Section 26 IEA: Confession by accused while in custody of police not to be proved against him

Indian Evidence Act, 1872

Section 26 IEA at a Glance

Section 26 IEA deals with confession by accused while in custody of police not to be proved against him. From 1 July 2024 it is replaced by Section 23(2) BSA.

Now BSA

Section 23(2) →

Section 26 IEA Bare Act Text

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 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).

Source: Section 26, Indian Evidence Act, 1872

Section 26 IEA in Simple Words

Section 26 of the Indian Evidence Act, 1872 stops a confession (an admission of guilt) made in police custody from being proved against the maker. The rule has an exception when the confession is made while a Magistrate (a judicial officer) is immediately present.

The bar applies whenever a person makes a confession while held in custody by a police-officer. The prosecution cannot prove that confession against that person in court. If a Magistrate is immediately present when the person confesses, the bar does not apply.

Section 26 IEA also clarifies who counts as a Magistrate. A village head performing magisterial duties in the Fort St. George Presidency or other places is excluded. Such a headman counts only when holding magisterial powers under the 1882 Code of Criminal Procedure.

When Section 26 IEA Applies

  • A person makes a confession while held in custody by a police-officer.
  • A party seeks to prove that confession against the person who made it.
  • No Magistrate is immediately present when the person makes the confession.

Example of Section 26 IEA

In 2022, police in Pune arrest Ramesh over a burglary and keep the suspect in lock-up. While held in custody by a police-officer with no Magistrate present, Ramesh confesses to taking the jewellery. At the trial, the prosecution seeks to prove that confession against the accused. Under Section 26 IEA, the court cannot let the confession be proved against Ramesh because no Magistrate was immediately present.

When Section 26 IEA Does Not Apply

  • The bar does not apply when the confession is made with a Magistrate immediately present.
  • A village head performing magisterial duties in the Fort St. George Presidency or other places does not count as a Magistrate, unless that headman holds magisterial powers under the 1882 Code of Criminal Procedure.

Section 26 IEA in the BSA

Section 26 IEA is now covered under Section 23(2) BSA.

Section 26 of the Indian Evidence Act, 1872 became Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023 on 1 July 2024. The rule is the same, and the Explanation on "the head of a village" was dropped. Sections 25, 26 and 27 of the IEA now sit together in one BSA section.

View detailed comparison (IEA 26 vs BSA 23(2)) →

FAQs on Section 26 IEA

What is Section 26 IEA?▼

Section 26 of the Indian Evidence Act, 1872 states that a confession made by a person in police custody cannot be proved against that person. The confession can be proved only when made while a Magistrate is immediately present.

Can a confession made in police custody be proved if a Magistrate is present?▼

Yes. Under Section 26 IEA, a confession made by a person in police custody can be proved against that person if a Magistrate is immediately present when the confession is made.

Does a village head count as a Magistrate under Section 26 IEA?▼

No. A village head performing magisterial duties in the Fort St. George Presidency or other places does not count as a Magistrate under Section 26 IEA. That headman counts only when holding magisterial powers under the 1882 Code of Criminal Procedure.

What is Section 26 IEA in BSA?▼

Section 26 IEA became Section 23(2) BSA on 1 July 2024. The rule is the same, and the Explanation about the head of a village was dropped.

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Disclaimer: This is for informational purposes only. Always consult a qualified advocate for legal advice.

Sources: Bare Act Text, Indian Evidence Act, 1872 ·