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2011 DIGILAW 1436 (RAJ)

Naresh Yadav v. State of Rajasthan

2011-07-20

SANDEEP MEHTA

body2011
Hon'ble MEHTA, J.—Heard learned counsel for the petitioner and the learned Public Prosecutor. 2. The present petition has been filed challenging the order dated 15.5.2009 passed by the learned Additional District and Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur whereby the interrogation note of accused-petitioner Naresh Yadav has been admitted in evidence. 3. Before proceeding further, it would be appropriate to take note of few relevant dates, which are mentioned hereunder : 8th May, 2007 : FIR was registered at Police Station, Shyam Nagar, Jaipur for various offences including the offence u/Sec. 307 I.P.C. 14th August, 2007 : Two accused, namely, Hoshiyar Singh and Ramesh (petitioners No.2 and 3) were arrested. 3rd November, 2007 : Charge sheet No. 199/2007 was filed against three accused, namely, Hoshiyar Singh, Naresh and Narendra. 14th December, 2007 : Charges were framed against the aforesaid 3 accused. 23rd March, 2008 : Supplementary charge sheet was filed against accused Surendra @ Cheeku. 24th May, 2008 The petitioner was apprehended by Delhi Police in connection with FIR No. 25. 22nd August, 2008 The supplementary charge-sheet was filed against the petitioner No.1. 4. The petitioner (accused) is facing a trial before the trial Court for offence under Sections 307, 120-B, 452 IPC and Section 3/25 of the Arms Act. The prosecution was in the process of examining its witness Bachhu Singh, P.W. 26. The petitioner was apprehended by PW-26 Bachhu Singh in connection with another Criminal Case, at Delhi. Bachhu Singh recorded the interrogational statement of the petitioner on 24th May, 2008. The statement of Bachhu Singh was being recorded before the trial Court on 13th May, 2009 when the prosecution sought permission to exhibit the statement of the accused recorded by the above named police Officer in connection with another investigation being made by him. An objection was raised about the admissibility of this statement because as per the counsel for the petitioner, such statement would be hit by Section 24 and 25 of the Evidence Act. The said objection has been over ruled by the learned trial Court, holding that since the statement led to a disclose i.e. involvement of the petitioner in the present crime, therefore, the statement was one covered under Section 27 of the Evidence Act. The said objection has been over ruled by the learned trial Court, holding that since the statement led to a disclose i.e. involvement of the petitioner in the present crime, therefore, the statement was one covered under Section 27 of the Evidence Act. The trial Judge has also observed that since Bachhu Singh was not a Police Officer investigating the case in FIR No. 157/2007 against the petitioner, therefore, he could not be treated to be a Police Officer as defined in Section 25 of the Evidence Act. 5. It is relevant to mention here that in the supplementary charge-sheet filed against the petitioner, only the statements of police witnesses, namely, Vijendra Singh, Sanjeev Kumar and Bachhu Singh were filed as well as the interrogation note of the petitioner. Thus, as per the counsel for the petitioners, there was no new incriminating fact discovered by virtue of confessional statement of the petitioner recorded by witnesses Bachhu Singh and thus the said statement could not be covered under Section 27 of the Evidence act. Counsel for the petitioner submitted that on the objection regarding admissibility of interrogation being made, the learned trial judge by order dated 15th May, 2009 has finally decided that the said statement is admissible as against the petitioner, whereas the legal position is otherwise. It has been submitted that the statement is hit by Section 25. Reference in this regard has been made to the Judgment of the Apex Court rendered in Aher Raja Khima vs. State of Saurashtra, reported in AIR 1956 SC 217 and in Bhabani Shanker vs. State of Orissa reported in 2003 Cr.L.J. 2465, wherein it has been held that confession of guilt made in the presence of the Police Officer is not admissible, even if made before the Press. 6. In the case of J.A. Naidu vs. State of Maharashtra, reported in AIR 1979 SC 1537 , the Hon'ble Supreme Court was dealing with the situation wherein the Assistant Collector of Customs recorded the statement of the accused u/Sec. 108 of the Customs Act and at that time the Police Officers were present nearby. 7. Placing reliance on the aforesaid judgments, Mr. 7. Placing reliance on the aforesaid judgments, Mr. Ravi Yadav appearing on behalf of the petitioner has prayed that the conclusion arrived at by the learned trial Judge foreclosing the valid challenge of the petitioner to the admissibility of the confessional statement of the accused recorded by the Police Officer, was not at all justified. 8. Per contra, Mr. R.N. Sharma, learned counsel for the complainant and the learned Public Prosecutor have opposed the present petition and have supported the order passed by the learned Additional Sessions Judge (Fast Track) No.2, Jaipur City, Jaipur. 9. I have heard learned counsel for the parties and have perused the order impugned as well as the material placed on record by the counsel for the petitioner. I have also given my thoughtful consideration to the judgments relied upon by the counsel for the petitioner. 10. Having heard learned counsel for the petitioner and the learned Public Prosecutor, this Court is of the opinion that Section 25 of the Evidence Act does not restrict its application to he Police Officer who is necessarily investigating the matter against the accused. Restriction on the admissibility has been imposed on a Police Officer. That apart, it is not the case of the prosecution that the statement of the petitioner given to PW-26 Bachhu Singh resulted into any incriminating discovery. Thus, the statement of the accused cannot be said to be admissible by virtue of Section 27 of the Evidence Act also. 11. On a careful consideration of the legal position, it can easily be concluded that as per Section 25 of the Evidence Act, the restriction which has been put on the admissibility of the statement is on a statement recorded by a Police Officer. It is immaterial if the Police Officer was investigating the case or not. The Hon'ble Apex Court, in the case of J.A. Naidu (supra) had an occasion to deal with the situation wherein the Custom Officers were recording the statements of a person under the provisions of the Customs Act and a Police Officer was present nearby. The Court held that the very presence of the Police Officer would bring the statement of a person otherwise admissible under Section 108 of the Customs Act within the mischief of Section 25 of the Evidence Act and would not be admissible. The Court held that the very presence of the Police Officer would bring the statement of a person otherwise admissible under Section 108 of the Customs Act within the mischief of Section 25 of the Evidence Act and would not be admissible. Therefore, when a statement recorded by a competent authority can be hit by the provisions of Section 25 of the Evidence Act merely because of the presence of a Police Officer, then, obviously the statement recorded by a Police Officer would definitely be hit by Section 25 of the Evidence Act. Thus, in the case at hand, the statement which is sought to be relied upon by the prosecution, was undisputedly recorded by a Police Officer and did not result into discovery of any incriminating fact, then a serious question would arise about the admissibility thereof. 12. Thus, in the opinion of this Court, the learned Additional Sessions Judge was not at all justified in foreclosing the accused from making an attack on the admissibility of the statement of Naresh Yadav recorded by Bachhu Singh Police Officer. In these circumstances, the order dated 15th May, 2009 impugned in this petition deserves to be set aside. 13. Resultantly, this petition succeeds. The order dated 15th May, 2009 impugned in this petition is set aside and it is directed that the petitioner shall be entitled to make all valid objections about the admissibility of the interrogation note/statement of Naresh Yadav recorded by PW-26 Bachhu Singh, at the time of final arguments of the case. The learned trial judge shall proceed to decide such objections, if raised, uninfluenced by its earlier order dated 15th May, 2009. 14. With the aforesaid observations, the petition stands disposed of.