N Criminal Appeal Nos
208 209 of 1974
Appeals by Special Leave from the Judgment and order dated 1819 1 1974 of the Bombay High Court in Criminal Revision Application Nos
82172 and 30574
AND SPECIAL LEAVE PETITION CRL No 630 OF 1977
From the Judgment and order dated 30 6 1972 of the Madhya Pradesh High Court in Crl
Rev No 8172
R K Garg B A Desai
V J Francis and D K Garg for the Appellant in Crl
A Nos 208 209
section K Gambhir and Miss Ram Rikhyani for the Petitioner in SLP No 63077
J L Nain and M N Shroff for the Respondent in Crl
Nos 208 209
179 The Judgment of the Court was delivered by SARKARIA J
These appeals by special leave directed against judgments dated January 17 1974 and March 29 1974 of the Bombay High Court raise among others three important questions namely 1 Whether an officer of the Railway Protection Force making an inquiry under the Railway Property Unlawful Possession Act 1966 hereinafter referred to as the 1966 Act in respect of an offence under Section 3 of that Act of unlawful possession of the railway property is a Police officer for the purposes of Section 25 Evidence Act and Section 162 of the Code of Criminal Procedure
1898 and as such
any confession or incriminating statement recorded by him in the course of an inquiry under Section 9 of the Act is inadmissible in evidence
2 Whether a person arrested by an officer of the Railway Protection Force under Section 6 of the Act for the alleged commission of an offence under Section 3 of the Act is a person accused of an offence within the meaning of Article 203 of the Constitution
3 Whether Section 9 of the Act is violative of Article 14 of the Constitution
E The appeals arise in these circumstances The Inspector Central Intelligence Bureau Head Quarters Bombay Shri P A Kakade filed a complaint before the Presidency Magistrate 35th Court Victoria Terminus Bombay complaining of the commission of an offence by the appellants herein in Crl
Appeals 208 and 209 of 1974 under Section 3 of the Act
The allegations in the complaint as summarised in the judgment of the High Court in Criminal Revision Application No 821 of 1973 are as under On November 21 1970 the Assistant Security officer Central Railway Bhusawal intimated to the Chief Security officer Bombay VT that two wagons Nos
ERKC 9447 exhibit HSPG BNDN to Akola and Wagon No ERKC 75531 exhibit were unloaded by Unloading Foreman one B D Raverkar of Akola Goods Shed
Seventynine M section Plates Mild Steel Plates were unloaded from Wagon No ERKC 75531
On November 14 1970 one Ram Singh who was having R R No 982859 Invoice No 3 for 78 MS Plates and Invoice No 2 RR No 892857 for 60 MS Plates signed the RRs
and endorsed the same to Ms Vallabhaji Brothers Clearing Agents at Akola Goods Shed for 180 taking the delivery
Clerk Onkar of the said firm was sent to take delivery
He took delivery of 78 plates from one J Meshram after paying the necessary railway dues of Rs 181380 P and the 78 Plates were removed by the said party in lorries
The Delivery of the second consignment of 60 MS Plates was taken on November 16 1970 after paying the railway dues of Rs 224740 P The said Ram Singh posed as a proprietor of Modern Industries which was found to be a fictitious firm which never existed
The Deputy Commercial Superintendent Bhusawal on November 19 1970 informed all concerned that the delivery from these wagons was obtained on fraudulent Railway Receipts
The inquiry into this case was entrusted to the Complainant Inspector P A Kakade who is an officer of the Railway Protection Force
In the course of that inquiry the statements of certain persons including that of Balkishan appellant herein were recorded by the said Inspector
On January 31 1971 while inquiring into another case of Wadi Bunder in which Balkishan was involved the Inspector recorded the confessional statement of Balkishan appellant herein
After making that confessional statement Balkishan is said to have led Inspector Kakade in the presence of Panchas to Tulsiram Gupta Mills Estate Compound wherefrom 35 MS Plates were recovered
The Inspector further discovered that the MS Plates were shifted from Devi Dayal s compound to Nittal Estate Kurla Andheri Road Marol Naka and they were transported from there for Devi Dayal s Estates
He recorded the statement of Tukaram the owner of one of these motor trucks on February 7 1971
Tukaram stated that his lorry was engaged on November 1 1971 by the appellant
In the meantime investigation regarding the offences of forgery and cheating was being done at Akola by the concerned Police Sub Inspector who was directed to suspend his inquiry till further orders were received by him
In the complaint Inspector Kakade stated that accused 2 and 3 are absconding Annexed to the complaint was a list of prosecution witnesses numbering in all 40 and a list of documents numbering 62
The appellant accused 1 appeared before the Presidency Magistrate
He was then supplied the list of prosecution witnesses and the list of documents to be relied upon by the prosecution
The list of documents included the list of statements of various persons recorded by the Inspector of the Railway Protection Force
The Presidency Magistrate commenced an inquiry and recorded the 181 statements of four witnesses of one on March 2 1973 and of the other three on June 12 1973
On June 11 1973 an application was filed by the appellant to the Magistrate making a grievance that although three witnesses had been examined no copies of the documents were furnished to him by the prosecution
On June 25 1973 the appellant made a further application to the Magistrate requesting for supply of true copies of all the documents in the case to enable him to prepare his defence
He further prayed that he should be allowed to take photostats of all the documents in the presence of the court officer
The Magistrate on August 3 1973 passed an order rejecting the accused s application dated June 11 1973 on the ground that the offence complained of against him was non cognizable and the provisions of Section 251A of the Code of Criminal Procedure were not applicable and consequently
he accused 1 had no right to obtain copies of the documents concerned
The Magistrate further passed an order on August 3 1973
declining to allow the accused to take photostats of all the documents on the ground that the documents could not be allowed to be taken outside the court
He however added that if any request to secure the photostat copies in the Court comes it will be considered
On August 24 1973 the Magistrate framed a charge under Section 3a of the Act to the effect that on or after November 14 1970 the accused was found in possession of MS Plates numbering about 110 which were the Railway property unlawfully possessed by him
The accused pleaded not guilty  and again made an application repeating his request for copies of the statements of witnesses recorded by Inspector Kakade
He also prayed that he be allowed to inspect all the statements recorded by the prosecution and take copies thereof
The Magistrate rejected this application also by an order on September 7 1973
Feeling aggrieved by the orders passed by the Magistrate on August 9 1973 and September 7 1973 and the framing of the charge against him 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 said orders be quashed
In this petition he challenged the constitutional validity of Section 9 of the Act
The petition was heard by a Bench consisting of Vaidya and Gandhi JJ
The learned Judges answered all the questions posed above in the negative
But on the other aspects of the case the Assistant Government Pleader appearing on behalf of the State stated before the High Court that the prosecution did not desire to keep back 182 any material from the accused and that they would produce copies of statements of all the witnesses and the documents on which the prosecution intends to rely or which the accused wanted to examine
In view of this statement of the Government Pleader the High Court set aside the orders of the Magistrate and directed the complainant under Section 165 of the Evidence Act to produce in the trial court the true copies of the statement of the witnesses already examined and to be examined hereafter By the complainant and of the documents on which the complainant desired to depend
The High Court further declared that the accused and his counsel shall be entitled to inspect those documents and take copies thereof if necessary in the court
If further declared that Section 9 of the Act is not ultra vires the Constitution
Hence these appeals by the accused persons
Question No 1 The first question for consideration is
whether an Inspector of the Railway Protection Force for short RPF is a police officer and therefore any confessional statement made to him comes within the prohibition of Section 25
Evidence Act
Section 25 reads thus No confession made to a police officer shall be proved as against a person accused of any offence
 As explained by this Court in Ariel vs State the policy behind Sections 25 and 26
Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall be presumed to have been obtained under the circumstances mentioned in p Section 24 and therefore inadmissible except so far as is provided in Section 27 of that Act
The term Police officer has not been defined in the Evidence Act
Shri R K Garg appearing for the appellant submits that the expression police officer in Section 25 Evidence Act must be construed 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 for short called the Code
irrespective of the fact that they are differently labelled such as Excise officers or Customs officers or members of the RPF otherwise the very object of Section 25 will be defeated
In support of this contention the learned counsel has referred to the decision of this Court 183 in Raja Ram Jaiswal vs State of Bihar
The point pressed into argument is that an Inspector of the RPF 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
If that be the correct position proceeds the argument any confessional statement recorded by such Inspector will be hit by section 25 Evidence Act and if that statement falls short of a confession  then also it will not be admissible in evidence against its maker at his trial because of the bar in section 162
Criminal Procedure Code
As against the above Shri Nain submits that an officer of the RPF while making an inquiry under the 1966 Act cannot be equated with a Police officer in charge of a Police Station making an investigation under the Code
One important difference in their powers is that the RPF Inspector has no power to submit a report or chargesheet under section 173 of the Code
Shri Nain has further pointed out that Raja Ram Jaiswal s case stands on its own peculiar facts and was distinguished in a later decision by a Constitution Bench of this Court in Badku Joti Savant vs State of Mysore
According to Shri Nain the correct test for determining whether or not a RPF officer is a Police officer  for the purpose of section 25
Evidence Act is the one which was consistently applied in State of Punjab vs Barkat Ram Badku Joti Savant ibid Romesh Chandra Mehta vs West Bengal
To top it all it is maintained the question is now no longer res integra and has been concluded by the recent judgment of this Court in State of UP vs Durga Prasad
In reply Shri RK Garg has tried to distinguish Durga Prasad s case ibid on the ground that therein the question whether or not an officer of the RPF is a Police officer within the contemplation of section 25 of the Evidence Act was not directly in issue
It is maintained that the only question for decision in that case was
Whether an enquiry conducted under section 81 of the 1966 Act can be deemed to be an investigation for the purpose of section 162 of the Code of Criminal Procedure
and this question was answered in the negative
In the alternative it is urged that Durga Prasad s case was not correctly decided and its ratio needs reconsideration by a larger Bench because it has overlooked the test laid down by the 3 Judge Bench in Raja Ram laiswal s case
184 Although Durga Prasad s case very largely appears to conclude this question yet in deference to the last argument of Shri Garg we propose to deal with the other decisions of this Court
which have been referred to by counsel on both sides
At the outset for the sake of perspective we may notice the relevant provisions of the 1966 Act and the Railway Protection Force Act 957 for short called the 1957 Act
First we will notice the relevant features of the 1957 Act whereunder the RPF was constituted
The preamble of the 1957 Act states that its object is to provide for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of railway property
The various clauses in Section 2 contains definitions
The definition of railway property in clause e includes any goods money or valuable security or animal belonging to or in the charge or possession of
a railway administration Member of The Force means a person appointed to the Force under this Act other than a superior officer
Clause c superior officer means any of the officers appointed under section 4
Clause g says that the words and expressions used but not defined in this Act and defined in the Indian Railways Act 1890 shall have the meanings respectively assigned to them under that Act
Section 3 gives powers to the Central Government to constitute and maintain the Force
Section 5 enumerates the classes of officers InspectorSub InspectorAssistant Sub Inspector
Section 10 says that the officers and members of the Force shall be deemed to be railway servants  within the meaning of the Indian Railways Act
Section 11 is important
It enumerates That the duty of every superior officer and member of the Force shall be a promptly to execute all orders lawfully issued to him by his superior authority b to protect and safeguard railway property c to remove any obstruction in the movement of railway property and d to do any other act conducive to the better protection and security of railway property
Section 12 enables any superior officer or member of the Force to arrest without an order from a Magistrate and without a warrant a any person who has been concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months or against whom a reasonable suspicion exists of his having been so concerned or 185 b any person found taking precautions to conceal his presence within railway limits under circumstances which afford reason to believe that he is taking such precautions with a view to committing theft of or damage to railway property
 Section 13 provides Whenever any superior officer or any member of the Force not below the rank of a Senior Rakshak has reason to believe that any such offence as is referred to in section 12 has been nor is being committed and that a search warrant cannot be obtained without affording the offender an opportunity of escaping or of concealing evidence of the offence he may detain him and search his person and belongings forthwith and if he thinks proper arrest any person whom he has reason to believe to have committed the offence
Under sub section 2 the provisions of the Code relating to searches under that Code shall so far as may be apply to searches under this section
Section 14 indicates the procedure to be followed after arrest
According to it any superior officer or member of the Force making an arrest under this Act shall without unnecessary delay
make over the person arrested to a police officer or in the absence of a Police officer take such person or cause him to be taken to the nearest police station
Section 17 provides penalties for neglect of duty etc
Section 20 gives protection to a member of the Force for any act done by him in the discharge of his duties
Section 21 gives powers to the Central Government to make rules for carrying out the purposes of this Act
Clause b of sub section 2 of this section says that such rules may provide inter alia for regulating the powers and duties of superior officers and members of the Force authorised to exercise any functions by or under this Act
From the above survey it will be seen that the primary object of constituting the Railway Protection Force is to secure better protection and security of the railway property The restricted power of arrest and search given to the officers or members of the Force is incidental to the efficient discharge of their basic duty to protect and safeguard Railway Property
No general power to investigate all cognizable offences relating to Railway Property under the Criminal Procedure Code has been conferred on any superior officer or member of the Force by the 1957 Act
Section 14 itself makes it clear that even with regard to an offence relating to railway property  the superior officer or member of the Force making an arrest under section 13 shall forthwith make over the person arrested to a police officer or cause his production in the nearest police station
Now we will take up the 1966 Act which came into force on September 16 1966
As is evident from its preamble it is an Act to consolidate and amend the law relating to unlawful possession of 186 Railway Property
The material part of the objects and Reasons for moving the Bill which became this Act is as under 2
At present offences against Railway property are being dealt with under Railway Stores Unlawful Possession Act 1955 but this Act has been found by experience to be ineffective in tackling with the enormity of the problems of theft and pilferages on Railways
As it is this Act makes unlawful possession of Railway Stores an Defence but it is only applicable to unlawful possession of Railway property owned by the Railways and does not cover the offences relating to goods and parcels entrusted to Railways for transport
Further the offences under this Act are investigated and enquired into by local police in accordance with the provisions of the Code of Criminal Procedure 1898
It has been observed that the two Agencies ie the Government Railway Police and Railway Protection Force which are at present provided to deal with crimes on railways find themselves handicapped for different reasons in effectively dealing with the problem of theft and pilferage of Railway Property
The Railways are spread out over a large part of the country and property etc entrusted to them is carried from one part to another usually crossing boundaries of different states
The jurisdiction of State Police being restricted to the State boundary only it becomes difficult at times for the Police to make thorough and fruitful investigation into offences relating to Railway Property
Besides investigation of cases in respect of Railway Property also requires a specialised knowledge of Railway working
The Railway Protection Force on the other hand are not at present equipped with requisite powers of investigation and prosecution with the result that whatever action they take in respect of prevention etc is taken just in aid of the State Police who conduct investigation and prosecution etc
Due to this fact of two agencies being responsible for achieving the same object the machinery has not proved as effective as it ought to have
4 It is therefore proposed to replace the Railway Stores Unlawful Possession Act 1955 by a more comprehensive Act so as to bring with its ambit the unlawful possession of goods entrusted to the Railways as common carriers and to make the punishment for such offences more deterrent
It is also proposed to invest powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs emphasis added 187 From what has been quoted above it is clear that the main purpose of passing the 1966 Act was to invest powers of investigation and prosecution of offences relating to railway property in the RPF in the same manner as in the Excise and Customs
We will advert to this point later
Suffice it to say here that in view of the aforesaid object of enacting the 1966 Act
the decisions of this Court on the question as to whether an Excise officerCustoms officer is a Police officer within the purview of section 25 Evidence Act or section 162 Criminal Procedure Code assume analogical importance for the purpose of deciding the precise question before us
The various clauses of section 2 of the 1966 Act contain definitions
Clause c defines officer of the Force to mean an officer of and above the rank of Assistant Sub Inspector appointed to the Force and includes a superior officer
 The definition of railway property in clause d has been expanded so as to include goods entrusted to the Railway for carriage or transport belonging to another person
Section 3 provides Whoever is found
Or is proved to have been in possession of any railway property reasonably suspected of having been stolen or unlawfully obtained shall unless he proves that the railway property came into his possession lawfully be punishable a for the first offence with imprisonment for a term which may extend to five years or with fine or with both and in the absence of 
special and adequate reasons to be mentioned in the judgment of the Court such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees and b for the second or a subsequent offence with imprisonment for a term which may extend to five years and also with fine and in the absence of special and adequate reasons to be mentioned in the judgment of the Court such imprisonment shall not be less than two years and such fine shall not be less than two thousand rupees
It will be seen that if any person is found or proved to be in possession of any railway property  which is reasonably suspected of having been stolen or unlawfully obtained the burden shall shift on to that person to prove his innocence that is to say to establish that he came into possession of the railway property  lawfully
Section 4 provides punishment for persons wilfully conniving at an offence under the provisions of this Act
188 Section 5 says Notwithstanding anything contained in the Code of Criminal Procedure 1898 an offence under this Act shall not be cognizable
It may be noted that in spite of provision in the Code of Criminal Procedure to the contrary offences under this Act have been made non cognizable and as such cannot be investigated by a police officer under the Code
It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under section 1734 of the Criminal Procedure Code 1898
Section 6 gives powers to any superior officer or member of the Force to arrest without an order from a Magistrate and without a warrant any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion existed of his having been so concerned
Section 7 of the Act provides that the procedure for investigation of a cognizable offence has to be followed by the officer before whom the accused Person is produced
Reading section 7 of the 1966 Act with that of section 14 of the 1957 Act it is clear that while in the case of a person arrested under section 12 of the 1957 Act the only course open to the superior officer or member of the Force was to make over the person arrested to a police officer in the case of a person arrested for a suspected offence under the 1966 Act he is required to be produced without delay before the nearest officer of the Force who shall obviously be bound in view of Article 221 of the Constitution to produce him further before the Magistrate concerned
Section 8 of the 1966 Act is new
It provides for an inquiry to be made against the arrested persons
According to it when any person is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under section 7 he shall proceed to inquire into the charge against such person
It is to be noted that such power of inquiry has been conferred on an officer of the Force although he is not an officer incharge of a police station as envisaged by section 173 of the Code of Criminal Procedure Sub section 2 of this section confers on the officer of the Force the same powers for the purpose of the inquiry under sub section 1 and subject to the same provisions as the officer incharge of a police station may exercise and is subject under the Code of
Criminal Procedure 1898 when investigating a cognizable case
 Then there is a proviso which says 189 Provided that a if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such Magistrate b if it appears to the officer of the Force that there is not sufficient evidence or reasonable ground of suspicion against the accused person he shall release the accused person on his executing a bond with or without sureties as the officer of the Force may direct to appear if and when so required before the Magistrate having jurisdiction and shall make a full report of all the particulars of the case to his official superior
 Section 9 gives powers to an officer of the Force to summon persons to give evidence and produce documents or any other thing in any inquiry for any of the purposes of this Act
Sub sections 3 and 4 provide 3 All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and to produce such documents and other things as may be required Provided that the exemption under section 132 and 133 of the Code of Civil Procedure 1908 shall be applicable to requisitions for attendance under this section 4 Every such inquiry as aforesaid shall be deemed to be a judicial proceeding  within the meaning of section 193 and section 228 of the Indian Penal Code Section 10 enables an officer of the Force having reason for the requisite belief to apply for a search warrant to the Magistrate
Section 11 provides that searches and arrests shall be in accordance with the provisions of the Code
Section 14 makes it clear that the provisions of the Act shall override all other laws
This means that if there is anything in the 1966 Act which is inconsistent with the Code then on that point the 1966 Act will prevail and the application of the Code pro tanto will be excluded
The most important example of such exclusion as already noticed is to be found in section 5 of the 1966 Act which makes as offence under this Act non cognizable notwithstanding anything in the Code
This clearly shows that the provisions of the Code cannot 190 proprio vigore apply to an enquiry conducted under section 81 of the 1966 Act by an officer of the Force
Further section 6 of the 1966 Act empowers an officer or member of the Force to arrest without a warrant and without an order of the Magistrate any person concerned or reasonably suspected of being concerned in an offence under the 1966 Act
This again is contrary to the scheme and content of the Code which must give way to the 1966 Act in this matter
The third material aspect in which an inquiry under the 1966 Act differs from investigation under the Code is to be found in Section 93 whereunder persons summoned to appear in the inquiry are expressly mandated to state the truth
In contrast with this Section 160 of the Code does not expressly bind persons examined in Police investigation to state the truth
The inquiry under Section 81 of the 1966 Act in view of Section 94 shall be deemed to be a judicial proceeding for the purpose of Sections 193 and 228 of the Penal Code
But a police investigation under Section 160 of the Code does not partake of the character of a judicial proceeding for any purpose and a witness examined during such investigation cannot be prosecuted under Section 193 Penal Code
The fourth important aspect in which the power and duty of an officer of the RPF conducting an inquiry under the 1966 Act differs from a police investigation under the Code is this Sub section 3 of Section 161 of the Code says that the police officer may reduce into writing any statement made to him in the course of investigation
Section 1621 which is to be read in continuation of Section 161 of the Code prohibits the obtaining of signature of the person on his statement recorded by the investigating officer
But no such prohibition attaches to statements recorded in the course of an inquiry under the 1966 Act rather from the obligation to state the truth under pain of prosecution enjoined by Section 93 and 4 it follows as a corollary that the officer conducting the inquiry may obtain signature of the person who made the statement
Fifthly under the provision to sub section 1 of Section 162 of the Code oral or recorded statement made to a police officer during investigation may be used by the accused and with the permission of the Court by the prosecution to contradict the statement made by the witness in Court in the manner provided in Section 145 Evidence Act or when the witness  statement is so used in cross examination he may be reexamined if any explanation is necessary
The statement of a witness made to a police officer during investigation cannot be used for any other purpose whatever except of course 191 when it falls within Sections 32 or 27 of he Evidence Act
The prohibition contained in Section 162 extends to all statements confessional or otherwise during a police investigation made by any person whether accused or not whether reduced to writing or not subject to the proviso
In contrast with the Code in the 1966 Act there is no provision analogous to the proviso to Section 1621 of the Code which restricts or prohibits the use of a statement recorded by an officer in the course of an inquiry under Sections 8 and 9 of the Act
Sixthly the primary duty of a memberofficer of RPF is to safeguard and protect railway property
Only such powers of arrest and inquiry have been conferred by the 1966 Act on members of RPF as are necessary and incidental to the efficient and effective discharge of the basic duty of watch and ward
Unlike a police officer who has a general power under the Code to investigate all cognizable cases the power of an officer of the RPF to make an inquiry is restricted to offences under the 1966 Act
Last but not the least under Section 190 of the Code a Magistrate is empowered to take cognizance of an offence only in three ways namely a upon receiving a complaint of facts which constitute an offence b upon a report in writing of such facts made by any police officer and c upon information received from any person other than a Police officer or upon his own knowledge or suspicion that such offence has been committed
The report  mentioned in clause b includes the report made by a police officer under Section 173 after completing investigation under Chapter XIV of the Code
Section 173 in terms makes is clear that the duty of making a report thereunder on completion of the investigation to the Magistrate is that of the officer in charge of the police station
Such a report shall include the opinion of the police officer as to the result of the investigation
The formation of such opinion is the final step in the investigation and that final step is to be taken by the police officer in charge of the station and by no other authority Abhinandan Jha vs Dinesh Mishra
An officer of the RPF making an inquiry under the 1966 Act cannot by any stretch of imagination be called an officer in charge of a Police Station within the meaning of Sections 173 and 190b of the Code
The made of initiating prosecution by submitting a report under Section 173 read with clause b of Section 190 of the Code is therefore not available to an officer of the RPF who has completed an inquiry into an offence under the 1966 Act
The only mode of initiating prosecution of the 192 person against whom he has successfully completed the inquiry available to an officer of the RPF is by making a complaint under Section 1901a of the Code to the Magistrate empowered to try the offence
That an officer of the Force conducting an inquiry under Section 81 cannot initiate proceedings in court by a report under Sections 1731901b of the Code is also evident from the provisos to sub section 2 of Section 8 of the 1966 Act
Under proviso a if such officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused he shall either direct him after admitting him to bail to appear before the Magistrate having jurisdiction or forward him in custody to such Magistrate
Under proviso b if it appears to he officer that there is no sufficient evidence or reasonable ground of suspicion against the accused he shall release him on bond to appear before the Magistrate concerned and shall make a full report of all the particulars of the case to his superior officer
Provisos a and b put it beyond doubt that where after completing an inquiry the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused he must initiate prosecution of the accused by making a complaint under Section 1901 a of the Code to the Magistrate competent to try the case
From the comparative study of the relevant provisions of the 1966 Act and the Code it is abundantly clear that an officer of the RPF making an inquiry under Section 81 of the 1966 Act does not possess several important attributes of an officer in charge of a police station conducting an investigation under Chapter XIV of the Code
The character of the inquiry  is different from that of an investigation  under the Code
The official status and powers of an officer of the Force in the matter of inquiry under the 1966 Act differ in material aspects from those of a police officer conducting an investigation under the Code
The ground is now clear for noticing the rulings cited at the Bar
In State of Punjab vs Barkat Ram ibid the question was whether a Customs officer can be regarded as a police officer  within the purview of Section Evidence Act
This decision was rendered by a Bench of three learned Judges
The judgment of the Court was delivered by majority consisting of Raghubar Dayal and JL Kapur JJ
Subba Rao J as he then was wrote a dissenting opinion
The view taken by the Court Majority was to the effect that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order
Although the expression police officer has to be construed in a wide and popular sense yet it has not 193 so wide a meaning as to include officers interested in the duty of detecting and preventing smuggling and similar offences with the object of safeguarding the levying and recovery of Customs duties
He is more concerned with the goods and customs duty than with the offender
The duties of customs officers are very much different from those of police officers and their possessing certain powers which may have similarity with those of police officers for the purpose of detecting the smuggling of goods and the persons responsible for it would not make them police officers
Merely because similar powers in regard to the detection of infraction of Customs laws have been conferred on officers of the Police is not a sufficient ground for holding them to be police officers within the purview of Section 25 of the Evidence Act
The Customs officers when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties act judicially
The Police officers never act judicially
Hence a Customs officer either under the  or under the  is not a police officer for the purpose of Section 25 Evidence Act
 In his dissenting opinion Subba Rao J held that Section 25 Evidence Act was enacted to subserve a high purpose and that is to prevent the police from obtaining confession by force torture or inducement
The salutary principle underlying the Section would apply equally to other officers by whatever designation they may be known who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confessions from the accused It is not the garb or the designation under which the officer functions that matters but the nature of the power he exercises or the character of the function he performs is decisive
The question therefore in each case is does the officer under a particular Act substantially exercise the powers and discharge the duties of prevention and detection of crime If he does he will be a police officer
The learned Judge quoted with approval the view of Balakrishna Ayyar J in Paramasivam s case that if the officer s powers and duties are substantially those of a police officer but are confined to a particular extent of territory or to a particular subject matter he will be a police officer only in respect of that territory or that subject matter
On this reasoning Subba Rao J held that a Customs officer is a police officer qua his police functions
The next case is Raja Ram Jaiswal ibid decided by a three Judge Bench
There the question was whether an Excise officer 194 exercising the power of investigation under the Bihar and Orissa Excise Act 1915 is a police officer  within the meaning of Section 25 Evidence Act Mudholkar J speaking for himself and Subba Rao J answered this question in the affirmative
What the majority held in that case may be summed up as under The test for determining whether a person is a police officer for the purpose of Section 25 Evidence Act would 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 a police station establish a direct or substantial relationship with the prohibition enacted by Section 25 Evidence Act that is the recording of a confession
In other words whether the powers conferred on the Excise officer under the Act are such as would tend to facilitate the obtaining by him of a confession from a suspect 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
It was further held that unlike the Customs officer on whom are conferred by the  powers of a limited character which are analogous to those conferred on police officers are not by themselves sufficient to facilitate the obtaining by him of a confession
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 the obtaining from them statements which may be incriminating to the persons making them
The law allows the police officer 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 powers under another law would not make him any the less a police officer for the purposes of Section 25
Hence a confession made by an accused under the Bihar and Orissa Act recorded by an Excise Inspector who is empowered to investigate any offence under the Act is inadmissible by reasons of the provisions of Section 25 of the Evidence Act
Raghubar Dayal J however expressed a contrary opinion
He held that the Excise Inspectors empowered by the State Government under Section 772 of the Bihar Act are not police officers  within the meaning of Section 25 of the Evidence Act and that the aforesaid officers cannot be treated to he police officers for the purposes of Section 162 of the Code of Criminal Procedure Section 162 does not 195 confer any power on a police officer
It deals with the use which can be made of the statements recorded by a police officer carrying out investigation under Chapter XIV of the Code
The investigation which the aforesaid Excise officer conducts is not under Chapter XIV of the Code but is under the provisions of the Act and therefore this is a further reason for non applicability of Section 162 of the Code to any statements made by a person to an Excise officer during the course of his investigating an offence under the Act
Although in Raja Ram Jaiswal s case the majority judgment distinguished the earlier decision in Barkat Ram s case on the ground that therein the question whether officers of departments other than the police on whom powers of an officer in charge of a police station under clause 14 of the Code of Criminal Procedure are conferred are police officers or not for the purpose of Section 25 Evidence Act was left open and undecided yet the fact remains that some of the criteria adopted by the majority in Barkat Ram s case in arriving at the decision they did in a Customs officer s case was rejected and the test indicated by Subba Rao J in his minority judgment was substantially approved
Be that as it may on facts the distinguishing feature of Raja Ram Jaiswal s case was that under the Bihar Excise Act the powers of an officer in charge of a Police Station were expressly conferred on the Excise officer concerned in respect of the area to which he was appointed
The question whether a Deputy Superintendent of Customs and Excise was a police officer  within the meaning of Section 25 Evidence Act again came up for consideration before a Constitution Bench in Badku Joti Savant s case ibid
 Wanchoo J who delivered the unanimous opinion of the Bench answered this question at page 701 thus There has been difference of opinion among the High Courts in India as to the meaning of the words police officer used in Section 25 of the Evidence Act
One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned
The leading case i support of this view is Nanoo Sheikh Ahmed vs Emperor
This view approved by Subba Rao J in his minority judgment in Barkat Ram s case
The other view which may be called the 196 narrow view is that the words police officer in Section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences and so on
The leading case in support of this view is Radha Kishun Marwari vs King Emperor
The other High Courts have followed one view or the other the majority being in favour of the view taken by the Bombay High Court
We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act to which we turn now After examining some provision of the Central Act 1 of 1944 the judgment proceeded
It is urged that under sub section 2 of Section 21 a Central Excise officer under the Act has all the powers of an officer in charge of a police station under Chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in Section 25 of the Evidence Act
It is true that sub section 2 confers on the Central Excise officer under the Act 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 which gives power to a Central Excise officer to whom any arrested person is forwarded to inquire into the charge against him
Thus under section 21 it is the duty of the Central Excise officer to whom an arrested person is forwarded to inquire into the charge made against such person
Further under proviso a to sub section 2 of section 21 if the Central Excise officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such Magistrate
It does not however appear that a Central Excise officer under the Act has power to submit a charge sheet under Section 173 of the Code of Criminal Procedure
Under Section 190 of the Code of Criminal Procedure a Magistrate can take cognizance of any offence either a upon receiving a complaint of facts which constitute such offence of b upon a report in writing of such facts made by any police officer or c upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed
197 police officer for purposes of clause b above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise officer will have to make a complaint under clause a above if he wants the Magistrate to take cognizance of an offence for example under Section 9 of the Act
Thus though under sub section 2 of Section 21 of the Central Excise officer under the Act has the powers of an officer in charge of a police station when investigating a cognizable case that is for the purpose of his inquiry under sub section 1 of Section 21
 The Court then distinguished Raja Ram Jaiswal s case thus Section 21 of the Central Excises and Salt Act No 44 is in terms different from Section 783 of the Bihar and Orissa Excise Act 1915 which came to be considered in Raja Ram Jaiswal s case and which provided in terms that for the purposes of Section 156 of the Code of Criminal Procedure 1898 the area to which an excise officer empowered under Section 77 Sub section 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
It therefore cannot be said that the provision in Section 21 is on par with the provision in Section 783 of the Bihar and Orissa Excise Act
All that Section 21 provides is that for the purpose his inquiry a Central Excise officer shall have the powers of an officer in charge of a police station when investigating a cognizable case
But even so it appears that these powers do not include the power to submit a charge sheet under Section 173 of the Code of Criminal Procedure for unlike the Bihar and Orissa Excise Act the Central Excise officer is not deemed to be an officer in charge of a police station
 On the above reasoning the Court concluded that mere conferment of powers of investigation into criminal offences under Section 9 of the Act does not make the Central Excise officer a police officer even in the broader view mentioned above
Following the decisions in Punjab State vs Barkat Ram ibid and Badku Joti Savant vs Mysore State ibid a Constitution Bench of this Court in Ramesh Chandra vs State of West Bengal ibid reiterated that 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 Code of Criminal Procedure
Applying this test the Court held that since a Customs officer exercising power to make an inquiry cannot submit a report under Section 198 173 of the Code he is not a police officer within the meaning of Section 25 of the Evidence Act
Again in Illias vs Collector of Customs this Court held that although a Customs officer under the  has been invested with many of the powers similar to those exercisable by a police officer under Chapter XIV of the Code which he did not have under the old Act yet he is not empowered to file a chargesheet under Section 173 of the Code and therefore he cannot be regarded as a police officer within the meaning of Section 25 Evidence Act
Shri Garg tried to distinguish these cases on the ground that they relate to Customs officers or Excise officers whose primary duties are to collect and prevent evasion of revenues and that some of the powers of a police officer are conferred on them merely for the effective discharge of their duties as revenue officers
It is submitted that the members of the RPF are not revenue officers and their duties are confined to the protection of railway property and prevention detection and investigation of crimes relating to railway property 
Relying on the decision in Raja Ram Jaiswal s case it is urged that the real test to be applied for determining this question is whether the police powers conferred on an officer of the RPF are such as would tend to tempt or facilitate the obtaining by him a confession from a person suspected of the commission of an offence under the 1966 Act
It is argued that since an officer of the RPF conducting an inquiry has been invested qua railway property  with almost all the powers or an officer in charge of a Police Station making an investigation under Chapter XIV of the Code this test is amply satisfied to hold that he is a police officer  within the meaning of Section 25 of the Evidence Act
At one stage it was contended by Shri Garg that it could be spelled out from Section 82 of the 1966 Act that an officer of the Force had the power to present a charge sheet under Section 173 of the Code also
In the alternative it was submitted that the mere fact that an officer of the Force could initiate prosecution only by filing a complaint and not by making a report under Section 173 of the Code was immaterial in regard to the satisfaction of This test if in fact he had been invested with all other powers of investigation exercisable by a police officer under the Code qua offences under the 1966 Act
Prima facie there is much to be said for the reasoning advanced by the learned counsel for the appellant but as a matter of judicial discipline we cannot deviate from the ratio of Punjab State vs Barkat 199 Ram and Badku Joti Savant s case and the primary test enunciated therein for determining this question
Indeed we are bound by the decision in State of UP vs Durga Prasad ibid which following the ratio of the aforesaid cases has held that an officer of the RPF conducting an inquiry under Section 81 of the 1966 Act cannot be equated with an officer in charge of a Police Station making an investigation under Chapter XIV of the Code
It may be recalled that the primary test evolved in Badku Joti Savant s case by the Constitution Bench 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 Code qua investigation of offences under that Act including the power to initiate prosecution by submitting a report chargesheet under Section 173 of the Code
In order to bring him within The purview of a police officer  for the purpose of Section 25
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
Nor is the ratio of the aforesaid decisions inapplicable merely because they related to a Customs officer or an Excise officer and not to an officer of the RPF
The factual premises on which the ratio of Badku Joti Savant s rests were substantially analogous to those of the instant case
That is to say the powers of arrest inquiry and investigation conferred on the Central Excise officers under Act 1 of 1944 which was under consideration in that case are very similar to those with which an officer of the RPF is invested under the 1966 Act
Under Section 13 of that Act of 1944 any Central Excise officer duly empowered by the Central Government in this behalf can arrest any person whom he has reason to believe to be liable to punishment Section 18 provides that all searches made under that Act or any rules made thereunder shall be carried out in accordance with the provisions of the Code of Criminal Procedure 1898
Section 19 of that Act lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise officer empowered to send person so arrested to a Magistrate or if there is no such Central Excise officer within a reasonable distance to the officer in charge of the nearest police station
Section 21 of the Act provides 1 When any person is forwarded under Section 19 to a Central Excise officer empowered to send persons so arrested to a Magistrate the Central Excise officer shall proceed to inquire into the charge against him
200 2 For this purpose the Central Excise officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure 1898 when investigating a cognizable case
 It will be seen that these provisions in Sections 13 18 19 and 21 of the Central Act I of 1944 substantially correspond to the provisions in Sections 6 7 8 etc
Of the 1966 Act which we have already noticed It will bear repetition that sub section 12 of section 8 under which an officer of the Force conducting an inquiry may exercise the same powers as an officer in charge of a police station investigating a cognizable case under the Code is in pari materia with sub section 2 of Section 21 of Act 1 of 1944
It may be recalled that in the objects and Reasons of the Bill which was enacted as 1966 Act it was stated that this measure invests powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in the Excise and Customs
The 1966 Act thus brings the status of officers of the RPF in the matter of inquiry investigation and prosecution of offences under the Act substantially at par with that of an Excise officer under the Central Act 1 of 1944 and that of a Customs Officer under the 
The ratio of all the decisions noticed earlier therefore applies in full force to the case of an officer of the RPF making an inquiry into an offence under the 1966 Act
In State of UP vs Durga Prasad ibid after carefully examining and comparing the powers of arrest inquiry and investigation of an officer of the Force under the 1966 Act with those of a police officer under he Code it was pointed out that such an officer of the RPF does not possess all the attributes of an officer in charge of a police station investigating a case under Chapter XIV of the Code
He possesses but a part of those attributes limited to the purpose of holding the inquiry under the Act
On these premises it was held that an officer of the RPF making an inquiry under the 1966 Act cannot be equated with an investigating police officer
In reaching this conclusion Chandrachud J as he then was speaking for the Court appears to have applied the same test which was adopted in Badku Joti Savant s case when he observed The right and duty of an investigating officer to file a police report or a charge sheet on the conclusion of investigation is the hallmark of an investigation under the Code
Section 1731a of 201 the Code provides that as soon as the investigation is completed the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report a report in the form prescribed by the State Government
The officer conducting an inquiry under Section 81 cannot initiate court proceedings by filing a police report
 The decision in Raja Ram Jaiswal s case on which Shri Garg relies was distinguished as was done in Badku Joti Savant s case on the ground that Jaiswal s case involved the interpretation of Section 783 of the Bihar and Orissa Excise Act 1915
In the light of the above discussion it is clear that an officer of the RPF conducting an enquiry under Section 81 of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code
Particularly he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under Section 173 of the Code which has been held to be the clinching attribute of an investigating police officer 
Thus judged by the test laid down in Badku Jyoti Savant s which has been consistently adopted in the subsequent decisions noticed above Inspector Kakade of the RPF could not be deemed to be a police officer  within the meaning of Section 25 of the Evidence Act and therefore any confessional or incriminating statement recorded by him in the course of an inquiry under Section 81 of the 1966 Act cannot be excluded from evidence under the said section
This takes us to the second question
Question II The main contention of Shri Garg is that any confessional or incriminating statements recorded by an officer of the Force in the course of an inquiry under section 81 of the 1966 Act cannot be used as evidence against the appellant in view of the constitutional ban against compelled testimony imposed by Article 203 of the Constitution
The argument is that as soon as a person is arrested by an officer of the Force on a suspicion or charge of committing an offence punishable under the 1966 Act he stands in the character of a person accused of an offence
That being the case proceeds the argument a statement made by such an accused person to an officer of the RPF making an inquiry against him can never be said to be voluntary being subject to a legal compulsion under Section 93 of the 1966 Act to state the truth 202 upon any subject respecting which he is examined even if such state of might incriminate him
On these premises it is maintained that both the conditions necessary for attraction of the ban in Article 203 of the Constitution exist in the case of such statements
In this connection Shri Garg has referred to the dissenting judgment of Subba Rao J in Barkat Ram ibid Kathi Raning Rawat vs The State of Saurashtra K Joseph Augusthi  Ors
vs MA Narayanan Mohamed Dastagir vs The State of Madras Bhagwan Das vs Union of India Ramanlal Bhogilal Shah  Anr
vs DK Guha  Ors MP Sharma vs Satish Chandra Smt
Nandini Satpathy vs PL Dani  Anr
 and In re The Special Courts Bill
As against this Mr Nain appearing for the respondent State submits that the conditions necessary for the attraction of the ban in Article 203 do not exist in the instant case because before the filing of the complaint in the Court the appellant was not a person accused of an offence
It is further urged that the compulsion contemplated by Clause 3 of Article 20 means physical or mental compulsion and not compulsion of law to state the truth that freedom to tell lies is not within the protection of this clause
It was nowhere alleged that the confessional or incriminating statements in question were extorted by the RPF officer under physical duress threat inducement or mental torture
It is added that in any case it is a question of fact to be established by evidence that any such compulsion was used in obtaining the incriminating statements
Clause 3 of Article 20 of the Constitution reads thus No person accused of any offence shall be compelled to be a witness against himself
 An analysis of this clause shows three things Firstly its protection is available only to a person accused of any offence
Secondly the protection is against compulsion to be a witness
Thirdly this protection avails against himself
It follows that if any of these ingredients does not exist this clause 3 will not be attracted
Keeping this in mind it will be appropriate to concentrate on the first point as to whether during the inquiry 203 under Section 8 of the 1966 Act when the appellant made the incriminating statement in question he was a person accused of any offence within the contemplation of Article 203
In M P Sharma vs Satish Chandra ibid which is a decision by a seven Judge Bench of this Court it was held that determination of this issue will depend on whether at the time when the person made the self incriminatory statement a formal accusation of the commission of an offence had been made against him
Formal accusation is ordinarily brought into existence by lodging of an FIR Or a formal complaint to the appropriate authority or court against the specific individual accusing him of the commission of a crime which in the normal course would result in his prosecution
It is only on the making of such formal accusation that clause 3 of Article 20 becomes operative covering that individual with its protective umbrella against testimonial compulsion
The interpretation placed by the Court in M P Sharma s case
On the phrase person accused of any offence used in Article 203 was reiterated in Bhagwan Das vs Union of India ibid was reaffirmed in Raja Narayanlal Bansilal vs Maneck Phiroz Mistry  Anr
Again in the State of Bombay vs Kathi Kalu Oghad  Ors one of the propositions enunciated by the Court was that to bring a statement within the prohibition of Article 203 the person accused must have stood in the character of an accused person at the time he made the statement
It is not enough that he should become an accused any time after the statement has been made
The same proposition was reiterated by Gajendragadkar CJ in Joseph Augusthi ibid and again by the Constitution Bench in Ramesh Chand Mehta s ibid
In the instant case at the time when the alleged incriminating statement was made before the officer of the RPF no formal complaint in regard to the commission of an offence had been filed against him in Court nor had any FIR been lodged with the Police specifically accusing the appellant or the author of that statement of the commission of an offence
It is therefore manifest that at the material time the author of the self incriminatory statements in question did not fulfil the character of a person accused of an offence within the meaning of Article 203
The last authority to be noticed in regard to the interpretation of the phrase person accused of any offence is Ramanlal Bhogilal Shah s case ibid
The petitioner Ramanlal Bhogilal Shah was arrested under Section 19B of the Foreign Exchange Act
The grounds 204 purportedly served on him under sub section 1 of Section 19B for the offence under Section 42 and Section 22 of the Act punishable under Section 23 were elaborate
The question arose whether after these grounds had been served on the petitioner it could be said that he was a person accused of an offence  within Article 203 of the Constitution
The petitioner was produced before the Magistrate who released him on bail
Thereafter First Information Report was recorded under Section 154 Criminal Procedure Code and an order was obtained from the Magistrate permitting the investigation to be made under Section 1552 Criminal Procedure Code
The Enforcement Officer had examined the petitioner and put his conclusions in the grounds of arrest which were served on the petitioner
Under these circumstances the Court held that the petitioner was definitely a person accused of an offence within the meaning of Article 203 of the Constitution and at any rate the petitioner was accused of an offence when the FIR was recorded and therefore the summons issued by the Enforcement Directorate would be illegal
At the same time it was held that although the petitioner is a person accused of an offence  the only protection that Article 203 gave him is that he could not be compelled to be a witness against himself but this did not mean that he need not give information regarding matters which do not tend to incriminate him
Consequently the Court did not set aside the summons and held that the petitioner was bound to appear before the Enforcement Directorate and answer such questions that did not incriminate him
To sum up only a person against whom a formal accusation of the commission of an offence has been made can be a person accused of an offence within the meaning of Article 203
Such formal accusation may be specifically made against him in an FIR Or a formal complaint or any other formal document or notice served on that person which ordinarily results in his prosecution in court
In the instant case no such formal accusation had been made against the appellant when his statements in question were recorded by the RPF Officer
At the relevant time of making the self incriminatory statements in question therefore the appellant did not stand in the character of a person accused of an offence and as such the protection of Article 203 will not be available to him
In view of this finding we do not think it necessary for the decision of these appeals to go into the question whether legal compulsion to state the truth such as the one contained in Section 93 of the 1966 Act is also a compulsion interdicted by Article 203
205 In the light of what has been said above we would answer the legal proposition formulated as Question No II propounded by the learned counsel for the appellant in the negative
Question No 3 was not raised or pressed at the time of arguments in the courts below
We therefore refuse to go into this question and pronounce in regard thereto
Before we part with this judgment we may note here that the learned counsel for the respondent State has very fairly stated at the bar that the State shall have no objection to the supply of copies of all the relevant documents and statements on which the prosecution intends to rely to the accused appellants in the trial court
In view of this undertaking we thought it unnecessary to go into the legal aspects of this question
We will however add that the prosecution shall also permit the accused appellant to inspect the other material that may have been collected by the inquiry officer relevant to the charge against the accused appellant
With this observation we would dismiss these appeals Nos 208 209 of 1974 and send the case back to the trial court for further proceedings in accordance with law
Since the case is already old the proceedings shall be conducted as far as possible from day to day on top priority basis and disposed of preferably within three months of the date or which the records are received in the trial court
Since the legal questions raised before us in Special Leave Petition Crl No 630 of 1977 are the same as in Criminal Appeals Nos 208 209 of 1974 and the learned counsel for the petitioners therein has adopted the arguments of Shri RK Garg appearing for the appellant in Criminal Appeals Nos 208 209 of 1974 that Special Leave Petition after granting special leave to appeal will also stand disposed of by this judgment
NVK Appeals dismissed


Summary:
On the allegations that the appellant in the Criminal Appeal along with 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 3a of the Railway Property Unlawful 15 Possession 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 I a list of prosecution witnesses and 2 a list of documents
The appellant who was accused I 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 June 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 case 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 consequently he had no right to obtain copies of the documents concerned
On August 24 1973 the Magistrate framed a charge under section 3a 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 RPF
This application was also rejected by the Magistrate on September 7 1973
176 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  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 RPF otherwise the very object of section 25 will be defeated
An Inspector of the RPF 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 section 25 Evidence Act
The case of State of UP vs Durga Prasad  was not correctly decided and that its ratio needs reconsideration 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 as a person is arrested by an officer of the Force on a suspicion or charge of committing an offence punishable under the 1966 Act he stands in the character of a person accused of an offence and any confessional or incriminating statements recorded by an officer of the Force in the course of an inquiry under section 81 of the 1966 Act cannot be used as evidence in view of the constitutional ban against compelled testimony imposed by article 203 of the Constitution
On behalf of the respondent it was submitted that a an officer of the RPF while making an inquiry under the 1966 Act cannot be equated with a police officer in charge of a Police Station making an investigation under the Code
The important difference in their powers is that the RPF Inspector has no power to submit a report or a charge sheet under section 173 of the Code
The decision of this Court in Raja Ram Jaiswal s case stands on its own peculiar facts and was distinguished in a later decision by a Constitution Bench of this Court in Badku Joti Savant vs State of Mysore  The correct test for determining whether or not RPF Officer is a police officer for the purpose of section 25 of the Evidence Act is the one which was consistently applied in State of Punjab vs Barkat Ram    Romesh Chandra Mehta vs West Bengal b The conditions necessary for the attraction of the ban in article 203 do not exist in the instant case because before the filing of the complaint in the Court the appellant was not a person accused of an offence and that it was nowhere alleged that the confessional or incriminating statements were extorted by the RPF Officer under physical duress threat inducement or mental torture
177 on the questions 1 whether an officer of the Railway Protection Force making an inquiry under the Railway Property Unlawful Possession Act 1966 in respect of an offence under section 3 of that Act of unlawful possession of the railway property is a police officer for the purpose of section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure 1898 and whether any confession or incriminatory statement recorded by him in the course of an inquiry under section 8 of the Act is inadmissible in evidence and 2 whether a person arrested by an officer of the Railway Protection Force under section 6 of the Act for the alleged commission of an offence under section 3 of the Act is person accused of an offence within the meaning of article 203 of the Constitution  HELD 1
An officer of the RPF conducting an enquiry under section 81 of the 1966 Act has not been invested with all the powers of an officer in charge of a police station making an investigation under Chapter XIV of the Code
Particularly he has no power to initiate prosecution by filing a charge sheet before the Magistrate concerned under section 173 of the Code which he has been held to be the clinching attribute of an investigating police officer 
An officer of the RPF could not therefore be deemed to be a police officer within the meaning of section 25 of the Evidence Act and therefore any confessional or incriminating statement recorded by him in the course of an inquiry under section 81 of the 1966 Act cannot be excluded from evidence under the said section
201C E 2
The term police officer  has not been defined in the Evidence Act The policy behind sections 25 and 26 of Evidence Act is to make a substantive rule of law that confessions whenever and wherever made to the police shall he presumed to have been obtained under the circumstances mentioned in section  24 and therefore inadmissible except so far as is provided in section 27 of that Act
182F E Ariel vs State AIR 1954 SC 15 referred to
The primary object of constituting the Railway Protection Force is to secure better protection and security of the railway property
The restricted power of arrest and search given to the officers or members of the Force is incidental to the efficient discharge of their basic duty to protect and safeguard Railway Property
No general power to investigate all cognizable offence relating to Railway Property under the Criminal Procedure Code has bee
conferred on any superior officer or member of the Force by the 1957 Act 185F G 4
The main purpose of passing the 1966 Act was to invest powers of investigation and prosecution of offences relating to railway property in the RPF in the same manner as in the Excise and Customs Inspite of provision in the Code of Criminal Procedure to the contrary offences under this Act have been made non cognizable and as such cannot be investigated by a police officer under the Code
It follows that the initiation of prosecution for an offence inquired into under this Act can only be on the basis of a complaint by an officer of RPF and not on the report of a police officer under section 1734 of the Criminal Procedure Code 1898
187A 188B 5
Section 14 makes clear that the provisions of the Act shall override all other laws
which means that anything in the 1966 Act which is inconsistent 178 with the Code will prevail and the application of the Code pro tanto will be excluded
The scheme of the 1966 Act particularly the provisions in sections 5 8 93 4 is different from that of the Code
The Code therefore cannot proprio vigore apply to an enquiry conducted under section 81 of the 1966 Act by an officer of the Force
189G 190A 6
An analysis of clause 3 of article 20 shows three things Firstly its protection is available only to a person accused of any offence
Secondly the protection is against compulsion to be a witness
Thirdly this protection avails against himself
202F 7
Only a person against whom a formal accusation of the commission of an offence has been made can be a person accused of on offence within the meaning of article 203
Such formal accusation may be specifically made against him in an FIR or a formal complaint or any other formal document or notice served on that person which ordinarily results in his prosecution in Court
204F In the instant case no such formal accusation had been made against the appellant when has statements in question were recorded by the RPF Officer
He did not at that time stand in the character of a person accused of an offence and as such the protection of Article 203 will not be available to him
203F G Kathi Raning Rawat vs The State of Saurashtra   K Joseph Augusthi  Ors
vs M A Narayanan  Mohamed Destagir vs The State of Madras   Bhagwan Das Crl
131 13261 decided on 20 9 63 Bhogilal Shah  Anr vs D K Guha  Ors   M P Sharma vs Satish Chandra   Smt
Nandini Satpathy vs P L Dani  Anr   In re The Special Courts Bill  Raja Narayanlal Bansilal vs Maneck Phiroz Mistry  Anr   State of Bombay vs Kathi Kalu Oghad  Ors   ref to