DIPAKBHAI JAGDISHCHANDRA PATEL versus STATE OF GUJARAT AND ANOTHER

[2019] 6 S.C.R. 701

DIPAKBHAI JAGDISHCHANDRA PATEL

STATE OF GUJARAT AND ANOTHER

(Criminal Appeal No. 714 of 2019)

APRIL 24, 2019

[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]

Code of Criminal Procedure, 1973: s.482 – Petition filed byappellant challenging the complaint and the order passed bySessions Court rejecting his prayer to discharge him of offenceunder ss.489B and 489C IPC – Prosecution case was that accusedno.1 to 3 were selling fake foreign currency note as original atpublic place – When they were caught, they stated that they collectednotes from the residence of accused no.4-appellant – Appellantcontended before Sessions judge that apart from the statements ofco-accused, there was no material to proceed against him and thatonly on the basis of statement of co-accused, no case could bemade out against him and that the statement made by co-accusedwas barred by s.25 of Evidence Act – Sessions judge held that wholerecovery procedure was made in the presence of panchas andrejected the plea for discharge as there was some evidence againsthim – High Court held that it was premature to say anything inrespect of credibility of the statement made by the InvestigatingOfficer in the complaint at that stage and it could be consideredonly at the trial and that the statements of co-accused recorded bythe Investigating Officer showed prima facie involvement of theappellant in the offence and no case was made out to interfereunder s.482 – On appeal, held: At the stage of framing the charge,the Court must be satisfied that with the materials available, caseis made out for the accused to stand trial – In the instant case, theco-accused were absconding – The State did not seriously disputethe fact that there was no recovery from the residence of the appellantof the counterfeit notes and that there was no other material on thebasis of which even strong suspicion could be aroused – Themandate of the law requires to free the appellant from beingproceeded against – Therefore, order passed by the Sessions Judgeframing the charge against the appellant is liable to be set aside

Aand 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 PoliceBOfficer in between two points of time, viz., from the beginning ofthe investigation till the termination of the same – In case wherestatement containing not confession but admission, which isotherwise relevant and which is made before the investigationcommences, may be admissible – What amounts to an admissioncan be used against the maker of the admission or his representativeCin interest – As to what constitutes an admission is to be found ins.17 of the Evidence Act – Being an admission, it may be admissibleunder the Evidence Act provided that it meets the requirements ofadmission as defined in s.17 of the Evidence Act – However, even ifit is an admission, if it is made in the course of investigation underDthe Cr.PC to Police Officer, then, it will not be admissible unders.162 as it clearly prohibits the use of statement made to PoliceOfficer under s.161 except for the purpose which is mentionedtherein – Statement given under s.161, even if relevant, as it containsan admission, would not be admissible, though an admission fallingshort of confession which may be made otherwise, may becomeEsubstantive 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 rendersinadmissible confession made to Police Officer – It declares infact that no confession made to Police Officer shall be proved asFagainst person accused of any offence – When person is namedas an accused in First Information Report, he would stand in theshoes of an accused person – person who stands in the shoes ofthe accused being named in the First Information Report, can beexamined by the Police Officer under s.161 of the Cr.PC.– personGwho is named in the FIR, and therefore, the accused in the eyes oflaw, can indeed be questioned and the statement is taken by thePolice Officer – confession, which is made to 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 wouldalso be inadmissible – Even if statement contains admission, theH

statement being one under s.161, it would immediately attract thebar 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 isnot to act as mere post office. The Court must indeed sift thematerial before it. The material to be sifted would be the materialwhich is produced and relied upon by the prosecution. The siftingis not to be meticulous in the sense that the Court dons the mantleof the Trial Judge hearing arguments after the entire evidencehas been adduced after full-fledged trial and the question is notwhether the prosecution has made out the case for the convictionof the accused. All that is required is, the Court must be satisfiedthat with the materials available, case is made out for the accusedto stand trial. [Para 21][717-G-H; 718-A-B]

2.1 Section 25 of the Evidence Act, 1872 rendersinadmissible confession made to Police Officer. It declares infact that no confession made to Police Officer shall be provedas against person accused of any offence. confession, which isvitiated under Section 24 of the Evidence Act would also beinadmissible. Even if statement contains admission, thestatement being one under Section 161, it would immediatelyattract the bar under Section 162 of the Cr.PC. Bar under Section162 Cr.PC, no doubt, operates in regard to the statement madeto Police Officer in between two points of time, viz., from thebeginning of the investigation till the termination of the same. Ina case where statement containing not confession but admission,which is otherwise relevant and which is made before theinvestigation commences, may be admissible. What amounts toan admission can be used against the maker of the admission orhis representative in interest. Being an admission, it may beadmissible under the Evidence Act provided that it meets therequirements of admission as defined in Section 17 of theEvidence Act. However, even if it is an admission, if it is made inthe course of investigation under the Cr.PC to Police Officer,then, it will not be admissible under Section 162 of the Cr.PC asit clearly prohibits the use of statement made to Police Officerunder Section 161 of the Cr.PC except for the purpose which is

Amentioned therein. Statement given under Section 161, even ifrelevant, as it contains an admission, would not be admissible,though an admission falling short of confession which may bemade otherwise, may become substantive evidence. [Paras 25,40, 41, 44, 46][719-A-B; 727-F-H; 728-A-B; 729-G-H;730-G-H; 731-A-B]B

State of Bombay v. Kathi Kalu Oghad AIR 1961 SC1808 : [1962] SCR 10 ; Palvinder Kaur v. State ofPunjab 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 ;CBharat Singh and others v. Mst. Bhagirathi AIR 1966SC 405 : [1966] SCR 606 ; Pakala Narayana Swami v.Emperor (1939) PC 47 ; Mahabir Mandal and othersv. State of Bihar AIR 1972 1331 : [1972] 3 SCR 639– relied on.

2.2 FIR was registered on 10.04.1996. The statement reliedon by respondent is dated 11.04.1996 made to Police Officerand the appellant was arrested on 11.04.1996. It is clearly duringthe course of the investigation. Even if it does contain admissionsby virtue of Section 162, such admissions are clearly inadmissible.EIf the statement made by the appellant on 11.04.1996 isinadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the chargehas to be framed against the appellant or not. Proceeding on thebasis that it is confession by co-accused and still proceedingfurther that there is joint trial of the accused and that they areFaccused of the same offences (ignoring the fact that other accusedare absconding and appellant appears to be proceeded againston his own) and having found that there is no recovery from theresidence of the appellant of the counterfeit notes and that thereis no other material on the basis of which even strong suspicionGcould be aroused. The mandate of the law requires to free theappellant from being proceeded against. [Paras 47, 48, 50][731-B-D; 732-D-E]

Suresh Budharmal Kalani Alias Pappu Kalani v. Stateof Maharashtra (1998) 7 SCC 337 : [1998] 1 Suppl.HSCR 608 ; Central Bureau of Investigation v. V.C.

DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OFGUJARAT AND ANOTHER

Shukla and others AIR 1998 SC 1406 : [1999] 2 SCR431 ; Veera Ibrahim v. State of Maharashtra AIR 1976SC 1167 : [1976] 3 SCR 672 ; Nandini Satpathy v. P.L.Dani and another AIR 1978 SC 1025 : [1978] 3SCR 608 ; Haricharan Kurmi v. Sate of Bihar AIR 1964SC 1184 : [1964] SCR 623 – relied on.

Bur Singh v. The Crown (1998) 7 SCC 337 (1930) ILR11 Lash 555 ; Bachan Singh v. State of Punjab 1981SCC Online P&H 47 ; Umashanker v. State ofChhatisgarh (2001) 9 SCC 642 : [2001] 3 Suppl. SCR 646 ; State of Bihar v. Ramesh Singh AIR 1977 SC2018 : [1978] 1 SCR 257 ; Union of India v. PrafullaKumar Samal and another AIR 1979 SC 366 :[1979] 2 SCR 229 ; Kashmira Singh v. State ofMadhya Pradesh AIR 1952 SC 159 :1952 SCR 526– referred to.

Law of Evidence by M. Monir, 17[th] Edition – referredto.

BCRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 714 of 2019.

From the Judgment and Order dated 05.05.2017 of the High Courtof Gujarat at Ahmedabad in Special Criminal Application No. 1230 of2009.C

Nakul Dewan, Sr. Adv., Pradhuman Gohil, Mrs. Taruna SinghGohil, Himanshu Chaubey, Ms. Tanvi Bhatnagar, Kartik Prasad, Advs.for the Appellant.

Ms. Hemantika Wahi, Ms. Jesal Wahi, Ms. Vishakha, Ms. PujaSingh, Advs. for the Respondents.D

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. This appeal by special leave granted by this Court is directedagainst the judgment of the High Court of Gujarat at AhmedabadEdismissing the Special Criminal Application No.1230 of 2009 filed by theappellant 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 challengingthe complaint and the Order passed by the Sessions Court rejecting theFrequest of the appellant to discharge him of the offences under Sections489B and 489C of the Indian Penal Code, 1860 (hereinafter referred toas ‘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 atabout 13.00, we got information from the superior officer of theATS that Mahamad Rafik Abdul Hamid Kadge of Mumbai andSalim Mahebub Shaikh of Ahmedabad Sahalam, both are sellingfake currency note of Arabian country as original on the roadgoing towards noble building located at the edge of Nehrubridge,

Ashram Road, Ahmedabad on fair rate and therefore, whilereceiving such legal instruction, two panch persons had been calledat the office of ATS and after informing them about suchinformation and they expressed their consent to remain as panchastherefore, after completing the first part panchnama at about 14.00to 14.15 therein, I myself, panchas and PSI Shri NB Jadeja, ShriBR Karavadra, Shri PV Rathod, Shri NV Kapiriya, Shri KK Desaiand Police constable Shri Rameshkumar Sevadas Lashkari,Bhagwatsingh Madarsinh and police Constable AmirkhanRasulkhan and Dashrathsinh Bhagubha etc reached in governmentand private vehicles opposite the Natraj cinema at Ashram Road,Stopping their vehicles there and taking walk reached near NobleBuilding as well as on the road nearby the Petrol pump and foundthat three persons were standing nearby the road and doing sometransaction and while making talk with them, we stopped them atthat place wherein we introduced ourselves as Police and panchasand informed them about personal search and I caught accusedno.1 and while asking his name and address, he stated his nameas Mahamad Rafik Abdul Hamid Kadge residing at SachhvariDagadichawl Golanji Rahil Road, Mumbai-15 and during thesearch, 43 notes of Saudi Arabian Riyal currency of Rs.500/-denomination were found and PSI Shri NB Jadeja caught theaccused no.2 and while asking his name before the panchas, hestated his name as Salimbhai Mahemudbhai Shaikh, residing atinside Shahalam Darwaja, Rasulibad society, Ahmedabad andduring the search 43 notes of Saudi Arabian riyal currency ofRs.500/- denomination were found and police constable ShriBhagwatsinh Madarsinh buckle No. 8927 caught the accused no.3and while asking his name and address, he stated his name isUsmangani Mahamadbhai Malek residing at Musamiyani Chali,Rasulabad Shahalam, Ahmedabad and from his hand, 2 nos. SaudiArabian Riyal currency notes of Rs.500/- denomination were foundand in all total 88 notes were found. While asking them one byone before the panchas regarding such notes, it was found thatno.1 had taken such notes from Mumbai prior to 15 days and hadstated that he talked with his friend Jagdishchandra Patel residingat D-2 Aasiyana Flat, Nawa Vadaj, Ahmedabad to sale him thesefake Riyal currency to as original with fair price and today, after

ABC

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taking such note from the house of Dipak by the accused no.1;handed over it to the accused no.2 and 3 and after preparing thepanchnama of such notes, seized it by packing it in separatepackets and applying seals. Indian currency notes found fromone or two out of them had been returned by way of panchnamaand that panchnama was completed at about (Illegible).

Thus, the aforesaid accused no.1 Mahamad Rafik Abdul HamidKagde, residing at Savri Hagadi Chawl, Golanji Road, Mumbai-15, accused no.2 Salimbhai Mahemudbhai Shaikha, residing atinside Shahalam Darwaja, Rasulabad Society, Ahmedabad,accused no.3 Usmangani Mahamadbhai Malek residing atShahalam, Ahmedabad and accused no.4 Dipak Jagdish Patel,residing at B-2 Aashiyana Flat, Nava Wadaj, Ahmedabad incollusion with each other, showing the fake Saudi Arebiya currencyRiyal of Rs.500/- denomination as original and keeping such notesin their possession to sale such fake currency notes as originalwith fair price, the accused have committed the offence punishableunder Section 489B, of the Indian Penal Code and this is mylegal complaint against these accused persons. The panchas, policepersons and whatever will be come out in the investigation aremy witnesses and the accused no.1,2,3 are arrested today ie, on10.04.1996 at 17.00 o’clock.”

4.Following investigation, the chargesheet came to be filed againstthe appellant inter alia:

PROCEEDINGS BEFORE THE SESSIONS JUDGE

Though the appellant contended before the Sessions Judge thatFapart from the statement of the co-accused, there was no material toproceed against the accused/appellant and that only on the basis of thestatement by co-accused, no case could be made out against the appellant,and still further, it was contended that the statement made by the co-accused was barred by Section 25 of the Indian Evidence Act, 1872,Ghowever, it was found by the Sessions Judge that the whole recoveryprocedure was made in the presence of panchas and, accordingly, theplea for discharge of the appellant was rejected as there was someevidence against him, and without recording evidence, it was not possibleto 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 theallegations made against the accused/appellant, rejected the plea thatthe case against the appellant be not continued as it seemed that fromthe averments and arguments of the learned APP, statements of the co-accused were recorded by the police wherein involvement of the appellantwas found particularly of fake currency notes having been found at theresidence of the appellant. The Court made reference to the seizure ofcounterfeit currency notes from the place of offence, i.e., residence ofthe appellant. It is further found that it is premature to say anything atthis stage in respect of the credibility of the statement made by theOfficer in the complaint. It can be considered only at the trial. Currencynotes were seized by the Investigating Officer in the presence of thewitnesses, and therefore, their statements would also be considered bythe trial court, while they would be examined by the court concerned.Statements of the co-accused recorded by the Investigating Officer showprima facie involvement of the appellant in the offence. It is not onlythe evidence available with the prosecution to involve the appellant tothe alleged offences, other evidences too prima facie point to theappellant. It was found that no case was made out to interfere underSection 482 of the Cr.PC.

5. We have heard Mr. Nakul Dewan, learned Senior Counselappearing for the appellant and Ms. Hemantika Wahi, learned Counselappearing for the respondents.

6. The learned Senior Counsel for the appellant emphasized thatthe High Court has fallen into error in holding that recovery of counterfeitcurrency was effected from the residence of the appellant. It was pointedout that counterfeit currency was recovered not from the residence ofthe appellant but from near public road. Therefore, the basis forcontinuing the case for proceeding against the appellant does not exist.Secondly, it was contended that person cannot be proceeded againston the basis of the statement made by the co-accused, when there is nomaterial other than statement of the co-accused. The High Court oughtto have exercised the jurisdiction available under Section 482 of theCr.PC and allowed the plea for discharge. Learned Senior Counsel forthe appellant would contend that the co-accused were absconding. Hesought support from the judgment of this Court in Suresh Budharmal

AKalani Alias Pappu Kalaniv. State of Maharashtra1. He has drawn ourattention to paragraphs 6 and 7, which read as follows:

“6. Thus said, we may turn our attention to the confession madeby Dr Bansal and Jayawant Suryarao. Under Section 30 of theEvidence Act, 1872, confession of an accused is relevant andadmissible against co-accused if both are jointly facing trial forthe same offence. Since, admittedly, Dr Bansal has beendischarged from the case and would not be facing trial with Kalani,his confession cannot be used against Kalani. The impugned ordershows that the Designated Court was fully aware of the abovelegal position but, surprisingly enough, it still decided to rely uponthe confession on the specious ground that the prosecution wasnot in any way precluded from examining Dr Bansal as witnessin the trial for establishing the facts disclosed in his confession.This again was perverse approach of the Designated Courtwhile dealing with the question of framing charges. At that stage,the court is required to confine its attention to only those materialscollected during investigation which can be legally translated intoevidence and not upon further evidence (dehors those materials)that the prosecution may adduce in the trial which would commenceonly after the charges are framed and the accused denies thecharges. The Designated Court was, therefore, not at all justifiedin taking into consideration the confessional statement of Dr Bansalfor 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 onrecord under Section 30 of the Evidence Act to use it also againstKalani but then the question is: what would be its evidentiary valueagainst the latter? The question was succinctly answered by thisCourt in Kashmira Singh v. State of M.P. [AIR 1952 SC 159 :1952 SCR 526] with the following words:

“The proper way to approach case of this kind is, first, tomarshal the evidence against the accused excluding theconfession altogether from consideration and see whether, ifit is believed, conviction could safely be based on it. If it iscapable of belief independently of the confession, then of course

it is not necessary to call the confession in aid. But cases mayarise where the judge is not prepared to act on the otherevidence as it stands even though, if believed, it would besufficient to sustain conviction. In such an event the judgemay call in aid the confession and use it to lend assurance tothe other evidence and thus fortify himself in believing whatwithout the aid of the confession he would not be prepared toaccept.

The view so expressed has been consistently followed by thisCourt. Judged in the light of the above principle, the confession ofSuryarao cannot be called in aid to frame charges against Kalaniin the absence of any other evidence to do so.”

7. It is the further case of the appellant that the ingredients ofSection 489B and 489C of the IPC have not been established. In regardto Section 489C, he sought support from judgment of the Lahore HighCourt in Bur Singhv. The Crown2. Still further, he sought some supportfrom the judgment of the learned Single Judge of the Punjab and HaryanaHigh Court, viz., Justice M.M. Punchhi (as His Lordship then was), inBachan Singhv. State of Punjab3. The Court held as follows:

“10. In order to sustain the convictions of Joginder Kaur appellant,the prosecution has not only to prove that she had the possessionof counterfeit note, Exhibit P. 1, ensuring it or having reason tobelieve it as such, but further to prove circumstances which leadclearly, indubitably and irresistibly to her intention to use the noteson 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 heldthat such intention could be proved by collateral circumstancethat she had palmed off such notes before, or that she was inpossession of such notes in such large numbers, that her possessionfor any other purpose was inexplicable. The facts as found arethat she had on her person only one made-up note, that she wasan illiterate lady and that anybody as Sh. Darshan KumarAhluwalia, P.W. 2, would have us believe could be misled to treatit as genuine note. She gave the note to Kundan Lal, P.W. 2 andhe told her that it was not genuine note and his belief wasconfirmed when he showed it to others as well. It has nowhere

2 (1930) ILR 11 Lah 555 [Criminal Revision No. 1527 of 1929]

3 1981 SCC Online P&H 47

EFG

been asserted that the note was ever returned to her and havingknown fully well or having reason to believe the same to be forgedfor counterfeit she yet made another attempt to palm it off. Thustendering alone such note to Kundan Lal, P.W., unless theprosecution could prove that it was with dishonest intention so asto cause wrongful loss to him and wrongful gain to herself wouldnot make her act to fall squarely within Section 420/511, IndianPanal Code, or to have come within the mischief of Section 489-B or 489-C, Indian Penal Code. The inference sought to be drawnthat she must have known or reason to believe the note, ExhibitPI, to be counterfeit because her husband accompanying her wasfound to be in possession of similar notes is entirely misplaced forno common intention has been attributed to them and they havenot been charged with the aid of Section 34, Indian Penal Code.For the individual act of Joginder Kaur she cannot be convictedfor the above named offences and must be extended the benefitof doubt.11. With regard to the case of Bachan Singh it is to be noted thathe was found in possession of 13 counterfeit ten rupee notes. Heis an iron-smith by profession and barely literate. How could hehave the knowledge or reason to believe the same to be counterfeitis one part but the other important part is whether he intended touse the same as genuine or that they may be used as genuine hasfurther to be proved by the prosecution. It was held in BurSingh v. The Crown, ((1931) 32 Cri LJ 351) (Lah) (supra), thatmere possession of forged note is not an offence under theIndian Penal Code and in order to bring case within the purviewof Section 489-C, Indian Penal Code, it was not only necessary toprove that the accused was in possession of forged notes but itshould further be established that:

(a) at the time of his possession he - knew the notes to be forgedor had the reason to believe the same to be forged or counterfeit;and

b) he intended to use the same as; genuine. No further collateralcircumstances in the case have been brought forth such as theaccused had palmed off such notes before, or that he was in

possession of such and similar notes in such large numbers, thathis possession for any other purpose was inexplicable.”

8. Finally, he also drew out attention to the judgment of this Courtin Umashankerv. State of Chhatisgarh4 wherein he emphasised onparagraphs 7 and 8, which read as follows:

“7. Sections 489-A to 489-E deal with various economicoffences in respect of forged or counterfeit currency notes orbanknotes. The object of the legislature in enacting these provisionsis not only to protect the economy of the country but also to provideadequate protection to currency notes and banknotes. Thecurrency notes are, in spite of growing accustomedness to thecredit card system, still the backbone of the commercialtransactions by the multitudes in our country. But these provisionsare not meant to punish unwary possessors or users.

8. perusal of the provisions, extracted above, shows thatmens rea of offences under Sections 489-B and 489-C is “knowingor having reason to believe the currency notes or banknotes areforged or counterfeit”. Without the aforementioned mens reaselling, buying or receiving from another person or otherwisetrafficking in or using as genuine forged or counterfeit currencynotes or banknotes, is not enough to constitute offence underSection 489-B IPC. So also possessing or even intending to useany forged or counterfeit currency notes or banknotes is notsufficient to make out case under Section 489-C in the absenceof the mens rea, noted above. No material is brought on record bythe prosecution to show that the appellant had the requisite mensrea. The High Court, however, completely missed this aspect.The learned trial Judge on the basis of the evidence of PW 2, PW4 and PW 7 that they were able to make out that the currencynote alleged to have been given to PW 4 was fake, “presumed”such mens rea. On the date of the incident the appellant wassaid to be an eighteen-year-old student. On the facts of this casethe presumption drawn by the trial court is not warranted underSection 4 of the Evidence Act. Further it is also not shown thatany specific question with regard to the currency notes being fakeor counterfeit was put to the appellant in his examination underSection 313 of the Criminal Procedure Code. On these facts, we

4 (2001) 9 SCC 642

have no option but to hold that the charges framed under Sections489-B and 489-C are not proved. We, therefore, set aside theconviction and sentence passed on the appellant under Sections489-B and 489-C IPC and acquit him of the said charges (see: M.Mammutti v. State of Karnataka [(1979) 4 SCC 723 : 1980SCC (Cri) 170 : AIR 1979 SC 1705] ).”

9. Learned Counsel for the State drew our attention to thestatement made by the appellant himself wherein the appellant has statedinter alia that he was told by the co-accused that he left bag containingthe counterfeit notes at his residence.

C10. Learned Counsel for the State submits that the Court mayalso bear in mind that the case is only at the stage of framing of thecharge. case has not been made out for interference under Section482 of the Cr.PC, and hence, she supported the Order of the High Court.

11. Appellant would submit that as regards the extra judicialDconfessional statement relied upon by the State dated 11.04.1996 madeby the appellant that it was not the basis on which the chargesheet hadbeen framed. It is secondly the case of the appellant that the statementhas been subsequently retracted.

12. Sections 489B and 489C of the IPC read as follows:

E“489B. Using as genuine, forged or counterfeit currency-notes orbank-notes.—Whoever sells to, or buys or receives from, anyother person, or otherwise traffics in or uses as genuine, any forgedor counterfeit currency-note or bank-note, knowing or havingreason to believe the same to be forged or counterfeit, shall bepunished with imprisonment for life, or with impris-onment of eitherFdescription for term which may extend to ten years, and shallalso be liable to fine.

489C. Possession of forged or counterfeit currency-notes or bank-notes.—Whoever has in his possession any forged or counter-feitcurrency-note or bank-note, knowing or having reason to believethe same to be forged or counterfeit and intending to use thesame as genuine or that it may be used as genuine, shall be punishedwith imprisonment of either description for term which mayextend to seven years, or with fine, or with both.”

LAW RELATING TO FRAMING OF CHARGE ANDDISCHARGE

13. We may profitably, in this regard, refer to the judgment of thisCourt in State of Biharv. Ramesh Singh5 wherein this Court has laiddown the principles relating to framing of charge and discharge as follows:

“Reading SS. 227 and 228 together in juxtaposition, as they havegot to be, it would be clear that at the beginning and initial stage ofthe trial the truth, veracity and effect of the evidence which theprosecutor proposes to adduce are not to be meticulously judged.Nor is any weight to be attached to the probable defence of theaccused. It is not obligatory for the Judge at that stage of the trialto consider in any detail and weigh in sensitive balance whetherthe facts, if proved, would be incompatible with the innocence ofthe accused or not. The standard of test and judgment which is tobe finally applied before recording finding regarding the guilt orotherwise of the accused is not exactly to be applied at the stageof deciding the matter under S.227 or S.228 of the Code. At thatstage the Court is not to see whether there is sufficient ground forconviction of the accused or whether the trial is sure to end in hisconviction.

Strong suspicion against the accused, if the matter remains inthe region of suspicion, cannot take the place of proof of his guiltat the conclusion of the trial. But at the initial stage if there is astrong suspicion which leads the Court to think that there is groundfor presuming that the accused has committed an offence then itis not open to the Court to say that there is no sufficient groundfor proceeding against the accused. The presumption of the guiltof the accused which is to be drawn at the initial stage is not in thesense of the law governing the trial of criminal cases in Francewhere the accused is presumed to be guilty unless the contrary isproved. But it is only for the purpose of deciding prima faciewhether the court should proceed with the trial or not.If the evidence which the prosecutor proposes to adduce toprove the guilt of the accused even if fully accepted before it ischallenged in cross-examination or rebutted by the defenceevidence, if any, cannot show that the accused committed the

5 AIR 1977 SC 2018

offence, then there will be no sufficient ground for proceedingwith the trial.

If the scales of pan as to the guilt or innocence of the accusedare something like even at the conclusion of the trial, then, on thetheory of benefit of doubt the case is to end in his acquittal. But if,Bon the other hand, it is so at the initial stage of making an orderunder S.227 or S.228, then in such situation ordinarily andgenerally the order which will have to be made will be one underS.228 and not under S.227.”

14. In Union of Indiav. Prafulla Kumar Samal and another6, afterCsurvey of case law, this is what the Court has laid down:

“10. Thus, on consideration of the authorities mentioned above,the following principles emerge:

(1) That the Judge while considering the question of framingthe charges under Section 227 of the Code has the undoubtedDpower to sift and weigh the evidence for the limited purpose offinding out whether or not prima facie case against theaccused has been made out.

(2) Where the materials placed before the Court disclosegrave suspicion against the accused which has not been properlyEexplained the Court will be fully justified in framing chargeand proceeding with the trial.

(3) The test to determine prima facie case would naturallydepend upon the facts of each case and it is difficult to laydown rule of universal application. By and large however iftwo views are equally possible and the Judge is satisfied thatthe evidence produced before him while giving rise to somesuspicion but not grave suspicion against the accused, he willbe fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 ofthe Code the Judge which under the present Code is seniorand experienced court cannot act merely as Post Office or amouthpiece of the prosecution, but has to consider the broadprobabilities of the case, the total effect of the evidence and

the documents produced before the Court, any basic infirmitiesappearing in the case and so on. This however does not meanthat the Judge should make roving enquiry into the pros andcons of the matter and weigh the evidence as if he wasconducting trial.”

15. It is the case of the State that the appellant had knowledgethat the notes were counterfeit and fake notes and was in consciouspossession of the fake notes for 15 days. For framing charges, what isrequired is prima facie satisfaction. Offence relating to counterfeit notesis grave offence and not to be viewed lightly.

16. In the statement by the first accused, he has stated that hehad come to Ahmedabad 15 days earlier. At that time, he had told theappellant that the fake notes are to be sold at cheap price and at presenthe may keep those notes with him. He further states that he had broughtthese notes from the residence of the appellant and that he had beencaught while he was selling the notes at cheap price.

17. In the first statement given by the appellant dated 11.04.1996relied upon by the State, the appellant is credited with knowledge of thefact that the bag contained counterfeit notes was left by the first accusedat appellant’s residence and they were to be sold at cheap price and itwas 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 bagcontains files relating to land deals and it contained valuables.

19. In further questioning on 30.08.1996, he inter alia states thatbecause of his acquaintance with Ravi, he became acquainted with thefirst accused and that he had left the bag at his residence saying that thebag contained important documents.

20. These are the materials in short which were relied on by theState to sustain the Order framing the charge against the appellant. Thatis to say, the statements given by the appellant under Section 161 andthe statement also given by the co-accused.

21. At the stage of framing the charge in accordance with theprinciples which have been laid down by this Court, what the Court isexpected to do is, it does not act as mere post office. The Court must

Aindeed sift the material before it. The material to be sifted would be thematerial which is produced and relied upon by the prosecution. The siftingis not to be meticulous in the sense that the Court dons the mantle of theTrial Judge hearing arguments after the entire evidence has been adducedafter full-fledged trial and the question is not whether the prosecutionhas made out the case for the conviction of the accused. All that isBrequired is, the Court must be satisfied that with the materials available,a case is made out for the accused to stand trial. strong suspicionsuffices. However, strong suspicion must be founded on some material.The material must be such as can be translated into evidence at thestage of trial. The strong suspicion cannot be the pure subjectiveCsatisfaction based on the moral notions of the Judge that here is casewhere it is possible that accused has committed the offence. Strongsuspicion must be the suspicion which is premised on some materialwhich commends itself to the court as sufficient to entertain the primafacie view that the accused has committed the offence.

D22. Undoubtedly, this Court has in Suresh Budharmal Kalani AliasPappu Kalani(supra), taken the view that confession by co-accusedcontaining incriminating matter against person would not by itself sufficeto frame charge against it. We may incidentally note that the Court hasrelied upon the judgment of this Court in Kashmira Singhv. State ofMadhya Pradesh7. We notice the observations, which have been reliedEupon, were made in the context of an appeal which arose from theconviction of the appellant therein after trial. The same view has beenfollowed undoubtedly in other cases where the question arose in thecontext of conviction and an appeal therefrom. However, in SureshBudharmal Kalani Alias Pappu Kalani(supra), the Court has proceeded

Fto take the view that only on the basis of statement of the co-accused,no case is made out, even for framing charge.

23. The first and the foremost aspect is whether the appellant isjustified in contending that the High Court fell into error in holding thatthe recovery was effected of the counterfeit currency from the residenceGof the appellant. This constituted an important consideration in the courtrejecting the petition filed by the appellant.

24. The learned Counsel for the State, in fact, did not seriouslydispute the fact that there was no recovery of counterfeit currencyeffected from the residence of the appellant.H7 AIR 1952 SC 159

25. Section 25 of the Indian Evidence Act, 1872 (hereinafterreferred to as ‘the Evidence Act’ for short) renders inadmissible aconfession made to Police Officer. It declares in fact that no confessionmade to Police Officer shall be proved as against person accused ofany offence. Section 26 of the Evidence Act on the other hand reads asfollows:

“26. Confession by accused while in custody of police not tobe proved against him.—No confession made by any person whilsthe is in the custody of police officer, unless it be made in theimmediate presence of Magistrate, shall be proved as againstsuch person. “

Explanation.—In this section “Magistrate” does not includethe head of village discharging magisterial functions in thePresidency of Fort St. George or elsewhere, unless such headmanis Magistrate exercising the powers of Magistrate under theCode 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, 17[th] Edition, page 555, wenotice the following discussion regarding the distinction between Section25 on the one hand and Section 26 other hand:

“… The section deals with confessions which are made not toPolice Officers but to persons other than Police Officers, e.g., toa fellow prisoner, doctor or visitor, and makes such confessionsinadmissible if they were made whilst the accused was in thecustody of Police Officer. In section 25 the criterion for excludinga confession is the answer to the question. “To whom was theconfession made?” If the answer is that it was made to PoliceOfficer, the confession is absolutely excluded from evidence. Onthe other hand, the criterion adopted in section 26 for excluding aconfession is the answer to the question. “Under whatcircumstances was the confession made?” if the answer is that itwas made whilst the accused was in the custody of Police Officer,the law lays down that such confession shall be excluded fromevidence, unless it was made in the immediate presence of aMagistrate.”

28. Section 30 of the Evidence Act read as follows:

A“30. Consideration of proved confession affecting person makingit and others jointly under trial for same offence.—When morepersons than one are being tried jointly for the same offence, anda confession made by one of such persons affecting himself andsome other of such persons is proved, the Court may take intoconsideration such confession as against such other person asBwell as against the person who makes such confession.

Explanation.—”Offence”, as used in this section, includes theabetment of, or attempt to commit the offence.”

29. While on confession, it is important to understand as to whatCwill amount to confession. The Privy Council in Pakala Narayana8Swamiv. Emperor:

“… Moreover, confession must either admit in terms theoffence, or at any rate substantially all the facts which constitutethe offence. An admission of gravely incriminating fact, even aDconclusively incriminating fact is not of itself confession, e.g. anadmission that the accused is the owner of and was in recentpossession of the knife or revolver which caused death with noexplanation of any other man’s possession. Some confusionappears to have been caused by the definition of ‘confession’ inArticle 22 of Stephen’s “Digest of the Law of Evidence” whichEdefines confession as admission made iafc (sic) any time by aperson charged with crime stating or suggesting the inferencethat he committed that crime. If the surrounding articles areexamined it will be apparent that the learned author after dealingwith admissions generally is applying himself to admissions inFcriminal cases, and for this purpose defines confessions so as tocover all such admissions, in order to have general term for usein the three following articles, confession secured by inducement,made upon oath, made under promise of secrecy. The definitionis not contained in the Evidence Act, 1872: and in that Act it wouldnot be consistent with the natural use of language to construeGconfession as statement by an accused “suggesting the inferencethat he committed” the crime.”

30. This view of the Privy Council has gained acceptance of thisCourt in many decisions. They include Palvinder Kaurv. State of Punjab9and Veera Ibrahimv. State of Maharashtra10.

31. Full Court of this Court, in the decision in M.P. Sharma and4 othersv. Satish Chandra, Distt. Magistrate, Delhi and 4 others11,considered the scope of the expression contained in Article 20(3) of theConstitution of India which mandates that no person accused of anyoffence shall be compelled to be witness against himself:

“Broadly stated the guarantee in Art.20(3) is against “testimonialcompulsion”. But there is no reason to confine it to the oralevidence of person standing his trial for an offence when calledto the witness-stand. The protection afforded to an accused in sofar as it is related to the phrase “to be witness” is not merely inrespect of testimonial compulsion in the Court room but may wellextend to compelled testimony previously obtained from him. It isavailable, therefore, to person against whom formal accusationrelating to the commission of an offence has been levelled whichis the normal course may result in prosecution.

Considered in this light, the guarantee under Article 20(3) wouldbe available to person against whom First Information Reporthas been recorded as accused therein.It would extend to anycompulsory process for production of evidentiary documents whichae reasonable likely to support prosecution against them.”

(Emphasis supplied)

32. In State of Bombayv. Kathi Kalu Oghad12, Bench of 11learned Judges of this Court had an occasion to consider the true widthof the expression “person accused of an offence”. Speaking on behalfof the majority, Sinha, C.J., held as follows:

“14. In this connection the question was raised before us that inorder to bring the case within the prohibition of clause (3) of Article20, it is not necessary that the statement should have been madeby the accused person at time when he fulfilled that character;it is enough that he should have been an accused person at the

9 AIR 1952 SC 354

10 AIR 1976 SC 1167

11 AIR 1954 SC 300

12 AIR 1961 SC 1808

time when the statement was sought to be proved in court, eventhough he may not have been an accused person at the time hehad made that statement.The correctness of the decision of theConstitution Bench of this Court in the case of MohamedDastagirv. State of Madras [(1960) 3 SCR 116] was questionedbecause it was said that it ran counter to the observations of theFull Court in Sharma case [(1954) SCR 1077]. In the Full Courtdecision of this Court this question did not directly arise; nor wasit decided. On the other hand, this Court, in Sharma case [(1954)SCR 1077] held that the protection under Article 20(3) of theConstitution is available to person against whom formalaccusation had been levelled, inasmuch as First InformationReport had been lodged against him.Sharma case [(1954) SCR1077] therefore, did not decide anything to the contrary of whatthis Court said in Mohamed Dastagir v. State of Madras [(1960)3 SCR 116]. The latter decision in our opinion lays down the lawcorrectly.

15. In order to bring the evidence within the inhibitions of clause(3) of Article 20 it must be shown not only that the person makingthe statement was an accused at the time he made it and that ithad material bearing on the criminality of the makerof the statement, but also that he was compelled to make thatstatement. …”

(Emphasis supplied)

33. The Court also laid down its conclusions in paragraph-16:

“16. In view of these considerations, we have come to thefollowing conclusions:

(1) An accused person cannot be said to have been compelledto be witness against himself simply because he made statementwhile in police custody, without anything more. In other words,the mere fact of being in police custody at the time when thestatement in question was made would not, by itself, as aproposition of law, lend itself to the inference that the accusedwas compelled to make the statement, though that fact, inconjunction with other circumstances disclosed in evidence in aparticular case, would be relevant consideration in an enquiry

whether or not the accused person had been compelled to makethe impugned statement.

(2) The mere questioning of an accused person by policeofficer, resulting in voluntary statement, which may ultimatelyturn out to be incriminatory, is not “compulsion”.

(3) “To be witness” is not equivalent to “furnishing evidence”in its widest significance; that is to say, as including not merelymaking of oral or written statements but also production ofdocuments or giving materials which may be relevant at trial todetermine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm orfingers or specimen writings or showing parts of the body by wayof identification are not included in the expression “to be awitness”.

(5) “To be witness” means imparting knowledge in respectof relevant facts by an oral statement or statement in writing,made or given in court or otherwise.

(6) “To be witness” in its ordinary grammatical sense meansgiving oral testimony in court. Case law has gone beyond thisstrict literal interpretation of the expression which may now beara wider meaning, namely, bearing testimony in court or out ofcourt by person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition ofArticle 20(3), the person accused must have stood in the characterof an accused person at the time he made the statement. It is notenough that he should become an accused, any time after thestatement has been made.”

(Emphasis supplied)

34. Section 161 of the Cr.PC has the following marginal note:

“Examination of witnesses by police”

35. Can person, who is accused of an offence, be examinedunder Section 161 of the Cr.PC? As we have seen, when person isnamed as an accused in First Information Report, he would stand in theshoes of an accused person. Does not the marginal note of Section 161

Aof the Cr.PC confine the power to the Police Officer to examine thewitnesses and will it be denied to him qua person who is alreadynamed as an accused? These questions are no longer res integra. InNandini Satpathy v. P.L. Dani and another13, Bench of three learnedJudges was dealing with case which arose from proceedings initiatedagainst the appellant therein under Section 179 of the IPC. In the courseBof the judgment, speaking on behalf of the Bench, this is what JusticeV.R. Krishna Iyer had to say:“32. We will now answer the questions suggested at the beginningand advert to the decisions of our Court which set the tone andtemper of the “silence” clause and bind us willy-nilly. We haveCearlier explained why we regard Section 161(2) as sort ofparliamentary commentary on Article 20(3). So, the first point todecide is whether the police have power under Sections 160 and161 of the CrPC to question person who, then was or, in thefuture may incarnate as, an accused person. The Privy CouncilDand this Court have held that the scope of Section 161 does includeactual accused and suspects and we deferentially agree withoutrepeating the detailed reasons urged before us by counsel.”

(Emphasis supplied)

36. Thereafter, after referring to Pakala Narayana Swami(supra),Eregarding the scope of the word ‘confession’ the Court held inter aliaas follows:

“33. …We hold that “any person supposed to be acquaintedwith the facts and circumstances of the case” includes an accusedperson who fills that role because the police suppose him to haveFcommitted the crime and must, therefore, be familiar with thefacts. The supposition may later prove fiction but that does notrepel the section. Nor does the marginal note “examinationof witnesses by police” clinch the matter. marginal note clearsambiguity but does not control meaning. Moreover, the suppositionsGaccused figures functionally as witness. “To be witness”, froma functional angle, is to impart knowledge in respect of relevantfact, and that is precisely the purpose of questioning the accusedunder Section 161 CrPC. …”

37. Thus, quite clearly, person who stands in the shoes of theaccused being named in the First Information Report, can be examinedby the Police Officer under Section 161 of the Cr.PC. The next questionhowever is, as to whether the statement given by person who stands inthe shoes of an accused and who gives statement, whether thestatement is admissible in law? It is here that Section 162 of the Codecomes into play:

“162. Statements to police not to be signed: Use of statements inevidence.

(1) No statement made by any person to police officer in thecourse of an investigation under this Chapter, shall, if reduced towriting, be signed by the person making it; nor shall any suchstatement or any record thereof, whether in police diary orotherwise, or any part of such statement or record, be used forany purpose, save as hereinafter provided, at any inquiry or trialin respect of any offence under investigation at the time whensuch statement was made: Provided that when any witness iscalled for the prosecution in such inquiry or trial whose statementhas been reduced into writing as aforesaid, any part of hisstatement, if duly proved, may be used by the accused, and withthe permission of the Court, by the prosecution, to contradict suchwitness in the manner provided by section 145 of the IndianEvidence Act, 1872 (1 of 1872 ); and when any part of suchstatement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explainingany matter referred to in his cross- examination.

(2) Nothing in this section shall be deemed to apply to any statementfalling within the provisions of clause (1) of section 32 of theIndian Evidence Act, 1872 (1 of 1872), or to affect the provisionsof section 27 of that Act. Explanation.- An omission to state afact or circumstance in the statement referred to in sub- section(1) may amount to contradiction if the same appears to besignificant and otherwise relevant having regard to the context inwhich such omission occurs and whether any omission amountsto contradiction in the particular context shall be question offact.”

A38. Bench of three learned Judges of this Court in MahabirMandal and othersv. State of Bihar14, had this to say:

“39. Coming to the case of Kasim, we find that there is noreliable evidence as may show that Kasim was present at thehouse of Mahabir on the night of occurrence and took part in thedisposal of the dead body of Indira. Reliance was placed by theprosecution upon the statement alleged to have been made byKasim and Mahadeo accused at the police station in the presenceof Baijnath PW after Baijnath had lodged report at the policestation. Such statements are legally not admissible in evidenceand cannot be used as substantive evidence. According to Section162 of the Code of Criminal Procedure, no statement made byany person to police officer in the course of an investigationshall be signed by the person making it or used for any purpose atany enquiry or trial in respect of any offence under investigationat the time when such statement was made.The only exceptionto the above rule is mentioned in the proviso to that section.According to the proviso, when any witness is called for theprosecution in the enquiry or trial, any part of his statement, ifduly proved, may be used by the accused and with the permissionof the court by the prosecution, to contradict such witness in themanner provided by Section 145 of the Indian Evidence Act and

when any part of such statement is so used, any part thereof mayalso be used in the re-examination of such witness for the purposeonly of explaining any matter referred to in his cross-examination.The above rule is, however, not applicable to statements fallingwithin the provisions of Clause 1 of Section 32 of the IndianEvidence Act or to affect the provisions of Section 27 of that Act.It is also well established that the bar of inadmissibility operatesnot 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 CriminalProcedure observed:

“Then follows the section in question which is drawn in thesame general way relating to ‘any person.’ That the words intheir ordinary meaning would include any person though hemay thereafter be accused seems plain. Investigation into crime

often includes the examination of number or persons none ofwhom or all of whom may be suspected at the time. The firstwords of the section prohibiting the statement if recorded frombeing signed must apply to all the statements made at the timeand must therefore apply to statement made by personpossibly not then even suspected but eventually accused.”

Reference may also be made to Section 26 of the IndianEvidence Act, according to which no confession made by anyperson whilst he is in the custody of police officer, unless it bemade in the immediate presence of Magistrate, shall be provedagainst such person. There is nothing in the present case to showthat the statements which were made by Kasim and Mahadeoaccused on September 18, 1963, at the police station in thepresence of Baijnath resulted in the discovery of any incriminatingmaterial as may make them admissible under Section 27 of theIndian Evidence Act. As such, the aforesaid statements must beexcluded from consideration.”

(Emphasis supplied)

39. Therefore, the combined effect of these provisions can besummarized as follows:

Unless person is accused of an offence, he cannot claim theprotection of Article 20(3) of the Constitution of India.

40. Such person, viz., person who is named in the FIR, andtherefore, the accused in the eyes of law, can indeed be questioned andthe statement is taken by the Police Officer. confession, which ismade to Police Officer, would be inadmissible having regard to Section25 of the Evidence Act. confession, which is vitiated under Section 24of the Evidence Act would also be inadmissible. confession unless itfulfills the test laid down in Pakala Narayana Swami(supra) and asaccepted by this Court, may still be used as an admission under Section21 of the Evidence Act. This, however, is subject to the bar of admissibilityof statement under Section 161 of the Cr.PC. Therefore, even if astatement contains admission, the statement being one under Section161, 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 tothe statement made to Police Officer in between two points of time,

Aviz., from the beginning of the investigation till the termination of thesame. In case where statement containing not confession butadmission, which is otherwise relevant and which is made before theinvestigation commences, may be admissible. We need not, however,say anything more.

15B42. In Central Bureau of Investigationv. V.C. Shukla and others,a Bench of three learned Judges, after approving Pakala Narayana Swami(supra), had occasion to consider the distinction between confessionand admission. This Court went on to hold as follows:

“45. It is thus seen that only voluntary and directCacknowledgement of guilt is confession but when confessionfalls short of actual admission of guilt it may nevertheless be usedas evidence against the person who made it or his authorisedagent as an “admission” under Section 21. The law in this regardhas been clearly — and in our considered view correctly —explained in Monir’s Law of Evidence(New Edn. at pp. 205 andD206), on which Mr Jethmalani relied to bring home his contentionthat even if the entries are treated as “admission” of the Jains stillthey cannot be used against Shri Advani. The relevant passagereads as under:

“The distinction between admissions and confessions is ofEconsiderable importance for two reasons. Firstly, statementmade by an accused person, if it is an admission, is admissiblein evidence under Section 21 of the Evidence Act, unless thestatement amounts to confession and was made to personin authority in consequence of some improper inducement,Fthreat or promise, or was made to Police Officer, or wasmade at time when the accused was in custody of PoliceOfficer. If statement was made by the accused in thecircumstances just mentioned its admissibility will depend uponthe determination of the question whether it does not amountto confession. If it amounts to confession, it will beGinadmissible, but if it does not amount to confession, it will beadmissible under Section 21 of the Act as an admission, providedthat it suggests an inference as to fact which is in issue in, orrelevant to, the case and was not made to Police Officer in

the course of an investigation under Chapter XIV of the Codeof Criminal Procedure.Secondly, statement made by anaccused person is admissible against others who are beingjointly tried with him only if the statement amounts to aconfession. Where the statement falls short of confession, itis admissible only against its maker as an admission andnot against those who are being jointly tried with him.Therefore, from the point of view of Section 30 of the EvidenceAct also the distinction between an admission and confessionis 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 oron their behalf.—Admissions are relevant and may be proved asagainst the person who makes them, or his representative ininterest; but they cannot be proved by or on behalf of the personwho makes them or by his representative in interest, except in thefollowing cases:—

(1) An admission may be proved by or on behalf of the personmaking it, when it is of such nature that, if the person makingit were dead, it would be relevant as between third personsunder section 32.

(2) An admission may be proved by or on behalf of the personmaking it, when it consists of statement of the existence ofany state of mind or body, relevant or in issue, made at orabout the time when such state of mind or body existed, andis accompanied by conduct rendering its falsehoodimprobable.

(3) An admission may be proved by or on behalf of the personmaking it, if it is relevant otherwise than as an admission.”

44. Thus, what amounts to an admission can be used against themaker of the admission or his representative in interest. As to whatconstitutes an admission is to be found in Section 17 of the EvidenceAct, which defines admission as follows:

“17. Admission defined.—An admission is statement, oral ordocumentary or contained in electronic form, which suggests anyinference as to any fact in issue or relevant fact, and which ismade by any of the persons, and under the circumstances,hereinafter mentioned.”

16B45. In Bharat Singh and othersv. Mst. Bhagirathi, the true natureof the evidentiary value of admission, and whether without confrontingthe maker of the admission, it could be used, has been referred to andthis is what this Court had to say:

“19. Admissions have to be clear if they are to be used againstCthe person making them. Admissions are substantive evidence bythemselves, in view of Sections 17, and 21 of the Indian EvidenceAct, though they are not conclusive proof of the matters admitted.We are of opinion that the admissions duly proved are admissibleevidence irrespective of whether the party making them appearedin the witness box or not and whether that party when appearingDas witness was confronted with those statements in case it madea statement contrary to those admissions. The purpose ofcontradicting the witness under Section 145 of the Evidence Actis very much different from the purpose of proving the admission.Admission is substantive evidence of the fact admitted while aEprevious statement used to contradict witness does not becomesubstantive evidence and merely serves the purpose of throwingdoubt on the veracity of the witness. What weight is to be attachedto an admission made by party is matter different from its useas admissible evidence.”

(Emphasis supplied)

46. From the statement of the law contained in V.C. Shukla andothers(supra), it becomes clear as to what constitutes confession andhow if it does not constitute confession, it may still be an admission.Being an admission, it may be admissible under the Evidence Act providedGthat it meets the requirements of admission as defined in Section 17 ofthe Evidence Act. However, even if it is an admission, if it is made in thecourse of investigation under the Cr.PC to Police Officer, then, it willnot be admissible under Section 162 of the Cr.PC as it clearly prohibitsthe use of statement made to Police Officer under Section 161 of the

Cr.PC except for the purpose which is mentioned therein. Statementgiven under Section 161, even if relevant, as it contains an admission,would not be admissible, though an admission falling short of confessionwhich may be made otherwise, may become substantive evidence.

47. confession made to Police Officer is clearly inadmissible.The statement relied on by respondent is dated 11.04.1996 and theappellant was arrested on 11.04.1996. This is pursuant to the FIRregistered on 10.04.1996. The statement dated 11.04.1996 is made to aPolice Officer. This is clear from the statement as also letter dated10.08.1996 (Annexure R/6) produced by the respondent. It is clearlyduring the course of the investigation. Even if it does contain admissionsby virtue of Section 162 and as interpreted by this Court in V.C. Shuklaand others(supra), such admissions are clearly inadmissible.

48. If the statement made by the appellant on 11.04.1996 isinadmissible, then, there will only be the statement of the co-accusedavailable to be considered in deciding whether the charge has to beframed against the appellant or not. It is here that the law laid down bythis Court in Suresh Budharmal Kalani Alias Pappu Kalani(supra)becomes applicable.

49. We also notice the following statement in judgment renderedby Bench of seven learned Judges in Haricharan Kurmiv. Sate of Bihar17:

“As result of the provisions contained in S.30, Evidence Act,the confession of co-accused has to be regarded as amountingto evidence in general way, because whatever is considered bythe Court is evidence; circumstances which are considered bythe Court as well as probabilities do amount to evidence in thatgeneric sense. Thus, though confession may be regarded asevidence 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 theAct. The result, therefore, is that in dealing with case against anaccused person, the Court cannot start with the confession of aco-accused person; it must begin with other evidence adduced bythe prosecution and after it has formed its opinion with regard tothe quality and effect of the said evidence, then it is permissible toturn to the confession in order to receive assurance to the

[2019] 6 S.C.R.

Aconclusion of guilt which the judicial mind is about to reach on thesaid other evidence.

Thus, the confession of co-accused person cannot be treatedas substantive evidence and can be pressed into service only whenthe Court is inclined to accept other evidence and feels theBnecessity of seeking for an assurance in support of its conclusionsdeducible from the said evidence. In criminal cases where theother evidence adduced against an accused person is whollyunsatisfactory and the prosecution seeks to rely on the confessionof co-accused person, the presumption of innocence which isthe basis of criminal jurisprudence assists the accused person andCcompels the Court to render the verdict that the charge is notproved against him, and so, he is entitled to the benefit of doubt.”

50. Proceeding on the basis that it is confession by co-accusedand still proceeding further that there is joint trial of the accused andthat they are accused of the same offences (ignoring the fact that otherDaccused are absconding and appellant appears to be proceeded againston his own) and having found that there is no recovery from the residenceof the appellant of the counterfeit notes and that there is no other materialon the basis of which even strong suspicion could be aroused, wewould find that the mandate of the law requires us to free the appellantEfrom being proceeded against. Accordingly, we allow the appeal and thepetition filed under Section 482 of the Cr.PC. The Order impugned passedby the Sessions Judge framing the charge against the appellant will standset aside and the appellant will stand discharged.

Devika GujralF

Appeal allowed.