Bombay High Court
Kamal Ahmed Mohammed Vakil vs The State Of Maharashtra on 26 November, 2012
Bench: A.M. Thipsay
1 Cri.Appeal 972-12
Tilak
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.972 OF 2012
IN
MCOC SPECIAL CASE No.21 of 2006
1. Kamal Ahmed Mohammed Vakil )
Ansari, Aged about 38 yrs, )
Indian Inhabitant, Occ.Business, )
Residing at & Post-Basupatti, )
Dist.Madhubani, State of Bihar. )
2
Dr.Tanvir Ahmed Mohd.Ibrahim
Ansari, Aged about 38 yrs,
)
)
Indian Inhabitant, )
Occ.Doctor by profession )
Residing at BIT Block, Bldg No.4/31, )
2nd floor, Mohd.Ansari Siddiqui Rd, )
Momin Pura, Agripada, )
Mumbai 400 011. )
3 Mohd.Faisal Ataur Rehman Shaikh )
Aged about 38 yrs, Occ.Business )
Residing at Tirupati Apt, 'A' Wing, )
2nd floor, Flat 203, Naya Nagar, )
Mira Road, Dist.Thane and Flat 24, )
Luck Villa, Kant Wadi, Perry Cross )
Road, Bandra (W), Mumbai 50. )
4 Ehtesham Kutubuddin Siddiqui )
Aged about 31 yrs, Indian Inhabitant )
Occ.Business, resident of 202, )
Safiya Manzil, Naya Nagar, Mira )
Road (East) District Thane )
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5 Mohammad Majid Mohammad Shafi )
Aged about 34 yrs, Indian Inhabitant )
Occ.Business, resident of 17/2/H/6, )
Canal West Road, Raja Bazar )
Kolkata - 700009. )
6 Shaikh Mohammad Ali Alam Shaikh )
Aged about 43 yrs, Indian Inhabitant )
Occ.Business, Residing at Plot no.33, )
T Line, Room No.2, Govandi, )
Shivaji Nagar, Mumbai 400 043. )
7 Mohammad Sajid Margub Ansari )
Aged about 35 yrs, Indian Inhabitant )
Occ.Business, Residing at 101, )
Saba Parveen Apts, Pooja Nagar Rd, )
Mira Road, District Thane )
8 Abdul Wahid Din Mohammad Shaikh )
Aged about 36 yrs, Indian Inhabitant )
Occ.Teacher, Residing at 6/7, Khan )
& Sanghvi Lane, Amrit Nagar, )
Ghatkopar(W), Mumbai 400086. )
9 Muzzamil Ataur Rehman Shaikh )
Aged about 28 yrs, Indian Inhabitant )
Occ.Service, Residing at Tirupati )
nd
Aprts, 'A' Wing, 2 floor Flat 203, )
Naya Nagar, Mira Road )
District Thane )
10 Suhail Mehmood Shaikh )
Aged about 42 yrs, Indian Inhabitant )
Occ.Business, Residing at House )
No.1538, Galli No.16, Bhimpura, )
Lashkar, Camp Area, Pune. )
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11 Zameer Ahmed Latifur Shaikh )
Aged about 38 yrs, Indian Inhabitant )
Occ.Business, Residing at Vallabhbhai)
Patel Nagar, Baithi chawl, 'L' Block )
Room No.100, Lotus, Worli, )
Mumbai 400 018. )
12 Naveed Hussain Khan s/o Rasheed )
Hussain Khan, Aged about 32 yrs, )
Indian Inhabitant, Occ.Service, )
Residing at A/604, Topaz Apt, )
Narmada Paradise, Shivar Garden )
Mira Road, Dist.Thane )
13 Asif Khan Bashir Khan @ Junaid
ig )
@ Abdulla Aged about 41 yrs, )
Indian Inhabitant, Occ.Business, )
Residing at 15 TBS Road, Sirsoli )
Naka, Jalgaon, Maharashtra ) APPELLANTS
Presently all Appellant Nos.1 to 13 are
lodged at Arthur Road Jail Mumbai.
VERSUS
The STATE OF MAHARASHTRA
At the instance of ATS, Mumbai vide
their C.R. No.5 of 2006 ) RESPONDENT
...
Dr.Yug Mohit Chaudhary i/b Mr.Khan Abdul Wahab along with
Ms.Naima Shaikh, Advocate for Appellants.
Mr.D.J.Khambatta, Advocate General with Mrs.Revati Mohite-Dere
PP with Ms.U.V.Kejriwal APP for the State.
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4 Cri.Appeal 972-12
CORAM : ABHAY M. THIPSAY, J.
JUDGMENT RESERVED: October 23, 2012
JUDGMENT PRONOUNCED: November 26, 2012
ORAL JUDGMENT:-
1 The appellants are the accused in MCOC Special Case
No.21 of 2006, pending before the Judge of the Special Court
constituted under the Maharashtra Control of Organized Crime Act,
1999 (hereinafter referred to as 'MCOC Act' for the sake of brevity).
They are aggrieved by the order dated 1 August 2012 passed by the
learned Trial Judge refusing to permit them to examine four
witnesses in their defence. They have, therefore, approached this
Court by filing an appeal as contemplated under section 12 of the
MCOC Act, praying that the said order refusing to issue summonses
to the said witnesses, be set aside and the appellants be allowed to
lead defence evidence, as proposed by them.
2 The appellants are also aggrieved by two other orders
passed by the learned Judge of the Special Court, and have filed
separate appeals challenging the said orders also (Appeal No.973 of
2012 and 992 of 2012). Though the appeals were heard together,
the questions needing determination in the present appeal, and in
5 Cri.Appeal 972-12
the said two appeals, not being the same, the said two appeals are
being disposed of by a separate, but common order.
3 The said MCOC Special Case No.21 of 2006 relates to seven
serial bomb blasts that took place in the local trains of Western
Railway on 11 July 2006 resulting in the death of 187 persons.
Initially, six different crimes were registered at different police
stations with respect to the said bomb blasts, and separate
investigations into those offences had commenced. However,
subsequently, the investigation of all the said crimes was taken over
by the Anti Terrorism Squad, Mumbai. Later on, provisions of the
MCOC Act were applied to the said case. The accusation which the
appellants are facing in the said MCOC Special case is in respect of
offences punishable under sections 302 IPC, 307 IPC, 326 IPC, 436
IPC, 427 IPC, 120B IPC, 120A IPC, 123 IPC, 124 IPC read with
section 34 of the IPC,offences punishable under the Indian
Explosives Act, and Prevention of Damage to Public Property Act,
offences punishable under the Indian Railways Act, offences
punishable under the Unlawful Activities (Prevention)Act 1967, and
offences punishable under section 3(1)(i), 3(2) and 3(4) of the
MCOC Act.
6 Cri.Appeal 972-12
4 The trial is in progress. Charge against the appellants was
framed on 6 August 2007. The recording of evidence commenced
on 8 December 2007. The prosecution closed its evidence on 4
April 2012.
5 The impugned order came to be passed in the following
circumstances. After they had been called upon to enter on their
defence,the appellants made an application (Exhibit 2891), praying
that witness summons be issued to 79 persons (mentioned in the
list contained therein) whom they wanted to examine as defence
witnesses. Inspite of the objection raised by the prosecution,
summonses were directed to be issued to some of the said
witnesses, including the witnesses mentioned at Serial Nos.61 to 74,
in the said list. Two defence witnesses were examined, and when
some more were to be examined, pursuant to some objection raised
by the learned Special Public Prosecutor, the Court called upon the
accused persons to specify with respect to each witness as to
whether such witness was being summoned only for production of
documents, or for giving evidence, or for giving evidence in
addition to the production of documents mentioned against the
names of such persons in the list of witnesses. Such details were
7 Cri.Appeal 972-12
given on behalf of the accused persons. It is at that stage that the
learned Special Public Prosecutor once again objected to calling the
witnesses mentioned at Serial Nos.63 to 66 in the list of witnesses.
The learned Judge, then, by an order dated 1 August 2012, declined
to issue witness summonses to those persons, though he had earlier
passed an order directing issuance of summonses to them. These
witnesses are :
63. Smt.Chitkala Zutshi
64. Shri Vishwas Nangre Patil, Dy.Commissioner of Police.
65. Shri Milind Bharambe, Dy.Commissioner of Police.
66. Shri Dilip Sawant, Dy. Commissioner of Police.
6 It would be necessary to note as to why the defence wanted
to examine these witnesses. According to the defence, the
prosecution case is that the appellants were, all, members of
Students Islamic Movement of India (SIMI), which is a terrorist
organization, and that they had entered into conspiracy to plant
bombs Mumbai's local trains. That pursuant to such conspiracy,
bombs that exploded on 11 July 2006, had been planted in seven
local trains. That is briefly the allegation against the appellants.
7 Another Special case being MCOC Special Case No.4 of
2009 is pending before another Court constituted under the MCOC
8 Cri.Appeal 972-12
Act. The accused in that case are different and none of the present
appellants is an accused in that case. The appellants learnt that the
Investigating Agency, in that case, had made a claim that the said
accused persons were members of an organization known as Indian
Mujahideen, and had carried out the bomb blasts that had taken
place in the local trains on 11 July 2006. According to the
appellants, in the remand application dated 7 August 2008 filed in
that case, the Investigating Agency had claimed that all the blasts in
Mumbai since the year 2005 had been carried out by the members of
Indian Mujahideen. The appellants also learnt that some of the
accused in the said Special Case No.4 of 2009 had confessed that
members of Indian Mujahideen had carried out the bomb blasts
taken place on 11 July 2006. According to the appellants, one
Sadiq - an accused in that case - had confessed that he had carried
out the bomb blasts in local trains on 11 July 2006, and this
confession of Sadiq was recorded by Dy. Commissioner of Police
Vishwas Patil (witness at Sr.No.64), under the provisions of section
18 of the MCOC Act. There were confessions also of two other
accused persons in that case, which were recorded by two other Dy.
Commissioners of Police - Milind Bharambe and Dilip Sawant
(witnesses at Serial Nos.65 and 66 respectively). These confessions
9 Cri.Appeal 972-12
form a part of record in the said Special Case No.4 of 2009, and
were taken into consideration while according sanction of the
Government for the prosecution in respect of the offences
punishable under the Unlawful Activities (Prevention) Act. The said
sanction order had been signed by Smt.Chitkala Zutshi (witness at
Sr. No.63)
8 The appellants contended that the allegation against them
was that they were the members of the SIMI, and that it is pursuant
to a conspiracy hatched by them, that the offences of blasting the
bombs in the Mumbai local trains had taken place on 11 July 2006.
It is the contention of the appellants that, that some other persons
who are accused in the MCOC Special Case No.4 of 2009 had
claimed that they were members of the Indian Mujahideen, and that
they had carried out the bomb blasts was relevant as that would
show that the appellants were innocent. According to them,
therefore, the said confessions recorded by the police in accordance
with the provisions of section 18 of the MCOC Act, were required to
be brought before the Court which is trying them, as and by way of
the appellants' defence. The witness at Sr. No.63 is the authority
who has granted sanction to prosecute the accused in the said
10 Cri.Appeal 972-12
MCOC Special Case No.4 of 2009, with respect to the offences
punishable under the Unlawful Activities (Prevention) Act. The
object behind examining her, was said to be to show that the
material produced before the sanctioning authority included the
said confessions which were duly taken into consideration by the
said witness, while granting sanction.
9 It was decided, by consent of the parties, that the appeal be
heard finally at the admission stage itself. By consent, calling for
the Record and Proceedings was dispensed with.
10 I have heard Dr.Yug Choudhary, learned counsel for the
appellants. I have heard Shri Darius Khambatta, learned Advocate
General, on behalf of the State of Maharashtra. Apart from the oral
arguments, written submissions have been filed by both the parties
in support of their respective contentions.
11 I have carefully gone through the impugned order and
other relevant record.
12 Dr.Choudhary submitted that the impugned order is clearly
bad in law. He submitted that the evidence that was being adduced
by the appellants was extremely relevant in the context of the
11 Cri.Appeal 972-12
allegations against them. He submitted that the appellants were
charged of having committed the most heinous and serious crime,
and that in the event of their being found guilty, the appellants were
almost certain of receiving a death penalty. He submitted that
therefore, the appellants ought to be given a full and complete
opportunity of defending themselves satisfactorily. He submitted
that the attitude of the prosecution in attempting to keep this
relevant piece of evidence out of consideration, was not justified,
and that the Court has erred in refusing to issue witness summonses
to the aforesaid witnesses. He also submitted that the decision not
to summon the witnesses in question, was not arrived at by the
Trial Court in a proper manner, inasmuch as the Trial Court had
initially directed issuance of summons to those witnesses in spite of
the objection of the prosecution; but while discussing some
incidental or ancillary objection or matter, the prosecutor was
permitted to again raise objection - by making oral submissions -
in respect of the summoning of the said witnesses, which objection,
at that stage, was accepted by the Court. Dr.Chaudhary, in his
written submissions in support of the appeal, has raised certain
questions of Law, needing determination in this appeal.
12 Cri.Appeal 972-12
13 According to the learned Advocate General, the
impugned order is proper and legal. He submitted that the
confessions of the accused persons in some other case would not be
admissible in the present case. According to him, the confession
had been recorded under section 18 of the MCOC Act, which forms
a complete Code in respect of such confessions, and that they can
be used only in the manner stipulated by the said section. He
submitted that the impugned order is well reasoned and does not
warrant any interference.
14 It may be observed that the contentions that were
raised before the Trial Court by the learned Special Public
Prosecutor, and the contentions that were raised before this Court
by the learned Advocate General, are not identical. In fact, in the
course of oral arguments, the learned Advocate General gave up
certain contentions that had been raised by the learned Special
Public Prosecutor before the Trial Court even though such
contentions had found favour with the Trial Court. From the
written submissions filed on behalf of the State also, it is clear that
some of the contentions raised by the learned Special Public
Prosecutor before the Trial Court were given up before this Court.
13 Cri.Appeal 972-12
However, since such contentions have been accepted by the Trial
Court, it would be necessary to deal with such contentions also.
15 Though no contention that the evidence sought to be
adduced by the appellants is irrelevant was raised by the State,
either before the Trial Court or before this Court, it would be
proper to first consider this aspect of the matter. What the
appellants are saying is that they are alleged to have committed a
particular offence, and that some other person/persons accused in
another case has/have confessed about having committed the
crimes with which they are charged. The logical relevancy of such
evidence is obvious. However, a fact however relevant logically,
may not be receivable in evidence automatically unless it is declared
to be relevant by the Evidence Act. In my opinion, the evidence
sought to be adduced by the appellants is clearly relevant under
section 9 and 11 of the Evidence Act. In fact, section 11, it is held,
makes all facts logically relevant, legally relevant. Section 11 has
been described by some learned authors on the Law of Evidence as
the residuary section dealing with relevancy of facts.
14 Cri.Appeal 972-12
16 Section 11 declares the relevancy of a class of facts
which in themselves are not relevant, but which acquire relevancy
by reason of their connection with some relevant fact on which the
prosecution relies for the purpose of proving its case against the
accused. This class of facts is highly valuable to the accused in
support of his defence, because they tend, together with the
explanation offered by the accused of the circumstances appearing
in the evidence against him, to expose the infirmity of the
prosecution case and to demolish the inferential structure on which
that case rests (see Principles and Digest of the Law of Evidence by
M. Monir, page 109, Thirteenth Edition 2001 Published by The
University Book Agency ALLAHABAD 211001). A further discussion
on the provisions of section 11 will have to be undertaken in the
latter part of this judgment while dealing with some specific
contentions raised by the learned Advocate General. What needs to
be observed here is however, that the evidence sought to be
adduced by the appellants is certainly relevant. It may be added
that the very statements made by the learned Special Public
Prosecutor before the Trial Court, as are reflected in the impugned
order, indicate that the relevancy of this evidence was not only
never challenged by the prosecution, but rather the relevancy was
15 Cri.Appeal 972-12
highlighted by the prosecution itself. The Trial Court also has not
come to the conclusion that the evidence proposed to be adduced
by the appellants was not relevant. No contention that the evidence
is irrelevant, has been raised before this Court either. The objection
to the receipt of such evidence was based on the issue of
admissibility. It is true that relevancy and admissibility, though
sometimes used in the same sense, are actually not the same. A fact
may be legally relevant still the law may prohibit it from being
given in evidence on certain grounds. Every
relevant
fact is
therefore, not necessarily admissible
,
but once the relevancy of a
fact is established, it is for the party objecting the reception of such
evidence to show that it is not admissible.
17 In the instant case, the evidence sought to be adduced
by the appellants has been held by the Trial Court, to be
inadmissible.
18 Before examining the rival contentions and going into
the merits of the objections raised by the prosecution before the
Trial Court, a primary and fundamental issue raised by
Dr.Choudhary, the learned counsel for the appellants, needs to be
16 Cri.Appeal 972-12
decided. Dr.Choudhary contended that the order passed by the
learned Trial Judge is not proper for a more primary and
fundamental reason. According to him, in view of the directions
given by the Supreme Court of India in the case of Bipin Panchal
Vs. State of Gujarat (2001) 3 SCC, the learned Trial Judge, at that
stage, was not required to, or expected to decide the objections
raised by the learned Special Public Prosecutor to the admissibility
of the evidence in question finally. Indeed, instead of deciding the
objections after elaborately considering various legal provisions and
after hearing the counsel for the parties at length, the Trial Judge
ought to have kept the directions given by the Supreme Court of
India in the said case in mind. In that case, Their Lordships
expressed concern about protracted trials, particularly where the
accused persons are languishing in prison for long years as under-
trial. One of the causes resulting in such protracted trials was
observed to be 'the objections taken by either of the parties to the
receipt of certain evidence or documents in evidence by challenging the
admissibility of such evidence, and the passing of detailed orders by
the trial Court while either upholding or over-ruling such objections'.
This is what their Lordships observed and held:-
17 Cri.Appeal 972-12
13.It is an archaic practice that during the evidence-
collecting stage, whenever any objection is raised
regarding admissibility of any material in evidence the
court does not proceed further without passing order
on such objection. But the fallout of the above
practice is this: Suppose the trial court, in a case
upholds a particular objection and excludes the
material from being admitted in evidence and then
proceeds with the trial and disposes of the case
finally. If the appellate or the revisional court, when
the same question is recanvassed, could take a
different view on the admissibility of that material in
such cases the appellate court would be deprived of
the benefit of that evidence, because that was not put
on record by the trial court. In such a situation the
higher court may have to send the case back to the
trial court for recording that evidence and then to
dispose of the case afresh. Why should the trial
prolong like that unnecessarily on account of practices
created by ourselves. Such practices, when realised
through the course of long period to be hindrances
which impede steady and swift progress of trial
proceedings, must be recast or remoulded to give way
for better substitutes which would help acceleration
of trial proceedings." (Emphasis supplied)
18 Cri.Appeal 972-12
14.When so recast, the practice which can be a better
substitute is this: Whenever an objection is raised
during evidence-taking stage regarding the
admissibility of any material or item of oral evidence
the trial court can make a note of such objection and
mark the objected document tentatively as an exhibit
in the case (or record the objected part of the oral
evidence) subject to such objections to be decided at
the last stage in the final judgment. If the court
finds at the final stage that the objection so raised is
sustainable the Judge or Magistrate can keep such
evidence excluded from consideration. In our view
there is no illegality in adopting such a course.
(However, we make it clear that if the objection
relates to deficiency of stamp duty of a document the
court has to decide the objection before proceeding
further. For all other objections the procedure
suggested above can be followed).
Their Lordships further went on to explain:
15.The above procedure, if followed, will have two
advantages. First is that the time in the trial court,
during evidence-taking stage, would not be wasted on
account of raising such objections and the court can
19 Cri.Appeal 972-12
continue to examine the witnesses. The witnesses
need not wait for long hours, if not days. Second is
that the superior court, when the same objection is
recanvassed and reconsidered in appeal or revision
against the final judgment of the trial court, can
determine the correctness of the view taken by the
trial court regarding that objection, without bothering
to remit the case to the trial court again for fresh
disposal. We may also point out that this measure
would not cause any prejudice to the parties to the
litigation and would not add to their misery or
expenses.
16 We, therefore, make the above as a procedure
to be followed by the trial courts whenever an
objection is raised regarding the admissibility of any
material or any item of oral evidence.
(Emphasis supplied)
19 In view of these directions given by the Supreme Court
of India, the Trial Court, even if it felt any doubt about the
admissibility of the evidence in question, ought to have admitted
the evidence subject to the question of its admissibility to be
decided later in the final judgment. That the aforesaid observations
are 'law declared' by the Supreme Court of India, and are binding
20 Cri.Appeal 972-12
on all Courts Tribunals within the Territory of India, cannot be
doubted for a moment. These observations were quoted with
approval by the Supreme Court in its subsequent decision in State
Versus Navjot Sandhu (2003)6 SCC 641.
20 Dr.Chaudhary has brought to my notice a decision of
the Gujarat High court in State of Gujarat Vs. Ashulal Nanji
Bisnol and others 2002(4) Crimes 47. In that case, it was
contended before the Gujarat High Court that the decision in the
aforesaid case of Bipin Panchal (supra) would not be binding under
Article 141 of the Constitution of India, as that was not the ratio of
the decision given by the Supreme Court. The Gujarat High Court
negatived such contention, and held that what was decided by the
Supreme Court in paragraph nos. 13, 14, 15 and 16 of Bipin
Panchal's case (supra) (reproduced above), was not a passing
observation, but 'deliberate judicial decision' on consideration of the
point involved in the matter, and therefore, it had a binding effect.
21 The impugned order, therefore, is clearly in breach of
the directions of the Apex Court given in Bipin Panchal's case
(supra).
21 Cri.Appeal 972-12
22 The learned Advocate General, in this context,
submitted that if the appeal is to be remanded back on that basis
with a direction to admit the said evidence, and decide its
admissibility at the final stage, then he would have no objection for
the same. He, however, submitted that the impugned order cannot
be called to be erroneous or illegal only on that ground that the
directions given in Bipin Panchal's case (supra) were not followed.
According to him, though the Trial Court ought to have kept the
directions given by the Supreme Court of India in Bipin Panchal's
case in mind, still, the order passed by it being well reasoned,
proper and legal, was not liable to be interfered with.
23 Though it is possible to say that the directions given by
the Supreme Court of India are practice directions, and that, though
ordinarily required to be followed, they cannot be construed as
laying down that the Trial Court does not have the power or
authority to decide the admissibility of a piece of evidence that is
being offered at that stage itself, and before actually admitting it,
this was not a case where it was proper to ignore the directions.
One has to consider why the necessity of giving such directions
22 Cri.Appeal 972-12
arose. There may be cases where the admissibility of the evidence
that is being adduced can be instantly decided, as it would be an
obvious matter needing no discussion or elaboration. One can
understand if in such a case, the Trial Court chooses to decide the
objection about the admissibility, then and there. However, where
the admissibility or relevancy is required to be decided after hearing
elaborate arguments, with reference to various provisions of law,
and by passing a detailed order, then it would be proper to admit
such evidence subject to the decision about its admissibility at a
later stage. In such cases there would be no justification for not
following the directions given in Bipin Panchal's case. In fact,
the loss of time consumed in such process was, what was sought to
be prevented by the Supreme Court of India by giving said
directions; and how right Their Lordships were can be seen from
what has happened in the instant case itself. The deciding of the
question of admissibility without adhering to the directions given by
the Supreme Court of India, has resulted in considerable delay
inasmuch as during the pendency of these appeals, the trial could
not be proceeded with. Indeed, this was a fit case where the trial
Court should have kept the directions given by the Supreme Court
of India in Bipin Panchal's case (supra) in mind and followed them.
23 Cri.Appeal 972-12
24 Undoubtedly, the learned Advocate General conceded
that if the matter was to be remanded back on this ground, he
would have nothing to object, but since by that time arguments on
the merits of the matter had already been advanced, and the appeal
on merits having been substantially heard, the learned counsel for
the appellant submitted that he would invite a decision on merits
of the matter. If such a submission and suggestion would have
come from either of the parties before advancing arguments on the
merits of the impugned order, this Court might have sent the
matter back to the Trial Court with directions to follow the
procedure laid down by the Supreme Court of India in Bipin
Panchal's case, but after having heard the matter extensively on
merits, where, in addition to oral arguments, written submissions
have been filed by both the parties and when a number of
authoritative pronouncements in support of their respective
contentions have been referred to and relied upon, it would be
proper to decide the matter on merits. Also, from a reading of the
order passed by the Trial Court it becomes clear that its conclusion
about the 'inadmissibility' of the evidence has assumed finality, as
far as that court is concerned, and therefore, remanding the matter
24 Cri.Appeal 972-12
back with a direction that the evidence may be admitted subject to a
decision of its admissibility, to be arrived at later before the final
judgment, would be rather unfair to the appellants.
25 What were the objections that were raised before the
Trial Court regarding the reception of the said evidence, and what
were the reasons for which the learned Trial Judge held that the
appellants were not entitled to bring on record the evidence in
question may now be examined.
26 It appears that the first objection was to the effect that
Court cannot take the evidence of those witnesses in respect of the
documents that were filed in some other case, and which were not yet
proved there. It is apparent that there was no substance in such an
objection. This would suggest that the Special Public Prosecutor
would have had no objection if those documents had been proved
in the other case i.e. MCOC Special Case No.4 of 2009. The legal
basis of such objection is difficult to comprehend. The Law does not
require that the documents sought to be proved in one case, must
have been earlier proved in some other case, without which they
cannot be permitted to be proved in the first mentioned case. The
25 Cri.Appeal 972-12
accused were not calling for those documents as 'proved documents'
and it was their responsibility to prove them in this case, if they
wanted to rely on them. That 'the documents had not yet been
proved in the case in which they were filed', was certainly not a
point that should have bothered the prosecution.
27 The second objection that was taken before the Trial
Court was that the evidence in question would be hit by the rule
against 'hear-say'. The impugned order records in details the
contentions raised by the learned Special Public Prosecutor in this
regard. It was contended by the learned Special Public Prosecutor
that the 'core issue revolved around the fact that one person had
given a confession in another case'. That, 'if such confession would
come on record of MCOC Special Case No.21 of 2006, it would be
inconsistent with the guilt of the accused persons, and that
therefore, the accused wanted that it should be brought on record
in the aforesaid MCOC Special Case No.21 of 2006'. It was
contended by the learned Spl.P.P, 'that the three accused who had
given confessions were the best witnesses to give evidence about
the contents of the confession; and that, the evidence which the Dy.
Commissioners of Police would be giving would be 'hear-say'.
26 Cri.Appeal 972-12
These contentions found favour with the learned Judge who was of
the view 'that the Dy. Commissioners of Police who recorded the
confessional statements would not be in a position to state whether
the facts stated in such confessions were true'.
28 It is not possible to accept the view of the learned
Judge. In the first place, the appellants had not claimed - and
could not have claimed - that the confessions of those accused 'were
true'. They were not expecting to 'prove' those confessions against
those accused. What they were saying is that someone else has
confessed of having committed the offence with which they are
charged, and it is difficult to see how they could be precluded from
establishing the same on the ground that such evidence would be
'hear-say'. For that matter, every confession, so long as it is
tendered for proving the facts stated therein, is 'hear-say'. The
general rule against 'hear-say', as laid down by the Evidence Act is
qualified by and is subject to the following three important classes
of exceptions, recognized by the Evidence Act itself.
(A) Admissions and confessions;
(B) Statements by deceased persons,
and
(C) Statements contained in public documents.
27 Cri.Appeal 972-12
Hear-say evidence, when falling within any of the above exceptions
is receivable notwithstanding that direct evidence of the facts
involved may also be available. Interestingly, this line of reasoning
put forth by the learned Special Public Prosecutor before the Trial
Court logically should lead to the conclusion that the evidence of
the Dy. Commissioners of Police concerning the confessions of the
said accused persons in the said Special case No.4 of 2009 would
not be admissible against those accused, being hit by the rule
against 'hear-say'.
29 The absurdity of such reasoning does not end here. If
that the concerned Dy. Commissioners of Police would not be in a
position to state 'whether the facts stated in such confessions were
true' is a proper ground to disallow their evidence, how can their
evidence be given in MCOC Special Case No.4 of 2009? How can
they, in that case would be in a position to state so? This problem
will come in all the confessions, as the truth of the facts stated in
the confession will be known to the confessor, and not to the person
to whom it is made. Such person only gives evidence of the fact
that a confession was made, and it is the Court that decides whether
the fact of confession having been made is true and also whether
28 Cri.Appeal 972-12
the facts stated in the confession are true. Confessions are treated as
circumstantial evidence of the truth of the facts stated therein and it
is the Court that decides whether the facts stated in the confession
should be believed or not in a given case. It is a matter of
evaluation of evidence to be done by the Court after it is tendered.
There is therefore, no substance in such contentions, which have,
rightly been given up by the Respondent - State, before this Court.
The learned Judge was clearly in error in accepting this contention
and holding the evidence, proposed to be adduced by the appellants
as inadmissible, being hit by the rule against 'hear-say'. Perhaps,
being aware of this obvious absurdity in this sort of reasoning, a
claim has been made that all this happens, because of the provisions
of section 18 of the MCOC Act, which is the main contention - if not
the only contention - put forth before this Court; and shall be
examined and discussed later, in the light of the arguments
advanced by the learned Advocate General.
30 Again, there exists a difference between the truth of the
facts contained in a confession, and the fact that a confession exists.
The fact that someone else has confessed about having committed
the crime with which the appellants are charged is relevant in itself.
29 Cri.Appeal 972-12
In fact, it is difficult to understand as to how the Court is supposed
to decide whether the confession is truthful or not before the
evidence of such confession is given. It is interesting to note that
though some arguments were advanced by the learned Advocate
General to the effect that 'the fact that someone else has confessed
about the same crime for which the appellants are being charged, is by
itself not relevant at all unless the truth of such confession is sought to
be proved,' that was not the stand of the learned Special Public
Prosecutor before the Trial Court. In fact, the impugned order itself
records that the objection of the Special Public Prosecutor was that
if the confessions of the accused in the MCOC Special Case No.4 of
2009 is brought on record of the case against the appellants, it
would be inconsistent with the guilt of the accused (paragraph no.6
of the order). It was the specific contention of the Special Public
Prosecutor before the Trial Court that the appellants wanted to
bring the said confession on record in the present case, because
such confession would be inconsistent with the guilt of the
appellants.
31 I have, nevertheless, seriously taken into consideration
as to whether simply because the evidence of the confessing
30 Cri.Appeal 972-12
accused in the said MCOC Case No.4 of 2009 would be available,
the evidence of their confessions recorded by the Dy. Commissioner
of Police should not be admitted. I am unable to hold so. Simply
because there is no bar for examining the confessing accused
themselves, it cannot be contended that the confessional statements
made by them cannot be brought on record. It may once again be
emphasized that when such evidence is rendered admissible by the
Evidence Act and when it is a well recognized exception to the rule
against hear-say, only because direct evidence would also be
available, the evidence does not become inadmissible. The
possibility of 'better evidence' in the form of testimony of the
confessing accused being available will not bar the admissibility of
what has been declared as relevant and admissible by the Evidence
Act. For instance, entries in Public books and records and
Statements contained in public documents are also treated as
exception to the rule against hear-say, and are admissible in
evidence, irrespective of the fact whether the public servant or the
authority which made the entries or statements is available for
examination. The law does not prevent the evidence declared to be
relevant by section 35 of the Evidence Act from being given even if
direct evidence of the maker of the entries would be available.
31 Cri.Appeal 972-12
Same is the case here. Apart from this, there is another aspect of
the matter. Even if the Dy. Commissioners of Police are examined, if
the need would arise, the defence - or even the Court for that
matter - would be at liberty to thereafter examine the confessors
themselves. It should be left to the appellants to decide whether
to examine the confessors as witnesses for defence, which option
will not be closed to them, even after the Dy. Commissioners of
Police are examined. In this context, the powers of the Court under
section 311 of the Code and section 165 of the Evidence Act also
need to be kept in mind and, therefore, the matter cannot be
approached from an angle as if examination of Deputy
Commissioners of Police would be 'in place of' and 'instead of'
examining the confessing accused themselves. Thus, in short, the
evidence which is otherwise relevant and admissible cannot be shut
down on the ground that evidence of the confessors themselves
would be available, and that, therefore, the appellants must
introduce that evidence alone.
32 At the cost of repetition, it may be observed that what
the appellants wanted was to bring a conflicting piece of evidence
32 Cri.Appeal 972-12
before the Court, and not that the other accused were guilty of the
offences with which the appellants are charged. All that the
appellants wanted to establish was that there exists some material
or evidence with the police that someone else had confessed about
the crime with which they are charged. Therefore, for proving that
a confession of such type indeed existed, the evidence of the
persons before whom such confession was made, and by whom it
was recorded would be relevant and admissible.
33 The vehemence with which the reception of the
evidence collected by its own investigating machinery is opposed by
the State is difficult to understand. This is particularly so because
that evidence is being relied upon in the said other case. Surely, it
is not that the State thinks that its investigating machinery has
fabricated the said evidence - atleast that is not suggested.
Whether the facts stated in the confessions are true, would be
decided by the Court. Simply because such confessions or the fact
that someone else had confessed about the crime in question would
be brought on record, it would not lead to the Trial Court accepting
that such confession was true, or that the appellants are innocent.
Such confession, or rather its existence, would only be a relevant
33 Cri.Appeal 972-12
fact, the value of which was required to be judged by the Trial Court
while considering the ultimate effect of the evidence adduced by
and against the appellants during the trial. The attempt to obstruct
the entry of this evidence therefore was not at all justified.
34 It is clear that the facts which are permitted to be
introduced in evidence by virtue of section 11, need not be of a
conclusive nature and tendency. There is a view that when they are
admissible under the provisions of section 11 as inconsistent with
any facts in issue or relevant fact, it would be immaterial whether
they are inadmissible under other provisions of the Evidence Act. It
cannot be lost sight of that in a criminal trial, the accused is not
required to conclusively disprove the charges against him, and the
burden of proving the charges always rests on the prosecution.
Since the benefit of any doubt about the guilt accrues to the
accused, it is sufficient for the purposes of defence, to bring such
evidence on record as would create a doubt about the truth of the
prosecution case, or the evidence adduced against an accused.
Certainly, the requirement of such evidence being admissible in law
is there, but it cannot be suggested that only the evidence of a
conclusive nature or tendency can be permitted to be introduced on
behalf of the accused persons.
34 Cri.Appeal 972-12
35 A reference to a decision of the Supreme Court of India
in Satbir Vs. State of Maharashtra 1981 SC 2074, would be useful
in this context. In that case, the appellant before the Supreme
Court had been convicted of an offence punishable under section
394 of the IPC read with section 397 of the IPC and section 34 of
the IPC, and had been sentenced to suffer RI for seven years, which
conviction had been upheld by the High Court. The prosecution
case was that the original complainant Bhagwan Singh was robbed
by Satbir (appellant before the Supreme Court) and Dayanand, of a
watch and a cycle. The First Information Report was lodged on 23
September 1973 giving details of the robbed property. The
appellant Satbir was arrested on 29 September 1973 and though
the Test Identification Parade was arranged to be held on 9 October
1973, it did not take place because Satbir refused to participate in
the same, on the ground that he had been shown to the witnesses.
The High Court based the conviction of the appellant only on the
recovery of the watch made from him on 29 September 1973 when
he was arrested in the course of ambush. There was evidence of
some witnesses to prove the recovery of the watch from the
possession of the appellants. It was noticed by Their Lordships of
35 Cri.Appeal 972-12
the Supreme Court of India that on 27 September 1973, Dayanand
had filed an application before the Magistrate, alleging that the
police had arrested the appellant Satbir in connection with the First
Information Report, and were trying to arrest Dayanand also, in
order to implicate him falsely, and to get him identified. Their
Lordships observed that the said statement clearly showed that
there was a possibility of the appellant having been arrested on 27
September 1973 or even before before that; and that if there was
any truth in that statement, then the evidence of recovery, produced
by the prosecution became extremely suspicious. It was contended
by the counsel appearing for the State that the application filed by
Dayanand was not admissible and could not be taken into
consideration in order to dislodge the prosecution case. Their
Lordships observed, in that context that though the said application
did not have much evidentiary value, it was undoubtedly relevant
under section 11(2) of the Evidence Act. The said application was
taken into consideration and it was held that the recitals contained
therein, together with certain other factors, created a doubt about
the story of appellants' arrest on 29 September 1973 and
consequently about the recovery. The conviction of the appellant
was set aside and he was acquitted.
36 Cri.Appeal 972-12
36 Similar examples where statements contained in
documents or records, not strictly proved in accordance with the
provisions in Evidence Act are taken into consideration because of
the sheer inconsistency of such material with the prosecution story,
can be noticed in criminal cases involving the evidence of dying
declarations. Cases where the facts show that initially, the victim
narrated the history of accident which is recorded by some
authority and later on, the victim made a statement alleging that
that she had been set on fire by someone else are not uncommon in
criminal courts. It often happens that the prosecution seeks to rely
only on the statement of the victim to the effect that she was set on
fire by the accused, and does not prove the other statement viz,that
she had caught fire accidentally, for obvious reasons. There are
reported cases where the superior Courts have held that the
existence of such a statement would be inconsistent with the fact of
the victim having been set on fire by the accused, and therefore,
was relevant, and required to be taken into consideration by the
Court. In fact, it has been held that it would be the duty of the
prosecution to bring such fact on record (as a part of its duty to act
fairly), and in case it chooses not to bring it on record, the accused
37 Cri.Appeal 972-12
is not precluded from bringing on record statement of the deceased
which was inconsistent or contradictory to her statement relied
upon by the prosecution. It would be open for the prosecution to
contend that the statement of the deceased which has been relied
upon by it, is trustworthy and reliable; and that the statement on
which the accused is placing reliance is unworthy of belief; but that
would be a matter concerning appreciation of evidence and not
admissibility or relevancy of that particular piece of evidence. The
entry of such evidence cannot be obstructed.
37 Another consideration which weighed with the Trial
Court in refusing permission to examine the said witnesses is that
the evidence of those witnesses if permitted to be adduced, it would
prejudice the accused in the MCOC Special Case No.4 of 2009 as
those accused would have no opportunity to cross examine the
witnesses i.e. the Dy. Commissioners of Police - who would be
deposing about their confession. According to him, therefore, the
evidence of those witnesses would be inadmissible.
38 This reasoning is not only entirely wrong, but rather
surprising. In the first place, lack of opportunity to the accused in
38 Cri.Appeal 972-12
the MCOC Special Case No.4 of 2009 to cross examine the said
witnesses, would render their evidence inadmissible in that case
(MCOC Special Case No.4 of 2009) and not in this case. Secondly,
the apprehension felt by the learned Judge that a certified copy of
the evidence of the Dy.Commissioners of Police, if recorded in this
case, can be tendered in the MCOC Special Case No.4 of 2009, and
that would cause prejudice to the said accused, is baseless. The
observations to that effect as found in paragraph no.8 of the
impugned order do not indicate whether this is the view of the
learned Judge himself, or he was merely reproducing the contention
advanced by the learned Special Public Prosecutor. However, he
seems to have accepted such contention and, therefore, the
propriety thereof, needs to be discussed. These observations
whether they are in the nature of submissions of the Special Public
Prosecutor, or the opinion of the learned Trial Judge - are patently
incorrect. It is elementary that the guilt or innocence of an accused
is to be decided on the basis of the evidence adduced in the trial
against him, and not on the basis of evidence adduced in some
other case. The evidence of the Dy. Commissioners of Police given
in the present case, could not have been the evidence in the MCOC
Special case No.4 of 2009, and there was absolutely no danger that
39 Cri.Appeal 972-12
the same could be treated as evidence against the accused in those
cases. The observations that a certified copy of the evidence of
those witnesses, if recorded in this case could have been tendered in
MCOC Special Case No.4 of 2009, is hopefully, not the observation
of the learned Judge, and is only an argument advanced by Special
Public Prosecutor before him. Such argument which has not been
refuted straight away by the learned Trial Judge, is rather surprising
in the light of the elementary fact that in every trial, evidence has to
be adduced before the concerned Court, and a certified copy of the
deposition of the witnesses recorded in some other case cannot be
tendered before the Court for proof of the facts stated in such
deposition. Where would be the question of causing prejudice to
the accused in the said case when such evidence would not be
before that Court, in the first place, and in the second place, even if
it is attempted to be brought on record, it would not be admissible
not having been recorded in that case, and in any case, not having
been recorded in the presence of the accused in that case. Dr.
Choudhary rightly pointed out that the only provision of law which
would make such evidence relevant for proving the facts stated in
such evidence would be section 33 of the Evidence Act, but that the
conditions for the relevancy and admissibility of such evidence as
40 Cri.Appeal 972-12
laid down in the said section, not having been fulfilled, there was
absolutely no reason to disallow the evidence in the present case on
the ground that it would prejudice the accused in MCOC Special Case
No.4 of 2009. This is apart from the fact that I entirely agree with
the learned counsel for the appellants that the Trial Court should
have been more concerned about the prejudice that would be
caused to the appellants rather than bothering about the prejudice
that was likely to be caused in its opinion to some other accused
persons in some other case which was not before it. This reasoning
also is without merit.
39 The only other consideration which led the learned
Trial Judge to hold that the witnesses in question, could not be
examined is that confessions of the said accused persons were not
admissible in this case, in view of the provisions of section 18 of
the MCOC Act.
40 In the present appeal, this is the main - or rather the
only - point that is seriously canvassed for contending that evidence
of the said confessions recorded by Dy. Commissioners of Police
would be inadmissible. Thus, though the reasoning of the Trial
41 Cri.Appeal 972-12
Court was based on some other aspects also, and though the
arguments advanced before the Trial Court objecting to the
reception of such evidence were not entirely on the ground that
section 18 of the MCOC Act bars it, in this appeal this is what has
been mainly contended.
41 According to the learned Advocate General such a
confession recorded under the provisions of section 18 of the MCOC
Act, can be used only in the case in which it is recorded and not
during the trial of any other case. Apart from his submission that
language used in section 18 warrants such an interpretation, the
Learned Advocate General submitted that the practice of permitting
evidence of confessions recorded in one case, to be given in another
case, would be dangerous. He submitted that, such a course, if held
permissible, in fact, would affect the accused persons seriously. He
posed a question as to 'what would happen if the prosecution starts
taking out confessions recorded in other cases, and proving the
same against the accused in a given case.' According to him, it was
clearly not permissible; and 'since this cannot be allowed to be done
by the prosecution, it would follow that even the accused persons
would not be able to do so'. That 'the confession recorded in one
42 Cri.Appeal 972-12
case cannot be used in another case' is one of the strong grounds
on which the Learned Advocate General contends that the evidence
that was sought to be adduced by the appellants would be
inadmissible. The proposition put forth by the learned Advocate
General does not seem to be correct. The relevancy of a piece of
evidence is determined by the provisions in the Evidence Act, (or
any other law providing for the relevancy and admissibility of
evidence). The concept of relevancy cannot be decided ' case wise
'
but ' fact wise
'. It cannot be accepted that if evidence relevant in
establishing one crime is discovered while investigating into another
crime, such evidence would be inadmissible or irrelevant in the trial
with respect to the first mentioned offence. If any authority is felt
necessary on this issue, the same can be found in the decision of
the Supreme Court of India in State of Gujarat Vs. Mohd.Atik, AIR
1998 SC 1686. In that case, the Public Prosecutor had moved the
Trial Court for permission to use a confessional statement of an
accused made during investigation of another crime, but the trial
Judge had disallowed the same on the premise that 'unless the
confession was recorded during the investigation of the very offence
under trial, it cannot be used in evidence of that case'. This order was
challenged by the State of Gujarat by filing an appeal by Special
43 Cri.Appeal 972-12
Leave. Their Lordships reproduced the question framed by the Trial
Court which read as under:-
"The question therefore is whether the prosecution
be permitted to introduce and prove the
confessional statement of an accused, alleged to
have been made during the investigation of another
offence committed on a different date, during the
trial of that accused in another crime".
Their Lordships observed that the confession had been duly
recorded in accordance with the provisions of section 15 of the
TADA Act and, was therefore, admissible in evidence. Their
Lordships observed that when the confession was admissible
it was
immaterial whether the confession had been recorded in one
particular case or in a different case. This is what Their Lordships
observed:-
"We have, therefore, absolutely no doubt that a
confession, if usable under Section 15 of the TADA,
would not become unusable merely because the case is
different or the crime is different. If the confession
covers that different crime it would be a relevant item of
evidence in the case in which that crime is under trial and
it would then become admissible in the case."
44 Cri.Appeal 972-12
42 Thus, the major premise on which the learned
Advocate General based his contention of the evidence in question
being inadmissible is not legally correct. It, therefore, follows that
since the prosecution can also bring evidence of confessions
recorded in some other case or cases, subject of course to it being
relevant in the case in which it is sought to be brought on record,
then there should be certainly no prohibition for the accused
persons bringing on record confessions recorded in some other case
or cases. Rather, going by the very argument of the Learned
Advocate General, it must be held that when the Law permits the
prosecution to adduce evidence of confession recorded in one case,
in another case, the accused also must be allowed to do so. At any
rate, that the confessions have been recorded in some other case,
cannot be a valid objection for their admissibility.
43 In the written submissions filed by the State, this
contention has been put forth more cautiously and in a modified
form. The 'legal issue involved' is stated to be the following:
Whether the confession recorded under section
18 of the MCOC Act in one case can be used or
relied upon in another case in which the
45 Cri.Appeal 972-12
confessor himself is not a party? (paragraph 4
of the written submissions)
44 I do not think that the legal issue involved has been
properly stated.
45 First of all, the way the issue is put forth keeps it vague
whether the objection to the use of the confession is restricted only
in case of confessions recorded under section 18 of the MCOC Act,
and whether that the confessions recorded under other provisions
of law such as a confession under section 164 of the Code can be
used or relied upon in another case, is conceded. Further, whether
the restriction on using such a confession in another case, would
come in play only where the confessor himself is not a party, and
whether that where the confessor would be a party, such confession
could be used even in another case, is conceded. Apart from this,
the issue does not speak as to who is to make the use of such
confession or place reliance upon it - whether the accused or the
prosecution. In my opinion, the issue as put forth, is rather
misleading. Whether it can be used or relied upon in another case
would depend on several factors, but the most important factor
would be, who is going to use it and for what purpose. The
46 Cri.Appeal 972-12
question of using the confession of a person in another case where
the confessor is not a party, by the prosecution, can never arise. If
the confessor is not a party, what is the prosecution to do by saying
that, 'so and so, not concerned with the case' had confessed in some
other cases. Apart from the confessor himself, a confession can be
relied upon by the prosecution only against the co-accused or
abettor or conspirator etc. In such a case, such co-accused, abettor
or conspirator, not being jointly tried with the confessor, the
confession cannot be used against such co-accused, abettor etc. A
confession can be used only against the maker, and this rule is
diluted permitting it to be taken into consideration against a co-
accused, abettor, conspirator etc, only in cases where the confessor
and such other accused are being tried jointly. This is permissible
under section 30 of the Evidence Act, and also under the provisions
of section 18 of the MCOC Act. Except this use which has been
permitted expressly by the aforesaid sections and similar sections in
other enactments, such as TADA, a confession cannot be used
against anyone in a case in which the confessor is not a party.
However, when the accused would seek to use a confession,
obviously, he would not seek to rely on it for proving that he is
guilty. He would use it for claiming himself to be innocent, or
47 Cri.Appeal 972-12
otherwise for his benefit and in his favour, if he can do so within the
law. When the accused, in a given case, would want to rely on a
confession of someone else recorded in some other case, as
evidence of his innocence or otherwise as evidence in his favour,
position would be entirely different. Proving the confession against
a person for establishing that he has committed the offence in
question, and proving the existence of a confession of another, by
someone else who claims that the confession establishes his
innocence, are two drastically different matters.
46 Really speaking, because of the vagueness in the issue
raised, the answer to the question posed is quite simple and it is, "it
can be if it is relevant and admissible in that another case".
However, that does not solve the problem. In my opinion, the real
legal issue involved is not what the State has claimed to be, and the
real question involved in the appeal, is totally different. It can be
best explained by giving an illustration. The propositions advanced
by the learned counsel for the appellant, and the learned Advocate
General can be best examined by keeping the following illustration
in mind.
48 Cri.Appeal 972-12
Illustration
"A" is being prosecuted for having committed murder of
"X". "B" is being prosecuted separately for having
committed murder of "Y". "A" somehow learns that "B"
had confessed before "C" about having committed
murder not only of "Y", but also of "X". "A" wants to
bring before the court which is trying him, the fact of
"B's" confession regarding murder of "X", as and by way
of part of his defence. Can "A" not do so?
The aforesaid discussion indicates that clearly "A"
can
do so, and there is no opposition to this view. The further question
that arises on the basis of the contentions advanced before this
Court, is, then, narrowed down as follows:
"A" wants to examine "C" as a defence witness and prays
for summoning him as such. The prosecution objects on
the ground that "A" cannot examine "C", and if he wants
to bring the relevant evidence on record, he must
necessarily examine "B" himself. Is the objection
tenable?
48 In view of the contentions advanced before me,
suggesting that the answer may vary on the basis of the status and
49 Cri.Appeal 972-12
position of "C" with respect to the confessor and the confession, we
may keep the following possibilities in mind.
(i)"C" is a common person - a friend of "B", and not a
person in authority, or connected with the investigation of
the case.
(ii) "C" is an Inspector of Police.
(iii)"C" is a Magistrate who has recorded "B"s confession
in accordance with section 164 of the Code.
(iv)"C" is a Police Officer, not below the rank of a
Superintendent of Police who has recorded "B"s
confession in accordance with the provisions of section 18
of the MCOC Act. (Assuming that "A" and "B" are
facing charge of offences punishable under the MCOC Act
also in the aforesaid separate murder cases pending
against them. )
49 As a result of the aforesaid discussion, there can be no
difficulty in concluding that in cases covered by (i) above, "A" can
certainly bring on record the evidence of "B"s confession, and that
for the purpose, can examine "C". The prosecution cannot object
"C" from being examined and claim that "A" must necessarily
50 Cri.Appeal 972-12
examine "B" himself to prove the facts stated by "B" in his
confession. Similarly, there can be no doubt that in cases covered
by (iii) above, the evidence of "B"s confession would be admissible.
Not only "C" can be examined to prove that confession, but even
the record of such confession if produced will have special sanctity
attached to it by virtue of section 80 of the Evidence Act. Thus, in
cases of both these types, the evidence of "B"s confession would be
admissible in "A"s trial, (not for proving that "B" has committed the
offence, but for creating a doubt on whether the murder of "X" has
indeed been committed by "A") and such evidence can be
introduced by examining "C" as a defence witness and/or requiring
"C" to produce the record of such confession.
50 What happens in case mentioned at (ii) above, where
"C" is an Inspector of Police, would need some discussion. It is
because the confession of "B" recorded by him would not be
admissible against "B" in his trial, in view of the bar of section 25.
The question would be whether this bar under section 25 to prove
such confession against "B" would prevent "A" from proving the
same in his trial, as and by way of his defence.
51 Cri.Appeal 972-12
51 It has already been seen that the existence of such
confession would be inconsistent with the facts alleged by the
prosecution in the case against "A", and therefore, the same would
be admissible under section 11 of the Evidence Act. Whether that
the confession of "B" recorded by "C" cannot be proved against "B",
in "B"s trial, would be a factor which would disentitle "A" from
proving the same in his favour, and for his benefit inspite of its
relevancy under section 11 of the Evidence Act may be examined.
52 It is contended by Dr.Yug Choudhary, the learned
counsel for the appellants that this factor viz. 'Non-provability' of
the said confession against "B" would not disentitle "A" from
proving the same in his favour. Inspite of such a categorical
assertion, it is not specifically dealt with by the learned Advocate
General in his submissions whose emphasis, as aforesaid was on
non-permissibility of such use in case of the confessions recorded
under section 18 of the MCOC Act. Therefore, the question as to
whether such a confession would be admissible under such
circumstances, when it is not covered by the provisions of section
18 of the MCOC Act, has remained unanswered in the contentions
advanced by the learned Advocate General. Again, an emphasis on
52 Cri.Appeal 972-12
joint trial has been placed by referring to section 30 of the Evidence
Act and section 18 of the MCOC Act, while discussing the question
of relevancy and admissibility of such evidence. Therefore, all these
aspects need to be thoroughly discussed before dealing with the
claim about the inadmissibility of such evidence by virtue of section
18 of the MCOC Act, which claim, as aforesaid has been put forth
without making any submissions or opining about the admissibility
of confessions, not covered by section 18 in a situation where an
accused in one case wants to use the confession made by another, in
another case, and as simplified by the illustration given above. It is
necessary because without knowing the position under the general
Law, it is not possible to arrive at a correct conclusion with respect
to such use of confessions recorded under section 18 of the MCOC
Act.
53 The legal position seems to be that even where a
confession is not admissible or provable due to some express
statutory bar, the use of such confession for purposes otherwise
than for proving the same against the maker of it, is not barred. Dr.
Chaudhary referred to some decisions of this Court to illustrate this
point, a brief reference to some of which would remove the doubt,
if any, about this legal position.
53 Cri.Appeal 972-12
54 In Madhavgir Vs. State of Maharashtra, 2005(1)
Mh.L.J 162 also, a Division Bench of this Court held that though
section 25 of the Evidence Act prohibits the proof of a confessional
statement made by an accused to a police officer, the explanation in a
confession given by the accused to the police can be proved in his
favour. Again, in Rohidas Manik Karsale Vs. State of
Maharashtra (Criminal Appeal No.1496 of 2003) a Division
bench of this High Court after referring to several previous
authoritative pronouncements concluded that though a confession
made by an accused to the police was not provable against such
accused, there was no bar to use the same in his favour.
55 A Division bench of Karnataka High Court also in
Madaiah Vs. State 1992 Cr.L.J 502, took the same view i.e. that
there is nothing in the Evidence Act that precludes an accused from
relying upon his confession for his own purpose.
56 The judgments in Rohidas Manik Karsale Vs. State of
Maharashtra (supra), Madaiah Vs. State(supra) and Madhavgir
Vs. State of Maharashtra(supra) relied upon by the learned
54 Cri.Appeal 972-12
counsel for the appellants are sought to be distinguished on behalf
of the State by saying that these judgments lay down only that
there was no prohibition to the use of a confession when it is sought
to be used by confessor in his favour; and that this is different from
the use of the confession of one accused in one trial seeking to rely on
the confession made by another accused in another trial. This is
besides the point. The reliance on these authorities has been placed
to show that even if a fact is not provable for a particular purpose,
it can be still proved for a purpose for which there is no prohibition,
provided such fact is relevant. The emphasis of the counsel for the
appellants is on the fact that 'despite the prohibition contained in
section 25 of the Evidence Act, use of a confession was not
altogether barred'. The bar was restricted to proving it against the
maker. If any other use of such confession would be permissible,
and relevant under the Evidence Act, then there would be no bar to
make such use of that confession. When the controversy is about
this issue, whether that it was permitted to be used in favour of the
maker himself, or whether it would be used in favour of someone
else, would not matter.
55 Cri.Appeal 972-12
57 Anyway, Dr. Chaudhary has also relied upon a Full
Bench decision of this Court in Imperatrix vs. Pitamber Jina ILR
187892 Bom 61, which directly deals with the relevant point and
meets the objection of the State that the decisions in Rohidas
Manik Karsale Vs. State of Maharashtra (supra), Madaiah Vs.
State(supra) and Madhavgir Vs. State of Maharashtra(supra), do
not speak of use of the confession made by one accused in favour of
another accused.
58 In that case, the confession made by one accused,
which was hit by the provisions of section 25 of the Indian Evidence
Act, was sought to be proved on behalf of another accused in the
same case by asking a certain question to a witness. Their
Lordships held that section 25 of the Indian Evidence Act did not
preclude the counsel for one accused person asking questions to
prove a confession made by another accused person. Their
Lordships clarified that such confession, however, was not to be
treated as evidence against the confessing accused (because of the
bar of section 25), but it could be considered as evidence on behalf
of the other accused. Their Lordships went on to observe that :-
56 Cri.Appeal 972-12
"unless the law was so, the accused person who was on
his trial with the confessing party, might be
considerably prejudiced by exclusion of that evidence" .
The bar under section 25 of the Evidence Act was held to be not
applicable as the confession was sought to be proved not against the
confessing person or the co-accused, but on behalf of the co-
accused.
Even the judgment in the case of Imperatrix Vs. State
(supra) is claimed to be inapplicable to the fact of the present case
on the ground that in that case, the the confession made by one
accused was sought to be used against another accused, but in the
same trial. It is contended that the ratio of the judgment would be
consistent with the provisions of section 30 of the Evidence Act as
well as with the proviso to section 18(1) of the MCOC Act. This
submission misses the point and cannot be accepted. What the
appellants are contending that even where
two accused were being
tried together, and even where
the confession made by one of them
was inadmissible by virtue of section 25 of the Evidence Act, still
one accused could prove the confession made by the other accused
57 Cri.Appeal 972-12
in favour of the first one. The contention advanced on behalf of the
State about joint trial is misconceived and unacceptable as that the
trial was joint, was a factor which would be adverse to the reception
of a confession which is inadmissible against one of the accused. In
other words, where a confession can be admitted even where the trial
is joint, there would be no bar to admit the same when the trial would
be separate. In fact, in that case, Their Lordships specifically
considered whether - if the use of confession as intended by one
accused was to be permitted - it would be desirable to direct
separate trial of both the accused. The suggestion that if both the
accused are jointly tried, one accused can use the confession of the
co-accused in his favour, but he can't make such use of the
confession, if both of them are being separately tried, is contrary
not only to reason and logic, but also the Law. The issue of joint
trial that is being raised in this context is irrelevant. It would be
relevant when the prosecution is seeking to prove a confession
made by one accused against
the co-accused; and unless the trial
would be joint, the confession made by one accused cannot be used
against another. When one accused wants to prove the confession
made by another accused in some other case in his favour, then
objection to the reception of such confession on the ground that "it
58 Cri.Appeal 972-12
is not a joint trial," is irrelevant and meaningless. Infact, the legal
position is otherwise. "Joint trial" is likely to be an impediment in
the way of proving of a confession made by one accused, by another
accused in his favour, rather than a factor facilitating such a course.
When the trials are separate, it is more difficult to object to the
reception of such evidence. The reason is obvious. In a joint trial
an accused who proves the confession of another accused in his
own favour, puts the confessing accused in difficulty, as this brings
on record material which implicates the confessing accused, which
otherwise would not be brought on record. When the trials are
separate, this situation would not arise as the confession of the
confessing accused would not be before the Court which is trying
such confessing accused and as such, the confessing accused would
not be affected at all, by such confession being brought on record in
the case against another accused. Anyway, this legal position
cannot be disputed in the light of the observations made in the case
of Imperatrix (supra). This has to be held as laying down that
even where there is a joint trial, one accused can prove in his favour
a confession made by another accused, even if such confession
would be inadmissible against the confessing accused, due to some
statutory bar. As already observed, when the trials are separate,
59 Cri.Appeal 972-12
resolving the issue of admissibility of such evidence would be
obviously simpler. Thus, the evidence has been held to be
admissible in Imperatrix's case
not
because
it was a joint trial, but
in spite of it being a joint trial
. There is therefore, no substance in
this contention.
60 The contention advanced by the learned Advocate
General about the necessity of a joint trial before the evidence of
confession of one accused being used in favour of another accused
are based on an incorrect interpretation of the provisions of section
30 of the Evidence Act, the emphasis on which has been laid also in
the written submissions made by the State. (paragraph nos.7 to
10) In paragraph nos.5 and 6 of the written submissions, the
provisions of section 24, 25 and 26 have been referred to, and the
position has been stated "that public policy requires that confession
obtained by coercion or torture by the police, are worthless and
should not be encouraged." In paragraph no.6, it is mentioned that
it is only confessions made in the presence of the Magistrate under
section 164 of the Code that can be introduced in evidence. This
position in law has been stated with substantial accuracy, but what
is further stated (in paragraph no.7) i.e. that section 30 of the
60 Cri.Appeal 972-12
Evidence Act is an exception to the aforesaid rule viz.of
'inadmissibility of the confessions obtained by police unless such
confessions are made in the presence of a Magistrate and recorded
under the provisions of section 164 of the Code', is incorrect.
Section 30 is not an exception to the rules contained in section 24,
25 or 26, or any of them, about the inadmissibility of the
confessions falling under those provisions. The belief (as reflected
from the written submissions) that the confessions which would not
be admissible, relevant or provable because of the provisions of
section 24, 25 or 26 of the Evidence Act, would be admissible by
virtue of the provisions of section 30, is incorrect. Section 30 of the
Evidence Act reads as 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.
61 Cri.Appeal 972-12
Explanation - "Offence" as used in this Section, includes
the abetment of, or attempt to commit, the offence.
(Emphasis supplied)
61 The words emphasized above are totally missed by the
State while advancing a submission that section 30 is an exception
to the rule against the admissibility of the confessions referred to in
section 24, 25 or 26 of the Evidence Act. Undoubtedly, before a
statement by one of the accused persons is taken into consideration
against the other accused, the following conditions must be
fulfilled:
(i) There must be a joint trial for the same offence.
(ii)There must be a confession of one of the accused.
(iii)Such confession of guilt must affect himself and others i.e. it
must implicate the maker substantially to the same extent as the
other co-accused.
(iv)Such confession must be duly proved.
62 Section 30 is an exception to the general principle of
Evidence Act and of the common law that a confession is only
evidence against the person who makes it (and not somebody else)
and it is not construed as an exception to the exclusionary rules
62 Cri.Appeal 972-12
laid down in section 24, 25 and 26. It would be too much to
suggest that a confession before the police, made by an accused
being inadmissible, though cannot be proved against him, can,
however, be taken into consideration against a co-accused who is
being tried jointly with the confessing accused for the same offence.
The confession which cannot be proved against the maker, cannot
be taken into consideration against the co-accused, and to this
extent the aforesaid submission made by the State is clearly
erroneous. Since the wrong notion about the principle and scope of
section 30 of the Evidence Act, has led to some other contentions,
the matter needed detailed discussion.
63 The aforesaid discussion leads to the conclusion that
even where a confession is not admissible for proving the same
against its maker, the same can still be used for some other purpose
for which it would be relevant. Thus, a confession hit by section 25
or 26 of the Evidence Act though cannot be used against the maker,
can still be used by the maker in his favour. Similarly, it can be
used by a co-accused even if he is being tried jointly with the
confessing accused, and the only restriction on the receipt of such
evidence would be that such evidence would be taken into
63 Cri.Appeal 972-12
consideration only in favour of the accused introducing it, and not
against the confessing accused. When inspite of the obvious
likelihood of prejudice that would be caused to the confessing
accused in having before the Court, a confession which otherwise
could not be brought on record, the same is permitted to be brought
on record on the ground of its relevancy in favour of the other
accused, it is not possible to suggest that a person who is not a co-
accused and who is not being tried jointly with the confessing
accused, cannot make such use of the confession.
64 Thus, in our illustration given earlier, the legal position
seems to be that even where "C" is an Inspector of Police, and
though therefore, the confession of "B" recorded by him cannot be
proved against "B", "A" is not precluded from summoning "C" in his
trial and proving "B"s confession as a part of his defence.
65 This brings us to the last question viz.whether this legal
position is changed because the confession in question happens to
be a confession recorded under section 18 of the MCOC Act. In
other words, whether in cases covered by (iv) in our illustration, "A"
cannot summon "C" and prove "B"s confession as a part of his
defence, needs examination.
64 Cri.Appeal 972-12
66 Section 18 of the MCOC Act reads as under:-
18. Certain confessions made to police officer to be
taken into consideration.
(1) Notwithstanding anything in the Code or in the Indian
Evidence Act 1872, but subject to the provisions of this
section, a confession made by a person before a police
officer not below the rank of the Superintendent of Police
and recorded by such police officer either in writing or on
any mechanical devices like cassettes, tapes or sound
tracks from which sounds or images can be reproduced,
shall be admissible in the trial of such person or co-
accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is
charged and tried in the same case together with the
accused.
(2) The confession shall be recorded in a free atmosphere
in the same language in which the person is examined and
as narrated by him.
(3) The Police Officer shall, before recording any
confession under sub-section (1), explain to the person
making it that he is not bound to make a confession and
that, if he does so, it may be used as evidence against him
and such police officer shall not record any such
confession unless upon questioning the person making it,
65 Cri.Appeal 972-12
he is satisfied that it is being made voluntarily. The
concerned police officer shall, after recording such
voluntary confession, certify in writing below the
confession about his personal satisfaction of the voluntary
character of such confession, putting the dace and time of
the same.
(4) Every confession recorded under sub-section (1) shall
be sent forthwith to the Chief Metropolitan Magistrate or
the Chief Judicial Magistrate having jurisdiction over the
area in which such confession has been recorded and such
Magistrate shall forward the recorded confession so
receive to the Special Court which may take cognizance of
the offence.
(5) The person from whom a confession has been recorded
under sub-section (I) shall also be produced before the
Chief Metropolitan Magistrate or the Chief Judicial
Magistrate to whom the confession is required to be sent
under sub-section (4) alongwith the original statement of
confession, written or recorded on mechanical device
without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief
Judicial Magistrate shall scrupulously record the
statement, if any, made by the accused so produced and
get his .signature and in case of any complaint of torture,
66 Cri.Appeal 972-12
the person shall be directed to be produced for medical
examination before a Medical Officer not lower in rank
than of an Assistant Civil Surgeon.
67 According to the learned Advocate General, the
confessions regarding which the appellants intend to lead evidence
in defence have been recorded under the provisions of section 18 of
the MCOC Act, and therefore, such confessions can be used only for
the purposes mentioned in the said section. i.e. in the trial of the
confessor or a co-accused, abettor or conspirator, when such co-
accused, abettor or conspirator is charged and tried in the same
case together with the accused who is the maker of the confession.
According to him, such confessions are not relevant or admissible
for any other purpose whatsoever irrespective of the provisions of
the Evidence Act or the Code, or any other law, by virtue of the
non-obstante clause with which section 18 opens.
68 It is not possible to accept this submission. In the first
place, it is not that the confession as a piece of evidence, is held to
be relevant by virtue of the provisions of section 18 of the MCOC
Act. It is relevant as being the species of admissions, which can
always be proved against the maker. The logical and legal
67 Cri.Appeal 972-12
relevancy of confessions in the context of charge or accusation
against the maker is so obvious that the Evidence Act does not even
find it necessary to specifically mention the same and finds it
necessary to mention only as to when confessions would not be
admissible or relevant. Therefore, section 18 of the MCOC Act
cannot be construed as a section making confessions relevant as a
piece of evidence. Though relevant, confessions made to a police
officer or while in the custody of a police officer are not permitted
to be proved by virtue of the provisions of section 25 or 26 of the
Evidence Act, and it is this situation for overcoming which section
18 has been enacted. It overrides the provisions making
confessions made to police officers, and confessions made while in
the custody of police, inadmissible or unprovable. It permits the
proof of certain types of confessions made to police in certain
circumstance to be admitted in evidence in the circumstances
mentioned in the said section. What section 18 does is, that it
removes the prohibition regarding proving of certain confessions
and cannot be construed as a provision which restricts the use of
confessions which would otherwise be permissible. In other words,
section 18 can be no stretch of imagination, be construed as
restricting the receivability of confessions which are under the
68 Cri.Appeal 972-12
Evidence Act or under any other law admissible either as
confessions, or for some other and collateral purposes. To treat
section 18 as a provision preventing the admissibility of certain
types of confession in evidence, would be contrary to the language
used in the said section and also to all the principles of
interpretation of a statute. That, section 18 is a 'complete Code', as
contended by the Learned Advocate General is true only with
respect to the admissibility of confessions which would otherwise
be inadmissible against the maker and with respect to the
procedure for recording the same as also the manner, extent and
the circumstances in which the same can be used for that purpose.
It cannot be accepted that it is a complete Code with respect of the
admissibility of confessions for all purposes. Apart from this, it
cannot be lost sight of that the conditions for admissibility of the
confessions as laid down by the said section is for 'proving the same
against the accused, co-accused, abettor, conspirator etc'. and not
for other purposes such as for making use thereof, in favour of the
accused or for any other co-lateral purpose.
69 The basis of the Learned Advocate General's
contentions about the interpretation of section 18 is the non-
69 Cri.Appeal 972-12
obstante clause with which it opens. The entire thrust of the
arguments in that regard was on the non-obstante clause.
Certainly, non-obstante clause is introduced in a section in the
beginning for giving the enacting part of the section an over-riding
effect over the provisions of law or Act mentioned in the non-
obstante clause. Thus, undoubtedly, the non-obstante clause in
section 18 would give the provisions of that section an over-riding
effect over any provisions in the Code, or in the Evidence Act which
are in conflict with the provisions of section 18. The non-obstante
clause is intended to over-ride the provisions of law, or the Acts
mentioned therein in specified areas and circumstances. The non-
obstante clause cannot be said to over-ride all the provisions in the
enactment or the Acts referred to, therein, but would obviously over-
ride only such provisions of those enactments or acts as would be in
conflict with the provisions of the section containing the non-obstante
clause. It is clear that the section is meant for giving over-riding
effect to the provisions of section 25 and 26 of the Evidence Act,
and also the provisions of section 162 of the Code of Criminal
Procedure. It cannot be treated as over-riding the provisions relating
to relevancy of facts, or the examination of witnesses etc. in the
Evidence Act or the methods for proving facts as per the said
70 Cri.Appeal 972-12
provisions. The contention that "it's a complete Code", if is
advanced to suggest that in the trial for offences under the MCOC
Act, only such confessions as have been recorded in accordance with
section 18 would be admissible, then it cannot be accepted. A
confession recorded under section 164 of the Code would be clearly
admissible in a trial for offences under the MCOC Act, or under the
TADA (where a similar section exists). A doubt in that regard, if
any, can be removed by referring to the decision of the Supreme
Court in Kartar Singh vs. State of Punjab (1994) 3 SCC 569
(para 261) on which reliance has been placed by the learned
counsel for the appellants. Thus, the non-obstante clause will not
over-ride section 164 of the Code, but only section 162 of the Code
because it would be in conflict with the provisions of section 18.
Section 164 would not be in conflict with section 18 of the MCOC
Act. Merely because the non-obstante clause does not make any
reference to any specific provision or provisions or sections
contained in the Code or in the Evidence Act, it cannot be construed
as riding over all the provisions in the Code of Criminal Procedure,
and Evidence Act. It will over-ride only such provisions as are in
conflict.
71 Cri.Appeal 972-12
70 Thus, section 18 cannot be construed as a provision
restricting the admissibility or relevancy of confessions which would
otherwise be admissible. Moreover, section 18 has nothing to do
where a confession is sought to be proved not basically as a
confession i.e. for the purpose of proving the guilt of the maker -
but for some other purpose. When sought to be used by someone
in his favour, the question of its admissibility cannot be decided by
applying parameters for its admissibility as laid down in section 18.
The submissions about requirement of joint trial etc. are absolutely
irrelevant in respect of such use of the confessions in question.
71 A confession - even a confession recorded under
section 18 of the MCOC Act - may be relevant in some other
context depending on the facts of the case, and the controversy
involved. For instance, a confession recorded by a Magistrate or by
a police officer under the provisions of section 18 of the MCOC Act
may be relevant even for showing as to where the confessor, or even
the Magistrate or the Officer recording the confession, as the case
may be, was at a given time, should there be a controversy or a
dispute over such fact. Any such confession may also be relevant
for showing that the confessor was in custody on a given date, or
72 Cri.Appeal 972-12
that the Magistrate or officer was on duty, should the controversy
arise about such a fact. By the interpretation sought to be put on
the provisions of section 18 by the learned Advocate General even
such use of the confessions recorded under section 18 of the MCOC
Act, would be impermissible. Section 18 cannot be construed as
having a magical effect of opening a door for the entry of a certain
piece of evidence in favour of the prosecution, (which otherwise
would not be admitted for using against accused) and at the same
time, closing the door for a piece of evidence which would be
admissible in favour of the accused.
72 There is, therefore, no substance in the
contention that the confessions in question having been recorded
under the provisions of Section 18 of the MCOC Act, cannot be
used for the purpose, as intended by the appellants. Since section
18 brings a confession recorded thereunder almost on par with the
confession recorded u/s. 164 of the Code, there would be a better
case for its admissibility in favour of the accused than that of the
confession recorded by a police officer when intended to be used
for the same purpose. The record of the confession made by the
competent officer under the provisions of section 18 would attract
73 Cri.Appeal 972-12
the presumptions mentioned in section 80 of the Evidence Act, and
would undoubtedly be placed on a higher pedestal as a piece of
evidence, than a confession recorded by a police officer to which
section 18 does not apply. In any case, even when a confession
recorded by a police officer and hit by section 25 can be introduced in
evidence for some purpose other than for proving the guilt of the
maker, provided such use would be relevant under the Evidence Act
and not specifically prohibited, then the confession recorded under
section 18 of the MCOC Act when intended to be used in similar
manner cannot be placed on a worse footing.
73 Nothing has been said about the evidence of witness at
Serial No.63 Smt.Chitkala Zutshi by the learned Advocate General.
No submissions with respect to the relevancy or admissibility of the
evidence of the said witness were advanced on behalf of the State
in this appeal. The reasoning of the learned Judge with respect to
the evidence of the said witness was that the sanction for
prosecution issued in some other case or even its part, cannot be
proved in this case for the reason that the accused in this case (MCOC
Special Case No.4 of 2009) would be prejudiced as they would have
no opportunity to cross-examine the witness with respect to the
74 Cri.Appeal 972-12
sanction. As aforesaid, this apprehension felt by the learned Judge
is totally baseless as the evidence of Smt.Chitkala Zutshi given in
this case, would not be evidence in the MCOC Special Case No.4 of
2009 at all. When her evidence would not be available in that case
at all, where would be the question of the accused in that case
losing an opportunity to cross-examine her. The prosecution (in
that case) would be required to examine Smt.Chitkala Zutshi, in
that case if it wants to bring her evidence on record, and that, in
that event, those accused would certainly have an opportunity to
cross-examine her.
74 The second reason on which the evidence of
Smt.Chitkala Zutshi was held to be inadmissible is that the material
on the basis of which sanction had been given in that case was not
available in this case, 'to enable the defence to cross-examine the
sanctioning authority on the point of subjective satisfaction'. This
reasoning is difficult to understand. In the first place, there was
nothing to prevent the Court or the appellants from calling the
material on the basis of which sanction had been given in that case,
in the present case also, should the Court or the appellants - or
even the prosecution for that matter - think it relevant. In the
75 Cri.Appeal 972-12
second place, where was the question of the defence cross-
examining its own witness? The witness being called as a defence
witness, prosecution could have cross-examined her and even called
for the relevant material if it was required for cross-examining her.
Interestingly, the learned counsel for the appellants has pointed out
that in case of another witness, the same learned Judge, in the
same trial, had permitted such evidence to be given.
The third reason given by the learned Judge in support
of his conclusion about the inadmissibility of the evidence of
Smt.Chitkala Zutshi is that 'a sanctioning authority places reliance
on the material placed before it, and cannot certify that the said
material is true and correct'. This indicates that the learned Judge
has failed to ascertain as to what was the purpose of the appellants
behind calling this witness. The appellants wanted to establish that
the confessions recorded by the Dy.Commissioners of Police had
been placed before this witness while seeking sanction for the
prosecution under the relevant provisions of law. This fact would
indicate that the confessions in question had been taken seriously
by the Investigating Agency, that they were considered as material
against the accused in the said case, and that the confessions
76 Cri.Appeal 972-12
formed a part of the material on which reliance was placed by the
Investigating Agency while making out a case for the prosecution of
the accused in the MCOC Special Case No.4 of 2009. This would
show that the confessions are taken seriously by the Investigating
Agency, and also by the sanctioning authority. These aspects cannot
be said to be irrelevant.
76 The Court has to be liberal in permitting defence
evidence to be given. This is particularly so where the accused are
facing a grave charge and where they are alleged to have
committed a heinous offence which would at once brand them as
Anti-Nationals. The case against the appellants is based on
circumstantial evidence, and therefore, the appellants should be
allowed to bring all the circumstances on record which they hope
would be relevant in the decision making process. It is not for the
Court, or for the prosecution to judge the value to be attached to
such defence evidence before it is permitted to be adduced. The
collective force of all the circumstances which the accused would
intend to bring on record cannot be ascertained before the evidence
is permitted to be adduced. In fact, a bare reading of section 233 of
the Code shows that the prayer to examine a defence witness can
77 Cri.Appeal 972-12
be refused only on the ground that such prayer is made for the
purpose of vexation, or delay, or for defeating the ends of justice. The
learned Judge has nowhere in his order, recorded his conclusion
that the application for summoning the defence witnesses was made
for the purposes of vexation, or for delay, or for defeating the ends of
justice. There is no dearth of authorities which lay down that it is
only in case of the Court coming to such a conclusion that the
defence evidence can be prevented from being given, and that
otherwise, the Court would not be entitled to refuse to summon the
defence witnesses. Moreover, in the instant case, the learned
Judge had initially found nothing wrong in summoning the
aforesaid witnesses. He had already passed an order directing
summonses to be issued to the witnesses in question overruling the
objection of the prosecution 'that the application for summoning
defence witnesses, had been made for the purpose of vexation and
delay and for defeating the ends of justice'. The issue was already
over, as far as the Trial Court was concerned. It appears from the
impugned order that some witnesses who had been summoned as
defence witnesses, and who remained present before the Court on
24 July 2012, were not examined by the Advocate for the
appellants stating that he did not want to examine them, as
78 Cri.Appeal 972-12
relevant documents had been obtained by him under the Right to
Information Act. The Special Public Prosecutor, it appears, 'strongly
objected' on the ground that the time of the witnesses who were
government servants was wasted, and that the Advocate for the
accused should decide in advance about examining the witnesses.
Upon this, the Trial Court directed the advocate for the accused to
re-consider as to which witnesses out of those summoned, he really
wanted to examine, and also to specify which witnesses were
required only for the production of documents, and which were
required also for giving evidence in addition to the production of
documents mentioned against their names. Thus, the decision to
summon the aforesaid witnesses had already been taken by the
Trial Court, and only some clarification as to the exact purpose for
which they were being called, was required to be given. Strangely,
it seems that, at that stage, the learned Special Public Prosecutor
again raised an objection for summoning the aforesaid witnesses (at
Serial No.63 to 66) when the issue as to whether they should be
summoned or not, had already been decided by the Trial Court, and
the decision to summon them, had not been challenged by the
prosecution.
79 Cri.Appeal 972-12
77 In this appeal, this Court is concerned with the
correctness of the decision of the Trial Court as well as the manner
in which it is arrived at. Apart from the fact that the conclusion
about the inadmissibility of the said evidence arrived at by the
learned Judge is incorrect and contrary to law, the manner in which
the decision was arrived at is also not proper. The learned Judge
was not justified in reconsidering the question already decided by
him; and in refusing to summon the witnesses in question without
coming to the conclusion that the prayer for adducing the evidence
was made for the purpose of vexation or delay, or for defeating the
ends of justice.
78 I shall now deal with the other contentions raised on
behalf of the State in the written submissions.
79 In his oral arguments, the learned Advocate General
submitted that it was a 'principle of the Evidence Act that evidence
can't be admitted without being tested' and 'that the evidence of the
Dy. Commissioners of Police, if introduced, cannot be tested' and that,
'therefore, the same cannot be admitted'. The learned Advocate
General posed a question as, to how, such evidence is to be tested?
80 Cri.Appeal 972-12
This argument cannot be appreciated. The device for 'testing' of the
evidence would be the cross-examination, and the prosecution
could have cross-examined them and tested their evidence, if so
desired. What the learned Advocate General intended to convey
was that the accused whose confessions are sought to be brought on
record cannot test the said evidence, as they would not be able to
cross-examine the Dy. Commissioners of Police. This contention has
already been dealt with and it has been observed that since that
evidence would not be evidence against the accused in that case, at
all, there would be no question of using the same against them
without being tested. There is, therefore, no substance in this
contention.
80 It was also contended by the learned Advocate General
that even otherwise, the confessional statements of the accused in
the MCOC Special Case No.4 of 2009 which are sought to be
produced, do not exonerate the appellants. In the written
submissions also, it has been mentioned that the statements of two
of the accused are mere here-say as they only indicate what another
accused i.e. Sadiq Shaikh told them. Even as regards the statement
of Sadiq, it is submitted that it does not specifically state that the
81 Cri.Appeal 972-12
appellants were not responsible for the local trains bomb blasts. It
is submitted that Sadiq was himself an accused in the present case
but he was released under section 169 of the Code, as he was found
to be not involved in the alleged offences. It is mentioned that
Sadiq had stated before the Magistrate that he had no role in the
present case, and that therefore, the evidence cannot be permitted
to be given. It is not possible to accept such contentions. These
contentions are regarding the reliability of the facts stated in the
confessions. These contentions indicate that the prosecution
claims the defence evidence to be worthless or false and that
therefore, it cannot be allowed to be given. The aspects of the weight
to be given to the defence evidence are totally unconnected with
the aspect of its admissibility and relevancy. Truth or falsity of a
piece of evidence has nothing to do with the admissibility, and even
relevancy. It cannot be said that a particular piece of evidence - say
oral testimony of a witness or a dying declaration or an entry in a
public record, is false and that, therefore, it cannot be allowed to be
given. The evidence cannot be judged before it is given, and it
would be the task of the Court to evaluate it, and decide whether it
is true or false. It is not for the parties to object the reception of
evidence sought to be introduced by their adversary on the ground
82 Cri.Appeal 972-12
that it is false or worthless. The concept of admissibility and
relevancy is entirely different from the value or truth of such
evidence. This is so elementary that it would not warrant any
discussion, but for the fact that such contentions have been
actually advanced before this Court in the written submissions
made by the State.
81 What also cannot be lost sight of, is that though certain
portions of the confessions of the other accused which are sought to
be brought on record might be hit by the rule against hear-say, it is
not clear whether everything stated therein is inadmissible or
irrelevant. Whatever would be inadmissible would be excluded
from consideration. It is not that only a plain and unequivocal
admission of having committed the present offence and clearly
exonerating the appellants would be relevant and anything less
than that would be irrelevant. There are other aspects of the
prosecution case such as a claim of the appellants belonging to SIMI
and the accused in the MCOC case no.4 of 2009 being members of
IM, etc, and there may be other aspects that may turn out to be
relevant, in the matter of judging the truth of the prosecution
version. In a case based on circumstantial evidence, the defence
83 Cri.Appeal 972-12
ought to be given an opportunity to bring on record circumstances,
the collective force of which, the defence hopes, will make the
Court doubt about the truth of the prosecution version. It is not for
the Court - and certainly not for the prosecution - to comment on
the value of the defence evidence and judge the credit that would
be attached to it before it is adduced, and oppose its entry on the
ground that it would serve no useful purpose or that it will not
exonerate the accused.
82 There is, therefore, no substance in any of these
contentions.
83 As a result of the aforesaid discussion, it is clear that
the evidence sought to be adduced by the appellants is relevant and
admissible. The appellants cannot be prevented from bringing on
record such evidence. The impugned order is contrary to law, and
needs to be interfered with.
84 The appeal is allowed. The impugned order is set
aside.
84 Cri.Appeal 972-12
85 The appellants shall be entitled to have the witnesses
in question summoned, and examine them as witnesses for the
defence.
86 Appeal is disposed of accordingly.
(A.M.THIPSAY, J)
