Who Is A "Police Officer" For The Purpose Of Section 25 Of The Indian Evidence Act, 1872?

The question to be considered is whether an officer (other than a "police officer" as commonly understood) acting under a special statute and having powers of investigation, can be treated as a "police officer" for the purpose of Section 25 of the Evidence Act. If he could be treated as a "police officer" for the purpose of Section 25 of the Evidence Act, then any confession made to him cannot be proved as against a person accused of an offence. If, on the other hand, such an officer is not a "police officer" within the meaning of Section 25 of the Evidence Act, then any confession made to him by a person accused of an offence will not be hit by Section 25 of the Evidence Act.

Section 25 of the Evidence Act reads as follows:-

"25. Confession to police officer not to be proved.

No confession made to a police officer shall be proved as against a person accused of any offence".

B. "B A R K A T R A M " CASE

2. One of the earliest three–Judge Bench decisions of the Supreme Court was State of Punjab v. Barkat Ram AIR 1962 SC 276 = 1962 (1) Cri.L.J. 217 (SC) – 3 Judges (rendered on 30-08-1961). There, the question was as to whether a Customs Officer acting either under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 or under the Foreign Exchange Regulation Act, 1947 ("FERA" for short) could be treated as a "police officer" within the meaning of Section 25 of the Indian Evidence Act. The majority consisting of J.L. Kapur & Raghubar Dayal J.J. held that the "Customs Officer" cannot be treated as a "police officer". But, Justice K. Subba Rao gave a dissenting opinion.

The majority view (Raghubar Dayal & J.L.Kapur – JJ) :-

• Since the definition of the expression "police" in the Police Act, 1861(Central Act V of 1861) is an inclusive definition, persons other than those enrolled under the said Act can also be covered by the word "police" (Para 13).

The expression "police officer" is not restricted to police officers of the police forces enrolled under the Police Act, 1861. A person who is a member of the police force under the Police Act, 1861 will also be a member of the police force when he holds his office under any of the enactments dealing with the police (Para 13).

b) Referring to the preamble and other provisions of the Police Act, 1861 held that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order (Para 8).

c) The words "police officer" are not to be construed in a narrow way, but have to be construed in a wide and popular sense as was remarked in Queen v. Hurribole, ILR 1 Cal. 207 where a Deputy Commissioner of Police who was actually a police officer but was merely invested with certain Magisterial powers was held to be a "police officer" within the meaning of Section 25 of the Evidence Act (Para 16).

Contradicts in para 18 by saying that the expression "police officer" in Section 25 of the Evidence Act does not have such a wide meaning as to include persons on whom certain police powers are conferred (Para 18).

d) While the powers conferred on the police officers are for the detection and prevention of crime, the powers conferred on the Customs Officers are merely for the purpose of ensuring that dutiable goods do not enter the country without payment of duty and that articles whose entry is prohibited are not brought in. The power of search of the property and person and the power to detain persons or to summon persons to give evidence in an inquiry etc. conferred on the Customs Officers, is for detecting and preventing of the smuggling of goods and loss to the central revenues (Para 10).

e) The acquittal by the High Court by excluding the confession made to the Customs Officer is bad and the conviction by the Magistrate, as confirmed by the Sessions Judge, is restored.

f) But, in para 19 it is held as follows:-

"19. The police officer referred to in S.25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police, of whatever rank and at whatever time, is inadmissible in evidence in view of S.25".

g) Strangely observes in para 29 as follows :-

"29. We make it clear, however, that we do not express any opinion on the question whether officers of departments other than police, on whom the powers of an officer- in-charge of a police station under Chapter XIV of the Code of Criminal Procedure, have been conferred, are police officers or not for the purpose of S. 25 of the Evidence Act, as the learned counsel for the appellant did not question the correctness of this view for the purpose of this appeal".

h) The salutary principle underlying Section 25 would apply equally to other officers (by whatever designation they may be known) who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused (vide para 33).

i) The following extract from the Division Bench ruling of the Madras High Court in AIR 1953 Mad. 917 is, inter alia quoted :-

"A police officer does not cease to be such merely because he is put into a white khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or in a plastic container".

(Vide end of para 39).

k) Considering the powers of the Customs Officer under the statutes in question, the power given for search and seizure, arrest, to summon persons to give evidence etc. are undoubtedly for the purpose of prevention and detection of offences. The High Court, therefore, was right in excluding the confession made to the Customs Officer and since de hors the said confession, there was no other material against the accused, the High Court was right in acquitting the accused. (Vide para 40).

C. "B A R K A T R A M" FOLLOWED IN LATER DECISIONS

3. After the verdict in Barkat Ram, without critically analyzing the rationale of the minority view of Subba Rao – J in Barkat Ram, the preponderance of judicial opinion of the Supreme Court of India has been to follow the majority view in Barkat Ram to hold that even if an Officer is invested with the powers of an officer-in-charge of a Police station under a special statute, he does not become a "Police Officer" unless he is also empowered to file a "police report" under Section 173(2) Cr.P.C. See the following cases:-

• Badaku Joti Savant v. State of Mysore AIR 1966 SC 1746 – 5 Judges (Held that the Deputy Spdt. of Customs and Excise functioning under the Sea Customs Act, 1878 and the Land Customs Act, 1924, is not a "police officer" – also held that the report filed by the Central Excise Officer under the Central Excises and Salt Act, 1944, is not a "police report" under Clause (b) of Section 190 (1) Cr.P.C. and that he can file only a "complaint" under Clause (a) of Section 190 (1) (a) Cr.P.C.);
• Illias v. Collector of Customs AIR 1970 SC 1065 – 5 Judges (Customs Officer under the Customs Act, 1962 is not a "police officer");
• Balkishan A Devidayal v. State of Maharashtra AIR (1980) 4 SCC 600 = AIR 1981 SC 379 (Officer of Railway Protection Force exercising powers under the Railway Property (Unlawful Possession)Act, 1966 is not a "police officer");
• Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 = AIR 1991 SC 45 (Officers of the Department of Revenue Intelligence – "DRI" for short, exercising powers under the NDPS Act, 1987 are not "police officers");
• Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775 (Officer of the Enforcement Directorate arresting an offender under Section 35 (1) of the Foreign Exchange Regulation Act, 1973 ("FERA" for short) which is pari materia with Section 104 (1) of Customs Act, 1962 is not a "police officer");
• Ram Singh v. Central Bureau of Narcotics AIR 2011 SC 2490 (Officer of Central Bureau of Narcotics dealing with an offence under NDPS Act, 1985 is not a "police officer").

D. The reasoning of the majority view in Barkat Ram, tested

4. Let us now test the validity of the reasoning of the majority in Barkat Ram.

• Going by the majority view, even if the officer is not enrolled under the Police Act, 1861, he can be treated as a "police officer" for the purpose of Section 25 of the Evidence Act, if he is otherwise a "police officer". To this extent, the expression "police officer" should be construed in a wide and popular sense. (Vide paras 13 and 16).

But, the above view is contradicted by holding that the expression "police officer" does not have such a wide meaning as to include persons on whom certain police powers are conferred. (Vide para 18). Even with regard to the question as to whether officers of departments other than the police on whom the powers of officers-in-charge of police station have been conferred under the Criminal Procedure Code are police officers or not, is left undecided. (Vide para 29).

• For the bar under Section 25 of the Evidence Act to apply it is not necessary that the police officer should actually be discharging any police duty and that a confession made to "any member of the police of whatever rank and at whichever time is hit by Section 25". (Vide para 19).

If so, where is the question of the police officer filing a "police report" in all situations ? For example, if a confession is made to an IPS officer who is appointed as the Principal of the Police Training Collage, then going by para 19 of Barkat Ram's case, a confession made to such a police officer presently functioning as the Principal will be hit by Section 25 of the Evidence Act since all that is necessary is that he should be a "police officer" and he need not be discharging any police duty. If so, where is the Principal of the Police Training Collage conducting any investigation or filing a "police report" before Court so as to be covered by the judicial definition of a "police officer" ?

• The powers of the police officers are for detection and prevention of crime whereas the powers of the Customs Officers etc. are merely for the purpose of ensuring that dutiable goods do not enter the country without payment of duty and that articles whose entry is prohibited are not brought into the country and it is to ensure this that limited powers of investigations are given to them.

This could have been easily achieved by conferring on them powers of departmental adjudication and confiscation. Far from that, these officers are given the power to arrest offenders under the Act, to extract confessions from them, to produce the arrested offenders before the Magistrate, to get them remanded to judicial custody, to complete the investigation, then to prosecute those offenders before the Magistrate and get the statutory penalties imposed on them. This is something more than ensuring payment of duty or merely preventing smuggling of goods. The operation of Section 4 (2) Cr.P.C. as per which all offences under laws other than the Indian Penal Code, are also to be investigated, inquired into and tried as per the procedure laid down in the Cr.P.C. itself, is not given a go bye under those statutes. (See in this connection the verdict in Directorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775).

• In contradistinction to the majority view, Justice Subba Rao in his dissenting opinion has given very valid reasons as to why the expression "police officer" should not be confined to members of the police force under the Police Act, 1861 or otherwise and that non-police officers who are also invested with the duty of prevention and detection of crimes (as in the case of Customs Officers) either by conferring on them all the powers under the Cr.P.C. or otherwise, should also be brought under the expression "police officer" within the meaning of Section 25 of the Evidence Act.
• The contingency intelligently anticipated by Justice Subba Rao that, if an officer who is designated as a "police officer", does not discharge the well understood police powers, any confession made to him will be hit by Section 25 of the Evidence Act. Likewise, an officer not designated as a "police officer" but exercising most of the powers of a police officer, if records a confession, it will not be hit by Section 25 of the Evidence Act. The above was not a mere theoretical possibility but a real possibility as I wish to demonstrate. As per the Transplantation of Human Organs and Tissues Act, 1994, cognizance of an offence under the Act can be taken by the Court only on a complaint. In Jeevan Kumar Raut v. CBI (2009) 7 SCC 526 = AIR 2009 SC 2763 the Apex Court held that the CBI was precluded from filing a "police report" and that they could file only a "complaint". This is a classic instance where even though the officer is undoubtedly a "police officer", he is statutorily debarred from filing a "police report", but instead, he can file only a complaint. But, applying the judicially settled definition of a "police officer", he should not only have the power to conduct investigation, but should also have the power to submit a "police report" under Section 173 (2) Cr.P.C. In the case of a "police officer", after investigation, if he files a complaint under the Transplantation of Human Organs and Tissues Act, 1994, does he cease to be a "police officer" ? The answer should be an emphatic no. Again, in the State of Kerala until 03-06-1997, Abkari Officers under the Kerala Abkari Act, 1077 ME were filing only complaints. But, Section 50 of the said Act was amended with effect from 03-06-1997 empowering Abkari Officers to file a "police report" under Section 173 (2) Cr.P.C. after the conclusion of investigation. This amendment, induced the High Court of Kerala in Joseph v. State of Kerala 2009 (2) KLD 915 = 2009 (4) KHC 537 to hold that even though an Abkari Officer who is not a "police officer" by any standards, he is a "police officer" to whom any confession made will be tabooed since he has been, after investigation, empowered to file a "police report" under Section 173 (2) Cr.P.C. Thus, applying the judicially settled definition of a "police officer" we have come across an officer who, by all standards, is a "police officer" but since he is statutorily debarred from filing a "police report" he goes out of the definition of "police officer". In sharp contrast, we have seen a non-police officer who is not enrolled under the Police Act, 1861 or any other law, becoming a "police officer" on account of the power given to him to file a "police report".

E. TREAT ALL "PERSONS IN AUTHORITY" FALLING UNDER SECTION 24 OF THE EVIDENCE ACT AS "POLICE OFFICERS"

5. There is yet another important aspect of the matter. At present, if a confession is made to a non-police officer who is a "person in authority" within the meaning of Section 24 of the Evidence Act, the relevancy and admissibility of such a confession is tested on the touchstone of Section 24 of the Evidence Act so as to consider whether such confession was obtained by "inducement", "threat" or "promise" as is referred to under Section 24 of the Evidence Act. If we examine Section 163 of the Cr.P.C., the very same parameters under Section 24 of the Evidence Act are made applicable to "police officers" also. If so, is not a "police officer" also a "person in authority" within the meaning of Section 24 of the Evidence Act in view of Section 163 Cr.P.C? In fact, in Nandini Satpathy v. P.L.Dani AIR 1978 SC 1025 – 3 Judges, it is categorically observed that a "police Officer" is clearly a person in authority. In that event, why not include all "persons in authority" including "police officers" within the fold of Section 25 of the Evidence Act ?

F. A FEW VERDICTS AFTER "B A R K A T R A M" CONSIDERED

6. In Rajaram Jaiswal v. State of Bihar AIR 1964 SC 828 a three-Judge Bench consisting of K. Subba Rao, Raghubal Dayal and R. Madholkar-JJ referring to earlier decisions including Barkat Ram held that confession made to an Excise Inspector under the Bihar and Orissa Excise Act, 1915, is hit by Section 25 of the Evidence Act since it is the power of investigation given to that officer for collection of evidence which would make him a police officer. The majority consisting of Subba Rao and Mudholkar – JJ took into account the fact that as per the provisions of the Bihar and Orissa Excise Act, 1915, the Excise Officer empowered under Section 77 thereof could exercise all the powers which an officer-in-charge of a police station can exercise under Chapter XIV of Cr.P.C., that he could investigate into offences, record statements of persons questioned by him, make searches, seize any articles connected with an offence under the said Act, arrest an accused person, grant him bail, send him up for trial before a Magistrate, file a charge-sheet and so on. Referring to Barkat Ram it was observed in para 15 of the Judgment that even the majority in Barkat Ram had clearly held that the expression "police officer" used in Section 25 of the Evidence Act is not to be construed in a narrow way. The dissenting Judge Raghubar Dayal – J, however, stuck to his earlier view in the majority decision in Barkat Ram.

7. In Baduku Joti Savant v. State of Mysoor AIR 1966 SC 1746 (5 Judges) – the question for consideration was whether the Central Excise Officer under the Central Excises and Salt Act, 1944, is a "police officer" within the meaning of Section 25 of the Evidence Act and that he could file a "police report" before Court. Both the questions were answered in the negative mainly relying on the majority view in Barkat Ram.

8. A three - Judge Bench in Ramesh Chandra Mehta v. State of W.B. AIR 1970 SC 940 (3 Judges) - held that a Customs Officer acting under the Sea Customs Act, 1878, is not a member of the police force, that he cannot be deemed to be a police officer who is entitled to submit a report under Section 173 Cr.P.C. and that any confession made to him will not be hit by Section 25 of the Evidence Act. The majority view in Barkat Ram and the decision of the Constitution Bench in Badaku Joti Savant, were, inter alia, relied on.

9. Yet another Constitution Bench of the Supreme Court in Illias v. Collector of Customs, Madras AIR 1970 SC 1065 = 1970 Cri.L.J. 998 (SC) – 5 Judges, considered whether the "Customs Officer" acting under the Customs Act, 1962, is a "police officer" within the meaning of Section 25 of the Evidence Act. The Constitution Bench mainly relying on Badaku Joti Savant and Ramesh Chandra Mehta held that "Customs Officer" is not a "police officer" within the meaning of Section 25 of the Evidence Act.

10. In Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 = AIR 1991 SC 45, the question before a two-Judge Bench was whether officers of the Department of Revenue Intelligence ("DRI" for short) were "police officers" for the purpose of Section 25 of the Evidence Act. It was held that since the officers of the DRI were not entitled to exercise all the powers of the police under Chapter XII of Cr.P.C. including the power to submit a "police report" under Section 173 (2) Cr.P.C., they were not "police officers" for the purpose of Section 25 of the Evidence Act. When the power of detection of the offence, apprehension of the offender, investigation into the offence are all given to those officers who are producing the accused before the Magistrate under Section 167 Cr.P.C. and ultimately filing a "complaint" before the Court, to say that they are not "police officers" since they are not empowered to file a "police report", is to ignore the obvious.

11. In Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 = AIR 1994 SC 1775, another two-Judge Bench was inter alia considering the question as to whether an Officer of the Enforcement Directorate arresting an offender under Section 35 (1) of the Foreign Exchange Regulation Act, 1947 ("FERA" in short) was a "police officer" for the purpose of Section 25 of the Evidence Act. After noticing the powers of investigation of the Officer of the Enforcement Directorate and of the Customs Officer under the Customs Act, 1962, the Bench observed in paragraphs 115 to 119 that the word "investigation" cannot be limited only to police investigation. The Bench further observed that an Officer as aforesaid is also invested with the power of "investigation". After observing that the power of such an officer to produce the arrested offender before the Magistrate is derived from Section 167 read with Section 4 (2) Cr.P.C, the Bench, however, held that since such an officer cannot file a "police report" under Section 173 Cr.P.C., he cannot be treated as a "police officer" for the purpose of Section 25 of the Evidence Act. Ramesh Chandra, Illias, Badaku Jyoti Savant and the majority view in Barkat Ram etc. were followed. (Vide para 108). Here also no attempt has been made to critically analyse the minority view of Subba Rao J in Barkat Ram.

12. In Abdul Rashid v. State of Bihar (2001) 9 SCC 578 = AIR 2001 SC 2422 a two- Judge Bench of the Supreme Court following the majority view in Rajaram Jaiswal's case (AIR 1964 SC 828) held that the Superintendent of Excise exercising powers under the Bihar and Orissa Excise Act, 1915, is a "police officer" within the meaning of Section 25 of the Evidence Act and any confession made to him will be hit by Section 25 of the Evidence Act.

13. In Noor Aga v. State of Punjab (2008) 16 SCC 417 = 2008 KHC 5054 a two-Judge Bench of the Supreme Court, after an exhaustive analysis of the legal position including Barkat Ram concluded that Customs Officers exercising powers under the Act were not doing so merely for checking the smuggling of goods but also for the purpose of detection of crime and bringing an accused to book. The Bench also held that the confessional statement of an accused made in terms of Section 108 of the Customs Act cannot be made use of in any manner under Section 138 B of the Customs Act.

14. In Kanhayalal v. Union of India (2008) 4 SCC 668 = AIR 2008 SC 1044, the question was whether a confession made to an officer of the Central Bureau of Investigation under Section 67 of the NDPS Act, 1985 was hit by Section 25 of the Evidence Act. The two–Judge Bench answered the question in the negative by following the earlier verdicts to that effect. It is pertinent to note in this connection that in

15.Nirmal Singh Pehlwan @ Nimma v. Inspector of Customs, Customs House, Punjab (2011) 12 SCC 298 = 2011 KHC 4698, a two-Judge Bench of the Supreme Court held that a confession made to a Customs Officer under Section 108 of the Customs Act, 1962 admitting his guilt for the offence under Section 22 of the NDPS Act, 1985 was hit by Section 25 of the Evidence Act. The Bench found Noor Aga v. State of Punjab (2008) 16 SCC 417 = 2008 KHC 5054, preferable to Kanhayalal's case which, according to the Bench, had not examined the principles and concepts underlying Section 25 of the Evidence Act vis-à-vis Section 108 of the Customs Act. An interesting aspect of Nirmal Singh Pehlwan is that Justice H.S.Bedi was a party to this verdict as well as to the conflicting verdict in Ram Singh (AIR 2011 SC 2490). Another important flaw in this judgment is the finding in para 36 that the bar under Sections 24 to 27 of the Evidence Act would not apply so long as the person giving the confessional statement is not placed in the position of an accused by formally charging him with the offence. Article 20 (3) of the Constitution of India was also relied on in this connection. Unfortunately, the settled legal position that unlike in the case of Article 20 (3) of the Constitution of India, for the interdict under Sections 24 to 27 of the Evidence Act to operate, the person making the confession need not formally be accused of the offence at that time and the words "person accused of an offence" in those Sections is only descriptive of his subsequent status, appears to have been overlooked. The fundamental distinction between Article 20 (3) of the Constitution of India and Sections 24 to 27 of the Evidence Act, should not be ignored. In order to attract the embargo under Article 20 (3) of the Constitution of India, at the time of making the confessional statement there should be formal accusation (in the form of an FIR or a complaint) against the person making the statement, (Vide M.P.Sharma v. Satish Chandra AIR 1954 SC 500 – 8 Judges; State of U.P v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges; Paras 14 and 16 (7) of State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 – 11 Judges; Nandini Satpathy v. P.L.Dani AIR 1978 SC 1025 – 3 Judges). In the case of a person making such a confessional statement under Sections 24 to 27 of the Evidence Act, it is enough that such person is subsequently made an accused. The words "person accused of an offence" occurring in Sections 24 to 27 of the Evidence Act, have been interpreted to mean that those words are only descriptive of his subsequent status as an accused person. (Vide State of U.P v. Deoman Upadhyaya AIR 1960 SC 1125 – 5 Judges; Bheru Singh v. State of Rajasthan (1994) 2 SCC 467 = 1994 SCC (Cri) 555). Approving the verdict of Justice Yogeshwar Dayal speaking for the majority in the Full Bench decision of the Delhi High Court in Union of India v. O.P.Gupta (1990) 2 DL 23 (FB) the Apex Court in para 103 of Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC 440 = AIR 1994 SC 1775 held that the words "accused person" occurring in Section 167 (2) Cr.P.C also will have to be construed on their widest connotation to mean "one who has been arrested and detained and who will include even a person suspected of having committed an offence".

Likewise, a person whose statement is recorded under Section 108 of the Customs Act, 1962 is not an accused at that stage. He becomes an accused only when summons is issued to him by a competent Court. (Vide K.I.Pavunni v. Asst. Collector (HQ), Central Excise Collectorate (1997) 3 SCC 721 = 1997 (1) KLT 489 (SC) – 3 Judges.

16. In Tofan Singh v. State of Tamil Nadu 2013 Cri.L.J. 4990 = 2013 KHC 4823 (SC) another two-Judge Bench of the Apex Court, taking stock of the judicial quandary and conundrum holding the field, thought it fit to refer the matter for an authoritative consideration by a larger Bench. I am given to understand that a three-Judge Bench was constituted and the matter was argued before the three-Judge Bench and the judgment in that case is awaited.

G. C O N C L U S I O N

17. The offshoot of the foregoing discussion is that the dissenting view of Justice Subba Rao is not a solitary voice. He is in the happy company of Raja Ram Jaiswal (AIR 1964 SC 828 – 3 Judges); Abdul Rasheed (AIR 2001 SC 2422); Noor Aga (2008) 16 SCC 417; Nirmal Singh Pehlwan (2011 12 SCC 298 etc.). The matter also deserves another look through the spectacles of "person in authority" occurring in Section 24 of the Evidence Act and Section 163 Cr.P.C. Let us hope and wish that the matter will get a fresh look at the hands of a larger Bench of the Supreme Court of India enlarging the scope of "person in authority" so as to include a "police officer" also for the purpose of Section 25 of the Evidence Act.

(Author is a Former Judge at Kerala High Court)