1. The first question that arises in, these appeals is whether a certain extra-judicial confession said to have been made by the 1st accused to one Kumarappa in the presence of the Sub-Assistant Surgeon in the, dispensary is admissible in evidence or should be excluded under Section 26 of the Indian Evidence Act. The learned -Sessions Judge tells us that he was at first disposed to exclude the evidence, but on further, consideration decided to admit it. I am of opinion that the learned Judge's first impressions were correct and. that he erred in admitting the confession upon his record.
2. The facts are that while this accused was in the lockup of the Magistrate under trial, he was sent by that Magistrate to the dispensary in order to be treated for a malady which involved an examination of the patient in private. Two policemen took the accused from the lock-up to the dispensary. At the dispensary the policemen waited outside on the verandah while the accused was inside undergoing examination at the hands of the doctor. The policemen were waiting there in order to retake the accused when he emerged from the dispensary and to conduct him back to the Magistrate's lock-up; and the confession was made during the few minutes when the accused was inside the dispensary and the two policemen were waiting outside on the verandah for his return. The question is whether the confession is excluded by Section 26. Now that section provides, so far as we are at present concerned with it, that no confession made by any person while he is in the custody of a police officer shall be proved as against such person. It is clear that we cannot read into the section limitations and restrictions for which the language of the Legislature affords no countenance. In the first place I have no doubt that if the accused No. 1 was: in police custody up to the arrival at the hospital, he remained in that custody while the policemen were standing outside on the verandah. If authority is wanted for the view that no breach of the custody would be occasioned by the temporary separation of the accused from the police in these circumstances, it may be found in this Court's decision in Queen-Empress v. Lakshmya bin Bhima (1896) Cri. Cas. 855. The question then is whether the accused No. 1 was in the custody of the police from the time that he left the Magistrate's lock-up. I myself cannot doubt it. It is no answer to say that he was in the general custody of the Magistrate. The actual physical custodians or guards of this accused No. 1 at the material time were those two policemen. They were there for no other purpose than to guard him or prevent his escape, and it seems to me impossible to say that he was not in their custody. The section requires only that the custodians should be police officers and that these men were, nor were they less police officers, because they may be regarded as acting as agents of the Magistrate. The word 'police officers' in Section 26 is apparently used in the same sense in which it occurs in Section 25, and I can see no reason for importing into Section 26 the notion that the 'police officers' there described in general terms must be restricted to the investigating police. The case relied upon by the learned Sessions Judge Queen-Empress v. Tatya (1895) 20 Bom. 795, it seems to me, has no direct bearing upon the question we have before us. For that case decided only that a confession was properly admissible which was made to a jailor not being a police officer who had the custody of the confessing accused.
3. On these grounds I am of opinion that the confession alleged to have been made by the first accused is not admissible in evidence, and it is unnecessary to consider the other case referred to in argument Empress v. Lester (1895) 20 Bom. 165 or to discuss the question whether the point arising in that case was or was not rightly decided.
4. Apart from the confession which is now excluded, we think that there is no evidence upon this record which could sustain the conviction of the 1st accused.
5. His Lordship here discussed the evidence, and reversed the conviction and sentence passed on accused No. 1, but, confirmed the conviction of accused No. 2 and reduced the sentence passed on him to one of transportation for life.
6. I am of the same opinion.