Accused at the Time of the Statement Was Not in the Custody of the Police - Discovery Statement Held Inadmissible Under Section 27: Supreme Court

“Custody Is Sine Qua Non”, In a significant ruling on the scope and applicability of Section 27 of the Indian Evidence Act, 1872, the Supreme Court on 17 February 2026 held that a discovery statement made by an accused prior to being taken into police custody is inadmissible under Section 27. The Bench of Justice Sanjay Kumar and Justice K. Vinod Chandran set aside the conviction of a stepfather accused of murdering his six-year-old stepdaughter, holding that the recovery allegedly made on his disclosure could not be relied upon under Section 27 as he was not in custody at the time of making the statement.

The judgment is a crucial reaffirmation that “custody” is an essential pre-condition for invoking Section 27 and cannot be diluted merely because recovery followed the statement.

Recovery Before Arrest

The prosecution case rested partly on a memorandum dated 13.10.2018 at 10:30 A.M., allegedly recording the accused’s statement that he would show the place “where her bones and ashes are and the place where her skull and bones were.” Acting on this information, the police recovered burnt bones from a field and a skull and teeth from a canal.

However, the arrest memo on record revealed that the accused was formally arrested only at 22:00 hours on the same day—several hours after the recovery was effected.

This discrepancy formed the core legal issue before the Supreme Court: whether Section 27 could apply when the accused was not in police custody at the time of making the statement.

Section 27: A Proviso With Strict Preconditions

The Court began by reiterating the legal architecture of Sections 24 to 27 of the Evidence Act. Referring to Jaffar Hussain Dastagir v. State of Maharashtra, the Bench explained that Section 27 operates as a proviso to Sections 24 to 26 and permits admissibility only of “so much of the statement” as distinctly relates to the discovery of a fact.

However, the Bench emphasized that custody is not a mere technicality but a statutory mandate. The Court categorically held:

“Section 27 of the Evidence Act clearly speaks of information received from a person accused of any offence while in the custody of the police… The accused at the time of the statement was not in the custody of the police and hence it is removed from the ambit of Section 27.”

The Court found that the statement having been recorded at 10:30 A.M., and the arrest being effected only at 22:00 hours, the mandatory condition of custody was absent.

Meaning of ‘Custody’: Surveillance or Restraint Required

The State sought to rely on precedents such as Dharam Deo Yadav v. State of Uttar Pradesh, where the Court had interpreted “custody” broadly to include situations of police surveillance or restriction even without formal arrest.

The Supreme Court acknowledged this interpretation and referred to State of A.P. v. Gangula Satya Murthy, which held that formal arrest is not indispensable if the accused is under effective restraint or surveillance.

Yet, in the present case, the Court found no material to show that the accused was under custodial surveillance or restriction when the statement was made. The accused had accompanied his wife to lodge a missing complaint, and there was no evidence that he was treated as a suspect or restrained in any manner at that time.

Thus, the Court declined to stretch the meaning of custody to fit the prosecution’s case.

Calcutta High Court’s Early Warning Recalled

The Bench also referred to the historic decision in Durlav Namasudra v. Emperor, where the Calcutta High Court held that Section 27 cannot apply if the information is given before custody.

Interestingly, the Supreme Court noted the anguish expressed by the Chief Justice in that case, who described the provision as paradoxical but binding until amended by the legislature. The present judgment echoes that strict adherence to statutory language remains necessary.

Recovery Admissible Under Section 8, But Only as Conduct

While rejecting admissibility under Section 27, the Court did not entirely discard the fact of recovery. It held that the accused’s act of leading the police to the recovery site could be admissible as conduct under Section 8 of the Evidence Act.

Relying on Ramkishan Mithanlal Sharma v. State of Bombay, the Court quoted:

“This circumstance would therefore be quite innocuous… It would merely be a link in the chain of evidence.”

The Bench clarified that even if Section 27 is not attracted, the conduct of the accused in pointing out the place of recovery may still be relevant. However, it issued a caution that such evidence is inherently weak and cannot independently sustain conviction.

“The evidence under Section 8 can only offer corroboration and cannot by itself result in a conviction,” the Court observed.

Section 27 Cannot Cure Investigative Lapses

The judgment underscores that procedural compliance under Section 27 is not a technical ritual but a substantive safeguard. In the present case, inconsistencies in the arrest memo and the timing of the disclosure created serious doubt.

The Court reiterated that while not every faulty investigation benefits the accused, where statutory requirements are violated and the remaining evidence is insufficient, the benefit of doubt must follow.

Ultimately, with the last seen theory collapsing and DNA evidence proving only death but not culpability, the recovery—stripped of Section 27 protection—was reduced to a weak corroborative circumstance.

A Clear Message on Custody Requirement

Allowing the appeal, the Supreme Court set aside the conviction and ordered the accused’s release. The ruling serves as a strong reminder that Section 27 is an exception carved out of a general bar against police confessions and must therefore be strictly construed.

The judgment decisively reinforces that custody is a sine qua non for admissibility under Section 27, and discovery statements made prior to arrest, absent proof of custodial restraint, cannot be admitted under the provision.

In reaffirming statutory discipline, the Court has once again drawn the line between suspicion and proof, and between recovery as evidence and recovery as legally admissible evidence.

Date of Decision: 17 February 2026