IMPORTANT POINT
Confessional statement made by an accused in police custody leading to discovery of facts can- not be used against co-accused u/ s 30 of Evidence Act.

ORDER

J .K. Mehra, J. - This is Revision Petition against the orders on charge dated' 22-7 -1995 and charge dated -19-9- 1995 passed by Mr. Ravinder Dudeja, Metropolitan Magistrate. New Delhi framing charge against the petitioner under Sections 356/379/34 I.P.C.

2. Briefly the facts of the case are that one Mr. Mahesh Sahai Andley lodged an F.LR, with P.S. Lodhi Colony on 7-7-1992 alleging that he had withdrawn Rs. 10.000/- from Punjab National Bank and kept the same in his small black hand bag. He had further alleged that when he proceeded towards Lodhi Road Complex, someone came from behind him and snatched the bag. The police registered his F.I.R, under Sections 356/379/34 I.P.C. against unknown person. After about five months of the incident, the police arrested two persons, namely Subhash and Vijendra. In their confessional/ disclosure statements recorded by the police under Section 161 Cr. P.C. they disclosed the name of the present petitioner alleging that the petitioner was guarding them on the road while they snatched the bag and ran away on a motor -cycle. The said co-accused has further alleged in their disclosure statements that the petitioner also shared the booty. The petitioner, while in custody, has also made a confessional statement confessing the above allegation. However, no recovery has been made from the possession of the petitioner or at his instance.

3. After investigation, the police filed the challan before the learned Magistrate and on the basis of the confessional/ disclosure statements mentioned above, recorded by the police, the Court has framed the charge against the present petitioner also of his having committed an offence under Sections 356/379/34 I.P.C. The prosecution has cited eight witnesses against the petitioner, out of which six are police personnel and one is the complainant. The eighth one Ravindra, son of Hari Ram has not stated anything against the present petitioner. He has only stated to be a witness of the recovery of beg and seizure of motor-cycle of co accused Vijendra. It is further alleged that no T.I.P. in respect of the petitioner was conducted.

4. I have heard counsel for the parties. The short question involved in this case is as to whether the confession by the accused not leading to recovery from the petitioner or confession by the, petitioner while in police custody made before the police can entail the framing of charge against the petitioner. Counsel for the petitioner, has contended that the prosecution has tried to build up a case against the petitioner on the basis of the disclosure statement recorded under Section 161 Cr. P.C. He has further contended that framing of charge against the present petitioner who is alleged to be a co-accused, is hit by Sections 25, 26 and 27 of the Evidence Act. Before dealing with the above question, it is relevant to refer to the provisions of Sections 25, 26 and 27, which are reproduced 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.

26. Confessions by accused while in custody of police not to be proved against him- No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

Explanation- In the section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the power of a Magistrate under the Code of Criminal Procedure, 1882.

27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as dis -covered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such in formation, whether it amounts to a confession or not, as relates distinctly to the fact thereby di