Asadjamal @ Irfan @ Dada vs The State Of Maharashtra
2013 Latest Caselaw 16 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                      
                     BENCH AT AURANGABAD. 




                                             
          CRIMINAL REVISION APPLICATION NO.181 OF 2013




                              
     Asadjamal @ Irfan @ Dada 
     s/o Mohammad Usman Siddiqui,
                
     age 35 years, Occu. Labour,
     r/o Vikas Nagar, Udgir,
     Taluka Udgir, District  Latur.            ... APPLICANT. 
               
            VERSUS

     The State of Maharashtra,
      


     through Police Station, Palam,
     District Parbhani.                        ... RESPONDENT.
   



                                  ...
     Advocate for Applicant : Mr. P.S. Shendurnikar h /f Mr. Patil
                         Indrale Anand V.





               APP for Respondent : Mr. P.N. Muley.

                             CORAM : ABHAY M. THIPSAY, J. 

14th OCTOBER, 2013.

ORAL JUDGMENT:

1. Heard Mr. Shendurnikar, learned Counsel,

instructed by Mr. Patil Indrale, learned Counsel for the

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applicant and Mr. Muley, learned Addl. P.P. for the

respondent - State.

2. By consent, admitted and taken up for hearing

forthwith. By consent, calling for record and

proceedings, dispensed with.

3. The applicant is one of the accused in Sessions

Case No.51 of 2012, pending before the Additional

Sessions Judge, at Gangakhed. It appears that the

said case has been clubbed together with Sessions Case

No.32 of 2012 and both these cases are being tried

together.

4. The applicant made an application for discharge,

as contemplated under Section 227 of the Code of

Criminal Procedure, contending that there was

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absolutely no material for proceeding against him. The

learned Additional Sessions Judge, however, by his

order dated 30.8.2013, rejected the said application

and directed charge to be framed against all the

accused persons, including the applicant, with respect

to the offences punishable under Section 489-B and

420 r.w. 34 of I.P.C. Being aggrieved by the said order,

the applicant has approached this Court, by invoking

its revisional jurisdiction.

5. With the assistance of the learned Counsel for the

applicant and the learned Addl. P.P., I have gone

through the revision application and the annexures

thereto. I have also carefully gone through the order

passed by the learned Additional Sessions Judge,

refusing to discharge the applicant.

6. The substance of the prosecution case, as

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revealed from the police report and accompanying

documents, may be stated, as under:

That, on 16.4.2012, the brother-in-law of

Janardhan Mangnale, owner of 'Ganesh Kirana Shop',

was given two counterfeit currency notes of Rs.1000

denomination, by a customer. At that time, Janardhan

Mangnale was not in the shop. When, he came, his

brother-in-law Ishwar showed him the said currency

notes. He saw the notes and suspected them to be

counterfeit. The matter was reported to the police and

the person, who gave the said notes, was identified.

The name of that person is Imran Shaikh Naeem -

accused No.1 in the said case. Some other counterfeit

currency notes were also recovered from his

possession, in the course of investigation and it was

also revealed that he had earlier also circulated some

counterfeit currency notes to some other traders. In

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the course of investigation, allegedly, on the basis of

information disclosed by the said Imran Shaikh Naeem,

the applicant appears to have been arrested.

Subsequently, two more persons, who are the accused

in the supplementary charge-sheet that came to be

filed, i.e. Syed Abdul Haque Syed Khaja and Munir

Alam Sukhimiya were also arrested and one of them

also allegedly referred to the present applicant, as a

person to whom, he had given counterfeit notes for

circulation.

7. It is not in dispute that after arrest of the

applicant, nothing further incriminating, could be

collected against him, in the course of the investigation.

8. It was contended before the learned Additional

Sessions Judge that the case against the applicant,

being based solely on the alleged confession made by a

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co-accused before the police, the same could not be

taken into consideration against the applicant, for

framing a charge. This contention, as aforesaid, was

turned down by the learned Additional Sessions Judge.

9. I have carefully gone through the impugned order.

That there is no material against the applicant is very

much clear from the order itself. The reasoning of the

learned Additional Sessions Judge, may be best

reproduced from the impugned order itself:

" I find that under section 26 of Evidence Act,

any statement made by accused while in police custody is not admissible against him. However, such a statement can be made admissible against other accused. As per section 30 of Evidence Act,

when more persons than one are being tried jointly for the same offence and confession made by one of such person affecting himself and some other of such person is proved, the court may take into consideration such confession as against such other person as well as the person who makes the confession. Thus, I find that at this stage the statement made by accused Abdul

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Haque, can be taken into consideration."

10. This reasoning of the learned Additional Sessions

Judge is entirely erroneous. His view that the

confession which cannot be proved against the maker

by virtue of section 25 and/or 26 of the Evidence Act,

can be proved against co-accused, by virtue of section

30 of the Evidence Act, is patently erroneous. All that

section 30 provides is that a confession, which can be

proved against maker, may also be taken into

consideration against the co-accused, who is being

tried jointly with the maker of the confession. It does

not provide that a confession, which is inadmissible

against the maker of the confession, can be proved

against a co-accused. Section 30 of the Evidence Act

does not contain an exception to section 25 and/or 26

of the Evidence Act; but, it creates an exception to the

Common Law rule that confession is evidence only

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against the maker. This rule is diluted by section 30,

which says that apart from the maker, such confession,

(in certain circumstances mentioned therein), can be

taken into consideration against a co-accused also. To

interpret section 30 of the Evidence Act, in a manner so

as to make an inadmissible and irrelevant confession,

which cannot be proved against the maker, provable

against a co-accused, would be ridiculous.

11. The learned Additional Sessions Judge further

observed that under Section 133 of the Evidence Act,

'an accomplice shall be a competent witness against an

accused person.' He observed that the accused No.1

Abdul Haque is in a position of an accomplice and

therefore, there was material to proceed against the

applicant. This reasoning is also erroneous. The

question of examining an accomplice would arise only

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after he is turned into an approver by grant of pardon.

In this case, no pardon has been granted to Abdul

Haque and, therefore, there would be no question of his

being a competent witness against the applicant or

other accused. As a mater of fact, he being an accused,

obviously cannot be examined as a witness for the

prosecution.

12. Except the statement, allegedly made by a co-

accused to the police, while he was in the custody of

the police, there is nothing else against the applicant.

Such material cannot be taken into consideration, as

the same can not be translated into evidence.

13. There were, therefore, no grounds for proceeding

against the applicant. The order passed by the

Additional Sessions Judge, refusing to discharge the

applicant, is patently erroneous and needs to be

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interfered with.

14. The revision application is allowed. The impugned

order, so far it relates to the applicant, is set aside.

The applicant shall stand discharged.

The learned Additional Sessions Judge shall

proceed further with the trial, in accordance with law.

Revision application is disposed of in the

aforesaid terms.

(ABHAY M. THIPSAY, J.)

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