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Convolution And Intricacies Associated With The Term Police Officers In India

The term Police Officer has not been defined under the Police Act, 1861. Although, 1 of The Police Act, 1861 only defines the term police. Generally, the basic duties of a police officer include prevention, detention and investigation of crimes.

With the advent of legion of crimes in India, the Parliament enacted various special laws dealing with Excise, Customs, Railways, Taxes, NDPS and others. The duties pertaining to prevention, detention and investigation of crimes under these special acts are entrusted to officers possessing different nomenclature than a police officer.

As per 2 (h) of the Criminal Procedure Code, 1973 (hereinafter referred as the Code), power to investigate a cognizable offence under the Code, vests with an authority called police officer.[2] However, special acts may confer the power to hold enquiry and investigate offences to officers who exercise powers similar to that of police officers.

The conventional rule of Interpretation of Statutes, generalia specialibus non derogant (the provisions of a general statute must yield to those of a special one) will be applicable in cases wherein the procedure prescribed for initiation of a proceeding in a special statue is different from the Code and the procedure prescribed under the special statute shall have an overriding effect over the Code.

The Supreme Court in Vijay Bharat Stores v. O.P. Poddar[3], has held that:
it would follow as a necessary corollary that unless any statute other than the Code which prescribes an offence and simultaneously specifies the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, the provisions of the Code shall apply in respect of such offences and they shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the Code.

A police officer or any other officer empowered similar to a police officer, while investigating into an offence, may use his power and extort statement from an accused against his will. 25 of the Indian Evidence Act, 1872 (hereinafter referred as the Evidence Act) was introduced as an exclusionary rule of evidence to overcome the illegal and inhumane practices including torture, undue influence, etc., prevalent prior to the Evidence Act, used by police officers for the purpose of inveigling truth from the accused.[4]

It was enacted to protect the accused, which is supported by the fact that a confession made by an accused to police officer is inadmissible.[5] Some of the words in 25 creates catena of conspicuous doubts. For the purpose of this research paper only one word mentioned under 25 is relevant i.e., who qualifies as a police officer.

The article will now analyse the following issues which are no more res integra in light of various judgments of the Supreme Court. Despite there being a settled position, it is highly important to re-consider the stand taken by the Apex Court as the position still remains a legal conundrum considering the legislative intent behind 25.

Firstly, whether an officer empowered to enquire into or investigate an offence under a special statute, can be deemed to be stricto sensu an officer in charge of a police station?

Secondly, whether a confession made to an officer entrusted with powers similar to that of the police officer will attract the bar contained under 25? Thirdly, whether the explanation regarding who qualifies as a police officer, given by the Supreme Court is dehors the legislative intent behind 25?

Police under the Code, an Officer under any other statute and confession made by an accused to these Authorities
For the sake brevity and to avoid repetition, the first two issues will be discussed together.
  1. Police Officer under the Code and Confession.
    The definition of the term as already pointed out, has not been dealt with in any statute despite so many references to this term in the Code and the Evidence Act. In absence of a concreate definition in the statues, it is pivotal to search elsewhere. The term police officer is defined as someone responsible for preserving public order, promoting public safety, and preventing and detecting crime.[6] 4(1) of the Code, provides that:
    all offences under the Indian Penal Code (45 of 1860 ) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

    In other words, when an offence contained under the Indian Penal Code is committed, generally, the power to register an FIR, investigate the same and filing of a charge sheet vests with a Police Officer as enshrined under the Code.

    Further, upon bare perusal of 25, it is prima facie clear that a confession made by an accused to a police officer is inadmissible as evidence but the following two sections i.e., 26 and 27, are exceptions to this exclusionary rule. Going by the literal meaning of 25, there is no difficulty in rendering confession of an accused inadmissible as evidence provided it is made before a police officer.
  2. Excise Officers under various Statutes and Confession
    An important issue came up for consideration before the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor[7], that whether the Excise and Abkari Officers under the Abkari Act, 1878, possessing power of investigation and arrest[8] could be considered police officers or not. It was held that it is practically not feasible to derive whether an officer is a police officer just by looking at the nomenclature assigned to him.

    The pivotal fact which needs to be considered is whether he is empowered in a similar manner as a police officer by the statute, thereby holding that excise officers are police officers since they are empowered to conduct investigation as police officers under the Code. The scope of 25 was subsequently broadened by interpreting the term police officer to the extent of inclusion of excise officers within its ambit.

    At a later point in time, after the establishment of the Supreme Court in 1950, it came to notice that there was a dilemma created by dissenting voices across various High Courts while interpreting the term police officer mentioned under 25 and including excise officer within its ambit.

    The Supreme Court in State of Punjab v. Barkat Ram[9], (Barkat Ram) emphatically observed that there exists a slight difference between the expressions power of a police officer and power similar to that of a police officer. It can be inferred that the former includes power to register an FIR, investigate the offence and file police report under 173 of the Code, but the latter does not include power of filing police report although power to investigate may or may not be available to such an officer.

    In Barkat Ram, the question arose concerning the status of customs officer under the Sea Customs Act, 1878 for the purpose of 25. The Court after discussing at length came to the conclusion that the duties of customs officers are very different from that of police officers and even though they possess certain powers which are similar those of police officers[10], they cannot be strictly called as such. Hence, a confesson made to a Customs Officer under the Sea Customs Act, 1878, is admissible in evidence and the bar contained under 25 will not be attracted.

    In Rajaram Jaiswal v. State of Bihar[11], the Supreme Court held that a confession made to an Excise Inspector or Sub-inspector under the Bihar and Orissa Excise Act, 1915 is not admissible in evidence as they are deemed to be police officers since they possess powers of investigation similar to that of police officers.

    In order to settle the conundrum and provide a straightjacket test for determining the above raised issue, a five-judge bench of the Supreme Court Badku Joti Savant v. State of Mysore[12],(Badku) held that it is not the power to investigate which decides whether an officer is a police officer or not. It rather depends upon the power to file chargesheet as under 173 of the Code. Mere conferment of power to investigate offences cannot make an officer a police officer.

    Hence, the central excise officers under the Central Excise and Salt Act, 1944, were not deemed to be police officers since they were not the competent authority to file chargesheet under 173 of the Code. Thus, confession made by an accused before the central excise officer is not inadmissible under 25.

    This test laid down by the Constitutional Bench of the Supreme Court was re-affirmed by two other Constitutional Bench decisions, Romesh Chandra Mehta v. State of West Bengal[13] and Illias v. Collector of Customs, Madras[14].

    Also, in Directorate of Enforcement v. Deepak Mahajan & Ors.[15], it was held that:
    though the powers of customs officers and enforcement officers are not identical to those of police officers quo the investigation under Chapter XII of the Code, yet the officers under the FERA and Customs Act are vested with certain powers similar to the powers of police officers.
  3. An Officer of Railway Protection Force under the Railway Property (Unlawful Possession) Act, 1966 and Confession.
    In Balkishan A. Devidayal & Ors. v/s State of Maharashtra[16], another issue regarding whether an officer of Railway Protection Force (RPF) is deemed to be an officer in-charge of a police station came up for consideration before the Apex Court.

    The Court held that such an officer cannot be deemed to be a police officer while making an inquiry with respect of an offence under 3 of the Railway Property (Unlawful Possession) Act, 1966. It was further enunciated and reiterated that an officer of RPF is not invested with the power to initiate prosecution by filing chargesheet under 173 of the Code which has been held to be the clinching attribute of an investigating police officer. Hence, there is no iota of doubt in rendering a confession before an officer of RPF admissible under 25.
  4. An Officer of the Department of Revenue Intelligence (DRI) under Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS) and Confession
    The Supreme Court in Raj Kumar Karwal v. Union of India[17], had considered the issue pertaining to 53 of the NDPS Act, which confers powers of an officer in-charge of a police station to a DRI officer.

    By applying the straightjacket formula as laid down in Badku's case, it was categorically held that important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under 173 of the Code[18]. The DRI officers were not conferred all the powers as provided under the Code, hence, they cannot be considered as police officers under 25.
The applicability of the explanation given in Raj Kumar Karwal was extended to an officer recording a statement under 67 of the NDPS Act. The Supreme Court found conflicting of decision with respect to a confession made to an officer mentioned under 67 of the NDPS Act. The said issue is pending for adjudication before the Supreme Court in Toofan Singh v. State of Tamil Nadu[19], although the hearing is concluded but the decision is yet to be pronounced. .

In a nutshell, if a special statue empowers an officer to register a case under 154 of the Code, investigate the same and file chargesheet subsequently under 173 of the Code, such an officer will be deemed to be a Police Officer unless contrary is provided. The Legislature by way a deeming legal fiction may confers power of an officer in charge of a Police Station to any other officer mentioned under those respective special enactments and consequently, 25 is applicable to confession made before such officers.

Whether the explanation regarding who qualifies as a police officer, given by the Supreme Court is dehors the legislative intent behind 25.

As already pointed out at the beginning of this article, the jurisprudence behind enacting 25 is to nullify the abuse of power exercised by a police officer to extract truth from an accused. The Supreme Court, by exercising its power of interpreting the law, has authoritatively declared that an officer who does not possess power to file chargesheet under 173 of the Code, cannot be covered under the definition of a police officer, hence, 25 has no applicability upon a confession made before such an officer. Giving a narrow and restrictive meaning to the term police officer patently defeats the underlying jurisprudence behind 25.

The Chartered Calcutta High Court, in an eloquent manner, had discussed the very object behind 25 and the then Chief Justice emphatically observed that:
in construing the 25th section of the Evidence Act of 1872, I consider that the term police officer should be read not in any strict technical sense, but according to its more comprehensive and popular meaning[20].

The said observation of the Chartered Calcutta High Court has been not been considered by the Supreme Court and various High Courts across the country. The Courts have time and again reiterated that the exercise of power conferred between officers is the only guiding factor for determining the applicability of 25 unless specifically provided in the special statute. The current legal position is not based on giving purposeful interpretation to 25. It is rather based upon illusionary distinctions. The intention of the legislature behind enacting 25 has been defeated by indirectly permitting an officer other than a police officer to extract truth forcibly from an accused.

Conclusion
To sum up, the role of judiciary is to look into the intention of the legislature which can be ascertained by the words in the statute itself as held in Haydon's case[21]. There are two ways of giving meaning to the intention of the legislature: first, meaning of words, and second, purpose and object or the reason and spirit which is flowing through the statute. In other words, interpretation of a statute involves both literal and purposive approach.

While doing so, the stand taken by the Supreme Court while interpreting the applicability of 25 to an officer other than a police officer, has in fact did not consider the purposive approach. The Court has opened a Pandora's Box rather than settling the issue effectively. Merely because the nomenclature of these officers is different, but they cannot be called as police officer stricto sensu, distances us from applying the bar contained under 25.

The legislature has not taken note of this grey area which is persisting since the enactment of the Evidence Act in 1873. The Legislature may either amend 25 to include the officers possessing powers similar to that of a police officer or merely add an explanation in order to give full effect to the provision. Until then, various questions needs to be pondered upon. Whether the approach of the Supreme Court is valid, ignoring the legislative intent behind 25? What if an accused is taken into custody by an officer other than police office and is forced to make a confession?

End-Notes:
  1. *
  2. State of Punjab v. Barkat Ram, (1962) 3 SCR 338.
  3. (1983) 4 SCC 701.
  4. supra note 2.
  5. The Indian Evidence Act,1872, 25.
  6. Black's Law Dictionary 1178 (12th ed., 1999).
  7. AIR 1927 Bom 4.
  8. Abkari Act, 1878, 41
  9. (1962) 3 SCR 338.
  10. id.
  11. (1964) 2 SCR 752.
  12. Badku Joti Savant v. State of Mysore, (1966) 3 SCR 698.
  13. (1969) 2 SCR 461
  14. (1969) 2 SCR 613
  15. (1994) 3 SCC 440
  16. (1980) 4 SCC 600
  17. Raj Kumar Karwal v. Union of India 1990 2 SCC 409
  18. id
  19. (2013) 16 SCC 31
  20. R v. Hurribole, (1876) ILR 1 Cal 207
  21. 1584 76 ER 637
Written By: Hardik Gautam, The author is a practicing Advocate in the Supreme Court of India, New Delhi
Email: [email protected]

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