The Punjab and Haryana High Court has held that the expression 'Magistrate' appearing in Section 26 of the Evidence Act would include Executive Magistrate also.
To hold thus, the division bench comprising Justice AB Chaudhary and Justice Surinder Gupta disagreed with the Full bench judgment of Gauhati High Court, which holds that the expression means only the Judicial Magistrate.
Section 26 of the Evidence Act provides that '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 the instant case, the question was about the relevancy of confessions of the accused person in police custody in the immediate presence of Naib Tehsildar, the Executive Magistrate. Whether the expression 'Magistrate' appearing in Section 26 of the Evidence Act would only mean Judicial Magistrate or would include Executive Magistrate, was one of the question of law considered in the criminal appeal filed by the accused. The bench ultimately dismissed the appeal and upheld the death penalty awarded to all the seven accused of gang rape and murder of a mentally ill woman.
The court noted the Gauhati High Court (Full Bench) judgment in Kartik Chakraborty and others Versus State of Assam. Disagreeing with the reasoning of the Gauhati High Court, the bench observed:
"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'."
As regard the Madras High Court judgment cited (Velu vs. State), the bench observed that it had held thus relying on Rules 72 and 73 of the Criminal Rules of Practice and Circular Orders, 1958 as the Rule 73 clearly stated about recording of confession before a salaried Magistrate First or Second Class. No such Rule governs the instant case.
The bench, however, clarified that the proof or admissibility of such confession cannot 'be all and end all' of the matter. In these appeals, the bench held that confessions were admissible.
Gauhati HC Reasoning
When this provision was initially provided in the Code of Criminal Procedure, 1861 and thereafter incorporated in the Evidence Act, 1872, the concept of separation of powers between the executive and the judiciary was either non-existent or was in a nebulous state. Therefore, it is quite but natural that the reference in Section 26 of the Evidence Act is only to a Magistrate.Section 3 of the Code of Criminal Procedure, 1973 clearly mentions that any reference in the said Code to a Magistrate without any qualifying words would mean a Judicial Magistrate in relation to an area outside a metropolitan area or to a Metropolitan Magistrate in relation to a metropolitan area.It would be strange logic that while a statement recorded by a Judicial Magistrate u/s 164 CrPC would be vitiated for noncompliance of the conditions stipulated u/s 164 (2) and (4) of the CrPC and cannot, therefore, be used against the maker of the statement, but the Magistrate contemplated u/s 26 of the Evidence Act need not even be a Judicial Magistrate and, therefore, is under no obligation to comply with the requirements of Sec 164 (2) and (4) of the CrPC, but the confession recorded by such a Magistrate can be proved against the accused for establishing his guilt.