Section 27 Evidence Act vs Section 23(2) Proviso BSA: Discovery Statements

In India, the proviso to Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) replaced Section 27 of the Indian Evidence Act, 1872 (IEA). The rule is unchanged in substance: so much of an accused's information, given in police custody, as relates distinctly to a fact discovered may be proved. Only placement and drafting changed.

At a glance

	Old law	New law
Section	Section 27, Indian Evidence Act, 1872 (a separate section, drafted as a proviso)	Proviso to Section 23(2), BSA 2023; in force from 1 July 2024
What it does	Lets so much of information from an accused in police custody as relates distinctly to a fact discovered be proved, whether or not it is a confession	Same
Punishment	None: rule of evidence	None: rule of evidence
Cognizable / bailable / triable by	Not applicable (no First Schedule entry)	Not applicable (no First Schedule entry)
Change type	—	Minor edit (text); moved into s.23(2)

What changed

Placement — Modified. IEA s.27 was a separate section with its own heading, following ss.25 and 26. The BSA puts the same rule at the end of s.23(2), under the heading "Confession to police officer". This is not a narrowing: s.27 already opened "Provided that" and already applied only to an accused "in the custody of a police-officer".
Heading — Omitted. "How much of information received from accused may be proved" no longer appears. The proviso has no heading of its own.
"Provided that," → "Provided that" — Minor edit. The comma after "Provided that" is dropped.
"in consequence of information" — Minor edit. The official IEA text prints "inconsequence"; the BSA reads "in consequence".
"police-officer" → "police officer" — Minor edit.
"the fact thereby discovered" → "the fact discovered" — Minor edit. "thereby" is dropped.
Custody condition, confession clause and "may be proved" — Identical apart from the hyphen noted above. Both read "from a person accused of any offence, in the custody of a police officer", and "whether it amounts to a confession or not".
Saving in the procedure code — Minor edit. CrPC s.162(2) said nothing in that section should "affect the provisions of section 27" of the IEA. BNSS s.181(2) now says nothing in s.181 shall "affect the provisions of the proviso to sub-section (2) of section 23" of the BSA.

Statutory text (relevant extract)

Section 27, Indian Evidence Act — extract (the official text prints "inconsequence" [sic]):

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.

Proviso to Section 23(2), BSA — extract:

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.

Section 181(2), BNSS — extract:

(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (a) of section 26 of the Bharatiya Sakshya Adhiniyam, 2023; or to affect the provisions of the proviso to sub-section (2) of section 23 of that Adhiniyam.

How it works — the four conditions

In Mohmed Inayatullah the Supreme Court set out four conditions for s.27 (report p. 718). The BSA proviso uses the same words, so on a reading of the text they apply to it:

A fact discovered in consequence of the information. The information must come from "a person accused of any offence", and a fact must be discovered because of it. In Perumal Raja (para 43) the Court said the rule concerns a fact "that was previously unknown, as opposed to fact already disclosed or known".
The discovery must be deposed to. A witness, usually the investigating officer or a recovery witness, must testify to it.
Custody at the time. The accused must be "in the custody of a police officer" when the information is received. Perumal Raja reads custody "pragmatically and not formalistically" (para 25).
Only the part that relates distinctly. Only "so much of such information … as relates distinctly to the fact discovered" is proved. The rest is excluded, and s.23(1) continues to bar it if it is a confession to a police officer.

Worked example (from Mohmed Inayatullah). In police custody, the accused said: "I will tell the place of deposit of the three Chemical drums which I took out from the Haji Bunder on first August." He then led the police to a Musafirkhana where the stolen drums lay. The Court treated the fact discovered as threefold: the drums, the place, and the accused's knowledge of their deposit there. Only "I will tell the place of deposit of the three Chemical drums" was admissible. "which I took out from the Haji Bunder on first August" was past history of the theft, and was excluded.

What the proviso does not do. It makes part of the information provable; it says nothing about weight. Subramanya (para 89) adds that the accused's conduct in pointing out a place may be relevant under IEA s.8 (now BSA s.6), but conduct alone cannot form the basis of a conviction.

What this means in practice

For the investigating officer: Subramanya (para 78) describes the expected method. Call two independent witnesses to the police station, and record the accused's exact words before them in the first part of the panchnama. Then go with the accused and the witnesses to the place he leads to, and record any discovery in the second part. That method comes from the judgment, not the statute. Section 105 BNSS separately requires the search of a place or taking possession of property under Chapter VII or s.185, including the list of things seized and its signing by witnesses, to be recorded "through any audio-video electronic means preferably mobile phone". The recording must be forwarded without delay to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class. On a reading of s.105, a seizure made after a disclosure falls within it where it is made under that Chapter, for example under s.106.
For the prosecutor: Lead the exact words through the officer who heard them, and prove the panchnama (Subramanya, para 86). Prove custody at the moment the information was given. Prove sealing and the chain of custody up to the laboratory; in Pooranmal (paras 36 and 44) an FSL report failed without that link evidence.
For the defence advocate: Test each condition. Was the fact already known to the police? Did the officer depose to the accused's exact words, or only to a summary? Does the admitted part go beyond what "relates distinctly" to the discovery, into past history as in Mohmed Inayatullah? Does the statement show authorship of concealment, or only knowledge? Subramanya (para 84) called "I may get discovered the murder weapon" vague on that point. Is the recovery itself credible, and was the article sealed and kept safely (Pooranmal, paras 35-36)?
For the accused: The proviso reaches only information that leads to a discovery. The rest of what you told the police while in custody stays barred by s.23(1) and (2). Under s.181(1) BNSS, a statement you make to the police during investigation, if reduced to writing, must not be signed by you.

Judgments that still matter

The BSA proviso repeats IEA s.27 with drafting changes only, so on a reading of the text judgments construing s.27 remain relevant. None of the judgments below construes the BSA proviso.

State of U.P. v. Deoman Upadhyaya, [1961] 1 S.C.R. 14 (1960 INSC 107), 6 May 1960. A five-judge bench upheld s.27 and s.162(2) of the 1898 Code against a challenge under Article 14. J.C. Shah J. wrote for himself, S.K. Das J. and J.L. Kapur J.; M. Hidayatullah J. concurred separately; K. Subba Rao J. dissented. The majority held that the distinction between persons in custody and persons not in custody was real, not arbitrary. On custody, Shah J. said that a person directly giving a police officer information that may be used against him "may be deemed to have submitted himself to the "custody" of the police officer" within s.27. The State's appeal was allowed. Why it matters now: the BSA proviso keeps the custody condition upheld here.

Mohmed Inayatullah v. State of Maharashtra, [1976] 1 S.C.R. 715, 9 September 1975. R.S. Sarkaria J. delivered the judgment of a bench with P.N. Bhagwati J. The Court set out the four conditions above (p. 718). It said "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The discovery affords a guarantee of truth only of the part of the information that was "the clear, immediate and proximate cause of the discovery". Only the first part of the accused's statement was admissible. That part and the discovery did not support the presumption under s.114, illustration (a), that he was the thief, since the drums lay in a place open to all. The appeal was allowed and the accused acquitted. Why it matters now: the proviso keeps the words "relates distinctly to the fact discovered".

Subramanya v. State of Karnataka, [2022] 14 S.C.R. 828 (2022 INSC 1083), 13 October 2022. J.B. Pardiwala J. delivered the judgment of a bench with U.U. Lalit CJI. The High Court had reversed the trial court's acquittal on circumstantial evidence that included discoveries. The Court found that no witness had deposed to the exact statement that led to the discovery (para 77). In the absence of the exact words, and without the panchnama's contents being proved, reliance on the discovery of the weapon was not justified (para 86). Para 78 describes the two-part panchnama, and para 89 cautions that conduct alone cannot found a conviction. The appellant was set at liberty (para 97). Why it matters now: the proviso still makes "information" provable, so on a reading of the text, what the accused actually said must be proved.

Perumal Raja @ Perumal v. State, Rep. by Inspector of Police, [2024] 1 S.C.R. 87 (2024 INSC 13), 3 January 2024. Sanjiv Khanna J. wrote for a bench with S.V.N. Bhatti J. The accused made a disclosure while detained in another murder case, before his arrest in this one. The Court held that "custody" under s.27 "does not mean formal custody" and includes any restriction, restraint or even surveillance by the police (para 25). It noted that the words "person accused of an offence" and "in the custody of a police officer" are separated by a comma, and must be read distinctively (para 28). It said it was bound by Deoman Upadhyaya (para 26). The conviction was upheld, and s.27 could not be applied to co-accused who repeated information already given (para 43). Why it matters now: the BSA proviso keeps the same comma: "a person accused of any offence, in the custody of a police officer".

Pooranmal v. State of Rajasthan, [2026] 3 S.C.R. 314 (2026 INSC 217), 10 March 2026. Sandeep Mehta J. wrote for a bench with Vikram Nath and N.V. Anjaria JJ. The Court's narrative refers to the disclosure as made under "Section 27 of the Evidence Act [Proviso to Section 23 of the BSA]" (para 30), but the offence was of 2010 and the case was decided under the Evidence Act. The recovery of currency notes was doubtful (para 33). The recovery of a shirt from an iron box was "totally unreliable": the appellant had been at liberty until his arrest, and meticulous concealment of the shirt was improbable (para 35). The FSL report needed an unbroken chain of custody from seizure (para 36), and a blood-group match alone was not incriminating (para 46). The appellant was acquitted (para 55). Why it matters now: it shows that admissibility under the proviso does not settle reliability.

Which law applies to your case

Section 170(2) BSA provides that any application, trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force "shall be dealt with under the provisions of the Indian Evidence Act, 1872 … as if this Adhiniyam had not come into force". On a reading of that clause, a disclosure in such a case is proved under IEA s.27. In a proceeding begun on or after 1 July 2024 it is proved under the proviso to BSA s.23(2); the words are the same apart from drafting. See which law applies to an offence before 1 July 2024.

Frequently asked questions

Is the discovery rule in Section 27 still available under the BSA? Yes. The proviso to Section 23(2) BSA carries Section 27 forward with drafting changes only. When a 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 that information as relates distinctly to the fact discovered may be proved, whether or not it amounts to a confession.

Did moving Section 27 into Section 23(2) narrow it to statements made in custody? No. Section 27 of the Evidence Act already opened with "Provided that" and already applied only to information from a person accused of any offence "in the custody of a police-officer". The BSA proviso keeps the same custody condition. What changed is placement, as a proviso to Section 23(2) under the heading "Confession to police officer", plus minor drafting.

What counts as the "fact discovered" under the proviso? In Mohmed Inayatullah v. State of Maharashtra ([1976] 1 S.C.R. 715) the Supreme Court held, construing Section 27, that the fact discovered includes the object produced, the place from which it is produced and the accused's knowledge of it. Only the part of the information that was the direct and immediate cause of the discovery is admissible. The BSA proviso repeats the words "relates distinctly to the fact discovered".

Must the accused be formally arrested for the proviso to apply? The words require only that the accused be "in the custody of a police officer". Construing Section 27, the Supreme Court held in Perumal Raja v. State ([2024] 1 S.C.R. 87, paras 25 and 28) that custody need not be formal and includes any restriction, restraint or surveillance by the police. The Constitution Bench in State of U.P. v. Deoman Upadhyaya ([1961] 1 S.C.R. 14) said a person giving information to a police officer may be deemed to have submitted to custody.

What must the investigating officer record when an accused makes a disclosure? The proviso itself prescribes no form. In Subramanya v. State of Karnataka ([2022] 14 S.C.R. 828, paras 77-78 and 86) the Supreme Court held that the exact words of the accused must be proved, and described a two-part panchnama drawn before independent witnesses. Separately, Section 105 BNSS requires the process of a search or seizure under Chapter VII of the BNSS or Section 185, including the list of things seized, to be recorded by audio-video electronic means.

Can a recovery made on a disclosure be enough to convict? The proviso makes part of the information admissible; it does not make it sufficient. In Mohmed Inayatullah the admissible words and the discovery did not support the presumption that the accused was the thief, and he was acquitted. In Pooranmal v. State of Rajasthan ([2026] 3 S.C.R. 314, paras 35-36, 44 and 46) a recovered shirt was held unreliable and an FSL blood-group match was not incriminating without proof of the chain of custody and other evidence.

Which Act applies to a disclosure made in a case pending on 1 July 2024? Section 170(2) BSA says any trial, inquiry, investigation, proceeding or appeal pending immediately before the BSA came into force is dealt with under the Indian Evidence Act, 1872 as if the BSA had not come into force. On a reading of that clause, a disclosure in such a case is proved under Section 27 of the Evidence Act. The text of the two rules is the same apart from drafting.

Sources

Acts and sections read: BSA 2023 s.23 and proviso, s.170 (Gazette CG-DL-E-25122023-250882); BNSS 2023 ss.105, 106(1), 181 (Gazette CG-DL-E-25122023-250884); Indian Evidence Act, 1872 ss.25-27; CrPC 1973 s.162 (original India Code texts).
Judgments read (Veritect judgment corpus, full text): State of U.P. v. Deoman Upadhyaya (1961_1_14_64_EN.md); Mohmed Inayatullah v. State of Maharashtra (1976_1_715_720_EN.md); Subramanya v. State of Karnataka (2022_14_828_888_EN.md); Perumal Raja @ Perumal v. State (2024_1_87_113_EN.md); Pooranmal v. State of Rajasthan (2026_3_314_334_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.

Section 27 Evidence Act vs Proviso to Section 23(2) BSA — Discovery Statements