Report No. 69
11.11. Negative form.-
It is to be noticed that section 26 is in negative terms. It does not provide that every confession made in the immediate presence of a magistrate can be proved as against the accused. There is only a saving for such confessions. Since there is a special statutory provision1 prescribing how a magistrate is to record the confession, it is only a confession so taken that can be prow ed and received and admitted in evidence, if the bar under the section is dispensed with.
1. Section 164, Cr. P.C., 1973.
11.12. Confessions in presence of a Magistrate.-
It has been stated that confessions made in the immediate presence of a Magistrate may be of two kinds; the confession may be recorded by a competent Magistrate in accordance with the procedure provided in section 164 of the Code of Criminal Procedure, 1973; or it may not be so recorded. It would seem to follow from the decision of the Privy Council in Nazir Ahmad v. Emperor, ILR 17 Lah 629 (PC), that Magistrates should not associate themselves with the police as regards confessions, unless they record the confession after observing the provisions of section 164 of that Code. Otherwise, the provisions of that section would be rendered nugatory, and a confession not recorded under that section would become admissible by virtue of a wider interpretation of section 26 of the Evidence Act.
11.13. Recommendation regarding confessions before Magistrate.-
To give effect to the above view, it is desirable to narrow down section 26, by making it clear that only a confession made to a competent Magistrate and recorded by him under section 164 of the Code of Criminal Procedure, would fall within the section. For this purpose, it would be necessary to replace the words "unless it be made in the presence of a Magistrate", by the words "unless it is recorded by a Magistrate under section 164 of the Code of Criminal Procedure. 1973". We recommend accordingly.
11.14. Recommendation regarding the Explanation.-
The Explanation to the section 26 speaks of the "Presidency of Fort St. George". These words are obsolete. In fact, if our recommendation1 to mention section 164 of the Code of Criminal Procedure is carried out, the Explanation can be safely deleted, as under the new Criminal Procedure Code, the power to record confessions is vested only in Judicial Magistrate, or, in metropolitan areas, in Metropolitan Magistrates.
1. Para. 11.13, supra.
11.15. For the above reasons, we recommend that section 26 should be revised as follows-
Revised Section 26
"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."
(Explanation to be omitted)
11.16. Section 26A (New)-Confessions to certain police officers.-
At this stage we should deal with one point on which a new section requires to be inserted. A suggestion has been made in the 14th Report of the Law Commission1 that as the superior officers of the police are today recruited from the same social strata as officers of other departments, a confession made to the officer of the status of the Deputy Superintendent of Police and above should be acceptable in evidence.
This relaxation was to be restricted to cases in which such officers themselves investigate and was to be introduced as an experimental measure only in the Presidency towns or places of like importance where investigations can be conducted by superior police officers and where the average citizen would be more educated and conscious of his rights. The change, it was suggested, should be introduced in the three Presidency towns, because the magistracy there is directly under the control of the High Court; as regards the introduction of the change in other areas, it was observed that it should be preceded by the separation of the judiciary from the executive.
1. 14th Report Reform of Judicial Administration, Vol. 2.
11.17. Recommendations as to confessions in an earlier Report.-
In a later Report of the Law Commission, on the Cr. P.C.1 the question of confessions made to the police was considered at length, and the recommendations as to confessions were thus stated in the form of propositions2-
"(1) In the case of a confession recorded by a Superintendent of Police or higher officer, the confession should be admissible in the sense that the bar under sections 25-26, Evidence Act, should not apply if the following conditions are satisfied:-
(a) the said police officer must be concerned in investigation of the offence;
(b) he must inform the accused of his right to consult a legal practitioner of his choice, and he must further give the accused an opportunity to consult such legal practitioner before the confession is recorded;
(c) at the time of the making and recording of the confession, the counsel for the accused, if he has a counsel, must be allowed to remain present. If the accused has no counsel or if his counsel does not wish to remain present, this requirement will not apply;
(d) the police officer must follow all the safeguards as are now provided for by section 164, Cr. P.C. in relation to confessions recorded by Magistrates. These must be followed whether or not a counsel is present;
(e) the police officer must record that he has followed the safeguards at (b), (c) and (d) above.
(2) In the case of a confession recorded by an officer lower than a Superintendent of Police, the confession should be admissible in the above sense if the following conditions are satisfied:-
(a) the police officer must be concerned in investigation of the offence;
(b) he must inform the accused of his right to consult a legal practitioner of his choice, and he must further give the accused an opportunity to consult such legal practitioner before the confession is recorded;
(c) at the time of the making and recording of the confession, the counsel for the accused must be present. If the accused has no counsel or if his counsel does not wish to remain present, the confession should not be recorded;
(d) the police officer must follow all the safeguards as are now provided for by section 164, Cr. P.C. in relation to confessions recorded by Magistrates;
(e) the police officer must record that he has followed the safeguards at (b), (c) and (d) above."
It was stated in that Report that the above amendments should apply to the whole of India, and an amendment of the Evidence Act and of sections 162 and 164, Cr. P.C. on the above lines was recommended.
1. 48th Report on the Cr. P.C. Bill, paras. 21-22.
2. Member, Sh. S.P. Sen-Varma has a reservation.
11.18. Recommendation.-
In so far as these recommendations concern the Evidence Act, a suitable amendment should be made by inserting a new section-say, as section 26A. We recommend that such a section should be inserted.1
1. Section not drafted.
