Karnataka High Court
Mr. K.S. Rohith @ Onte vs State Of Karnataka on 21 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:22514
CRL.P No. 9819 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 9819 OF 2023
BETWEEN:
MR. K.S. ROHITH @ ONTE
S/O SHRI SRINIVASA RAO
AGED 46 YEARS
RESIDENT OF AG-02, 216/2A
RAM CHAITANYA APARTMENTS,
NEAR SAI BABA TEMPLE,
SAHAKARA NAGAR, KODIGEHALLI POST,
BENGALURU - 560 092.
...PETITIONER
(BY SRI SANDESH J.CHOUTA, SR.COUNSEL FOR
Digitally signed SRI I.S PRAMOD CHANDRA, ADVOCATE)
by NAGAVENI
Location: HIGH AND:
COURT OF
KARNATAKA
1. STATE OF KARNATAKA
BY YELAHANKA POLICE, BENGALURU CITY
THROUGH THE STATE PUBLIC PROSECUTORS,
OFFICE OF THE ADVOCATE GENERAL,
HIGH COURT BUILDING,
DR. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
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NC: 2024:KHC:22514
CRL.P No. 9819 of 2023
2. MR. K.R. NAGARAJ
MAJOR IN AGE
THE THEN INSPECTOR OF POLICE,
YELAHANKA POLICE STATION,
BENGALURU CITY,
BENGALURU - 560 064.
...RESPONDENTS
(BY SRI HARISH GANAPATHI, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING TO 1) SET ASIDE THE ORDER DATED
31.05.2017 PASSED BY THE LEARNED PRINCIPAL CITY CIVIL
AND SESSIONS JUDGE, BANGALURU CITY, AT BENGALURU IN
S.C.NO.700/2017 WHICH WAS THEN MERGED WITH THE CASE
AND NOW PENDING IN SPL.C.C.NO.414/2017, FOR THE
OFFENCES P/U/S 109, 120B, 399 AND 402 OF IPC AND U/S 25,
27 AND 30 OF THE ARMS ACT AND ETC.,
THIS CRIMINAL PETITION, COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question an order dated 31.05.2017 passed by the Principal City Civil and Sessions Judge, Bengaluru City in S.C.No.700/2017, which is now merged in Special C.C.No.414/2017 for offences -3- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 punishable under Sections 109, 120B, 399 and 402 of the IPC and Sections 25, 27 and 30 of the Arms Act, 1959 and further seeks quashment of entire charge sheet against the petitioner.
2. Heard Sri Sandesh J. Chouta, learned senior counsel appearing for the petitioner and Sri Harish Ganapathi, learned High Court Government Pleader appearing for the respondents.
3. Facts, in brief, germane are as follows:
The petitioner gets embroiled in a crime in Crime No.42/2017 for offences punishable under Sections 341, 504, 506 read with Section 34 of the IPC and remanded to Police custody for a period of 14 days till 5.00 p.m., on 21.02.2017. During the period when the petitioner was in Police custody in connection with Crime No.42/2017, a suo motu crime comes to be registered in Crime No.58/2017 for offences punishable under Sections 399 and 402 of the IPC and Sections 27 and 30 of the Arms Act, 1959 against eight accused named and unnamed. Since the petitioner was in Police custody, a body warrant was issued against the petitioner directing him to be present before the learned -4- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 Magistrate. On 01.03.2017, the 2nd respondent, Investigating Officer files a requisition to cause physical production of the petitioner, A12 and A16. The petitioner is remanded to Police custody along with A12 and A16 for a period of 3 days in connection with the subject crime in Crime No.58/2017. All these proceedings were pending approval from the hands of the competent authority to invoke the provisions of the Karnataka Control of Organised Crimes Act, 2000 ('the Act' for short).
After approval is granted by the competent authority, permission is sought to carry out investigation under the Act and it was permitted by the learned Magistrate and Police custody of the petitioner, A12 and A18 was sought for a period of 4 days. On 07.04.2017, the petitioner and A12 are said to have rendered their signatures on blank papers while in custody. Challenging invocation of the provisions of the Act and approval granted for invoking the said Act, the petitioner approaches this Court in Writ Petition No.16771/2017. This Court, on 25.04.2017 grants an interim order of stay of investigation against the petitioner. It is then the charge sheet is filed before the concerned Court in Crime No.58/2017 barring the offences under the Act. The concerned Court on 31.05.2017 -5- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 takes cognizance for the aforesaid offences. A supplementary charge sheet was also filed against several other accused for the aforesaid offences. A coordinate Bench of this Court in terms of its order dated 08.06.2022 allows the writ petition, sets aside approval granted for invoking the provisions of the Act. Therefore, what remains now are the offences punishable under Sections 399 and 402 of the IPC read with the provisions of the Arms Act. Calling in question continuation of trial against the petitioner, the petitioner is before this Court in the subject petition.
4. The learned senior counsel Sri Sandesh J. Chouta, appearing for the petitioner would vehemently contend that the provisions under Sections 399 and 402 of the IPC read with Arms Act is what is alleged against the petitioner. The petitioner was not even present as he was in Police custody in the same Police Station concerning another crime. Since invocation of the Act is quashed, the reminder of the offences would require presence of the petitioner. He is dragged into the web of crime on the score that other accused have implicated the petitioner in the crime. Therefore, he is dragged -6- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 into the crime on voluntary statement of the co-accused. He would contend that it is impermissible in law. The confession statement made by co-accused cannot become the foundation for laying down a charge on any accused is his emphatic submission.
5. Per contra, the learned High Court Government Pleader would submit that the proceedings are at an advanced stage.
Charge sheet is already filed. The petitioner has preferred the subject petition on 25th September, 2023. Therefore, this Court should not interfere at this stage. If the prosecution has no case, the petitioner would eventually get acquitted. That would not mean that the proceedings under Section 482 of the Cr.P.C should be entertained in favour of the petitioner.
6. The afore-narrated facts are not in dispute. Two crimes emerge where the petitioner becomes an accused. The first one is registered on 08.02.2017 in Crime No.42/2017 for offences punishable under Sections 341, 504, 506 read with Section 34 of the IPC. He is remanded to Police custody for a period of 14 days, which would come to an end at 5.00 p.m. on 21.02.2017. The second one comes as a suo motu crime in -7- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 Crime No.58/2017 against the petitioner for the aforesaid offences. The offences punishable are under Sections 399 and 402 of the IPC read with Sections 27 and 30 of the Arms Act.
Additionally, a communication was sent to the Competent Authority seeking permission to invoke Section 3 of the Act.
The permission was granted. After grant of permission, the offences under the Act were also invoked against the petitioner and others. That comes to be challenged before this Court in Writ Petition No.16771/2017. This Court grants an interim order of stay of invocation of the provisions of the Act. Pending writ petition, charge sheet is filed against the petitioner and others in the said case for the offences under Sections 109, 120B, 399, 402 of the IPC and under Sections 25, 27 and 30 of the Arms Act. Cognizance is taken by the concerned Court against the petitioner, accused No.11. Accused Nos. 9 and 10 were dropped from the charge sheet as sufficient material to charge them was not available. A co-ordinate Bench of this Court in terms of its order dated 08.06.2023 allows Writ Petition No.16771/2017 partly setting aside the approval granted by the competent authority to invoke Section 3 of the -8- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 Act. The co-ordinate Bench qua the petitioner observes as follows:
"ACCUSED NO.11 - MR. K S ROHIT KUMAR -Petitioner Sl. Docu- Police Cr.No. SC P/U/S Status Date No. Ments Station
1. 12 Electronic 70/07 363/ 399, 402 Acquitted 19.02.2008 City 2007 2 13 Peenya 748/09 276/ 399, 402 Acquitted 22.12.2011 2011
3. 14 Yelahanka 42/17 CRL. 341, 504, Quashed 13.06.2018 P.NO. 506 & 27, 9648/ 30 of 2017 Arms Act
22. In that view of the matter, unless there is a specific material as to how the petitioner was a member of an organized crime syndicate and the basis of such a belief, the grant of prior approval under Section 24(1)(a) of the Act of 2000 is faulty and deserves to be interfered with. However, the respondent Nos.3 and 4 are entitled to furnish a fresh request for grant of approval under Section 24(1)(a) of the Act of 2000 by setting out reasons as to how the petitioner is treated as a member of an organized crime syndicate and as to the basis to proceed against him for an offence punishable under Section 3 of the Act of 2000.
In view of the above, the petition is allowed in part and the Order dated 07.03.2017 passed by respondent No.1 granting prior approval under Section 24(1)(a) of the Karnataka Control of Organized Crime Act, 2000 is set aside. The Order dated 09.03.2017 passed by the Trial Court in Crime No.58/2017 permitting the insertion of Section 3 of the Act of 2000 against the petitioner is set aside. Consequently, the charge sheet filed by respondent Nos.3 and 4 against the petitioner herein, in Spl.C.No.414/2017 pending trial before -9- NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 the Principal City Civil and Sessions Judge, Bengaluru, for the offence punishable under Section 3 of the Act of 2000 is set aside for the present. It is open for respondent Nos.3 and 4 to make a fresh request to respondent No.1 setting out the reasons and the basis to treat the petitioner as a member of an organized crime syndicate. The respondent No.1 may thereafter apply his judicious mind and dispose off the same in accordance with law within a period of 30 days from the date of receipt of a certified copy of this Order."
Therefore, what are the offences that remain are under Sections 399, 402, 109 and 120B of the IPC. The crux of the issue lies in Sections 399 and 402 of the IPC. They read as follows:
"399. Making preparation to commit dacoity.--Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
"402. Assembling for purpose of committing dacoity.--Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
Section 399 of IPC deals with preparation to commit dacoity and Section 402 of IPC deals with assembling for the purpose
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 of committing dacoity. Both these provisions would require presence of an accused, as they deal with assembly and preparation. The suo motu crime is registered on 20.02.2017 at 3.00 p.m. in Crime No.58/2017. The gist of the crime is as follows:
"ದೂ ನ ಾ ಾಂಶ ೇ ೆಂದ ೆ ಐ ಆದ ಾನು ಾಂಕ 19/02/2017 ರಂದು ಾ ಸು ಾರು 1-00 ಗಂ ೆಯ ೆಳ"#", $ಾ % ಬ# 'ಬ(ಂ ಗ)ೆ* ಂ +ೆ ಗ',ನ ರುವ+ೆ., ನನ+ೆ ನಮ0 1ಾ2ಾ ' 10641 ಮು ೇಂದ ರವರು ನನ+ೆ 3ೕ4 ಾ5 ಯಲಹಂಕದ ಜೂ59ಯ: ;ೇಔ= ಕ>ೆ+ೆ ?ೋಗುವ @ಾAರಲ:
ರ ೆ,ಯ ಪಕCದ Dಾ ೋ 8-10 ಜನರು ಮೂರು $ಾರುಗಳನುE F '$ೊಂಡು ಈ ನ ಾ ಜೂ59ಯ: ;ೇಔ= ಕ>ೆ+ೆ ?ೋಗುವ Dಾ ಾದರೂ ಹಣವಂತರನುE ಅಡLಗMN ಅವ +ೆ ;ಾಂO, Pಾಕು Qೋ ' ?ೆದ ' ಅವರ ಬ#Rರುವ SನEದ ಒಡ ೆಗಳU, ಹಣ ?ಾಗೂ ೆ;ೆ ಾಳವ ವಸು,ಗಳನುE VೋS$ೊಂಡು ಡ$ಾಯ ಾ>ೋಣ ಎಂದು ಾತ ಾ5$ೊಂಡು ?ೊಂಚು ?ಾY$ೊಂಡು ಕು# VಾZ ೆ ಎಂದು #'ದರು. ಆದZ ಂದ 'ಬ(ಂ ಗ)ೆ* ಂ +ೆ ?ೋ[ ಾ\ ಯನುE ಖSತಪ5'$ೊಂಡು ಕಮ ಜರು[ಸಲು ಾನು 'ಬ(ಂ ಯವ ಾದ ?ೆ^.' 5647 ರ_ೕ` 5.aೆ, ?ೆ^.' 5541 ಉದಯಕು ಾc ?ೆ^.' 5414 ರ_ೕ`, .' 12150 ರವರನುE ಕ ೆದು$ೊಂಡು ?ಾಗೂ ಕೃಷf ಮತು, ಮುರು# ಎಂಬ ಪಂPಾR VಾರರನುE $ೋ[ಲು $ಾ % ಬ# ಬರ ಾ5$ೊಂಡು ಅವ +ೆ ನನ+ೆ ಾ\ ಯನುE #' ಅವರನುE aೊQೆಯ ಕ ೆದು$ೊಂಡು ನನE gೕ ನ ಮತು, ?ೊಯhಳ-162 ರ ,, 'ಬ(ಂ ಗಳನುE ?ಾಗೂ ಪಂPಾಯು,VಾರರನುE ಕು#" ' ಕ ೆದು$ೊಂಡು ಾ 1-30ಗಂ ೆ+ೆ ಜೂ59ಯ: ಕ>ೆ+ೆ ?ೋಗುವ @ಾAರಲ: ರ ೆ,ಯ ಬ +ೆ ?ೋ[ ಮ ೆಯ . ಸು ಾರು 50-60 ಅ5 ದೂರದ ಾಹನಗಳನುE F 'Vಾಗ ' 10641 ಮುFೕಂದ ರವರು ಸಹ ಅ +ೆ ಬಂದರು. ಾವiಗಳU ಇ#ದು ೋಡ;ಾ[ ಜೂA59ಯ: ;ೇಔ= ಕ>ೆ+ೆ ?ೋಗುವ @ಾAರಲ: ರ ೆ,ಯ ಪಕCದ ಜೂA5ೕ9ಯ: ;ೇಔ= ಕ>ೆ+ೆ ಮುಖ ಾ5$ೊಂಡು F 'ದZ ಮೂರು $ಾರುಗಳ Dಾ ೋ 8-10 ಜನರು ಕು#ತು ಏ ೋ ಾತ ಾ5$ೊಳU" ,ದುZದು ಕಂ5ತು ತlಣ aೊQೆಯ ದZ ?ೆ^.' 5647
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 ರ_ೕ` 5.aೆ ?ಾಗೂ ಪಂಚ ಾದ ಕೃಷf ಎಂಬುವರನುE ಅವರ ಹ ,ರ ?ೋ[ ಮ ೆಯ Fಂತು ಅವರನು ಾತ ಾ5$ೊಳU" ,VಾZ ೆಂಬುದನುE #ದು ಬರುವಂQೆ #' ಕಳU\' $ೊಡ;ಾRತು, ಸದ ಯವರು ಸು ಾರು 10 Fmಷಗಳ ನಂತರ \ಂ ರು[ ಬಂದು ಸು ಾರು 10 ಜನ ಆ ಾmಗಳU ಮೂರು $ಾ ಗಳ , ಕು#ತು$ೊಂಡು ತಮ0 ಬ# ಸೂ,: ಮತು, Pಾಕು ಇಟುN$ೊಂಡು, M§âjUÉƧâgÀÄ F ¢£À F gÀ¸ÉÛAiÀÄ°è §gÀĪÀ ºÀಣವಂತರನುE ಅಡLಗMN ಅವ +ೆ ಸೂ,: ಮತು, >ಾ ಗ4 Qೋ ' ಅವರನುE ?ೆದ ' CªÀgÀ ಬ#Rರುವ SನEದ ಒಡ ೆಗಳU, ಹಣ ?ಾಗೂ ೆ;ೆ ಾಳUವ ವಸು,ಗಳನುE VೋS$ೊಂಡು ಡ$ಾಯ ಾ>ೋಣ ಎಂದು ªÀiÁvÀ£ÁrPÉƼÀÄîwÛzÁÝgÉ. JAzÀÄ w½¹zÀgÀÄ D¸Á«ÄUÀ¼ÀÄ qÀPÁAiÀÄw ªÀiÁqÀ®Ä ºÉÆÃAZÀÄ ºÁPÀÄwÛgÀĪÀÅzÀÄ ಧೃಢಪMNದZ ಂದ, ಾ ¸ÀĪÀiÁgÀÄ 1-40 ಗಂ ೆ+ೆ ಸದ ಯವರುಗಳ ಸುತ, ಾನು ಮತು, ನನE aೊQೆಯ ದZ 'ಬ(ಂ ಯವರು ಸುತು,ವ ೆದು Vಾ# ಾ5ದುZ CªÀgÀÄUÀಳ $ೆಲವರು ತ q'$ೊಂಡು ಬ;ೋ ೋ $ಾ ನ ಓ5?ೋದರು, ಉ#ದ ಾಲುC ಜನ ಆ ಾmಗಳನುE \5ದು ತಂದು ನನE ಮುಂVೆ M¨ÉÆâಬ(ರ ಾE[ ?ಾಜರುಪ5'ದರು. ಆ ಾಲುC ಜನರ ?ೆಸರು
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 ಇರುವ ¨ÉvÀÛzÀ Vೊ2ೆf ಮತು, ಕಪiq ಬಣfದ ಒಂದು ®UÉÎÃeï ಾAಗನುE ಅ ಾನತು, ಪ5'$ೊಂಡು ?ಾಗು ದ¸ÀÛ[ ಾ5ದ 4 ಜನ ಆ ೋ ಗಳ ಸ_ೕತ ಾಂಕ :
20/02/2017 gÀAzÀÄ ¨É½UÉÎ 03-00 UÀAmÉUÉ »AwgÀÄV EªÀgÀÄUÀ¼À «gÀÄzÀÞ PÀ®A 399, 402, L¦¹ ªÀÄvÀÄÛ 27, 30, DªÀÄìgï DPïÖ jÃvÁå PÉøÀÄ zÁR°¹gÀÄvÉÛÃ£É EvÁå¢."
Where was the petitioner at juncture is necessary to be noticed.
He was in the Police custody in the very same Police Station pursuant to an order of the concerned Court in Crime No.42/2017. This is an undisputed fact as body warrant is granted by the concerned Court to produce the petitioner who was in custody in the other crime. Therefore, it cannot be said that the petitioner was either a part of preparation or assembly for the purpose of commissioning of dacoity. How did not petitioner come into the picture is not on any investigation but on a suo motu statement of the co-accused which is not in dispute as could be gathered from the charge sheet so filed by the Police, which reads as follows:
"ಅಂಕಣ-3 ರ ನಮೂ 'ರುವ ಎ-1, ಎ2, ಮತು, ಎ-11 ?ಾಗೂ ಎ12 ರವರು ವAವ'}ತ ಾ[ ತಮ0 ಅಕ ಮ ;ಾಭ$ಾC[ ಹಲವi ವಷvಗ#ಂದ $ೊ;ೆ, ಸು +ೆ ಮಂQಾದ ಅಪ ಾಧ ಚಟುವM$ೆಗಳ Qೊಡ['$ೊಂಡು ಹಲವi ಸಲ aೈಲು ಾಸ ಕೂಡ ಅನುಭt'ರುವ Pಾ#€ದZ ಆ ೋ ಗ)ಾ[ದುZ ಮತು, ಒಬ( +ೊಬ( +ೆ ಪ ಚಯ ಇದZ ಂದ ಎ-1 ಮತು, ಎ-2 ರವರು ಎ11 ಮತು, ಎ12 ರವ ೊಂ +ೆ Fರಂತರ ಸಂಪಕvದ ದುZ$ೊಂಡು ಾಂಕ 20.02.2017$ೆC \ಂVೆ ಹಲವi ಸಲ $ೊ5+ೆಹ#" 3 ೕ% 1ಾ2ೆ ಾA ,ಯ ಾw +ಾಡv4
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J-1 ªÀÄvÀÄÛ J-2 DgÉÆævÀgÀÄ PÀæªÀĪÁV gÁªÀÄ£ÀUÀgÀ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA.34/2015 PÀ®A 302 gÉ/« 149 L¦¹ ªÀÄvÀÄÛ ªÉÊmï¦üïïØ ¥Éưøï oÁuÉ ªÉÆ.¸ÀA.70/2016 gÀ°è 120©, 302,201 ೆt 34 ಐ¦' ಪ ಕರಣದ ೆಂಗಳ*ರು $ೇಂದ $ಾ ಾಗೃಹದ ರು ಾಗ ಅವ +ೆ ಎ;ೆ$ಾ'F'h 'M 3 ೕ% 1ಾ2ೆ u.ಸಂ.233/2016 ಕಲಂ 143, 147,148, 307, 302 ೆ/t 149 ಐ¦¹ ಪ ಕರಣದ ಅVೇ aೈ ನ ದZ ಎ-16 ಆ ೋ ಯ ಪ ಚಯ ಾ[ ಅವನ ಬ# ಎ-1 ಮತು, ಎ-2 ರವರು ತಮ0 ಅಪ ಾಧ ಕೃತAಗಳU ಮತು, ತಮ[ರುವ @ಾ ಣ xೕ ಯ §UÉÎ ºÉýPÉÆAqÁUÀ, ¸ÀzÀj J16 DgÉÆæAiÀÄÄ CªÀgÉÆA¢UÉ M¼À¸ÀAZÀÄ £Àqɹ CªÀgÀ C¥ÀgÁzsÀ PÀÈvÀåUÀ½UÉ ¸ÀºÀPÀj¸ÀĪÀ GzÉÝñÀ¢AzÀ DvÀ£À£ÀÄß £ÉÆÃqÀ®Ä §AUÀ¼ÀÆgÀÄ
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 PÉÃAzÀæ PÁgÁUÀȺÀPÌÉ ¨sÉÃn PÉÆqÀÄwÛzÀÝ J-18 ಆ ೋ ಯ ಮೂಲಕ ಎ-20 ೋ +ೆ ಾಲು ಪMNಸಂ‡ೆA 22/2017ರ ಆಳವ5'$ೊಂ5ರುವ ಶ ಾ‚ಸ‚ ಮತು, ಗುಂಡುಗಳನುE ಸರಬ ಾಜು ಾ5'ರುವiದು."
The petitioner is dragged into the web of crime admittedly on account of voluntary/confession statement of the co-accused.
This is what is held by the Apex Court to be impermissible in law.
7. The Apex Court in the case of DIPAKBHAI JAGDISHCHANDRA PATEL v. STATE OF GUJARAT1 has held as follows:
"46. In CBI v. V.C. Shukla [CBI v. V.C. Shukla, (1998) 3 SCC 410: 1998 SCC (Cri) 761: AIR 1998 SC 1406], a Bench of three learned Judges, after approving Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 (1938-39) 66 IA 66: AIR 1939 PC 47], had occasion to consider the distinction between confession and admission. This Court went on to hold as follows: (V.C. Shukla case [CBI v. V.C. Shukla, (1998) 3 SCC 410: 1998 SCC (Cri) 761: AIR 1998 SC 1406], SCC pp. 437-38, para 45) "45. It is thus seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an "admission" under Section 21. The law 1 (2019) 16 SCC 547
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 in this regard has been clearly -- and in our considered view correctly -- explained in Monir's Law of Evidence (New Edn. at pp. 205 and 206), on which Mr Jethmalani relied to bring home his contention that even if the entries are treated as "admission" of the Jains still they cannot be used against Shri Advani. The relevant passage reads as under:
'The distinction between admissions and confessions is of considerable importance for two reasons. Firstly, a statement made by an accused person, if it is an admission, is admissible in evidence under Section 21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to a police officer, or was made at a time when the accused was in custody of a police officer. If a statement was made by the accused in the circumstances just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a police officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance'."
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 (emphasis in original and supplied)
47. Section 21 of the Evidence Act provides as follows:
"21. Proof of admissions against persons making them, and by or on their behalf.-- Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases--
(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons under Section 32.
(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."
48. Thus, what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitutes an admission is to be found in Section 17 of the Evidence Act, which defines "admission" as follows:
"17. Admission defined.--An admission is a statement, oral or documentary or contained in
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
49. In Bharat Singh v. Bhagirathi [Bharat Singh v. Bhagirathi, AIR 1966 SC 405], the true nature of the evidentiary value of admission, and whether without confronting the maker of the admission, it could be used, has been referred to and this is what this Court had to say: (AIR p. 410, para 19) "19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence."
(emphasis supplied)
50. From the statement of the law contained in V.C. Shukla [CBI v. V.C. Shukla, (1998) 3 SCC 410:
1998 SCC (Cri) 761: AIR 1998 SC 1406] , it becomes clear as to what constitutes confession and how if it does
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 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."
On the same lines the Apex Court earlier in SURINDER KUMAR KHANNA v. INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE2 has held as follows:
"10. In Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275: 1952 SCR 526: AIR 1952 SC 159: 1952 Cri LJ 839], this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. R. [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 2 (2018) 8 SCC 271
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] : (SCC OnLine PC) '...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 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 Periaswami Moopan, In re [Periaswami Moopan, In re, 1930
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 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 [Kashmira Singh v. State of M.P., (1952) 1 SCC 275 : 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] was approved by a Constitution Bench of this Court in Haricharan Kurmi v. State of Bihar [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184:
(1964) 2 Cri LJ 344] wherein it was observed:
(Haricharan case [Haricharan Kurmi v. State of Bihar, (1964) 6 SCR 623 at pp. 631-633 : AIR 1964 SC 1184 : (1964) 2 Cri LJ 344] , AIR p. 1188, para 12)
"12. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 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 [Emperor v. Lalit Mohan Chuckerbutty, ILR (1911) 38 Cal 559 at p. 588.] a confession can only be used to "lend assurance to other evidence against a co-accused". In Periaswami Moopan, In re [Periaswami Moopan, 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.' In Bhuboni Sahu v. R. [Bhuboni Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p.
155.] the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that: (SCC OnLine PC) '... 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
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 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. Section 30, 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.' It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; 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, then 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. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of M.P. [Kashmira Singh v. State of M.P., (1952) 1 SCC 275: 1952 SCR 526 : AIR 1952 SC 159 : 1952 Cri LJ 839] where the decision of the Privy Council in Bhuboni Sahu case [Bhuboni
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 Sahu v. R., 1949 SCC OnLine PC 12 : (1948-49) 76 IA 147 at p. 155.] has been cited with approval."
12. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused. [ For example: State v. Nalini, (1999) 5 SCC 253, paras 424 and 704 : 1999 SCC (Cri) 691]
13. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co- accused as stated above. On the touchstone of law laid down by this Court, such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilised in order to lend assurance to the Court."
A coordinate Bench of this Court considering all the other judgments on the issue rendered by the Apex Court has held in the case of SRINIVASA @ KULLOA SEENA v. STATE OF KARNATAKA3 as follows:
" 13. On 10.6.2018, the accused No.4 was arrested at3.05 a.m. On the basis of his voluntary statement, accusedNos.2, 3, 6 and 7 and the petitioner as accused No.1 are arrayed. The spot mahazar was conducted on 10.6.2018between 7.00 a.m. to 8.15 a.m. Even on the date of spot mahazar, the name of the petitioner was not mentioned by the eye witness - CW1. On 10.6.2018, the inquest panchanama was conducted at KIMS hospital between 1.00 p.m. to 3.00p.m, and at the time of inquest, CW3-father, CW4-sister and CW5 3 Criminal Petition No.2007 of 2023 decided on 10th July, 2023
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 mother, suspected the name of petitioner on the basis of hear say statement.
14. The voluntary statements of the accused Nos.2, 3,6 and 7 were recorded on 13.6.2018, and the accused No.2 in the voluntary statement is alleged to have stated that, at the instance of accused No.1 and other accused, they have hatched the criminal conspiracy to kill Jayanth son of CW3. Except the statement of CWs.3 to 5, who suspected the involvement of the petitioner on hearsay information, and the voluntary statement of accused No.2, the police have not placed any corroborative material to substantiate that, at the instance of accused No.1,the criminal conspiracy was hatched to do away the life of the deceased Jayanth. The police during the course of investigation, have recorded the statement of many as 47witnesses, and none of the witnesses have spoken about the involvement of accused No.1 in the commission of the aforesaid crime.
15. The High Court of Delhi in the case of V K Verma (supra) at para-66 has held as follows:
"66. From the aforesaid analysis, it is clear that at the stage of framing of charge, the Ld. Judge is merely required to overview the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused, or in other words, whether a prima facie case is made out against the accused. it is also settled that at the time of framing of charges there is requirement of satisfaction only regarding the probability of the accused having committed the offence and not of the proof of his culpability beyond reasonable doubt, yet while framing the charge some material must still be available so as to appeal to the judicial conscience on which a prima facie case is established against the accused."
16. The Hon'ble Supreme Court in the case of State of Rajasthan -vs- Fatehakaran Mehdu (2017) 3 SCC 198 (supra)at para-26 has held as follows:
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 "26. The scope of interference and exercise of jurisdiction under Section 397 Cr.PC has been time and again explained by this Court. Further, the scope of interference uynder Section397 Cr.PC at a stage, when charge had been framed, is also well settled. AT the stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure."
17. The Hon'ble Supreme Court in the case of Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 while considering the scope of provisions contained in Section 227 of Cr.PC at para-10 has held as follows:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
"18. The coordinate Bench of this Court in Crl.RPNo.1008/2008 (22.10.2008), in identical circumstances, at paras-11 to 13 has held as follows:
11. Except the above statements no other material is there on record to come to the conclusion that there are grounds to presume that this petitioner committed the offence of conspiracy along with all or any of the accused Nos.1 to 8 in plotting the scheme for murdering the deceased. Besides this, in support of his contentions Sri. H.P. Leeladhar, learned counsel for the petitioner has relied upon the following decisions 1.2008 (2) Crimes 263 (SC) Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra.
2.1996(3) Crimes 85 (SC) Satish Mehra Vs. Delhi Administration and Another.
3.1998(1) Crimes 219(SC) Central Bureau of Investigation Vs, V.C. Shukla and Others.
4.1997 CRL.L.J. 2559 L.K. Advani Vs. Central Bureau of Investigation
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12. In first of the above said decisions i.e. in 2008(2) Crimes 263 (SC) it is observed at paragraph 18 as under:-
para 18: "The basic ingredients of the offences of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or
(b) an act which in not illegal in itself but is done by illegal means. It is therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. Yet as observed by this Court in Shivanarayan Laxminarayan Joshi & Ors. Vs. State of Maharashtra, a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible".
If the statements of the said witnesses, are examined in the light of these observations of the Hon'ble Supreme Court, it could be seen that they do not disclose the facts from which the commission of the offence of conspiracy could be inferred against the present petitioner (A9)
13. In he second of the said decisions i.e. 1996(3) Crimes 85 (Satish Mehra Vs. Delhi Administration and Others) the Hon'ble Supreme Court has observed at para Nos. 12 and 13 as under-
para 12:" The object providing such an opportunity as is envisaged in section 227 of the Code is 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.
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 para 13: But when 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 work-load. 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 ship the proceedings at the stage of Section 227 of the Code itself".
In the light of these observation, it could be seen in the instant case that the statements of the said witnesses even taken at their face value, do not make out grounds to presume that this petitioner committed the offences of conspiracy.
19. The coordinate Bench of this Court in Crl.PNo.10860/2022 (2.1.2023) at para - 14 has held as follows:
14. On perusal of the judgment of the Hon'ble Supreme Court in the above said cases to the facts and circumstances of the case, where, except a voluntary statement of the co-accused saying that this petitioner- accused came to Bangalore along with accused No.1 in the year 2017, there is no material collected by the Investigating Officer to connect the accused with the crime and even accused Nos.3 to 9 came to Bengaluru at the instance of accused No.1 for recovery of arrears of commission and there is no allegation against this petitioner that this petitioner sent those accused persons and also accused No.3 contacted accused No.1 after the incident, but not this petitioner and no CDR produced to show that this petitioner contacted accused Nos.3 to 9 in respect of either prior to the commission of offence or after the commission of offence. Therefore, it clearly reveals that the petitioner being the son of accused No.1 has been falsely implicated by the
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 CW-2 did not lodge any complaint and he has narrated the incident only after the commission of incident by hearing the dame from CW.1, Therefore, considering the facts as held by the Hon'ble Supreme Court in the case of State of Haryana Vs/ Bhajan Lal and other cases stated supra, absolutely, there is no material on record to connect the accused with the crime either to frame charges under Section 120B or109 or 302 read with Section 149 of IPC. Therefore, I am of the view, conducting proceedings against this petitioner-accused No.2 is nothing but abuse of process of law and the same is liable to be quashed
20. It is settled law that the confession statement recorded under Section 25 of the Indian Evidence Act is inadmissible in law. Section 114 Illustration (b) of the Indian Evidence Act specifies that, the statement of an accomplice is unworthy or credit, unless he is corroborated in material particulars. In the instant case, except the voluntary statement of accused No.2, who is alleged to have stated that, the other accused conspired to do away the life of the deceased, Jayanth, at the instance of accused No.1, there is no corroborative material placed along with the charge sheet to establish that, the accused No.1 instigated the other accused to do away the life of the deceased, Jayanth. In the absence of any corroborative material, except the statement of co-accused, the continuation of criminal proceedings will be an abuse of process of law. In the absence of any prima facie case to proceed against the accused No.1, the learned Sessions Judge has committed an error in exercising the power conferred under Section 227 of Cr.PC and the same is not sustainable in law. Accordingly, I pass the following:
ORDER
i) Criminal petition is allowed.
ii) The impugned order dated 13.5.2022 passed in SC No.24/2019 by the learned 68th Addl. City Civil and Sessions Judge at Bengaluru (CCH-68) on the application filed by the accused No.1 under Sections
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NC: 2024:KHC:22514 CRL.P No. 9819 of 2023 227 and 228 of Cr.PC is hereby set aside and consequently the application is allowed and the accused No.1 is discharged of the offences alleged against him."
Though several judgments bear reference in the order passed by the coordinate Bench, the judgment in the case of Dipakbhai Jagdishchandra Patel (supra) does not find a place.
In the light of admitted fact that the petitioner was in Police custody on the date and time when the crime comes to be registered and since he is dragged in only on the strength of the voluntary statement of the co-accused, the charge against the petitioner would tumble down. The submission of the learned High Court Government Pleader would have become acceptable that this Court should not entertain the petition at this juncture, but the glaring facts clinching enough they are, would enure to the benefit of the petitioner as he should not be permitted to undergo the rigmarole of trial when there being no material against him except the voluntary statement of the co-accused.
8. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
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(ii) The order dated 31.05.2017 passed by the Principal City Civil and Sessions Judge, Bengaluru in Special S.C.No.414/2017 and the relevant charge sheet filed thereto stand quashed qua the petitioner.
(ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence the proceedings against any other accused pending before any other fora.
Sd/-
JUDGE KG List No.: 1 Sl No.: 54