LexBALKISHAN A. DEVIDAYAL ETC. versus STATE OF MAHARASHTRA ETC.
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175
BALKISHAN A. DEVIDAYAL ETC.
v.
STATE OF MAHARASHTRA ETC.
July 31, 1980
(R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]
Railway Protection Force Act (XXTJI of 1957) Ss. 10, 12, 13, 14, 18,
Railway Property (Unlawful Possession) Act (XXIX of 1966), Ss. 9, 8, 3, 14-
Criminal Procedure .Code (V of 1898) Ss. 173(4), 251A, 252, 162, 4(h), 190(1),
{a)(b), 561A-Indian Evidence Act (I of 1872) Ss. 25, 26, 27-Railway
Protection Force Officer whether "Police Officers" under S. 25 of Evidence Act.
Constitution of India 1950, Article 20(3) & Railway Property (Unlawful
Possession) Act, 1966 s. 3 and 6-Person arrested by R.P.F. Officer for
Commission of offence under s. 3-Whether 'Person accused of offence'.
A
B
c
Words & Phrases--"Police Officer" under s. 25 of Evidence Act-Meaning
D
of.
On the allegations that the appellant in the Criminal Appeal alongwith
two other accused were in possession of railway property which they had
~obtained under forged
railway receipts, the Inspector of the
Railway
Protection Force lodged a complaint against the three accused that they were
guilty of offences under section 3(a) of the Railway Property (Unlawful
Pos11ession) Act, 1966 and action should be taken against them.
In the
Complaint it was mentioned that accused 2 and 3 were absconding and annexed
to the complaint was (!) a list of prosecution witnesses and (2) a list of
documents.
The appellant, who was accused 1 appeared before the Presidency
Magistrate who commenced an enquiry and recorded the statements of four
witnesses one. on March 2, 1973 and of the other three on June 12, 1973.
On
Jun" 11, 1973 the appellant moved an application before the Magistrate making
a. grievance that although three witnesses had been examined, no copies of the
document were furnished to him.
On June 25, 1973 he made a further
application requesting for supply of true copies of all the documents in the
<::ase to enable him to prepare the defence and that he should be / permitted
to take photostat copies of the documents.
The Magistrate on August 9,
1973 rejected the appellants' application on the ground that the offence
complained of against him was not cognizable and that the provisions of
' section 251(a) of the Code of Criminal Procedure were not applicable and
<:onsequently, he had no right to obtain copies of the documents concerned.
On August 24, 1973 the Magistrate framed a charge under section 3(a) of the
Act.
The accused pleaded not guilty and again made an application repeating
his request for copies of the statements of witnesses recorded by the Inspector
R.P .F.
This application was also rejected by the Magistrate on September
7, 1973.
F
G
H
A
B
c
D
F
G
H
SUPREME COURT REPORTS
[1981] 1 S.C.R.
Feeling aggrieved by the orders passed by the Magistrate on August 9,
1973 and September 7, 1973 the appellant invoked the inherent jurisdiction
of the High Court by a petition under section 561A of the Code of Criminal
Procedure, 1898 and prayed that the orders be quashed.
He challenged the
constitutional validity of section 9 of the Act in the petition.
The High Court
rejected the petition.
In the appeal to this Court it was contended on behalf of the appellant
(a) relying on Raja Ram Jaiswal vs. State 'of Bihar, [1964] 2 S.C.R. 752 that
the expression "Police Officer" in section 25 of the Evidence Act must be
considered in a wide popular sense, so as to include within its ambit all officers
of Government who are in substance invested with the power to investigate
certain offences in accordance with the provisions of the Code of Criminal
Procedure 1898 irrespective of the fact that they are differently labelled such
as Excise Officers or Customs Officers or members of R.P.F., otherwise the
very object of s. 25 will be defeated.
An Inspector of the R.P .F. making an
inquiry under the Railway Property (Unlawful Possession) Act 1966 into an
offence under section 3 of that Act, in substance, acts and exercises almost
all the powers of a 'Police Officer' making an investigation under the Code
of Criminal Procedure and any confessional statement recorded by such
Inspector will be hit by s. 25 Evidence Act.
The case of State of U.P. v.
Durga Prasad, 1975 (1) S.C.R. 881 was not correctly decided and that its ratio
needs re-consideration by a larger Bench because it has overlooked the test
laid down by the three Judge Bench in Raja Ram Jaiswal's case. (b) As soon
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