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In Re: Someshwar H. Shelat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1946Mad430; (1946)1MLJ368
AppellantIn Re: Someshwar H. Shelat
Excerpt:
- - section 27 says that when a fact is deposed to as discovered in consequence of information received from a person accused of the offence in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......and profiteering prevention ordinance introduced by the amending ordinance no. liu of 1944, is a police officer within the meaning and for the purposes of section 162 of criminal procedure code and section 25 of the indian evidence act.sub-section (3) of section 12 of the hoarding and profiteering prevention ordinance was inserted therein on the 13th december, 1944, by the amending ordinance liii of that year. the sub-section reads as follows:the controller-general and such inspectors or other officers as may be empowered by the central or provincial government in this behalf shall, within the respective areas for which they are appointed, have power to investigate all offences punishable under this ordinance and in conducting any such investigation shall, within the said areas, have.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. Under the provisions of Section 432 of the Code of Criminal Frocedure, the Chief Presidency Magistrate, has referred for the opinion of this Court the following question of law:

Whether a Special Officer of the Commercial Tax Department who has been empowered in this behalf by the Provincial Government of Madras in exercise of the powers conferred on them by Section 12(3) of the Hoarding and Profiteering Prevention Ordinance introduced by the amending Ordinance No. LIU of 1944, is a police officer within the meaning and for the purposes of Section 162 of Criminal Procedure Code and Section 25 of the Indian Evidence Act.

Sub-section (3) of Section 12 of the Hoarding and Profiteering Prevention Ordinance was inserted therein on the 13th December, 1944, by the amending Ordinance LIII of that year. The sub-section reads as follows:

The Controller-General and such Inspectors or other officers as may be empowered by the Central or Provincial Government in this behalf shall, within the respective areas for which they are appointed, have power to investigate all offences punishable under this Ordinance and in conducting any such investigation shall, within the said areas, have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Code of Criminal Procedure, i8g8, when investigating a cognizable offence within the limits of his station.

2. Section 162 of the Code of Criminal Procedure states that no statement made by a person to a police-officer in the course of an investigation under Chapter XIV, shall, if reduced into writing, be signed by the person making it. The section provides the circumstances in which such a statement can be used. When a witness whose statement has been reduced into writing is called for the prosecution, the Court shall at the request of the accused refer to the writing and the accused shall be furnished with a copy of it in order that any part of the statement, if duly proved, may be used to contradict the witness in the manner provided by Section 145 of the Indian Evidence Act. When a part of the statement is so used, any other part may be used in the re-examination of the witness, but for the purpose only of explaining any matter referred to in his cross-examination. Sub-section (2) of Section 162 excludes from its operation a statement falling within the provisions of Section 32(1) of the Indian Evidence Act and does not affect the provisions of Section 27 of that Act.

3. Section 32(1) of the Evidence Act relates to a statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Section 27 contains a proviso to Section 25 and Section 26. Section 25 states that no confession made to a police officer shall be proved as against a person accused of an offence. Section 26 says that no confession made by a person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against him. Section 27 says that when a fact is deposed to as discovered in consequence of information received from a person accused of the offence in the custody of a police officer so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Therefore the law places very limited uses on a statement made to a police officer.

4. Under Sub-section (3) of Section 12 of the Hoarding and Profiteering Prevention Ordinance, the Provincial Government have given certain officers of the Commercial Tax Department power to investigate offences under the Ordinance within their respective jurisdictions. In making the reference the learned Chief Presidency Magistrate has pointed out that ever since the ordinance has been in force it has been the practice for these officers to begin an investigation after a complaint has been made to them by raiding the place of business of the dealer who is accused of having committed an offence, or any place where goods believed to belong to him are suspected of having been hoarded and seizing such goods and account books. The investigating officer then draws the attention of the dealer to all the circumstances which point towards his guilt and calls upon him to give an explanation. The dealer's explanation is reduced to writing and is signed by him and attested by witnesses. Sometimes the explanation is incorporated in the search list itself. In such a case the dealer may sign a statement prepared by the investigating officer in which he not only acknowledges the seizure of certain articles from his shop or godown, but also confesses that he has given a statement in respect of them. For example, the statement may say that he first told the investigating officer that he had no stock of certain goods, but that on a search being made such goods were found on his premises. It has apparently also been the practice to take similar statements from persons acquainted with the facts of the case and get them to sign their statements. If a witness turns hostile he is confronted by the prosecution with the statement given to the investigating officer.

5. If an investigating officer is a police officer within and for the purpose of Section 162 of the Code of Criminal Procedure this practice is obviously illegal. That he is a police officer within the meaning of the section we have no doubt whatever. Section 12(3) of the Hoarding and Profiteering Prevention Ordinance expressly gives him all the powers, duties and privileges of an officer in charge of a police station under the Code of Criminal Procedure, 1898, when investigating a cognizable offence within the limits of his station. Therefore he has the full status of a police officer and his powers and duties must be limited to those of a police officer under the Code of Criminal Procedure, which means that he has no right in an investigation under the Ordinance to require a person to sign a statement and where such a statement is reduced to writing it can only be used in accordance with the provisions of Section 162 of the Code of Criminal Procedure or section. 27 of the Evidence Act.

6. In his statement of the case the Chief Presidency Magistrate has expressed the opinion that if the question is to be answered in the way in which, we answer it, it will create insuperable difficulties in making investigations under the Hoarding and Profiteering Prevention Ordinance. The Court is not concerned with such difliculties. It can only state the law at the time when this reference was made and the answer to the question referred is that the officers appointed to investigate these offiences are police officers within the meaning of the Code of Criminal Procedure and the Code of Criminal Procedure applies to statements recorded by them.

7. The learned Crown Prosecutor has drawn our attention to the fact that the Government of India by Ordinance I of 1946 has repealed Ordinance No. LIII of 1944 which means the deletion of Sub-section (3) to Section 12 of the Hoarding and Profiteering Prevention Ordinance. The repealing ordinance was published in the Fort St. George Gazette on the 22nd January, 1946, the date on which this reference was made. The position is now that investigating officers under the Hoarding and Profiteering Prevention Ordinance are no longer police officers within the meaning of the Code of Criminal Procedure; but the answer to the reference given applies to all cases which were pending before the repeal of Sub-section (3) of Section 12 of the main Ordinance.


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