When 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.

Hon’ble Mr. Justice K.M. Joseph

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.714 OF 2019
(@ SLP(Criminal) No.5415 of 2017)
DIPAKBHAI JAGDISHCHANDRA PATEL … APPELLANT(S)
VERSUS
STATE OF GUJARAT AND ANOTHER … RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.

  1. This appeal by special leave granted by this
    Court is directed against the judgment of the
    High Court of Gujarat at Ahmedabad dismissing
    the Special Criminal Application No.1230 of 2009
    filed by the appellant under Section 482 of the
    1
    Code of Criminal Procedure, 1973 (hereinafter
    referred to as ‘the Cr.PC’ for short).
  2. The petition under Section 482 Cr.PC. was
    filed challenging the complaint and the Order
    passed by the Sessions Court rejecting the
    request of the appellant to discharge him of the
    offences under Sections 489B and 489C of the
    Indian Penal Code, 1860 (hereinafter referred to
    as ‘the IPC’ for short).
  3. The contents of the FIR dated 10.04.1996 are
    as follows:
    “The facts of my complaint are that
    today ie., on 10.04.1996 at about
    13.00, we got information from the
    superior officer of the ATS that
    Mahamad Rafik Abdul Hamid Kadge of
    Mumbai and Salim Mahebub Shaikh of
    Ahmedabad Sahalam, both are selling
    fake currency note of Arabian country
    as original on the road going towards
    noble building located at the edge of
    2
    Nehrubridge, Ashram Road, Ahmedabad
    on fair rate and therefore, while
    receiving such legal instruction, two
    panch persons had been called at the
    office of ATS and after informing
    them about such information and they
    expressed their consent to remain as
    panchas therefore, after completing
    the first part panchnama at about
    14.00 to 14.15 therein, I myself,
    panchas and PSI Shri NB Jadeja, Shri
    BR Karavadra, Shri PV Rathod, Shri NV
    Kapiriya, Shri KK Desai and Police
    constable Shri Rameshkumar Sevadas
    Lashkari, Bhagwatsingh Madarsinh and
    police Constable Amirkhan Rasulkhan
    and Dashrathsinh Bhagubha etc reached
    in government and private vehicles
    opposite the Natraj cinema at Ashram
    Road, Stopping their vehicles there
    and taking walk reached near Noble
    Building as well as on the road
    nearby the Petrol pump and found that
    three persons were standing nearby
    the road and doing some transaction
    and while making talk with them, we
    stopped them at that place wherein we
    introduced ourselves as Police and
    panchas and informed them about
    personal search and I caught accused
    no.1 and while asking his name and
    address, he stated his name as
    Mahamad Rafik Abdul Hamid Kadge
    residing at Sachhvari Dagadichawl
    3
    Golanji Rahil Road, Mumbai-15 and
    during the search, 43 notes of Saudi
    Arabian Riyal currency of Rs.500/-
    denomination were found and PSI Shri
    NB Jadeja caught the accused no.2 and
    while asking his name before the
    panchas, he stated his name as
    Salimbhai Mahemudbhai Shaikh,
    residing at inside Shahalam Darwaja,
    Rasulibad society, Ahmedabad and
    during the search 43 notes of Saudi
    Arabian riyal currency of Rs.500/-
    denomination were found and police
    constable Shri Bhagwatsinh Madarsinh
    buckle No. 8927 caught the accused
    no.3 and while asking his name and
    address, he stated his name is
    Usmangani Mahamadbhai Malek residing
    at Musamiyani Chali, Rasulabad
    Shahalam, Ahmedabad and from his
    hand, 2 nos. Saudi Arabian Riyal
    currency notes of Rs.500/-
    denomination were found and in all
    total 88 notes were found. While
    asking them one by one before the
    panchas regarding such notes, it was
    found that no.1 had taken such notes
    from Mumbai prior to 15 days and had
    stated that he talked with his friend
    Jagdishchandra Patel residing at D-2
    Aasiyana Flat, Nawa Vadaj, Ahmedabad
    to sale him these fake Riyal currency
    to as original with fair price and
    today, after taking such note from
    4
    the house of Dipak by the accused
    no.1; handed over it to the accused
    no.2 and 3 and after preparing the
    panchnama of such notes, seized it by
    packing it in separate packets and
    applying seals. Indian currency notes
    found from one or two out of them had
    been returned by way of panchnama and
    that panchnama was completed at about
    (Illegible).
    Thus, the aforesaid accused no.1
    Mahamad Rafik Abdul Hamid Kagde,
    residing at Savri Hagadi Chawl,
    Golanji Road, Mumbai-15, accused no.2
    Salimbhai Mahemudbhai Shaikha,
    residing at inside Shahalam Darwaja,
    Rasulabad Society, Ahmedabad, accused
    no.3 Usmangani Mahamadbhai Malek
    residing at Shahalam, Ahmedabad and
    accused no.4 Dipak Jagdish Patel,
    residing at B-2 Aashiyana Flat, Nava
    Wadaj, Ahmedabad in collusion with
    each other, showing the fake Saudi
    Arebiya currency Riyal of Rs.500/-
    denomination as original and keeping
    such notes in their possession to
    sale such fake currency notes as
    original with fair price, the accused
    have committed the offence punishable
    under Section 489B, C of the Indian
    Penal Code and this is my legal
    5
    complaint against these accused
    persons. The panchas, police persons
    and whatever will be come out in the
    investigation are my witnesses and
    the accused no.1,2,3 are arrested
    today ie, on 10.04.1996 at 17.00
    o’clock.”
  4. Following investigation, the chargesheet
    came to be filed against the appellant inter
    alia:
    PROCEEDINGS BEFORE THE SESSIONS JUDGE
    Though the appellant contended before the
    Sessions Judge that apart from the statement of
    the co-accused, there was no material to proceed
    against the accused/appellant and that only on
    the basis of the statement by co-accused, no
    case could be made out against the appellant,
    and still further, it was contended that the
    6
    statement made by the co-accused was barred by
    Section 25 of the Indian Evidence Act, 1872,
    however, it was found by the Sessions Judge that
    the whole recovery procedure was made in the
    presence of panchas and, accordingly, the plea
    for discharge of the appellant was rejected as
    there was some evidence against him, and without
    recording evidence, it was not possible to come
    to the conclusion that there is no evidence
    against the appellant.
    PROCEEDINGS BEFORE THE HIGH COURT
    In the High Court, the learned Single Judge,
    after referring to the allegations made against
    the accused/appellant, rejected the plea that
    the case against the appellant be not continued
    as it seemed that from the averments and
    arguments of the learned APP, statements of the
    7
    co-accused were recorded by the police wherein
    involvement of the appellant was found
    particularly of fake currency notes having been
    found at the residence of the appellant. The
    Court made reference to the seizure of
    counterfeit currency notes from the place of
    offence, i.e., residence of the appellant. It is
    further found that it is premature to say
    anything at this stage in respect of the
    credibility of the statement made by the Officer
    in the complaint. It can be considered only at
    the trial. Currency notes were seized by the
    Investigating Officer in the presence of the
    witnesses, and therefore, their statements would
    also be considered by the trial court, while
    they would be examined by the court concerned.
    Statements of the co-accused recorded by the
    Investigating Officer show prima facie
    8
    involvement of the appellant in the offence. It
    is not only the evidence available with the
    prosecution to involve the appellant to the
    alleged offences, other evidences too prima
    facie point to the appellant. It was found that
    no case was made out to interfere under Section
    482 of the Cr.PC.
  5. We have heard Mr. Nakul Dewan, learned Senior
    Counsel appearing for the appellant and Ms.
    Hemantika Wahi, learned Counsel appearing for
    the respondents.
  6. The learned Senior Counsel for the appellant
    emphasized that the High Court has fallen into
    error in holding that recovery of counterfeit
    currency was effected from the residence of the
    appellant. It was pointed out that counterfeit
    currency was recovered not from the residence of
    9
    the appellant but from near a public road.
    Therefore, the basis for continuing the case for
    proceeding against the appellant does not exist.
    Secondly, it was contended that a person cannot
    be proceeded against on the basis of the
    statement made by the co-accused, when there is
    no material other than statement of the coaccused. The High Court ought to have exercised
    the jurisdiction available under Section 482 of
    the Cr.PC and allowed the plea for discharge.
    Learned Senior Counsel for the appellant would
    contend that the co-accused were absconding. He
    sought support from the judgment of this Court
    in Suresh Budharmal Kalani Alias Pappu Kalani v.
    State of Maharashtra1. He has drawn our attention
    to paragraphs 6 and 7, which read as follows:
    “6. Thus said, we may turn our
    attention to the confession made by
    1 (1998) 7 SCC 337
    10
    Dr Bansal and Jayawant Suryarao.
    Under Section 30 of the Evidence Act,
    1872, a confession of an accused is
    relevant and admissible against a coaccused if both are jointly facing
    trial for the same offence. Since,
    admittedly, Dr Bansal has been
    discharged from the case and would
    not be facing trial with Kalani, his
    confession cannot be used against
    Kalani. The impugned order shows that
    the Designated Court was fully aware
    of the above legal position but,
    surprisingly enough, it still decided
    to rely upon the confession on the
    specious ground that the prosecution
    was not in any way precluded from
    examining Dr Bansal as a witness in
    the trial for establishing the facts
    disclosed in his confession. This
    again was a perverse approach of the
    Designated Court while dealing with
    the question of framing charges. At
    that stage, the court is required to
    confine its attention to only those
    materials collected during
    investigation which can be legally
    translated into evidence and not upon
    further evidence (dehors those
    materials) that the prosecution may
    adduce in the trial which would
    commence only after the charges are
    framed and the accused denies the
    charges. The Designated Court was,
    therefore, not at all justified in
    11
    taking into consideration the
    confessional statement of Dr Bansal
    for framing charges against Kalani.
  7. So far as the confession of
    Jayawant Suryarao is concerned, the
    same (if voluntary and true) can
    undoubtedly be brought on record
    under Section 30 of the Evidence Act
    to use it also against Kalani but
    then the question is: what would be
    its evidentiary value against the
    latter? The question was succinctly
    answered by this Court in Kashmira
    Singh v. State of M.P. [AIR 1952 SC
    159 : 1952 SCR 526] with the
    following words:
    “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
    12
    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.
    The view so expressed has been
    consistently followed by this Court.
    Judged in the light of the above
    principle, the confession of Suryarao
    cannot be called in aid to frame
    charges against Kalani in the absence
    of any other evidence to do so.”
  8. It is the further case of the appellant
    that the ingredients of Section 489B and 489C of
    the IPC have not been established. In regard to
    Section 489C, he sought support from judgment of
    the Lahore High Court in Bur Singh v. The Crown2.
    Still further, he sought some support from the
    judgment of the learned Single Judge of the
    Punjab and Haryana High Court, viz., Justice
    2(1930) ILR 11 Lah 555 [Criminal Revision No. 1527
    of 1929]
    13
    M.M. Punchhi (as His Lordship then was), in
    Bachan Singh v. State of Punjab3. The Court held
    as follows:
    “10. In order to sustain the
    convictions of Joginder Kaur
    appellant, the prosecution has
    not only to prove that she had
    the possession of counterfeit
    note, Exhibit P. 1, ensuring it
    or having reason to believe it as
    such, but further to prove
    circumstances which lead clearly,
    indubitably and irresistibly to
    her intention to use the notes on
    the public as has been held
    in Bur Singh v. The Crown, (1930)
    ILR 11 Lah 555 : (1931) 32 Cri LJ
    351). It has further been held
    that such intention could be
    proved by a collateral
    circumstance that she had palmed
    off such notes before, or that
    she was in possession of such
    notes in such large numbers, that
    her possession for any other
    purpose was inexplicable. The
    facts as found are that she had
    on her person only one made-up
    note, that she was an illiterate
    lady and that anybody as Sh.
    3 1981 SCC Online P&H 47
    14
    Darshan Kumar Ahluwalia, P.W. 2,
    would have us believe could be
    misled to treat it as a genuine
    note. She gave the note to Kundan
    Lal, P.W. 2 and he told her that
    it was not a genuine note and his
    belief was confirmed when he
    showed it to others as well. It
    has nowhere been asserted that
    the note was ever returned to her
    and having known fully well or
    having reason to believe the same
    to be forged for counterfeit she
    yet made another attempt to palm
    it off. Thus tendering alone such
    note to Kundan Lal, P.W., unless
    the prosecution could prove that
    it was with dishonest intention
    so as to cause wrongful loss to
    him and wrongful gain to herself
    would not make her act to fall
    squarely within Section 420/511,
    Indian Panal Code, or to have
    come within the mischief of
    Section 489-B or 489-C, Indian
    Penal Code. The inference sought
    to be drawn that she must have
    known or reason to believe the
    note, Exhibit PI, to be
    counterfeit because her husband
    accompanying her was found to be
    in possession of similar notes is
    entirely misplaced for no common
    intention has been attributed to
    15
    them and they have not been
    charged with the aid of Section
    34, Indian Penal Code. For the
    individual act of Joginder Kaur
    she cannot be convicted for the
    above named offences and must be
    extended the benefit of doubt.
  9. With regard to the case
    of Bachan Singh it is to be noted
    that he was found in possession
    of 13 counterfeit ten rupee
    notes. He is an iron-smith by
    profession and barely literate.
    How could he have the knowledge
    or reason to believe the same to
    be counterfeit is one part but
    the other important part is
    whether he intended to use the
    same as genuine or that they may
    be used as genuine has further to
    be proved by the prosecution. It
    was held in Bur Singh v. The
    Crown, ((1931) 32 Cri LJ 351)
    (Lah) (supra), that mere
    possession of a forged note is
    not an offence under the Indian
    Penal Code and in order to bring
    a case within the purview of
    Section 489-C, Indian Penal Code,
    it was not only necessary to
    prove that the accused was in
    possession of forged notes but it
    16
    should further be established
    that:
    (a) at the time of his possession
    he – knew the notes to be forged
    or had the reason to believe the
    same to be forged or counterfeit;
    and
    b) he intended to use the same
    as; genuine. No further
    collateral circumstances in the
    case have been brought forth such
    as the accused had palmed off
    such notes before, or that he was
    in possession of such and similar
    notes in such large numbers, that
    his possession for any other
    purpose was inexplicable.”
  10. Finally, he also drew out attention to the
    judgment of this Court in Umashanker v. State of
    Chhatisgarh4 wherein he emphasised on paragraphs
    7 and 8, which read as follows:
    “7. Sections 489-A to 489-E
    deal with various economic
    offences in respect of forged or
    4 (2001) 9 SCC 642
    17
    counterfeit currency notes or
    banknotes. The object of the
    legislature in enacting these
    provisions is not only to protect
    the economy of the country but
    also to provide adequate
    protection to currency notes and
    banknotes. The currency notes
    are, in spite of growing
    accustomedness to the credit card
    system, still the backbone of the
    commercial transactions by the
    multitudes in our country. But
    these provisions are not meant to
    punish unwary possessors or
    users.
  11. A perusal of the provisions,
    extracted above, shows that mens
    rea of offences under Sections
    489-B and 489-C is “knowing or
    having reason to believe the
    currency notes or banknotes are
    forged or counterfeit”. Without
    the aforementioned mens rea
    selling, buying or receiving from
    another person or otherwise
    trafficking in or using as
    genuine forged or counterfeit
    currency notes or banknotes, is
    not enough to constitute offence
    under Section 489-B IPC. So also
    possessing or even intending to
    use any forged or counterfeit
    18
    currency notes or banknotes is
    not sufficient to make out a case
    under Section 489-C in the
    absence of the mens rea, noted
    above. No material is brought on
    record by the prosecution to show
    that the appellant had the
    requisite mens rea. The High
    Court, however, completely missed
    this aspect. The learned trial
    Judge on the basis of the
    evidence of PW 2, PW 4 and PW 7
    that they were able to make out
    that the currency note alleged to
    have been given to PW 4 was fake,
    “presumed” such a mens rea. On
    the date of the incident the
    appellant was said to be an
    eighteen-year-old student. On the
    facts of this case the
    presumption drawn by the trial
    court is not warranted under
    Section 4 of the Evidence Act.
    Further it is also not shown that
    any specific question with regard
    to the currency notes being fake
    or counterfeit was put to the
    appellant in his examination
    under Section 313 of the Criminal
    Procedure Code. On these facts,
    we have no option but to hold
    that the charges framed under
    Sections 489-B and 489-C are not
    proved. We, therefore, set aside
    the conviction and sentence
    19
    passed on the appellant under
    Sections 489-B and 489-C IPC and
    acquit him of the said charges
    (see: M. Mammutti v. State of
    Karnataka [(1979) 4 SCC 723 :
    1980 SCC (Cri) 170 : AIR 1979 SC
    1705] ).”
  12. Learned Counsel for the State drew our
    attention to the statement made by the appellant
    himself wherein the appellant has stated inter
    alia that he was told by the co-accused that he
    left a bag containing the counterfeit notes at
    his residence.
  13. Learned Counsel for the State submits that
    the Court may also bear in mind that the case is
    only at the stage of framing of the charge. A
    case has not been made out for interference
    under Section 482 of the Cr.PC, and hence, she
    supported the Order of the High Court.
    20
  14. Appellant would submit that as regards the
    extra judicial confessional statement relied
    upon by the State dated 11.04.1996 made by the
    appellant that it was not the basis on which the
    chargesheet had been framed. It is secondly the
    case of the appellant that the statement has
    been subsequently retracted.
  15. Sections 489B and 489C of the IPC read as
    follows:
    “489B. Using as genuine, forged
    or counterfeit currency-notes or
    bank-notes.—Whoever sells to, or
    buys or receives from, any other
    person, or otherwise traffics in
    or uses as genuine, any forged or
    counterfeit currency-note or
    bank-note, knowing or having
    reason to believe the same to be
    forged or counterfeit, shall be
    punished with imprisonment for
    life, or with imprisonment of
    either description for a term
    which may extend to ten years,
    and shall also be liable to fine.
    21
    489C. Possession of forged or
    counterfeit currency-notes or
    bank-notes.—Whoever has in his
    possession any forged or counterfeit currency-note or bank-note,
    knowing or having reason to
    believe the same to be forged or
    counterfeit and intending to use
    the same as genuine or that it
    may be used as genuine, shall be
    punished with imprisonment of
    either description for a term
    which may extend to seven years,
    or with fine, or with both.”
    LAW RELATING TO FRAMING OF CHARGE AND DISCHARGE
  16. We may profitably, in this regard, refer to
    the judgment of this Court in State of Bihar v.
    Ramesh Singh5 wherein this Court has laid down
    the principles relating to framing of charge and
    discharge as follows:
    “Reading SS. 227 and 228 together
    in juxtaposition, as they have
    got to be, it would be clear that
    5 AIR 1977 SC 2018
    22
    at the beginning and initial
    stage of the trial the truth,
    veracity and effect of the
    evidence which the prosecutor
    proposes to adduce are not to be
    meticulously judged. Nor is any
    weight to be attached to the
    probable defence of the accused.
    It is not obligatory for the
    Judge at that stage of the trial
    to consider in any detail and
    weigh in a sensitive balance
    whether the facts, if proved,
    would be incompatible with the
    innocence of the accused or not.
    The standard of test and judgment
    which is to be finally applied
    before recording a finding
    regarding the guilt or otherwise
    of the accused is not exactly to
    be applied at the stage of
    deciding the matter under S.227
    or S.228 of the Code. At that
    stage the Court is not to see
    whether there is sufficient
    ground for conviction of the
    accused or whether the trial is
    sure to end in his conviction.
    Strong suspicion against the
    accused, if the matter remains in
    the region of suspicion, cannot
    take the place of proof of his
    23
    guilt at the conclusion of the
    trial. But at the initial stage
    if there is a strong suspicion
    which leads the Court to think
    that there is ground for
    presuming that the accused has
    committed an offence then it is
    not open to the Court to say that
    there is no sufficient ground for
    proceeding against the accused.
    The presumption of the guilt of
    the accused which is to be drawn
    at the initial stage is not in
    the sense of the law governing
    the trial of criminal cases in
    France where the accused is
    presumed to be guilty unless the
    contrary is proved. But it is
    only for the purpose of deciding
    prima facie whether the court
    should proceed with the trial or
    not.
    If the evidence which the
    prosecutor proposes to adduce to
    prove the guilt of the accused
    even if fully accepted before it
    is challenged in crossexamination or rebutted by the
    defence evidence, if any, cannot
    show that the accused committed
    the offence, then there will be
    24
    no sufficient ground for
    proceeding with the trial.
    If the scales of pan as to the
    guilt or innocence of the accused
    are something like even at the
    conclusion of the trial, then, on
    the theory of benefit of doubt
    the case is to end in his
    acquittal. But if, on the other
    hand, it is so at the initial
    stage of making an order under
    S.227 or S.228, then in such a
    situation ordinarily and
    generally the order which will
    have to be made will be one under
    S.228 and not under S.227.”
  17. In Union of India v. Prafulla Kumar Samal
    and another6, after survey of case law, this is
    what the Court has laid down:
    “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
    6 AIR 1979 SC 366
    25
    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 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,
    26
    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. It is the case of the State that the
    appellant had knowledge that the notes were
    counterfeit and fake notes and was in conscious
    possession of the fake notes for 15 days. For
    framing charges, what is required is prima facie
    satisfaction. Offence relating to counterfeit
    notes is a grave offence and not to be viewed
    lightly.
  19. In the statement by the first accused, he
    has stated that he had come to Ahmedabad 15 days
    earlier. At that time, he had told the appellant
    27
    that the fake notes are to be sold at cheap
    price and at present he may keep those notes
    with him. He further states that he had brought
    these notes from the residence of the appellant
    and that he had been caught while he was selling
    the notes at cheap price.
  20. In the first statement given by the
    appellant dated 11.04.1996 relied upon by the
    State, the appellant is credited with knowledge
    of the fact that the bag contained counterfeit
    notes was left by the first accused at
    appellant’s residence and they were to be sold
    at cheap price and it was kept at his residence
    for some days.
  21. Subsequently, his statement was again
    recorded on 10.07.1996. Therein, he inter alia
    states that the first accused told him that the
    28
    bag contains files relating to land deals and it
    contained valuables.
  22. In further questioning on 30.08.1996, he
    inter alia states that because of his
    acquaintance with Ravi, he became acquainted
    with the first accused and that he had left the
    bag at his residence saying that the bag
    contained important documents.
  23. These are the materials in short which were
    relied on by the State to sustain the Order
    framing the charge against the appellant. That
    is to say, the statements given by the appellant
    under Section 161 and the statement also given
    by the co-accused.
  24. At the stage of framing the charge in
    accordance with the principles which have been
    29
    laid down by this Court, what the Court is
    expected to do is, it does not act as a mere
    post office. The Court must indeed sift the
    material before it. The material to be sifted
    would be the material which is produced and
    relied upon by the prosecution. 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.
    All that is required is, the Court must be
    satisfied that with the materials available, a
    case is made out for the accused to stand trial.
    A strong suspicion suffices. However, a strong
    suspicion must be founded on some material. The
    material must be such as can be translated into
    30
    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.
  25. Undoubtedly, this Court has in Suresh
    Budharmal Kalani Alias Pappu Kalani (supra),
    taken the view that confession by a co-accused
    containing incriminating matter against a person
    would not by itself suffice to frame charge
    against it. We may incidentally note that the
    Court has relied upon the judgment of this Court
    31
    in Kashmira Singh v. State of Madhya Pradesh7. We
    notice the observations, which have been relied
    upon, were made in the context of an appeal
    which arose from the conviction of the appellant
    therein after a trial. The same view has been
    followed undoubtedly in other cases where the
    question arose in the context of a conviction
    and an appeal therefrom. However, in Suresh
    Budharmal Kalani Alias Pappu Kalani (supra), the
    Court has proceeded to take the view that only
    on the basis of statement of the co-accused, no
    case is made out, even for framing a charge.
  26. The first and the foremost aspect is whether
    the appellant is justified in contending that
    the High Court fell into error in holding that
    the recovery was effected of the counterfeit
    currency from the residence of the appellant.
    7 AIR 1952 SC 159
    32
    This constituted an important consideration in
    the court rejecting the petition filed by the
    appellant.
  27. The learned Counsel for the State, in fact,
    did not seriously dispute the fact that there
    was no recovery of counterfeit currency effected
    from the residence of the appellant.
  28. Section 25 of the Indian Evidence Act, 1872
    (hereinafter referred to as ‘the Evidence Act’
    for short) renders inadmissible a confession
    made to a Police Officer. It declares in fact
    that no confession made to a Police Officer
    shall be proved as against a person accused of
    any offence. Section 26 of the Evidence Act on
    the other hand reads as follows:
    “26. Confession by accused while
    in custody of police not to be
    proved against him.—No confession
    made by any person whilst he is
    33
    in the custody of a police
    officer, unless it be made in the
    immediate presence of a
    Magistrate, shall be proved as
    against such person. “
    Explanation.—In this section
    “Magistrate” does not include the
    head of a village discharging
    magisterial functions in the
    Presidency of Fort St. George or
    elsewhere, unless such headman is
    a Magistrate exercising the
    powers of a Magistrate under the
    Code of Criminal Procedure, 1882
    (10 of 1882).”
  29. Section 27 of the Evidence Act carves out an
    exception.
  30. In Law of Evidence by M. Monir, 17th Edition,
    page 555, we notice the following discussion
    regarding the distinction between Section 25 on
    the one hand and Section 26 other hand:
    “… The section deals with
    confessions which are made not to
    Police Officers but to persons
    other than Police Officers, e.g.,
    34
    to a fellow prisoner, a doctor or
    a visitor, and makes such
    confessions inadmissible if they
    were made whilst the accused was
    in the custody of a Police
    Officer. In section 25 the
    criterion for excluding a
    confession is the answer to the
    question. “To whom was the
    confession made?” If the answer
    is that it was made to a Police
    Officer, the confession is
    absolutely excluded from
    evidence. On the other hand, the
    criterion adopted in section 26
    for excluding a confession is the
    answer to the question. “Under
    what circumstances was the
    confession made?” if the answer
    is that it was made whilst the
    accused was in the custody of a
    Police Officer, the law lays down
    that such confession shall be
    excluded from evidence, unless it
    was made in the immediate
    presence of a Magistrate.”
  31. Section 30 of the Evidence Act read as
    follows:
    35
    “30. Consideration of proved
    confession affecting person
    making it and others jointly
    under trial for same offence.—
    When more persons than one are
    being tried jointly for the same
    offence, and a confession made by
    one of such persons affecting
    himself and some other of such
    persons is proved, the Court may
    take into consideration such
    confession as against such other
    person as well as against the
    person who makes such confession.
    Explanation.—“Offence”, as used
    in this section, includes the
    abetment of, or attempt to commit
    the offence.”
  32. While on confession, it is important to
    understand as to what will amount to a
    confession. The Privy Council in Pakala Narayana
    Swami v. Emperor8:
    “… Moreover, a confession must
    either admit in terms the
    offence, or at any rate
    substantially all the facts which
    8(1939) PC 47 (20.01.1939)
    36
    constitute the offence. An
    admission of a gravely
    incriminating fact, even a
    conclusively incriminating fact
    is not of itself a confession,
    e.g. an admission that the
    accused is the owner of and was
    in recent possession of the knife
    or revolver which caused a death
    with no explanation of any other
    man’s possession. Some confusion
    appears to have been caused by
    the definition of ‘confession’ in
    Article 22 of Stephen’s “Digest
    of the Law of Evidence” which
    defines a confession as a
    admission made iafc (sic) any
    time by a person charged with a
    crime stating or suggesting the
    inference that he committed that
    crime. If the surrounding
    articles are examined it will be
    apparent that the learned author
    after dealing with admissions
    generally is applying himself to
    admissions in criminal cases, and
    for this purpose defines
    confessions so as to cover all
    such admissions, in order to have
    a general term for use in the
    three following articles,
    confession secured by inducement,
    made upon oath, made under a
    promise of secrecy. The
    37
    definition is not contained in
    the Evidence Act, 1872: and in
    that Act it would not be
    consistent with the natural use
    of language to construe
    confession as a statement by an
    accused “suggesting the inference
    that he committed” the crime.”
  33. This view of the Privy Council has gained
    acceptance of this Court in many decisions. They
    include Palvinder Kaur v. State of Punjab9 and
    Veera Ibrahim v. State of Maharashtra10.
  34. A Full Court of this Court, in the decision
    in M.P. Sharma and 4 others v. Satish Chandra,
    Distt. Magistrate, Delhi and 4 others11
    ,
    considered the scope of the expression contained
    in Article 20(3) of the Constitution of India
    which mandates that no person accused of any
    9 AIR 1952 SC 354
    10 AIR 1976 SC 1167
    11 AIR 1954 SC 300
    38
    offence shall be compelled to be a witness
    against himself:
    “Broadly stated the guarantee in
    Art.20(3) is against “testimonial
    compulsion”. But there is no
    reason to confine it to the oral
    evidence of a person standing his
    trial for an offence when called
    to the witness-stand. The
    protection afforded to an accused
    in so far as it is related to the
    phrase “to be a witness” is not
    merely in respect of testimonial
    compulsion in the Court room but
    may well extend to compelled
    testimony previously obtained
    from him. It is available,
    therefore, to a person against
    whom a formal accusation relating
    to the commission of an offence
    has been levelled which is the
    normal course may result in
    prosecution.
    Considered in this light, the
    guarantee under Article 20(3)
    would be available to person
    against whom A First Information
    Report has been recorded as
    accused therein. It would extend
    to any compulsory process for
    production of evidentiary
    documents which ae reasonable
    39
    likely to support a prosecution
    against them.”
    (Emphasis supplied)
  35. In State of Bombay v. Kathi Kalu Oghad12, a
    Bench of 11 learned Judges of this Court had an
    occasion to consider the true width of the
    expression “person accused of an offence”.
    Speaking on behalf of the majority, Sinha, C.J.,
    held as follows:
    “14. In this connection the
    question was raised before us
    that in order to bring the case
    within the prohibition of clause
    (3) of Article 20, it is not
    necessary that the statement
    should have been made by the
    accused person at a time when he
    fulfilled that character; it is
    enough that he should have been
    an accused person at the time
    when the statement was sought to
    be proved in court, even though
    he may not have been an accused
    person at the time he had made
    that statement. The correctness
    12 AIR 1961 SC 1808
    40
    of the decision of the
    Constitution Bench of this Court
    in the case of Mohamed
    Dastagirv. State of
    Madras [(1960) 3 SCR 116] was
    questioned because it was said
    that it ran counter to the
    observations of the Full Court
    in Sharma case [(1954) SCR 1077].
    In the Full Court decision of
    this Court this question did not
    directly arise; nor was it
    decided. On the other hand, this
    Court, in Sharma case [(1954) SCR
    1077] held that the protection
    under Article 20(3) of the
    Constitution is available to a
    person against whom a formal
    accusation had been levelled,
    inasmuch as a First Information
    Report had been lodged against
    him. Sharma case [(1954) SCR
    1077] therefore, did not decide
    anything to the contrary of what
    this Court said in Mohamed
    Dastagir v. State of
    Madras [(1960) 3 SCR 116]. The
    latter decision in our opinion
    lays down the law correctly.
  36. In order to bring the
    evidence within the inhibitions
    of clause (3) of Article 20 it
    must be shown not only that the
    41
    person making the statement was
    an accused at the time he made it
    and that it had a material
    bearing on the criminality of the
    maker of the statement, but also
    that he was compelled to make
    that statement. …”
    (Emphasis supplied)
  37. The Court also laid down its conclusions in
    paragraph-16:
    ”16. In view of these
    considerations, we have come to
    the following conclusions:
    (1) An accused person cannot be
    said to have been compelled to be
    a witness against himself simply
    because he made a statement while
    in police custody, without
    anything more. In other words,
    the mere fact of being in police
    custody at the time when the
    statement in question was made
    would not, by itself, as a
    proposition of law, lend itself
    to the inference that the accused
    was compelled to make the
    statement, though that fact, in
    conjunction with other
    circumstances disclosed in
    42
    evidence in a particular case,
    would be a relevant consideration
    in an enquiry whether or not the
    accused person had been compelled
    to make the impugned statement.
    (2) The mere questioning of an
    accused person by a police
    officer, resulting in a voluntary
    statement, which may ultimately
    turn out to be incriminatory, is
    not “compulsion”.
    (3) “To be a witness” is not
    equivalent to “furnishing
    evidence” in its widest
    significance; that is to say, as
    including not merely making of
    oral or written statements but
    also production of documents or
    giving materials which may be
    relevant at a trial to determine
    the guilt or innocence of the
    accused.
    (4) Giving thumb impressions or
    impressions of foot or palm or
    fingers or specimen writings or
    showing parts of the body by way
    of identification are not
    included in the expression “to be
    a witness”.
    (5) “To be a witness” means
    imparting knowledge in respect of
    relevant facts by an oral
    statement or a statement in
    43
    writing, made or given in court
    or otherwise.
    (6) “To be a witness” in its
    ordinary grammatical sense means
    giving oral testimony in court.
    Case law has gone beyond this
    strict literal interpretation of
    the expression which may now bear
    a wider meaning, namely, bearing
    testimony in court or out of
    court by a person accused of an
    offence, orally or in writing.
    (7) To bring the statement in
    question within the prohibition
    of Article 20(3), the person
    accused must have stood in the
    character of an accused person at
    the time he made the statement.
    It is not enough that he should
    become an accused, any time after
    the statement has been made.”
    (Emphasis supplied)
  38. Section 161 of the Cr.PC has the following
    marginal note:
    “Examination of witnesses by
    police”
    44
  39. Can a person, who is accused of an offence,
    be examined under Section 161 of the Cr.PC? As
    we have seen, when a person is named as an
    accused in First Information Report, he would
    stand in the shoes of an accused person. Does
    not the marginal note of Section 161 of the
    Cr.PC confine the power to the Police Officer to
    examine the witnesses and will it be denied to
    him qua a person who is already named as an
    accused? These questions are no longer res
    integra. In Nandini Satpathy v. P.L. Dani and
    another13, a Bench of three learned Judges was
    dealing with a case which arose from proceedings
    initiated against the appellant therein under
    Section 179 of the IPC. In the course of the
    judgment, speaking on behalf of the Bench, this
    is what Justice V.R. Krishna Iyer had to say:
    13 AIR 1978 SC 1025
    45
    “32. We will now answer the
    questions suggested at the
    beginning and advert to the
    decisions of our Court which set
    the tone and temper of the
    “silence” clause and bind us
    willy-nilly. We have earlier
    explained why we regard Section
    161(2) as a sort of parliamentary
    commentary on Article 20(3). So,
    the first point to decide is
    whether the police have power
    under Sections 160 and 161 of the
    CrPC to question a person who,
    then was or, in the future may
    incarnate as, an accused person.
    The Privy Council and this Court
    have held that the scope of
    Section 161 does include actual
    accused and suspects and we
    deferentially agree without
    repeating the detailed reasons
    urged before us by counsel.”
    (Emphasis supplied)
  40. Thereafter, after referring to Pakala
    Narayana Swami (supra), regarding the scope of
    the word ‘confession’ the Court held inter alia
    as follows:
    46
    “33. … We hold that “any person
    supposed to be acquainted with
    the facts and circumstances of
    the case” includes an accused
    person who fills that role
    because the police suppose him to
    have committed the crime and
    must, therefore, be familiar with
    the facts. The supposition may
    later prove a fiction but that
    does not repel the section. Nor
    does the marginal note
    “examination of witnesses by
    police” clinch the matter. A
    marginal note clears ambiguity
    but does not control meaning.
    Moreover, the suppositions
    accused figures functionally as a
    witness. “To be a witness”, from
    a functional angle, is to impart
    knowledge in respect of a
    relevant fact, and that is
    precisely the purpose of
    questioning the accused under
    Section 161 CrPC. …”
  41. Thus, quite clearly, a person who stands in
    the shoes of the accused being named in the
    First Information Report, can be examined by the
    47
    Police Officer under Section 161 of the Cr.PC.
    The next question however is, as to whether the
    statement given by a person who stands in the
    shoes of an accused and who gives a statement,
    whether the statement is admissible in law? It
    is here that Section 162 of the Code comes into
    play:
    “162. Statements to police not to
    be signed: Use of statements in
    evidence.
    (1) No statement made by any
    person to a police officer in the
    course of an investigation under
    this Chapter, shall, if reduced
    to writing, be signed by the
    person making it; nor shall any
    such statement or any record
    thereof, whether in a police
    diary or otherwise, or any part
    of such statement or record, be
    used for any purpose, save as
    hereinafter provided, at any
    inquiry or trial in respect of
    any offence under investigation
    48
    at the time when such statement
    was made: Provided that when any
    witness is called for the
    prosecution in such inquiry or
    trial whose statement has been
    reduced into writing as
    aforesaid, any part of his
    statement, if duly proved, may be
    used by the accused, and with the
    permission of the Court, by the
    prosecution, to contradict such
    witness in the manner provided by
    section 145 of the Indian
    Evidence Act, 1872 (1 of 1872 );
    and when any part of such
    statement is so used, any part
    thereof may also be used in the
    re- examination of such witness,
    but for the purpose only of
    explaining any matter referred to
    in his cross- examination.
    (2) Nothing in this section shall
    be deemed to apply to any
    statement falling within the
    provisions of clause (1) of
    section 32 of the Indian Evidence
    Act, 1872 (1 of 1872), or to
    affect the provisions of section
    27 of that Act. Explanation.- An
    omission to state a fact or
    circumstance in the statement
    referred to in sub- section (1)
    49
    may amount to contradiction if
    the same appears to be
    significant and otherwise
    relevant having regard to the
    context in which such omission
    occurs and whether any omission
    amounts to a contradiction in the
    particular context shall be a
    question of fact.”
  42. A Bench of three learned Judges of this
    Court in Mahabir Mandal and others v. State of
    Bihar14, had this to say:
    “39. Coming to the case of Kasim,
    we find that there is no reliable
    evidence as may show that Kasim was
    present at the house of Mahabir on
    the night of occurrence and took
    part in the disposal of the dead
    body of Indira. Reliance was placed
    by the prosecution upon the
    statement alleged to have been made
    by Kasim and Mahadeo accused at the
    police station in the presence of
    Baijnath PW after Baijnath had
    lodged report at the police
    station. Such statements are
    legally not admissible in evidence
    and cannot be used as substantive
    14 AIR 1972 1331
    50
    evidence. According to Section 162
    of the Code of Criminal Procedure,
    no statement made by any person to
    a police officer in the course of
    an investigation shall be signed by
    the person making it or used for
    any purpose at any enquiry or trial
    in respect of any offence under
    investigation at the time when such
    statement was made. The only
    exception to the above rule is
    mentioned in the proviso to that
    section. According to the proviso,
    when any witness is called for the
    prosecution in the enquiry or
    trial, any part of his statement,
    if duly proved, may be used by the
    accused and with the permission of
    the court by the prosecution, to
    contradict such witness in the
    manner provided by Section 145 of
    the Indian Evidence Act and when
    any part of such statement is so
    used, any part thereof may also be
    used in the re-examination of such
    witness for the purpose only of
    explaining any matter referred to
    in his cross-examination. The above
    rule is, however, not applicable to
    statements falling within the
    provisions of Clause 1 of Section
    32 of the Indian Evidence Act or to
    affect the provisions of Section 27
    of that Act. It is also well
    51
    established that the bar of
    inadmissibility operates not only
    on statements of witnesses but also
    on those of the accused
    (see Narayan Swami v. Emperor [AIR
    1939 PC 47]). Lord Atkin, in that
    case, while dealing with Section
    162 of the Code of Criminal
    Procedure observed:
    “Then follows the section in
    question which is drawn in the
    same general way relating to ‘any
    person.’ That the words in their
    ordinary meaning would include
    any person though he may
    thereafter be accused seems
    plain. Investigation into crime
    often includes the examination of
    a number or persons none of whom
    or all of whom may be suspected
    at the time. The first words of
    the section prohibiting the
    statement if recorded from being
    signed must apply to all the
    statements made at the time and
    must therefore apply to a
    statement made by a person
    possibly not then even suspected
    but eventually accused.”
    Reference may also be made to
    Section 26 of the Indian Evidence
    Act, according to which no
    confession made by any person
    52
    whilst he is in the custody of a
    police officer, unless it be made
    in the immediate presence of a
    Magistrate, shall be proved against
    such person. There is nothing in
    the present case to show that the
    statements which were made by Kasim
    and Mahadeo accused on September
    18, 1963, at the police station in
    the presence of Baijnath resulted
    in the discovery of any
    incriminating material as may make
    them admissible under Section 27 of
    the Indian Evidence Act. As such,
    the aforesaid statements must be
    excluded from consideration.”
    (Emphasis supplied)
  43. Therefore, the combined effect of these
    provisions can be summarized as follows:
    Unless a person is accused of an offence, he
    cannot claim the protection of Article 20(3) of
    the Constitution of India.
  44. Such a person, viz., person who is named in
    the FIR, and therefore, the accused in the eyes
    of law, can indeed be questioned and the
    53
    statement is taken by the Police Officer. A
    confession, which is made to a Police Officer,
    would be inadmissible having regard to Section
    25 of the Evidence Act. A confession, which is
    vitiated under Section 24 of the Evidence Act
    would also be inadmissible. A confession unless
    it fulfills the test laid down in Pakala
    Narayana Swami (supra) and as accepted by this
    Court, may still be used as an admission under
    Section 21 of the Evidence Act. This, however,
    is subject to the bar of admissibility of a
    statement under Section 161 of the Cr.PC.
    Therefore, even if a statement contains
    admission, the statement being one under Section
    161, it would immediately attract the bar under
    Section 162 of the Cr.PC.
  45. Bar under Section 162 Cr.PC, no doubt,
    operates in regard to the statement made to a
    54
    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. We need not, however, say
    anything more.
  46. In Central Bureau of Investigation v. V.C.
    Shukla and others15, a Bench of three learned
    Judges, after approving Pakala Narayana Swami
    (supra), had occasion to consider the
    distinction between confession and admission.
    This Court went on to hold as follows:
    “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
    15 AIR 1998 SC 1406
    55
    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 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
    56
    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.””
    (Emphasis supplied)
    57
  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
    58
    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
    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.”
    59
  49. In Bharat Singh and others v. Mst.
    Bhagirathi16, 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:
    “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
    16 AIR 1966 SC 405
    60
    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 and others (supra), it becomes clear
    as to what constitutes confession and how if it
    does 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.
    61
    However, even if it is an admission, if it is
    made in the course of investigation under the
    Cr.PC to a Police Officer, then, it will not be
    admissible under Section 162 of the Cr.PC as it
    clearly prohibits the use of statement made to a
    Police Officer under Section 161 of the Cr.PC
    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.
  51. 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.
    62
    This is clear from the statement as also letter
    dated 10.08.1996 (Annexure R/6) produced by the
    respondent. It is clearly during the course of
    the investigation. Even if it does contain
    admissions by virtue of Section 162 and as
    interpreted by this Court in V.C. Shukla and
    others (supra), such admissions are clearly
    inadmissible.
  52. 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.
    63
  53. We also notice the following statement in
    judgment rendered by Bench of seven learned
    Judges in Haricharan Kurmi v. Sate of Bihar17:
    “As a result of the provisions
    contained in S.30, Evidence Act,
    the confession of a co-accused
    has 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 S.30, the fact
    remains that it is not evidence
    as defined by S.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
    17 AIR 1964 SC 1184 (quoted portion at page 1184)
    64
    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.
    Thus, the confession of a coaccused person cannot be treated
    as substantive evidence and can
    be pressed into service only when
    the Court is inclined to accept
    other evidence and feels the
    necessity of seeking for an
    assurance in support of its
    conclusions deducible from the
    said evidence. In criminal cases
    where the other evidence adduced
    against an accused person is
    wholly unsatisfactory and the
    prosecution seeks to rely on the
    confession of a co-accused
    person, the presumption of
    innocence which is the basis of
    criminal jurisprudence assists
    the accused person and compels
    the Court to render the verdict
    that the charge is not proved
    against him, and so, he is
    entitled to the benefit of
    doubt.”
    65
  54. 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. Accordingly, we allow the appeal and
    the petition filed under Section 482 of the
    Cr.PC. The Order impugned passed by the Sessions
    Judge framing the charge against the appellant
    66
    will stand set aside and the appellant will
    stand discharged.
    …………………………………………………
    [ASHOK BHUSHAN, J.]
    …………………………………………………
    [K.M. JOSEPH, J.]
    NEW DELHI;
    APRIL 24, 2019.
    67