CHAMPA Vs. STATE

JUDGEMENT

(1.) The applicants are being tried for offences under Section 120-B read with Sections 380, 381, 411 and 414 I. P C. hi the court of Addl. Chief Judicial Magistrate, Lucknow. According to the prosecution case a theft of 64 valuable paintings was committed at the house of one Sri Dharam Pratap between January 22, 1971 and May 3, 1971 for which a report was lodged at police station Dasaswamedh on May 19, 1971. The case was investigated by the local police. Since they reported that the case WES undetectable, investigation was handed over to the C. B. I, on December 9, 1977. It appears from a scrutiny of the case diary which has been summoned by this court that during the course of investigation Gur Prasad and Hira Singh turned approvers and were granted pardons. Their statements were recorded which disclosed the complicity of the accused in the crime hi question. On May 9, 1979, a charge-sheet was submitted by the C. B. I and the Addl. Chief Magistrate, Lucknow took cognizance of the offence. Very briefly put the prosecution case as disclosed in the investigation for which the charge-sheet has been submitted is that the accused applicants entered into a criminal conspiracy with the object of committing theft of valuable Mughal Paintings from the house of Dr. Dharam Pratap and disposed them of to various antique dealers. The chargesheet gives the details of the part assigned to each accused in pursuance of the aforesaid criminal conspiracy. It appears that on the submission of the Chargesheet a Petition No. 8232 of 1979 was filed under Section 407, Cr. P. C. in this High Court and stay order was obtained. As a result of the stay order, the trial was held up till May 14, '1981, when the above mentioned Petition was dismissed. The instant Petition under Section 482 Cr. P. C. was thereafter filed on December 16, 1981 and again an order staying further proceedings in the trial was obtained from this Court. I have heard learned counsel for the parties and have also perused the case diary and the material on record. Learned counsel for the applicants has submitted that the statements which had been made during the course of investigation to the Inevtigating Officer by Gur Prasad and Hira Singh who has turned approvers and had been granted conditional par-done by the Chief Judicial Magistrate on April 25, 1979 were hit by Section 25 of the Evidence Act and they could not be taken into account by the investigating agency while submitting the chargesheet before the court. In support of his contention, earned counsel has relied upon two decisions. The first decision cited by him is in Aghnoo Nagesia v. State of Bihar (1966 S. C. 119.) and the second decision relied upon is in Badri v. State of U. P. (1973 Cr. L. J. 1947. ). In order to decide this question at the hand, it is necessary to consider the definition of the word 'court' and the word 'evidence' as defined in the Indian Evidence Act. Section 3, the interpretation clause of the Indian Evident Act defines the word court, thus; Court, includes all Judges and Magistrates and all persons, except arbitrator, legally authorised to take evidence. As to the definition of the word Evidence it means and includes:- (1) "all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) All documents produced for the inspection of the court; such documents are called documentary evidence. Reading both these words together, there can be no doubt that in order to bring statement of witnesses within the category of "evidence?" it is necessary that the same should be "made before a court". If the statement is not made before the court, then it cannot be treated as evidence. With this back ground we may now proceed to examine Section 25 of the Indian Evidence Act. Section 25 relates to a confession made to a police officer during the course of investigation. Under this section no confession made to the police officer shall be 'proved' as against a person accused of an offence. In this definition the word 'prove' is again imported Section 3 of the Indian Evidence Act defines the word 'proved', thus: Section 3: "a fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. " Here again h is significant to note that proof of a fact can be given only before a court and not otherwise. In other words if a confession is made to a police officer then under Section 25 of the Indian Evidence Act, such a confession cannot be proved before a court of law against the person, accused of any offence for which he is standing his trial. Section 27 of the Evidence Act relates to how much of information received from an accused can be proved against him. According to this section when any fact is deposed to as discovered in sequence of the information received from a person, accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not, as related distinctly to the fact thereby discovered may be proved. This section thus lays down the limits to which the statement made to a police officer can be proved in evidence recorded by a court of law. Reading all these sections together. there can be no doubt that the bar of Sections 25 and 27 of the Evidence Act relate to a stage when evidence is recorded before a court and a fact is sought to be proved against the accused. At this stage when a charge-sheet is submitted by the investigating Agency, the statements recorded during the course of investigation cannot be said to be 'evidence' in the case on the basis of which an accused can be convicted or acquitted. The preliminary stage of investigation is always conducted by either the local police or by the C. B. I. Whatever statements are recorded during the course of investigation, are taken into account by the Investigating Agency in submitting a charge-sheet. If in the opinion of the Investigating Agency these statements make out a prima facie case, a charge-sheet is submitted, if not, then it results in filing of a final report. Statements made during the investigation whether inculpatory or exculpatory whether in the nature of confession or not, cannot be excluded from consideration by the Investigating Agency, while submitting a charge-sheet. The bar of Sections 25 and 27 of the Evidence Act applies to a stage when the case is being tiled by a court before whom evidence is recorded. Learned counsel was unable to show me a single case directly on point to support his submission that such statements made during the course of investigation must be excluded from consideration, since they were hit by Sections 25 and 27 of the Evidence Act and on its basis no charge-sheet can be submitted. For the reasons given above, I do not find any merit in this submission. The decision reported in 1966 S. C. 119 referred to above runs as follows:- " The law relating to confession is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Contession is a species of admission and it is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it if its admissibility is not excluded by some provision of law. Section 25 is imperative and a confession made to a police officer under no circumstances it is admissible in evidence against the accused. " I have examined the facts in this Supreme Court case. This decision no where lays down that the statements which are made during course of investigation to a police officer cannot be. taken into consideration by the Investigating Agency in submitting a charge-sheet against the accused. The next case relied upon by the learned counsel is a single Judge decision of this court, reported in 1973 Cr. L. J. 1479. In this case the observation made by a learned single Judge was as follows:- " Where the entire F. I. R. contains only a confession pure and simple it is hit by Section 25 and no part of it is admissible in evidence as an admission under Section 21. " The above observation is clear enough to indicate mat the purpose for which this decision has been cited has no applicability at ail to the facts of the present case. Counsel for the applicants has next argued that Section 386 of the Code of Criminal Procedure bars the Court below from taking cognizance of the offence under Section 411|414, I. P. C. The argument raised was that the theft is alleged to have taken place between January 22, 1971 and May 3, 1971. The first information report of the incident was lodged on May 19, 1971 but the charge-sheet has been submitted on January 19, 1979. The argument further is that on the date when the charge-sheet was submitted Criminal Procedure Code Amendment Act II, of 1973 had come into force and the maximum period of limitation within which cognizance could be taken by the court for the aforesaid offences was 3 years which had passed. This argument is also devoid of any force. In the first place the date of the offence would be the relevant date for determining the procedure to be followed in criminal trial. The offence in question was committed in the year 1971 therefore the amending Act of 1973 would not be applicable. In the second place if it is accepted that the Code of Criminal Procedure 1973 was applicable to the instant case, then the position would be that the charge-sheet also indicates along with other offences, the offence under Section 120-B. Details of the offence under Section 120-B are given in paras 3 and 4 of the charge-sheet. For an offence under Section 3801381, I. P. C. the maximum sentence which can be awarded is 7 years. Under Section 468 (3), Cr. P. C. the period of limitation is to be determined with reference to the offence which is punishable with more severe punishment. In these circumstances, neither of the three sub-clauses of sub-section (2) of Section 468 Cr. P. C. would be applicable to the present case. I would not like to express any final opinion on the merits of the offence under Section 3801381, I. P. C. as that is likely to prejudice the case of the applicant. But the entire case diary has been perused by the including the statement of two of the approvers-Gur Prasad and Hira Singh. The charges under Sections 380|381, I. P. C. are coupled with Section 120-B, I. P. C. and cannot be said to be groundless. I am thus not satisfied that any illegality has been committed in the submission of the charge-sheet or by the court below in taking cognizance of the offence. Lastly it has been argued that there has been considerable delay in the submission of the chargesheet, the offence in question was committed in the year 1971 and it will net be in the cause of justice to prosecute the applicants now at this belated stage. I am not impressed with this submission also, in view of the facts narrated below. It is true that the offence in question is alleged to have been committed between January 22, 1971 and May 3, 1971. It is further true that the First Information Report of the incident was lodged on May 19, 1971. The matter was being investigated into by the local police. It is clear from the record that the investigation of the offence was continued by the local police for several years and they declared the case as undetectable. On February 9, 1977, the C. B. I, was entrusted with the investigation of the case and the charge-sheet was submitted within 2 years i. e. , on January 19, 1979. It is clear from para 11 of the counter-affidavit that the accused filed petition No. 8232 of 1979 under Section 407, Cr. P. C. in this court. They obtained stay-order and wwre successful in holding of the trial upto May 14, 1981, when their petition was dismissed. Thereafter again on December 16, 1981, the instant application under Section 482, Cr. P. C. was filed and a stay order was again obtained as a result of which the entire proceedings in the court below are stayed till today. It is thus clear that the accused themselves by adopting dilatory tactics had delayed the trial of the case. It does not, therefore, lie in their mouth to say that the trial has been belated and the proceedings should be quashed on this ground. For the reasons given above, I am fully satisfied that there is no merit in this application under Section 482, Cr. P. C. and it deserves to be dismissed. The case diary shall be returned to the standing counsel and the court below is directed to proceed expeditiously with the trial. .