Report No. 185

Section 26

Section 26 bears the heading 'Confession by accused while in custody of police not to be proved against him.' It reads as follows:

"Section 26: 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.

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 headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)."

In the 69th Report, the recommendation was to revise the section as follows (see para 11.15), after omitting the Explanation:

"Section 26: No confession made by any person whilst he is in the custody of a police officer, shall be proved as against such person, unless it is recorded by a Magistrate under section 164 of the Code of Criminal Procedure, 1973".

In view of certain proposals for adding section 164A in the 154th Report of the Commission on Code of Criminal Procedure, 1973, it would be necessary to omit the words "under section 164" and add "in accordance with Ch. XII". With that modification, the section, after omitting the Explanation, will read as follows:

"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, shall be proved as against such person, unless it is recorded by a Magistrate in accordance with Chapter XII of the Code of Criminal Procedure, 1973."

We recommend accordingly.