Madhya Pradesh High Court
Bhanu @ Bhanu Pratap Singh Gurjar vs The State Of Madhya Pradesh Thr on 28 August, 2019
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.22985/2017
(Bhanu @ Bhanu Pratap Singh Gurjar vs. State of M.P. & Anr.)
Gwalior, Dated : 28.08.2019
Shri Kuldeep Thapak, Counsel for the petitioner.
Shri Vijay Sundaram, Panel Lawyer for the respondent
No.1/State.
This application under Section 482 of Cr.P.C. has been filed for quashment of the FIR in Crime No.25/2017 registered by Police Station Crime Branch, District Gwalior for offence under Sections 399, 400, 402 of IPC, under Section 25/27 of the Arms Act and under Section 11/13 of MPDVPK Act.
2. The necessary facts for disposal of the present application in short are that on 13.7.2017 a FIR was lodged by Gambhir Singh, SHO, Police Station Crime Branch, District Gwalior on the allegation that on 13.7.2017, an information was received from an informer that five persons have assembled near Jalalpur Square and are making preparation for committing dacoity in CNG Petrol Pump. After giving information to the senior police officers, the complainant constituted two police parties and went to the spot. They found that five persons were discussing about strategy to commit dacoity in CNG Petrol Pump. They were surrounded and three persons were arrested who disclosed their names Pradeep Rathore, Surendra @ Banti and Ramkishore. Two persons taking advantage of the bushes ran away. 2
THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 The arrested miscreants disclosed the names of two persons who had run away. Firearms of various categories were seized from the possession of three miscreants who were arrested and, accordingly, the offence was registered.
3. The case diary is available. From the case diary, it appears that since the Firearms were already seized from the possession of the miscreants, therefore, the police did not record the confessional statement of any of the miscreants who were allegedly arrested from the spot. Even the test identification parade of the applicant was not conducted. Fifth miscreant who had succeeded in running away could not be arrested, accordingly, the police filed the charge sheet against four persons including the applicant and three miscreants who were arrested on the spot.
4. Challenging the FIR as well as the consequential proceedings, it is submitted by the counsel for the applicant that there is no admissible evidence against the applicant. In the present case, the police has not even recorded the confessional statement of any of the miscreants who were arrested on the spot. Except an allegation which was made in the FIR that the miscreants who were arrested on the spot had disclosed the name of the applicant, there is no other evidence available in the FIR.
5. Per contra, it is submitted by the counsel for the State that the 3 THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 police after concluding the investigation has filed the charge sheet. However, after going through the charge sheet as well as the index of documents annexed along with the charge sheet, it is fairly conceded by the counsel for the State that the confessional statement of three miscreants who were arrested on the spot have not been recorded. Even the confessional statement of the applicant has not been recorded. Nothing has been seized from the possession of the applicant. It is fairly conceded that except the allegation made in the FIR as well as the similar allegations made in the statements of the witnesses recorded under Section 161 of Cr.P.C., there is no other evidence against the applicant.
6. Heard the learned counsel for the parties.
7. It appears that the applicant was granted anticipatory bail by this Court and thereafter he surrendered before the police and he was formally arrested. Neither the confessional statement of the applicant nor of the three miscreants who were arrested on the spot were recorded. Admittedly, nothing has been seized from the possession of the applicant. Thus the only allegation/evidence available against the applicant is that after apprehending three miscreants from the spot, when the police enquired about the names of the persons who had ran away, the name of the applicant was disclosed by the apprehended miscreants. Since it is the case of the prosecution itself that the 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 information was given by the miscreants while they were in police custody, therefore it is clear that although the police might have not recorded a separate confessional statement of the miscreants but the information given by them to the police can be said to be the confessional information given under Section 27 of the Evidence Act.
8. The Supreme Court in the case of Indra Dalal vs. State of Haryana reported in (2015) 11 SCC 31 has held as under:-
"16. The philosophy behind the aforesaid provision is acceptance of a harsh reality that confessions are extorted by the police officers by practising oppression and torture or even inducement and, therefore, they are unworthy of any credence. The provision absolutely excludes from evidence against the accused a confession made by him to a police officer. This provision applies even to those confessions which are made to a police officer who may not otherwise be acting as such. If he is a police officer and confession was made in his presence, in whatever capacity, the same becomes inadmissible in evidence. This is the substantive rule of law enshrined under this provision and this strict rule has been reiterated countlessly by this Court as well as the High Courts.
17. The word "confession" has nowhere been defined. However, the courts have resorted to the dictionary meaning and explained that incriminating statements by the accused to the police suggesting the inference of the commission of the crime would amount to confession and, therefore, inadmissible under this provision. It is also defined to mean a direct acknowledgment of guilt and not the admission of any incriminating fact, however grave or conclusive. Section 26 of the Evidence Act makes all those confessions 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 inadmissible when they are made by any person, whilst he is in the custody of a police officer, unless such a confession is made in the immediate presence of a Magistrate. Therefore, when a person is in police custody, the confession made by him even to a third person, that is, other than a police officer, shall also become inadmissible.
18. In the present case, as pointed out above, not only the confessions were made to a police officer, such confessional statements were made by the appellants after their arrest while they were in police custody. In Bullu Das v. State of Bihar, while dealing with the confessional statements made by the accused before a police officer, this Court held as under: (SCC p. 132, para 7) "7. The confessional statement, Ext. 5, stated to have been made by the appellant was before the police officer in charge of the Godda Town Police Station where the offence was registered in respect of the murder of Kusum Devi. FIR was registered at the police station on 8-8-1995 at about 12.30 p.m. On 9-8-1995, it was after the appellant was arrested and brought before Rakesh Kumar that he recorded the confessional statement of the appellant. Surprisingly, no objection was taken by the defence for admitting it in evidence. The trial court also did not consider whether such a confessional statement is admissible in evidence or not. The High Court has also not considered this aspect. The confessional statement was clearly inadmissible as it was made by an accused before a police officer after the investigation had started."
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23. It is clear that Section 27 is in the form of proviso to Sections 25 and 26 of the Evidence Act. It makes it clear that so much of such information which is received from a person accused of any offence, in the custody of a police officer, which has led to discovery of any fact, may be used against the accused. Such information as given must relate distinctly to the fact discovered. In the present case, the information provided by all the 6 THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 appellant-accused in the form of confessional statements, has not led to any discovery. More starkly put, the recovery of scooter is not related to the confessional statements allegedly made by the appellants. This recovery was pursuant to the statement made by Harish Chander Godara. It was not on the basis of any disclosure statements made by these appellants. Likewise, insofar as confessional statement (Mark A) allegedly given by Jaibir is concerned, that is again in another FIR. We shall come to its admissibility separately. Therefore, the situation contemplated under Section 27 of the Evidence Act also does not get attracted. Even if the scooter was recovered pursuant to the disclosure statement, it would have made the fact of recovery of scooter only, as admissible under Section 27 of the Evidence Act, and it would not make the so-called confessional statements of the appellants admissible which cannot be held as proved against them."
9. In the present case, there is no other connected evidence against the applicant. Neither anything has been seized from the possession of the applicant nor the test identification parade of the applicant was conducted by the police. The information given by the co-accused person(s) to the police, which had not led to any recovery is not admissible in the light of Sections 25 and 26 of the Evidence Act. Since the prosecution has not collected any evidence which may support the information given by the co-accused persons, this Court is of the considered opinion that the registration of the FIR against the applicant and his prosecution on the basis of inadmissible evidence is not permissible. Accordingly, the FIR qua the applicant in 7 THE HIGH COURT OF MADHYA PRADESH MCRC No.22985/2017 Crime No.25/2017 registered by Police Station Crime Branch, District Gwalior for offence under Sections 399, 400, 402 of IPC, under Section 25/27 of the Arms Act and under Section 11/13 of MPDVPK Act is hereby quashed. All other consequential proceedings which might have taken on the basis of the applicant are also quashed.
10. The application succeeds and is hereby allowed.
(G.S. Ahluwalia)
(alok) Judge
ALOK KUMAR
2019.09.04
14:42:53 +05'30'