In Vinod Chaturvedi v. State of Madhya Pradesh :
AIR 1984 SC 911, the father of the deceased person had sent a
letter to the Superintendent of Police, after the registration of the
first information report. The High Court heavily relied upon this
letter to enter conviction against the accused. But, the Apex
Court held as follows:
“The High Court fell into a clear error in relying on
the two letters marked as Exhibit P1 and Exhibit P9.
Exhibit P1 was a letter of P.W 1. Sunderlal to the
Superintendent of Police. Admittedly by 29-4-73
when this letter said to have been written
investigation had started on the basis of the first
information report and therefore, a letter written by
P.W. 1 who stood in the place of the prosecutor
would not at all be admissible in evidence. No
detailed reasons are warranted for this conclusion.
The position is clearly covered by a decision of this
Court in the case of Kali Ram v. State of Himachal
Pradesh. ”
14. In Rajeevan v. Superintendent of Police : 2011 (1)
KHC 738, this Court had held that, the letters addressed to the
investigating officer by the Executive Officers of the Panchayaths
giving information regarding the functioning of a firm and the
licence issued to it, were hit by Section 162 of the Code.
15. In the instant case, the investigation of the case was
conducted by PW4 Excise Inspector. After the amendment of
Section 50 of the Act with effect from 03.06.1997, Abkari Officers
under the Act can only file a final report in accordance with
Section 173(2) of the Code and they have to be treated as police
officers (See Joseph v. State of Kerala : 2009 (4) KHC 537).
If that be so, a statement made by a person to an Excise
Inspector during the course of investigation has to be excluded
from evidence by virtue of Section 162 of the Code (See Raja
Ram Jaiswal v. State of Bihar : AIR 1964 SC 828).
IN THE HIGH COURT OF KERALA AT ERNAKULAM
M.R.BALAKRISHNAN Vs STATE OF KERALA
PRESENT
MR. JUSTICE R. NARAYANA PISHARADI
Crl.R.P.No.2792 of 2009
Dated this the 7th day of July, 2020
O R D E R
Does a letter given or sent to a police officer by a person
after the commencement of investigation of an offence come
within the interdict under Section 162(1) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the Code')? Answer
to this question would decide the fate of this revision petition.
2. On 15.08.1998, the Excise Circle inspector of Excise
Enforcement and Anti-narcotic Special Squad, Pathanamthitta
conducted search of toddy shop No. 24/98-99 of Thiruvalla Excise
Range. He seized one and a half litres of rectified spirit which was
kept in the toddy shop for sale. The first accused was the
salesman and the second and the third accused were the
licensees of the toddy shop. They have committed an offence
punishable under Section 55(i) of the Abkari Act, 1077 (for short
'the Act'). This, in short, is the substance of the prosecution case.
3. The three accused faced trial. The prosecution examined
PW1 to PW6 and marked Exts.P1 to P9 documents and MO1 to
MO3 material objects. No evidence was adduced by the accused.
4. The trial court found all the three accused guilty of the
offence punishable under Section 55(i) of the Act and convicted
them thereunder and sentenced them to undergo rigorous
imprisonment for a period of one year each and to pay a fine of
Rs.1,00,000/- each and in default of payment of fine, to undergo
simple imprisonment for a period of six months each.
5. The second and the third accused filed Crl.A.No.56/2008
and the first accused filed Crl.A.No.70/2008 before the Court of
Session, Pathanamthitta challenging the order of conviction and
sentence passed against them by the trial court. The appellate
court allowed the appeals filed by the first and the third accused
and acquitted them. The appellate court confirmed the conviction
as well as the sentence against the second accused and
dismissed the appeal filed by him.
6. The concurrent verdicts of guilty, conviction and sentence
made against him by the courts below are challenged by the
second accused in this revision petition.
7. Heard. Perused the records.
8. The trial court as well as the appellate court has relied
upon the contents of Ext.P7 document to find that the petitioner
was one of the licensees of the toddy shop from which the spirit
was seized. In fact, this is the only evidence adduced by the
prosecution to prove that the second accused was the licensee of
the toddy shop during the relevant period. The trial court has
mistakenly treated this document as the licence issued for
conducting the toddy shop.
9. Ext.P7 is the letter dated 14.04.2000 sent or given by
the Excise Circle Inspector, Thiruvalla to the Excise Inspector
(PW4) who conducted the investigation of the case. The names
of the licensees of the toddy shop for the year 1998-99 are
mentioned in Ext.P7 letter. This document was marked through
PW4. He has given evidence that it was in response to the
request made by him on 05.04.2000 that Ext.P7 letter was given
to him. Ext.P7 also refers to the letter dated 05.04.2000 sent by
PW4 to the Excise Circle Inspector for furnishing the particulars
of the licensees of the toddy shop.
10. The Excise Circle Inspector who sent Ext.P7 letter was
not examined. The letter was marked through PW4 who
conducted the investigation of the case. Therefore, the accused
had no opportunity to cross examine the author of that document
with regard to the contents therein.
11. Section 162(1) of the Code provides that, no statement
made by any person to a police officer in the course of
investigation, shall, if reduced into writing, be signed by the
person making it. It further states that such a statement or any
record thereof shall not be used for any purpose at any enquiry
or trial in respect of any offence under investigation at the time
when such statement was made except as provided therein. The
proviso to Section 162(1) of the Code permits use of such
statement for the purpose of contradicting a witness in the
manner provided by Section 145 of the Indian Evidence Act.
Section 162(2) of the Code states that nothing in the section
shall be deemed to apply to any statement falling under clause
(1) of Section 32 of the Indian Evidence Act or to affect the
provisions of Section 27 of that Act.
12. The question arises whether the bar or prohibition
under Section 162(1) of the Code would apply to information
collected from a person by a police officer during the course of
the investigation through a letter or other written communication
made to him by such person. Dealing with this question, in Kali
Ram v. State of Himachal Pradesh : AIR 1973 SC 2773, the
Supreme Court has held as follows:
“Bare perusal of the provision reproduced above
makes it plain that the statement made by any
person to a police officer in the course of an
investigation cannot be used for any purpose except
for the purpose of contradicting a witness, as
mentioned in the proviso to sub-section (1), or for
the purposes mentioned in sub-section (2). .... The
prohibition contained in the section relates to all
statements made during the course of an
investigation. Letter PEEE which was addressed by
Sahi Ram to Station House Officer was in the nature
of narration of what, according to Sahi Ram, he had
been told by the accused. Such a letter, in our
opinion, would constitute statement for the purpose
of Section 162 of the Code of Criminal Procedure.
The prohibition relating to the use of a statement
made to a police officer during the course of an
investigation cannot be set at naught by the police
officer not himself recording the statement of a
person but having it in the form of a communication
addressed by the person concerned to the police
officer. If a statement made by a person to a police
officer in the course of an investigation is
inadmissible, except for the purposes mentioned in
Section 162 the same would be true of a letter
containing narration of facts addressed by a person
to a police officer during the course of an
investigation. It is not permissible to circumvent the
prohibition contained in Section 162 by the
investigating officer obtaining a written statement
of a person instead of the investigating officer
himself recording that statement”.
(emphasis supplied)
13. In Vinod Chaturvedi v. State of Madhya Pradesh :
AIR 1984 SC 911, the father of the deceased person had sent a
letter to the Superintendent of Police, after the registration of the
first information report. The High Court heavily relied upon this
letter to enter conviction against the accused. But, the Apex
Court held as follows:
“The High Court fell into a clear error in relying on
the two letters marked as Exhibit P1 and Exhibit P9.
Exhibit P1 was a letter of P.W 1. Sunderlal to the
Superintendent of Police. Admittedly by 29-4-73
when this letter said to have been written
investigation had started on the basis of the first
information report and therefore, a letter written by
P.W. 1 who stood in the place of the prosecutor
would not at all be admissible in evidence. No
detailed reasons are warranted for this conclusion.
The position is clearly covered by a decision of this
Court in the case of Kali Ram v. State of Himachal
Pradesh. ”
14. In Rajeevan v. Superintendent of Police : 2011 (1)
KHC 738, this Court had held that, the letters addressed to the
investigating officer by the Executive Officers of the Panchayaths
giving information regarding the functioning of a firm and the
licence issued to it, were hit by Section 162 of the Code.
15. In the instant case, the investigation of the case was
conducted by PW4 Excise Inspector. After the amendment of
Section 50 of the Act with effect from 03.06.1997, Abkari Officers
under the Act can only file a final report in accordance with
Section 173(2) of the Code and they have to be treated as police
officers (See Joseph v. State of Kerala : 2009 (4) KHC 537).
If that be so, a statement made by a person to an Excise
Inspector during the course of investigation has to be excluded
from evidence by virtue of Section 162 of the Code (See Raja
Ram Jaiswal v. State of Bihar : AIR 1964 SC 828).
16. In the above circumstances, Ext.P7 letter has to be
excluded from evidence. Then, there is no evidence to find that
the petitioner was the licensee of the toddy shop during the
relevant period.
17. The result is that conviction of the petitioner under
Section 55(i) of the Abkari Act cannot be sustained. Accordingly,
the revision petition is allowed and the conviction and sentence
against the petitioner are set aside. The petitioner is found not
guilty of the aforesaid offence and he is acquitted.
(sd/-)
R.NARAYANA PISHARADI, JUDGE
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