2012 Supreme(Bom) 2289

High Court of Judicature at Bombay
ABHAY M. THIPSAY, J.
Kamal Ahmed Mohammed Vakil Ansari & Others
Versus
State of Maharashtra
CRIMINAL APPEAL NO.973 OF 2012 IN MCOC SPECIAL CASE No.21 of 2006 WITH CRIMINAL APPEAL NO.992 OF 2012
Decided on : 10-12-2012

Headnote:Evidence Act, 1872 - Section 11 - Admissibility of evidence.

       Evidence led by accused, in rebuttal of prosecution case, is admissible in law. - Facts which are permitted to be introduced in evidence by virtue of Section 11 of Evidence Act, need not be of a conclusive nature and tendency. There is a view that when they are admissible under the provisions of Section 11 as inconsistent with any facts in issue or relevant fact, it would be immaterial whether they are inadmissible under other provisions of the Evidence Act.

       It cannot be lost sight of that in a criminal trial, the accused is not required to conclusively disprove the charges against him, and the burden of proving the charges always rests on the prosecution. Since the benefit of any doubt about the guilt accrues to the accused, it is sufficient for the purposes of defence, to bring such evidence on record as would create a doubt about the truth of the prosecution case, or the evidence adduced against an accused. Certainly, the requirement of such evidence being admissible in law is there, but it cannot be suggested that only the evidence of a conclusive nature o r tendency can be permitted to be introduced on behalf of the accused persons.

       Evidence Act, 1872 - Section 11 - Admissibility or relevancy of evidence.

       Trial Court have power to decide relevancy or admissibility of evidence that is being offered at that stage itself. - Though it is possible to say that the directions given by the Supreme Court of India in Bipin Panchal’s case, 2001 All MR (Cri) 452 (SC) are practice directions, and that, though ordinarily required to be followed, they cannot be construed as laying down that the Trial Court does not have the power or authority to decide the admissibility of a piece of evidence that is being offered at that stage itself. One has to consider why the necessity of giving such directions arose. There may be cases where the admissibility of the evidence that is being adduced can be instantly decided, as it would be an obvious. matter needing no discussion or elaboration.

       One can understand if in such a case, the trial Court chooses to decide the objection about the admissibility, then and there. However, where the admissibility or relevancy is required to be decided after hearing elaborate arguments, with reference to various provisions of law, and by passing a detailed order, then it would be proper to admit such evidence subject to the decision about its admissibility at a later stage. In such cases there would be no justification for not following the directions given in Bipin Panchal’s case. In fact, the loss of time consumed in such process was, what was sought to be prevented by the Supreme Court of India by giving said directions.

       Evidence Act, 1872 - Section 11 - Relevancy and admissibility of evidence.

       Since relevancy and admissibility are actually not same hence every relevant fact not necessarily admissible. - It is true that relevancy and admissibility, though sometimes used in the same sense, are actually not the same. A fact may be legally relevant still the law may prohibit it from being given in evidence on certain grounds. Every relevant fact is therefore, not necessarily admissible, but once the relevancy of a fact is established, it is for the party objecting the reception of such evidence to show that it is not admissible.

       Evidence Act, 1872 - Section 11 - Relevancy and admissibility of evidence.

       Truth or falsity of a piece of evidence has nothing to do with admissibility and even relevancy of evidence.

       Evidence Act, 1872 - Sections 11 and 33 - Production of evidence filed in another case.

       Accused, is entitled to produce document which were filed in another case though said document not yet been proved in another case.

       Evidence Act, 1872 - Sections 11 and 135 - Cr PC, 1973, Section 311 - Examination of witnesses.

       Where Deputy Commissioners of Police had recorded confessions of some other persons regarding commission of offence therefore order, rejecting application for examining Dy. Commissioners of Police as defence witnesses, unjustified.

       Evidence Act, 1872 - Section 33 - Examination of witnesses.

       Denial of examination of Deputy Commissioner of Police as defence witnesses to prove confession of a person who is accused in another case, not justified.

       Maharashtra Control of Organised Crime Act, 1999 - Section 18 - Scope of.

       Section 18 of MCOC Act, cannot be construed as a section making confessions relevant as a piece of evidence.

       It is not that the confession as a piece of evidence, is held to be relevant by virtue of the provisions of Section 18 of the MCOC Act. It is relevant as being the species of admissions, which can always be proved against the maker. The logical and legal relevancy of confessions in the context of charge or accusation against the maker is so obvious that the Evidence Act does not even find it necessary to specifically mention the same and finds it necessary to mention only as to when confessions would not be admissible or relevant.

       Therefore, Section 18 of the MCOC Act cannot be construed as a section making confessions relevant as a piece of evidence. Though relevant, confessions made to a police officer or while in the custody of a police officer are not permitted to be proved by virtue of the provisions of Section 25 or 26 of the Evidence Act, and it is this situation for overcoming which Section 18 has been enacted. It overrides the provisions making confessions made to police officers, and confessions made while in the custody of police, inadmissible or unprovable. It permits the proof of certain types of confessions made to police in certain circumstance to be admitted in evidence in the circumstances mentioned in the said section. What Section 18 does is, that it removes the prohibition regarding proving of certain confessions and cannot be construed as a provision which restricts the use of confessions which would otherwise be permissible. To treat Section 18 as a provision preventing the admissibility of certain types of confession in evidence, would be contrary to the language used in the said section and also to all the principles of interpretation of a statute.

       Maharashtra Control of Organised Crime Act, 1999 - Section 18 - Non-obstante clause in.

       Non-obstante clause in Section 18 of Act, is intended to over-ride any provisions in Cr PC or in Evidence Act which are in conflict with provisions of Section 18 of Act. - Certainly, non-obstante clause is introduced in a section in the beginning for giving the enacting part of the section an overriding effect over the provisions of law or Act mentioned in the non- obstante clause. Thus, undoubtedly, the non- obstante clause in Section 18, Maharashtra Control of Organised Crimes Act, 1999, would give the provisions of that section an overriding effect over any provisions in the Code, or in the Evidence Act which are in conflict with the provisions of Section 18. The non-obstante clause is intended to over- ride the provisions of law, or the Acts mentioned therein in specified areas and circumstances.

       The non-obstante clause cannot be said to over-ride all the provisions in the enactment or the Acts referred to, therein, but would obviously override only such provisions of those enactments or Acts as would be in conflict with the provisions of the section containing the non-obstante clause.

       It is clear that the section is meant for giving over-riding effect to the provisions of Sections 25 and 26 of the Evidence Act, and also the provisions of Section 162 of the Code of Criminal Procedure. It cannot be treated as over-riding the provisions relating to relevancy of facts, or the examination of witnesses etc. in the Evidence Act or the methods for proving facts as per the said provisions.

       The contention that "it’s a complete code", if is advanced to suggest that in the trial for offences under the MCOC Act, only such confessions as have been recorded in accordance with Section 18 would be admissible, then it cannot be accepted. A confession recorded under Section 164 of the Code would be clearly admissible in a trial for offences under the MCOC Act, or under the TADA (where a similar section exists).

       Thus, the non-obstante clause will not over-ride Section 164 of the Code, but only Section 162 of the Code because it would be in conflict with the provisions of Section 18. Section 164 would not be in conflict with Section 18 of the MCOC Act. Merely because the non-obstante clause does not make any reference to any specific provision or provisions or sections contained in the Code or in the Evidence Act, it cannot be construed as riding over all the provisions in the Code of Criminal Procedure, and Evidence Act. It will over-ride only such provisions as are in conflict.

       Maharashtra Control of Organised Crime Act, 1999 - Section 18 - Non-obstante clause.

       Non-obstante clause in Section 18 of Act, cannot be construed as riding over all provisions in Cr PC and Evidence Act.

       Maharashtra Control of Organised Crime Act, 1999 - Section 18 - Evidence Act, Section 80 - Cr PC, 1973, Section 164 - Confession recorded under Section 18 of MCOCA.

       Section 18 of MCOCA cannot be construed as a provision restricting the admissibility or relevancy of confessions which would otherwise be admissible. Moreover, Section 18 has nothing to do where a confession is sought to be proved not basically as a confession i.e. for the purpose of proving the guilt of the maker but for some other purpose. When sought to be used by someone in his favour, the question of its ’admissibility cannot be decided by applying parameters for its admissibility as laid down in Section 18.

       A confession - even a confession recorded under Section 18 of the MCOC Act - may be relevant in some other context depending on the facts of the case, and the controversy involved. For instance, a confession recorded by a Magistrate or by a police officer under the provisions of Section 18 of the MCOC Act may be relevant even for showing as to where the confessor, or even the Magistrate or the Officer recording the confession, as the case may be, was at a given time, should there be a controversy or a dispute over such fact. Any such confession may also be relevant for showing that the confessor was in custody on a given date, or that the Magistrate or officer was on duty, should the controversy arise about such a fact.

       There is, therefore, no substance in the contention that the confessions in question having been recorded under the provisions of Section 18 of the MCOC Act, cannot be used for any other purpose. Since Section 18 brings a confession recorded thereunder almost on par with the confession recorded under Section 164 of the Code, there would be a better case for its admissibility in favour of the accused than that of the confession recorded by a police officer when intended to be used for the same purpose. The record of the confession made by the competent officer under the provisions of Section 18 would attract the presumptions mentioned in Section 80 of the Evidence Act, and would undoubtedly be placed on a higher pedestal as a piece of evidence, than a confession recorded by a police officer to which Section 18 does not apply.

       Criminal Procedure Code, 1973 - Section 91 - Production of documents. - Rights of accused to seek production of documents becomes much wider when he enters upon his defence.

       Criminal Procedure Code, 1973 - Section 91 - Production of documents. - Since accused persons are facing trial in a bomb blast case where in death sentence is possible hence accused persons are entitled to seek production of Call Detail Record (CDR) of their mobile.

       Criminal Procedure Code, 1973 - Sections 90 and 207 - Summons for production of documents. - Rights of an accused to have documents summoned or produced before Court under Section 91 of Code for purpose of his defence, not to be confused with right of accused to receive copies of documents under Section 207, CrPC.