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).
Section 26 is the extension of the principle laid down in Section 25. While Section 25 applies to all confessions made to some police officers, this section includes confession made to “any person” other than police officer, while in police custody. Under this section, it is provided that no confession made by an accused to any person while in custody of a police officer shall be proved against him unless it is made in the immediate presence of a Magistrate. Thus, the section is intended to prevent of coercive method of extorting confession.
The section is based upon the same logic that the police in order to secure confession uses all types of coercive methods, because the accused is put in constant fear and forced to confess. “The reason is that a person in the custody of police is presumed to be under their influence and it provides opportunities for offering inducement or extorting confession, but the presence of a Magistrate is a safe guard and guarantees the confession.”
Police custody simply means police control implying restrictions and restrain imposed by police officer. It commences from the time when one’s right to movement is restricted by the police officer. It includes both physical control or temporary restriction imposed on a person. An accused is under police control means he is to stay under direct or indirect police surveillance.
Thus a woman was left under the custody of a village chowkidar or when she was left to Tonga-driver by the police; both are regarded to be police custody. In the second case confession by the accused to Tonga-driver was held to be irrelevant. Therefore, the custody of a police officer for the purpose of the Section 26 is not merely physical restriction, but it includes any kind of police surveillance. To constitute custody of police, some sort of custody is sufficient under section 26. “The crucial test is whether the accused is a free man when he makes the confession or his movements are controlled by the police either by themselves or by some other agency employed by them.
Immediate presence of a Magistrate: An exception:
As a general rule an accused made a confession to the police or while in police custody is not relevant unless it has been made in the immediate presence of a magistrate.
The confession in presence of a magistrate by the accused is an exception to the general rule laid down in Sections 24, 25 and 26. A confession by the accused in presence of a magistrate is relevant only when it is done in accordance with rules laid down in Sections 164 and 364 of the Code of Criminal Procedure, 1973. If the magistrate fails to observe procedures and formalities of Sections 164 and 364, Cr. PC, even though the confession is made by the accused in immediate presence of a magistrate, it is inadmissible.
When a magistrate who is not especially empowered to record confessions under Section 164, Cr. PC. or who receives confession at a State when Section 164, Cr. PC. does not apply, is an extra-judicial confession. A confession made while in custody is not to be proved against the accused as the provisions of Sections 25 and 26 of the Evidence Act, do not permit it unless it is made before a magistrate.
If the confession was not recorded by a competent magistrate the confession of a person in police custody would not be relevant. Where the accused were in police custody and no magistrate was present there admission of the accused is not an admission in evidence. It is said by the Supreme Court that the strict rule under section 26 is not applicable to a departmental enquiry against a government employee.
In case of oral statement, other than that required to be recorded, made in presence of a sub-inspector and a constable who had taken the accused under arrest to a magistrate on leave, is not admissible. “The question arose in some cases whether a confession made by an accused before a magistrate not reduced to writing may be proved by oral evidence and it has generally been answered in the affirmative. An oral confession which is not open to any exception under sections 24, 25 and 26 is relevant fact as an admission under section 21 and may be proved against the accused by the oral evidence of the magistrate.”