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Section 26 provides that a confession to any person which is made in the custody of a police officer cannot be proved against him, unless it is made before a magistrate. Magistrate records confession of accused who is in police custody in accordance with section 164 CrPC.
Meaning of “Police Custody”
Police Custody is taken in a wide sense. A policeman may lay his hand on person, handcuff him or tie his waist with a rope and take with him. Again a police officer may not even touch a person bbut may keep such control over him that the person so controlled cannot go any way he likes. A police officer who has taken some persons may leave him away from him for a short time.
The police officer in the real sense commences from the time where the movements of the accused are restricted or controlled and may be direct or indirect under police surveillance. The crucial test is whether at the time when a person makes a confession he is a free man or his movements are controlled by the police by themselves or through some other agency employed by them. In a case, a woman was taken into custody of the police, a friend of the woman also accompanied her. The policeman left the woman with her friend for some time. In the mean times she confessed her guilt to her friend. The confession was held to be inadmissible because the woman was regarded to be in custody of the police inspite of the fact that the policeman was absent for short time.
In the case of Union of India v. Munna, (2004) 7 Sec 178, accused made a confession before custom authorities the SC said that the admission of accused before custom authorities is not hit bby either section 25 or section 26 of the Indian Evidence Act, 1872. The effect of such admission before aforesaid authorities is a relevant factor.