Code of Criminal Procedure, 1973: s.482 – Petition filed by appellant challenging the complaint and the order passed by Sessions Court rejecting his prayer to discharge him of offence under ss.489B and 489C IPC – Prosecution case was that accused no.1 to 3 were selling fake foreign currency note as original at public place – When they were caught, they stated that they collected notes from the residence of accused no.4-appellant – Appellant contended before Sessions judge that apart from the statements of co-accused, there was no material to proceed against him and that only on the basis of statement of co-accused, no case could be made out against him and that the statement made by co-accused was barred by s.25 of Evidence Act – Sessions judge held that whole recovery procedure was made in the presence of panchas and rejected the plea for discharge as there was some evidence against him – High Court held that it was premature to say anything in respect of credibility of the statement made by the Investigating Officer in the complaint at that stage and it could be considered only at the trial and that the statements of co-accused recorded by the Investigating Officer showed prima facie involvement of the appellant in the offence and no case was made out to interfere under s.482 – On appeal, held: At the stage of framing the charge, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial – In the instant case, the co-accused were absconding – The State did not seriously dispute the fact that there was no recovery from the residence of the appellant of the counterfeit notes and that there was no other material on the basis of which even a strong suspicion could be aroused – The mandate of the law requires to free the appellant from being proceeded against – Therefore, order passed by the Sessions Judge framing the charge against the appellant is liable to be set aside and the appellant is entitled to discharge – Penal Code, 1860 – ss.489B and 489C.
Code of Criminal Procedure, 1973: ss.161, 162 – Inadmissibility of statement made before the Police Officer – Held: Bar under s.162 operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same – In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible – What amounts to an admission can be used against the maker of the admission or his representative in interest – As to what constitutes an admission is to be found in s.17 of the Evidence Act – Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in s.17 of the Evidence Act – However, even if it is an admission, if it is made in the course of investigation under the Cr.PC to a Police Officer, then, it will not be admissible under s.162 as it clearly prohibits the use of statement made to a Police Officer under s.161 except for the purpose which is mentioned therein – Statement given under s.161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence – Evidence Act, 1872 – s.17. Evidence Act, 1872: s.25 – Confession made to police officer – Admissibility of – Held: s.25 of the Evidence Act renders inadmissible a confession made to a Police Officer – It declares in fact that no confession made to a Police Officer shall be proved as against a person accused of any offence – When a person is named as an accused in First Information Report, he would stand in the shoes of an accused person – A person who stands in the shoes of the accused being named in the First Information Report, can be examined by the Police Officer under s.161 of the Cr.PC.– A person who is named in the FIR, and therefore, the accused in the eyes of law, can indeed be questioned and the statement is taken by the Police Officer – A confession, which is made to a Police Officer, would be inadmissible having regard to s.25 of the Evidence Act – A confession, which is vitiated under s.24 of the Evidence Act would also be inadmissible – Even if a statement contains admission, the statement being one under s.161, it would immediately attract the bar under s.162 of the Cr.PC. – Code of Criminal Procedure, 1973 – ss.161 and 162.
Allowing the appeal, the Court
HELD: 1. At the stage of framing the charge the Court is not to act as a mere post office. The Court must indeed sift the 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. [Para 21][717-G-H; 718-A-B]
2.1 Section 25 of the Evidence Act, 1872 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. A confession, which is vitiated under Section 24 of the Evidence Act would also be inadmissible. Even if a statement contains admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 of the Cr.PC. Bar under Section
162 Cr.PC, no doubt, operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. What amounts to an admission can be used against the maker of the admission or his representative in interest. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Cr.PC to a Police Officer, then, it will not be admissible under Section 162 of the Cr.PC as it clearly prohibits the use of statement made to a Police Officer under Section 161 of the Cr.PC except for the purpose which is mentioned therein. Statement given under Section 161, even if relevant, as it contains an admission, would not be admissible, though an admission falling short of a confession which may be made otherwise, may become substantive evidence. [Paras 25, 40, 41, 44, 46][719-A-B; 727-F-H; 728-A-B; 729-G-H; 730-G-H; 731-A-B]
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 : [1962] SCR 10 ; Palvinder Kaur v. State of Punjab AIR 1952 SC 354 : [1952] SCR 94 ; M.P.
Sharma and 4 others v. Satish Chandra, Distt.
Magistrate, Delhi and 4 others AIR 1954 SC 300 ; Bharat Singh and others v. Mst. Bhagirathi AIR 1966 SC 405 : [1966] SCR 606 ; Pakala Narayana Swami v. Emperor (1939) PC 47 ; Mahabir Mandal and others v. State of Bihar AIR 1972 1331 : [1972] 3 SCR 639 – relied on.
2.2 FIR was registered on 10.04.1996. The statement relied on by respondent is dated 11.04.1996 made to a Police Officer and the appellant was arrested on 11.04.1996. It is clearly during the course of the investigation. Even if it does contain admissions by virtue of Section 162, such admissions are clearly inadmissible. If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the coaccused available to be considered in deciding whether the charge has to be framed against the appellant or not. Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are 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. The mandate of the law requires to free the appellant from being proceeded against. [Paras 47, 48, 50] [731-B-D; 732-D-E]
Suresh Budharmal Kalani Alias Pappu Kalani v. State of Maharashtra (1998) 7 SCC 337 : [1998] 1 Suppl. SCR 608 ; Central Bureau of Investigation v. V.C. Shukla and others AIR 1998 SC 1406 : [1999] 2 SCR
431 ; Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167 : [1976] 3 SCR 672 ; Nandini Satpathy v. P.L. Dani and another AIR 1978 SC 1025 : [1978] 3
SCR 608 ; Haricharan Kurmi v. Sate of Bihar AIR 1964 SC 1184 : [1964] SCR 623 – relied on.
Bur Singh v. The Crown (1998) 7 SCC 337 (1930) ILR
11 Lash 555 ; Bachan Singh v. State of Punjab 1981 SCC Online P&H 47 ; Umashanker v. State of
Chhatisgarh (2001) 9 SCC 642 : [2001] 3 Suppl. SCR
646 ; State of Bihar v. Ramesh Singh AIR 1977 SC 2018 : [1978] 1 SCR 257 ; Union of India v. Prafulla Kumar Samal and another AIR 1979 SC 366 :
[1979] 2 SCR 229 ; Kashmira Singh v. State of
Madhya Pradesh AIR 1952 SC 159 :1952 SCR 526
– referred to.
Law of Evidence by M. Monir, 17th Edition – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.