STATE Vs. IBRAHIM

JUDGEMENT

(1.) DURING the conduct of a case in respect of offences under Section 33 (a) and (f) of the Madhya Bharat Madak Dravya Vidhan, the Magistrate First Class, Dewas. directed the Excise Officer who was conducting that case before him to stop from doing so in view of the provisions of Section 495 (4) of the Criminal Procedure Code on the ground that he was an Officer, who had taken part in the investigation of the case, and that for the purpose of that provision he should be deemed to be an Officer of the Police, Reference was made by the learned Magistrate to the decision in A.I.R. 1933 Bombay 234 Emperor vs. Gopal Shinde and my decision as a Judge of Madhya Bharat High Court reported In 1955 Madhya Bharat Law Journal Criminal 1132 Yakub vs. State in support of the View that an Excise Officer who had taken part in the course of the investigation of the offence ought not to be allowed to conduct the case He also was of the view that on principle he ought not to be allowed to do so.

(2.) STATE preferred revision -petition against that decision before the Additional Sessions Judge Dewas who agreed with the view taken by the Magistrate and dismissed the revision -petition.

(3.) THE learned Government Advocate who appears for the petitioner contended that having regard to the language used in Section 495 (4) of the Criminal Procedure Code there should be no doubt that an Excise Officer, although he might have taken part in the conduct of the case, cannot come within the terms of that provision, He further contended that even on principle although there might be good reason to hold that for the purpose of Section 25 of the Evidence Act an Excise Officer who is conducting the investigation should be a Police Officer and that confessions made before him would for that reason be inadmissible in evidence, yet no such matter of principle is involved in giving an interpretation to the wording of section 495 (4) of the Criminal Procedure Code by straining the language and holding that an Officer of Police virtually means a person exercising the powers of a Police Officer. He has made reference in this connection to the terms of section 60 of the Excise Act and particularly to the provisions of Sub -clause (i) of that section which lays down that any Excise Officer not below such rank and within such specified area, as the Government may by notification prescribe, may as regards offences under sections 33, 34, 35 and 36, exercise the powers conferred on an Officer in charge of a Police Station by the provisions of the Indian Code of Criminal Procedure, 1898. He reasoned that the very fact that the Government may, by notification, prescribe that with respect to certain offences mentioned an Excise Officer not below a particular rank is entitled to exercise powers of an Officer in charge of a Police Station, it is difficult to call him an Officer of the Police. Reference in this connection was also made to section 25 of the Evidence Act which lays down that no confession made to a Police Officer shall be proved as against a person accused of an offence. He contends that the reason of the rule contained in section 25 of the Evidence Act required that the term 'Police Officer' used in that section should be construed in a broader sense so as to include other Officers who exercise the power of a Police Officer during the course of investigation. In case such a broader meaning is not assigned to that term it will lead to very undesirable consequences. Whenever a person has got the duty under law to investigate an Officer there will always be a temptation to have a short cut and confessions is one of such modes. The object in excluding confessions is to prevent this. The principle would apply equally to the Excise Officer performing the functions of a Police Officer during the investigation and for that reason so far as section 25 is concerned he should be construed to be a Police Officer. According to him no such position arises in respect of a conduct of a case before a Criminal Court and no serious undesirable consequences are likely to result in case the provision contained in section 495 (4) of the Criminal Procedure Code is construed in accordance with the language actually used there. Reliance was placed by the Learned Counsel on the decision reported in A.I.R. 1933 Bom 234 Emperor vs. Gopal Shinde in support of his contention.