Hansika Nukavarapu

Abstract: This piece argues that the inapplicability of the bar on admissibility of confessions under Section 25 of the Indian Evidence Act to Forest Officers under the Wildlife Protection Act is grounded in an artificial distinction that undermines the very purpose of the provision.

INTRODUCTION

The rights of the accused have long been a key focus of criminal law scholarship, with considerable attention devoted to primary criminal statutes such as the Indian Penal Code. However, comparatively little scholarly attention has been paid to special environmental legislations that harbour criminal provisions within them. The Wildlife Protection Act of 1972 (‘WPA’) is one such statute. This legislation was enacted to protect India’s wildlife with a view to ensuring ecological and environmental security. For this purpose, certain acts are criminalised under the WPA with serious penal consequences.

Section 25 of the Indian Evidence Act (‘IEA’), now Section 23(1) of Bharatiya Sakshya Adhiniyam (‘BSA’), bars the admissibility of confessions made to a “police officer”. However, courts have held that this bar does not apply to forest officers. Under the scheme of WPA, Section 50(8) empowers officers above a certain rank to “receive and record evidence” for the purposes of investigation into an offence. Therefore, confessions made to forest officers, albeit of a certain rank, are admissible as evidence in court.

In this piece, I argue that the inapplicability of Section 25 of IEA to the confessions administered to forest officers under WPA is grounded in an artificial distinction. I shall begin by applying the line of evolving judicial tests under Section 25 to question whether forest officers fall within the ambit of “police officers” under it. Thereafter, I seek to establish that the exclusion of forest officers from the bar under Section 25 ultimately undermines the very purpose of this provision.

DO ALL ROADS LEAD TO ROME?

In the pursuit of determining who falls within the ambit of a “police officer” under Section 25 of the IEA, the Supreme Court has introduced different tests through a plethora of decisions. One of the earliest cases was State of Punjab v Barkat Ram, where the Court adjudicated on the issue of whether a customs officer under certain special statutes would fall within the ambit of Section 25. In doing so, the majority identified the purpose behind the conferral of powers as a determining factor. Therefore, if one were to be a “police officer” under Section 25, the powers conferred upon them should be for the purpose of detection and prevention of crime (¶8). If we were to apply this reasoning to the forest officers under WPA, one might be tempted to argue that the conferral of powers under WPA is solely for the purpose of protection of wildlife, and not for prevention of crime. This argument finds support in Barkat Ram itself, where the Court distinguished customs officers from police officers on the ground that the former exercised powers to further the specific statutory objectives of the Customs Act, such as checking smuggling, realising customs duties, and protecting the revenue, rather than prevention and detection of crime generally (¶9). However, such a reading of the WPA would be incomplete. The WPA contains a specific chapter titled “Prevention and Detection of Offences”, which demonstrates that its power to prevent, investigate, and detect offences against wildlife is not a mere ancillary power. Rather, it is inclusive and constituent of their power and responsibility to protect such wildlife, and is therefore, a part of their purpose.

The Court departs from the Purpose test in Raja Ram Jaiswal v. State of Bihar and shifts its focus towards a different factor: the power of investigation. The test laid down was whether the powers conferred on an officer would facilitate the obtainment of a confession from the suspect (¶10). Section 50 of the WPA confers upon forest officers the powers of entry, search, seizure, arrest, and detention and therefore, constitutes their power of investigation. These powers facilitate the obtainment of a confession under Section 50(8) of the Act.

The inconsistency in decisions nudged the Court towards delineating a more definitive test. This test did not concern itself with the purpose of the powers under a special statute, nor did it focus on the wider ambit of the powers of investigation. Instead, it shifted the focus towards a narrow formal criterion: the power to file a chargesheet or police report. This test was employed in landmark decisions such as Badku Joti Sawant and Raj Kumar Karwal. While Tofan Singh overruled Karwal in the context of NDPS officers, it nonetheless reaffirmed the centrality of the power to file a charge-sheet in determining the applicability of Section 25. While the decisions may have differed in terms of their outcome, the underlying reasoning across these cases emphasised the same question: Whether or not the powers of the officers under the said statute would culminate in a police report.

A criminal case typically takes root in the form of cognisance by the magistrate, either on the basis of a police report or by way of a complaint. However, this is not the case for the Wildlife Protection Act. Section 55 of the WPA stipulates that the Court can take cognisance of an offence only on the basis of a complaint by certain forest officers. Therefore, even if there exists a police report on the offence, the magistrate can take cognisance under the Act only if it is submitted as a complaint through the authorised officer under Section 55. These officers overlap with those empowered to record evidence, including confessions, under Section 50 (8) of WPA. Moreover, their complaints are not subject to the mandatory preliminary examination under Section 200 of the CrPC, as forest officers, acting as public servants in the discharge of their official duties, fall within the exemption under proviso (a) to Section 200. Police reports are likewise not subject to any preliminary examination before a Magistrate takes cognizance.

Hence, for the purpose of cognizance, the Magistrate’s treatment of a police report and that of a complaint or the Wildlife Offence Report filed by a Forest Officer do not differ. Hence, even if these officers cannot file a police report, the standing of their complaint or their wildlife offence report satisfies the charge sheet test in essence, given that there is no difference in consequence.  However, the courts have not taken such an approach to this test.

While it is demonstrable that forest officers under WPA satisfy the tests under Section 25 of IEA on a substantive and functional level, it remains unavoidable that a strict or a literal reading of the current position may not yield the same conclusion. It has been previously argued by Sekhri that the settled judicial approach towards the threshold for Section 25 is inconsistent with the legislative intent behind the provision. The elevation of the power to file a charge-sheet over other substantive powers, such as arrest and detention, is not only an arbitrary ground, but also an artificial ground for determining who is a “police officer” under Section 25. This is evident from the fact that police officers of varying ranks, regardless of whether or not they possess the power to file a charge sheet with the magistrate, fall within the ambit of Section 25. In contrast, the officers under special statutes are subject to this inconsistent distinction.

AN APPEAL TO THE HIGH PURPOSE

Justice Subbarao, in his dissenting opinion in Barkat Ram, stated that the enactment of Section 25 of IEA was intended to subserve the high purpose of preventing police from extracting confessions by force, torture, or inducement (¶33).  He opined that this salutary principle should apply equally to all other officers who, by whatever designation, are in a position to extract confessions. In Raja Ram Jaiswal, with Justice Subbarao in the majority this time, the Court’s reasoning came close to making this purpose the focal point of determining who is a police officer under Section 25. However, traces of the ultimate purpose and the intent behind the provision got sidelined by formalistic interpretations in subsequent decisions.

The inherent assumption behind this “high purpose” is that the power dynamic between the police and an accused induces a certain level of vulnerability, which in turn, facilitates the extraction of a confession. At the core of such vulnerability is the power granted to a police officer to detain an accused and keep them in custody. Section 50 of the WPA extends this detaining power to forest officers as well, who can arrest a suspect without a warrant unless they are satisfied that the person will appear and answer any charge which may be preferred against them. These powers, in theory, place forest officers in a structurally similar position of authority over an accused.

In addition to having similar powers in the legal framework on paper, the resulting level of vulnerability faced by the accused in the custody of forest officers appears, in actuality, to be the same as that faced in regular police custody. The Annual Report on Torture by NCAT recorded at least three deaths at the hands of Forest Department officials in the year 2020 alone. Numerous cases alleging custodial torture by forest officials are currently pending in courts. Furthermore, WPA disproportionately impacts marginalised communities that rely on forests for their livelihood. Their socio-economic disadvantage exacerbates their vulnerability to mistreatment by those in power.

This similarity between forest officers under WPA and police officers, both in terms of powers granted by the legal framework as well as the actual consequences of such power dynamics, begs the question of how courts continue to draw a distinction between the two for the sake of Section 25 of the IEA. The admissibility of confessions under the WPA effectively undermines the high purpose of the bar under section 25.

ILLUSORY SAFEGUARDS

In exploring the admissibility of confessions made to forest officers, it is pertinent to contemplate the potential arguments that could be advanced in its defense. While these are not exhaustive or established justifications, they represent plausible lines of reasoning that are worth serious engagement.

A potential mitigating claim could relate to the fact that the officers whose confessions are deemed admissible under WPA are those not below the rank of assistant conservator or director and are, hence, high-ranking. As such, it could be argued that since they are not usually in direct involvement with the ground-level investigation process, they are independent officers, and that this diminishes the likelihood of extracting confessions through torture. However, this argument holds limited weight as it overlooks institutional loyalty. Custodial torture, being a common occurrence, suggests that there is some level of tolerance and complicity within the system. Therefore, the admissibility of confessions given to such high-ranking officials is only a nominal safeguard at best.

Another potential argument that seeks to justify the admissibility of such confessions is the claim that the courts are capable of assessing whether a confession was made voluntarily and truthfully. The wildlife crime investigation handbook stipulates that the evidentiary value of a confession statement depends on its voluntary and truthful character. Despite Courts undertaking the task of evaluating these factors, the exercise in itself is post facto to the potential duress or inducement that may have occurred leading up to the obtainment of the confession. For as long as there is that shadow of doubt glooming over this evaluation, the veracity of these confessions remains contentious.

A similar potential counterargument on the same lines could relate to the rule of corroboration. Since the confessions obtained by forest officers are extra-judicial in nature, they must be corroborated by other independent and reliable evidence. This is a settled principle of law. As such, it could be argued that the requirement of corroboration mitigates the risk of conviction based solely on these confessions. However, this principle is prone to being diluted in practice. In Forest Range officer v Aboobacker, the Kerala High Court observed that given the remoteness of the areas involved and the limited human activity, it would be pedantic to insist on the rule of corroboration in offences relating to forest and wildlife (¶6). Consequently, in forest offences, it becomes easier for the courts to bypass this safeguard in their reasoning and adopt a more lenient stance in assessing corroboration.

Therefore, while several potential justifications may be advanced in defence of the admissibility of confessions made to forest officers, each is fraught with limitations that compromise their reliability as a safeguard.

CONCLUSION

The admissibility bar towards confessions obtained by police officers under Section 25 of the IEA should equally apply to confessions made to forest officers under the WPA. This interpretation aligns with the underlying purpose of Section 25, which is to prevent the misuse of authority by officials and protect the accused from induced confessions. Drawing a distinction when there is no substantive difference, either in the powers conferred or in their practical impact during enforcement, is arbitrary.

Nominal safeguards are insufficient in the face of systemic tolerance of custodial abuse and the disproportionate impact of wildlife laws on marginalised communities. What is then required is a purposive and rights-centric interpretation by the court, one that prioritises the nature of the power over nomenclature.

Hansika Nukavarapu is a fourth-year student at NALSAR University of Law. She has a keen interest in constitutional law, criminal law, and forest governance laws is a fourth-year student at NALSAR University of Law. She has a keen interest in constitutional law, criminal law, and forest governance laws