Confession of an accused in police custody to anyone else-

Section 26 provides that a confession which is made in custody of a police officer

cannot be proved against him unless it is made before a magistrate.

In Kishore Chand v. State of Himachal Pradesh, the extra judicial confession was
made to Pradhan who was accompanied by Police (enquiry) Officer. The only
interference which could be drawn from the circumstance of the case is that the
confession was made at the time when the accused was in the custody of police and it
could not be proved against the accused. It could not be believed that, when a police
officer has seen the accused with deceased at last occasion, he will not take the
accused in the custody.

In the case it is evident that the Police Officer has created a scene and to avoid
Section 25 and 26, the Police Officer has left the accused in the custody of village
head man (Pradhan).

The Police Officer in this case has no difficulty to take the accused to the Judicial
Magistrate and to take extra-judicial confession under section 164 of Cr.P.C which
has got more probable value and it gives an opportunity to make the required warning,
that this confession will be used against the accused and after this warning he records
the confession. Under section 26, no confession made by an accused to any person
while in custody of a police officer shall be proved against him.

Police Custody

The word custody is used here in wide sense. A policeman may lay his hand on a
person, hand-cuff him or tie his waist with a rope and may take him with him. Again a
police officer may not even touch a person but may keep such a control over him that
the person so controlled cannot go any way he likes. His movement is in the control
of the police officer. A police officer comes to A and asks him to follow to the police
station as he is wanted in connection with a dacoity case. A follows him. He is in
custody of the police officer.
Thus it is settled that “the custody of a police officer for the purpose of section 26,
Evidence Act, is no mere physical custody.” A person may be in custody of a police
officer though the other may not be physically in possession of the person of the
accused making the confession. There must be two things in order to constitute
custody. Firstly, there must be some control imposed upon the movement of the
person making confession, he may not be at liberty to go any way he likes, secondly,
such control must be imposed by some police officer indirectly. The crucial test is
whether at the time when a person makes a confession he is a free man or hid
movements are controlled by the police by themselves or through some other agency
employed by them for the purpose of securing such confession. The word ‘custody’ in
this the following section does not mean formal custody but includes such state of
affairs in which the accused can be said to have come into the hands of a police
officer, or can be said to have been some sort of surveillance or restriction.

In R. v. Lester, the accused was being taken in a tanga by a police constable. In the
absence of constable, the accused confessed to the tanga-driver that he committed the
crime. The confession was held to be in police custody as the accused was in the
custody of constable and it made no difference of his temporary absence. Where a
woman, charged with the murder of her husband, was taken into the custody of the
police, a friend of the woman also accompanied her. The policeman left the woman
with her friend and went away to procure a fresh horse. The woman confessed her
guilt to her friend while the policeman was away. The confession would not be
admissible against the accused as the prisoner should be regarded in custody of the
police in spite of the fact that he was absent for a short time. But where the accused is
not arrested nor is he under supervision and is merely invited to explain certain
circumstances, it would be going further that the section warrants excluding the
statement that he makes on the grounds that he is deemed to be in police custody.

Where the accused had consumed poison and so she was removed to the hospital for
treatment and from the moment of her admission to the hospital till her discharge
from there, the police personnel were neither present in the room wherein the accused
was kept for treatment or even in the vicinity of the hospital nor they frequently
visited the hospital, it could not be said that the accused’s movements were restricted
or she was kept in some sort of direct or indirect police surveillance and she was in
police custody for the purpose of section 26 of the Evidence Act.

Section 27- How Much Of Information Received From Accused May Be Proved:

Provided that, when any fact is deposed to as discovered in consequence of

information received from a person accused of any offence, in the custody of a police
officer, so much of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved.

Principle- this section of the act is founded on the principle that if the confession of
the accused is supported by the discovery of a fact then it may be presumed to be true
and not to have been extracted. It comes into operation only-

• If and when certain facts are deposed to as discovered in consequence of

information received from an accused person in police custody, and

• If the information relates distinctly to the fact discovered.

This section is based on the view that if a fact is actually discovered in consequence
of information given, some guarantee is afforded thereby that the information was
true and accordingly can be safely allowed to be given in evidence. But clearly the
extent of the information admissible must depend on the exact nature of the fact
discovered to which such information is required to relate.

In Pandu Rang Kallu Patil v. State of Maharashtra, it was held by Supreme Court that
section 27 of evidence act was enacted as proviso to. The provisions of sections of
Section 25 and 26, which imposed a complete ban on admissibility of any confession
made by accused either to police or at any one while in police custody. Nonetheless
the ban would be lifted if the statement is distinctly related to discovery of facts. The
object of making provision in section 27 was to permit a certain portion of statement
made by an accused to Police Officer admissible in evidence whether or not such
statement is confessional or non-confessional.
Scope- section 24, 25 and 26 of the Evidence Act exclude certain confessions. Section
24 lays down that if a confession appears to have been caused by threat, promise or
inducement from some man in authority it will be irrelevant and cannot be proved
against the person making confession. Section 25 excludes a confession made to a
police officer. Section 26 lays down that if a person while in custody of a policeman
confesses his guilt to any other person not being a Magistrate; his settlement will not
be proved against him.

Section 27 lays down that when at any trial, evidence is led to the effect that some fact
was discovered in consequence of the information given by the accused of an offence
in custody of the police officer, so much of the information as relates to the facts
discovered by that information, may be proved irrespective of the facts discovered by
that information, may be proved irrespective of the facts whether that information
amounts to confession or not.

Requirements under the Section- the conditions necessary for the application of
section 27 are:

1. The fact must have been discovered in the consequence of the information received
from the accused.

2. The person giving the information must be accused of an offence.

3. He must be in custody of a police officer.

4. That portion only of the information which relates distinctly to the fact discovered
can be proved. The rest is inadmissible.

5. Before the statement is proved, somebody must depose that articles were
discovered in consequence of the information received from the accused. In the
example given above, before the statement of the accused could be proved,
somebody, such a sub-inspector, must depose that in consequence of the given
information given by the accused, some facts were discovered.
6. The fact discovered must be a relevant fact, that is, to say it must relate to the
commission of the crime in question.

In Suresh Chandra Bahri v. State of Bihar, it is the discovery and the seizure of
articles used in wrapping the dead body and the pieces of Sari belonging to the
deceased was made at the instance of one accused. Articles recovered were neither
visible nor accessible to the people but were hidden under the ground. No public
witness was examined by the prosecution in this behalf. However, the evidence of
Investigation Officer did not suffer from any doubt or infirmity. Articles discovered
were duly identified by the witness. It was held that in these circumstances, failure of
Investigating Officer to record the disclosure of statement was not fatal

Section 28- Confession Made After Removal Of Impression Caused By

Inducement, Threat Or Promise, Relevant:

If such a confession as is referred to in section 24 is made after the impression caused

by any such inducement, threat or promise has, in the opinion of the court, been fully
removed, it is relevant.

Confession After Removal Of Threat Or Promise- under section 24 we have seen that
if the opinion of a court a confession seems to have been caused by any inducement,
threat or promise having reference to the charge and proceeding from a person in
authority, it is irrelevant and cannot be proved even against a person making the
confession,

Section 28 provides that if there is inducement, threat or promise given to the accused
in order to obtain confession of guilt from him but the confession is made after the
impression caused by any such inducement, threat or promise has, in the opinion of
the court been fully removed, the confession will be relevant becomes pre and
voluntary.

Impression produced by promise or threat may be removed

• By lapse of time, or
• By an intervening caution giving by some person of superior authority to the person
holding out the inducement, where a prisoner confessed some months after the
promise and after the warning his confession was received.