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Confession by accused in police custody to be made before Judicial Magistrate only

The question under consideration before the Guwahati High Court in Shri Kartik Chakraborty vs State of Assam was whether the expression Magistrate appearing in Section 26 of the Evidence Act would mean Judicial Magistrate or an Executive Magistrate?  

Section 26 in The Indian Evidence Act, 1872
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 Magistrate1, shall be proved as against such person.—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 Magistrate2, shall be proved as against such person." 2[Explanation.—In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George 3[***] or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882 (10 of 1882)4].

The High Court upheld the decision of a Division Bench decision of the Guwahati Court in the case of State of Assam vs. Anupam Das, 2007 (3) GLT 697, to contend that the expression “Magistrate” appearing in Section 26 of the Evidence Act, 1882 would mean a Judicial Magistrate and not an Executive Magistrate.

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