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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.
Advocates often witness murder. They want to serve the society as well but in lack of evidence or an unsuccessful attempt to discover the facts, they are often deny of justice. Corroboration of admissible evidence to prove the case beyond reasonable doubt requires investigative approach. The hidden facts cannot be discovered only through the formal investigation of police. The advocates taking up the case of victim must engage themselves into investigation for justice of her/his client dead or alive.
Section 24 to 26 of the Evidence Act, 1872 form a trio containing safeguards against accused person being coerced or induced to confess guilt so as to impart unbiased justice given the fact the everyone is innocent until and unless proven guilty. Section 24 makes a confession irrelevant in a criminal proceeding if it is made as a result of inducement, threat, or promise from authority and is sufficient to give an accused person grounds to suppose that by making if he would gain an advantage or avoid any evil in reference to the proceeding against him. Under section 25 confession made to a police officer under any circumstances is not admissible in evidence him. Section 26 provides that no confession made by a prisoner in custody even to a person other than a police officer is admissible unless made in immediate presence of a Magistrate. To prove the confession against the accused section 27 of Evidence Act, may be referred which now makes so much even a confession of a person in police custody admissible, provided that ‘so much’ relates distinctly to the fact discovered ‘in consequence’ of said information. However, the fact so discovered under section 27 of Evidence Act, requires hallmark of truth. For this, the counsel shall prove veracity of such evidence beyond reasonable doubt. Section 27 which carves out an exception makes admissible, notwithstanding what is contained in the section 24 – 26, so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confession or otherwise. The essential ingredient mentioned in section 27 of the Evidence Act is that the information given by the accused must lead to discovery of fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of the crime. The embargo on statement of the accused before the police will not apply if all the above conditions are fulfilled as enshrined in Jaffar Hussein v. State of Maharastra, AIR 1970.
The condition necessary of invoking the benefits of section 27, Evidence Act, 1972 are as follows;
For instance, in case of Virender Singh v. State (Delhi Administration) 1992, the deceased along with the accused left her residential house and they resided in a room of a hotel together. The dead body of the deceased was removed from the said room and on a disclosure statement by the accused various incriminating articles were recovered and the ornaments which belong to the deceased were found with the Goldsmith which were deposed by the Goldsmith to have been sold to him by the accused. The supreme court convicted the accused of the murder.
In another case, the accused was sought to be convicted on the basis of doubtful extra-judicial confession and a discovery statement under section 27 of the Evidence Act, 1872. The defence urged “that recovery of the tabal on the pointing out of appellant No. 1 Ram Moorat was not consistent with the provision of section 27 of the Evidence Act and it does not appeal to the human experience as to why the accused person having convicted murder on 8 Nov 1981 in the forest would remain seated there till 11 Nov 1981 just to be arrested by sub-inspector and to point out the recovery of the tabal with which the murder was caused. In normal course of things both the accused persons would have immediately run away in the night or at some convenient time, just after the occurrence, further nobody has seen them in the forest as no such witness was examined. The accused on the based on the evidence was acquitted.
Therefore, the veracity of evidence must be checked and re-checked before introducing in the court as if any further it goes against section 27 of evidence act it may lose it credit and the case may fall at wrong hand.