39. confession by accused while in custody of police not to be proved against him. Subject to Article 40 no confession made by any person whilst he is in the custody of a police-office unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation.--In this Article, "magistrate" does not include the head of a village discharging Magisterial functions unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure. 1898 (Act V of 1898).