Calcutta High Court
Md. Yaqub And Aloke Biswas @ Bapi vs State Of West Bengal on 3 September, 2004
Equivalent citations: 2004(4)CHN406
JUDGMENT Arun Kumar Bhattacharya, J.
1. The hearing stems from twin appeals being Nos. C.R.A. 490/2001 and C.R.A. 11/2002 preferred by convicts Md. Yaqub and Aloke Biswas @ Bapi respectively against the judgment and order of conviction and sentence passed by the learned Sessions Judge, Xth Bench, City Sessions Court, Kolkata in Sessions Case No. 77/2000 [S. T. 1(II) 2000] on 18.10.2001.
2. The miniaturised version of the prosecution is that on receipt of an information regarding a deep-rooted conspiracy being hatched in certain vulnerable pockets in Dum Dum P.S. area to de-stabilize the internal security of India and anti-Government network to wage war against the Government of India by maintaining direct liaison with the Pakistani militant outfits, the de facto complainant Inspector Debabrata Sarkar of I.B., West Bengal with Inspector D. Mukherjee, S. I. A. Nandy & S. I. A. K. Kundu under the direct supervision of Sri D. N. Mukherjee, D. S. P., I. B. detained one Ahmed Ali @ Ranjit @ Tapan Dey of village Taragonia, P.O. Medirbath, P,S. Rajapur, Dist. Jhalokati, Bangladesh at Gorabazar under P.S. Dum Dum on 15.09.1999 at about 21.45 hrs. On interrogation the said Ahmed Ali disclosed that he is a Pakistani agent, engaged by the Pakistani militant outfits to cause sabotage, espionage, communal disharmony and terrorism thereby to wage war against India and that he being a Pakistani spy used different telephone booths to contact his Pakistani secret agents and to receive instruction from them to materialize his anti-Indian activities and in the process he contacted several persons in and around Calcutta and outside. In course of follow up action, on searching his rented premises at 30, N. N. Mukherjee Road, Subhasnagar, P.S. Dum Dum, Calcutta-65, some incriminating documents relating to the Ministry of Defence, Govt. of India, Bangladeshi Currency, small notebooks and other documents being produced by him were recovered and seized wherefrom it was revealed that he and his associates were spying against India and contemplating to cause total security hazard throughout the country by way of terrorism, sabotage and subversive activities. On interrogation, he disclosed the names of other accused persons viz Asit Ponda, Smt. Lakshmi Priya Ponda, Aloke Biswas @ Bapi, Md. Yaqub, Abdul Aziz Khan, Mrinal Poddar, B. P. Singh and Biren Das who were subsequently arrested from different places and some more defence documents were recovered from the house of accused Aziz Khan and Asit Ponda. Accused Ahmed Ali, Mrinal Poddar, Aloke Biswas @ Bapi, Md.Yaqub, Asit Ponda and Lakshmi Priya Ponda made confessional statements under Section 164 Cr. PC. Hence, all the nine accused persons were charged under Sections 121/121A/124A/124A read with Section 120B IPC and under Sections 3, 4 & 5 of the Official Secrets Act, and in addition accused Ahmed Ali and Aloke Biswas @ Bapi were charged under Section 419 IPC.
3. The defence case is a complete denial of the allegations.
4. As many as 53 witnesses were examined on behalf of the prosecution, while none was examined on behalf of the defence, and after considering the facts, circumstances and materials on record, the learned Court below found accused Ahmed Ali, Md. Yaqub, Aloke Biswas @ Bapi and Mrinal Poddar guilty under Section 124A read with Section 120B IPC, convicted them accordingly but sentenced the first three accused viz Ahmed Ali, Md. Yaqub and Aloke Biswas @ Bapi to imprisonment for life on each count under Sections 124A & 120B IPC and accused Mrinal Poddar to suffer R. I. for three years on each count under Section 124A & 120B IPC and to pay fine of Rs. 10,000/- i.d. to S. I. for two years under Section 124A IPC. In addition, accused Ahmed Ali was sentenced to R. I. for two years for the offence under Section 419 IPC. All the above four accused and other five accused persons were acquitted of other charges and all the charges respectively.
5. Being aggrieved by, and dissatisfied with, the said order of conviction and sentence the present appeals have been preferred by the aforesaid two convicts Md. Yaqub and Alok Biswas @ Bapi.
6. All that now requires to be considered is whether the learned Court below was justified in passing the above order of conviction and sentence.
7. Out of the above four convicts, convicts Ahmed Ali @ Ranjit @ Ramjan @ Tapan Dey and Mrinal Poddar have not preferred any appeal.
8. To start with, though accused Md. Yaqub, Aloke Biswas @ Bapi, Ahmed Ali and Mrinal Poddar were convicted under Section 124A read with Section 120B IPC, the learned Judge appears to have sentenced the first three accused to suffer imprisonment for life under Section 124A and under Section 120B IPC separately. Similarly, accused Mrinal Poddar was sentenced to suffer R. I. for three years on each count under Sections 124A & 120B IPC and in addition to pay fine of Rs. 10,000/- i.d. to S. I. for two years under Section 124A IPC. Conspiracy to commit an offence being itself an offence, a person can be convicted separately charged with respect to such an offence of conspiracy . The provision of sub-section (2) of Section 221 Cr. PC is a corollary to subsection (1). So, where the facts themselves are not in doubt, or where on the facts alleged the offence is not in doubt, sub-section (2) of Section 221 Cr. PC does not apply. In the present case, since neither those accused persons were charged under Section 120B IPC separately nor convicted thereunder, there was no scope on the part of the learned Court below to award sentence separately under Section 120B IPC. The said sentence to that extent is improper and defective.
9. The cases of Md. Yaqub and Aloke Biswas @ Bapi may be dealt with separately as the allegations against them are different.
10. So far accused Md. Yaqub is concerned the relevant witnesses are P.W. 1, P.W. 3, P.W. 29, P.W. 34, P.W. 36, P.W. 52 & P,W. 53.
11. The de facto complainant Inspector Debabrata Sarkar of I. B., West Bengal (P.W. 1) on the basis of a secret information regarding criminal conspiracy for waging war, sabotage, communal disharmony, terrorism and espionage against the Govt. of India and of secret removal of papers of Defence Research Development Organization of Chandipur relating to missile test range to Pakistani militant, within the area of Dum Dura P. S., being accompanied by Inspector D. Mukherjee (P.W. 52), S. I. A. K. Kundu (P.W. 51) and S. I. A. Nandy (P.W. 29) under the direct supervision of D. N. Mukherjee, D. S. P., I. B. had been to Sri Guru Bhandar at Gorabazar under P. S. Dum Dum on 15.09.1999, and detained one Ahmed Ali @ Ranjit Singh @ Tapan Dey of village Taragonia, Bangladesh, who on interrogation confessed that he was a spy of Pakistani militant organization and was engaged by them in order to hazard internal security of India. His rented premises at 30, N. N. Mukherjee Road, Subhasnagar, P. S. Dum Dum was searched and on discloser by the said detainee, some incriminating documents were recovered and seized followed by lodging an FIR with Dum Dum P. S. During interrogation of the above accused Ahmed Ali by P.W. 52, the name of accused Md. Yaqub Khan first transpired on 16.09.1999. Inspector G. I. S. Gill of I. B. (P.W. 36) was sent to Delhi to arrest Md. Yaqub who could ultimately be arrested by him from the Children's Park near India Gate at Zakir Hossain Crossing with the help of Delhi Police in presence of S. I. B. B. C. Singh of Special Branch, I. B., New Delhi (P.W. 34) and others, certain documents viz passport issued from Afgan Embassy, residential permit to live in India, two cash memos for purchasing ornaments from Calcutta, one visiting card of Calcutta and cash of Rs. 570/- in Indian Currency were recovered from his possession and seized under a seizure list (Ext. 34/7) prepared and signed by S. I. Avas Nandy (P.W. 29) followed by his production before the Court of learned Magistrate at Delhi and then before learned SDJM, Barrackpore on 25.09.1999 by P.W. 52. Md. Yaqub was taken on police remand for 10 days and on 04.10.1999 last I. O. Inspector Sankar Gupta (P.W. 53) produced him before the Court of learned SDJM, Barrackpore with a prayer for recording his statement under Section 164 Cr. PC and after completion of investigation submitted chargesheet against the said accused Md. Yaqub and others. The relevant portion of the confessional statement under Section 164 Cr. PC of accused Yaqub, recorded by the learned Magistrate (P.W. 3), is that as per instruction of his father through a letter, he came to Delhi from Afghanistan on 10.06.1996 and started work with his father till 1998. As per advice of his Afgan friend Saddique who used to stay at Delhi and work with Osman of Karachi, he started work with Osman. Osman sent Rs. 10,000/-to him for payment to Ramjan on giving a number of ten-rupee note which was with Ramjan. In 1998 when Ramjan came to him, he gave him Rs. 10,000/-. In 1999 he paid Rs. 15,000/- to Ramjan as per instruction of Osman. In August, 1999 he received back Rs. 25,000/- from Osman. He asked his friend Aziz over phone to pay Rs. 25,000/- to Ramjan. The police asked him the reason for said payment and arrested him. In one place of his statement under Section 164 Cr.PC, recorded by learned Magistrate (P. W. 6) on 06.10.1999, accused Ahmed Ali admitted of his taking money from Yaqub.
12. This is the overall evidence against Md. Yaqub.
13. Mr. Sekhar Basu, learned Counsel for the appellants, contended that there is virtually no evidence on the part of any witness implicating Yaqub with any overt act done or conspired to be done or that he knew the identity of accused Ahmed Ali as Ramjan and paid him for the purpose for which it would be utilized by accused Ahmed AH and that though his name does not transpire in any corner of the Urdu letter, alleged to have been seized from accused Ahmed Ali [which has been translated into English (Ext. 19) by P.W. 12] where there is neither any addressor or any addressee and as such no communication at all, still it was relied upon by the learned Court below. He further contended that the Afgans have a practice of transferring money in that manner and mere giving money to someone is not at all an offence.
14. Now, Section 124A IPC should be so construed as to limit its application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence, . Three ingredients to sustain an offence under Section 124A are (1) the accused spoke or wrote the words, or made the signs or representations, or did some other acts, in question, (2) he thereby brought or attempted to bring into hatred or contempt; or excited or attempted to excite disaffection, and (3) such disaffection was towards the Govt. established by law in India. Sedition is a comprehensive term, and it embraces all those practices, whether by word, deed, or writing, which are calculated to disturb the tranquillity of the State. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war, to bring into hatred or contempt the Sovereign or the Govt., the laws or constitutions of the realm and generally all endeavours to promote public disorder (AIR 1942 FC 22). To prove a criminal conspiracy there must be direct or circumstantial evidence to show that there was an agreement between two or more persons to commit an offence which clearly envisages that there must be a meeting of minds resulting in an ultimate decision taken by the conspirators regarding the commission of an offence. Direct evidence of proof of conspiracy being extremely rare criminal conspiracy can be proved by circumstantial evidence, and indeed, in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts [1971(1) SCJ 43]. The chain of circumstances must be such that it must exclude any reasonable hypothesis consistent with the innocence of accused. Bearing in mind this aspect, the case is to be considered.
15. A glance to the above evidence would reveal that during interrogation of accused Ahmed AH by P.W. 52, the name of Yaqub transpired followed by his arrest from Delhi by P.W. 36 along with P.W. 29, seizure of some documents and recording his confessional statement under Section 164 Cr. PC as also statement of accused Ahmed Ali under the said provision. In the statement under Section 164 Cr. PC, accused Yaqub stated that according to the instruction of his friend Osman of Karachi to pay Rs. 10,000/- to one Ramjan on giving a serial number of a ten-rupee note for the purpose of identification of Ramjan when demanding the money, he paid Rs. 10,000/- to said Ramjan in 1998 and a further sum of Rs. 15,000/- in 1999, and he received back the said amount from Osman. The above statement, on which the prosecution appears to have relied upon heavily, has been assailed by Mr. Basu mainly on two-fold grounds viz (1) learned Magistrate did not fulfill the requirements of the provisions as questions were put to accused Yaqub in Bengali while he hailing from Afghanistan is a Hindi speaking person, that no question was put to him as to wherefrom he was produced, whether he was kept in segregation and why he wanted to make the confessional statement, that he was not informed that even if he did not make any statement he would not be sent to the police and that he had right to consult his lawyer before making such statement, and (2) the said statement cannot be said to be any confession at all as it is exculpatory and does not disclose any offence.
16. So far the first ground above is concerned, ordinarily, the statement is to be recorded in the language in which the accused is examined, and if it is not possible, in the language of the Court. Sub-section (4) of Section 164 read with Section 281 Cr. PC authorises the Magistrate to record in the language of the Court. The then language of the lower Courts being Bengali, there appears to be nothing wrong in the said recording and so omission to record in the language used by the accused may be overlooked. Though questions were put in Bengali, accused Yaqub gave answers in Hindi, which leads to show that he duly understood the language and gave answers accordingly, and so the question of prejudice, if any, is out of the way. In this connection, the decision reported in 1976 Cr. LJ 938 may be referred to. There is no obligation on the part of the Magistrate to say to the accused that he can consult lawyer, as was held by this Court in Abed Ali vs. State of West Bengal, 1988 Cr. LJ 354 (Cal). Accused Yaqub expressed his willingness to make a confession and the learned Magistrate after giving sufficient time for reflection, on due caution and after putting preliminary questions recorded his statement on being satisfied that he made the confession voluntarily. As such, when there was substantial compliance with the provision, there is no scope for discarding the statement and as such, the above contention of Mr. Basu is not sustainable.
17. In regard to the second ground above, a "confession" is a statement made by an accused which must either admit in terms the offence or at any rate substantially all the facts constituting the offence, but a statement containing self-exculpatory matters cannot amount to confession An admission of an incriminating fact howsoever great is not necessarily a confession. In order to find out whether a particular statement is tantamount to confession, the charge against the accused, the actual words used by the accused and the surrounding circumstances are to be looked into. No statement containing self-exculpatory matter can amount to confession if the exculpatory statement is of some fact which if true can negative the offence alleged to be confessed. If it falls short of such a plenary acknowledgement of guilt it would not be a confession even though the statement is of some incriminating fact which taken along with other evidence tends to prove the guilt of the author of confession . Considering from the above aspect, the said statement of accused Yaqub cannot be held to be a confession at all, since it neither admits in terms the offence nor bears out any fact constituting the offence. Furthermore, in order to make a confessional statement admissible, it has to be shown that it has nexus with the commission of offence. Here, the only allegation against accused Yaqub is that he paid some money to Ramjan twice in 1998 and 1999 and he received back the said amount from Osman. There is no evidence on the part of any witness that Ramjan was known to him from before and at the time of said payment he knew the real name of Ramjan as Ahmed Ali or that he had knowledge as to how the said amount will be utilized by Ramjan nor any evidence relating to agreement with Ramjan and others to do any illegal act or any short of conspiracy or of meeting of minds. Mere payment of money to another as an accommodation loan or loan for a temporary period cannot be held to be an offence.
18. As regards accused Aloke Biswas @ Bapi, the relevant witnesses are P.W. 14, P.W. 15, P.W. 28, P.W. 30, P.W. 45, P.W. 52 & P.W. 53.
19. P.W. 52 (first 1,0.) conducted a search at the rented premises of Ahmed Ali at 30, N. N. Mukherjee Road, Calcutta on 27.09.1999 in presence of witness Abhijit Dey (P.W. .14) and others, and on being pointed out by accused Ahmed Ali recovered two xerox copies of one secret army document, 4 small note books (Ext. 6 series), one exercise book (Ext. 7) and Rs. 1000/- in Bangladeshi Currency and seized the same under a S. List. The said exercise book and note books relate to entries of payment of money to Aloke and others on different dates and noting of some names with telephone numbers. P.W. 30 deposed that Aloke Biswas @ Bapi was a tenant under him at Chandipur, Baleswar at a monthly rental of Rs. 300/- for about a year, On query the said Aloke told him that he came there to do business of spawn of tiger pray for sending the same to Basirhat. He used to come to Basirhat with the spawn and on return via Calcutta he used to bring some other articles for sale at Chandipur. On account of an altercation with a boy he asked him to leave his premises, and then Aloke took shelter in Raktima Lodge as a tenant under one Bablu Sastri. The relevant portion of the confessional statement under Section 164 Cr. PC of accused Ahmed Ali @ Ranjit @ Ramjan @ Tapan Dey, recorded by learned Magistrate (P.W. 3) on 06.10.1999, is that at the age of 12/13 years he went to Pakistan. In 1995 he came to India in connection with business. In 1996 his Pakistani friend Haider gave him a letter with an address of a boy of Phulbagan, whose name is Kamaluddin. He met the said Kamaluddin who introduced him with Aloke Biswas @ Bapi of Chandpara, Bangaon and told that he used to do business with him and if Aloke Biswas gives him anything he will send the same to the address of Bangkok, as supplied by him. He started a business with Aloke. At times Aloke used to tell that he has letters to be posted and accordingly he posted the same. In 1997 he accompanied Aloke to Nepal. In 1998 Bapi started business in fish in Orissa and he used to stay at Chandipur within Baleswar. During his stay there he had friendship with Asit Ponda and they used to stay together. In last August Bapi introduced him with the said Asit Ponda. Bapi used to take money from him. He supplied some papers to him and he in turn posted the same to Bangkok address. Bapi and Asit used to ring him from Orissa at the shop of Mrinal. He sent some papers through fax to Karachi also. Bapi used to mix with various persons who were not known to him. He used to receive papers from Pakistan. He was arrested at about 5.00 p.m. and when he came to learn about the situation he prohibited Bapi, but he did not pay any heed to it. He used to threat him with dire consequences. After collecting the statements recorded under Section 164 Cr. PC. P.W. 53 prayed before the learned SDJM, Barrackpore on 25.10.1999 for issuing WPA against accused Aloke Biswas @ Bapi and after submission of chargesheet he sent a requisition to P.W. 45 for execution of the WPA against accused Aloke. P.W. 45 arrested the said accused Aloke on 12.08.2000 from Mumbai. On the prayer of P.W. 53 the confessional statement of accused Aloke was recorded by learned Magistrate (P.W. 28) and thereafter P.W. 53 submitted a supplementary chargesheet on 09.11.2000. The relevant portion of the confessional statement of accused Aloke Biswas @ Bapi, under Section 164 Cr. PC recorded by learned Magistrate (P.W. 28), is that when he was studying Higher Secondary and was in much difficult financial condition, he became acquainted with Ranjit Singh who came to his house off and on and told that he arranged for a job for him. He took him to Chandipur, Orissa for a business in garments. After a few days he told that the said business was not running well there as there was no profit. Later he arranged for his job at Raktima Hotel. Off and on he used to tell that he was in "outlook" paper, that the salary from hotel is meagre and if he can supply information relating to PXE at Chandipur for his said paper, he would be paid properly. During his visit to the said hotel a friendship grew between him and Asit Ponda, B. P. Singh and Lakshmi Ponda. B. P. Singh was an employee of PXE and Ranjit used to talk with him over phone. He was not aware of the functions of PXE but he learnt that identity card is required for entering there. In June/July, 1999 he returned to house and one day came to learn from newspaper that the real name of Ranjit Singh is Ahmed Ali who used to stay at Dum Dum and he is an ISI agent. On learning it, he fled away to Bombay out of fear and used to work there as a cooli. The police arrested him from Bombay.
20. Mr. Basu contended that in the absence of any evidence regarding his participation in the conspiracy or that he had entered into an agreement to do unlawful act or to commit an offence along with other accused persons or that accused Ahmed Ali received any secret document from him, there was no scope for using the confessional statement of other accused person against him to hold him guilty. He assailed both the statements above of accused Aloke and Ahmed Ali contending that these are not at all confession nor it can be used against accused Aloke in the absence of any nexus with the offence. It is his further contention on referring a few decisions reported in Bhuboni Sahu vs. King , Kashmira Singh vs. State of M. P., , Hari Charan Singh vs. State, and Kehar Singh vs. State, 1989 Cr. LJ 1, that statement of co-accused cannot be made the foundation for conviction but can be used only to lend assurance to the other evidence which is totally absent here. Confession, as discussed earlier, is a statement made by an accused either admitting in terms the offence or at any rate substantially all the facts constituting the offence. So, none of the said statements of accused Aloke and Ahmed Ali which disclose some events having- no nexus with the offence cannot be held to be a confession. That apart, those statements are not inculpatory but exculpatory in nature. The statement of accused Aloke shows that he did not know the actual name of Ranjit Singh as Ahmed Ali and only after his arrest he came to learn about it from newspaper and that he used to stay at Dum Dum and was an ISI agent. The small notebooks and one exercise book [Mat. VI Ext, 50(3) and VII series] seized from the rented premises of accused Ahmed Ali, as discussed earlier, relate to entries of phone numbers of Mrinal Poddar, B. P. Singh etc. and payment of money to Aloke, Mrinal etc. It is the statement of accused Ahmed Ali that Aloke used to take money from him off and on in connection with his business in fish. If that be so, entry of the payment to Aloke in the said notebook does not appear to be incompatible with, the above statement in the absence of any contrary evidence on the part of the prosecution that the said payment was made for some unlawful purpose. Ahmed Ali stated that he used to receive document from accused Aloke and fax or send the same to different places. The nature of documents received by him from Aloke has not been spelt out nor there is any evidence that the documents received were secret nor there is anything to suggest in his statement regarding involvement of accused Aloke in the commission of any offence. The statement of an accused after arrest and not amounting to a confession is not admissible against the co-accused either under Section 10 or Section 30 of the Evidence Act, but only against himself. For application of Section 10 of the Evidence Act, it is necessary that a prima facie case of conspiracy has to be established. The second part of Section 10 permits the use of evidence which otherwise could not be used against the accused person. It is well-settled that act or action of one of the accused could not be used as evidence against the other. But an exception has been carved out in Section 10 in case of conspiracy. The second part operates only when the first part of the section is clearly established i.e. there must be reasonable ground to believe that two or more persons have conspired together in the light of the language of Section 120A. It is only then the evidence of action or statements made by one of the accused could be used as evidence against the other [1989 Cr. LJ 1 (SC)]. Under Section 30, a confession of a co-accused can be looked at. The law as expounded and clarified on Section 30 in numerous judicial decisions may be summarized as follows : (1) the confession of a, co-accused is not technically "evidence" and has not the force of sworn testimony, or rather it is not substantive evidence in the sense that a conviction on that alone can stand. (2) It has merely given the Court a discretion to use it against a co-accused when the condition as to its "affecting" himself and the other accused is fulfilled i.e. the confessing accused must implicate himself as fully and substantially as his co-accused. It has full discretion to exclude the confession altogether from consideration against the co-accused, if from the facts and circumstances the Court is disposed to take that view. (3) The limits within which the confession may be used against the co-accused is clearly and pointedly indicated by the expression "may take into consideration" which have been designedly used and which go no further than this that if there is other relevant evidence tending to prove the guilt of the accused, the confession may then be used only in support of other evidence, i.e. to corroborate other evidence. The wording of the section shows that the confession is merely to be an element in the consideration of the other evidence in the case. In other words, the confession cannot be made the foundation of a conviction. (4) If there is no other evidence, or if the other evidence in the case is insufficient to establish a prima facie case against the accused, the confession must be excluded altogether and cannot be taken into consideration against a co-accused. The confession cannot be added to supplement evidence otherwise insufficient and in no case can it be used to fill a gap in the prosecution evidence. (5) It should be applied with the greatest strictness and caution, as it is an exception to the fundamental principle of criminal law that a confession is evidence only against the maker, and (6) When used, the evidentiary value of the confession of a co-accused is extremely weak and a conviction solely on it uncorroborated in material particulars is not sustainable in law. In this connection, the decisions reported in Bhuboni Sahu vs. King ; Kashmira Singh vs, State of M.P., ; Hari Charan vs. State, etc. may well be referred to. In dealing with the scope of Section 30 of the Evidence Act in the said Bkuboni's case, it was held :
"Section 30 applies to confessions, and not to statements which do not admit the guilt of the confessing party. It seems to be based on the view that an admission by an accused person of his own guilt affords some sort of sanction in support of the truth of his confession against others as well as himself. But a confession of a co-accused is obviously evidence of a very weak type. 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. It is a much weaker type of evidence than the evidence of an approver which is not subject to any of those infirmities. It, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the Court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence. The confession of a co-accused can be used only in support of other evidence and cannot be made the foundation of a conviction".
The above view was adopted in Kashmira Singh's case holding that the confession of an accused is not evidence under Section 3 of the, Evidence Act against the accused and it can be used only to lend assurance to other evidence against the co-accused. In Hari Charan's case it was held that the Court cannot start with the confession of the co-accused and it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt, which the judicial mind is about to reach on the said other evidence. In it was held that the confession of a co-accused cannot be used to frame a charge even against the other accused unless there is some other evidence for the purpose. Here, the said statement of co-accused Ahmed Ali cannot be used against accused Aloke as the same is not at all a confession and that it is exculpatory. Here, P.W. 53 & P.W. 45 simply deposed as to how the name of accused Aloke transpired and how and wherefrom he was arrested. There is no independent evidence bearing out the circumstances to infer a conspiracy or common intention and to commit the alleged offence under Section 124A. Accordingly, in view of the above position of law the statement of accused Ahmed is not becoming of any aid to the prosecution, since it can be used only in support of other evidence i.e. to corroborate other evidence which is absent here. Even assuming arguendo that it may be used against accused Aloke, it is of no help since the same does not disclose any offence or any fact involving him with the commission of offence under Section 124A read with Section 120B."
21. Last but not the least, Mr. Basu on referring to the decisions reported in 1997 SCC (Cri) 1120, 1999 SCC (Cri) 98, 1998 C Cr. LR (Cal) 469, 1990 Cr. LJ 2511 and 2004 SCC (Cri) 539 challenged the validity of the sanction order (Ext. 67) contending that the Special Secretary to the Govt. of West Bengal had accorded permission to the Intelligence Branch, West Bengal for investigation of the case where no name of the offender has been borne out, that "permission to investigate" cannot be equated with "sanction to prosecute" as is required under Section 196 Cr PC and so the requirements of the said provision having not been fulfilled, the case cannot stand. Mr. Safiullah, learned Public Prosecutor, in his usual fairness submitted that the sanction order is defective. Now, Section 196 Cr. PC prohibits the Court in mandatory terms to take cognizance of certain offences as mentioned therein without previous sanction of the Central or State Govt., as the case may be, the object being to prevent unauthorized persons from intruding in matters of State. Sanction is required before cognizance is taken . Sanction constitutes a condition precedent to prosecute and confers jurisdiction. Defect in jurisdiction cannot be cured by Section 465 . Sanction should be expressed with sufficient particularity and strict adherence to the language of the section. Though not essential it is plainly desirable that the facts should be referred to on the face of the sanction, but if it is not so shown the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. Otherwise, the sanction is invalid. It is plain that the Govt. cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without knowledge of the facts of the case . Similar is the decision reported in Mansukhlal Vithaldas Chauhan vs. Gujarat, 1997 SCC (Cri) 1120 where it was held that grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to Govt. Servants against frivolous prosecution . Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact and that all the relevant facts, material and evidence, have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered evidence and other material placed before it. This fact can also be established on extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority. All that is required is sanction for prosecution and not sanction for investigation. Initiation of a criminal proceeding and prosecution are not the same and one thing. Sanction is permission to prosecute granted by the authorities concerned . So, though there may not be so much objection for using the word "permission" instead of "sanction", the requirements of Section 196 do not appear to have been fulfilled here as permission or sanction was sought for on 15.09.1999 i.e. on the date of arrest of accused Ahmed Ali and the permission or sanction to investigate was accorded on the following date 16.09.1999 thereby leading to suggest that the sanctioning authority had no scope to apply mind to the facts of the case as also material and evidence collected during investigation. Moreover, neither any name of the offender nor the fact of the case has been borne out in the sanction order nor there was any attempt on the part of the prosecution to prove it by extrinsic evidence. Accordingly, prior sanction which is a sine qua mm for prosecution being invalid; cognizance taken is bad in law and the prosecution must fail on this ground alone.
22. In the light of the above discussion, the prosecution having failed to bring home the charge against both the above appellants Md. Yaqub and Aloke Biswas @ Bapi, they are found not guilty, on merits as also on technical ground for want of sanction.
23. As stated earlier, accused Ahmed Ali who was convicted under Section 124A read with Sections 120B & 419 IPC and accused Mrinal Poddar who was convicted under Section 124A read with Section 120B IPC have not preferred any appeal. Sanction which is a sine qua mm for launching prosecution is found to be invalid and consequently cognizance taken is bad in law only in respect of the offence/offences for which prior sanction is essential but not in respect of the offence/offences for which no sanction is necessary which is well-settled [1998 C Cr. LR (Cal) 469]. So, here though the prosecution has no leg to stand on relating to the offence under Section 124A read with Section 120B IPC, it is maintainable in respect of the offence under Section 419 IPC so far accused Ahmed Ali is concerned. The said accused Ahmed Ali is in custody since 16.09.1999 and there was an order for set off under Section 428 Cr. PC, and so he appears to have served out the sentence under Section 419 IPC. Accordingly, in the interest of justice and following the decisions reported in Kashmira Singh vs. Punjab, 1995 SCC (Cri) 890 and Vajrapu Samabayya Naidu vs. A. P., , accused Ahmed Ali and Mrinal Poddar are also entitled to the benefit of this judgment.
24. In the premises, both the appeals viz C.R.A. 490/2001 and C.R.A. 11/ 2002 be allowed on contest. Appellants Md. Yaqub and Aloke Biswas @ Bapi as well as accused Ahmed Ali and Mrinal Poddar be acquitted of the charge under Section 124A read with Section 120B IPC, and they be set at liberty at once. The above two appellants and accused Ahmed Ali and Mrinal Poddar be released forthwith from custody if not required in connection with any other case.
25. Defence documents be returned to the Defence Authority and other alamats (barring notebooks and exercise book) be returned to the person/persons from whom seized after the period of appeal is over.
26. Let a copy of this judgment along with the L.C.R. be sent down at once to the learned Court below.
Nure Alam Chowdhury, J.
27. I agree.