Can confessions be made before an Executive Magistrate?

Punjab and Haryana High Court have held that confessions made before a Executive Magistrate in the presence of the police are to be held admissible as per section 26 of the Indian Evidence Act.

Section 26 of the Indian Evidence Act reads hereunder:

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.

As is clear in the section, the word Magistrate has not been specified to mean either Judicial Magistrate or Executive Magistrate.

In this particular judgement, the Punjab and Haryana High Court, Division Bench took a view which was different from the full Bench of the Gauhawati High Court which adjudicated that this section refers to confessions made primarily before the Judicial Magistrate. The Punjab and Haryana High Court, Division Bench adjudicated:

“To express in other words, Section 26 of the Evidence Act makes deliberate use of the expression ‘Magistrate’ and not the ‘Judicial Magistrate’. Had there been any intention to confer the power only on the Judicial Magistrate, the Parliament would not have forgotten to insert the word ‘Judicial’ before the word ‘Magistrate’ in Section 26 Evidence Act. .. The expression ‘Magistrate’ (in Section 26 of the Evidence Act includes) ‘Executive Magistrate’ and not only the ‘Judicial Magistrate’.”

In this particular case, the evidence recorded before the Executive Magistrate was considered admissible.

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