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.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Criminal Appeal No. 315 of 2003
Decided On: 10.06.2009
Rajeshwar Vs. The State of Maharashtra
Hon'ble Judges/Coram:
Swatanter Kumar, C.J., A.P. Lavande and V.A. Naik, JJ.
Citation: 2009 ( 4 ) MhLj 483,2009 CriLJ 3816, MANU/MH/0446/2009
1. The dictum of the Supreme Court in the case of Honda Siel Power Products Ltd. v. CIT MANU/SC/8241/2007 : (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 v. Pooran Chandra Pandey MANU/SC/8004/2007 : (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 v. State of Maharashtra MANU/SC/3521/2007 : AIR2007SC3180 .
2. Occasion may arise where earlier judgment of a coordinate 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.
3. The Division Bench of this Court faced with somewhat 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 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 be 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 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.
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 MANU/MH/0344/1977.
(2) Sanjay v. State of Maharashtra (2004) (1) Crimes 445.
(3) Ramsingh v. State of Maharashtra and Anr. MANU/MH/1247/1999.
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 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 v. Arjun Dattaram Bhekare and Ors. MANU/MH/0535/2004.
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 ILR (1893) 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 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.
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 MANU/SC/0014/1991 : 1991CriLJ97 . The Division Bench quoted the following paragraphs from the said judgment :
We therefore, agree that as Section 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 Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant MANU/SC/0276/1966 : 1966CriLJ1353 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 Section 173, he cannot be described to be a police officer under Section 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.
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 v. 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 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.
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.
4. It will be essential to precisely refer to the facts of the 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 (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 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 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, 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.
6. The contention raised by the learned Counsel 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 MANU/MH/0344/1977.
(2) Sanjay v. State of Maharashtra (2004) (1) Crimes 445.
(3) Ramsingh v. State of Maharashtra and Anr. MANU/MH/1247/1999.
7. In Ramsingh's case (supra), the Division Bench relied upon the judgment of the Court in Vistari Narayan Shebe (supra) as well as Queen Empress v. Bhima (1894) ILR 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 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 MANU/MH/0344/1977. 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 Section 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 police patil is a police officer within the meaning of Sections 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 Section 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.
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 v. State of T.N. MANU/SC/1319/1997 : 1998CriLJ89 , 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.
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 v. Arjun Dattaram Bhekare MANU/MH/0535/2004, 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 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 v. Union of India MANU/SC/0014/1991 : 1991CriLJ97 , and deferring with the view expressed in the case of Alluri Ramayya v. 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 Section 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 Section 25 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 Section 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 Section 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 MANU/SC/0014/1991 : 1991CriLJ97 . The issue involved is directly dealt with by the Apex Court in the following terms.
We, therefore, agree that as Section 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 Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant MANU/SC/0276/1966 : 1966CriLJ1353 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 Section 173, he cannot be described to be a police officer under Section 25, Evidence Act.
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 Section 173 of the Criminal Procedure Code and, therefore, is not a police officer within the meaning of Section 25 of the Evidence Act. A judicial confession made by accused No. 1 to P.W. No. 2 Ramdas Section 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.
10. The above conclusions of the respective Benches 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 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 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 subsection (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 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 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 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 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 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.
12. A person would be a police officer by virtue of his 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 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 other words, when the confession is hit by the provision of 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 v. Anirudhsing MANU/SC/0749/1997 : 1997CriLJ3397 . 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 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 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 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 appointed under the Special Act holds status of a Police Officer de facto and de jure such statement then would be hit by provision of Section 25.
14. In the backdrop of above statutory provisions, now we shall examine and discuss the principle of law stated by the Supreme Court in its various judgments. In Badaku Joti Savant v. State of Mysore MANU/SC/0276/1966 : 1966CriLJ1353 , 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 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 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 Section 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 MANU/MH/0326/1926 : AIR1927Bom4 . 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 in Radha Kishun Marwari v. Emperor MANU/BH/0074/1932 : AIR1932Pat293 . 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.
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9. Strong reliance has, however, been placed on behalf of the appellant on Section 21 of the Act, the material part of which runs thus :
21.(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 Proceudre, 1898, when investigating a cognizable case :
Provided that ....
It is urged that under Sub-section (2) of Section 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 Section 25 of the Evidence Act. It is true that Sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officerin- charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of Sub-section (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 Section 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-section (2) of Section 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 such Magistrate. It does not, however, appear that a Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Cr. P.C. Under Section 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 Section 9 of the Act. Thus though under Sub-section (2) of Section 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-section (1) of Section 21. Section 21 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, MANU/SC/0065/1963 : 1964CriLJ705 , and which provided in terms that "for the purposes of Section 156 of the Cr.P.C., 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 cannot, therefore, 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 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 Section 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 Section 21 in the setting of Section 14 of the Act, it would become clear that the enquiry contemplated under Section 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 Section 14 must also include enquiry mentioned in Section 21 of the Act. Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under Section 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 Section 202 of the Cr.P.C. would become a police officer.
11. In any case unlike the provisions of Section 78(3) of the Bihar and Orissa Excise Act, 1915, Section 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 Section 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 Section 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, MANU/SC/0065/1963 : 1964CriLJ705 , taking even the broader view of the words "police officer" in Section 25 of the Evidence Act. We are of opinion that the present case is more in accord with the case of Barkat Ram, MANU/SC/0021/1961 : [1962]3SCR338 . 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 Section 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of Section 24 of the Evidence Act. As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and, therefore, Section 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 Section 25 of the Evidence Act the appellant's statement is admissible. It is not ruled out by anything in Section 24 of the Evidence Act and so the appellant's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal.
15. The above judgment of the Supreme Court clearly 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 v. State of West Bengal MANU/SC/0282/1968 : 1970CriLJ863 , 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 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.
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 v. The Collector of Customs, Madras MANU/SC/0297/1968 : 1970CriLJ998 , where the Court held as under:
12. ...In this view of the matter even though 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 MANU/SC/0282/1968 : 1970CriLJ863 and Dady Adavji Fatakia v. K.K. Ganguli, Asstt. Collector of Customs Cri. Appeal No. 46 of 1968 since reported in MANU/SC/0282/1968 : 1970CriLJ863 the view expressed in Barkat Ram's case MANU/SC/0021/1961 : [1962]3SCR338 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 MANU/SC/0282/1968 : 1970CriLJ863 ) :
For reasons set out in the judgment in Cri. Appl. No. 27 of 1967 : reported in MANU/SC/0282/1968 : 1970CriLJ863 and the judgment of this Court in Badku Joti Savant's case MANU/SC/0276/1966 : 1966CriLJ1353 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 Karwal v. Kirpal Mohan Virmani MANU/SC/0014/1991 : 1991CriLJ97 , 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 ( MANU/SC/0021/1961 : [1962]3SCR338 and Raja Ram Jaiswal v. State of Bihar MANU/SC/0065/1963 : 1964CriLJ705 . 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 Court in Sheikh Ahmed v. Emperor MANU/MH/0326/1926 : AIR1927Bom4 they perhaps would, but not if the view expressed by the Patna High Court in Radha Kishan Marwari v. King- Emperor MANU/BH/0074/1932 : AIR1932Pat293 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.
12. In the case of Barkat Ram MANU/SC/0021/1961 : [1962]3SCR338 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 subsequent enactment. The question, therefore, falls to be decided on a fair construction of the provisions of Section 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 Section 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 Section 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 Section 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 Section 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 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 Section 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 Section 25 of the Evidence Act.
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 MANU/SC/0065/1963 : 1964CriLJ705 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 Section 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 Section 25, that is, the recording of a 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.
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 MANU/SC/0276/1966 : 1966CriLJ1353 . 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 Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant MANU/SC/0276/1966 : 1966CriLJ1353 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 Section 173, he cannot be described to be a `police officer' under Section 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 Section 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 Section 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 Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by Sub-section (1) of Section 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 Section 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 Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 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 Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
18. 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 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 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 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-incharge 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 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 otherwise requires the Police Patil to be treated as a Police Officer for all intent and purpose.
19. It will be useful to refer to the reasoning recorded by 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 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 the extent of terming the Central Excise Officer as a Police Officer for the purpose of Section 25 of the Evidence Act.
20. 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 meaning of this expression and enlarge the scope of provisions of this Section on certain presumption of law. The powers of the Police Patil as stated under Section 13 to 15 of the Village Police Act, 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 jurisdiction. The powers of Police Patil to investigate and control over the apprehended persons are very limited in contradistinction 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 District Magistrate. The Police Patil does not enjoy absolute 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 such functions and powers. The ambit, scope and effect of exercise of such power can be tested by two different concepts i.e. quo modo and action 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 equitable 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.
21. In view of our above discussion, now we proceed to record the answer to the question of law framed by the Division Bench. Our answer is as follows:
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 Section 25 of the Indian Evidence Act, 1872.
22. Having answered the question of law we direct that the matter now be placed before the appropriate Bench for deciding the Appeal in accordance with law.
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