Such a person, viz., person who is named in
the FIR, and therefore, the accused in the eyes
of law, can indeed be questioned and the
statement is taken by the Police Officer. A
confession, which is made to a Police Officer,
would be inadmissible having regard to Section
25 of the Evidence Act. A confession, which is
vitiated under Section 24 of the Evidence Act
would also be inadmissible. A confession unless
it fulfills the test laid down in Pakala
Narayana Swami (supra) and as accepted by this
Court, may still be used as an admission under
Section 21 of the Evidence Act. This, however,
is subject to the bar of admissibility of a
statement under Section 161 of the Cr.PC.
Therefore, even if a statement contains
admission, the statement being one under Section
161, it would immediately attract the bar under
Section 162 of the Cr.PC.
41. Bar under Section 162 Cr.PC, no doubt,
operates in regard to the statement made to a
Police Officer in between two points of time,
viz., from the beginning of the investigation
till the termination of the same. In a case
where statement containing not a confession but
admission, which is otherwise relevant and which
is made before the investigation commences, may
be admissible. We need not, however, say
anything more.
42. In Central Bureau of Investigation v. V.C.
Shukla and other AIR 1998 SC 1406,
a Bench of three learned
Judges, after approving Pakala Narayana Swami
(supra), had occasion to consider the
distinction between confession and admission.
This Court went on to hold as follows:
“45. It is thus seen that only
voluntary and direct
acknowledgement of guilt is a
confession but when a confession
falls short of actual admission of
guilt it may nevertheless be used
as evidence against the person who
made it or his authorised agent as
an “admission” under Section 21.
The law in this regard has been
clearly — and in our considered
view correctly — explained
in Monir's Law of Evidence(New Edn.
at pp. 205 and 206), on which Mr
Jethmalani relied to bring home his
contention that even if the entries
are treated as “admission” of the
Jains still they cannot be used
against Shri Advani. The relevant
passage reads as under:
“The distinction between
admissions and confessions is of
considerable importance for two
reasons. Firstly, a statement
made by an accused person, if it
is an admission, is admissible in
evidence under Section 21 of the
Evidence Act, unless the
statement amounts to a confession
and was made to a person in
authority in consequence of some
improper inducement, threat or
promise, or was made to a Police
Officer, or was made at a time
when the accused was in custody
of a Police Officer. If a
statement was made by the accused
in the circumstances just
mentioned its admissibility will
depend upon the determination of
the question whether it does not
amount to a confession. If it
amounts to a confession, it will
be inadmissible, but if it does
not amount to a confession, it
will be admissible under Section
21 of the Act as an admission,
provided that it suggests an
inference as to a fact which is
in issue in, or relevant to, the
case and was not made to a Police
Officer in the course of an
investigation under Chapter XIV
of the Code of Criminal
Procedure. Secondly, a statement
made by an accused person is
admissible against others who are
being jointly tried with him only
if the statement amounts to a
confession. Where the statement
falls short of a confession, it
is admissible only against its
maker as an admission and not
against those who are being
jointly tried with him.
Therefore, from the point of view
of Section 30 of the Evidence Act
also the distinction between an
admission and a confession is of
fundamental importance.””
(Emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.714 OF 2019
(@ SLP(Criminal) No.5415 of 2017)
DIPAKBHAI JAGDISHCHANDRA PATEL Vs STATE OF GUJARAT
K.M. JOSEPH, J.
1. This appeal by special leave granted by this
Court is directed against the judgment of the
High Court of Gujarat at Ahmedabad dismissing
the Special Criminal Application No.1230 of 2009
filed by the appellant under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the Cr.PC’ for short).
2. The petition under Section 482 Cr.PC. was
filed challenging the complaint and the Order
passed by the Sessions Court rejecting the
request of the appellant to discharge him of the
offences under Sections 489B and 489C of the
Indian Penal Code, 1860 (hereinafter referred to
as ‘the IPC’ for short).
3. The contents of the FIR dated 10.04.1996 are
as follows:
“The facts of my complaint are that
today ie., on 10.04.1996 at about
13.00, we got information from the
superior officer of the ATS that
Mahamad Rafik Abdul Hamid Kadge of
Mumbai and Salim Mahebub Shaikh of
Ahmedabad Sahalam, both are selling
fake currency note of Arabian country
as original on the road going towards
noble building located at the edge of
2
Nehrubridge, Ashram Road, Ahmedabad
on fair rate and therefore, while
receiving such legal instruction, two
panch persons had been called at the
office of ATS and after informing
them about such information and they
expressed their consent to remain as
panchas therefore, after completing
the first part panchnama at about
14.00 to 14.15 therein, I myself,
panchas and PSI Shri NB Jadeja, Shri
BR Karavadra, Shri PV Rathod, Shri NV
Kapiriya, Shri KK Desai and Police
constable Shri Rameshkumar Sevadas
Lashkari, Bhagwatsingh Madarsinh and
police Constable Amirkhan Rasulkhan
and Dashrathsinh Bhagubha etc reached
in government and private vehicles
opposite the Natraj cinema at Ashram
Road, Stopping their vehicles there
and taking walk reached near Noble
Building as well as on the road
nearby the Petrol pump and found that
three persons were standing nearby
the road and doing some transaction
and while making talk with them, we
stopped them at that place wherein we
introduced ourselves as Police and
panchas and informed them about
personal search and I caught accused
no.1 and while asking his name and
address, he stated his name as
Mahamad Rafik Abdul Hamid Kadge
residing at Sachhvari Dagadichawl
3
Golanji Rahil Road, Mumbai-15 and
during the search, 43 notes of Saudi
Arabian Riyal currency of Rs.500/-
denomination were found and PSI Shri
NB Jadeja caught the accused no.2 and
while asking his name before the
panchas, he stated his name as
Salimbhai Mahemudbhai Shaikh,
residing at inside Shahalam Darwaja,
Rasulibad society, Ahmedabad and
during the search 43 notes of Saudi
Arabian riyal currency of Rs.500/-
denomination were found and police
constable Shri Bhagwatsinh Madarsinh
buckle No. 8927 caught the accused
no.3 and while asking his name and
address, he stated his name is
Usmangani Mahamadbhai Malek residing
at Musamiyani Chali, Rasulabad
Shahalam, Ahmedabad and from his
hand, 2 nos. Saudi Arabian Riyal
currency notes of Rs.500/-
denomination were found and in all
total 88 notes were found. While
asking them one by one before the
panchas regarding such notes, it was
found that no.1 had taken such notes
from Mumbai prior to 15 days and had
stated that he talked with his friend
Jagdishchandra Patel residing at D-2
Aasiyana Flat, Nawa Vadaj, Ahmedabad
to sale him these fake Riyal currency
to as original with fair price and
today, after taking such note from
4
the house of Dipak by the accused
no.1; handed over it to the accused
no.2 and 3 and after preparing the
panchnama of such notes, seized it by
packing it in separate packets and
applying seals. Indian currency notes
found from one or two out of them had
been returned by way of panchnama and
that panchnama was completed at about
(Illegible).
Thus, the aforesaid accused no.1
Mahamad Rafik Abdul Hamid Kagde,
residing at Savri Hagadi Chawl,
Golanji Road, Mumbai-15, accused no.2
Salimbhai Mahemudbhai Shaikha,
residing at inside Shahalam Darwaja,
Rasulabad Society, Ahmedabad, accused
no.3 Usmangani Mahamadbhai Malek
residing at Shahalam, Ahmedabad and
accused no.4 Dipak Jagdish Patel,
residing at B-2 Aashiyana Flat, Nava
Wadaj, Ahmedabad in collusion with
each other, showing the fake Saudi
Arebiya currency Riyal of Rs.500/-
denomination as original and keeping
such notes in their possession to
sale such fake currency notes as
original with fair price, the accused
have committed the offence punishable
under Section 489B, C of the Indian
Penal Code and this is my legal
complaint against these accused
persons. The panchas, police persons
and whatever will be come out in the
investigation are my witnesses and
the accused no.1,2,3 are arrested
today ie, on 10.04.1996 at 17.00
o’clock.”
4. Following investigation, the chargesheet
came to be filed against the appellant inter
alia:
PROCEEDINGS BEFORE THE SESSIONS JUDGE
Though the appellant contended before the
Sessions Judge that apart from the statement of
the co-accused, there was no material to proceed
against the accused/appellant and that only on
the basis of the statement by co-accused, no
case could be made out against the appellant,
and still further, it was contended that the
6
statement made by the co-accused was barred by
Section 25 of the Indian Evidence Act, 1872,
however, it was found by the Sessions Judge that
the whole recovery procedure was made in the
presence of panchas and, accordingly, the plea
for discharge of the appellant was rejected as
there was some evidence against him, and without
recording evidence, it was not possible to come
to the conclusion that there is no evidence
against the appellant.
PROCEEDINGS BEFORE THE HIGH COURT
In the High Court, the learned Single Judge,
after referring to the allegations made against
the accused/appellant, rejected the plea that
the case against the appellant be not continued
as it seemed that from the averments and
arguments of the learned APP, statements of the
7
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
8
involvement of the appellant in the offence. It
is not only the evidence available with the
prosecution to involve the appellant to the
alleged offences, other evidences too prima
facie point to the appellant. It was found that
no case was made out to interfere under Section
482 of the Cr.PC.
5. We have heard Mr. Nakul Dewan, learned Senior
Counsel appearing for the appellant and Ms.
Hemantika Wahi, learned Counsel appearing for
the respondents.
6. The learned Senior Counsel for the appellant
emphasized that the High Court has fallen into
error in holding that recovery of counterfeit
currency was effected from the residence of the
appellant. It was pointed out that counterfeit
currency was recovered not from the residence of
9
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 coaccused.
The High Court ought to have exercised
the jurisdiction available under Section 482 of
the Cr.PC and allowed the plea for discharge.
Learned Senior Counsel for the appellant would
contend that the co-accused were absconding. He
sought support from the judgment of this Court
in Suresh Budharmal Kalani Alias Pappu Kalani v.
State of Maharashtr a1. He has drawn our attention
to paragraphs 6 and 7, which read as follows:
“6. Thus said, we may turn our
attention to the confession made by
1 (1998) 7 SCC 337
10
Dr Bansal and Jayawant Suryarao.
Under Section 30 of the Evidence Act,
1872, a confession of an accused is
relevant and admissible against a coaccused
if both are jointly facing
trial for the same offence. Since,
admittedly, Dr Bansal has been
discharged from the case and would
not be facing trial with Kalani, his
confession cannot be used against
Kalani. The impugned order shows that
the Designated Court was fully aware
of the above legal position but,
surprisingly enough, it still decided
to rely upon the confession on the
specious ground that the prosecution
was not in any way precluded from
examining Dr Bansal as a witness in
the trial for establishing the facts
disclosed in his confession. This
again was a perverse approach of the
Designated Court while dealing with
the question of framing charges. At
that stage, the court is required to
confine its attention to only those
materials collected during
investigation which can be legally
translated into evidence and not upon
further evidence (dehors those
materials) that the prosecution may
adduce in the trial which would
commence only after the charges are
framed and the accused denies the
charges. The Designated Court was,
therefore, not at all justified in
11
taking into consideration the
confessional statement of Dr Bansal
for framing charges against Kalani.
7. So far as the confession of
Jayawant Suryarao is concerned, the
same (if voluntary and true) can
undoubtedly be brought on record
under Section 30 of the Evidence Act
to use it also against Kalani but
then the question is: what would be
its evidentiary value against the
latter? The question was succinctly
answered by this Court in Kashmira
Singh v. State of M.P. [AIR 1952 SC
159 : 1952 SCR 526] with the
following words:
“The proper way to approach a
case of this kind is, first, to
marshal the evidence against the
accused excluding the confession
altogether from consideration and
see whether, if it is believed, a
conviction could safely be based
on it. If it is capable of belief
independently of the confession,
then of course it is not
necessary to call the confession
in aid. But cases may arise where
the judge is not prepared to act
on the other evidence as it
stands even though, if believed,
it would be sufficient to sustain
a conviction. In such an event
12
the judge may call in aid the
confession and use it to lend
assurance to the other evidence
and thus fortify himself in
believing what without the aid of
the confession he would not be
prepared to accept.
The view so expressed has been
consistently followed by this Court.
Judged in the light of the above
principle, the confession of Suryarao
cannot be called in aid to frame
charges against Kalani in the absence
of any other evidence to do so.”
7. It is the further case of the appellant
that the ingredients of Section 489B and 489C of
the IPC have not been established. In regard to
Section 489C, he sought support from judgment of
the Lahore High Court in Bur Singh v. The Crow n2.
Still further, he sought some support from the
judgment of the learned Single Judge of the
Punjab and Haryana High Court, viz., Justice
2(1930) ILR 11 Lah 555 [Criminal Revision No. 1527
of 1929]
13
M.M. Punchhi (as His Lordship then was), in
Bachan Singh v. State of Punja b3. The Court held
as follows:
“10. In order to sustain the
convictions of Joginder Kaur
appellant, the prosecution has
not only to prove that she had
the possession of counterfeit
note, Exhibit P. 1, ensuring it
or having reason to believe it as
such, but further to prove
circumstances which lead clearly,
indubitably and irresistibly to
her intention to use the notes on
the public as has been held
in Bur Singh v. The Crown, (1930)
ILR 11 Lah 555 : (1931) 32 Cri LJ
351). It has further been held
that such intention could be
proved by a collateral
circumstance that she had palmed
off such notes before, or that
she was in possession of such
notes in such large numbers, that
her possession for any other
purpose was inexplicable. The
facts as found are that she had
on her person only one made-up
note, that she was an illiterate
lady and that anybody as Sh.
3 1981 SCC Online P&H 47
14
Darshan Kumar Ahluwalia, P.W. 2,
would have us believe could be
misled to treat it as a genuine
note. She gave the note to Kundan
Lal, P.W. 2 and he told her that
it was not a genuine note and his
belief was confirmed when he
showed it to others as well. It
has nowhere been asserted that
the note was ever returned to her
and having known fully well or
having reason to believe the same
to be forged for counterfeit she
yet made another attempt to palm
it off. Thus tendering alone such
note to Kundan Lal, P.W., unless
the prosecution could prove that
it was with dishonest intention
so as to cause wrongful loss to
him and wrongful gain to herself
would not make her act to fall
squarely within Section 420/511,
Indian Panal Code, or to have
come within the mischief of
Section 489-B or 489-C, Indian
Penal Code. The inference sought
to be drawn that she must have
known or reason to believe the
note, Exhibit PI, to be
counterfeit because her husband
accompanying her was found to be
in possession of similar notes is
entirely misplaced for no common
intention has been attributed to
15
them and they have not been
charged with the aid of Section
34, Indian Penal Code. For the
individual act of Joginder Kaur
she cannot be convicted for the
above named offences and must be
extended the benefit of doubt.
11. With regard to the case
of Bachan Singh it is to be noted
that he was found in possession
of 13 counterfeit ten rupee
notes. He is an iron-smith by
profession and barely literate.
How could he have the knowledge
or reason to believe the same to
be counterfeit is one part but
the other important part is
whether he intended to use the
same as genuine or that they may
be used as genuine has further to
be proved by the prosecution. It
was held in Bur Singh v. The
Crown, ((1931) 32 Cri LJ 351)
(Lah) (supra), that mere
possession of a forged note is
not an offence under the Indian
Penal Code and in order to bring
a case within the purview of
Section 489-C, Indian Penal Code,
it was not only necessary to
prove that the accused was in
possession of forged notes but it
16
should further be established
that:
(a) at the time of his possession
he - knew the notes to be forged
or had the reason to believe the
same to be forged or counterfeit;
and
b) he intended to use the same
as; genuine. No further
collateral circumstances in the
case have been brought forth such
as the accused had palmed off
such notes before, or that he was
in possession of such and similar
notes in such large numbers, that
his possession for any other
purpose was inexplicable.”
8. Finally, he also drew out attention to the
judgment of this Court in Umashanker v. State of
Chhatisgar h4 wherein he emphasised on paragraphs
7 and 8, which read as follows:
“7. Sections 489-A to 489-E
deal with various economic
offences in respect of forged or
4 (2001) 9 SCC 642
17
counterfeit currency notes or
banknotes. The object of the
legislature in enacting these
provisions is not only to protect
the economy of the country but
also to provide adequate
protection to currency notes and
banknotes. The currency notes
are, in spite of growing
accustomedness to the credit card
system, still the backbone of the
commercial transactions by the
multitudes in our country. But
these provisions are not meant to
punish unwary possessors or
users.
8. A perusal of the provisions,
extracted above, shows that mens
rea of offences under Sections
489-B and 489-C is “knowing or
having reason to believe the
currency notes or banknotes are
forged or counterfeit”. Without
the aforementioned mens rea
selling, buying or receiving from
another person or otherwise
trafficking in or using as
genuine forged or counterfeit
currency notes or banknotes, is
not enough to constitute offence
under Section 489-B IPC. So also
possessing or even intending to
use any forged or counterfeit
18
currency notes or banknotes is
not sufficient to make out a case
under Section 489-C in the
absence of the mens rea, noted
above. No material is brought on
record by the prosecution to show
that the appellant had the
requisite mens rea. The High
Court, however, completely missed
this aspect. The learned trial
Judge on the basis of the
evidence of PW 2, PW 4 and PW 7
that they were able to make out
that the currency note alleged to
have been given to PW 4 was fake,
“presumed” such a mens rea. On
the date of the incident the
appellant was said to be an
eighteen-year-old student. On the
facts of this case the
presumption drawn by the trial
court is not warranted under
Section 4 of the Evidence Act.
Further it is also not shown that
any specific question with regard
to the currency notes being fake
or counterfeit was put to the
appellant in his examination
under Section 313 of the Criminal
Procedure Code. On these facts,
we have no option but to hold
that the charges framed under
Sections 489-B and 489-C are not
proved. We, therefore, set aside
the conviction and sentence
19
passed on the appellant under
Sections 489-B and 489-C IPC and
acquit him of the said charges
(see: M. Mammutti v. State of
Karnataka [(1979) 4 SCC 723 :
1980 SCC (Cri) 170 : AIR 1979 SC
1705] ).”
9. Learned Counsel for the State drew our
attention to the statement made by the appellant
himself wherein the appellant has stated inter
alia that he was told by the co-accused that he
left a bag containing the counterfeit notes at
his residence.
10. Learned Counsel for the State submits that
the Court may also bear in mind that the case is
only at the stage of framing of the charge. A
case has not been made out for interference
under Section 482 of the Cr.PC, and hence, she
supported the Order of the High Court.
20
11. Appellant would submit that as regards the
extra judicial confessional statement relied
upon by the State dated 11.04.1996 made by the
appellant that it was not the basis on which the
chargesheet had been framed. It is secondly the
case of the appellant that the statement has
been subsequently retracted.
12. Sections 489B and 489C of the IPC read as
follows:
“489B. Using as genuine, forged
or counterfeit currency-notes or
bank-notes.—Whoever sells to, or
buys or receives from, any other
person, or otherwise traffics in
or uses as genuine, any forged or
counterfeit currency-note or
bank-note, knowing or having
reason to believe the same to be
forged or counterfeit, shall be
punished with imprisonment for
life, or with imprisonment of
either description for a term
which may extend to ten years,
and shall also be liable to fine.
21
489C. Possession of forged or
counterfeit currency-notes or
bank-notes.—Whoever has in his
possession any forged or counterfeit
currency-note or bank-note,
knowing or having reason to
believe the same to be forged or
counterfeit and intending to use
the same as genuine or that it
may be used as genuine, shall be
punished with imprisonment of
either description for a term
which may extend to seven years,
or with fine, or with both.”
LAW RELATING TO FRAMING OF CHARGE AND DISCHARGE
13. We may profitably, in this regard, refer to
the judgment of this Court in State of Bihar v.
Ramesh Sing h5 wherein this Court has laid down
the principles relating to framing of charge and
discharge as follows:
“Reading SS. 227 and 228 together
in juxtaposition, as they have
got to be, it would be clear that
5 AIR 1977 SC 2018
22
at the beginning and initial
stage of the trial the truth,
veracity and effect of the
evidence which the prosecutor
proposes to adduce are not to be
meticulously judged. Nor is any
weight to be attached to the
probable defence of the accused.
It is not obligatory for the
Judge at that stage of the trial
to consider in any detail and
weigh in a sensitive balance
whether the facts, if proved,
would be incompatible with the
innocence of the accused or not.
The standard of test and judgment
which is to be finally applied
before recording a finding
regarding the guilt or otherwise
of the accused is not exactly to
be applied at the stage of
deciding the matter under S.227
or S.228 of the Code. At that
stage the Court is not to see
whether there is sufficient
ground for conviction of the
accused or whether the trial is
sure to end in his conviction.
Strong suspicion against the
accused, if the matter remains in
the region of suspicion, cannot
take the place of proof of his
23
guilt at the conclusion of the
trial. But at the initial stage
if there is a strong suspicion
which leads the Court to think
that there is ground for
presuming that the accused has
committed an offence then it is
not open to the Court to say that
there is no sufficient ground for
proceeding against the accused.
The presumption of the guilt of
the accused which is to be drawn
at the initial stage is not in
the sense of the law governing
the trial of criminal cases in
France where the accused is
presumed to be guilty unless the
contrary is proved. But it is
only for the purpose of deciding
prima facie whether the court
should proceed with the trial or
not.
If the evidence which the
prosecutor proposes to adduce to
prove the guilt of the accused
even if fully accepted before it
is challenged in crossexamination
or rebutted by the
defence evidence, if any, cannot
show that the accused committed
the offence, then there will be
24
no sufficient ground for
proceeding with the trial.
If the scales of pan as to the
guilt or innocence of the accused
are something like even at the
conclusion of the trial, then, on
the theory of benefit of doubt
the case is to end in his
acquittal. But if, on the other
hand, it is so at the initial
stage of making an order under
S.227 or S.228, then in such a
situation ordinarily and
generally the order which will
have to be made will be one under
S.228 and not under S.227.”
14. In Union of India v. Prafulla Kumar Samal
and anothe r6, after survey of case law, this is
what the Court has laid down:
“10. Thus, on a consideration of
the authorities mentioned above,
the following principles emerge:
(1) That the Judge while
considering the question of
framing the charges under Section
227 of the Code has the undoubted
6 AIR 1979 SC 366
25
power to sift and weigh the
evidence for the limited purpose
of finding out whether or not a
prima facie case against the
accused has been made out.
(2) Where the materials placed
before the Court disclose grave
suspicion against the accused
which has not been properly
explained the Court will be fully
justified in framing a charge and
proceeding with the trial.
(3) The test to determine a
prima facie case would naturally
depend upon the facts of each
case and it is difficult to lay
down a rule of universal
application. By and large however
if two views are equally possible
and the Judge is satisfied that
the evidence produced before him
while giving rise to some
suspicion but not grave suspicion
against the accused, he will be
fully within his right to
discharge the accused.
(4) That in exercising his
jurisdiction under Section 227 of
the Code the Judge which under
the present Code is a senior and
experienced court cannot act
merely as a Post Office or a
mouthpiece of the prosecution,
26
but has to consider the broad
probabilities of the case, the
total effect of the evidence and
the documents produced before the
Court, any basic infirmities
appearing in the case and so on.
This however does not mean that
the Judge should make a roving
enquiry into the pros and cons of
the matter and weigh the evidence
as if he was conducting a trial.”
15. It is the case of the State that the
appellant had knowledge that the notes were
counterfeit and fake notes and was in conscious
possession of the fake notes for 15 days. For
framing charges, what is required is prima facie
satisfaction. Offence relating to counterfeit
notes is a grave offence and not to be viewed
lightly.
16. In the statement by the first accused, he
has stated that he had come to Ahmedabad 15 days
earlier. At that time, he had told the appellant
27
that the fake notes are to be sold at cheap
price and at present he may keep those notes
with him. He further states that he had brought
these notes from the residence of the appellant
and that he had been caught while he was selling
the notes at cheap price.
17. In the first statement given by the
appellant dated 11.04.1996 relied upon by the
State, the appellant is credited with knowledge
of the fact that the bag contained counterfeit
notes was left by the first accused at
appellant’s residence and they were to be sold
at cheap price and it was kept at his residence
for some days.
18. Subsequently, his statement was again
recorded on 10.07.1996. Therein, he inter alia
states that the first accused told him that the
28
bag contains files relating to land deals and it
contained valuables.
19. In further questioning on 30.08.1996, he
inter alia states that because of his
acquaintance with Ravi, he became acquainted
with the first accused and that he had left the
bag at his residence saying that the bag
contained important documents.
20. These are the materials in short which were
relied on by the State to sustain the Order
framing the charge against the appellant. That
is to say, the statements given by the appellant
under Section 161 and the statement also given
by the co-accused.
21. At the stage of framing the charge in
accordance with the principles which have been
29
laid down by this Court, what the Court is
expected to do is, it does not act as a mere
post office. The Court must indeed sift the
material before it. The material to be sifted
would be the material which is produced and
relied upon by the prosecution. The sifting is
not to be meticulous in the sense that the Court
dons the mantle of the Trial Judge hearing
arguments after the entire evidence has been
adduced after a full-fledged trial and the
question is not whether the prosecution has made
out the case for the conviction of the accused.
All that is required is, the Court must be
satisfied that with the materials available, a
case is made out for the accused to stand trial.
A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The
material must be such as can be translated into
30
evidence at the stage of trial. The strong
suspicion cannot be the pure subjective
satisfaction based on the moral notions of the
Judge that here is a case where it is possible
that accused has committed the offence. Strong
suspicion must be the suspicion which is
premised on some material which commends itself
to the court as sufficient to entertain the
prima facie view that the accused has committed
the offence.
22. Undoubtedly, this Court has in Suresh
Budharmal Kalani Alias Pappu Kalani (supra),
taken the view that confession by a co-accused
containing incriminating matter against a person
would not by itself suffice to frame charge
against it. We may incidentally note that the
Court has relied upon the judgment of this Court
31
in Kashmira Singh v. State of Madhya Prades h7. We
notice the observations, which have been relied
upon, were made in the context of an appeal
which arose from the conviction of the appellant
therein after a trial. The same view has been
followed undoubtedly in other cases where the
question arose in the context of a conviction
and an appeal therefrom. However, in Suresh
Budharmal Kalani Alias Pappu Kalani (supra), the
Court has proceeded to take the view that only
on the basis of statement of the co-accused, no
case is made out, even for framing a charge.
23. The first and the foremost aspect is whether
the appellant is justified in contending that
the High Court fell into error in holding that
the recovery was effected of the counterfeit
currency from the residence of the appellant.
7 AIR 1952 SC 159
32
This constituted an important consideration in
the court rejecting the petition filed by the
appellant.
24. The learned Counsel for the State, in fact,
did not seriously dispute the fact that there
was no recovery of counterfeit currency effected
from the residence of the appellant.
25. Section 25 of the Indian Evidence Act, 1872
(hereinafter referred to as ‘the Evidence Act’
for short) renders inadmissible a confession
made to a Police Officer. It declares in fact
that no confession made to a Police Officer
shall be proved as against a person accused of
any offence. Section 26 of the Evidence Act on
the other hand reads as follows:
“26. Confession by accused while
in custody of police not to be
proved against him.—No confession
made by any person whilst he is
33
in the custody of a police
officer, unless it be made in the
immediate presence of a
Magistrate, shall be proved as
against such person. "
Explanation.—In this section
“Magistrate” does not include the
head of a village discharging
magisterial functions in the
Presidency of Fort St. George or
elsewhere, unless such headman is
a Magistrate exercising the
powers of a Magistrate under the
Code of Criminal Procedure, 1882
(10 of 1882).”
26. Section 27 of the Evidence Act carves out an
exception.
27. In Law of Evidence by M. Monir, 17th Edition,
page 555, we notice the following discussion
regarding the distinction between Section 25 on
the one hand and Section 26 other hand:
“… The section deals with
confessions which are made not to
Police Officers but to persons
other than Police Officers, e.g.,
34
to a fellow prisoner, a doctor or
a visitor, and makes such
confessions inadmissible if they
were made whilst the accused was
in the custody of a Police
Officer. In section 25 the
criterion for excluding a
confession is the answer to the
question. “To whom was the
confession made?” If the answer
is that it was made to a Police
Officer, the confession is
absolutely excluded from
evidence. On the other hand, the
criterion adopted in section 26
for excluding a confession is the
answer to the question. “Under
what circumstances was the
confession made?” if the answer
is that it was made whilst the
accused was in the custody of a
Police Officer, the law lays down
that such confession shall be
excluded from evidence, unless it
was made in the immediate
presence of a Magistrate.”
28. Section 30 of the Evidence Act read as
follows:
35
“30. Consideration of proved
confession affecting person
making it and others jointly
under trial for same offence.—
When more persons than one are
being tried jointly for the same
offence, and a confession made by
one of such persons affecting
himself and some other of such
persons is proved, the Court may
take into consideration such
confession as against such other
person as well as against the
person who makes such confession.
Explanation.—“Offence”, as used
in this section, includes the
abetment of, or attempt to commit
the offence.”
29. While on confession, it is important to
understand as to what will amount to a
confession. The Privy Council in Pakala Narayana
Swami v. Empero r8:
“… Moreover, a confession must
either admit in terms the
offence, or at any rate
substantially all the facts which
8(1939) PC 47 (20.01.1939)
36
constitute the offence. An
admission of a gravely
incriminating fact, even a
conclusively incriminating fact
is not of itself a confession,
e.g. an admission that the
accused is the owner of and was
in recent possession of the knife
or revolver which caused a death
with no explanation of any other
man's possession. Some confusion
appears to have been caused by
the definition of 'confession' in
Article 22 of Stephen's "Digest
of the Law of Evidence" which
defines a confession as a
admission made iafc (sic) any
time by a person charged with a
crime stating or suggesting the
inference that he committed that
crime. If the surrounding
articles are examined it will be
apparent that the learned author
after dealing with admissions
generally is applying himself to
admissions in criminal cases, and
for this purpose defines
confessions so as to cover all
such admissions, in order to have
a general term for use in the
three following articles,
confession secured by inducement,
made upon oath, made under a
promise of secrecy. The
37
definition is not contained in
the Evidence Act, 1872: and in
that Act it would not be
consistent with the natural use
of language to construe
confession as a statement by an
accused "suggesting the inference
that he committed" the crime.”
30. This view of the Privy Council has gained
acceptance of this Court in many decisions. They
include Palvinder Kaur v. State of Punja b9 and
Veera Ibrahim v. State of Maharashtr a10.
31. A Full Court of this Court, in the decision
in M.P. Sharma and 4 others v. Satish Chandra,
Distt. Magistrate, Delhi and 4 others 11,
considered the scope of the expression contained
in Article 20(3) of the Constitution of India
which mandates that no person accused of any
9 AIR 1952 SC 354
10 AIR 1976 SC 1167
11 AIR 1954 SC 300
38
offence shall be compelled to be a witness
against himself:
“Broadly stated the guarantee in
Art.20(3) is against “testimonial
compulsion”. But there is no
reason to confine it to the oral
evidence of a person standing his
trial for an offence when called
to the witness-stand. The
protection afforded to an accused
in so far as it is related to the
phrase “to be a witness” is not
merely in respect of testimonial
compulsion in the Court room but
may well extend to compelled
testimony previously obtained
from him. It is available,
therefore, to a person against
whom a formal accusation relating
to the commission of an offence
has been levelled which is the
normal course may result in
prosecution.
Considered in this light, the
guarantee under Article 20(3)
would be available to person
against whom A First Information
Report has been recorded as
accused therein. It would extend
to any compulsory process for
production of evidentiary
documents which ae reasonable
39
likely to support a prosecution
against them.”
(Emphasis supplied)
32. In State of Bombay v. Kathi Kalu Ogha d12, a
Bench of 11 learned Judges of this Court had an
occasion to consider the true width of the
expression “person accused of an offence”.
Speaking on behalf of the majority, Sinha, C.J.,
held as follows:
“14. In this connection the
question was raised before us
that in order to bring the case
within the prohibition of clause
(3) of Article 20, it is not
necessary that the statement
should have been made by the
accused person at a time when he
fulfilled that character; it is
enough that he should have been
an accused person at the time
when the statement was sought to
be proved in court, even though
he may not have been an accused
person at the time he had made
that statement. The correctness
12 AIR 1961 SC 1808
40
of the decision of the
Constitution Bench of this Court
in the case of Mohamed
Dastagirv. State of
Madras [(1960) 3 SCR 116] was
questioned because it was said
that it ran counter to the
observations of the Full Court
in Sharma case [(1954) SCR 1077].
In the Full Court decision of
this Court this question did not
directly arise; nor was it
decided. On the other hand, this
Court, i n Sharma cas e [(1954) SCR
1077] held that the protection
under Article 20(3) of the
Constitution is available to a
person against whom a formal
accusation had been levelled,
inasmuch as a First Information
Report had been lodged against
him. Sharma case [(1954) SCR
1077] therefore, did not decide
anything to the contrary of what
this Court said in Mohamed
Dastagir v. State of
Madras [(1960) 3 SCR 116]. The
latter decision in our opinion
lays down the law correctly.
15. In order to bring the
evidence within the inhibitions
of clause (3) of Article 20 it
must be shown not only that the
41
person making the statement was
an accused at the time he made it
and that it had a material
bearing on the criminality of the
maker of the statement, but also
that he was compelled to make
that statement. …”
(Emphasis supplied)
33. The Court also laid down its conclusions in
paragraph-16:
”16. In view of these
considerations, we have come to
the following conclusions:
(1) An accused person cannot be
said to have been compelled to be
a witness against himself simply
because he made a statement while
in police custody, without
anything more. In other words,
the mere fact of being in police
custody at the time when the
statement in question was made
would not, by itself, as a
proposition of law, lend itself
to the inference that the accused
was compelled to make the
statement, though that fact, in
conjunction with other
circumstances disclosed in
42
evidence in a particular case,
would be a relevant consideration
in an enquiry whether or not the
accused person had been compelled
to make the impugned statement.
(2) The mere questioning of an
accused person by a police
officer, resulting in a voluntary
statement, which may ultimately
turn out to be incriminatory, is
not “compulsion”.
(3) “To be a witness” is not
equivalent to “furnishing
evidence” in its widest
significance; that is to say, as
including not merely making of
oral or written statements but
also production of documents or
giving materials which may be
relevant at a trial to determine
the guilt or innocence of the
accused.
(4) Giving thumb impressions or
impressions of foot or palm or
fingers or specimen writings or
showing parts of the body by way
of identification are not
included in the expression “to be
a witness”.
(5) “To be a witness” means
imparting knowledge in respect of
relevant facts by an oral
statement or a statement in
43
writing, made or given in court
or otherwise.
(6) “To be a witness” in its
ordinary grammatical sense means
giving oral testimony in court.
Case law has gone beyond this
strict literal interpretation of
the expression which may now bear
a wider meaning, namely, bearing
testimony in court or out of
court by a person accused of an
offence, orally or in writing.
(7) To bring the statement in
question within the prohibition
of Article 20(3), the person
accused must have stood in the
character of an accused person at
the time he made the statement.
It is not enough that he should
become an accused, any time after
the statement has been made.”
(Emphasis supplied)
34. Section 161 of the Cr.PC has the following
marginal note:
“Examination of witnesses by
police”
44
35. Can a person, who is accused of an offence,
be examined under Section 161 of the Cr.PC? As
we have seen, when a person is named as an
accused in First Information Report, he would
stand in the shoes of an accused person. Does
not the marginal note of Section 161 of the
Cr.PC confine the power to the Police Officer to
examine the witnesses and will it be denied to
him qua a person who is already named as an
accused? These questions are no longer res
integra. In Nandini Satpathy v. P.L. Dani and
anothe r13, a Bench of three learned Judges was
dealing with a case which arose from proceedings
initiated against the appellant therein under
Section 179 of the IPC. In the course of the
judgment, speaking on behalf of the Bench, this
is what Justice V.R. Krishna Iyer had to say:
13 AIR 1978 SC 1025
45
“32. We will now answer the
questions suggested at the
beginning and advert to the
decisions of our Court which set
the tone and temper of the
“silence” clause and bind us
willy-nilly. We have earlier
explained why we regard Section
161(2) as a sort of parliamentary
commentary on Article 20(3). So,
the first point to decide is
whether the police have power
under Sections 160 and 161 of the
CrPC to question a person who,
then was or, in the future may
incarnate as, an accused person.
The Privy Council and this Court
have held that the scope of
Section 161 does include actual
accused and suspects and we
deferentially agree without
repeating the detailed reasons
urged before us by counsel.”
(Emphasis supplied)
36. Thereafter, after referring to Pakala
Narayana Swami (supra), regarding the scope of
the word ‘confession’ the Court held inter alia
as follows:
46
“33. … We hold that “any person
supposed to be acquainted with
the facts and circumstances of
the case” includes an accused
person who fills that role
because the police suppose him to
have committed the crime and
must, therefore, be familiar with
the facts. The supposition may
later prove a fiction but that
does not repel the section. Nor
does the marginal note
“examination of witnesses by
police” clinch the matter. A
marginal note clears ambiguity
but does not control meaning.
Moreover, the suppositions
accused figures functionally as a
witness. “To be a witness”, from
a functional angle, is to impart
knowledge in respect of a
relevant fact, and that is
precisely the purpose of
questioning the accused under
Section 161 CrPC. …”
37. Thus, quite clearly, a person who stands in
the shoes of the accused being named in the
First Information Report, can be examined by the
47
Police Officer under Section 161 of the Cr.PC.
The next question however is, as to whether the
statement given by a person who stands in the
shoes of an accused and who gives a statement,
whether the statement is admissible in law? It
is here that Section 162 of the Code comes into
play:
“162. Statements to police not to
be signed: Use of statements in
evidence.
(1) No statement made by any
person to a police officer in the
course of an investigation under
this Chapter, shall, if reduced
to writing, be signed by the
person making it; nor shall any
such statement or any record
thereof, whether in a police
diary or otherwise, or any part
of such statement or record, be
used for any purpose, save as
hereinafter provided, at any
inquiry or trial in respect of
any offence under investigation
48
at the time when such statement
was made: Provided that when any
witness is called for the
prosecution in such inquiry or
trial whose statement has been
reduced into writing as
aforesaid, any part of his
statement, if duly proved, may be
used by the accused, and with the
permission of the Court, by the
prosecution, to contradict such
witness in the manner provided by
section 145 of the Indian
Evidence Act, 1872 (1 of 1872 );
and when any part of such
statement is so used, any part
thereof may also be used in the
re- examination of such witness,
but for the purpose only of
explaining any matter referred to
in his cross- examination.
(2) Nothing in this section shall
be deemed to apply to any
statement falling within the
provisions of clause (1) of
section 32 of the Indian Evidence
Act, 1872 (1 of 1872), or to
affect the provisions of section
27 of that Act. Explanation.- An
omission to state a fact or
circumstance in the statement
referred to in sub- section (1)
49
may amount to contradiction if
the same appears to be
significant and otherwise
relevant having regard to the
context in which such omission
occurs and whether any omission
amounts to a contradiction in the
particular context shall be a
question of fact.”
38. A Bench of three learned Judges of this
Court in Mahabir Mandal and others v. State of
Biha r14, had this to say:
“39. Coming to the case of Kasim,
we find that there is no reliable
evidence as may show that Kasim was
present at the house of Mahabir on
the night of occurrence and took
part in the disposal of the dead
body of Indira. Reliance was placed
by the prosecution upon the
statement alleged to have been made
by Kasim and Mahadeo accused at the
police station in the presence of
Baijnath PW after Baijnath had
lodged report at the police
station. Such statements are
legally not admissible in evidence
and cannot be used as substantive
14 AIR 1972 1331
50
evidence. According to Section 162
of the Code of Criminal Procedure,
no statement made by any person to
a police officer in the course of
an investigation shall be signed by
the person making it or used for
any purpose at any enquiry or trial
in respect of any offence under
investigation at the time when such
statement was made. The only
exception to the above rule is
mentioned in the proviso to that
section. According to the proviso,
when any witness is called for the
prosecution in the enquiry or
trial, any part of his statement,
if duly proved, may be used by the
accused and with the permission of
the court by the prosecution, to
contradict such witness in the
manner provided by Section 145 of
the Indian Evidence Act and when
any part of such statement is so
used, any part thereof may also be
used in the re-examination of such
witness for the purpose only of
explaining any matter referred to
in his cross-examination. The above
rule is, however, not applicable to
statements falling within the
provisions of Clause 1 of Section
32 of the Indian Evidence Act or to
affect the provisions of Section 27
of that Act. It is also well
51
established that the bar of
inadmissibility operates not only
on statements of witnesses but also
on those of the accused
(see Narayan Swami v. Emperor [AIR
1939 PC 47]). Lord Atkin, in that
case, while dealing with Section
162 of the Code of Criminal
Procedure observed:
“Then follows the section in
question which is drawn in the
same general way relating to ‘any
person.’ That the words in their
ordinary meaning would include
any person though he may
thereafter be accused seems
plain. Investigation into crime
often includes the examination of
a number or persons none of whom
or all of whom may be suspected
at the time. The first words of
the section prohibiting the
statement if recorded from being
signed must apply to all the
statements made at the time and
must therefore apply to a
statement made by a person
possibly not then even suspected
but eventually accused.”
Reference may also be made to
Section 26 of the Indian Evidence
Act, according to which no
confession made by any person
52
whilst he is in the custody of a
police officer, unless it be made
in the immediate presence of a
Magistrate, shall be proved against
such person. There is nothing in
the present case to show that the
statements which were made by Kasim
and Mahadeo accused on September
18, 1963, at the police station in
the presence of Baijnath resulted
in the discovery of any
incriminating material as may make
them admissible under Section 27 of
the Indian Evidence Act. As such,
the aforesaid statements must be
excluded from consideration.”
(Emphasis supplied)
39. Therefore, the combined effect of these
provisions can be summarized as follows:
Unless a person is accused of an offence, he
cannot claim the protection of Article 20(3) of
the Constitution of India.
40. Such a person, viz., person who is named in
the FIR, and therefore, the accused in the eyes
of law, can indeed be questioned and the
statement is taken by the Police Officer. A
confession, which is made to a Police Officer,
would be inadmissible having regard to Section
25 of the Evidence Act. A confession, which is
vitiated under Section 24 of the Evidence Act
would also be inadmissible. A confession unless
it fulfills the test laid down in Pakala
Narayana Swami (supra) and as accepted by this
Court, may still be used as an admission under
Section 21 of the Evidence Act. This, however,
is subject to the bar of admissibility of a
statement under Section 161 of the Cr.PC.
Therefore, even if a statement contains
admission, the statement being one under Section
161, it would immediately attract the bar under
Section 162 of the Cr.PC.
41. Bar under Section 162 Cr.PC, no doubt,
operates in regard to the statement made to a
Police Officer in between two points of time,
viz., from the beginning of the investigation
till the termination of the same. In a case
where statement containing not a confession but
admission, which is otherwise relevant and which
is made before the investigation commences, may
be admissible. We need not, however, say
anything more.
42. In Central Bureau of Investigation v. V.C.
Shukla and other AIR 1998 SC 1406,
a Bench of three learned
Judges, after approving Pakala Narayana Swami
(supra), had occasion to consider the
distinction between confession and admission.
This Court went on to hold as follows:
“45. It is thus seen that only
voluntary and direct
acknowledgement of guilt is a
confession but when a confession
falls short of actual admission of
guilt it may nevertheless be used
as evidence against the person who
made it or his authorised agent as
an “admission” under Section 21.
The law in this regard has been
clearly — and in our considered
view correctly — explained
in Monir's Law of Evidence(New Edn.
at pp. 205 and 206), on which Mr
Jethmalani relied to bring home his
contention that even if the entries
are treated as “admission” of the
Jains still they cannot be used
against Shri Advani. The relevant
passage reads as under:
“The distinction between
admissions and confessions is of
considerable importance for two
reasons. Firstly, a statement
made by an accused person, if it
is an admission, is admissible in
evidence under Section 21 of the
Evidence Act, unless the
statement amounts to a confession
and was made to a person in
authority in consequence of some
improper inducement, threat or
promise, or was made to a Police
Officer, or was made at a time
when the accused was in custody
of a Police Officer. If a
statement was made by the accused
in the circumstances just
mentioned its admissibility will
depend upon the determination of
the question whether it does not
amount to a confession. If it
amounts to a confession, it will
be inadmissible, but if it does
not amount to a confession, it
will be admissible under Section
21 of the Act as an admission,
provided that it suggests an
inference as to a fact which is
in issue in, or relevant to, the
case and was not made to a Police
Officer in the course of an
investigation under Chapter XIV
of the Code of Criminal
Procedure. Secondly, a statement
made by an accused person is
admissible against others who are
being jointly tried with him only
if the statement amounts to a
confession. Where the statement
falls short of a confession, it
is admissible only against its
maker as an admission and not
against those who are being
jointly tried with him.
Therefore, from the point of view
of Section 30 of the Evidence Act
also the distinction between an
admission and a confession is of
fundamental importance.””
(Emphasis supplied)
43. Section 21 of the Evidence Act provides as
follows:
”21. Proof of admissions against
persons making them, and by or on
their behalf.—Admissions are
relevant and may be proved as
against the person who makes
them, or his representative in
interest; but they cannot be
proved by or on behalf of the
person who makes them or by his
representative in interest,
except in the following cases:—
(1) An admission may be proved by
or on behalf of the person
making it, when it is of such
a nature that, if the person
making it were dead, it would
be relevant as between third
persons under section 32.
(2) An admission may be proved by
or on behalf of the person
making it, when it consists of
a statement of the existence
of any state of mind or body,
relevant or in issue, made at
or about the time when such
state of mind or body existed,
and is accompanied by conduct
rendering its falsehood
improbable.
(3) An admission may be proved by
or on behalf of the person
making it, if it is relevant
otherwise than as an
admission.”
44. Thus, what amounts to an admission can be
used against the maker of the admission or his
representative in interest. As to what
constitutes an admission is to be found in
Section 17 of the Evidence Act, which defines
admission as follows:
“17. Admission defined.—An
admission is a statement, oral or
documentary or contained in
electronic form, which suggests
any inference as to any fact in
issue or relevant fact, and which
is made by any of the persons,
and under the circumstances,
hereinafter mentioned.”
59
45. In Bharat Singh and others v. Mst.
Bhagirath i16, the true nature of the evidentiary
value of admission, and whether without
confronting the maker of the admission, it could
be used, has been referred to and this is what
this Court had to say:
“19. Admissions have to be
clear if they are to be used
against the person making them.
Admissions are substantive
evidence by themselves, in view
of Sections 17, and 21 of the
Indian Evidence Act, though they
are not conclusive proof of the
matters admitted. We are of
opinion that the admissions duly
proved are admissible evidence
irrespective of whether the party
making them appeared in the
witness box or not and whether
that party when appearing as
witness was confronted with those
statements in case it made a
statement contrary to those
admissions. The purpose of
contradicting the witness under
Section 145 of the Evidence Act
16 AIR 1966 SC 405
60
is very much different from the
purpose of proving the admission.
Admission is substantive evidence
of the fact admitted while a
previous statement used to
contradict a witness does not
become substantive evidence and
merely serves the purpose of
throwing doubt on the veracity of
the witness. What weight is to be
attached to an admission made by
a party is a matter different
from its use as admissible
evidence.”
(Emphasis supplied)
46. From the statement of the law contained in
V.C. Shukla and others (supra), it becomes clear
as to what constitutes confession and how if it
does not constitute confession, it may still be
an admission. Being an admission, it may be
admissible under the Evidence Act provided that
it meets the requirements of admission as
defined in Section 17 of the Evidence Act.
61
However, even if it is an admission, if it is
made in the course of investigation under the
Cr.PC to a Police Officer, then, it will not be
admissible under Section 162 of the Cr.PC as it
clearly prohibits the use of statement made to a
Police Officer under Section 161 of the Cr.PC
except for the purpose which is mentioned
therein. Statement given under Section 161, even
if relevant, as it contains an admission, would
not be admissible, though an admission falling
short of a confession which may be made
otherwise, may become substantive evidence.
47. A confession made to a Police Officer is
clearly inadmissible. The statement relied on by
respondent is dated 11.04.1996 and the appellant
was arrested on 11.04.1996. This is pursuant to
the FIR registered on 10.04.1996. The statement
dated 11.04.1996 is made to a Police Officer.
62
This is clear from the statement as also letter
dated 10.08.1996 (Annexure R/6) produced by the
respondent. It is clearly during the course of
the investigation. Even if it does contain
admissions by virtue of Section 162 and as
interpreted by this Court in V.C. Shukla and
others (supra), such admissions are clearly
inadmissible.
48. If the statement made by the appellant on
11.04.1996 is inadmissible, then, there will
only be the statement of the co-accused
available to be considered in deciding whether
the charge has to be framed against the
appellant or not. It is here that the law laid
down by this Court in Suresh Budharmal Kalani
Alias Pappu Kalani (supra)becomes applicable.
49. We also notice the following statement in
judgment rendered by Bench of seven learned
Judges in Haricharan Kurmi v. Sate of Biha r17:
“As a result of the provisions
contained in S.30, Evidence Act,
the confession of a co-accused
has to be regarded as amounting
to evidence in a general way,
because whatever is considered by
the Court is evidence;
circumstances which are
considered by the Court as well
as probabilities do amount to
evidence in that generic sense.
Thus, though confession may be
regarded as evidence in that
generic sense because of the
provisions of S.30, the fact
remains that it is not evidence
as defined by S.3 of the Act. The
result, therefore, is that in
dealing with a case against an
accused person, the Court cannot
start with the confession of a
co-accused person; it must begin
with other evidence adduced by
the prosecution and after it has
formed its opinion with regard to
the quality and effect of the
said evidence, then it is
17 AIR 1964 SC 1184 (quoted portion at page 1184)
permissible to turn to the
confession in order to receive
assurance to the conclusion of
guilt which the judicial mind is
about to reach on the said other
evidence.
Thus, the confession of a coaccused
person cannot be treated
as substantive evidence and can
be pressed into service only when
the Court is inclined to accept
other evidence and feels the
necessity of seeking for an
assurance in support of its
conclusions deducible from the
said evidence. In criminal cases
where the other evidence adduced
against an accused person is
wholly unsatisfactory and the
prosecution seeks to rely on the
confession of a co-accused
person, the presumption of
innocence which is the basis of
criminal jurisprudence assists
the accused person and compels
the Court to render the verdict
that the charge is not proved
against him, and so, he is
entitled to the benefit of
doubt.”
50. Proceeding on the basis that it is a
confession by a co-accused and still proceeding
further that there is a joint trial of the
accused and that they are accused of the same
offences (ignoring the fact that other accused
are absconding and appellant appears to be
proceeded against on his own) and having found
that there is no recovery from the residence of
the appellant of the counterfeit notes and that
there is no other material on the basis of which
even a strong suspicion could be aroused, we
would find that the mandate of the law requires
us to free the appellant from being proceeded
against. Accordingly, we allow the appeal and
the petition filed under Section 482 of the
Cr.PC. The Order impugned passed by the Sessions
Judge framing the charge against the appellant
will stand set aside and the appellant will
stand discharged.
…………………………………………………
[ASHOK BHUSHAN, J.]
…………………………………………………
[K.M. JOSEPH, J.]
NEW DELHI;
APRIL 24, 2019.
Print Page
the FIR, and therefore, the accused in the eyes
of law, can indeed be questioned and the
statement is taken by the Police Officer. A
confession, which is made to a Police Officer,
would be inadmissible having regard to Section
25 of the Evidence Act. A confession, which is
vitiated under Section 24 of the Evidence Act
would also be inadmissible. A confession unless
it fulfills the test laid down in Pakala
Narayana Swami (supra) and as accepted by this
Court, may still be used as an admission under
Section 21 of the Evidence Act. This, however,
is subject to the bar of admissibility of a
statement under Section 161 of the Cr.PC.
Therefore, even if a statement contains
admission, the statement being one under Section
161, it would immediately attract the bar under
Section 162 of the Cr.PC.
41. Bar under Section 162 Cr.PC, no doubt,
operates in regard to the statement made to a
Police Officer in between two points of time,
viz., from the beginning of the investigation
till the termination of the same. In a case
where statement containing not a confession but
admission, which is otherwise relevant and which
is made before the investigation commences, may
be admissible. We need not, however, say
anything more.
42. In Central Bureau of Investigation v. V.C.
Shukla and other AIR 1998 SC 1406,
a Bench of three learned
Judges, after approving Pakala Narayana Swami
(supra), had occasion to consider the
distinction between confession and admission.
This Court went on to hold as follows:
“45. It is thus seen that only
voluntary and direct
acknowledgement of guilt is a
confession but when a confession
falls short of actual admission of
guilt it may nevertheless be used
as evidence against the person who
made it or his authorised agent as
an “admission” under Section 21.
The law in this regard has been
clearly — and in our considered
view correctly — explained
in Monir's Law of Evidence(New Edn.
at pp. 205 and 206), on which Mr
Jethmalani relied to bring home his
contention that even if the entries
are treated as “admission” of the
Jains still they cannot be used
against Shri Advani. The relevant
passage reads as under:
“The distinction between
admissions and confessions is of
considerable importance for two
reasons. Firstly, a statement
made by an accused person, if it
is an admission, is admissible in
evidence under Section 21 of the
Evidence Act, unless the
statement amounts to a confession
and was made to a person in
authority in consequence of some
improper inducement, threat or
promise, or was made to a Police
Officer, or was made at a time
when the accused was in custody
of a Police Officer. If a
statement was made by the accused
in the circumstances just
mentioned its admissibility will
depend upon the determination of
the question whether it does not
amount to a confession. If it
amounts to a confession, it will
be inadmissible, but if it does
not amount to a confession, it
will be admissible under Section
21 of the Act as an admission,
provided that it suggests an
inference as to a fact which is
in issue in, or relevant to, the
case and was not made to a Police
Officer in the course of an
investigation under Chapter XIV
of the Code of Criminal
Procedure. Secondly, a statement
made by an accused person is
admissible against others who are
being jointly tried with him only
if the statement amounts to a
confession. Where the statement
falls short of a confession, it
is admissible only against its
maker as an admission and not
against those who are being
jointly tried with him.
Therefore, from the point of view
of Section 30 of the Evidence Act
also the distinction between an
admission and a confession is of
fundamental importance.””
(Emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.714 OF 2019
(@ SLP(Criminal) No.5415 of 2017)
DIPAKBHAI JAGDISHCHANDRA PATEL Vs STATE OF GUJARAT
K.M. JOSEPH, J.
1. This appeal by special leave granted by this
Court is directed against the judgment of the
High Court of Gujarat at Ahmedabad dismissing
the Special Criminal Application No.1230 of 2009
filed by the appellant under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the Cr.PC’ for short).
2. The petition under Section 482 Cr.PC. was
filed challenging the complaint and the Order
passed by the Sessions Court rejecting the
request of the appellant to discharge him of the
offences under Sections 489B and 489C of the
Indian Penal Code, 1860 (hereinafter referred to
as ‘the IPC’ for short).
3. The contents of the FIR dated 10.04.1996 are
as follows:
“The facts of my complaint are that
today ie., on 10.04.1996 at about
13.00, we got information from the
superior officer of the ATS that
Mahamad Rafik Abdul Hamid Kadge of
Mumbai and Salim Mahebub Shaikh of
Ahmedabad Sahalam, both are selling
fake currency note of Arabian country
as original on the road going towards
noble building located at the edge of
2
Nehrubridge, Ashram Road, Ahmedabad
on fair rate and therefore, while
receiving such legal instruction, two
panch persons had been called at the
office of ATS and after informing
them about such information and they
expressed their consent to remain as
panchas therefore, after completing
the first part panchnama at about
14.00 to 14.15 therein, I myself,
panchas and PSI Shri NB Jadeja, Shri
BR Karavadra, Shri PV Rathod, Shri NV
Kapiriya, Shri KK Desai and Police
constable Shri Rameshkumar Sevadas
Lashkari, Bhagwatsingh Madarsinh and
police Constable Amirkhan Rasulkhan
and Dashrathsinh Bhagubha etc reached
in government and private vehicles
opposite the Natraj cinema at Ashram
Road, Stopping their vehicles there
and taking walk reached near Noble
Building as well as on the road
nearby the Petrol pump and found that
three persons were standing nearby
the road and doing some transaction
and while making talk with them, we
stopped them at that place wherein we
introduced ourselves as Police and
panchas and informed them about
personal search and I caught accused
no.1 and while asking his name and
address, he stated his name as
Mahamad Rafik Abdul Hamid Kadge
residing at Sachhvari Dagadichawl
3
Golanji Rahil Road, Mumbai-15 and
during the search, 43 notes of Saudi
Arabian Riyal currency of Rs.500/-
denomination were found and PSI Shri
NB Jadeja caught the accused no.2 and
while asking his name before the
panchas, he stated his name as
Salimbhai Mahemudbhai Shaikh,
residing at inside Shahalam Darwaja,
Rasulibad society, Ahmedabad and
during the search 43 notes of Saudi
Arabian riyal currency of Rs.500/-
denomination were found and police
constable Shri Bhagwatsinh Madarsinh
buckle No. 8927 caught the accused
no.3 and while asking his name and
address, he stated his name is
Usmangani Mahamadbhai Malek residing
at Musamiyani Chali, Rasulabad
Shahalam, Ahmedabad and from his
hand, 2 nos. Saudi Arabian Riyal
currency notes of Rs.500/-
denomination were found and in all
total 88 notes were found. While
asking them one by one before the
panchas regarding such notes, it was
found that no.1 had taken such notes
from Mumbai prior to 15 days and had
stated that he talked with his friend
Jagdishchandra Patel residing at D-2
Aasiyana Flat, Nawa Vadaj, Ahmedabad
to sale him these fake Riyal currency
to as original with fair price and
today, after taking such note from
4
the house of Dipak by the accused
no.1; handed over it to the accused
no.2 and 3 and after preparing the
panchnama of such notes, seized it by
packing it in separate packets and
applying seals. Indian currency notes
found from one or two out of them had
been returned by way of panchnama and
that panchnama was completed at about
(Illegible).
Thus, the aforesaid accused no.1
Mahamad Rafik Abdul Hamid Kagde,
residing at Savri Hagadi Chawl,
Golanji Road, Mumbai-15, accused no.2
Salimbhai Mahemudbhai Shaikha,
residing at inside Shahalam Darwaja,
Rasulabad Society, Ahmedabad, accused
no.3 Usmangani Mahamadbhai Malek
residing at Shahalam, Ahmedabad and
accused no.4 Dipak Jagdish Patel,
residing at B-2 Aashiyana Flat, Nava
Wadaj, Ahmedabad in collusion with
each other, showing the fake Saudi
Arebiya currency Riyal of Rs.500/-
denomination as original and keeping
such notes in their possession to
sale such fake currency notes as
original with fair price, the accused
have committed the offence punishable
under Section 489B, C of the Indian
Penal Code and this is my legal
complaint against these accused
persons. The panchas, police persons
and whatever will be come out in the
investigation are my witnesses and
the accused no.1,2,3 are arrested
today ie, on 10.04.1996 at 17.00
o’clock.”
4. Following investigation, the chargesheet
came to be filed against the appellant inter
alia:
PROCEEDINGS BEFORE THE SESSIONS JUDGE
Though the appellant contended before the
Sessions Judge that apart from the statement of
the co-accused, there was no material to proceed
against the accused/appellant and that only on
the basis of the statement by co-accused, no
case could be made out against the appellant,
and still further, it was contended that the
6
statement made by the co-accused was barred by
Section 25 of the Indian Evidence Act, 1872,
however, it was found by the Sessions Judge that
the whole recovery procedure was made in the
presence of panchas and, accordingly, the plea
for discharge of the appellant was rejected as
there was some evidence against him, and without
recording evidence, it was not possible to come
to the conclusion that there is no evidence
against the appellant.
PROCEEDINGS BEFORE THE HIGH COURT
In the High Court, the learned Single Judge,
after referring to the allegations made against
the accused/appellant, rejected the plea that
the case against the appellant be not continued
as it seemed that from the averments and
arguments of the learned APP, statements of the
7
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
8
involvement of the appellant in the offence. It
is not only the evidence available with the
prosecution to involve the appellant to the
alleged offences, other evidences too prima
facie point to the appellant. It was found that
no case was made out to interfere under Section
482 of the Cr.PC.
5. We have heard Mr. Nakul Dewan, learned Senior
Counsel appearing for the appellant and Ms.
Hemantika Wahi, learned Counsel appearing for
the respondents.
6. The learned Senior Counsel for the appellant
emphasized that the High Court has fallen into
error in holding that recovery of counterfeit
currency was effected from the residence of the
appellant. It was pointed out that counterfeit
currency was recovered not from the residence of
9
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 coaccused.
The High Court ought to have exercised
the jurisdiction available under Section 482 of
the Cr.PC and allowed the plea for discharge.
Learned Senior Counsel for the appellant would
contend that the co-accused were absconding. He
sought support from the judgment of this Court
in Suresh Budharmal Kalani Alias Pappu Kalani v.
State of Maharashtr a1. He has drawn our attention
to paragraphs 6 and 7, which read as follows:
“6. Thus said, we may turn our
attention to the confession made by
1 (1998) 7 SCC 337
10
Dr Bansal and Jayawant Suryarao.
Under Section 30 of the Evidence Act,
1872, a confession of an accused is
relevant and admissible against a coaccused
if both are jointly facing
trial for the same offence. Since,
admittedly, Dr Bansal has been
discharged from the case and would
not be facing trial with Kalani, his
confession cannot be used against
Kalani. The impugned order shows that
the Designated Court was fully aware
of the above legal position but,
surprisingly enough, it still decided
to rely upon the confession on the
specious ground that the prosecution
was not in any way precluded from
examining Dr Bansal as a witness in
the trial for establishing the facts
disclosed in his confession. This
again was a perverse approach of the
Designated Court while dealing with
the question of framing charges. At
that stage, the court is required to
confine its attention to only those
materials collected during
investigation which can be legally
translated into evidence and not upon
further evidence (dehors those
materials) that the prosecution may
adduce in the trial which would
commence only after the charges are
framed and the accused denies the
charges. The Designated Court was,
therefore, not at all justified in
11
taking into consideration the
confessional statement of Dr Bansal
for framing charges against Kalani.
7. So far as the confession of
Jayawant Suryarao is concerned, the
same (if voluntary and true) can
undoubtedly be brought on record
under Section 30 of the Evidence Act
to use it also against Kalani but
then the question is: what would be
its evidentiary value against the
latter? The question was succinctly
answered by this Court in Kashmira
Singh v. State of M.P. [AIR 1952 SC
159 : 1952 SCR 526] with the
following words:
“The proper way to approach a
case of this kind is, first, to
marshal the evidence against the
accused excluding the confession
altogether from consideration and
see whether, if it is believed, a
conviction could safely be based
on it. If it is capable of belief
independently of the confession,
then of course it is not
necessary to call the confession
in aid. But cases may arise where
the judge is not prepared to act
on the other evidence as it
stands even though, if believed,
it would be sufficient to sustain
a conviction. In such an event
12
the judge may call in aid the
confession and use it to lend
assurance to the other evidence
and thus fortify himself in
believing what without the aid of
the confession he would not be
prepared to accept.
The view so expressed has been
consistently followed by this Court.
Judged in the light of the above
principle, the confession of Suryarao
cannot be called in aid to frame
charges against Kalani in the absence
of any other evidence to do so.”
7. It is the further case of the appellant
that the ingredients of Section 489B and 489C of
the IPC have not been established. In regard to
Section 489C, he sought support from judgment of
the Lahore High Court in Bur Singh v. The Crow n2.
Still further, he sought some support from the
judgment of the learned Single Judge of the
Punjab and Haryana High Court, viz., Justice
2(1930) ILR 11 Lah 555 [Criminal Revision No. 1527
of 1929]
13
M.M. Punchhi (as His Lordship then was), in
Bachan Singh v. State of Punja b3. The Court held
as follows:
“10. In order to sustain the
convictions of Joginder Kaur
appellant, the prosecution has
not only to prove that she had
the possession of counterfeit
note, Exhibit P. 1, ensuring it
or having reason to believe it as
such, but further to prove
circumstances which lead clearly,
indubitably and irresistibly to
her intention to use the notes on
the public as has been held
in Bur Singh v. The Crown, (1930)
ILR 11 Lah 555 : (1931) 32 Cri LJ
351). It has further been held
that such intention could be
proved by a collateral
circumstance that she had palmed
off such notes before, or that
she was in possession of such
notes in such large numbers, that
her possession for any other
purpose was inexplicable. The
facts as found are that she had
on her person only one made-up
note, that she was an illiterate
lady and that anybody as Sh.
3 1981 SCC Online P&H 47
14
Darshan Kumar Ahluwalia, P.W. 2,
would have us believe could be
misled to treat it as a genuine
note. She gave the note to Kundan
Lal, P.W. 2 and he told her that
it was not a genuine note and his
belief was confirmed when he
showed it to others as well. It
has nowhere been asserted that
the note was ever returned to her
and having known fully well or
having reason to believe the same
to be forged for counterfeit she
yet made another attempt to palm
it off. Thus tendering alone such
note to Kundan Lal, P.W., unless
the prosecution could prove that
it was with dishonest intention
so as to cause wrongful loss to
him and wrongful gain to herself
would not make her act to fall
squarely within Section 420/511,
Indian Panal Code, or to have
come within the mischief of
Section 489-B or 489-C, Indian
Penal Code. The inference sought
to be drawn that she must have
known or reason to believe the
note, Exhibit PI, to be
counterfeit because her husband
accompanying her was found to be
in possession of similar notes is
entirely misplaced for no common
intention has been attributed to
15
them and they have not been
charged with the aid of Section
34, Indian Penal Code. For the
individual act of Joginder Kaur
she cannot be convicted for the
above named offences and must be
extended the benefit of doubt.
11. With regard to the case
of Bachan Singh it is to be noted
that he was found in possession
of 13 counterfeit ten rupee
notes. He is an iron-smith by
profession and barely literate.
How could he have the knowledge
or reason to believe the same to
be counterfeit is one part but
the other important part is
whether he intended to use the
same as genuine or that they may
be used as genuine has further to
be proved by the prosecution. It
was held in Bur Singh v. The
Crown, ((1931) 32 Cri LJ 351)
(Lah) (supra), that mere
possession of a forged note is
not an offence under the Indian
Penal Code and in order to bring
a case within the purview of
Section 489-C, Indian Penal Code,
it was not only necessary to
prove that the accused was in
possession of forged notes but it
16
should further be established
that:
(a) at the time of his possession
he - knew the notes to be forged
or had the reason to believe the
same to be forged or counterfeit;
and
b) he intended to use the same
as; genuine. No further
collateral circumstances in the
case have been brought forth such
as the accused had palmed off
such notes before, or that he was
in possession of such and similar
notes in such large numbers, that
his possession for any other
purpose was inexplicable.”
8. Finally, he also drew out attention to the
judgment of this Court in Umashanker v. State of
Chhatisgar h4 wherein he emphasised on paragraphs
7 and 8, which read as follows:
“7. Sections 489-A to 489-E
deal with various economic
offences in respect of forged or
4 (2001) 9 SCC 642
17
counterfeit currency notes or
banknotes. The object of the
legislature in enacting these
provisions is not only to protect
the economy of the country but
also to provide adequate
protection to currency notes and
banknotes. The currency notes
are, in spite of growing
accustomedness to the credit card
system, still the backbone of the
commercial transactions by the
multitudes in our country. But
these provisions are not meant to
punish unwary possessors or
users.
8. A perusal of the provisions,
extracted above, shows that mens
rea of offences under Sections
489-B and 489-C is “knowing or
having reason to believe the
currency notes or banknotes are
forged or counterfeit”. Without
the aforementioned mens rea
selling, buying or receiving from
another person or otherwise
trafficking in or using as
genuine forged or counterfeit
currency notes or banknotes, is
not enough to constitute offence
under Section 489-B IPC. So also
possessing or even intending to
use any forged or counterfeit
18
currency notes or banknotes is
not sufficient to make out a case
under Section 489-C in the
absence of the mens rea, noted
above. No material is brought on
record by the prosecution to show
that the appellant had the
requisite mens rea. The High
Court, however, completely missed
this aspect. The learned trial
Judge on the basis of the
evidence of PW 2, PW 4 and PW 7
that they were able to make out
that the currency note alleged to
have been given to PW 4 was fake,
“presumed” such a mens rea. On
the date of the incident the
appellant was said to be an
eighteen-year-old student. On the
facts of this case the
presumption drawn by the trial
court is not warranted under
Section 4 of the Evidence Act.
Further it is also not shown that
any specific question with regard
to the currency notes being fake
or counterfeit was put to the
appellant in his examination
under Section 313 of the Criminal
Procedure Code. On these facts,
we have no option but to hold
that the charges framed under
Sections 489-B and 489-C are not
proved. We, therefore, set aside
the conviction and sentence
19
passed on the appellant under
Sections 489-B and 489-C IPC and
acquit him of the said charges
(see: M. Mammutti v. State of
Karnataka [(1979) 4 SCC 723 :
1980 SCC (Cri) 170 : AIR 1979 SC
1705] ).”
9. Learned Counsel for the State drew our
attention to the statement made by the appellant
himself wherein the appellant has stated inter
alia that he was told by the co-accused that he
left a bag containing the counterfeit notes at
his residence.
10. Learned Counsel for the State submits that
the Court may also bear in mind that the case is
only at the stage of framing of the charge. A
case has not been made out for interference
under Section 482 of the Cr.PC, and hence, she
supported the Order of the High Court.
20
11. Appellant would submit that as regards the
extra judicial confessional statement relied
upon by the State dated 11.04.1996 made by the
appellant that it was not the basis on which the
chargesheet had been framed. It is secondly the
case of the appellant that the statement has
been subsequently retracted.
12. Sections 489B and 489C of the IPC read as
follows:
“489B. Using as genuine, forged
or counterfeit currency-notes or
bank-notes.—Whoever sells to, or
buys or receives from, any other
person, or otherwise traffics in
or uses as genuine, any forged or
counterfeit currency-note or
bank-note, knowing or having
reason to believe the same to be
forged or counterfeit, shall be
punished with imprisonment for
life, or with imprisonment of
either description for a term
which may extend to ten years,
and shall also be liable to fine.
21
489C. Possession of forged or
counterfeit currency-notes or
bank-notes.—Whoever has in his
possession any forged or counterfeit
currency-note or bank-note,
knowing or having reason to
believe the same to be forged or
counterfeit and intending to use
the same as genuine or that it
may be used as genuine, shall be
punished with imprisonment of
either description for a term
which may extend to seven years,
or with fine, or with both.”
LAW RELATING TO FRAMING OF CHARGE AND DISCHARGE
13. We may profitably, in this regard, refer to
the judgment of this Court in State of Bihar v.
Ramesh Sing h5 wherein this Court has laid down
the principles relating to framing of charge and
discharge as follows:
“Reading SS. 227 and 228 together
in juxtaposition, as they have
got to be, it would be clear that
5 AIR 1977 SC 2018
22
at the beginning and initial
stage of the trial the truth,
veracity and effect of the
evidence which the prosecutor
proposes to adduce are not to be
meticulously judged. Nor is any
weight to be attached to the
probable defence of the accused.
It is not obligatory for the
Judge at that stage of the trial
to consider in any detail and
weigh in a sensitive balance
whether the facts, if proved,
would be incompatible with the
innocence of the accused or not.
The standard of test and judgment
which is to be finally applied
before recording a finding
regarding the guilt or otherwise
of the accused is not exactly to
be applied at the stage of
deciding the matter under S.227
or S.228 of the Code. At that
stage the Court is not to see
whether there is sufficient
ground for conviction of the
accused or whether the trial is
sure to end in his conviction.
Strong suspicion against the
accused, if the matter remains in
the region of suspicion, cannot
take the place of proof of his
23
guilt at the conclusion of the
trial. But at the initial stage
if there is a strong suspicion
which leads the Court to think
that there is ground for
presuming that the accused has
committed an offence then it is
not open to the Court to say that
there is no sufficient ground for
proceeding against the accused.
The presumption of the guilt of
the accused which is to be drawn
at the initial stage is not in
the sense of the law governing
the trial of criminal cases in
France where the accused is
presumed to be guilty unless the
contrary is proved. But it is
only for the purpose of deciding
prima facie whether the court
should proceed with the trial or
not.
If the evidence which the
prosecutor proposes to adduce to
prove the guilt of the accused
even if fully accepted before it
is challenged in crossexamination
or rebutted by the
defence evidence, if any, cannot
show that the accused committed
the offence, then there will be
24
no sufficient ground for
proceeding with the trial.
If the scales of pan as to the
guilt or innocence of the accused
are something like even at the
conclusion of the trial, then, on
the theory of benefit of doubt
the case is to end in his
acquittal. But if, on the other
hand, it is so at the initial
stage of making an order under
S.227 or S.228, then in such a
situation ordinarily and
generally the order which will
have to be made will be one under
S.228 and not under S.227.”
14. In Union of India v. Prafulla Kumar Samal
and anothe r6, after survey of case law, this is
what the Court has laid down:
“10. Thus, on a consideration of
the authorities mentioned above,
the following principles emerge:
(1) That the Judge while
considering the question of
framing the charges under Section
227 of the Code has the undoubted
6 AIR 1979 SC 366
25
power to sift and weigh the
evidence for the limited purpose
of finding out whether or not a
prima facie case against the
accused has been made out.
(2) Where the materials placed
before the Court disclose grave
suspicion against the accused
which has not been properly
explained the Court will be fully
justified in framing a charge and
proceeding with the trial.
(3) The test to determine a
prima facie case would naturally
depend upon the facts of each
case and it is difficult to lay
down a rule of universal
application. By and large however
if two views are equally possible
and the Judge is satisfied that
the evidence produced before him
while giving rise to some
suspicion but not grave suspicion
against the accused, he will be
fully within his right to
discharge the accused.
(4) That in exercising his
jurisdiction under Section 227 of
the Code the Judge which under
the present Code is a senior and
experienced court cannot act
merely as a Post Office or a
mouthpiece of the prosecution,
26
but has to consider the broad
probabilities of the case, the
total effect of the evidence and
the documents produced before the
Court, any basic infirmities
appearing in the case and so on.
This however does not mean that
the Judge should make a roving
enquiry into the pros and cons of
the matter and weigh the evidence
as if he was conducting a trial.”
15. It is the case of the State that the
appellant had knowledge that the notes were
counterfeit and fake notes and was in conscious
possession of the fake notes for 15 days. For
framing charges, what is required is prima facie
satisfaction. Offence relating to counterfeit
notes is a grave offence and not to be viewed
lightly.
16. In the statement by the first accused, he
has stated that he had come to Ahmedabad 15 days
earlier. At that time, he had told the appellant
27
that the fake notes are to be sold at cheap
price and at present he may keep those notes
with him. He further states that he had brought
these notes from the residence of the appellant
and that he had been caught while he was selling
the notes at cheap price.
17. In the first statement given by the
appellant dated 11.04.1996 relied upon by the
State, the appellant is credited with knowledge
of the fact that the bag contained counterfeit
notes was left by the first accused at
appellant’s residence and they were to be sold
at cheap price and it was kept at his residence
for some days.
18. Subsequently, his statement was again
recorded on 10.07.1996. Therein, he inter alia
states that the first accused told him that the
28
bag contains files relating to land deals and it
contained valuables.
19. In further questioning on 30.08.1996, he
inter alia states that because of his
acquaintance with Ravi, he became acquainted
with the first accused and that he had left the
bag at his residence saying that the bag
contained important documents.
20. These are the materials in short which were
relied on by the State to sustain the Order
framing the charge against the appellant. That
is to say, the statements given by the appellant
under Section 161 and the statement also given
by the co-accused.
21. At the stage of framing the charge in
accordance with the principles which have been
29
laid down by this Court, what the Court is
expected to do is, it does not act as a mere
post office. The Court must indeed sift the
material before it. The material to be sifted
would be the material which is produced and
relied upon by the prosecution. The sifting is
not to be meticulous in the sense that the Court
dons the mantle of the Trial Judge hearing
arguments after the entire evidence has been
adduced after a full-fledged trial and the
question is not whether the prosecution has made
out the case for the conviction of the accused.
All that is required is, the Court must be
satisfied that with the materials available, a
case is made out for the accused to stand trial.
A strong suspicion suffices. However, a strong
suspicion must be founded on some material. The
material must be such as can be translated into
30
evidence at the stage of trial. The strong
suspicion cannot be the pure subjective
satisfaction based on the moral notions of the
Judge that here is a case where it is possible
that accused has committed the offence. Strong
suspicion must be the suspicion which is
premised on some material which commends itself
to the court as sufficient to entertain the
prima facie view that the accused has committed
the offence.
22. Undoubtedly, this Court has in Suresh
Budharmal Kalani Alias Pappu Kalani (supra),
taken the view that confession by a co-accused
containing incriminating matter against a person
would not by itself suffice to frame charge
against it. We may incidentally note that the
Court has relied upon the judgment of this Court
31
in Kashmira Singh v. State of Madhya Prades h7. We
notice the observations, which have been relied
upon, were made in the context of an appeal
which arose from the conviction of the appellant
therein after a trial. The same view has been
followed undoubtedly in other cases where the
question arose in the context of a conviction
and an appeal therefrom. However, in Suresh
Budharmal Kalani Alias Pappu Kalani (supra), the
Court has proceeded to take the view that only
on the basis of statement of the co-accused, no
case is made out, even for framing a charge.
23. The first and the foremost aspect is whether
the appellant is justified in contending that
the High Court fell into error in holding that
the recovery was effected of the counterfeit
currency from the residence of the appellant.
7 AIR 1952 SC 159
32
This constituted an important consideration in
the court rejecting the petition filed by the
appellant.
24. The learned Counsel for the State, in fact,
did not seriously dispute the fact that there
was no recovery of counterfeit currency effected
from the residence of the appellant.
25. Section 25 of the Indian Evidence Act, 1872
(hereinafter referred to as ‘the Evidence Act’
for short) renders inadmissible a confession
made to a Police Officer. It declares in fact
that no confession made to a Police Officer
shall be proved as against a person accused of
any offence. Section 26 of the Evidence Act on
the other hand reads as follows:
“26. Confession by accused while
in custody of police not to be
proved against him.—No confession
made by any person whilst he is
33
in the custody of a police
officer, unless it be made in the
immediate presence of a
Magistrate, shall be proved as
against such person. "
Explanation.—In this section
“Magistrate” does not include the
head of a village discharging
magisterial functions in the
Presidency of Fort St. George or
elsewhere, unless such headman is
a Magistrate exercising the
powers of a Magistrate under the
Code of Criminal Procedure, 1882
(10 of 1882).”
26. Section 27 of the Evidence Act carves out an
exception.
27. In Law of Evidence by M. Monir, 17th Edition,
page 555, we notice the following discussion
regarding the distinction between Section 25 on
the one hand and Section 26 other hand:
“… The section deals with
confessions which are made not to
Police Officers but to persons
other than Police Officers, e.g.,
34
to a fellow prisoner, a doctor or
a visitor, and makes such
confessions inadmissible if they
were made whilst the accused was
in the custody of a Police
Officer. In section 25 the
criterion for excluding a
confession is the answer to the
question. “To whom was the
confession made?” If the answer
is that it was made to a Police
Officer, the confession is
absolutely excluded from
evidence. On the other hand, the
criterion adopted in section 26
for excluding a confession is the
answer to the question. “Under
what circumstances was the
confession made?” if the answer
is that it was made whilst the
accused was in the custody of a
Police Officer, the law lays down
that such confession shall be
excluded from evidence, unless it
was made in the immediate
presence of a Magistrate.”
28. Section 30 of the Evidence Act read as
follows:
35
“30. Consideration of proved
confession affecting person
making it and others jointly
under trial for same offence.—
When more persons than one are
being tried jointly for the same
offence, and a confession made by
one of such persons affecting
himself and some other of such
persons is proved, the Court may
take into consideration such
confession as against such other
person as well as against the
person who makes such confession.
Explanation.—“Offence”, as used
in this section, includes the
abetment of, or attempt to commit
the offence.”
29. While on confession, it is important to
understand as to what will amount to a
confession. The Privy Council in Pakala Narayana
Swami v. Empero r8:
“… Moreover, a confession must
either admit in terms the
offence, or at any rate
substantially all the facts which
8(1939) PC 47 (20.01.1939)
36
constitute the offence. An
admission of a gravely
incriminating fact, even a
conclusively incriminating fact
is not of itself a confession,
e.g. an admission that the
accused is the owner of and was
in recent possession of the knife
or revolver which caused a death
with no explanation of any other
man's possession. Some confusion
appears to have been caused by
the definition of 'confession' in
Article 22 of Stephen's "Digest
of the Law of Evidence" which
defines a confession as a
admission made iafc (sic) any
time by a person charged with a
crime stating or suggesting the
inference that he committed that
crime. If the surrounding
articles are examined it will be
apparent that the learned author
after dealing with admissions
generally is applying himself to
admissions in criminal cases, and
for this purpose defines
confessions so as to cover all
such admissions, in order to have
a general term for use in the
three following articles,
confession secured by inducement,
made upon oath, made under a
promise of secrecy. The
37
definition is not contained in
the Evidence Act, 1872: and in
that Act it would not be
consistent with the natural use
of language to construe
confession as a statement by an
accused "suggesting the inference
that he committed" the crime.”
30. This view of the Privy Council has gained
acceptance of this Court in many decisions. They
include Palvinder Kaur v. State of Punja b9 and
Veera Ibrahim v. State of Maharashtr a10.
31. A Full Court of this Court, in the decision
in M.P. Sharma and 4 others v. Satish Chandra,
Distt. Magistrate, Delhi and 4 others 11,
considered the scope of the expression contained
in Article 20(3) of the Constitution of India
which mandates that no person accused of any
9 AIR 1952 SC 354
10 AIR 1976 SC 1167
11 AIR 1954 SC 300
38
offence shall be compelled to be a witness
against himself:
“Broadly stated the guarantee in
Art.20(3) is against “testimonial
compulsion”. But there is no
reason to confine it to the oral
evidence of a person standing his
trial for an offence when called
to the witness-stand. The
protection afforded to an accused
in so far as it is related to the
phrase “to be a witness” is not
merely in respect of testimonial
compulsion in the Court room but
may well extend to compelled
testimony previously obtained
from him. It is available,
therefore, to a person against
whom a formal accusation relating
to the commission of an offence
has been levelled which is the
normal course may result in
prosecution.
Considered in this light, the
guarantee under Article 20(3)
would be available to person
against whom A First Information
Report has been recorded as
accused therein. It would extend
to any compulsory process for
production of evidentiary
documents which ae reasonable
39
likely to support a prosecution
against them.”
(Emphasis supplied)
32. In State of Bombay v. Kathi Kalu Ogha d12, a
Bench of 11 learned Judges of this Court had an
occasion to consider the true width of the
expression “person accused of an offence”.
Speaking on behalf of the majority, Sinha, C.J.,
held as follows:
“14. In this connection the
question was raised before us
that in order to bring the case
within the prohibition of clause
(3) of Article 20, it is not
necessary that the statement
should have been made by the
accused person at a time when he
fulfilled that character; it is
enough that he should have been
an accused person at the time
when the statement was sought to
be proved in court, even though
he may not have been an accused
person at the time he had made
that statement. The correctness
12 AIR 1961 SC 1808
40
of the decision of the
Constitution Bench of this Court
in the case of Mohamed
Dastagirv. State of
Madras [(1960) 3 SCR 116] was
questioned because it was said
that it ran counter to the
observations of the Full Court
in Sharma case [(1954) SCR 1077].
In the Full Court decision of
this Court this question did not
directly arise; nor was it
decided. On the other hand, this
Court, i n Sharma cas e [(1954) SCR
1077] held that the protection
under Article 20(3) of the
Constitution is available to a
person against whom a formal
accusation had been levelled,
inasmuch as a First Information
Report had been lodged against
him. Sharma case [(1954) SCR
1077] therefore, did not decide
anything to the contrary of what
this Court said in Mohamed
Dastagir v. State of
Madras [(1960) 3 SCR 116]. The
latter decision in our opinion
lays down the law correctly.
15. In order to bring the
evidence within the inhibitions
of clause (3) of Article 20 it
must be shown not only that the
41
person making the statement was
an accused at the time he made it
and that it had a material
bearing on the criminality of the
maker of the statement, but also
that he was compelled to make
that statement. …”
(Emphasis supplied)
33. The Court also laid down its conclusions in
paragraph-16:
”16. In view of these
considerations, we have come to
the following conclusions:
(1) An accused person cannot be
said to have been compelled to be
a witness against himself simply
because he made a statement while
in police custody, without
anything more. In other words,
the mere fact of being in police
custody at the time when the
statement in question was made
would not, by itself, as a
proposition of law, lend itself
to the inference that the accused
was compelled to make the
statement, though that fact, in
conjunction with other
circumstances disclosed in
42
evidence in a particular case,
would be a relevant consideration
in an enquiry whether or not the
accused person had been compelled
to make the impugned statement.
(2) The mere questioning of an
accused person by a police
officer, resulting in a voluntary
statement, which may ultimately
turn out to be incriminatory, is
not “compulsion”.
(3) “To be a witness” is not
equivalent to “furnishing
evidence” in its widest
significance; that is to say, as
including not merely making of
oral or written statements but
also production of documents or
giving materials which may be
relevant at a trial to determine
the guilt or innocence of the
accused.
(4) Giving thumb impressions or
impressions of foot or palm or
fingers or specimen writings or
showing parts of the body by way
of identification are not
included in the expression “to be
a witness”.
(5) “To be a witness” means
imparting knowledge in respect of
relevant facts by an oral
statement or a statement in
43
writing, made or given in court
or otherwise.
(6) “To be a witness” in its
ordinary grammatical sense means
giving oral testimony in court.
Case law has gone beyond this
strict literal interpretation of
the expression which may now bear
a wider meaning, namely, bearing
testimony in court or out of
court by a person accused of an
offence, orally or in writing.
(7) To bring the statement in
question within the prohibition
of Article 20(3), the person
accused must have stood in the
character of an accused person at
the time he made the statement.
It is not enough that he should
become an accused, any time after
the statement has been made.”
(Emphasis supplied)
34. Section 161 of the Cr.PC has the following
marginal note:
“Examination of witnesses by
police”
44
35. Can a person, who is accused of an offence,
be examined under Section 161 of the Cr.PC? As
we have seen, when a person is named as an
accused in First Information Report, he would
stand in the shoes of an accused person. Does
not the marginal note of Section 161 of the
Cr.PC confine the power to the Police Officer to
examine the witnesses and will it be denied to
him qua a person who is already named as an
accused? These questions are no longer res
integra. In Nandini Satpathy v. P.L. Dani and
anothe r13, a Bench of three learned Judges was
dealing with a case which arose from proceedings
initiated against the appellant therein under
Section 179 of the IPC. In the course of the
judgment, speaking on behalf of the Bench, this
is what Justice V.R. Krishna Iyer had to say:
13 AIR 1978 SC 1025
45
“32. We will now answer the
questions suggested at the
beginning and advert to the
decisions of our Court which set
the tone and temper of the
“silence” clause and bind us
willy-nilly. We have earlier
explained why we regard Section
161(2) as a sort of parliamentary
commentary on Article 20(3). So,
the first point to decide is
whether the police have power
under Sections 160 and 161 of the
CrPC to question a person who,
then was or, in the future may
incarnate as, an accused person.
The Privy Council and this Court
have held that the scope of
Section 161 does include actual
accused and suspects and we
deferentially agree without
repeating the detailed reasons
urged before us by counsel.”
(Emphasis supplied)
36. Thereafter, after referring to Pakala
Narayana Swami (supra), regarding the scope of
the word ‘confession’ the Court held inter alia
as follows:
46
“33. … We hold that “any person
supposed to be acquainted with
the facts and circumstances of
the case” includes an accused
person who fills that role
because the police suppose him to
have committed the crime and
must, therefore, be familiar with
the facts. The supposition may
later prove a fiction but that
does not repel the section. Nor
does the marginal note
“examination of witnesses by
police” clinch the matter. A
marginal note clears ambiguity
but does not control meaning.
Moreover, the suppositions
accused figures functionally as a
witness. “To be a witness”, from
a functional angle, is to impart
knowledge in respect of a
relevant fact, and that is
precisely the purpose of
questioning the accused under
Section 161 CrPC. …”
37. Thus, quite clearly, a person who stands in
the shoes of the accused being named in the
First Information Report, can be examined by the
47
Police Officer under Section 161 of the Cr.PC.
The next question however is, as to whether the
statement given by a person who stands in the
shoes of an accused and who gives a statement,
whether the statement is admissible in law? It
is here that Section 162 of the Code comes into
play:
“162. Statements to police not to
be signed: Use of statements in
evidence.
(1) No statement made by any
person to a police officer in the
course of an investigation under
this Chapter, shall, if reduced
to writing, be signed by the
person making it; nor shall any
such statement or any record
thereof, whether in a police
diary or otherwise, or any part
of such statement or record, be
used for any purpose, save as
hereinafter provided, at any
inquiry or trial in respect of
any offence under investigation
48
at the time when such statement
was made: Provided that when any
witness is called for the
prosecution in such inquiry or
trial whose statement has been
reduced into writing as
aforesaid, any part of his
statement, if duly proved, may be
used by the accused, and with the
permission of the Court, by the
prosecution, to contradict such
witness in the manner provided by
section 145 of the Indian
Evidence Act, 1872 (1 of 1872 );
and when any part of such
statement is so used, any part
thereof may also be used in the
re- examination of such witness,
but for the purpose only of
explaining any matter referred to
in his cross- examination.
(2) Nothing in this section shall
be deemed to apply to any
statement falling within the
provisions of clause (1) of
section 32 of the Indian Evidence
Act, 1872 (1 of 1872), or to
affect the provisions of section
27 of that Act. Explanation.- An
omission to state a fact or
circumstance in the statement
referred to in sub- section (1)
49
may amount to contradiction if
the same appears to be
significant and otherwise
relevant having regard to the
context in which such omission
occurs and whether any omission
amounts to a contradiction in the
particular context shall be a
question of fact.”
38. A Bench of three learned Judges of this
Court in Mahabir Mandal and others v. State of
Biha r14, had this to say:
“39. Coming to the case of Kasim,
we find that there is no reliable
evidence as may show that Kasim was
present at the house of Mahabir on
the night of occurrence and took
part in the disposal of the dead
body of Indira. Reliance was placed
by the prosecution upon the
statement alleged to have been made
by Kasim and Mahadeo accused at the
police station in the presence of
Baijnath PW after Baijnath had
lodged report at the police
station. Such statements are
legally not admissible in evidence
and cannot be used as substantive
14 AIR 1972 1331
50
evidence. According to Section 162
of the Code of Criminal Procedure,
no statement made by any person to
a police officer in the course of
an investigation shall be signed by
the person making it or used for
any purpose at any enquiry or trial
in respect of any offence under
investigation at the time when such
statement was made. The only
exception to the above rule is
mentioned in the proviso to that
section. According to the proviso,
when any witness is called for the
prosecution in the enquiry or
trial, any part of his statement,
if duly proved, may be used by the
accused and with the permission of
the court by the prosecution, to
contradict such witness in the
manner provided by Section 145 of
the Indian Evidence Act and when
any part of such statement is so
used, any part thereof may also be
used in the re-examination of such
witness for the purpose only of
explaining any matter referred to
in his cross-examination. The above
rule is, however, not applicable to
statements falling within the
provisions of Clause 1 of Section
32 of the Indian Evidence Act or to
affect the provisions of Section 27
of that Act. It is also well
51
established that the bar of
inadmissibility operates not only
on statements of witnesses but also
on those of the accused
(see Narayan Swami v. Emperor [AIR
1939 PC 47]). Lord Atkin, in that
case, while dealing with Section
162 of the Code of Criminal
Procedure observed:
“Then follows the section in
question which is drawn in the
same general way relating to ‘any
person.’ That the words in their
ordinary meaning would include
any person though he may
thereafter be accused seems
plain. Investigation into crime
often includes the examination of
a number or persons none of whom
or all of whom may be suspected
at the time. The first words of
the section prohibiting the
statement if recorded from being
signed must apply to all the
statements made at the time and
must therefore apply to a
statement made by a person
possibly not then even suspected
but eventually accused.”
Reference may also be made to
Section 26 of the Indian Evidence
Act, according to which no
confession made by any person
52
whilst he is in the custody of a
police officer, unless it be made
in the immediate presence of a
Magistrate, shall be proved against
such person. There is nothing in
the present case to show that the
statements which were made by Kasim
and Mahadeo accused on September
18, 1963, at the police station in
the presence of Baijnath resulted
in the discovery of any
incriminating material as may make
them admissible under Section 27 of
the Indian Evidence Act. As such,
the aforesaid statements must be
excluded from consideration.”
(Emphasis supplied)
39. Therefore, the combined effect of these
provisions can be summarized as follows:
Unless a person is accused of an offence, he
cannot claim the protection of Article 20(3) of
the Constitution of India.
40. Such a person, viz., person who is named in
the FIR, and therefore, the accused in the eyes
of law, can indeed be questioned and the
statement is taken by the Police Officer. A
confession, which is made to a Police Officer,
would be inadmissible having regard to Section
25 of the Evidence Act. A confession, which is
vitiated under Section 24 of the Evidence Act
would also be inadmissible. A confession unless
it fulfills the test laid down in Pakala
Narayana Swami (supra) and as accepted by this
Court, may still be used as an admission under
Section 21 of the Evidence Act. This, however,
is subject to the bar of admissibility of a
statement under Section 161 of the Cr.PC.
Therefore, even if a statement contains
admission, the statement being one under Section
161, it would immediately attract the bar under
Section 162 of the Cr.PC.
41. Bar under Section 162 Cr.PC, no doubt,
operates in regard to the statement made to a
Police Officer in between two points of time,
viz., from the beginning of the investigation
till the termination of the same. In a case
where statement containing not a confession but
admission, which is otherwise relevant and which
is made before the investigation commences, may
be admissible. We need not, however, say
anything more.
42. In Central Bureau of Investigation v. V.C.
Shukla and other AIR 1998 SC 1406,
a Bench of three learned
Judges, after approving Pakala Narayana Swami
(supra), had occasion to consider the
distinction between confession and admission.
This Court went on to hold as follows:
“45. It is thus seen that only
voluntary and direct
acknowledgement of guilt is a
confession but when a confession
falls short of actual admission of
guilt it may nevertheless be used
as evidence against the person who
made it or his authorised agent as
an “admission” under Section 21.
The law in this regard has been
clearly — and in our considered
view correctly — explained
in Monir's Law of Evidence(New Edn.
at pp. 205 and 206), on which Mr
Jethmalani relied to bring home his
contention that even if the entries
are treated as “admission” of the
Jains still they cannot be used
against Shri Advani. The relevant
passage reads as under:
“The distinction between
admissions and confessions is of
considerable importance for two
reasons. Firstly, a statement
made by an accused person, if it
is an admission, is admissible in
evidence under Section 21 of the
Evidence Act, unless the
statement amounts to a confession
and was made to a person in
authority in consequence of some
improper inducement, threat or
promise, or was made to a Police
Officer, or was made at a time
when the accused was in custody
of a Police Officer. If a
statement was made by the accused
in the circumstances just
mentioned its admissibility will
depend upon the determination of
the question whether it does not
amount to a confession. If it
amounts to a confession, it will
be inadmissible, but if it does
not amount to a confession, it
will be admissible under Section
21 of the Act as an admission,
provided that it suggests an
inference as to a fact which is
in issue in, or relevant to, the
case and was not made to a Police
Officer in the course of an
investigation under Chapter XIV
of the Code of Criminal
Procedure. Secondly, a statement
made by an accused person is
admissible against others who are
being jointly tried with him only
if the statement amounts to a
confession. Where the statement
falls short of a confession, it
is admissible only against its
maker as an admission and not
against those who are being
jointly tried with him.
Therefore, from the point of view
of Section 30 of the Evidence Act
also the distinction between an
admission and a confession is of
fundamental importance.””
(Emphasis supplied)
43. Section 21 of the Evidence Act provides as
follows:
”21. Proof of admissions against
persons making them, and by or on
their behalf.—Admissions are
relevant and may be proved as
against the person who makes
them, or his representative in
interest; but they cannot be
proved by or on behalf of the
person who makes them or by his
representative in interest,
except in the following cases:—
(1) An admission may be proved by
or on behalf of the person
making it, when it is of such
a nature that, if the person
making it were dead, it would
be relevant as between third
persons under section 32.
(2) An admission may be proved by
or on behalf of the person
making it, when it consists of
a statement of the existence
of any state of mind or body,
relevant or in issue, made at
or about the time when such
state of mind or body existed,
and is accompanied by conduct
rendering its falsehood
improbable.
(3) An admission may be proved by
or on behalf of the person
making it, if it is relevant
otherwise than as an
admission.”
44. Thus, what amounts to an admission can be
used against the maker of the admission or his
representative in interest. As to what
constitutes an admission is to be found in
Section 17 of the Evidence Act, which defines
admission as follows:
“17. Admission defined.—An
admission is a statement, oral or
documentary or contained in
electronic form, which suggests
any inference as to any fact in
issue or relevant fact, and which
is made by any of the persons,
and under the circumstances,
hereinafter mentioned.”
59
45. In Bharat Singh and others v. Mst.
Bhagirath i16, the true nature of the evidentiary
value of admission, and whether without
confronting the maker of the admission, it could
be used, has been referred to and this is what
this Court had to say:
“19. Admissions have to be
clear if they are to be used
against the person making them.
Admissions are substantive
evidence by themselves, in view
of Sections 17, and 21 of the
Indian Evidence Act, though they
are not conclusive proof of the
matters admitted. We are of
opinion that the admissions duly
proved are admissible evidence
irrespective of whether the party
making them appeared in the
witness box or not and whether
that party when appearing as
witness was confronted with those
statements in case it made a
statement contrary to those
admissions. The purpose of
contradicting the witness under
Section 145 of the Evidence Act
16 AIR 1966 SC 405
60
is very much different from the
purpose of proving the admission.
Admission is substantive evidence
of the fact admitted while a
previous statement used to
contradict a witness does not
become substantive evidence and
merely serves the purpose of
throwing doubt on the veracity of
the witness. What weight is to be
attached to an admission made by
a party is a matter different
from its use as admissible
evidence.”
(Emphasis supplied)
46. From the statement of the law contained in
V.C. Shukla and others (supra), it becomes clear
as to what constitutes confession and how if it
does not constitute confession, it may still be
an admission. Being an admission, it may be
admissible under the Evidence Act provided that
it meets the requirements of admission as
defined in Section 17 of the Evidence Act.
61
However, even if it is an admission, if it is
made in the course of investigation under the
Cr.PC to a Police Officer, then, it will not be
admissible under Section 162 of the Cr.PC as it
clearly prohibits the use of statement made to a
Police Officer under Section 161 of the Cr.PC
except for the purpose which is mentioned
therein. Statement given under Section 161, even
if relevant, as it contains an admission, would
not be admissible, though an admission falling
short of a confession which may be made
otherwise, may become substantive evidence.
47. A confession made to a Police Officer is
clearly inadmissible. The statement relied on by
respondent is dated 11.04.1996 and the appellant
was arrested on 11.04.1996. This is pursuant to
the FIR registered on 10.04.1996. The statement
dated 11.04.1996 is made to a Police Officer.
62
This is clear from the statement as also letter
dated 10.08.1996 (Annexure R/6) produced by the
respondent. It is clearly during the course of
the investigation. Even if it does contain
admissions by virtue of Section 162 and as
interpreted by this Court in V.C. Shukla and
others (supra), such admissions are clearly
inadmissible.
48. If the statement made by the appellant on
11.04.1996 is inadmissible, then, there will
only be the statement of the co-accused
available to be considered in deciding whether
the charge has to be framed against the
appellant or not. It is here that the law laid
down by this Court in Suresh Budharmal Kalani
Alias Pappu Kalani (supra)becomes applicable.
49. We also notice the following statement in
judgment rendered by Bench of seven learned
Judges in Haricharan Kurmi v. Sate of Biha r17:
“As a result of the provisions
contained in S.30, Evidence Act,
the confession of a co-accused
has to be regarded as amounting
to evidence in a general way,
because whatever is considered by
the Court is evidence;
circumstances which are
considered by the Court as well
as probabilities do amount to
evidence in that generic sense.
Thus, though confession may be
regarded as evidence in that
generic sense because of the
provisions of S.30, the fact
remains that it is not evidence
as defined by S.3 of the Act. The
result, therefore, is that in
dealing with a case against an
accused person, the Court cannot
start with the confession of a
co-accused person; it must begin
with other evidence adduced by
the prosecution and after it has
formed its opinion with regard to
the quality and effect of the
said evidence, then it is
17 AIR 1964 SC 1184 (quoted portion at page 1184)
permissible to turn to the
confession in order to receive
assurance to the conclusion of
guilt which the judicial mind is
about to reach on the said other
evidence.
Thus, the confession of a coaccused
person cannot be treated
as substantive evidence and can
be pressed into service only when
the Court is inclined to accept
other evidence and feels the
necessity of seeking for an
assurance in support of its
conclusions deducible from the
said evidence. In criminal cases
where the other evidence adduced
against an accused person is
wholly unsatisfactory and the
prosecution seeks to rely on the
confession of a co-accused
person, the presumption of
innocence which is the basis of
criminal jurisprudence assists
the accused person and compels
the Court to render the verdict
that the charge is not proved
against him, and so, he is
entitled to the benefit of
doubt.”
50. Proceeding on the basis that it is a
confession by a co-accused and still proceeding
further that there is a joint trial of the
accused and that they are accused of the same
offences (ignoring the fact that other accused
are absconding and appellant appears to be
proceeded against on his own) and having found
that there is no recovery from the residence of
the appellant of the counterfeit notes and that
there is no other material on the basis of which
even a strong suspicion could be aroused, we
would find that the mandate of the law requires
us to free the appellant from being proceeded
against. Accordingly, we allow the appeal and
the petition filed under Section 482 of the
Cr.PC. The Order impugned passed by the Sessions
Judge framing the charge against the appellant
will stand set aside and the appellant will
stand discharged.
…………………………………………………
[ASHOK BHUSHAN, J.]
…………………………………………………
[K.M. JOSEPH, J.]
NEW DELHI;
APRIL 24, 2019.
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