Gurua Naik vs State of Orissa

C.R. Dash, J.—This Reference by a Division Bench to the Larger Bench raises the question whether ''Grama Rakshi'' is a Police Officer within the meaning of that expression in Section 25 of the Indian Evidence Act. After scrutinizing the evidence in the appeal, the Division Bench found that the appellant had made extra judicial confession before P.W. 1, who is the ''Grama Rakshi''. At that time P.Ws. 3, 4 and 7 were present. The Division Bench was faced with divergence of opinion expressed by this Court on the question as to whether ''Grama Rakshi'' is a Police Officer.

This Court, in the case of Madan '' Undu Barik Vs. The State, ; Dusasan Bhoi and Others Vs. The State of Orissa, ; Boisakhu Kollar Vs. State of Orissa, and Pandru Khadia Vs. State of Orissa, , had held that ''Grama Rakshi'' is a Police Officer. Per contra, this Court, in the case of Khageswar Khatua Vs. State of Orissa, , following the dictum of Hon''ble the Supreme Court in the case of Raj Kumar Karwal Vs. Union of India and others, , took the view that ''Grama Rakshi'' is not a Police Officer.

Hon''ble Supreme Court, in the case of The State of Punjab Vs. Barkat Ram, , had the occasion to deal with the question whether Customs Officer under the Land Customs Act, 1924 (Act XIX of 1924) or under the Sea Customs Act, 1878 (Act VIII of 1878) is a Police Officer within the meaning of that expression in Section 25 of the Indian Evidence Act. After liberal reference to provisions of the Police Act, 1861, aforesaid Customs Acts and construction of Section 25 of the Indian Evidence Act, Hon''ble Supreme Court held that Customs Officer is not a Police Officer. While arriving at the conclusion, Hon''ble Supreme Court had ruled "the words ''Police Officers'' are not to be construed in a narrow way, but have to be construed in a wide and popular sense." The Division Bench of this Court found that in Raj Kumar Karwal Vs. Union of India and others, Hon''ble Supreme Court had referred to the decision of that Court in the case of The State of Punjab Vs. Barkat Ram, which is a Larger Bench decision, but the same was not distinguished or discussed. Since in Khageswar Khatua Vs. State of Orissa, the decision rendered by Hon''ble Supreme Court in Raj Kumar Karwal''s case (supra) had been followed, the Division Bench was not in agreement with the view expressed in Khageswar Khatua''s case. Another point of disagreement by the Division Bench with the view expressed in Khageswar Khatua''s case is that, in Khageswar Khatua''s case this Court had relied on and followed Raj Kumar Karwal, which was a case dealing with confession made by the accused in a case under the N.D.P.S. Act before the officers of the Central Excise and Customs. Hence the Reference to resolve the question, whether ''Grama Rakshi'' is a ''Police Officer''.

Hon''ble Supreme Court, in the case of The State of Punjab Vs. Barkat Ram, , in paragraphs 16, 17 and 18 have held thus:-

(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 The Queen Vs. Hurribole Chunder Ghose, , 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 S. 25 of the Evidence Act.

(17) There has, however, arisen a divergence of opinion about officers on whom some powers analogous to those of police officers have been conferred being police officers for the purpose of S. 25 of the Evidence Act. The view which favours their being held police officers, is based on their possessing powers which are usually possessed by the police and on the supposed intention of the legislature at the time of the enactment of S. 25 of the Evidence Act to be that the expression ''police officer'' should include every one who is engaged in the work of detecting and preventing crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a police officer, does not become one merely because certain powers similar to the powers of a police officer are conferred on him.

(18) We now refer to certain aspects which lead us to consider that the expression ''police officer has not such a wide meaning as to include persons on whom certain police powers are conferred. The object of enacting S. 25 of the Evidence Act, whose provisions formerly formed part of the Code of Criminal Procedure, was to exclude from evidence, confessions made to the regular police which had a very bad reputation for the methods it employed in investigation, especially in forcibly extracting confessions with the object of securing a conviction. The past conduct of the members of the police organization justified the provision. It is too much to suppose that the Legislature did intend that all persons, who may have to investigate or arrest persons or seize articles in pursuance of any particular law of which at the time it had no conception, should be considered to be so unreliable that any confession made to them must be excluded just as a confession made to a regular police officer. If it could not contemplate the later creation of offences or of agencies to take action in respect to them under future legislation, it could not have intended the expression ''police officer'' to include officers entrusted in future with the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of customs duties. If the Legislature had intended to use the expression ''police officer'' for such a wide purpose, it would have used a more comprehensive expression. It could have expressed its intention more clearly by making any confession made to any officer whose duty is to detect and prevent the commission of offences inadmissible in evidence.

(Emphasis supplied)

On a thorough discussion of the subject, Hon''ble Supreme Court, per majority in the said case (Barkat Ram''s case) held that a Customs Officer under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 is not a Police Officer within the meaning of that expression in Section 25 of the Indian Evidence Act.

Hon''ble Supreme Court, in the aforesaid case of Barkat Ram, has, therefore, made it clear that the words "Police Officer" to be found in Section 25 of the Evidence Act are not to be construed in a narrow way but have to be construed in a wide and popular sense. Those words are, however, not to be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred.

Aforesaid view in The State of Punjab Vs. Barkat Ram, was relied on by Hon''ble the Supreme Court in the case of Raja Ram Jaiswal Vs. State of Bihar, . In that case (Raja Ram Jaiswal''s) Hon''ble Supreme Court was to consider whether a confession made by the appellant and recorded by the Excise Inspector, who was investigating the case, is admissible by reasons of the provisions of Section 25 of the Indian Evidence Act.

Paragraph 11 of the judgment reads thus:-

It may well be that a statute confers powers and imposes duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform he may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere conferral of some only of the powers of a police officer on such a person would not make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The contention thus is that when an officer has to perform a wide range of duties and exercise correspondingly a wide range of powers, the mere fact that some of the powers which the statute confers upon him are analogous to or even identical with those of a police officer would not make him a police officer and, therefore, if such an officer records a confession it would not be hit by S. 25 of the Evidence Act. In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a ''police officer'' for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a "police officer" for the purpose of S. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by S. 25, that is the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or a delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of a police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession.

(Emphasis supplied)

Analysing different provisions of Sea Customs Act, the nature and extent of powers enjoyed by the Customs Officer, and also taking note of Sections 78(3) and 77(2) of the Bihar and Orissa Excise Act, 1915 including provisions contained in Section 156, Cr.P.C., Hon''ble Supreme Court in the said case ( Raja Ram Jaiswal Vs. State of Bihar, ) in paragraph-12 of the judgment held that, "unlike the Customs Officer, on whom are conferred by the Sea Customs Act, 1878, powers of a limited character which are analogous to those conferred upon police officers, the powers of investigation into offences which a police officer enjoys are conferred upon Inspectors or Sub-Inspectors of Excise by the Bihar and Orissa Excise Act. It is the possession of these powers which enables police officers and those who are deemed to be police officers to exercise a kind of authority over the persons arrested which facilitate obtaining from them statements which may be incriminating the persons making them. The law allows the police officers to obtain such statements with a view to facilitate the investigation of the offences. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them. It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25. Therefore, where such a power is conferred upon an officer, the mere fact that he possesses some other power under another law would not make him any the less a police officer for the purposes of Section 25.

In the result, Hon''ble Supreme Court held that a confession made by a person accused of offence under the Bihar and Orissa Excise Act and recorded by an Excise Inspector, who is empowered under Notification No. 470-F, dated 15.01.1919, to investigate any offence under the Act, is inadmissible by reasons of the provisions of Section 25 of the Evidence Act.

Section 78(3) of the Bihar and Orissa Excise Act, 1915 provided in terms that "for the purposes of Section 156 of the Cr.P.C. 1808 the area on which an Excise Officer empowered u/s 77(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." These provisions having come to be considered in Raja Ram Jaiswal Vs. State of Bihar, , Hon''ble Supreme Court, taking into consideration the nature and extent of powers of Inspectors and Sub-Inspectors of Excise and the direct relationship of such power with the prohibition enacted in Section 25 of the Evidence Act, held that, an Excise Officer under Bihar and Orissa Excise Act is a ''police officer'' within the meaning of that expression in Section 25 of the Evidence Act.

The question as to whether the statements made by an accused person to the Deputy Superintendent of Customs and Excise is not hit by Section 25 of the Evidence Act and is admissible in evidence came to be considered by a Constitution Bench (Bench of five Hon''ble Judges) of the Supreme Court in the case of Badku Joti Savant Vs. State of Mysore, . Having taken into consideration the provisions contained in Section 21 of the Central Excises and Salt Act, 1944 and other provisions, Hon''ble Supreme Court in paragraphs 9, 10 and 11 of the judgment held that, Section 21(2) confers on the Central Excise Officer the same powers as an Officer-in-charge of a police station has when investigating a cognizable case. But, this power is conferred for the purpose of sub-section (1) of Section 21, which gives power to a Central Excise Officer to whom any arrested person is forwarded to enquire into the charge against him. It does not however appear that a Central Excise Officer under the Central Excises and Salt Act, 1944 has power to submit a charge-sheet u/s 173 of the Code of Criminal Procedure. Thus, though u/s 21(2) of the said Act the officer has power of an officer-in-charge of a police station, when investigating a cognizable case, the power is for the purpose of enquiry u/s 21(1) of the said Act and the power does not include power to submit a charge-sheet u/s 173, Cr.P.C. Even if the broader view, viz. that a Central Excise Officer is a "police officer" is accepted, mere conferment of powers of investigation like an officer-in-charge of a police station, into criminal offences u/s 9 of the Central Excise Act does not make the officer a police officer.

Hon''ble Supreme Court in Badaku Joti Svant distinguished Raja Ram Jaiswal Vs. State of Bihar, and held that the facts of the case in hand (in Badaku Joti Svant''s case) were more in accord with the case of The State of Punjab Vs. Barkat Ram, . Accordingly, Hon''ble Supreme Court held that the Central Excise Officer was not a police officer u/s 25 of the Evidence Act. From the discussion in Badaku Joti Svant, the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer u/s 25 of the Evidence Act, unless he has the power to lodge a report u/s 173 of the Cr. P. Code.

Hon''ble Supreme Court in the case of Romesh Chandra Mehta Vs. State of West Bengal, , again had the occasion to deal with the question whether a Customs Officer under the Customs Act, 1962 is a "police officer". After analyzing the provisions of the new Customs Act and the decided cases on the point, Hon''ble Supreme Court held the Customs Officer not to be a ''police officer'' on the ground that he has not been conferred with the power to lodge a report before the Magistrate u/s 173, Cr.P.C. Same view was expressed by Hon''ble Supreme Court in the case of Illias Vs. Collector of Customs, Madras, . The view has been reiterated by Hon''ble the Supreme Court in later decisions in the case of Harbansingh Sardar Lenasingh and Another Vs. The State of Maharashtra and Others, and Hazara Singh Vs. Union of India (UOI) and Others, . It is pertinent to mention here that in the case of Illias v. Collector, Customs, Madras (supra) this Court referred to a number of decisions of Hon''ble Supreme Court and finally approved the test laid down in Badku Joti Savant Vs. State of Mysore, and reiterated in Ramesh Chandra Mehta''s case.

Hon''ble Supreme Court in the case of State of U.P. Vs. Durga Prasad, held that an officer conducting enquiry u/s 8(1) of the Railway Properties (Unlawful Possession) Act, 1966 cannot be equated generally with the police officers, as is clear from the object and purpose of the Railway Protection Force Act, 1957, under which their appointments are made. It was further held that enquiry u/s 8(1) of the Railway Properties (Unlawful Possession) Act, 1966 does not amount to investigation under the meaning of Section 162 of the Cr.P.C. Hence, statements made during enquiry u/s 8(1) of the Act are not at par with the statements made during the course of investigation. Affirming this view, Hon''ble Supreme Court in the case of Balkishan A. Devidayal Vs. State of Maharashtra, of the judgment has held that, a primary test for determining whether an officer is a ''police officer'' is, whether the officer concerned under the Special Act has been invested with all the powers exercisable by an officer in-charge of a police station under Chapter XIV of the Criminal Procedure Code, qua investigation of offences under that Act, including the powers to institute prosecution by submitting a report (charge-sheet) u/s 173 of the Criminal Procedure Code, 1898. In order to bring him within the purview of a "police officer" for the purpose of Section 25 of the Evidence Act, it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code. After a comparative study of the relevant provisions of the Railway Properties (Unlawful Possession) Act, 1966 and the Code of Criminal u/s 8(1) of the 1966 Act is not a ''police officer'' within the meaning Procedure, Hon''ble Supreme Court held that an officer of the R.P.F. making an enquiry of that expression in Section 25 of the Evidence Act.

In the case of Raj Kumar Karwal Vs. Union of India and others, , the question that arose for decision was thus:--

Are the officers of the Department of Revenue Intelligence (DRI) who have been invested with the powers of an officer-in-charge of a police station u/s 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the NDPS Act'') "police officers" within the meaning of Section 25 of the Evidence Act? If yes, is a confessional statement recorded by such officer in course of investigation of a person accused of an offence under the said Act admissible in evidence as against him?

Hon''ble Supreme Court, in the aforesaid case, took into consideration the cases of The State of Punjab Vs. Barkat Ram, , Raja Ram Jaiswal Vs. State of Bihar, , Badku Joti Savant Vs. State of Mysore, and other reported decisions of the Hon''ble Supreme Court and came to hold in paragraphs 10 and 21 that Section 25 of the Evidence Act which engrafts a wholesome protection must not be construed in a narrow or technical sense but must be understood in broad and popular sense. But, at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. 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 or, a charge-sheet u/s 173 of the Code. Unless an officer is invested, under any special law, with the powers of investigation under the Code, including the power to submit a report u/s 173, Cr.P.C., he cannot be described to be a ''police officer'' u/s 25 of the Evidence Act. The officer, other than a police officer, invested u/s 53 of the NDPS Act with powers of an officer-in-charge of a police station is not entitled to exercise ''all'' the powers under Chapter XII of the Criminal Procedure Code including the power to submit a report or charge-sheet u/s 173 of the Criminal Procedure Code that being so, such officer is not a ''police officer'' within the meaning of Section 25 of the Evidence Act.

The same view has been reiterated by Hon''ble Supreme Court in State of Gujarat Vs. Anirudh singhh and another, , 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 tranquility in the society, but he does not have the power of investigation under Chapter XII of the Cr.P.C. and is, therefore, not a "police officer" within the meaning of Section 25 of the Evidence Act.

The decision rendered by Hon''ble Supreme Court in the aforesaid case of Raj Kumar Karwal Vs. Union of India and others, clearly shows that Hon''ble Supreme Court has relied on the case of The State of Punjab Vs. Barkat Ram, and has also followed the case of Badku Joti Savant Vs. State of Mysore, and other reported decisions of the Supreme Court to come to the conclusion. Though Barkat Ram''s case emanates from a larger Bench than the case of Raj Kumar Karwal, Hon''ble Supreme Court in Raj Kumar Karwal''s case having not been in disagreement with Barkat Ram''s case, we do not find any justification to take the same view as the Division Bench referring the matter being in disagreement with the view expressed in Khageswar Khatua Vs. State of Orissa, , which has followed the case of Raj Kumar Karwal. We, therefore, are not one in our view with the Division Bench referring the matter to the effect that the Supreme Court in Raj Kumar Karwal''s case had omitted to consider the binding precedent of that Court.

From the discussions supra, it is clear that the test for determining whether a person is a ''police officer'' for the purpose of Section 25 of the Evidence Act would be that the officer though invested under any special law with powers analogous to those exercised by a police officer in-charge of a police station investigating a cognizable offence, he does not thereby become a police officer u/s 25 of the Evidence Act, unless he has power to lodge a report u/s 173, Cr.P.C.

The Full Bench of Madhya Pradesh High Court in the case of State of Madhya Pradesh Vs. Premlal, has held that ''Kotwar'' is not a ''police officer'' within the meaning of Section 25 of the Evidence Act, though he may be performing certain functions which are performed by police and, therefore, an extra judicial confession made by an accused to the ''Kotwar'' is admissible in evidence and is not hit by Section 25 of the Evidence Act. In reaching such conclusion, the Full Bench of Madhya Pradesh High Court relied on the case of Badku Joti Savant Vs. State of Mysore, and other reported decisions of Hon''ble Supreme Court.

In the meantime, the Full Bench of Patna High Court (at Ranchi) in Paro Chamar and Another Vs. State of Bihar, has overruled the Division Bench decision of that Court in Emperor Vs. Mt. Jagia, , by following the consistent view of Hon''ble Supreme Court up to the case of Raj Kumar Karwal Vs. Union of India and others, and it has been held that "Village Choukidar" does not have power to investigate including power to submit report u/s 173, Cr.P.C. Applying the said test, it has further been held that he is not a ''police officer'' within the meaning of Section 25 of the Indian Evidence Act.

The Full Bench of Bombay High Court in Rajeshwar Mohurle (in Jail) Vs. The State of Maharashtra, , following Raj Kumar Karwal (supra), Badaku Joti Svant (supra) and other similar decisions of the Hon''ble Supreme Court, has held that ''Police Patil'' appointed under Maharashtra Village Police Act (46 of 1967) is a person responsible primarily for village surveillance, prevention of crime and providing assistance to police in discharge of their duties. His duties and functions are subject to orders of the District Magistrate. Powers of ''Police Patil'' to investigate and control over apprehended persons are limited in their nature and scope and are not as wide, specific as of a ''police officer'' under the Cr.P.C. A ''Police Patil'' cannot be said to be a ''Police Officer'' in law for all intent and purpose. A confession made to Police Patil therefore is not hit by provisions of Section 25 of the Evidence Act, as the Police Patil appointed under the 1967 Act is not a ''police officer'' for purposes of Section 25 of the Evidence Act.

It is pertinent to mention here that ''Kotwar'' in Madhya Pradesh, ''Village Choukidar'' in Bihar and ''Police Patil'' in Maharashtra are equivalent posts of ''Grama Rakshi'' in Odisha.

Oblivious of these developments, Mr. G.S. Pani, learned counsel for the appellant relies on the case of Madan '' Undu Barik Vs. The State, ; Dusasan Bhoi and Others Vs. The State of Orissa, ; Boisakhu Kollar Vs. State of Orissa, and Pandru Khadia Vs. State of Orissa, , to substantiate his contention to the effect that Grama Rakshi being a ''police officer'', any confession made before him by an accused is hit by Section 25 of the Evidence Act. He further submits that, this Court in Khageswar Khatua Vs. State of Orissa, followed the test applied by Hon''ble Supreme Court in Raj Kumar Karwal Vs. Union of India and others, which had dealt with confession made by the accused in a case under the N.D.P.S. Act before the officers of the Central Excise and Customs. On that ground alone this Court in Khageswar Khatua''s case should have distinguished the case of Raj Kumar Karwal.

Mr. Debasis Panda, learned Addl. Govt. Advocate on the other hand relies on different provisions of Orissa Grama Rakshi Act, 1967 and Rules made thereunder, to submit that nowhere Grama Rakshi having been empowered to file charge-sheet or submit a report u/s 173, Cr.P.C., he cannot be regarded as a ''police officer'' in view of the consistent view of Hon''ble the Supreme Court and the dictum in Raj Kumar Karwal''s case, which squarely applies to the facts of the present case as well as to the facts in Khageswar Khatua''s case.

As held in the case of The State of Punjab Vs. Barkat Ram, the words "police officers" should not be construed in a narrow way but have to be construed in a wide and popular sense. No problem arises when confession is made by an accused before a police officer of a regular police establishment within the provisions of the Cr.P.C. Such a confession attracts the inhibition of Section 25 of the Evidence Act. Problem however arises when certain police powers are conferred on persons exercising certain authority and police powers under a Special Act. Under this category comes officers exercising police powers under Customs Act, N.D.P.S. Act, Central Excise Act, etc. Faced with such problem, Hon''ble Supreme Court in Barkat Ram''s case (Bench consisting of three Hon''ble Judges) took a view to construe the words "police officers" in a wide and popular sense, but the construction should not be so wide as to include persons on whom certain police powers are conferred. In Badku Joti Savant Vs. State of Mysore, (Bench consisting of five Hon''ble Judges), Hon''ble Supreme Court, for the first time, adopted the test as discussed supra to determine as to who should be considered as a police officer within the meaning of that expression in Section 25 of the Evidence Act. The test adopted by Hon''ble Supreme Court in Badaku Joti Svant''s case has been followed and applied by the Supreme Court subsequently in the case of Raj Kumar Karwal Vs. Union of India and others, and other reported decisions as discussed supra. Irrespective of the Act/Acts, Hon''ble Supreme Court had dealt with in the aforesaid cases, the test adopted by it for determining as to who is a police officer has got universal application whenever any court is faced with the question as to whether a person exercising certain police powers under a special Act is a police officer within the meaning of Section 25 of the Evidence Act.

Section 21 of the Police Act, 1861 speaks of officers, who are not enrolled as police officers, and in such categories mentions hereditary or other village police officers. Therefore, "Grama Rakshi" being admittedly a village police officer is not a police officer within the meaning of the Police Act, 1861. Grama Rakshi is also not a police officer within the provisions of the Cr.P.C., as no provision of Cr.P.C. mentions about any village police officer or equivalent post or position. Appointment, duties and responsibilities of a Grama Rakshi are governed by the Orissa Grama Rakshi Act, 1967, which is a special Act. Said Act and the Rules made thereunder confer certain police powers on the Grama Rakshis. The Grama Rakshis therefore enjoy certain police powers on the areas for which they are appointed under a special Act. The question before this Court is whether a Grama Rakshi conferred with certain police powers under a Special Act is a ''police officer'' within the meaning of that expression in Section 25 of the Evidence Act. In view of our discussion supra, to answer the question, the test adopted by Hon''ble Supreme Court in the cases of Badaku Joti Svant, Raj Kumar Karwal and other cases shall have application to the facts of the present case. On the same analogy we also hold that this Court in the case of Khageswar Khatua Vs. State of Orissa, had rightly followed the ratio in the case of Raj Kumar Karwal.

This Court, in the case of Madan alias Undu Barik, relied on the case of Emperor Vs. Mt. Jagia, and the case of AIR 1941 563 (Oudh) to hold that Grama Rakshi is a ''police officer'' and any confession made before him by an accused is hit by Section 25 of the Evidence Act. This Court followed the ratio of The State of Punjab Vs. Barkat Ram, in Madan alias Undu Barik''s case to the extent that the words "police officers" are not to be construed in a narrow way, but have to be construed in a wide and popular sense. Decision of the Division Bench in Madan alias Undu Barik (supra) was followed in all subsequent cases relied by Mr. G.S. Pani, learned counsel for the appellant.

As discussed supra, Full Bench of Patna High Court in the meantime has already overruled Emperor Vs. Mt. Jagia, and, therefore, the very basis of the decision in Madan alias Undu Bank''s case has been held to be an erroneous view.

In view of law laid down consistently by the Apex Court, as discussed supra to the effect that unless a person is entitled to make investigation under Chapter XII, Cr.P.C. and submit the report u/s 173 thereof, he cannot be treated as a ''police officer'' for the purpose of Section 25 of the Evidence Act, the answer to the extent as to whether a Grama Rakshi is a ''police officer'' within the meaning of Section 25 of the Evidence Act depends on answer to another question, viz. whether he has the power of investigation including the power to submit report under Chapter XII, Cr.P.C. as per the scheme of Orissa Grama Rakshi Act, 1967 or Rules made thereunder. If he is found to have such power, he is a ''police officer'', otherwise not.

Mr. G.S. Pani, learned counsel for the appellant relies heavily on powers conferred on a Grama Rakshi to arrest any person in exercise of his powers, as provided in Rule 17 of Orissa Grama Rakshi Rules 1969, to contend that the power of arrest having been vested in a Grama Rakshi, he has the necessary authority to extort confession from an accused person if such occasion for him so arises. Mr. Pani further submits that though Grama Rakshi is appointed by the District Magistrate, his duties and responsibilities, as outlined in the Act and Rules, make him more proximate with the police establishment and the police officer investigating the case in suitable cases, may influence him to give a statement alleging extra judicial confession before him by an accused.

Mr. Debasis Panda, learned Addl. Govt. Advocate on the other hand tries to dispel fear expressed by learned counsel for the appellant, by submitting that possibility of an unscrupulous police officer influencing a Grama Rakshi to give a statement u/s 161, Cr.P.C. alleging extra judicial confession made by an accused before him cannot be a ground to declare him (Grama Rakshi) as a ''police officer'', as on admission of his statement into evidence it depends on the Court to appreciate the same like any other evidence and proper appreciation of evidence in such a case is the real safeguard to check such fear in the mind of the learned counsel for the appellant. Mr. Panda, learned Addl. Govt. Advocate further submits that power of arrest having been given to private persons in Section 43 of the Cr.P.C., such conferment of power on a Grama Rakshi in Rule 17 of the Orissa Grama Rakshi Rule 1969 cannot make the Grama Rakshi a ''police officer'' within the meaning of Section 25 of the Evidence Act.

Section 3 of the Orissa Grama Rakshi Act speaks about constitution of Grama Rakshi Force. Section 4 thereof provides that administration of the Grama Rakshi within a district is to vest in the Magistrate of the district subject to the control and direction of the Revenue Divisional Commissioner. Section 5 invests the Magistrate of the district with the power to appoint the Grama Rakshis. Section 6, which prescribes the powers and duties of the Grama Rakshi, reads as follows:-

Powers and duties of Grama Rakshis - Notwithstanding anything contained in the Code of Criminal Procedure, 1898, (5 of 1898), every Grama Rakshi shall exercise and discharge the following powers and duties, namely:

(a) to give immediate information to the officer-in-charge of the police-station within whose local limits, the village, of which he is the Grama Rakshi, is situated, of every unnatural, suspicious or sudden death which may occur and of every offence specified in the Schedule which is committed in such village;

(b) to keep the police informed of all disputes, which are likely to lead to a riot or serious affray;

(c) to the best of his ability, to prevent and interpose for the purpose of preventing the commission of any offence specified in the Schedule;

(d) to assist private persons in making such arrests as they may lawfully make and to report such arrests without delay to the officer-in-charge of the aforesaid police station;

(e) to observe and from time to time to report the officer-in-charge of the aforesaid police station the movements of all bad characters and also of the arrival of any suspicious characters within his jurisdiction;

(f) to report the births and deaths, which have occurred within his jurisdiction to the officer-in-charge of the aforesaid police station at an interval of fifteen days;

(g) to supply any local information which the Magistrate of the district, Sub-divisional officer or any Police-officer may require;

(h) to assist the Grama Panchayat and the Revenue Officers within whose local limits he is appointed, in making collection of taxes levied by the Grama Panchayat and of dues payable to Government and to assist the Grama Panchayat in serving the notices issued by it and calling persons to attend at all meetings convened by it;

(i) to assist the Police-officers in investigation of offences and in identification of witnesses, persons summoned by a Court, and persons against whom warrants of arrest have been issued by a Court;

(j) to report immediately to the officer-in-charge of the aforesaid police station any damage to any protected monument or public property;

(k) to regulate and control the traffic in the streets, and to prevent obstructions therein;

(l) to take care of Government land, orchards, trees and other Government property entrusted to him; and

(m) to exercise and perform such other powers and duties as may be prescribed.

Rule 17 of the Rules invests the Grama Rakshi with power to arrest any person and take such person forthwith to the police station. Rules 16, 18, 19, 20, 21, 22 and 23 of the Rules prescribe certain other duties for the Grama Rakshis to perform.

Nowhere the Act or the Rules prescribe any power or authority on the part of the Grama Rakshi to investigate a case or to submit a report (charge-sheet) u/s 173, Cr.P.C. The powers to be exercised by the Grama Rakshi, is primarily for surveillance, prevention of crime in the village, providing assistance to police in discharge of their duties and provide assistance to Panchayat and Revenue Authorities, whenever required. So far as power of arrest by the Grama Rakshi or assistance by him to a private person to arrest a culprit are concerned, similar power is given to even a private person u/s 43 of the Cr.P.C., which provides that any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence or is a proclaimed offender and make over any person so arrested to the police officer or to the police station. For the aforesaid power of arrest on the part of a private person, a private person making an arrest in a given case cannot be treated as a police officer within the meaning of Section 25 of the Evidence Act. Such a view, if taken, becomes too far fetched. In view of such fact, similar power given to a Grama Rakshi in Rule 17 of the Rules will not make him a ''police officer'' within the meaning of Section 25 of the Evidence Act, because he has neither further power of investigation nor has authority of submitting charge-sheet against the person arrested.

The Hon''ble Supreme Court, in the case of Francis Stanly @ Stalin Vs. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, , relied on the case of Raj Kumar Karwal Vs. Union of India and others, , and proceeding further held thus:-

We are of the opinion that while it is true that a confession made before an Officer of the Department of Revenue Intelligence under the NDPS Act may not be hit by Section 25 in view of the aforesaid decisions, yet such a confession must be subject to closer scrutiny than a confession made to private citizens or officials who do not have investigating powers under Act. Hence the alleged confession made by the same appellant must be subjected to closer scrutiny than would otherwise be required.

The aforesaid dictum of Hon''ble Supreme Court makes it clear that more care and circumspection is expected from the Courts appreciating the evidence so far as confession made by an accused before an officer investigating the case is concerned, when such confession is held to be admissible u/s 25 of the Evidence Act.

From the duties and responsibilities of a Grama Rakshi, as discussed above, it is clear that he (a Grama Rakshi), for the nature of his duties, has got proximate relationship with the regular police establishment. Because of his position in the scheme of things and his vulnerability as a rustic person coupled with the dominant supervision over him by the police, there is possibility of his being influenced by an Investigating Officer to secure a conviction in certain cases, though not all. It may so happen that in a case, where there is no other evidence, the extra judicial confession of the accused before a Grama Rakshi may be brought on record by examining the Grama Rakshi u/s 161, Cr.P.C. The Grama Rakshi in such a case, because of his inferior position, is bound to support his statement during trial. The accused, otherwise in such a case, may take advantage of Section 24 of the Evidence Act. We, however, taking a clue from the case of Francis Stanly @ Stalin Vs. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram, , are constrained to hold that the Court in such a situation, when confession before a Grama Rakshi is brought in evidence, should insist, as a rule of prudence, on corroboration.

The discussion supra, therefore, shows that the view expressed by the Division Bench of this Court in Madan alias Undu Barik''s case is erroneous and subsequent decisions of this Court on the said point like Dusasan Bhoi and Others Vs. The State of Orissa, ; Boisakhu Kollar Vs. State of Orissa, and Pandru Khadia Vs. State of Orissa, , etc. are also erroneous. They are held to be not good law in view of the development of law, as discussed supra.

In view of the decisions of Hon''ble Supreme Court discussed supra and of this Court in Khageswar Khatua Vs. State of Orissa, , the view taken in Madan alias Undu Barik''s case and other similar decisions in the case of Dusasan Bhoi and Others Vs. The State of Orissa, ; Boisakhu Kollar Vs. State of Orissa, and Pandru Khadia Vs. State of Orissa, , are overruled to the extent they hold that the confession made to a Grama Rakshi is inadmissible in evidence u/s 25 of the Evidence Act. Accordingly, we express our opinion to the effect that the confession made by an accused before a Grama Rakshi is admissible in evidence, as he is not a ''police officer'' within the meaning of that expression in Section 25 of the Indian Evidence Act.

The Reference is answered accordingly.