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 1

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

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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

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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

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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

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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

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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

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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

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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

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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 Maharashtra  1. 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 10

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

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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

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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 Crown  2.

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]

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M.M.  Punchhi  (as  His  Lordship  then  was),  in

Bachan Singh v. State of Punjab  3.  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 14

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

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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

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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

Chhatisgarh  4  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 17

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

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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

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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.

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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.

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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 Singh  5 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 22

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

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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

24

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 another  6, 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 25

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,

26

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

27

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

28

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

29

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

30

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

31

in Kashmira Singh v. State of Madhya Pradesh  7. 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 32

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

33

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.,

34

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:

35

“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. Emperor  8:  

“… 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) 36

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

37

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 Punjab  9 and

Veera Ibrahim v. State of Maharashtra  10.

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 AIR 1952 SC 354

10 AIR 1976 SC 1167

11 AIR 1954 SC 300 38

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

39

likely  to  support  a  prosecution against them.”

(Emphasis supplied)

32. In  State of Bombay v.  Kathi Kalu Oghad  12, 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 40

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

41

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

42

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

43

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”

44

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

another  13, 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 45

“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:

46

“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

47

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

48

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

Bihar  14, 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 50

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

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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

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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

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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

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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  others  15,  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 55

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

56

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)

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45. In  Bharat  Singh  and  others v.  Mst.

Bhagirathi  16, 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 60

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.

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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.

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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.

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49. We  also  notice  the  following  statement  in

judgment  rendered  by  Bench  of  seven  learned

Judges in Haricharan Kurmi v. Sate of Bihar  17:

“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) 64

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.”

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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

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will  stand  set  aside  and  the  appellant  will

stand discharged.

…………………………………………………  [ASHOK BHUSHAN, J.]

…………………………………………………     [K.M. JOSEPH, J.]

NEW DELHI; APRIL 24, 2019.

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