No doubt the considerations at the initial stage when the charge is framed are different as compared to the considerations at the time of giving final judgment. However, the Court cannot ignore the fact that if the material on which the prosecution relies will not end into conviction, and if, that is obvious at the time of framing of charge the accused shall not be made to go through ordeal of facing trial.
In the present case the Respondent No. 1 got anticipatory bail and therefore, he was not in police custody at all. Respondent No. 2 was arrested and he was remanded to police custody for a few days. The allegations against Respondent No. 1 are that he handed over the papers of Respondent No. 2. Therefore, interrogation of Respondent No. 2 could not have helped the police to find out the source of alleged forged death certificate. The investigation with Corporation revealed that death certificate of the Applicant was not issued by the Municipal Corporation, Greater Mumbai. However, the police could not collect any evidence as to what was the source of death certificate handed over by Respondent No. 2 to the witness Padhye. The submissions of Mr. Wanwari are to be taken into consideration in view of the over all investigation done by the police and material collected against Respondent No. 1 It appears that unfortunately police did not challenge the order of granting anticipatory bail and they did not bother to get custody of the Respondent No. 1 for interrogation to find out the source of alleged forged death certificate. No doubt, if the circumstances create a strong suspicion, a charge could be framed. But that should be cumulative effect of the circumstances and the material against the accused. In the present case it is absolutely clear that the prosecution has no other evidence except the alleged extrajudicial confession made by Respondent No. 2 before his father. The learned Additional Sessions Judge has commented upon the voluntariness and otherwise of the said confession. It may be mentioned here that it was not necessary to give any finding in that regard. It was also not necessary to see whether the statement made by Respondent No. 2 was on his own accord or it was made after the interrogation on the part of his father. What was necessary to be examined at that stage was, whether an extra judicial confession on its own was sufficient to frame charge against Respondent No. 1. After having gone through the judgment cited before me by the learned Counsel for the parties, I have come to the conclusion that if it is more than certain that such a confession cannot form basis of conviction, there was no point in framing charge and asking the Respondent "No. 1 to face the trial.
IN THE HIGH COURT OF BOMBAY
Decided On: 07.10.2014
Appellants: Madhavlal Narayanlal Pittie
Vs.
Respondent: Shekhar Narayan Shetty and Ors.
Vs.
Respondent: Shekhar Narayan Shetty and Ors.
Hon'ble Judges/Coram:M.L. Tahaliyani , J.
Citation: 2015ALLMR(Cri)1588
