Evidence Act · Chapter II · Of the relevancy of facts

Evidence Act section 26 in the BSA

Evidence Act 26BSA 23(2)

Evidence Act section 26, “Confession by accused while in custody of police not to be proved against him”, is now BSA section 23(2) of the Bharatiya Sakshya Adhiniyam, 2023, in force from 1 July 2024.

What changed

From Evidence Act 26 to BSA 23

Merged with IEA 25 and 27 into BSA section 23, as sub-section (2): a confession made in police custody cannot be proved unless made in the immediate presence of a Magistrate. The Explanation about village headmen in the Madras Presidency is dropped.

The official text

Old and new, side by side

Indian Evidence Act, 1872

Section 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.

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, 1882 (10 of 1882).

Bharatiya Sakshya Adhiniyam, 2023

Section 23 Confession to police officer

The part that carries Evidence Act 26 is marked.

(1) No confession made to a police officer shall be proved as against a person accused of any offence.

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved.

The texts are India Code’s. The amendment markers and footnotes of the official print are left out, so the old section reads as it stood when it was repealed. The PDFs linked below carry the full history.

Also in BSA 23

Other Evidence Act sections that went to the same place

Evidence Act 25 Confession to police-officer not to be proved → BSA 23(1)
Evidence Act 27 How much of information received from accused may be proved → BSA 23(2)

Old law or new?

Which one applies to a case

The BSA repealed the Indian Evidence Act from 1 July 2024 (section 170(1)). Any application, trial, inquiry, investigation, proceeding or appeal pending immediately before that date is dealt with under the Evidence Act as it then stood, as if the BSA had not come into force (section 170(2)).