Admissibility of Statements made to the Police: What Supreme Court held [Read Judgment]
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Admissibility of Statements made to the Police: What Supreme Court held [Read Judgment]

Meera Emmanuel

The Supreme Court recently reiterated the law concerning the admissibility of statements made to the police under the Indian Evidence Act, 1872 and the Code of Criminal Procedure (CrPC) 1973. Pertinent observations on the topic were made while also considering the scope of court intervention under Section 482, CrPC.

The Bench of Justices Ashok Bhushan and KM Joseph was dealing with an appeal filed against a Gujarat High Court verdict rejecting the appellant’s plea for discharge from a case for possession of counterfeit currency. The plea had also been rejected by the Sessions Court.

The appellant contended that he was being charged for the offence only on the basis of a statement made by a co-accused, which was not permitted under the Indian Evidence Act.

The State, however, took the stand that there was a prima facie case made out on the basis of a confessional statement given by the appellant himself in April 1996. Further, it was submitted that they had recovered counterfeit currency from the appellant’s residence.

In the appeal before the Supreme Court, however, the appellant contended that no counterfeit currency had been found in his residence. Rather, the currency was found on a public road near his residence. On its part, the State did not seriously dispute this contention before the Supreme Court.

Therefore, the Court was left to decide whether the appellant could be charged for the offence based on statements made by him and that of his absconding co-accused. The Bench eventually concluded that he was liable to be discharged.

There must be strong suspicion that prima facie the accused committed the offence

In deciding whether or not criminal charges ought to be quashed under Section 482 of the CrPC, the Court acknowledged that it cannot act as a mere post office. All the same, at this stage, the Court is not expected to be as thorough in appreciating the material before it. The Bench observed,

“The Court must indeed sift the material before it…The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused.”

However, it went on to state that on an evaluation of the material available, there must be a strong suspicion that the accused has committed the offence. Further,

“… strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial.

The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence.

In this case, the Court eventually concluded that no such prima facie case was made out against the appellant.

Statement by co-accused by itself not sufficient to charge another

The Court relied on the case of Suresh Budharmal Kalani Alias Pappu Kalani v. State of Maharashtra to point out that generally, a “confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against it.”

Rather, such a confessional statement can only be used to strengthen the veracity of other incriminating material to frame a charge against an accused. Moreover, Section 30 only allows using the confession of a co-accused against another where both persons are being jointly tried for the same offence. In this case, however, the co-accused who allegedly confessed, was absconding.

Statements made to a Police Officer during investigation not substantive evidence

The State had claimed that the appellant had admitted to possessing counterfeit currency the day following his arrest in April 1997. However, the Court pointed out that even if this were the case, this statement could not be used as substantive evidence against the appellant.

For one, the statement made by the appellant was in the nature of a confession. Confessions made to the police (unless made in the presence of a Magistrate) and statements made under police custody are not admissible under Sections 25 and 26 of the Evidence Act.

Another aspect to this was whether a statement made to the police by an accused as a witness under Section 161 of the CrPC could be admitted. The Court noted that it is already settled in the case of Nandini Satpathy v. P.L. Dani that an accused person can also be examined by the police under Section 161, CrPC. However, it went on to point out that such statements would attract the bar of admissibility under Section 162, CrPC.

Section 162, CrPC lays down that witness statements made under Section 161, during the course of an investigation, cannot be used as substantive evidence. Rather such statements can only be used for the purpose of contradiction during trial.

In this case, it may also be noted that the appellant subsequently retracted his alleged confessional statement of April 1996. In statements made thereafter in July and August 1996, he denied having knowledge of being in possession of any currency that was counterfeit. In any case, the Court noted that,

[The] Bar under Section 162 Cr.PC, no doubt,operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same.

In a case where statement containing not a confession but admission, which is otherwise relevant and which is made before the investigation commences, may be admissible…”

Verdict

These observations led the Bench to point out,

“A confession made to a Police Officer is clearly inadmissible. The statement relied on by respondent is dated 11.04.1996 and the appellant was arrested on 11.04.1996. This is pursuant to the FIR registered on 10.04.1996. The statement dated 11.04.1996 is made to a Police Officer.

If the statement made by the appellant on 11.04.1996 is inadmissible, then, there will only be the statement of the co-accused available to be considered in deciding whether the charge has to be framed against the appellant or not. It is here that the law laid down by this Court in Suresh Budharmal Kalani Alias Pappu Kalani (supra)becomes applicable.

The Bench proceeded to conclude that even if the co-accused in this case was not absconding, the appellant would still be liable to be discharged from the case. This was in view of the fact there was no other evidence pointing to the guilt of the appellant. The Court ruled,

“Proceeding on the basis that it is a confession by a co-accused and still proceeding further that there is a joint trial of the accused and that they are accused of the same offences (ignoring the fact that other accused are absconding and appellant appears to be proceeded against on his own) and having found that there is no recovery from the residence of the appellant of the counterfeit notes and that there is no other material on the basis of which even a strong suspicion could be aroused, we would find that the mandate of the law requires us to free the appellant from being proceeded against.”

Therefore, the Court set aside the Gujarat High Court order and discharged the appellant.

Read the Judgment:

Dipakbhai-Jagdishchandra-Patel-v-State-of-Gujarat-SC-April-2019.pdf
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