Supreme Court of India
Kartar Singh vs State Of Punjab on 11 March, 1994
Sections 24 to 30 of the Evidence Act deal with provability or relevancy of a confession. A confession made by an accused person is irrelevant if it appears to the court to have been caused by inducement, promise or threat having a reference to the charge proceeding from a person in authority. By Section 25 there is an absolute ban at the trial against proof of a confession to a police officer, as against a person accused of any offence. The partial ban under Section 24 and total ban under Section 25 applied equally with Section 26 that no confession made to any person while the accused is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person. Section 27 makes an exception to Sections 24, 25 and 26 and provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The provisions in Sections 28 to 30 are not relevant for discussion. The fascicule of Sections 24 to 30 aim to zealously protect the accused against becoming the victim of his own delusion or the mechanisation of others to self-incriminate in crime. The confession, therefore, is not received with an assurance, if its source be not omni suspicious mojes, above and free from the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect equanimity and must not have been operated upon by fear or hope or inducement. Hence threat or promise or inducement held out to an accused makes the confession irrelevant and excludes it from consideration. A confession made to a police officer while the accused is in the custody or made before he became an accused, is not provable against him on any proceeding in which he is charged to the commission of the said offence. Equally a confession made by him, while in the custody of the police officer, to any person is also not provable in a proceeding in which he is charged with the commission of the offence unless it is made in the immediate presence of the Magistrate. Police officer is inherently suspect of employing coercion to obtain confession. Therefore, the confession made to a police officer under Section 25 should totally be excluded from evidence. The reasons seem to be that the custody of police officer provides easy opportunities of coercion for extorting confession. Section 25 rests upon the principle that it is dangerous to depend upon a confession made to a police officer which cannot extricate itself from the suspicion that it might have been produced by the exercise of coercion or by enticement. The legislative policy and practical reality emphasise that a statement obtained, while the accused is in police custody, truly be not the product of his free choice. So a confessional statement obtained by the law enforcement officer is inadmissible in evidence.
Supreme Court of India
Dagdu & Others Etc vs State Of Maharashtra on 19 April, 1977
But for the blazing lust for life of the confessing approvers supplying the infrastructure for the prosecution case which, we find, is corroborated in material particulars by independent testimony so far as some of the appellants are concerned, there is much more to be. desired in an investigation of such awe-inspiring cases. The archaic attempt to. secure confessions by hook or by crook seems to be the be all and end all of the police investigation. The investigation does not reflect any imaginative drive on the part of the police in a crime of this magnitude.
The police. should remember that confession may not always be a short-cut to solution. Instead of trying to "start" from a confession they should strive to "arrive" at it. Else, when they are busy on this short route to success, good evidence may disappear due to inattention to the real clues. Once a confession is obtained, there is often flagging of zeal for a full and thorough investigation with a view to establish the case de hors the confession. It is often a sad experience to find that on the confession, later, being inadmissible for one reason or other the case founders in court.
Supreme Court of India
Aghnoo Nagesia vs State Of Bihar on 4 May, 1965
Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in ss. 24 to 30 of the Evidence Act and ss. 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to he found under the heading "Admissions". Confession is a species of admission, and is dealt with in ss. 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides : "No confession made to a police officer, shall be proved as against a person accused of an offence." The terms of s. 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by S. 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by s. 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by ss. 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence Order investigation, save as mentioned in the proviso and in cases falling under sub-s (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of S. 27 of the Evidence Act. The words of s. 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under s. 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by s. 27 of the Evidence Act, a confession by an accused to a police office- is absolutely protected under s. 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by s. 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by S. 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them.
Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under s. 157 of the Evidence Act or to contradict him under s. 145 of the Act, if the informant is called a,,; a witness. If the first information is given by the accused himself, the fact of his giving the information is admissible against him as evidence of his conduct under s. 8 of the Evidence Art. If the information is a non-confessional statement, it is admissible against the accused as an admission under s. 21 of the Evidence Act and is relevant.
The accused is entitled to insist that the entire ,admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and the prosecution intends to use the whole of the statement against the accused. Now, a confession may consist of several parts and may reveal not only the actual commission of the crime but also the motive, the preparation, the opportunity, the provocation, the weapons used, the intention, the concealment of the weapon and the subsequent conduct of the accused. If the confession is tainted, the taint attaches to each part of it. It is not permissible in law to separate one part and to admit it in evidence as a non- confessional statement. Each part discloses some incriminating fact, i.e., some fact which by itself or along with other admitted or proved facts suggests the inference that the accused committed the crime, and though each part taken singly may not amount to a confession, each of them being part of a confessional statement partakes of the character of a confession. If a statement contains an admission of an offence, not only that admission but also every other admission of an incriminating fact contained in the statement is part of the confession. If proof of the confession is excluded by any provision of law such as s. 24, s. 25 and s. 26 of the Evidence Act, the entire confessional statement in all its parts including the admissions of minor incriminating facts must also be excluded, unless proof of it is permitted by some other section such as s. 27 of the Evidence Act. Little substance and content would be left in ss. 24, 25 and 26 if proof of admissions of incriminating facts in a confessional statement is permitted. admit in evidence each sentence separately as a non- confessional statement. Again, take a case where a single sentence in a statement amounts to an admission of an offence. 'A' states "I struck 'B' with a tangi and hurt him." In consequence of the injury 'B' died. 'A' committed an offence and is chargeable under various sections of the Indian Penal Code. Unless he brings his case within one of the recognised exceptions, his statement amounts to an admission of an offence, but the other parts of the statement such as the motive, the preparation, the absence of provocation, concealment of the weapon and the subsequent conduct, all throw light upon the gravity of the offence and the intention and knowledge of the accused, and negatives the right of private defence, accident and other possible defenses. Each and every admission of an incriminating fact contained in the confessional statement is part of the confession.
Sometimes , a single sentence in a statement may not amount to a confession at all. Take a case of a person charged under s. 304-A of the Indian Penal Code and a statement made by him to a police officer that "I was drunk; I was driving a car at a speed of 80 miles per hour; I could see A on the road at a distance of 80 yards; I did not blow the horn; I made no attempt to stop the car; the car knocked down A." No single sentence in this statement amounts to a confession, but the statement read as a whole amounts to a confession of an offence under s. 304-A of the Indian Penal Code, and it would not admit in evidence each sentence separately as a non- confessional statement.
A little reflection will show that the expression "confession" in ss. 24 to 30 refers to the confessional statement as a whole including not only the admissions of the offence but also all other admissions of incriminating facts related to the offence. Section 27 partially lifts the ban imposed by ss. 24. 25 and 26 in respect of so much of the information whether it amounts to a confession or not, as relates distinctly to the fact discovered in consequence of the information, if the other conditions of the section are satisfied. Section 27 distinctly contemplates that an information leading to a discovery may be a part of the confession of the accused and thus, fall within the purview of ss. 24, 25 and 26 Section 27 thus shows that a confessional statement admitting the offence may contain additional information as part of the confession. Again, s. 30 permits the Court to take into consideration against a co-accused a confession of another accused affecting not only himself but the other co-accused. Section 30 thus shows that matters affecting other persons may from part of the confession.
If the first information report is given by the accused to a police officer and amounts to a confessional statement, proof of the confession is prohibited by s. 25. The confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. No part of the confessional statement is receivable in evidence except to the extent that the ban of s. 25 is lifted by s. 27. Our attention is not drawn to any decision of this Court or of the Privy Council on the question whether apart from s. 27, a confessional first information report given by an accused is receivable in evidence against him.
We think that the separability test is misleading, and the entire confessional statement is hit by s. 25 and save and except as provided by s. 27 and save and except the formal part identifying the accused as the maker of the report, no part of it could be tendered in evidence.
Section 27 applies only to information received from a person accused of an offence in the custody of a police officer. Now, the Sub Inspector stated that he arrested the appellant after he gave the first information report leading to the discovery. Prima facie, therefore, the appellant was not in the custody of a police officer when he gave the report, unless it can be said that he was the in constructive custody. On the question whether a person directly giving to a police officer information which may be used as evidence against him -may be deemed to have submitted himself to the custody of the police officer within the meaning of s. 27, there is conflict of opinion. For the purposes of the case, we shall assume that the appellant was constructively in police custody and therefore the information contained in the first information report leading to the discovery of the dead bodies and the tangi is admissible in evidence. The entire evidence against the appellant then consists of the fact that the appellant gave information as to the place where the dead bodies were lying and as to the place where he concealed the tangi the discovery of the dead bodies and the tangi in consequence of the information, the discovery of a blood-stained chadar from the appellant's house and the fact that he had gone to Dungi Jharan Hills on the morning of August 11, 1963. This evidence is not sufficient to convict the appellant of the offenses under s. 302 of the Indian Penal Code.
Supreme Court of India
Bheru Singh vs State Of Rajasthan on 4 February, 1994
Provisions of Sections 24 to 30 of the Evidence Act and of Section 164 of the Code of Criminal Procedure deal with confessions. By virtue of the provisions of Section 25 of the Evidence Act, a confession made to a police officer under no circumstance is admissible in evidence against an accused. The section deals with confessions made not only when the accused was free and not in police custody but also with the one made by such a person before any investigation had begun. The expression "accused of any offence" in Section 25 would cover the case of an accused who has since been put on trial, whether or not at the time when he made the confessional statement, he was under arrest or in custody as an accused in that case or not. Inadmissibility of a confessional statement made to a police officer under Section 25 of the Evidence Act is based on the ground of public policy. Section 25 of the Evidence Act not only bars proof of admission of an offence by an accused to a police officer or made by him while in the custody of a police officer but also the admission contained in the confessional statement of all incriminating facts relating to the commission of an offence. Section 26 of the Evidence Act deals with partial ban to the admissibility of confessions made to a person other than a police officer but we are not concerned with it in this case. Section 27 of the Evidence Act is in the nature of a proviso or an exception, which partially lifts the ban imposed by Sections 25 and 26 of the Evidence Act and makes admissible so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, when made by a person accused of an offence while in police custody. Under Section 164 CrPC a statement or confession made in the course of an investigation, may be recorded by a Magistrate, subject to the safeguards imposed by the section itself and can be relied upon at the trial.
Where the first information report is given by an accused himself to a police officer and amounts to a confessional statement, proof of the confession is prohibited by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent it is permitted by Section 27 of the Evidence Act. The first information report recorded under Section 154 CrPC is not a substantive piece of evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Evidence Act in case the informant appears as a witness at the trial. Where the accused himself lodges the first information report, the fact of his giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature, it would also be relevant under Section 21 of the Evidence Act but the confessional part of the first information report by the accused to the police officer cannot be used at all against him in view of the ban of Section 25 of the Evidence Act.
From a careful perusal of this first information report we find that it discloses the motive for the murder and the manner in which the appellant committed the six murders. The appellant produced the bloodstained sword with which according to him he committed the murders. In our opinion the first information report Ex. P-42, however is not a wholly confessional statement, but only that part of it is admissible in evidence which does not amount to a confession and is not hit by the provisions of Section 25 of the Evidence Act. The relationship of the appellant with the deceased; the motive for commission of the crime and the presence of his sister-in-law PW 11 do not amount to the confession of committing any crime. Those statements are non-confessional in nature and can be used against the appellant as evidence under Section 8 of the Evidence Act. The production and seizure of the sword by the appellant at the police station which was bloodstained, is also saved by the provisions of the Evidence Act. However, the statement that the sword had been used to commit the murders as well as the manner of committing the crime is clearly inadmissible in evidence. Thus, to the limited extent as we have noticed above and save to that extent only the other portion of the first information report Ex. P-42 must be excluded from evidence as the rest of the statement amounts to confession of committing the crime and is not admissible in evidence.
Supreme Court of India
Sita Ram vs State Of Uttar Pradesh on 25 April, 1965
The appellant was convicted for under under s. 302 Indian Penal Code. The prosecution relied on amongst other materials, a letter. The letter contained a confession and
was addressed to the Sub-Inspector. The appellant wrote the letter with the intention that it should be received by the Sub-Inspector, kept it near the dead body and left the house
after locking it. The lock was broken open and the letter was recovered by the Sub-Inspector. In appeal to this Court the admissibility of this letter was challenged.
This is a letter dated September 14, 1962 addressed to the 'Sub-Inspector' and bears the signature of the appellant in Urdu. It reads thus:
"I have myself committed the murder of my wife Smt. Sindura Rani. Nobody else perpetrated this crime. I would appear myself after 20 or 25 days and then will state everything. One day the law will extend its hands and will get me arrested. I would surrender myself. (Sd. in Urdu).Sita Ram Naroola, 14th September, 1962."
On the back of this letter is written the following:
"It is the first and the last offence of my life. I have not done any illegal act nor I had the courage to do that, but this woman compelled me to do so and I bad to break the law.
This letter was found on a table near the dead body of Sindura Rani. It was noticed by the Sub-Inspector Jagbir Singh, P.W. 16 and seized in the presence of three persons who attested the seize memo and were later examined as witnesses in the case. The prosecution has established satisfactorily that the letter is in the had writing of the appellant and that the signature it bears is, also that of the appellant. Learned counsel for the appellant has challenged, the admissibility of this letter on the ground that it amounts to a confession to a police officer and that, therefore, s. 25 of the Evidence Act renders it inadmissible in evidence. We, do not think that the objection is well-founded. No doubt, the letter contains a confession and is also addressed to a police, officer, That cannot make it a confession made to a police officer which is within the bay created by s. 25 of the Evidence Act, The police officer was not nearby when the letter was written or knew that it was being written. In such circumstance quite obviously- the letter would not,, have been a confession to the police officer if the words "SubInspector" had not been written. Nor do we think it can become one in similar circumstances only because the words "Sub-Inspector" had been written there. It would still have not been a confession made to a police officer for the simple reason that it was not so made from any point of view.
Supreme Court of India
Kali Ram vs State Of Himachal Pradesh on 24 September, 1973
The last piece of evidence upon which the High Court has maintained the conviction of the accused consists of the confession of the accused contained in letter PEEE sent by Sahi Ram (PW 4) to the Station House Officer Renuka. The first question which arises for consideration in respect of letter PEEE is whether it is admissible in evidence. Section 162 of the Code of Criminal Procedure reads as, under :
162. (1) No statement made by any person to a police officer in the course of. an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence, under investigation it the time when such statement was made : provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 and when any part of such statement is so used, any part thereof may also be, used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, clause (1) of the Indian Evidence Act, 1872, or to affect the provisions of Section 27 of that Act."
Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub-section (1), or for the purposes mentioned in sub-section (2) with which we are not concerned in the present case. The prohibition contained in the section relates to all statements made during the course of an investigation. Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused. Such a letter, in our opinion, would constitute statement for the purpose of section 162 of the Code of Criminal Procedure. The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer. If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation. It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtain a written statement of a person instead of the investigating officer himself recording that statement.
It has been argued by Mr. Khanna on behalf of the State that at the time letter PEEE was addressed by Sahi Ram to the police, no investigation had been made by the police against the accused and, as such, the aforesaid letter cannot be held to be inadmissible. This contention, in our opinion, is wholly devoid of force. The restriction placed by section 162 on the use of statement made during the course ,of investigation is in general terms. There is nothing in the section to show that the investigation must relate to any particular accused before a statement to the police pertaining to that accused can be held to be inadmissible. Reference has been made by Mr. Khanna to the case of Sita Ram v. State of Uttar Pradesh(') wherein it was held by majority that a letter addressed by the accused to a sub- inspector of police containing his confession was not inadmissible under section 25 of the Indian Evidence Act. There is nothing in the aforesaid judgment to show that the letter in question had been written during the course of the investigation of the case. As such, this Court in that cast did not consider the question as to whether the letter in question was inadmissible under section 162 of the Code of Criminal Procedure. As such, the State cannot derive much help from that authority.
We would, therefore, hold that letter PEEE is inadmissible in evidence.
Supreme Court of India
Raja Ram Jaiswal vs State Of Bihar on 4 April, 1963
It may well be that a statute confers powers and imposed duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform be may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere conferral of some only of the powers of a police officer on such a person would not make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The contention thus is that when an officer has to perform a wide range of duties and exercise correspondingly a wide range of powers, the mere fact that some of the powers which the statute confers upon him are analogous to or even identical with those of a police officer would not make him a police officer and, therefore, if such an officer records a confession it would not be hit by s. 25 of the Evidence Act, In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a "police officer" for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a "police officer" for the purpose of s. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by s. 25, that is, the recording of a confession. In our words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession. The object of enacting s. 25 of the Evidence Act was to eliminate from consideration confession made to an officer
who by virtue of his position, could extract by force, torture or inducement a confession. An Excise Officer acting under s. 78 (3) of the Bihar & Orissa Excise Act,
1915, would be in the same position as an officer in charge of a police station making an investigation under Ch. XIV of the Code of Criminal Procedure. He would likewise have
the same opportunity of extracting confession from a suspect. It is therefore difficult to draw a rational distinction between a ,confession recorded by a Police
Officer strictly so called and recorded by an Excise Officer who is deemed to be a police officer.
Gulam Hussain Shaikh Chougule vs S.Reynolds, Suptd. Of Customs, ... on 19 October, 2001
When an inquiry is being conducted under Section 108 of the Customs Act, and a statement is given by a person against whom the inquiry is being held it is not a statement made by a person accused of an offence and the person who gives the statement does not stand in the character of an accused person .We hold that a statement recorded by Customs Officers under Section 108 of the Customs Act is admissible in evidence. The court has to test whether the inculpating portions were made voluntarily or whether it is vitiated on account of any of the premises envisaged in Section 24 of the Evidence Act........
FERA OFFICER NOT A POLCIE OFFICER :
Kerala High Court
P.S. Barkathali vs The Director Of Enforcement, New ... on 4 February, 1981
An officer under the Act is not an officer in charge of a police station No doubt he has certain powers which are similar to the powers of a Police Officer. The Act does not confer on him the power to lodge a report before a competent Magistrate under Section 173 of the Crl. P. C. The only way an officer under the Act could approach a Magistrate is under proviso to Section 23D (1) of the Act and that could only be by filing a complaint. He is not competent to submit a report under Section 173 of the Code. The powers vesting in such an officer under the Act are not sufficient to equate him with a Police Officer. Powers of investigation as contemplated under the Cr. P. C. are not conferred on an officer acting under the Act. Hence he cannot be said to be a Police Officer.
CUSTOMS OFFICER NOT POLICE OFFICERS:-
It has been repeatedly held by the Supreme Court that a Customs Officer discharging duties under the Customs Act or the Sea Customs Act is not a Police Officer coming within the purview of Section 25 of the Evidence Act (vide Ramesh Chandra v. State of W. B. (AIR 1970 SC 940), P. Rustomji v. State of Maharashtra, (AIR 1971 SC 1087) and Balkrishna v. State of W. B., (AIR 1974 SC 120)). On the same analogy, it has to be held that an Officer recording a statement of a person under the provisions of the Act is not a Police Officer for the purposes of Section 25 of the Evidence Act.
Supreme Court of India
Romesh Chandra Mehta vs State Of West Bengal on 18 October, 1968
that a Customs Officer under the Land Customs Act 19 of 1.924 or under the Sea Customs Act 8 of 1878 is not a police-officer for the purpose of s. 25 of the Indian Evidence Act, 1872, and that conviction of the offender on the basis of his statements to the Customs Officer for offences under s. 167(8) of Sea Customs Act, 1878, and s. 23(1) of the Foreign Exchange Regulation Act, 1947, is not illegal.
Supreme Court of India
Badku Joti Savant vs State Of Mysore on 1 March, 1966
It does not however appear that a Central Excise Officer under the Act has power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure. Under s. 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed. A police officer for purposes of cl. (b) above can in our opinion only be a police officer properly so- called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl. (a) above if he wants the Magistrate to take cognizance of an offence, for "ample, under s. 9 of the Act. Thus though under sub-section (2) of s. 21 of the Central Excise Officer under the Act has the powers of an officer-incharge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-s. (1) of s. 21. Section 21 is in terms different fro s. 78(3) of the Bihar and Orissa Excise Act,1915 which came to be considered in Raja Ram Jaiswal's case(1) and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an excise officer empowered under section 77, sub-section (2) , is appointed shall be deemed to be a police station, and such officer shall be deemed to be the officer-in-charge of such station". It cannot therefore be said that the provision in s. 21 is on par with the provision in s. 78(3) of the Bihar and Orissa Excise Act. All that s. 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officerin-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station. It has been urged before us that if we consider s. 21 in the setting of s. 14 of the Act, it would become clear that the enquiry contemplated under s. 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal Procedure. It is not necessary to decide whether the enquiry under s. 14 must also include enquiry mentioned in s. 21 of the Act. Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under s. 9 of the Act does not make the Central Excise Officer, a police officer even in the broader view mentioned above. Otherwise any person entrusted with investigation under s. 202 of the Code of Criminal Procedure would become a police officer. In any case unlike the provisions of s. 78(3) of the Bihar and Orissa Excise Act, 1915, s. 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed to be a police station. All that s. 21 does is to give him certain powers to aid him in his enquiry. In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer-in-charge of a police station has when investigating a cognizable offence, he does not thereby become a police officer even if we give the broader meaning to those words in s. 25 of the Evidence Act. The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja Ram Jaiswals' case(1) taking even the broader view of the words "police officer" in s. 25 of the Evidence Act.
ACCUSED CAN USE CONFESSIONAL STATEMENT IN HIS FAVOUR :-
HASIL v. EMPEROR [AIR 1942 Lahore 37], the learned Sessions Judge refused to rely on the confessional statement made by the accused before the Police, which the accused wanted to use in his favour for showing what offence had been committed. The Lahore High Court held that such confessional statement could be taken into consideration for the accused and the prohibition contained in Section 25 of the Evidence Act would not apply to such use of confessional statement in favour of the accused.
In LALKHAN v. EMPEROR [AIR 1948 Lahore 43], the confessional statement of the accused was taken into consideration for ascertaining the version of the accused and based on that, the offence committed by him was held to be culpable homicide not amounting to murder.
In re MOTTAI THEVAR [AIR 1952 Madras 586], Somasundaram.J., while agreeing with the conclusions arrived at by Mack.J. in his separate judgment, observed as follows:-
Section 25, Indian Evidence Act says that no confession made to a police officer shall be proved as 'against ' a person accused, of any offence. I underline the word 'against'. The confession does not therefore prohibit the use of it in favour of the accused.
In MOTTAI THEVAR [supra], the Division Bench referred to a part of the information in the confessional statement of the accused that due to grave and sudden provocation, he had killed his wife, and reduced his life sentence to 7 years Rigorous Imprisonment.
In re RAYAPPA ASARI [1972 CRL.L.J. 1226], MOTTAI THEVAR [supra] has been followed by another Division Bench of this Court. Such a view also has been taken in re GANESAN [1972 L.W. (Crl.) 42].
In re THANDAVAN [1973 CRL.LJ.1041], a Division Bench of this Court referred to the statement of the accused in his confessional statement to police that his wife told him that it is not possible for him to check her from indulging in adultery thus he had killed her and the Division Bench commuted his death sentence to life sentence.
In MANICKAM Vs. STATE [2011(3)Crimes 509(Mad.)], in Ex.P10 confessional statement recorded by the Investigation Officer, the accused had stated that the deceased was having illegal intimacy with his wife and under these circumstances, he had killed him. The Court noted this and held that the accused cannot be held to have committed murder and brought the offence under Section 304-I IPC and reduced his life sentence to 7 years rigorous imprisonment.
Recently, in ROHIDAS MANIK KASRALE v STATE OF MAHARASHTRA [2012 CRL L.J.917], a Division Bench of the Bombay High Court referred to MOTTAI THEVER (supra) and held that Section 25 of the Evidence Act is not a bar to use a statement in the confession of the accused in his favour and noting from the confession that the accused had killed his wife because of her wayward behavior the Division Bench held that the offence would not be murder but culpable homicide not amounting to murder and set aside the life sentence and awarded 10 years imprisonment to the accused.
SANGIAH VS. STATE [2007 (2) MLJ (Crl) 1852] and GANESHAN VS. STATE [2011 (2) MLJ (Crl) 624], the Trial Court formed the view that to record a finding of guilty as against the accused, the confessional statement of the accused can be referred to and also relied on it.
Madras High Court
Balu @ Balamurugan vs State : on 4 February, 2013
confessional statement could be taken into consideration for the accused and the prohibition contained in Section 25 of the Evidence Act would not apply to such use of confessional statement in favour of the accused.