JUDGMENT
R.A. Sharma, J.
1. The two appellants have filed this criminal appeal challenging their conviction and sentence to life imprisonment and R.I. for five years under Section 302/34 and Section 201 of the Indian Penal Code respectively. At the time of hearing of the appeal, one of the submissions of the learned counsel for the appellants before the Division Bench was that the village Chaukidar is a ‘police officer’ within the meaning of Section 25 of the Evidence Act and, therefore, the confession alleged to have been made before him by the appellants is not admissible. In his support, the learned counsel placed reliance on Emperor v. Mt. Jagia AIR 1938 Patna 308 : 1938 (39) Cri LJ 428, wherein after considering the Chaukidari Act of 1870 and Bihar and Orissa Village Administration Act, 1922, the Division Bench of this Court held that the Chaukidar being a member of the village police is a ‘police officer’ within the meaning of Section 26 of the Act. This judgment has been followed by another Division Bench in Mt. Punia Goalin v. Emperor AIR 1947 Patna 146 : 1947 (48) Cri LJ 412.
2. The Division Bench, which was hearing the appeal, did not agree with the views expressed in Emperor v. Mt. Jagia 1938 (39) Cri LJ 428 and Mt. Punia Goalin v. Emperor 1947 (48) Cri LJ 412 (supra) and has referred the following two questions to the Full Bench for decision :-
(i) Whether the village Chaukidar in this State is a ‘police officer’ within the meaning of Section 25 of the Evidence Act ?
and
(ii) Whether the law laid down by the two Division Benches of this Court in Emperor v. Mt. Jagia AIR 1938 Patna 308 : 1938 (39) Cri LJ 428 and Mt. Punia Goalin v. Emperor AIR 1947 Patna 146 : 1947 (48 Cri LJ 412 still represent the correct legal position ?
3. Section 25 of the Evidence Act is as under :-
No confession made to a police officer shall be proved as against a person accused of any offence.
4. The question as to who is the ‘police officer’ within the meaning of Section 25 of the Evidence Act has been well settled by the Apex Court holding that a person on whom power to investigate under Chapter XII of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.), including the power to submit the report under Section 173 thereof is conferred, is a ‘police officer’. In this connection, it is sufficient to refer the following two decisions of the Apex Court.
5. In Raj Kumar Karwal v. Union of India AIR 1991 SC 45 : 1991 Cri LJ 197, the Apex Court first analysed the purpose and the object of Section 25 of the Evidence Act and in that connection observed thus :-
4. …The restriction on admissibility of a confession of an accused person imposed by Sections 25 and 26 of the Evidence Act, when made to a police officer and not in the immediate presence of a Magistrate is as a matter of public policy designed to prevent the practice of securing confessional statements of persons in police custody by means of threats, inducements, torture, coercion, etc. What impelled the introduction of this provision was the overwhelming evidence which disclosed that the powers vested in the police under the Code were often misused and abused by police officers investigating crimes for extorting a confessional statement from the accused with a view to earning credit for the prompt solution of the crime and/or to secure himself against allegations of supineness or neglect of duty. It was also realised that once a police officer succeeds in extorting a confession from the person accused of the commission of the crime by the threats, inducements, etc., the real offender becomes more or less immune from arrest. Therefore, the purpose of the restriction under Section 25 of the Evidence Act is broadly speaking, two-fold, namely, (i) to protect the person accused of a crime from third degree treatment and, more importantly, (ii) to ensure a proper and scientific investigation of the crime with a view to bringing the real culprit to book.
Thereafter the Apex Court, after considering the law laid down by it in its earlier decisions, has held as follows :-
21. …Any person on whom power to investigate under Chapter XII is conferred can be said to be a ‘police officer’, no matter by what name he is called. The nomenclature is not important, the content of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant (AIR 1966 SC 1746) : 1966 Cri LJ 1353 accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173 he cannot be described to be a ‘police officer’ under Section 25, Evidence Act….
The same view has been reiterated in State of Gujarat v. Anirudhsing AIR 1997 SC 2780 : 1997 Cri LJ 3397, wherein the Apex Court has held that a Senior Reserve Police Officer appointed under the State Reserve Police Force Act, is although a police officer under the Bombay Police Act and an Officer-in-Charge of the police station for the purpose of maintaining law and order and tranquillity in the society but he does not have the power of investigation under Chapter XII, Cr.P.C. and is, therefore, not a ‘police officer’ within the meaning of Section 25 of the Evidence Act.
6. In view of the law laid down by the Apex Court, unless a person is entitled to make investigation under Chapter XII, Cr.P.C. and submit the report under Section 173 thereof, he cannot be treated as a ‘police officer’ for the purpose of Section 25 of the Evidence Act. Therefore, the answer to the question as to whether a Chaukidar is or is not a police officer within the meaning of Section 25 of the Evidence Act depends on the answer of another question, namely, whether he has the power of investigation including the power to submit report under Chapter XII, Cr.P.C. If he has such a power, he is a ‘police officer’, otherwise not.
7. The learned counsel for the State has stated that in this State, the Chaukidars are appointed and exercise such powers as are conferred on them by or under any of the following three Acts :-
(i) The Village Chaukidari Act, 1870 (hereinafter referred to as Chaukidari Act);
(ii) The Chotanagpur Rural Police Act, 1914 (hereinafter referred to as Rural Police Act); and
(iii) The Bihar & Orissa Village Administration Act, 1922 (hereinafter referred to as the Village Administration Act).
This position has been admitted by the learned counsel for the appellants also.
8. Under Section 35 of the Chaukidari Act, the Panchayat nominates a person to be the Chaukidar and the State Government, if satisfied with such nomination, appoints him as Chaukidar but if the Panchayat fails to nominate within a reasonable time a person to be Chaukidar or the State Government is not satisfied with such nomination, the State Government has the power to appoint any person as it thinks proper to be a Chaukidar. The Chaukidar so appointed can be dismissed by the District Magistrate or by the Panchayats with the sanction of the District Magistrate. Section 39 of the said Act which enumerates the powers and duties of the Chaukidar is reproduced below:-
39. Duties of Chaukidars.- Every Chaukidar appointed under the provisions of this Act shall perform the following duties :
1st.- he shall give immediate information to the officer in charge of the police-station within the limits of which the village is situate of very unnatural, suspicious or sudden death which may occur, and of any offence specified in Schedule B which may be committed within his village, and he shall further keep the police informed of all disputes which are likely to lead to any riot or serious affray;
2nd.- he shall arrest all proclaimed offenders and any person who in his presence commits any offence specified in Schedule B, and any person against whom a hue and cry has been raised of his having been concern in any such offence, whether such offence has been or is being committed within his village or outside of it, and shall, without delay, convey any person so arrested to the said police-station;
3rd.- he shall, to the best of his ability, prevent, and may interpose for the purpose of preventing, the commission of any offence specified in the said Schedule;
4th.- he shall assist private persons in making such arrests as they may lawfully make, and shall report such arrests without delay to the officer in charge of the said police-station;
5th.- he shall observe, and, from time to time, report to the officer aforesaid the movements of all bad characters within his village;
6th.- he shall report to the officer in charge of such police-station the arrival of suspicious characters in the neighbourhood;
7th.- he shall report to the officer aforesaid, in a form signed by one member of the panchayat, the births, the births and deaths if any, which have occurred within his village at such intervals as the District Magistrate may determine;
8th.- he shall report to the officer aforesaid the death or absence for more than two consecutive months of any member of the panchayat;
9th.- he shall supply any local information which the District Magistrate, or any officer of police may require;
10th.- he shall obey the order of the panchayat in regard to keeping watch within his village and other matters connected with his duties as Chaukidar;
11th.- he shall assist the person collecting the rate in making such collection.
9. Under Chaukidari Act, the Chaukidar has the power to arrest a proclaimed offender and/or any other person who in his presence commits an offence specified in Schedule B or against whom a hue and cry has been raised of his having been concerned in any such offence. Section 40 requires the Chaukidar to take the person arrested by him to the police station within the limit of which the village is situated. Section 41 empowers the Panchayat to exercise general control over the Chaukidars. This Act does not give any power to the Chaukidar either to make any investigation under Chapter XII, Cr.P.C. or to submit report under Section 173 thereof.
10. The Rural Police Act does not apply to the whole of the State. It has been extended to the districts of Hazaribagh Ranchi and Palamau. Parts-I, II and IV of this Act have been applied to the districts of Singhbhum except Khalan Government State and the district of Dhanbad. But Part III had been extended to some of the Parganas of Dhanbad district also. The ‘Village Police-Man’ as defined under Section 2 of the above Act includes a Chaukidar. The Chaukidar is appointed by the State Government. Section 21 which has laid down the powers and duties of the Chaukidar is reproduced below :-
21. Duties of village police-man.- (1) Every village-policeman appointed under this Act shall perform the following duties :-
(i) he shall give immediate information, to the officer in charge of the police-station within the limits of which his village is situated, of every unnatural, suspicious or sudden death which may occur, and of every offence specified in the Schedule which may be committed, within such village;
(ii) he shall keep the police informed of all disputes which are likely to lead to any riot or serious affray;
(iii) he shall arrest –
(a) all proclaimed offenders,
(b) all persons whom he may find in the act of committing any offence specified in the Schedule, and
(c) any person against whom a hue and cry has been raised of his having been concerned in any offence specified in the Schedule, whether such offence has been or is being committed within or outside his village;
(iv) he shall, to the best of his ability, prevent, and may interpose for the purpose of preventing, the commission of any offence specified in the Schedule;
(v) he shall assist private persons in making such arrests as they may lawfully make, and shall without delay report such arrests to the officer in-charge of the police-station within the limits of which his village is situated;
(vi) he shall receive into his custody persons who have been lawfully arrested;
(vii) he shall observe, and from time to time report to the officer in charge of the said police-station, the movements of all bad characters in his village.
(viii) he shall report to the officer in charge of the said police-station the arrival of suspicious characters in the neighbourhood;
(ix) he shall, at such intervals as the Deputy Commissioner may determine, report to the officer in-charge of the said police-station the births and deaths (if any) which have occurred within his village;
(x) he shall present himself at the said police-station at such intervals as the Deputy Commissioner may determine;
(xi) he shall supply any local information which the Deputy Commissioner or any officer of police may require; and
(xii) he shall obey the orders of the Deputy Commissioner in regard to keeping watch in his village and to other matters connected with his duties as village policeman.
(2) The expression “his village,” as used in this section with reference to any village-policeman, means the village for which such village-policeman is appointed.
The Rural Police Act also does not empower the Chaukidar to make investigation under Chapter XII, Cr.P.C. He can only arrest a proclaimed offender or a person who commits the offence or against whom a hue and cry is raised but the person so arrested has to be produced before the concerned police station.
11. The State Government appoints a Chaukidar under Section 24 of the Village Administration Act on the basis of the recommendation made by the Union Board. But if the Union Board does not make any nomination within a reasonable time or the Government does not agree with the nomination made, the Government is free to appoint any person to be the Chaukidar. Section 27 defines the powers and duties of the Chaukidar and the same is reproduced below:-
27. Powers and duties of dafadars and chaukidars.-
(1) Every chaukidar shall exercise the following powers and perform the following duties :-
(i) he shall give immediate information to the officer in charge of the police-station within the limits of which the union is situated and to the President of the Union Board, of every unnatural, suspicious or sudden death which may occur, and of any offence specified in Schedule III which may be committed within the union, and he shall keep the police and the President of the Union Board informed of all disputes which are likely to lead to a riot or serious affray;
(ii) he shall arrest –
(a) all proclaimed offenders;
(b) all persons whom he may find in the act of committing any offence specified in Schedule III;
(c) any person against whom a hue and cry has been raised of his being concerned in any offence specified in Schedule III whether such offence has been or is being committed within or outside his union;
(d) any person in whose possession anything is found which may reasonably be suspected to be stolen property, or who may reasonably be suspected of having committed an offence with reference to such thing: and
(e) any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;
(iii) he shall, to the best of his ability, prevent, and he may interpose for the purpose of preventing, the commission of any offence specified in Schedule III;
(iv) he shall assist private persons in making such arrests as they may lawfully make, and he shall report such arrests without delay to the officer in charge of the aforesaid police-station;
(v) he shall observe and from time to time report to the said officer the movements of all bad characters within the union;
(vi) he shall report to the said officer the arrival of suspicious characters in the neighbourhood;
(vii) he shall report in such manner as may be prescribed by the District Magistrate the births and deaths which have occurred within the union;
(viii) he shall supply any local information which the District Magistrate or any police officer may require;
(ix) he shall obey the orders of the Union Board in regard to keeping watch within the union and in regard to other matters connected with his duties as Chaukidar;
(x) he shall give immediate information to the Union Board of any encroachment on or obstruction to, any road within the union and of any damage to any property under the control of the Union Board;
(xi) he shall assist the person collecting the union tax in making such collection;
(xii) he shall serve such processes upon persons resident within the union as maybe prescribed by rules under this Act, and
(xiii) he shall carry out such other duties as may be entrusted to him from time to time in accordance with this Act or any rules made thereunder.
(2) Every dafadar shall exercise all the powers conferred on a Chaukidar under Sub-section (1) and shall perform such duties as may be imposed upon him by rules made under this Act.
12. This Act almost replaces the earlier two Acts, depending on applicability of Part III thereof to an area/union. Sub-section (2) of Section 2 has laid down that when the provisions of Part III which deals with the village police which includes the Chaukidar are in force in any union, the enactments specified in Schedule II shall stand repealed or amended to the extent specified therein. In Schedule II, the Chaukidar Act and Rural Police Act have been mentioned. The resultant position is that if Part III of the Village Administration Act has been made applicable to an area/union, the other two Acts, namely, Chaukidari Act and the Rural Police Act, will not apply to it.
13. Even the Village Administration Act does not give any power of investigation under Chapter XII, Cr.P.C. to the Chaukidar. Like earlier two Acts, he can only arrest a proclaimed offender or any other person who commits an offence or against whom a hue and cry is raised and the person so arrested has to be produced by the Chaukidar before the concerned police-station.
14. Chapter IA of the Bihar Police Manual, 1978 (hereinafter referred to as the Manual) deals with the organization and personnel of the police department. In this Chapter, category-wise set up of police force in the State has been given, which is as follows :-
(i) State Level, (ii) Range Level, (iii) District Level, (vi) Village Level, (v) Bihar Armed Police Force, (vi) Rural Police and (vii) Miscellaneous Force.
Village Level police consists of Chaukidar appointed for the villages. Rule 111 of the Manual which has laid down the powers and duties of the village police is reproduced below :-
111. Powers and duties of village police.- (a) The powers and duties of dafadars and chaukidars are prescribed in the following Acts and Rules :-
A. In those districts in which Part III of the Bihar and Orissa Village Administration Act, 1922 is in force — Section 27 and Schedule III of the said Act and Rules 6 to 10 of the Bihar and Orissa Chaukidari Rules, 1923.
B. Where the Village Administration Act is not in force.-
(1) Section 21 of the Chota Nagpur Rural Police Act, 1914, and Rules 79-81 made under that Act in those districts to which this Act applies.
(2) In other districts Section 39, Bengal Act VI of 1870, and paragraphs 141-163 of the Chaukidari Manual, 1907 (1959 edition).
(b) A register of village chaukidars shall be maintained at all police stations in the forms noted below :-
(i) For districts where the Acts in A and B (2) of clause (a) are in force, Register 2 of Chaukidari Manual, 1907.
(ii) For districts where the Act in B(1) of clause (a) is in force, Register 1 of Rules made under the Chota Nagpur Rural Police Act, 1914.
15. Rule 926-G of the Manual requires maintenance of rankwise list of Chaukidars, dafadars etc. in Chaukidari section of the office of the Superintendent of Police. The said rule has laid down that it is the responsibility of the Superintendent of Police of the districts of Hazaribagh, Ranchi, Palamau and Singhbhum in part of which the Rural Police Act is applicable to draw the pay of rural police every month and get it distributed through the Station Officer.
16. From the perusal of the aforementioned three Acts and the Manual, it is apparent that the Chaukidars are appointed under one of the aforesaid three State Acts. Chaukidars so appointed under any of those Acts have been declared as village policemen and have been given power to arrest a proclaimed offender and/or any person who commits offence specified therein or against whom have and cry has been raised. But they do not have the power of investigation including the power to submit report under Chapter XII, Cr.P.C. Neither any of the three Acts mentioned above inclusive of the Rules framed thereunder, nor Cr.P.C. gives them any such power. Even the Manual does not confer any such power on them. Therefore, in view of the law laid down by the Apex Court, a Chaukidar cannot be a ‘police officer’ within the meaning of Section 25 of the Evidence Act.
17. The Division Bench of this Court in Emperor v. Mt. Jagia AIR 1938 Patna 308 : 1938 (39) Cri LJ 428 (supra) has declared a Chaukidar as a police officer because he has been regarded as a member of village police under Chaukidari Act and the Village Administration Act, although this Court had also noticed the fact that “a Chaukidar may not be a police officer within the meaning of the Code of Criminal Procedure which lays down the powers to be exercised by a police officer for the purpose of the Code.” As the Chaukidar does not have the power of a police officer under Cr.P.C. as observed by the Division Bench itself, he cannot be said to be a ‘police officer’. This judgment, therefore, cannot be sustained being contrary to the law laid down by the Apex Court. The same is the position with regard to the Mt. Punia Goalin v. Emperor AIR 1947 Patna 146 : 1947 (48) Cri LJ 412 (supra) which has followed earlier decision in Mt. Jagias’s case (1938 (39) Cri LJ 428). This decision has also to go for the same reason. For the same reason, the decision of the Full Bench of the Allahabad High Court in Deokinandan v. Emperor AIR 1936 Allahabad 753 : 1937 (38) Cri LJ 40 on which reliance has been placed by the learned counsel for the appellants cannot be followed because the law laid down therein is contrary to the law laid down by the Apex Court.
18. The other two decisions in Siddappa v. State of Karnataka 1991 Cri LJ 458 (Kant) and Vistari Narayan Shebe v. State of Maharashtra 1978 Cri LJ 891 (Bombay) on which also reliance has been placed by the learned counsel for the appellants cannot be followed because the law laid down therein is contrary to the law laid down by the Apex Court. In Siddappa v. State of Karnataka (supra) a Dalpati in the State of Karnataka was held to be a ‘police officer’ by the Karnataka High Court within the meaning of Section 25 of the Evidence Act on the ground that under the Karnataka Village Defence Parties Act and the Rules framed therein he virtually discharges the duties of the police officer. But there is nothing to show that he has the power of investigation under Chapter XII, Cr.P.C. In fact, the question as to whether he has the power of investigation under Chapter XII, Cr.P.C. was not considered. As held by the Apex Court, unless a person has such powers he cannot be treated to be a ‘police officer’ within the meaning of Section 25 of the Evidence Act. In the other case, Vistari Narayan Shebe v. State of Maharashtra 1978 Cri LJ 891 (supra), the Bombay High Court held that the character of the police Patil is that of a police officer as mentioned in Section 25 of the Evidence Act. The High Court relying on State of Punjab v. Barkat Ram AIR 1962 SC 276 : 1962 (1) Cri LJ 217 has laid down that the words ‘police officer’ are not to be construed in a narrow sense but should be construed in a wider and popular sense. The High Court accordingly held that “it is not necessary that an officer should be part of Cr.P.C. in order to come within the mischief of Section 25 of the Evidence Act. He need not also be an Investigating Officer so that the confession made to him is hit by Section 25 of the Evidence Act.” The decision of the Apex Court in Barkat Ram’s case (supra) was considered by the Apex Court itself in its later decisions including Raj Kumar Karwal v. Union of India 1991 Cri LJ 197 (supra) wherein the words ‘police officer’ have not been construed in a wider and popular sense and the Apex Court has laid down that only a person on whom power to investigate under Chapter XII, Cr.P.C. is conferred can be said to be a ‘police officer’ for the purpose of Section 25 of the Evidence Act. There is nothing to indicate that police patil has such power.
19. As the Chaukidar does not have any power to investigate under Chapter XII including the power to submit report under Section 173 thereof, he cannot be said to be a ‘police officer’ within the meaning of Section 25 of the Evidence Act. Emperor v. Mt. Jagia AIR 1938 Patna 308 : 1938 (39) Cri LJ 428 and Mt. Punia Goalin v. Emperor AIR 1947 Patna 146 : 1947 (48) Cri LJ 412 (supra) do not represent the correct legal position and the same are accordingly overruled.
20. Our answer to the questions referred to is as follows :-
(a) The village Chaukidar in this State is not a ‘police officer’ within the meaning of Section 25 of the Evidence Act; and
(b) The law laid down by the aforesaid Division Benches of this Court in Emperor v. Mt. Jagia AIR 1938 Patna 308 : 1938 (39) Cri LJ 428 and Mt. Punia Goalin v. Emperor AIR 1947 Patna 146: 1947 (48) Cri LJ 412 does not represent the correct legal position and the same is accordingly overruled.
21. Let the papers of this appeal be placed before the concerned Division Bench for decision of the appeal in accordance with law.
