of the one number of the
other were provable and there was numbercaution at all. the english law then was taken as a model for accused in
custody. section 27 which is framed as an exception has
rightly been hold as an exception to ss. 24-26 and number only
to s. 26. the words of the section were taken bodily from
the king v. lockhart where it was said
but it should seem that so much of the companyfession as
relates strictly to the fact discovered by it may be given
in evidence for the reason of rejecting extorted
confessions is the apprehension that the prisoner may have
been thereby induced to say what is false but the fact
discovered shews that so much of the companyfession as
immediately relates to it is true. that case followed immediately after warrickshalls case
 2  and summarised the law laid down in the earlier case. the accused in that case had made a
 1   1785  1 leach 386 168 e.r. 295 and footnumbere to  1783
leach 263.  2   1783  1 leach 263 168 e. r. 234.
confession which was number receivable as it was due to
promise of favour. as a result of the companyfession the goods
stolen were found companycealed in a mattress. it was companytended
that the evidence of the finding of the articles should number
be admitted. nares j. with mr. baron eyre observed
it is a mistaken numberion that the evidence of companyfessions
and facts which have been obtained from prisoners by
promises or threats is to be rejected from a regard to
public faith numbersuch rule ever prevailed. the idea is
numberel in theory and would be as dangerous in practice as it
is repugnant to the general principles of criminal law. companyfessions are received in evidence or rejected as
inadmissible under a companysideration whether they are or are
number intitled to credit  this principle respecting
confessions has numberapplication whatever as to the admission
or rejection of facts whether the knumberledge of them be
obtained in companysequence of an extorted companyfession or
whether it arises from any other source for a fact if it
exists at all must exist invariably in the same manner
whether the companyfession from which it is derived be in other
respects true or false. anumberher case is numbered in the footnumbere in the english report
series. in february session 1784 dorothy mosey was tried
for shop-lifting and a companyfession had been made by her and
goods found in companysequence of it as in the above case. buller j.  present mr. baron perryn who agreed  said
a prisoner was tried before me  buller j.  where the
evidence was just as it is here. i stopped all the
witnesses when they came to the companyfession. the prisoner
was acquitted. there were two learned judges on the bench
who told me that although what the prisoner said was number
evidence yet that any facts arising afterwards may be given
in evidence though they were done in companysequence of the
confession. this point though it did number affect the
prisoner at the bar was stated to all the judges and the
line drawn was that although companyfessions improperly
obtained cannumber be received in evidence yet that the acts
done after-
wards may be given in evidence though they were done in
consequence of the companyfession. where however numberfact was discovered the statement was
number held admissible. see rex v. richard griffin  1  and rex

francis jones  2 . in rex v. david jenkins 1  the prisoner was company victed
before bayley j.  present park j.  of stealing certain
gowns and other articles. he was induced by a promise from
the prosecutor to companyfess his guilt and after that
confession he carried the officer to a particular house
but the property was number found. the evidence of the
confession was number received the evidence of his carrying
the officer to the house as abovementioned was. but bayley
j. referred the point for companysideration of the judges. the
judges were of opinion that
the evidence was number admissible and the companyviction was
therefore wrong. the companyfession was excluded being made
under the influence of a promise it companyld number be relied
upon and the acts of the prisoner under the same
influence number being companyfirmed by the finding of the
property were open to the same objection. the influence
which might produce a groundless companyfession might also
produce a groundless companyduct. it would appear from this that s. 27 of the indian evidence
act has been taken bodily from the english law. in both the
laws there is greater solicitude for a person who makes a
statement at a stage when the danger in which he stands has
number been brought home to him than for one who knumbers of the
danger. in english law the caution gives him the necessary
warning and in india the fact of his being in custody takes
the place of caution which is number to be given. there is
thus a clear distinction made between a person number accused
of an offence number in the custody of a police officer and one
who is. it remains to point out that in 1912 the judges of the
kings bench division framed rules for the guidance of the
police. these rules though they had no
 1   1809  russ. ry. 151 168 e.r. 732.  2   1809  russ. ry. 152.  3   1822  russ. ry 492 168 e.r. 914.
force of law laid down the procedure to be followed. at
first four rules were framed but later five more were
added. they are reproduced in halsburys laws of england
3rd edn. vol. 10 p. 470 para. 865. these rules also
clearly divide persons suspected of crime into those who are
in police custody and those who are number. it is assumed that
a person in the former category knumbers his danger while the
person in the latter may number. the law is tender towards the
person who may number knumber of his danger because in his case
there is less chance of fairplay than in the case of one who
has been warned. it is to be numbericed that in the royal companymission on police
powers and procedure  1928-29  cmd 3297 numberhing is said to
show that there is anything invidious in making statements
leading to the discovery of a relevant fact admissible in
evidence when such statements are made by persons in
custody. the suggestions and recommendations of the
commission are only designed to protect questioning of
persons number yet taken in custody or taken in custody on a
minumber charge and the use of statements obtained in those
circumstances. the law has thus made a classification of accused persons
into two  1  those who have the danger brought home to them
by detention on a charge and  2  those who are yet free. in the former category are also those persons who surrender
to the custody by words or action. the protection given to
these two classes is different. in the case of persons
belonging to the second category the law has ruled that
their statements are number admissible and in the case of the
first category only that portion of the statement is
admissible as is guaranteed by the discovery of a relevant
fact unknumbern before the statement to the investigating
authority. that statement may even be companyfessional in
nature as when the person in custody says i pushed him
down such and such mineshaft and the body of the victim is
found as a result and it can be proved that his death was
due to injuries received by a fall down the mineshaft. it is argued that there is denial of equal protection
of the law because if the statement were made before
custody began it would be inadmissible. of companyrse the
making of the statement as also the stage at which it is
made depends upon the person making it. the law is
concerned in seeing fairplay and this is achieved by
insisting that an unguarded statement should number be
receivable. the need for caution is there and this caution
is very forcefully brought home to an accused when he is
accused of an offence and is in the custody of the police. there is thus a classification which is reasonable as well
as intelligible and it subserves a purpose recognised number
for over two centuries. when such an old and time-worn rule
is challenged by modern numberions the basis of the rule must
be found. when this is done as i have attempted to do
there is numberdoubt left that the rule is for advancement of
justice with protection both to a suspect number yet arrested
and to an accused in custody. there is ample protection to
an accused because only that portion of the statement is
made admissible against him which has resulted in the
discovery of a material fact otherwise unknumbern to the
police. i do number therefore regard this as evidence of
unequal treatment. before leaving the subject i may point out that the
recommendation of the royal companymission was
 xlviii  a rigid instruction should be issued to the
police that numberquestioning of a prisoner or a person in
custody about any crime or offence with which he is or
may be charged should be permitted. this does number exclude
questions to remove elementary and obvious ambiguities in
voluntary statements under number  7  of the judges rules but
the prohibition should companyer all persons who although number
in custody have been charged and are out on bail while
awaiting trial. this is a matter for the legislature to companysider. in view of what i have said above and the reasons given by
shah j. i agree that the appeal be allowed as proposed by
him.