A Single Bench of the J&K&L HC while hearing an appeal against an order of conviction passed by the Trial Court (Court of Principal Sessions Judge, Rajouri) against the Appellant for commission of offences under Sections 3/25 and 7/25 Arms Act delved into the provisions of the Evidence Act, more specifically, Section 27, and explained the meaning of the term ‘police officer’ used therein.
The Appellant in the case was apprehended by the operation party of the Border Security Force during a raid in his village, and upon questioning a huge cache of arms and ammunition were recovered at his instance and thereupon, on the basis of a letter of the commandant of the Operation Party, an FIR was registered against the Appellant by the concerned police. Pertinently, the Appellant, during the Trial, despite several opportunities did not lead evidence, and ultimately, the Trial Court convicted the Appellant. The judgment of the Trial Court was challenged before the High Court, inter-alia, on the ground that the recovery of weapons allegedly made at the instance of the appellant and from the possession of the appellant was not in terms of Section 27 of the Evidence Act and, therefore, vitiated in law.
However, controverting the same, the Respondents argued before the High Court that the Special Operation Party of the BSF cannot be termed as “police officers” within the meaning of the term contained in Section 27 of the Evidence Act and, therefore, the recovery of arms and ammunition made from the possession of the appellant was not required to be tested on the touchstones of Section 27 of the Evidence Act. In order to decide the controversy, the High Court formulated the following question for its consideration,
“Whether the Special Operation Party of BSF, which conducted search and cordoned operation on 21.05.1997 leading to the recovery of huge cache of arms and ammunition from the possession of the appellant, can be termed as “police officer” within the meaning of the term contained in Section 27 of the Evidence Act.”
The Court, while evaluating Section 24, 25, 26 as well as 27 of the Evidence Act, observed that the term “police officer” used in Sections 25, 26 and 27 of the Evidence Act refers to an officer of police, ‘who is conferred powers of investigation of the crime and presenting the Final Report before the competent Court of criminal jurisdiction’. Though, the Court held that the term “police officer” cannot be understood in a narrow and pedantic sense, nevertheless, it observed that it cannot be unduly stretched to include within its scope persons on whom only a certain police powers are conferred. Broadly it held that the term “police officer” used in Sections 24 to 27 of the Evidence Act is to be construed to mean a police officer or any other officer invested with the power of investigation under Chapter XII of the Code of Criminal Procedure. However, in the case at hand, as far as the Special Operation Party of the BSF is concerned, the Court noted that it cannot be said to be invested with the power of investigation of crime under Chapter XII of the CrPC.
The Court also noted that under the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, the armed forces of the Union including the BSF have been conferred certain special powers, which are only to the extent specified under the Act itself, particularly, Section 4, which although to some extent are akin to the powers conferred upon the police officer under Code of Criminal Procedure however, they do not extend to giving the armed forces the power to enter upon investigation, detection of crime or making over the accused to the competent Court of criminal jurisdiction for trial. Holding thus, the Court observed, “It is in these circumstances, it can safely be concluded that while effecting recovery of arms and ammunition from the appellant, the BSF‘s Special Operation Party headed by its Commandant did not act as a ‘police officer’ attracting the mischief of Section 27 of the Evidence Act.”
Therefore, the Court, while holding that the Appellant could not indicate any discrepancy in the prosecution evidence which could put the recovery of arms and ammunition from the appellant in serious doubt, observed that the findings of the Trial Court are in consonance with the evidence on record, and thus, dismissed the Appeal.
