Supreme Court of India
DIPAKBHAI JAGDISHCHANDRA PATELversusSTATE OF GUJARAT AND ANOTHER
- Citation
- 2019 INSC 568
- Decided
- 24 April 2019
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHUSHAN
Holding
At the charge‑framing stage, inadmissible statements under Section 25 Evidence Act and barred by Section 162 CrPC cannot alone establish a prima facie case, and in the absence of any other material the charge must be set aside and the appellant discharged.
Summary
The appellant, Dipakbhai Jagdishchandra Patel, was implicated in a counterfeit currency case after co‑accused 1‑3 claimed the fake notes originated from his residence. No counterfeit notes were actually recovered from his home and the only incriminating material was the co‑accused statements recorded by police under Section 161 of the CrPC. The appellant argued that such statements were inadmissible under Section 25 of the Evidence Act and barred by Section 162 of the CrPC, and that no prima facie case existed to justify framing a charge. The Sessions Court and the High Court rejected his discharge petition, but the Supreme Court held that at the charge‑framing stage the court must be satisfied of a prima facie case and that inadmissible statements cannot alone support framing. Consequently, the charge against the appellant was set aside and he was discharged under Section 482 of the CrPC.
Issues considered
- The admissibility of co‑accused statements recorded under Section 161 CrPC for the purpose of framing a charge.
- Whether a statement made to a police officer during investigation is excluded by Section 25 Evidence Act and Section 162 CrPC.
- Whether reliance solely on such statements, without any recovery of counterfeit notes from the appellant's residence, can establish a prima facie case under Sections 227/228 CrPC.
- The scope of the court's power under Section 482 CrPC to discharge an accused at the charge‑framing stage.
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 162, s. 227, s. 228, s. 482
- Indian Evidence Act, 1872s. 17, s. 21, s. 25, s. 26, s. 27, s. 30
- Indian Penal Code, 1860s. 489B, s. 489C
Subjects
Section 161 CrPCSection 162 CrPCSection 25 Evidence ActSection 482 CrPCprima facie casecharge framingconfession admissibilitycounterfeit currencyco‑accused statementdischarge of accused
Judgment
[2019] 6 S.C.R. 701 701
DIPAKBHAI JAGDISHCHANDRA PATEL A
v.
STATE OF GUJARAT AND ANOTHER
(Criminal Appeal No. 714 of 2019)
APRIL 24, 2019 B
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Criminal Procedure, 1973: s.482 – Petition filed by
appellant challenging the complaint and the order passed by
Sessions Court rejecting his prayer to discharge him of offence
C
under ss.489B and 489C IPC – Prosecution case was that accused
no.1 to 3 were selling fake foreign currency note as original at
public place – When they were caught, they stated that they collected
notes from the residence of accused no.4-appellant – Appellant
contended before Sessions judge that apart from the statements of
co-accused, there was no material to proceed against him and that D
only on the basis of statement of co-accused, no case could be
made out against him and that the statement made by co-accused
was barred by s.25 of Evidence Act – Sessions judge held that whole
recovery procedure was made in the presence of panchas and
rejected the plea for discharge as there was some evidence against
E
him – High Court held that it was premature to say anything in
respect of credibility of the statement made by the Investigating
Officer in the complaint at that stage and it could be considered
only at the trial and that the statements of co-accused recorded by
the Investigating Officer showed prima facie involvement of the
appellant in the offence and no case was made out to interfere F
under s.482 – On appeal, held: At the stage of framing the charge,
the Court must be satisfied that with the materials available, a case
is made out for the accused to stand trial – In the instant case, the
co-accused were absconding – The State did not seriously dispute
the fact that there was no recovery from the residence of the appellant
G
of the counterfeit notes and that there was no other material on the
basis of which even a strong suspicion could be aroused – The
mandate of the law requires to free the appellant from being
proceeded against – Therefore, order passed by the Sessions Judge
framing the charge against the appellant is liable to be set aside
H
701
702 SUPREME COURT REPORTS [2019] 6 S.C.R.
A and the appellant is entitled to discharge – Penal Code, 1860 –
ss.489B and 489C.
Code of Criminal Procedure, 1973: ss.161, 162 –
Inadmissibility of statement made before the Police Officer – Held:
Bar under s.162 operates in regard to the statement made to a Police
B 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 – What amounts to an admission
can be used against the maker of the admission or his representative
C in interest – As to what constitutes an admission is to be found in
s.17 of the Evidence Act – Being an admission, it may be admissible
under the Evidence Act provided that it meets the requirements of
admission as defined in s.17 of the Evidence Act – However, even if
it is an admission, if it is made in the course of investigation under
D the Cr.PC to a Police Officer, then, it will not be admissible under
s.162 as it clearly prohibits the use of statement made to a Police
Officer under s.161 except for the purpose which is mentioned
therein – Statement given under s.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
E substantive evidence – Evidence Act, 1872 – s.17.
Evidence Act, 1872: s.25 – Confession made to police officer
– Admissibility of – Held: s.25 of the Evidence Act 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
F against a person accused of any offence – When a person is named
as an accused in First Information Report, he would stand in the
shoes of an accused person – 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 s.161 of the Cr.PC.– A person
G 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 s.25 of the Evidence Act –
A confession, which is vitiated under s.24 of the Evidence Act would
also be inadmissible – Even if a statement contains admission, the
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 703
GUJARAT AND ANOTHER
statement being one under s.161, it would immediately attract the A
bar under s.162 of the Cr.PC. – Code of Criminal Procedure, 1973
– ss.161 and 162.
Allowing the appeal, the Court
HELD: 1. At the stage of framing the charge the Court is
not to act as a mere post office. The Court must indeed sift the B
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 C
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. [Para 21][717-G-H; 718-A-B]
2.1 Section 25 of the Evidence Act, 1872 renders D
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. A confession, which is
vitiated under Section 24 of the Evidence Act would also be
inadmissible. Even if a statement contains admission, the
statement being one under Section 161, it would immediately E
attract the bar under Section 162 of the Cr.PC. 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, F
which is otherwise relevant and which is made before the
investigation commences, may be admissible. What amounts to
an admission can be used against the maker of the admission or
his representative in interest. 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 G
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 H
704 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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. [Paras 25,
40, 41, 44, 46][719-A-B; 727-F-H; 728-A-B; 729-G-H;
730-G-H; 731-A-B]
B
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808 : [1962] SCR 10 ; Palvinder Kaur v. State of
Punjab AIR 1952 SC 354 : [1952] SCR 94 ; M.P.
Sharma and 4 others v. Satish Chandra, Distt.
Magistrate, Delhi and 4 others AIR 1954 SC 300 ;
C Bharat Singh and others v. Mst. Bhagirathi AIR 1966
SC 405 : [1966] SCR 606 ; Pakala Narayana Swami v.
Emperor (1939) PC 47 ; Mahabir Mandal and others
v. State of Bihar AIR 1972 1331 : [1972] 3 SCR 639
– relied on.
D 2.2 FIR was registered on 10.04.1996. The statement relied
on by respondent is dated 11.04.1996 made to a Police Officer
and the appellant was arrested on 11.04.1996. It is clearly during
the course of the investigation. Even if it does contain admissions
by virtue of Section 162, such admissions are clearly inadmissible.
E 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. 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
F 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
G could be aroused. The mandate of the law requires to free the
appellant from being proceeded against. [Paras 47, 48, 50]
[731-B-D; 732-D-E]
Suresh Budharmal Kalani Alias Pappu Kalani v. State
of Maharashtra (1998) 7 SCC 337 : [1998] 1 Suppl.
H SCR 608 ; Central Bureau of Investigation v. V.C.
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 705
GUJARAT AND ANOTHER
Shukla and others AIR 1998 SC 1406 : [1999] 2 SCR A
431 ; Veera Ibrahim v. State of Maharashtra AIR 1976
SC 1167 : [1976] 3 SCR 672 ; Nandini Satpathy v. P.L.
Dani and another AIR 1978 SC 1025 : [1978] 3
SCR 608 ; Haricharan Kurmi v. Sate of Bihar AIR 1964
SC 1184 : [1964] SCR 623 – relied on.
B
Bur Singh v. The Crown (1998) 7 SCC 337 (1930) ILR
11 Lash 555 ; Bachan Singh v. State of Punjab 1981
SCC Online P&H 47 ; Umashanker v. State of
Chhatisgarh (2001) 9 SCC 642 : [2001] 3 Suppl. SCR
646 ; State of Bihar v. Ramesh Singh AIR 1977 SC
2018 : [1978] 1 SCR 257 ; Union of India v. Prafulla C
Kumar Samal and another AIR 1979 SC 366 :
[1979] 2 SCR 229 ; Kashmira Singh v. State of
Madhya Pradesh AIR 1952 SC 159 :1952 SCR 526
– referred to.
Law of Evidence by M. Monir, 17th Edition – referred D
to.
CASE LAW REFERENCE
[1998] 1 Suppl. SCR 608 relied on Para 6
(1930) ILR 11 Lash 555 referred to Para 7 E
1981 SCC Online P&H 47 referred to Para 7
[2001] 3 Suppl. SCR 646 referred to Para 8
[1978] 1 SCR 257 referred to Para 13
[1979] 2 SCR 229 referred to Para 14 F
1952 SCR 526 referred to Para 22
(1939) PC 47 relied on Para 29
[1952] SCR 94 relied on Para 30
G
[1976] 3 SCR 672 relied on Para 30
AIR 1954 SC 300 relied on Para 31
[1962] SCR 10 relied on Para 32
[1978] 3 SCR 608 relied on Para 35
H
706 SUPREME COURT REPORTS [2019] 6 S.C.R.
A [1972] 3 SCR 639 relied on Para 38
[1999] 2 SCR 431 relied on Para 42
[1966] SCR 606 relied on Para 45
[1964] SCR 623 relied on Para 49
B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 714 of 2019.
From the Judgment and Order dated 05.05.2017 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application No. 1230 of
2009.
C
Nakul Dewan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna Singh
Gohil, Himanshu Chaubey, Ms. Tanvi Bhatnagar, Kartik Prasad, Advs.
for the Appellant.
Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Ms. Puja
Singh, Advs. for the Respondents.
D
The Judgment of the Court was delivered by
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
E 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
F 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
G
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,
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 707
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
Ashram Road, Ahmedabad on fair rate and therefore, while A
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
B
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 C
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
D
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 E
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
F
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 G
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
H
708 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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).
B
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
C 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
D 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.”
E
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
F 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,
G 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.
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 709
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
PROCEEDINGS BEFORE THE HIGH COURT A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
710 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 Dr Bansal and Jayawant Suryarao. Under Section 30 of the
Evidence Act, 1872, a confession of an accused is relevant and
B 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
C 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,
D 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
E 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
F 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
G 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
1
H (1998) 7 SCC 337
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 711
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
it is not necessary to call the confession in aid. But cases may A
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
B
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.” C
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 D
High Court, viz., Justice 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 E
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 F
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. Darshan Kumar
Ahluwalia, P.W. 2, would have us believe could be misled to treat G
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
2
(1930) ILR 11 Lah 555 [Criminal Revision No. 1527 of 1929]
3
1981 SCC Online P&H 47 H
712 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
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
C 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.
D
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
E 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
F 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;
G 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
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 713
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
possession of such and similar notes in such large numbers, that A
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 B
offences in respect of forged or 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 C
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 D
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 E
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. F
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 G
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
4
(2001) 9 SCC 642 H
714 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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] ).”
B
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.
C 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
D 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:
E “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
F punished with imprisonment for life, or with impris-onment 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
G
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.”
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 715
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
LAW RELATING TO FRAMING OF CHARGE AND A
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 B
got to be, it would be clear that 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 C
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 D
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 E
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 F
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.
G
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
5
AIR 1977 SC 2018 H
716 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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,
B 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
C 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
D 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
E 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
F 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
G 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
6
H AIR 1979 SC 366
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 717
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
the documents produced before the Court, any basic infirmities A
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 B
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 C
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.
D
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.
E
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 F
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
G
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
H
718 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
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
C 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.
D 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
E 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
F 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
G 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 the appellant.
7
H AIR 1952 SC 159
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 719
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
25. Section 25 of the Indian Evidence Act, 1872 (hereinafter A
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:
B
“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. “
C
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).”
D
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 E
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 F
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, G
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:
H
720 SUPREME COURT REPORTS [2019] 6 S.C.R.
A “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
B
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
C 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 constitute
the offence. An admission of a gravely incriminating fact, even a
D 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
E 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
F 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
G confession as a statement by an accused “suggesting the inference
that he committed” the crime.”
8
(1939) PC 47 (20.01.1939)
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 721
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
30. This view of the Privy Council has gained acceptance of this A
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 others11,
considered the scope of the expression contained in Article 20(3) of the B
Constitution of India which mandates that no person accused of any
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 C
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 D
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 E
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 F
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
G
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
9
AIR 1952 SC 354
10
AIR 1976 SC 1167
11
AIR 1954 SC 300
12
AIR 1961 SC 1808 H
722 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
Dastagirv. State of Madras [(1960) 3 SCR 116] was questioned
because it was said that it ran counter to the observations of the
B
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
C 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.
D
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
E 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
F 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
G 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
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 723
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
whether or not the accused person had been compelled to make A
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” B
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 C
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, D
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 E
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 F
statement has been made.”
(Emphasis supplied)
34. Section 161 of the Cr.PC has the following marginal note:
“Examination of witnesses by police” G
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
H
724 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
of the judgment, speaking on behalf of the Bench, this is what Justice
V.R. Krishna Iyer had to say:
“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
C 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
D 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),
E 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
F 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
G 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. …”
13
AIR 1978 SC 1025
H
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 725
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
37. Thus, quite clearly, a person who stands in the shoes of the A
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
B
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 C
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 D
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 E
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 F
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 G
which such omission occurs and whether any omission amounts
to a contradiction in the particular context shall be a question of
fact.”
H
726 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B 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 evidence. According to Section
C 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
D 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
E 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
F 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:
G
“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
14
H AIR 1972 1331
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 727
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
often includes the examination of a number or persons none of A
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.”
B
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 C
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.” D
(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 E
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 F
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 G
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,
H
728 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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.
B 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
C acknowledgement of guilt is a confession but when a confession
falls short of actual admission of 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
D 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
E 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,
F 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
G 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
15
H AIR 1998 SC 1406
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 729
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
the course of an investigation under Chapter XIV of the Code A
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
B
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)
C
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 D
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 E
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 F
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 G
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:
H
730 SUPREME COURT REPORTS [2019] 6 S.C.R.
A “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.”
B 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
C 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
D 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
E 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.”
F (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
G 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
16
H AIR 1966 SC 405
DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF 731
GUJARAT AND ANOTHER [K. M. JOSEPH, J.]
Cr.PC except for the purpose which is mentioned therein. Statement A
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 B
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 C
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 D
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:
E
“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 F
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 G
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
17
AIR 1964 SC 1184 (quoted portion at page 1184) H
732 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B 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
C 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
D 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
E 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.
Devika Gujral Appeal allowed.
F
G
H
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