TMI Blog2019 (4) TMI 2034X X X X Extracts X X X X X X X X Extracts X X X X ..... RSUS P.L. DANI [ 1978 (4) TMI 236 - SUPREME COURT] 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 Indian Penal Code and it was held that The Privy Council and this Court have held that the scope of Section 161 does include actual Accused and suspects. 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, it is mandate of the law that requires to free the Appellant from being proceeded against. Appeal allowed. - Ashok Bhushan and K.M. Joseph, JJ. For Appellant: Nakul Dewan, Sr. Adv., Pradhuman Gohil, Taruna Singh Gohil, Himanshu Chaubey, Tanvi Bhatnagar and Kartik Prasad, Advs. For Appellant: Hemantika Wahi, Jesal Wahi, Vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the search, 43 notes of Saudi Arabian Riyal currency of ₹ 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 ₹ 500/- denomination were found and police constable Shri Bhagwatsingh 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 suffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Penal 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt, 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 Code of Criminal Procedure. 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 Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider 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 Section 227 or Section 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 gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice 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 Pradesh AIR 1952 SC 159. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 (1939) PC 47 (20.01.1939): ... Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which 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 sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 of the decision of the Constitution Bench of this Court in the case of Mohamed Dastagir v. 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 34. Section 161 of the Code of Criminal Procedure 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 Code of Criminal Procedure? 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 Code of Criminal Procedure 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 Anr. AIR 1978 SC 1025, a Bench of three learned Judges was dealing with a cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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. 46. From the statement of the law contained in V.C. Shukla and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 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 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 innocenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
