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Strong suspicion based on materials which can be translated into evidence required while framing charge against accused
Dipakbhai Jagdishchandra Patel Vs State of Gujarat and Anr
CRIMINAL APPEAL NO.714 OF 2019
About/from the judgment:
"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"., said the Bench.
The Supreme Court has observed that a statement made by the accused to a police officer before the investigation commences, is admissible in evidence, if it contains only an admission [and not a confession].
The court observed that the bar under Section 162 CrPC operates in regard to the statement made to a Police Officer in between two points of time, viz., from the beginning of the investigation till the termination of the same.
However, even if it is an admission, if it is made in the course of investigation under the CrPC to a Police Officer, then, it will not be admissible under Section 162 of the CrPC as it clearly prohibits the use of statement made to a Police Officer under Section 161 of the CrPC 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."
It also observed that a person who is named in the FIR can indeed be questioned and the statement can be taken by the Police Officer under Section 161 CrPC. However, the bench added:
"This, however, is subject to the bar of admissibility of a statement under Section 161 of the CrPC. 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 CrPC."
The Supreme Court also observed that a strong suspicion would suffice at the stage of framing charge against the accused.
"However, a strong suspicion must be founded on some material. The material must be such as can be translated into 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."
While allowing the appeal, the bench discussed the law relating to framing of charge and discharge. It referred to judgments in State of Bihar v. Ramesh Singh, Union of India v. Prafulla Kumar Samal. The court said:
"At the stage of framing the charge in accordance with the principles which have been 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"
It observed that the Trial Court had relied on the statements given by the accused under Section 161 and the statement also given by the co-accused. The court, referring to Suresh Budharmal Kalani Alias Pappu Kalani vs. State of Maharashtra, said that confession by a co-accused containing incriminating matter against a person would not by itself suffice to frame charge against the accused.
Whether police can examine person named as accused in FIR U/S 161 of CRPC?
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.
40. 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 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 Code of Criminal Procedure. 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 Code of Criminal Procedure.
41. Bar Under Section 162 Code of Criminal Procedure, no doubt, operates in regard to the statement made to a 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.
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