Madhya Pradesh High Court
State Of Madhya Pradesh vs Premlal on 24 October, 1986
Equivalent citations: 1987CRILJ204
ORDER C.P. Sen, J.
1. The following question has been referred to the Full Bench by the Division Bench for consideration :
Whether the extra-judicial confession made by an accused to the Kotwar is admissible in evidence?
The Division Bench found that there is some controversy in the decisions of this Court regarding the admissibility of a statement made by an accused person to the Kotwar having authority to arrest an accused person and the controversy should be set at rest as the only evidence available in the case is the extra-judicial confession made by the accused to the Kotwar in the presence of others.
2. Section 25 of the Evidence Act provides that no confession made to a Police Officer shall be proved as against a person accused of any offence. The word 'Police Officer' has not been defined in the Act. The Supreme Court in State of Punjab v. Barkat Ram has held as i under:
The Police Act, 1861 (5 of 1861), is described as an Act for the regulation of police, and is thus an Act for the regulation of that I group of officers who come within the word ] 'police' whatever meaning be given to that word. The preamble of the Act further says : 'whereas it is expedient to re-organise the police and to make it a more efficient instrument for the prevention and detection of crime, it is enacted as follows'. This indicates that the police is the instrument for the prevention and detection of crime which can be said to be the main object and purpose of having the police. Sections 23 and 25 lay down the duties of the police officers and Section 20 deals with the authority they can exercise. They can exercise such authority as is provided for a police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in Section 23, the more important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, 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.
There seems to be no dispute that a person who is a member of the police force is a police officer. A person is a member of the police force when he holds his office under any of the Acts dealing with the police. A person may be member of the police in any other country. Officers of the police in the erstwhile Indian States and an officer of the police of a foreign country have been held in certain decided cases to be police officers within the meaning of Section 25 of the Evidence Act. There is no denying that these persons are police officers and are covered by that expression in Section 25. That expression is not restricted to the police officers of the police forces enrolled under the Police Act of 1861. The word 'police' is defined in Section 1 and is said to include all persons who shall be enrolled under the Act. No doubt this definition is not restrictive, as it uses the expression 'includes', indicating thereby that person other than those enrolled under that Act can also be covered by the word 'police'.
Sections 17 and 18 of the Police Act provide for the appointment of special police officers who are not enrolled under the Act but are appointed for special occasions and have the same powers, privileges and protection and are liable to perform the same duties as the ordinary officers of the police.
Section 21 also speaks of officers who are not enrolled as police officers and in such categories mentions hereditary or other village police officers.
The words 'police officers' are therefore 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 (1876) ILR 1 Cal 207 where a Deputy Commissioner of police who was actually a police officer and was merely invested with certain Magisterial powers was rightly held to be a police officer within the meaning of that expression in Section 25 of the Evidence Act.
The Supreme Court in Raja Ram v. State Of Bihar has held that "the words Police Officer to be found in Section 25 of of the Evidence Act are not to be construed in a narrow way but in a wide and popular sense. Those words are however, not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred." Therefore, it is clear that a person although may be having some of the powers of the police, will not be a police officer unless he is so designated and has the powers exercised by the police officer.
3. While dealing with powers of Customs Officer under Sea Customs Act, 1878 and Land Customs Act, 1924 (repealed by the Customs Act of 1962) wherein Customs Officer has been given some of the powers similar to those of a Police Officer i.e. of search, seizure and arrest, the Supreme Court in State of Punjab v. Barkat Ram 1962 (1) Cri LJ 217 (supra) held as follows :
The powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The words 'police officer' are not to be construed in a narrow way, but have to be construed in a wide and popular sense. The expression 'police officer' has, however, not such a wide meaning as to include persons on whom certain police powers are conferred. The Customs Officer is not primarily concerned with the detection and punishment of crimes committed by a person, but is mainly interested in the detection and prevention qf smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty than with the offender. The duties of the Customs Officers are very much different from those of the police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers, Merely because similar powers in regard to detection of infractions of Customs laws have been conferred on Officers of the Customs Department as are conferred on Officers of the Police is not a sufficient ground for holding them to be police officers within the meaning of S. .25 of the Evidence Act. The Customs Officers, when they act under die Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties act judicially. A police officer never acts judicially. Hence a Custom Officer either under the Land Customs Act (1924) or under the Sea Customs Act (1878) is not a police officer for the purpose of Section 25 of Evidence Act.
However, the Supreme Court in Raja Ram v. State of Bihar 1964 (1) Cri U 705 (supra) while considering the case of an Excise Officer under Bihar and Orissa Excise Act, 1915, wherein the Excise Officer has been specifically empowered to investigate any offence under that Act having the same powers as that of police and having jurisdiction over the local area to which he is appointed which will be deemed to be a police station, the Supreme Court held as under :
Unlike the Customs Officer, on whom are conferred by the Sea Customs Act, 1878, powers of a limited character which are analogous to those conferred upon police officers, the powers of investigation into offences which a police officer enjoys are conferred upon Inspectors or Sub-Inspectors of Excise by the Bihar and Orissa Excise Act. It is the possession of these powers which enables police officers and those who are deemed to be police officers to excercise a kind of authority over the persons arrested which facilitates the obtaining from them statements which may be incriminating the persons making them. The law allows the police officer to obtain such statements with a view to facilitate the investigation of the offences. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them. It is the power of investigation which established a direct relationship with the prohibition enacted in Section 25. Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other powers under another law would not make him any the less a police officer for the purposes of Section 25.
Therefore, this case is clearly distinguishable from the earlier case because the Excise Officer was deemed to be a police officer in charge of the local area over which he has got jurisdiction. Reiterating the earlier view, the Supreme Court in Vallabhdas Liladhar v. Asst. Collector of Customs AIR 1965 SC 481 : 1965 (1) Cri U 490 held that the statement made to a Customs Officer is clearly to a person in authority and would be admissible Under Section 25 of the Evidence Act if it is not made on account of threat, inducement or promise but the statement would not be inadmissible Under Section 25.
4. The constitution bench of the Supreme Court in Badaku Jyoti v. State of Mysore while dealing with Section 21(2) of the Central Excises and Salt Act, 1944, has held as follows:
S. 21(2) confers on the Central Excise Officer the same powers as a officer-in-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 enquire into the charge against him. 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 Cri.P.C. Thus, though Under Section 21(2) the Officer has powers of an Officer-in-charge of a police station when investigating a cognizable case the power is for purpose of enquiry Under Section 21(2) and that does not include power to submit a charge-sheet Under Section 173 Cr. P.C. Even if the broader view, viz, that a Central Excise Officer is a 'police Officer' is accepted, mere conferment of power of investigation like an officer-in-charge of a police station, into criminal offence Under Section 9 of the Central Excises Act does not make the officer a police officer.
Therefore, even if the officer concerned has the same powers of investigation apart from the powers of search, seizure and arrest, he will still not be a police officer if he has no power to submit a charge-sheet Under Section 173 Cr. PC, The Supreme Court in Ramesh Chandra v. State of W. B. while considering the use (sic) of a Customs Officer under the Customs Act of 1962 held as under:
The Customs Officer Under Section 104(3) is, it is true, invested with the powers of an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression 'or otherwise' however does not confer upon him the power to lodge a report before a Magistrate Under Section 173 of the Cr. P.C. Power to grant bail, power to collect evidence, and power to search (premises or conveyances without recourse to a Magistrate do not make him an officer-w-chargeof a police station. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue. Thus a Customs Officer is, under the Act of 150, 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 21(2) of the Evidence Act.
The same view was expressed by the Supreme Court in Illias v. Collector Customs, Madras at page 1065 of the same volume that even though under the new Customs Act of 1962 a Customs Officer has been invested with many powers which were not to be found in the provisions of the old Sea Customs Act of 1878, he cannot be regarded as a "police officer" within the meaning of Section 21(2) 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 21(2) of the Evidence Act. This has been reiterated by the Supreme Court in Harbansing v. State of Maharashtra and in Hazari Singh v. Union of India .
5. The Supreme Court in State of U. P. v. Durga Prasad held that an officer conducting enquiry Under Section 8(1) of the Railway Property (Unlawful Possession) Act, 1966, cannot be equated generally with the police officers is clear from the object and purpose of the Railway Protection Force Act, 1957, under which their appointments are made. Enquiry under that section does not amount to investigation within the meaning of Section 162 of Cr. P.C. Hence statements made during enquiry Under Section 8(1) of the Act are not on par with the statements made during the course of investigation. Affirming this view, the Supreme Court in Balkishan v. State of Maharashtra has held as under :
The primary test for determining whether an officer is a Police Officer is: Whether the officer concerned under the Special Act, has been invested with all the powers exercisable by an officer-in-charge of a Police Station under Chapter XIV of the Cri. P.C. qua investigation of offences under that Act, including the power to initiate prosecution by submitting a report (charge-sheet) Under Section 173 of the Cr. P. Code of 1898. In order to bring him within the purview of a Police Officer for the purpose of Section 21(2), Evidence Act, it is not enough to show that he exercised some or even many of the powers of a police officer conducting an investigation under the Code.
The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned Under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Therefore, any confessional or incriminating statement recorded by him in the course of an inquiry Under Section 8(1) of the 1966 Act, cannot be excluded from evidence under the said section.
6. Kotwars are appointed for each village or for a group of villages for the performance of such duties as may be prescribed Under Section 230 of the M.P. Land Revenue Code, 1959. Under Rule 8(vi) of the Kotwari Rules framed under the Act, amongst others, the Kotwar has duty to. arrest and convey to the police or any other competent authoity any person who in his view commits a non-bailable and cognizable offence or who has been proclaimed as an offender. From the rules framed, it is evident that kotwar is a village watchman or Chowkidar and the name Kotwar has been introduced in the Code from the provisions of Central Provinces Land Revenue Act, 1917. There was a similar provision in Section 196 and under Rule 5(iii) he had similar power of arrest and convey to the police station any person who in his view has committed a non-bailable and cognizable offence or who is a proclaimed offender. The Kotwar has no power of investigation & submitting charge-sheet. Similar power is given to any private person Under Section 43 of Cr. P. Code which provides that any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or is a proclaimed offender and make over any person so arrested to the police officer or to the police station. Therefore, merely because a private person has a power to arrest a person committing non-bailable offence or who is a proclaimed, offender, if he is treated as a police officer, Section 24 of the Evidence Act will be redundant making any confession, as . inadmissible in evidence. Similarpowergiven to the Kotwar will hot also make him a police officer within the meaning of Section 21(2) of the Evidence Act because he has neither power of investigation nor submitting a charge-sheet against the person arrested. A Division Bench of this Court in Sukhwaria Chamaria v. Emperor AIR 1924 Nag 29 : 1924 (25) Cri LJ 147 has held that "the widest and most comprehensive extension of the term 'police officer9 cannot make it include a Kotwar in the Central Provinces, He is popularly regarded as a subordinate police officer and even that idea arises mainly from the fact that it is his duty to make, or rather to carry frequent reports to the police. But the making of reports to a department of the Government does not constitute a person who makes them, a member of that department even in the popular sense and therefore a confession made before a Kotwar is admissible in evidence." A Division Bench of this Court in Emperor v. Akia AIR 1927 Nag 222 : 1927 (28) Cri LJ 471 held that primarily the term "police officer" in Section 21(2) of the Evidence Act' means the same as it does in the Police Act but it can be extended beyond the definition in Section 1 of the Police Act to cover only those persons who, like Police Officers, coming within that definition, are so much more interested in obtaining convictions than any member of the community is, that they might possibly resort to improper means for doing so. A police Patel in Berar cannot be regarded as a Police Officer for the purposes of Section 24.
7. Similar view has been taken by other Benches of this Court in Mahto v. State of M.P. 1978 MPU 599 : 1978 Cri LJ 1149 wherein it has been held that the village Chowkidar who is deemed to be a kotwar Under Section 230(2) of the M.P. Land Revenue Code is not a police officer within the meaning of Section 21(2), Evidence Act though he may be performing certain functions which are performed by the police. Sections 230 and 231, MP, Land'Revenue Code show that Kotwars are appointed by Revenue Officers and their duties are prescribed under the rules. A village chowkidar could not therefore be termed as a police officer and an extra-judicial confession made to him is not inadmissible. In Devraj v. State of M.P. at page 802 of the same volume 1978 MPLJ : 1979 Cri LJ NOC 115 it has been held that a village Kotwar is appointed Under Section 230, M. P. Land Revenue Code by the Collector or other officer empowered in that behalf. The Collector is also empowered to fix his remuneration in accordance with rules made for the purpose. Thus kotwars are absolutely under the control of Revenue Officers and their functions are prescribed under the rules made under M.P. Land Revenue Code. A village chowkidar cannot therefore be said to be a police officer within the meaning of Section 21(2), Evidence Act though he may be performing certain functions which are performed by police and a confession made to him or in his presence is not inadmissible in evidence. In Khilan Lodhi v. State of M.P. 1986 MPLJ'490 it has been held that a choukidar (kotwar) appointed Under Section 230 of the M. P. Land Revenue Code and who has limited duties to perform under the said Code is not a police officer within the meaning of Sections 25 and 26 of the Evidence Act. Therefore, the consistent view of this Court has throughout been that the kotwar although has power to arrest a person committing cognizable offence is not a police officer within the meaning of Section 21(2) of the Evidence Act.
8. However, there are decisions to the contrary by 3 other Benches of this Court. In Mudkami Hidma v. State, Cri Appeal No. 957 of 1978, DA 24-11-1981 it was held that the confession to a Kotwar is inadmissible on account of Rule 8(vi) framed Under Section 230/258 of the M.P. Land Revenue Code, 1959 which empowers a kotwar to arrest any person accused of non-bailable offence. Therefore, he is a police officer within the meaning of Section 21(2) of the Evidence Act and any confession made before him would be hit by section 21(2) of Act. Unfortunately, the earlier decisions of this Court were not brought to the notice of that Bench nor any of the decisions of the Supreme Court on this point was considered. Following this decision, another Division Bench in Rajendra Prasad v. State of M. P. Cri Appeal No. 187 of 1982, DA 24-1-1985 held that a confession made to a kotwar is inadmissible Under Section 21(2) of the Evidence Act since he is a police officer having power to arrest a person. This very Bench again in Keshri Ram v. State of M.P. Cri Appeal No. 831 of 1982, DA 4-4-1985 held that the consistent view of this Court is that any confession made to the kotwar is hit by Section 21(2) of the Evidence Act. The observation is clearly erroneous in view of the consistent view being otherwise. The Bench thought that the view 1987 taken in Mudkami Hidma v. State (supra) and in Rajendra Prasad v. State of M.P. (supra) to be the consistent view. In view of the decisions of the Supreme Court and of this Court, the view taken is clearly erroneous and is no longer good law. Therefore, these three decisions are overruled to the extent they hold that the confession made to a Kotwar is inadmissible in evidence Under Section 21(2) of the Evidence Act.
9. Accordingly, we express our opinion in the affirmative that the extra-judicial confession made by an accused to the Kotwar is admissible in evidence as he is not a police officer and so it is not hit by Section 21(2) of the Evidence Act.