INTRODUCTION

As the title of this article suggests, in this article, we will discuss some important heads of procedure incorporated under Code of Civil Procedure (hereinafter to be referred as CPC or Code) for executing a decree passed by a civil court in India. Suppose A files a suit against B for Rs 100,000/- and obtains a decree against him. Here A is the judgement-creditor or decree-holder. B is the judgement-debtor, and the amount of Rs 100,000/- is the judgement-debt or the decretal amount. Since the decree is passed against B, he is bound to pay Rs 100,000/- to A. Supposedly in spite of the decree, B refuses to pay the decretal amount to A. Now, what remedy is left with A to recover his said amount? A can recover the said amount from B by executing the decree through judicial process. The principles governing execution of decrees and orders are dealt with in Sections 36 to 74 (substantive law) and Order 21 of the CPC (procedural provisions). Order 21 contains 106 Rules and is the longest of all Orders in the Code.

EXECUTION: MEANING

The term “execution” has not been defined in the code. In its widest sense, the expression “execution” signifies the enforcement or giving effect to a judgement or order of a court of justice. In other words, execution is the enforcement of decrees and orders by the process of the court, so as to enable the decree-holder to realise the fruits of the decree. In Ghan Shyam Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code relating to execution of decrees and orders, the Hon’ble Apex Court stated, “So far as the question of executability of a decree is concerned, the Code contains elaborate and exhaustive provisions for dealing with it in all aspects. The numerous rules of Order 21 of the Code take care of different situations providing effective remedies not only to judgement-debtors and decree-holders but also to claimant objectors. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court.”

COURTS BY WHICH DECREES MAY BE EXECUTED: SECTION 38

A decree may be executed either by the court which passed it, or by the court to which it is sent for execution. A court which has neither passed a decree, nor a decree is transferred for execution, cannot execute it. Section 37 of the Code defines the expression “court which passed a decree” and the following courts fall within the said expression:

(i) The court of first instance which actually passed the decree;

(ii) The court of first instance in case of appellate decrees;

(iii) Where the court of first instance has ceased to exist, the court which would have jurisdiction to try the suit at the time of execution and

(iv) Where the court of first instance has ceased to have jurisdiction execute the decree, the court which at the time of execution would have had jurisdiction to try the suit.

But, sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a part of the area within the jurisdiction of court A is transferred to court B. In such a situation the following two questions arise:

a) whether court A continues to have jurisdiction to entertain an application for execution? And

b) whether court B (to which the area is transferred) can also entertain an application for execution without a formal transmission of the decree from court A to B?

The first question must now be answered in the affirmative after the pronouncement of the Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87, wherein the court held:

“It is settled law that the court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject-matter being transferred subsequently to the jurisdiction of another court.”

With regard to the second question, the Explanation added to Section 37 by the Amendment Act of 1976 makes it amply clear that both the courts would be competent to entertain an application for execution of a decree.

TRANSFER OF DECREE FOR EXECUTION: SECTIONS 39-42; ORDER 21 RULES 3-9

As a general rule, the court which passed the decree is primarily the court to execute it, but such court may send the decree for execution to another court either suomotu or on the application of the decree-holder if any of the following grounds exists:

(i) The judgement-debtor actually and voluntarily resides or carries on the business, or personally works for gain, within the local limits of jurisdiction of such court; or

(ii) The judgement-debtor does not have property sufficient to satisfy the decree within the local limits of the jurisdiction of the court which passed the decree but has property within the local limits of such court; or

(iii) The decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of such other court; or

(iv) The court which passed the decree considers it necessary for any other reason to be recorded in writing that the decree should be executed by such other court.

The decree-holder has no vested or substantive right to get the decree transferred to another court. The provisions of Section 39 are not mandatory and the court has discretion to decide it. Sub-section (3) of Section 39 clarifies that the transferee court must have pecuniary jurisdiction to deal with the suit in which the decree was passed. Likewise, sub-section (4) of Section 39 further makes it clear that the court passing decree has no power to execute such decree against a person or property outside the local limits of its territorial jurisdiction. However, Section 46 of the Code empowers the court which passed the decree to issue precept to court which would be competent to execute the decree (within whose jurisdiction the property of judgement-debtor is lying) to attach any property belonging to the judgement-debtor. The order passed under Section 46 is interim in nature and can be lasted for two months only unless the case is covered by proviso. An order of permanent attachment under Section 46 is, therefore, illegal.

WHO MAY APPLY FOR EXECUTION: RULE 10

The following persons may file an application for execution:

a) Decree-holder.

b) Legal representative of the decree-holder, if the decree-holder is dead.

c) Representative of the decree-holder.

d) Any person claiming under the decree-holder.

e) Transferee of the decree-holder, in case decree has been transferred by an assignment in writing or by operation of law.

f) One or more of the joint decree-holders, if for benefit of all the decree-holders and application is made for execution of whole decree and no contrary condition is imposed in the decree.

g) Any person having special interest.

AGAINST WHOM EXECUTION MAY BE TAKEN OUT

Execution may be taken out against the following persons:

i) Judgement-debtor.

ii) Legal representative of the judgement-debtor, if he is dead. However, they shall be liable to the extent of the property of the deceased judgement-debtor which has come to their hands.

iii) Representative of or the person claiming under the judgement-debtor.

iv) Surety of the judgement-debtor.

NOTICE OF EXECUTION: RULE 22

Rule 22 provides for the issue of show-cause notices to persons against whom execution is applied for in certain cases. As a general rule, the law does not require any notice to be issued for execution. In the following cases only, however, such notice must be issued:

1) Where an application is made two years after date of decree; or

2) Where an application is made against the legal representative of the judgement-debtor; or

3) Where an application is made for the execution of a decree passed by a court of reciprocating territory; or

4) Where an application is made against the assignee or receiver of insolvent judgement-debtor; or

5) Where the decree is for payment of money and the execution is sought for arrest and detention of judgement-debtor; or

6) Where an application is made against a surety; or

7) Where an application is made by the transferee or assignee of the decree-holder.

Omission to give notice is a defect which goes to the root of the proceeding and renders them null and void and without jurisdiction unless the judgement-debtor waives such notice. Moreover, Sub-rule (2) of Rule 22 empowers the court to dispense with such notice, if it would cause unreasonable delay or would defeat the ends of justice.

LIMITATION FOR EXECUTION

The period of limitation for the execution of a decree (other than a decree granting a mandatory injunction) is 12 years from the date of the decree. The period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the decree.

WHEN EXECUTING COURTMAY STAY EXECUTION? : RULE 26

The power to stay the execution of a decree by a transferee court is not similar to the power of the court which passes a decree. Whereas the transferor court can grant absolute stay, the transferee court can stay execution for a reasonable time to enable the judgement-debtor to apply to the transferor court or to appellate court to grant stay against the execution.

Where the judgement-debtor applies for stay of execution, the transferee court must obtain security from the judgement-debtor or impose such condition as it may think fit. The provision is thus mandatory and imperative. Rule 28 provides that the transferee court is bound by an order made by the court which passed the decree or by an appellate court in relation to execution of such decree.

STAY OF EXECUTION PENDING SUIT: RULE 29

Rule 29 enacts that where a suit by the judgement-debtor is pending in a court against the decree-holder, such court, may, on the judgement-debtor furnishing security or otherwise as it thinks fit, stay execution of the decree until disposal of such suit. For this rule to apply, there must be two simultaneous proceedings in one and the same court. The underlying object of this provision is twofold, namely, firstly, to enable the judgement-debtor and the decree-holder to adjust their claims against each other; and secondly, to avoid multiplicity of execution proceedings.

MODE OF EXECUTION: SECTION 51

The code lays down various modes of execution. After the decree-holder files an application for execution of a decree, the executing court can enforce execution. The substantive provision (Section 51) merely enumerates different modes of execution in general terms, while the conditions and limitations under which the respective modes can be availed of are prescribed by different provisions under Order 21. The Code provides the following modes for execution of different types of decrees:

1) Delivery of property.

2) Attachment and sale or by sale without attachment of any property.

3) Arrest and detention in prison for such period not exceeding as specified in Section 58.

4) Appointment of receiver.

5) Other manner as the nature of relief granted may require.

QUESTIONS TO BE DETERMINED BY EXECUTING COURT: SECTION 47

Section 47 is one of the most important provisions in the Code relating to execution. It applies only to matters arising subsequent to the passing of a decree and deals with objections to execution, discharge and satisfaction of a decree. It lays down the principle that matters relating to the execution, discharge or satisfaction of a decree arising between the parties, or their representatives, should be determined in execution proceedings and not by a separate suit.

Conditions

In order that this section may apply, the following conditions must be satisfied:

a) The question must be one arising between the parties to the suit in which the decree is passed or their representatives (not only legal representatives, but also representative-in-interest); and

b) It must relate to the execution, discharge or satisfaction of the decree.

Both the above conditions must be satisfied cumulatively.

NOTE: An order under Section 47 does not amount to a decree, it is not appealable under Section 96 and 100. A revision application under Section 115 of the Code is, therefore, maintainable provided the conditions laid down in Section 115 are satisfied.

SECTION 47 AND ORDER 21 RULE 58: DISTINCTION

Order 21 Rule 58 postulates that where any property(whether movable or immovable) is attached in execution of a decree, it is always open to the parties, their representatives or third parties having some right, title or interest in or possessed of the property attached, to raise objection against such attachment. If the objection is raised by a party or his representative, the question falls under Section 47 of the Code and should be decided by the executing court and not by a separate suit.

On the other hand, if such objection is raised by a third party, two courses are open to him. Firstly, he may straightaway file a suit claiming appropriate relief. Secondly, he may file an application under Order 21 Rule 58 of the Code to the executing court.

Section 47 applies to parties to the suit or their representatives, whereas, Order 21 Rule 58 applies to third parties or their representatives. Section 47 not only bars a suit but also bars an appeal, on the other hand, Order 21 Rule 58 bars a suit not appeal.

ORDER 21 RULE 58 AND ORDER 21 RULES 97 & 99: DISTINCTION

As we discussed above Order 21 Rule 58 deals with objections made by parties to the suit or third party with respect to the attachment of the property in execution of a decree, whereas, Order 21 Rule 97 talks about objections made by decree-holder or auction purchaser of immovable property after they are resisted or obstructed by any person (either judgement-debtor or third party) in obtaining possession of the said property delivered to them in execution of a decree, on the other hand, Order 21 Rule 99 stipulates objections made by third party only when he/she is dispossessed of immovable property by the decree-holder or auction-purchaser.

From this, it is amply clear that Order 21 Rule applies only when the property (whether movable or immovable) is attached in execution of decree, whereas, Order 21 Rules 97 & 98 comes into play only when the immovable property alone is delivered to judgement-holder or auction-purchaser in execution of a decree.

NOTE: An order passed under Order 21 Rule 98 or 100 on application under Order 21 Rule 97 or 98, respectively, is always subject to appeal and hence, can be challenged in appeal. But, any said order being passed summarily without making any inquiry or framing issues under Order 21 Rule 101, the aggrieved would be left with only one remedy i.e. Revision not appeal, as held by Hon’ble Supreme Court in Sameer Singh v. Abdul Rab Ors., 2014(4) RCR (Civil) 914.

CONCLUDING REMARKS

From the above discussion, it is manifest that the Code contains elaborate and exhaustive provisions for execution of decrees and orders and provide effective remedies not only to decree holders and judgement-debtors, but also to objectors and third parties. In exceptional cases, where provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can file a suit in a civil court. It is pertinent to apprise to the voracious readers here that in this article some topics like, procedure to be adopted for sale of property, resistance to delivery of possession, distribution of assets are left untouched in order to avoid giving too much length to this article. One can see Order 21 for the relevant provisions prescribed therein touching the said topics.

16TH September, 1985….. the date when the Indian legislature enacted an act in order to make stringent provisions for the control of operations relating to narcotic drugs and psychotropic substances, to implement provisions of the International Conventions on Narcotic Drugs and Psychotropic Substances and to provide for the forfeiture of property derived from, or used in illicit traffic in narcotic drugs and psychotropic substances. The name of the act is not oblivious to the legal practitioners.

Yes, THE NARCOTIC DRUGS and PSYCHOTROPIC SUBSTANCES ACT, 1985. Till date various amendments have been incorporated in the act in order to improve efficacy and achieve the object of the act. In this article, we will not discuss and touch all the provisions of the said act, but we will delve into one of the most vexed questions of law involved in the NDPS cases i.e. whether the powers given to empowered officer u/s 67 NDPS Act are akin and in pari materia with the powers u/s 161 Code of Criminal Procedure (CrPC)? Whether the empowered officer can record confession of the accused u/s 67 NDPS Act? Whether the confessional statement made by accused before officer empowered u/s 42 NDPS Act is admissible in evidence? If yes, whether it can be used against himself and co- accused? Whether empowered officers under NDPS Act are police officers?

Before proceeding further, we must understand the language embodied in section 67. Section 67 reads as under:

“67. Power to call for information, etc. – Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provision of this Act, –

(c) Examine any person acquainted with the facts and circumstances of the case.”

From the perusal of the section 67 in harmony with the entire provisions of the act, it is manifest that there is no power authorised to the empowered officer to record confession of the accused and if recorded, what is its admissibility. Unlike Terrorist and Disruptive Activities act, 1987, the NDPS Act is utterly silent about the recording of confession or making such confession admissible in the eyes of law. But, said section 67(c) empowers the officer authorised u/s 42 to examine any person acquainted with the facts and circumstances of the case. Now, does the word ‘any person’ connotes the expression accused also? Why the legislature inserted word ‘enquiry’ in section 67 rather than the word ‘investigation’?

The NDPS Act nowhere defines the word ‘enquiry’. The dictionary meaning of word enquiry is, an act of asking information, an official investigation. But, the officer empowered u/s 42 NDPS Act has no power to investigate the offences under NDPS Act. Officers empowered u/s 42 are only authorised to enter and search the place, seize the NDPS and arrest the person believed to have committed the offence under NDPS Act. Such power of investigation of an offence can only be exercised by an officer-in-charge of a police station within whose local jurisdiction the offence is committed (see section 156 CrPC). Nevertheless, section 53 of the NDPS Act empowers the Central or State Govt. to invest powers of an officer-in-charge of police station for investigation of offences under NDPS Act, by issuing a notification in Official Gazette. If such officer is not appointed by such govt., then, such powers of investigation has to be exercised by officer-in-charge of local police station.

From the above discussion, it can be concluded that the word ‘enquiry’ used in section 67 NDPS Act for the situation where enquiry is required before conducting the proceedings enshrined in section 42 i.e. entry, search, seizure and arrest, not investigation. Such an argument can be fortified with the provision of section 52(3), which mandatory requires the officer u/s 42 to take the person and article seized to officer-in-charge of nearest police station, or to the officer empowered u/s 53. Therefore, the answer is that the word ‘any person’ used in section 67 cannot be in any case contemplated to include accused person as before the said proceedings u/s 42 by the empowered officer the person can never be in custody of such officer. Moreover, the legislature used the word ‘enquiry’ in the said section rather than word ‘investigation’, which also showcases the intention of legislature to limit the use of section to enquiry for section 42 only, not for investigation of offences under the act. This leads to the answer of another question that power u/s 67 is not akin to power u/s 161 CrPC as the power u/s 161 CrPC can be used during the course of investigation by officer-in-charge of police station, whereas, the power u/s 67 NDPS Act can be exercised only officer empowered u/s 42 NDPS Act with a view to achieve object and purpose of section 42 only, not otherwise. It implies that no confession u/s 67 can be recorded by an empowered officer u/s 42. However, any confession, if any, under NDPS Act can be recorded only by an officer-in-charge of police station conducting investigation or by an officer appointed in this behalf u/s 53 of the said Act.

Now, the next conundrum is whether the confession recorded under NDPS Act by the officer-in-charge of police station or officer appointed u/s 53 is admissible in the eyes law? As far as the question of confession before officer-in-charge of police station is concerned, the section 25 of the Indian Evidence Act is very much clear on this aspect. Section 25 of the Indian Evidence Act reads as:

“25. Confession to police officer not to be proved. – No confession made to a police officer, shall be proved as against a person accused of any offence.”

Meaning thereby, no confession made before officer-in-charge of police station investigating offence under NDPS Act is admissible and hence, cannot be relied upon as officer-in-charge of police station is a police officer. But, whether officer invested with powers of investigation u/s 53 NDPS Act is a police officer for the application of section 25 evidence act? This question was first answered by Hon’ble Supreme Court in the case Raj Kumar Karwal vs Union of India, 1990(1) R.C.R. (Criminal) 719, wherein, it was held that departmental officers given powers of police u/s 53 NDPS Act are not police officer and hence, confession made before them is not hit by section 25 and therefore, admissible. Thereafter, this question was again came for consideration before Hon’ble Supreme Court in Kanhaiyalal vs Union of India, 2008(1) R.C.R. (Criminal) 610, where the Hon’ble Apex Court relying upon decision of Raj Kumar Karwal (supra) held that confession made before officer of NCB is admissible in evidence and the said officer is not a police officer within meaning of section 25 of Evidence Act. But, in the year 2013, the Hon’ble Apex Court doubted the correctness of ratio of Kanhaiyalal (supra) case in Tofan Singh vs State of Tamil Nadu, 2013(4) R.C.R. (Criminal) 631 and refer the matter to larger bench saying that a re-look is required into case of Kanhaiyala (supra) for reconsideration of the issue as to whether the officer investigating the matter under NDPS Act would qualify as police officer or not.

Well, by the time the matter is pending before the larger bench of the Hon’ble Supreme Court, the courts should refrain themselves from adopting the ratio of law laid down in Raj Kumar Karwal (supra) and Kanhaiyalal (supra) since the law laid down in both the said cases is incorrect because the decision in the said cases was formed without discussing the object of NDPS Act, the provisions of NDPS Act, especially section 42, 53 and 67, and the object of section 25 evidence act. Moreover, it can be noted down here that at the time of framing evidence act, the legislature must not have even contemplated that such a situation of investing powers of police to departmental officers (see S.53) would arise in the future and not even so, it is basic principle of law that legislature is always presumed to have known all the existing laws and if the legislature intends to not to include departmental officers within the purview of section 25 evidence act, it would have amended the section 25 of the said act too. Furthermore, unlike TADA Act, no express provision has been incorporated in the NDPS Act to make the confession of accused admissible. This implies that the legislature never intended to make confession under NDPS Act admissible.

EPILOGUE

The following conclusion can be deduced from the aforesaid deliberation:

(1) That under the NDPS Act, no confession can be recorded u/s 67 since the no such power has been invested with the empowered officer u/s 67 either explicitly or impliedly.

(2) That confession of an accused, under NDPS Act, can only be recorded by an officer-in-charge of concerned police station conducting investigation or the officer empowered by the government u/s 53 NDPS Act.

(3) The office empowered to investigate u/s 53 are also police officers within the meaning of section 25 Evidence Act.

(4) That confession recorded by officer empowered to investigate u/s 53 can never be admissible in the eyes of law, unless there is such express provision in the NDPS Act, as it would be against the policy and object of section 25 Evidence Act.

What prodded me to write this Article is that in a slew of orders passed by the subordinate courts of Judicial Magistrates, especially in Haryana state, it is usually observed as a general practice that the said courts after declaring the accused a proclaimed offender or proclaimed person under section 82 of Code of Criminal Procedure, 1973 (hereinafter referred to as CrPC) direct the SHO of concerned local police station having jurisdiction to register FIR under section 174-A of Indian Penal Code, 1860 (hereinafter referred to as IPC) against the said proclaimed offender or person, as the case may be. This particular approach of the said courts is against the mandate of procedural law governing criminal trials i.e. CrPC and hence, such illegal orders are liable to be quashed on this score only. Needless to say that such type of orders passed by the said courts transcend the machinery of law and would impinge on the civilized society.

Now, what makes us perturbed that if this is so, then, what would be the appropriate procedure to be followed by the subordinate courts while initiating legal action against such a person who disobeys the orders of the court and does not appear in response to proclamation u/s 82 CrPC? In order to demystify this, we must take aninsight into the provisions enumerated in the CrPC prescribing the procedure to be pursued while initiating a legal action against a person accused of offence punishable under section 174-A IPC. Section 195 is the only provision governing mode of procedure to be kept in mind and followed by the courts while taking cognizance of the said offence. The relevant portion of Section 195 is being reproduced below for the sake of expediency:

195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. – (1) No Court shall take cognizance –

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

The section falls under the “Chapter XIV – Conditions Requisite for Initiation of Proceedings” and starts with a headline `Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence’. The headline and explicit wordings of the section suggest that the ambit of this section is limited for the prosecution of prescribed offences i.e. Sections 172 to 188 IPC (both inclusive) and Sections 193 to 196 IPC (both inclusive) and Sections 199, 200, 205 to 211 IPC (both inclusive) and section 228 IPC and sections 463, 471, 475 or 476 IPC or their attempt or conspiracy or abetment and no court shall take cognizance of the said offences, except on the complaint in writing of the public servant concerned or court, as the case may be. From the bare and meticulous reading of the said section, it is conspicuous that no court can take cognizance of offence punishable under section 174-A IPC, except on the complaint in writing forwardedby the concerned court to the Magistrate having jurisdiction or to the Chief Judicial Magistrate, which implies that any direction or order by the Magistrate for registration of FIR u/s 174-A IPC is nothing but a flout.

Two more points would bolster and espoused my stand on this particular issue are that firstly, it can be argued easily by the ones who lambasting that the meaning of the word `complaint’ in section 195 can be liberally interpreted to the extent that an FIR can be regarded and treated as complaint in these circumstances. Yours truly answer to this flak is a big NO as the legislature never intended to do so. The obvious reason is that the object of imposing this limitation is to save the accused from vexatious or baseless prosecutions prompted by vindictive feelings and to adopt one of the principles of natural justice i.e. no one can be judge in his own cause (NemoJudex In CausaSua) and further, the section starts with words `No Court Shall Take Cognizance’ and coupled with exception `except on the complaint in writing’ which in itself shows the court can take cognizance only on the complaint in writing forwarded to it. Moreover, section 2(d) of CrPC postulates that complaint means any allegation made to a Magistrate and the word complaint used in section 195 also entails the same meaning. Secondly, one can easily say that the particular provision was inserted in the code in the year 1973, but, section 174-A was incorporated in IPC by way of amendment in year 2006 and the legislature did not amend section 195 corresponding to that section and therefore, section 195 is not applicable on section 174-A IPC. This argument is absolutely fallacious and is superfluous as had it been the intention of the legislature to make section 195 CrPC not applicable on section 174-A IPC, then, it would have amended section 195 to that extent and carved out an exception, but, this has not been done so and moreover, it is trite law that the legislature is presumed to know the existing laws. Further, section 195 CrPC applies to offences punishable for contempt of lawful authority of public servants and Section 174-A IPC also falls under the Chapter -X”Of Contempt of Lawful Authority of Public Servants”, which makes the intention of the legislature to include section 174-A IPC in section 195 CrPC very apparent.

Epilogue

“Justice must not only be done, but must be seen to be done”. While rendering a decision and imparting justice, the above said golden lines of legal jurisprudence must be clung to the dogmatic and unprejudiced approach of the courts. It is a clarion call for adopting a just mechanism of law to mete out justice. Courts must adopt a procedure which can pave the way for both the parties to seek justice.

With these remarkable words, it is, hereby, concluded that it is the bounden and unforgettable duty of the subordinate courts that the must adopt and follow the prescribed procedure before initiating proceedings against an accused so as to espouse the tenacious belief of people in the judicial system. Therefore, the prescribed procedure as enumerated in section 195 CrPC must be followed by the subordinate courts after declaring a person as proclaimed offender or proclaimed person, as the case may be.

Suppose a person X is an accused in the offence of commission of murdering Z and he has been arrested by the police. During investigation, X confesses in police custody that he has committed murder of B by giving him knife blow in his stomach and after the murder, he concealed the knife used in the offence at a place which only he knows and he can help the police in getting the same recovered from that place. Now, in this entire confessional statement of accused X in police custody, the statement with respect to factum of commission of murder is a confession, but the statement or information disclosing the factum of concealment of weapon of offence and recovering of the same in its consequence is a disclosure statement of an accused. In other words, when something is discovered as a result of information or statement given by accused in police custody, that statement is known as “Disclosure Statement”. It can be a confessional or not, which depends upon the facts and circumstances of a case. In Indian law, there is no use of word `Disclosure Statement’, but there is a provision introduced in the Indian Evidence Act, 1872 (hereinafter referred as “the Act”), i.e. Section 27, which corresponds with such concept. Section 27 of the Act provides that when any fact is discovered in consequence of information received from a person accused of any offence, in police custody, such information as relates to that fact discovered can be proved (see section 27). It is founded on the principle that even though the evidence relating to a confessional or other statements made by a person in police custody is tainted and so 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 insofar as it distinctly relates to the fact thereby discovered.

But the questions fall for consideration here are that whether section 27 applies only to information received in police custody? Whether section 27 is a proviso and if yes, to which sections? Whether section 27 is proviso to section 24 also? Whether section 27 needs to be amended in view of public interest and achieving its principle object? In this article, we would delve into these aspects and try to reach at some reasonable and logical conclusion.

Section 27 is one of the most important, but, at the same time, one of the most controversial sections in the Evidence Act. It has tremendous bearing upon criminal proceedings in the courts in the country. The section starts with the word “provided”. Therefore, it can be said that it is a proviso to the previous sections. But, it is not clear to which section, among section 24 to 26, it is a proviso. There is no difficulty that section 27 is a proviso to section 26. But is it also a proviso to section 25, where statement leading to a discovery are made by accused not in custody? In Pakala Narayanaswami’s case (AIR 1939 PC 47), the Privy Council observed that “section 27 seems to be intended to be a proviso to section 26”. In Udai Bhan v. State of UP AIR 1962 SC 1116, the Supreme Court observed that section 27 is a proviso to section 26. In State of UP v. Deoman Upadhaya AIR 1960 SC 1125, the majority of Supreme Court judges rejected a plea that section 27 is violative of Article 14 as section 27 applies only to statements made in police custody and not to statements made by persons not in police custody. The majority observed that this anomaly in regard to inadmissibility of statements by persons not in custody is the result of section 162 of Code of Criminal Procedure and not because of anything in the Evidence Act. Hence, Art. 14 is not violated if facts discovered in consequence of statement by persons in custody are relevant and admissible and not by persons who are not in custody. However, Subba Rao J. held the provision in section 27 discriminatory if it applied only to statements made u/s 26 and not u/s 25.

In fact, a three Judge Bench in Chinnaswamy’s case (AIR 1962 SC 1788) stated that section 27 is an exception to section 25 also. In Aghnoo Nagesia case (AIR 1966 SC 119), this view has been reiterated (see Sanjay v. State Govt. of Delhi 2001(3) SCC 190; Pandurang Kalu Patil & Anr v. State of Maharashtra 2002 (1) JT SC 229). That means the discoveries made pursuant to statements falling u/s 25 by persons not in custody are also admissible. Further, if what is admissible u/s 27 is a) discovery of material object, b) place where it was discovered and c) knowledge of the accused about the object, then such facts are relevant and admissible even when the accused is not in police custody, either u/s 8 (subsequent conduct) or u/s 9 . So, there is no reason for not applying section 27 to statements leading to discovery made under section 25. Hence, in my view, Section 27 is a proviso not only to section 26, but also to section 25. Therefore, the view adopted by the majority bench in Deoman Upadhaya supra is incorrect and needs to be reconsidered.

Now, the next question is whether section 27 is a proviso to section 24 also? The answer to this particular question is also not provided in the Act. Section 24 of the Act is founded on the principle of public policy. The object and legislative intent behind the insertion of this section is to discourage the practice of threat, inducement, promise and coercion in extracting the confession of a person. It is intended to discourage the tendering of hopes or promises or the exercise of coercion, in order to induce or compel the making of confessions. Section 24 is not based merely on the criterion of truth. It is intended to discourage coercion in the wide sense for securing confessions. Section 24 enacts a rule which should have universal application. In various countries, including UK, USA and CANADA, all discoveries, including those made from statements obtained by threat, inducement or promise and coercion are treated as admissible. But the Law Commission of India in its 69^th report proposed exclusion of facts if obtained by threats, inducement or promise. The Commission felt that if such facts were part of statements made in circumstances provided in section 24, i.e. threats, inducement or promise that would encourage police or other person to act arbitrarily. Hence, facts revealed from statements falling u/s 24 should not to be admissible. The paramount rule of policy embodied in section 24 must override section 27. But, the review committee on the said 69^th report recommended that inducement and promise should be segregated from threat, violence or torture and treat discoveries made from statements obtained by inducement and promise admissible, while making facts obtained by threats, coercion or violence or torture inadmissible, in order to strike right balance between the right of the accused on the one hand and the public interest involved in making such facts relevant. In my view, the said recommendation proposed by review committee is absolutely correct and in view of the same, necessary amendments should be done in section 27.

Conclusion

From the above discussion, it can be rightly concluded that the legislature must look into the anomalies of section 27 and amend its provision considering the following aspects:

(1) Section 27 should be made applicable on accused persons not in police custody,

(2) If an accused person confesses or provide any information to police or any person, whether in police custody or not, and in consequence to that information or statement, any fact is discovered, then such fact and information must be admissible in evidence, whether such information or statement has been obtained by inducement or promise, but not by threat or coercion or pressure, if the fact discovered is especially within the knowledge of such accused person only and not others.

(3) Section 27 must be made proviso or exception to general rules of admissibility of confession or statement made by an accused as contained in sections 24, 25 and 26 of the Act or in other provisions of law governing statements made by accused i.e. Section 161 CrPC read with 162 CrPC, by making necessary amendment in its provision. As of now, the plain reading of the section portrays it as an exception to Section 26 only as the word “in the custody of a police officer” is used in the language of the section.

“God removes the sin of the one who makes humble confession, and thereby the devil loses the sovereignty he had gained over the human heart” –

Saint Bernard

One who is guilty of sin must be punished, but, sometimes a person admits or confesses his guilt to purge his soul from sin. Sin is an act of transgression against divine law. In Hinduism, sin describes actions that create negative karma by violating moral and ethical codes, which automatically brings negative consequences Muslims see sin as anything that goes against the commands of Allah (God). Judaism regards the violation of commandments as a sin as long as the sinner is aware of the commandment. In Jainism, sin refers to anything that harms the possibility of the jiva (being) to attain moksha (supreme emancipation). Not all confessions reveal sin or wrongdoing. Some are often considered positive both by the confessor and by the recipient of the confession, for e.g. a confession of love, which is a common theme in literature. But, a legal confession involves an admission of some wrongdoing that has legal consequences. People may undertake confessions in order to relieve feelings of guilt or to seek forgiveness from a wronged party.

At present, in Indian law, majorly the Indian Evidence Act, 1872, hereinafter referred as Evidence Act, governs the principles of admissibility of confession made by an accused person and the Code of Criminal Procedure, 1973, hereinafter referred as CrPC, postulates the appropriate procedure to be followed by the Indian courts while dealing with the confessions of accused persons so as to ensure fair trial (see section 164 CrPC). Sections 24 to 30 of the Evidence Act deal with the confessions. Of these, Sections 24 to 26 deal with confessions which are irrelevant and Sections 27 to 30 enumerates confessions which the court will take into account. Now, the question is that what is a confession and in what way does it differ from an admission? The answer to this question is found in the classic judgement of the Judicial Committee of the Privy Council in Pakala Narayana Swami v. King Emperor, AIR 1939 PC 47 :

“No statement that contains self-exculpatory matter can amount to confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit interms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other mans possession.”

This shows that all confessions are admissions but not vice versa. Further, there can be an admission either in civil or criminal proceeding, whereas there can be a confession only in criminal proceeding.

Classification of Confessions

Confessions are classified as follows: 1) Plenary, and 2) Non-plenary, i.e. complete or incomplete. In view of the nature of a confession as explained in the Pakala Narayana Swami case supra, this classification is inapplicable in India. Another method of classifying confessions is into: 1) Judicial, and 2) Extra- judicial confessions. Judicial confessions are those made before a court or recorded by a Magistrate u/s 164 CrPC. Extra- judicial confessions are those made either to the police or to any other person other than judges and Magistrates as such.

But, the legal quagmire emanates when an accused himself gives the FIR to the police and admits his guilt therein, which poses a significant question that whether in such circumstances, the inculpatory portion of such statement should be excluded from evidence? Whether self- exculpatory statement can be admitted in evidence if otherwise relevant? This very much issue prompted me to write this article and in this article, we would discuss this issue in depth and try to reach at some reasonable conclusion.

Now, before proceeding further, we must take a glance at the Section 154 CrPc which deals with registration of FIR i.e First Information Report (though the section does not use the word First Information Report or FIR). The said section provides that every information relating to the commission of cognizable, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction and shall be read over to the informant and must be signed by the person giving the information and the substance of such information shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. The Constitution bench of the Supreme Court in the case Lalita Kumari v. Govt. of UP, held that registration of FIR is mandatory u/s 154 CrPC if the information discloses commission of a cognizable offence.

Evidentiary Value of FIR

The issue is no longer Res Integra that an FIR is not a substantive piece of evidence i.e. it cannot be used as evidence to prove a fact in issue or relevant fact, however, it is a relevant fact u/s 8 Evidence Act, as it is a statement which accompany and explain acts other than statements i.e. an FIR gives information, expresses grief and dissatisfaction in a hope that action would be taken against the person against whom the complaint was made. It can be used to corroborate or contradict the informant u/s 157 and 145 of Evidence Act, respectively, if such informant is called as a witness.

Confessional FIR

Suppose, a person A commits murder of his wife B and thereafter, goes to the police station and confesses his guilt and describe the factum and manner of said murder to the police and the police, thereafter, arrested him and registered an FIR u/s 302 Indian Penal Code, 1860, hereinafter referred as IPC, on the basis of the said confession made by A. This is called “Confessional FIR”. The Indian Evidence Act does not define the word “confession”. For a long time, the courts in India adopted the definition of “confession” given in Article 22 of STEPHEN’s DIGEST OF THE LAW OF EVIDENCE. According to that definition, a confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. This definition was discarded by the Judicial Committee in Pakala Narayana Swami case supra and the observations made therein were received the approval of Honble Supreme Court in Palvinder Kaur v. State of Punjab, AIR 1952 SC 354; State of UP v. Deoman Upadhyaya, AIR 1960 SC 1125; Om Prakash v. State AIR 1960 SC 409; Veera Ibrahim v. State of Maharashtra (1976) 2 SCC 302; Jameel Ahmed v. State of Rajasthan AIR 2004 SC 588.

Evidentiary Value of Confessional FIR

The Supreme Court had examined the quagmire of evidentiary value of a confessional FIR in Aghnoo Nagesia v. State of Bihar, AIR 1966 SC 119. The brief facts of the case are that the appellant murdered Somra and later Chamin and then Ratni and Dilu. The FIR of the offences was lodged by the appellant himself at the police station, which was reduced to writing by the officer in charge and the appellant affixed his left thumb impression on it. Thereafter, the Sub-Inspector took cognizance of the offence and arrested the appellant.

In that case, the FIR was divided into 18 parts. Parts 1, 15 and 18 show that the appellant went to police station to make the report. Parts 2 and 16 show his motive for the murders. Parts 3, 5, 8 and 10 disclose the movements and opportunities of the appellant before the murders. Part 8 also discloses his intention. Parts 4, 6, 9 and 11 disclose that the appellant killed the four persons. Part 12 discloses the killing and the motive. Parts 7, 13 and 17 disclose concealment of a dead body and a tangi (murder weapon) and his ability to point out places where the dead bodies and tangi were lying. Part 14 discloses the previous confession by the appellant. The High Court admitted in evidence Parts 1, 2,3, 5, 7, 8, 10, 13, 15, 16, 17 and 18 and convicted the appellant.

While deciding this case, the Supreme Court made following observations:

(1) It is not permissible in law to separate one part and to admit it in evidence as a non- confessional statement, which may reveal motive, preparation, opportunity, intention, subsequent conduct of accused, etc. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. If the confession is tainted, the taint attaches to each part of it.

(2) If proof of the confession is excluded by any provision of law such as Sections 24, 25 and 26, Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating fact must also be excluded, unless proof of it is permitted by some other section such as Section 27, Evidence Act.

(3) If the FIR is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27.

Hence, in Aghnoo Nagesia case, the Supreme Court held that save and except Parts 1,1 15 and 18 identifying the appellant as maker of the FIR and save and except the portions coming within the purview of Section 27, the entire FIR must be excluded from evidence. It implies that an FIR recorded on the basis of statement of the accused cannot be admitted in evidence to the extent to which it is a confession, in view of ban provided in Section 25 Evidence Act, which says that “No confession made to a police officer shall be proved as against a person accused of any offence.”

It is important to note here that in the said Aghnoo Nagesia case supra, the Honble Supreme Court has acquitted the appellant from all the charges and set his life at liberty.

Epilogue

In summing up, it is hereby concluded that the observations by the Honble Supreme Court in Aghnoo Nagesia case supra, require reconsideration for the following reasons:

(a) The confession of an accused person should not be taken as whole. It has to be separated from other incriminating facts which may be self- exculpatory in nature but not inculpatory which point towards adverse inference against the accused showing his guilt of the crime.

(b) In a statement of an accused made especially in such peculiar circumstances where he himself lodges an FIR and confesses his guilt, such statement has to be divided into parts and should not be accepted as tainted in Toto, except confessional one, because such statement, if not made during investigation, does not hit by embargo provided u/s 162 CrPC and can be proved against an accused by invoking provisions of Evidence Act, if such fact is otherwise relevant under Indian Law of Evidence, such as Section 7, 8, 9, 14, 27 and others.

(c) While deciding such an issue, it has to be looked into the factor that in such circumstances, the accused cannot be in custody of the police and he himself approaches the police and lodges the FIR and confesses, which implies that such statement in the form of FIR is voluntary and cannot be said a tainted one.

(d) If the discovery of an article by an accused in consequence of his confessional statement made in police custody can be a relevant fact under section 27 Evidence Act, then why and for what reasons the non-inculpatory facts, though incriminating in nature, in a confessional statement should be excluded and brushed aside by not separating such facts from confessional one and considering it as a tainted one, if such facts are otherwise relevant under provisions of Evidence Act.

(e) The assumption whether the whole statement is a confession may also be re-examined in view of the observations of the Privy Council in the Pakala Narayana Swami case.

Therefore, it is respectfully submitted here that when the accused himself lodges FIR to the police and confesses his guilt, the inculpatory portion of statement only should be excluded from the evidence, but no other. It is, hence, most respectfully submitted that the view in Aghnoo Nagesia case that the entire statement is tainted may be reconsidered.

On 5 August 2019, the Hon’ble President of India Sh. Ram Nath Kovind issued a constitutional order i.e.the Constitution (Application to Jammu and Kashmir) Order, 2019, hereinafter referred as Order, 2019 superseding the Constitution (Application to Jammu and Kashmir) Order,1954, hereinafter referred as Order,1954 and making all the provisions of the Indian constitution applicable to Jammu and Kashmir. It is pertinent to note here that the said Order, 2019 has in no case abrogated the Article 370 as the said Order, 2019 has been issued in exercise of powers conferred under Article 370(1) not under Article 370(3). The issuance of the said Order, 2019 brings a lot of happiness on the faces of the people of the country and everyone started eulogising the Narender Modi led Government of India. On the other hand, there is a group of people who is opposing and lambasting the Namo government for such a step being unconstitutional and hence illegal, which poses an important question that is, whether the Order, 2019 is made within the constitutional limits?

Before parting with this issue, one must understand the historical background of Article 370 as what was the need of the hour to insert Article 370 in the Constitution of India. On October 26, 1947, the princely state of Jammu and Kashmir accedes to India after execution of a legal document called as Instrument of Accession, hereinafter referred as IoA, by Maharaja Hari Singh, then ruler of J&K. The IoA gave India’s parliament the power to legislate in respect of J&K only on the matters of defence, external affairs and communication and matters ancillary thereto. Clause 7 of the IoA declared that the state could not be compelled to accept any future Constitution of India. The state was within its rights to draft its own Constitution and to decide for itself what additional powers would extend to the Central government. In view of this, the representatives to the constituent assembly of J&K requested that only those provisions of the Indian Constitution that correspond to the original IoA should be applied to the state. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other Articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the state’s constituent assembly or government of the state. This was a “temporary provision” as its applicability was intended to last till the formulation and adoption of the state’s constitution. However, the state’s constituent assembly dissolved itself on 25 January, 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article 370 has become a permanent feature of the Indian Constitution and cannot be abrogated, as also confirmed by various rulings of Supreme Court of India, see State bank of India v. Santosh Gupta, Law Finder Doc Id #813963, and the High Court of Jammu and Kashmir.

We are all not oblivious of the situation that since June 20, 2018, the state of Jammu and Kashmir is under the Presidential rule after dissolution of the state assembly, which also raises a question that whether after dissolution of state assembly, the Order,2019 can be made? The answer to this question lies in the Article 370(1) itself. Article 370(1) enumerates four fundamental aspects, firstly, Parliament has power to make laws for the state of J&K only to those matters which are correspond to matters specified in the IoA, which are defence, external affairs and communication and matters ancillary thereto, secondly , Parliament has power to make laws of such other matters in the Union List and Concurrent List specified by the President in an order, with the concurrence of the Government of the state only, thirdly, the provisions of Article 1, Article 268 and Article 370 shall apply to J&K State, which cannot be abrogated except under the purview of Article 370(3), fourthly, other provisions of the Constitution of India shall apply to the state of J&K, subject to exceptions and modifications as specified by the President in an Order, with the concurrence of the Government of J&K only. From the bare reading of the Article 370(1), it is apparent that the provisions of Article 1, Article 268 and Article 370 shall in every case, except in the case of abrogation or cessation under Article 370(3), apply to J&K and secondly, the president can, only with the concurrence of the J&K government, make an order to the effect of applicability of the provisions of Constitution of India (except Article 1, 268 and 370), which implies that in no case the President can make an order without the concurrence of the Government of J&K in view of Article 370(1)(c) which makes the Article 370 applicable to J&K in all cases, except in the case of abrogation under Article 370(3), which means that if the government of J&K gives its nod or concurrence to the order made by President prior to its promulgation, only in that case the order will be binding upon the said state and not otherwise, which depicts that in present scenario, the promulgation of Order,2019 is purely unconstitutional and repugnant to the basic objective and soul of the IoA and Article 370 as the said Order, 2019 has been made without the recommendation or concurrence of the state government of J&K.

Now, if we closely scrutinise the said Order, 2019, it will transpire to us that the Order, 2019 has been made with the concurrence of the government of the said state, notwithstanding the fact that at present, there is no government exist in the said state and the state is under the President’s rule, which makes only one possibility, i.e., the Order, 2019 has been made with the concurrence of the incumbent Governor of J&K. But, whether the concurrence of the Governor means the concurrence of the said state government as per Article 370. The answer to this question is a big NO. For this, we have to read Article 370 with the Order, 1954. The Order,1954 explicitly states the government of the state of J&K includes Governor of J&K acting on the advice of Council of Ministers, which implies that the Governor alone without advice of Council of Ministers cannot accord his concurrence. Resultantly, in the present situation when the said state in under President’s rule, the governor cannot accord his concurrence for the making of order under Article 370, which in itself makes the Order, 2019 illegal and unconstitutional and preposterous one.

Secondly, the said Order, 2019 has indirectly amended Article 370 which transgressed the limits of the Constitution of India. The said Order, 2019 has amended Article 370(3) by substituting the expression “Constituent Assembly” with “Legislative Assembly of the State”, which is also abhorrent to the constitutional provisions as the President cannot amend the constitution in any case since such power only vests with the Parliament (Article 368) and even when Parliament is not in session, then also, the President cannot amend the Constitution by promulgating Ordinance. Resultantly, such an amendment in Article 370(3) ought not to have been done without being tabled, discussed and debated in the Parliament of India and after the concurrence by the state government of J&K.

The Order, 2019 does not repeal or revoke Article 370 by using Article 370(3). However, it makes Article 370 excessively weak and brings a monumental change in its strength and made the Article 35-A completely ineffective. Such a step taken by the President is nothing but a severe blow on the constitutional machinery and democracy of the India while keeping at stake the fraternity, equality and justice, which perturbed the residents of J&K and their future seem to have been in shambles to them. The Order, 2019 may be challenged soon and the interpretation given by the Supreme Court shall prevail at the end.