Indian evidence law | Updated 20 October 2026

Section 26 of the Indian Evidence Act: Confession in Police Custody and Current Law

A confession made by an accused while in police custody is generally inadmissible against that person unless made in the immediate presence of a Magistrate. The corresponding current rule is Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023.

Current law: The Bharatiya Sakshya Adhiniyam, 2023 (BSA), effective from 1 July 2024, replaced the Indian Evidence Act, 1872 for proceedings governed by the new law. Section 170 contains savings for proceedings pending immediately before commencement.

What did Section 26 of the Indian Evidence Act, 1872 provide?

The former Section 26 was titled Confession by accused while in custody of police not to be proved against him. Its operative rule stated:

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.

In effect, a confession made to a private individual during police custody was also subject to the restriction. The safeguard concerned the circumstances of custody, not merely the official status of the person receiving the confession.

Historical explanation under Section 26

The old section included an explanation excluding certain village headmen exercising magisterial functions from the meaning of Magistrate unless they possessed the relevant statutory powers. The original article also recorded historical amendment references, including the Indian Evidence Act amendment of 1891 and references to the former Code of Criminal Procedure. Those historical notes are not a statement of current criminal procedure.

Present provision: Section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023

Section 23 is titled Confession to police officer. Sub-section (1) prohibits proving a confession made to a police officer against an accused person. Sub-section (2) separately excludes a confession made while in police custody unless it was made in the immediate presence of a Magistrate.

The distinction matters: a statement to a police officer is governed by sub-section (1), while a confession made to someone else during police custody is addressed by sub-section (2). The Magistrate exception does not dispense with the requirement that a confession be voluntary and otherwise legally admissible.

Discovery-of-facts exception under Section 23(2)

The proviso permits proof of only that portion of information supplied by an accused in police custody which relates distinctly to a fact discovered as a consequence of the information. It does not make an entire custodial confession admissible.

For example, if information from an accused leads investigators to recover a concealed object, the portion distinctly identifying its location may be admissible, subject to proof of the discovery and other legal requirements. An accompanying assertion that the accused committed the offence does not become admissible merely because an object was recovered.

How can a Magistrate record a confession?

Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs recording of confessions and statements by a Magistrate. Before recording a confession, the Magistrate must explain that the person is not bound to confess and that a confession may be used as evidence against them. The Magistrate must have reason to believe it is voluntary.

If the person states before recording that they are unwilling to confess, the Magistrate must not authorise detention in police custody under Section 183(3). The statute also prescribes recording and certification safeguards and allows specified audio-video recording.

Related safeguards and practical application

BSA Section 22: A confession caused by an inducement, threat, coercion or promise from a person in authority may be irrelevant in criminal proceedings, subject to statutory conditions.
BSA Section 23(1): A confession made to a police officer cannot be proved against an accused person.
BSA Section 23(2): A confession made while in police custody is excluded unless made in the immediate presence of a Magistrate, subject to the limited discovery proviso.
BNSS Section 182: Police officers and persons in authority are prohibited from offering specified inducements, threats or promises.
BNSS Section 183: Provides the statutory procedure for recording confessions and statements before a Magistrate.

Frequently asked questions

Is every confession made in police custody inadmissible?

No. Section 23(2) recognises the immediate-presence-of-a-Magistrate exception. The discovery proviso also permits a narrowly defined part of information leading to a discovered fact. Other admissibility requirements still apply.

Can police use an entire confession because it led to recovery?

No. The proviso is confined to the portion of the information distinctly related to the fact discovered.

Does Section 26 of the 1872 Act still apply?

The Indian Evidence Act, 1872 was repealed by the BSA. However, the savings in Section 170 preserve the application of the earlier law to specified proceedings pending immediately before 1 July 2024. The procedural context of each case must be checked.

Official legal sources

This article provides general legal information. Admissibility depends on the facts, the governing law, and applicable judicial decisions.