Criminal Revision Application No.51 of 2003

9th January, 2008

Petitioner Counsel: Shri. S. G. LONEY
Respondent Counsel: Shri. V. R. MANOHAR,Shri. A. K. CHAUHAN, J. B. KASAT , A. S. MANOHAR

Cases Cited:
Sureshkumar Moolchand Seth @ Jain Vs. Director of Revenue Intelligence, 2002 ALL MR (Cri) 72 [Para 3,8]
Smt. Om Wati Vs. State through Delhi Administration, AIR 2001 SC 1507 [Para 6]
Satish Mehra Vs. Delhi Administration, (1996)9 SCC 766 [Para 7]
State of Maharashtra Vs. Damu, 1999 ALL MR (Cri) 717=(2000)6 SCC 269 [Para 8]
K. I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997)3 SCC 721 [Para 9]
State of Gujarat Vs. Mohammad Atik, AIR 1998 SC 1686 [Para 10]
Bhagwan Swarup Lal Bishan Lal Vs. State of Maharashtra, AIR 1965 SC 682 [Para 10]
State of Tamil Nadu Vs. Nalini, 1999 ALL MR (Cri) 1273 (S.C.)=AIR 1999 SC 2640 [Para 10]
Mohd. Khalid Vs. State of W. B., (2002)7 SCC 334 [Para 10]

JUDGMENT

JUDGMENT :- The petitioner has preferred this revision under Section 397 read with Section 482 of the Code of Criminal Procedure challenging the order dated 30.11.2002 passed by the Additional Sessions Judge, Akola in Sessions Trial No.170/2001 discharging the accused.

2. It seems that the Deputy Commissioner, Central Excise, Amravati Division, Amravati, filed a complaint against the accused alleging charges under Sections 29 r/w B(c) and 22 of the N.D.P.S., 1985; Section 22 r/w B(c) of the N.D.P.S. Act, 1985 and Sections 21,23,25,26 and 27-A r/w 29 of the N.D.P.S. Act, 1985. According to the complainant, it was the accused who provided funds and material for manufacturing mandrax tablets at Amravati and Akola. In the search conducted on 23/24th November, 1995 at Amravati and 24th November, 1995 at Akola, raw materials for manufacturing mandrax tablets, machineries, mandrax tablets and cash of lakhs of rupees was recovered. Two charge-sheets were filed against 10 accused persons. Accused Nos. 1 to 6 were convicted and the rest were acquitted. In appeals the High Court confirmed the conviction as well as acquittal. It is not disputed that no further appeal was filed before the Apex Court and the decision of the High Court became final.

3. On the basis of confessional statements of accused No.8 Kantilal and accused No.9 Kasam, the accused was arrested on 24.5.2001. Complaint was filed against him on 18th August, 2001. He was released on bail by the order of this Court on 8th September, 2001 reported in 2002 ALL MR (Cri) 72 ( Sureshkumar Moolchand Seth @ Jain Vs. Director of Revenue Intelligence).

4. On 7.11.2001 the accused moved an application for discharge under Section 227 of the Cr.P.C. The said application was resisted by the complainant by reply dated 19.12.2001. After hearing the learned counsel for the parties, the trial Court allowed the application and discharged the accused under Section 227 of the Cr.P.C. by order dated 30.11.2002. It has been observed in para 14 of the impugned order that the retracted confessional statements of accused No.8 Kantilal and accused No.9 Kasam are hit by Section 30 of the Indian Evidence Act and if they are excluded what remains is only exculpatory retracted confessional statement of the accused which is not corroborated in material particulars. Thus prima facie there is no material to frame charge against the accused. The said order is under challenge.

5. I have heard Shri. S. G. Loney, Advocate for the petitioner and Shri. V. R. Manohar, Senior Advocate for the accused.

6. At the out set Shri. Loney made submission about the scope of Section 227 of the Cr.P.C. In this respect he relied on Smt. Om Wati and another Vs. State through Delhi Administration and others, AIR 2001 Supreme Court 1507 in which it is held as under:-

"8. At the stage of passing the order in terms of S.227 of the Code, the Court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration, the Court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of S.228 of the Code. Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. This Court in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia (1989)1 SCC 715 cautioned the High Courts to be loathe in interfering at the stage of framing the charges against the accused. Self restraint on the part of the High Court should be the rule unless there is a glaring injustice staring the Court in the face. The opinion on many matters can differ depending upon the person who views it. There may be as many opinions on a particular point, as there are Courts but that would not justify the High Court to interdict the trial. Generally, it would be appropriate for the High Court to allow the trial to proceed.

9. Dealing with the scope of Ss.227 and 288 of the Code and the limitations imposed upon the court at the initial stage of framing the charge, this Court in State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 : (1977 Cr.L.J. 1606) held (Para 4):-

Reading the two provisions together in juxta-position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to he probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under S.227 or S.228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed n offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S.227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S.228 and not under S.227."

10. A three-Judge Bench of this Court in Supdt. and Remembrancer of Legal Affairs, West Benral Vs. Anil Kumar Bhunja, AIR 1980 SC 52 : (1979 Cri.L.J. 1390), reminded the Courts that at the initial stage of framing of charges, the prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of a strong suspicion founded on materials before it, the court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them. Relying upon its earlier judgments in Ramesh Singh (AIR 1977 SC 2018: 1977 Cri.L.J. 1606) and Anil Kumar Bhunja's (AIR 1980 SC 52: 1979 Cri.L.J. 1390) cases (supra) this Court again in Satish Mehra Vs. Delhi Administration, (1996)9 SCC 766 reiterated:

"Considerations which should weigh with the Sessions Court at this stage have been well designed by Parliament through S.227 of the Code of Criminal Procedure (for short 'the Code') which reads thus:-

"227. Discharge- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Section 228 contemplates the stage after the case survives the stage envisaged in the former section. When the Court is of opinion that there is ground to presume that the accused has committed an offence the procedure laid down therein has to be adopted. When those two sections are put in juxtaposition with each other the test to be adopted becomes discernible : Is there sufficient ground for proceeding against the accused? It is axiomatic that the standard of proof normally adhered to at the final stage is not to be applied at the stage where the scope of consideration is where there is .sufficient ground for proceeding."

7. Shri. Manohar on the other hand relied on Satish Mehra Vs. Delhi Administration and another, (1996)9 Supreme Court Cases 766 in which it is observed as under:-

"14. The object of providing such an opportunity as is envisaged in Section 227 of the Code is to enable the court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.

15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the court should not be wasted for holding a trial only for the purpose of formally completing the Procedure to pronounce the conclusion on a future date. We are mindful that most of the Sessions Courts in India are under heavy pressure of workload. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself."

We will have to consider the submissions made by the learned counsel for the parties in the light of the above decisions.

8. It was urged by Shri. Loney that the confessional statements made by accused no.8 Kantilal and accused no.9 Kasam are relevant under Section 10 of the Indian Evidence Act as they form prima facie material against the accused to show that the accused was involved in the conspiracy of manufacturing mandrax tablets. Shri. Loney submitted that this aspect has not been considered by the learned trial Judge while passing the order of discharge. This was also not considered by the learned Judge of this Court while releasing the accused on bail (2002 ALL MR (Cri.) 72). In this respect Shri. Loney relied on the observations made in State of Maharashtra Vs. Damu, [1999 ALL MR (Cri) 717] : (2000)6 Supreme Court Cases 269 which are as under:-

"43 ........... Section 10 of the Evidence Act renders anything said, done, or written by any one of the conspirators in reference to their common intention as a relevant fact, not only as against each of the conspirators but for proving the existence of the conspiracy itself. Further the said fact can be used for showing that a particular person was a party to the conspiracy. The only condition for application of the rule in Section 10 is that there must be "reasonable ground to believe that two or more persons have conspired together to commit an offence"."

44. The basic principle which underlies Section 10 of the Evidence Act is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy (State of Gujarat Vs. Mohd. Atik). Section 10 permits "anything said, done or written by any one of such persons in reference to their common intention" to be recorded as a relevant fact as against each of the persons believed to have so conspired.

45. In this case, there can be no doubt, relying on Exh.88 that there are reasonable grounds to believe that all the four accused have conspired together to commit the offence of abduction and murders of the children involved in this case. So what these accused have spoken to each other in reference to their common intention as could be gathered from Exh.88 can be regarded as relevant facts falling within the purview of Section 10 of the Evidence Act. It is not necessary that a witness should have deposed to the fact so transpired between the conspirators. A dialogue between them could be proved through any other legally permitted mode. When Ex.88 is legally proved and found admissible in evidence, the same can be used to ascertain what was said, done or written between the conspirators. All the things reported in that confession referring to what A-1 Damu Gopinath and A-3 Mukinda Thorat have said and done in reference to the common intention of the conspirators are thus usable under Section 10 of the Evidence Act as against those two accused as well, in the same manner in which they are usable against A-4 Damu Joshi himself."

9. Shri. Loney further urged that even the retracted confession can be relied upon to prove the allegations made in the complaint. In this respect he relied on the following observations in K. I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin- (1997)3 Supreme Court Cases 721:

"There is no prohibition under the Evidence Act to rely upon a retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there were any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement was voluntary; in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution."

10. While dispelling the submissions made by Shri. Loney, Shri. Manohar submitted that Section 10 was not pressed into service by Shri. Loney who represented the complainant when the High Court decided the application for bail by the accused. Even otherwise the complainant would not be able to take aid of Section 10 of the Evidence Act because the alleged confessional statements were made only after the arrest of accused no.8 and accused no.9 and such post arrest statements would not fall within the ambit of Section 10 of the Evidence Act. In this respect Shri Manohar relied on the following cases:-

i) In State of Gujarat Vs. Mohammad Atik -AIR 1998 Supreme Court 1686 in which Bhagwan Swarup Lal Bishan Lal Vs. State of Maharashtra- AIR 1965 SC 682 has been referred. In para 14 it is observed as under:-

"14. .........It is well-neigh settled that Section 10 of the Evidence Act is founded on the principle of law of agency by rendering the statement or act of one conspirator binding on the other if it was said during subsistence of the common intention as between the conspirators. If so, once the common intention ceased to exist any statement made by a former conspirator thereafter cannot be regarded as one made "in reference to their common intention." In other words, a post-arrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act."

ii) In State of Tamil Nadu Vs. Nalini, AIR 1999 Supreme Court 2640 : [1999 ALL MR (Cri) 1273 (S.C.)] it is observed as under:-

"110. The first condition which is almost the opening lock of that provision is the existence of 'reasonable ground to believe' that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "In reference to their common intention". Under the corresponding provision in the English Law, the expression used is "in furtherance of the common object". No doubt, the words "in reference to their common intention" are wider than the words used in English Law, (vide Sardar Sardul Singh Caveeshar Vs. State of Maharashtra, (1964)2 SCR 378 : (AIR 1965 SC 682 : 1965(1) Cri. L.J. 608).

111. But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made 'in reference' to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlines in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10 which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10.

114. Whether a particular accused had ceased to be a conspirator or not, at any point of time, is a matter which can be decided on the facts of that particular case. Normally a conspirator's connection with the conspiracy would get snapped after he is nabbed by the police and kept in their custody because he would thereby ceased to be the agent of the other conspirators. Of course we are not unmindful of rare cases in which a conspirator would continue no confabulate with the other conspirators and persists with the conspiracy even after his arrest. That is precisely the reason why we said that it may not be possible to lay down a proposition of law that one conspirator's connection with the conspiracy would necessarily be cut off with this arrest".

iii) In Mohd. Khalid Vs. State of W.B., (2002)7 Supreme Court Cases 334 it is observed as under:-

"33. .....However, we find substance in the stand of learned counsel for the accused-appellants that Section 10 of the Evidence Act which is an exception to the general rule while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. In State of Gujarat Vs. Mohd. Atik, it was held that the principle is no longer res integra that any statement made by an accused after his arrest, whether as a confession or otherwise, cannot fall within the ambit of Section 10 of the Evidence Act. Once the common intention ceased to exist, any statement made by a former conspirator thereafter cannot be regarded as one made in reference to their common intention. In other words, the post arrest statement made to a police officer, whether it is a confession or otherwise, touching his involvement in the conspiracy, would not fall within the ambit of Section 10 of the Evidence Act".

34. "The first contention which is almost the opening lock of the provision is the existence of "reasonable ground to believe" that the conspirator have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object". No doubt, the word "in reference to their common intention" are wider than the words used in English Law (vide Sardar Sardul Singh Caveeshaar Vs. State of Maharashtra)".

35. "But the contention that any statement of a conspirator, whatever be the extent of time, would gain admissibility under Section 10 if it was made "in reference" to the common intention, is too broad a proposition for acceptance. We cannot overlook that the basic principle which underlies Section 10 of he Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10."

11. In view of the interpretation of Section 10 of the Evidence Act by the Apex Court, it would be seen that in the present case the confessional statements of accused no.8 and accused no.9 would not be relevant so as to book the accused. In the trials against accused no.8 and accused no.9 it has been held that their confessional statements are hit by Section 30 of the Indian Evidence Act. As such the complainant would not be able to rely on them as evidence against the accused. Thus it is a case of no evidence against the accused.

12. On merits Shri. Manohar submitted that while deciding the application for bail of the accused, the learned Judge of this Court observed that besides the confessional statements of accused no.8 and accused no.9 which cannot be used against the accused as they are hit by Section 30 of the Evidence Act, he does not find any evidence circumstantial or otherwise which can connect the accused with the crime. Shri. Manohar pointed out that these observations were recorded by the learned Judge after filing of the complaint and that they still hold good. Shri. Loney, however, urged that this Court should not be influenced with the observations of the learned Judge which were made while deciding the application for bail. True it is, but after going through the complaint I find myself in full agreement with the observations made by the learned Judge in his order deciding the application for bail of the accused. Thus I am of the considered view that the trial court was perfectly justified in discharging the accused under Section 227 of the Cr.P.C. and no interference is called for in the impugned judgment. Hence the order :-

The revision application is dismissed.

Application dismissed.