Bombay High Court
Naresh Kumar vs Central Bureau Of Investigation, ... on 28 July, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL REVISION APPLICATION No.107 OF 2016
Naresh Kumar,
Aged 44 years,
Occupation : Service,
Resident of 37, Mall Road,
Cantonment Area,
Kamptee Cantonment Kamptee,
District Nagpur. : APPLICANT
...VERSUS...
Central Bureau of Investigation,
through Dy. Superintendent of Police,
Nagpur. : RESPONDENT
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Shri Avinash Gupta, Senior Counsel, with Aakash Gupta with K.G. Patel
Advocate for the Applicant.
Shri S.B. Ahirkar, Advocate for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 28
JULY, 2016.
ORAL JUDGMENT :
1. Heard.
2. Admit.
3. Heard finally by consent of learned counsel appearing for
the parties.
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4. This revision application involves a challenge to the order of
the learned Special Judge passed on 10.6.2016 deferring a decision on
the objection about the admissibility of certain portion of evidence
tendered by the prosecution witnesses. During the course of recording of
examination-in-chief of PW 7, certain evidence tendered by this witness
came to be recorded. This evidence was to the effect that upon inquiry
made by the Investigating Officer of the Central Bureau of Investigation,
accused No.2 Sk.Wahid demanded and accepted the bribe amount on
behalf of accused No.1 in this case. An objection was taken by the
learned Senior Counsel for the applicant that this statement being in the
nature of confession made to a police officer was hit by Section 25 of the
Indian Evidence Act, and so was inadmissible in evidence. It was also
asserted by the learned Senior Counsel, who was appearing for the
applicant, that a decision regarding admissibility of this portion of the
evidence or otherwise was required to be taken then and there only.
However, the learned Special Judge took a view that such an objection
could be decided at the final stage.
5. It is submitted by learned Senior Counsel that when the law
is so clear, as seen from the scheme of Sections 24 to 27 of the Indian
Evidence Act, nothing could be said to be decided at the final stage and,
therefore, the learned Special Judge ought to have held that the
statement so made was inadmissible in evidence. According to the
J-revn107.16.odt 3/6
learned Special Counsel for the respondent- Central Bureau of
Investigation no prejudice has been caused to the applicant as ultimately
a decision would be taken by the learned Judge in accordance with law.
He, however, submits that, if any inadmissible evidence has been
recorded, he would have no objection if that portion of inadmissible
evidence is expunged from the evidence already recorded.
6. The portion of evidence of PW 7 appearing in para 19 in
respect of which objection has been taken reads thus :
PW 7 :
"During investigation, it reveals to me that accused Sk.
Wahid had demanded and accepted the bribe amount on
behalf of Shri N.K. Yadao"
7. A plain reading of the aforestated piece of evidence is
sufficient to show that such evidence could not have been recorded as it
is clearly hit by the mandate of Section 25 of the Indian Evidence Act.
Section 25 of the said Act makes inadmissible any confession made by an
accused to a Police Officer. This piece of evidence is clearly in the nature
of a confession made to a Police Officer and is, therefore, inadmissible in
evidence. It ought not to have been recorded by the learned Special
Judge. There was also no reason whatsoever for the learned Special
Judge, to have deferred his decision on this objection, the provision of
law being as crystal clear as sun light. This portion, therefore, would
have to be removed and expunged from the evidence of PW 7.
J-revn107.16.odt 4/6
8. Learned Senior Counsel has also pointed out to me similar
inadmissible pieces of evidence having been recorded in the testimonies
of PW 1 and PW 2. Of course, at that time no objection was taken. But,
these portions of evidence being inadmissible in law, whether or not any
objection was taken, could not have been recorded by the learned Special
Judge and, therefore, even these bits of evidence would be required to be
deleted from the testimonies of these two witnesses. In order to clarify
the issue, the portions that would be required to be removed from the
evidence of PW 1 and PW 2 are as follows :
PW 1 : (para 24)
"During enquiry with accused no.2 by CBI team, the
accused no.2 informed CBI officer that he had taken the
amount on behalf of one Naresh Yadav, clerk of chief
Record's office Brigade of the Guard."
PW 2 : ( para 15)
"In CBI office, during enquiry, accused no.2 told that he
had taken the amount at the instance of one
Nareshkumar, Clerk of Office of Brigade of Guard,
Kamptee."
9. In view of above, this application deserves to be allowed and
it is allowed accordingly.
10. The impugned order is hereby quashed and set aside.
11. The pieces of evidence as specifically reproduced in the
earlier parts of the order are declared to be inadmissible in evidence and,
therefore, shall be removed from the evidence of PW 1, PW 2 and PW 7
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immediately and shall not be considered at all while appreciating the
evidence.
JUDGE
okMksns
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CERTIFICATE
"I certify that this Judgment uploaded is a true and correct
copy of original signed Judgment."
Uploaded by : D.W. Wadode, P.A.
Uploaded on : 30.7.2016.
