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SUPREME COURT OF INDIA
ASHOK BHUSHAN, K.M. JOSEPH, JJ.
DIPAKBHAI JAGDISHCHANDRA PATEL – APPELLANT
VERSUS
STATE OF GUJARAT AND ANOTHER – RESPONDENT
CRIMINAL APPEAL NO. 714 OF 2019 (@ SLP(CRIMINAL) NO. 5415 OF 2017)
Decided on : 24-04-2019
(1998) 7 SCC 337; AIR 1952 SC 159 : 1952 SCR 526, AIR 1977 SC 2018; AIR 1979 SC 366; AIR 1978 SC 1025 – Relied upon
(b) Indian Penal Code, 1860 – Section 489-B and 489-C – Mens rea of "knowing or having reason to believe the currency notes or banknotes are forged or counterfeit" essential for invoking the provisions – Instantly not proved against appellant – Cannot be charged u/s 489-B and C. (Para 7)
(1930) ILR 11 Lah 555; (1979) 4 SCC 723 : 1980 SCC (Cri) 170 : AIR 1979 SC 1705 – Relied upon
1981 SCC Online P&H 47 – Cited with approval
(c) Indian Evidence Act, 1872 – Section 25, 26 – Statement by accused to police – Evidentiary value – Not admissible u/s 25, more so when it is retracted – Article 20(3), Constitution of India – A person named in FIR eligible to claim protection of Article 20(3). (Para 25, 31, 39, 40)
AIR 1954 SC 300; AIR 1961 SC 1808; AIR 1978 SC 1025; AIR 1972 1331 – Relied upon
(d) Words and Phrases – Confession and admission – Distinction – Admission of facts but not the guilt, not confession – It is merely admission but can be used Statement containing not a confession but admission – Otherwise relevant – Made before commencement of investigation – May be admissible – Can be used against the maker – Section 21 and 17, Indian Evidence Act, 1872 – Subject to bar u/s 162, CrPPC – Instantly statement made during course of investigation inadmissible u/s 162. (Para 7, 41, 42, 44, 46, 47)
(1939) PC 47; AIR 1998 SC 1406 – Relied upon
(e) Code of Criminal Procedure, 1973 – Section 227 and 228 – Framing of charge – Charges framed against accused on the basis of his statement made during investigation and confession of co-accused – Statement by accused held inadmissible u/s 162 – Thus charge framed on basis of confession of co-accused only – Not permissible (Para 48,
(1998) 7 SCC 337; AIR 1964 SC 1184 – Relied upon
(f) Code of Criminal Procedure, 1973 – Section 227 and 228 – Framing of charge – Only material being confession of co-accused, now absconding – Surmising that there is joint trial and both are accused of same offences – No recovery from residence of appellant – Framing of charge against appellant held impermissible – High Court ought to exercise jurisdiction u/s 482, CrPC. (Para 50)
Facts of the case:
A petition under Section 482 Cr.PC. was filed challenging the complaint and the Order passed by the Sessions Court rejecting the request of the appellant to discharge him of the offences under Sections 489B and 489C of the Indian Penal Code, 1860.
The petition was dismissed by the High Court.
Finding of the Court:
High Court ought to exercise jurisdiction u/s 482, CrPC.
Result: Appeal allowed.
JUDGMENT
K.M. Joseph, J.
This appeal by special leave granted by this Court is directed against the judgment of the High Court of Gujarat at Ahmedabad dismissing the Special Criminal Application No. 1230 of 2009 filed by the appellant under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.PC for short).
2. The petition under Section 482 Cr.PC. was filed challenging the complaint and the Order passed by the Sessions Court rejecting the request of the appellant to discharge him of the offences under Sections 489B and 489C of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC for short).
3. The contents of the FIR dated 10.04.1996 are as follows:
"The facts of my complaint are that today i.e., on 10.04.1996 at about 13.00, we got information from the superior officer of the ATS that Mahamad Rafik Abdul Hamid Kadge of Mumbai and Salim Mahebub Shaikh of Ahmedabad Sahalam, both are selling fake currency note of Arabian country as original on the road going towards noble building located at the edge of Nehrubridge, Ashram Road, Ahmedabad on fair rate and therefore, while receiving such legal instruction, two panch persons had been called at the office of ATS and after informing them about such information and they expressed their consent to remain as panchas therefore, after completing the first part panchnama at about 14.00 to 14.15 therein, I myself, panchas and PSI Shri NB Jadeja, Shri BR Karavadra, Shri PV Rathod, Shri NV Kapiriya, Shri KK Desai and Police constable Shri Rameshkumar Sevadas Lashkari, Bhagwatsingh Madarsinh and police Constable Amirkhan Rasulkhan and Dashrathsinh Bhagubha etc reached in government and private vehicles opposite the Natraj cinema at Ashram Road, Stopping their vehicles there and taking walk reached near Noble Building as well as on the road nearby the Petrol pump and found that three persons were standing nearby the road and doing some transaction and while making talk with them, we stopped them at that place wherein we introduced ourselves as Police and panchas and informed them about personal search and I caught accused no.1 and while asking his name and address, he stated his name as Mahamad Rafik Abdul Hamid Kadge residing at Sachhvari Dagadichawl Golanji Rahil Road, Mumbai-15 and during the search, 43 notes of Saudi Arabian Riyal currency of Rs. 500/- denomination were found and PSI Shri NB Jacleja caught the accused no.2 and while asking his name before the panchas, he stated his name as Salimbhai Mahemudbhai Shaikh, residing at inside Shahalam Darwaja, Rasulibad society, Ahmedabad and during the search 43 notes of Saudi Arabian riyal currency of Rs.500/-denomination were found and police constable Shri Bhagwatsinh Madarsinh buckle No. 8927 caught the accused no.3 and while asking his name and address, he stated his name is Usmangani Mahamadbhai Malek residing at Musamiyani Chali, Rasulabad Shahalam, Ahmedabad and from his hand, 2 nos. Saudi Arabian Riyal currency notes of Rs. 500/-denomination were found and in all total 88 notes were found. While asking them one by one before the panchas regarding such notes, it was found that no.1 had taken such notes from Mumbai prior to 15 days and had stated that he talked with his friend Jagdishchandra Patel residing at D-2 Aasiyana Flat, Nawa Vadaj, Ahmedabad to sale him these fake Riyal currency to as original with fair price and today, after taking such note from the house of Dipak by the accused no.1; handed over it to the accused no.2 and 3 and after preparing the panchnama of such notes, seized it by packing it in separate packets and applying seals. Indian currency notes found from one or two out of them had been returned by way of panchnama and that panchnama was completed at about (Illegible).
Thus, the aforesaid accused no.1 Mahamad Rafik Abdul Hamid Kagde, residing at Savri Hagadi Chawl, Golanji Road, Mumbai-15, accused no.2 Salimbhai Mahemudbhai Shaikha, residing at inside Shahalam Darwaja, Rasu
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