Kamal Kishore vs State Through Delhi ...
1997 Latest Caselaw 194 Del

ORDER

1. This is a revision petition against the orders on charge dated 22-7-1995 and charge dated 19-9-1995 passed by Mr. Ravinder Dudeja, Metropolitan Magistrate, New Delhi framing charge against the petitioner under Ss. 356/379/34, IPC.

2. Briefly the facts of the case are that one Mr. Mahesh Sahai Andley lodged an FIR with P. S. Lodhi Colony on 7-7-1992 alleging that he had withdrawn Rs. 10,000/- from Punjab National Bank and kept the same in his small black hand bag. He had further alleged that when he proceeded towards Lodhi Road Complex, some one came from behind him and snatched the bag. The police registered his FIR under S. 356/379/34, IPC against unknown person. After about five months of the incident, the police arrested two persons, namely Subhash and Vijendra. In their confessions/disclosure statements recorded by the police under S. 161, Cr.P.C., they disclosed the name of the present petitioner alleging that the petitioner was guarding them on the road while they snatched the bag and ran away on a motor-cycle. The said co-accused has further alleged in their disclosure statements that the petitioner also shared the booty. The petitioner, while in custody, has also made a confessional statement confessing the above allegation. However, no recovery has been made from the possession of the petitioner or at his instance.

3. After investigation, the police filed the challan before the learned Magistrate and on the basis of the confessional/disclosure statements mentioned above, recorded by the police, the Court has framed the charge against the present petitioner also of his having committed an offence under Ss. 356/379/34, IPC. The prosecution has cited eight witnesses against the petitioner, out of which six are police personnel and one is the complainant. The eighth one Ravindra, son of Hari Ram has not stated anything against the present petitioner. He has only stated to be a witness of the recovery of bag and seizure of motor-cycle of co-accused Vijendra. It is further alleged that on TIP in respect of the petitioner was conducted.

4. I have heard counsel for the parties. The short question involved in this case is as to whether the confession by the accused not leading to recovery from the petitioner or confession by the petitioner while in police custody made before the police can entail the framing of charge against the petitioner. Counsel for the petitioner has contended that the prosecution has tried to build up a case against the petitioner on the basis of the disclosure statement recorded under S. 161, Cr.P.C. He has further contended that framing of charge against the present petitioner who is alleged to be a co-accused, is hit by Ss. 25, 26 and 27 of the Evidence Act. Before dealing with the above question, it is relevant to refer to the provisions of Ss. 25, 26 and 27, which are reproduced as under :-

"25. Confession to police officer not to be proved-No confession made to a police officer, shall be proved as against a person accused of any offence.

26. Confession by accused while in custody of police not to be proved against him-No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

(Explanation-In the section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1882.

27. How much of information received from accused may be proved -Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

5. From a perusal of the above provisions of law, it can be seen that a fact discovered on information supplied by the accused in his disclosure statement, is a relevant fact and that is only admissible in evidence if some thing new is discovered or recovered from the accused which was not within the knowledge of the police before recording the disclosure statement of the accused. I have heard both parties at some length.

6. The question arising in the present case has been considered in many cases already decided, some of which are as under :-

In Ram Kishore v. State, reported as (1990) 2 Chand Cri C 205 : (1990 NOC 118), it has been laid down that the prosecution has tried to built up their case on the disclosure statement of the accused which to our mind are of confessional nature. Section 27 of the Evidence Act lays down an exception to the rule that a confession made by an accused person whilst he is in custody must be excluded from evidence and permits the admission of such a confession under the condition prescribed by it. This section is by way of a proviso to both Ss. 25 and 26. That is why this proviso has to be strictly construed and any relaxation must be sparingly allowed. The Courts have to take care that the purpose and object of Ss. 25 and 26 are not rendered nugatory by any lax interpretation. The difficulty, however, great of proving that a fact discovered on information supplied by the accused is a relevant fact, can afford no justification for reading into the section something that is not there and admitting in an evidence a confession barred by S. 25.

7. In Vinod Kumar v. State, reported as (1990) 2 Chand Cri C 211, a Division Bench of this Court held that under S. 27 of the Evidence Act only that part of the statement of accused made to the police could be admissible in evidence which had led to discovery of a particular fact. In the present case, disclosure statement did not lead to the recovery of the weapon. The place of the occurrence was already known to the police before recording of the disclosure statement and thus the pointing out of the place of occurrence by accused Suresh and the memo prepared in that respect was not admissible in evidence.

8. In Mangal Singh v. State, reported as (1995) 1 Chand Cri C 45, this Court was of the view that where the information does not relate distinctly to the fact thereby discovered the admissibility of the disclosure statement of the appellant is not legally tenable under S. 27 of the Evidence Act.

9. In Jaiveer v. State, reported as (1995) 2 Chand Cri C 422, a Division Bench of this Court had laid down that the disclosure statement of the accused is not at all admissible in evidence where it has not led to any discovery of any fact which was not known to the I.O. also, under S. 27 of the Evidence Act.

10. Again in Virinder Kumar Yadav v. State, reported as (1995) 3 Chand Cri C 236, it has been held that the confessional statement of accused which has not led to any discovery and any material fact was totally inadmissible in evidence under S. 27 of the Evidence Act, and it has depreciated the tendency of lower Courts to exhibit the confessional statement made by the accused to the police, during the trial which are not in accordance with the law.

11. Last but not the least in Nabi Mohd. Chand Hussain v. State of Maharashtra, reported as 1980 Cri LJ 860, it has been held that the statement of the accused leading to the discovery cannot be used as against the co-accused. It has also been held that informatory statement amounting to confession of the accused cannot be used against the co-accused with the aid of S. 30 of the Evidence Act.

12. Thus it is clear that the disclosure statement of the accused is not at all admissible in evidence where it has not led to discovery of any fact which was not known to the police. Further under Sec. 27 of the Evidence Act which is in the nature of a provision to Ss. 25 and 26 of the Evidence Act. From the above discussion, it also becomes clear that the confession made while in custody is not to be proved against the accused as the proviso to Ss. 25 and 26 of the said Act does not permit it unless it is made before a Magistrate and also that the statement of the accused leading to discovery cannot be used against co-accused. In the present case, the prosecution has tried to make a case against the petitioner only on the basis of the confessional/disclosure statement made by him while in custody and statements of the co-accused leading to discovery. The latter statement cannot be used against co-accused under S. 30 of the Indian Evidence Act. Thus both are not permissible under law.

13. In the present case, the learned Magistrate has framed the charge against the present petitioner only on the basis of the disclosure statement which has not led to discovery of any fact which was not known to the prosecution before recording the statement of the petitioner. No recovery at the instance of the petitioner has been made. No independent witness has deposed that the petitioner has shared the booty or was involved in the incident in question except as alleged by the co-accused. There is no corroborating evidence on record corroborating the above allegation against the present petitioner.

14. In the circumstances, the learned Magistrate has erred in framing the charge against the petitioner and his order to the extent of framing charge against the petitioner in the present case, cannot, in the light of above discussion, be sustained. Accordingly, the petition is allowed and the orders on charge dated 22-7-1995 and charge dated 19-9-1995 passed by the learned Metropolitan Magistrate, New Delhi to the extent those relate to the petitioner are hereby set aside.

15. Trial Court record be sent back forthwith.

16. Order accordingly.