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2014 Supreme(MP) 1277
MADHYA PRADESH HIGH COURT AT GWALIOR BENCH
D.K. Paliwal, J.
Suresh Upadhyay - Appellant
Versus
State of M.P. - Respondent
M.Cr.C. No. 3387-2012
Decided On : 11-09-2014
For the Petitioner:Raj Mani Bansal, Advocate.
For the Respondents: Prabal Solanki, Public Prosecutor.
Statements admissible under section 27 of the Evidence Act can only be used as evidence against the maker and not against any other person.
Headnote:
Section 27 of Evidence Act - Quashing of FIR under Section 482 of Cr.P.C.
Fact of the Case:
The petitioner filed a petition under Section 482 of Cr.P.C. to quash the FIR registered under section 34(2) of M.P. Excise Act at Police Station Banmore, District Morena. The petitioner was implicated based on a statement recorded under section 27 of the Evidence Act by a co-accused.
Finding of the Court:
The court found that no recovery was made from the petitioner's possession, and the only evidence against the petitioner was the statement of a co-accused recorded under section 27 of the Evidence Act. The court referred to legal precedents to establish that such statements are admissible only against the maker and not against any other person.
Issues: The issues involved the admissibility of a statement recorded under section 27 of the Evidence Act against a co-accused and its impact on the prosecution of the petitioner.
Ratio Decidendi: The court held that statements admissible under section 27 of the Evidence Act can only be used as evidence against the maker and not against any other person. As no evidence was available against the petitioner except the memorandum of the co-accused recorded under section 27 of the Evidence Act, the prosecution of the petitioner would be an abuse of process of law.
Final Decision: The petition filed by the petitioner was allowed, and the FIR registered against the petitioner under section 34(2) of the M.P. Excise Act, along with the entire subsequent criminal proceedings, were quashed.
JUDGMENT
D.K. Paliwal, J.
1. With the consent of learned counsel for the parties, the matter is heard finally.
2. This petition has been filed under Section 482 of Cr.P.C. for quashing the FIR registered at Crime No. 51/2012 under section 34(2) of M.P. Excise Act at Police Station Banmore, District Morena.
3. Brief facts of the case are that on receipt of information A.S.I. P.S. Parmar who was posted at Police Station Banmore reached the house of Meena Jatav along with police force and on being checking 97 boxes of Silver Jet Whiskey were found and there was no license of the same, hence, the aforesaid liquor was seized and case was registered. During investigation, Meena Jatav disclosed that the liquor which has been found belongs to Narendra Pal Tomar, Banwari and Suresh Upadhyay. A memorandum to this effect under section 27 of the Evidence Act has been recorded and on the basis of aforesaid statement the petitioner has been implicated as accused.
4. Learned counsel for the petitioner submits that no recovery has been made from the possession of the petitioner and further the petitioner was also not present at the time of alleged seizure. On the basis of the statement recorded under section 27 of the Evidence Act, the petitioner cannot be prosecuted because that information cannot be used against the petitioner. In absence of legally admissible evidence the petitioner cannot be prosecuted and the continuance of prosecution would tantamount to be an abuse of process of law. It is further submitted that the coordinate Bench of this Court in a petition filed by Narendra Pal Singh Tomar which was registered as M.Cr.C. No. 1262/2014 has quashed the FIR, hence, it is prayed for quashing the FIR registered against the petitioner.
5. Learned Public Prosecutor submits that looking to the prima facie material against the petitioner, the FIR cannot be quashed.
6. I have considered the rival submissions of the learned counsel for the parties and perused the case diary.
7. From the case diary it appears that no recovery has been made from the possession of the petitioner and the petitioner has also not present at the time of alleged seizure. The only piece of evidence available in the case diary is the statement of co-accused Meena recorded under section 27 of the Evidence Act. So far as the use of statement of co-accused under section 27 of the Evidence Act is concerned, this Court in the case of Prakash Singh Vs. State of M.P. 1994 (II) MPWN 72 has held as under :
"The statements admissible under Section 27 of the Evidence Act are the statements which could be used as evidence against the maker and not against any other person. Under section 27 only portions of information given by an accused which are admissible are those which relate distinctly to the facts discovered thereby. Consequently statements by an accused which do not relate to aforesaid facts but involve other accused are inadmissible under section 27 against the later".
8. Further, in the case of Raghu Thakur Vs. State of M.P., : 2012 (4) MPHT 116, it has been held as under:
"A plain reading of Section 27 of Indian Evidence Act indicates that the statement under Section 27 of Indian Evidence Act is an exception to the ban imposed upon the Courts to utilize the confessional statement made under Sections 25 and 27 of Indian Evidence Act, so as to protect a person making disclosure from being falsely implicated by the police in whose custody that person remains at the time of making disclosure. The provision of Section 27 of Indian Evidence Act further indicates that the facts disclosed under Section 27 of Indian Evidence Act can be used only against the person making disclosure and not against any other person".
9. In the backdrop of the aforesaid legal position and keeping in view the fact that no evidence is available against the petitioner except the memorandum of the co-accused Meena recorded under section 27 of the Evidence Act, in such circumstances, the prosecution of the petitio
