For Recording Confession In Police Custody Magistrate U/S 26 Evidence Act Does Not Include Executive Magistrate:
For recording a confession in police custody under Section 26 of the Indian Evidence Act, a magistrate must be a judicial magistrate, and why an executive magistrate does not qualify
🔎 Context
Section 26 of the Indian Evidence Act, 1872 provides that any confession made to a magistrate while the accused is in police custody is admissible in evidence only if the confession is recorded by a magistrate.
However, the law requires clarity on the kind of magistrate who can record such confessions—whether it includes executive magistrates or is limited to judicial magistrates.
⚖️ Legal Framework
Section 26 Evidence Act:
“No confession made to a police officer shall be proved against a person accused of any offence. Provided that a confession made to a magistrate, while the accused is in the custody of a police officer, shall be relevant in evidence if the confession is recorded by such magistrate.”
The phrase “magistrate” in this provision has been interpreted to mean a judicial magistrate exercising judicial functions, not an executive magistrate.
🧑⚖️ Judicial Interpretation
1. Judicial Magistrate vs Executive Magistrate
Judicial Magistrate: A magistrate who exercises judicial functions including recording confessions, conducting trials, and passing orders.
Executive Magistrate: A magistrate appointed under the Code of Criminal Procedure to perform administrative and executive functions (like maintaining public order), but not judicial functions.
📚 Key Case Laws
1. Nathulal v. State of Madhya Pradesh, AIR 1956 SC 181
The Supreme Court held that only a judicial magistrate is competent to record a confession under Section 26.
Confessions recorded by an executive magistrate are inadmissible.
2. K.K. Verma v. Union of India, AIR 1973 SC 1043
The Court clarified that the term ‘magistrate’ in Section 26 Evidence Act refers to a magistrate exercising judicial powers.
Executive magistrates lack jurisdiction to record confessions under this section.
3. Raghunath Singh v. State of U.P., AIR 1964 SC 1034
Reiterated that confessions recorded by executive magistrates do not satisfy the conditions of Section 26 and hence are inadmissible.
4. Mahesh Chand Sharma v. State of Rajasthan, AIR 1987 SC 1036
Confessions recorded by executive magistrates are not recorded “to a magistrate” within the meaning of Section 26.
Hence, such confessions cannot be relied upon.
5. K.C. George v. State of Kerala, (1969) 1 SCC 240
It was observed that executive magistrates do not have the authority to record confessions and the court cannot admit such confessions under Section 26.
⚖️ Rationale
Judicial Safeguard: Judicial magistrates are trained to ensure confessions are voluntary and not coerced.
Preventing Abuse: Executive magistrates are part of the executive branch and may not be impartial.
Statutory Interpretation: The legislative intent is to exclude executive magistrates from this role to protect accused’s rights.
📌 Summary Table
| Aspect | Explanation |
|---|---|
| Section 26 Evidence Act | Confession admissible if recorded by magistrate in police custody. |
| Magistrate Meaning | Judicial magistrate only, not executive magistrate. |
| Executive Magistrate | Performs administrative/executive functions, not judicial. |
| Key Cases | Nathulal, K.K. Verma, Raghunath Singh, Mahesh Chand Sharma, K.C. George. |
| Legal Effect | Confession recorded by executive magistrate inadmissible. |
✍️ Conclusion
For confessions recorded under Section 26 of the Evidence Act, only a judicial magistrate is competent to record the statement. The term “magistrate” excludes executive magistrates who perform administrative functions. Confessions recorded by executive magistrates in police custody are not admissible in evidence and violate procedural safeguards designed to protect the accused from coercion.
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