1954 Supreme(SC) 143

SUPREME COURT OF INDIA
22nd October, 1954
BHAGWATI, JAGANNADHA DAS AND VENKATARAMA AYYAR JJ.
Ramkishan Mithanlal Sharma and others, Appellants
Versus
State of Bombay, Respondent.
Criminal Appeals Nos. 4, 28 and 23 of 1954.
Advocates appeared
Mr. A. K. Basu, Senior Advocate, (Messrs. J. B. Dadachanji and Naunit Lal, Advocates. with him), (in Cri. A. No. 4); Messrs. T. Godiwala and B. P. Maheshwari, Advocates (in Cri. A. No.23) and Mr. Jai Gopal Sethi Senior Advocate (Messrs. B. P. Maheshwari and T. Godiwala Advocates with him (in Cri. A. No. 28), for Appellants; Mr. M. C. Setalvad, Attorney-General for India (Messrs. Porus A. Mehta and P. G. Gokhale, Advocates, with him, for Respondent (in all the appeals).

Headnote:City of Bombay Police Act, 1902, S. 63-lnvestigations under, prior to repeal of it by the Bombay Police Act, 1951-8. 162, CrilDinal Procedure Code 1898, does not apply-Effect of 8. 167(2) and (3) of the BOlDbay Police Act, 1951.

       The investigation in a case was started on the 20th April, 1951, and the Bombay City Police were then governed in the matter of investigation by the provisions of the City of Bombay Police Act (Bombay Act IV of 1902). Section 63 of the Act provided:

       "(1) No statement made by any person to a police officer in the course of an investigation under this Act shall, if taken down in writing, be signed by the person making it nor shall such writing be used as evidence."

       Under S. 162 of the Code of Criminal Procedure the ban applies also to oral statements made to a Police Officer during investigation. not reduced to writing.

       There was a proviso to that section which enabled such statements to be used by the accused to impeach the credit of such witness in the manner provided by the Indian Evidence Act, 1872. Under section 1 (2) (a) of the Criminal Procedure Code the Code did not apply to the police in the towns of Calcutta and Bombay and therefore section 162 of the Criminal Procedure Code was not applicable to the investigation made by the Bombay City Police.

       On the 11th June, 1951, the State Legislature passed the Bombay Police Act (Bombay Act XXII of 1951). Section 167(3) of that Act repealed section 1 (2) (a) of the Criminal Procedure Code so far as the police in the town •of Bombay were concerned with the result that when this Act came into operation with effect from the 1st August, 1951, the Bombay City Police were also governed by the provisions of Criminal Procedure Code thus bringing into operation the provisions of section 162 thereof in the investigations conducted by the Bombay City Police.

       Held: Section 167(2) of the Bombay Police Act, 1951, could only apply to those rights, privileges, obligations or liabilities already acquired, accrued or incurred under the City of Bombay Police Act, 1902 before the date of its repeal. An investigation conducted by the Polic under the provisions of that Act would not create or impose any right, privilege, ob.1igation or liability which could be saved by the provisions of section 167(2) of the Bombay Police Act, 1951. The investigation which had been conducted up to the 1st August, 1951, would be governed by the provisions of City of Bombay Police Act, 1902 and unless there was something in the Bombay Police Act, 1951, which referred to those investigations, all the incidents of those investigation would be governed by the provisions of the repealed Act and the question as to the admissibility in evidence of the results of such investigations would also have to be considered with reference to the provisions of that Act. Section 162 of the Criminal Procedure Code in terms applied to the investigations conducted "under this Chapter" i.e. Chapter XIV of the Code, which relates to information to the police and their powers to investigate, whereas section 63 of the City of Bombay Police Act, 1902, specifically referred to the investigations conducted "under this Act," i.e. the City of Bombay Police Act, 1902. Section 162 of the Criminal Procedure Code therefore applied by reason of the context and the terms of that very section to investigations which had been conducted by the Bombay City Police after the 1st August, 1951" and would not have a retrospecti ve operation because the investigations conducted up to the 1st August, 1951, by the Bombay City Police would certainly not be investigations conducted "under this Chapter", i.e. Chapter XIV of the Criminal Procedure Code.

       The test identification parades in regard to I and 2 having been held orior to the 1st August, 1951, S. 162 of the Code did not apply to the ~vidence received in regard to those parades, but the section applied to the evidence relating to the test identification parades in regard to accused 4 as these were held after 1 st August, 1951. - City of Bombay Police Act, 1902, S. 63-lnvestigations under, prior to repeal of it by the Bombay Police Act, 1951-S. 162, Criminal Procedure Code, d19B, does not apply-Effect of Ss. 167 (2) and (3) of the Bombay Police Act, 1951. - Section 162-Test identification parades-Purpose of-Evidence of identification-Applicability of Section 162-Admissibility of statement by identifier to Punch witness.

       Evidence Act, (1872), S. 27-Scope and applicability.

       Section 162, Cr. P. C. does not apply to investigations under City of Bombay Police Act, 1902, prior to repeal of it by the Bombay Police Act, 1951.

       The accused in the Lloyds Bank Ltd. dacoity case, Bombay stood their trial on the charges under Sections 395, 397 and 396 of the Indian Penal Code. The trial was held before the Sessions Judge for Greater Bombay with the aid of a special jury. The jury returned unanimous verdicts of guilty against each of the accused and they were convicted and sentenced each to transportation for life. An appeal filed by them to the High Court of Judicature at Bombay was summarily dismissed. Special leave was granted to them to appeal to the Supreme Court.

       1. Radha Krishan v. Emperor, A.I.R. 1946 Nag. 173 and Viswanath v. Emperor, A.I.R. 1936 Nag. 249 overruled: Bejoy Chand v. The State, A.I.R. 1950 Cal. 363 approved; Zahiruddin v. Emperor, A.I.R. 1947 P. C. 751 applied.

       The main contentions which were urged on behalf of the appellant." were: (1) That evidence inadmissible under Section 162 of the Criminal Procedure Code and under section 27 of the Indian Evidence Act had been admitted and that therefore there was an error of law which amounted to a misdirection to the jury; and (2) that there were mis-directions in the learned Judges charge to the jury which had the effect of misleading the jury or were in any event such as to render the charge unfair and prejudicial to the accused, thus causing a failure of justice.

       The admission of inadmissible evidence was attacked on two counts (1) That the evidence in regard to the test identification parades held at the instance of the police and under their active supervision was hit by Section 162 of the Criminal Procedure Code; and (2) that the statement of the police officer that it was" at the instance of" or" in consequence of certain statement by" the accused that certain discoveries were made was hit by Section 27 of the Indian Evidence Act.

       Held (dismissing the appeal): (1) Section 162, Criminal Procedure Code does not apply to investigations under the City of Bombay Police Act, 1902, S. 63, prior to repeal of it by the Bombay Police Act, 1951. The test identification parades in regard to accused 1 and 2 having been held prior to 1st August 1951 (the date on which the Bombay Police Act, 1951, came into operation), S. 162 of the Code did not apply to the evidence received in regard to those parades, but the section applied to the evidence relating to the test identification parades in regard to accused 4 as these were held after 1st August, 1951.1

       (2) Test identification parades are held by the police in the course of their investigation for the purpose of enabling witnesses to identify the properties which are the subject-matter of the offence or to identify the persons who are concerned in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police officers interrogate the identifying witnesses or the Panch witnesses who are procured by the police to do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence.

       If this background is kept in view it is clear that the process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject-matter of the offence or the persons identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his. finger or touch the property or the person identified, may either nod his head or give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular properties identified was the subject-matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person.

       The distinction therefore which has been made by the Calcutta2 and Allahabad High Courts3 between the mental act of identification and the

       1. See Notes on pp. 150,151 ante.

       2. Khabiruddin v. Emperor, A.I.R. 1943 Cal. 644; Surrendra Dinda v. Emperor, A.I.R.1949 Cal. 514.

       3. Duryao Singh v. State, A.I.R. 1952 All. 59.

       communication thereof by the identifier to another person is logical and such communications are .tantamount to statements made by the identifiers to .a police officer in the course of investigation and come within the ban of section 162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of Section 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial.1

       (3) A distinction can be made between the statements made to the police officers and the statements to the Panch witnesses called by the police officers when conducting the test identification parades, but on fulfillment of certain conditions only. If after arranging the test identification parade the police completely obliterate themselves and the Panch witnesses are left solely in charge of the parade, the process of identification is under the exclusive direction and supervision of the Panch witnesses, and the Panch witnesses thereafter explain the purpose of the parade to the identifying witnesses and the process of identification is carried out under their exclusive direction and supervision, the statements involved in the process of identification would be statements made by the identifiers to the Panch witnesses and would be outside the purview of Section 162. This was however not the position in the present case. The test identification parades in regard to the accused 4 which were held between the 16th January and the 22nd January 1952 attracted the operation of Section 162 and the evidence of identification at those parades was inadmissible against accused 4.

       (4) Section 27 of the Evidence Act is an exception to the rules enacted in Sections 25 and 26 of the Act which provide that no confession made to a police officer shall be proved. as against a person accused of an offence and that no confession made by any person whilst he is the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Where however any fact is discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, that part of the information as relates distinctly to the fact thereby discovered can be proved whether it 3mounts to .a confession or not. The expression" whether it amounts to a confession or not" has been used in order to emphasise the position that even though it may amount to a confession that much information as relates distinctly to the fact thereby discovered can be proved against the accused. The section seems to be based on the view that if a fact is actually discovered in alone sequence of information given some guarantee is afforded thereby that the information was true and accordingly can be safely allowed to be given in evidence. But clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information .is required to relate.-

       On a bare reading of the terms of the section it appears that what is allowed to be proved is the information or such part thereof as relates distinctly to the fact there by discovered. The information would consist of a statement

       1. In re Kshatri Ram Singh, A.I.R. 1941 Mad. 675 and Ramadhin Brohmin v. Emperor, A.I.R. 1929 Nag. 36 not approved.

       2. Pulukuri Kottaya v. Emperor, A.I.R. 1947 P.C. 67 referred to.

       made by the accused to the police officer and the police officer is obviously precluded from proving the information or part thereof unless it comes within the four corners of the section. If the police officer wants to prove the in. formation or a part thereof, the court would have to consider whether it relates distinctly to the fact thereby discovered and allow the proof thereof only if that condition was satisfied. If however the police officer does not want to prove the information of any part thereof, Section 27 does not come into operation at all.

       The evidence of the Investigating Officer was that on the 16th May 1951 the accused] made a certain statement in consequence of which he took accused 1 and 2 to Itawa and leaving the accused 2 there the party proceeded to Bhagwasi with the accused and that the accused 1 there pointed out Baliram who at the instance of accused 1 dug out from a mud house a tin box containing three revolvers and two tins containing live cartridges. The Investigating Officer did not seek to prove that information or any part thereof in the evidence which he gave before the court. Even when he said that Baliram dug out the tin box from the mud floor of a house at the instance of accused the did not seek to prove what that information was. The operation of section 27 was therefore not attracted and prima facie there was nothing to prevent that evidence being admitted against the accused.1

       The evidence of the police officer would no doubt go to show that the accused knew of the existence of the fact discovered in consequence of information given by him. But that would not necessarily show his direct connection with the offence. It would merely be a link in the chain of evidence which taken along with other pieces of evidence might go to establish his connection therewith. This circumstance would therefore be quite innocuous and evidence could certainly be given of that circumstance without attracting the operation of Section 27.1 - Section 0 - Test identification parades- propose of evidence of idenification. - Section 27-Scope and applicability.