WHO IS A POLICE OFFICER FOR THE PURPOSES OF SECTION 25 OF THE INDIAN EVIDENCE ACT, 1872?
“Every day, in every city and town across the country, police officers are performing vital services that help make their communities safer.”
If he could be treated as a “police officer” for the purpose of Section 25 of the Evidence Act, then any confession made to him cannot be proved as against a person accused of an offence. If, on the other hand, such an officer is not a “police officer” within the meaning of Section 25 of the Evidence Act, then any confession made to him by a person accused of an offence will not be hit by Section 25 of the Evidence Act.
This paper undertakes An analytical review of decisions of courts to determining who a police officer is for the purposes of Section 25.
Keywords: Police Officers, Admissibility, Confession
India follows an Adversarial Criminal Justice system in which a judge is an independent arbitrator and has no role in investigation of an offence. Advocates represent their clients before him and the responsibility of investigating into any crime and collecting evidences lies on the shoulder of Investigating agencies largely addressed as police. The Judge in accordance with law may or may not appreciate the evidences presented by the Advocates and Investigating agencies.
The Role of Police in India is very crucial, from law and order to investigating a crime and arresting criminals when required. In that regard, enormous Powers have been given to them. However power can corrupt even a wise man and there are various instances in history where power has corrupted humans. It becomes very pertinent to restrict and contain those powers so that no one misuse them.
One such containment has been provided by legislature under section 25 of Indian evidence Act, to protect the right of any accused against self incrimination. This section politely discourage the police from the resorting of force and safeguard the dignity and rights of accused. Section 25 lays down that a confession made by a person to the police officer is inadmissible and cannot be proved. The basic object of Section 25 is to prevent practices of torture by the police officers for the purpose of extracting confessions from the accused persons. Police may implicate anyone for the offence he has not done. It is well known that the police officer to secure confession uses short cut methods even by putting the arrested person into third degree so that the arrested person confesses.
“The principle upon which the rejection of confession made by an accused to a police-officer or while in the custody of such officer (Section 26) is founded that a confession thus made or obtained is untrustworthy.” 
This is the reasons for which no confession made to a police officer shall be proved under section 25 as against person accused of an offence. Inadmissibility of a confessional statement made to a police officer under section 25 is based on the ground of public policy. The section excludes all statement of incriminating nature made to a police officer whether made before or after becoming an accused person.
OBJECTIVES OF THE STUDY
- To determine who is a police officer for section 25 of IEA
- To understand the judicial outlook on section 25
SECTION 25 BARS ADMISSIBILITY OF CONFESSION TO POLICE
Section 25 states, “No confession made to a police officer, shall be proved as against a person accused of any offence.” Police officer is inherently suspect of employing coercion to obtain confession. Therefore, the confession made to a police officer under section 25 is totally excluded from evidence. This section covers a confession made by the accused when he was free and not in police custody, as also a confession made before any investigation has begun. Where in a case of murder, the FIR given by the accused contained confession as well as incriminating facts, it was held to be not admissible in evidence.
This section does not exclude all statements by an accused to the police but only confessions. There is a distinction between mere admission and confessions which are statements either directly admitting guilt or suggesting the inference of guilt of the crime charged. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed.
The Supreme Court explained the effect of provision in these words,
“The fascicule of section aims to zealously protect the accused against becoming the victim of his own delusion or the mechanisation of others to self-incriminate in crime. The confession, therefore, is not received with an assurance, if its source be not omni suspicious mojes, above and free from the remotest taint of suspicion. The mind of the accused before he makes a confession must be in a state of perfect equanimity and must not have been operated upon by fear or hope or inducement. A confession made to a police officer while the accused is in the custody or made before he became an accused, is not provable against him in any proceeding in which he is charged to the commission of an offence. Equally a confession made by him, while in the custody of the police officer, to any other person is also not probable in a proceeding in which he is charged with the commission of the offence unless it is made in the immediate presence of a Magistrate. Police officer is inherently suspect of employing coercion to obtain confession.”
Also Read: Police Act in India
WHO IS A POLICE OFFICER FOR SECTION 25 INDIAN EVIDENCE ACT
Despite multiple references to the term ‘police officer’ in the Indian Evidence Act 1872, a definition remains conspicuously absent. Perhaps this was on account of the Police Act, 1861. However, the latter only informs us that ‘Police’ includes all persons enrolled under this Act. The Black’s Law Dictionary defines a police officer as someone “responsible for preserving public order, promoting public safety, and preventing and detecting crime”.
With the increasing rate and different crimes in India, the Parliament enacted various special laws dealing with Excise, Customs, Railways, Taxes, NDPS and others. The duties pertaining to prevention, detention and investigation of crimes under these special acts are entrusted to officers possessing different nomenclature than a police officer. So it becomes very essential for the court to determine whether they are police officer for the purpose of section 25 of Indian Evidence Act.
The main question is whether an officer acting under a special statute and having powers of investigation, can be treated as a “police officer” for the purpose of Section 25 of the Evidence Act. If he could be treated as a “police officer” for the purpose of Section 25 of the Evidence Act, then any confession made to him cannot be proved as against a person accused of an offence. If, on the other hand, such an officer is not a “police officer” within the meaning of Section 25 of the Evidence Act, then any confession made to him by a person accused of an offence will not be hit by Section 25 of the Evidence Act.
The Supreme Court has also on occasion consulted the Oxford Dictionary for this task which defined police as a “department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the extent of its functions varying greatly in different countries and at different periods”.
In the case of R v. Hurribole, delivered soon after the enactment of the Evidence Act. Holding the Deputy Commissioner of Police to be a police officer for the application of Section 25, the Chief Justice observed, “Its humane object is to prevent confessions obtained from accused persons through any undue influence, being received as evidence against them. It is an enactment to which the Court should give the fullest effect, and I see no sufficient reason for reading the 26th section so as to qualify the plain meaning of the 25th. […] In construing the 25th section of the Evidence Act of 1872, I consider that the term “police officer” should be read not in any strict technical sense, but according to its more comprehensive and popular meaning.”
IMPORTANT CASE LAWS TO DETERMINE WHO IS A POLICE OFFICER UNDER SECTION 25
These Important cases help in understanding the views of the courts in India after Independence. The setting of Supreme court in 1950 helped to determine with less diversions and more specifically the answer as to how under different statutes one can determine who is a police officer and who not for the purpose of section 25 of Indian Evidence Act.
- BARKAT RAM CASE: ONE OF THE EARLIEST CASES ELABORATING ON THE ISSUE
One of the earliest three Judge Bench decisions of the Supreme Court was State of Punjab v. Barkat Ram.There, the question was as to whether a Customs Officer acting either under the Land Customs Act, 1924 or under the Sea Customs Act, 1878 or under the Foreign Exchange Regulation Act, 1947 could be treated as a police officer within the meaning of Section 25 of the Indian Evidence Act.
The majority consisting of J.L. Kapur & Raghubar Dayal J.J. held that the “Customs Officer” cannot be treated as a “police officer”. The Majority observed that,
“Mere similarity of investigative powers was insufficient; there must be a similarity in the purpose behind such conferral of powers. For someone to be considered a police officer, investigative powers must be conferred with the purpose of detecting and preventing crime in society. Since customs officers were conferred these powers to check smuggling of goods and evasion of duties, possessing similar powers as the police did not make them police officers.41 Furthermore, the judicial functions of customs officers under the Act made it impossible to call them police in the same breath”
The judgement also laid that the expression “police officer” is not restricted to police officers of the police forces enrolled under the Police Act, 1861. A person who is a member of the police force under the Police Act, 1861 will also be a member of the police force when he holds his office under any of the enactments dealing with the police.
While the powers conferred on the police officers are for the detection and prevention of crime, the powers conferred on the Customs Officers are merely for the purpose of ensuring that dutiable goods do not enter the country without payment of duty and that articles whose entry is prohibited are not brought in.
Therefore the judgment made it clear that there exists a slight difference between the expressions power of a police officer and power similar to that of a police officer. It can be inferred that the former includes power to register an FIR, investigate the offence and file police report under Section 173 of the Code, but the latter does not include power of filing police report although power to investigate may or may not be available to such an officer.
The Court after discussing at length came to the conclusion that the duties of customs officers are very different from that of police officers and even though they possess certain powers which are similar those of police officers, they cannot be strictly called as such. Hence, a confession made to a Customs Officer under the Sea Customs Act, 1878, is admissible in evidence and the bar contained under section 25 will not be attracted.
- JAISWAL CASE : SUBSTANTIAL CASE TO KNOW WHO IS A POLICE OFFICER FOR SECTION 25
It was a case where the Supreme Court had to decide whether confessions to Excise Officers under the Bihar & Orissa Excise Act, 1915, would fall within the ambit of Section 25. The court held in that,
“The Court need not burden itself with inquiring the purpose behind conferral of powers upon the officer. The simple question was this: would the powers conferred upon him facilitate in obtaining a confession from the suspect?46 It is the power of investigation which establishes a direct relationship with the prohibition enacted in Section 25, and this had been conferred upon excise officers under the aforesaid Act, as against customs officers who under the 1878 law could only make enquiries but not investigate an offence under Section 156 of the Cr.P.C., 1898. Thus, confessions made before excise officers were inadmissible”.
So in this case the determination as to whether under a statue a person is a policer officer for the purpose of section 25 is to know whether he has power of investigation so as to obtain a coercive confession from the accused. Therefore, it made it simple to determine who is a police officer.
- BADKU CASE: POLICE SHOULD HAVE POWER OF FILIING CHARGESHEET
In this case the five-judge constitutional bench of supreme court narrowed the way by which court can determine who is a police officer for the purpose of section 25, the court held,
“The test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173 of the Code of Criminal Procedure.”
- RAJ KUMAR KARWAL CASE: NDPS CASE
In Raj Kumar Karwal v. Union of India the section 53 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which conferred powers of an officer-in-charge of a police station upon officers of the Department of Revenue Intelligence (‘the DRI’) was in question.
In this case, the admissibility of confessions made to such officers was challenged. The Court reiterated that the “important attribute of police power is not only the power to investigate into the commission of cognizable offense but also the power to prosecute the offender by filing a report or a charge-sheet under section 173 of the CrPC. Since all powers under Chapter XII of CrPC had not been conferred upon DRI, they were not considered as police officers for section 25.
The above reasoning is used in determining the police officer in NDPS Act and many other statutes for the purpose of section 25 of Indian evidence Act. In Kanhayalal v. Union of India, the question was whether a confession made to an officer of the Central Bureau of Investigation under Section 67 of the NDPS Act, 1985 was hit by Section 25 of the Evidence Act. The two–Judge Bench answered the question in the negative by following the earlier verdicts to that effect.
AT PRESENT THERE IS STILL A LINGERING AMBIGUITY
Decisions prior to independence pointedly questioned the logic behind considering investigative powers as the sole factor to determine the application of Section 25, but the Supreme Court has reversed that logic and has gone ahead to only consider the power to file a charge-sheet as determinate in deciding who is a police officer for the purpose of section 25.
Today there being multiple statues and different power being given to officers under these Acts, the courts come up with different interpretation. Hence a definitive principle to determine who is a police officer under section 25 is not fixed.
Such as in Noor Aga v. State of Punjab, the Supreme Court was dealing with the facts similar to the Karwal, but this time the confessions were made before the custom officers. The lower courts reasoned on the basis of the Barkat Ram and Badku, which did not extend section 25 to these circumstances. The reasons were firstly, a difference in the purpose behind the powers conferred and secondly, the absence of power to file a charge-sheet.
But, The Apex Court distinguished these decisions on facts to depart from their previous conclusions. In those cases power was exercised under the Customs Act, here it was under the NDPS Act and it was observed that “when the custom officers exercise their power under the Act, it is not exercising its power as an officer to check smuggling of goods, it acts for the purpose of detection of the crime and bringing the accused to the book.”
Secondly, the court opined that the custom officers must be deemed to be police officers here as a special statute invested them with powers of an officer-in-charge of a police station. Since legal fiction must be given full effect, section 25 must be applicable to confessions made before such officers as well.
Similar to Noor Case there are many other case where court has taken a contradictory view from it previous reasoning as to who is a police officer so there still lingers a lacuna in determining a police officer for the purpose of section 25 of Indian Evidence Act.
CONCLUSION: WHO IS A POLICE OFFICER
The crucial test laid down by the Supreme Court for deciding whether an officer is a police officer or not for the purpose of Section 25 of the Evidence Act, is that such officer should not only possess the authority of an officer in-charge of a police station to conduct an investigation under Chapter XII of the Cr.P.C, but he should also have the authority to initiate a prosecution by filing a police report under Section.
But, today there being multiple statues and different power being given to officers under these Acts, the courts come up with different interpretation. Hence a definitive principle to determine who is a police officer under section 25 is not fixed.
And it would not be wrong to say that the ambiguity as to who is a police officer for the purpose of section 25 of Indian evidence Act is real and apparent. It has consumed a lot of precious time of Indian Courts. There needs a little more stable determination on the issue. A Concrete definition may not be possible as law and society remains very dynamic, but a less loose definition is sincerely required.
Moreover, the matter also deserves another look through the spectacles of “person in authority” occurring in Section 24 of the Evidence Act and Section 163 Cr.P.C. Let us hope and wish that the matter will get a fresh look at the hands of a larger Bench of the Supreme Court of India enlarging the scope of “person in authority” so as to include a “police officer” also for the purpose of Section 25 of the Evidence Act.
The Court can only interpret whatever the legislature has put in its plate. Therefore for a little more specific definition the legislature needs to come forward and do away with this ambiguity.
- Ratanlal & Dhirajlal, THE LAW OF EVIDENCE 108 (LexisNexis, 27th Edn, 2020).
- Batuk Lal, The Law of Evidence, 149 (Central Law Agency, Allahabad, 23rd Edn., 2020)
 Kartar Singh v State of Punjab, 1994 Cr LJ 3139
 Indian Evidence Act,
 Metropolitan SJ, Vijayawada v B Srinivasa Rao, 1992 Cr LJ 3027 (AP)
 Kartar Singh v State of Punjab, 1994 Cr LJ 3139
 Confessions, Police Officers and section 25 of The Indian Evidence Act, 1872, available at: http://docs.manupatra.in/newsline/articles/Upload/E53B970C-C35A-4FB4-B3E3-F17CB9A8BB1B.pdf (visited on September 16, 2021).
 State of Punjab v. Barkat Ram,  3 SCR 338, at 357
 R v. Hurribole, (1876) ILR 1 Cal 207
 Supra 8
 AIR 1962 SC 276
 Raja Ram Jaiswal v. State of Bihar,  2 SCR 752, at 779.
 Badku Joti Savant v. State of Mysore,  3 SCR 698.
 Raj Kumar Karwal v. Union of India, (1990) 2 SCC 409.
 The Code of Criminal Procedure, 1973, (Act 1 of 1973).
 AIR 2008 SC 1044.
 Noor Aga v. State of Punjab, (2008) 16 SCC 417.
 State of Punjab v. Barkat Ram, AIR1962 SC 276
 Badku Joti Savant v. State of Mysore,  3 SCR 698.
 Supra 9
 The Code of Criminal Procedure, 1973, (Act 1 of 1973).
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