Confession In Police Custody | 'Magistrate' U/S 26 Evidence Act Does Not Include Executive Magistrate: J&K&L High Court

The bench comprising Justice Sanjay Dhar observed:

"Giving it any other construction would defeat the provisions contained in Section 164 of the Cr. P. C, which provides for safeguards for ensuring recording of confessions of the accused in a free and fair environment."

The bench was hearing a plea in terms of which the petitioner had invoked the Court's jurisdiction under Section 439 CrPC seeking bail for offences under Section 8/21, 29 of NDPS Act registered with Police Station, Bijbehara.

Seeking bail for the petitioner, the counsel argued that except the statement of co-accused there was no other material on record of the Case Diary which shows the involvement of the petitioner in the alleged crime. Although the investigating agency has, during the investigation of the case, obtained the statement of bank accounts of the accused yet there is nothing in these statements which reflects any financial transaction between petitioner herein and the co-accused, the counsel submitted.

The question that fell for adjudication was as to whether on the basis of a statement of a co-accused, the petitioner could be roped in the alleged crime and since the statement of co-accused, which is the only link between petitioner and the alleged crime has been recorded in the presence of Executive Magistrate, 1st Class, Bijbehara, while the said accused was in police custody, could be admissible under Section 26 of the Evidence Act.

Adjudicating upon the matter Justice Dhar observed that Section 25 of the Evidence Act provides that no confession made to a police officer can be proved against a person accused of any offence, meaning thereby that confession made before a police official is inadmissible in evidence. Section 26 of the said Act carves out an exception to the provisions contained in Section 25 of the Act which reveals that a confession made by a person while in custody of a police officer is admissible if it has been made in the immediate presence of a Magistrate.

Deliberating on the term "Magistrate" used in Act the bench stated that as per construction of references from section 3 CrPC the term Magistrate, unless context otherwise requires, means reference to a Judicial Magistrate outside a metropolitan area or to a Metropolitan Magistrate in relation to a metropolitan area. Thus, unless it is specifically provided in any provisions of the Code that expression "Magistrate‟ connotes anything contrary, the same has to be construed as Judicial Magistrate in an area outside metropolitan area, the bench underscored.

"This view is further strengthened from the fact that the provisions contained in Section 164 of the Cr. P. C, which deals with the recording of confessions and statements, clearly provides that it is only a Metropolitan Magistrate or the Judicial Magistrate who is empowered to record the confession or statement made in the course of an investigation or even afterwards before the commencement of the inquiry or trial", the bench recorded.

Deliberating further on the subject the bench observed that the said provision, inter alia, seeks to protect an accused from making a confession under duress, undue influence of police as also from being recorded under the influence, threat or promise from a person in authority and therefore the expression "Magistrate" appearing in Section 26 of the Evidence Act refers only and only to a Judicial Magistrate of first class or a Metropolitan Magistrate. Any other interpretation, if given to the said expression, would defeat the aim and object of recording a confession of an accused in an atmosphere free of coercion, pressure or undue influence of the police/ investigating agency, the bench explained.

Having held that the confession recorded before a Magistrate other than a Judicial Magistrate/Metropolitan Magistrate is not admissible in evidence, it becomes clear that the statement of the co-accused recorded in the presence of Executive Magistrate while he was in police custody and in presence of police officials, is clearly inadmissible in evidence Act, the bench recorded.

Allowing the application the bench observed that since there is no other material on record of the Case Diary to connect the petitioner with the alleged crime, the petitioner is entitled to bail.

Case Title : Rayees Ahmad Dar Vs UT of J&K

Citation : 2022 LiveLaw (JKL) 151

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