Sections 25 and 26 of the Indian Evidence Act, 1872: Confessions to Police and in Police Custody
Sections 25 and 26 of the Indian Evidence Act, 1872 laid down important exclusionary rules for confessions connected with police officers and police custody. This article explains the law in the statutory framework applicable immediately before the Bharatiya Sakshya Adhiniyam, 2023 came into force on 1 July 2024.
This page deliberately explains the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973 as applicable before 1 July 2024. It is intended for matters governed by that earlier legal framework and should not be read as a statement of the post-1 July 2024 evidence law.
Section 25: Confession to police officer not to be proved
Statutory rule
No confession made to a police officer shall be proved as against a person accused of any offence.
Section 25 imposed a direct bar on proving a confession made to a police officer against an accused person. The rule focuses on the person to whom the confession is made. If the statement amounts to a confession and is made to a police officer, Section 25 excludes proof of that confession against the accused, subject to the distinct statutory rule in Section 27 concerning discovery of facts.
The expression confession is not separately defined in Sections 25 and 26. In practical terms, the first question is whether the statement relied upon is truly confessional in character; the second is whether the statutory exclusion applies.
Section 26: Confession by accused while in police custody
Statutory rule
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.
Section 26 dealt with the setting in which the confession was made. A confession made while a person was in police custody could not be proved against that person unless it was made in the immediate presence of a Magistrate.
The provision therefore extended protection beyond a confession spoken directly to a police officer. Its central consideration was police custody. The statutory exception was a confession made in the immediate presence of a Magistrate.
Meaning of Magistrate for Section 26
The explanation to Section 26 excluded the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless that headman was a Magistrate exercising the powers of a Magistrate under the applicable Code of Criminal Procedure. The historical wording should be read as part of the text of the 1872 enactment.
Difference between Sections 25 and 26
Section 25 is directed at a confession made to a police officer. Section 26 is directed at a confession made while the person is in police custody, unless it is made in the immediate presence of a Magistrate.
The provisions overlap but are not identical. Section 25 asks to whom the confession was made. Section 26 asks whether the maker was in police custody and, if so, whether the confession was made in the immediate presence of a Magistrate.
Section 27 and discovery of facts
Sections 25 and 26 should be read with Section 27 of the Indian Evidence Act, 1872. Section 27 provided a limited rule for information received from an accused person in police custody when a fact is discovered in consequence of that information. Only so much of the information as relates distinctly to the fact thereby discovered may be proved. It is therefore important not to treat Section 27 as making an entire police-custody confession admissible.
For the adjoining provision, see Sections 27 and 28 of the Indian Evidence Act, 1872.
Related Code of Criminal Procedure, 1973 provisions
Under the pre-1 July 2024 framework, Section 164 of the Code of Criminal Procedure, 1973 governed the recording of confessions and statements by a Metropolitan Magistrate or Judicial Magistrate during investigation or before commencement of inquiry or trial. The provision contained safeguards concerning voluntariness and recording. Section 163 CrPC also prohibited a police officer or other person in authority from offering the inducement, threat or promise referred to in Section 24 of the Evidence Act.
Practical legal effect
When a confession was sought to be used in a case governed by the Indian Evidence Act, 1872, the court had to consider the circumstances in which the statement was made and the precise statutory rule invoked. Sections 24, 25, 26 and 27 operated together but addressed different questions: inducement, threat or promise; confession to a police officer; confession in police custody; and the limited admissibility of distinctly discovery-related information.
Related provisions
Read the preceding provision on Section 24 - confession caused by inducement, threat or promise, and the subsequent article on Sections 27 and 28.
Legal information page. The applicable law may depend on the date of the proceeding, the governing savings provisions and the facts of the case.