New Delhi: A political row erupted Sunday after reports claimed that CPI(M) general secretary Sitaram Yechury, Swaraj Abhiyan leader Yogendra Yadav, economist Jayati Ghosh, Delhi University professor and activist Apoorvanand, and documentary filmmaker Rahul Roy have been named in a supplementary chargesheet filed by the Delhi Police in one of the cases related to the February riots in Northeast Delhi .
The chargesheet had been filed against members of Pinjra Tod activists Natasha Narwal and Devangana Kalita, and student activist Gulfisha Fatima.
However, the Delhi Police later clarified that Yechury, Yadav, Ghosh, Roy and Apoorvanand featured in the chargesheet only because some of the accused had mentioned them in their disclosure statements.
ThePrint here explains what are disclosure statements and if someone can be apprehended on its basis.
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Confession to police not admissible as evidence
Section 25 of the Indian Evidence Act makes confessions made before police officers inadmissible as evidence.
But Section 26 states that a confession made in the presence of a magistrate can be used as evidence. The law also lays down the safeguards and procedures to be followed when a magistrate records a confession.
According to Section 164 of the Code of Criminal Procedure (CrPC), before recording any such confession, the magistrate has to explain to the confessor that it may also be used as evidence against her or him.
The provision also says the magistrate will not record any such confession unless “he has reason to believe that it is being made voluntarily”.
Section 25 of the Indian Evidence Act also states that if the court, during proceedings, feel that the confessions may have been made due to any “inducement, threat or promise” from “a person in authority”, the disclosure is considered irrelevant in a criminal proceeding.
These provisions provide safeguards against involuntary confessions being extracted by the police through torture techniques.
What are disclosure statements?
While the law doesn’t use the phrase ‘disclosure statements’, it is used in the context of Section 27 of the Indian Evidence Act.
Section 27 allows limited use of information, which an accused may have disclosed to the police while in custody, as evidence. It states that when an unknown fact is actually discovered, consequent to information given by an accused, it may be used as evidence.
The rationale behind this provision is that the ‘fact’ would have remained unknown but for its disclosure by the accused.
“Discovery of facts itself, therefore, substantiates the truth of the confessional statement. And since it is truth that a court must endeavour to search, Section 27 aforesaid has been incorporated as an exception to the mandate contained in Sections 25 and 26 of the Indian Evidence Act,” the Supreme Court has explained.
A few examples
In a 1962 incident that took place in Uttar Pradesh, a box and some cash were stolen from a shop. During interrogation, the accused handed over the box to the police and also gave them a key, which he said was used to open the shop’s lock.
The police had submitted that the discovery of a key as well as the box should be admissible as evidence. But the Supreme Court had explained which part of the above disclosures would be admissible.
“The handing over of the key is not a confessional statement but the confession lies in the fact that with that key the shop of the complainant was opened and, therefore, that portion will be inadmissible in evidence and only that portion will be admissible which distinctly relates to the fact discovered i.e., the finding of the key,” the top court had said.
The recovery of the box was also considered admissible. The apex court also explained that the discovery of fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence.
In a 2014 judgment, a man had led the police to the body of a four-year-old girl, who he was accused of raping and murdering. His disclosure statements had also led to the discovery of the place where he had washed his blood-smeared clothes.
The Supreme Court had held that all these discoveries were admissible under Section 27 of the Indian Evidence Act.
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Arrest on basis of disclosure statements
When asked if there is the possibility of a person named in a disclosure statement to be apprehended, Delhi-based criminal lawyer Amish Aggarwala told ThePrint, “If in a disclosure statement, somebody else’s name crops up, they are likely to be apprehended and proceeded against by investigating officers.”
He added, “For the investigating officers, the name to crop up is enough. At the time of the trial of course, there will have to be much more evidence to prove anybody’s guilt beyond a reasonable doubt. But for the time being, a disclosure statement by itself is enough.”
Aggarwala also said it is up to the court to finally decide which part of a disclosure statement is finally admissible “because there is a possibility of there being no discovery of fact in that statement or of there being coercion”. But till then, he said, the authorities are “at liberty to use disclosure statements to aid the investigation as they see fit”.
What if a disclosure statement is not signed
In the case of Yechury and the others, the chargesheet also makes it clear that Narwal and Kalita refused to sign their statements.
The Supreme Court has held in the past that absence of signatures of the accused on a disclosure statement does cast a doubt on its reliability.
“The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement,” the court observed.
However, courts have also pointed out that Section 27 itself does not specifically require the maker of the statement to sign it or affix their thumb impression on it.
Section 162 of the CrPC specifically says that no statement made by any person to a police officer shall be signed. Clause 2 of Section 162, however, says this provision does not apply to statements made under Section 27 of the Indian Evidence Act.
In this context, the Supreme Court has also held that just because a disclosure statement was signed, that does not make it inadmissible.
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