Every settled principle of law has to be
rationally understood with reference to the facts of the case in
which such principle of law is stated. In other words, facts make
the law and this should always be kept in mind while applying the
principles stated and reasoning in support thereof.
A little
difference in the facts or additional facts may make a lot of
difference in the precedential value of a decision. (U.P. SEB vs
Pooran Chandra Pandey, (2007) (11) SCC 92) Ratio decidendi can
act as the binding or authoritative precedent and reliance placed
on mere general observations or casual expression of the Court is
not of much avail. (Girnar Traders vs State of Maharashtra,
(2007) (7) SCC 555).
CRIMINAL APPEAL NO. 315 OF 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Rajeshwar s/o Hiraman Mohurle
(In Jail)
Vs
The State of Maharashtra
CORAM : SWATANTER KUMAR, C.J. AND
A.P. LAVANDE AND SMT. VASANTI A.
NAIK, JJ.
JUDGMENT PRONOUNCED ON : 10TH JUNE 2009
JUDGMENT (PER SWATANTER KUMAR, C.J.)
Citation;2009(5)AIR BOMR165
The dictum of the Supreme Court in the case of
Honda Siel Power Products Ltd. vs CIT, (2007) (12) SCC 596, that
“rule of precedent is an important aspect of legal certainty in the
rule of law”, is a principle of great significance in the system of
administration of justice. One of the essential rudiments of law of
precedent is consistency in the judicial decision making.
The
doctrine of precedent has been understood in two respects.
Firstly, that the phrase means merely that precedents reported,
may be cited, or may be followed by the Courts. Secondly, the
strict meaning of the phrase is that precedent not only have great
authority but must in certain circumstances be followed. By the
development of law, the doctrine of precedent in India has been
given strict meaning subject to its limitations and the law stated by
the co-ordinate benches of the higher Court is expected to be
followed with all its rigours but certainly subject to the rule of law
and satisfying the principle of ratio decidendi. It is an accepted
precept of administration of justice to follow this rule of precedent.
Generally known exceptions to the rule of precedent are principles
of ratio decidendi, sub-silentio and stare decisis. It is the ratio
understood in its correct perspective that is made applicable to a
subsequent case on strength of a binding precedent.
Ratio
decidendi is thus the reason for deciding as reasoning is the soul of
decision making process. Every settled principle of law has to be
rationally understood with reference to the facts of the case in
which such principle of law is stated. In other words, facts make
the law and this should always be kept in mind while applying the
principles stated and reasoning in support thereof.
A little
difference in the facts or additional facts may make a lot of
difference in the precedential value of a decision. (U.P. SEB vs
Pooran Chandra Pandey, (2007) (11) SCC 92) Ratio decidendi can
act as the binding or authoritative precedent and reliance placed
on mere general observations or casual expression of the Court is
not of much avail. (Girnar Traders vs State of Maharashtra,
(2007) (7) SCC 555).
Occasion may arise where earlier judgment of a co-
2.
ordinate Bench is not in conformity with law or has ignored
statutory provisions and or the law declared by the Supreme Court
which is binding in terms of Article 141 of the Constitution of India
and thus may not be a binding precedent for the reason it being
per incuriam or hit by principle of stare decisis. Therefore, a
subsequent co-ordinate Bench may differ by following the
judgment of the higher Court or for specific reasons of ensuring
certainty and consistency in law and keeping in view the narrated
facts of a given case. With reference to the principle of ratio
decidendi the Court may choose to refer the matter to a larger
Bench. Despite judicial discipline and propriety, wide discretion is
vested in the Court dealing with such matters to adopt different
course of actions but in conformity with the settled canons of
doctrine of precedent.
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4
The Division Bench of this Court faced with somewhat
3.
similar situation preferred to adopt the latter course of action and
chose to refer the matter to a larger Bench. The question primarily
arose was “Whether Police Patil appointed under Maharashtra
Village Police Act, 1967 is a `Police Officer’ for the purpose of
Section 25 of the Evidence Act ?” and finding it difficult to follow
the view expressed by other Division Benches of this Court, the
ig
Bench presided over by one of us (A.P. Lavande, J.) dealing with
the case in hand vide Order dated 15th April 2008 required that the
above question of law should he authoritatively answered and
settled and, therefore, referred the matter to a larger Bench.
The
Order of Reference reads as under :-
“1.
Heard Mr. R.M. Daga, learned counsel for the
appellant and Mr. J.B. Jaiswal, learned Additional
Public Prosecutor for the respondent.
2.
The appellant has preferred the above appeal
against the judgment and order of conviction dated
27th March, 2003 passed by the Additional Sessions
Judge, Gadchiroli in Sessions Case No. 48/1999
convicting the appellant for the offence punishable
under Section 302 of the Indian Penal Code and
sentencing him to undergo imprisonment for life and
to pay a fine of Rs.500/-, and in default of payment of
fine to undergo imprisonment for six months.
3.
In the course of trial before the learned
Additional
Sessions
Judge,
Gadchiroli
the
prosecution examined five witnesses namely PW1
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5
Soma Sonule, PW2 Vanita Kawade, PW3 Soma
Kawade, PW4 Shivram Naitam and PW5 Sudhakar
Deshmukh. The trial Court relied upon the evidence
of PW2 Vanita Kawade, the sister of the deceased,
who claimed that on 19.4.1999 at about 7.00 P.M., she
saw the accused pressing neck of her sister Kunda by
sitting on her chest. The trial Court also relied upon
the evidence of PW1 Soma Sonule, who was Police
Patil of village Peta Murjha, at the relevant time. The
trial Court relied upon the extra judicial confession
made to Soma Sonule. The trial Court held that the
prosecution had been able to prove the offence of
murder beyond reasonable doubt against the accused
and convicted and sentenced him as above.
ig
4.
In the course of the argument, Mr. Daga,
learned counsel for the appellant-accused, submitted
that the extra judicial confession alleged to have been
made by the accused to PW1 Soma Sonule is not
admissible in law inasmuch as this Court has held
that Police Patil is a “Police Officer” within the
meaning of Section 25 of the Evidence Act and as
such confession made to him is not admissible. In
support of his submission, Mr. Daga relied upon the
following judgments :-
(1)
Vistari Narayan Shebe v The State of
Maharashtra (1978 Cr.L.J. 891).
(2) Sanjay Vs. State of Maharashtra (2004)
(1) Crimes 445).
(3) Ramsingh Vs State of Maharashtra and
another (1999 Cr.L.J. 3763).
5. Placing reliance upon the above judgments, Mr.
Daga submitted that the trial Court has committed
patent illegality in placing reliance upon the judicial
confession made to Police Patil, Soma Sonule.
6.
Per contra, Mr. Jaiswal, learned Additional
Public Prosecutor appearing for the respondent,
supported the judgment and order of conviction and
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6
submitted that the trial Court was legally justified in
placing reliance upon the extra judicial confession
made by the accused to Police Patil PW1 Soma Sonule
since the same inspires confidence. Mr. Jaiswal
further submitted that Police Patil Soma Sonule is not
a `Police Officer’ for the purpose of Section 25 of the
Evidence Act and, therefore, confessional statement
made to PW1 Soma Sonule by the appellant is
admissible . He placed reliance upon the Division
bench judgment in the case of State of Maharashtra
Vs Arjun Dattaram Bhekare and others (2005 Cr. L.J.
472).
ig
7.
Mr. Daga submitted that the Division Bench of
this Court in Arjun Bhekare’s case (supra) has not
considered the aforesaid three judgments. Mr. Daga
further submitted that the view taken by this Court in
the aforesaid three judgments is the correct view and,
therefore, the trial Court could not have placed
reliance upon the extra judicial confession made to
PW1 Soma Sonule.
8.
In view of the submissions made by the rival
parties, it would be appropriate to refer to the
judgments relied upon by both sides. In Vistari
Shebe’s case (supra) the Division bench of this Court
(Coram : Dharamadhikari and Jahagirdar, JJ) held
that the confession made to Police Patil was
inadmissible in view of the bar under Section 25 of
the Evidence Act since Police Patil is Police Officer.
In order to arrive at the finding, the Division Bench
placed reliance upon earlier judgment of this Court in
Queen Empress V. Bhima (1893) ILR 17 BOM. 485).
The reliance was also placed upon Section 6 of the
Maharashtra Village Police Act, 1967 (“the Act” for
short) which gives powers to Police Patil to collect
and communicate to the State Officer intelligence
affecting the public peace and also power to prevent
within the limits of his village the commission of
offences and public nuisances, and detect and bring
offenders therein to justice, within the limits of
village.
9.
In Ramsingh’s case (supra) the Division Bench
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7
of this Court (Coram : V.K. Barde and J.A. Patil, JJ.)
placing reliance upon the judgment in Vistari Shebe’s
case and Bhima’s case held that confessional
statement made by the accused before Police Patil is
not admissible in evidence.
10, In Sanjay’s case (supra) the Division Bench of
this Court (Coram : D.D. Sinha and P.S. Brahme, JJ.)
placing reliance upon judgments in Vistari Shebe’s
case and Ramsingh’s case held that the confessional
statement made by the accused before the Police
Patil is not admissible in evidence.
ig
11.
In Arjun Bhekare’s case (supra) the Division
Bench of this Court (Coram : R.M.S. Khandeparkar
and R.S. Mohite, JJ) held that the confession made to
Police Officer is not confession made to Police Officer
and as such is not hit by Section 25 of the Evidence
Act. To arrive at this finding, the Division Bench of
this Court placed reliance upon the judgment of the
Apex Court in the case of Rajkumar Karwal v Union
of India (AIR 1991 SC 45). The Division Bench
quoted the following paragraphs from the said
judgment :
“We therefore, agree that as S. 25 of Evidence
Act which engrafts a wholesome protection it
must not be construed in a narrow and
technical sense but must be understood in a
broad and popular sense. But at the same time
it cannot be construed in so wide a sense as to
include persons on whom only some of the
powers exercised by the police are conferred
within the category of police officers.”
“The important attribute of police power is not
only the power to investigate into the
commission of cognizable offence but also the
power to prosecute the offender by filing a
report or a charge-sheet under S. 173 of the
Code. That is why this court has since the
decision in Badku Joti Savant (AIR 1966 SC
1746) accepted the ratio that unless an officer
is invested under any special law with the
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8
powers of investigation under the Code,
including the power to submit a report under S.
173, he cannot be described to be a police
officer under S. 25, Evidence Act.”
12.
It is to be noted that earlier judgments of this
Court holding contrary view were not brought to the
notice of the learned Judges in Arjun Bhekare’s case.
13.
Thus, we are faced with a situation in which
coordinate benches have taken contrary views.
ig
14.
In Raj Kumar Karwal’s case the issue before
the Apex Court was whether an officer invested with
powers of officer-in-charge of Police Station under
Section 53 of Narcotic Drugs & Psychotropic
Substances Act 1985 was Police Officer within the
meaning of Section 25 of the Evidence Act. The Apex
Court, after considering several judgments of the
Apex Court and High Courts, held that such an order
cannot be described as Police Officer for the purpose
of Section 25 of the Evidence Act.
15.
As stated above, in Vistari Shebe’s case the
Division Bench has held that the Police Patil is Police
Officer for the purpose of Section 25 of the Evidence
Act, primarily, relying upon Section 6 of Maharashtra
Village Police Act, 1967 and earlier judgment in
Bhima’s case of this Court. Insofar as Section 6 of
Maharashtra Village Police Act, 1967 is concerned, it
only gives limited powers which have already been
referred to the above. But it does not empower the
Police Patil to file report under Section 173 of the
Code of Criminal Procedure. In Bhima’s case learned
Judge had preferred to follow the judgment of
Calcutta High Court in Queen Vs. Harribole Chunder
Ghose (ILR Calcutta 207). There is no discussion in
the said judgment as to why the learned Judge held
that the Police Patil is a Police Officer within the
mean of Section 25 of the Evidence Act.
16.
In Harribole’s case (supra) Calcutta High Court
held that confession made to the Deputy
Commissioner of Police was hit by Section 25 of
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9
Evidence Act since it was made to the Police Officer.
Whether Police Patil was a Police Officer was not the
issue before the Calcutta High Court in Harribole’s
case. Insofar as the judgments in Ramsingh’s case
(supra) and Sanjay’s case (supra) are concerned, both
the judgments placed reliance upon the judgment in
Vistari Shebe’s case for holding that confession made
to the Police Patil was hit under Section 25 of the
Evidence Act.
ig
17.
In view of the above discussion, it is clear that
the view taken in three judgments relied upon by Mr.
Daga runs counter to the view taken in Arjun
Bhekare’s case. We are in respectful agreement with
the view taken by the Division Bench of this Court in
Arjun Bhekare’s case inasmuch as in the said
judgment the finding that Police Patil is not a Police
Officer for the purpose of Section 25 of Evidence Act
has been arrived at by placing reliance upon the
judgment of the Apex Court in Rajkumar’s case
(supra) in which it has been clearly held that unless
the Officer has powers to investigate and file report
under Section 173 of the Code of Criminal Procedure,
the Officer cannot be termed as Police Officer for the
purpose of Section 25 of the Evidence Act. In our
opinion, the view taken by the Division Bench of this
Court in Arjun’s case is the correct view. However,
since there are conflicting views of coordinate
Benches, we deem it appropriate to refer the
following issue to Full Bench with a request to
Hon’ble Chief Justice to constitute Full Bench to
resolve the issue :-
“Whether Police Patil appointed under Maharashtra
Village Police Act, 1967 is a “Police Officer” for the
purpose of Section 25 of the Evidence Act ?”
18. Registrar (Judicial) to place the papers before the
Hon’ble the Chief Justice for passing appropriate
orders.”
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10
It will be essential to precisely refer to the facts of the
4.
case.
The Bench passed the above Order of Reference in
Criminal Appeal No. 315 of 2003 which was directed against the
judgment and order of sentence dated 27th March 2003 where the
accused Rajeshwar Mohurle was found guilty of an offence
punishable under Section 302 of the Indian Penal Code
ig
(hereinafter referred to as “the IPC”) and was sentenced to suffer
imprisonment for life and to pay a fine of Rs.500/- and in default
of payment of find to undergo imprisonment for six months.
According to the prosecution, the accused was married to deceased
Kunda nearly since a year and she was pregnant. Accused had
developed immoral relation with his sister-in-law and was
intending to re-marry. For this reason he used to beat deceased
Kunda often and on 19th April 1999 at 6.30 or 7.00 p.m., PW2
Vanita heard shoutings from the house of the accused “Marte,
Dhawa”. She ran to that place and saw the accused sitting on the
chest of deceased Kunda and pressing her neck. He killed her and
threatened PW2 of dire consequences if she talked about the same.
However, PW2 ran to the house of Police Patil PW1 Soma and
narrated this incident which she saw. They came back to the spot
together and found that Kunda was dead and there was bleeding
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11
from her nose. PW1 Soma, Police Patil, inquired with the accused
and as per his statement before Court the accused told that he
committed murder of Kunda. PW1 Soma, Police Patil, thereafter
lodged a report Exhibit 16 in the police station on the next day
morning and police registered a case being Crime No.5 of 1999
under Section 302 and registered the FIR Exhibit 17.
After
receiving post mortem report and after recording statements of
ig
other witnesses on completion of the investigation, charge-sheet
was filed by the Police in the Court of Chief Judicial Magistrate,
Ghadchiroli, who committed the case for trial to the Court of
Sessions. After framing charge and recording evidence, the Court
found the accused guilty of an offence punishable under Section
302 of the IPC.
5.
It needs to be noticed that PW1 Soma, Police Patil, in
his statement had stated that accused had told him that he had
committed the murder of Kunda whereafter he had reported the
matter to the police. The learned trial Court in paragraph 28 of its
judgment noticed, “He inquired to the accused who had
committed the murder of Kunda.
Accused told that accused
committed the murder of Kunda. It is noteworthy that it is the
extra-judicial confession given by the accused to PW1 Soma and,
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12
therefore, important piece of evidence.” In the Appeal preferred
by the accused, obviously question was raised as to admissibility of
alleged statement of the accused before PW1 Soma, the Police
Patil, resulting in the Reference being made for determination by a
larger Bench.
The contention raised by the learned Counsel
6.
ig
appearing for the Appellant before the Bench was that the Trial
Court had committed patent illegality in placing reliance upon the
extra judicial confession made to Police Patil PW1 Soma Sonule.
The learned Counsel then contended that as a Police Patil has been
held to be a Police Officer within the meaning of Section 25 of the
Evidence Act, the confession is inadmissible and relied upon the
following judgments of this Court :-
(1)
Vistari Narayan Shebe v The State of
Maharashtra (1978 Cr.L.J. 891).
(2) Sanjay Vs. State of Maharashtra (2004)
(1) Crimes 445).
(3) Ramsingh Vs State of Maharashtra and
another (1999 Cr.L.J. 3763).
7.
In Ramsingh’s case (supra), the Division Bench
relied upon the judgment of the Court in Vistari Narayan Shebe
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13
(supra) as well as Queen Empress v Bhima, (1894) ILR 17 Bom
485. The reasoning in these judgments appear to be that Section
6 of the Maharashtra Village Police Act, 1967 gives power to the
Police Patil to collect evidence, communication to the Police
Officer, prevent happening of the crime, detect and bring
offenders therein to justice and these powers thus cloth the Police
Patil with the powers of a Police Officer and as such he is a Police
ig
Officer. The Court took the view that the word `Police Officer’
found in Section 25 of the Evidence Act should not be read in any
strict technical sense but according to its more comprehensive
and more popular meaning and he being in charge of investigating
offence has to be termed as Police Officer. It will be useful to refer
to the conclusions and the reasoning given by the Division while
arriving at their conclusions :-
“18. In this respect, we would like to refer two
rulings of our High Court. The first is, in the case of
Queen Empress v. Bhima [(1894) ILR 17 Bom 485],
and the other is in the case of Vistari Narayan Shebe
v. The State of Maharashtra 1978 Cri LJ 891. It is
observed in the case of Vistari Narayan Shebe by the
Division Bench, as follows (at page 895) :
“In our opinion, it is fairly well
established that the police patil is a
police officer within the meaning of Sec.
25 of the Evidence Act. As early as in
1893 this Court held in Queen Empress
v. Bhima [(1894) ILR 17 Bom 485), that a
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police patil is a police officer within the
meaning of Ss. 25 and 26 of the Indian
Evidence Act. A confession made to a
police patil is inadmissible in evidence.
It must be remembered that the words “a
police officer” found in S. 25 of the
Indian Evidence Act should not be read
in any strict
technical sense but
according to its more comprehensive and
more popular meaning. Nor is the term
confined to a person actually in charge of
investigating the offence under the Cr.
P.C.”
14
ig
19.
Thus, it will be very clear that any confessional
statement made by the accused before the Police Patil
is not admissible in evidence.
If the learned
Additional Sessions Judge had considered this aspect
in that perspective, he would not have relied upon
the evidence of the Police Patil to hold that the extra
judicial confession made by the accused before the
Police Patil could be sufficient to convict the accused.
The deposition of the Police Patil as well as the F.I.R.
Which include this confessional statement are
inadmissible in evidence and, therefore, this evidence
brought on record by the prosecution has to be
excluded altogether.”
8.
In Sanjay’s case (supra) also the Court relied upon
Vistari Shebe and Ramsingh’s case. The Bench further expressed
the opinion that the judgment of the Supreme Court in
Pakkiriasamy vs State of T.N., (1997) 8 SCC 158, on facts has no
application to the case before that Division Bench as the Supreme
Court was not required to express its opinion as to whether Police
Patil is a Police Officer.
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15
9.
This is one aspect of the law, while the other view was
expressed by a Division Bench of this Court in the case of State of
Maharashtra vs Arjun Dattaram Bhekare, 2005 Cri. LJ. 472,
where the Bench took the view that confession made to the Police
Patil is not a confession made to a Police Officer and as such is not
hit by the provisions of Section 25 of the Evidence Act. It appears
ig
that in that case the Division Bench judgments of this Court were
not brought to the notice of the Bench and the Bench while relying
upon the judgment of the Supreme Court in Raj Kumar Karwal
vs Union of India, 1991 Cri. LJ 97, and deferring with the view
expressed in the case of Alluri Ramayya vs. State of
Maharashtra, 1987 Cri. LJ 1172, stating that the said decision
was not a conclusive decision on the point in question and held as
under :-
“18. It appears to us that the aforesaid evidence
relating to the extra-judicial confession has been
discarded by the trial Court on the ground that the
said confession was hit by S. 25 of the Indian
Evidence Act. For coming to this conclusion, the trial
Court has relied upon the judgment of the Bombay
High Court reported in the case Alluri Ramayya v.
State of Maharashtra, reported in 1987 Cri LJ 1172.
In that case the concession was made by an accused
in the presence of crowd. The Police Patil was also
present in the crowd. A Division Bench of this Court
held that the said confession was not hit by S. 25
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16
ig
though Police Patil was a police officer under the
Indian Evidence Act. This was so held by the
Division Bench on this footing that the word “to”
occurring in S. 25 could not be read as “in presence
of”. On perusal of the judgment it is found that the
proposition as to whether Police Patil appointed
under the Maharashtra Village Panchayat Act can be
said to be a Police Officer within the meaning of S. 25
of the Indian Evidence Act, was not in issue as it was
not disputed before the Division Bench. In our view,
in the absence of any such dispute the Court made a
reference to the fact that the proposition was not
disputed. This by itself could not be said to be a
conclusive decision on the point. In any case, the
matter is covered by a subsequent judgment of the
Apex Court in the case of Raj Kumar Karwal v. Union
of India, reported in AIR 1991 SC 45 : (1991 Cri LJ
97). The issue involved is directly dealt with by the
Apex Court in the following terms.
“We, therefore, agree that as S. 25 of
Evidence Act which engrafts a
wholesome protection it must not be
construed in a narrow and technical
sense but must be understood in a broad
and popular sense. But at the same time
it cannot be construed in so wide a sense
as to include persons on whom only
some of the powers exercised by the
police are conferred within the category
of police officers.”
“The important attribute of police power
is not only the power to investigate into
the commission of cognizable offence but
also the power to prosecute the offender
by filing a report or a charge-sheet under
S. 173 of the Code. That is why this
Court has since the decision in Badku
Joti Savant (AIR 1966 SC 1746) accepted
the ratio that unless an officer is invested
under any special law with the powers of
investigation under the Code, including
the power to submit a report under S.
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173, he cannot be described to be a police
officer under S. 25, Evidence Act.”
17
ig
19.
We have gone through the provisions of the
Bombay Village Panchayat Act as well as Criminal
Procedure Code. It is clear that the Police Patil of the
village has no power to file a report under S. 173 of
the Criminal Procedure Code and, therefore, is not a
police officer within the meaning of S. 25 of the
Evidence Act. A judicial confession made by accused
No.1 to P.W. No.2 Ramdas S. 2(a) is therefore
relevant and the said extra-judicial confession would
assume importance.
We do not find anything
unbelievable in the evidence relating to the making of
such a confession. Nothing has been elicited on the
record as to why P.W. No.2 Ramdas Chavan would
falsely involve the accused and his sons. On the
contrary in his 313 statement, accused No.1 candidly
admitted that he cannot state as to why P.W. No.2
Ramdas Chavan was deposing against him.”
The above conclusions of the respective Benches
10.
obviously indicate conflict of judicial opinion.
In order to
examine which of the above views is in accordance with law, it will
be useful to refer to certain provisions of the relevant statute. The
Maharashtra Village Police Act, 1967 (hereinafter referred to as
“Village Police Act”) was introduced primarily for the reason that
it was considered to be expedient to consolidate and amend the
law for regulation of village Police in the State of Maharashtra.
The Act has been in force since 1967. The Government has the
power under Section 5 to appoint one or more Police Patils for a
village or even group of villages. Section 6 contemplates that the
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18
Police Patil shall perform the duties as specified in that Section
but subject to the orders of the District Magistrate. These powers
primarily relate to furnishing returns and information as may be
called by the Executive Magistrate, to keep the said authority
informed as to the state of crime and matters connected with the
village police and the health and general condition of the
community in the village, promptly obey and execute all orders
ig
and warrants issued by the Magistrate, collect and communicate
to the Station Officer intelligence affecting the public peace, to
prevent within the limits of the village the commission of offence
and public nuisance and bring the offenders therein to justice and
to perform such other duties as are specified under the provisions
of the Village Police Act by the State Government from time to
time. One of the important duties and which will have some
bearing on the controversy before us is the duty contained in sub-
section (iv) of Section 6 of the Village Police Act which requires a
Police Patil to afford every assistance in his power to all Police
Officers when called upon by them in performance of their duties.
11.
Under Section 13, whenever an unnatural or sudden
death occurs, a Police Patil is required to proceed to the spot of
incident and call intelligent persons belonging to the village or the
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19
neighbourhood, investigate the cause of death and circumstance
of the case and submit a written report to the Station Officer.
Under Section 14, the Police Patil shall have the power to
apprehend any person within the limits of his village who he may
have reason to believe has committed any serious offence and
shall furnish such person together with articles to the Station
Officer and every person so apprehended will be produced before
ig
the Magistrate within twenty four hours. Section 15 clearly states
the varied powers that are vested in the Police Patil. He is vested
with the power to call and examine witnesses, record their
statements and search for concealed articles. Such are the powers
given to the Police Patil under the provisions of the Village Police
Act. All the powers under this Act which he is expected to exercise
for performance of his duties and to ensure that the object of these
statutory provisions is not defeated. In other words, the powers
vested in the Police Patil under the provisions of the Village Police
Act are relatable to the duties and functions for which the Police
Patil is appointed. To give meaning to these powers beyond the
scope of the duties would be an approach not quite permissible in
law. The duties, functions and powers of the Police Patil under
the provisions of the Village Police Act do not vest him with the
powers which are vested in a Police Officer under the provisions
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20
of the Criminal Procedure Code. The powers given to him under
the Village Police Act are limited in their nature and scope and are
not as wide, specific and consequential as the powers of a Police
Officer under the provisions of the Criminal Procedure Code. The
Police Patil is to act unlike a Police Officer under the orders of the
District Magistrate and has to report the matters to him and even
where he makes some inquiry or investigation, he is expected to
ig
submit report to the Station Officer and has not been empowered
to take any further action, like preparation of a charge sheet or its
presentation before the Court of competent jurisdiction. He is
vested with no powers in regard to the powers vested in an
investigating officer under the provisions of Sections 173 of the
Criminal Procedure Code. The Act does not contain any deeming
provision which by fiction of law would term a Police Patil as a
Police Officer. It could be possible that an Act may specifically
stipulate that a Police Patil for all intent and purpose shall be
deemed to be a Police Officer under the provisions of the Village
Police Act and/or the Criminal Procedure Code. In absence of
such a deeming fiction of law, it is difficult to confer the status of a
Police Officer in law upon a Police Patil or accept the contention
that the Police Patil is clothed with the powers and functions of a
Police Officer. Neither there is any specific provision in the Act
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21
nor on principle of implied interpretation it can be said that
provisions of the Act suggest that the Police Patil is a Police
Officer in law. His duties, functions and powers are not identical
or even closely identical to the powers of a Police Officer under the
provisions of the Criminal Procedure Code.
A person would be a police officer by virtue of his
12.
ig
appointment as such or by analogy he could be termed as “police
officer” by comparison of functions, duties and powers vested in
such person by law and/or with that of a Police Officer or by
virtue of deeming fiction of law. It may be possible that an Act
may contain a provision which stipulates that a person appointed
under the provisions of the Act shall be deemed to be a police
officer for all intent and purposes. Certainly the Act in hand does
not contain any such provision which would render Police Patil, a
Police Officer by deemed fiction of law that too for all intent and
purpose.
13.
Section 24 of the Indian Evidence Act, 1872 states
that a confession made by an accused person is irrelevant in a
criminal proceeding, if the making of the confession appears to
the Court
to have been caused by any inducement, threat or
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22
promise, having reference to the charge against the accused
person, proceeding from a person in authority and sufficient, in
the opinion of the Court, to give the accused person grounds,
which would appear to him reasonable, for supposing that by
making it he would gain any advantage or avoid any evil of a
temporal nature in reference to the proceedings against him. In
is hit by the provision of
other words, when the confession
ig
Section 24 of the Evidence Act, it is not admissible. Section 25
further restricts the scope of a confession where the confession
made satisfies the requirement of law still if it is made to a Police
Officer. Such confession shall be hit by the provision of Section 25
which states that no confession made to a police officer shall be
proved as against a person accused of any offence. The purpose
and object of Section 25 is to ensure that the person accused of an
offence is not induced by threat, coercion or force into making a
confessional statement by the concerned Police Officer (State of
Gujarat vs Anirudhsing, AIR 1997 SC 2780).
Similarly,
Section 26 requires that a confession by an accused while in
custody of police cannot to be proved against him unless it is
made in the immediate presence of a Magistrate. A bar contained
under Section 25 is further strengthen by provision of Section 162
of the Code of Criminal Procedure Code which states that no
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23
statement made by any person to a Police Officer in the course of
an investigation under that Chapter be used for any purpose save
as specifically provided under that provision. Section 164 of the
Code further provides methodology for recording of confessional
statements by a Magistrate with inbuilt checks, balances and
safeguards. The scheme of the Code thus contemplates protection
to the accused and renders such statements made to the Police in
ig
custody or otherwise as not admissible and which cannot be
proved against the accused unless they fully satisfy the
requirements of the relevant provisions of law. Such an approach
is in consonance with the Legislative intent as well as the basic
canon of criminal jurisprudence that an accused is innocent till
proved guilty under the Indian law. The real object is to ensure
fair investigation on the one hand, while on the other hand, that a
suspect or an accused is not unduly harassed and pressurized to
make a confessional statement.
The Police Officer therefore,
should not be able to take undue advantage of the accused being
in his custody or authority within his investigative powers.
In
order to become inadmissible, the confession is required to be
made during investigation and to a Police Officer. Therefore, the
significance of the expression “Police Officer” must be kept in
mind. An officer conducting the investigation may be a Police
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24
Officer as contemplated under the provisions of the Code of
Criminal Procedure or may be an Officer or an Appointee under
the Special Act which clothes him with powers and authority as
that of a Police Officer so as to attract the bar contained under
Section 25 of the Indian Evidence Act.
The statement is made
during the course of investigation to a Police Officer cannot be
proved against the accused and if the Authority or the Officer
ig
appointed under the Special Act holds status of a Police Officer de
of Section 25.
In the backdrop of above statutory provisions, now
14.
facto and de jure such statement then would be hit by provision
we shall examine and discuss the principle of law stated by the
Supreme Court in its various judgments. In Badaku Joti Savant
vs State of Mysore, AIR 1966 SC 1746, the Supreme Court was
concerned with the provisions of Central Excise and Salt Act, 1944
and the question before the Court was whether a statement made
to Deputy Superintendent
of Custom and Excise would be
admissible in evidence or not on the ground that the said Officer
was a Police Officer within the meaning of Section 25 of the
Evidence Act. Laying emphasis on the need of the stated Officer
to have all the powers including the power to submit a charge-
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25
sheet under Section 173 of the Code of Criminal Procedure, the
Court declined to accept the contention that the Deputy
Superintendent of the Customs and Excise was a Police Officer
and thus held that statement made to him was admissible. While
referring to the earlier judgment of the Court and noticing the
difference of opinion in the judgments of the High Court, the
ig
Supreme Court held as under:-
“6.
There has been difference of opinion among the
High Courts in India as to the meaning of the words
“police officer” used in S. 25 of the Evidence Act. One
view has been that those words must be construed in
a broad way and all officers whether they are police
officers properly so called or not would be police
officers within the meaning of those words if they
have all the powers of a police officer with respect to
investigation of offences with which they are
concerned. The leading case in support of this view is
Nanoo Sheikh Ahmed v. Emperor, ILR (1927) 51 Bom
78 : (AIR 1927 Bom 4 (FB)). The other view which
may be called the narrow view is that the words
“police officer” in S. 25 of the Evidence Act mean a
police officer properly so called and do not include
officers of other departments of Government who
may be charged with the duty to investigate under
special Acts special crimes thereunder like excise
offences or customs offences, and so on. The leading
case in support of this view in Radha Kishun Marwari
v. Emperor, ILR (1933) 12 Pat 46 : (AIR 1932 Pat 293
(SB)). The other High Courts have followed one view
or the other, the majority being in favour of the view
taken by the Bombay High Court.
xxxxx
xxxxx
xxxxx
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26
“21.(1) When any person is forwarded
under S. 19 to a Central Excise Officer
empowered to send persons so arrested
to a Magistrate, the Central Excise
Officer shall proceed to inquire into the
charge against him.
9.
Strong reliance has, however, been placed on
behalf of the appellant on S. 21 of the Act, the material
part of which runs thus :
ig
(2) For this purpose the Central
Excise Officer may exercise the same
powers and shall be subject to the same
provisions as the officer-in-charge of a
police station may exercise and is subject
to under the Code of Criminal Proceudre,
1898, when investigating a cognizable
case :
Provided that .....................”
It is urged that under sub-s. (2) of S. 21 a
Central Excise Officer under the Act has all the
powers of an officer-in-charge of a police station
under Chap. XIV of the Cr. P.C. and, therefore, he
must be deemed to be a police officer within the
meaning of those words in S. 25 of the Evidence Act.
It is true that sub-s. (2) confers on the Central Excise
Officer under the Act the same powers as an officer-
in-charge of a police station has when investigating a
cognizable case; but this power is conferred for the
purpose of sub-s. (1) which gives power to a Central
Excise Officer to whom any arrested person is
forwarded to inquire into the charge against him.
Thus under S. 21 it is the duty of the Central Excise
Officer to whom an arrested person is forwarded to
inquire into the charge made against such person.
Further under proviso (a) to sub-s. (2) of S. 21 if the
Central Excise Officer is of opinion that there is
sufficient evidence or reasonable ground of suspicion
against the accused person, he shall either admit him
to bail to appear before a Magistrate having
jurisdiction in the case, or forward him in custody to
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27
ig
such Magistrate. It does not, however, appear that a
Central Excise Officer under the Act has power to
submit a charge-sheet under S. 173 of the Cr. P.C.
Under S. 190 of the Cr. P.C. A Magistrate can take
cognizance of any offence either (a) upon receiving a
complaint of facts which constitute, such offence, or
(b) upon a report in writing of such facts made by any
police officer, or (c) upon information received from
any person other than a police officer, or upon his
own knowledge or suspicion, that such offence has
been committed. A police officer for purposes of Cl.
(b) above can in our opinion only be a police officer
properly so-called as the scheme of the Code of
Criminal Procedure shows and it seems, therefore,
that a Central Excise Officer will have to make a
complaint under Cl. (a) above if he wants the
Magistrate to take cognizance of an offence, for
example, under S. 9 of the Act. Thus though under
sub-s. (2) of S. 21 the Central Excise Officer under the
Act has the powers of an officer-in-charge of a police
station when investigating a cognizable case, that is
for the purpose of his inquiry under sub-s. (1) of S. 21.
Section 21 is in terms different from S. 78(3) of the
Bihar and Orissa Excise Act, 1915 which came to be
considered in Raja Ram Jaiswal’s case, (1964) 2 SCR
752 : (AIR 1964 SC 828), and which provided in terms
that “for the purposes of S. 156 of the Cr.P.C., 1898,
the area to which an excise officer empowered under
S. 77, sub-s. (2), is appointed shall be deemed to be a
police-station, and such officer shall be deemed to be
the officer-in-charge of such station”. It cannot,
therefore, be said that the provision in S. 21 is on par
with the provision in S. 78(3) of the Bihar and Orissa
Excise Act. All that S. 21 provides is that for the
purpose of his enquiry, a Central Excise Officer shall
have the powers of an officer-in-charge of a police
station when investigating a cognizable case. But
even so it appears that these powers do not include
the power to submit a charge sheet under S. 173 of the
Cr. P. C., for unlike the Bihar and Orissa Excise Act,
the Central Excise Officer is not deemed to be an
officer-in-charge of a police station.
10.
It has been urged before us that if we consider
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28
S. 21 in the setting of S. 14 of the Act, it would become
clear that the enquiry contemplated under S. 21(1) is
in substance different from investigation pure and
simple into an offence under the Code of Criminal
Procedure. It is not necessary to decide whether the
enquiry under S. 14 must also include enquiry
mentioned in S. 21 of the Act. Apart from this
argument we are of the opinion that mere conferment
of powers of investigation into criminal offences
under S. 9 of the Act does not make the Central Excise
Officer a police officer even in the broader view
mentioned above. Otherwise any person entrusted
with investigation under S. 202 of the Cr.P.C. would
become a police officer.
ig
11.
In any case unlike the provisions of S. 78(3) of
the Bihar and Orissa Excise Act, 1915, S. 21(2) of the
Act does not say that the Central Excise Officer shall
be deemed to be an officer-in-charge of a police
station and the area under his charge shall be deemed
to be a police station. All that S. 21 does is to give him
certain powers to aid him in his enquiry. In these
circumstances we are of opinion that even though the
Central Excise Officer may have when making
enquiries for purposes of the Act powers which an
officer-in-charge of a police station has when
investigating a cognizable offence, he does not
thereby become a police officer even if we give the
broader meaning to those words in S. 25 of the
Evidence Act. The scheme of the Act, therefore, being
different from the Bihar and Orissa Excise Act, 1915,
the appellant cannot take advantage of the decision of
this Court in Raja Ram Jaiswal’s case, (1964) 2 SCR
752: (AIR 1964 SC 828), taking even the broader view
of the words “police officer” in S. 25 of the Evidence
Act. We are of opinion that the present case is more
in accord with the case of Barkat Ram, (1962) 3 SCR
338: (AIR 1962 SC 276). In this view of the matter
the statement made by the appellant to the Deputy
Superintendent of Customs and Excise would not be
hit by S. 25 of the Evidence Act and would be
admissible in evidence unless the appellant can take
advantage of S. 24 of the Evidence Act. As to that it
was urged on behalf of the appellant in the High
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29
The above judgment of the Supreme Court clearly
15.
ig
Court that the confessional statement was obtained by
threats. This was not accepted by the High Court and,
therefore, S. 24 of the Evidence Act has no application
in the present case. It is not disputed that if this
statement is admissible, the conviction of the
appellant is correct. As we have held that a Central
Excise Officer is not a police officer within the
meaning of those words in S. 25 of the Evidence Act
the appellant’s statement is admissible. It is not ruled
out by anything in S. 24 of the Evidence Act and so
the appellant’s conviction is correct and the appeal
must be dismissed. We hereby dismiss the appeal.”
stated the principle and provided precept which may safely be
relied upon by the Courts as and when such question arises for
consideration of the Court. Similar question arose before the
Supreme Court in the case of Ramesh Chandra Mehta vs State of
West Bengal, AIR 1970 SC 940, where the Court was concerned
with the provisions of Section 171A of the Sea Customs Act, 1878
and admissibility of statement made and recorded by Custom
Officer under the said provision. While holding that the Custom
Officer was not a member of the police force and not a Police
Officer, the Court held as under: -
“5.
..... ..... ..... The Customs Officer does
not exercise, when enquiring into a suspected
infringement of the Sea Customs Act powers of
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30
investigation which a police officer may in
investigating the commission of an offence. He is
invested with the power to enquire into
infringements of the Act primarily for the purpose of
adjudicating forfeiture and penalty. He has no power
to investigate an offence triable by a Magistrate, nor
has he the power to submit a report under Section
173 of the Code of Criminal Procedure. He can only
make a complaint in writing before a competent
Magistrate.”
ig
“10. Counsel for Mehta contended that a Customs
Officer who has power to detain, to arrest, to produce
the person arrested before a Magistrate, and to obtain
an order for remand and keep him in his custody with
a view to examine the person so arrested and other
persons to collect evidence, has opportunities which a
police officer has of extracting confessions from a
suspect, and if the expression police officer be not
narrowly understood, a statement recorded by him of
a person who is accused of an offence is inadmissible
by virtue of Section 25 of the Indian Evidence Act.
But the test for determining whether an officer of
Customs is to be deemed a police officer is whether
he is invested with all the powers of a police officer
qua investigation of an offence, including the power
to submit a report under Section 173 of the Code of
Criminal Procedure. It is not claimed that a Customs
Officer exercising power to make an enquiry may
submit a report under Section 173 of the Code of
Criminal Procedure.”
16.
This view was also reiterated by the Supreme Court in
the case of Illias vs The Collector of Customs, Madras, AIR 1970
SC 1065, where the Court held as under:-
“12.
.....
In this view of the matter even though
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31
ig
under the new Act a Customs Officer has been
invested with many powers which were not to be
found in the provisions of the old Act, he cannot be
regarded as a police officer within the meaning of
Section 25 of the Evidence Act. In two recent
decisions of this Court in which the judgments were
delivered only on October 18, 1968, i.e., Ramesh
Chandra Mehta v. State of West Bengal, Criminal
Appeal No. 27 of 1967 (reported in AIR 1970 SC 940)
and Dady Adavji Fatakia v. K.K. Ganguli, Asstt.
Collector of Customs, Cri. Appeal No. 46 of 1968
(since reported in AIR 1970 SC 940) the view
expressed in Barkat Ram’s case, 91962) 8 SCR 338 =
(AIR 1962 SC 276) with reference to the old Act has
been reaffirmed on the question under consideration
and it has been held that under the new Act also the
position remains the same. This, is what has been
said in Dady Adavji Fakatia’s case, Cri. Appeal No. 46
of 1968 (reported in AIR 1970 SC 940) :
“For reasons set out in the judgment in
Cri. Appl. No. 27 of 1967 = (reported in AIR
1970 SC 940) and the judgment of this Court in
Badku Joti Savant’s case, (1966) 3 SCR 698 =
(AIR 1966 SC 1746) we are of the view that a
Customs Officer is under the Act of 1962 not a
police officer within the meaning of Section 25
of the Evidence Act and the statements made
before him by a person who is arrested or
against whom an inquiry is made are not
covered by Section 25 of the Indian Evidence
Act.”.”
17.
The above stated principles have been consistently
followed by the Supreme Court.
The principles are binding
precedent in terms of Article 141 of the Constitution of India. In
fact, with the passage of time, the Supreme Court has enlarged the
scope of these principles by considering cases under different
enactments and holding that the Officers appointed and vested
with the powers of investigation and other powers like seizure,
etc., were not Police Officers within the meaning of Section 25 of
the Evidence Act. The principles were extended to the provisions
under the different Act including the Narcotic Drugs &
Psychotropic Substances Act, 1985. In the case of Raj Kumar
ig
Karwal vs. Kirpal Mohan Virmani, AIR 1991 SC 45, the
Supreme Court, while referring to the earlier judgments of the
Court and discussing the law in some detail, held as under :-
“10. ...... We, therefore, agree that as Section 25,
Evidence Act, engrafts a wholesome protection it
must not be construed in a narrow and technical
sense but must be understood in a broad and popular
sense. But at the same time it cannot be construed in
so wide a sense as to include persons on whom only
some of the powers exercised by the police are
conferred within the category of police officers. See
State of Punjab v. Barkat Ram, (1962) 3 SCCR 338 at
P. 347 : (AIR 1962 SC 276 at P. 280) and Raja Ram
Jaiswal v. State of Bihar, (1964) 2 SCR 752 at P. 761 :
(AIR 1964 SC 828 at P. 831). This view has been
reiterated in subsequent cases also.
11.
The question then is whether the expression
“police officer”, even if liberally construed, would take
in its fold officers of other departments including the
DRI invested with powers under Section 53 of the
Act. According to the view taken by the Bombay High
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33
Court in Sheikh Ahmed v. Emperor (1927) ILR 51
Bombay 78 : (AIR 1927 Bombay 4) (FB) they perhaps
would, but not if the view expressed by the Patna
High Court in Radha Kishan Marwari v. King-
Emperor, (1933) ILR 12 Patna 46 : (AIR 1932 Patna
293) prevails. These two lines of the thought have
been the subject-matter of scrutiny by this Court in a
few subsequent cases. We will presently refer to
them.
ig
12.
In the case of Barkat Ram (1962 (3) SCR 338 :
AIR 1962 SC 276) this Court was called upon to
consider whether Customs Officers to whom
confessional statements were made could be said to
be police officers within the meaning of Section 25,
Evidence Act. On behalf of the prosecution it was
argued that the mere fact that certain powers of
arrest, search, seizure and recording of evidence have
been conferred on such officers, where contravention
of the provisions of the statute is complained of, is
not sufficient to make them police officers under
Section 25 of the Evidence Act. The respondents on
the other hand contended that officers on whom such
powers are conferred are in fact police officers, no
matter by what name they are called. This Court, by
majority, pointed out that the primary function of the
police under the Police Act, 1861, is prevention and
detection of crime while the Customs Officers are
mainly interested in the detection and prevention of
smuggling of goods and safeguarding the recovery of
customs duties, i.e., they are more concerned with the
goods and customs duty, than with the offender.
After referring to the provisions of the various
statutes including Section 5(2) of the Old Code [now
Section 4(2)] this Court held at pages 364-365 (of
SCR) : (at Pp. 286-87 of AIR) as under :
“The foregoing consideration of
the case law and the statutory provisions,
yields the following results : The term
`police officer’ is not defined in the
Evidence Act, or, as a matter of fact, in
any
other
contemporaneous
or
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ig
subsequent enactment. The question,
therefore, falls to be decided on a fair
construction of the provisions of S. 25 of
the Evidence Act, having regard to the
history of the legislation and the meaning
attributed to that term in and about the
time when S. 25 of the Evidence Act
came to be inserted therein. If a literal
meaning is given to the term `police
officer’ indicating thereby an officer
designated as police officer, it will lead to
anomalous results. An officer designated
as a police officer, even though he does
not discharge the well understood police
functions, will be hit by S. 25 of the
Evidence Act, whereas an officer not so
designated but who has all the powers of
a police officer would not be hit by that
section; with the result, the object of the
section would be defeated.
The
intermediate position, namely, that an
officer can be a police officer only if
powers and duties pertaining to an
officer incharge of a police station within
the meaning of the Code of Criminal
Procedure are entrusted to him, would
also lead to an equally anomalous
position, for, it would exclude from its
operation a case of an officer on whom
specific powers and functions are
conferred under specific statutes without
reference to the Code of Criminal
Procedure.
The Code of Criminal
Procedure does not define a `police
officer’ and S. 5(2) thereof makes the
procedure prescribed by the Code subject
to the procedure that may be prescribed
by any specific Act. This construction
would make the provisions of S. 25 of the
Evidence Act otiose in respect of officers
on whom specific and incontrovertible
police powers are conferred. But the
third position would not only carry out
the intention of the Legislature, but
34
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would also make the section purposive
and useful without doing any violence to
the language of the section. A police
officer within the meaning of S. 25 of the
Evidence Act may be defined thus : An
officer, by whatever designation he is
called, on whom a statute substantially
confers the powers and imposes the
duties of the police is a police officer
within the meaning of S. 25 of the
Evidence Act.”
35
ig
In the final analysis this Court held that the duties of
the Customs Officer were substantially different from
those of the police and merely because they possessed
certain powers having similarity with those of police
officers, cannot make them police officers within the
meaning of Section 25 of the Evidence. Act.
13.
In the case of Raja Ram Jaiswal (AIR 1964 SC
828) the undisputed facts were that a motor car was
intercepted by an Excise Inspector and searched. On
search five bundles of non-duty paid Nepali charas
were found and seized.
The Excise Inspector
recorded the statements of all persons found in the
car including the appellant. The admissibility of the
appellant’s statement, was challenged on the ground
that it was hit by Section 25, Evidence Act. This
Court, by majority (Raghubar Dayal, J.) dissenting,
laid down the test in the following words: (at P. 833
of AIR)
“The test for determining whether such a
person is a `police officer’ for the
purpose of S. 25 of the Evidence Act
would, in our judgment, be whether the
powers of a police officer which are
conferred on him or which are
exercisable by him because he is deemed
to be an officer incharge of a police
station establish a direct or substantial
relationship with the prohibition enacted
by S. 25, that is, the recording of a
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confession. In other words, the test
would be whether the powers are such as
would tend to facilitate the obtaining by
him of a confession from a suspect or a
delinquent.
If they do, then it is
unnecessary to consider the dominant
purpose for which he is appointed or the
question as to what other powers he
enjoys.”
36
ig
Applying this test this Court concluded that the
Excise Inspector, who recorded the appellant’s
confessional statement was in fact a police officer,
properly so-called, within the meaning of that
expression in Section 25, Evidence Act.
14.
Both these decisions came up for consideration
before a bench consisting of five learned Judges of
this Court in Badku Joti Savant v. State of Mysore,
(1966) 3 SCR 698 : (AIR 1966 SC
1746). In that
case the appellant was found in possession of
contraband gold when his house was raided and
searched in the presence of panchas on November 27,
1960. The appellant was arrested on November 30,
1960 and his statement was reduced to writing and
his signature was obtained thereon. In the course of
his statement he admitted knowledge about the
existence of the contraband goods. Two questions
arose for determination, the first related to the
interpretation of Section 167(81) of the Sea Customs
Act and the second touched the point of admissibility
of the confessional statement in view of Section 25,
Evidence Act. .......”
“21. ...... The nomenclature is not important, the
content of the power he exercises is the
determinative factor. The important attribute of
police power is not only the power to investigate into
the commission of cognizable offence but also the
power to prosecute the offender by filing a report or a
charge-sheet under Sec. 173 of the Code. That is why
this Court has since the decision in Badku Joti Savant
(AIR 1966 SC 1746) accepted the ratio that unless an
officer is invested under any special law with the
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37
ig
powers of investigation under the Code, including the
power to submit a report under Sec. 173, he cannot be
described to be a `police officer’ under S. 25,
Evidence Act. Counsel for the appellants, however,
argued that since the Act does not prescribe the
procedure of investigation, the officers invested with
power under S. 53 of the Act must necessarily resort
to the procedure under Chapter XII of the Code
which would require them to culminate the
investigation by submitting a report under S. 173 of
the Code. Attractive though the submission appears
at first blush, it cannot stand close scrutiny. In the
first place as pointed out earlier there is nothing in
the provisions of the Act to show that the legislature
desired to vest in the officers appointed under S. 53
of the Act, all the powers of Chapter XII, including
the power to submit a report under S. 53 of the Act,
all the powers of Chapter XII, including the power to
submit a report under S. 173 of the Code. But the
issue is placed beyond the pale of doubt by sub-
section (1) of S. 36A of the Act which begins with a
non obstante clause – notwithstanding anything
contained in the Code – and proceeds to say in clause
(d) as under :
“36-A(d) : a Special Court may, upon a
perusal of police report of the facts
constituting an offence under this Act or
upon a complaint made by an officer of
the Central Government or a State
Government authorised in that behalf,
take cognizance of that offence without
the accused being committed to it for
trial.”
This clause (a) of S. 36A(1) makes it clear that if the
investigation is conducted by the police, it would
conclude in a police report but if the investigation is
made by an officer of any other department including
the DRI, the Special Court would take cognizance of
the offence upon a formal complaint made by such
authorised officer of the concerned Government.
Needless to say that such a complaint would have to
be under S. 190 of the Code. This clause, in our view,
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38
18.
clinches the matter. We must, therefore, negative the
contention that an officer appointed under Sec. 53 of
the Act, other than a police officer, is entitled to
exercise `all’ the powers under Chapter XII of the
Code, including the power to submit a report or
charge-sheet under S. 173 of the Code. That being so,
the case does not satisfy the ratio of Badku Joti
Savant and subsequent decisions referred to earlier.”
Upon objective analysis of the principles afore-
stated, it can be stated with some certainty that merely because a
person is appointed to a post which vests him with limited powers
ig
of investigation and inquiry or any power ancillary thereto or
empowers him to prevent commission of crime in an area would
not per se make him a Police Officer in law so as to attract the bar
contained in Section 25 of the Evidence Act. We have already
noticed in some detail that the powers vested in Police Patil under
the Village Police Act are expected to be exercised for
performance of duties and functions stated under Section 6 of
that Act. The duties and functions of the Police Patil are of a very
restricted nature and do not vest in him all the powers including
the power to file a charge-sheet under Section 173 of the Criminal
Procedure Code which a Police Officer under the Code possess.
On the contrary, he is expected to assist the Police Officers when
called upon by them in performance of their duties. He has to act
under the orders of the District Magistrate and even is expected to
collect and communicate to the Station Officer intelligence
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39
affecting the public peace. The basic and primary distinction
between the powers of the Police Officer under the Code and the
power and duties of the Police Patil under the Village Police Act,
is that while the investigating officer or Police Officer in charge of
a Police Station is duty bound in law to conduct inquiry or
investigation in a just, proper and fair manner independently
being uninfluenced by any other facts. There the restricted duties
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and powers relating to investigation and even otherwise vested in
the Police Patil are to be exercised under the supervision of higher
authorities as indicated in the provisions of the Village Police Act.
Police Patil is required to perform his functions and discharge his
duties subject to the orders of the Magistrate and is also required
to assist and help the Police Officers in discharge of their duties.
In these circumstances, it will be a far fetched submission that the
Police Patil has to be treated as a Police Officer in law for all
intent and purposes. The consistent view of the Supreme Court
as is evident from the above referred judgments is that the officer,
other than a police officer, invested with powers of an officer-in-
charge of a Police Station is not entitled to exercise all the powers
under Chapter XII of the Code including the power to submit a
report or charge-sheet/challan under Section 173 of the Code.
This feature has been the hallmark and is held to be
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40
determinative factor by the Supreme Court. Once this aspect is
missing from the ambit of the powers vested in the officer, he
cannot be stated to be a Police Officer for the purposes of Section
25 of the Indian Evidence Act. The Police Patil under the Village
Police Act is also not a Police Officer on the deeming fiction of law
as there is no provision in the Statute which specifically or even
It will be useful to refer to the reasoning recorded by
19.
ig
for all intent and purpose.
otherwise requires the Police Patil to be treated as a Police Officer
the Supreme Court in the case of Badku Joti Savant (supra) even
at the cost of repetition. In paragraph 9 while discussing Section
21 of the Central Excise Act which states that a Central Excise
Officer under the Act has all the powers of an officer incharge of a
Police Station under Chapter XIV of the Criminal Procedure Code,
the Court rejected the contention that therefore he should be
deemed to be a Police Officer within the meaning of Section 25 of
the Evidence Act.
Reference was made to the provisions of
Section 78(3) of the Bihar and Orissa Excise Act, 1955 and Section
77 of that Act which stated that Excise Officer empowered under
the provisions shall be deemed to be the officer incharge of a
Police Station and shall have the power of such officer to
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41
investigate a cognizable case. But even there the Supreme Court
held that this power does not include the power to submit a
charge-sheet under Section 173 of the Criminal Procedure Code
under the Excise Act unlike the Bihar and Orissa Act and thus
held that Central Excise Officer is not an officer deemed to be
incharge of a Police Station. In other words, the Supreme Court
declined to accept the applicability of the deemed fiction of law to
ig
the extent of terming the Central Excise Officer as a Police Officer
20.
for the purpose of Section 25 of the Evidence Act.
The distinction between the powers of investigation
given to a Police Officer under the Code and that of a Police Patil
under the Village Police Act is quite obvious from the provisions
of the two Statutes. Police Patil has been vested with very limited
powers that too under the control and for the benefit of the
Executive Magistrate/Police Officer and his duties are primarily to
ensure that offences and public nuisance are not committed in the
village and to bring the offenders to justice.
The expression
“bringing the offenders to justice” appearing in Section 6 of the
Village Police Act along with its other provisions has to be given
its normal and plain meaning. There is no need, keeping in view
the scheme of the Act or the legislative intent, to expand the
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42
meaning of this expression and enlarge the scope of provisions of
this Section on certain presumption of law. The powers of the
Act,
Police Patil as stated under Section 13 to 15 of the Village Police
are to be read and construed ejusdem generis to the
provisions of Section 6. The bare reading of these provisions
show that Police Patil is not vested with the powers of preparing
and filing a charge-sheet before the Court of competent
ig
jurisdiction. The powers of Police Patil to investigate and control
over the apprehended persons are very limited in contra-
distinction to powers of a Police Officer under the Code. In terms
of Section 156 of the Code, a Police Officer is vested with the
power to investigate any cognizable case under the provisions of
Chapter XIII even without orders of the Magistrate. On the other
hand, when a Police Patil apprehends a person in exercise of his
powers vested under Section 14(i) of the Village Police Act, he has
to forward such person to the Station Officer, who in turn shall
produce such person before the Magistrate within twenty four
hours. Thus Legislative intent behind Section 6 appears to be that
Police Patil is a person responsible primarily for village
surveillance, prevention of crime and providing his assistance and
help to the police in discharge of his duties. Even above all this,
his duties and functions have been made subject to orders of the
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43
The Police Patil does not enjoy absolute
District Magistrate.
freedom in relation to investigation, apprehending the suspect
and even in exercise of other powers vested in him under law.
The powers to be exercised and duties and functions to be
performed by him are under the supervisory control of the stated
authorities.
The duties, functions and powers vested in an
authority by a Statute are relatable to the source which prescribes
The ambit, scope and effect of
ig
such functions and powers.
exercise of such power can be tested by two different concepts i.e.
quo modo and actio quaelibet it suia via. In what manner the
powers are to be exercised as per the prescribed procedure, the
performance or action must follow its prescribed procedure. On
applying the above stated principles and testing them with
reference to the maxims stated (supra), it is not possible for the
Court to hold that either the manner of functions and powers of
Police Patil or method in which they are to be performed are
equatable to the authority, powers and functions of a Police
Officer, in law. Therefore, we are unable to contribute to the view
that Police Patil is a Police Officer in law for all intent and purpose
and confession before him would attract the bar contemplated
under Section 25 of the Indian Evidence Act, 1872.
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44
In view of our above discussion, now we proceed to
21.
Bench. Our answer is as follows :-
record the answer to the question of law framed by the Division
“We are of the considered view that the Police Patil
appointed under the Maharashtra Village Police Act,
1967 is not a `Police Officer’ for the purposes of
Having answered the question of law we direct that
ig
22.
Section 25 of the Indian Evidence Act, 1872”.
the matter now be placed before the appropriate Bench for
deciding the Appeal in accordance with law.
CHIEF JUSTICE
A. P. LAVANDE, J.
SMT.V.A. NAIK, J.
uday/judgment09criapp315-03nagpurfbfinal
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