This petition under section 482 of Cr.P.C. has been filed for quashing of
FIR pertaining to Crime No. 376/2018 registered by the Police Station, Station
Road District - Ratlam for offence punishable under section(s)420, 467, 468,
471 and 120-B of the Indian Penal Code, 1860 and all other subsequent
proceedings arising therefrom.
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2. The exposition of facts, giving rise to the present petition, is as under:
Ratlam, inter-alias tating that the District Collector, Distt. Ratlam
had approved 320 beneficiaries under the Pradhan Mantri Awas
Yojana. Deepak Kumawat, representative of CEDMAP Company,
had manipulated the approved beneficiary list to add 13 names, who
were ineligible to receive the Government aid under the Pradhan
Mantri Awas Yojana. The matter was enquired and it was found that
Deepak Kumawat had added names of Mamta, Aakash, Jakir
Hussain, Rahees Khan, AhteshamBano, Aashik, Shakeela Bano,
Afroz Bi, Deepak, Nasir, Shahina, Naseem,Shahina Bi to wrongly
benefit them as beneficiaries.
(ii) On such allegations, the P.S. Station Road, Ratlam
registered FIR at Crime No. 376/2018 for offence punishable u/Ss
420, 467, 468 and 471 of IPC against Deepak Kumawat, employee
of CEDMAP. During investigation, the ineligible beneficiaries were
apprehended. Zakir Hussain, Rais, Afroz Bi, Shahina, Naseem,
Shakeela Bi, Ahtesham Bano informed in police custody that Shahid
(petitioner)induced them to provide their Aadhar Card, Bank
Passbook and other documents to facilitate government aid in
Pradhan Mantri Awas Yojana through his friend Deepak Kumawat.
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They received first installment of Rs. 50,000/-. They kept Rs. 5,000/-
and gave Rs. 45,000/- to Zakir. Zakir in turn gave the money to
Shahid and Shahid gave the money to Deepak Kumawat.
Accordingly, Shahid was arrested on 31.12.2018. He was extended
benefit of bail. However, there is no seizure in furtherance of such
information at the instance of the applicant. The Final report was
submitted on completion of investigation against the petitioner
Shahid.
3. Learned counsel for petitioner, in addition to the grounds mentioned in
the petition, submits that petitioner has falsely been implicated in this matter
merely on the basis of information given by the co-accused in police custody,
which is not admissible in evidence against the petitioner. No incriminating
material was seized at the instance of the petitioner. In absence of any
incriminating evidence, the prosecution against the petitioner would be travesty
of justice. Learned counsel further submits that trial is pending. Only 03 out of
27 enlisted witnesses have been examined till date. Therefore, impugned FIR
deserves to be quashed.
4. Per contra, learned counsel for the respondent/State opposes the
application and submits that the complicity of the applicant is made out on the
basis of material on record. He was a middleman between the other co-accused
and main accused Deepak Kumawat. He facilitated all the documents for
receipt of money under the Pradhan Mantri Awas Yojana from the Municipal
Corporation, Ratlam. The petition is meritless and deserves to be dismissed.
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5. Heard, learned counsel for both the parties and perused the record.
6. The Supreme Court in case of State of Haryana & Others vs.Ch.
Bhajan Lal & Others, reported in AIR 1992 SC 604 after an elaborate
consideration of the matter and after referring to its various earlier decisions,
has observed in para 102 as under:-
(5) Where the allegations made in the FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the accused.
(6)Where there is an express legal bar engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or where there is a specific
provision in the Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
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(7) Where a criminal proceeding is manifestly attended with malafide and/or where
the proceeding is maliciously Instituted with an ulterior motive for wreaking
vengeance on the accused and with a view to spite him due to private and personal
grudge.''
7. In the case of Madhavrao Jiwajirao Scindia Vs Sambhajirao
ChanrojiraoAngrereported in 1988 (1) SCC 692, the Supreme Court has held
as under:
―The legal position is well settled that when a prosecution at the initial stage is asked
to be quashed, the test to be applied by the court is as to whether the uncontroverted
allegations as made prima facie establish the offence. It is also for the court to take
into considerations any special features which appear in a particular case to consider
whether it is expedient and in the interest of justice to permit a prosecution to
continue. This is so on the basis that the Court cannot be utilized for any oblique
purpose and where in the opinion of the Court chances of an ultimate conviction are
bleak and, therefore, no useful purpose is likely to be served by allowing a criminal
prosecution to continue, the Court may while taking into consideration the special
facts of a case also quash the proceeding even though it may be at a preliminary
stage.‖
8. In case of Surinder Kumar Khanna v. Directorate of Revenue
Intelligence, reported in (2018) 8 SCC 271, it was observed that-
10. In Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR
1952 SC 159 , this Court relied upon the decision of the Privy Council in Bhuboni
Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155 and laid down as
under: (AIR p. 160, paras 8-10)
―8. 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. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.
‗...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 the foundation of a
conviction and can only be used in ―support of other evidence‖. In view of these
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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 insofar as he is corroborated?
9. In our opinion, the matter was put succinctly by Sir Lawrence Jenkins in Emperor v.
Lalit Mohan Chuckerbutty[Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal
559 at p. 588.] 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 PeriaswamiMoopan, In re , 1930 SCC OnLine Mad 86 : ILR (1931)
54 Mad 75 at p. 77. : (SCC OnLine Mad)
‗...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 described in Section 30 may be thrown into the scale as an additional
reason for believing that evidence.'
10. 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.‖
11.The law laid down in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952
SCR 526 : AIR 1952 SC 159, was approved by a Constitution Bench of this Court in
Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC
1184, wherein it was observed:
―12. As we have already indicated, this question has been considered on several
occasions by judicial decisions and it has been consistently held that a confession
cannot be treated as evidence which is substantive evidence against a co-accused
person. In dealing with a criminal case where the prosecution relies upon the
confession of one accused person against another accused person, the proper
approach to adopt is to consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory and the court is inclined to hold
that the said evidence may sustain the charge framed against the said accused
person, the court turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other evidence is right. As was
observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty, ILR
(1911) 38 Cal 559 at p. 588. a confession can only be used to ―lend assurance to
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other evidence against a co-accused‖. In PeriaswamiMoopan, In re, 1930 SCC
OnLine Mad 86 : ILR (1931) 54 Mad 75 at p. 77. Reilly, J., observed that the
provision of Section 30 goes not further than this: (SCC OnLine Mad)
‗...where there is evidence against the co-accused sufficient, if believed, to support his
conviction, then the kind of confession described in Section 30 may be thrown into the
scale as an additional reason for believing that evidence.'
9. Later, in case of DipakbhaiJagdishchandra Patel v. State of
Gujaratreported in (2019) 16 SCC 547, it was held that-
24. Undoubtedly, this Court has in Suresh Budharmal Kalani v. State of Maharashtra,
(1998) 7 SCC 337, taken the view that confession by a co-accused containing
incriminating matter against a person would not by itself suffice to frame charge
against it. We may incidentally note that the Court has relied upon the judgment of this
Court in Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR
1952 SC 159, We notice that the observations, which have been relied upon, were
made in the context of an appeal which arose from the conviction of the appellant
therein after a trial. The same view has been followed undoubtedly in other cases
where the question arose in the context of a conviction and an appeal therefrom.
However, in Suresh Budharmal Kalani v. State of Maharashtra, (1998) 7 SCC 337,
the Court has proceeded to take the view that only on the basis of the statement of the
co-accused, no case is made out, even for framing a charge.
30. In Law of Evidence by M. Monir, 17th Edn., p. 555, we notice the following
discussion regarding the distinction between Section 25 on the one hand and Section
26 on the other hand:
―... The section deals with confessions which are made not to Police Officers but to
persons other than Police Officers, e.g., to a fellow prisoner, a doctor or a visitor,
and makes such confessions inadmissible if they were made whilst the accused was
in the custody of a Police Officer. In Section 25 the criterion for excluding a
confession is the answer to the question. ―To whom was the confession made?‖ If
the answer is that it was made to a Police Officer, the confession is absolutely
excluded from evidence. On the other hand, the criterion adopted in Section 26 for
excluding a confession is the answer to the
question. ―Under what circumstances was the confession made?‖ If the answer is
that it was made whilst the accused was in the custody of a Police Officer, the law
lays down that such confession shall be excluded from evidence, unless it was made
in the immediate presence of a Magistrate.‖
****************************
42. A Bench of three learned Judges of this Court in Mahabir Mandal v. State of
Bihar, (1972) 1 SCC 748 : 1972 SCC (Cri) 454 : AIR 1972 SC 1331 , had this to say:
―46. Coming to the case of Kasim, we find that there is no reliable evidence as may
show that Kasim was present at the house of Mahabir on the night of occurrence and
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took part in the disposal of the dead body of Indira. Reliance was placed by the
prosecution upon the statement alleged to have been made by Kasim and Mahadeo
accused at the police station in the presence of Baijnath PW after Baijnath had
lodged report at the police station. Such statements are legally not admissible in
evidence and cannot be used as substantive evidence. According to Section 162 of
the Code of Criminal Procedure, no statement made by any person to a police officer
in the course of an investigation shall be signed by the person making it or used for
any purpose at any enquiry or trial in respect of any offence under investigation at
the time when such statement was made. The only exception to the above rule is
mentioned in the proviso to that section. According to the proviso, when any witness
is called for the prosecution in the enquiry or trial, any part of his statement, if duly
proved, may be used by the accused and with the permission of the court by the
prosecution, to contradict such witness in the manner provided by Section 145 of the
Indian Evidence Act and when any part of such statement is so used, any part thereof
may also be used in the reexamination of such witness for the purpose only of
explaining any matter referred to in his cross-examination. The above rule is,
however, not applicable to statements falling within the provisions of Clause 1 of
Section 32 of the Indian Evidence Act or to affect the provisions of Section 27 of
that Act. It is also well established that the bar of inadmissibility operates not only
on statements of witnesses but also on those of the accused (see Pakala Narayana
Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66 : AIR 1939
PC 47] ). Lord Atkin, in that case, while dealing with Section 162 of the Code of
Criminal Procedure observed:
‗Then follows the section in question which is drawn in the same general way
relating to ―any person‖. That the words in their ordinary meaning would include
any person though he may thereafter be accused seems plain. Investigation into
crime often includes the examination of a number or persons none of whom or all
of whom may be suspected at the time. The first words of the section prohibiting
the statement, if recorded, from being signed must apply to all the statements
made at the time and must therefore apply to a statement made by a person
possibly not then even suspected but eventually accused....'
47. Reference may also be made to Section 26 of the Indian Evidence Act, according
to which 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
against such person. There is nothing in the present case to show that the statements
which were made by Kasim and Mahadeo accused on 18-9-1963, at the police
station in the presence of Baijnath resulted in the discovery of any incriminating
material as may make them admissible under Section 27 of the Indian Evidence Act.
As such, the aforesaid statements must be excluded from consideration.‖
44. Such a person viz. person who is named in the FIR, and therefore, the accused in
the eye of the law, can indeed be questioned and the statement is taken by the police
officer. A confession, which is made to a police officer, would be inadmissible having
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regard to Section 25 of the Evidence Act. A confession, which is vitiated under
Section 24 of the Evidence Act would also be inadmissible. A confession unless it
fulfils the test laid down in Pakala Narayana Swami and as accepted by this Court,
may still be used as an admission under Section 21 of the Evidence Act. This,
however, is subject to the bar of admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains admission, the statement being one under
Section 161, it would immediately attract the bar under Section 162 CrPC.
45. Bar under Section 162 CrPC, no doubt, operates in regard to the statement made to
a police officer in between two points of time viz. from the beginning of the
investigation till the termination of the same. In a case where statement containing not
a confession but admission, which is otherwise relevant and which is made before the
investigation commences, may be admissible. We need not, however, say anything
more.
******
50. From the statement of the law contained in CBI v. V.C. Shukla, (1998) 3 SCC 410,
it becomes clear as to what constitutes confession and how if it does not constitute
confession, it may still be an admission. Being an admission, it may be admissible
under the Evidence Act provided that it meets the requirements of admission as
defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is
made in the course of investigation under the CrPC to a police officer, then, it will not
be admissible under Section 162 CrPC as it clearly prohibits the use of statement made
to a police officer under Section 161 CrPC except for the purpose which is mentioned
therein. Statement given under Section 161, even if relevant, as it contains an
admission, would not be admissible, though an admission falling short of a confession
which may be made otherwise, may become substantive evidence.
51. A confession made to a police officer is clearly inadmissible. The statement relied
on by the respondent is dated 11-4-1996 and the appellant was arrested on 11-4-1996.
This is pursuant to the FIR registered on 10-4-1996. The statement dated 11-4-1996 is
made to a police officer. This is clear from the statement as also the letter dated 10-8-
1996 (Annexure R-6) produced by the respondent. It is clearly during the course of the
investigation. Even if it does contain admissions by virtue of Section 162 and as
interpreted by this Court in V.C. Shukla, such admissions are clearly inadmissible.
52. If the statement made by the appellant on 11-4-1996 is inadmissible, then, there
will only be the statement of the co-accused available to be considered in deciding
whether the charge has to be framed against the appellant or not. It is here that the law
laid down by this Court in Suresh Budharmal Kalani v. State of Maharashtra, (1998)
7 SCC 337 becomes applicable.
10. The material on record is examined in the light of aforestated
propositions of law.
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11. Apparently, the petitioner is implicated in the alleged offence on the
basis of statement of co-accused, who were wrongly benefitted by impleading
their names in the list of beneficiaries of Pradhan Mantri Awas Yojna. Raees
Khan, Afroz Bi, Naseem Bi, Shahina Bi, Shakeela Bano, Ahtesham Bano had
given stereotype statements u/S 27 of the Evidence Act to the effect that
Shahid had facilitated impleadment of their names in the beneficiary list
through his friend Deepak Kumawat. However, Deepak Kumawat in his
statement recorded u/S 27 of the Evidence Act did not substantiate this fact.
Thus, the fact remains that petitioner is implicated merely on the basis of his
own incriminating statement and the information of co-accused in police
custody. No incriminating material, connecting the petitioner with the alleged
offence was seized during investigation at his own instance or instance of any
other co-accused. There is no call detail report or money trail suggesting
complicity of the petitioner in the alleged offence. The complainant, Madhu
Kumawat and other prosecution witnesses namely Vipul Saxena, Aslam,
Yunus Qureshi, Shakeel Shah, Kailashchandra Damor, Manisha Bai, Aakash
Pardi, Shiva Chouhan, Kailash, Zayedabi, Prateek Katariya, Rajnikant Vyas
and Rajesh Solanki did not make any allegation against the petitioner. Thus,
the material on record is not sufficient even to frame charge against the
petitioner in view of the law laid down in the case of Suresh Budharmal
Kalani, Surinder Kumar Khanna, Dipakbhai Jagdishchandra Patel(supra).
The continuation of prosecution against the petitioner would be an abuse of
process of law and wastage of precious time of Court. Therefore, in view of
law laid down in the case of State of Haryana & Others vs.Ch. Bhajan
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Lal&Others and Madhavrao Jiwajirao Scindia(supra), this Court is of the
considered opinion that FIR and the subsequent proceedings deserve to be
quashed in exercise of inherent power u/S 482 of Cr.P.C.
12. Consequently, the impugned FIR at Crime No. 376/2018 registered by
the Police Station, Station Road District - Ratlam for offence punishable under
Section(s) 420, 467, 468, 471 and 120-B of the Indian Penal Code, 1860, so far
as the same relates to the petitioner - Shahid Khan is quashed alongwith all
consequential proceedings.
13. Petition is allowed, accordingly.
(SANJEEV S KALGAONKAR)
JUDGE
sh
SEHAR
MADHYA PRADESH BENCH AT
INDORE,
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HASEE
1436213f2568c8f27da,
ou=HIGH COURT OF MADHYA
PRADESH BENCH AT
INDORE,CID - 7059964,
postalCode=452007,
N
st=Madhya Pradesh,
serialNumber=e7dbba955b262
c04b8413251ce7fb6f0b7dba61
0c57f1559c08bf6c6f5dd40d4,
cn=SEHAR HASEEN
Date: 2026.02.02 19:38:43
+05'30'
