EMPEROR Vs. GOPAL SHINDE PATEL

JUDGEMENT

(1.) This matter arises out of a reference which has been made by the learned Sessions Judge of Kanara on the following facts.

(2.) Two persons were being prosecuted in the Court of the City Magistrate, Karwar, under Section 45 (c) of the Bombay Abkari Act. At the commencement of the case, the prosecution was undertaken by the Abkari Inspector, and the accused objecting to this procedure, the learned Magistrate made an order against them and directed that the prosecution should proceed as already started. One of the accused applied to the learned Sessions Judge under Section 435 of the Criminal Procedure Code, and the Judge has referred the matter to this Court, his opinion being that under Section 495 (4) of the Criminal Procedure Code, the Akbari Inspector is not competent to conduct the prosecution, as he comes within the connotation of the expression an officer of police in that sub-section.

(3.) There is no direct authority for the view adopted by the learned Sessions Judge, the reference having been made on the grounds of the analogy of the expression used in Section 495 with that used in Section 25 of the Indian Evidence Act, which excludes confessions made to a police-officer, and a ruling of this Court in Nanoo V/s. Emperor (1926) I.L.R. 51 Bom. 78 in which a full bench consisting of five Judges held that a confession made to an excise-officer, who under the Abkari Act exercises all the powers of a Sub-Inspector of Police in charge of a police-station in excise cases, is an officer of police within the meaning of Section 25 of the Indian Evidence Act. There is no definition of the expression "an officer of police" that we have been referred to, nor have we been able to find any. It does not appear to have been defined in the General Clauses Act, but in the Police Act, Act V of 1861, the definition is that the word police shall include all persons who shall be enrolled under that Act, and in the Bombay District Police Act, Act IV of 1890, the definition is, "police-officer" means any member of a police-force appointed under that Act; and in the Bombay City Police Act, Act IV of 1902, the definition is, "any member of the Police force for the City of Bombay appointed under that Act." It is clear that an Abkari Inspector does not come within any of these definitions.