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The State of Gujarat Vs. Abdul Rehman Ismail Gurji and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1972CriLJ1101
AppellantThe State of Gujarat
RespondentAbdul Rehman Ismail Gurji and anr.
Cases ReferredRomesh Chandra Mehta v. State of West Bengal
Excerpt:
- - section 5 clearly indicates: sub-section (4) of it clearly indicates that every such inquiry is not an investigation of the case, as contemplated by the provisions of the criminal p. although section 3 of the railway property (unlawful possession) act, 1966 lays down a quantum of sentence making offence cognizable, the provisions of section 5 of the act clearly and categorically enjioin that offences under the act are not cognizable. the ratio of this decision as well as the ratio of my decision, wherein i have followed this decision, clearly indicates that the court is entitled to take cognizance of such an offence not on the report of a police officer, but on the complaint filed by such an officer. the powers which the police officers enjoy are powers for the effective prevention.....orderj.h. sheth, j.1. this is a reference made by the learned sessions judge, panch-mahals at godhra in criminal revision application no. 5 of 1971, recommending that the order passed by the special judicial magistrate. first class, (railways). godhra on two statements of the accused, dt. 19th april, 1970 & 7th october, 1970 one of opponent yusuf abdul rahim and the other of opponent abdul rehman in cri. case no. 1329 of 1970, sought to be produced on behalf of the complainant, were inadmissible in evidence, be set aside, and to direct the learned magistrate to admit them into evidence and to proceed further with the trial.2. the two opponents were tried in the aforesaid criminal case before the special judicial magistrate, first class (railways). godhra. for an offence punishable under.....
Judgment:
ORDER

J.H. Sheth, J.

1. This is a reference made by the learned Sessions Judge, Panch-mahals at Godhra in Criminal Revision Application No. 5 of 1971, recommending that the order passed by the Special Judicial Magistrate. First Class, (Railways). Godhra on two statements of the accused, dt. 19th April, 1970 & 7th October, 1970 one of opponent Yusuf Abdul Rahim and the other of opponent Abdul Rehman in Cri. Case No. 1329 of 1970, sought to be produced on behalf of the complainant, were inadmissible in evidence, be set aside, and to direct the learned Magistrate to admit them into evidence and to proceed further with the trial.

2. The two opponents were tried in the aforesaid criminal case before the Special Judicial Magistrate, First Class (Railways). Godhra. for an offence punishable under Section 3 of the Railway Property (Unlawful Possession) Act (No. 29 of 1966) (which will be hereinafter referred to as 'the Act').

3. The facts giving rise to the aforesaid prosecution were as under:

The complainant who was a Sub-Inspector, Railway Protection Force, Godhra, lodged a complaint against the two opponents for the aforesaid offence on 20-10-1970 in the Court of the Special Judicial Magistrate, First Class (Railway). Godhra, alleging that the complainant had searched the godown of opponent No. 1 and recovered the muddamal articles. He thereupon held an inquiry under Sections 8 and 9 of the Act and had recorded certain statements including the aforesaid two statements of the opponents. During the trial of the case, the complainant produced the said two statements of the opponents and tendered them in evidence while he was being examined. The learned Magistrate re.jected the said statements as being inadmissible into evidence, they being the statements of the accused. The State, therefore, filed revision petition, challenging those orders before the Sessions Judge. Panchmahals at Godhra.

4. The learned Sessions Judge, after referring to several decisions and the provisions of the relevant Act, came to the conclusion that the Sub-Inspector of the Railway Protection Force. Godhra, who recorded the aforesaid statements during the inquiry that he made under Sections 8 and 9 of the Act was not a police officer within the meaning of the words used in Section 25 of the Evidence Act. He found that such an officer who is obliged to make such an inquiry was not deemed to be a Police Officer incharge of a police station as contemplated by the relevant provisions of the Criminal Procedure Code. He was not investigating any offence which the police officer could investigate. He had no authority or power to send a charge-sheet to the Court after the investigation of the offence as a police officer in charge of the police station, as contemplated by Section 173 of the Criminal Procedure Code. He. therefore, came to the conclusion that these statements of the accused in this case were neither hit by Section 25 of the Evidence Act nor by Article 20(3) of the Constitution of India, At this stage it is also not shown that they are hit by Section 24 of the Evidence Act. That being the position, according to him, the learned Magistrate was not right in coming to the conclusion that the statements of the accused, as sought to be produced, were inadmissible into evidence.

5. Mr. Thakar, learned Assistant Government Pleader, urged that in view of the decision of the Supreme Court and the relevant provisions of the Act, referred to, by the learned Sessions Judge, this conclusion of his was correct, Mr. D. C. Trivedi, learned Advocate was appointed amicus curiae. He has rendered valuable assistance to the Court in coming to the conclusion on this important question involved in this reference.

6. Before I advert to the relevant decisions relied upon, I first propose to refer to a few sections of the Act, to understand the scheme of the Act.

7. Section 2(a) of the Act defines 'force' as under:

'force' means the Railway Protection Force constituted under Section 3 of the Railway Protection Force Act, 1957.

In Section 2(b) 'member of the Force' has been defined as under:

'member of the Force' means a person appointed to the Force, other than a superior officer,' Section 2(c) defines 'Officer of the Force' as under: 'Officer of the Force' means an officer of and above the rank of Assistant Sub-Inspector appointed to the Force and includes a superior officer.

In view of these definitions, it is evident that the complainant who is a Sub-Inspector, Railway Protection Force will be an officer of the Force within the meaning of Clause (c) of Section 2 of the Act.

8. 'Superior Officer' is defined in Section 2(e) of the Act as under:

'Superior Officer' means any of the officers appointed under Section 4 of the Railway Protection Force Act, 1957 (23 of 1957) and includes any other officer appointed by the Central Government as a superior officer of the Force.

Section 3 of the Act deals with 'Penalty for unlawful possession of railway property.' Section 4 deals with 'Punishment for connivance at offences' affainst the provisions of the Act. Section 5 clearly indicates:

Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable.

It is thus evident that an offence under Section 3 of the Act with which we are concerned is not a cognizable offence.

9. Section 6 of the Act indicates: 'Any superior officer or member of the Force may, without an order from a Magistrate and without a warrant, arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned'. It is thus evident that any member of the Force is empowered to arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned, without securing the order from the Magistrate and without a warrant.

Section 7 of the Act deals with 'Disposal of persons arrested'. It indicates that if the arrest was made by a person other than an officer of the Force, he has to be forwarded without delay to the nearest officer of the Force.

10. The most material section for our purposes is Section 8 of the Act. It reads:

(1) When any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person.

This Sub-section (1) of Section 8 of the Act empowers an officer of the Force to inquire into the charge against such person if such person is arrested by him for an offence punishable under the Act or is forwarded to him under Section 7, It is in relation to that purpose only that he has been given the powers as the officer in charge of the police station. Subsection (2) of it reads:

For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police-station may exercise and is subject to under the Code of Criminal Procedure. 1898 (5 of 1898), when investigating a cognizable case.

It is only for this limited purpose of making an inquiry contemplated under Section 8 of the Act, that such an officer can exercise the powers which a police officer incharge of the police station can exercise and is also subject to the same provision a police officer is subject to under the Code of Criminal Procedure, when investigating a cognizable case. It is not suggested that he is deemed to be an officer incharge of a police station as contemplated by the Criminal P.C. far all the purposes, enabling him to investigate the offence and send a charge-sheet as contemplated by Section 173 of the Criminal P.C.

11. Provisions to Section 8 of the Act read:

(a) if the officer of the Force is. of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail, to appear before a Magistrate having jurisdiction in the case, or forward him in custody of such Magistrate:

(b) if it appears to the officer or the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required before the Magistrate having jurisdiction. and shall make a full report of all the particulars of the case to his official superior.

The report that he has to make is to be a full report of all the particulars of the case and that report has to be made to his superior officer. It is not suggested therein that he has to make a report to the Magistrate concerned, as contemplated by the provisions of Section 173 of the Criminal P.C.

12. Another material section for our purposes is Section 9 of the Act Sub-section (1) of it reads:

(1) An officer of the Force shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document, or any other thing in any inquiry which such officer is making for any of the purposes of this Act.

Sub-section (4) of it clearly indicates that every such inquiry is not an investigation of the case, as contemplated by the provisions of the Criminal P.C. but is to be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code.

13. There are no other provisions in the Act which go to show that such an officer was to be deemed to be an officer in charge of a police station and was required to send a report to the Court as contemplated by Section 173 of the Criminal P.C. which would enable the Court to take cognizance of the offence on receipt of such a report. On the contrary, if we look to the material provisions of this Act, there is no escape from the conclusion that the Court can take cognizance of the offence in question on the complaint of the officer concerned and not on the report of such an officer as contemplated by Section 173 of the Criminal P.C.

14. This conclusion of mine gets support from the decision of the Calcutta High Court in Supdt. and Remembrancer of Legal Affairs, West Bengal v. D. Surya Rao. : AIR1969Cal594 , to which my attention was drawn by Mr. Trivedi. I had also an occasion to consider that case in Cri. Revn. Appln, No. 500 of 1970, decided on 23-6-1971, wherein I have followed this decision. It is observed by Talukdar, J, in this decision:

In view of the nature of the provisions of the Railway Property (Unlawful Possession) Act, 1966, cases instituted thereunder are not on a police report but on a complaint, attracting the provisions of Section 252 onwards of the Code of Criminal Procedure making it ultimately unnecessary on the part of the prosecution to conform to the provisions of Section 173 (4) of the said Code and serve copies of documents and statements as enjoined therein upon the accused.

Although Section 3 of the Railway Property (Unlawful Possession) Act, 1966 lays down a quantum of sentence making offence cognizable, the provisions of Section 5 of the Act clearly and categorically enjioin that offences under the Act are not cognizable. Merely because an officer of the R. P. F. holding an enquiry under the Act 'may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case' the same would not convert him into 'a police officer properly so called' within the meaning of Section 190 (1)(b) of the Code and convert his report into a police report. The enquiry referred to in Section 8 of the Act is not tantamount to an investigation held under Chapter XIV of the Code and unless and until such an investigation is held, leading on to the submission of a charge sheet, cognizance is not taken by the learned Magistrate on a police report. Such an officer, under Act 29 of 1966. will have to make a complaint under Section 190 (1)(a) of the Code if he wants the Magistrate to take cognizance of an offence under the Act and consequently the case that is ultimately started is. 'any other case' within the meaning of Section 251 (b) under Chapter XXI of the Code of Criminal Procedure.

The ratio of this decision as well as the ratio of my decision, wherein I have followed this decision, clearly indicates that the Court is entitled to take cognizance of such an offence not on the report of a police officer, but on the complaint filed by such an officer.

15. The next question for consideration is whether such an officer who is required to make inquiry under Section 8 of the Act, can be said to be a police officer within the meaning of Section 25 of the Evidence Act, as such an officer has been given powers for the purposes of that inquiry, which the officer incharge of a police station has under the relevant provisions of the Criminal P.C. when investigating a cognizable case. This is the provision of Act on which some reliance can be placed in support of this argument advanced on behalf of the accused. Similar provisions of other Acts came to be considered by the Supreme Court in State of Punjab v. Barkat Ram : [1962]3SCR338 . The ratio of the majority decision of the Supreme Court is:

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 crime committed by a person, but is mainly interested in the detection and prevention of 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 if 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 Section 25 of the Evidence Act. The Customs Officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially. A police officer never acts iudicially. Hence a Customs 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 the Evidence Act.

Under the provisions of the Act with which we are concerned, the primary purpose of giving such powers to the Railway Protection Officer, is to protect the railway properties. They are not primarily concerned with the detection and punishment of crime committed by a person. They are mainly interested in the detection and prevention of the theft of railway properties, and protecting the railway properties. The tests are laid down by the Supreme Court in this decision for deciding the question whether, such an officer would be a police officer within the meaning of the phrase used in Section 25 of the Evidence Act. On applying those tests there is no escape from the conclusion that such an officer is not a police officer as contemplated by Section 25 of the Evidence Act.

16. In Raja Ram Jaiswal v, State of Bihar. 0065/1963 : 1964CriLJ705 . the majority decision is:

The words 'Police Officer' to be found in Section 25 of the Evidence Act are not to be construed in a narrow way but have to be construed 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.

On critical examination of the two decisions, i. e. the previous decision referred to by me and this decision, it does not appear that there is any real conflict in the views expressed by the Supreme Court in the majority judgment. On the contrary, the previous decision has been relied upon in this decision. It is observed therein:

'What is pertinent to bear in mind for the purpose of determining as to who can be regarded a 'police officer' for the purpose of Section 25, Evidence Act, 1872, is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a 'police officer' for the purpose of Section 25 of the Evidence Act would be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police Station establish a direct or substantial relationship with the prohibition enacted by Section 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys.

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 Inspector or Sub-Inspector 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 exercise a kind of authority over the persons arrested which facilitate 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.

Hence, a confession made by a person accused of an offence under the Bihar and Orissa Excise Act (2 of 1915) and recorded by an Excise Inspector, who is empowered under Notification No. 470-F. dated 15-1-1919 to investigate any offence under the Act, is inadmissible by reason of the provisions of Section 25. Evidence Act, 1872

In the case with which we are concerned, no such powers of investigation have been conferred.

17. Another reason assigned for coming to the conclusion was that it has to be excluded from the evidence be cause it is a statement made during the course of investigation to a person who exercises the powers of an officer in charge of a police station. Such a statement is excluded from evidence by Section 162 of the Code of Criminal Procedure except for the purpose of contradiction. In the instant case, the officer concerned is not investigating into any offence and consequently could not be said that such a statement was made in the course of the investigation of the offence, so as to be excluded from evidence in view of the provisions of Section 162 of the Criminal P.C.

18. It is significant to note that the provisions of Bihar and Orissa Excise Act, 1915 (2 of 1915) with which the Supreme Court had to deal with in that case, were quite different. In para 10 of the judgment, at page 832, reference is made in that behalf, observing:

It is precisely this question which falls for consideration in the present appeal. For, under Section 78(3) of the Bihar and Orissa Excise Act. 1915 (2 of 1915) an Excise Officer empowered under Section 77. Sub-section (2) of that Act shall, for the purpose of Section 156 of the Code of Criminal Procedure be deemed to be an officer in charge of a police station with respect to the area to which his appointment as an Excise Officer extends. Sub-section (1) of Section 77 empowers the Collector of Excise to investigate without the order of a Magistrate any offence punishable under the Excise Act committed within the limits of his jurisdiction. Sub-section (2) of that section provides that any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under the Excise Act may. without the order of a Magistrate investigate any such offence which a Court having jurisdiction within the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions, By virtue of these provisions the Lieutenant Governor of Bihar and Orissa by Notification No. 470-F, dated the January 15. 1919 has specially empowered Inspectors of Excise and Sub-Inspectors of Excise to investigate any offence punishable under the Act.

It is thus evident that under that Act, for a particular area, those excise officers were given powers to investigate excise offence as police officers in charge of the police station would have also powers to investigate. They were entitled to file a charge-sheet and so on. Thus his position in so far as offences under the Excise Act committed within the area to which his appointment extends are concerned is not different from that of an officer in charge of a police station. As regards these offences not only is he charged with the duty of preventing their commission but also with their detection and is for these purposes empowered to act in all respects as an officer in charge of a police station. This decision, therefore, in my opinion, cannot help the opponents.

19. This question has again been considered in detail by the Supreme Court in Badaku Joti v. State of Mysore : 1966CriLJ1353 . Before the Supreme Court also, strong reliance was placed on Section 21 of the Central Excises and Salt Act, 1944, which was similarly worded like Section 8 of the Act. It read as under:

21. (1) When any person is forwarded under Section 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him.

(2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the Officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case:Provided that...

The scheme of that Act has also been referred to at page 1749 and thereafter the material observations are made at page 1749, which can be referred to with advantage at this stage. Those observations are:

It is urged that under Sub-section (2) of Section 21 a Central Excise Officer under the Act has all the powers of an Officer-in-charge of a police station under Chapter XIV of the Criminal P.C. and. therefore, he must be deemed to be a police officer within the meaning of those words in Section 25 of the Evidence Act. It is true that Sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officer-incharge 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 inquire into the charge against him. Thus under Section 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person. Further under proviso (a) to Sub-section (2) of Section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate. 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 Criminal P.C. Under Section 190 of the Criminal P.C. a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, or (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of Clause (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Procedure shows and it seems, therefore, that a Central Excise Officer will have to make a complaint under Clause (a) above if he wants the Magistrate to take cognizance of an offence, for example under Section 9 of the Act. Thus though under Sub-section (2) of Section 21 the Central Excise Officer under the Act has the powers of an officer-in-charge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under Sub-section (1) of Section 21. Section 21 is in terms different from Section 78 (3) of the Bihar and Orissa Excise Act, 1915 which came to be considered in Raja Ram Jaiswal's case 0065/1963 : 1964CriLJ705 , and which provided in terms that 'for the purpses of Section 156 of the Criminal P.C. 1898, the area to which an excise officer empowered under Section 77, Sub-section (2), is appointed shall be deemed to be a police-station, and such officer shall be deemed to be the officer-in-charge of such station'. It cannot, therefore, be said that the provision in Section 21 is on par with the provision in Section 78 (3) of the Bihar and Orissa Excise Act. All that Section 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officer-in-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Criminal P.C. for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station.

The provisions contained in Section 21 of the Central Excise and Salt Act, 1944, which the Supreme Court had to consider in the aforesaid decision are on par with the provisions of Section 8 of the Act. It is, therefore, evident that unlike the Bihar and Orissa Excise Act. the Officer of the Force is not deemed to be an officer in charge of a police station. He has no power to submit a chargesheet, i. e.. a report as contemplated under the provisions of Section 173 of the Criminal P.C. The two tests laid down by the Supreme Court, therefore, apply to the present case. It is, therefore, evident that such an officer cannot be deemed to be a police officer within the meaning of those words used in Section 25 of the; Evidence Act.

20. The Supreme Court, in the latest decision, in Percy Rustomii Basta v. State of Maharashtra : 1971CriLJ933 , in paras 12 to 15, at pages 1090 and 1091. has considered a similar question, and followed the two other decisions of the Supreme Court in Romesh Chandra Mehta v. State of West Bengal : 1970CriLJ863 (equivalent to 2 SCR 461). and Illias v. Collector of Customs. Madras : 1970CriLJ998 (equivalent to 2 SCR 613). In the aforesaid decision the Supreme Court had to consider the provisions of Sections 107 and 108 of the Customs Act, 1962. In para 14 it is observed:

From this decision it follows that a Customs Officer conducting an inquiry under Section 107 or 108 of the Act is not a police officer and the person against whom the inquiry is made is not an accused and the statement made by such a person in that inquiry is not a statement made by a person accused of an offence.

In para 12 it is observed:

This Court had to consider in Romesh Chandra Mehta v. State of West Bengal : 1970CriLJ863 whether an officer of customs under the Sea Customs Act, 1878 was a police officer and whether the statements made to him were hit by Article 20(3) of the Constitution and inadmissible in evidence under Section 25 of the Evidence Act. A further question also arose whether an officer of customs acting under the Act is in any event a police officer within the meaning of Section 25 of the Evidence Act and hence the confessional statements made to him were inadmissible in evidence. After a consideration of the scheme of the Sea Customs Act, 1878, this Court held that a Customs Officer does not exercise, when enquiring into a suspected infringement of the Sea Customs Act, powers of investigating which a Police officer may in investigating the commission of an offence and that he is invested with the power to enquire into infringements of the Act primarily for the purpose of adjudicating about forfeiture and penalty. Further it was held that the said officer has no power to investigate an offence triable by a Magistrate and that he can only make a complaint in writing before a competent Magistrate and hence Section 25 of the Evidence Act has no application....Finally, it was held that a person examined under Section 171-A of the Sea Customs Act does not stand in the character of an accused person inasmuch as there is no formal accusation made against him by any person at the time and hence any statement made by such a person to a Customs Officer is not hit by Article 20(3) of the Constitution

In view of these decisions of the Supreme Court, it is evident that the Officer of the Force is not a police officer within the meaning of Section 25 of the Evidence Act and hence the statements made by these opponents, which are in the nature of confessional statements, are not hit by the provisions of Section 25 of the Evidence Act. They cannot, therefore, be said to be inadmissible into evidence in view of the provisions of that section.

21. At this stage there is nothing to indicate that the statements of the opponents are hit by the provisions of Section 24 of the Evidence Act. If the opponents (accused) are able to point out to the Court that there are materials which would justify the Court to press into service the provisions of Section 24 of the Evidence Act, they would be at liberty to do it.

22. With these observations, the reference is accepted and the order passed by the learned Special Judicial Magistrate, First Class (Railway) Godhra, that the aforesaid two statements of the opponents (accused) are inadmissible into evidence is set aside and rule is made absolute.


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