makes provision for a particular aspect as a special Statute, the
same would override and prevail over the general provisions. It is
trite that what cannot be achieved directly, cannot be allowed to
be achieved indirectly. In the present case, there is a specific
procedure laid down in the Act of 1972 for recording of evidence/
confession by an Officer not below the rank of Assistant Director
of Wild Life Preservation or an Officer not below the rank of
Assistant Conservator of Forest, authorised by the State
government in this behalf. Thus, the said provision cannot be
allowed to be circumvented on the ground that the Forest Officers
not being Police Officers could record the confession, as it would
not be hit by Section 25 of the Evidence Act. Such a confession, if
not hit by Section 25 of the Evidence Act, would certainly be
against the letter and spirit of Section 50(8) of the Act of 1972,
which is a special enactment and which would prevail in the
matter. In such circumstances, I do not find any reason to
interfere with the impugned judgment passed by the learned
Sessions Judge.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 1 OF 2015
State (Through Range Forest Officer Netrawal – Goa) V Francis Masrenhas,
CORAM :- C. V. BHADANG, J.
Pronounced on : 22ndJune, 2015.
Citation: 2016 ALLMR(CRI)2510
3. By this Revision Application, the State is challenging
the judgment and order dated 01/09/2014 passed by the learned
Sessions Judge in Criminal Revision Application No.36/2014. By
the impugned judgment, the learned Sessions Judge has set aside
the order dated 27/03/2014 passed by the learned Judicial
Magistrate, First Class at Sanguem in Criminal Case
No.14/AOA/2013, by which the learned Magistrate had held that
the confessional statement of the respondent, recorded by a
Deputy Range Forest Officer is admissible in evidence.
4. The brief facts are that the respondent is the original
accused no.1. On 14/11/2010, the respondent was intercepted and
detained while driving a Tata Indica Vehicle bearing No. GA-02-S-
0788 while he was proceeding from Netravali to Verlem. During
the search of the said vehicle, two plastic bags containing meat of
a wild boar were recovered. During the course of investigation, it
was revealed that the wild boar was hunted by the third accused.
A gun used in hunting the wild boar, with three cartridges was
recovered from the house of the third accused, during a search on
15/11/2010. In such circumstances, the respondent and two
others were put on trial for the offences punishable under Sections
39(1)(d) and 39(3)(a) of the Wild Life (Protection) Act 1972 (Act of
1972, for short) read with Section 27, Sections 52 and 51 of the
Act of 1972.
5. It appears that during the course of the recording of
the examination of PW2- Prabhudessai, an objection was raised on
behalf of the respondent that the confessional statement recorded
by the Deputy Range Forest Officer would not be admissible in
evidence. The learned Magistrate, by order dated 27/03/2014, had
overruled the objection, holding that the confessional statement
was admissible. The learned Magistrate had placed reliance on
the decision in the case of Forest Range Officer Vs.
Aboobacker and another, reported in 1989 Cri.L.J. SC 2038 and
E. C. Richard Vs. Forest Range Officer, reported in (1957)2
Mh.L.J. 624.
6. Feeling aggrieved, the respondent challenged the
same before the learned Sessions Judge. The Revision Application
came to be allowed, holding that the statement would not be
admissible in view of the provisions of Section 50(8) of the Act of
1972. That is how, the State is before this Court.
7. It is submitted by Shri Rivankar, the learned Public
Prosecutor that the Deputy Range Forest Officer is not a police
officer and as such, the confession recorded by the said Officer
would not be hit by Section 25 of the Evidence Act. He, therefore,
submitted that independently the confessional statement recorded
by a Deputy Range Forest Officer cannot be excluded as being
inadmissible. Reliance is placed on the decision of the Kerala
High Court in the case of Aboobacker (supra) and a Constitution
Bench of the Hon'ble Apex Court in the case of Ramesh Chandra
Mehta Vs. State of West Bengal, reported in 1970 CRLJ 863. It
is submitted that although under Section 50(8) of the Act of 1972,
the Deputy Range Forest Officer was not authorised or competent
to record the confession, there is no prohibition in relying upon
the said confession, particularly when the said Officer is not a
Police Officer.
8. On the contrary, it is submitted by Shri Pavitran, the
learned Counsel for the respondent that the Act of 1972 being a
special enactment, would override the general provision for
admissibility of the confession as contained in Section 25 of the
Evidence Act. The learned Counsel has placed reliance on the
decision of the Allahabad High Court in Harbans Singh and
others Vs. The State, AIR 1952 All 179 in order to submit that
the provisions of the Special enactment would prevail over the
general. It is submitted that the learned Sessions Judge, after
considering the provisions of Section 50(8) of the Act of 1972, has
rightly come to the conclusion that the confessional statement was
not admissible. He submitted that the impugned judgment, thus,
does not call for any interference.
9. I have considered the rival circumstances and the
submissions made. It is not in dispute that the confessional
statement in question has been recorded by a Deputy Range
Forest Officer, who was the Investigating Officer in the case. It is
also not disputed that under Section 50(8) of the Act of 1972, the
confessional statement can only be recorded by an Officer not
below the rank of Assistant Director of Wild Life Preservation or
an Officer not below the rank of Assistant Conservator of Forest,
authorised by the State government in this behalf. The question
is, whether in the face of such provision, the State can fall back
upon Section 25 of the Evidence Act, in order to contend that in as
much as the Forest Officers are not Police Officers, the
confessional statement would be admissible.
10. In the Constitution Bench decision of the Hon'ble
Supreme Court in the case of Ramesh Chandra Mehta (supra), it
has been held that the Customs Officers are not the Police
Officers. In the case of Aboobacker (supra), it was held by the
Hon'ble Kerala High Court that the confessional statement made
to the Forest Range Officer is not open to doubt since the embargo
contained in Section 25 of the Evidence Act is not applicable to it.
It would be significant to note that the said decision is rendered on
14/03/1989. The Act of 1972 came to be amended by Act No.44 of
1991, by which subsection (8) of Section 50 has been introduced
in the said Act with effect from 02/10/1991. Thus, In my
considered opinion, the case of Aboobacker (supra) would not be
of any assistance to the State.
11. In the case of Harbans Singh, (supra) the issue was
whether the trial of the offence under the U. P. Private Forest
Protection Act by a First Class Magistrate was ultra virus as the
Act provided for trial of offence only by Second Class Magistrates.
It is, inter alia, held that in view of the fact that Section 15(1) of
the U. P. Private Forest Protection Act is a creation of a Special
Act, the First Class Magistrate would not be competent to try the
offence.
12. In Motilal Vs. Central Bureau of Investigation,
reported in (2002)4 SCC 713, the question before the Hon'ble
Supreme Court was whether the offences punishable under the
Act of 1972 can be investigated by the C.B.I. on being empowered
by the Central Government. It was held that although Section 50
of the Act of 1972 does not exclude Police Officers from
investigating the offence under the Act, the special procedure
provided under the Act is contrary to the provisions contained in
the Code of Criminal Procedure and as such, the same would
prevail in view of Section 4(2) of the Code of Criminal Procedure.
However, that would not exclude the rest of the provisions of the
Act of 1972.
13. It can, thus, be seen that to the extent the Act of 1972
makes provision for a particular aspect as a special Statute, the
same would override and prevail over the general provisions. It is
trite that what cannot be achieved directly, cannot be allowed to
be achieved indirectly. In the present case, there is a specific
procedure laid down in the Act of 1972 for recording of evidence/
confession by an Officer not below the rank of Assistant Director
of Wild Life Preservation or an Officer not below the rank of
Assistant Conservator of Forest, authorised by the State
government in this behalf. Thus, the said provision cannot be
allowed to be circumvented on the ground that the Forest Officers
not being Police Officers could record the confession, as it would
not be hit by Section 25 of the Evidence Act. Such a confession, if
not hit by Section 25 of the Evidence Act, would certainly be
against the letter and spirit of Section 50(8) of the Act of 1972,
which is a special enactment and which would prevail in the
matter. In such circumstances, I do not find any reason to
interfere with the impugned judgment passed by the learned
Sessions Judge.
14. In the result, the Revision Application is hereby
dismissed.
C. V. BHADANG, J.
No comments:
Post a Comment