SYED MADAR SAHEB Vs. STATE OF A P

JUDGEMENT

(1.) THIS batch of four Criminal Revision Cases raises a common question as to whether the mandatory provisions of Section 495(4) of the Criminal Procedure Code have been violated. Section 495 (4) reads as follows: "An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted. In Sellamuthu Padayachi v. State a Divisional Bench of the Madras High Court held that the violation of the mandatory provisions of Sec. 495 (4) renders the entire trial null and void. The further question, however, is whether a Prohibition Sub Inspector is a police officer within the meaning of Sec. 495 (4) of the Criminal Procedure Code, In Public Prosecutor v. Paramasivan a Divisional Bench of the Madras High Court consisting of Balakrishna Ayyar and Chandra ReddyJJ., reviewed all the previous cases and held that in relation to an offence under the Opium Act 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 Sec. 162 of the Criminal Procedure Code and Sec. 25 of the Evidence Act and any confession made to him in the course of the investigation is inadmissible. The learned Judges held that a police officer is a person whom any statute or other provision of law calls as such or on whom it confers all or substantially all the powers and imposes the duties of a police officer. In a recent case in Kadkachalam, In re Somasundaram J. held that where in a prosecution under Section 4 (1) (j) of the Madras Prohibition Act, the investigating Officer conducts the prosecution, the procedure being prohibited by the provisions, of Section 495(4) of the Criminal Procedure Code the proceedings are null and void. THIS is a case arising under the Prohibition Act and directly applies to the point argued before me. Following the said decision, I hold that these Revision Cases must be allowed. The conviction and sentence passed upon the petitioner in each of the Revision Cases are set aside. Having regard to the fact that they have already suffered imprisonment for about two weeks, I do not think that the ends of justice require that there should be a re-trial in these cases. T.A. B. Revisions allowed. The violation of the mandatory provisions of Sec. 495 (4) renders the trial null and void. A Prohibition Sub Inspector is a police officer within the meaning of Sec. 495(4). A prosecution for an offence under the Madras Prohibition Act conducted by the investigating Officer is null and void. 1953 M. W. N. 665 and (1955) 2 M. L. J. (N. R. C.) 27 followed. (1955) 2 M. L. J. 139 referred to. Petitions under sections 435 and 439 of the Code of Criminal Procedure, 1898, praying the High Court to revise the orders of the Court of the Sub Divisional Magistrate of Cuddapah dated 30-3-1955 and made in Crl. Appeal No. 23, 22, 21 and 24 of 1955 respectively preferred against the orders of the Court of the Stationary Sub Magistrate of Cuddapah dated 28-2-1955 and made in C. C. Nos 83, 78, 68 and 92 of 1955 respectively. Mr. O. Chinnappa Reddi, for the Petitioners. The Public Prosecutor (Mr. D. Munikanniah), for the State. The Court made the following Order. THIS batch of four Criminal Revision Cases raises a common question as to whether the mandatory provisions of Section 495(4) of the Criminal Procedure Code have been violated. Section 495 (4) reads as follows: "An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted. In Sellamuthu Padayachi v. State a Divisional Bench of the Madras High Court held that the violation of the mandatory provisions of Sec. 495 (4) renders the entire trial null and void. The further question, however, is whether a Prohibition Sub Inspector is a police officer within the meaning of Sec. 495 (4) of the Criminal Procedure Code, In Public Prosecutor v. Paramasivan a Divisional Bench of the Madras High Court consisting of Balakrishna Ayyar and Chandra ReddyJJ., reviewed all the previous cases and held that in relation to an offence under the Opium Act 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 Sec. 162 of the Criminal Procedure Code and Sec. 25 of the Evidence Act and any confession made to him in the course of the investigation is inadmissible. The learned Judges held that a police officer is a person whom any statute or other provision of law calls as such or on whom it confers all or substantially all the powers and imposes the duties of a police officer. In a recent case in Kadkachalam, In re Somasundaram J. held that where in a prosecution under Section 4 (1) (j) of the Madras Prohibition Act, the investigating Officer conducts the prosecution, the procedure being prohibited by the provisions, of Section 495(4) of the Criminal Procedure Code the proceedings are null and void. THIS is a case arising under the Prohibition Act and directly applies to the point argued before me. Following the said decision, I hold that these Revision Cases must be allowed. The conviction and sentence passed upon the petitioner in each of the Revision Cases are set aside. Having regard to the fact that they have already suffered imprisonment for about two weeks, I do not think that the ends of justice require that there should be a re-trial in these cases. T.A. B. Revisions allowed.