State of U.P. Vs. Durga Prasad [1974]
INSC 155 (23 August 1974)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
KHANNA, HANS RAJ
CITATION: 1974 AIR 2136 1975 SCR (1) 881 1975
SCC (3) 210
CITATOR INFO :
RF 1975 SC 393 (5) RF 1975 SC 753 (8) RF 1975
SC 919 (9) R 1981 SC 379 (16,17,18,53,57) R 1981 SC 635 (1) C 1991 SC 45 (17)
ACT:
Railway Property (Unlawful Possession) Act,
1966--Whether enquiry under section 8(1) of the Act is an investigation within
the meaning of Criminal Procedure Code--Whether statements recorded during the
course of enquiry would be inadmissible in evidence by reason of section 162 of
the Criminal Procedure Code--Whether entire trial is vitiated if signatures of
Witnesses are obtained on the statements made by them during the enquiry.
HEADNOTE:
The respondent was working as a turner in the
Railway workshop. He was found in possession of properties belonging to the
Railways. The Sub-Inspector of Railway Protection Force inquired into the case
under section 8(1) of the Act. During the course of enquiry he recorded
statements of 3 persons. The statements were signed by those persons. The
Special Railway Magistrate convicted the respondent under section 3(9) of the
Act. On appeal, the learned Civil And Sessions Judge confirmed the conviction.
On a revision application filed, the High
Court set aside the judgment of the Sessions Court and acquitted the respondent
on the ground that the enquiry contemplated by Section 8(1) of the Act is an
investigation for the purposes of the Criminal Procedure Code; that the enquiry
officer contravened provisions of section 162 of the Code by obtaining
signatures of witnesses on the statements made by them during the enquiry and
that since those statements were brought on the record of the trial and were
put to the witnesses in their examination-in-chief the entire trial was
vitiated.
Allowing the appeal.
HELD : The enquiry conducted under section
8(1) of the Act cannot be deemed to he an, investigation for the purposes of
section 162 of the Criminal Procedure Code. The exclusion of an important
provision of tile Criminal Procedure Code in matters arising under the Act is
reflected in section 5 and section 14 of the Act. Under section 14, the
provisions of the Act take effect notwithstanding anything inconsistent therewith
contained in any other law for the time being in force. The Act would prevail
over the code if on any matter there is inconsistency between the two. Section
5(2) of the Code itself lays down that offences under any law other than the
Penal Code shall be investigated according to the provisions of the Code but
subject to any enactments for the time being in force regulating the manner of
investigating such offences. Under section 9(3) of the Act persons summoned to
appear in the enquiry are under an express obligation to state the truth
whereas section 160 of the Code does not cast on such persons the obligation to
state the truth. The importance of the obligation cast by section 9(3) of the
Act is that the breach of that obligation constitutes an offence under section
193 of the Penal Code.
The obligation to state the truth which
attracts for its breach a penal consequence, must necessarily imply in the
officer conducting the enquiry the power to obtain the signature of the person
on the statement made by him. The right and duty of an investigating officer to
file a Police Report or a Charge Sheet on the conclusion of investigation is
the hallmark of an investigation under the Code. The Officer conducting an
enquiry under section 8(1) of the Act does not possess all attributes of an
officer in charge of a Police Station investigating a case under the Code. L884
D;
G-H; 886 A-B; 887 E]
HELD Further : Apart from the statements made
by witnesses during the enquiry which were brought on the record of the case by
the learned Magistrate there was evidence of the witnesses who were examined in
the Court and the entire trial could in no case be said to have been vitiated.
At best, the High Court should have excluded from consideration what it thought
was inadmissible 10-M192SupCI/75 882 in evidence. The evidence clearly shows
that the respondent was in possession of railway property and had thereby
committed an offence under section 3(a) of the Act. The judgment of the High
Court was set aside and that of the Civil & Sessions Judge restored. [889
C-D] State of Punjab v. Barkat Ram, [1962] 3 S.C.R. 338, Pradhan Jyoti Sawant
State of Mysore, [1966] 3 S.C.R. 698, followed.
Raja Ram Jaiswal v. State of Bihar, [1964] 2
S.C.R. 752 considered.
CRIMINAL APPELLATE JURISDICTION : Cirminal
Appeal No. 156 of 1972.
Appeal by Special Leave from the Judgment
& Order dated the 8th February, 1971 of the Allahabad High Court in Crl.
Revisional Application No. 1995 of 1969.
O. P. Rana for the appellant.
Uma Dutta for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This appeal by special leave raises questions regarding the
interpretation of the provisions of the Railway Property (Unlawful Possession)
Act, XXIX of 1966.-The main question for decision is whether the inquiry which
an officer of the Railway Protection Force holds under section 8(1) of the Act
is an investigation within the meaning of the Code of Criminal Procedure, 1898.
If so, statements recorded during the course of the inquiry would be
inadmissible in evidence by reason of the injunction contained in section 162
of the Code. A further question which requires consideration is whether the
entire trial is vitiated if signatures of witnesses are obtained on the
statements made by them during the course of the inquiry.
The respondent Durga Prasad was working as a
Turner in the Railway Workshop at Gorakhpur. On April 2, 1968 he was found in
possession of a steel rod and two pieces of moulded brass shells belonging to
the Railway. After the preparation of a recovery memo the respondent was
forwarded to the Railway Protection Force Post where a case was registered
against him under section 3(a) of the Act.
Gajai Singh, Sub-inspector, Railway
Protection Force inquired into the case under section 8(1) of the Act, during
the course of which he recorded the statements of three persons: Rakshak Indra
Deo Yadav, Rakshak Jagannath Pandey and R. K. Nandi. The statements were read
over to these persons and their signatures were obtained thereon. Two others,
G. S. Tripathi and Kamla Kant Yadav wrote out their statements in their own
hand and handed over the same to Gajai Singh.
The respondent pleaded not guilty but the
learned Special Railway Magistrate, First Class, Gorakhpur convicted him under
section 3(a) of the Act and sentenced him to undergo rigorous imprisonment for
fifteen months. That judgment was confirmed in appeal by the learned Civil and
Sessions Judge, Gorakhpur.
883 The respondent filed a revision
application in the High Court of Allahabad which set aside the judgment of the
Sessions Court and acquitted the respondent. The High Court has taken the view
that the inquiry contemplated by section 8(1) of the Act is an investigation
for the purposes of the Criminal Procedure Code that section 162 of the Code would
therefore apply, that the inquiry officer had contravened section 162 by
obtaining signatures of witnesses on the statements made by them before him
during the inquiry and since those statements were brought on the record of the
trial and were put to the witnesses in their examination-in- chief, the entire
trial was vitiated. We have to examine the correctness of this view in this
appeal.
Section 8 of the Act reads thus:
"8. (1) 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.
(2) For this purpose the officer of the Force
may exercise the same powers and shall be subject to the same provisions as the
officer in charge of a police-station may exercise and is subject to under the
Code of Criminal Procedure, 1898, when investigating a cognizable case:
Provided that- (a) if the officer of the
Force is of opinion 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 the case, or forward him in
custody to such Magistrate;
(b) if it appears to the officer of the Force
that there is no 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 2(a) defines "Force" as the Railway Protection
Force constituted under section 3 of the Railway Protection Force Act, 1957.
Section 2(c) defines an "officer of the Force" to mean an officer of
and above the rank of Assistant Sub- Inspector appointed to the Force,
including a superior officer. Under section 2(e) a "Superior officer"
means an officer appointed under section 4 of the Railway Protect On Force Act,
1957 and includes any other officer appointed by the Central Government as a
superior officer of the Force.
Section 5 provides that notwithstanding
anything contained in the Code of Cr. Pr. an offence under this Act shall not
be cognizable. By section 6 of the Act power is given to the concerned officers
to arrest without an order from a Magistrate and without a warrant any person
who has been concerned in an offence punishable under the Act or 884 against
whom a reasonable suspicion exists of his having been so concerned. Section 7
requires that every person arrested for an offence punishable under the Act
must be forwarded without delay to the nearest officer of the Force.
Section 9(1) of the Act empowers an officer
of the Force to summon any person whose attendance he considers necessary
either "to give evidence or to produce a document". By sub- section
(3) of section 9 persons so summoned are bound to attend either in person or by
an authorized agent and they are "bound to state the truth upon any
subject respecting which they are examined or make statements". By section
9(4) every such inquiry is deemed to be a judicial proceeding within the
meaning of sections 193 and 228 of the Penal Code.
Section 11 provides that all searches and
arrests made under the Act shall be carried out in accordance with the
provisions of the Code of Criminal Procedure. Section 14 provides that
provisions of this Act shall have effect notwithstanding anything inconsistent
therewith contained in any other law for the time battle in force".
In face of these provisions, the inquiry
conducted by an officer of the Railway Protection Force under section 8(1) f
the Act cannot be deemed to be an investigation for the purposes of section
162, Code of Criminal Procedure. The scheme of the Act is in important respects
different from the scheme of the Code and there is intrinsic evidence it the
Act to show that the provisions of the Code cannot proprio vigore apply to
inquiries under section 8(1) of the Act. See, for example, two provisions of
the Act which to a student of the Code must strike as a glaring contradiction
in terms. Section 6 of the Act confers power on officers and members of the
Force to arrest without an cider from a Magistrate and without a warrant any
person concerned in an offence under the Act or reasonably suspected of being
so concerned. Applying the dictionary of the Code it should have followed from
section 6 of the Act that an offence under the Act is cognizable. Section 4(f)
of the code defines a cognizable offence as one for which a police officer can
effect an arrest without warrant. The complementary part of this definition
contained in section 4(n) of the Code defines a non-cognizable offence as one
for which a police officer may not arrest without warrant. But section 5 of the
Act provides that notwithstanding anything contained in the Code of Criminal
Procedure, an offence under the Act shall not be cognizable.
The exclusion of an important provision of
the Criminal Procedure Code in matters arising under the Act is not only
reflected in section 5 which deals but with a facet of criminal trials, but the
exclusion is more in evidence in the provisions of section 14 of the Act. Under
that section the provisions of the Act take effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.
Each and every provision of the Code cannot therefore be superimposed on or
read into the Act. The Act would prevail over the Code if on any matter there
is inconsistency between the two. In fact, section 5(2) of the Code itself lays
down that offences under any law other than the Penal Code shall be
investigated according to 885 the provisions of the Code, but subject to any
enactment for the time being in force regulating the manner of investigating
such offences.
Provisions governing inquiries under section
8(1) of the Act are either expressly or by necessary implication inconsistent
with some of the outstanding provisions of the Cede governing investigations
under Chapter XIV, called "Information to the Police and their Powers to
investigate".
Whereas section 8(1) Speaks of
"inquiry" by an officer of the Force, sections 155 and 156 of the
code speak of the power to "investigate" into non-cognizable and
cognizable cases respectively. Labels, of course, are not decisive of the
content of a phrase but the difference in terminology is purposeful. Section
9(1) of the Act confers on officers of the Force the power to summon any person
whose attendance is necessary either "to give evidence" or to produce
a document. Section 160 of the Code empowers a police officer making an investigation
to require by a written order the attendance of a person who appears to be
acquainted with the circumstances of the case. By section 9(3) of the Act,
persons summoned to appear in the inquiry are bound to attend either personally
or through an authorized agent and they are under an express obligation
"to state the truth" on any subject respecting which they are
examined. Section 160 of the Code also makes it obligatory for persons to
appear before the Investigating Officer if he requires their presence but
section 161 does not cast on such persons the obligation which section 9(3) of
the Act casts, namely to state the truth. This is not to suggest that the, Code
provides for a ,awful option to lie but the two parallel provisions governing
the obligations of the persons summoned to appear highlight the basic
difference in the nature of an inquiry under the Act and an investigation under
the Code.
Section 161(2) casts but a limited obligation
on persons required to appear before an investigating Officer "to answer
all questions" relating to the case, other than a certain class of
self-incriminating questions. Section 161(2) of the Code of 1882 contained an
injunction that persons summoned to appear by the Investigating Officer must
answer "truly" the questions put to them but reverting to the
language of the Cede of 1872, the Code of 1898 omitted the word
"truly". A provision similar to that in section 9(3) of the Act is,
however, to be found in section 175(1) of the Code by which persons summoned to
appear in the inquest proceedings are bound to answer truly all questions put
by the Investigating Officer except a certain class of self-incriminating
questions.
The importance of the obligation cast by
section 9(3) of the Act that persons summoned to appear before an officer of
the Force must state the truth consists principally in the consequence that the
breach of that obligation constitutes an offence under section 193 of the Penal
Code which prescribes punishment, inter alia, for intentionally giving false
evidence in any stage of a judicial proceeding. Under the relevant part of
section 191, Penal Code, whoever being legally bound by an express provision of
law to state the truth makes any statement which is false and which he either
knows or believes to be false or does not believe to be true, is said to give
false evidence. It is not necessary that the statement should have been made on
oath. By section 9(4) of 886 the Act every inquiry under section 8(1) is deemed
to be a "judicial proceeding" within the meaning of section 193 of
the Penal Code. The obligation to state the truth, attracting for its breach a
penal consequence, must necessarily imply in the officer conducting the inquiry
the power to obtain the signature of the person on the statement made by him;
or else, in a prosecution under section 193, Penal Code, it would be an easy
defence to deny the very making of the statement and thereby to escape the
punishment. in order that the prosecution under section 193 may not be rendered
illusory and the duty to state the truth should have a real and practical
sanction for its enforcement, the officer conducting the inquiry must have the
right to obtain the signature of the person making the statement.
That creates an inconsistency between the Act
and the Code for whereas an officer conducting an inquiry tinder the Act may
and indeed ought to obtain the signature of witnesses on their statements,
section 162(1) of the Code provides: "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". In view of the
provisions contained in section 14 of the Act, the act must prevail over the
Code.
The reason of the rule that the statement
made to a police officer in the course of investigation shall not be signed by
the person making it is contained in the very same section, namely section
162(1) of the Code, which provides that such a statement shall not be used for
any purpose at any inquiry or trial in respect of any offence under
investigation at the time when the statement was made, except for the limited
purpose of contradicting a witness called for the prosecution, in the manner
provided by section 145 of the Evidence Act. If the statement is inadmissible
at the trial as substantive evidence and if an untrue statement made to a
police officer in the course of an investigation attracts no penal consequence,
it is of no great significance to obtain the signature of the person making the
statement. Statements made under section 8(1) of the Act have different
characteristics and are neither subject to the disability of being inadmissible
nor are they immune from the sweep of section 193 of the Penal Code.
Relying on section 8(2) of the Act which provides
that an.
officer of the Force may exercise the same
powers and shall be subject to the same provisions as the officer in-charge of
a police station may exercise and is subject to under the Code when
investigating a cognizable case, counsel for the respondent argued that the
object of this provision could only be to assimilate inquiries under the Act
with investigations under the Code and therefore section 162 of the Code would
govern the inquiries also. This argument overlook the opening words of section
8(2). The power spoken of in that subsection is conferred "For this
purpose", that is to say, for the purpose of the inquiry under section
8(1) and must be limited to that purpose.
The right and duty of an investigating
officer to file a police report or a charge-sheet on the conclusion of
investigation is the hallmark of an investigation under the Code. Section
173(1)(a) of the Code, 887 Provides that as soon as the investigation is
completed the officer incharge of the police station shall forward to a
Magistrate empowered to take cognizance of the offence on a police report, a
report in the form prescribed by the State Government. The officer conducting
an inquiry under section 8(1) cannot initiate court proceedings by filing a
police report as is evident from the two Provisos to section 8(2) of the Act.
Under Proviso (a), if the officer of the Force is of the opinion that there is
sufficient evidence or reasonable ground of suspicion against the accused, he
shall either admit the accused to bail to appear before a Magistrate having
jurisdiction in the case or forward him in custody to such Magistrate. Under
Proviso (b), if it appears to the officer that there is no sufficient evidence
or reasonable ground of suspicion against the accused, he shall release him on
a bond to appear before the Magistrate having jurisdiction and shall make a
full report of all the particulars of the case to his superior officer. The
duty cast by Proviso (b) on an officer of the Force to make a full report to
his official superior stands in sharp contrast with the duly cast by section
173(1) (a) of the Code on the officer-in-charge of a police station to submit a
report to the Magistrate empowered to take cognizance of the offence. On the
conclusion of an enquiry under section 8(1), therefore, if the officer of the
Force is of the opinion that there is sufficient evidence or reasonable ground
of suspicion against the accused, he must file a complaint under section 190
(1) (a) of the Code in order that the Magistrate concerned may take cognizance
of the offence.
Thus an officer conducting an inquiry under
section 8(1) of the Act does not possess all the attributes of an
officer-in-charge of a police station investigating a case under Chapter XIV of
the Code. He possesses but a part of those attributes limited to the purpose of
holding the inquiry.
That the inquiry officers cannot be equated
generally with police officers is clear from the object and purpose of The Railway
Protection Force Act, XXIII of 1957 under which their appointments are made The
short title of that Act shows that it was passed in order "to provide for
the constitution and regulation of a Force called the Railway Protection Force
for the better protection and security of railway property". Section 3(1)
of the Act of 1957 empowers the Central Government to constitute and maintain
the Railway Protection Force for the better protection and security of railway
property. By section 10, the Inspector- General and every other superior
officer and member. of the Force "shall for all purposes be regarded as
railway servants within the meaning of the Indian- Railways Act, 1890, other
than Chapter VI-A thereof, and shall be entitled to exercise the powers
conferred on railway servants by or under that Act". Section 11 which
defines duties of every superior officer and member of the Force provides that
they must promptly execute all orders lawfully issued to them by their superior
authority; protect and safeguard railway property; remove any obstruction in
the movement of railway property and do any other act conducive to the better
protection and security of railway property. Section 14 imposes a duty on the
superior officers and members of the 888 Force to make over persons arrested by
them to a police officer-or to take them to the nearest police station.
These provisions are incompatible with the
position that a member of the Railway Protection Force holding an inquiry under
section 8(1) of the Act can be deemed to be a police officer-in-charge of a
police station investigating into an offence. Members of the Force are
appointed under the authority of the Railway Protection Force Art, 1957, the
prime object of which is the better protection and security of railway
property. Powers conferred on members of the Force are all directed towards
achieving that object and are limited by it. It is significant that the Act of
1957, by section 14, makes a distinction between a member of the Force and a
police officer properly so called.
Reference may now be made to a few decisions
of this Court.
In State of Punjab v. Barkat Ram(1), the
question which fell for consideration was whether a Customs Officer either
under the Land Customs Act, 1924 or the Sea Customs Act, 1878 is a police
officer within the meaning of section 25 of the Evidence Act. The majority took
the view that though the expression "police-officer" occurring in
section 25 had to be construed in a wide and popular sense, Central Excise
Officers are not police officers and therefore confessions made to them are not
hit by section 25.
In Badku Joti Savant v. State of Mysore(2), a
similar question arose before a Bench of five Judges of this Court with
reference to the provisions of the Central Excise and Salt Act, 1 of 1944.
Sections 21(1) and (2) of that Act are in material respects identical with the
provisions of sections 8(1) and (2) of the Act. A unaminous court held that
though under Section 21(2) the Central Excise Officer has the. powers of an
officer-in-charge of a police station when investigating a cognizable case,
that power was conferred for the purpose of' the inquiry under section 21(1).
Considering the main purpose of the Central Excise and Salt Act it was held
that the Excise Officer was not a police officer within the meaning of section
25 of the Evidence Act. Counsel for the respondent tried to distinguish this
decision on the ground that the application of section 162 of the Code was not
considered there. We see no substance in this contention because if after
excluding section 25 of the Evidence Act, section 162 of the Code was still
applicable, there was no purpose in considering whether the confessional
statements were hit by section 25 of the Evidence Act.
The decision in Raja Ram Jaiswal v. State of
Bihar(3), on which the respondent relies was considered and distinguished in
Badku Joti Savant's case. Raja Ram Jaiswal's case involved the interpretation
of section 78(3) of the Bihar and Orissa Excise Act, 1915 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".
There is no provision in the Act before (1) [1962] (3) S.C.R. 338. (2) [1966]
(3) S.C.R. 698.
(3) [1964] (2) S.C.R. 752.
889 us corresponding to section 78(3) of the
Bihar Act and therefore the decision is distinguishable for the same reasons
for which it was distinguished in Badku Joti Savant's case.
The High Court was therefore in error in holding
that statements made during the inquiry under section 8(1) of the Act are on a
par with statements made during the course of an investigation, that section
162 of the Code applied with full force to the inquiry proceedings and that in
taking signatures of witnesses on the statements made by them the inquiry
officer had committed a flagrant violation of section 162 of the Code. We may
add that apart from the statements made by witnesses during the inquiry which
were brought on the record of the case by the learned Magistrate, there was
before him the evidence of the witnesses who were examined in the court and
therefore the entire trial could in any case not be said to have been vitiated.
At best the High Court should have excluded from consideration what it thought
was inadmissible in evidence.
In the result we set aside the judgment of
the High Court and restore that of the learned Civil and Sessions Judge, Gorakhpur.
The evidence shows clearly that the
respondent was in possession of Railway property and had thereby committed an
offence under section 3(a) of the Act.
P.H.P. Appeal allowed.
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