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E.C. Richard Vs. Forest Range Officer - Court Judgment

LegalCrystal Citation
SubjectCriminal;Civil
CourtChennai High Court
Decided On
Judge
Reported in1958CriLJ52; (1957)2MLJ624
AppellantE.C. Richard
RespondentForest Range Officer
Cases ReferredNanoo Sheikh v. Emperor
Excerpt:
- - 3 of section 12 of the hoarding and profiteering prevention ordinance it is clearly stated that the officers who may be empowered by the central or provincial government shall within the respective areas for which they are appointed have power to investigate all offences punishable under the ordinance and in conducting any such investigation shall within the said area, have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the criminal procedure code when investigating a cognizable offence within the limits of his station......in evidence. it is contended that the forest range officers have powers similar to those of a police officer to arrest and detain the offenders, that for all practical purposes they have the same powers of a 'police officer' and that, therefore, they must be deemed to be 'police officers' within the meaning of section 25 of the indian evidence act and hence any statement made by the petitioner before the forest range officer must be ruled out as inadmissible. the powers of a forest range officer are contained in sections 41 51, and 53 of the forest act.4. in support of his contention mr. mohan kumaramangalam, learned counsel for the petitioner relies on two bench decisions of our high court and one of the calcutta high court. they are: in re, someshwar h. shelat : air1946mad430.....
Judgment:
ORDER

Somasundaram, J.

1. This revision is preferred by the first accused In C.C. No. 2023 of 1956, on the file of the Stationary Sub-Magistrate, Mettupalayam. The present petitioner and five others were put up for trial before the Magistrate for an offence under Section 21 (h) of the Madras Forest Act, 1882, read with Rules 7 (1), (2) and (8) of the Game Licence Rules, for having shot a female and an immature male deer without horns within the reserve forest of Mettupalayam range. All the accused were convicted of the offence with which they stood charged and sentenced to pay a fine of Rs. 50/- each by the trial Court. In appeal the learned District Magistrate acquitted accused 2 to 6 but confirmed the conviction and sentence of the first accused as he is stated to have shot a female deer and one male deer without horns contrary to the Gaming Rules in the Nilgiris area.

2. The main evidence against the petitioner consists in the statement made by him to P.W. 1, Forest Range Officer who with his party of guards and foresters found the petitioner and others coining in a lorry with the said female and male deer. This statement is Ex. P. 1, It is a confession of his shooting the deer which he should not have shot.

3. The only question that is argued before me is that this statement is inadmissible in evidence. It is contended that the Forest Range Officers have powers similar to those of a police officer to arrest and detain the offenders, that for all practical purposes they have the same powers of a 'police officer' and that, therefore, they must be deemed to be 'police officers' within the meaning of Section 25 of the Indian Evidence Act and hence any statement made by the petitioner before the Forest Range Officer must be ruled out as inadmissible. The powers of a Forest Range Officer are contained in Sections 41 51, and 53 of the Forest Act.

4. In support of his contention Mr. Mohan Kumaramangalam, learned Counsel for the petitioner relies on two Bench decisions of our High Court and one of the Calcutta High Court. They are: In re, Someshwar H. Shelat : AIR1946Mad430 Public Prosecutor V. Paramasivam : AIR1953Mad777 , and S. Fernandes v. State : AIR1953Cal219 , the learned Judges had to consider whether a special officer of the Commercial tax department who has been empowered to investigate into offences under the Hoarding and Profiteering Prevention Ordinance by the Provincial Government in exercise of the powers conferred by Section 12 (3) is a 'police officer' within the meaning and for the purpose of Section 162, CrIPC and whether a statement made to such an officer fell within the scope of Section 25 of the Indian Evidence Act.

In sub-s. 3 of Section 12 of the Hoarding and Profiteering Prevention Ordinance it is clearly stated that the officers Who may be empowered by the Central or Provincial Government shall within the respective areas for which they are appointed have power to investigate all offences punishable under the Ordinance and in conducting any such investigation shall within the said area, have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Criminal Procedure Code when investigating a cognizable offence within the limits of his station. Considering the effect of this provision the Bench held that such officers are in the same position as police officers with all the powers, duties and privileges of an officer in charge of a police station under the Criminal Procedure Code and that an; statement made to such an officer fell within the scope of Section 25 of the Indian Evidence Act In : AIR1953Mad917 , another Bench of our High Court had to consider a similar provision under the Opium Act (Act I of 1878). The relevant provision which is Section 20-A of the Act reads as follows:

The State Government may by notification in the official Gazette invest any officer of (he Prohibition department, every officer belonging to any specified class in that department with the powers of an officer in charge of a police station for the investigation of offences under this Act.

The question arose whether in the circumstances mentioned above the Prohibition officer is a po- lice officer or not within the meaning of Section 25 of the Indian Evidence Act, The Bench held construing Section 20-A of the Opium Act that a Prohibition officer on whom the State Government has conferred the powers of an officer in charge of a police station is a police officer for purposes of Section 162, CrIPC and Section 25 of the Evidence Act, and that, therefore, a confession made to such an officer is inadmissible in evidence. It will be seen from the above decisions of our High Court that the officers concerned (Special officer of the Commercial Tax Department in one case and the Prohibition officer in the other case) were invested with all the powers to investigate and in conducting investigation all the powers of a police officer in charge of a police station.

In short though they were not called police officers they were clothed with all the powers of a 'police officer in charge of a police station.' But the Calcutta case : AIR1953Cal219 , related to a confession made to a preventive officer of the Customs department. In the Customs Act there are no specific provisions similar to Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance or Section 20-A of the Opium Act. Nevertheless, purporting to follow Amin Shariff v. Emperor : AIR1934Cal580 , and on general principles the Calcutta High Court held that 'the term 'police officer' in Section 25 of the Evidence Act should be read not in any strict technical sense but according to the more comprehensive and popular meaning. The investigation or the power of investigation is not the real or governing test for the application of Section 25 of the Evidence Act.

It is enough that the officers under the powers conferred on them by an Act such as for example the Sea Customs Act or the Bengal Excise Act have got the essential powers analogous to police powers of prevention or detection of crimes even though they have not been vested with the powers of investigation. They held that a Preventive officer of the Customs Department is a police officer in this extended sense within the meaning of Section 25, Evidence Act and as such no confession made to him shall be proved against a person accused of offence. ''In this decision the learned Judges were referring to the Bengal Excise Act. Section 74 (3) of the Bengal Excise Act declared that for the purposes of Section 156, Cri. p C, 1898, the area to which an excise officer empowered under Section 73. 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.'

The provision, therefore, in the Bengal Excise Act is similar to what is contended in Section 20-A of the Opium Act, which was considered in : AIR1953Mad917 , and is also similar to the provision contained in Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance referred to in : AIR1946Mad430 In view of the above specific provision in the Bengal Excise Act and also on general principles the Calcutta High Court held in : AIR1934Cal580 , that an Excise officer is a police officer within the meaning of Section 25 of the Evidence Act. But our High Court has held in a series of decisions that an excise officer under the Abkari Act (now Prohibition officer under the Prohibition Act) is not a police officer within the meaning of the term in Section 25 of the Evidence Act and that any confessional statement recorded by such an officer is admissible in evidence and Section 25 of the Evidence Act does not apply to such excise officers.

All these decisions of this Court are referred to in Venkatareddy, In re : AIR1948Mad116 . As pointed out in the above decision because of the specific provision in Section 74. sub-s. 3 of the Bengal Excise Act which declared the area to which an excise officer empowered under Section 73 (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 the Calcutta High Court held that the 'excise officer' is also a 'police officer'' within the meaning of Section 25 of the Evidence Act. Because of the similar provisions contained in the Hoarding and Profiteering Prevention Ordinance and in the Opium Act our High Court also has held in the two Bench decisions referred to already that the officers concerned in the two cases invested with powers of investigation arc; also 'police officers' within the meaning of Section 25 of the Evidence Act.

Certain observations of Balakrishna Ayyar J. in : AIR1953Mad917 , are relied on by the learned Counsel for the petitioner in support of his contention that the Forest Range officer must also be deemed to be a police officer within the meaning of Section 25 of the Evidence Act. The observations of Balakrishna Ayyar J. relate to his comment on the observations of the learned Judges in the Pull Bench case of the Patna High Court, Radhakishan v Emperor ILR 12 Pat 46 : : AIR1932Pat293 (F). which were relied on by the Public Prosecutor in support of his argument that a statement made to a Prohibition officer under the Opium Act was admissible in evidence. In the Patna case the Excise Inspector under the Dangerous Drugs Act. II of 1930, not only had power to arrest and search but had also been invested by the local Government with the powers of an officer in. charge of a police station for the investigation of offences under that particular Act.

Nevertheless the learned Judges of the Patna High Court held that they are not police officers within the meaning of Section 25 of the Evidence Act. It is while commenting on this that Balakrishna Ayyar J. observed

They looked too narrowly to the appearance of things and declined to look at the substance behind the appearance. They focussed attention, on the label and would not lack farther. I also consider that the learned Judges were being much too strict when they refused to consider why these rules of exclusion were embodied in Section 162, CrIPC and Section 25 of the Evidence Act. It is true that the grounds of exclusion are not indicated either in the Evidence Act or in the Criminal Procedure Code. Bait that does not seem a sufficient reason for refusing to consider that aspect of the matter. It has sometimes been said that he does not know the law who does not know the reason for the law. Surely if you refuse to look at the reason for a particular rule of law how can any valid conclusion be reached.

Then he held following a Full Bench decision of the Bombay High Court that in the particular case before him inasmuch as a 'prohibition officer had been invested with all the powers of an 'officer in charge of a police station' he is a 'police officer' and that any confession made to him is inadmissible'. It will be seen that in all the cases of our Court where the statements made to the officers were held to be inadmissible the officers were invested with powers of an officer in charge of a police station for the investigation- of offences under the Criminal Procedure Code. A reference to the decisions of the Calcutta and Bom- bay High Courts : AIR1934Cal580 , Nanoo Sheikh v. Emperor : AIR1927Bom4 , will also show the same.

The only case in which there was no such power conferred and still the officer concerned was held to be a police officer is the one in : AIR1953Cal219 , It is a case under the Customs Act. The preventive officers of the Customs department are not invested with such powers under the Act. Nevertheless the Calcutta High Court held that they are police officers within the meaning of Section 25 of the Evidence Act. A similar case arose in our Court and Yahya All J. has held In re, Mayilvahanam : AIR1947Mad308 , that a statement made to a Customs officer is not hit by Section 25 of the Evidence Act. The present case is one under the Forest Act and the provisions are similar to what are contained in the Prohibition Act and the Customs Act.

The officer is not invested with all the powers of an officer in charge of a police station. So he is on a par with the prohibition officer and the Customs Officer. What applies to them applies to the Forest officer also. In the absence, therefore, of a specific provision conferring on the Forest officer all the powers of an officer in charge of a police station he cannot be called a 'police officer' and a statement made to him will not be hit by B. 25 of the Evidence Act. Apart from that as pointed out by Rajamannar J. (as he then was) in : AIR1948Mad116 , a very important fact which must be taken into account in coming to a decision on this question is that throughout the Act (the Madras Prohibition Act) in more than one section 'police officer' is mentioned in contra-distinction to a 'prohibition officer.'

He then refers to the various sections of the Act where these expressions are used in contradistinction. Similarly in the Forest Act the sections in which the expression 'police officer' is mentioned in contra-distinction to a forest officer are Sections 23, 41, 52 and 53. Therefore the statements made to a forest officer stand on a different footing from those made to police officers. As the forest officers are not conferred with powers of an officer in charge of a police station they cannot by any means be considered police officers under the Criminal Procedure Code and Section 25 of the Evidence Act cannot apply to them. Therefore in the present case the statement made by the petitioner to the Forest Range Officer, P.W. I Is admissible in evidence and it is not disputed that if this statement is admissible, the conviction is sustainable.

5. The conviction and sentence are confirmed and the revision case, is dismissed.


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