Section 26- confessions by accused made in police custody not to be proved against him

Flow of the answer:

1. What is police custody?

2. Includes both direct and constructive custody.
3. Explain meaning of constructive custody with case law
4. Confession still not relevant when made in police custody
5. Apply ingredients of section 26 to case problem
6. Relate and frame arguments on basis of r v. lester, emperor v mallangowda case

Policy custody- direct and Constructive custody

The meaning of word 'custody' which was extended to constructive custody in State of U.P. v.
Deoman was again upheld in Gurubaksh Singh v. State of Punjab, a recent decision of the Supreme
Court where court while dealing with the question of applicability of section 27

Important case to write-

 emperor v mallangowda
 r v lester
 meaning of custody in the case of moddovdare smile v state
 some sort of restriction on movement – not directly- in the case of maharani v emperor

Confession while in Custody

The value of confession depends upon the voluntary nature of confession. Section 26 of the
Act, provides that no confession, which is made by any accused while in police custody can
be proved against him unless it was made in the immediate presence of the Magistrate.
Section 26 reads:

26. Confession by accused while in custody of police not to be proved against him.—

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.

Object

The object of section 26 of the Evidence Act is to prevent the abuse of their powers by the
police, and hence confessions made by accused persons while in custody of police cannot be
proved against them unless made in the presence of a Magistrate. The custody of a police
officer provides easy opportunity of coercion for extorting confession obtained from accused
persons through any undue influence being received in evidence against them.
 Police custody: meaning

In section 26 of the Act, the word ‘custody’ is used in wider sense. Here, custody means
‘control’ and it includes any sort of restriction or restrains by police. For custody, no
formality is required.
Mere submission to custody by words or action is sufficient. The movement of an accused
may be controlled directly or indirectly like eye-arrest, house arrest etc; Paramhansa Jadab
v. State of Orissa, MANU/OR/0057/1964 : AIR 1964 Ori 144: (1963) 5 OJD 372: 1964 (1) Cr LJ
680: 31 Cut LT 17.

The custody of a police officer for the purposes 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 a custody. Firstly, there must be some control imposed
upon the movement of the confessioner, he may not be at liberty to go any way he likes.
Secondly, 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 his 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 and 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
subjected to some sort of surveillance or restriction.

Conditions for the applicability of section 26

Following conditions must be satisfied to invoke section 26:

(i) Statement must amount to confession;

(ii) It must have been made while the accused was in police custody; and

(iii) It must not have been made in the immediate presence of the Magistrate.
The only 2 exceptions to section 26 are:

i) made in presence of judicial custody

ii) Confession and Consequential discovery: 

The following confessions are, thus, held to be irrelevant:

(1) A woman arrested for the murder of a young boy was left in the custody of villagers while the
chowkidar (watchman) who arrested her left for the police-station and she confessed in his absence;
Emperor v. Jagia, MANU/BH/0098/1938 : AIR 1938 Pat 308.
(2) While the accused being carried on a tonga was left alone by the policeman in the custody of the
tonga-driver and he told of his criminality to the tonga-driver; R. v. Lester, ILR (1817) 20 Bom 165.

(3) Where the accused was taken to a doctor for treatment, the policeman standing outside at the
door, the accused confessed to the doctor; Emperor v. Mallangowda, (1917) 19 Bom LR 683.
 Emperor v. Mallangowda Bin Parwatgowda
 Facts - When the accused was in the lockup of the Magistrate under trial, he was sent by that
Magistrate to the dispensary in order to be treated for a malady which involved an
examination of the patient in private. Two policemen took the accused from the lock-up to the
dispensary. At the dispensary, the policemen waited outside on the verandah while the
accused was inside undergoing examination at the hands of the doctor. The policemen were
waiting there in order to retake the accused when he emerged from the dispensary and to
conduct him back to the Magistrate's lock-up, and the confession was made during the few
minutes when the accused was inside the dispensary and the two policemen were waiting
outside on the verandah for his return.
 Issues - whether an extra-judicial confession made to a surgeon/doctor is admissible as
evidence or should it be excluded under section 26 of the IEA?
 Held - The accused was in the custody of the police from the time he left the Magistrate's
lock-up. Though in the general custody of the magistrate, was in actual physical custody or
under the guard of the policemen. They were there to guard or prevent him from escaping.
Under section 26, the only requirement is that custodians of the accused must be police
officers. It doesn't mandate that the police officers be investigating police. Hence, the
conditions of Section 26 are fulfilled and the confession is excluded from being evidence.
 State of UP v. Deoman Upadhyay
 Only if the confession leads to discovery of facts it is admissible.
 Aghnoo Nagesia v. State
 If a confessional statement is present in the FIR which leads to the discovery of a weapon,
only that part os the statement which refers to weapon is relevant and admissible - nothing
else is held against him.
Section 10
Definition
 Reasonable ground to believe 
 Two or more persons - conspired together
 Commit an offence or actionable wrong
 Anything said, done or written
 In reference to common intention
 Relevant fact
 To prove existence of a conspiracy
 To show that particular persons are parties to such conspiracy.
Principle
 Theory of agency and vicarious liability
 Every conspirator is an agent in carrying out the aims and object of the conspiracy.
 Anything said, done or written by any of the conspirators in reference to their common intention is
relevant to show the conspirators as well as the existence of the conspiracy itself.
 Condition - reasonable ground to believe 
Conspiracy 
 Section 120A of the IPC - defines criminal conspiracy
 When two or more persons agree together to do some illegal act or some act by illegal means they are
said to have conspired. - even if the acts agreed to be done are civil wrong (tort ).
 Not mere knowledge but a consent of will and endeavour between the conspirators.
Scope of Section 10
 Statement or act of one person is evidence against another
 Limited to the extent that 
 Said, done or written is relevant if after the time when such intention of conspiracy was first
entertained by any one of them and not before the intention is entertained.
 Only those things said, done or written in reference to the common intention is admissible 
 There must be reasonable ground for court to believe that two ormolu persons have conspired
together.
 Statement made after arrest of accused doesn't fall within Section 10 [HHB Gill v. Emperor]
Analysis of Section 10
 Bhagwan Swarup vs. State of Maharashtra AIR 1965 SC 682
 (1) There shall be a prima facie evidence affording a reasonable ground for a Court to believe
that two or more persons are members of a conspiracy, 
 (2) if the said condition is fulfilled, anything said, done or written by any one of them in
reference to their common intention will be evidence against the other, 
 (3) anything said, done or written by him should have been said, done or written by him after
the intention was formed by any of them; 
 (4) it would also be relevant for the said purpose against another who entered the conspiracy
whether it was said, done or written before he entered the conspiracy or after he left it; and 
 5) it can only be used against a co-conspirator and not in his favour.
 Kehar Singh & ors. vs. State 1988 (3) SCC 609 
 "From an analysis of the section, it will be seen that Section 10 will come into play only when
the court is satisfied that there is reasonable ground to believe that two or more persons have
conspired together to commit an offence. There should be, in other words, a prima facie
evidence that the person was a party to the conspiracy before his acts can be used against his
co- conspirator. Once such prima facie evidence exists, anything said, done or written by one
 of the conspirators in reference to the common intention, after the said intention was first
entertained, is relevant against the others. It is relevant not only for the purpose of proving the
existence of conspiracy, but also for proving that the other person was a party to it."
 When the common intention is no longer operation, the narrative of past acts are not admissible against
conspirator

Reasonable Ground of Conspiracy

 Before bringing anything said, done or written by an alleged conspirator into record of the court, there
must be some evidence as to the prima facie existence of the conspiracy. 
 Only then the conspirator's statement or acts in reference to a common intention would be relevant 
Things said, done or written in reference to common intention
 not admissible if not in reference to common intention of conspiracy
 Intention implies that act intended was in the future, at the time of making the statement
 Badri Rai v. State of Bihar  (Pg.150 of batuklal)
 Facts - A and B approached Police inspector with a bribe to hush up the criminal case pending
against B. Inspector reported to superiors. When A brought money to the Inspector, he stated
that B had sent him with he money.
 Issue - whether statement made by A that B had sent him with the bribe was admissible.
 Held - the incident of A and B approaching the Police inspector with the bribe is prima facie
evidence that the two had conspired to commit the offence of bribing police officer. A was B's
agent and A's statement was admissible to prove that A was B's agent as well as to prove the
existence of the conspiracy itself.
 Act of one conspirator is the act of the other 
Evidence relating to acts outside the period of conspiracy
 The thing said, done or written in the past must not be before such an intention of conspiracy was
entertained  - relevant only if after the intention entertained.
 State of Gujarat v. Mohd. Atik
 Any statement made after the common intention ceased to exist not in reference to the
common intention, not relevant under section10. Post-arrest confession or statement to police
officer not within the ambit of Section 10.
 Mirza Akbar v. Emperor (Pg. no. 151)
 Queen v. Blake
 Facts - custom officers were being defrauded by a group of persons. One of the conspirators
made entries in a journal after the fraud was committed.
 Issue - whether the written entries in the journal was admissible?
 Held - Although the entries in the journal provided with the circumstantial proof that there
was a conspiracy being hatched and also showed common intention. But a document not
created in the course of carrying out the transaction but made by one of the conspirators after
the fraud was completed, was held to be inadmissible against the other. A mere statement
made by one conspirator to a third party or any act not done in pursuance of the conspiracy is
not evidence for or against another conspirator.
 Evidence of co-conspirators outside the period of conspiracy is not admissible as evidence -  Sardul
Singh v. State of Bombay.
 Statement made or act done must be while the conspiracy was on foot or in carrying out the conspiracy.
 When the common intention is no longer operation, the narrative of past acts are not admissible against
conspirator.
Section 4 + 112

Section 4
 Conclusive Proof
 No discretion at all with the court
 There is no distinction between conclusive evidence and conclusive proof
 It is irrebuttable in nature
Section 4 of Indian Evidence Act, 1872- “conclusive proof” – when one fact is declared by this Act to be
conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not
allow evidence to be given for the purpose of disproving it. 
The other presumption mentioned in Section 4 of the Act, namely, ‘may presume’ and ‘shall presume’ are
rebuttable presumptions. Conclusive proof is irrebuttable. Therefore, no evidence can be permitted to be let in to
disprove the conclusive presumption. 
Section 4 read with section 112 which states that birth during marriage, conclusive proof of legitimacy
The expression “conclusive proof” shall have to be read along with Section 112 of the Evidence Act. It may be
mentioned here that it is not a case of rebutting the presumption for the reason that conclusive proof is
irrebuttable.
This section lays down 2 presumptions:
1. There is a presumption in favour of legitimacy of the child born during a wedlock, but this is rebuttable
if the husband can prove there was no access to sexual intercourse
2. If sexual intercourse is proved then the law will not permit any enquiry whether the husband or some
other man was more likely to be the father of the child, this presumption becomes irrebuttable in
nature.
It becomes a misconception to say that the person who is disputing the paternity of child can disprove the same
or rebut the presumption by adducing any evidence of non-access in between the couple at the relevant time. On
the other hand, it appears to be correct view that the operation of the conclusive presumption can be avoided by
proving non-access at the relevant time. But, certainly it is not case of rebutting the presumption
Section one 112 is not dealing with regard to relevancy but it deals with conclusive proof. Although,
it is relevant to prove that husband and wife were having access to each other under section 9.

Fact declared under section 112 is relevant under section 9 and the conclusive proof of the
relationship will be found under section 112 read with Section 4 and 9

 The Apex Court in Gautam Kundu v. State of West Bengal 1993 

Facts: Appellant married to respondent No. 2 according to Hindu rites and customs - After marriage she became
pregnant - During a visit to her in laws house she was maltreated both physically and mentally and was forced to
undergo abortion which she refused -Subsequently a child was born - Respondent No. 2 filed petition under
Section 125 - Chief Judicial Magistrate awarded a sum of Rs. 300 per month to mother and Rs. 200 to child -
Appellant filed revision before High Court - During pendency of revision petition appellant disputed paternity of
child and prayed for blood group test of child to prove that he was not father of child - Application dismissed on
grounds that there were
a) other methods in the Evidence Act to disprove the paternity and
b) moreover it is settled law that medical test cannot be conclusive of paternity -
Held:That Court’s in India cannot order blood test as a matter of course;  
1. Wherever applications are made for such prayers in order to have roving inquiry, the prayer of blood
test cannot be entertained. 
2. There must be strong prima facie case in that the husband must establish non-access in order to dispel
the presumption arising under section 112 of the Evidence Act. 
 3. The Court must carefully examine as to what would be the consequences of ordering the blood test,
whether it will have the effect of branding a child as bastard and the mother as an unchaste woman. 
4. No one can be compelled to give sample of blood for analysis. 
Therefore it must be concluded that Section 112 read with Section 4 of the said Act debars evidence
except in cases of non-access for disproving the presumption of legitimacy and paternity

In Kanti Devi v. Poshi Ram .2001

 We may remember that section 112 of the Evidence Act was enacted at a time when the modern scientific
advancements with deoxyribonucleic acid (DNA) as well as ribonucleic acid (RNA) tests were not even in the
contemplation of the Legislature. The result of a genuine DNA test is said to be scientifically accurate.
 But even that is not enough to escape from the conclusiveness of Section 112 of the Act e.g., if a husband and
wife were living together during the time of conception but the DNA test revealed that the child was not born to
the husband, the conclusiveness in law would remain irrebuttable. This may look hard from the point of view of
the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even
in such a case the law leans in favor of the innocent child being bastardised if his mother and her spouse were
living together during the time of conception

Elaborate discussion in goutam kundu case

1. Section 151, Civil Procedure Code, has been introduced in to the Statute book to give effect
to the inherent powers of Courts as expounded by Woodroffe, J., in Hukum Chand Boid v.
Kamalan and Singh. Such powers can only be exercised ex debito justice and not on the
mere invocation of parties or on the mere volition of courts. There is no procedure either in
the Civil Procedure Code or in the Indian Evidence Act which provides for a test of the kind
sought to be taken by the defendant in the present case. Kerala High Court in Vasu v.
Santha 1975 KLT 533:
2. A special protection is given by the law to the status of legitimacy in India. The law is very
strict regarding the type of the evidence which can be let in to rebut the presumption of
legitimacy of a child. Even proof that the mother committed adultery with any number of
men will not of itself suffice for proving the illegitimacy of the child. If she had access to her
husband during the time the child could not have been begotten the law will not
countenance any attempt on the part of the husband to prove that the child is not actually
his. The presumption of law of legitimacy of a child will not be lightly repelled. It will not be
allowed to be broken or shaken by a mere balance of probability. The evidence of non-
access for the purpose of repelling it must be strong, distinct, satisfactory and conclusive
3. There is an aspect of the matter also. Before a blood test of a person is ordered his consent
is required. The reason is that this test is a constraint on his personal liberty and cannot be
carried out without his consent. Whether even a legislature can compel a blood test is
doubtful. Here no consent is given by any of the respondents. It is also doubtful whether a
guardian ad litem can give his consent. Therefore, in these circumstances, the learned
Munsiff was right in refusing the prayer for a blood test of the appellant and respondents 2
and 3. also correct in holding that there was no illegality in refusing a blood test. The
maximum that can be done where a party refuses to have a blood test is to draw an adverse
inference
4. In Raghunath v. Shardabai 1986 MR Bomb 388 it was observed blood-grouping test have
their limitation, they cannot possibly establish paternity, they can only indicate its
possibilities
5. The court exercises protective jurisdiction on behalf of an infant. In my considered opinion
it would be unjust and not fair either to direct a test for a collateral reason to assist a
litigant in his or her claim. The child cannot be allowed to suffer because of his incapacity;
the aim . is to ensure that he gets his rights. If in a case the court has reason to believe that
the application for blood test is of a fishing nature or designed for some ulterior motive, it
would be justified in not acceding to such a prayer.