Who really is a “police officer?”. A quick case comment on the Supreme Court decision in Tofan Singh v. State of Tamil Nadu (2020 SCC OnLine SC 882)

Isn’t it too late in the day to be deciding this, you ask? Shouldn’t something like this – which goes to the very basics of a criminal justice system – be settled for good by now? Well, the law on this point – as the discussion below would reveal – has meandered (instead of evolving!). Be that as it may, this decision is welcome and does clarify a few things – but before that – a quick word on the context in which the question arose and importance of this question.


The question as to who really is a ‘police officer’ assumes great significance in criminal investigations and trials for the simple reason that : A statement given to ‘police officer’ is not admissible in evidence; further, even a confession recorded by a police officer is not admissible & not even worth the paper it is on. These are important guarantees/safeguards put in place by Sections 162 of the Code of Criminal Procedure (“CrPC”) and Section 25 of the Evidence Act, 1872 (“IEA”). There is sound legislative policy behind this. It recognises that – any other view – would encourage the investigators to, instead of investigating cases forensically, rub chillies in the eyes of accused persons, extort confessions and secure an easy conviction. These provisions, therefore, were informed by ground realities, much of which – unfortunately – haven’t changed in the last century or so.  

This was and has been the position under the general criminal law. Special laws such as Narcotics Drugs and Psychotropic Substances Act (“NDPS”), Companies Act (“CA”), and the Prevention of Money Laundering Act (“PMLA”), however, make a departure from this. These laws permit special investigative agencies/regulators to record statements of witnesses – which are then – taken to be admissible in evidence. In fact, under these laws, even the accused/suspect does not have a ‘right to silence’ and the immunity from being required to appear before investigators/regulators and answer questions, which, disconcertingly, can be used against her in the court at trial. This goes against one of the most fundamental principles of criminal law : The Right To Silence. The hard won constitutional guarantee that : No woman shall be compelled to be a witness against herself.  

Advocates of a more just and fair criminal justice system have long argued that regulators/investigators under the special laws should also be treated as ‘police officers’ and the general safeguards under CrPC and IEA (as stated above) should apply with equal force. The regulators – of course, argue that they are not ‘police officers’ and shouldn’t be treated as such. This – along with the general rhetoric on the sheer impact of socio-economic crimes, is often pressed into action to justify harsher provisions under special laws. 

Tofan Singh 

This question as to how really is a ‘police officer’ has previously arose in the context of the custom, excise, railway protection laws, among others. The Supreme Court has – over the years – laid down a few tests in this regard. There was a considerable divergence of opinion which led to the reference in  Tofan Singh to a 3 judge bench which went on to examine: 

  • Whether an officer of the central / state government investigating a case under the NDPS Act is a “police officer”? 
  • Whether statements recorded under Section 67 of the NDPS Act can be treated as confessional statements, regardless of whether the officer is a police officer?

By a 2:1 majority, the Court holds that officers of the central/state government, inquiring into NDPS cases, are indeed ‘police officers’ and statements given to them are not admissible at trial. The Court construed the term ‘police officer’ common-sensically and adopted a ’substance over form’ test. It held, that even if an officer is not designated as such, she may still be regarded as a ‘police officer’ if she otherwise exercises powers which are typically investigative in nature; for instance, the power of search, seizure, arrest, etc. 

The Court held that the mere fact that these officers under NDPS do not file a charge-sheet at the end of the investigation does not militate against the fact that – essentially – they are police officers – function-wise. The Court took note of the fact that NDPS is a ‘penal statute’ and given the gravity of consequences for the accused/suspect, the law must be tested on a higher due-process anvil and important processual safeguards should be made available. 

As good as this conclusion this, one must confess that the majority opinion is a bit tenuous when it comes to dealing with previous decisions of the same bench strength. It does not – for instance – deal satisfactorily with a previous constitution bench decision (Barkat Ram) – which says that, while deciding the question as to whether an investigator is a ‘police officer’ or not, the fact that the investigator finally files a charge sheet in the court is determinative of the matter. This is where the dissent by Justice Indira Banerjee calls the majority decision out. 

This – we believe – would ensure that this is not the end of the road for this question and it would continue to be litigated upon. But – all in all, a progressive decision that may have the effect of introducing much needed ‘due process’ in investigations under special laws, where the general rhetoric against white collar crime has led to – over the years – a dilution of important safeguards. 

Way forward…

We believe that the case may have great implications with respect to investigation under other statutes too, for instance, the CA and the PMLA, under which the SFIO and ED, respectively, can record statements of even suspects which can then be relied upon by Courts – at the time of trial.  

*A detailed case comment on the other issues emanating from the judgment, including the nuance around ‘inquiry’ and ‘enquiry’, would soon follow.

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  1. SR Agarwal

    Police are the People- who “To help drive change and needless laws that put their lives at risk.”for a remuneration. Through your Excellent research;we see police academy graduates unprepared for the realities of the street, success measured by number of arrests, and the ultimate failure of the war on drugs.

    Sir,your article presents us with a true dilemma…. your pleadings compels us to rethink our ideas…. It is invariably jarring to overcome a prejudice or abandon a dearly held belief. And,by referring to various landmark Judgements,you have made a convincing case…. Clear, smart and highly readable article…. Let the debate begin…on what Makes A Police Officer??

    Liked by 1 person

  2. bhavuk sahni

    A Police Officer With Genuine & Fair Investigations is A Police Officer.

    Liked by 1 person

  3. Gaurav Mehta

    “A police officer does not cease to be such merely because he is put into a white khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container.”

    [Public Prosecutor v. Paramasivam (Division Bench) AIR 1953 Mad 917, as referred to in the minority judgment by K. Subba Rao, J in State of Punjab v. Barkat Ram (3-Judge Bench) AIR 1962 SC 276].

    The above observation made by Justice K. Subba Rao way back in August 1961, as has been the norm in some other cases, well portray that a dissent is not only “an appeal to the intelligence of a future day” (as observed by Charles Evan Hughes), but a sign of what is possible and, in cases, the correct view. Though the said decision was made in the context of different statutes nevertheless, adopted ‘substance over form’ test.

    You have rightly noted the law as to who really is a “police officer” has meandered, and I am sure it still is far from being settled (as also concluded by you!). This being all the more so in the wake of Constitution Bench judgments in Badaku Jyoti Savant v. State of Mysore AIR 1966 SC 1746 and Illias v. Collector of Customs AIR 1970 SC 1065.

    But certainly, it’s a progressive decision.

    According to me, Section 25 IEA, 1872 uses the words “a police officer” and not “the police officer” which connotes any police officer and not just the police officer who is involved in investigation of the offence. This also differs from the words “a police officer” used in the Sec. 162(1) as it specifically mentions such police officer is the one who is conducting investigation. Perhaps, this was the basis for the following observation made by Raghubar Dayal, J. (majority) in ‘Barkat Ram’:

    19. The police officer referred to in Section 25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police, of whatever rank and at whatever time, is inadmissible in evidence in view of Section 25.

    Also, as noted by K. Subba Rao, J. in his minority judgment:

    39. “……..If a literal meaning is given to the term “police officer” indicating thereby an officer designated as police officer, it will lead to anomalous results. An officer designated as a police officer, even though he does not discharge the well understood police functions, will be hit by Section 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police officer would not be hit by that section; with the result, the object of the section would be defeated. The intermediate position, namely, that an officer can be a police officer only if powers and duties pertaining to an officer in charge of a police station within the meaning of the Code of Criminal Procedure are entrusted to him, would also lead to an equally anomalous position, for, it would exclude from its operation a case of an officer on whom specific powers and functions are conferred under specific statutes without reference to the Code of Criminal Procedure. The Code of Criminal Procedure does not define a “police officer” and Section 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act. This construction would make the provisions of Section 25 of the Evidence Act otiose in respect of officers on whom specific and incontrovertible police powers are conferred. But the third position would not only carry out the intention of the legislature, but would also make the section purposive and useful without doing any violence to the language of the section. A police officer within the meaning of Section 25 of the Evidence Act may be defined thus: An officer, by whatever designation he is called, on whom a statute substantially confers the powers and imposes the duties of the police is a police officer within the meaning of Section 25 of the Evidence Act.”

    The verdict in ‘Tofan Singh’ has in a way reaffirmed K. Subba Rao’s view.

    Liked by 1 person

    1. Bharat Chugh

      Wow. Such an insightful comments. Thanks so much, Gaurav! We should do a column jointly on this sometime.

      Liked by 1 person

      1. Gaurav Mehta

        Sure, Bharat….thank you!

        Liked by 1 person

  4. amruthredd

    Thank you for the Article and comments. I am lawyer working for a corporate. Your articles on criminal laws are like refresher to me, besides giving me thoughtful ideas.


    1. Bharat Chugh

      Thanks so much! I’m glad you find them useful


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