R.B. Mehta, J.
His Lordship after stating the facts discussed the evidence and proceeded:
1. This discussion now leads us to the question as to whether the confession made by the accused in the presence of Sardulsing Rohitlal and Vaijnathsinh is admissible in evidence. It is contended by Mr. Bhatt that a confession made in the presence of Sardulsing is a confession made to a police officer and that therefore under the provisions of Section 25 of the Indian Evidence Act it is not admissible in evidence. Mr. Bhatt says that Sardulsing is a superior officer and a member of the Railway Protection Force which is constituted under the Railway Protection Force Act 1957 that the duties of such officer are akin to the duties of a police officer and that therefore Sardulsing should be deemed to be a police officer as contemplated under Section 25 of the Indian Evidence Act and that therefore the confession made to him cannot be admissible in evidence. For the purpose of his argument in regard to the powers of the superior officers of the Railway Protection Purse Mr. Bhatt referred to the provisions of Sections 11, 12 and 13 of the Act. Before we refer to the said sections it is pertinent to observe that the preamble to the said Act says as follows:
An Act to provide for the constitution and regulation of a Force called the Railway Protection Force for the better protection and security of railway property.
2. The preamble therefore makes it clear that the object of the Act is to constitute a Force which is called the Railway Protection Force for the better protection and security of the railway property. By Section 5 designation of the members of the Force is given under which designation there are A Class officers which comprise of the Inspector the Sub-Inspector and the Assistant sub-inspector. It may be mentioned that Sardulsing is a sub-inspector and Rohitlal is an assistant sub-inspector. There is also B Class of officers comprising other ranks of Head Rakshak Senior Rakshak and Rakshak. The duties of the members of the Force are provided for in Section 11 of the said Act.
11 It shall be the duty of every superior officer and member of the Force
(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 the railway property
(d) to do any other act conducive to the better protection and security of railway property.
Section 12 gives power to arrest without warrant:
12 Any superior officer or member of the Force may without any order from a Magistrate and without a warrant arrest-
(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
(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.
In other words under Section 12 any superior office or member of this Force may without a warrant arrest any person who has been concerned in an offence relating to railway property punishable with imprisonment with a term exceeding six months or against whom a reasonable suspicion exists of his having been so concerned or a person who is found in suspicious circumstances trying to conceal his presence within railway limits under such circumstances as would indicate that he is trying to conceal himself with a view to committing theft or damage to the railway property. By Section 13 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 referred to in Section 12 has been or is being committed and that a search warrant cannot be obtained without affording an opportunity of escaping or of concealing evidence of the offence he may detain him and search his person and belongings forthwith all if he thinks proper arrest any person whom he had reason to believe to have committed the offence and by Sub-section (2) of Section 13 the provisions of the Code of Criminal Procedure relating to searches under that Code shall so far as may be apply to searches under Section 13(1). In other words a superior officer or a member of the Force of a particular rank if he finds that an offence of the kind referred to under Section 12 has been or is being committed and that a search warrant cannot be obtained promptly and that delay would give an opportunity to the offender to escape then in such circumstances a power is given to such officer to detain an offender and search his person and belongings forthwith and arrest that person. In other words the powers given under Section 12 are to arrest without warrant a person who is found to be concerned in an offence relating to railway property punishable with imprisonment for a term exceeding six months or against whom a reasonable suspicion exists or his having been concerned in such offence and also to arrest any person who is concealing his presence within the railway limits in order to commit theft or to do damage to the railway property and by Section 13 power is given to detain such a person if a search warrant cannot be obtained without delay and if such delay would result in the offender escaping with also power of arrest. In other words in regard to offences to the property of the railway of the nature described in Section 12 the members of the Railway Protection Force have got power to arrest without warrant as well as power to search. It was contended by Mr. Bhatt that these powers are similar to the powers of a police officer under the Code of Criminal Procedure and that therefore Sardulsing is a police officer and the confession made in the presence of Sardulsing as well as other members of the Railway Protection Force is inadmissible in evidence. There is no exhaustive definition of the expression Police Officer in any of our statutes. Act 5 of 1861 Indian Police Act merely says the word police shall include all persons who shall be enrolled under this Act. This definition is on the face of it not exhaustive and it would be of little help in finding out the definition of what a police officer is. In the absence of a statutory definition and apart from all authority one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such or on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressed by called a police officer there is no difficulty whatsoever. If he is not so called then the next step would be to ask: what does the law require him to do? and what are the duties imposed on him and what are the powers conferred on him?. If these are substantially those of a police officer he would be regarded as a police officer. If his powers and duties 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. The material thing to consider would be not the name given to him nor colour of the uniform he is required to wear but his functions powers and duties. A question of this nature came up for discussion before Sir Richard Garth Kt. Chief Justice and Mr. Justice Pontifer in the case of The Queen v. Hurribole Chunder Ghose I.L.R. I Cal. 207. This case is considered to be a leading case on this question. The question that arose before the Court was whether a confession made before the Dy. Commissioner of Police in the town of Calcutta was a confession made to a police officer within the meaning of Section 25 of the Indian Evidence Act. It was contended that technically the Commissioner of Police and the Deputy Commissioner of Police were not members of the Bengal Police Force and that therefore the Deputy Commissioner of Police with whom the Court was concerned in that case was not a police officer as contemplated under Section 25 of the Indian Evidence Act. The officer concerned in that case was one Mr. Lambert. Mr. Lambert was also Justice of Peace for the town of Calcutta. As stated earlier the prosecution stand in that case was that Section 25 of the Indian Evidence Act would apply only to police officers who are so by any statute or the law and if an officer concerned did not answer that description he would not be a police officer. That argument was negatived by the Court. It may be stated that Mr. Lambert was also Superintendent of Police so far as the Police Force outside the town of Calcutta was concerned but as the Deputy Commissioner of police in the town of Calcutta he was no longer a member of the Bengal Police Force. It was for that reason contended that Mr. Lambert was no longer a police officer in regard to the confession made before him when he was a Deputy Commissioner of Police. The learned Chief Justice in repelling the argument observed as follows : There is no doubt that looking at the various sections of the Bengal Act IV of 1866 the Deputy Commissioner of Police is not a member of the Police Force within the meaning of that Act and moreover on looking back to the Police Act of 1861 it will be found that the term police officer as used in that Act has generally the same meaning as a member of the Police Force in the Act of 1866; but 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. In common parlance and amongst the generality of people the Commissioner and Deputy Commissioner of Police are understood to be officers of Police or in her words police officers and although in the case of a gentleman in Mr. Lamberts position there would not be of course the same danger of a confession being extorted from a prisoner by any undue means there is no doubt that Mr. Lamberts official character and the very place where he sits as Deputy Commissioner is not without its terrors in the eyes of an accused person; and I think it better in construing a section such as the 25th which was intended as a wholesome protection to the accused to construe it in its widest and most popular signification.
3. In other words the Court refused to take the meaning of the word police officer in strictly technical sense but it extended the meaning of a police officer to the Deputy Commissioner of Police and it was in thus extending the meaning of the word police officer that the observations above referred to were made by the Court namely that the words police officer should be read not in strict technical sense but according to its more comprehensive and popular meaning and that it should be construed in its widest and most popular signification. It was in the above context that these words were used. All the same the words police officer were meant to include a Deputy Commissioner of police by this decision. The observations made by the learned Chief Justice Sir Richard Garth in that Calcutta decision in the case of Queen v. Hurribole Chunder Ghose I.L.R. 1 Cal. 207 were referred to with approval by the learned Chief Justice Sir Amberson Marten Kt. in the case of Emperor v. Nanoo Sheikh Ahmed 28 Bom. L.R. 1196 where the question that was referred to the Full Bench by a Division Bench was as follows:
Is an Abkari officer who in the conduct of an investigation of an offence punishable under the Bombay Abkari Act exercises the powers conferred by the Code of Criminal Procedure 1893 upon an officer in charge of a Police station for the investigation of a cognizable offence is a Police officer within the meaning of Section 25 of the Indian Evidence Act?
4. The Court came to the conclusion that the power conferred on an Excise 'officer under the relevant Abkari Act were substantially similar to the powers conferred upon a police officer in charge of a police station for the investigation of a cognizable offence namely the powers of arrest search detention and investigation and that therefore an Abkari officer in relation to an offence under the Abkari Act was a police officer. In the course of the Judgment his Lordship the Chief Justice observed at page 1206 as follows:
Now what was the object of Section 25 of the Evidence Act? It was I take it to prevent the abuse of their powers by the police in this country in extorting confessions from persons in their custody; and I take it that one of the most important periods during which the accused persons were intended to be protected by the legislature was when the case was being investigated by the Police-officers and when the accused were perhaps solely in police custody and not allowed to see any other person. Therefore so far as the spirit of the Act is concerned we have the same possibilities of evil when an Excise officer investigates a case as we should have in the case of an investigation by Police officers in charge of a Police station under the Criminal Procedure Code.
5. In other words the power of investigation was considered to be the chief essential in this respect and the characteristic of a police officer. Mr. Justice Shah who was one of the members of the Full Bench observes in the same case as follows: (pp 1210-1211)
It seems to me a perfectly fair interpretation of Section 25 to say that the Police officer within the meaning of that section is an officer who exercises the powers of police conferred upon him by law whether he is called a Police-officer or he is called by any other name and exercises other functions also under other provisions of law. He is a Police-officer within the meaning of Section 25 if in the investigation of offences under a particular Act he exercises the powers of an officer in charge of a Police-station for the investigation of a cognizable offence conferred upon him by the Act. Section 25 of the Indian Evidence Act embodies an important rule which is to be given effect to as a matter of substance and not as a mere matter of form. It is not merely the name given to an officer that should determine whether he is a Police-officer but the substantial fact whether he exercises the powers of a Police-officer, conferred upon him by law should determine it.
6. Following the observations made by the learned Chief Justice in Queen v. Hurribole chunder Ghoses case the Court observed that the meaning given to the term Police-officer should not be construed in a technical sense but that it should be in a wide and popular sense. Nonetheless in deciding the question the Full Bench of the Bombay High Court observed that one has to find whether the police officer concerned has all the powers or substantially all the powers of A police officer. If the police officer concerned has all the powers or substantially all the powers of a police officer under the Criminal Procedure Code to investigate into a crime then such officer irrespective of the name he is called should be considered to be police officer within the meaning of Section 25 of the Indian Evidence Act. One of the important characteristics of the police officer was stated by the Full Bench of the Bombay High Court in this case to be the power of investigation into a crime and the reasoning was that it was during the investigation that there was an opportunity for the accused to be in detention and custody of the police and it was during that period that there was a likelihood of some pressure being put upon the accused and that therefore the confession which comes from the accused during the custody of a police officer in these circumstances should be made inadmissible in law. Mr. Bhatt however contended relying on the general observations that the term police officer should be construed not in a technical sense but in a wide and popular sense and he further contended that it is not necessary that powers of investigation should be an essential ingredient in this respect in considering whether a particular person is a police officer or not. As stated by us earlier in an earlier part of the judgment if the person concerned is a member of a Police force so called by a statute or law then no difficulty arises irrespective of the powers of a particular member of that force for in such circumstances it would be the whole body of that force who would be concerned.
The prevention and detention of the crime with the powers of investigation of the same. A difficulty arises in a case where the person concerned is not of a force which is technically called police force by statute or by law but he belongs to another rank where he is not called police officer but he has got certain powers of a police officer. Mr. Bhatt relied on a decision in Queen Empress v. Salemuddin Sheik I.L.R 26 Cal. 569 where it was held that the provisions of Section 25 of the Indian Evidence Act applies to every police officer and is not to be restricted to officers of the regular Police Force. The officer concerned in that case was a chowkidar under the Indian Forest Act and the offence was also under the Indian Forest Act. It was contended on behalf of the accused that a confession made to a chowkidar was not admissible in evidence. The learned Judge of the Calcutta High Court observed in this regard that they were not inclined to restrict the term police officer as used in Section 25 of the Indian Evidence Act to officers of the regular Police Force. They further observed that in their opinion the Section 25 applies to every police officer and further said that the term police-officer should not be read in a strict technical sense but according to its more comprehensive and popular meaning. We do not know what were the powers of a chowkidar under the Act referred to in this decision. Under the circumstances we do not think that this case can lend much assistance to the argument of Mr. Bhatt Mr. Bhatt next relied on a decision in Queen Empress v. Bhima I.L.R. 17 Bom. 485 where it was held that a police - patel is a police officer within the meaning of Sections 25 and 26 of the Indian Evidence Act and a confession made to a police - patel is inadmissible in evidence. In that case a Division Bench of the former Bombay High Court followed the decision in Queen v. Harribole Chunder Ghose I.L.R. 1 Cal. 207 and observed that the term 'police officer should be read not in its strict technical sense but according to its more comprehensive and popular meaning. In this connection it may be stated that the powers of a police - patel are regulated by the Bombay Village Police Act No. VIII of 1867. The preamble to the Act is as follows:
Whereas it is expedient to provide for the regulation of the village-police in the Presidency of Bombay it is enacted as follows.
7. In other words the statute itself which gives powers to the village police patel says the purpose of the Act to be regulation of the village police. In other words by the statute itself a village police patel is a member of the Police Force; and further in addition to it the powers and duties of the village police patel are inter alia under the Act by Section 10 there of that if a crime shall have been committed within the limits of the village and the offender has escaped or is not known to the police patel the police patel shall forward immediate information to the police officer in charge of the District Police-station within the limits of which his village is situated and shall himself proceed to investigate the matter obtaining all procurable evidence relating to it which he shall forward to the said officer and by Section 13 in making any inquiry within the scope of his duty the police patel otherwise than in a case in which it is competent for him to inflict punishment shall have authority to call and examine witnesses and record their evidence on solemn affirmation and to search for concealed articles. He has also the duty to furnish with any returns or information called for and keep constantly informed as to the state of crime and all matters connected with the village-police in his village. So far as the village police patel is concerned therefore by the Act itself he is a member of the village police Force and therefore he is a member of the statutory Police Force by the statute itself and further he has the power of investigation into a crime and even to examine witnesses. He has also by Section 6 to detect and bring offenders to justice. This case therefore cannot help Mr. Bhatt but on the contrary that would go against him for in regard to the powers of the members of the Railway Protection Force there is no power of investigation into offence mentioned in the said Act. Mr. Bhatt also drew our attention to the Full Bench case of Amin Shariff v. Emperor : AIR1934Cal580 where it was held by a majority of four learned judges Costello J. dissenting that an Excise officer who in the conduct of investigation of an offence against the Excise exercises the power conferred by the Code of Criminal Procedure upon an officer in charge of a police station for the investigation of a cognizable offence is a Police officer within the meaning of Section 25 Evidence Act and that the Legislature in using the term Police-officer in Section 25 did not intend to exclude from its meaning Excise officers exercising powers of detection and investigation of crimes committed against Excise laws. In arriving at the decision Mr. Justice Mukherji who gave the leading majority judgment observed at page 584 as follows:
Powers and duties of Police officers under Act 5 of 1861 or under Act 25 of 1861 or under any other statute or the different powers which different grades of Police officers have under any particular enactment are mere matters of details worked out in order to enable the entire body taken as a whole to carry out the two essential duties entrusted to them namely the prevention and detection of crimes. These two features of the duties which the police have to discharge and especially that of detention of offenders which involves the duty of holding investigations have always been regarded as marking them out for special treatment in so far as confessions made to them are concerned.
Mr. Justice Mukherji further observed:
It is mainly this duty of detection of offenders and the consequential duty of bringing an offender to justice which requires an investigation to be made that differentiates a private individual from police-man
8. In other words in deciding whether the excise officer under the relevant Abkari Act was a police officer within the meaning of Section 25 of the Evidence Act the majority of the Judges observed that the duties of prevention and detection of crime which involved the duty of holding investigation have always been regarded as marking its officers out for special treatment in so far as confessions made to them are concerned. In other words the characteristics which mark the officer concerned as a police officer were the powers of prevention and detection of crime and the detection of crime involves the investigation into the crime. The majority decision of Full Bench of the Calcutta High Court therefore in Amin Shariffs case held that powers of investigation were an essential characteristic which mark out a police officer. This Full Bench case of the Calcutta High Court therefore cannot lend any assistance to Mr. Bhatt but on the contrary it would go against the proposition that he has contended for the reason that a member of the Railway Protection Force has only powers of arrest and a limited powers of detention till he can be handed over to the nearest Police Station but no powers of investigation in regard to offences which are mentioned in the same Act. Next Mr. Bhatt referred to a decision in S. Fernandez v. The State : AIR1953Cal219 where the learned Judges were considering whether the Preventive Officer of the Custom department was a police officer within the meaning of Section 25 of the Indian Evidence Act and it was held that such an officer was a police officer within the meaning of Section 25 of the Indian Evidence Act even though he had not been vested with the powers of investigation. It was observed by the Court (at p. 221) that they had the powers under the Sea Customs Act of prevention and of detection of crime and further that even though there were no express powers of investigation the other powers were analogous to the powers of a police officer within the meaning of Section 25 of the Indian Evidence Act. The powers of detection would however imply the powers of investigation. At the same time in so far as the decision says that the powers of investigation is not a necessary characteristic of a police officer it is contrary to the majority opinion of the Calcutta High Court in Amin Shariff's case. In support of their judgment the learned Judges have referred to the case of Emperor v. Mallangowda 19 Bom. L.R. 683 and to the observations of the Bombay High Court to the effect that it is not necessary that the police officer should be the investigating officer as also to the observations of Mr. Justice Section 19. Ghose in Amin Shariffs case to the effect that it may be that the power conferred to investigate is not a complete test. In regard to the case of Emperor v. Mallangowda Parwatgowda 19 Bom. L.R. 683 the observations were made in regard to two police constables in whose custody the accused person was while the accused person was being taken to a hospital. In that case two policemen took the accused from the lock-up to the dispensary. At the dispensary the policemen waited outside at the verandah while the accused was inside undergoing examination at the hands of the doctor. The policemen were waiting there in order to retake the accused when he emerged from the dispensary and to conduct him back to the Magistrates lock-up and the confession was made during the few minutes when the accused was inside the dispensary and the two policemen were waiting outside on the verandah for his return. It was in these circumstances that the question arose whether it can be said whether the accused was in these circumstances in the custody of the police and it was with reference to these circumstances that the Court observed that substantially the custody was of the two police constables at that time and it was not necessary for the application of Section 25 that the police officer concerned must be actually the investigating officer at that time. The Bombay case of Emperor v. Mallangowda was concerned with a person who was a member of an actual police force so called. If a person is a member of a regular police constabulary than it is not necessary for the purpose of satisfying the requirements of Section 25 that he should be actually an investigating officer to make the confession admissible. So far as the observations of Mr. Justice S.K. Ghose in Amin Shariffs case are concerff what Mr. Justice S.K. Ghose said was that it may be that the power conferred to investigate is not a complete test. It was not said by Mr. Justice S.K. Ghose that the power of investigation is not a necessary ingredient of a police officer. In any view of the case we are unable to take a view that the powers of investigation are not an essential characteristic of an officer to mark him out as a police officer when he is outside the regular police force. The Full Bench of the Bombay high Court in Nanoo Sheikh v. Emperor 28 Bom. 1196 adopted that as a test to find out whether a person is a police officer.
Mr. Bhatt next referred to the decision In re Someshwar H. Shelat A.I.R. 1946 Mad. 430 where it was held that a special officer of the Commercial Tax Department who has been empowered in this behalf by the Provincial Government of Madras in exercise of the powers conferred on them by Section 12(3) of the Hoarding and Profiteering Prevention Ordinance introduced by the amending Ordinance No. 53 of 1944 is a Police officer within the meaning and for the purpose of Section 162 Criminal Procedure Code and Section 25 of the Evidence Act. Relying on these observations it was said that if a Special Officer of the Commercial Tax Department who had powers of the police officer within the meaning of Section 25 of the Indian Evidence Act then a member of the Railway Protection Force who has got the powers of arrest and search should be considered as a police officer. Mr. Bhatt however did not appear to be conscious of the position obtained in this Madras case for by Section 12(3) of the Hoarding and Profiteering Ordinance this officer was expressly given all the powers duties and privileges of an officer in charge of a police station under the Code of Criminal Procedure 1896 when investigating a cognizable offence within the limits of his station and therefore the officer concerned had the full status of a police officer and his powers and duties were those of a police officer under the Code of Criminal Procedure to investigate into a cognizable offence then obviously he has the powers of investigation and under the reasoning of the Full Bench case of Nanoo Sheikh Emperor 28 Bom. L.R. 1196 he would be a police officer under Section 25 of the Indian Evidence Act in regard to the offence which is mentioned in the relevant statute. This case therefore cannot be of any assistance to Mr. Bhatt. Mr. Bhatt next relied upon a decision in Ibrahim v. Emperor A.I.R. 1944 Lah. 57 wherein it was observed that a member of the civic guard when called out on duty should not be treated as anything else than a police officer even though he may not have the powers of investigation. The case; however does not mention what are the duties of a civic guard. It appears to us that the Lahore High Court in this case treated a civic guard on duty presumably in the position of an auxiliary police force. In other words a force assisting the police in their duties. However as we have observed earlier we do not find in that case what exactly are the statutory duties cast on a civic guard while on duty. Under these circumstances we find it difficult to interpret this decision in favour of Mr. Bhatt.
Mr. Bhatt next drew our attention to a decision of the Full Bench of the Allahabad High Court in Deokinandan v. Emperor : AIR1936All753 where it was held that a village chowkidar appointed under North Western Province Village and Road Police Act 16 of 1873 is a police officer within the meaning of Section 25 Evidence Act and a confession made to him is not admissible in evidence. It is pertinent to observe that by the statute in question the relevant officer was termed as a village police officer. In other words the statute itself describes him as an officer belonging to village police. By being called a village police officer the officer does not cease in that sense to be a police officer. In this view the officer concerned would fall within the provisions of Section 25 of the Indian Evidence Act. Mr. Bhatt therefore cannot make use of this decision for the proposition contended for by him namely that in the present case even though a member of the Railway Protection Force has got no powers of investigation and even though he is not a member of the police force as such he should be deemed to be a police officer. Mr. Bhatt next drew our attention to the decision of the learned Judicial Commissioner Nagpur in Mt. Mechi v. King Emperor A.I.R. 1925 Nag. 340 where it was held that a Patel in Berar is a Police-officer and the fact that powers are conferred upon him by the rules made under the Berar Patel's and Patwaris Law 1900 makes no difference. Consequently it was held that the confession made by an accused to a Patel is inadmissible. This decision also does not seem to lend any assistance to Mr. Bhatt for under the rules framed under Section 21 of the Berar Patel's and Patwaris Law 1900 the duties of Police Patel's under Rules 19 and 21 as stated by the learned Judicial Commissioner were to the effect that the Police patel was required to detect and bring offenders to justice to apprehend within the limits of his villages all persons whom a police officer could arrest without warrant and to send the persons apprehended to the nearest police station and also to arrest persons suspected of having committed serious offences who happened to be in the village. He had also powers to search houses for stolen property and to pursue suspects into neighboring villages. The decision shows that the Patel is also termed a Police Patel in other words a member of the Police Force and further the powers include the powers of search of apprehending offenders and also the power of detection which will include the powers of investigation. We do not find anything in this decision contrary to the principle laid down in 28 Bom. L.R. 1196 and by a majority of the Full Bench in : AIR1934Cal580 The above discussion makes it quite clear that so far as the Bombay High Court is concerned as observed by us earlier in Nanoo Sheikh Ahmed v. Emperor 28 Bom. L.R. 1196 the five learned Judges have laid down that the powers of investigation is an essential characteristic marking out a police officer. To the same effect are the observations of the majority of the Full Bench in : AIR1934Cal580 in Amin Shariffs case. A Division Bench of the Madras High Court in Public Prosecutor v. Paramasivan : AIR1953Mad917 accepted the view taken by the Full Bench of the Bombay and Calcutta High Courts.
9. The above discussion of the authorities will show that there is a general consensus of judicial opinion that to mark out a person (not being a member of the regular constabulary) as a police officer under Section 25 of the Indian Evidence Act it is essential that the officer concerned has the powers amongst other powers of a police officer of investigating a crime. In the case before us as we have stated earlier the powers of the member of the Railway Protection Force are to arrest person concerned in an offence relating to a railway property punishable with imprisonment for a term exceeding six months or against whom a reasonable suspicion exists of their having been so concerned; or persons found taking precautions to conceal themselves within the railway limits under suspicious circumstances affording a reasonable belief of their doing so with a view to committing theft of or to do damage to railway property and further to search that person and the belongings of that person and by Section 14 of the said Act it is incumbent upon a member of the Force making arrest as aforesaid without unnecessary delay to hand over the person so arrested to a police officer. In other words they are very limited powers in regard to offences in regard to railway property without any powers of investigation. In our view therefore a member of the Railway Protection Force is not a police officer as contemplated under Section 25 of the Indian Evidence Act. Assuming contrary to our view that he is a police officer even so far as the offence of murder is concerned he would not be a police officer for in our view it the powers of the relevant officer are confined to particular extent or territory or to a particular subject matter he will be a police officer only in respect of that territory or that subject matter. A similar view has been taken by Mr. Justice Balkrishna Ayyar in the above mentioned case of Public Prosecutor V.C. Parmamasivan and Ors. : AIR1953Mad917 Reference may also be made to the observations of Mr. Justice S.K. Ghose in the Calcutta Full Bench case of Amin Shariff v. Emperor 0043/1933 : AIR1933Cal580 to the following effect:
It may be that this is a statutory fiction but it is sufficient to show that in so far as investigation into an excise offence is concerned an excise officer is virtually the same thing as a police officer.
10. In other cases for instance in a murder case an excise officer may be no more than a member of the public In other words therefore in the present case the Railway Protection Force having nothing to do with the investigation of the offence of murder it cannot be said that a member of the Railway Protection Parse even if he is held to be a police officer for an offence under the Railway Protection Force Act is a police officer in respect of a murder case. In these circumstances the objection taken by Mr. Bhatt that the confession made in the presence of Sardulsing is not admissible by reason of the provisions of Section 25 of the Indian Evidence Act is untenable. The result is that the confession is admissible in evidence. There is nothing to show that the evidence in regard to confession should not be accepted. In fact there is no cross-examination of witnesses on this point. As we have stated earlier that even apart from the confession there is sufficient evidence to show that the accused is the assailant of the deceased in this case. Added to that however there is the evidence of the confession which also shows that the accused was the assailant of the deceased.
Mr. Bhatt next contended that assuming that the accused was the assailant of the deceased; that the offence in this case is one of culpable homicide not amounting to murder by reason of the last exception to Section 300 namely that the act in question was committed by the accused while he was deprived of self control by reason of grave and sudden provocation afforded to him by the accused. In this connection Mr. Bhatt drew our attention to the evidence of the Assistant Sub-inspector of the Railway Protection Force witness Rohitlal who in his evidence stated that on the 2nd of July 1959 in the evening at about 8-0 when he was present at the time of the roll call he gave a general warning to the members of the staff that he received a complaint that a Sainik of the Railway Protection Force was having carnal intercourse with a cow and that such a thing should not happen again. It was contended by Mr. Bhatt that because of this warning given by Rohitlal the accused on the following day i.e. on the day in question asked the deceased whether he had unnatural intercourse with a cow. Mr. Bhatt contended that because of Rohitlals statement on the previous day this was a natural question which the accused put to the deceased. Mr. Bhatt said that when this question was put to the deceased by the accused the deceased got enraged and said yes I have done and I will do so even with your mother. Mr. Bhatt's contention is that these words which were uttered by the deceased amounted to a grave and sudden provocation resulting in the loss of self control by the accused. It was said that therefore the offence amounted if at all to culpable homicide not amounting to murder. In our view this argument of Mr. Bhatt is not well founded. It is apparent that it was the accused who first provoked the deceased by asking the deceased whether he had unnatural intercourse with a cow. Putting such a question itself was to a Hindu who worships a cow an insinuation of a foul abuse. The position therefore is that it was the accused himself who provoked the deceased into the retort which was given by the deceased to the accused according to the evidence of the accused. In this view therefore the provocation is neither sudden nor grave. It is not sudden because the accused himself provoked it. It is not grave for it was the accused who himself first used a very foul abuse. On this aspect of the case therefore it cannot be said that the provocation is grave or sudden. Assuming however that the deceased uttered the words Yes I have done and I will do so with your mother apart from the first abuse given by the deceased even so it is difficult for to take the view that mere verbal abuse would amount to grave and sudden provocation under exception (1) to Section 300. In this connection reference may be made to the case of Holmes v. Director of Public Prosecutions 1946 (2) All E.R. 124 before the Court of Appeal where Viscount Simon has made the following observations in his Lordships speech (p. 127):
It is first to be observed that provocation by mere words may have more than one meaning. It may mean provocation by insulting or abusive language calculated to rouse the hearers resentment. The contrast with provocation by physical attack is obvious. A blow may in some circumstances rouse a man of ordinary reason and control to a sudden retort in kind but the proverb reminds us that hard words break no bones and the law expects a reasonable man to endure abuse without resorting to fatal violence. It is in this sense that the constantly repeated statement in the old books that mere words not being menace of immediate bodily harm do not reduce murder to manslaughter is to be understood.
This decision of the House of Lords was cited with approval by the Nagpur Bench of the former Bombay High Court in the case Jairam Chandrabhan Mahar v. The State 61 Bom. L.R. 35. Mr. Bhatt has contended that this was not a case of mere verbal abuse. In that case the accused had seen the deceased with his wife in actual act of adulterous intercourse with her paramour during the night. At that time he kept quiet and returned home. Next morning the accused went to the field where his wife was working and asked her whether she had gone to her paramours house on the previous night and his wife thereupon said Yes I will go. It is my sweet will. If you feel it so much then I will begin residing with Pandya. The case of the accused was that though he tried to persuade his wife to improve her ways she declined to do anything. On the contrary she said if you are so much ashamed then get away from here. Why have you come here and she also used foul language. This enraged the accused and he thereafter caught her hand and his wife retaliated by kicking him whereupon he lost his self control took out a small penknife which was with him and dealt five or seven blows on his wife's person which were fatal. This is not the case of mere verbal abuse but it is on the contrary accompanied with the kick of a wife added to it was the insulting behaviour showing wanton disregard of their marital relations.
11. Even on these facts a Division Bench of the Bombay High Court held that though it was provocation it was not in law grave and sudden provocation within the meaning of that expression used in the 1st exception to Section 300. This case is therefore against the contention put forward by Mr. Bhatt in this case. Mr. Bhatt further referred to us in this connection to a decision of the Rangoon High Court in Nag Paw Yin v. Emperor A.I.R. 1936 Rangoon 40 where the Court observed to the following effect:
Where the accused is treated with the gravest contumely by the deceased who is drunk during a quarrel and subsequently the deceased again burst out in filthy abuse and insulting accusation of theft against the accused to receive such a grievous insult all in a moment at the mouth of a drunken man whose previous offence has been condoned would amount to a grave provocation even to a man of most philosophic temperament more so in the case of an ordinary youthful rustic in whom unusual powers of self control cannot be expected. It would be unreasonable to expect in such a person so much power of self control as to avoid losing his temper completely on being suddenly wantonly and filthily abused. If on account of the abuse the accused strikes the deceased with a bamboo stick which results in his death his case comes within the Exception to Section 300.
12. When this case was decided by the learned Judges they had not before them I the benefit of Holmes v. Director of Public Prosecutions case decided by the House of Lords which we have referred to above which shows that mere verbal abuse would not amount to grave and sudden provocation such as to warrant fatal violence in retort. We are unable therefore to take the same view which has been taken by the Rangoon High Court in this case. Mr. Bhatt next referred us to a case in Thirupathuran v. Emperor : AIR1934Mad722 This case however does not lend any assistance to Mr. Bhatt for the provocation in this case was not only abuse but it was accompanied by physical assault e.g. the deceased caught hold of the accused by his tuft of heirs and gave him a blow with his fist on his back. This case therefore cannot lend any assistance to Mr. Bhatt's argument that mere verbal abuse would amount to grave and sudden provocation as to warrant fatal violence in retort. Mr. Bhatt nest referred to us to a case of Boya Munigadu v. The Queen I.L.R 3 Mad. 33 in support of his contention. The facts however of this case are different. In that case the facts show that in the morning the accused saw his wife eating with the deceased and giving him food while she left her husband without it. The previous night however the accused had seen his wife having connection with her paramour and he was moved by what he saw. At that time he did not interfere Next morning as stated earlier he saw his wife eating with the deceased and giving him food while she left her husband without it. When in the morning he saw his wife eating with her paramour and because of what he had seen the previous night he got enraged. He struck the paramour with a billhook and gave him 2 or 3 blows with the bill-hook that the paramour died. The Court has observed in this reference as follows:
If he had not been a witness to what had occurred on the previous evening this conduct will have a special significance indicative of improper relations between the deceased and the wife and if having witnessed the act of adultery he connected this subsequent conduct as he could not fail to connect it with that act it would be conduct of a character highly exasperating to him implying as it must that all concealment of their criminal relations and all regard for his feelings were abandoned and that they proposed continuing their course of misconduct in his house. This we think amounted to provocation grave enough and sudden enough to deprive him of his self control and reduced the offence from murder to culpable homicide not amounting to murder.
13. On the facts of this case what the accused saw in the morning was actually the continuing of what he had seen at night. Under these circumstances it was held that it was actually and really a continuing provocation which was both grave and sudden within the meaning of 1st Exception to Section 300. The facts of this case are therefore entirely different from the one which are before us where the case is one of mere verbal abuse and not more. Mr. Bhatt next referred to the case of In re: Kannan 1953 Cr. L.J. 1109 of the Madras High Court where the Court observed to the following effect:
In this country if a person were to beat another with a shoe that is considered to be the height of shame and particularly in the midst of a number of villagers right in the street. An attempt to beat a man with a shoe would therefore give sufficient provocation to the man intended to be beaten. It was held that as there was grave and sudden provocation the offence was not one of murder under Section 300 Penal Code but only under Section 304 Part I.
14. This obviously is not a case of a mere verbal abuse. It is therefore of no assistance to Mr. Bhatt. The authorities which have been cited by Mr. Bhatt therefore do not help him and we are unable to take a view that mere verbal abuse would amount in law to grave and sudden provocation under the 1st Exception to Section 300 of the Indian Penal Code such as to warrant fatal violence in retort.