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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.

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.