Law & Policy
The Fact Discovered: The Proviso the Adhiniyam Gave a Home, and the Word It Left Out
9 October 2026 · 17 min read
A law of evidence that forbids proof of what an accused person said to the police has to decide what to do about the case where what he said turned out to be true. If a man in custody tells an investigating officer where a weapon is, and the weapon is there, something has been established that does not depend on believing him. The prohibition exists because the law treats a statement obtained in custody as unreliable. The discovery is a fact about the world, and the information that produced it carries, in that narrow respect, its own guarantee.
Every system that bars custodial confessions therefore carries some version of an exception for this situation, and the exception is the hardest part of the scheme to draft. Too wide and the prohibition is a formality, because a confession can be recited into admissibility by appending a direction to a place. Too narrow and the law throws away proof that nothing about it is suspect.
The Indian Evidence Act, 1872 drafted it in a way that was odd even by the standards of the subject. The Bharatiya Sakshya Adhiniyam, 2023 has redrafted it. The redrafting is usually described as a renumbering, and in substance it mostly is. But it made one change of structure that settles an old question, and two smaller changes that were not announced.
Three sections, and a proviso with nothing to attach to
The 1872 Act stated the prohibition twice and the exception once, in three consecutive sections.
Section 25, under the heading "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.
Section 26, under the heading "Confession by accused while in custody of police not to be proved against him":
No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Then section 27, under the heading "How much of information received from accused may be proved":
Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.
A numbered section beginning with the words "Provided that" is not a drafting convention. A proviso qualifies something; this one was given a section number of its own and left to find its own antecedent. For a hundred and fifty-two years the exception to the rule against custodial confessions was expressed in a form that did not say which rule it was an exception to.
That mattered, because the two prohibitions are not the same prohibition. Section 25 turned on the identity of the person spoken to: a confession made to a police officer, in custody or out of it, could not be proved. Section 26 turned on the circumstances of the speaker: a confession made while in custody, to whoever it was made, could not be proved unless a Magistrate was present. A statement can fall within one and not the other. A confession made to a fellow villager by a man under arrest is caught by section 26 and not by section 25. A confession made to a police officer by a man who has not been arrested at all is caught by section 25 and not by section 26.
Section 27 carried its own condition of custody — "from a person accused of any offence, in the custody of a police-officer" — so on any reading it could not rescue the second of those two cases. But whether it displaced section 25 as well as section 26 in the cases where both applied, or only section 26, was a question the text did not answer, and it was not academic. In practice the statements the exception is invoked for are almost always made to an investigating officer by a person in his custody — which is to say, in the overlap.
What section 23 does with them
The Adhiniyam collapses the three provisions into one section with two sub-sections and a proviso. Section 23, under the heading "Confession to police officer", reads:
(1) No confession made to a police officer shall be proved as against a person accused of any offence.
(2) No confession 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 proved against him:
Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.
Sub-section (1) is section 25 with the hyphen removed from "police-officer" and the stray comma after it removed with it. Sub-section (2) is section 26 with "whilst" modernised, "it be made" corrected to "it is made", and "as against such person" shortened to "against him". The Explanation that section 26 carried is gone, and so is the marginal heading that section 27 carried. The proviso is section 27, less its opening comma and less one word.
The structural change is that the proviso is now attached. It sits under sub-section (2) and, on the ordinary rule that a proviso qualifies the provision to which it is appended, it qualifies sub-section (2).
The placement is not an invention
It would be easy to read that as the draftsman having made a choice in 2023 about a question the 1872 Act left open. It is closer to the opposite. The placement adopts the description the Privy Council gave section 27 in 1946.
In Pulukuri Kottaya v. King-Emperor, AIR 1947 PC 67, decided on 19 December 1946, the Board was pressed with the argument that the fact discovered within the section meant the object produced. The Board noted that the section is normally brought into operation when a person in police custody produces from a place of concealment "some object, such as a dead body, a weapon, or ornaments", and that on the Crown's reading the whole of the statement leading to the object would become provable. Sir John Beaumont's answer to that began with what would follow if it were right:
On normal principles of construction their Lordships think that the proviso to Section 26, added by Section 27, should not be held to nullify the substance of the section.
The phrase is "the proviso to Section 26, added by Section 27". The highest authority then available described section 27 as a proviso to section 26 and to nothing else, and reasoned from that description. The Adhiniyam has printed it where that judgment said it belonged.
A draftsman who ratifies a settled construction makes no new law, but he does remove the argument that the construction might have gone the other way. Before 1 July 2024, the contention that the discovery exception qualified the prohibition on confessions made to a police officer as such could be advanced in the silence of the text. It must now be advanced against the arrangement of it.
What follows from attaching it to sub-section (2) alone
The first thing to ask about a narrowed exception is whether it has been narrowed into uselessness. If sub-section (1) is unqualified, and sub-section (1) forbids proof of any confession made to a police officer, then a statement made by a man in custody to the officer investigating him is forbidden by sub-section (1) whatever the proviso says. On that reading the proviso permits nothing it is ever invoked for.
That reading is wrong, and the reason it is wrong is in the proviso itself, in words that have survived every redrafting: "so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved."
Those eight words are the hinge of the whole scheme. What the proviso lets in is not a confession. It is information, and it is let in as information, admissible to the extent stated whether or not the same words would also amount to a confession. The prohibitions in sub-sections (1) and (2) operate on confessions. The proviso operates on a category defined by what the statement did rather than by what it conceded. There is no collision, because the two provisions are not addressed to the same thing.
So the narrowing has no consequence in the overlap, which is where the exception lives. Nor does it have a consequence outside the overlap, because the proviso's own words require custody: the person must be "accused of any offence, in the custody of a police officer". A man who is not in custody and tells an officer where the weapon is gains nothing from the placement of the proviso, and lost nothing by it, because the old section 27 required custody in the same terms.
The conclusion, then, is that the structural change settles an argument without altering an outcome. It is worth saying that plainly rather than making the placement sound more consequential than it is. What the new arrangement does is close a line of argument that was always weak.
The heading that is gone
The change in the same redrafting that is more likely to be noticed in use is not in the operative words at all.
Section 27 of the 1872 Act had a marginal heading: "How much of information received from accused may be proved." Whatever else that heading did, it told a reader turning the pages that the Act contained an exception, and it told him what kind of exception it was — one about how much. The Adhiniyam has no heading for the proviso, because a proviso does not get one. The heading over the whole of section 23 is "Confession to police officer".
Headings are not decoration. A reader who knows that the discovery exception exists will find it wherever it is printed. A reader who does not know will now find, at the place in the Adhiniyam where the subject is dealt with, a heading announcing a prohibition and nothing announcing a qualification of it. The index of an enactment is part of how the enactment is used, and a renumbering that removes a signpost removes something, even when every operative word is preserved.
The practical mark of this is already visible in the way the provision is cited. Reported orders of several High Courts since July 2024 describe a disclosure memorandum as a statement recorded under section 23(2) of the Adhiniyam, and others as recorded under section 23 without more. Under the old Act the same document was described as recorded under section 27 — which named the provision that let it in. The shorthand now names the sub-section that says no such confession shall be proved. A statement has come to be identified by the prohibition it is an exception to.
That is a small thing and it will do no harm in a court that knows the scheme. It is not nothing in a record that is read years later by someone who does not.
The word that is not there
The second unannounced change is one word.
The 1872 Act: "so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The Adhiniyam: "so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved."
"Thereby" is gone.
The proviso has two limbs that do different work. The first is a threshold: a fact must be "deposed to as discovered in consequence of information received" from the person. That limb decides whether the proviso applies at all, and it contains its own statement of causation in the words "in consequence of". The second limb is a measure: of the information, only "so much ... as relates distinctly to the fact discovered" may be proved. That limb decides how much of the statement goes into evidence, and it is the limb that is argued about at trial, because it is the limb the prosecution strains against when a disclosure memorandum runs to a paragraph and the discovery is a single object.
In the old text the word "thereby" appeared in the second limb and carried the causation into it. The information had to relate distinctly to the fact thereby discovered — the fact discovered by that information. Without the word, the second limb asks only that the information relate distinctly to "the fact discovered", and the identification of that fact as one discovered through the information is left to the first limb.
Two readings of the omission are available and it is worth setting both out.
On the first, nothing has changed. The causation was always stated twice, and the Adhiniyam has removed the repetition. The fact referred to in the second limb is the fact referred to in the first, which is a fact discovered in consequence of the information; "thereby" added emphasis and no content. A great deal of the redrafting across all three new enactments is of exactly this kind, and the working assumption that a draftsman who shortens a consolidated provision intends no change by it is usually the right one.
On the second, a check has been removed from the limb that needed it. The first limb is satisfied once a witness deposes that a fact was discovered in consequence of information — that is a threshold crossed by the recovery witness's evidence, and once crossed it is not ordinarily revisited. The second limb is where the extent of admissibility is fixed, and it was the only place in the proviso where the words required the court to ask, of each part of the statement, whether it related to what that information had discovered. Reading the second limb without "thereby" leaves it asking a weaker question: whether the information relates distinctly to a fact which, somewhere in the first limb, has been established as discovered.
The authority is not disturbed either way, and that is the best reason for thinking the first reading is the safer one. Pulukuri Kottaya reasoned about the second limb without resting on "thereby" at all. The Board began from the proposition that:
clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate
and concluded, a few lines later, that:
it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact
Both propositions are propositions about the words "the fact discovered", which are still there. The reasoning survives the omission intact. What does not survive is a textual foothold — the ability to say, of a sentence in a disclosure memorandum, that it does not relate to the fact thereby discovered. The point will now have to be put as a submission about what the first limb established, which is a longer way round to the same place.
The Explanation that went, and why that deletion costs nothing
It is worth setting against these two an example of a deletion in the same section that costs nothing, because the contrast is the point.
Section 26 of the 1872 Act carried an Explanation, inserted in 1891:
In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George … or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882).
The ellipsis stands for words referring to Burma, omitted on the adaptation of Indian laws in 1937.
It is gone from section 23. Nothing is lost. The Presidency of Fort St. George ceased to exist when the Constitution came into force, the Code of Criminal Procedure, 1882 was superseded by the Code of 1898 and that Code by the Code of 1973, and the class of officer the Explanation was written to exclude has no modern counterpart. The word "Magistrate" in sub-section (2) is not left undefined by the deletion either, because section 2(2) of the Adhiniyam provides that words used in it and not defined in it, but defined in the Information Technology Act, 2000, the Bharatiya Nagarik Suraksha Sanhita, 2023 or the Bharatiya Nyaya Sanhita, 2023, carry the meanings assigned there.
That is what a clean consolidation looks like: a provision removed because its subject has ceased to exist, with a general interpretation clause left in place to catch what the removal exposed. The heading and the word "thereby" are not deletions of that kind. Nothing about their subject matter has ceased to exist.
What a redrafting of this kind cannot settle
Three questions about the discovery exception have been litigated for a century, and none of them is answered by the words of section 23 any more than by the words of sections 25 to 27.
The first is what custody means for this purpose. The proviso requires the informant to be "in the custody of a police officer". The Adhiniyam does not define custody, and section 2(2) sends the term elsewhere for its meaning. Whether a man who has been taken to a police station but not arrested is in custody is not a question the text of section 23 decides.
The second is whether the information must be voluntary. The proviso says nothing about it. Section 22 — which is the old section 24 with the old sections 28 and 29 folded in as its two provisos, the same consolidating technique applied to the inducement rule — makes a confession irrelevant if it was caused by "inducement, threat, coercion or promise". The word "coercion" is new; the 1872 formula was "inducement, threat or promise", and the addition was made in the same unannounced way as the subtractions in section 23. Whether that section reaches information admitted under the proviso to section 23(2), when the proviso admits it expressly "whether it amounts to a confession or not", is a question the arrangement of the new Adhiniyam raises in precisely the form the old Act raised it.
The third is whether the fact must have been unknown to the police. The word "discovered" has carried that weight for a long time, and it carries no more and no less of it now.
The Adhiniyam has done to this scheme what it has largely done to the Evidence Act as a whole: it has re-expressed it, removed what had become obsolete in it, and left its difficulties where they were. On one point of arrangement it has improved it, by putting the exception under the prohibition it qualifies and ending an argument about which that was. On two points it has quietly subtracted — a heading that announced the exception, and a word that measured it.
Neither subtraction is likely to decide a case on its own. Both are the kind of thing that is easiest to notice now, while the old section number is still the one everybody reaches for, and hardest to notice in ten years, when it is not.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.