Oral Judgment:
1 The appellants are the accused in MCOC Special Case No.21 of 2006, pending before the Judge of the Special Court constituted under the Maharashtra Control of Organized Crime Act, 1999 (hereinafter referred to as 'MCOC Act' for the sake of brevity). They are aggrieved by the order dated 1 August 2012 passed by the learned Trial Judge refusing to permit them to examine four witnesses in their defence. They have, therefore, approached this Court by filing an appeal as contemplated under section 12 of the MCOC Act, praying that the said order refusing to issue summonses to the said witnesses, be set aside and the appellants be allowed to lead defence evidence, as proposed by them.
2 The appellants are also aggrieved by two other orders passed by the learned Judge of the Special Court, and have filed separate appeals challenging the said orders also (Appeal No.973 of 2012 and 992 of 2012). Though the appeals were heard together, the questions needing determination in the present appeal, and in the said two appeals, not being the same, the said two appeals are being disposed of by a separate, but common order.
3 The said MCOC Special Case No.21 of 2006 relates to seven serial bomb blasts that took place in the local trains of Western Railway on 11 July 2006 resulting in the death of 187 persons. Initially, six different crimes were registered at different police stations with respect to the said bomb blasts, and separate investigations into those offences had commenced. However, subsequently, the investigation of all the said crimes was taken over by the Anti Terrorism Squad, Mumbai. Later on, provisions of the MCOC Act were applied to the said case. The accusation which the appellants are facing in the said MCOC Special case is in respect of offences punishable under sections 302 IPC, 307 IPC, 326 IPC, 436 IPC, 427 IPC, 120B IPC, 120A IPC, 123 IPC, 124 IPC read with section 34 of the IPC, offences punishable under the Indian Explosives Act, and Prevention of Damage to Public Property Act, offences punishable under the Indian Railways Act, offences punishable under the Unlawful Activities (Prevention)Act 1967, and offences punishable under section 3(1)(i), 3(2) and 3(4) of the MCOC Act.
4 The trial is in progress. Charge against the appellants was framed on 6 August 2007. The recording of evidence commenced on 8 December 2007. The prosecution closed its evidence on 4 April 2012.
5 The impugned order came to be passed in the following circumstances. After they had been called upon to enter on their defence, the appellants made an application (Exhibit 2891), praying that witness summons be issued to 79 persons (mentioned in the list contained therein) whom they wanted to examine as defence witnesses. Inspite of the objection raised by the prosecution, summonses were directed to be issued to some of the said witnesses, including the witnesses mentioned at Serial Nos.61 to 74, in the said list. Two defence witnesses were examined, and when some more were to be examined, pursuant to some objection raised by the learned Special Public Prosecutor, the Court called upon the accused persons to specify with respect to each witness as to whether such witness was being summoned only for production of documents, or for giving evidence, or for giving evidence in addition to the production of documents mentioned against the names of such persons in the list of witnesses. Such details were given on behalf of the accused persons. It is at that stage that the learned Special Public Prosecutor once again objected to calling the witnesses mentioned at Serial Nos.63 to 66 in the list of witnesses. The learned Judge, then, by an order dated 1 August 2012, declined to issue witness summonses to those persons, though he had earlier passed an order directing issuance of summonses to them. These witnesses are:
â63. Smt.Chitkala Zutshi
64. Shri Vishwas Nangre Patil, Dy.Commissioner of Police.
65. Shri Milind Bharambe, Dy.Commissioner of Police.
66. Shri Dilip Sawant, Dy. Commissioner of Police.â
6 It would be necessary to note as to why the defence wanted to examine these witnesses. According to the defence, the prosecution case is that the appellants were, all, members of Students Islamic Movement of India (SIMI), which is a terrorist organization, and that they had entered into conspiracy to plant bombs Mumbai's local trains. That pursuant to such conspiracy, bombs that exploded on 11 July 2006, had been planted in seven local trains. That is briefly the allegation against the appellants.
7 Another Special case being MCOC Special Case No.4 of 2009 is pending before another Court constituted under the MCOC Act. The accused in that case are different and none of the present appellants is an accused in that case. The appellants learnt that the Investigating Agency, in that case, had made a claim that the said accused persons were members of an organization known as Indian Mujahideen, and had carried out the bomb blasts that had taken place in the local trains on 11 July 2006. According to the appellants, in the remand application dated 7 August 2008 filed in that case, the Investigating Agency had claimed that all the blasts in Mumbai since the year 2005 had been carried out by the members of Indian Mujahideen. The appellants also learnt that some of the accused in the said Special Case No.4 of 2009 had confessed that members of Indian Mujahideen had carried out the bomb blasts taken place on 11 July 2006. According to the appellants, one Sadiq â an accused in that case â had confessed that he had carried out the bomb blasts in local trains on 11 July 2006, and this confession of Sadiq was recorded by Dy. Commissioner of Police Vishwas Patil (witness at Sr.No.64), under the provisions of section 18 of the MCOC Act. There were confessions also of two other accused persons in that case, which were recorded by two other Dy. Commissioners of Police â Milind Bharambe and Dilip Sawant (witnesses at Serial Nos.65 and 66 respectively). These confessions form a part of record in the said Special Case No.4 of 2009, and were taken into consideration while according sanction of the Government for the prosecution in respect of the offences punishable under the Unlawful Activities (Prevention) Act. The said sanction order had been signed by Smt.Chitkala Zutshi (witness at Sr. No.63)
8 The appellants contended that the allegation against them was that they were the members of the SIMI, and that it is pursuant to a conspiracy hatched by them, that the offences of blasting the bombs in the Mumbai local trains had taken place on 11 July 2006. It is the contention of the appellants that, that some other persons who are accused in the MCOC Special Case No.4 of 2009 had claimed that they were members of the Indian Mujahideen, and that they had carried out the bomb blasts was relevant as that would show that the appellants were innocent. According to them, therefore, the said confessions recorded by the police in accordance with the provisions of section 18 of the MCOC Act, were required to be brought before the Court which is trying them, as and by way of the appellants' defence. The witness at Sr. No.63 is the authority who has granted sanction to prosecute the accused in the said MCOC Special Case No.4 of 2009, with respect to the offences punishable under the Unlawful Activities (Prevention) Act. The object behind examining her, was said to be to show that the material produced before the sanctioning authority included the said confessions which were duly taken into consideration by the said witness, while granting sanction.
9 It was decided, by consent of the parties, that the appeal be heard finally at the admission stage itself. By consent, calling for the Record and Proceedings was dispensed with.
10 I have heard Dr.Yug Choudhary, learned counsel for the appellants. I have heard Shri Darius Khambatta, learned Advocate General, on behalf of the State of Maharashtra. Apart from the oral arguments, written submissions have been filed by both the parties in support of their respective contentions.
11 I have carefully gone through the impugned order and other relevant record.
12 Dr.Choudhary submitted that the impugned order is clearly bad in law. He submitted that the evidence that was being adduced by the appellants was extremely relevant in the context of the allegations against them. He submitted that the appellants were charged of having committed the most heinous and serious crime, and that in the event of their being found guilty, the appellants were almost certain of receiving a death penalty. He submitted that therefore, the appellants ought to be given a full and complete opportunity of defending themselves satisfactorily. He submitted that the attitude of the prosecution in attempting to keep this relevant piece of evidence out of consideration, was not justified, and that the Court has erred in refusing to issue witness summonses to the aforesaid witnesses. He also submitted that the decision not to summon the witnesses in question, was not arrived at by the Trial Court in a proper manner, inasmuch as the Trial Court had initially directed issuance of summons to those witnesses in spite of the objection of the prosecution; but while discussing some incidental or ancillary objection or matter, the prosecutor was permitted to again raise objection â by making oral submissions â in respect of the summoning of the said witnesses, which objection, at that stage, was accepted by the Court. Dr.Chaudhary, in his written submissions in support of the appeal, has raised certain questions of Law, needing determination in this appeal.
13 According to the learned Advocate General, the impugned order is proper and legal. He submitted that the confessions of the accused persons in some other case would not be admissible in the present case. According to him, the confession had been recorded under section 18 of the MCOC Act, which forms a complete Code in respect of such confessions, and that they can be used only in the manner stipulated by the said section. He submitted that the impugned order is well reasoned and does not warrant any interference.
14 It may be observed that the contentions that were raised before the Trial Court by the learned Special Public Prosecutor, and the contentions that were raised before this Court by the learned Advocate General, are not identical. In fact, in the course of oral arguments, the learned Advocate General gave up certain contentions that had been raised by the learned Special Public Prosecutor before the Trial Court even though such contentions had found favour with the Trial Court. From the written submissions filed on behalf of the State also, it is clear that some of the contentions raised by the learned Special Public Prosecutor before the Trial Court were given up before this Court. However, since such contentions have been accepted by the Trial Court, it would be necessary to deal with such contentions also.
15 Though no contention that the evidence sought to be adduced by the appellants is irrelevant was raised by the State, either before the Trial Court or before this Court, it would be proper to first consider this aspect of the matter. What the appellants are saying is that they are alleged to have committed a particular offence, and that some other person/persons accused in another case has/have confessed about having committed the crimes with which they are charged. The logical relevancy of such evidence is obvious. However, a fact however relevant logically, may not be receivable in evidence automatically unless it is declared to be relevant by the Evidence Act. In my opinion, the evidence sought to be adduced by the appellants is clearly relevant under section 9 and 11 of the Evidence Act. In fact, section 11, it is held, makes all facts logically relevant, legally relevant. Section 11 has been described by some learned authors on the Law of Evidence as the residuary section dealing with relevancy of facts.
16 Section 11 declares the relevancy of a class of facts which in themselves are not relevant, but which acquire relevancy by reason of their connection with some relevant fact on which the prosecution relies for the purpose of proving its case against the accused. This class of facts is highly valuable to the accused in support of his defence, because they tend, together with the explanation offered by the accused of the circumstances appearing in the evidence against him, to expose the infirmity of the prosecution case and to demolish the inferential structure on which that case rests (see Principles and Digest of the Law of Evidence by M. Monir, page 109, Thirteenth Edition 2001 Published by The University Book Agency ALLAHABAD 211001). A further discussion on the provisions of section 11 will have to be undertaken in the latter part of this judgment while dealing with some specific contentions raised by the learned Advocate General. What needs to be observed here is however, that the evidence sought to be adduced by the appellants is certainly relevant. It may be added that the very statements made by the learned Special Public Prosecutor before the Trial Court, as are reflected in the impugned order, indicate that the relevancy of this evidence was not only never challenged by the prosecution, but rather the relevancy was highlighted by the prosecution itself. The Trial Court also has not come to the conclusion that the evidence proposed to be adduced by the appellants was not relevant. No contention that the evidence is irrelevant, has been raised before this Court either. The objection to the receipt of such evidence was based on the issue of admissibility. 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.
17 In the instant case, the evidence sought to be adduced by the appellants has been held by the Trial Court, to be inadmissible.
18 Before examining the rival contentions and going into the merits of the objections raised by the prosecution before the Trial Court, a primary and fundamental issue raised by Dr.Choudhary, the learned counsel for the appellants, needs to be decided. Dr.Choudhary contended that the order passed by the learned Trial Judge is not proper for a more primary and fundamental reason. According to him, in view of the directions given by the Supreme Court of India in the case of BipinPanchal Vs. State of Gujarat (2001) 3 SCC, the learned Trial Judge, at that stage, was not required to, or expected to decide the objections raised by the learned Special Public Prosecutor to the admissibility of the evidence in question finally. Indeed, instead of deciding the objections after elaborately considering various legal provisions and after hearing the counsel for the parties at length, the Trial Judge ought to have kept the directions given by the Supreme Court of India in the said case in mind. In that case, Their Lordships expressed concern about protracted trials, particularly where the accused persons are languishing in prison for long years as undertrial. One of the causes resulting in such protracted trials was observed to be 'the objections taken by either of the parties to the receipt of certain evidence or documents in evidence by challenging the admissibility of such evidence, and the passing of detailed orders by the trial Court while either upholding or overruling such objections'. This is what their Lordships observed and held:-
â13. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realized through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.â (Emphasis supplied)
14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).
Their Lordships further went on to explain:
â15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16 We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.
(Emphasis supplied)
19 In view of these directions given by the Supreme Court of India, the Trial Court, even if it felt any doubt about the admissibility of the evidence in question, ought to have admitted the evidence subject to the question of its admissibility to be decided later in the final judgment. That the aforesaid observations are 'law declared' by the Supreme Court of India, and are binding on all Courts Tribunals within the Territory of India, cannot be doubted for a moment. These observations were quoted with approval by the Supreme Court in its subsequent decision in State Versus NavjotSandhu (2003)6 SCC 641.
20 Dr.Chaudhary has brought to my notice a decision of the Gujarat High court in State of Gujarat Vs. Ashulal Nanji Bisnol and others 2002(4) Crimes 47. In that case, it was contended before the Gujarat High Court that the decision in the aforesaid case of Bipin Panchal (supra) would not be binding under Article 141 of the Constitution of India, as that was not the ratio of the decision given by the Supreme Court. The Gujarat High Court negatived such contention, and held that what was decided by the Supreme Court in paragraph nos. 13, 14, 15 and 16 of Bipin Panchal's case (supra) (reproduced above), was not a passing observation, but 'deliberate judicial decision' on consideration of the point involved in the matter, and therefore, it had a binding effect.
21 The impugned order, therefore, is clearly in breach of the directions of the Apex Court given in Bipin Panchal's case (supra).
22 The learned Advocate General, in this context, submitted that if the appeal is to be remanded back on that basis with a direction to admit the said evidence, and decide its admissibility at the final stage, then he would have no objection for the same. He, however, submitted that the impugned order cannot be called to be erroneous or illegal only on that ground that the directions given in BipinPanchal's case (supra) were not followed. According to him, though the Trial Court ought to have kept the directions given by the Supreme Court of India in Bipin Panchal's case in mind, still, the order passed by it being well reasoned, proper and legal, was not liable to be interfered with.
23 Though it is possible to say that the directions given by the Supreme Court of India 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, and before actually admitting it, this was not a case where it was proper to ignore the directions. 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; and how right Their Lordships were can be seen from what has happened in the instant case itself. The deciding of the question of admissibility without adhering to the directions given by the Supreme Court of India, has resulted in considerable delay inasmuch as during the pendency of these appeals, the trial could not be proceeded with. Indeed, this was a fit case where the trial Court should have kept the directions given by the Supreme Court of India in Bipin Panchal's case (supra) in mind and followed them.
24 Undoubtedly, the learned Advocate General conceded that if the matter was to be remanded back on this ground, he would have nothing to object, but since by that time arguments on the merits of the matter had already been advanced, and the appeal on merits having been substantially heard, the learned counsel for the appellant submitted that he would invite a decision on merits of the matter. If such a submission and suggestion would have come from either of the parties before advancing arguments on the merits of the impugned order, this Court might have sent the matter back to the Trial Court with directions to follow the procedure laid down by the Supreme Court of India in Bipin Panchal's case, but after having heard the matter extensively on merits, where, in addition to oral arguments, written submissions have been filed by both the parties and when a number of authoritative pronouncements in support of their respective contentions have been referred to and relied upon, it would be proper to decide the matter on merits. Also, from a reading of the order passed by the Trial Court it becomes clear that its conclusion about the 'inadmissibility' of the evidence has assumed finality, as far as that court is concerned, and therefore, remanding the matter back with a direction that the evidence may be admitted subject to a decision of its admissibility, to be arrived at later before the final judgment, would be rather unfair to the appellants.
25 What were the objections that were raised before the Trial Court regarding the reception of the said evidence, and what were the reasons for which the learned Trial Judge held that the appellants were not entitled to bring on record the evidence in question may now be examined.
26 It appears that the first objection was to the effect that Court cannot take the evidence of those witnesses in respect of the documents that were filed in some other case, and which were not yet proved there. It is apparent that there was no substance in such an objection. This would suggest that the Special Public Prosecutor would have had no objection if those documents had been proved in the other case i.e. MCOC Special Case No.4 of 2009. The legal basis of such objection is difficult to comprehend. The Law does not require that the documents sought to be proved in one case, must have been earlier proved in some other case, without which they cannot be permitted to be proved in the first mentioned case. The accused were not calling for those documents as 'proved documents' and it was their responsibility to prove them in this case, if they wanted to rely on them. That 'the documents had not yet been proved in the case in which they were filed', was certainly not a point that should have bothered the prosecution.
27 The second objection that was taken before the Trial Court was that the evidence in question would be hit by the rule against 'hearsay'. The impugned order records in details the contentions raised by the learned Special Public Prosecutor in this regard. It was contended by the learned Special Public Prosecutor that the 'core issue revolved around the fact that one person had given a confession in another case'. That, 'if such confession would come on record of MCOC Special Case No.21 of 2006, it would be inconsistent with the guilt of the accused persons, and that therefore, the accused wanted that it should be brought on record in the aforesaid MCOC Special Case No.21 of 2006'. It was contended by the learned Spl.P.P, 'that the three accused who had given confessions were the best witnesses to give evidence about the contents of the confession; and that, the evidence which the Dy. Commissioners of Police would be giving would be 'hearsay'. These contentions found favour with the learned Judge who was of the view 'that the Dy. Commissioners of Police who recorded the confessional statements would not be in a position to state whether the facts stated in such confessions were true'.
28 It is not possible to accept the view of the learned Judge. In the first place, the appellants had not claimed â and could not have claimed â that the confessions of those accused 'were true'. They were not expecting to 'prove' those confessions against those accused. What they were saying is that someone else has confessed of having committed the offence with which they are charged, and it is difficult to see how they could be precluded from establishing the same on the ground that such evidence would be 'hear-say'. For that matter, every confession, so long as it is tendered for proving the facts stated therein, is 'hear-say'. The general rule against 'hearsay', as laid down by the Evidence Act is qualified by and is subject to the following three important classes of exceptions, recognized by the Evidence Act itself.
(A) Admissions and confessions;
(B) Statements by deceased persons,
and
(C) Statements contained in public documents.
Hear-say evidence, when falling within any of the above exceptions is receivable notwithstanding that direct evidence of the facts involved may also be available. Interestingly, this line of reasoning put forth by the learned Special Public Prosecutor before the Trial Court logically should lead to the conclusion that the evidence of the Dy. Commissioners of Police concerning the confessions of the said accused persons in the said Special case No.4 of 2009 would not be admissible against those accused, being hit by the rule against 'hear-say'.
29 The absurdity of such reasoning does not end here. If that the concerned Dy. Commissioners of Police would not be in a position to state 'whether the facts stated in such confessions were true' is a proper ground to disallow their evidence, how can their evidence be given in MCOC Special Case No.4 of 2009? How can they, in that case would be in a position to state so? This problem will come in all the confessions, as the truth of the facts stated in the confession will be known to the confessor, and not to the person to whom it is made. Such person only gives evidence of the fact that a confession was made, and it is the Court that decides whether the fact of confession having been made is true and also whether the facts stated in the confession are true. Confessions are treated as circumstantial evidence of the truth of the facts stated therein and it is the Court that decides whether the facts stated in the confession should be believed or not in a given case. It is a matter of evaluation of evidence to be done by the Court after it is tendered. There is therefore, no substance in such contentions, which have, rightly been given up by the Respondent â State, before this Court. The learned Judge was clearly in error in accepting this contention and holding the evidence, proposed to be adduced by the appellants as inadmissible, being hit by the rule against 'hear-say'. Perhaps, being aware of this obvious absurdity in this sort of reasoning, a claim has been made that all this happens, because of the provisions of section 18 of the MCOC Act, which is the main contention â if not the only contention â put forth before this Court; and shall be examined and discussed later, in the light of the arguments advanced by the learned Advocate General.
30 Again, there exists a difference between the truth of the facts contained in a confession, and the fact that a confession exists. The fact that someone else has confessed about having committed the crime with which the appellants are charged is relevant in itself. In fact, it is difficult to understand as to how the Court is supposed to decide whether the confession is truthful or not before the evidence of such confession is given. It is interesting to note that though some arguments were advanced by the learned Advocate General to the effect that 'the fact that someone else has confessed about the same crime for which the appellants are being charged, is by itself not relevant at all unless the truth of such confession is sought to be proved,' that was not the stand of the learned Special Public Prosecutor before the Trial Court. In fact, the impugned order itself records that the objection of the Special Public Prosecutor was that if the confessions of the accused in the MCOC Special Case No.4 of 2009 is brought on record of the case against the appellants, it would be inconsistent with the guilt of the accused (paragraph no.6 of the order). It was the specific contention of the Special Public Prosecutor before the Trial Court that the appellants wanted to bring the said confession on record in the present case, because such confession would be inconsistent with the guilt of the appellants.
31 I have, nevertheless, seriously taken into consideration as to whether simply because the evidence of the confessing accused in the said MCOC Case No.4 of 2009 would be available, the evidence of their confessions recorded by the Dy. Commissioner of Police should not be admitted. I am unable to hold so. Simply because there is no bar for examining the confessing accused themselves, it cannot be contended that the confessional statements made by them cannot be brought on record. It may once again be emphasized that when such evidence is rendered admissible by the Evidence Act and when it is a well recognized exception to the rule against hear-say, only because direct evidence would also be available, the evidence does not become inadmissible. The possibility of 'better evidence' in the form of testimony of the confessing accused being available will not bar the admissibility of what has been declared as relevant and admissible by the Evidence Act. For instance, entries in Public books and records and Statements contained in public documents are also treated as exception to the rule against hear-say, and are admissible in evidence, irrespective of the fact whether the public servant or the authority which made the entries or statements is available for examination. The law does not prevent the evidence declared to be relevant by section 35 of the Evidence Act from being given even if direct evidence of the maker of the entries would be available. Same is the case here. Apart from this, there is another aspect of the matter. Even if the Dy. Commissioners of Police are examined, if the need would arise, the defence â or even the Court for that matter â would be at liberty to thereafter examine the confessors themselves. It should be left to the appellants to decide whether to examine the confessors as witnesses for defence, which option will not be closed to them, even after the Dy. Commissioners of Police are examined. In this context, the powers of the Court under section 311 of the Code and section 165 of the Evidence Act also need to be kept in mind and, therefore, the matter cannot be approached from an angle as if examination of Deputy Commissioners of Police would be 'in place of' and 'instead of' examining the confessing accused themselves. Thus, in short, the evidence which is otherwise relevant and admissible cannot be shut down on the ground that evidence of the confessors themselves would be available, and that, therefore, the appellants must introduce that evidence alone.
32 At the cost of repetition, it may be observed that what the appellants wanted was to bring a conflicting piece of evidence before the Court, and not that the other accused were guilty of the offences with which the appellants are charged. All that the appellants wanted to establish was that there exists some material or evidence with the police that someone else had confessed about the crime with which they are charged. Therefore, for proving that a confession of such type indeed existed, the evidence of the persons before whom such confession was made, and by whom it was recorded would be relevant and admissible.
33 The vehemence with which the reception of the evidence collected by its own investigating machinery is opposed by the State is difficult to understand. This is particularly so because that evidence is being relied upon in the said other case. Surely, it is not that the State thinks that its investigating machinery has fabricated the said evidence â atleast that is not suggested. Whether the facts stated in the confessions are true, would be decided by the Court. Simply because such confessions or the fact that someone else had confessed about the crime in question would be brought on record, it would not lead to the Trial Court accepting that such confession was true, or that the appellants are innocent. Such confession, or rather its existence, would only be a relevant fact, the value of which was required to be judged by the Trial Court while considering the ultimate effect of the evidence adduced by and against the appellants during the trial. The attempt to obstruct the entry of this evidence therefore was not at all justified.
34 It is clear that the facts which are permitted to be introduced in evidence by virtue of section 11, 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 or tendency can be permitted to be introduced on behalf of the accused persons.
35 A reference to a decision of the Supreme Court of India in SatbirVs. State of Maharashtra 1981 SC 2074, would be useful in this context. In that case, the appellant before the Supreme Court had been convicted of an offence punishable under section 394 of the IPC read with section 397 of the IPC and section 34 of the IPC, and had been sentenced to suffer RI for seven years, which conviction had been upheld by the High Court. The prosecution case was that the original complainant Bhagwan Singh was robbed by Satbir (appellant before the Supreme Court) and Dayanand, of a watch and a cycle. The First Information Report was lodged on 23 September 1973 giving details of the robbed property. The appellant Satbir was arrested on 29 September 1973 and though the Test Identification Parade was arranged to be held on 9 October 1973, it did not take place because Satbir refused to participate in the same, on the ground that he had been shown to the witnesses. The High Court based the conviction of the appellant only on the recovery of the watch made from him on 29 September 1973 when he was arrested in the course of ambush. There was evidence of some witnesses to prove the recovery of the watch from the possession of the appellants. It was noticed by Their Lordships of the Supreme Court of India that on 27 September 1973, Dayanand had filed an application before the Magistrate, alleging that the police had arrested the appellant Satbir in connection with the First Information Report, and were trying to arrest Dayanand also, in order to implicate him falsely, and to get him identified. Their Lordships observed that the said statement clearly showed that there was a possibility of the appellant having been arrested on 27 September 1973 or even before before that; and that if there was any truth in that statement, then the evidence of recovery, produced by the prosecution became extremely suspicious. It was contended by the counsel appearing for the State that the application filed by Dayanand was not admissible and could not be taken into consideration in order to dislodge the prosecution case. Their Lordships observed, in that context that though the said application did not have much evidentiary value, it was undoubtedly relevant under section 11(2) of the Evidence Act. The said application was taken into consideration and it was held that the recitals contained therein, together with certain other factors, created a doubt about the story of appellants' arrest on 29 September 1973 and consequently about the recovery. The conviction of the appellant was set aside and he was acquitted.
36 Similar examples where statements contained in documents or records, not strictly proved in accordance with the provisions in Evidence Act are taken into consideration because of the sheer inconsistency of such material with the prosecution story, can be noticed in criminal cases involving the evidence of dying declarations. Cases where the facts show that initially, the victim narrated the history of accident which is recorded by some authority and later on, the victim made a statement alleging that that she had been set on fire by someone else are not uncommon in criminal courts. It often happens that the prosecution seeks to rely only on the statement of the victim to the effect that she was set on fire by the accused, and does not prove the other statement viz, that she had caught fire accidentally, for obvious reasons. There are reported cases where the superior Courts have held that the existence of such a statement would be inconsistent with the fact of the victim having been set on fire by the accused, and therefore, was relevant, and required to be taken into consideration by the Court. In fact, it has been held that it would be the duty of the prosecution to bring such fact on record (as a part of its duty to act fairly), and in case it chooses not to bring it on record, the accused is not precluded from bringing on record statement of the deceased which was inconsistent or contradictory to her statement relied upon by the prosecution. It would be open for the prosecution to contend that the statement of the deceased which has been relied upon by it, is trustworthy and reliable; and that the statement on which the accused is placing reliance is unworthy of belief; but that would be a matter concerning appreciation of evidence and not admissibility or relevancy of that particular piece of evidence. The entry of such evidence cannot be obstructed.
37 Another consideration which weighed with the Trial Court in refusing permission to examine the said witnesses is that the evidence of those witnesses if permitted to be adduced, it would prejudice the accused in the MCOC Special Case No.4 of 2009 as those accused would have no opportunity to cross examine the witnesses i.e. the Dy. Commissioners of Police â who would be deposing about their confession. According to him, therefore, the evidence of those witnesses would be inadmissible.
38 This reasoning is not only entirely wrong, but rather surprising. In the first place, lack of opportunity to the accused in the MCOC Special Case No.4 of 2009 to cross examine the said witnesses, would render their evidence inadmissible in that case (MCOC Special Case No.4 of 2009) and not in this case. Secondly, the apprehension felt by the learned Judge that a certified copy of the evidence of the Dy.Commissioners of Police, if recorded in this case, can be tendered in the MCOC Special Case No.4 of 2009, and that would cause prejudice to the said accused, is baseless. The observations to that effect as found in paragraph no.8 of the impugned order do not indicate whether this is the view of the learned Judge himself, or he was merely reproducing the contention advanced by the learned Special Public Prosecutor. However, he seems to have accepted such contention and, therefore, the propriety thereof, needs to be discussed. These observations whether they are in the nature of submissions of the Special Public Prosecutor, or the opinion of the learned Trial Judge â are patently incorrect. It is elementary that the guilt or innocence of an accused is to be decided on the basis of the evidence adduced in the trial against him, and not on the basis of evidence adduced in some other case. The evidence of the Dy. Commissioners of Police given in the present case, could not have been the evidence in the MCOC Special case No.4 of 2009, and there was absolutely no danger that the same could be treated as evidence against the accused in those cases. The observations that a certified copy of the evidence of those witnesses, if recorded in this case could have been tendered in MCOC Special Case No.4 of 2009, is hopefully, not the observation of the learned Judge, and is only an argument advanced by Special Public Prosecutor before him. Such argument which has not been refuted straight away by the learned Trial Judge, is rather surprising in the light of the elementary fact that in every trial, evidence has to be adduced before the concerned Court, and a certified copy of the deposition of the witnesses recorded in some other case cannot be tendered before the Court for proof of the facts stated in such deposition. Where would be the question of causing prejudice to the accused in the said case when such evidence would not be before that Court, in the first place, and in the second place, even if it is attempted to be brought on record, it would not be admissible not having been recorded in that case, and in any case, not having been recorded in the presence of the accused in that case. Dr. Choudhary rightly pointed out that the only provision of law which would make such evidence relevant for proving the facts stated in such evidence would be section 33 of the Evidence Act, but that the conditions for the relevancy and admissibility of such evidence as laid down in the said section, not having been fulfilled, there was absolutely no reason to disallow the evidence in the present case on the ground that it would prejudice the accused in MCOC Special Case No.4 of 2009. This is apart from the fact that I entirely agree with the learned counsel for the appellants that the Trial Court should have been more concerned about the prejudice that would be caused to the appellants rather than bothering about the prejudice that was likely to be caused in its opinion to some other accused persons in some other case which was not before him. This reasoning also is without merit.
39 The only other consideration which led the learned Trial Judge to hold that the witnesses in question, could not be examined is that confessions of the said accused persons were not admissible in this case, in view of the provisions of section 18 of the MCOC Act.
40 In the present appeal, this is the main â or rather the only â point that is seriously canvassed for contending that evidence of the said confessions recorded by Dy. Commissioners of Police would be inadmissible. Thus, though the reasoning of the Trial Court was based on some other aspects also, and though the arguments advanced before the Trial Court objecting to the reception of such evidence were not entirely on the ground that section 18 of the MCOC Act bars it, in this appeal this is what has been mainly contended.
41 According to the learned Advocate General such a confession recorded under the provisions of section 18 of the MCOC Act, can be used only in the case in which it is recorded and not during the trial of any other case. Apart from his submission that language used in section 18 warrants such an interpretation, the Learned Advocate General submitted that the practice of permitting evidence of confessions recorded in one case, to be given in another case, would be dangerous. He submitted that, such a course, if held permissible, in fact, would affect the accused persons seriously. He posed a question as to 'what would happen if the prosecution starts taking out confessions recorded in other cases, and proving the same against the accused in a given case.' According to him, it was clearly not permissible; and 'since this cannot be allowed to be done by the prosecution, it would follow that even the accused persons would not be able to do so'. That 'the confession recorded in one case cannot be used in another case' is one of the strong grounds on which the Learned Advocate General contends that the evidence that was sought to be adduced by the appellants would be inadmissible. The proposition put forth by the learned Advocate General does not seem to be correct. The relevancy of a piece of evidence is determined by the provisions in the Evidence Act, (or any other law providing for the relevancy and admissibility of evidence). The concept of relevancy cannot be decided 'case wise' but 'fact wise'. It cannot be accepted that if evidence relevant in establishing one crime is discovered while investigating into another crime, such evidence would be inadmissible or irrelevant in the trial with respect to the first mentioned offence. If any authority is felt necessary on this issue, the same can be found in the decision of the Supreme Court of India in State of Gujarat Vs. Mohd.Atik, AIR 1998 SC 1686. In that case, the Public Prosecutor had moved the Trial Court for permission to use a confessional statement of an accused made during investigation of another crime, but the trial Judge had disallowed the same on the premise that 'unless the confession was recorded during the investigation of the very offence under trial, it cannot be used in evidence of that case'. This order was challenged by the State of Gujarat by filing an appeal by Special Leave. Their Lordships reproduced the question framed by the Trial Court which read as under:-
âThe question therefore is whether the prosecution be permitted to introduce and prove the confessional statement of an accused, alleged to have been made during the investigation of another offence committed on a different date, during the trial of that accused in another crimeâ.
Their Lordships observed that the confession had been duly recorded in accordance with the provisions of section 15 of the TADA Act and, was therefore, admissible in evidence. Their Lordships observed that when the confession was admissible it was immaterial whether the confession had been recorded in one particular case or in a different case. This is what Their Lordships observed:-
âWe have, therefore, absolutely no doubt that a confession, if usable under Section 15 of the TADA, would not become unusable merely because the case is different or the crime is different. If the confession covers that different crime it would be a relevant item of evidence in the case in which that crime is under trial and it would then become admissible in the case.â
42 Thus, the major premise on which the learned Advocate General based his contention of the evidence in question being inadmissible is not legally correct. It, therefore, follows that since the prosecution can also bring evidence of confessions recorded in some other case or cases, subject of course to it being relevant in the case in which it is sought to be brought on record, then there should be certainly no prohibition for the accused persons bringing on record confessions recorded in some other case or cases. Rather, going by the very argument of the Learned Advocate General, it must be held that when the Law permits the prosecution to adduce evidence of confession recorded in one case, in another case, the accused also must be allowed to do so. At any rate, that the confessions have been recorded in some other case, cannot be a valid objection for their admissibility.
43 In the written submissions filed by the State, this contention has been put forth more cautiously and in a modified form. The 'legal issue involved' is stated to be the following:
Whether the confession recorded under section 18 of the MCOC Act in one case can be used or relied upon in another case in which the confessor himself is not a party? (paragraph 4 of the written submissions)
44 I do not think that the legal issue involved has been properly stated.
45 First of all, the way the issue is put forth keeps it vague whether the objection to the use of the confession is restricted only in case of confessions recorded under section 18 of the MCOC Act, and whether that the confessions recorded under other provisions of law such as a confession under section 164 of the Code can be used or relied upon in another case, is conceded. Further, whether the restriction on using such a confession in another case, would come in play only where the confessor himself is not a party, and whether that where the confessor would be a party, such confession could be used even in another case, is conceded. Apart from this, the issue does not speak as to who is to make the use of such confession or place reliance upon it â whether the accused or the prosecution. In my opinion, the issue as put forth, is rather misleading. Whether it can be used or relied upon in another case would depend on several factors, but the most important factor would be, who is going to use it and for what purpose. The question of using the confession of a person in another case where the confessor is not a party, by the prosecution, can never arise. If the confessor is not a party, what is the prosecution to do by saying that, 'so and so, not concerned with the case' had confessed in some other cases. Apart from the confessor himself, a confession can be relied upon by the prosecution only against the co-accused or abettor or conspirator etc. In such a case, such co-accused, abettor or conspirator, not being jointly tried with the confessor, the confession cannot be used against such co-accused, abettor etc. A confession can be used only against the maker, and this rule is diluted permitting it to be taken into consideration against a co-accused, abettor, conspirator etc, only in cases where the confessor and such other accused are being tried jointly. This is permissible under section 30 of the Evidence Act, and also under the provisions of section 18 of the MCOC Act. Except this use which has been permitted expressly by the aforesaid sections and similar sections in other enactments, such as TADA, a confession cannot be used against anyone in a case in which the confessor is not a party. However, when the accused would seek to use a confession, obviously, he would not seek to rely on it for proving that he is guilty. He would use it for claiming himself to be innocent, or otherwise for his benefit and in his favour, if he can do so within the law. When the accused, in a given case, would want to rely on a confession of someone else recorded in some other case, as evidence of his innocence or otherwise as evidence in his favour, position would be entirely different. Proving the confession against a person for establishing that he has committed the offence in question, and proving the existence of a confession of another, by someone else who claims that the confession establishes his innocence, are two drastically different matters.
46 Really speaking, because of the vagueness in the issue raised, the answer to the question posed is quite simple and it is, âit can be if it is relevant and admissible in that another caseâ. However, that does not solve the problem. In my opinion, the real legal issue involved is not what the State has claimed to be, and the real question involved in the appeal, is totally different. It can be best explained by giving an illustration. The propositions advanced by the learned counsel for the appellant, and the learned Advocate General can be best examined by keeping the following illustration in mind.
Illustration
âAâ is being prosecuted for having committed murder of âXâ. âBâ is being prosecuted separately for having committed murder of âYâ. âAâ somehow learns that âBâ had confessed before âCâ about having committed murder not only of âYâ, but also of âXâ. âAâ wants to bring before the court which is trying him, the fact of âB'sâ confession regarding murder of âXâ, as and by way of part of his defence. Can âA â not do so?
47 The aforesaid discussion indicates that clearly âAâ can do so, and there is no opposition to this view. The further question that arises on the basis of the contentions advanced before this Court, is, then, narrowed down as follows:
âAâ wants to examine âCâ as a defence witness and prays for summoning him as such. The prosecution objects on the ground that âAâ cannot examine âCâ, and if he wants to bring the relevant evidence on record, he must necessarily examine âBâ himself. Is the objection tenable?
48 In view of the contentions advanced before me, suggesting that the answer may vary on the basis of the status and position of âCâ with respect to the confessor and the confession, we may keep the following possibilities in mind.
(i)âCâ is a common person â a friend of âBâ, and not a person in authority, or connected with the investigation of the case.
(ii) âCâ is an Inspector of Police.
(iii)âCâ is a Magistrate who has recorded âBâs confession in accordance with section 164 of the Code.
(iv)âCâ is a Police Officer, not below the rank of a Superintendent of Police who has recorded âBâs confession in accordance with the provisions of section 18 of the MCOC Act. (Assuming that âAâ and âBâ are facing charge of offences punishable under the MCOC Act also in the aforesaid separate murder cases pending against them.)
49 As a result of the aforesaid discussion, there can be no difficulty in concluding that in cases covered by (i) above, âAâ can certainly bring on record the evidence of âBâs confession, and that for the purpose, can examine âCâ. The prosecution cannot object âCâ from being examined and claim that âAâ must necessarily examine âBâ himself to prove the facts stated by âBâ in his confession. Similarly, there can be no doubt that in cases covered by (iii) above, the evidence of âBâs confession would be admissible. Not only âCâ can be examined to prove that confession, but even the record of such confession if produced will have special sanctity attached to it by virtue of section 80 of the Evidence Act. Thus, in cases of both these types, the evidence of âBâs confession would be admissible in âAâs trial, (not for proving that âBâ has committed the offence, but for creating a doubt on whether the murder of âXâ has indeed been committed by âAâ) and such evidence can be introduced by examining âCâ as a defence witness and/or requiring âCâ to produce the record of such confession.
50 What happens in case mentioned at (ii) above, where âCâ is an Inspector of Police, would need some discussion. It is because the confession of âBâ recorded by him would not be admissible against âBâ in his trial, in view of the bar of section 25. The question would be whether this bar under section 25 to prove such confession against âBâ would prevent âAâ from proving the same in his trial, as and by way of his defence.
51 It has already been seen that the existence of such confession would be inconsistent with the facts alleged by the prosecution in the case against âAâ, and therefore, the same would be admissible under section 11 of the Evidence Act. Whether that the confession of âBâ recorded by âCâ cannot be proved against âBâ, in âBâs trial, would be a factor which would disentitle âAâ from proving the same in his favour, and for his benefit inspite of its relevancy under section 11 of the Evidence Act may be examined.
52 It is contended by Dr.Yug Choudhary, the learned counsel for the appellants that this factor viz. 'Non-provability' of the said confession against âBâ would not disentitle âAâ from proving the same in his favour. Inspite of such a categorical assertion, it is not specifically dealt with by the learned Advocate General in his submissions whose emphasis, as aforesaid was on non-permissibility of such use in case of the confessions recorded under section 18 of the MCOC Act. Therefore, the question as to whether such a confession would be admissible under such circumstances, when it is not covered by the provisions of section 18 of the MCOC Act, has remained unanswered in the contentions advanced by the learned Advocate General. Again, an emphasis on joint trial has been placed by referring to section 30 of the Evidence Act and section 18 of the MCOC Act, while discussing the question of relevancy and admissibility of such evidence. Therefore, all these aspects need to be thoroughly discussed before dealing with the claim about the inadmissibility of such evidence by virtue of section 18 of the MCOC Act, which claim, as aforesaid has been put forth without making any submissions or opining about the admissibility of confessions, not covered by section 18 in a situation where an accused in one case wants to use the confession made by another, in another case, and as simplified by the illustration given above. It is necessary because without knowing the position under the general Law, it is not possible to arrive at a correct conclusion with respect to such use of confessions recorded under section 18 of the MCOC Act.
53 The legal position seems to be that even where a confession is not admissible or provable due to some express statutory bar, the use of such confession for purposes otherwise than for proving the same against the maker of it, is not barred. Dr. Chaudhary referred to some decisions of this Court to illustrate this point, a brief reference to some of which would remove the doubt, if any, about this legal position.
54 In MadhavgirVs. State of Maharashtra, 2005 (1) Mh.L.J 162 also, a Division Bench of this Court held that though section 25 of the Evidence Act prohibits the proof of a confessional statement made by an accused to a police officer, the explanation in a confession given by the accused to the police can be proved in his favour. Again, in RohidasManik Karsale Vs. State of Maharashtra (Criminal Appeal No.1496 of 2003) a Division bench of this High Court after referring to several previous authoritative pronouncements concluded that though a confession made by an accused to the police was not provable against such accused, there was no bar to use the same in his favour.
55 A Division bench of Karnataka High Court also in MadaiahVs. State 1992 Cr.L.J 502, took the same view i.e. that there is nothing in the Evidence Act that precludes an accused from relying upon his confession for his own purpose.
56 The judgments in RohidasManik Karsale Vs. State of Maharashtra (supra), MadaiahVs. State(supra) and MadhavgirVs. State of Maharashtra(supra) relied upon by the learned counsel for the appellants are sought to be distinguished on behalf of the State by saying that these judgments lay down only that there was no prohibition to the use of a confession when it is sought to be used by confessor in his favour; and that this is different from the use of the confession of one accused in one trial seeking to rely on the confession made by another accused in another trial. This is besides the point. The reliance on these authorities has been placed to show that even if a fact is not provable for a particular purpose, it can be still proved for a purpose for which there is no prohibition, provided such fact is relevant. The emphasis of the counsel for the appellants is on the fact that 'despite the prohibition contained in section 25 of the Evidence Act, use of a confession was not altogether barred'. The bar was restricted to proving it against the maker. If any other use of such confession would be permissible, and relevant under the Evidence Act, then there would be no bar to make such use of that confession. When the controversy is about this issue, whether that it was permitted to be used in favour of the maker himself, or whether it would be used in favour of someone else, would not matter.
57 Anyway, Dr. Chaudhary has also relied upon a Full Bench decision of this Court in Imperatrixvs. Pitamber Jina ILR 187892 Bom 61, which directly deals with the relevant point and meets the objection of the State that the decisions in RohidasManik Karsale Vs. State of Maharashtra (supra), MadaiahVs. State (supra) and MadhavgirVs. State of Maharashtra (supra), do not speak of use of the confession made by one accused in favour of another accused.
58 In that case, the confession made by one accused, which was hit by the provisions of section 25 of the Indian Evidence Act, was sought to be proved on behalf of another accused in the same case by asking a certain question to a witness. Their Lordships held that section 25 of the Indian Evidence Act did not preclude the counsel for one accused person asking questions to prove a confession made by another accused person. Their Lordships clarified that such confession, however, was not to be treated as evidence against the confessing accused (because of the bar of section 25), but it could be considered as  vidence on behalf of the other accused. Their Lordships went on to observe that:-
âunless the law was so, the accused person who was on his trial with the confessing party, might be considerably prejudiced by exclusion of that evidenceâ.
The bar under section 25 of the Evidence Act was held to be not applicable as the confession was sought to be proved not against the confessing person or the co-accused, but on behalf of the co-accused.
59 Even the judgment in the case of ImperatrixVs. State (supra) is claimed to be inapplicable to the fact of the present case on the ground that in that case, the confession made by one accused was sought to be used against another accused, but in the same trial. It is contended that the ratio of the judgment would be consistent with the provisions of section 30 of the Evidence Act as well as with the proviso to section 18(1) of the MCOC Act. This submission misses the point and cannot be accepted. What the appellants are contending that even where two accused were being tried together, and even where the confession made by one of them was inadmissible by virtue of section 25 of the Evidence Act, still one accused could prove the confession made by the other accused in favour of the first one. The contention advanced on behalf of the State about joint trial is misconceived and unacceptable as that the trial was joint, was a factor which would be adverse to the reception of a confession which is inadmissible against one of the accused. In other words, where a confession can be admitted even where the trial is joint, there would be no bar to admit the same when the trial would be separate. In fact, in that case, Their Lordships specifically considered whether â if the use of confession as intended by one accused was to be permitted â it would be desirable to direct separate trial of both the accused. The suggestion that if both the accused are jointly tried, one accused can use the confession of the co-accused in his favour, but he can't make such use of the confession, if both of them are being separately tried, is contrary not only to reason and logic, but also the Law. The issue of joint trial that is being raised in this context is irrelevant. It would be relevant when the prosecution is seeking to prove a confession made by one accused against the co-accused; and unless the trial would be joint, the confession made by one accused cannot be used against another. When one accused wants to prove the confession made by another accused in some other case in his favour, then objection to the reception of such confession on the ground that âit is not a joint trial,â is irrelevant and meaningless. Infact, the legal position is otherwise. âJoint trialâ is likely to be an impediment in the way of proving of a confession made by one accused, by another accused in his favour, rather than a factor facilitating such a course. When the trials are separate, it is more difficult to object to the reception of such evidence. The reason is obvious. In a joint trial an accused who proves the confession of another accused in his own favour, puts the confessing accused in difficulty, as this brings on record material which implicates the confessing accused, which otherwise would not be brought on record. When the trials are separate, this situation would not arise as the confession of the confessing accused would not be before the Court which is trying such confessing accused and as such, the confessing accused would not be affected at all, by such confession being brought on record in the case against another accused. Anyway, this legal position cannot be disputed in the light of the observations made in the case of Imperatrix(supra). This has to be held as laying down that even where there is a joint trial, one accused can prove in his favour a confession made by another accused, even if such confession would be inadmissible against the confessing accused, due to some statutory bar. As already observed, when the trials are separate, resolving the issue of admissibility of such evidence would be obviously simpler. Thus, the evidence has been held to be admissible in Imperatrix'scase not because it was a joint trial, but in spite of it being a joint trial. There is therefore, no substance in this contention.
60 The contention advanced by the learned Advocate General about the necessity of a joint trial before the evidence of confession of one accused being used in favour of another accused are based on an incorrect interpretation of the provisions of section 30 of the Evidence Act, the emphasis on which has been laid also in the written submissions made by the State. (paragraph nos.7 to 10) In paragraph nos.5 and 6 of the written submissions, the provisions of section 24, 25 and 26 have been referred to, and the position has been stated âthat public policy requires that confession obtained by coercion or torture by the police, are worthless and should not be encouraged.â In paragraph no.6, it is mentioned that it is only confessions made in the presence of the Magistrate under section 164 of the Code that can be introduced in evidence. This position in law has been stated with substantial accuracy, but what is further stated (in paragraph no.7) i.e. that section 30 of the Evidence Act is an exception to the aforesaid rule viz. of 'inadmissibility of the confessions obtained by police unless such confessions are made in the presence of a Magistrate and recorded under the provisions of section 164 of the Code', is incorrect. Section 30 is not an exception to the rules contained in section 24, 25 or 26, or any of them, about the inadmissibility of the confessions falling under those provisions. The belief (as reflected from the written submissions) that the confessions which would not be admissible, relevant or provable because of the provisions of section 24, 25 or 26 of the Evidence Act, would be admissible by virtue of the provisions of section 30, is incorrect. Section 30 of the Evidence Act reads as under:-
â30. Consideration of proved confession affecting person making it and others jointly under trial for same offence -
When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation - "Offence" as used in this Section, includes the abutment of, or attempt to commit, the offence.â
(Emphasis supplied)
61 The words emphasized above are totally missed by the State while advancing a submission that section 30 is an exception to the rule against the admissibility of the confessions referred to in section 24, 25 or 26 of the Evidence Act. Undoubtedly, before a statement by one of the accused persons is taken into consideration against the other accused, the following conditions must be fulfilled:
(i) There must be a joint trial for the same offence.
(ii) There must be a confession of one of the accused.
(iii) Such confession of guilt must affect himself and others i.e. it must implicate the maker substantially to the same extent as the other co-accused.
(iv) Such confession must be duly proved.
62 Section 30 is an exception to the general principle of Evidence Act and of the common law that a confession is only evidence against the person who makes it (and not somebody else) and it is not construed as an exception to the exclusionary rules laid down in section 24, 25 and 26. It would be too much to suggest that a confession before the police, made by an accused being inadmissible, though cannot be proved against him, can, however, be taken into consideration against a co-accused who is being tried jointly with the confessing accused for the same offence. The confession which cannot be proved against the maker, cannot be taken into consideration against the co-accused, and to this extent the aforesaid submission made by the State is clearly erroneous. Since the wrong notion about the principle and scope of section 30 of the Evidence Act, has led to some other contentions, the matter needed detailed discussion.
63 The aforesaid discussion leads to the conclusion that even where a confession is not admissible for proving the same against its maker, the same can still be used for some other purpose for which it would be relevant. Thus, a confession hit by section 25 or 26 of the Evidence Act though cannot be used against the maker, can still be used by the maker in his favour. Similarly, it can be used by a co-accused even if he is being tried jointly with the confessing accused, and the only restriction on the receipt of such evidence would be that such evidence would be taken into consideration only in favour of the accused introducing it, and not against the confessing accused. When inspite of the obvious likelihood of prejudice that would be caused to the confessing accused in having before the Court, a confession which otherwise could not be brought on record, the same is permitted to be brought on record on the ground of its relevancy in favour of the other accused, it is not possible to suggest that a person who is not a co-accused and who is not being tried jointly with the confessing accused, cannot make such use of the confession.
64 Thus, in our illustration given earlier, the legal position seems to be that even where âCâ is an Inspector of Police, and though therefore, the confession of âBâ recorded by him cannot be proved against âBâ, âAâ is not precluded from summoning âCâ in his trial and proving âBâs confession as a part of his defence.
65 This brings us to the last question viz. whether this legal position is changed because the confession in question happens to be a confession recorded under section 18 of the MCOC Act. In other words, whether in cases covered by (iv) in our illustration, âAâ cannot summon âCâ and prove âBâs confession as a part of his defence, needs examination.
66 Section 18 of the MCOC Act reads as under:-
18. Certain confessions made to police officer to be taken into consideration.
(1) Notwithstanding anything in the Code or in the Indian Evidence Act 1872, but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of Police and recorded by such police officer either in writing or on any mechanical devices like cassettes, tapes or sound tracks from which sounds or images can be reproduced, shall be admissible in the trial of such person or co-accused, abettor or conspirator:
Provided that, the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The confession shall be recorded in a free atmosphere in the same language in which the person is examined and as narrated by him.
(3)