TaxTMI 
TaxTMI 
2019 (4) TMI 2034
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....C 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 i.e., 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 Nehru Bridge, 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 ....
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....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 i.e., 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 statement made by the co-Accused was barred by Section 25 of the Indian Evidence Act, 1872, howe....
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....that a person cannot be proceeded against on the basis of the statement made by the co-accused, when there is no material other than statement of the co-accused. The High Court ought to have exercised the jurisdiction available Under Section 482 of the Code of Criminal Procedure 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 Maharashtra (1998) 7 SCC 337. He has drawn our attention to paragraphs 6 and 7, which read as follows: 6. Thus said, we may turn our attention to the confession made by Dr. Bansal and Jayawant Suryarao. Under Section 30 of the Evidence Act, 1872, a confession of an Accused is relevant and admissible against a co-accused if both are jointly facing trial for the same offence. Since, admittedly, Dr. Bansal has been discharged from the case and would not be facing trial with Kalani, his confession cannot be used against Kalani. The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to....
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....ve not been established. In regard to Section 489C, he sought support from judgment of the Lahore High Court in Bur Singh v. The Crown (1930) ILR 11 Lah 555 [Criminal Revision No. 1527 of 1929]. Still further, he sought some support from the judgment of the learned Single Judge of the Punjab and Haryana High Court, viz., Justice M.M. Punchhi (as His Lordship then was), in Bachan Singh v. State of Punjab. 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 on....
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....e. 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 Chhatisgarh (2001) 9 SCC 642 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 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 no....
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....ich 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 Indian Penal Code 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. 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 prof....
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....cused 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one Under Section 228 and not Under Section 227. 14. In Union of India v. Prafulla Kumar Samal and Anr. Air 1979 Sc 366, 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 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 wou....
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....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 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 so....
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.... whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. 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., 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 abs....
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....on 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 Punjab AIR 1952 SC 354 and Veera Ibrahim v. State of Maharashtra AIR 1976 SC 1167. 31. A Full Court of this Court, in the decision in M.P. Sharma and 4 Ors. v. Satish Chandra, Distt. Magistrate, Delhi and 4 Ors. AIR 1954 SC 300, considered the scope of the expression contained in Article 20(3) of the Constitution of India which mandates that no person Accused of any offence shall be compelled to be a witness against himself: Broadly stated the guarantee in Article 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 ....
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.... 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. ... 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 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....
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....se 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 Code of Criminal Procedure 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. 36. Thereafter, after referring to Pakala Narayana Swami (supra), regarding the scope of the word 'confession' the Court held inter alia as follows: 33. ... We hold that "any person supposed to be acquainted with the facts and circumstances of the case" includes an Accused person who fills that role because the police suppose him to have 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 co....
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....urs 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 Ors. v. State of Bihar AIR 1972 1331, 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 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. Accor....
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....used 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 Code of Criminal Procedure. 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 Code of Criminal Procedure. 41. Bar Under Section 162 Code of Criminal Procedure, 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 ....
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..... 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. 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 acc....
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.... Act. However, even if it is an admission, if it is made in the course of investigation under the Code of Criminal Procedure to a Police Officer, then, it will not be admissible Under Section 162 of the Code of Criminal Procedure as it clearly prohibits the use of statement made to a Police Officer Under Section 161 of the Code of Criminal Procedure 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. 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), ....