ORDER V.R. Nevaskar, J. 1. During the conduct of a case in respect of offences under Section 33 (a) and (f) of the Madhya Bharat Madak Dravya Vidhan, the Magistrate First Class, Dewas. directed the Excise Officer who was conducting that case before him to stop from doing so in view of the provisions of Section 495 (4) of the Criminal Procedure Code on the ground that he was an Officer, who had taken part in the investigation of the case, and that for the purpose of that provision he should be deemed to be an Officer of the Police, Reference was made by the learned Magistrate to the decision in A.I.R. 1933 Bombay 234 Emperor vs. Gopal Shinde and my decision as a Judge of Madhya Bharat High Court reported In 1955 Madhya Bharat Law Journal Criminal 1132 Yakub vs. State in support of the View that an Excise Officer who had taken part in the course of the investigation of the offence ought not to be allowed to conduct the case He also was of the view that on principle he ought not to be allowed to do so. 2. State preferred revision-petition against that decision before the Additional Sessions Judge Dewas who agreed with the view taken by the Magistrate and dismissed the revision-petition. 3. The present revision-petition is directed against those decisions. 4. The learned Government Advocate who appears for the petitioner contended that having regard to the language used in Section 495 (4) of the Criminal Procedure Code there should be no doubt that an Excise Officer, although he might have taken part in the conduct of the case, cannot come within the terms of that provision, He further contended that even on principle although there might be good reason to hold that for the purpose of Section 25 of the Evidence Act an Excise Officer who is conducting the investigation should be a Police Officer and that confessions made before him would for that reason be inadmissible in evidence, yet no such matter of principle is involved in giving an interpretation to the wording of section 495 (4) of the Criminal Procedure Code by straining the language and holding that an Officer of Police virtually means a person exercising the powers of a Police Officer. He has made reference in this connection to the terms of section 60 of the Excise Act and particularly to the provisions of Sub-clause (i) of that section which lays down that any Excise Officer not below such rank and within such specified area, as the Government may by notification prescribe, may as regards offences under sections 33, 34, 35 and 36, exercise the powers conferred on an Officer in charge of a Police Station by the provisions of the Indian Code of Criminal Procedure, 1898. He reasoned that the very fact that the Government may, by notification, prescribe that with respect to certain offences mentioned an Excise Officer not below a particular rank is entitled to exercise powers of an Officer in charge of a Police Station, it is difficult to call him an Officer of the Police. Reference in this connection was also made to section 25 of the Evidence Act which lays down that no confession made to a Police Officer shall be proved as against a person accused of an offence. He contends that the reason of the rule contained in section 25 of the Evidence Act required that the term 'Police Officer' used in that section should be construed in a broader sense so as to include other Officers who exercise the power of a Police Officer during the course of investigation. In case such a broader meaning is not assigned to that term it will lead to very undesirable consequences. Whenever a person has got the duty under law to investigate an Officer there will always be a temptation to have a short cut and confessions is one of such modes. The object in excluding confessions is to prevent this. The principle would apply equally to the Excise Officer performing the functions of a Police Officer during the investigation and for that reason so far as section 25 is concerned he should be construed to be a Police Officer. According to him no such position arises in respect of a conduct of a case before a Criminal Court and no serious undesirable consequences are likely to result in case the provision contained in section 495 (4) of the Criminal Procedure Code is construed in accordance with the language actually used there. According to him no such position arises in respect of a conduct of a case before a Criminal Court and no serious undesirable consequences are likely to result in case the provision contained in section 495 (4) of the Criminal Procedure Code is construed in accordance with the language actually used there. Reliance was placed by the Learned Counsel on the decision reported in A.I.R. 1933 Bom 234 Emperor vs. Gopal Shinde in support of his contention. 5. On the other hand Mr. Bhawaniprasad, who appears for the other side, strongly urged that what applies for the purposes of section 25 of the Evidence Act should apply with equal force for the purposes of section 495 (4) of the Criminal Procedure Code and that if it is purported to construe the Police Officer to mean an Excise Officer for purposes of section 25 of the Evidence Act, there is no reason why similar construction should not be put upon the words for the purposes of section 495 (4) of the Criminal Procedure Code. According to him if the prohibition indicated in section 495 (4) of the Criminal Procedure Code has any meaning vis-a-vis a Police-officer investigating into an offence the same prohibition should work on an Excise Officer who has investigated a case. In support of this contention he relied upon the decision reported in A.I.R. 1935 Nag 12 Ramkaransingh vs. Emperor, A.I.R. 1934 Cal 580 Amin Sharrif vs. Emperor and, 1955 MBLJ 1132 Yukub vs. State. 6. In my opinion the contention raised on behalf of the State by the learned Government Advocate ought to prevail in this case. 7. Section 495 (4) of the Criminal procedure Code is in the following terms:-- An Officer of Police shall not be permitted to conduct the prosecution if he had taken any part in the investigation into the offence with respect to which the accused is being prosecuted. 8. It is clear from the wording of this provision that a prohibition to conduct a case investigated by an Officer is confined to the Officer of Police and if interpreted liberally it would clearly exclude Officers other than those of Police It will not on its plain meaning include an Excise Officer. 8. It is clear from the wording of this provision that a prohibition to conduct a case investigated by an Officer is confined to the Officer of Police and if interpreted liberally it would clearly exclude Officers other than those of Police It will not on its plain meaning include an Excise Officer. Section 60 of the Madhya Bharat Excise Act which deals with the powers of the Excise Officers in the matter of investigation provides for the exercise of those powers by him which are conferred upon the Officers in charge of a Police Station under the Criminal Procedure Code. It is one thing to say that a particular Officer is an Officer of Police and it is another thing to say that he shall be entitled to exercise powers conferred upon the Officer in charge of a Police Station. The two terms cannot be read anonymous unless there is some reason or principle involved which would justify a slight straining of the language in order to give effect to the ultimate mischief which is sought to be remedied by the provisions of law. This question has been considered directly by Bombay High Court in the case relied upon by the Learned Counsel for the petitioner referred to above. There Murphy and Broomfield J. J. held that Excise Officers are not included in the expression "Officers of Police" in section 495 (4) of the Criminal Procedure Code. Their Lordships considered the earlier Full Bench decision of the Bombay High Court reported in A.I.R. 1927 Bom 4 Nand Vs. Emperor, in which 5 judges sitting together had held that a confession made to an Excise Officer, who under the Abkari Act exercised all the powers of an Officer in charge of a Police Station is a confession made to the Police Officer within the meaning of section 25 of the Evidence Act. The learned Judges proceeded to consider the language used in clause (4) of section 495 and particularly the words "Officer of Police" on the basis of the definitions contained into the Police Act. The learned Judges proceeded to consider the language used in clause (4) of section 495 and particularly the words "Officer of Police" on the basis of the definitions contained into the Police Act. They also took into account the fact that no definition is given of the terms used in section 495 (4) in the General Clauses Act and also the earlier unreported decision of the same High Court in Criminal Appeal No. 418 of 1919 Emperatory vs. Wharles Stanley It was pointed out by their Lordships in the case reported in A.I.R. 1933 Bom 234 Emperor vs. Gopal Shinde referred to above that the learned Judge who decided Criminal Appeal No. 418 of 1919 had not expressed any definite opinion on the point in question although they were inclined to hold that such conduct of a case by an Excise Officer though may not be illegal was at any rate indiscreet. They further were inclined to hold that the cases under section 25 or the Evidence Act and those under Section 495 (4) or the Criminal Procedure Code were not analogous and that what applied to section 495 (4) of the Criminal Procedure Code. As regards the construction to be put upon the terms "Officer of Police" they observed at Page 236 :-- One concerns a matter of evidence; the other one of procedure. The first excluded a certain kind of evidence on the general principle underlying all rules of exclusion that such evidence is too dangerous to use. 9. I think the reasoning given by the learned Judges in this case clearly answers the objection that the words 'Police Officer' if Interpreted too literally for the purpose of section 25 of the Evidence Act will lead to undesirable results and also explains why at the cost of straining the languages as used in section 25 of the Evidence Act, Excise Officers ought to be included within the meaning of the term Police Officer' as used in that Section. The decision in A.I.R. 1935 Nag 13 Ramkaransingh vs. Emperor and A.I.R. 1934 Cal 580 Amin Shariff vs. Emperor only lay down that for the purpose of section 25 of the Evidence Act an Excise Officer is a Police Officer. 10. Mr. The decision in A.I.R. 1935 Nag 13 Ramkaransingh vs. Emperor and A.I.R. 1934 Cal 580 Amin Shariff vs. Emperor only lay down that for the purpose of section 25 of the Evidence Act an Excise Officer is a Police Officer. 10. Mr. Bhawaniprasad then argued that at any rate in this case, the discretion has been exercised by the learned Magistrate refusing to permit the Excise Officer to conduct the prosecution and there is no reason why this Court in a revision-petition should interfere with the discretion used by the learned Magistrate. 11. In my opinion had it been on the ground of discretion that the refused permission to the Officer concerned to conduct the case it would have been a different matter but the learned Magistrate definitely stated in the order after referring to the decision reported in A.I.R. 1933 Bom 234 Emperor vs. Gopal Shinde and other decisions that Excise Officer being a Police Officer ought not to be permitted to conduct the case. Although the learned Magistrate does not specifically refer to section 495 (4) of the Criminal Procedure Code In his order having regard to the authorities to which reference is made it is clear that it is upon that provision that the Magistrate had relied. 12. I therefore set aside that order passed by the learned Magistrate which prohibited the Excise Officer in question to take part in the conduct of the case.