Anoop Kumar Duggal vs State of U.P. and Others

Amar Saran and R.N. Misra, JJ.—By means of these five writ petitions which are being disposed of by this common order, the Petitioner has prayed for quashing the FI.Rs. dated 4.2.2009 in Case Crime No. 76 of 2009, 52 of 2009, F.I.Rs. dated 5.2.2009 in Case Crime No. 35 of 2009, 17 of 2009, F.I.R. dated 6.2.2009 in Case Crime No. 27 of 2009, under Sections 419, 420 and 380, I.P.C., 420, I.P.C., 420, I.P.C., 356, I.P.C. and 419, 420, I.P.C., lodged in Police Stations Dhoomanganj, George Town, Khuldabad, Attarsuiya and Shahganj, District Allahabad, respectively.

The allegations in the F.I.Rs. and the writ petitions are similar that two persons had duped certain ladies in some colonies in Allahabad town, after entering their homes usually in the absence of their spouses and then by overpowering the women by hypnotism or other means or by practising some deception and fraud and thereafter relieving them of their gold and jewellery. The F.I.Rs. were lodged against two unknown persons on 4.2.2009, 5.2.2009 and 6.2.2009 with respect to the incidents which took place in the houses of the victim women, who were divested of their jewellery.

On 13.2.2009 the co-accused Ashwani Kumar Duggal alias Kale was arrested by the police of Police Station Khuldabad, when the informant Govind Swaroop Khanna of Case Crime No. 35 of 2009 accompanied by his wife Geeta Khanna informed the Police Station that the two persons, who were involved in the incident at their house on 5.2.2009 had been seen in the Allahabad Railway Station compound near the motorcycle stand. At about 3 p.m., the co-accused Ashwani Kumar was picked up alongwith his motorcycle near the railway station motorcycle stand. The Petitioner is said to have made good his escape. From Ashwani''s possession, several items of gold and other jewellery were recovered. Some of the other persons, who had also been similarly duped by the accused persons and had lodged the aforementioned reports arrived there, and identified the co-accused as the person who had entered their house and also the jewellery which they had been relieved of. The co-accused Ashwani Kumar Duggal confessed that he relieved some women of their jewellery on 4th, 5th and 6th February, 2009 by means of the dupe practised by this co-accused, alongwith his brother, the Petitioner.

It is argued by the learned Counsel for the Petitioner that the statement made by the co-accused to the police is inadmissible u/s 25 of the Evidence Act and thus there is no evidence against the Petitioner. In this connection he has drawn our attention to a Division Bench decision of this Court in Jay Prakash v. State of U.P. (53) 2005 ACC 17, that the recoveries, if at all, could only be used against the co-accused Ashwani Kumar Duggal from whom they had been made u/s 27 or 8 of the Evidence Act, and could not be used against the Petitioner at all. Similarly reliance was placed in the case of Sahib Singh v. State of Haryana (35) 1997 ACC 355 (SC), for the proposition that the confessional statement must be substantially proved and could only be admitted in evidence, if it was not hit by Sections 24, 25 and 26 of the Evidence Act, i.e., if it had not been obtained by inducement or coercion and a confession to the police could not be admitted in evidence. Another case cited by the learned Counsel for the Petitioners was Bheru Singh v. State of Rajasthan (31) 1994 ACC 240 (SC), that the statement of an accused, which amounted to his conduct could also be used u/s 8 of the Evidence Act, but the said confessional statement could only be used against the particular accused and against no other accused. He has also placed reliance on another decision of the Apex Court in Ajay Singh v. State of Maharashtra (58) 2007 ACC 1061 (SC), for the proposition that extra-judicial confessions are of limited value and it is for the Court to act cautiously upon them. Another case cited by the learned Counsel for the Petitioner was Abdul Rashid v. State of Bihar (42) 2001 ACC 693 (SC), which again reiterated the position that confessions made before a police officer are inadmissible in evidence in Court.

Whilst broadly we do not dispute the legal propositions laid down in the aforesaid law reports, we think they have no application at all at this stage in the facts and circumstances of the present case. In our view the basic fallacy in the Petitioner''s line of argument is that for disposing of a petition under Article 226 of the Constitution of India, at this primary stage when the police has only commenced investigation, and arrested a co-accused from whom some recoveries have been made and who has disclosed the Petitioner''s complicity in the crime, the eventual legal admissibility of the material in possession of the police can be looked into. The issue of the legally admissible evidentiary value of the information with the police does not come up for consideration at this stage at all. Basically the value of the "evidence" is a matter to be considered after the commencement of the trial when evidence is led by the prosecution u/s 231 and the defence u/s 233 of the Code of Criminal Procedure in an offence exclusively triable by the Court of Sessions, or under Sections 242 and 243, Cr. P.C., by the prosecution and defence in the trial of a warrant case by a Magistrate instituted upon a police report or under Sections 244 and 247, Cr. P.C., in a warrant case instituted otherwise than on a police report. In summons cases triable by Magistrates the prosecution and defence evidence is led u/s 254, Cr. P.C., or u/s 264, Cr. P.C., in cases tried summarily by a Magistrate in Chapter XXI for trial of summons cases.

It is significant to note that at the stage of investigation, u/s 41(1)(a) of the Criminal Procedure Code, 1973, all that is required for a police officer arresting a person without an order from a Magistrate and without a warrant is only that person may be said to be concerned with a cognizable offence, or against him a reasonable complaint has been made or credible information has been received or reasonable suspicion exists, of his having been so concerned. The basic flaw in the Petitioner''s contention is that there is no requirement under this provision that admissible evidence must be available at the stage. Hence all the cases cited by the learned Counsel for the Petitioners, which relate to the appellate post trial stage are clearly inapplicable to the circumstances of the present case. At the initial stage, if a co-accused, who is arrested with stolen property or property illegally acquired in circumstances which raise suspicion of the commission of any offence and if this accused discloses a few names about the complicity of any other accused in the offence, could it not be said that there was prima facie material which would amount to "credible information" or give rise to a "reasonable suspicion" about the complicity of the accused whose name was disclosed by the arrested accused, for the police officer to act on the information even by arresting the accused, if the police officer considers it necessary. Moreover, such an arrest may also be necessary as the co-accused may be needed for interrogation or for effecting some further recoveries and it would be the grossest abuse of the process of the Court, if on the strength of such "learned" arguments about the ultimate admissibility or inadmissibility of the "evidence" in Court, this Court was to interfere with the investigation and to stay the hands of the police from arresting the accused or recording his statement or getting some recoveries effected at this initial stage in the investigation. In Adri Dharan Das Vs. State of West Bengal, the necessity of arrest for various aspects of investigation has been clarified. The said passage reads as follows:

Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application u/s 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application u/s 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done u/s 438 of the Code.

As an illustration, if a terrorist like Kasab whilst in custody names other persons also as being conspirators in a crime with him, would it not be a travesty of law if the police is precluded from taking action against those accused persons, because an argument is advanced in the High Court that any confession made in the presence of the Police Officer is inadmissible in evidence in view of Section 25 of the Evidence Act.

Another contention raised by the learned Counsel for the Petitioner was that different ages of the two persons, who were said to have been involved in the crimes, were mentioned in the different F.I. Rs. by the different ladies in the different localities of Allahabad, hence the identity of the Petitioner becomes questionable. In one F.I.R. their ages were described as 25-35 years, in another F.I.R. their ages were described as 30-40, in a third F.I.R. their ages were described as 40 or 45 years, in another F.I.R. they were only described as two persons were described as two youths in yet another F.I.R. We think that nothing material turns on these minor discrepancies made in describing the accused persons by the duped ladies to their husbands and the value of such discrepancies if any can be considered by the investigating agency or the trial court. Certainly such minor variations can provide no ground for quashing the F.I. Rs. at this stage.

It was next submitted that the Petitioner was physically handicapped and was suffering from ankylosis of the right foot, but this fact has not been noted in the F.I. Rs. In the first place this defence material cannot be looked at the stage vide Savita v. State of Rajasthan (2005) 12 SCC 340. We do not know whether the Petitioner''s leg was covered or uncovered as has been shown in the photograph annexed with the petition and from the mere fact that there was no mention that one of the accused, the Petitioner had some defect in his leg, provides no ground for raising such a dispute regarding his identity so as to justify quashing the investigation against him.

It was also argued that the Petitioner was living separately from his brother Ashwani Kumar Duggal with whom he was inimical and the Petitioner has a separate ration card. He had even moved an application on 24.12.2008 before the District Magistrate, Kanpur Nagar that he had separated himself from his brother. This again is a defence document which cannot be considered at this stage. Moreover we do not know whether the said document has been given by way of peshbandi or is a genuine document. At any rate, these are all matters for examination by the investigating agency or the trial court and cannot be examined in this writ petition. There is thus no substantiation of the Petitioner''s plea that the co-accused has falsely implicated him in this case because of some enmity.

The veracity of the incident is corroborated by the recovery of the various items of gold and jewellery from the possession of the co-accused, which different duped women were deprived of who have identified the co-accused as well as their jewellery which was recovered from him. This co-accused has nominated his brother, the Petitioner as also being involved in this offence. There was also no good reason for the police to falsely nominate the Petitioner if he had no hand in the offence.

We therefore, find no good ground for interfering with the investigation in this case, or for quashing the F.I.R. or for restraining the police from arresting the Petitioner. There is thus no force in these writ petitions, which are accordingly dismissed.