# BALKISHAN A. DEVIDAYAL ETC v. STATE OF MAHARASHTRA ETC

- **Citation:** [1981] 1 S.C.R. 175
- **Court:** Supreme Court of India
- **Decided:** 1980-07-31
- **Case number:** Criminal Appeal Nos. 208209 of 1974
- **Bench:** R. S. Sarkaria, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balkishan-a-devidayal-etc-v-state-of-maharashtra-etc-8069
- **Pages:** 31

## Headnote

Railway Protection Force Act (XXTJI of 1957) Ss. 10, 12, 13, 14, 18,
Railway Property (Unlawful Possession) Act (XXIX of 1966), Ss. 9, 8, 3, 14Criminal Procedure .Code (V of 1898) Ss. 173(4), 251A, 252, 162, 4(h), 190(1),
{a)(b), 561A-Indian Evidence Act (I of 1872) Ss. 25, 26, 27-Railway
Protection Force Officer whether "Police Officers" under S. 25 of Evidence Act.
Constitution of India 1950, Article 20(3) & Railway Property (Unlawful
Possession) Act, 1966 s. 3 and 6-Person arrested by R.P.F. Officer for
Commission of offence under s. 3-Whether 'Person accused of offence'.
A
B
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Words & Phrases--"Police Officer" under s. 25 of Evidence Act-Meaning
D
of.
On the allegations that the appellant in the Criminal Appeal alongwith
two other accused were in possession of railway property which they had
~obtained under forged
railway receipts, the Inspector of the
Railway
Protection Force lodged a complaint against the three accused that they were
guilty of offences under section 3(a) of the Railway Property (Unlawful
Pos11ession) Act, 1966 and action should be taken against them.
In the
Complaint it was mentioned that accused 2 and 3 were absconding and annexed
to the complaint was (!) a list of prosecution witnesses and (2) a list of
documents.
The appellant, who was accused 1 appeared before the Presidency
Magistrate who commenced an enquiry and recorded the statements of four
witnesses one. on March 2, 1973 and of the other three on June 12, 1973.
On
Jun" 11, 1973 the appellant moved an application before the Magistrate making
a. grievance that although three witnesses had been examined, no copies of the
document were furnished to him.
On June 25, 1973 he made a further
application requesting for supply of true copies of all the documents in the
<::ase to enable him to prepare the defence and that he should be / permitted
to take photostat copies of the documents.
The Magistrate on August 9,
1973 rejected the appellants' application on the ground that the offence
complained of against him was not cognizable and that the provisions of
' section 251(a) of the Code of Criminal Procedure were not applicable and
<:onsequently, he had no right to obtain copies of the documents concerned.
On August 24, 1973 the Magistrate framed a charge under section 3(a) of the
Act.
The accused pleaded not guilty and again made an application repeating
his request for copies of the statements of witnesses recorded by the Inspector
R.P .F.
This application was also rejected by the Magistrate on September
7, 1973.
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Feeling aggrieved by the orders passed by the Magistrate on August 9,
1973 and September 7, 1973 the appellant invoked the inherent jurisdiction
of the High Court by a petition under section 561A of the Code of Criminal
Procedure, 1898 and prayed that the orders be quashed.
He challenged the
constitutional validity of section 9 of the Act in the petition.
The High Court
rejected the petition.
In the appeal to this Court it was contended on behalf of the appellant
(a) relying on Raja Ram Jaiswal vs. State 'of Bihar, [1964] 2 S.C.R. 752 that
the expression "Police Officer" in section 25 of the Evidence Act must be
considered in a wide popular sense, so as to include within its ambit all officers
of Government who are in substance invested with the power to investigate
certain offences in accordance with the provisions of the Code of Criminal
Procedure 1898 irrespective of the fact that they are differently labelled such
as Excise Officers or Customs Officers or members of R.P.F., otherwise the
very object of s. 25 will be defeated.
An Inspector of the R.P .F. making an
inquiry under the Railway Property (Unlawful Possession) Act 1966 into an
offence under section 3 of that Act, in substance, acts and exercises almost
all the powers of a 'Police Officer' making an investigation under the Code
of Criminal Procedure and any confessional statement recorded by such
Inspector will be hit by s.

## Text

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175
BALKISHAN A. DEVIDAYAL ETC.
v.
STATE OF MAHARASHTRA ETC.
July 31, 1980
(R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]
Railway Protection Force Act (XXTJI of 1957) Ss. 10, 12, 13, 14, 18,
Railway Property (Unlawful Possession) Act (XXIX of 1966), Ss. 9, 8, 3, 14Criminal Procedure .Code (V of 1898) Ss. 173(4), 251A, 252, 162, 4(h), 190(1),
{a)(b), 561A-Indian Evidence Act (I of 1872) Ss. 25, 26, 27-Railway
Protection Force Officer whether "Police Officers" under S. 25 of Evidence Act.
Constitution of India 1950, Article 20(3) & Railway Property (Unlawful
Possession) Act, 1966 s. 3 and 6-Person arrested by R.P.F. Officer for
Commission of offence under s. 3-Whether 'Person accused of offence'.
A
B
c
Words & Phrases--"Police Officer" under s. 25 of Evidence Act-Meaning
D
of.
On the allegations that the appellant in the Criminal Appeal alongwith
two other accused were in possession of railway property which they had
~obtained under forged
railway receipts, the Inspector of the
Railway
Protection Force lodged a complaint against the three accused that they were
guilty of offences under section 3(a) of the Railway Property (Unlawful
Pos11ession) Act, 1966 and action should be taken against them.
In the
Complaint it was mentioned that accused 2 and 3 were absconding and annexed
to the complaint was (!) a list of prosecution witnesses and (2) a list of
documents.
The appellant, who was accused 1 appeared before the Presidency
Magistrate who commenced an enquiry and recorded the statements of four
witnesses one. on March 2, 1973 and of the other three on June 12, 1973.
On
Jun" 11, 1973 the appellant moved an application before the Magistrate making
a. grievance that although three witnesses had been examined, no copies of the
document were furnished to him.
On June 25, 1973 he made a further
application requesting for supply of true copies of all the documents in the
<::ase to enable him to prepare the defence and that he should be / permitted
to take photostat copies of the documents.
The Magistrate on August 9,
1973 rejected the appellants' application on the ground that the offence
complained of against him was not cognizable and that the provisions of
' section 251(a) of the Code of Criminal Procedure were not applicable and
<:onsequently, he had no right to obtain copies of the documents concerned.
On August 24, 1973 the Magistrate framed a charge under section 3(a) of the
Act.
The accused pleaded not guilty and again made an application repeating
his request for copies of the statements of witnesses recorded by the Inspector
R.P .F.
This application was also rejected by the Magistrate on September
7, 1973.
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Feeling aggrieved by the orders passed by the Magistrate on August 9,
1973 and September 7, 1973 the appellant invoked the inherent jurisdiction
of the High Court by a petition under section 561A of the Code of Criminal
Procedure, 1898 and prayed that the orders be quashed.
He challenged the
constitutional validity of section 9 of the Act in the petition.
The High Court
rejected the petition.
In the appeal to this Court it was contended on behalf of the appellant
(a) relying on Raja Ram Jaiswal vs. State 'of Bihar, [1964] 2 S.C.R. 752 that
the expression "Police Officer" in section 25 of the Evidence Act must be
considered in a wide popular sense, so as to include within its ambit all officers
of Government who are in substance invested with the power to investigate
certain offences in accordance with the provisions of the Code of Criminal
Procedure 1898 irrespective of the fact that they are differently labelled such
as Excise Officers or Customs Officers or members of R.P.F., otherwise the
very object of s. 25 will be defeated.
An Inspector of the R.P .F. making an
inquiry under the Railway Property (Unlawful Possession) Act 1966 into an
offence under section 3 of that Act, in substance, acts and exercises almost
all the powers of a 'Police Officer' making an investigation under the Code
of Criminal Procedure and any confessional statement recorded by such
Inspector will be hit by s. 25 Evidence Act.
The case of State of U.P. v.
Durga Prasad, 1975 (1) S.C.R. 881 was not correctly decided and that its ratio
needs re-consideration by a larger Bench because it has overlooked the test
laid down by the three Judge Bench in Raja Ram Jaiswal's case. (b) As soon
as a person is arrested by an officer of the Force on a suspicion or charge
of committing an offence punishable under the 1966 Act, he stands in the
character of a "person accused of an offence" and any confessional or
incriminating statements recorded by an officer of the Force in the course
of an inquiry under section 8(1) of the 1966 Act, cannot be used as evidence
in view of the constitutional ban against "compelled testimony" imposed by
Art. 20(3) of the Constitution.
On behalf of the respondent it was submitted that: (a) an officer of the
R.P.F. while making an inquiry under the 1966 Act cannot be equated with
a police officer in charge of a Police Station making an investigation under
the Code.
The important difference in their powers is, that the R.P.F.
Inspector has no power to submit a report or a charge-sheet under section 173
of the Code.
The decision of this Court in Raja Ram J aiswal' s case stands
on its own peculiar facts and was distinguished in a later decision by a
Constitution Bench of this Court in Badku Joti Savant v. State of Mysore,
[1966] 3 SCR 698.
The correct test for determining whether or not R1>.F.
Officer is a police officer for the purpose of section 25 of the Evidence Act
is the one which was consistently applied in State of Punjab v. Barkat Ram
[1962] 3 SCR 338, & Ramesh Chandra Mehta v. West Bengal [1969) 2 SCR
461.
(b) The conditions necessary for the attraction of the ban in Art. 20(3)
do not exist in the instant ca~e, because before the filing of the complaint
in the Court, the appellant was not a "person accused of an offence" and
that it was nowhere alleged that the confessional or incriminating statements
were extorted by the R.P.F. Officer· under physical duress, thre'.lt, inducement"
.or mental torture.
I
BALKISHAN A. V. MAHARASHTRA
177
On the questions:
(1) whether an officer of the Railway Protection Force making an inquiry
under the Railway Property (Unlawful Possession) Act, 1966 in resoect cf
an offence under section 3 of that Act of unlawful possession of the railway
property is a police officer for the purpose of section 25 of the Evidence Act
and section 162 of the Code of Criminal Procedure 1898 and whether any
confession or incriminatory statement recorded by him in the course of an
inquiry under section 8 of the Act is inadmissible in evidence, and (2) whether
a person arrested by an officer of the Railway Protection Force under section 6
of the Act for the alleged commission of an offence under section 3 of the
Act is "person accused of an offence" within the meaning of Art. 20(3) of the
Constitution:
B
HELD: I. An officer of the R.P.F. conducting an enquiry under section
8(1) of the 1966 Act has not been invested with all the pow~rs o.f an officerC
in-charge of a police station making an investigation under Chapter XIV cf
the Code.
Particularly, he has no power to initiate prosecution by filing a
charge-sheet before the Magistrate ·cJncerned under section 173 of the Code,
which he has been held to be the clinching attribute of an investigating 'police
officer'.
An officer of the R.P.F. could not therefore be deemed to be a
"police officer" within the meaning of section 25 of the Evidence AC!, and
theNfore, any confessional or incriminating statement recorded by him in the
D·
course of an inquiry under section 8(1) of the 1966 Act, cannot be excluded
from evidence under the said section. [201C-E]
2. The term 'police officer' has not been defined in the Evidence Act.
The policy behind. sections 25 and 26 of Evidence Act is to make a substantive
rule of law that confessions whenever and wherever made to the p9lice shall
be presumed to have been obtained under the circumstances mentioned in secti1m
E
24 and therefore, inadmissible except so far as is provided in section 27 of that
Act. [182F, E]
Ariel v. State A.I.R. 1954 S.C. 15, referred to.
3. The primary object of constituting the Railway Protectbn Force is tor·
secure better "protection and security of the railway property".
The restricted
power of arrest and search given to the officers or members of the Force is
F
incidental to the efficient discharge of their basic duty to protect and safeguard.
Railway Property.
No general. power to investigate all cognizable offenC"1'
relating to Railway Property, under the Criminal Procedure Code has bee .
conferred on any superior officer or member of the Force by the 1957 A• •
[185F-G]
.
4. The main purpose of passing the 1966 Act was to "invest powers of
investigation and prosecution" of offences relating to railway property in the
RPF "in the same manner as in the Excise and Customs."
Inspite of provision
in the Code of Criminal Procedure to the contrary, offences under this Act
have been made non-cognizable and, as such, cannot be investigated by a police
officer under the Code. . It follows that the initiation of prosecution for an
offence inquired into under this Act can only be on the basis of a complaint
by an officer of RPF and not on the report of a police officer under section 173(4)
of the Criminal Procedure Code, 1898. [187 A, l 88B]
5. Section 14 makes clear that the provisions of the Act shall override
all other laws, which means that anything in the 1966 Act which is inconsistent
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with the Code, will prevail and the application of the Code pro tanto will be
excluded.
The scheme of the 1966 Act, particularly the provisions in sections 5,
8, 9(3), (4) is different from that of the Code.
The Code, therefore, cannot
proprio vigore apply to an enquiry conducted under section 8(1) of the 1966
Act by an offic!lr of the Force. [189G, 190A]
6. An analysis of clause (3) of Art. 20 shows three thin2s: Firstly, its
protection is available only to a "person accused of any offence".
Secondly,
the protection is against compulsion "to be a witness". Thirdly, this protection
avails "against himself'. [202F]
7. Only a person against whom a formal accusation of the commission
of an offence has been made can be a person "accused of 3n offence" within
the meaning of Art. 20(3).
Such formal accusation may be st'CCifica!ly made
against him in an F.I.R. or a formal complaint or any other formal document
or notice served on that person, which ordinarily results in his prosecution
in Court. [204F]
In the instant case no such formal accusation had been made against the
appellant when his statement(s) in question were recorded by the R.P.F. Officer.
He did not at that time, stand in the character of a person "accused of an
offence" and as such, the protection of Article 20(3) will not be aYailable to him.
[203F-G]
Kathi Raning Rawat v. The State of Saurashtra [1952] SCR 435, K. Joseph
Augusthi & Or$. Y. M. A. Narayanan [1964] 3 SCR 137, Mohamed Destagir v.
The State of Madras [1960] 3 SCR 116, Bhagwan Das, Cr!. As. 131-132/61
decided on 20-9-63, Bhogi/al Shah & Anr. v. D. K. Guha & Ors. [1973] 3 SCR
438, M. P. Sharma v. Salish Chandra [1954] SCR 1077, Smt. Na~dini Satpathy
v. P. L' Dani & Anr. AIR 1978 S.C. 1025, In re The Special Caurts Bill, AIR.
1979, S.C. 478, Raja Narayan/a/ Bansilal v. Man~ck Phiroz Mistry & Anr. [1961]
l SCR 417, State of Bombay v. Kathi Kalu Oghad & Ors. [1962] 3 SCR. lO,
ref. to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 208209 of 1974.
Appeals by Special Leave from the Judgment and Order dated
18/19-1-1974 of the Bombay High Court in Criminal Revision
Application Nos. 821 /72 and 305 /74.
AND
SPECIAL LEAVE PETITION (CRL.) NO. 630 OF 1977.
From the Judgment and Order dated 30-6-1972 of the Madhya
Pradesh High Court in Cr!. Rev. No. 81 /72.
R. K. Garg, B. A. Desai. V. J. Francis, and D. K. Garg for the
Appellant in Cr!. A. Nos. 208-209.
S. K. Gambhir and Miss Ram Rikhyani for the Petitioner in SLP
No. 630/77.
J. L. Nain and M. N. Shroff for the Respondent in Cr!. A. Nos,
208-209.
•
BALKJSRAN A. v. MAHARASHTRA (Sarkaria, J.)
179
The Judgment of the Court was delivered by
SARKARIA, J._c.These appeals by special leave directed against
judgments, dated January 17, 1974 and March 29, 1974, of the Bombay
lfigh Court, raise, among others, three important questions, namely:
(1) Whether an Officer of the Railway Protection Force, making
an inquiry under the Railway Property (Unlawful Possession) -
Act, 1966 (hereinafter referred to as the 1966 Act), in respect
of an offence under Section 3 of that Act of unlawful
possession of the railway property, is a Police Officer for
the purposes of Section 25, Evidence Act and Section 162
of the Code of Criminal Procedure. 1898; and as such, any
confession or incriminating statement recorded by him in the
course of an inquiry under Section 9 of the Act is inadmissible
in evidence.
(2) Whether a person arrested by an Officer of the Railway
Protection Force under Section 6 of the Act for the alleged
commission of an offence under Sectfon 3 of the Act, is a
"person accused of an offence" within the meaning of Article
20(3) of the Constitution.
(3) Whether Section 9 of the Act is violative of Article 14 of the
Constitution.
_.._,
'The appeals arise in these circumstances :
The Inspector, Central Intelligence Bureau, Head Quarters,
Ilombay (Shri P. A. Kakade) filed a complaint before the Presidency
Magistrate, 35th Court, Victoria Terminus, Bombay, complaining of
the commission of an offence by the appellants, herein, (in Cr!. Appeals
208 and 209 of 1974), under Section 3 of the Act.
Thl' allegations
in the complaint, as summarised in the judgment of the High Court
in Criminal Revision Application No. 821 of 1973, are as under:
On November 21, 1970, the Assistant Security Officer, Central
Railway, Bhusawal intimated to the Chief Security Officer, Bombay
V.T. that two wagons Nos. ERKC-9447 Ex. HSPG BNDN to Akola
and Wagon No. ERKC 75531 Ex. were unloaded by Unloading
Foreman, one B. D. Raverkar of Akola Goods Shed.
Seventyninc
M. S. Plates (Mild Steel Plates) were unloaded from Wagon No. ERKC
75531.
On November 14, 1970, one Ram Singh who was having R.R .
No. 982859 Invoice No. 3 for 78 M.S. Plates and Invoice No. 2 RR No.
8928.57 for 60 M.S. Plates signed the RRs. and endorsed the same to
M/s. Vallabhaji Brothers, Clearing Agents at Akola Goods Shed for
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SUPREME COURT REPORTS
[1981] 1 S.C.R.
taking the delivery.
Clerk Onkar of the said firm was sent to rnke
delivery.
He took delivery of 78 plates from one B. J. Meshram,.
after paying the necessary railway dues of Rs. 1,813.80 P., and the
78 Plates were removed by the said party in lorries.
The Delivery·
of the second consignment of 60 M.S. Plates was taken on Novembr.r
16, 1970 after paying the railway dues of Rs. 2,247.40 P.
The said'
Ram Singh posed as a proprietor of Modern Industries which was,
found to be a fictitious firm, which never existed.
The Deputy
Commercial Superintendent, Bhusawal, on November 19, 1970, informed'
all concerned that the delivery from these wagons was obtained ow
fraudulent Railway Receipts.
C
The inquiry into this case was entrusted to the Complainant
Inspector. P. A. Kakade, who is an officer of the Railway Protection
Force.
In the course of that inquiry. the statements· of certain persons;
including that of Balkishan, appellant herein, were recorded by the
said Inspector.
D
On January 31, 1971, while inquiring into another case of Wadi
Bunder in which Balkishan was involved, the Inspector recorded the
confessional statement of Balkishan, appellant, herein.
After making
that confessional statement, Balkishan is said to have led Inspector
Kakade, in the presence of Panchas, to Tulsiram Gupta Mills Estate
Compound, wherefrom 35 M.S. Plates were recovered.
The Inspector
E. ·
further discovered that the M.S. Plates were shifted from Devi Dayal's
compound to Nitta! Estate, KurJa.Andheri Road, Maro! Naka and they
were transported from there for Devi Dayai's Estates.
He recorded
the statement of Tukaram, the owner of one of these motor·trucks on
February ·7, 1971.
Tukaram stated that his lorry was engaged on·
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November 1, 1971, by the appellant.
In the meantime, investig.ation regarding the offences of forgery
and cheating was being done at Akola by the concer:ied Police Sub·
Inspector, who was directed to suspend his inquiry till further orders
were received by him.
In the complaint, Inspector Kakade stated that accused 2 and 3
are absconding Annexed to the complaint was a .list of prosecution
witnesses numbering, in all, 40 and a list of documents numbering 62.
The appellant (accused
1) appeared before the Presidency
Magistrate.
He was then supplied the list of prosecution witnesses
and the list of documents to be relied upon by the prosecution.
The
list of documents included the list of statements of various persons
recorded by the Inspector of the Railway Protection Force.
The
Presidency Magistrate commenced an inquiry and record1!d the
I
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. BALKISHAN A. v. MAHARASHTRA (Sarkaria, J.)
181'
statements of four witnesses, of one on March 2, 1973 and of the other
three on June 12, 1973.
On June 11, 1973, an application was filed by the appellant to the
Magistrate, making a grievance that although three witnesses hid been
examined, no copies of the documents were furnished to him by the
prosecution.
On June 25, 1973, the appellant made a further
application to the Magistrate, requesting for supply of true copies of
all the documents in the case to enable him to prepare his defence.
He
..
further pray.ed that he should be allowed to take photostats .of all the
- documents m the presence of the court officer.
The Magistrate on
August 3, 1973, passed an order rejecting the accused's application,
dated June 11, 1973, on the ground that the offence complained of
. ;..
against him was non-cognizable and the provisions of Section 251A
of the Code of Criminal Procedure were not applicable, and
consequently, he (accused 1) had no right to obtain copies of the
documents concerned.
The Magistrate further passed an order on
August 3, 1973, ·declining to allow the accused to take photostats of
·all the documents, on the ground that; the documents could not be
allowed to be taken outside the court.
He, however, added that "if
any request to secure the photostat copies in the Court comes, it will
be considered".
On August 24, 1973, the Magistrate framed a charge under
Section 3(a) of the Act to the effect! that on or after November 14,
1970 the accused was found in possession of M.S. Plates numbering
about 110, which were the Railway property unlawfully possessed by
him.
The accused pleaded 'not guilty' and again made an application
repeating his request for copies of the statements of witnesses recorded
'by Inspector Kakade.
He also prayed that he he rulJowed to inspect
all the statements recorded by the prosecution and take copies thereof.
The Magistrate rejected this application, also, by an order on September
7, 1973.
· Feeling aggrieved by the orders passed by the Magistrate on
August 9, 1973 and September 7, 1973, and the framing of the charge
against him, the appellant invoked the inherent jurisdiction of lthe High
Court by a petition under Section 561A of the Code of Criminal
Procedure, 1898, and prayed that the said orders be quashed.
In this
petition, he challenged the constitutional validity of Section 9 of the
Act.
The petition was heard by a Bench consisting of Vaidya and
Gandhi, JJ.
The learned Judges answered all the questions, posed
above, in the negative.
But, on the other aspects of the case, the ,
Assistant Government Pleader, appearing on behalf of th_e State. stated ·
before the High Court that the prosecution did not desire to keep back
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any material from the accused and that they would produce copies of
statements of all the witnesses and the documents on which the
prosecution intends to rely or which the accused wanted to examine.
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In view of this statement of the Government Pleader, the High Court
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set aside the orders of the Magistrate and directed the complainant
under Section 165 of the Evidence Act to produce in the trial court
the true copies of the statement of the witnesses already examined and
to be examined hereafter oy the complainant and of the documents on
which the complainant desired to depend.
The High Court further ~
declared that the accused and his counsel shall be entitled to inspect
those documents and take copies \hereof. if necessary, in the court.
-
If further declared that Section 9 of the Act, is not ultra vires the
Constitution.
Hence, these appeals by the accused persons.
Question No. 1
The first question for consideration is. whether an Inspector of
the Railway Protection Force, (for short, RPF) is a "police officer",
and therefore any confessional statement made to him comes within the
prohibition of Section 25, Evidence Act.
Section 25 reads thus:
"No confession made to a police officer shall be proved as
against a person accused of any offence."
As explained by this Court in Ariel v. State (1) the policy behind
~
Sections 25 and 26, Evidence Act is to make a substantive rule of law
that confes.sions whenever and wherever made to the police shall be
presumed to have been obtained under the circumstances. mentioned in
Section 24 and, therefore, inadmissible except so far as is provided in
Section 27, of that Act.
The term "Police Officer" has not been defined
in the Evidence Act.
Shri R. K. Garg, appearing for the appellant, submits that the
expression "police officer" in Section 25, Evidence Act must be
construed in a wide popular sense, so as to include within its ambit
all officers of Government who are, in substance, invested with the
power to investigate certain offences in accordance with the provisions
of the Code of Criminal Procedure 1898 (for short, called the Code),
irrespective of the fact that they are differently labelled such as, Excise
Officers or Customs Officers or members of the RPF, otherwise, the
very object of Section 25 will be defeated. In support of this contention.
the learned counsel has referred to the decision of this Court
(l)A.I.R. 1954 S.C. IS at page 19.
BALKISHAN A. v. MAHARASHTRA (Sarkaria, J.)
183
in Raja Ram Jaiswal v. State of Biharf..1).
The point pres11ed into
argument is that an Inspector of the RPF making an inquiry under
the Railway Property (Unlawful Possession) Act, 1966 into an offence
under Section 3 of that Act, in substance, acts and exercises almo11t all
the power11 of a 'Police Officer' making an inves'tigation under the Code
of Criminal Procedure. If that be the .correct po11ition-proceed11 the
argument-any confessional statement recorded by such Im1pector will
be hit by 11ection 25, Evidence Act, and if that statement fal111 i;hort of a
'confe~11ion', then also, it will not be admissible in evidence again11t its
maker, at his trial because of the bar in section 162, Criminal Procedure
Code.
As against the above, Shri Nain submits 'that an officer of the RPF
while making an inquiry ·under the 1966 Act cannot be equated with
a Police Officer in charge of a Police Station making an investigation
under the Code. One important difference in their powers is, that the
RPF Inspector has no power to submit a report or chargesheet under
section 173 of the Code.
Shri Nain has further pointed out that Raja
Ram Jaiswdl's case stands on its own peculiar facts, and was
distinguished in a later decision by a Constitution Bench of this Court
in Badku Joti Savant v. State of Mysore.(2)
According to Shri Nain.
the correct test for determining whether or not a RPF Officer is a
'Police Officer' for the purpose of section 25, Evidence Act, is the one
which was consistently applied in State of Punjab v. Barkat Ram(1);
Badku Joti Savant (ibid); Ramesh Chandra Mehta v. West Bengal(4).
To top it all, it is maintained, the question is now no longer res integra
and has been concluded by the recent judgment of this Court in State
of U.P. v. Durga Prasad.(5)
In reply, Shri R. K. Garg has tried to distinguish Durga Prasad's
case, ibid, on the ground, that therein the question whether or not an
officer of the RPF is a Police Officer within the contemplation of
section 25 of the Evidence Act, was not directly in is11ue.
It
is maintained that the only question for decision in that case was :
Whether an enquiry conducted under section 8(1) of the 1966 Act can
be deemed to be an investigation for the purpose of section 162 of the
Code of Criminal Procedure. and this question was answered in the
negative. In the alternative, it is urged that Durga Prasad's case was
not correctly decided and its ratio needs reconsideration by a larger
Bench because it has overlooked the test laid down by the 3-Judge
Bench in Raja Ram Jaiswal's case.
(1) (1964] 2 S.C.R. 752.
(2) [1966] 3 S.C.R. 698.
(3) [1962) 3 S.C.R. 338.
(4) [1969] 2 S.C.R. 461.
(5) [1975] 1 S.C.R. 881.
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Although Durga Prasad's case very largely appears to conclude
this question, yet, in deference to the last argument of Shri Garg, we
propose to deal with the other decisions of this Court, also. which have
been referred to by counsel on both sides.
At the outset, for the sake of perspective, we may notice the relevant
provisions of the 1966 Act and the Railway Protection Force Act 1957
(for short called the 1957 Act).
First we will notice the relevant
fe<;1tures of the 1957 Act whereunder the RPF was constituted.
The
preamble of the 1957 Act states that its object is to provide for the
constitution and regulation of a Force called the Railway Protection
Force for the better protection and security of railway property.
The
various clauses in Section 2 contains definitions.
The definition of
"railway property" in clause (e) "includes any goods, money or valuable
security, or animal, belonging to, or in the charge or possession of, a
railway administration."
"Member of •the Force" means "a person
appointed to the Force under this Act other than a superior officer".
Clause (c) "superior officer" means any of the officers appointed under
secti~n 4.
Clause (g) says that ithe words and expressions used but
not defined in this Act and defined in the Indian Railways Act, 1890,
shall have the meanings respectively assigned to them under that Act.
Section 3 gives powers to the Central Government to constitute and
maintain the' Force.
Section 5 enumerates the classes of officers;
Inspector/ Sub-Inspector/ Assistant Sub-Inspector.
Section 10 says that
the officers and members of the Force shall be deemed to be 'railway
servants' wit)lin the meaning of the Indian Railways Act. 1890.
Section 11 is important. It enumerates 1that. the dut)'. of every superiot_
officer and member of the Force shall be-
(a) promptly to execute all orders lawfully issued to him by his
superior authority;
(b) to protect and safeguard railway property;
(c) to remove any obstruction in the movement of railway property;
and
(d) to do any other act. conducive to the better protection and
security of railway property.
Section 12 enables any superior officer or member of the Force to arrest,
without an order from a Magistrate and without a warrant-
"(a) any person who has been concerned in an offence
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relating to railway property punishable with imprisonment for a
term exceeding six months, or against whom a reasonable suspicion
exists of his having been so concerned; or
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BALKISHAN A. v. MAHARASHTRA (Sarkaria, J.)
185
(b) any person found taking precautions to conceal his
presence within railway limits under circums,tances which afford
reason to believe that he is taking such precautions with a view
to committing theft of, or damage to, railway property."
-section 13 provides: "Whenever any superior officer, or any member
·Of 1he Force, not below the rank of a Senior Rakshak. bas reason to
believe that any such offence as is referred to in section 12 has been
or is being committed and that a search-warrant cannot be obtained
without affording the offender an opportunity of escaping or of
·concealing evidence of ,the offence, he may detain him and search his
person and belongings forthwith and, if he thinks proper, arrest any
person whom he has reason to believe to have committed the offence.
Under sub-section (2), the provisions of the Code, relating to searches
under that Code shall, so far as may be, apply '10 searches under this
:section.
Section 14 indicates the procedure to be followed after arrest.
According to it, any superior officer or member of the Force making
.an arrest under this Act, shall without unnecessary delay. make over
,the person arrested to a police officer, or, in the absence of a Police
. officer, take such person or cause him to be taken to the nearest police
. station.
Section 17 provides penalties for neglect of duty, etc.
Section
20 gives protection to a member of the Force for any act
·done by him in the discharge of his duties.
Section 21 gives powers
to the Central Government to make rules for carrying out the purposes
· -0f this Act.
Clause (b) of sub-section (2) of this section says that
• such rules may provide, inter alia, for regulating the·powers and duties
. of superior officers and members of the Force authorised to exercise
. any functions by or under this Act.
From the above survey, it will be seen that the primary object
. of constituting the Railway Protection Force is to secure better
·"protection and security of the railway property." The restricted power
of arrest and search given to the officers or members of the Force
is incidental to the efficient discharge of their basic duty to protect and
·safeguard Railway Property.
No general power to investigate all
. cognizable offences relating to Railway Property, under the Criminal
Procedure Code has been.conferred on any superhor officer or member
of the Force by the 1957 Act.
Section 14 itself makes it clear that
' even with regard to an offence relating to 'railway property', the superior
officer or member of the Force making an arrest under section 13
• shall forthwith make over the person arrested to a police officer, or
cause his production in the nearest police station.
Now, we will take up the · 1966 Act, which came into force on
September 16, 1966.
As is evident from its preamble, it is· an Act
·to consolidate and amend the. law relating to unlawful possession of
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Railway Property.
The material part of the Objects and Reasons for
moving the Bill which became this Act, is as under:
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"2. At present, offences against Railway property are being
dealt with under Railway Stores (Unlawful Possession) Act, 1955,
but this Act has been found, by experience, to be ineffective in
tackling with the enormity of the problems of theft and pilferages
on Railways.
As it is, this Act makes unlawful possession of
Railway Stores an offence, but it is only applicable to unlawful
possession of Railway property owned by the Railways, and does
not cover the offences relating to goods and parcels entrusted to
Railways for transport.
3. Further, the offences under this Act are investigated and'
enquired into by local police in accordance with the provisions
of the Code of Criminal Procedure, 1898. It has been observed
that the :two Agencies, i.e. the Government Railway Police and
Railway Protection Force, which are at present provided to deal
with crimes on railways find themselves handicapped, for different
reasons, in effectively dealing with the problem of theft and·
pilferag(~ of Railway Property. The Railways are spread out over
a large part of the country and property, etc., entrusted to them
is carried from one part to another usually crossing boundaries of
different states.
The jurisdiction of State Police being restricted
to the State boundary only, it becomes difficult at times for the
Police to make thorough and fruitful investigation into offences
relating to Railway Property.
Besides, investigation of cases in
respect of Railway Property also requires a specialised knowledge
of Railway working.
The Railway Protection Force, on the other
hand, are not at present equipped with requisite powers of
investigation and prosecution, with the result that whatever action
they take in respect of prevention etc., is taken just in aid of the
State Police who conduat investigation and prosecution, etc.
Due
to this fact of two agencies being responsible for achieving tb
same object, the machinery has not proved as effective as it ought
to have.
4. It is, therefore, proposed to replace the Railway Stores
· (Unlawful Possession). Act. 1955. by a more comprehensive Act
so as to bring with its ambit the unlawful possession of goods
entrusted to the Railways as common carriers and to make the
punishment for such offences more deterrent.
It is also proposed
to invest powers of investigation and prosecution of ofjence,,
relating to Railway Property in the Railway Protection Force in
the same manner as in the Excise and Customs."
(emphasis added)
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BALKISHAN A. y. MAIL~RASITTRA (Sarkaria. J.)
187
From what has been quoted above, it is clear that the main purpose
of passing the 1966 Act wa3 to "invest powers ·of investigation and
prosecution" of offences relating to railway property in the RPF "in
the sa1ne manner as in the Excise and CustomS'.
We will advert to this point later.
Suffice it to say here that in
view of the aforesaid object of enacting the 1966 Act, the decisions
of this Court on the question as to whether an Excise Officer/Customs
Officer is a "Police Officer", within the purview of section 25, Evidence
Act, or >ection 162,
Crimina1 Procedure Code, assume ·analogical
importance for the purpose of deciding the precise question before us:
The various clauses of section 2 of the 1966 Act, contain deflnitions.
•Clause (c) defines "officer of the Force" to . mean . "an office\"
· of. and above the rank of ksistant. Sub-Inspector. appointed to . the
Force and ·includes a superior officer." The detinitio!\, of "railway
property" in clause {d) has been expanded so as to include goods
entrusted to the Railway for carriage or transport, belonging to another
person ..
Section 3 provides :
. ;,whoever is' found, or i~ proved to h;~e been; ln posi~~SiO!).
of any railway property" reasonably susiiected of having b\'en stolen
or unlawfully obtained shall, unless he proves that the railway
'property came into his possession lawfully be punishable-{a) for
the first offence with imprisonment for a term which. may extend
to five years, or with fine, or wiih both and in the absence of
·special ·and adequate reasons to·. be mentioned in the judgmeni
cif the Cour( such imprisonment shall not be less than two years:
an:l such fine shall not be less than two thousand rupees; and (b).
for' the second or a subsequent o,ffence. with 'imprisonment for a
term which may extend to five yei\rs. and also with fine and in
the absence of special and . adequate reasons to be mentioned in
the judgment of the Conrt, such' imprisonment shall not be less .
than two years and such fine' shalt' not be less than two thousand
rupees".
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. It will be seen that if any person is found or proved to be in
possession of any 'railway property;. which is reasonablj° suspected of
having been stolen or unlawfully· obtained, the burden shall shift· on
to that person to prove his innocence, that is to say, to establish. that
he cal:le into possession of the 'railway property' lawfully. Section 4
provides punishment for persons wilfully counivirig ·at an: offence under
the provisions of this Act. ·
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13-646 S.C. India/80
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Section 5 says': "Notwithstandil}g anything contained in the Code
of Criminal Procedure, 1898, an offence under this Act shall not be
cognizable".
It may be noted that in spite of provision in the Code of Criminal
Procedure to the contrary, offences under this Act have been made nonB
cognizable and; as such, cannot be investigated by a polic~ officer
under the Code.
It follows that the initiation of prosecution for an
offence inquired into under this Act can only be on the basis of a ~
coflimplaintd by ant. offi
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Section 6 gives powers to any suoeoor officer or member of the
Force to arrest without an order l:rum a Magistrate and without a
warrant, any person who has been concerned in an offence. punishable
under this Act, or against whom a reasonable suspicion existed of bis
having been so concerned.
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~ection 7 of the Act provides that the procedure for investigation
of a cognizable offence has to be followed by the officer before whom
the accused person is produced.
Reading section 7 of the 1966 Act with that of secilion 14 of the
1957 Act, it is clear that while in the case of a person arrested under
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section 12 of the 1957 Act the only course open to the superior officer
or member of the Force was to make ovev. the person arrested to a
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police officer, in the case of a person arrested for a suspected offence -A
under the 1966 Act, he is required to be produced without delay before
, the nearest Officer of the Force, who shall obviously be bound (in view
of Article 22(1) of the Constitution) to produce him further before the
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Magistrate concerned.
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Section 8 of the 1966 Act is new.
It provides fqr an inquiry to
be made against the arrested persons.
According to it, 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.
It is to be noted that
such power of inquiry, has been conferred on an officer of the Force,
although he is not an officer incharge of a police station as envisaged
by section 173 of the Code of Criminal Procedure.
Sub-sectioo (2)
of this section confers on the Officer of the Force "the same powers"
for the purpose of the inquiry under sub-section (1) and subject to the
same provisions "as the officer incharge of a police station may exercise
·and is subject under the Code of Criminal Procedure, 1898 when
investigating a cognizable case."
Then there is a proviso which says:
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BALKISHAN A. v. MAHARASHTRA (Sarkaria, J.)
189
"Provided that-
(a) if the officer of the Force is of opm1on 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 tht; case, or forward him in
custody to such Magistrate;
(b) if it appears to the officer of 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."
Section 9 gives powers to an officer of the Force to summon persons
to give evidence and produce documents, or any other thing in any
inquiry for any of the purposes of this Act.
~b-sections (3) and (4)
provide:
"(3) All.