G.N. Prasad, J.@mdashThe petitioner has been convicted u/s 411 of the Indian Penal Code and sentenced to pay a fine of Rs. 100/- or in default to undergo rigorous imprisonment for two months.
2. The occurrence took place at about 10 P.M. on the 3rd July, 1966, At the relevant time the petitioner was employed -as a Lineman Erector, Grade III in the Heavy Engineering Corporation at Hatia.
3. The prosecution case which has been accepted by the courts below is that at the time of the occurrence the petitioner was coming out of the premises of the Foundary Forge Plant at Hatia on a cycle. At the main gate he got down from his cycle. Ramswaroop (P.W. 5) a security guard posted at the gate checked a waterproof which lay on the carrier of the cycle. It was found that a piece of flexible wire 85 cubits long wrapped in a piece of cloth existed in the folds of the water-proof. Accordingly the petitioner was taken to the Security Inspector of the Corporation Sri Baleshwar Prasad Singh (P.W. 2). Before the said security Inspector (P.W. 2) the petitioner made a confession to the effect that he had stolen the flexible wire from the Electrical store of the 26th building of the Foundary Forge Project.
4. Two points have been raised on behalf of the petitioner in this Court. The first point is that there is no evidence on record to the effect that the flexible wire in question was a stolen property within the meaning of Section 410 of the Indian Penal Code, Secondly, it has been contended that the alleged confession of the petitioner made to or in presence of the security Inspector (P.W. 2) is inadmissible in evidence on the ground that the Security Inspector was a police officer within the meaning of Section 25 of the Evidence Act.
5. Both these points were also raised in the lower appellate court. The learned Judge accepted the contention of the petitioner that the prosecution had led no evidence to the effect that the flexible wire in question was a stolen property. The learned Judge, however, added that the matter does not rest there and he has taken the view that the petitioner had made a confession before the security Inspector (P.W. 2) which was admissible in evidence, since at the relevant time, P.W. 2 was not a police officer since he was then on deputation in the Heavy Engineering Corporation and working there as senior security Inspector. The learned Judge put the point in the following terms:
A question arises as to whether the statement made by the appellant before P.W. 2 can form the basis of a conviction in view of the fact that P.W. 2 is basically a police officer. The learned A.P.P. however, pointed out that P.W. 2 no doubt is a S.I. of Police but he is under deputation in the H. E. C. and is working as a security Inspector and therefore, he cannot be deemed to be a police officer. I think this contention is well founded as, it will be impossible to suggest that a police officer even when working in a totally different capacity for example as an administrative officer in or out of the Government whether on deputation or otherwise must be deemed to be a police officer.
It is however, well settled that the expression "Police Officer" which is to be found in Section 25 of the Evidence Act should not be read in any strict technical sense, but according to its more comprehensive and popular meaning. As long ago as in 1876 it was stated by Garth, C. J. in Queen v. Hurribole Chandra Ghose ILR 1 Cal 207 that the term Police Officer in Section 25 and in the connected sections of the Evidence Act should not be read in any strict technical sense but according to its more comprehensive and popular meaning. This opinion of Garth, C. J. was referred to by their Lordships of the Supreme Court in State of Punjab v. Barkat Ram AIR 1962 SC 226 in which it was observed at page 208.
The words ''Police Officer'' are therefore not to be construed in a narrow way, but have to be construed in a wide and popular sense, as was remarked in Queen v. Hurribole ILR 1 Cal 207 where a Deputy Commissioner of Police who was actually a police officer and was merely invested with certain Magisterial powers was rightly held to be a police officer within the meaning of that expression in Section 25 of the Evidence Act.
Reference should also be made to the Police Act, 1861. In Section 1 of that Act it has been provided that the word ''''police" shall include all persons who shall be enrolled under this Act. Section 28 of the Act deals with a contingency where a person "having ceased to be an enrolled police-officer under this Act" does not deliver up his certificate and other equipments upon ceasing to be a police officer.
6. Turning to the facts of the present case I notice that P.W. 2 himself stated in course of his cross examination:
I am a sub inspector of Police, I am still a Sub-Inspector of Police". Subsequently however, P.W. 2 added:
When the accused confessed before me I was acting as a senior security Inspector and not a police Officer. I am in police service but I am under deputation as a Security Inspector.
It is manifest, therefore, that even while on deputation in the Heavy Engineering Corporation for employment as a Security Inspector there P.W. 2 did not cease to be a police officer, inasmuch as he did not cease to be an enrolled police officer as contemplated by the Police. Act, 1861. By reason of his deputation in the Heavy Engineering Corporation P.W. 2 did not cease to be a member of the Police force as contemplated by Section 2 of the Police Act, 1861. This could only have happened it subsequently P.W. 2 could not have reverted to the general line in the police force. Therefore, merely on the ground that P.W. 2 for the time being was on deputation as Security Inspector in the Heavy Engineering Corporation he did not lose his character of being a Police Officer in the comprehensive and popular sense within the meaning of that expression in Section 25 of the Evidence Act. In disagreement with the opinion of the lower appellate court, therefore, I hold that the confession alleged to have been made by the petitioner to or in presence of the senior security Inspector (P.W. 2) was inadmissible in evidence and that could not form the basis of his conviction.
7. For the aforesaid reasons the application succeeds. The conviction and the sentence are set aside and rule is made absolute.
