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2013 DIGILAW 2152 (BOM)

Asadjamal @ Irfan @ Dada v. State of Maharashtra

2013-10-14

ABHAY M.THIPSAY

body2013
Judgment : 1. Heard Mr. Shendurnikar, learned Counsel, instructed by Mr. Patil Indrale, learned Counsel for the applicant and Mr. Muley, learned Addl. P.P. for the respondent - State. 2. By consent, admittedand taken up for hearing forthwith. By consent, calling for record and proceedings, dispensed with. 3. The applicant is one of the accused in Sessions Case No.51 of 2012, pending before the Additional Sessions Judge, at Gangakhed. It appears that the said case has been clubbed together with Sessions Case No.32 of 2012 and both these cases are being tried together. 4. The applicant made an application for discharge, as contemplated under Section 227 of the Code of Criminal Procedure, contending that there was absolutely no material for proceeding against him. The learned Additional Sessions Judge, however, by his order dated 30.8.2013, rejected the said application and directed charge to be framed against all the accused persons, including the applicant, with respect to the offences punishable under Section 489B and 420 r.w. 34 of I.P.C. Being aggrieved by the said order, the applicant has approached this Court, by invoking its revisional jurisdiction. 5. With the assistance of the learned Counsel for the applicant and the learned Addl. P.P., I have gone through the revision application and the annexures thereto. I have also carefully gone through the order passed by the learned Additional Sessions Judge, refusing to discharge the applicant. 6. The substance of the prosecution case, as revealed from the police report and accompanying documents, may be stated, as under: That, on 16.4.2012, the brotherinlaw of JanardhanMangnale, owner of 'Ganesh Kirana Shop', was given two counterfeit currency notes of Rs.1000 denomination, by a customer. At that time, JanardhanMangnale was not in the shop. When, he came, his brotherinlaw Ishwarshowed him the said currency notes. He saw the notes and suspected them to be counterfeit. The matter was reported to the police and the person, who gave the said notes, was identified. The name of that person is ImranShaikh Naeem accused No.1 in the said case. Some other counterfeit currency notes were also recovered from his possession, in the course of investigation and it was also revealed that he had earlier also circulated some counterfeit currency notes to some other traders. In the course of investigation, allegedly, on the basis of information disclosed by the said ImranShaikh Naeem, the applicant appears to have been arrested. Some other counterfeit currency notes were also recovered from his possession, in the course of investigation and it was also revealed that he had earlier also circulated some counterfeit currency notes to some other traders. In the course of investigation, allegedly, on the basis of information disclosed by the said ImranShaikh Naeem, the applicant appears to have been arrested. Subsequently, two more persons, who are the accused in the supplementary chargesheet that came to be filed, i.e. SyedAbdul Haque Syed Khaja and MunirAlam Sukhimiya were also arrested and one of them also allegedly referred to the present applicant, as a person to whom, he had given counterfeit notes for circulation. 7. It is not in dispute that after arrest of the applicant, nothing further incriminating, could be collected against him, in the course of the investigation. 8. It was contended before the learned Additional Sessions Judge that the case against the applicant, being based solely on the alleged confession made by a coaccused before the police, the same could not be taken into consideration against the applicant, for framing a charge. This contention, as aforesaid, was turned down by the learned Additional Sessions Judge. 9. I have carefully gone through the impugned order. That there is no material against the applicant is very much clear from the order itself. The reasoning of the learned Additional Sessions Judge, may be best reproduced from the impugned order itself: "I find that under section 26 of Evidence Act, any statement made by accused while in police custody is not admissible against him. However, such a statement can be made admissible against other accused. As per section 30 of Evidence Act, when more persons than one are being tried jointly for the same offence and confession made by one of such person affecting himself and some other of such person is proved, the court may take into consideration such confession as against such other person as well as the person who makes the confession. Thus, I find that at this stage the statement made by accused Abdul Haque, can be taken into consideration." 10. This reasoning of the learned Additional Sessions Judge is entirely erroneous. Thus, I find that at this stage the statement made by accused Abdul Haque, can be taken into consideration." 10. This reasoning of the learned Additional Sessions Judge is entirely erroneous. His view that the confession which cannot be proved against the maker by virtue of section 25 and/or 26 of the Evidence Act, can be proved against co-accused, by virtue of section 30 of the Evidence Act, is patently erroneous. All that section 30 provides is that a confession, which can be proved against maker, may also be taken into consideration against the co-accused, who is being tried jointly with the maker of the confession. It does not provide that a confession, which is inadmissible against the maker of the confession, can be proved against a co-accused. Section 30 of the Evidence Act does not contain an exception to section 25 and/or 26 of the Evidence Act; but, it creates an exception to the Common Law rule that confession is evidence only against the maker. This rule is diluted by section 30, which says that apart from the maker, such confession, (in certain circumstances mentioned therein), can be taken into consideration against a co-accused also. To interpret section 30 of the Evidence Act, in a manner so as to make an inadmissible and irrelevant confession, which cannot be proved against the maker, provable against a co-accused, would be ridiculous. 11. The learned Additional Sessions Judge further observed that under Section 133 of the Evidence Act, 'an accomplice shall be a competent witness against an accused person.' He observed that the accused No.1 Abdul Haque is in a position of an accomplice and therefore, there was material to proceed against the applicant. This reasoning is also erroneous. The question of examining an accomplice would arise only after he is turned into an approver by grant of pardon. In this case, no pardon has been granted to Abdul Haque and, therefore, there would be no question of his being a competent witness against the applicant or other accused. As a mater of fact, he being an accused, obviously cannot be examined as a witness for the prosecution. 12. Except the statement, allegedly made by a co-accused to the police, while he was in the custody of the police, there is nothing else against the applicant. Such material cannot be taken into consideration, as the same can not be translated into evidence. 12. Except the statement, allegedly made by a co-accused to the police, while he was in the custody of the police, there is nothing else against the applicant. Such material cannot be taken into consideration, as the same can not be translated into evidence. 13. There were, therefore, no grounds for proceeding against the applicant. The order passed by the Additional Sessions Judge, refusing to discharge the applicant, is patently erroneous and needs to be interfered with. 14. The revision application is allowed. The impugned order, so far it relates to the applicant, is set aside. The applicant shall stand discharged. The learned Additional Sessions Judge shall proceed further with the trial, in accordance with law. Revision application is disposed of in the aforesaid terms.