J.K. Mehra, J.
(1) This Criminal Revision Petition has been filed by a private party, namely, People's Union for Civil Liberties (hereinafter referred to as PUCL) against the order of learned Chief Metropolitan Magistrate passed in a case which has come to be commonly referred to as St. Kitts conspiracy case, discharging Satish Sharma and R.K. Dhawan two of the accused on the ground that no case was made out against them. Charges were framed against rest of the accused persons. It may be noticed that tins very Pucl had approached the Hon'ble Supreme Court for intervention but their request was declined. Instead the Hon'ble Supreme Court appointed an amices curiae and allowed the parties to render assistance to Mr. Anil Dewan, the said amices Curiae. Hon'ble Supreme Court while disposing of the application for intervention passed the following order:
'WE do not consider it appropriate to permit any intervention in this matter. Shri Anil Dewan has been requested by us to appear as amices Curiae in this matter. He has kindly agreed to do so. It is open to anyone who so de- sires, to assist Shri Anil Dewan and to make available to him whatever material he chooses to rely on in public interest to enable Shri Dewan effectively and properly discharge his functions as amices Curiae. Except in this kind of assistance to the learned amices Curiae we do not permit any person either to be imp leaded as party or to appear as an intervenor. In our opinion, this is necessary for expeditious disposal of this matter and to avoid the focus on the crux of the matter getting diffused in the present case by the appearance of many per sons acting independently in the garb of public interest. In view of the above order made by us, I.A. No. 4 is not pressed by Mr. Ram Jethmalani. Sr. Adv. and Ms. Kamini Jaiswal, Adv. appearing in the matter. I.A. No. 4 is dismissed as not pressed.'
(2) As I entertained serious doubts on the locus standi of a third party, in this case Pucl, to file a Criminal Revision against a judicial order passed in a criminal prosecution, I proceeded to hear the parties on the question of locus standi of this petitioner to file the present revision petition. Incidentally, the said Pucl is headed by none other than Mr. Prashant Bhushan, Advocate.
(3) Mr. Shanti Bhushan, who was ably assisted by his son Mr. Prashant Bhushan, had placed reliance mainly on the judgment delivered by Hon'ble the Chief Justice Mr. P.N. Bhagwati (as he then was) in the case of Shaonandan Paswan Vs State of Bihar : 1987CriLJ793 . Mr. Shanti Bhushan had laid stress that they should be permitted to press the present petition being the one in the domain of public interest litigation. I have no doubt that public interest litigation has a very important role to play in bringing to light certain issues which concern the society or to enforce the fundamental rights of citizens or to prevent any violation thereof. At the same time, in my opinion, the Court should be extremely careful and slow in extending right to move any petition in criminal matters to third parties when in the scheme of criminal law even the complainant, except where in certain specified cases it is permitted under the Code of Criminal Procedure, has no locus standi to move any petition . on his own. The filing of a petition as public interest litigation for enforcement of civil liberty or a democratic right of the citizen is not the same thing as moving a criminal revision petition challenging a judicial order. It is also not the case of drawing attention of the authorities or setting the machinery in motion to initiate action in respect of an alleged offence.
(4) Initially, in the light of the arguments advanced by Mr. Shanti Bhushan and in the light of the views of Justice Bhagwati which were read in the Court it appeared that there is some merit in those contentions. But that is not the case as would become clear from the following discussion.
(5) The reasons given by Justice Bhagwati were in the nature of further elaboration and extension of the law that was laid down in A.R. Antutay Vs . R.S. Nayak case : 1984CriLJ647 where the locus standi of a person to lodge a complaint for initiating the criminal proceedings was considered. For facility the relevant part of the judgment of Justice Bhagwati is reproduced as under:-
'IT is for maintaining stability and orderliness in the society that certain acts are constituted offences and the right is given to any citizen to set the machinery of the criminal law in motion for the purpose of bringing the offender to book. It is for this reason that in A.R. Antulay v. R.S. Nayak this Court pointed out that 1984 (2) SCC 509 'punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi...'. This Court observed that locus standi of the complainant is a concept foreign to criminal jurisprudence. Now if any citizen can lodge a first information report or file a complaint and set the machinery of the criminal law in motion and his locus standi to do so cannot be questioned, we do not sec why a citizen who finds that a prosecution for an offence against the society is being wrongly withdrawn, cannot oppose such withdrawal. If he can be a complainant or initiator of criminal prosecution, he should equally be entitled to oppose withdrawal of the criminal prosecution which has already been initiated at his instance. If the offence for which a prosecution is being launched is an offence against the society and not merely an individual wrong, any member of the society must have locus to initiate prosecution as also to resist withdrawal of such prosecution, if initiated. Here in the present case, the offences charged against Dr. Jagannath Mishra and others are offences of corruption, criminal breach of trust etc. and thereforee any person who is interested in cleanliness of public administration and public morality would be entitled to die a complaint, as held by this Court in A.R. Antulay v. R.S. Nayak and equally he would be entitled to oppose the withdrawal of such prosecution if it is already instituted. We must thereforee reject the contention urged on behalf of Dr. Jagannath Mishra that Sheonandan Paswan had no locus standi to oppose the withdrawal of the prosecution. If he was entitled to oppose the withdrawal of the prosecution, it must follow a fortiorari that on the turning down of his opposition by the learned Chief Judicial Magistrate he was entitled to prefer a revision application to the High Court and on the High Court rejecting his revision application he had standing to prefer an appeal to this Court. We must thereforee reject this contention of the learned counsel appearing on behalf of Dr. Jagannath Mishra.'
(6) However, on perusal of the judgment it becomes clear that the above view is the minority view and it is not the view of the Court. This view did not find favor with the majority of the judges on that Bench, the majority view of the bench appears in Para 90 of the said judgment which reads as under:
'SECTION 321, Criminal Procedure Code . is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis'.
(7) It may be noticed that the present case does not relate to any withdrawal of prosecution unlike the case of Sheonardam Paswan relied upon by Mr. Shanti Bhushan. Even on the question of withdrawal of prosecution Justice Bhagwati's view did not find favor with the majority of judges on that Bench. Another case relied upon by Mr. Shanti Bhushan is that of State of Kerala v. Narayani Amma reported as 1962 Supp. 3 Scr 943 (947/948). The relevant passage reads as under:-
'THE opening words of S. 439 of the Criminal Procedure Code, viz 'in the case of any proceedings the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge', produce the result that revisional jurisdiction can be exercised by the High Court by being moved either by the convicted person himself or by any other person or suo motu, on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court's powers of revision into operation is, such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powers of revision.'
(8) Section 439 of the earlier Code of Criminal Procedure is analogous to Section 401 of the present Code of Criminal Procedure. There cannot be any quarrel with the general proposition of law. This provision however, came up for consideration of courts more than once as would become clear from the discussion appearing hereinafter. Mr. Shanti Bhushan also referred to the case of Pratap v. State of Up : 1973CriLJ565 . He referred to paras 15 and 21 of the said judgment mainly with a view to argue that assuming that the petitioner has no locus standi still the Court has ample jurisdiction to suo motu examine the case and rectify the errors in the orders of the Court below. However, the entire paragraph 21 was not read and it may be pointed out that in the same paragraph the limitation on the exercise of powers of this Court in Criminal revision are also clearly spelt out. In this case, the Criminal Revision petition was filed by the brother of the deceased who was an aggrieved party unlike the petitioner in the present case. The said paragraph is reproduced hereunder:
'THE power of revision in criminal cases vesting in the High Court, though wide and also exercisable suo motu is a power which, generally speaking, is narrower and more limited than its appellate power, though in certain respects it has a somewhat wider scope. It is discretionary and cannot be invoked as of right such as is the case of appellate power. Broadly stated, the object of conferring revisional power on the High Court under S. 435 and S. 439, Criminal Procedure Code . is to clothe the highest court in a State with a jurisdiction of general supervision and superintendence in order to correct grave failure or miscarriage of justice arising from erroneous or defective orders. The error or defect may arise from mis-conception of law, irregularity of procedure, misreading of evidence, misapprehension or misconception about law or facts, mere perversity or even undue hardship or leniency. The real core of this power is that its exercise is justified only to set right grave failure of justice and not merely to rectify every error however inconsequential. Merely because the lower court has taken a wrong view of law or misapprehended the evidence on the record cannot by itself justify interference on revision unless it has also resulted in grave injustice. It is no doubt not possible and is also not practicable to lay down any rigid test of uniform application and the matter has to be left to the sound judicial discretion of the High Court in each case to determine if it should exercise its extraordinary power of revision to set right injustice. Administration of criminal justice is as a matter of general policy a function which the State performs and private parties who may be inspired by a feeling or spirit of vengeance or vindictiveness are ordinarily not encouraged to prosecute criminal proceedings except when for special reasons the cause of justice so, demands. The High Court is, thereforee, ordinarily disinclined to interfere with the orders of subordinate criminal courts in which the State is the prosecutor at the instance of private parties except where for some exceptional reason it considers proper to do so in the larger interests of justice.'
(9) The view of the minority in a judgment which runs counter to the view of majority cannot be accepted to be the law in preference to the view of majority.
(10) Mr. Shanti Bhushan however did not cite any case where intervention by public interest litigant was held to be permissible even where the lower court had duly considered all the aspects of the case and had rendered a judicial verdict discharging the accused persons for reasons spelt out in the order.
(11) In fact, both Mr. Shanti Bhushan and Mr. Bhatia laid lot of stress on the right of a third party or lack of it, to intervene where the prosecution was being withdrawn. I am afraid this is not a case of withdrawal of prosecution.
(12) In reply to a direct question from Court Mr. Shanti Bhushan stated that he was not at all doubting the integrity or honesty of the learned Chief Metropolitan Magistrate. He submitted that he was arguing that the said Court had committed a very serious error in holding that the confession of Mr. Nandey recorded under Section 164 Cr.PC was not available as evidence against the co-accused. Mr. Bhushan referred to section 32(3) of Evidence ACt to support his contention that such confession could be read against, the co-accused. Mr. Bhushan however referred to this provision in isolation without making any reference to the provisions of Sections 3 and 30 of the Evidence Act and without going into the question as to what is the evidentiary value of such confession of a co-accused who has since died and is no longer available for joint trial. In view of what is discussed hereinafter it is not necessary for me at this stage to deal with the merits of this contention.
(13) Mr. Bhatia appearing for R.K. Dhawan and Mr. P.P. Malhotra appearing for Satish Sharma had strongly challenged the locus standi of the petitioner and had laid considerable stress on the maxim laid down in Sheonandan Paswan Vs State of Bihar (supra) i.e., 'the Stat Is the master of litigation in criminal cases'. They also placed reliance on various cases. In Simranjit Singh Mann v. Union of India & Anr., : 1993CriLJ37 , the relevant portion is reproduced as under: The petitioner does not seek to enforce any of his fundamental rights nor does he complain that any of his fundamental rights is violated. He seeks to enforce the fundamental rights of others, namely, the two condemned convicts who themselves do not complain of their violation. But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The courts must not allow its process to be abused by politicians and others. Even if there are million questions of law to be deeply gone into and examined in a criminal case of this nature registered against specified accused persons, it is for them and them alone to raise all such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the garb of public interest litigants. Mr. Bhatia contended that it is only the accused or the state whichever of the two is aggrieved from the order can move a petition against a judicial order. He referred to the following paragraph reported in Revisional Criminal Matter - 1988 Indian Law Reports Bombay Series Vol. Xiii Queen Empress v. Morarji Gokaldas.:- 'It must be remembered that all offences affect the public as well as the individual injured and that in all prosecutions the Crown is the prosecutor. The Crown, by the Public Prosecutor, is the parly, not the complainant.' He next referred to the case of Thakur Ram v. The State of Bihar : 1966CriLJ700 . The relevant portion thereof is reproduced as under: 'In a case which' has proceeded on a police report a private party has no locus standi. No doubt, the terms of S. 435 arc very wide and he can even take up the matter suo motu. The Criminal law is not, however, to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who, according to that parly, had caused injury to it. Barring a few exceptions, in Criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to lake all the steps necessary for bringing the person who has acted against the social interests of the community to book'. Mr. Bhatia also referred to the following passage (para 4) from the judgment in the case of Anukul Chandra Pradhan v. Union of India and others reported as : (1996)6SCC354 :- 'It is that court which is now to deal with the case on merits, in accordance with law. Any direction considered necessary for further investigation, if any, or to proceed against any other person who also appears to have committed any offence in that transaction, is within the domain of the concerned court according to the procedure prescribed by law. The purpose of this proceeding is to command performance of the duty under law to properly investigate into the accusation of commission of the crime and to file a charge-sheet in the competent court, if a prima facie case is made out.' In support of his contention that in the matters of criminal law it is the State which is master of prosecution and that the discretion in the Public Prosecutor should not be interfered with. Mr. Bhatia cited passages from certain foreign Journals and books some of which are reproduced hereunder:- American Criminal Procedure Cases - Comments and Questions, Fifth Edition by Yale Kamissar Wayne R Lofaure and Jerold H.Isreal, American Case Book Series At page 927' This judicial reluctance to direct federal prosecutions at the instance of a private party asserting the failure of United States officials to prosecute alleged criminal violations has been applied even in cases such as the present one where, according to the allegations of the complaint, which we must accept as true for purposes of this appeal, serious questions are raised as to the protection of the civil rights and physical security of a definable class of victims of crime and as to the fair administration of the criminal system.' At page-928 'These difficult questions engender serious doubts as to the judiciary's capacity to review and as to the problem of arbitrariness inherent in any judicial decision to order prosecution. On balance, we believe that substitution of a court's decision to compel prosecution for the U.S. Attorney's decision not to prosecute, even upon an abuse of discretion standard of review and even if limited to directing that a prosecution be undertaken in good faith, would be unwise'. Same Book in (Part-One) Chapter 1 page-1 'The Agencies of the Criminal Justice System The procedures that constitute the criminal justice process relate primarily to the investigation of crime, the apprehension of possible offenders, the determination of the guilt of those persons, and the imposition of sanctions upon those found guilty. Although many professional groups participate in these procedures, the five groups largely responsible for their administration are the police, prosecutors, defense counsel, courts and corrections officials. The police are involved primarily in the investigation of crime and the apprehension of offenders, the prosecutors and defense counsel in the determination of guilt, corrections officials in the imposition of sanctions, and the courts, through their varied authority, in all stages of the process. Prosecutors (p-3) 'State Prosecutor The authority to prosecute is not as fragmented as police authority, but it is divided among a variety of public officials. The initial division is between state officials who are responsible for prosecutions under state laws and federal officials responsible for prosecutions under federal laws. Within the state system, the authority is divided among local prosecutors, each of whom has primary control over prosecutions for offences committed within his prosecutorial district.' The Elements of Jurisprudence by Sir Thomas Erskine Holland From page 378 'Criminal Law: Perhaps the most important of the functions of the State is that which it discharges as the guardian of order; preventing and punishing all injuries to itself and all disobedience to the rules which it has laid down for the common welfare. In defining the orbit of its rights in this respect, the State usually proceeds by an enumeration of the acts which infringe upon them, coupled with an intimation of the penalty to which any one committing such acts will be liable. The branch of law which contains the rules upon this subject is accordingly described as 'Criminal law'. 'Oroit penal', 'Strafrecht'. Criminal Justice Administration (Materials and Cases) by F.J. Remington, D.J. Newman, E.L.Kimball, Merygold Helliand Human Gold-stein Chapter-6, p-413 'Charging - The decision to prosecute Unlike the traditional image of the policeman as one responsible for full enforcement of the law, the public prosecutor has always been accorded discretionary power to choose between prosecuting and not prosecuting. Quite recently, the prosecutor has been recognized as having the even broader responsibility of choosing among various alternative ways of disposing of an offender. Where community resources exist the prosecutor may choose referral to social agencies, informal probation, compulsory treatment for alcoholism or drug addiction or mental disturbance, or invocation of yet other programs. He is not restricted simply to the choice of criminal prosecution or nothing. This new characterization suggests more clearly the complex role of the prosecutor. It remains true, however, that the decision whether to institute criminal prosecution is the critical one.' All these quotations from the said foreign journals and commentaries relate to initiation of criminal prosecution and are not of much help on the question for consideration of this court in the present case. Mr. Malhotra laid lot of stress on the fact that the observations of Justice P.N. Bhagwati in Sheonandan's case (supra) would not apply to the present case at all because it is only the view of the minority and it ran counter to the views of the majority judgment. It is to be further noted that it is not a case of drawing attention of the authorities to an offence or filing a police report but it is a case where the lower court has already applied its mind and come to a conclusion. As such the case of challenging a judicial verdict cannot be equated with 'drawing the attention of the Court to any criminal act'. Irrespective of the reference to aforesaid commentaries cited by Mr. Bhatia I find that in addition to the above discussion a reference to various ruling including : 1993CriLJ37 would lead to the conclusion that the State is the master of prosecutions and that it would be extremely unsafe to accord locus standi to a third party to file a Criminal Revision Petition against judicial orders. It will be unwise and unsafe to entertain Criminal Revision petition by third parties. The petitioner is neither the complainant nor aggrieved party. As such, I hold that the petitioner has no locus standi to file the present Criminal Revision petition. Mr. P.P. Malhotra has also leveled allegations that the petitioner is under the control of persons opposed to Indian National Congress policies and that the petition is politically motivated. From the details furnished in the petition itself it cannot be disputed that the petitioner is an active public interest litigant, I do not consider it necessary to deal with the aforesaid plea/allegation of Mr. Malhotra in the present case in view of what has already been held above. M/s. Bhatia and P.P. Malhotra submitted that according to the prosecution, the alleged conspiracy was hatched and documents were forged in December 1988. According to Mr. Bhatia that was the time when R.K. Dhawan was in political wilderness and had been wrongly described by Mr. Bhushan as Osd to the former Prime Minister Mr. Rajiv Gandhi. According to him, Mr. Dhawan joined the P.M. office on February 24, 1989. According to Mr. Malhotra Satish Sharma was not a minister at that time and was only a member of Rajya Sabha. For the purposes of this case and in the light of what is held above, it is equally unnecessary for me to go into these questions of fact. The next argument of Mr. Shanti Bhushan was that the powers of this Court to take suo motu action under Section 401 of Criminal Procedure Code . are unlimited and can always be resorted to in the light of the ratio of State of Kerala v. Narayani Amma (supra). But a reference to Partap v. State of U.P. (para-21 (supra) and what is held by Hon'ble Supreme Court in Janata Dal v. H.S.Chowdhary : 1993CriLJ600 shows that such powers are not as wide as those are made out to be by Mr.Shanti Bhushan. Hon'ble Supreme Court in the case of Janata Dal v. H.S.Chaudhary (supra), on this point has, inter-alia, held as under:- 'Para 130. The object of the revisional jurisdiction under Section 401 is to confer on superior criminal courts - a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted, on the one hand, or on the other hand in some underserved hardship to individuals. The controlling power of the High Court is discretionary and it must be exercised in the interest of justice with regard to all facts and circumstances of each particular case, anxious attention being given to the said facts and circumstances which vary greatly from case to case. Para 131. Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim 'Quadolex aliguid alicui concedit, conceder videtur id sine quo ipsa, ess uon potest: which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. Para 132. The criminal courts arc clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justice to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise on this power is based on sound principles. In the light of the law laid down by Hon'ble Supreme Court referred to hereinabove and the afore going discussion, this Court can examine if there exists a case for it to interfere with the impugned order suo motu. It would, of course, be open to this Court to act suo moto if any information comes to its notice from any source which show that there is a payable error of law or wrong view of law is taken or the Lower Court has misapprehended evidence and it has resulted in failure of justice and not otherwise. The only error pointed out by Mr. Shanti Bhushan which had been committed by the lower court is that he has held that the confession of late Mr. Nandey, one of the co-accused, since deceased, recorded under Section 164 Criminal Procedure Code . could not be used against M/s R.K.Dhawan & Satish Sharma as the basis for the charge. Mr. Shanti Bhushan has not pointed out any other evidence on record on the basis whereof the charge could be framed or sustained. He contended that under Section 32(3) of Evidence Act such confession could be available as evidence against the co-accused. He did not refer to any other provision of the Evidence Act as already noticed hereinabove. My attention having been drawn to this contention, I now proceed to examine, if there is any merit in this contention which would call for suo moto interference with the impugned order. Section 32(3) of the Evidence Act cannot be read in isolation when it comes to criminal prosecution. The cases in which confession of co-accused can be used against the co-accused arc provided in Section 30 of the Evidence Act. Section 32(3) and Section 30 of the Evidence Act read as under:-
'32.Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. (1)........ (2)........ (3) Or against interest of maker:- When the statement is against the pecuniary or proprietory interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.'
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'30.Consideration of proved confession affecting person making it and others jointly under trial for same offence:- When more person than one are being tried jointly for the same offence, and a confession made by one of such person affecting himself and some other of such person as well as against the person who makes such confession.'
Explanationn:- 'Offence' as used in this section, includes the abetment of, or attempt to commit, the offence. Evidence is defined under section 3 of the Evidence Act which reads as under:- 'Evidence' 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; (2) all documents produced for the inspection of the Court; such documents are called documentary evidence. The question of admissibility of confession of a co-accused since deceased has come up more than once before various High Courts and question was finally settled by the Hon'ble Supreme Court. A statement of a deceased co-accused under Section 32(3) of the said Act can at best be considered as a relevant fact which by itself cannot be the sole basis of a charge. Even a confession of a co-accused being tried jointly, by itself, cannot be the basis of a charge as it being of nature of accomplice evidence is very weak evidence and requires corroboration and further that to be of any use against the accused it must have been made before the criminal proceedings were started as has been held in Janu v. R. Sup reported as Air 1947 Sind 122. A confession of a co-accused is very weak evidence and must be corroborated. On a trial for forgery where one of the accused had made a statement before the Inquiring Magistrate died before the trial, it was held to be inadmissible since its maker had already rendered himself liable to criminal prosecution at the time it was made as held in R. v. Keshav reported as 23 Born Lr 208. In Kunjlal v. R. reported as 38 Wn 1015, also a confession made after he had rendered himself liable to criminal prosecution was held not to be admissible under section 32(3) of the Evidence Act. In my opinion, so far as use of such statement as contemplated under section 32(3) of the Evidence'. Act is concerned the pecuniary or proprietory interest would be admissible as a relevant fact and may be taken into consideration by court, but it will not be safe to base any charge solely on or use such confessional statements against the alleged accomplice without adequate corroboration thereof by other cogent evidence as would be clear from what is discussed hereinafter. The language of the provision is also suggestive of the fact that such statement should have been made before commencement of the proceedings. The confessional statement of the deceased co-accused would be inadmissible under section 30 of the Evidence Act because a joint trial would no longer be possible after his death. Section 30 itself provides an exception to the rule in making such confessions admissible/relevant against co-accused because strictly speaking it would not be covered by the definition of 'evidence' under section 3 of the Evidence Act, see. 32(3) cannot be read as a further exception to that exception to the rule provided under Section 30. In confessions under Section 32(3) it is not possible to cross-examine the co-accused who made the confession and test the veracity of his statement and being evidence of very weak nature a charge cannot be based on this alone. In Karam Din v. Emperor reported as Air 1929 Lah 338, while dealing with Section 30 of the Evidence Act, a Division Bench of Lahore High Court had laid down that 'although a confession of one co-accused may be taken into consideration against another under the provisions of S. 30, it would be unsafe, if not illegal to rely on it without further corroboration in material particulars.' In Periyaswami Mooppan v. Emperor, Air 1931 Mad 177, it was observed that where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in See. 30 may be thrown into the scale as an additional reason for believing that evidence. This is the position under section 30 of the Evidence Act where all the accused are being tried together. The situation could not be better where joint trial is not possible on account of death of the co-accused who had made the confession. It is for that reason also that provisions of Section 32(3) of the said Act alone, in the absence of independent legal evidence, could not be invoked to base or sustain a charge on the solitary confessional statement of a deceased co-accused. Furthermore, In Achhay Lal Singh v. Emperor reported as : AIR1947Pat90 , the Division Bench of that High Court had held such confession to be inadmissible. It was held as follows:-
'THE principle underlying S. 32(2) is that when a person makes a statement rendering himself liable to criminal prosecution the statement is likely to be a true statement. The section can thereforee have no application to a statement of a person against whom there is already in existence evidence which would inevitably lead to his prosecution and might by itself lead to his conviction. Consequently, where a person makes a confessional statement incriminating other accused but dies before the commencement or completion of the inquiry his statement is in admissible either under Section 30 or Section 32(2) of the Evidence Act, in a trial of the other accused.'
'IT is unsafe to lake into consideration the retracted confession of a co-accused against other accused persons unless it is corroborated by reliable evidence in material particular. An approver's evidence has always been regarded as tainted ab initio and, thereforee, such evidence should not be taken into consideration as corroborative evidence of another piece of tainted evidence, i.e., a retracted confession, unless the circumstances are exceptional: : AIR1928Cal745 , foll.'
Any doubts on this point have since been set at rest by Privy Council and Hon'ble Supreme Court. In the case of Haricharan Kurmi v. State of Bihar : 1964CriLJ344 , their Lordships with approval cited the following passage from the case of Bhuboni Sahu v. The King reported as where Sir John Beaumont, who spoke for the Board, observed:
'A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of 'evidence' contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale weighed with the other evidence.'
The Hon'ble Supreme Court after considering various contentions had further laid down in the above case as under:-
'....ASwe have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and complete the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.'
In Mahabir bids was & Another v. State of West Bengal reported as 1995(2) C.C. C 117 , the Hon'ble Supreme Court had relied upon its decision in Kashmira Singh v. State of Madhya Pradesh : 1952CriLJ839 and had cited with approval the following passage from its said judgment:-
'THE proper way to approach a case of this kind is, first to marshall the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed, a conviction could safely be based on it. If it is capable of belief course 'it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and that fortify himself in believing what without the aid of the confession he would not be prepared to accept.'
The law laid down in Kashmira Singh's case (supra) was reiterated by Hon'ble Supreme Court in this case also. In Selvan S. Rathinapandian & others v. State represented by the Inspector of Police,. Kulasekaranpattinam reported as 1996(4) Crimes 186, Madras High Court had to deal with a situation where it had to. opine whether it will be safe to frame charge solely upon confession made by one of the co-accused during investigation and the answer was in the negative. A reading of this ruling and various other rulings such as R.P.KapurVs. State of Punjab : 1960CriLJ1239 and Pragasam v. State by Inspector of Police reported as 1994 M.L.J.(Crl) 101 shows that after analysing the position the Judges had opined that 'conviction based on confession of co-accused alone is illegal.' Such confession can be used only for lending re-assurance of other substantive evidence. In the present case, except, for Mr. Nandey's statement no other material was brought to my notice which could form substantive legal evidence, on the basis whereof a charge could be framed. thereforee, in the matter of criminal prosecution, even the admissibility of such confession of deceased co-accused is extremely doubtful apart form its poor and very weak nature of evidence and for that reason, charge could not be framed on the basis of that alone. The same question came up before Bombay High Court in the case of Rashid G.Parkar v. State of Maharashtra reported as 1982 ( 85) Bom. L.R.35. There also the court had held that the confessional statements of even the living co-accused alone exclusively in the absence of other evidence cannot constitute any substantial evidence to frame the charge against the accused. The court relying upon the case of Hari Charan Kurmi (supra) carved out the following three principles:- (i) confessional statement of the co-accused is weaker type of evidence; (ii) it may or may not be taken into consideration; (iii) it alone exclusively cannot be the basis of conviction of the accused; The result of the aforesaid discussion is that not framing the charge on the basis of sole confessional statement of a deceased co-accused who by virtue of his death cannot be tried jointly with other accused, in the absence of any legal substantive evidence independent of such confession is not wrong and cannot be found fault with. In the light of position of law discussed hereinabove and keeping in view the powers of the Court under Section 401 Criminal Procedure Code . as laid down by Hon'ble Supreme Court in the cases referred to hereinabove, I am in no doubt that in the facts and circumstances of the present case, there exists no case for this court to interfere suo motu with the impugned order of the Chief Metropolitan Magistrate, Delhi. In the circumstances, this revision petition fails and is dismissed. Trial Court record be sent back forthwith.