Section 26: 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 is made in the immediate presence of a magistrate shall be proved as against
such person.
Explanation.—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 head-man is Magistrate exercising the powers of a Magistrate under the Code
of Criminal Procedure, 1882.
Confession in police custody
No confession is made to anybody while the person making it is in police custody
is provable. The section will come into play when the person in police custody is in
conversation with any person other than a police officer and confesses to his guilt. The
section is based upon the same fear, namely, that the police would torture the accused and
force him to confess, if not to the police officer himself, at least to some one else. The
confession made to a police officer or to anyone else while the accused is in police
custody are not different in kind and quality. Both are likely to suffer from the blemish of
not being free and voluntary.
“The policy objectives underlying the limitation are clear. It is manifest to every
one’s experience that from the moment a person feels himself in custody on a criminal
charge, his mental condition undergoes a very remarkable change and he naturally
becomes much more accessible to every influence that addresses itself to either his hopes
or fears.”
Statements made to TV and press reporters by the accused person in the presence of
police and also in police custody were held to be inadmissible.
Police Custody
Police custody means police control even if it be exercised in a home, in an open
place or in the course of a journey and not necessarily in the walls of a prison. All
circumstances in which the accused remains in the custody of the police while inquiries
are made by them have been considered to fall within the purview of the statutory bar.
The courts have declined to recognize in this context any distinction between lawful and
unlawful police custody. Moreover, the concept of police custody does not necessarily
connote the immediate presence of police officers, so long as the accused persons are
aware that the place where they are detained is really accessible to the police.”
Thus, where a woman arrested for the murder of a young boy was left in the custody of
villagers while the chowkidar (watchman) who arrested her left for the police-station and
she confessed in his absence, while the accused being carried on a tonga was left alone
by the policeman in the custody of the tonga-driver and he told of his criminality to the
toriga-driver and where the accused was taken to a doctor for treatment, the policeman
standing outside at the door, the accused confessed to the doctor, a confession to the
village Pradhan accompanying the police officer after the accused was got identified by
the person who was last seen with the deceased,’ the confession in each of these cases was held to be irrelevant. Thus, as long as the accused is in effective police control, he is
in police custody and temporary absence of the policeman makes no difference. The
legality of the custody is also immaterial. If there is ‘custody” in fact, the confession will
be vitiated even if the accused was illegally detained.
An accused made his confession to two persons of the locality. Subsequently, the
confession was reduced to writing inside the police station on the accused being brought
there. The Supreme Court said that such extra-judicial confession was not hit by
section 26.
Explaining the concept of custody, the court said:
“Such custody need not necessarily be post-arrest custody. The word “custody” used in
Section 26 is to be understood in a pragmatic sense. If any accused is within the general
surveillance of the police during which his movements are restricted, then it can be
regarded as custodial surveillance for the purposes of the section. If he makes any
confession during that period to any person be he not a police officer, such confession
would be held within the banned contours outlined in section 26.”
Applying this to the facts of case the court said that the confession was not made while
the accused was anywhere near the precincts of a police station or during the surveillance
of the police. The mere fact that the confession spoken to those witnesses was later put in
black and white is no reason to cover it with the wrapper of inadmissibility.
Presence of Magistrate
The section recognises one exception. If the accused confesses while in police custody
but in the immediate presence of a Magistrate, the confession will be valid.
The presence of a Magistrate rules out the possibility of torture thereby making the
confession free, voluntary and reliable. Immediate presence of the Magistrate means his
presence in the same room where the confession is being recorded. His presence in the
adjoining room cannot afford the same degree of protection against torture.
A confession made while the accused is in judicial custody or lock-up will be relevant,
even if the accused is being guarded by policemen.
Where a statement does not amount to a confession, the bar contained in sections 24-26
does not apply. “It is clear that an admission of a fact, however incriminating, but not by
itself establishing the guilt of the maker of such admission, would not amount to
confession within the meaning of Ss. 24-26.”
Thus spoke Supreme Court in a case where the statement of an accused, while in
custody, to a doctor explaining the injuries on his person showed his presence in the room
where a woman was killed and who had caused those injuries by biting him, was held to
be relevant because it did not amount to a confession. It was only an admission of the fact
of the presence at the scene of the crime.
Section 27: 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.
Confessions to police and consequential discoveries
Under the Evidence Act, there are two situations in which confessions to police are
admitted in evidence. One is when the statement is made in the immediate presence of a
Magistrate,
And the second, when the statement leads to the discovery of a fact connected with the
crime. The discovery assures the truth of the statement and makes it reliable even if it
was extorted. This is so provided in Section 27.
In order to assure genuineness of recoveries, it has become a matter of practice that
recoveries should be affected in the presence of witnesses. The Supreme Court has
pointed out that there is no such practice that where recoveries have to be effected from
different places, different sets of persons should be called to witness them. The fact that
the witnesses to recoveries are the neighbors of the deceased and, therefore, sympathetic
to him, is not material.
The section is quite apparently laid out as a proviso or an exception to the preceding
section which deal with confessions in police custody and other involuntary confessions.
Thus it seems that the intention of the legislature is that all objections to the validity of
that part of the statement are washed off which leads to the discovery of an article
connected with the crime. “The finding of articles in consequence of the confession
appears to render trustworthy that part which relates to them.”
Whether such a statement proceeds out of inducements, threats or torture are absolutely
immaterial. Statements made by the accused in connection with an investigation in some
other case which lead to the discovery of a fact are also relevant. That part of an
involuntary confession confirmed by the discovery of real evidence is admissible because
the truth of the statement is established by that evidence.
Sections 26. and 27 compared
Though the section is in the form of a proviso to Sec. 26, these two sections do
not deal with evidence of the same character.
Section 26 bans confession to police altogether, but S. 27 lets in a statement which leads
to a crucial discovery whether it amounts to confession or not.
Under Section 26 a confession made in the presence of a Magistrate is wholly
provable
