REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL
APPEAL NO.714 OF 2019
(@
SLP(Criminal) No.5415 of 2017)
DIPAKBHAI JAGDISHCHANDRA PATEL ... APPELLANT(S)
VERSUS
STATE OF GUJARAT AND ANOTHER ... RESPONDENT(S)
J U D G M E N
T
K.M. JOSEPH, J.
1.
This appeal by special leave granted by this
Court is directed against the judgment of the High
Court of Gujarat at Ahmedabad dismissing the Special Criminal Application
No.1230 of 2009 filed by the appellant under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the Cr.PC’ for short).
2.
The petition under Section 482 Cr.PC. was filed
challenging the complaint and the Order
passed by the Sessions Court rejecting the request
of the appellant to discharge him of the offences under Sections 489B and 489C
of the Indian Penal Code, 1860 (hereinafter referred to
as ‘the IPC’ for short).
3.
The contents of the FIR dated 10.04.1996 are
as follows:
“The facts of my complaint are
that today ie., on 10.04.1996 at about 13.00, we got information from the
superior officer of the ATS that Mahamad Rafik Abdul Hamid Kadge of Mumbai and
Salim Mahebub Shaikh of Ahmedabad Sahalam, both are selling fake currency note
of Arabian country as original on the road going towards noble building located
at the edge of
Nehrubridge,
Ashram Road, Ahmedabad on fair rate and therefore, while receiving such legal
instruction, two panch persons had been called at the office of ATS and after
informing them about such information and they expressed their consent to
remain as panchas therefore, after completing the first part panchnama at about
14.00 to 14.15 therein, I myself, panchas and PSI Shri NB Jadeja, Shri BR
Karavadra, Shri PV Rathod, Shri NV Kapiriya, Shri KK Desai and Police constable
Shri Rameshkumar Sevadas Lashkari, Bhagwatsingh Madarsinh and police Constable
Amirkhan Rasulkhan and Dashrathsinh Bhagubha etc reached in government and
private vehicles opposite the Natraj cinema at Ashram Road, Stopping their
vehicles there and taking walk reached near Noble Building as well as on the
road nearby the Petrol pump and found that three persons were standing nearby
the road and doing some transaction and while making talk with them, we stopped
them at that place wherein we introduced ourselves as Police and panchas and
informed them about personal search and I caught accused no.1 and while asking
his name and address, he stated his name as Mahamad Rafik Abdul Hamid Kadge
residing at Sachhvari Dagadichawl
Golanji Rahil
Road, Mumbai-15 and during the search, 43 notes of Saudi Arabian Riyal currency
of Rs.500/-denomination were found and PSI Shri NB Jadeja caught the accused
no.2 and while asking his name before the panchas, he stated his name as
Salimbhai Mahemudbhai Shaikh,
residing at inside Shahalam Darwaja, Rasulibad society, Ahmedabad and during
the search 43 notes of Saudi Arabian riyal currency of Rs.500/-denomination
were found and police constable Shri Bhagwatsinh Madarsinh buckle No. 8927
caught the accused no.3 and while asking his name and address, he stated his
name is Usmangani Mahamadbhai Malek residing at Musamiyani Chali, Rasulabad
Shahalam, Ahmedabad and from his hand, 2 nos. Saudi Arabian Riyal
currency notes of
Rs.500/-denomination were found and in all total 88 notes were found. While
asking them one by one before the panchas regarding such notes, it was found
that no.1 had taken such notes from Mumbai prior to 15 days and had stated that
he talked with his friend Jagdishchandra Patel residing at D-2 Aasiyana Flat,
Nawa Vadaj, Ahmedabad to sale him these fake Riyal currency to as original with
fair price and today, after taking such note from
the house of
Dipak by the accused no.1; handed over it to the accused no.2 and 3 and after
preparing the panchnama of such notes, seized it by packing it in separate
packets and applying seals. Indian currency notes found from one or two out of
them had been returned by way of panchnama and that panchnama was completed at
about (Illegible).
Thus, the
aforesaid accused no.1 Mahamad Rafik Abdul Hamid Kagde, residing at Savri
Hagadi Chawl, Golanji Road, Mumbai-15, accused no.2
Salimbhai Mahemudbhai Shaikha,
residing at inside Shahalam Darwaja, Rasulabad Society, Ahmedabad, accused no.3
Usmangani Mahamadbhai Malek residing at Shahalam, Ahmedabad and accused no.4
Dipak Jagdish Patel, residing at B-2 Aashiyana Flat, Nava Wadaj, Ahmedabad in
collusion with each other, showing the fake Saudi Arebiya currency Riyal of
Rs.500/-denomination as original and keeping such notes in their possession to
sale such fake currency notes as original with fair price, the accused have
committed the offence punishable under Section 489B, C of the Indian Penal Code
and this is my legal
complaint
against these accused persons. The panchas, police persons and whatever will be
come out in the investigation are my witnesses and the accused no.1,2,3 are
arrested today ie, on 10.04.1996 at 17.00 o’clock.”
4.
Following investigation, the chargesheet came to
be filed against the appellant inter
alia:
PROCEEDINGS BEFORE THE SESSIONS JUDGE
Though the appellant contended before the
Sessions Judge that apart from the statement of
the co-accused, there was no material to proceed
against the accused/appellant and that only on
the basis of the statement by co-accused, no
case could be made out against the appellant,
and still further, it was contended that the
statement made by the
co-accused was barred by Section 25 of the Indian Evidence Act, 1872, however,
it was found by the Sessions Judge that the whole recovery procedure was made
in the presence of panchas and, accordingly, the plea for discharge of the
appellant was rejected as there was some evidence against him, and without
recording evidence, it was not possible to come to the conclusion that there is
no evidence against the appellant.
PROCEEDINGS BEFORE THE HIGH COURT
In the High Court, the learned
Single Judge, after referring to the allegations made against the
accused/appellant, rejected the plea that the case against the appellant be not
continued as it seemed that from the averments and arguments of the learned
APP, statements of the
co-accused were
recorded by the police wherein involvement of the appellant was found
particularly of fake currency notes having been found at the residence of the
appellant. The Court made reference to the seizure of counterfeit currency
notes from the place of offence, i.e., residence of the appellant. It is
further found that it is premature to say anything at this stage in respect of
the credibility of the statement made by the Officer in the complaint. It can
be considered only at the trial. Currency notes were seized by the
Investigating Officer in the presence of the witnesses, and therefore, their
statements would also be considered by the trial court, while they would be
examined by the court concerned. Statements of the co-accused recorded by the
Investigating Officer show prima facie
involvement of the
appellant in the offence. It is not only the evidence available with the
prosecution to involve the appellant to the alleged offences, other evidences
too prima facie point to the appellant. It was found that no
case was made out to interfere under Section 482 of the Cr.PC.
5.
We have heard Mr. Nakul Dewan, learned Senior
Counsel appearing for the appellant and Ms.
Hemantika Wahi, learned Counsel appearing for the respondents.
6.
The learned Senior Counsel for the appellant
emphasized that the High Court has fallen into
error in holding that recovery of counterfeit currency was effected from the
residence of the appellant. It was pointed out that counterfeit currency was
recovered not from the residence of
the appellant but
from near a public road. Therefore, the basis for continuing the case for proceeding
against the appellant does not exist. Secondly, it was contended that a person
cannot be proceeded against on the basis of the statement made by the
co-accused, when there is no material other than statement of the co-accused.
The High Court ought to have exercised the jurisdiction available under Section
482 of the Cr.PC and allowed the plea for discharge. Learned Senior Counsel for
the appellant would contend that the co-accused were absconding. He sought
support from the judgment of this Court in Suresh
Budharmal Kalani Alias Pappu Kalani v.
State of Maharashtra1.
He has drawn our attention to
paragraphs 6 and 7, which read as follows:
“6. Thus
said, we may turn our attention to the confession made by
1
(1998)
7 SCC 337
Dr Bansal and Jayawant Suryarao. Under Section 30 of
the Evidence Act, 1872, a confession of an accused is relevant and admissible
against a co-accused if both are jointly facing trial for the same offence.
Since, admittedly, Dr Bansal has been discharged from the case and would not be
facing trial with Kalani, his confession cannot be used against Kalani. The
impugned order shows that the Designated Court was fully aware of the above
legal position but, surprisingly enough, it still decided to rely upon the
confession on the specious ground that the prosecution was not in any way
precluded from examining Dr Bansal as a witness in the trial for establishing
the facts disclosed in his confession. This again was a perverse approach of
the Designated Court while dealing with the question of framing charges. At
that stage, the court is required to confine its attention to only those
materials
collected during investigation which can be legally translated into evidence
and not upon further evidence (dehors those materials) that the prosecution may
adduce in the trial which would commence only after the charges are framed and
the accused denies the charges. The Designated Court was, therefore, not at all
justified in
taking into consideration the confessional statement
of Dr Bansal for framing charges against Kalani.
7.
So
far as the confession of Jayawant Suryarao is concerned, the same (if voluntary
and true) can undoubtedly be brought on record under Section 30 of the Evidence
Act to use it also against Kalani but then the question is: what would be its
evidentiary value against the latter? The question was succinctly answered by
this Court in Kashmira Singh v. State of M.P. [AIR 1952 SC
159 : 1952 SCR 526] with the following words:
“The
proper way to approach a case of this kind is, first, to marshal the evidence
against the accused excluding the confession altogether from consideration and
see whether, if it is believed, a conviction could safely be based on
it. If it is capable of belief independently of the confession, then of course
it is not necessary to call the confession in aid. But cases may arise where
the judge is not prepared to act on the other evidence as it stands even
though, if believed, it would be sufficient to sustain a conviction. In
such an event
the judge may call in aid the confession and use it
to lend assurance to the other evidence and thus fortify himself in believing
what without the aid of the confession he would not be prepared to accept.
The view so expressed has been consistently
followed by this Court. Judged in the light of the above principle, the
confession of Suryarao cannot be called in aid to frame charges against Kalani
in the absence of any other evidence to do so.”
7.
It is the further case of the appellant that the
ingredients of Section 489B and 489C of
the IPC have not been established. In regard to
Section 489C, he sought support from judgment of
the Lahore
High Court in Bur Singh v. The Crown2.
Still further, he sought some support from the
judgment of the learned Single Judge of the
Punjab and Haryana High Court, viz., Justice
2(1930)
ILR 11 Lah 555 [Criminal Revision No. 1527 of
1929]
M.M.
Punchhi (as His Lordship then was), in
Bachan
Singh
v. State of Punjab3. The
Court held
as follows:
“10. In order to sustain the convictions of
Joginder Kaur appellant, the prosecution has not only to prove that she had the
possession of counterfeit note, Exhibit P. 1, ensuring it or having reason to
believe it as such, but further to prove circumstances which lead clearly,
indubitably and irresistibly to her intention to use the notes on the public as
has been held in Bur Singh v. The Crown, (1930) ILR 11 Lah 555 :
(1931) 32 Cri LJ 351). It has further been held that such intention could be
proved by a collateral circumstance that she
had palmed off such notes before, or that she was in possession of such notes
in such large numbers, that her possession for any other purpose was
inexplicable. The facts as found are that she had on her person only one made-up
note, that she was an illiterate lady and that anybody as Sh.
3
1981
SCC Online P&H 47
Darshan Kumar Ahluwalia,
P.W. 2, would have us believe could be misled to treat it as a genuine note.
She gave the note to Kundan Lal, P.W. 2 and he told her that it was not a
genuine note and his belief was confirmed when he showed it to others as well.
It has nowhere been asserted that the note was ever returned to her and having
known fully well or having reason to believe the same to be forged for
counterfeit she yet made another attempt to palm it off. Thus tendering alone
such note to Kundan Lal, P.W., unless the prosecution could prove that it was
with dishonest intention so as to cause wrongful loss to him and wrongful gain
to herself would not make her act to fall squarely within Section 420/511,
Indian Panal Code, or to have come within the mischief of Section 489-B or
489-C, Indian Penal Code. The inference sought to be drawn that she must have
known or reason to believe the note, Exhibit PI, to be counterfeit because her
husband accompanying her was found to be in possession of similar notes is
entirely misplaced for no common intention has been attributed to
them and they have not been
charged with the aid of Section 34, Indian Penal Code. For the individual act
of Joginder Kaur she cannot be convicted for the above named offences and must
be extended the benefit of doubt.
11. With regard to the case of Bachan Singh
it is to be noted that he was found in possession of 13 counterfeit ten rupee
notes. He is an iron-smith by profession and barely literate. How could he have
the knowledge or reason to believe the same to be counterfeit is one part but
the other important part is whether he intended to use the same as genuine or
that they may be used as genuine has further to be proved by the prosecution.
It was held in Bur Singh v. The Crown, ((1931) 32 Cri LJ
351)
(Lah) (supra), that mere possession of a forged
note is not an offence under the Indian Penal Code and in order to bring a case
within the purview of Section 489-C, Indian Penal Code, it was not only
necessary to prove that the accused was in possession of forged notes but it
should
further be established that:
(a)
at the time of his possession he - knew the notes to be forged
or had the reason to believe the same to be forged or counterfeit; and
b)
he
intended to use the same
as; genuine. No further collateral
circumstances in the case have been brought forth such as the accused had
palmed off such notes before, or that he was in possession of such and similar
notes in such large numbers, that his possession for any other purpose was
inexplicable.”
8.
Finally, he also drew out attention to the
judgment of this Court in Umashanker v. State of
Chhatisgarh4 wherein he
emphasised on paragraphs
7 and 8, which read as follows:
“7. Sections 489-A to 489-E deal with various economic offences
in respect of forged or
4
(2001)
9 SCC 642
counterfeit currency notes or
banknotes. The object of the legislature in enacting these provisions is not
only to protect the economy of the country but
also
to provide adequate protection to currency notes and banknotes. The currency
notes are, in spite of growing accustomedness to the credit card system, still
the backbone of the commercial transactions by the multitudes in our country.
But these provisions are not meant to punish unwary possessors or users.
8.
A
perusal of the provisions, extracted above, shows that mens rea of offences
under Sections 489-B and 489-C is “knowing or having reason to believe the
currency notes or banknotes are forged or counterfeit”. Without the
aforementioned mens rea selling, buying or receiving from another person or
otherwise trafficking in or using as genuine forged or counterfeit currency
notes or banknotes, is not enough to constitute offence under Section 489-B
IPC. So also possessing or even intending to use any forged or counterfeit
currency notes or banknotes is not sufficient to
make out a case under Section 489-C in the absence of the mens rea, noted
above. No material is brought on record by the prosecution to show that the
appellant had the requisite mens rea. The High Court, however, completely
missed this aspect. The learned trial Judge on the basis of the evidence of PW
2, PW 4 and PW 7 that they were able to make out that the currency note alleged
to have been given to PW 4 was fake, “presumed” such a mens rea. On the date of
the incident the appellant was said to be an eighteen-year-old student. On the
facts of this case the presumption drawn by the trial court is not warranted
under Section 4 of the Evidence Act. Further it is also not shown that any
specific question with regard to the currency notes being fake or counterfeit
was put to the appellant in his examination under Section 313 of the Criminal
Procedure Code. On these facts, we have no option but to hold that the charges
framed under Sections 489-B and 489-C are not proved. We, therefore, set aside
the conviction and sentence
passed on the appellant under Sections 489-B and
489-C IPC and acquit him of the said charges
(see: M. Mammutti v. State of
Karnataka [(1979) 4 SCC 723 :
1980 SCC (Cri) 170 : AIR 1979 SC
1705] ).”
9.
Learned Counsel for the State drew our attention
to the statement made by the appellant himself wherein the appellant has stated
inter
alia that he was told by the co-accused that he
left a bag containing the counterfeit notes at
his residence.
10. Learned
Counsel for the State submits that
the Court may also bear in mind that the case is
only at the stage of framing of the charge. A
case has not been made out for interference
under Section 482 of the Cr.PC, and hence, she
supported the Order of the High Court.
11.
Appellant would submit that as regards the extra
judicial confessional statement relied upon by the State dated 11.04.1996 made
by the appellant that it was not the basis on which the
chargesheet had been framed. It is secondly the
case of the appellant that the statement has
been subsequently retracted.
12. Sections
489B and 489C of the IPC read as
follows:
“489B. Using as genuine, forged or counterfeit
currency-notes or bank-notes.—Whoever sells to, or buys or receives from, any
other person, or otherwise traffics in or uses as genuine, any forged or
counterfeit currency-note or bank-note, knowing or having reason to believe the
same to be forged or counterfeit, shall be punished with imprisonment for life,
or with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
489C. Possession of forged or counterfeit
currency-notes or bank-notes.—Whoever has in his possession any forged or
counter-feit currency-note or bank-note, knowing or having reason to believe
the same to be forged or counterfeit and intending to use the same as genuine
or that it may be used as genuine, shall be punished with imprisonment of
either description for a term which may extend to seven years, or with fine, or
with both.”
LAW RELATING TO FRAMING OF CHARGE AND DISCHARGE
13. We may
profitably, in this regard, refer to
the judgment of this Court in State of Bihar v.
Ramesh Singh5 wherein this
Court has laid down
the principles relating to framing of charge and
discharge as follows:
“Reading SS. 227 and 228 together
in juxtaposition, as they have got to be, it would be clear that
5
AIR
1977 SC 2018
at the
beginning and initial stage of the trial the truth, veracity and effect of the evidence
which the prosecutor proposes to adduce are not to be meticulously judged. Nor
is any weight to be attached to the probable defence of the accused. It is not
obligatory for the Judge at that stage of the trial to consider in any detail
and weigh in a sensitive balance whether the facts, if proved, would be
incompatible with the innocence of the accused or not. The standard of test and
judgment which is to be finally applied before recording a finding regarding
the guilt or otherwise of the accused is not exactly to be applied at the stage
of deciding the matter under S.227 or S.228 of the Code. At that stage the
Court is not to see whether there is sufficient ground for conviction of the
accused or whether the trial is sure to end in his conviction.
Strong
suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of his
guilt at the
conclusion of the trial. But at the initial stage if there is a strong
suspicion which leads the Court to think that there is ground for presuming
that the accused has committed an offence then it is not open to the Court to
say that there is no sufficient ground for proceeding against the accused. The
presumption of the guilt of the accused which is to be drawn at the initial
stage is not in the sense of the law governing the trial of criminal cases in
France where the accused is presumed to be guilty unless the contrary is
proved. But it is only for the purpose of deciding prima facie whether the
court should proceed with the trial or not.
If the
evidence which the prosecutor proposes to adduce to prove the guilt of the
accused even if fully accepted before it
is challenged in
cross-examination or rebutted by the defence evidence, if any, cannot show that
the accused committed the offence, then there will be
no sufficient
ground for proceeding with the trial.
If the scales
of pan as to the guilt or innocence of the accused are something like even at
the conclusion of the trial, then, on the theory of benefit of doubt the case
is to end in his acquittal. But if, on the other hand, it is so at the initial
stage of making an order under S.227 or S.228, then in such a
situation ordinarily and
generally the order which will have to be made will be one under S.228 and not
under S.227.”
14. In Union
of India v. Prafulla Kumar Samal
and another6, after
survey of case law, this is
what the Court has laid down:
“10. Thus, on a
consideration of the authorities mentioned above, the following principles
emerge:
(1) That the Judge
while considering the question of framing the charges under Section 227 of the
Code has the undoubted
6
AIR
1979 SC 366
power to sift and weigh the
evidence for the limited purpose of finding out whether or not a prima facie
case against the accused has been made out.
(2) Where the
materials placed before the Court disclose grave suspicion against the accused
which has not been properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to
determine a prima facie case would naturally depend upon the facts of each case
and it is difficult to lay down a rule of universal application. By and large
however if two views are equally possible and the Judge is satisfied that the
evidence produced before him while giving rise to some suspicion but not grave
suspicion against the accused, he will be fully within his right to discharge
the accused.
(4) That in
exercising his jurisdiction under Section 227 of the Code the Judge which under
the present Code is a senior and experienced court cannot act merely as a Post
Office or a mouthpiece of the prosecution,
but has to consider the
broad probabilities of the case, the total effect of the evidence and the
documents produced before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the Judge should make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if he
was conducting a trial.”
15. It is the
case of the State that the
appellant had knowledge that the notes were
counterfeit and fake notes and was in conscious
possession of the fake notes for 15 days. For
framing charges, what is required is prima facie
satisfaction. Offence relating to counterfeit
notes is a grave offence and not to be viewed
lightly.
16.
In the statement by the first accused, he has
stated that he had come to Ahmedabad 15 days
earlier. At that time, he had told the appellant
that the fake notes
are to be sold at cheap price and at present he may keep those notes with him.
He further states that he had brought these notes from the residence of the
appellant and that he had been caught while he was selling the notes at cheap
price.
17.
In the first statement given by the appellant
dated 11.04.1996 relied upon by the
State, the appellant is credited with knowledge of
the fact that the bag contained counterfeit notes was left by the first accused
at appellant’s residence and they were to be sold at cheap price and it was
kept at his residence for some days.
18. Subsequently,
his statement was again
recorded on
10.07.1996. Therein, he inter alia states that the first accused told
him that the
bag
contains files relating to land deals and it contained valuables.
19. In further
questioning on 30.08.1996, he
inter alia states
that because of his acquaintance with Ravi, he became acquainted with
the first accused and that he had left the bag at his residence saying that the
bag contained important documents.
20. These are
the materials in short which were
relied on by the State to sustain the Order
framing the charge against the appellant. That is to say, the statements given
by the appellant under Section 161 and the statement also given by the
co-accused.
21.
At the stage of framing the charge in accordance
with the principles which have been
laid down by this
Court, what the Court is expected to do is, it does not act as a mere post
office. The Court must indeed sift the material before it. The material to be sifted
would be the material which is produced and relied upon by the prosecution. The
sifting is not to be meticulous in the sense that the Court dons the mantle of
the Trial Judge hearing arguments after the entire evidence has been adduced
after a full-fledged trial and the question is not whether the prosecution has
made out the case for the conviction of the accused. All that is required is,
the Court must be satisfied that with the materials available, a case is made
out for the accused to stand trial. A strong suspicion suffices. However, a
strong suspicion must be founded on some material. The material must be such as
can be translated into
evidence at the stage
of trial. The strong suspicion cannot be the pure subjective satisfaction based
on the moral notions of the Judge that here is a case where it is possible that
accused has committed the offence. Strong suspicion must be the suspicion which
is premised on some material which commends itself to the court as sufficient
to entertain the prima facie view that the accused has committed the
offence.
22. Undoubtedly,
this Court has in Suresh
Budharmal Kalani Alias Pappu Kalani (supra),
taken the view that confession by a co-accused containing incriminating matter
against a person would not by itself suffice to frame charge against it. We may
incidentally note that the Court has relied upon the judgment of this Court
in Kashmira Singh v. State
of Madhya Pradesh7. We notice
the observations, which have been relied upon, were made in the context of an
appeal which arose from the conviction of the appellant therein after a trial.
The same view has been followed undoubtedly in other cases where the question
arose in the context of a conviction and an appeal therefrom. However, in Suresh
Budharmal Kalani Alias Pappu Kalani (supra), the Court has proceeded to
take the view that only on the basis of statement of the co-accused, no case is
made out, even for framing a charge.
23. The first and
the foremost aspect is whether
the appellant is justified in contending that the
High Court fell into error in holding that the recovery was effected of the
counterfeit currency from the residence of the appellant.
7 AIR 1952 SC 159
This constituted an
important consideration in the court rejecting the petition filed by the
appellant.
24. The learned
Counsel for the State, in fact,
did not seriously dispute the fact that there was
no recovery of counterfeit currency effected from the residence of the
appellant.
25. Section 25
of the Indian Evidence Act, 1872
(hereinafter referred to as ‘the Evidence Act’ for
short) renders inadmissible a confession made to a Police Officer. It declares
in fact that no confession made to a Police Officer shall be proved as against
a person accused of any offence. Section 26 of the Evidence Act on the other
hand reads as follows:
“26. Confession by accused while in custody of
police not to be proved against him.—No confession made by any person whilst he
is
in the custody of a police
officer, unless it be made in the
immediate presence of a Magistrate, shall be
proved as against such person. "
Explanation.—In this section
“Magistrate” does not include the head of a village discharging magisterial
functions in the Presidency of Fort St. George or elsewhere, unless such
headman is a Magistrate exercising the powers of a Magistrate under the Code of
Criminal Procedure, 1882 (10 of 1882).”
26. Section 27 of
the Evidence Act carves out an
exception.
27.
In Law of Evidence by M. Monir, 17th
Edition, page 555, we notice the following discussion regarding the distinction
between Section 25 on the one hand and Section 26 other hand:
“… The section
deals with confessions which are made not to Police Officers but to persons
other than Police Officers, e.g.,
to a fellow
prisoner, a doctor or a visitor, and makes such confessions inadmissible if
they were made whilst the accused was in the custody of a Police Officer. In
section 25 the criterion for excluding a confession is the answer to the
question. “To whom was the confession made?” If the answer is that it was made
to a Police Officer, the confession is
absolutely excluded from
evidence. On the other hand, the criterion adopted in section 26 for excluding
a confession is the answer to the question. “Under what circumstances was the
confession made?” if the answer is that it was made whilst the accused was in
the custody of a Police Officer, the law lays down that such confession shall
be excluded from evidence, unless it was made in the immediate presence of a
Magistrate.”
28. Section 30
of the Evidence Act read as
follows:
“30. Consideration of proved
confession affecting person making it and
others jointly under trial for same offence.— When more persons than one are
being tried jointly for the same offence, and a confession made by one of such
persons affecting himself and some other of such persons is proved, the Court
may take into consideration such confession as against such other person as
well as against the person who makes such confession.
Explanation.—“Offence”, as used in this
section, includes the abetment of, or attempt to commit the offence.”
29. While on
confession, it is important to
understand as to what will amount to a
confession. The Privy Council in Pakala Narayana
Swami v. Emperor8:
“… Moreover, a
confession must either admit in terms the offence, or at any rate substantially
all the facts which
8(1939) PC 47
(20.01.1939)
constitute the offence. An
admission of a gravely
incriminating fact, even a conclusively incriminating fact is not of itself a
confession, e.g. an admission that the accused is the owner of and was in
recent possession of the knife or revolver which caused a death with no
explanation of any other man's possession. Some confusion appears to have been
caused by the definition of 'confession' in Article 22 of Stephen's
"Digest of the Law of Evidence" which defines a confession as a
admission made iafc (sic) any time by a person charged with a crime
stating or suggesting the inference that he committed that crime. If the
surrounding articles are examined it will be apparent that the learned author
after dealing with admissions generally is applying himself to admissions in
criminal cases, and
for this purpose defines
confessions so as to cover all such admissions, in order to have a general term
for use in the
three following articles,
confession secured by inducement, made upon oath, made under a
promise of secrecy. The
definition is
not contained in the Evidence Act, 1872: and in that Act it would not be
consistent with the natural use
of language to construe
confession as a statement by an accused "suggesting the inference that he
committed" the crime.”
30. This view
of the Privy Council has gained
acceptance of this Court in many decisions. They
include Palvinder Kaur v. State of Punjab9 and
Veera Ibrahim v. State of Maharashtra10.
31. A Full Court
of this Court, in the decision
in M.P. Sharma and 4 others v. Satish Chandra,
Distt. Magistrate, Delhi and 4 others 11,
considered the scope of the expression contained
in Article 20(3) of the Constitution of India
which mandates that no person accused of any
9
10
11
AIR 1952 SC 354
AIR 1976 SC 1167
AIR 1954 SC 300
offence shall be compelled to be a witness
against himself:
“Broadly stated the guarantee in
Art.20(3) is against “testimonial compulsion”. But there is no reason to
confine it to the oral evidence of a person standing his trial for an offence
when called to the witness-stand. The protection afforded to an accused in so
far as it is related to the phrase “to be a witness” is not merely in respect
of testimonial compulsion in the Court room but may well extend to compelled
testimony previously obtained from him. It is available, therefore, to a person
against whom a formal accusation relating to the commission of an offence has
been levelled which is the normal course may result in prosecution.
Considered
in this light, the guarantee under Article 20(3) would be available to person
against whom A First Information Report has been recorded as accused therein.
It would extend to any compulsory process for
production of evidentiary
documents which ae reasonable
likely
to support a prosecution against them.”
(Emphasis supplied)
32. In State
of Bombay v. Kathi Kalu Oghad12, a
Bench of 11 learned Judges of this Court had an
occasion to consider the true width of the
expression “person accused of an offence”.
Speaking on behalf of the majority, Sinha, C.J.,
held as follows:
“14. In this connection the question
was raised before us that in order to bring the case within the prohibition of
clause
(3)
of Article 20, it is not necessary that the
statement should have been made by the accused person at a time when he
fulfilled that character; it is enough that he should have been an accused
person at the time when the statement was sought to be proved in court, even
though he may not have been an accused person at the time he had made that
statement. The correctness
12
AIR
1961 SC 1808
of the decision of the
Constitution Bench of this Court
in the case of Mohamed
Dastagirv. State of
Madras [(1960) 3
SCR 116] was questioned because it was said that it ran counter to the
observations of the Full Court in Sharma
case [(1954) SCR 1077]. In the Full Court decision of
this Court this question did not directly
arise; nor was it decided. On the other hand, this Court, in Sharma case
[(1954) SCR 1077] held that the protection under Article 20(3) of the
Constitution is available to a person against whom a formal accusation had been
levelled,
inasmuch as a First Information
Report had been lodged against him.
Sharma case [(1954) SCR
1077] therefore, did not decide anything to the
contrary of what
|
this
|
|
Court
|
said
|
in Mohamed
|
|
Dastagir
v.
State
|
|
of
|
|
Madras
|
[(1960)
|
3
|
SCR
|
116]. The
|
|
latter
|
decision in our opinion
|
|
lays
|
down the law correctly.
|
15. In order to bring the evidence within the
inhibitions of clause (3) of Article 20 it must be shown not only that the
person making the statement
was an accused at the time he made it and that it had a material bearing on the
criminality of the maker of the statement, but also that he was compelled to
make that statement. …”
(Emphasis supplied)
33. The Court
also laid down its conclusions in
paragraph-16:
”16. In view of these considerations, we have
come to the following conclusions:
(1) An accused person
cannot be said to have been compelled to be a witness against himself simply
because he made a statement while in police custody, without anything more. In
other words, the mere fact of being in police custody at the time when the
statement in question was made would not, by itself, as a proposition of law,
lend itself to the inference that the accused was compelled to make the
statement, though that fact, in
conjunction with other
circumstances disclosed in
evidence in a particular
case, would be a relevant consideration in an enquiry whether or not the
accused person had been compelled to make the impugned statement.
(2) The mere
questioning of an accused person by a police officer, resulting in a voluntary
statement, which may ultimately turn out to be incriminatory, is not
“compulsion”.
(3) “To be a witness” is not
equivalent to “furnishing
evidence” in its widest significance; that is
to say, as including not merely making of oral or written statements but also
production of documents or giving materials which may be relevant at a trial to
determine the guilt or innocence of the accused.
(4) Giving thumb
impressions or impressions of foot or palm or fingers or specimen writings or
showing parts of the body by way of identification are not included in the
expression “to be a witness”.
(5) “To be a witness”
means imparting knowledge in respect of relevant facts by an oral statement or
a statement in
writing, made or given in
court or otherwise.
(6) “To be a witness”
in its ordinary grammatical sense means giving oral testimony in court. Case
law has gone beyond this strict literal interpretation of the expression which
may now bear a wider meaning, namely, bearing testimony in court or out of
court by a person accused of an offence, orally or in writing.
(7) To bring the
statement in question within the prohibition of Article 20(3), the
person accused must have stood in the character of an accused person at the
time he made the statement. It is not enough that he should become an accused,
any time after the statement has been made.”
(Emphasis supplied)
34. Section 161
of the Cr.PC has the following
marginal note:
“Examination
of witnesses by police”
35.
Can a person, who is accused of an offence, be
examined under Section 161 of the Cr.PC? As we have seen, when a person is
named as an accused in First Information Report, he would
stand in the shoes of an accused person. Does not
the marginal note of Section 161 of the Cr.PC confine the power to the Police
Officer to examine the witnesses and will it be denied to him qua a
person who is already named as an accused? These questions are no longer res
integra. In Nandini Satpathy v. P.L. Dani and another13,
a Bench of three learned Judges was dealing with a case which arose from
proceedings initiated against the appellant therein under Section 179 of the
IPC. In the course of the judgment, speaking on behalf of the Bench, this is
what Justice V.R. Krishna Iyer had to say:
13
AIR
1978 SC 1025
“32. We
will now answer the questions suggested at the beginning and advert to the
decisions of our Court which set the tone and temper of the “silence” clause
and bind us willy-nilly. We have earlier explained why we regard Section 161(2)
as a sort of parliamentary commentary on Article 20(3). So, the first
point to decide is whether the police have power under Sections 160 and 161 of
the CrPC to question a person who, then was or, in the future may incarnate as,
an accused person. The Privy Council and this Court have held that the scope of
Section 161 does include actual accused and suspects and we
deferentially agree without
repeating the detailed reasons
urged before us by counsel.”
(Emphasis supplied)
36.
Thereafter, after referring to Pakala Narayana
Swami (supra), regarding the scope of the word ‘confession’ the Court held inter
alia
as follows:
“33. … We hold that “any
person supposed to be acquainted with the facts and circumstances of the case”
includes an accused person who fills that role because the police suppose
him to have committed the crime and must, therefore, be familiar with the facts.
The supposition may later prove a fiction but that does not repel the section.
Nor
does the marginal note
“examination of witnesses by police”
clinch the matter. A marginal note clears ambiguity but does not control
meaning.
Moreover, the suppositions accused figures
functionally as a witness. “To be a witness”, from a functional angle, is to
impart knowledge in respect of a relevant fact, and that is
precisely the purpose of questioning the
accused under Section 161 CrPC. …”
37.
Thus, quite clearly, a person who stands in the
shoes of the accused being named in the First Information Report, can be
examined by the
Police Officer under Section 161
of the Cr.PC.
The next question however is, as to whether the
statement given by a person who stands in the
shoes of an accused and who gives a statement,
whether the statement is admissible in law? It
is here that Section 162 of the Code comes into
play:
“162. Statements to police not to be signed:
Use of statements in evidence.
(1) No
statement made by any person to a police officer in the course of an
investigation under this Chapter, shall, if reduced to writing, be signed by
the person making it; nor shall any such statement or any record thereof,
whether in a police diary or otherwise, or any part of such statement or
record, be used for any purpose, save as hereinafter provided, at any inquiry
or trial in respect of any offence under investigation
at the time when
such statement was made: Provided that when any witness is called for the
prosecution in such inquiry or trial whose statement has been
reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by the
accused, and with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section 145 of the Indian
Evidence Act, 1872 (1 of 1872 ); and when any part of such statement is so
used, any part thereof may also be used in the re- examination of such witness,
but for the purpose only of explaining any matter referred to in his cross-
examination.
(2) Nothing
in this section shall be deemed to apply to any statement falling within the
provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of
1872), or to affect the provisions of section 27 of that Act. Explanation.- An
omission to state a fact or circumstance in the statement referred to in sub-
section (1)
may amount to contradiction
if the same appears to be
significant and otherwise
relevant having regard to the context in which such omission occurs and whether
any omission amounts to a contradiction in the particular context shall be a
question of fact.”
38. A Bench of
three learned Judges of this
Court in Mahabir Mandal and others v. State of
Bihar14, had this to
say:
“39. Coming to the case of
Kasim, we find that there is no reliable evidence as may show that Kasim was
present at the house of Mahabir on the night of occurrence and took part in the
disposal of the dead body of Indira. Reliance was placed by the
prosecution upon the statement alleged to have been made by Kasim and Mahadeo
accused at the police station in the presence of Baijnath PW after Baijnath had
lodged report at the police station. Such statements are
legally not admissible in evidence
and cannot be used as substantive
14
AIR
1972 1331
evidence.
According to Section 162 of the Code of Criminal Procedure, no statement made
by any person to a police officer in the course of an investigation shall be
signed by the person making it or used for any purpose at any enquiry or trial
in respect of any offence under investigation at the time when such statement
was made. The only exception to the above rule is mentioned
in the proviso to that section. According to the proviso, when any witness is
called for the prosecution in the enquiry or trial, any part of his statement,
if duly proved, may be used by the accused and with the permission of the court
by the prosecution, to contradict such witness in the manner provided by Section
145 of the Indian Evidence Act and when any part of such statement is so used,
any part thereof may also be used in the re-examination of such witness for the
purpose only of explaining any matter referred to in his cross-examination. The
above rule is, however, not applicable to statements falling within the
provisions of Clause 1 of Section 32 of the Indian Evidence Act or to affect
the provisions of Section 27 of that Act. It is also well
established
that the bar of inadmissibility operates not only
|
on
|
statements of witnesses
but also
|
|
on
|
those
|
of
|
the
|
accused
|
|
(see
Narayan
|
Swami v. Emperor [AIR
|
1939 PC 47]). Lord Atkin, in that case, while
dealing with Section 162 of the Code of Criminal Procedure observed:
“Then follows the section in
question which is drawn in the same general way relating to ‘any person.’ That
the words in their ordinary meaning would include any person though he may
thereafter be accused seems plain. Investigation into crime often includes the
examination of a number or persons none of whom or all of whom may be suspected
at the time. The first words of the section prohibiting the statement if
recorded from being signed must apply to all the statements made at the time
and must therefore apply to a statement made by a person possibly not then even
suspected but eventually accused.”
Reference may also be made
to Section 26 of the Indian Evidence Act, according to which no confession made
by any person
whilst he is in the custody
of a police officer, unless it be made in the immediate presence of a
Magistrate, shall be proved against such person. There is nothing in the
present case to show that the statements which were made by Kasim and Mahadeo
accused on September 18, 1963, at the police station in the presence of
Baijnath resulted
in the discovery of any incriminating material
as may make them admissible under Section 27 of the Indian Evidence Act. As
such, the aforesaid statements must be excluded from consideration.”
(Emphasis supplied)
39. Therefore,
the combined effect of these
provisions can be summarized as follows:
Unless a person is accused of an
offence, he
cannot claim the protection of Article 20(3) of
the Constitution of India.
40. Such a person,
viz., person who is named in
the FIR, and therefore, the accused in the eyes
of law, can indeed be questioned and the
statement is taken by
the Police Officer. A confession, which is made to a Police Officer, would be
inadmissible having regard to Section 25 of the Evidence Act. A confession,
which is vitiated under Section 24 of the Evidence Act would also be inadmissible.
A confession unless it fulfills the test laid down in Pakala Narayana
Swami (supra) and as accepted by this Court, may still be used as an
admission under Section 21 of the Evidence Act. This, however, is subject to
the bar of admissibility of a statement under Section 161 of the Cr.PC.
Therefore, even if a statement contains admission, the statement being one
under Section 161, it would immediately attract the bar under Section 162 of
the Cr.PC.
41. Bar under
Section 162 Cr.PC, no doubt,
operates in regard to the statement made to a
Police Officer in
between two points of time, viz., from the beginning of the investigation till
the termination of the same. In a case where statement containing not a
confession but admission, which is otherwise relevant and which is made before
the investigation commences, may be admissible. We need not, however, say
anything more.
42.
In Central Bureau of Investigation v. V.C.
Shukla and others15,
a Bench of three learned
Judges, after approving Pakala Narayana Swami
(supra), had occasion to consider the distinction between confession and
admission. This Court went on to hold as follows:
“45. It is thus seen that only
voluntary and direct acknowledgement of guilt
is a confession but when a confession falls short of actual admission of
15
AIR
1998 SC 1406
guilt it may nevertheless be
used as evidence against the person who made it or his authorised agent as an
“admission” under Section 21. The law in this regard has been clearly — and in
our considered
view correctly — explained in Monir's Law of
Evidence(New Edn. at pp. 205 and 206), on which Mr Jethmalani relied to
bring home his contention that even if the entries are treated as “admission”
of the Jains still they cannot be used against Shri Advani. The relevant
passage reads as under:
“The distinction between
admissions and confessions is of considerable importance for two reasons.
Firstly, a statement made by an accused person, if it is an admission, is
admissible in evidence under Section 21 of the
Evidence Act, unless the statement amounts to a
confession and was made to a person in authority in consequence of some
improper inducement, threat or promise, or was made to a Police Officer, or was
made at a time when the accused was in custody of a Police Officer. If a
statement was made by the accused in the circumstances just
mentioned its admissibility
will depend upon the determination of the question whether it does not amount
to a confession. If it amounts to a confession, it will be
inadmissible, but if it does not amount to a confession, it will be admissible
under Section 21 of the Act as an admission, provided that it suggests an
inference as to a fact which is in issue in, or relevant to, the case and was
not made to a Police Officer in the course of an investigation under Chapter
XIV of the Code of Criminal
Procedure. Secondly,
a statement made by an accused person is admissible against others who
are being jointly tried with him only if the statement amounts to a confession.
Where the statement falls short of a confession, it is admissible only
against its maker as an admission and not against those who are being
jointly tried with him. Therefore,
from the point of view of Section 30 of the Evidence Act also the distinction
between an admission and a confession is of fundamental importance.””
(Emphasis supplied)
43.
Section 21 of the Evidence Act provides as
follows:
”21. Proof of admissions against
persons making them, and by or on their behalf.—Admissions are relevant and may
be proved as against the person who makes them, or his representative in
interest; but they cannot be proved by or on behalf of the person who makes
them or by his
representative in interest,
except in the following cases:—
(1) An
admission may be proved by or on behalf of the person making it, when it is of
such a nature that, if the person making it were dead, it would be relevant as
between third persons under section 32.
(2) An
admission may be proved by or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind or body, relevant
or in issue, made at or about the time when such state of mind or body existed,
and is accompanied by conduct
rendering
its falsehood improbable.
(3) An
admission may be proved by or on behalf of the person making it, if it is
relevant
otherwise
than as an admission.”
44. Thus, what
amounts to an admission can be
used against the maker of the admission or his
representative in interest. As to what constitutes an admission is to be found
in
Section 17 of the Evidence Act, which defines
admission as follows:
“17.
Admission defined.—An admission
is a statement, oral or documentary or contained in electronic form, which
suggests any inference as to any fact in issue or relevant fact, and which is
made by any of the persons, and under the circumstances, hereinafter
mentioned.”
45.
In Bharat Singh and others v. Mst. Bhagirathi16,
the true nature of the evidentiary value of admission, and whether without
confronting the maker of the admission, it could
be used, has been referred to and this is what
this Court had to say:
“19.
Admissions have to be clear
if they are to be used against the person making them.
Admissions are substantive
evidence by themselves, in view of
Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive
proof of the matters admitted. We are of opinion that the admissions duly
proved are admissible evidence irrespective of whether the party making them
appeared in the witness box or not and whether that party when appearing as
witness was confronted with those statements in case it made a statement
contrary to those admissions. The purpose of
contradicting the witness under
Section 145 of the Evidence Act
16
AIR
1966 SC 405
is very
much different from the purpose of proving the admission. Admission is
substantive evidence of the fact admitted while a previous
statement used to
contradict a witness does not
become substantive evidence and merely serves the purpose of throwing doubt on
the veracity of the witness. What weight is to be attached to an admission made
by a party is a matter different from its use as admissible evidence.”
(Emphasis supplied)
46. From the
statement of the law contained in
V.C. Shukla and others (supra), it becomes clear
as to what constitutes confession and how if it
does not constitute confession, it may still be an
admission. Being an admission, it may be admissible under the Evidence Act
provided that it meets the requirements of admission as defined in Section 17
of the Evidence Act.
However, even if it
is an admission, if it is made in the course of investigation under the Cr.PC
to a Police Officer, then, it will not be admissible under Section 162 of the
Cr.PC as it clearly prohibits the use of statement made to a Police Officer
under Section 161 of the Cr.PC except for the purpose which is mentioned
therein. Statement given under Section 161, even if relevant, as it contains an
admission, would not be admissible, though an admission falling short of a
confession which may be made otherwise, may become substantive evidence.
47. A confession
made to a Police Officer is
clearly inadmissible. The statement relied on by
respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996.
This is pursuant to the FIR registered on 10.04.1996. The statement dated
11.04.1996 is made to a Police Officer.
This is clear from
the statement as also letter dated 10.08.1996 (Annexure R/6) produced by the
respondent. It is clearly during the course of the investigation. Even if it
does contain admissions by virtue of Section 162 and as interpreted by this
Court in V.C. Shukla and others (supra), such admissions are
clearly inadmissible.
48. If the
statement made by the appellant on
11.04.1996 is inadmissible, then, there will only
be the statement of the co-accused available to be considered in deciding
whether the charge has to be framed against the appellant or not. It is here
that the law laid down by this Court in Suresh
Budharmal Kalani Alias
Pappu Kalani (supra)becomes applicable.
49.
We also notice the following statement in judgment
rendered by Bench of seven learned Judges in Haricharan Kurmi v. Sate
of Bihar17:
“As a result
of the provisions contained in S.30, Evidence Act, the confession of a
co-accused has to be regarded as amounting to evidence in a general way,
because whatever is considered by
the Court is evidence;
circumstances which are
considered by the Court as well as probabilities do amount to evidence in that
generic sense. Thus, though confession may be regarded as evidence in that
generic sense because of the provisions of S.30, the fact remains that it is
not evidence as defined by S.3 of the Act. The result, therefore, is that in
dealing with a case against an accused person, the Court cannot start with the
confession of a co-accused person; it must begin with other evidence adduced by
the prosecution and after it has formed its opinion with regard to the quality
and effect of the said evidence, then it is
17
AIR
1964 SC 1184 (quoted portion at page 1184)
permissible to
turn to the confession in order to receive assurance to the conclusion of guilt
which the judicial mind is about to reach on the said other evidence.
Thus, the
confession of a co-accused person cannot be treated as substantive evidence and
can be pressed into service only when the Court is inclined to accept other
evidence and feels the necessity of seeking for an assurance in support of its
conclusions deducible from the said evidence. In criminal cases where the other
evidence adduced against an accused person is wholly unsatisfactory and the
prosecution seeks to rely on the confession of a co-accused person, the
presumption of innocence which is the basis of criminal jurisprudence assists
the accused person and compels the Court to render the verdict that the charge
is not proved against him, and so, he is entitled to the benefit of doubt.”
50.
Proceeding on the basis that it is a confession by a co-accused
and still proceeding further that there is a joint trial of the accused and
that they are accused of the same
offences (ignoring the fact that other accused are absconding
and appellant appears to be proceeded against on his own) and having found that
there is no recovery from the residence of the appellant of the counterfeit
notes and that there is no other material on the basis of which even a strong
suspicion could be aroused, we would find that the mandate of the law requires
us to free the appellant from being proceeded against. Accordingly,
we allow the appeal and the petition filed
under Section 482 of the Cr.PC. The Order impugned passed by the Sessions Judge
framing the charge against the appellant
will stand set aside and the appellant will
stand discharged.
…………………………………………………
[ASHOK
BHUSHAN, J.]
…………………………………………………
[K.M. JOSEPH, J.]
NEW DELHI;
APRIL 24, 2019.