Girish Agrawal vs Union Of India Through The ...
2018 Latest Caselaw 1447 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 21.5.2018								    A.F.R
 
Delivered on: 9.7.2018
 
Court No. - 44
 
Case :- APPLICATION U/S 482 No. - 16359 of 2018
 
Applicant :- Girish Agrawal
 
Opposite Party :- Union Of India Through The Assitant Commissioner, Customs (Preventive), Varanasi And Another
 
Counsel for Applicant :- Alok Ranjan Mishra,Sr. Advocate
 
Counsel for Opposite Party :- Gaurav Mahajan, ,G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel assisted by Mr. Alok Ranjan Mishra for the applicant and Mr. Sanjay Singh the learned counsel for the opposite party No.2.

2. This application under Section 482 Cr.P.C. has been filed challenging the summoning order dated 27.3.2018, passed by the Special Chief Judicial Magistrate, Varanasi in Complaint Case No. 941 of 2018 (Union of India Vs. Mahendra Kumar Bajpai and another) under section 135 of the Customs Act as well as the entire proceedings of the aforesaid complaint case.

3. From the record, it appears that on 30.1.2018 the Government Railway Police (G.R.P.) was conducting checking on platform nos. 5 and 6 of Mughalsarai Railway Station. At the time the checking was going on, Train No. 2307 (Hawrah Jodhpur Express) arrived on Platform No. 6. One person namely, Mahendra Kumar Bajapai, aged about 37 years son of late Mohan Lal Bajapai alighted from the train. Seeing the large Police Force on the platform, he endeavoured to outwit the police personnel. However, the said Mahendra Kumar Bajapai was nabbed. Upon search, 13 pieces of foreign origin gold bars, a mobile phone and cash to the tune of Rs. 750/- were recovered from his body. Accordingly, the Police party prepared a memo of recovery dated 30.1.2018 (Annexure-2 to the affidavit), and handed over the matter to the Department of Customs.

4. Upon the transfer of the matter to the Department of customs, the recovered gold bars were got measured by the Department from the Government approved valuer. According to the valuation report dated 30.1.2018 (Annexure-3 to the affidavit), the net weight of the gold bar was 12993.30 gms valued at Rs. 3,98,89,431/-.

5. Having completed the aforesaid formalities, the Custom officials appear to have interrogated the said Mahendra Kumar Bajapai. During the course of investigation the said Mahendra Kumar Bajapai could not show any document regarding sale, purchase or transportation of the recovered 13 pieces of foreign origin gold bars. He, however, is alleged to have confessed that the recovered 13 pieces of foreign origin gold bars have been brought into India from Bangladesh, through off route by way of smuggling.

6. As such the statement of Mahendra Kumar Bajapai was recorded on 30.1.2018, under section 108 of the Customs Act, 1962 which is on the record as Annexure-6 to the affidavit. A perusal of the said statement will go to show that Mahendra Kumar Bajapai in his statement has stated that he was carrying the foreign origin gold bars for and on behalf of Girish Agarwal, the applicant before this Court who is the owner of M/s Kala Jagat Jewellers, Naughada, Nayaganj (inside Bagla building) and is working for him. It was also stated that in the past he had carried gold bars of foreign origin and further described the details of the journey so undertaken as well as the modus-operendai of such activities.

7. Accordingly, the recovered 13 pieces of foreign origin gold bars were seized under section 110 of the Customs Act, 1962. Thereafter, a panchnama dated 30/31-1-2018 (Annexure 4 to the affidavit) was prepared. Subsequently, the seizure order dated 30/31-1-2018 as provided under Section 110 of the Customs Act was passed by the concerned officer. The copy of the same is on the record as Annexure-5 to the affidavit.

8. In the light of the statement of Mahendra Kumar Bajapai, search was conducted by the Custom Officials as follow up action at the residential premises as well as the business premises of Girish Agarwal the present applicant on 31.1.2018. The said search was got witnessed by two independent witnesses and Smt. Mohini Agarwal the wife of the applicant Girish Agarwal.

9. Thereafter the statement of the wife of the applicant namely Mohini Agarwal was got recorded on 31.1.2018 which is on the record as Annexure-8 to the affidavit. A perusal of the statement of Smt. Mohini Agarwal reveals that the wife of the applicant disclosed the business activities of Girish Agarwal, the applicant before this court.

10. In the subsequent investigation which followed, summons were issued to the applicant by the Customs Authorities for recording his statement as provided under Section 108 of the Customs Act. It will be useful to reproduce the provisions of Section 108 herein below:

"108. Power to summon persons to give evidence and produce documents.--

[(1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act.]

(2) A summons to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person or by an authorised agent as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject, respecting which they are examined or make statements and produce such documents and other things as may be required: Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (5 of 1908), shall be applicable to any requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860)."

However, for reasons best known to the applicant, he did not appear before the Custom Authority.

11. On the basis of the aforesaid material, Complaint Case No. 941 of 2018 (Union of India Vs. Mahendra Kumar Bajapai and another) was filed against Mahendra Kumar Bajapai and Girish Agarwal the applicant herein in respect of an offence punishable under section 135 of the Customs Act, 1962.

12. After the lodging of the aforesaid complaint case, the residential premises of the applicant Girish Kumar were again searched but no incriminating material was found. The search so conducted on 4.4.2018 was got evidenced by the panchayatnama dated 4.4.2018.

13. The court below i.e. the Special Chief Judicial Magistrate summoned the accused persons including the present applicant under section 135 of the Customs Act vide summoning order dated 27.3.2018 in Complaint Case No. 941 of 2018 (Union of India Vs. Mahendra Kumar Bajapai and another). Feeling aggrieved by the summoning order dated 27.3.2018, as well as the entire proceedings of the aforesaid complaint case, the applicant has now come to this Court by means of the present criminal misc. application.

14. Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel, assisted by Mr. Alok Ranjan Mishra, in challenge to the summoning order dated 27.3.2018 passed by the Special Chief Judicial Magistrate, Varanasi in Complaint Case No. 941 of 2018 (Union of India Vs. Mahendra Kumar Bajapai) as well as the entire proceedings of the aforesaid case has made the following submissions:-

(A) The statement of the co-accused namely, Mahendra Kumar Bajapai cannot be used against the applicant in the absence of any other evidence.

(B) The confession made by the co-accused Mahendra Kumar Bajpai before the Custom Officer is not evidence according to the provisions of Indian Evidence Act. In support of the said submission, reliance is placed upon judgement of Apex Court in the case of Haricharan Kurmi Vs. State of Bihar, reported in 1964 AIR (SC) 1184.

(C) There is no evidence against the applicant in the complaint case filed by the Union of India. Therefore, the case in hand is covered by the third category of cases in which the proceedings can be quashed, as per the judgement of the Apex Court in the case of R.P. Kapur Vs. The State of Punjab, AIR 1960 SC 862.

15. Per contra Mr. Sanjay Singh, the learnd Counsel appearing for the Union of India, submits that :

(a) the statement made before the Custom Officer is not a statement recorded by a police officer under section 161 Cr.P.C. It is a material piece of evidence collected by the Custom's Officer under Section 108 of the Customs Act. He further submits that when such statement made by a person inculpates not only himself but also another person it can be used as substantive evidence against another person. Reliance is placed upon the judgement of the Apex Court in the case of Naresh J. Sukhawani Vs. Union of India, reported in AIR 1996 SC 522.

(b) He next submits that the statement of the co-accused recorded under section 107/108 of the Customs Act can be used and shall not be hit by section 25 of the Evidence Act. In support of the aforesaid proposition, reliance was placed upon the judgement of the learned Single Judge in the case of Rohit Agarwal Vs. State of U.P. and Anr., reported in 1991 (28) ACC 581.

(c) It was lastly submitted that the submissions raised by the learned Senior counsel for the applicant are not liable to be  accepted in view of the provisions contained in Section 30 of the Indian Evidence Act.

16. Before proceeding to consider the veracity of the submissions raised by the counsel for the parties, it would be appropriate to refer to the provisions of section 135 of Customs Act under which the present applicant has been summoned:-

"135. Evasion of duty or prohibitions.--1

(1) Without prejudice to any action that may be taken under this Act, if any person--

(a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or

(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be; or

(c) attempts to export any goods which he knows or has reason to believe are liable to confiscation under section 113; or

(d) fraudulently avails of or attempts to avail of drawback or any exemption from duty provided under this Act in connection with export of goods,

he shall be punishable,--

(i) in the case of an offence relating to,--

(A) any goods the market price of which exceeds one crore of rupees; or

(B) the evasion or attempted evasion of duty exceeding thirty lakh of rupees; or

(C) such categories of prohibited goods as the Central Government may, by notification in the Official Gazette, specify; or

(D) fraudulently availing of or attempting to avail of drawback or any exemption from duty referred to in clause (d), if the amount of drawback or exemption from duty exceeds thirty lakh of rupees,

with imprisonment for a term which may extend to seven years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than one year;

(ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both.]

2[(2) If any person convicted of an offence under this section or under sub-section (1) of section 136 is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to seven years and with fine:

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court such imprisonment shall not be for less than 3[one year].

(3) For the purposes of sub-section (1) and (2), the following shall not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than 3[one year], namely:--

(i) the fact that the accused has been convicted for the first time for a reference under this Act;

(ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods which are the subject matter of such proceedings have been ordered to be confiscated or any other action has been taken against him for the same act which constitutes the offence;

(iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party to the commission of the offence;

(iv) the age of the accused.]"

17. By means of the impugned summoning order dated 27.3.2018, the present applicant as well as Mahendra Kumar Bajapaiwho is in jail have been summoned to face trial for an offence punishable under section 135 of the Customs Act. The present application under Section 482 Cr.P.C. has been filed by only one of the accused, i.e., Girish Agarwal, the present applicant.

18. From the record, the court finds that the basis of the prosecution launched against the applicant and Mahendra Kumar Bajapai is the statement of Mahendra Kumar Bajapai recorded by the Custom Officer under section 107 of the Customs Act. Section 107 of the Customs Act is reproduced herein under:-

"107. Power to examine persons.--Any officer of customs empowered in this behalf by general or special order of the 1[Commissioner of Customs] may, during the course of any enquiry in connection with smuggling of any goods,--

(a) require any person to produce or deliver any document or thing relevant to the enquiry;

(b) examine any person acquainted with the facts and circumstances of the case."

19. It is an undisputed fact that the present applicant was also summoned by the custom officer to give evidence. This power was exercised by the Custom Officer in terms of Section 108 of the Customs Act. However, it is also an admitted fact that the present applicant in spite of having been summoned by the custom officer, did not appear before the custom officer for giving his statement. In the entire affidavit filed in support of the present application, there is no explanation as to why in spite of the service of the notice, the applicant chose not to appear before the Custom Officer. Therefore, such an omission on the part of the applicant will amount to the existence of an adverse circumstance against the applicant and the court can take the same into account while judging the correctness of the summoning order as well as the proceedings initiated against the applicant and the other accused by way of complaint case No.  941 of 2018 (Union of India Vs. Mahendra Kumar Bajapai and anr.) under section 135 of the Customs Act.

20. Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel commenced his challenge to the impugned summoning order by submitting that the statement of the co-accused Mahendra Kumar Bajapai is only in the nature of confession. He further submits that in view of the law laid down by the Apex Court in the case of Haricharan Kurmi Vs. State of Bihar, reported in 1964 AIR (SC) 1184, confession cannot be treated as evidence in terms of Section 3 of the Indian Evidence Act. Reliance was placed upon paragraph 11 of the said judgement which is reproduced herein under:-

"The question about the part which a confession made by a co- accused person can play in a criminal trial, has to be determined in the light of the provisions of s. 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession. The basis on which this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is found to be voluntary and it amounts to 'a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untrue, and so, s. 30 provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession. There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession Particularly if it has been retracted. With that aspect of the problem. however, we are not concerned in the present appeals. When s. 30 provides that the confession of a co- accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in s. 30 is not evidence under s. 30 of the Act. Sec. 3 defines "evidence" as meaning and including-

(1) all statements' which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents produced for the inspection of the Court;

11a. Such documents are called documentary evidence. Technically construed. this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the court permits or requires to be made before it; and clearly, a confession made by an accused person is not such a statement. it is not made or permitted to be made before the court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, s. 30 provides that a confession may be taken into consideration not only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by s. 30 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non- technical way. But it is significant that like other evidence which is produced before the Court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the Court. But a Court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the Court in dealing with a confession, because s. 30 merely enables the Court to take the confession into account."

21. Mr. Sanjay Singh, learned counsel for the Union of India, in opposition to the aforesaid submission of the learned Senior Counsel, submits that the statement made before the Custom Officer is not a statement recorded by a police officer under section 161 Cr.P.C. It is a material piece of evidence collected by the Custom's Officer under Section 108 of the Customs Act. He further submits that when such statement made by a person inculpates not only himself but also another person it can be used as substantive evidence against another person. In support of the aforesaid proposition, reliance was placed upon the judgement of the Apex Court in the case of Naresh J. Sukhawani Vs. Union of India, reported in AIR 1996 SC 522. Paragraphs 3 and 4 of the said judgement are relevant for the controversy in hand and are reproduced herein below:

"The Joint Secretary to the Government, the revisional authority, has held that the evidence and the statement given by Mr. Dudani incriminates the petitioner. This was established with reference to the photographs and other intrinsic material. On that basis, he concluded that Mr. Dudani incriminated himself and the appellant in passing off foreign currency out of India, i.e., to Hong Kong. It was accordingly held that the contravention was established. It is contended that the statement of coaccused could be used only to corroborate other evidence as one of the circumstances under Section 30  of the Evidence Act. But it cannot be used as substantive evidence without corroboration from other independent evidence. Except the statement of Dudani, there is no other independent evidence. Mr. Dudani's evidence cannot be pressed into service to arrive at the conclusion that the petitioner is involved in the passing off foreign currency out of India.

It must be remembered that the statement made before the Customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973. Therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act. That material incriminates the petitioner inculpating him in the contravention of the provisions of the Customs Act.  The material can certainly be used to connect the petitioner in the contravention inasmuch as Mr. Dudani's statement clearly inculpates not only himself but also the petitioner. It can, therefore, be used as substantive evidence connecting the petitioner with the contravention by exporting foreign currency out of India. Therefore, we do not think that there is any illegality in the order of confisaction of foreign currency and imposition of penalty. There is no ground warrantaing reduction of fine."

22. Subsequently a three Judge Bench of the Apex Court in the case of K.I. Pavunny vs Assistant Collector (H. Q.), Central Excise Collectorate Cochin considered the Provisions of Sections 108, 110 and 111 of the Customs Act as well as the Provisions of Section 24 to 30 of the Evidence Act as well as the provisions of Section 164 Cr.P.C. In the aforesaid case, the judgement of the Apex Court in the Case of Hari Charan Kurmi (supra) was also considered. The Apex Court concluded that the statement recorded under Section 107 of the Customs Act does not fall within the realm of confession and can be relied upon for the purpose of prosecution.

23. Having considered the respective submissions raised by the counsel for the parties, the court finds that the Customs Act is a special act. Therefore, the provisions of the Customs Act shall prevail over the provisions of Cr.P.C. The case law relied upon by the learned Senior Counsel Mr. Gopal Swaroop Chaturvedi for the applicant, relates to the provisions of the Indian Evidence Act in reference to the proceeding governed by the provisions of Criminal Procedure Code and the offence punishable under the Indian Penal Code. The subsequent judgement of the Apex Court in the case of Naresh J Sukhawani (Supra) specifically deals with the nature of the confession made by a co-accused before the custom officer and its evidentiary value. Therefore, the law laid down by the Apex Court in the aforesaid judgement, shall be squarely applicable in the facts and circumstances of the case. As such, the statement of the co-accused namely, Mahendra Kumar Bajapai recorded by the Custom Officer shall not fall in the category of confession but in the category of substantive piece of evidence under the Customs Act and can be used against the person making it as well as the person who is being implicated.

24. It was next contended that there is no evidence against the applicant and therefore, the case of the present applicant is squarely covered by the third category of cases in which proceedings can be quashed as held by the Apex Court in the case of R.P. Kapur Vs. The State of Punjab, reported in AIR 1960 SC 862. Paragraphs 6, 7 and 8 are quoted here under:-

"6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under S. 561- A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under S. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the a11egations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar, AIR 1928 Bom 184, Jagat Chandra Mozumdar v. Queen Empress, ILR 26 Cal 786,  Dr. Shanker Singh v. The State of Punjab 56 Pun LR 54, Nripendra Bhusan Roy v. Gobinda Bandhu Majumdar, AIR 1924 Cal 1018  and  Ramanathan Chettiyar v. K. Sivarama Subramania, ILR 47 Mad 722. 

7. Mr. Kapur, who argued his own case with ability before us, strongly relied on the decision of the Punjab High Court in S.P. Jaiswal v. The State & Anr., 55 Pun LR 77 and contended that in the interest of justice and in order to avoid unnecessary harassment to him we should ourselves examine the evidence on record and decide whether the said evidence can possibly lead to his conviction. In that case Jaiswal was charged with having committed offences under S. 147 and S. 452 of the Code and it does appear from the judgment of the High Court that the learned judge elaborately considered all the evidence on which the prosecution relied and came to the conclusion that the proceedings taken against Jaiswal and his co-accused should be quashed. It is, however, clear from the judgment that the learned judge was very much impressed by the fact that the police had reported that there was no case or at the most only a technical offence against Jaiswal but the district magistrate had interfered with the statutory duty of the police and had directed the police officer concerned to prosecute him. On these facts the learned judge was inclined to take the view that there was a violation of the fundamental right guaranteed to Jaiswal under Art. 21 of the Constitution. Besides, in the opinion of the learned judge the evidence on which the prosecution relied showed that the essential ingredients of the offence charged were missing" and the very essentials were non-existent". It is on these findings that the criminal proceedings against Jaiswal were quashed. It is unnecessary for us to consider whether the fundamental right guaranteed under Art. 21 had really been contravened or not. We have merely referred to the relevant findings recorded by the learned judge in order to emphasise the fact that this decision cannot be read as an authority for the proposition that an accused person can approach the High Court under S. 561-A  of the Code and ask it to appreciate the evidence adduced against him and quash the proceedings in case it thought that the said evidence did not justify the charge. In fact, in dealing with the case the learned judge has himself approved of the several decisions which have construed the nature and scope of the inherent jurisdiction under S. 561-A and so the decision must be confined to the basic findings recorded by the learned judge in that case.

8. This being the true legal position the question which falls for our decision is: Does the appellant show that his case falls under any of the three categories already mentioned by us. There is no legal bar to the institution of the present proceedings or their continuance, and it is obvious that the allegations made in the First Information Report do constitute offences alleged against the appellant. His argument, however, is that the evidence on record clearly and unambiguously shows that the allegations made in the First Information Report are untrue; he also contends that " certain powerful influences have been operating against him with a view to harm him and debar him officially and otherwise and have instigated and later seized upon the false First Information Report filed by Mr. Sethi against him". In this connection he has naturally placed emphasis on the fact that the investigating agency has acted with extraordinary dilatoriness in the matter and that for several months the police did not make the report under s. 173  of the Code."

25. Mr. Sanjay Singh, learned counsel for the Union of India, contradicted the said submission of the learned Senior Counsel. He submits that the statement of the co-accused namely, Mahendra Kumar Bajpai is a substantive piece of evidence and has also been filed before the court below. The attention of the Court was drawn to the list of evidence filed in the complaint case which is at page 39 of the paper book describing the evidence, which was filed before the court below. From the perusal of the same, it is apparently clear that the statement of the co-accused Mahendra Kumar Bajpai was duly filed in evidence. He further submitted that the call details of the present applicant with Mahendra Kumar Bajbapi, the co-accused have already been obtained subsequent to the filing of the compliant and shall be submitted before the court below. . He, further, submits that the applicant has only been summoned by the trial court and at this stage of the proceedings, it cannot be said that the prosecution has exhausted its right of adducing further evidence in support of its case. As already noted above, the statement of a co-accused recorded by a custom officer is a substantive piece of evidence and can be used as substantive evidence against another person. Therefore, the submission raised by the learned counsel for the applicant that there is no evidence against the applicant and as such, the proceedings are liable to be quashed, is wholly misconceived.

26. The court is not unmindful of the provisions of section 30 of the Indian Evidence Act, which is reproduced herein under:-

"30. Consideration of proved confession affecting person making it and others jointly under trial for same offence.--When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

27. From the perusal of the aforesaid section, it is explicitly clear that the confession affecting the person making it and others jointly under trial for the same offence if proved, can be taken into consideration against such other persons as well as against the person who makes the confession. Therefore, what is required to be established before the court below is the proof of the confession made by the co-accused namely, Mahendra Kumar Bajapai.

28. Admittedly, such an exercise can be undertaken only in the proceedings pending before the court below and cannot be preempted.

29. For all the reasons given herein above, no case for interference is made out. The present application under section 482 Cr.P.C. fails. It is accordingly dismissed. The interim order granted earlier shall stand discharged.

Order Date :- 9.7.2018

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