Smt. Champa and Others vs State of U.P.

P.N. Bakshi, J.—The applicants are being tried for offences u/s 120B read with Sections 380, 381/411, and 414 IPC in the court of Addl. Chief Judicial Magistrate, Lucknow.

According to the prosecution case a theft of 64 valuable paintings was committed at the house of one Sri Dharam Pratap between 22nd January, 1971 and 3rd May, 1971 for which a report was lodged at police station Dasaswamedh on 19th May, 1971. The case was investigated by the local police. Since they reported that the case was undetectable, investigation was handed over to the CBI on 9th December, 1977. It appears from a scrutiny of the case diary which has been summoned by this Court that during the course of investigation Gur Prasad and Hira Singh turned approvers and were granted pardons. Their statements were recorded which disclosed the complicity of the accused in the crime in question. On 9th May, 1979, a charge-sheet was submitted by the CBI and the Addl Chief Judicial Magistrate, Lucknow took cognizance of the offence.

Very briefly put the prosecution case as disclosed in the investigation for which the charge-sheet has been submitted is that the accused applicants entered into a criminal conspiracy with the object of committing theft of valuable Mughal Paintings from the house of Dr. Dharam Pratap and disposed them of to various antique dealers. The charge-sheet gives the details of the part assigned to each accused in pursuance of the aforesaid criminal conspiracy.

It appears that on the submission of the charge-sheet a petition No. 8232 of 1979 was filed u/s 407 Code of Criminal Procedure in this High Court and a stay order was obtained. As a result of the stay order, the trial was held up till 14th May, 1981, when the above mentioned petition was dismissed. The instant petition u/s 482 Code of Criminal Procedure was thereafter filed on 16th December, 1981 and again an order staying further proceedings in the trial was obtained from this Court.

I have heard learned Counsel for the parties and have also perused the case diary and the material on record.

Learned Counsel for the applicants has submitted that the statements which had been made during the course of investigation to the investigating Officer by Gur Prasad and Hira Singh who has turned approvers and had been granted conditional pardons by the Chief Judicial Magistrate on 25-4-79 were hit by Section 25 of the Evidence Act and they could not be taken into account by the investigating agency while submitting the charge sheet before the court. In support of his contention, learned Counsel has relied upon two decisions. The first decision cited by him is Aghnoo Nagesia v. State of Bihar 1965 AWR 648 and the second decision relied upon is Badri v. State of U.P. 1973 AWR 142.

In order to decide this question at the hand, it is necessary to consider the definition of the word ''Court'' and the word ''Evidence'' as defined in the Indian Evidence Act.

Section 3, the interpretation clause of the Indian Evidence Act defines the word ''court'', thus:

Court, includes all Judges and Magistrates and all persons, except arbitrators, legally authorised to take evidence.

As to the definition of the word ''Evidence'' it means and includes:

(1) All statements which the Court permits or requires to be made before it by witnesses, in-relation to matters of fact under inquiry; such statements are called oral evidence;

(2) All documents produce for the inspection of the court; such documents are called documentary evidence.

Reading both these words together, there can be so doubt that in order to bring a statement of witnesses within the category of "evidence" it is necessary that the same should be "made before a court". If the statement is not made before the court, then it can not be treated as evidence. With this back ground we may now proceed to examine Section 25 of the Indian Evidence Act. Section 25 relates to a confession made to a police officer during the course of investigation. Under this section no confession made to the police officer shall be ''proved'' as against a person accused of an offence. In this definition the word ''prove'' is again important. Section 3 of the Indian Evidence Act defines the word ''proved'', thus:

Section 3: A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.

Here again it is significant to note that proof of a fact can be given only before a court and not otherwise. In other words if a confession is made to a police officer then u/s 25 of the Indian Evidence Act, such a confession can not be proved before a court of law against the person, accused of any offence for which he is standing his trial.

Section 27 of the Evidence Act relates to how much of information received from an accused can be proved against him. According to this section when any fact is deposed to as discovered in sequence of the information received from a person, accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not, as related distinctly to the fact thereby discovered may be proved. This section thus lays down the limits to which the statement made to a police officer can be proved in evidence recorded by a court of law. Reading all these sections together, there can be no doubt that the bar of Sections 25 and 27 of the Evidence Act relate to a stage when evidence is recorded before a court and a fact is sought to be prove against the accused. At this stage when a charge sheet is submitted by the Investigating Agency, the statements recorded during the course of investigation cannot be said to be ''evidence'' in the case on the basis of which an accused can be convicted or acquitted. The preliminary stage of investigation is always conducted by either the local police or by the CBI, whatever statements are recorded during the course of investigation are taken into account by the Investigating Agency in submitting a charge-sheet. If in the opinion of the Investigating Agency these statements make out a prima-facie case, a charge-sheet is submitted, if not, then it results in filing of a final report. Statements made during the investigation whether inculpatory or exculpatory whether in the nature of confession or not, can not be excluded from consideration by the Investigating Agency, while submitting a charge-sheet. The bar of Sections 25 and 27 of the Evidence Act applies to a stage when the case is being tried by a court before whom evidence is recorded.

Learned Counsel was unable to show me a single case directly on point to support his submission that such statements made during the course of investigation must be excluded from consideration, since they were hit by Sections 25 and 27 of the Evidence Act and on its basis no charge-sheet can be submitted. For the reasons given above, I do not find any merit in this submission.

The decision reported in 1965 AWR 648 referred to above runs as follows:

The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Confession is a species of admission, and it is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it if, its admissibility is not excluded by some provision of law. Section 25 is imperative, and a confession made to a police officer under no circumstances is admissible in evidence against the accused. I have examined the facts in this Supreme Court case. This decision no where lays down that the statements which are made during the course of investigation to a police officer can not be taken into consideration by the Investigating Agency in submitting a charge-sheet against the accused.

The next case relied upon by learned Counsel is a single Judge decision of this Court, report in 1973 AWR 142. In this case the observation made by a learned single Judge was as follows:

Where the entire FIR contains only a confession pure and simple it is hit by Section 25 and no part of it is admissible in evidence as an admission u/s 21.

The above observation is clear enough to indicate that the purpose for which this decision has been cited has no applicability at all to the facts of the present case.

Counsel for the applicants has next argued that Section 386 of the Code of Criminal Procedure bars the Court below from taking cognizance of the offence u/s 411/414 IPC. The argument raised was that the theft is alleged to have taken place between 22nd Jan. 1971 and 3rd May, 1971. The first information report of the incident was lodged on 19th May, 1971 but the charge-sheet has been submitted on 19th January, 1979. The argument further is that on the date when the charge-sheet was submitted Code of Criminal Procedure Amending Act II of 1973 had come into force, and the maximum period of limitation within which cognizance could be taken by the court for the aforesaid offences was 3 years which had passed. This argument is also devoid of any force In the first place the date of the offence would be the relevant date for determining the procedure to be followed in criminal trial. The offence in question was committed in the year 1971 therefore the Amending Act of 1973 would not be applicable.

In the second place even if it is accepted that the Code of Criminal Procedure 1973 was applicable to the instant case, then the position would be that the charge-sheet also indicates along with other offences, the offence u/s 120B. Details of the offence u/s 120B are given in paras 3 and 4 of the charge-sheet. For an offence u/s 380/381 IPC the maximum sentence which can be awarded is 7 years. u/s 468(3) Code of Criminal Procedure the period of limitation is to be determined with reference to the offence which is punishable with more severe punishment. In these circumstances, neither of the three sub-clauses of Sub-section (2) of Section 468 Code of Criminal Procedure would be applicable to the present case.

I would not like to express any final opinion on the merits of the offence u/s 380/381 IPC as that is likely to prejudice the case of the applicant. But the entire case diary has been perused by me including the statement of two of the approvers Gur Prasad and Hira Singh. The charges Under Sections 380/381 IPC are coupled with Section 120B IPC, and cannot be said to be groundless. I am thus not satisfied that any illegality has been committed in the submission of the charge-sheet or by the court below in taking cognizance of the offence.

Lastly it has been argued that there has been considerable delay in the submission of the charge-sheet, the offence in question was committed in the year 1971. and it will not be in the cause of justice to prosecute the applicants now at this belated stage. I am not impressed with this submission also in view of the facts narrated below. It is true that the offence in question is alleged to have been committed between 22nd Jan. 1971 and 3rd May, 1971. It is further true that the First Information Report of the incident was lodged on 19th May, 1971. The matter was being investigated into by local police. It is clear from the record that the investigation of this offence was continued by the local police for several years and they declared the case as undetectable. On 9th Feb. 1977, the CBI was entrusted with the investigation of the case and the charge-sheet was submitted within 2 years i.e. on 19th January 1979. It is clear from para 11 of the counter-affidavit that the accused filed petition No. 8232 of 1979 u/s 407 Code of Criminal Procedure in this Court. They obtained stay-order and were successful in holding of the trial up to 14th May, 1981, when their petition was dismissed. Thereafter again on 16th December, 1981, the instant application u/s 482 Code of Criminal Procedure was filed and a stay order was again obtained as a result of which the entire proceedings in the court below are stayed till today. It is thus clear that the accused themselves by adopting dilatory tactics had delayed the trial of the case. It does not, therefore, lie in their mouth to say that the trial has been belated and the proceedings should be quashed on this ground.

For the reasons given above, I am fully satisfied that there is no merit in this application u/s 482 Code of Criminal Procedure, and it deserves to be dismissed. The case diary shall be returned to the Standing Counsel and the court below is directed to proceed expeditiously with the trial.