Allahabad High Court
Suresh Kumar vs State Of U.P. And 4 Others on 19 December, 2023
Author: Anjani Kumar Mishra
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:240256-DB
Reserved on 01.12.2023
Delivered on 19.12.2023
Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 18358 of 2023
Petitioner :- Suresh Kumar
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Vinay Sharma,Sr. Advocate
Counsel for Respondent :- G.A.,Dharmendra Pratap Singh
Hon'ble Anjani Kumar Mishra,J.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Vinay Sharma, for the petitioner and learned A.G.A. for the State.
2. The instant writ petition seeks quashing of the FIR dated 10.11.2023 giving rise to Case Crime No.0565 of 2023, under Sections 7, 13(1) and 13(2) of Prevention of Corruption Act, Police Station- Kandhala, District- Shamli.
3. The first information report alleges that on the complaint of one Kapil Singh, illegal gratification was being demanded from him for payment of his outstanding bill of Rs. 4 lakhs and odd, for construction of a CC Road, a trap was laid after obtaining due permission.
4. The first information report states that an application was made by Kapil Singh to the Executive Officer of Nagar Palika Parishad, Shamli, for release of the balance amount for the work performed by Kapil Singh. His application was forwarded by Executive Officer to co-accused Akram with the direction that Kapil Singh should contact the clerk who would tell him what was required to be done for release of the outstanding payment. The clerk initially demanded one lakh rupees but subsequently asked for Rs. 50,000/-.
5. The Trap team obtained the money from Kapil Singh and the serial numbers of the currency notes were noted and they were dusted with phenolphtalein powder and handed over by Kapil, who put them in an envelop. This envelop was handed over to Mohd. Akram, who counted the notes, placed them in the envelop and placed in his drawer. Thereafter, he was arrested and his hands were washed with sodium carbonate and water which turned pink and this sample was collected and sealed. Mohd. Akram, on his arrest, stated that Rs. 40,000/- were to be given by him to the Executive Officer Suresh Kumar, the petitioner.
6. The contention of learned Senior Advocate is that the petitioner has been named by one who has been entrapped. It is also contended that the petitioner has been falsely implicated on the statement of entrapped employee because two notices had been issued to the said Mohd. Akram, Clerk, on 09.11.2023 regarding complaints that he was accepting illegal gratification.
7. It is also contended that in view of Section 25 of the Indian Evidence Act and Section 162 of Cr.P.C., such a statement by an entrapped employee is not admissible in evidence. In support of the submissions, reliance has been place upon a decision of the Supreme Court in Aghnoo Nagesia v. State of Bihar, AIR 1966 Supreme Court 119, especially paragraph 8 thereof.
8. This judgment primarily holds that Section 25 of the Indian Evidence Act absolutely protects a confession made to a Police officer and this protection is also provided by Section 162 of Criminal Procedure Code. A confession, in the course of investigation and has been made while in the custody of the police officer and that a confessional first information report to a police officer cannot be used in view of the Section 25 of the Indian Evidence Act.
9. Learned AGA has stated that the judgment cited would not be attracted in the instant case because the petitioner himself had sent Kapil Singh to the Clerk with the instructions that Mohd. Akram would tell Kapil Singh what was required to be done by him, for release of his outstanding payment.
10. We have considered the submissions of learned counsel for the parties and perused the record and also the judgment cited.
11. The judgment, cited, is in a criminal appeal and holds that a confessional statement, made by the accused while in police custody and to a police officer, is not admissible in evidence against the person making it.
12. It would be relevant to note that the judgment cited would definitely be attracted at the stage of trial. Such is not the position in the case at hand. Here the Court is only required to consider as to whether the impugned first information report is liable to be quashed or not in exercises his jurisdiction under Article 226 of the Constitution of India.
13.The Court exercising jurisdiction under Article 226 of the Constitution of India in a petition which seeks quashing of a first information report is only required to examine as to whether the allegations in the first information report make out a cognizable offence. The Court is not required to examine the evidence nor is required to enter into an enquiry as to whether the allegations in the first information report will or can result in conviction. The Court is also not required to appreciate or rule on the admissibility or otherwise, the evidence that may have already been collected.
14. This Court is also constrained to hold that from the allegations levelled in the impugned first information report, a cognizable offence is definitely made out. The writ petition is therefore, liable to be dismissed.
15. The matter definitely requires investigation and this Court sees no justification to interfere.
16. The writ petition is accordingly, dismissed.
Order Date :- 19.12.2023
Aditya Tripathi
