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2009 DIGILAW 324 (GAU)

Bircha Kurmi v. State of Assam

2009-05-15

H.BARUAH, I.A.ANSARI, J.CHELAMESWAR

body2009
JUDGMENT J. Chelameswar, C.J. 1. This matter was placed before this Full Bench pursuant to an order of reference dated 9.4.2009 which reads as follows: One of the important questions of law, raised in this appeal, is as to whether confession made by an accused to a police constable is or is not admissible in law. Having considered the question, so raised, we are of the view that considering the importance of the question, so raised, it is necessary that the matter be considered by a Larger Bench of appropriate strength. In view of the above and in the interest of justice, we release this appeal from CAV and direct that this appeal be laid before the Hon'ble Chief Justice for consideration if the appeal can be placed before a Larger Bench. 2. It can be seen from the above order of reference that the question raised is whether a confession allegedly made by an accused to a police constable is admissible in evidence or not. 3. Section 25 of the Evidence Act reads as follows: 25. Confession to police officer not to be proved.-No confession made to a police officer shall be proved as against a person accused of any offence. The Section makes a declaration in unequivocal terms that a confession made to a police officer is not admissible in law. 4. However, the learned public prosecutor argued that under Section 25 of the Evidence Act a confession made by an accused to a "police officer' and a constable who receives a confession from the accused not being an officer such a confession is not covered by the embargo under Section 25of the Evidence Act. 5. We are of the opinion that the question is no more res integral and squarely covered by a decision of the Supreme Court in AIR 1962 SC 276 (The State of Punjab v. Barkat Ram). At para 19 the Supreme Court held as follows: (19) The police officer referred to in Section 25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police of whatever rank and at whatever time, is inadmissible in evidence in view of Section 25. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police of whatever rank and at whatever time, is inadmissible in evidence in view of Section 25. It is abundantly clear from the above mentioned paragraph that the "police officer" referred to under Section 25 of the Evidence Act (1) need not be the officer investigating that particular offence in which the accused is involved and (2) such a confession need not have been made to an officer actually discharging any duty and, therefore, the Supreme Court held that any confession made to any member of the police of whatever rank and at whatever time is not admissible in view of Section25 of the Evidence Act. At para 16 the Supreme Court held that the word "police officer" under Section 25 of the Act is required to be construed in a wide and popular sense. Para 16 reads as follows: (16) The words 'police officer' are therefore not to be construed in a narrow way, but have to be construed in a wide and popular sense as was remarked in Queen v. Hurribole ILR 1 Cal 207, where a Deputy Commissioner of Police who was actually a police officer and was merely invested with certain Magisterial powers was rightly held to be a police officer within the meaning of that expression in Section 25 of the Evidence Act. 6. The learned Public Prosecutor, however argued that the expression "police officer" is not defined under the Evidence Act but the expression "police" is defined under Section 1 of the Police Act, 1861. The Evidence Act being a later enactment if really legislature intended to cover every member of the police service the legislators would not have employed the word "police officer" and, therefore, the expression "police officer" occurring under Section 25 of the Act must be constructed as personnel above the rank of a constable. This argument is only stated to be rejected in view of para 16 of the judgment in AIR 1962 SC 276 (supra). The Supreme Court held, the expression "police officer" is to be construed in a broad sense as understood commonly. 7. This argument is only stated to be rejected in view of para 16 of the judgment in AIR 1962 SC 276 (supra). The Supreme Court held, the expression "police officer" is to be construed in a broad sense as understood commonly. 7. In the result the question referred is answered to say that a confession made even to a police constable is inadmissible in law and the same is prohibited from being received as evidence under Section 25 of the Evidence Act.