A makes a confession to a police officer while he is in judicial custody (not in police custody). Is the confession relevant?

Question: A makes a confession to a police officer while he is in judicial custody (not in police custody). Is the confession relevant?

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Answer

Section 26 deals with the confession of an accused if it is made in the presence of a Magistrate when the accused is in the custody of a police officer

Section 26 of the Indian Evidence Act talks about Confession by the accused while in the custody of police not to be proved against him. It states 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.

Thus, Confession made to a police officer is absolutely inadmissible in accordance with provisions laid down in the law of evidence. However, the same confession made to a competent Magistrate becomes admissible.

Section 25 excludes confessions to police officers under any circumstances. This section excludes confessions to anyone else, while the person making it is in a position to be influenced by a police officer. Section 25 applies to all confessions made to police officers, be it under police or judicial custody. However, section 26 excludes confessions to anyone else, while the person making it is in a position to be influenced by a police officer.

The presence of the Magistrate secures the free and voluntary nature of the confession and the confessing person has an opportunity of making a statement uncontrolled by any fear of the police.

Thus, this section 26 is a further extension of the principle laid down in section 25. Section 25 applies to all confessions made to police officers, this section to confessions made to persons other than police officers but made while in police custody. A confession made to a police officer would, however, be admissible in evidence under section 26 if it is made in the presence of a Magistrate and it is recorded by him in the manner prescribed by section 164, Code of Criminal Procedure, 1898.

A judicial confession is recorded by a Magistrate in a court adhering to the formalities of section 164 of the Criminal Procedural Code, 1973 so as to ascertain the voluntary nature of the confession and adhere to the formalities to ensure its genuineness.

A conviction may be solely based on a judicial confession as it is taken down by the Magistrate after ensuring its voluntariness as held in State of Rajasthan v. Raja Ram, 2003 (8) TMI 564 SC.

In-State of TN v. Kutty, AIR 2001 SC 2778, the accused, while in police custody, was produced before the magistrate on three different occasions. He was then remanded to judicial custody and made a confession after being in such custody for seven days. He admitted in full length the role played by him along with the other accused. The magistrate certified that in his opinion the accused made the confession voluntarily.

The Supreme Court held that it could not be said that the accused was pressurized by the police or was prevailed upon by any extraneous influences to make the confession.

However, Confession made to police is irrelevant irrespective of whether the confessor is in Police custody or in Judicial Custody. Therefore, in the present case at hand, when A makes a confession to a police officer, while he is in judicial custody), the confession becomes irrelevant by virtue of section 25, IEA unless it was made in the presence of the concerned magistrate.

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Important Mains Questions Series for Judiciary, APO & University Exams

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