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The other point raised in this appeal is that the investigating Excise Officer was allowed to conduct the prosecution contrary to the provisions of Sub-section 4 of Section 495. Assuming, without deciding, that the investigating officer who was allowed to conduct the prosecution was an officer of police within the meaning of Sub-section 41 do not think that the irregularity can affect the result in this case. As pointed out in Emperor v. Tribhovandas (1902) I.L.R. 26 Bom. 533: s.c. 4 Bom. L.R. 271, such an irregularity would be covered by the provisions of Section 537 of the Code of Criminal Procedure, and in the absence of an indication of any prejudice to the accused or failure of justice resulting from such an irregularity we cannot reverse the finding or interfere with the order of the lower Court in appeal. I think, however, that there is force in the contention that the trial Magistrate should not have permitted the investigating officer to conduct the prosecution in this case for the reasons underlying the provisions of Section 495, subsection (4). If an officer who may not be an officer of Police, but who has to do duty similar to that of a Police officer with reference to the investigation of an offence under the Opium Act, has taken part in such investigation, it would be desirable not to permit him to conduct the prosecution, particularly if he is likely to be a witness in the case. That, however, is a matter for the trial Magistrate to take into consideration at the time of exercising his discretion under Section 495, Sub-section (1), and granting the necessary permission.

6. It will be noticed that the learned Judges did not specifically decide the point, which was not directly in issue before them, for the decision turned on the merits of that case, though they seem to have been inclined to the opinion that, as a rule, the conduct of the prosecution by an investigating Abkari officer should not have been allowed. We think, however, it was a matter for the exercise of the Magistrate's discretion, and this discretion, we find, is no longer there, for, by a Notification, No. 6601 of December 13, 1932, excise-officers not lower in rank than Sub-Inspectors have been authorised to conduct prosecutions in such cases in this Presidency by Government. This is all the help that we have been able to derive from authority on the point. It will be noticed that all but one of these eases do not interpret Section 495. The learned Judge's argument is, generally, that the reasoning which is applicable to the cases under Section 25 of the Indian Evidence Act in support of the view taken by the full bench of this High Court as to the meaning of the expression "officer of police" in that section, applies with exactly similar force to the same expression as used in Section 495 of the Criminal Procedure Code. We think, however, that the cases are not really as analogous as they appear to be at first sight. The prohibitions under Section 25 of the Indian Evidence Act and Section 495 (4) of the Criminal Procedure Code cannot really have been enacted on exactly similar grounds. One concerns a matter of evidence, the other, one of procedure. The first excludes a certain kind of evidence on the general principle underlying all rules of exclusion, that such evidence is too dangerous to use. If one may speculate, the second is based on a, fear that an investigating officer may prove to be an unfair prosecutor. The former is a weightier reason for exclusion than the latter, and the analogy between a confession made to a police-officer and one made to an excise officer is far closer than in the case of prosecutors. There is, therefore, a far more compelling reason for including excise-officers, though not expressly mentioned, in the expression 'officer of police' as used in Section 25 of the Indian Evidence Act, than there is for adopting the same interpretation in the case of Section 495 (4) of the Criminal Procedure Code. Moreover, the Criminal Procedure Code was extensively amended in 1923 at a time when the powers of investigation exercised by excise-officers were in full force, these having been conferred by an amendment of the Abkari Act in 1912, and it is not reasonable to presume that the fact that these officers were exercising these powers of investigation could have escaped the notice of the authorities responsible for the amendment of the Code, and that there would not have been a consequential amendment to that effect in Section 495, i. e., the words necessary to include them, such as "or other officers exercising similar powers", had the prohibition been intended to apply to such officers also.

7. On the whole, therefore, I am of opinion that "excise officers" are not impliedly as they are not expressly included in the expression "officer of police" in Section 495 (4) of the Criminal Procedure Code, and that the papers should be returned to the Sessions Judge with our opinion to this effect. The Magistrate's order will, therefore, stand.

Broomfield, J.

8. The question in this reference is whether an Inspector in the excise department is a police-officer within the meaning of Section 495 (4) of the Criminal Procedure Code. As pointed out by my learned brother, there has been a recent resolution of Government dated December 13, 1932, by which Government, in exercise of the powers conferred by Section 495 (1), has empowered excise-officers of a certain standing to conduct prosecutions. This resolution was issued after the orders of the Magistrate and the Sessions Judge in the present case, but it is a matter which we have to take into consideration. A Government resolution cannot, of course, override the law, and if excise-officers are to be regarded as police-officers, they are debarred from conducting the prosecution in cases which they have themselves investigated. On the other hand, if they are not police-officers within the meaning of Clause (4) of Section 495, they can, by virtue of the Government resolution, conduct the prosecution in any case and the Court would not have the power to prevent them doing so on the ground that they had investigated the case.

Here and in the other passages in the judgment stress was laid on the fact that the Indian Evidence Act was passed in 1872 when excise-officers had no more than a limited power of arrest and could not be regarded as standing in the same position as police-officers. But the Criminal Procedure Code was completely revised and amended in 1923, eleven years after the amendment of the Abkari Act by which the powers of investigation in question were conferred upon excise-officers. So that, assuming that it is permissible to interpret an Act prospectively as it were and to adapt it to meet the changes in other legislation, there is no analogous reason for interpreting 'a police-officer' in Section 495 (4) in a sense which would include an excise-officer. The legislature in 1923 had no excuse for supposing that police-officers, strictly so called, are the only persons empowered to investigate offences, or for supposing that the Courts in interpreting Section 495 (4) of the Criminal Procedure Code would not interpret the expression strictly, but would apply it to excise-officers also. The full bench decision is only binding on us if it is quite clear from the line of reasoning adopted that the Court would have held an excise-officer to be a police-officer under Section 495 (4) of the Criminal Procedure Code as well as under Section 25 of the Indian Evidence Act, if that, point had been before it for decision. For the reasons which 1 have indicated, I do not consider that that is by any means clear. I, therefore, agree with the order proposed by my learned brother in this case.