Supreme Court: Disclosure by One Accused U/S 27 of Evidence Act Can extend to the discovery of identity and involvement of Co- accused and recovery from that co-accused,

Section 27 of the Indian Evidence Act carves out a well-known exception to the general rule that confessions made to police are inadmissible. The Supreme Court in Mehboob Ali v. State of Rajasthan, 2015 SCC OnLine SC 1043, explained that when information supplied by an accused leads to the discovery of a new fact previously unknown to the police, that part of the statement becomes admissible in evidence. Significantly, the Court held that such discovery may also include the involvement and arrest of a co-accused.

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Supreme Court: Absconding Accused Not Entitled To Anticipatory Bail On Sole Ground Of Co-Accused' Acquittal

Although the aforesaid case dealt with quashing of the

proceedings entirely, the rationale applied therein can be

instrumental in the present case, for the reason that the High

Court, by way of the Impugned Order, granted anticipatory bail

to the Accused solely based on the fact that the prosecution failed

to produce any cogent evidence proving the involvement of the

accused persons named in the Subject FIR, in the alleged offence.

The High Court also took note of certain findings recorded in

favour of the Accused by the trial Court in its judgment dated

24.06.2023 acquitting the co-accused. However, the said

consideration is completely erroneous and perverse in an

anticipatory bail application, especially when the Accused had

been absconding for about 6 years and made a mockery of the

judicial process. In view of such circumstances, the Accused

cannot be permitted to encash on the acquittal of the co-accused

persons. Further, the High Court failed to consider that any

finding recorded by the trial Court either against or in favour of

the absconding Accused is wholly irrelevant for the purpose of

deciding the bail application as the prosecution was not required

to produce any evidence against the absconding Accused during

the trial of the co-accused persons, in view of the judgment in

Moosa (supra). {Para 49}

50. It is apposite to mention that granting the relief of anticipatory bail to an absconding accused person sets a bad precedent and sends a message that the law-abiding co-accused persons who stood trial, were wrong to diligently attend the process of trial and further, incentivises people to evade the process of law with impunity.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO…………………………OF 2026

(ARISING OUT OF SLP (CRIMINAL) NO. 15349 OF 2024)

BALMUKUND SINGH GAUTAM Vs STATE OF MADHYA PRADESH AND ANR.

Author: VIJAY BISHNOI, J.

Citation: 2026 INSC 157

DATED: 13th FEBRUARY, 2026.

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Supreme court: Confessional FIR cannot be used against Accused and a co-accused

 In Faddi (supra), this Court stated that:

"If the FIR given by the Accused contains any admission as defined in Section 17 of the Evidence Act there is no bar in using such an admission against the maker thereof as permitted Under Section 21 of the Act, provided such admission is not inculpatory in character. In the judgment their Lordships distinguished Nisar Ali case [  MANU/SC/0032/1957 : 1957:INSC:17 : AIR 1957 SC 366] in the following lines:

But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co-accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof. Of course, a confessional first information report cannot be used against the maker when he be an Accused and necessarily cannot be used against a co-accused. {Para 19}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3343 of 2025

Decided On: 05.08.2025

Narayan Yadav Vs. State of Chhattisgarh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

Author: J.B. Pardiwala, J.

Citation:2025 INSC 927, MANU/SC/1018/2025

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Supreme court: S.161 CrPC Statement Of Accused Implicating Co-Accused Cannot Be Considered At Stage Of Regular Or Anticipatory Bail

53. From the above exposition of law, the following emerges:

(i) A person who is Accused of an offence or named in the first information report, can be examined by the police and his statement may be recorded Under Section 161 of the Code of Criminal Procedure, as held in Nandini Satpathy (supra).

(ii) A statement of an Accused Under Section 161 of the Code of Criminal Procedure, would ordinarily be of two kinds, it may be inculpatory in nature or may be exculpatory in nature.

(iii) An inculpatory statement again may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all the facts which constitute the offence, respectively, as held in Pakala Narayana Swami (supra), then it amounts to confession.

(iv) Where such police statement of an Accused is confessional statement, the rigour of Section(s) 25 and 26 respectively will apply with all its vigour. A confessional statement of an Accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an Accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Since such confessional statements are rendered inadmissible by virtue of Section 25 of the Evidence Act, the provision of Section 30 would be of no avail, and no reliance can be placed on such confessional statement of an Accused to implicate another co-Accused.

(v) A confessional statement of one Accused implicating another co- Accused may be taken into consideration by the court against such co- Accused in terms of Section 30 of the Evidence Act, only at the stage of trial, where (1) the confession itself was relevant and admissible in terms of the Evidence Act; (2) was duly proved against the maker; (3) such confessional statement incriminates the maker along with the co- Accused and; (4) both the Accused persons in question are in a joint trial for the same offence.

(vi) Furthermore, because such confessional statements are not "evidence" in terms of Section 3 of the Evidence Act as held in Bhuboni Sahu (supra), such a confession as held in Kashmira Singh (supra) can only be pressed into consideration by the court as a Rule of prudence, to lend assurance to the other evidence against such co-Accused, provided that aforesaid ingredients or conditions of Section 30 read with Section(s) 24 to 29 of the Evidence Act, are fulfilled.

(vii) Where the police statement of an Accused is in the form of an admission, such inculpatory statement even if it implicates another co-Accused cannot be taken into consideration against such co-Accused in terms of Section(s) 17 read with 21 of the Evidence Act, as doing so would militate against the general principle, that an admission may be given as evidence against the maker alone. The exceptions to the aforesaid general principle carved out under the Evidence Act, do not permit the usage of such admission against a co-Accused in any scenario whatsoever.

(viii) Where the police statement of the Accused is an exculpatory statement i.e., it is neither a confession nor an admission, the statement being one Under Section 161, would immediately attract the bar Under Section 162 of the Code of Criminal Procedure, and the same may be used only for the very limited purpose provided in the Proviso for the purpose of contradiction or re- examination of such Accused person alone, as held in Mahabir Mandal (supra). Even if such exculpatory statement of one Accused, implicates another co-Accused, the same cannot be taken into consideration against such co-Accused, as there can be no credibility attached to an exculpatory statement of an Accused implicating another co-Accused, more particularly because it is neither required to be given on oath, nor in the presence of the co-Accused, the same cannot be tested by cross- examination and the exculpatory nature of such statement militates against the foundational principle that permits taking into consideration a statement of one Accused person against another co-Accused as explained in Bhuboni Sahu (supra), i.e., 'when a person admits guilt to its fullest extent either to a certain incriminating fact or substantially all the facts which constitute the offence, and in doing so exposes himself and in the process other co-Accused persons to the pain and penalties provided for the guilt, there exists a sincerity and semblance of sanction for the truthfulness of such statement'.

(ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements Under Section 161 of the Code of Criminal Procedure ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the Accused and the nature and gravity of the allegations, yet the aforesaid Rule only applies insofar as such statements Under Section 161 were made by witnesses and not Accused persons. A statement of an Accused Under Section 161 of the Code of Criminal Procedure stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an Accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the Accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the Accused person qua the allegations or for contradicting the Accused, if the Accused chooses to be examined as a witness in terms of Section 315 of the Code of Criminal Procedure. However, such exculpatory statement insofar as it implicates another Accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such Accused person declines to be a witness in the trial in terms of Section 315 of the Code of Criminal Procedure, and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra).

(x) Before the court looks into the police statement of any person Under Section 161 of the Code of Criminal Procedure for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an Accused person, or likely to be an Accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement Under Section 161 of the Code of Criminal Procedure may not be an Accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, it is more likely for a person who was originally a witness to happen to be later arrayed as an Accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an Accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an Accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an Accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.

 IN THE SUPREME COURT OF INDIA

Special Leave Petition (Criminal) Nos. 7532 of 2025, 7533/2025 and 7534/2025

Decided On: 16.05.2025

P. Krishna Mohan Reddy Vs. The State of Andhra Pradesh

Hon'ble Judges/Coram:

J.B. Pardiwala and R. Mahadevan, JJ.

 Citation: 2025 INSC 725,MANU/SC/0737/2025

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Bombay HC: Whether the court can reject anticipatory bail of accused based on Statement of co-accused?

 Thus, in this case except

for the alleged statement of the co-accused, which is

inadmissible in evidence, there is no evidence to

connect the Applicant with this crime. Though earlier

there was one similar offence was registered against

him, undeniably he is acquitted therefrom. Hence, the

liberty of the Applicant deserves to be protected.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

ANTICIPATORY BAIL APPLICATION NO. 1675 OF 2024

Anil Vasant Kapse   Vs  The Superintendent Of Police And Another

CORAM : R.M. JOSHI, J

DATE : OCTOBER 15, 2024

Citation: 2024:BHC-AUG:25108

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Bombay HC: Under which circumstances the accused prosecuted for offence U/S 328 of IPC can be released on anticipatory bail?

 Learned APP opposed the application with the contention that co-accused are made statement about he being at the spot with the present applicant and also states about the applicant to be owner of the said article. Thus, according to him there is evidence to connect the applicant with the crime. He submitted that the Investigating Officer could not search the premises of the applicant as he has absconded. {Para 3}

4. Though perusal of the investigation papers show that co-accused claimed that applicant was there at the spot along with the applicant however, the first information report which is given by Senior Police Officer does no show his presence. The statement of the co-accused which is otherwise also not admissible in evidence becomes doubtful too. The submissions of the prosecution that the premises of the applicant could not be searched for want of his presence does not deserve acceptable as it was open for the investigation officer to take appropriate steps for obtaining warrant for search of the premises. In action on the part of the investigating officer to take steps in this regard speaks volumes.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

ANTICIPATORY BAIL APPLICATION NO.864 OF 2023

AJAY GOVIND BOMBATKAR Vs THE STATE OF MAHARASHTRA

CORAM : R. M. JOSHI, J.

DATE : 08th JUNE, 2023

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Whether the appellate court can extend the benefit of acquittal to non appealing convict?

If 4 accused are convicted, but only one accused prefer appeal.  If appeal is allowed, can the 3 accused get benefit and whether they can be also acquitted

 Under Indian criminal law, whether the three accused who did not file appeals can benefit from the successful appeal of the fourth accused depends on several key factors and legal principles established by the Supreme Court and High Courts.

General Principle: Benefit of Acquittal to Co-Accused

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Supreme Court: What is Importance of the foundational facts-Under Section 24 PMLA?

 In Vijay Madanlal Choudhary (supra) dealing with Section 24 of the PMLA, the three-Judge Bench held as under:

97. Be that as it may, we may now proceed to decipher the purport of Section 24 of the 2002 Act. In the first place, it must be noticed that the legal presumption in either case is about the involvement of proceeds of crime in money-laundering. This fact becomes relevant, only if, the prosecution or the authorities have succeeded in establishing at least three basic or foundational facts. First, that the criminal activity relating to a scheduled offence has been committed. Second, that the property in question has been derived or obtained, directly or indirectly, by any person as a result of that criminal activity. Third, the person concerned is, directly or indirectly, involved in any process or activity connected with the said property being proceeds of crime. On establishing the fact that there existed proceeds of crime and the person concerned was involved in any process or activity connected therewith, itself, constitutes offence of money- laundering. The nature of process or activity has now been elaborated in the form of Explanation inserted vide Finance (No. 2) Act, 2019. On establishing these foundational facts in terms of Section 24 of the 2002 Act, a legal presumption would arise that such proceeds of crime are involved in money-laundering. The fact that the person concerned had no causal connection with such proceeds of crime and he is able to disprove the fact about his involvement in any process or activity connected therewith, by producing evidence in that regard, the legal presumption would stand rebutted.

99. Be it noted that the legal presumption Under Section 24(a) of the 2002 Act, would apply when the person is charged with the offence of money-laundering and his direct or indirect involvement in any process or activity connected with the proceeds of crime, is established. The existence of proceeds of crime is, therefore, a foundational fact, to be established by the prosecution, including the involvement of the person in any process or activity connected therewith. Once these foundational facts are established by the prosecution, the onus must then shift on the person facing charge of offence of money-laundering-to rebut the legal presumption that the proceeds of crime are not involved in money-laundering, by producing evidence which is within his personal knowledge. In other words, the expression "presume" is not conclusive. It also does not follow that the legal presumption that the proceeds of crime are involved in money-laundering is to be invoked by the Authority or the court, without providing an opportunity to the person to rebut the same by leading evidence within his personal knowledge.

100. Such onus also flows from the purport of Section 106 of the Evidence Act. Whereby, he must rebut the legal presumption in the manner he chooses to do and as is permissible in law, including by replying Under Section 313 of the 1973 Code or even by cross- examining prosecution witnesses. The person would get enough opportunity in the proceeding before the Authority or the court, as the case may be. He may be able to discharge his burden by showing that he is not involved in any process or activity connected with the proceeds of crime. In any case, in terms of Section 114 of the Evidence Act, it is open to the court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Considering the above, the provision under consideration [Section 24(a)] by no standards can be said to be unreasonable much less manifestly arbitrary and unconstitutional. {Para 14}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3572 of 2024.

Decided On: 28.08.2024

Prem Prakash Vs. Union of India (UOI) through the Directorate of Enforcement

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: 2024 INSC 637, MANU/SC/0943/2024.

Read full Judgment here: Click here.

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Supreme Court: Statement To ED By Accused Under PMLA Custody Incriminating Oneself In Another PMLA Case Inadmissible

 The question that arises is when a person is in judicial custody/custody in another case investigated by the same Investigating Agency, whether the statements recorded (in this case the statements dated 03.08.2023, 04.08.2023, 11.08.2023) for a new case in which his arrest is not yet shown, and which are claimed to contain incriminating material against the maker, would be admissible Under Section 50? {Para 22}

23. In Vijay Madanlal Choudhary (supra), addressing the scope of Section 50, following has been held:

159....However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him.

The three-judge Bench in Vijay Madanlal Choudhary (supra) has apart from Article 20(3) also adverted to Section 25 of the Evidence Act. Section 25 of the Evidence Act reads as under:

25. Confession to police officer not to be proved.- No confession made to a police officer shall be proved as against a person Accused of any offence.

24. Vijay Madanlal Choudhary (supra) though held that the authorities under the PMLA are not police officers, did anticipate a scenario where in a given case, the protection of Section 25 of the Evidence Act may have to be made available to the Accused. The Court observed that such situations will have to be examined on a case-to-case basis. We deem it appropriate to extract Para 172 of Vijay Madanlal Choudhary (supra).

172. In other words, there is stark distinction between the scheme of the NDPS Act dealt with by this Court in Tofan Singh (supra) and that in the provisions of the 2002 Act under consideration. Thus, it must follow that the authorities under the 2002 Act are not police officers. Ex-consequenti, the statements recorded by the authorities under the 2002 Act, of persons involved in the commission of the offence of money-laundering or the witnesses for the purposes of inquiry/investigation, cannot be hit by the vice of Article 20(3) of the Constitution or for that matter, Article 21 being procedure established by law. In a given case, whether the protection given to the Accused who is being prosecuted for the offence of money-laundering, of Section 25 of the Evidence Act is available or not, may have to be considered on case-to-case basis being Rule of evidence.

25. This Court in Vijay Madanlal Choudhary (supra) anticipated the myriad situations that may arise in the recording of the Section 50 statement and discussed the parameters for dealing with them. In Rajaram Jaiswal v. State of Bihar   MANU/SC/0065/1963 : 1963:INSC:84 : AIR 1964 SC 828, a judgment quoted in extenso in Vijay Madanlal Choudhary (supra), this Court observed that the expression "police officer " in Section 25 of the Evidence Act is not confined to persons who are members of the regularly constituted police force. Further, setting out the test for determining whether an officer is a "police officer " for the purpose of Section 25 of the Evidence Act, this Court in Rajaram Jaiswal (supra) held (quoted from para 165 of Vijay Madanlal Choudhary (supra)

165(ii) It may well be that a statute confers powers and imposes duties on a public servant, some of which are analogous to those of a police officer. But by reason of the nature of other duties which he is required to perform he may be exercising various other powers also. It is argued on behalf of the State that where such is the case the mere conferral of some only of the powers of a police officer on such a person would not make him a police officer and, therefore, what must be borne in mind is the sum total of the powers which he enjoys by virtue of his office as also the dominant purpose for which he is appointed. The contention thus is that when an officer has to perform a wide range of duties and exercise correspondingly a wide range of powers, the mere fact that some of the powers which the statute confers upon him are analogous to or even identical with those of a police officer would not make him a police officer and, therefore, if such an officer records a confession it would not be hit by Section 25 of the Evidence Act. In our judgment what is pertinent to bear in mind for the purpose of determining as to who can be regarded a 'police officer' for the purpose of this provision is not the totality of the powers which an officer enjoys but the kind of powers which the law enables him to exercise. The test for determining whether such a person is a "police officer" for the purpose of Section 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of police station establish a direct or substantial relationship with the prohibition enacted by Section 25, that is, the recording of a confession. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect or delinquent. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys. These questions may perhaps be relevant for consideration where the powers of the police officer conferred upon him are of a very limited character and are not by themselves sufficient to facilitate the obtaining by him of a confession.

26. Four decades ago, V.R. Krishna Iyer, J. in his inimitable style, speaking for this Court in Nandini Satpathy v. P.L. Dani and Anr.,   MANU/SC/0139/1978 : 1978:INSC:80 : (1978) 2 SCC 424 observed as under:

50. We, however, underscore the importance of the specific setting of a given case for judging the tendency towards guilt. Equally emphatically, we stress the need for regard to the impact of the plurality of other investigations in the offing or prosecutions pending on the amplitude of the immunity. "To be witness against oneself" is not confined to particular offence regarding which the questioning is made but extends to other offences about which the Accused has reasonable apprehension of implication from his answer. This conclusion also flows from "tendency to be exposed to a criminal charge". "A criminal charge" covers any criminal charge then under investigation or trial or which imminently threatens the Accused.

57. We hold that Section 161 enables the police to examine the Accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation- not, as contended, commencing in court only. In our judgment, the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the Accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an Accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3).

27. In the facts of the present case, we hold that the statement of the Appellant if to be considered as incriminating against the maker, will be hit by Section 25 of the Evidence Act since he has given the statement whilst in judicial custody, pursuant to another proceeding instituted by the same Investigating Agency. Taken as he was from the judicial custody to record the statement, it will be a travesty of justice to render the statement admissible against the Appellant.

29. A complete reading of Vijay Madanlal Chaudhary (supra), particularly, paragraphs 159, 165 and 172 mandate us to ask ourselves the query: Is a reasonable inference legitimately possible that, due to the vulnerable position in which the Appellant was placed and the dominating position in which the Investigating Agency was situated, in view of the arrest in the other proceeding that, there obtained a conducive atmosphere to obtain a confession? We certainly think so. The question is not whether it actually happened. The question is could it have been possible.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3572 of 2024.

Decided On: 28.08.2024

Prem Prakash Vs. Union of India (UOI) through the Directorate of Enforcement

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: 2024 INSC 637, MANU/SC/0943/2024.

Read full Judgment here: Click here.

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Supreme Court: Prosecution can not start with statement of co-accused to establish their case against accused under PML Act

Being a co-Accused with the Appellant, his statement against the Appellant assuming there is anything incriminating against the present Appellant will not have the character of substantive evidence. The prosecution cannot start with such a statement to establish its case. We hold that, in such a situation, the law laid down Under Section 30 of the Evidence Act by this Court while dealing with the confession of the co-Accused will continue to apply. In Kashmira Singh v. State of Madhya Pradesh,   MANU/SC/0031/1952 : 1952:INSC:12 : [1952] SCR 526, this Court neatly summarized the principle as under:

.... The proper way to approach a case of this kind is, first, to marshal the evidence against the Accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

Hence, insofar as Afshar Ali's statement is concerned, the Investigating Agency will have to first marshal the other evidence and can at best look at the statement for lending assurance. {Para 37}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 3572 of 2024.

Decided On: 28.08.2024

Prem Prakash Vs. Union of India (UOI) through the Directorate of Enforcement

Hon'ble Judges/Coram:

B.R. Gavai and K.V. Viswanathan, JJ.

Author: K.V. Viswanathan, J.

Citation: 2024 INSC 637, MANU/SC/0943/2024.

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Whether accused is entitled to be released on default bail if further investigation in respect of other accused is pending or for production of some documents?

In this regard, this Court recently held in case of CBI v. Kapil Wadhwan and Anr.2 that:

Once from the material produced along with the chargesheet, the court is satisfied about the commission of an offence and takes cognizance of the offence allegedly committed by the Accused, it is immaterial whether the further investigation in terms of Section 173(8) is pending or not. The pendency of the further investigation qua the other Accused or for production of some documents not available at the time of filing of chargesheet would neither vitiate the chargesheet, nor would it entitle the Accused to claim right to get default bail on the ground that the chargesheet was an incomplete chargesheet or that the chargesheet was not filed in terms of Section 173(2) of Code of Criminal Procedure.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1511 of 2024 

Decided On: 12.03.2024

Dablu Kujur Vs. The State of Jharkhand

Hon'ble Judges/Coram:

Bela M. Trivedi and Pankaj Mithal, JJ.

Author: Bela M. Trivedi, J.

Citation:  MANU/SC/0194/2024.

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Can the court refuse to release the accused on bail if the prosecution produces Call Details without a Transcript Of the Conversation?

 With respect to the call details, suffice to say that no dates on which the said calls had been allegedly made by the co-accused,

Rakesh Sharma and Ravdeep Singh alias Sheru to the petitioners or vice-versa have been mentioned in the affidavit or in the report under Section 173 Cr.P.C. Moreover, even the transcript of the said conversations are not a part of the record under Section 173 Cr.P.C. A Division Bench of this Court in Narcotics Control Bureau's case (supra), was pleased to observe as under:-

Still further, no conversation detail between accused

Ramesh Kumar Patil and accused Sandeep has been produced

by the prosecution. Mere call details is not sufficient to prove

that Sandeep accused was also involved in the business of

narcotic drugs or he had any connected with Ramesh Kumar

Patil. In view of the above, no case is made out for grant of

leave to appeal against the acquittal of Sandeep accused.”

In judgment of the Gujarat High Court in Yash Jayeshbhai

Champaklal Shah's case (supra), it has been observed as under:-

“Having heard learned advocates for the appearing parties, it

emerges on record that the applicant is not found in

possession of any contraband article. Over and above that,

the call data records may reveal that in an around the time of

incident, he was in contact with the co-accused who were

found in possession of contraband. Since there is no recording

of conversation in between the accused, mere contacts with the

co-accused who were found in possession cannot be treated to

be a corroborative material in absence of substantive material

found against the accused.”

A perusal of the above judgment would show that without the

transcript of the conversations exchanged between the co-accused, mere call details would not be considered to be corroborative material in absence of substantive material found against the accused. 

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

 CRM-M-39657 of 2020 (O&M)

Vikrant Singh  Vs. State of Punjab 

CORAM:- HON'BLE MR. JUSTICE VIKAS BAHL

Author: VIKAS BAHL, J.

Date of Decision:06.04.2022

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Delhi HC: Basic principles for determining when confession of accused in NDPS case is admissible and reliable

1) Mr. Prabhakar and Mr. Kanhaiya Singhal, learned counsel appearing for Okafor, submitted that the confession statement of Laya or Okafor recorded under Section 67 of the NDPS Act could not be relied upon by the prosecution as the same had been retracted at the first available moment. Mr. Prabhakar stated that although, the statement made by Laya had not been retracted when she had been produced before the court, however, he pointed out that at that stage, Laya did not have any counsel. She had retracted her statement on the first available occasion when she had been provided legal counsel.

2) The Trial Court had proceeded on the basis that the statements were not retracted at the first available moment. This Court is unable to appreciate the aforesaid view. Both, Laya and Okafor, had retracted their statements immediately after being provided legal assistance. The importance of providing legal counsel cannot be understated and has been underscored in various decisions.Prior to providing the aid of counsel, both the accused were in custody and therefore, the fact that they had not retracted their statements immediately on being produced before a Magistrate - when they did not have any legal assistance - cannot be held against them. It is not disputed that they had retracted their statement on the first occasion after they were provided legal assistance.

3)  We, for the decision of this case, therefore, proceed on the premise that the confession is admissible. Even if it is admissible, the court has to be satisfied that it is a voluntary statement, free from any pressure and also that the accused was apprised of his rights before recording the confession. No such material has been brought on the record of this case. It is also well settled that a confession, especially a confession recorded when the accused is in custody, is a weak piece of evidence and there must be some corroborative evidence. The confession of the co-accused, which was said to be a corroborative piece of evidence, has been discussed above and is of no material value. Therefore, other than the two confessional statements -- one of the co-accused and the other of the accused, the prosecution has gathered no evidence to link the appellant with the commission of the offence. As such, without going into the legality of the admissibility of the confession, we hold that even if these confessions are admissible then also the evidence is not sufficient to convict the accused."{Para 8}


IN THE HIGH COURT OF DELHI

Crl. A. 1186/2015, Crl. M.A. 41216/2019, Crl. M. (Bail) 1943/2018, 2070/2019 and Crl. A. 1041/2016

Decided On: 13.05.2020

Okafor Chukwuka Ugochukwu Vs.  Narcotics Control Bureau

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

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Whether confession of one accused is admissible against co-accused in same case if both are not tried jointly?

In the instant case, no doubt, the Appellant was absconding. That is why, joint trial of the Appellant with the other two Accused persons could not be held. As noticed above, Section 15 of the TADA Act specifically provides that the confession recorded shall be admissible in trial of a co-Accused for offence committed and tried in the same case together with the Accused who makes the confession. We are of the view, that if for any reason, a joint trial is not held, the confession of a co-Accused cannot be held to be admissible in evidence against another Accused who would face trial at a later point of time in the same case. We are of the further opinion that if we are to accept the argument of the learned Counsel for the Respondent-State, it is as good as re-writing the scope of Section 15 of the TADA Act as amended in the year 1993.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1120 of 2010

Decided On: 01.04.2020

 Raja Vs.  State of Tamil Nadu

Hon'ble Judges/Coram:

S. Abdul Nazeer and Deepak Gupta, JJ.

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Supreme Court: The statement of the accused which led to the discovery of fact proving complicity of other accused persons is admissible in evidence as recovery U/S 27 of Evidence Act.

For application of Section 27 of Evidence Act, admissible portion of confessional statement has to be found as to a fact which were the immediate cause of the discovery, only that would be part of legal evidence and not the rest. In a statement if something new is discovered or recovered from the accused which was not in the knowledge of the Police before disclosure statement of the accused is recorded, is admissible in the evidence.

15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not to the knowledge of the Police. The statement of both accused has led to discovery of fact and arrest of co-accused not known to police. They identified him and ultimately statements have led to unearthing the racket of use of fake currency notes. Thus the information furnished by the aforesaid accused persons vide information memos is clearly admissible which has led to the identification and arrest of accused Anju Ali and as already stated from possession of Anju Ali fake currency notes had been recovered. As per information furnished by accused Mehboob and Firoz vide memos P41 and P42, the fact has been discovered by Police as to the involvement of accused Anju Ali which was not to the knowledge of the Police. Police was not aware of accused Anju Ali as well as the fact that he was dealing with fake currency notes which were recovered from him. Thus the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of fact proving complicity of other accused persons and the entire chain of circumstances clearly makes out that accused acted in conspiracy as found by the trial court as well as the High Court.

Ratio: The statement of the accused which led to the discovery of fact proving complicity of other accused persons is admissible in evidence as recovery U/S 27 of Evidence Act

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 808 and 1088 of 2010

Decided On: 27.10.2015

 Mehboob Ali  Vs.  State of Rajasthan

Hon'ble Judges/Coram:

H.L. Dattu, C.J.I. and Arun Mishra, J.

Citation: 2015 SCC OnLine SC 1043.

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Whether admission given by accused during investigation is substantive evidence?

 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. We need not, however, say anything more.

42. In Central Bureau of Investigation v. V.C. Shukla and Ors. MANU/SC/0168/1998 : AIR 1998 SC 1406, a Bench of three learned Judges, after approving Pakala Narayana Swami (supra), had occasion to consider the distinction between confession and admission. This Court went on to hold as follows:

45. It is thus seen that only voluntary and direct acknowledgement of guilt is a confession but when a confession falls short of actual admission of guilt it may nevertheless be used as evidence against the person who made it or his authorised agent as an "admission" Under Section 21. The law in this regard has been clearly - and in our considered view correctly - explained in Monir's Law of Evidence(New Edn. at pp. 205 and 206), on which Mr. Jethmalani relied to bring home his contention that even if the entries are treated as "admission" of the Jains still they cannot be used against Shri Advani. The relevant passage reads as under:

The distinction between admissions and confessions is of considerable importance for two reasons. Firstly, a statement made by an Accused person, if it is an admission, is admissible in evidence Under Section 21 of the Evidence Act, unless the statement amounts to a confession and was made to a person in authority in consequence of some improper inducement, threat or promise, or was made to a Police Officer, or was made at a time when the Accused was in custody of a Police Officer. If a statement was made by the Accused in the circumstances just mentioned its admissibility will depend upon the determination of the question whether it does not amount to a confession. If it amounts to a confession, it will be inadmissible, but if it does not amount to a confession, it will be admissible Under Section 21 of the Act as an admission, provided that it suggests an inference as to a fact which is in issue in, or relevant to, the case and was not made to a Police Officer in the course of an investigation under Chapter XIV of the Code of Criminal Procedure. Secondly, a statement made by an Accused person is admissible against others who are being jointly tried with him only if the statement amounts to a confession. Where the statement falls short of a confession, it is admissible only against its maker as an admission and not against those who are being jointly tried with him. Therefore, from the point of view of Section 30 of the Evidence Act also the distinction between an admission and a confession is of fundamental importance.

(Emphasis supplied)

43. Section 21 of the Evidence Act provides as follows:

21. Proof of admissions against persons making them, and by or on their behalf.-Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases:

(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third persons Under Section 32.

(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.

44. Thus, what amounts to an admission can be used against the maker of the admission or his representative in interest. As to what constitutes an admission is to be found in Section 17 of the Evidence Act, which defines admission as follows:

17. Admission defined.-An admission is a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned.

45. In Bharat Singh and Ors. v. Mst. Bhagirathi MANU/SC/0362/1965 : AIR 1966 SC 405, the true nature of the evidentiary value of admission, and whether without confronting the maker of the admission, it could be used, has been referred to and this is what this Court had to say:

19. Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves, in view of Sections 17, and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness Under Section 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.

(Emphasis supplied)

46. From the statement of the law contained in V.C. Shukla and others (supra), it becomes clear as to what constitutes confession and how if it does not constitute confession, it may still be an admission. Being an admission, it may be admissible under the Evidence Act provided that it meets the requirements of admission as defined in Section 17 of the Evidence Act. However, even if it is an admission, if it is made in the course of investigation under the Code of Criminal Procedure to a Police Officer, then, it will not be admissible Under Section 162 of the Code of Criminal Procedure as it clearly prohibits the use of statement made to a Police Officer Under Section 161 of the Code of Criminal Procedure 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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 714 of 2019 

Decided On: 24.04.2019

 Dipakbhai Jagdishchandra Patel Vs. State of Gujarat and Ors.

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Leading judgment on admissibility of confession of one accused against co-accused

In Kashmira Singh v. State of Madhya Pradesh MANU/SC/0031/1952 : (1952) SCR 526, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King MANU/PR/0047/1949 : (1949) 76 Indian Appeal 147 at 155 and laid down as under:

Gurubachan's confession has played an important part in implicating the Appellant, and the question at once arises, how far and in what way the confession of an Accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King "It does not indeed come within the definition of" 'evidence' contained in Section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination." Their Lordships also point out that it is "obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.

They stated in addition that such a confession cannot be made the foundation of a conviction and can only be used in "support of other evidence." In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?

In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty MANU/WB/0030/1911 : [1911] I.L.R. 38 CAl. 559 at 588 where he said that such a confession can only be used to "lend assurance to other evidence against a co-accused "or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan MANU/TN/0024/1930: [1931] I.L.R. 54 Mad. 75 at 77.

the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de-scribed in Section 30 may be thrown into the scale as an additional reason for believing that evidence.

Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the Accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.

12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar MANU/SC/0059/1964 : (1964) 6 SCR 623 at 631-633 wherein it was observed:

As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one Accused person against another Accused person, the proper approach to adopt is to consider the other evidence against such an Accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said Accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the Section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an Accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.

13. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.2

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 949 of 2018 (Arising out of Special Leave Petition (Criminal) No. 9816 of 2017)

Decided On: 31.07.2018

 Surinder Kumar Khanna Vs. Intelligence Officer Directorate of Revenue Intelligence

Hon'ble Judges/Coram:

Abhay Manohar Sapre and U.U. Lalit, JJ.

Citation: (2018) 8 SCC 271

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Whether prosecution against absconding accused can be quashed if co-accused is acquitted?

I had the occasion to deal with a similar point in case
of Hidayat Khan @ Hidayatullah Khan -Vrs.- State of Orissa
reported in (2017) 68 Orissa Criminal Reports 945, wherein
I have held as follows:-11
“7......There is no settled principle of law that
whenever some accused persons are acquitted
after facing trial or discharged by the trial Court,
the co-accused should also be discharged or the
proceeding in respect of such co-accused should
also be quashed. Absconding accused cannot be
given premium to frustrate the justice or to
misuse the process of law by treating him at par
with those accused who have shown respect for
legal processes and have appeared and have not
evaded their arrest.....”
It cannot be lost sight of the fact that it is a case of
abduction and gang rape of a married lady. Even if the victim
has not supported the prosecution case during trial of the coaccused
persons, the possibility of the victim supporting the
prosecution case during the course of trial of the petitioner
cannot be ruled out. In that event, what would be the
evidentiary value of the victim’s statement after confrontation of
her previous statement given while deposing as P.W.5 in case of
the co-accused persons, is to be assessed by the learned trial
Court. The victim may give explanation as to why she did not
support the prosecution case while she was examined during trial
of the co-accused persons in spite of the fact that she gave her
statement before police as well as before the Magistrate
implicating the accused persons. The learned trial Court may 
accept such explanation. If the accused against whom accusation
of abduction and gang rape is there remains as an absconder,
watches the criminal proceeding in respect of the co-accused
persons and after such proceeding ended in acquittal before the
learned trial Court, he comes out of his hiding place either
because he felt that it had become insecure or because he
believed that his presence would sooner nor later be discovered
by his pursuers or that in view of the acquittal of the co-accused
persons, the prosecution case against him has become weak and
the Court accepts his plea on the basis of the evidence adduced
in the trial of the co-accused persons and quashes the
proceeding against him then it would be a travesty of justice.
What will happen in future in the trial of the
petitioner cannot certainly be predicted at this stage. This Court
cannot assume a thing and quash the criminal proceeding
against the petitioner on the ground that the co-accused persons
have been acquitted as the victim has not supported the
prosecution case. It cannot be said that the continuance of the
criminal proceeding against the petitioner in spite of acquittal of
the co-accused persons would be an abuse of process. When
prima facie materials are there on record against the petitioner
for commission of offences under which the charge sheet has 
been submitted, I am not inclined to invoke the inherent power
under section 482 of Cr.P.C. to quash the impugned order and
the criminal proceeding against the petitioner in G.R. Case
No.844 of 2003.

 IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 3031 Of 2006

Ajay Kumar Sethi Vs State of Orissa and Ors. 

P R E S E N T:

  MR. JUSTICE S.K. SAHOO

Dated : 09.04.2018

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When confession of one accused can not be used against co-accused?

Confession is a statement made by the accused which must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence (See Jarnail Singh v. State of Punjab MANU/SC/0480/2011 : AIR 2011 SC 964). The incriminatory fact in order to be a confession should directly suggest the guilt of the crime charged and only those statements which are direct acknowledgment of guilt are considered as confession. Merely inculpatory admission which falls short of being an admission of guilt cannot be termed as confession. What is required is admitting the commission of the crime in unequivocal terms. Confession is not evidence as defend under Section 3 of the Evidence Act and can be used in support of other evidence.

27. The position as to whether the statement of the accused amounts to confession or not is settled by an authoritative pronouncement of the Privy Council in the matter of Pakale Narayan Swami v. Rex reported in MANU/PR/0001/1939 : AIR 1939 P.C. 47, wherein it is held thus:

"No statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, eg an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession. Some confusion appears to have been caused by the definition of confession in Art. 22 of Stephen's "Digest of the Law of Evidence" as 'an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.' If the surrounding articles are examined it will be apparent that the learned author, after dealing with admissions generally, is applying himself to admissions in criminal cases, and for this purpose defines confession so as to cover all such admissions ....... The definition is not contained in the Evidence Act, 1872, and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused 'suggesting the inference that he committed, the crime'."

28. Section 30 of the Evidence Act reads as under :-

"Sec. 30 : Consideration of proved confession affecting person making it and others jointly under trial for same offence. - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession."

Explanation - "Offence", as used in this Section, includes the abetment of, or attempt to commit the offence."

29. It is thus clear that Section 30 of the Evidence Act thus allows use of the confession of one accused against co-accused on fulfilling the following conditions :-

"i) There must be a joint trial for the same offence.

ii) The statement of the accused which is sought to be used against co-accused must be a confession.

iii) The confession of guilt must inculpate himself as well as other i.e. co-accused. It must implicate the maker to the same extent as co-accused.

iv) The confession of guilt must be duly proved."

30. Thus careful scrutiny of the provisions of Section 30 of the Evidence Act makes it clear that when the statement of the accused does not amount to confession i.e. when it is wholly or partly exculpatory, it cannot be used against co-accused. Where an accused pleads innocence and throws the blame on the co-accused, such statement cannot be termed as confession of that accused and as such cannot be used against co-accused. For making use of it against co-accused the statement of accused must amount to a distinct confession of his own guilt. Self exculpatory statement of the accused as such cannot be used to infer guilt of co-accused.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal Nos. 255 of 2009 and 1241 of 2008

Decided On: 10.01.2017

 Mohd. Samir Mohd. Juber Shaikh

Vs.

 The State of Maharashtra

Hon'ble Judges/Coram:V.K. Tahilramani and A.M. Badar, JJ.

Citation: 2017 ALLMR(CRI)1143

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