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TMI Blog1980 (7) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... any confession or incriminating statement recorded by him in the course of an inquiry under Section 9 of the Act is inadmissible in evidence. (2) Whether a person arrested by an officer of the Railway Protection Force under Section 6 of the Act for the alleged commission of an offence under Section 3 of the Act, is a person accused of an offence within the meaning of Article 20(3) of the Constitution. (3) Whether Section 9 of the Act is violative of Article 14 of the Constitution. E The appeals arise in these circumstances: The Inspector, Central Intelligence Bureau, Head Quarters, Bombay (Shri P. A. Kakade) filed a complaint before the Presidency Magistrate, 35th Court, Victoria Terminus, Bombay, complaining of the commission of an offence by the appellants, herein, (in Crl. Appeals 208 and 209 of 1974), under Section 3 of the Act. The allegations in the complaint, as summarised in the judgment of the High Court in Criminal Revision Application No. 821 of 1973, are as under: On November 21, 1970, the Assistant Security officer, Central Railway, Bhusawal intimated to the Chief Security officer, Bombay V.T. that two wagons Nos. ERKC-9447 Ex. HSPG BNDN to Akola a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further orders were received by him. In the complaint, Inspector Kakade stated that accused 2 and 3 are absconding Annexed to the complaint was a list of prosecution witnesses numbering, in all, 40 and a list of documents numbering 62. The appellant (accused 1) appeared before the Presidency Magistrate. He was then supplied the list of prosecution witnesses and the list of documents to be relied upon by the prosecution. The list of documents included the list of statements of various persons recorded by the Inspector of the Railway Protection Force. The Presidency Magistrate commenced an inquiry and recorded the statements of four witnesses, of one on March 2, 1973 and of the other three on June 12, 1973. On June 11, 1973, an application was filed by the appellant to the Magistrate, making a grievance that although three witnesses had been examined, no copies of the documents were furnished to him by the prosecution. On June 25, 1973, the appellant made a further application to the Magistrate, requesting for supply of true copies of all the documents in the case to enable him to prepare his defence. He further prayed that he should be allowed to take photostats of all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the orders of the Magistrate and directed the complainant under Section 165 of the Evidence Act to produce in the trial court the true copies of the statement of the witnesses already examined and to be examined hereafter By the complainant and of the documents on which the complainant desired to depend. The High Court further declared that the accused and his counsel shall be entitled to inspect those documents and take copies thereof, if necessary, in the court. If further declared that Section 9 of the Act, is not ultra vires the Constitution. Hence, these appeals by the accused persons. The first question for consideration is. whether an Inspector of the Railway Protection Force, (for short, RPF) is a police officer , and therefore any confessional statement made to him comes within the prohibition of Section 25. Evidence Act. Section 25 reads thus: No confession made to a police officer shall be proved as against a person accused of any offence. As explained by this Court in Ariel v. State the policy behind Sections 25 and 26. Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall be presumed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was consistently applied in State of Punjab v. Barkat Ram; Badku Joti Savant (ibid); Romesh Chandra Mehta v. West Bengal. To top it all, it is maintained, the question is now no longer res integra and has been concluded by the recent judgment of this Court in State of U.P. v. Durga Prasad. In reply, Shri R.K. Garg has tried to distinguish Durga Prasad's case, ibid, on the ground, that therein the question whether or not an officer of the RPF is a Police officer within the contemplation of section 25 of the Evidence Act, was not directly in issue. It is maintained that the only question for decision in that case was. Whether an enquiry conducted under section 8(1) of the 1966 Act can be deemed to be an investigation for the purpose of section 162 of the Code of Criminal Procedure. and this question was answered in the negative. In the alternative, it is urged that Durga Prasad's case was not correctly decided and its ratio needs reconsideration by a larger Bench because it has overlooked the test laid down by the 3-Judge Bench in Raja Ram laiswal's case. Although Durga Prasad's case very largely appears to conclude this question, yet, in deference to the last a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of, or damage to, railway property. Section 13 provides: Whenever any superior officer, or any member of the Force, not below the rank of a Senior Rakshak, has reason to believe that any such offence as is referred to in section 12 has been nor is being committed and that a search-warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence, he may detain him and search his person and belongings forthwith and, if he thinks proper, arrest any person whom he has reason to believe to have committed the offence. Under sub-section (2), the provisions of the Code, relating to searches under that Code shall, so far as may be, apply to searches under this section. Section 14 indicates the procedure to be followed after arrest. According to it, any superior officer or member of the Force making an arrest under this Act, shall without unnecessary delay. make over the person arrested to a police officer, or, in the absence of a Polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d enquired into by local police in accordance with the provisions of the Code of Criminal Procedure, 1898. It has been observed that the two Agencies, i.e. the Government Railway Police and Railway Protection Force, which are at present provided to deal with crimes on railways find themselves handicapped, for different reasons, in effectively dealing with the problem of theft and pilferage of Railway Property. The Railways are spread out over a large part of the country and property, etc., entrusted to them is carried from one part to another usually crossing boundaries of different states. The jurisdiction of State Police being restricted to the State boundary only, it becomes difficult at times for the Police to make thorough and fruitful investigation into offences relating to Railway Property. Besides, investigation of cases in respect of Railway Property also requires a specialised knowledge of Railway working. The Railway Protection Force, on the other hand, are not at present equipped with requisite powers of investigation and prosecution, with the result that whatever action they take in respect of prevention etc., is taken just in aid of the State Police who conduct invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a subsequent offence, with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees . It will be seen that if any person is found or proved to be in possession of any 'railway property', which is reasonably suspected of having been stolen or unlawfully obtained, the burden shall shift on to that person to prove his innocence, that is to say, to establish that he came into possession of the 'railway property' lawfully. Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act. Section 5 says: Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable . It may be noted that in spite of provision in the Code of Criminal Procedure to the contrary, offences under this Act have been made non cognizable and, as such, cannot be investigated by a police officer under the Code. It follows that the initiation of prosecution for an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in the case, or forward him in custody to such Magistrate; (b) if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required, before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior. Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents, or any other thing in any inquiry for any of the purposes of this Act. Sub-sections (3) and (4) provide: (3) All persons, so summoned, shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required: Provided that the exemption under section 132 and 133 of the Code of Civil Procedure, 1908, shall be applicable to requisitions for attendance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is this Sub-section (3) of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation. Section 162(1), which is to be read in continuation of Section 161 of the Code, prohibits the obtaining of signature of the person on his statement recorded by the investigating officer. But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act; rather, from the obligation to state the truth under pain of prosecution enjoined by Section 9(3) and (4), it follows as a corollary, that the officer conducting the inquiry may obtain signature of the person who made the statement. Fifthly, under the provision to sub-section (1) of Section 162 of the Code, oral or recorded statement made to a police officer during investigation may be used by the accused, and with the permission of the Court, by the prosecution to contradict the statement made by the witness in Court in the manner provided in Section 145, Evidence Act, or when the witness' statement is so used in cross examination, he may be reexamined if any explanation is necessary. The statement of a witness made to a police o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice Station within the meaning of Sections 173 and 190(b) of the Code. The made of initiating prosecution by submitting a report under Section 173 read with clause (b) of Section 190 of the Code is, therefore, not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act. The only mode of initiating prosecution of the person against whom he has successfully completed the inquiry, available to an officer of the RPF, is by making a complaint under Section 190(1)(a) of the Code to the Magistrate empowered to try the offence. That an officer of the Force conducting an inquiry under Section 8(1) cannot initiate proceedings in court by a report under Sections 173/190(1)(b) of the Code, is also evident from the provisos to sub-section (2) of Section 8 of the 1966 Act. Under proviso (a), if such officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused, he shall either direct him (after admitting him to bail) to appear before the Magistrate having jurisdiction or forward him in custody to such Magistrate. Under proviso (b), if it appears to he officer that there is no sufficient evidence or reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to the detection of infraction of Customs laws have been conferred on officers of the Police is not a sufficient ground for holding them to be police officers within the purview of Section 25 of the Evidence Act. The Customs officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially. The Police officers never act judicially. Hence, a Customs officer either under the Land Customs Act. 1924, or under the Sea Customs Act, 1878, is not a police officer for the purpose of Section 25, Evidence Act. In his dissenting opinion, Subba Rao J., held that Section 25, Evidence Act was enacted to subserve a high purpose and that is to prevent the police from obtaining confession by force, torture or inducement. The salutary principle underlying the Section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the obtaining by him of a confession. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be incriminating to the persons making them. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offences. But, it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them. It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25. Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less a police officer for the purposes of Section 25. Hence, a confession made by an accused under the Bihar and Orissa Act, recorded by an Excise Inspector who is empowered to investigate any offence under the Act, is inadmissible by reasons of the provisions of Section 25 of the Evidence Act. Raghubar Dayal, J., however, expressed a contrary opinion. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 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 i support of this view is Nanoo Sheikh Ahmed v. Emperor. This view approved by Subba Rao J. in his minority judgment in Barkat Ram's case). The other view which may be called the narrow view is that the words police officer in Section 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 is Radha Kishun Marwari v. King-Emperor. 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...... We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an officer-in-charge of a police station when investigating a cognizable case that is for the purpose of his inquiry under sub-section (1) of Section 21. The Court then distinguished Raja Ram Jaiswal's case, thus: Section 21 (of the Central Excises and Salt Act No. 44) is in terms different from Section 78(3) of the Bihar and Orissa Excise Act, 1915, which came to be considered in Raja Ram Jaiswal's case, and which provided in terms that for the purposes of Section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under Section 77, Sub-section (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, therefore, cannot be said that the provision in Section 21 is on par with the provision in Section 78(3) of the Bihar and Orissa Excise Act. All that Section 21 provides is that for the purpose his inquiry, 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 Section 173 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e obtaining by him a confession from a person suspected of the commission of an offence under the 1966 Act. It is argued that since an officer of the RPF conducting an inquiry has been invested qua 'railway property' with almost all the powers or an officer-in-charge of a Police Station making an investigation under Chapter XIV of the Code, this test is amply satisfied to hold that he is a 'police officer' within the meaning of Section 25 of the Evidence Act. At one stage, it was contended by Shri Garg that it could be spelled out from Section 8(2) of the 1966 Act that an officer of the Force had the power to present a charge-sheet under Section 173 of the Code, also. In the alternative, it was submitted that the mere fact that an officer of the Force could initiate prosecution only by filing a complaint and not by making a report under Section 173 of the Code, was immaterial in regard to the satisfaction of This test, if, in fact, he had been invested with all other powers of investigation exercisable by a police officer under the Code, qua offences under the 1966 Act. Prima facie there is much to be said for the reasoning advanced by the learned counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, or, if there is no such Central Excise officer within a reasonable distance, to the officer-in-charge of the nearest police station. Section 21 of the Act provides: (1) When any person is forwarded under Section 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. (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 Procedure, 1898, when investigating a cognizable case. It will be seen that these provisions in Sections 13, 18, 19 and 21 of the Central Act I of 1944, substantially correspond to the provisions in Sections 6, 7, 8 etc. Of the 1966 Act, which we have already noticed It will bear repetition that sub-section 12) of section 8, under which an officer of the Force conducting an inquiry may exercise the same powers as an officer-in-charge of a police station investigating a cognizable case under the Code, is in pari materia with sub-section (2) of Section 21 of Act 1 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Section 78(3) of the Bihar and Orissa Excise Act, 1915. In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge- sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Jyoti Savant's, which has been consistently adopted in the subsequent decisions noticed above, Inspector Kakade of the RPF could not be deemed to be a 'police officer' within the meaning of Section 25 of the Evidence Act, and therefore, any confessional or incriminating statement recorded by him in the course of an inquiry under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section. This takes us to the second question. Question II The main contention of Shri Garg is that any confessional or incriminating statements record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used of any offence shall be compelled to be a witness against himself. An analysis of this clause shows three things: Firstly, its protection is available only to a person accused of any offence . Secondly, the protection is against compulsion to be a witness . Thirdly, this protection avails against himself . It follows that if any of these ingredients does not exist, this clause (3), will not be attracted. Keeping this in mind, it will be appropriate to concentrate on the first point, as to whether during the inquiry under Section 8 of the 1966 Act when the appellant made the incriminating statement in question, he was a person accused of any offence within the contemplation of Article 20(3). In M. P. Sharma v. Satish Chandra (ibid) which is a decision by a seven Judge Bench of this Court, it was held that determination of this issue will depend on whether at the time when the person made the self-incriminatory statement, a formal accusation of the commission of an offence had been made against him. Formal accusation is ordinarily brought into existence by lodging of an F.I.R. Or a formal complaint to the appropriate authority or court against the specific individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, First Information Report was recorded under Section 154, Criminal Procedure Code, and an order was obtained from the Magistrate, permitting the investigation to be made under Section 155(2), Criminal Procedure Code. The Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest which were served on the petitioner. Under these circumstances, the Court held that the petitioner was definitely a person accused of an offence within the meaning of Article 20(3) of the Constitution and at any rate, the petitioner was accused of an offence when the F.I.R. was recorded and therefore, the summons issued by the Enforcement Directorate would be illegal. At the same time, it was held that although the petitioner is a 'person accused of an offence', the only protection that Article 20(3) gave him is that he could not be compelled to be a witness against himself, but this did not mean that he need not give information regarding matters which do not tend to incriminate him. Consequently, the Court did not set aside the summons and held that the petitioner was bound to appear before the Enforcement Directorate and answer such questions that did not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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