Confession by accused while in custody of police not to be proved against him
Section 26 of the Indian Evidence Act, 1872 deals with 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. The Act came into force on 01 Sep 1872. Repealed by section 170 of the Bharatiya Sakshya Adhiniyam, 2023 (47 of 2023) with effect from 1 July 2024, but conduct before that date is still charged, tried and appealed under it.
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. [Explanation. –– In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18826 (10 of 1882).]
Section 26, The Indian Evidence Act, 1872 (Act 1 of 1872).
Now in the Bharatiya Sakshya Adhiniyam
No provision of the Bharatiya Sakshya Adhiniyam is textually close to this one. No close match found
Measured by comparing the text of the two provisions, not taken from an official correspondence table — there is no machine-readable one. See both texts side by side before relying on it.
Both regimes are live. The repealed enactment still governs what happened while it was in force. We never redirect one to the other.
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Referred to by 1
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Tofan Singh vs The State of Tamil Nadu through the Ineliigence Officer
Court's Decision & Legal Precedent
Officers designated under Section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are 'police officers' within the meaning of Section 25 of the Indian Evidence Act, 1872. Consequently, any confessional statement made to such officers is barred from being used as evidence under Section 25 of the Evidence Act. Additionally, a statement recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act, as Section 67 is limited to calling for information and examining persons during an inquiry antecedent to investigation, not for recording confessions as substantive evidence.
On this section: No confession made while in custody of a police officer unless made in immediate presence of Magistrate shall be proved
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Ashiq Hussain Faktoo vs Union of India
Court's Decision & Legal Precedent
A writ petition under Article 32 of the Constitution is not maintainable to challenge a final criminal conviction after review petitions have been filed and dismissed. The doctrine of ex debito justitiae, though it recognizes a debt of the justice system to correct judicial errors, is strictly limited to situations involving violation of natural justice (lack of notice or fair procedure) or erosion of public confidence in the justice delivery system through judicial bias or association with parties. Merely perceived erroneous application of law or facts, however manifestly unjust it may appear to a litigant, does not invoke the doctrine of ex debito justitiae or reopen concluded convictions. All post-conviction remedies must be pursued through established procedural channels (review petitions and curative petitions) in accordance with judicial norms, and procedural law cannot be circumvented based on subjective notions of injustice.
On this section: Confessions made by accused while in police custody are inadmissible except where they lead to discovery of fact; the Court held that Section 15 of TADA Act does not operate as an exception to Section 26, making the confession recorded while accused was in custody inadmissible
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State of Punjab vs Harjagdev Singh
Court's Decision & Legal Precedent
A judicial confession recorded under Section 164 CrPC by a competent Magistrate following the prescribed procedure—including warning the accused that the confession may be used as evidence and satisfying the Magistrate that it is voluntary—is admissible and reliable evidence of guilt even if there are technical non-compliances with procedural requirements under Section 164, unless the accused demonstrates that such non-compliance caused him actual injury in his defence on merits. An extra-judicial confession may also be admissible if the witness supports the substance of the confession even if the accused later claims the witness had no opportunity to hear it. The voluntariness of a confession is determined by objective assessment of facts and circumstances, including whether the confession was made in fit state of mind and whether any inducement from person in authority with reference to the charge created reasonable grounds for the accused to suppose he would gain advantage or avoid temporal evil by confessing.
On this section: Relates to admissibility of confessions made after arrest and during custodial interrogation. Trial court relied on this section along with Section 24 to assess admission of confessions.
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Vinod Solanki vs Union of India
Court's Decision & Legal Precedent
In quasi-criminal proceedings under FERA, a confession retracted before a Magistrate on the first available opportunity cannot form the sole basis for imposing penalty. The authority seeking to act on such a retracted confession must first apply its mind to the retraction, consider the circumstances in which it was made, reject it in writing with cogent reasons, and ensure that the inculpatory statement is substantially corroborated by independent and cogent evidence. The burden of proving that the confession was obtained voluntarily and free from threat, coercion, or inducement lies on the Department, not on the proceedee, and Section 24 of the Indian Evidence Act applies to FERA proceedings as they are quasi-criminal in nature. A mere retraction, without more, may not render a confession inadmissible, but the court and authorities are obligated to examine both the confession and retraction together and cannot ignore or conveniently bypass the retraction in the guise of applying burden on the accused.
On this section: Cited as prohibiting proof of confessions made while in police custody unless made in presence of Magistrate; principle applied by analogy to detention in Enforcement Directorate custody
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State of U. P vs Sunil
Court's Decision & Legal Precedent
In a criminal case based solely on circumstantial evidence, the prosecution must establish a complete and unbroken chain of circumstances that is consistent only with the guilt of the accused and inconsistent with any other hypothesis. Where the prosecution fails to establish an independent, credible connection between the accused and the incident alleged, the entire edifice of circumstantial evidence collapses, regardless of individual pieces of physical evidence. Adverse inference from refusal to provide fingerprints or similar evidence cannot serve as the sole or primary basis for conviction. The burden of proof throughout remains on the prosecution to prove guilt beyond reasonable doubt.
On this section: Admissibility of confessions made to persons in authority - Similar application as Section 25 in restricting admissibility of police confessions.
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Madhu vs State of Kerala
Court's Decision & Legal Precedent
When Circumstantial Evidence Is The Sole Basis For Conviction In A Criminal Case, The Prosecution Must Establish A Complete Unbroken Chain Of Events Leading To The Only Inescapable Conclusion That The Accused Committed The Crime. If The Main Evidence Relied Upon (Confessional Statements) Is Inadmissible Because It Did Not Lead To Discovery Of Unknown Facts (As The Public Already Knew The Location Before The Confessions), And The Supporting Circumstantial Evidence (Eyewitness Testimony, Motive Inconsistencies, Medical Findings) Is Contradictory, Weak, Or Unreliable, The Conviction Cannot Stand. In Such Cases, The Accused Must Be Acquitted As The Prosecution Failed To Meet The Burden Of Proof Beyond Reasonable Doubt.
On this section: Confessions Made By Accused While In Police Custody Cannot Be Proved Against The Accused - Applied To Reinforce Inadmissibility Of Statements Made During Police Detention
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Prem Singh vs State of Haryana
Court's Decision & Legal Precedent
A complete and unequivocal chain of circumstantial evidence, even without eyewitness testimony, is sufficient to conclusively establish the guilt of an accused person in a criminal case beyond reasonable doubt. The circumstances must be such that they lead to no other reasonable inference except the guilt of the accused, and minor contradictions in witness testimony on peripheral matters do not vitiate the credibility of witnesses on core facts if they are consistent on the essential aspects of the case. Recovery of the murder weapon and stolen property at the instance of the accused following a disclosure statement, coupled with medical and forensic evidence and last-seen evidence, forms a clinching chain of circumstantial evidence.
On this section: Confession not admissible in evidence when made in custody before police - Applied to restrict the admissibility of confessional portions of the disclosure statement.
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Rakesh Kumar Gudda vs Union Territory Of Jammu & Kashmir
Court's Decision & Legal Precedent
At the stage of framing charges under Section 228 of the Criminal Procedure Code, the court is only required to consider whether the material on record, taken on its face value, discloses the existence of all ingredients constituting the alleged offences. Even strong suspicion against the accused for commission of alleged offence is good enough to frame a charge. The court need not assess whether the evidence is sufficient for conviction. A confessional statement made by co-accused to police officer, though inadmissible against the person making it under Section 25 of the Indian Evidence Act, does not vitiate the charge if other oral and circumstantial evidence, including motive, association, and recovery of weapon pursuant to disclosure statement under Section 27, prima facie establishes involvement of the accused. Bail on medical grounds should be granted where the accused is suffering from serious medical conditions resistant to treatment and the trial has progressed sufficiently to reduce risk of witness tampering.
On this section: Confessions made while in police custody but in immediate presence of magistrate are admissible; court found this section does not provide exception to Section 25
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Oinam Lukhoi Singh vs The State of Manipur
Court's Decision & Legal Precedent
For an accused to be prosecuted under Section 19 of the Unlawful Activities (Prevention) Act, 1967 for harboring a terrorist, there must be: (1) Knowledge that the person is a terrorist; (2) Intention to help the person evade apprehension; and (3) Actual harboring, concealment, or attempt to harbor or conceal. Merely giving a lift to an unknown person without knowledge of their terrorist connections and without any attempt to help them evade apprehension does not constitute the offense. Similarly, for Section 39 of UAPA to apply, the support must be within the meaning of clauses (a), (b), or (c) of Section 39(1) and must be done with the intention to further the activities of a terrorist organization. Confessional statements made to police without the presence of a Magistrate are inadmissible under Sections 25 and 26 of the Indian Evidence Act and cannot form the basis of prosecution. The confession of a co-accused cannot be treated as substantive evidence against another accused unless the other evidence adduced by the prosecution is satisfactory and the co-accused's confession is used only as corroborative evidence. When no prima facie case is made out and the proceedings have been pending for an unreasonable period without progress, the High Court should exercise its inherent powers under Section 482 CrPC to quash the FIR.
On this section: Provides that no confession made by any person whilst in custody of a police officer, unless made in immediate presence of a Magistrate, shall be proved as against such person.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Questions about Section 26
What have the courts held on Section 26 of the Indian Evidence Act?
Tofan Singh vs The State of Tamil Nadu through the Ineliigence Officer (29 Oct 2020) is the leading judgment on this section among those set out below: No confession made while in custody of a police officer unless made in immediate presence of Magistrate shall be proved. Another 8 judgments on this section are set out below, 7 of them from the Supreme Court. They run from 2008 to 2025.
How do I find court cases under Section 26 of the Indian Evidence Act?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: IEA 26, section 26 IEA, section 26 of the Indian Evidence Act. People searching for it also type evidence act 25 26 27 and evidence act 1872 section 26. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 9 reported judgments on this section are set out on this page, beginning with Tofan Singh vs The State of Tamil Nadu through the Ineliigence Officer (29 Oct 2020).
What should I read with Section 26 of the Indian Evidence Act, and has it changed?
1 other provision in this corpus refers back to it.
When did Section 26 of the Indian Evidence Act come into force?
Section 26 of the Indian Evidence Act, cited as IEA 26, came into force on 01 Sep 1872, having been enacted on 15 Mar 1872. It is no longer in force.
Other sections of this Act
- 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant1207 words
- 14. Facts showing existence of state of mind, or of body of bodily feeling1080 words
- 92. Exclusion of evidence of oral agreement809 words
- 8. Motive, preparation and previous or subsequent conduct773 words
- 65B. Admissibility of electronic records743 words
- 3. Interpretation-clause667 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Recovered from the consolidated text published by India Code (item e51341fa-7528-4327-9a57-5d194e16db6f). This page is not a substitute for legal advice.