TaxTMI 
TaxTMI 
2019 (4) TMI 2034
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.... 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 Ashram Road, Stopping their vehicles there and taking ....
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....adaj, 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, however, it was found by the Sessions Judge that the whole recovery pro....
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....e 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 rely upon the confession on the specious ground that the prosecution was not in a....
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....urt 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 only one made-up note, that she was an illiterate lady and that anybody as Sh. Darshan Kumar Ahluwalia, P.W. 2, wo....
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....hat 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 notes or banknotes are forged or counterfeit". Without the aforementioned mens rea selling, buying or receiving from another person or otherwise traffi....
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....9C 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 profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh AIR 1977 SC 2018 wherein this Court has laid down the principles relating to....
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....ng 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 would naturally depend upon the facts of each case and it is difficult to lay down a Rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him ....
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....nts 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 some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that Accused....
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....n 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 absolutely excluded from evidence. On the other hand, the criterion adopted in Section 26 for excluding a confession is the answer to the question. "Under what circumstances was the confession made?" if the answer is that it was made whilst the Accused was in the custody of a Police Office....
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....ecisions. 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 well extend to compelled testimony previously obtained from him. It is available, therefore, to a person against whom a formal accusation relating to the commission of an offence has been levelled which is the normal course may result in prosecution. Considered in this light, the guarantee Under Article 20(3) would be a....
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....d 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 evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the Accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body....
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....tion 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 control meaning. Moreover, the suppositions Accused figures functionally as a witness. "To be a witness", from a functional angle, is to impart knowledge in respect of a relevant fact, and that is precisely the purpose of questioning the Accused Under Section 161 Code of Criminal Procedure. .... 37. Thus, quite clearly, a person who stands in the shoes of the Accused being named in the First Information Report, can be exami....
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.... 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. According to the proviso, when any witness is called for the prosecution in the enquiry or trial, any part of his statement, if duly proved, may be used by the Accused and with the permission of the court by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness for the purpose only of ex....
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....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 the termination of the same. In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible. We need not, however, say anything more. 42. In Central Bureau of Investigation v. V.C. Shukla and Ors. AIR 1998 SC 1406, a Bench of three learned Judges, after approving Pakala Narayana Swami (supra), had occasion to consider the distinction between confession and admission. This Cou....
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....e proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases: (1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons Under Section 32. (2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. 44. Thus, what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitutes an admission is to be found in Section 17 of the Evidence Act, which defines admission as follows: 17. Admission defined.-An admission is a statement, oral or documentary or contained in elect....
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.... 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), such admissions are clearly inadmissible. 48. If the statement made by the Appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the Appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra) becomes applicable. 49. We also notice the following statement in judgment rendered by Bench of seven learned Judges in Haricharan Kurmi v. State of Bihar AIR 1964 SC....