Sariful Ahmed @ Saribul Ahmed vs The State Of West Bengal & Anr
2023 Latest Caselaw 1066 Cal

                IN THE HIGH COURT AT CALCUTTA

                (Criminal Revisional Jurisdiction)

                        APPELLATE SIDE



Present:

The Hon'ble Justice Shampa Dutt (Paul)



                            CRR 172 of 2020

                 Sariful Ahmed @ Saribul Ahmed

                               Vs

                 The State of West Bengal & Anr.




For the Petitioner                  : Mr. Ayan Basu,
                                      Mr. Iqbal Kabir,
                                      Mr. Sourav Bera,
                                      Mr. Sumit Routh.



For the Opposite Party no. 2        : Mr. Dipanjan Datta,
                                      Ms. Sonia Ojha,
                                      Ms. Sonia Nandi.

For the State                       : Mr. S.G. Mukerji, Ld. P.P.,
                                      Mr. Arijit Ganguly,
                                      Mr. Sanjib Kumar Dan.



Heard on                            : 18.01.2023

Judgment on                         : 09.02.2023
                                2


Shampa Dutt (Paul), J.:



       The present revision has been preferred praying for quashing the

impugned proceeding arising out of Lake Police Station Case No. 63

dated 04.03.2016 under Sections 364A/386/34 of the Indian Penal Code

and Section 25 (1B)(a) of Arms Act; now pending before the Court of

Learned    Chief   Judicial   Magistrate,   Alipore,   24   Parganas(s),

(corresponding to C.G.R. Case No. 984/2016.


       The petitioner's case is that the prosecution story as it has been

alleged is that a complaint was made by one Pradeep Baid before the

Lake Police Station stating inter alia that on 29.02.2016 at about 3.00 -

3.30 P.M. the complainant had an appointment with the landlady of P-

450, Keyatala Lane, near Vivekananda Park, South Kolkata for joint

venture development of her said property through a middle man "Subho

Da" alias Sourav Dey. Before that day complainant had visited that

house twice and met the landlord but never met the landlady. On both

the occasion the person "Subho Da" took the complainant there. As per

him (Subho Da) knows the entire family since long. On 27.02.2016 at

about 1.30 -2.00 P.M. complainant along with Subho Da and his

(Complainant's) friend Mr. Deepak Chandak met the landlord at Filler's

Café near Vivekananda Park for nearly one hour. In course of discussion

they came to know that the landlady is asking for some extra money for

herself and Subho Da was to co-ordinate with the landlady. Subho Da
                                3


called the complainant on Saturday evening and on Sunday and told that

on Monday, the 29th the landlord would visit his daughter's house at

Saltlake from 2.00 -4.00 P.M. In between they can meet the landlady and

clinch the deal. As per the above appointment, complainant reached the

place approx at 3.30P.M. and called up Subho Da, who told the

complainant to park the car a little away and walked down to the gate of

the property. Complainant as per the guidance of Subho Da walked down

to the gate where Subho Da escorted him to the waiting hall on the

ground floor of the G+2 storied building and the complainant was sitting

on a sofa and waited for the landlady to come down. Then Subho Da

asked the guard to call the "Boudi" alias landlady and also asked him to

get some cold water. Just one minute later Subho Da went out and

2(two) more persons (new to complainant) entered into the waiting hall

and stood in front of the complainant. Next moment Subho Da came

running with the revolver in one hand and razor in another and asked

the complainant to get into his scorpio car. When the complainant

objected and wanted to raise an alarm, Subho Da hit the face (left side) of

the complainant, with the razor sharp object and blood started pouring

and all three accused persons pushed the complainant into their car.

Another person was at the driving seat and the car started moving.

Complainant was bleeding badly. Then they gave him a T-Shirt to cover

the blood stain on complainant's shirt and also gave him a red cloth to

keep pressed on the wounds on his face, to stop the bleeding and so that
                                4


the bleeding would not be visible. They then kicked/punched the head,

shoulder and face of the complainant, whenever the complainant was

crying. Subho Da showed a revolver to the complainant and also showed

One Daw, Small Bhojali and told him that he (Subho Da) will take

revenge and will kill the complainant. The car went up to New

Barrackpur crossing on Jessore Road ferrying through Golpark, Gariahat

Flyover,   Park   Circus,   Suhawardy   Avenue,   Biswakarma,     Bypass,

Newtown, Chinar Park, V.I.P. Road, and Jessore Road and then took a

"U" turn and reached Charnock Hospital, where Subho Da got down and

bought Soframycin cream and micro tape for the complainant's wound

dressing and applied the same to the complainant's wound. In between

Subho Da took out the hand bala (gold), gold chain, two rings, wrist

watch, wallet and both mobile phones of the complainant, and switched

off the mobile phones. The car stopped at Baguihati bus stand and the

accused took the HDFC ATM card ending 9688 of the complainant and

asked the complainant, the 'pin number' for withdrawal of cash.

Complainant gave the 'pin number' to the accused. The accused person

then withdrew a sum of Rupees 95,000/-. The car then reached Kankulia

Road after a brief stop at Topsia, near a hospital and a Temple. After

nearly four hours of negotiation Subho Da settled for Rs. 60 Lakhs to be

payable by 04.02.2016 in order to save the complainant's life. Finally the

accused persons dropped the complainant opposite Lady Brabourne

College at Park Circus at 10.30 P.M. and returned the wallet, two gold
                                 5


rings and wrist watch. Then the complainant took a yellow taxi and

returned home. On the way home, the accused person called the

complainant again and told him not to inform the police and not to block

the ATM card and also told the complainant that his hand bala, and gold

chain would be returned to him and to remember the date deadline.


       The    investigating   agency   after   completion   of   investigation

submitted the Charge Sheet being no. 111 of 2016 on 21.06.2016

against the present petitioner and 3(three) other accused persons for the

offence punishable under section 364A/386/307/120B of the Indian

Penal Code.


       The petitioner states that the petitioner is not named in the First

Information Report and the complicity of the petitioner arises from the

statement of a co-accused which is not admissible in law, and except this

alleged statement of co-accused there is no other incriminating material

what so ever against the present petitioner.


       The First Information Report suffers from intrinsic hollowness

and antagonistic contradictions. The allegations made in the First

Information Report are so absurd and inherently improbable on the basis

of which no prudent person can ever reach just conclusion that there is

sufficient ground for proceeding against the present petitioner.


       Mr. Ayan Basu learned counsel for the petitioner has

submitted that the Learned Court ought to have considered that
                                 6


confession of a co-accused is not substantive evidence against and other

co-accused persons in the same trial.


       That though confession may be regarded as evidence in that

generic sense because of provisions of Section 30 of Evidence Act, the

fact remains that it is not evidence as defined by Section 3 of Evidence

Act.


       The Learned court should have appreciated the fact that in

dealing with a case against an accused, the Court cannot start with a

confession of co-accused, it must begin with other evidence adduced by

prosecution and after it has formed its opinion with regard to quality,

then it is permissible to turn to the confession in order to receive

assurance to the conclusion of guilt.


       The Learned Court did not consider the fact that except

confessional statement there is no other material on record to connect

the petitioner with the alleged crime, so putting the petitioner to the test

of trial is absolutely unwarranted and that will be a sheer abuse of

process of Law.


       The petitioner is completely innocent and in no way connected

with the commission of any offence far less the offences alleged herein

and he bears clean antecedents having no tint of blemish and the

complaint herein has been initiated the instant proceedings which is

palpably frivolous and was initiated only with a view to harass and
                                   7


intimidate the petitioner herein, which would be evident from the nature

of allegations as ventilated through the First Information Report as well

as the materials collected in investigation and its consequent results.


           The instant proceeding is attended with manifest mala fide and

the same was instituted for oblique purpose and in order to spite the

petitioner illegally.


           The impugned proceeding is otherwise bad in law.


           The allegations in the First Information Report as well as in the

Charge Sheet are vague in as much as the allegations do not show or

reflect any ingredient of the offences as alleged qua the petitioner herein.


           The action of the police authority is mala fide, arbitrary and

illegal.


           The continuation of any kind of proceedings is an abuse of

process of law. And thereby bad in law, inoperative and baseless, and as

such liable to be quashed and/or dropped.


           Mr. Dipanjan Dutta, learned counsel for the opposite party

no. 2 has submitted that the Learned Magistrate's order is in accordance

with law based on the prima facie materials in the case diary clearly

making       out   the   commission   of   a   cognizable   offence   by   the

petitioner/accused person. And as such the revisional application is

liable to be dismissed.
                                8


       Mr. S.G. Mukherjee, learned public prosecutor has placed the

case diary and submitted that there are sufficient material making out a

case against the petitioner of committing a cognizable offence and as

such the petitioner's revisional application should not be considered as

the same is an abuse of the process of court/law.


       Heard the learned counsel for both the parties and the learned

public prosecutor. Perused the materials on record. Considered.


       From the written complaint it is evident that there were four

persons including the driver accompanying the principle accused Subho

Da at the time when the complainant was allegedly forcibly taken in the

Scorpio vehicle.


       Four persons were charge sheeted.


       Accused Akbar Ali who has been identified in the test

identification parade has stated the name of the present petitioner

as a co-accused in his statement during investigation. A seizure list

dated 13.03.2016 shows seizure of Rs. 60,000/- in cash from the

premises belonging to accused Akbar Ali. The Scorpio vehicle along

with a mobile and sim card with connection and other documents of

the vehicle were also seized from the said premises. The said

recovery and seizure has been made on the statement of accused

Akbar Ali.
                                   9


        Several documents showing that the complainant had undergone

medical treatment for the assault allegedly caused by the petitioner is

part of the records though he stated before the doctor that he sustained

the injury as the result of a fall.


        Relevant CCTV footage has also been collected by the

investigating team with necessary certificate as required under the

law.


        The complainant has also filed the relevant Bank documents

and passbook in support of the statements in his complaint.


        There are also several statements recorded under Section 161

Cr.P.C. in support of the complainant.


        Overall there are sufficient materials in the Case Diary

making out a prima facie case against the petitioner. The other

accuseds have been identified in the T.I. parade.


        Mr. Basu has relied upon the following judgments of the Supreme

Court in support of his case for the petitioner.


        (a) Dipakbhai Jagdishchandra Patel vs. Stae of Gujarat and

           Anr., 2019 SCC Online SC 588, Criminal Appeal No. 714

           of 2019, on April 24, 2019.



                  "13. Appellant would submit that as regards
                  the extrajudicial confessional statement relied
               10


upon by the State dated 11-4-1996 made by
the appellant that it was not the basis on
which the charge-sheet had been framed. It is
secondly the case of the appellant that the
statement has been subsequently retracted.


17. It is the case of the State that the
appellant had knowledge that the notes were
counterfeit and fake notes and was in
conscious possession of the fake notes for 15
days. For framing charges, what is required is
prima facie satisfaction. Offence relating to
counterfeit notes is a grave offence and not to
be viewed lightly.


18. In the statement by the first accused, he
has stated that he had come to Ahmedabad
15 days earlier. At that time, he had told the
appellant that the fake notes are to be sold at
cheap price and at present he may keep those
notes with him. He further states that he had
brought these notes from the residence of the
appellant and that he had been caught while
he was selling the notes at cheap price.


19. In the first statement given by the
appellant dated 11-4-1996 relied upon by the
State, the appellant is credited with
knowledge of the fact that the bag containing
counterfeit notes was left by the first accused
at the appellant's residence and they were to
be sold at cheap price and it was kept at his
residence for some days.


20. Subsequently, his statement was again
recorded on 10-7-1996. Therein, he inter alia
states that the first accused told him that the
bag contains files relating to land deals and it
contained valuables.


21. In further questioning on 30-8-1996, he
inter alia states that because of his
                        11


        acquaintance    with     Ravi,  he    became
        acquainted with the first accused and that he
        had left the bag at his residence saying that
        the bag contained important documents.


        22. These are the materials, in short, which
        were relied on by the State to sustain the
        order framing the charge against the
        appellant. That is to say, the statements given
        by the appellant under Section 161 and the
        statement also given by the co-accused.


        23. .................. The material must be such
        as can be translated into evidence at the stage
        of trial. The strong suspicion cannot be the
        pure subjective satisfaction based on the
        moral notions of the Judge that here is a case
        where it is possible that the accused has
        committed the offence. Strong suspicion must
        be the suspicion which is premised on some
        material which commends itself to the court as
        sufficient to entertain the prima facie view that
        the accused has committed the offence."

(b) Sushila Aggarwal and Ors. vs. State (NCT of Delhi) and

  Anr., (2020) 5 SCC 1, SLPs (Crl.) Nos. 7281-82 of 2017, on

  January 29, 2020.

        "61. A fuller consideration of the various
        decisions cited earlier, especially those which
        emphasised the need to limit the life of an
        order of anticipatory bail, are premised on the
        understanding that the grant of an
        unconditional order of bail would thwart
        investigation. In the first place, this premise is
        unfounded, given that Sibbia [Gurbaksh Singh
        Sibbia v. State of Punjab, (1980) 2 SCC 565 :
        1980 SCC (Cri) 465] stated (in para 13, SCC
        reports) that such an order would be "contrary
        to the terms" of Section 438; and furthermore,
               12


that conditions mentioned in Section 438(2)
could be imposed while granting anticipatory
bail. Here, one is conscious of the fact that the
requirement of imposing conditions is not
compulsive (noticing the use of the term "may"
which precedes the requirement of imposing
conditions). Nevertheless, an unconditional
order, in the sense of an order not even
imposing conditions mentioned in Section
438(2)      can      impede       or     hamper
investigation, Sibbia [Gurbaksh            Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 :
1980 SCC (Cri) 465] held that the conditions
mentioned in that provision should be
imposed. This requirement is more a matter of
prudence, while granting relief.
62. This Court cannot lose sight of the fact
that the Law Commission's 41st and 48th
Reports focused on the need to introduce the
provision (for anticipatory bail) as a
preventive, or curative measure, to deal with a
particular     problem     i.e.    unwarranted
arrests. Sibbia [Gurbaksh                  Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 :
1980 SCC (Cri) 465] noticed this fact, and also
that significantly, Section 438 is not hedged
with any obligation on the court's power, to
impose conditions. That situation remains
unchanged : the provision remains unaltered
-- at least substantially (barring an
amendment in 2005 which obliged the
issuance of notice to the Public Prosecutor
before issuing any order for anticipatory bail) [
The amendment i.e. the Criminal Procedure
Code (Amendment) Act, 2005 -- which has till
now, not been brought into force, reads as
follows:"438. Direction for grant of bail to
person apprehending arrest.--(1) Where
any person has reason to believe that he may
               13


be arrested on accusation of having committed
a non-bailable offence, he may apply to the
High Court or the Court of Session for a
direction under this section; that in the event
of such arrest, he shall be released on bail
and the Court may after taking into
consideration inter alia the following factors,
namely--(i) the nature and gravity of the
accusation;(ii) the antecedents of the applicant
including the fact as to whether he has
previously     undergone     imprisonment      on
conviction by a court in respect of any
cognizable offence;(iii) the possibility of the
applicant to flee from justice; and(iv) where the
accusation has been made with the object of
injuring or humiliating the applicant by having
him so arrested,either reject the application
forthwith or issue an interim order for the
grant of anticipatory bail:Provided that where
the High Court or as the case may be the
Court of Session has not passed any interim
order under this sub-section or has rejected
the application for grant of anticipatory bail it
shall be open to an officer in charge of police
station to arrest without warrant the applicant
on the basis of the accusation apprehended in
such application.(I-A) Where the Court grants
an interim order under sub-section (1), it shall
forthwith cause a notice being not less than
seven days' notice, together with the copy of
such order to be served on the Public
Prosecutor and the Superintendent of Police,
with a view to give the Public Prosecutor a
reasonable opportunity of being heard when
the application shall be finally heard by the
Court.(I-B) The presence of the applicant
seeking anticipatory bail shall be obligatory at
the time of final hearing of the application and
passing of final order by the Court, if on an
               14


application made to it by the Public Prosecutor,
the Court considers such presence necessary
in the interest of justice."] . The 203rd Report
of the Law Commission, which reviewed the
entire law on the subject and noticed later
decisions,      such    as Salauddin [Salauddin
Abdulsamad Shaikh v. State of Maharashtra,
(1996) 1 SCC 667 : 1996 SCC (Cri) 198] , Adri
Dharan Das [Adri Dharan Das v. State of
W.B., (2005) 4 SCC 303 : 2005 SCC (Cri) 933] ,
etc. recommended no change in law on this
aspect relating to conditions. In this
background, it is important to notice that the
only bar, or restriction, imposed by Parliament
upon the exercise of the power (to
grant anticipatory bail) is by way of a positive
restriction i.e. in the case where accused are
alleged to have committed offences punishable
under Section 376(3) or Section 376-AB or
Section 376-DA or Section 376-DB of the Penal
Code. In other words, Parliament has now
denied jurisdiction of the courts (i.e. Court of
Session and High Courts) from granting
anticipatory bail to those accused of such
offences. The amendment [Code of Criminal
Procedure Amendment Act, 2018 introduced
Section 438(4)] reads as follows:


"438. (4) Nothing in this section shall apply to
any case involving the arrest of any person on
accusation of having committed an offence
under sub-section (3) of Section 376 or Section
376-AB or Section 376-DA or Section 376-DB
of the Indian Penal Code."


63. Clearly, therefore, where Parliament
wished to exclude or restrict the power of
courts, under Section 438 of the Code, it did so
               15


in categorical terms. Parliament's omission to
restrict the right of citizens, accused of other
offences from the right to seek anticipatory
bail, necessarily leads one to assume that
neither a blanket restriction can be read into
by this Court, nor can inflexible guidelines in
the exercise of discretion, be insisted upon --
that would amount to judicial legislation.


68. The imposition of conditions under Section
438(2) with reference to Section 437(3), in the
opinion of this Court, is enough safeguard for
the authorities -- including the police and
other investigating agencies, who have to
investigate into crimes and the possible
complicity of the applicants who seek such
relief. Taking each concern i.e. the addition of
more serious offences; presence of a large
number of individuals or complainants;
possibility    of   non-cooperation   --     non-
cooperation in the investigation or the
requirement of the accused's statement to aid
the recovery of articles and incriminating
articles in the course of statements made
during investigations -- it is noticeable,
significantly,    that   each   of   these     is
contemplated as a condition and is invariably
included in every order granting anticipatory
bail. In the event of violation or alleged
violation of these, the authority concerned is
not remediless : recourse can be had to
Section 438(2) read with Section 437(3). Any
violation of these terms would attract a
direction to arrest him. This power or direction
to arrest is found in Section 437(5). However,
that provision has no textual application to
regular bail granted by the Court of Session or
High Courts under Section 439 or directions
                16


not to arrest i.e. order of anticipatory bail
under Section 438. Secondly, Section 439(2)
which is cast in wide terms, adequately covers
situations when an accused does not
cooperate during the investigation or threatens
to, or intimidates witness[es] or tries to tamper
with other evidence.


73. As regards the concern expressed on
behalf of the State and the Union -- that
unconditional orders (i.e. those unrelated to a
particular time-frame) would result in non-
cooperation of the accused, with the
investigating officer or authority, or that there
would be reluctance to make statements to the
prosecution, to assist in the recovery of articles
that incriminate the accused (and therefore
can be used under Section 27, Evidence Act),
this Court perceives such views to be vague
and based apparently on preconceived
notions. If there is non-cooperation by an
accused -- in the course of investigation, the
remedy of seeking assistance of the court
exists.     Moreover,      on     this     aspect
too, Sibbia [Gurbaksh Singh Sibbia v. State of
Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri)
465] had envisioned the situation; the Court
had       cited State      of     U.P. v. Deoman
Upadhyaya [State         of       U.P. v. Deoman
Upadhyaya, AIR 1960 SC 1125 : (1961) 1 SCR
14 : 1960 Cri LJ 1504] , wherein this Court
had observed as follows : (Deoman
Upadhyaya case [State of U.P. v. Deoman
Upadhyaya, AIR 1960 SC 1125 : (1961) 1 SCR
14 : 1960 Cri LJ 1504] , AIR p. 1131, para 12)


"12. ... When a person not in custody
approaches a police officer investigating an
               17


offence and offers to give information leading
to the discovery of a fact, having a bearing on
the charge which may be made against him he
may appropriately be deemed to have
surrendered himself to the police. Section 46 of
the Code of Criminal Procedure does not
contemplate any formality before a person can
be said to be taken in custody : submission to
the custody by word or action by a person in
sufficient. A person directly giving to a police
officer by word of mouth information which
may be used as evidence against him, may be
deemed to have submitted himself to the
"custody" of the police officer within the
meaning of Section 27 of the Evidence Act
: Legal Remembrancer v. Lalit Mohan Singh
Roy [Legal     Remembrancer v. Lalit      Mohan
Singh Roy, 1921 SCC OnLine Cal 61 : ILR
(1922) 49 Cal 167] , Santokhi Beldar v. King
Emperor [Santokhi Beldar v. King Emperor,
1932 SCC OnLine Pat 82 : ILR (1933) 12 Pat
241] . Exceptional cases may certainly be
imagined in which a person may give
information without presenting himself before
a police officer who is investigating an offence.
For instance, he may write a letter and give
such information or may send a telephonic or
other message to the police officer."


This view was reiterated and applied in Soni
Vallabhdas         Liladhar v. Collector     of
Customs [Soni                        Vallabhdas
Liladhar v. Collector of Customs, (1965) 3 SCR
854 : AIR 1965 SC 481 : (1965) 1 Cri LJ 490] .
The observations in Sibbia [Gurbaksh Singh
Sibbia v. State of Punjab, (1980) 2 SCC 565 :
1980 SCC (Cri) 465] are relevant, and are
                              18


               reproduced again, for facility of reference :
               (SCC p. 584, para 19)


               "19. ... One of such conditions can even be
               that in the event of the police making out a
               case of a likely discovery under Section 27 of
               the Evidence Act, person released on bail shall
               be liable to be taken in police custody for
               facilitating the discovery. Besides, if and
               when the occasion arises, it may be possible
               for the prosecution to claim the benefit of
               Section 27 of the Evidence Act in regard to a
               discovery of facts made in pursuance of
               information supplied by a person released on
               bail by invoking the principle stated by this
               Court       in State     of    U.P. v. Deoman
               Upadhyaya [State        of     U.P. v. Deoman
               Upadhyaya, AIR 1960 SC 1125 : (1961) 1 SCR
               14 : 1960 Cri LJ 1504] ."


               Therefore, the "limited custody" or "deemed
               custody" to facilitate the requirements of the
               investigative authority, would be sufficient for
               the purpose of fulfilling the provisions of
               Section 27, in the event of recovery of an
               article, or discovery of a fact, which is
               relatable to a statement made during such
               event (i.e. deemed custody). In such event,
               there is no question (or necessity) of asking the
               accused to separately surrender and seek
               regular bail."


      It is thus the case of the petitioner that he has been falsely

implicated in this case by a co-accused and he is protected by the

judgments he has relied upon.
                        19


This Court relies upon the decision of the Supreme Court in:-


 (i)   In Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias

       Pappu Yadav and Anr., January 18, 2005.

        "21. Next question in this case is: whether in
        the earlier proceedings, Courts including this
        Court, had given a finding in regard to the
        existence of prima facie case against the
        respondent or not ?. If so, has the respondent

brought on record any fresh material either factual or legal so as to empower the High Court to reconsider the earlier orders ?

23. Therefore, we will examine whether the two issues namely (A) the existence of the prima facie case against the accused and (B) the evidentiary value of retracted confession ; have been considered by the High Court as well as by this Court in the previous proceedings or not.

25. In the order of the High Court dated 5th November, 2001 in Crl. Misc. No. 22243 of 2001, it is seen that an argument was addressed on behalf of the respondent that except the statement of Rajan Tiwari, a co- accused, there is no other material against him and since the confession of co- accused cannot be used as substantive evidence and there being no other material on record there is no possibility of his conviction in the case. Therefore, he should be enlarged on bail. It was also argued by the counsel for the respondent that confessional statement made before the Metropolitan Magistrate, Delhi was later retracted and while recording the confessional statement the concerned Magistrate did not observe the required formalities envisaged in Section 164 of the Criminal Procedure Code. It was also argued that the maker of the confession Rajan Tiwari was brought from custody, hence the Magistrate erred in recording the confessional statement without observing the necessary

formalities. Therefore, the so called confessional statement must be ignored for the purpose of finding out the existence of a prima facie case. The said learned counsel also argued that, at any rate, confession of co- accused not being a substantive piece of evidence, it can only be used in aid of other evidence and there being no such other evidence the confessional statement by itself cannot lead to conviction. The learned counsel for the respondent-accused in that proceedings had relied upon on number of judgments of this Court in support of his contention as could be seen from the said order of the High Court. Having noticed the said argument, the High Court recorded its findings as follows :-

"None of the abovesaid decisions, in my opinion, is of any help to the petitioner for the simple reason that all of them were rendered after trial. In the instant case the evidence is yet to see the light of the day. While the principles laid down in those cases about the nature of the confessional statement and the safeguards contained in section 164 Cr.P.C. are unexceptionable, for the purpose of section 437 (1)(i) of the Code what the court has to see is whether there are reasonable grounds to believe that the accused has been guilty of an offence punishable with death and imprisonment for life. Where circumstances exist which provide grounds to believe the guilt of the person the Court is not required to speculate as to quantum and nature of the evidence which would be led by the prosecution at the stage of trial".

26. Bearing in mind the above principle and some judgments of this Court the High Court in that petition held :-

"The confession which Rajan Tiwari made is no doubt a statement of a co-accused but it is an inclupatory statement and cannot be ignored for the purpose of bail. In fact, as per

his statement he is one of the assailants. There is nothing on the record to suggest that he made the confessional statement under Section 164 Cr.P.C. before the Metropolitan magistrate under any threat or coercion. Whether the safeguards envisaged in section 164 Cr. P.C. were observed or not is a matter of evidence which is still to come".

27. From the above it is also noticed that apart from discussing prima facie case, the court also noted that the confession was retracted. The court also noticed the material available on record indicating the motive for the crime and the proximity of the first respondent-accused with one of the accused Rajan Tiwari who made the confessional statement. After considering all the above material the court recorded a finding as follows :-

"I have little doubt in my mind that the materials on record in the case diary do constitute prima facie case. In fact, after the framing of charges, which has not been challenged by the petitioner, there can be little doubt about prima facie case against and, therefore, considering the matter from the angle of Section 437(1)(i) of the Criminal Procedure Code the petitioner does not deserve bail".

(Emphasis supplied)

28. From the above facts recorded in the said judgment of the High Court, it is clear that that court took into consideration the evidentiary value of the retracted confession and the existence of prima facie case. Therefore, in our opinion, the learned counsel for the first respondent was factually in error in contending that the High Court in any of the previous proceedings did not go into the question of the existence of prima facie case or the legality and the evidentiary value of the retracted confession of Rajan Tiwari.

29. Apart from the observations made by the High Court in the above said petition even this Court in its judgment reported in Kalyan Chandra Sarkar vs. Rajesh Ranjan had observed in regard to the existence of prima facie case as follows:-

"19. The next argument of the learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co- accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."

(ii) In Surinder Kumar Khanna v. Intelligence Officer,

Directorate of Revenue Intelligence, Criminal Appeal

No. 949 of 2018, July 31, 2018.

"11. In Kashmira Singh v. State of Madhya Pradesh, (1952) SCR 526, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King,

(1949) 76 Indian Appeal 147 at 155 and laid down as under:

"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King "It does not indeed come within the definition of" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination." Their Lordships also point out that it is

"obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."

They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ? In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty, (1911) I.L.R. 38 CAl. 559 at 558, where he said that such a confession can only be used to "lend assurance to other evidence against a co- accused "or, to put it in another way, as Reilly

J. did in In re Periyaswami Moopan, (1931) I.L.R. 54 Mad. 75 at 77.

"the provision goes no further than this-- where there is evidence against the co- accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence."

Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

(iii) In Union of India v. Bal Mukund and Ors., Criminal

Appeal No. 1397 of 2007, on March 31, 2009.

"21. We may notice that in State (NCT of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600], 2005 SCC (Cri) 1715 this Court has laid down the law in the following terms:

"38. The use of retracted confession against the co-accused however stands on a different footing from the use of such confession against the maker. To come to

grips with the law on the subject, we do no more than quoting the apt observations of Vivian Bose, J., speaking for a three-Judge Bench in Kashmira Singh v. State of M.P. AIR 1952 SC 159 Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to "lend assurance to other evidence against a co-accused".

(iv) In Raja @ Ayyappan vs State of Tamil Nadu, Criminal

Appeal No. 1120 of 2010, on April 1, 2020.

"28. Section 30 of the Indian Evidence Act mandates that to make the confession of a coaccused admissible in evidence, there has to be a joint trial. If there is no joint trial, the confession of a co accused is not at all admissible in evidence and, therefore, the same cannot be taken as evidence against the other coaccused. The Constitution Bench of this Court in Kartar Singh (supra), while considering the interplay between Section 30 of the Indian Evidence Act and Section 15 of the TADA Act held that as per Section 15 of the TADA Act, after the amendment of the year 1993, the confession of the co- accused, is also a substantive piece of evidence provided that there is a joint trial.

32. In Ananta Dixit v. The State, 1984 Crl. L.J. 1126, the Orissa High Court was considering a similar case under Section 30 of the Evidence Act. The appellant, in this case, was absconding. The question for consideration was whether a confession of one of the accused 1984 Crl. L.J.

1126 persons who was tried earlier, is admissible in evidence against the appellant. The Court held that the confession of the coaccused was not admissible in evidence against the present appellant. The Court held:

"7. As recorded by the learned trial Judge, the accused Narendra Bahera, whose confessional statement had been relied upon, had been tried earlier and not jointly with the appellant and the co accused person Baina Das. A confession of the accused may be admissible and used not only against him but also against a coaccused person tried jointly with him for the same offence. Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom the confession is used. The confession of an accused tried previously would be rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a coaccused person, the confession of Narendra Behera was not to be admitted under Section 30 of the Evidence Act against the present appellant and the coaccused Baina Das."

We are in complete agreement with the view of the High Court.

33. We are of the view that since the trial of the other two accused persons was separate, their confession statements (Ex.P- 26 and P27) are not admissible in evidence and the same cannot be taken as evidence against the appellant."

(v) In Parveen @ Sonu vs The State of Haryana, Criminal

Appeal No. 1571 of 2021 arising out of SLP (Crl.) No.

5438 of 2020, on December 07, 2021.

"12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co- accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. In the case of Indra Dalal v. State Of Haryana1, this Court has considered the conviction based only on confessional statement and recovery of vehicle used in the crime.................."

In the present case there is sufficient evidence and materials in

the case diary as discussed earlier against the petitioner/accused for him

to face a joint trial with the other accused persons including the persons

who have been identified during test identification parade. The

petitioner/accused obviously could not be placed in the test identification

parade.

From the materials in the case diary it is seen that there were 4 to

5 accused persons in the commission of the alleged crime. Two of the

accuseds have been identified in the test identification parade. On the

basis of a statement recorded of accused Akbar Ali, the cash, the vehicle,

the mobile with sim card and other documents have been seized from the

premises belonging to accused Akbar Ali. It is this witness who has

named the present petitioner as a person who was part of the team who

allegedly committed the crime.

Apart from the statement of the co accused the test

identification parade, the articles recovered, other statements under

Section 161 Cr.P.C., medical reports, Bank documents, CCTV

footage with certificate under Section 65B of Evidence Act are all

additional evidence collected by the investigating team which prima

facie make out a case of commission of a cognizable offence by the

petitioner and the other accused persons, for the case to proceed

towards trial, also in respect of the present petitioner.

Without the petitioner going into joint trial along with the other

accused persons, there shall be miscarriage of Justice and quashing the

proceedings as prayed for, will be a clear abuse of the process of the

court /law, considering the materials/evidence in the case diary against

the petitioner and the other accused persons.

Thus the investigation and the proceedings in the present case

being in accordance with law needs no interference by this court.

CRR 172 of 2020 is dismissed.

There will be no order as to costs.

All connected Application stand disposed of.

Interim order if any stands vacated.

Copy of this judgment be sent to the Trial Court forthwith for

necessary compliance.

Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal

formalities.

(Shampa Dutt (Paul), J.)