Confession & Section 25 Of Indian Evidence Act

S.25 of the Indian Evidence Act 1872 (hereinafter referred as IEA) thus makes confessions made to a police officer inadmissible in the court of law. For an effective interpretation and application of the section, it becomes essential to understand the different contours of it namely- what amounts to a confession, who is an accused in the situation, and who qualifies to be a police officer.

This paper deals with the last issue of the above trinity. The author, with a view of providing a detailed judicial engagement with the term "police officer", has traced up judgments beginning from R v. Hurribole ^[1] to the recent Supreme Court decisions. The judgments in this regard have been voluminous and are often in contradiction with each other. The paper aims to discover and streamline the broad shifts in the judicial spectre along with providing clarity in the field as per the present stand of the court.

Chequered Past Of The Section

Though the term "police officer" finds its reference in the IEA several times, its definition remains noticeably absent. This lacuna is persistent in the statutory law and triggers the interpreters to rely elsewhere on the definition. The Black's Law Dictionary defines a police officer as someone responsible for preserving public order, promoting public safety, and detecting crime. The Supreme Court relied on the definition given in the Oxford Dictionary, which says part of the state or government that ensures maintenance of public order and safety and enforcement of the law.

The court had held that the term "police officer" should be construed not in a narrower way but in a wider fashion, i.e., the term includes not only the ones at the ranks of officials but also head constable, a police patel and chowkidar.

This broader interpretation is not only restricted to vertically downwards sphere, but it also applies to the horizontal spectre. The latter means an extension of the status of the police to different categories of government employees who are not per se police, for example, Excise, and Customs officials. The court in a case, made a vital distinction between an individual who is actually a police officer and the one who is not a police officer per se but merely is invested with the powers of a police officer. It further cautioned that blurring the difference between the above two would disproportionately enlarge the ambit of the impugned section.

Furthermore, it shall also be noted that the wider interpretation of the term should include all kinds of police officials and not all kinds of officials in general.

The Functionalist Approach

This approach determines the police officer from his functions and the powers conferred on him. It asks whether the powers conferred are essentially and substantially of a police officer as per the law. As per Cr.P.C, a police officer has not only the powers to arrest, search, seizure, register F.I.R.s but also to file charge sheet under S.173 of Cr.P.C.

As held in the case of Badku Savant, it is imperative for an officer to have the power to lodge a report to be called as a police officer despite him being entrusted with powers analogous to that of police under any special law. A similar view has been promulgated in the cases of Raja Ram Jaiswal and Ramesh Chandra Mehta wherein a constitutional bench decided that powers to do functions like recording statements, conducting search and seizure operations, arresting the accused, sending him to trial before a Magistrate, and essentially filing a charge sheet are vital for an official to be called as a police official.

The purposive approach

This approach majorly focuses on the primary purpose and objective of having a police force, i.e., maintenance of law and order and prevention of crimes. The court held in a case that it is not the function that is material but the character of the function they perform, which is decisive. However, this approach has been rejected in various cases and is not used extensively in resolving issues.

The Judicial Trend- A Trail Of Cases

One of the first cases to decide on the definition of police officers under the impugned section was Barkat Ram which essentially determined the status of customs officers. It was largely resolved by looking for whether there is a resemblance in the purpose behind such conferment of powers on the officials. It was held that mere similarity in the investigative powers is insufficient; one should examine if there is enough similarity in the purpose of their conferral. As the reason behind the conferral of powers to customs officers was merely to check smuggling of goods and not detection and prevention of crime at large, it was held that though there is a similarity in powers of the two but not in purpose. Therefore, the customs officers cannot be called police officers. Thus, a confession made to customs officer was made admissible.

However, the rationale of the court changed in the case of Raja Ram Jaiswal, wherein the court believed that it is the prerogative of the judiciary to inquire the purpose behind the grant of the powers to the officer. The real question that should be asked is whether such conferral facilitates the confession from the accused or investigates the matter. It was held that since the power to investigate has been given to the excise officials; they will be treated as police officials u/s 25 of IEA as opposed to the customs officials who could only make inquiries but not investigate the matter u/s 156 of Cr.P.C, thus not treated a police officials under the impugned section.

It is evident from the above cases that the court used the simpler formalistic approach to administer instead of engaging in the purposive method to decide the purview of §25. Due to the conflicts in the judgments, it became imperative for the court to make a higher bench adjudicate the issue. In the case of Badku Joti Savant, the court, while deciding the status of central excise officers, rejected the purposive approach. It made the power to file charge sheet u/s 173 of the Cr.P.C as a decider or a qualifier to become a police officer. This elusive shift from looking from the lens of "power to investigate" to essentially the "power to file a charge sheet" became a rule in determining the issues pertaining to the definition of police officer u/s 25.

Heading Towards Conclusiveness?

The test promulgated by the constitutional bench in Badku Joti Savant was perceived to be an easy and distilled method to resolve the issues regarding §25. It was heavily relied upon to determine the status of Railway Protection Force officers in the year 1974. Moreover, the confessions made to the officers in-charge under the N.D.P.S act was challenged. After examining all the broad set of powers that the N.D.P.S act has conferred, the Supreme Court in the case of Raj Kumar Karwal returned to the line of precedence. It reiterated that the most essential parameter of being police officer is to investigate cognizable offenses and impeach the wrongdoer by filing a charge sheet.

In 2008, the court, in the case of NoorAga, dissented with the ratio in Raj Kumar Karwal and opined those powers of customs officers and the N.D.P.S act differ extensively and cannot be analogized. However, in 2011 the court in the case of Ram Singh reverted to the position held in Raj Kumar Karwal.

In one of the recent cases before the apex court (Vijay Madanlal), the status of ED officers under the PMLA was challenged. Herein, the court made a distinction between the stages when ED summons the accused and when he is arrested by ED. It held that bar u/s §25 is not applicable during the summons stage; it only applies after the arrest stage. So as far as the status of ED officers is concerned, the applicability of §25 has to be considered on a case-to-case basis.

The Present Position

It is agreeable from the past instances that were relying on the powers to investigate is not a productive criterion to determine the status of officers. Instead, the power to file a charge sheet has become the be-all and end-all test to decide the cases concerning §25. Moreover, the purposive test which made it obligatory of the courts to inquire the reason behind the conferment of powers was discarded by various judgments.

Cost Of Convenience

The above may constitute an effective methodology to determine the status of officials, but they do little to further the legislative intent of §25. The hidden horror is the misuse of power by the police officials to wrest confessions involuntarily. A similar concern was echoed by J. Subbarao in the case of Barkat Ram while expressing his dissent in the judgment. Inapplicability of the section merely because an official doesn't have the requisite power to file a charge sheet blatantly defeats the purpose of the provision.

Inability to file a charge sheet instead of a complaint has been a necessary requirement in the cases wherein the status of revenue and N.D.P.S officers was being determined, perhaps it should be noted that both charge-sheet and complaint empower a Magistrate to take cognizance of an offense under §190 of the Cr.P.C, and therefore nothing places than on a different pedestal.

Thus, there is an illusional and arbitrary distinction due to which a person can be thrown to jail based on extracted confession under one statute/ legislation and not so in another. This distances us from the legislative intent of the section by indirectly approving forcible extraction of confession by officials who are almost police officials but not entirely.

Views are personal.

[1] R v. Hurribole [1876] ILR 1 Cal 207.