In CRL.M.C.2942/2016-DEL HC- It is improper to sustain conviction only on confession assuming that it was proved to have been voluntarily made: Delhi HC Justice Asha Menon [08-08-2022]


Read Order: VINOD KUMAR KILA v. C B I 

Mansimran Kaur

New Delhi, August 9, 2022:  The Delhi High Court has opined that it would be improper to sustain a conviction only on a confession assuming that it was proved to have been voluntarily made and had all the features which makes a statement a confession.

Justice Asha Menon allowed the  present petition  which was filed under Section 482 of CrPC assailing the order of framing of charge against the petitioner under Section 109 Indian Penal Code read with Section 13(2), 13(1)(e) of the Prevention of Corruption Act,1988.  The Single Judge bench was of the view that the charges can be framed only on the material before the Court and cannot be based on speculation. 

It may be noted at the outset that the CBI registered an FIR against Arvind Kumar, Chief Engineer, Bangalore Metro Rail Corporation, under Section 13(2) read with 13(1)(e) of the PC Act read with Section 109 IPC, being a public servant, found to be in possession of assets beyond the disclosed source of income. The FIR was also filed against his wife and several others, of whom the petitioner is one.

After hearing the submissions of the parties, the Court stated that in the  case of Asian Resurfacing of Road Agency (P) Ltd. v. CBI, the Apex Court declared that an order framing charge is not purely an interlocutory order nor was it a final order and therefore, the jurisdiction of the High Court was not barred irrespective of the label of the petition, be it under Section 397(2) or 482 Cr.P.C. or even Article 227 of the Constitution. 

 The appropriateness of the impugned order on charge and the charge framed was to be seen on the basis of the chargesheet that has named the petitioner as accused. His role as noticed by the  Special Judge in the impugned order was that he was a Chartered Accountant of the company of Smt Indu and played a pivotal role in routing illegal money of Arvind Kumar, the main accused, as he arranged companies and persons whose bank accounts were used for channelizing illegal money of the main accused. 

 However, this Court was of the view that Charges can be framed only on the material before the court and cannot be based on speculation. The court had to consider whether on the chargesheet and documents relied upon by the CBI, including the retracted confessional statements recorded under Section 164 Cr.P.C, there were sufficient grounds to frame charge against the petitioner.

An accused is a competent witness under Section 315 of the Cr.P.C. but it is a peculiar reasoning that the Court ought to wait till the conclusion of the trial for any of the accused to become a witness in favour of the prosecution, to then use that against a co-accused viz the petitioner herein, the Court observed. 

It is strange that the Trial Court thought it appropriate to refer to Section 315 Cr.P.C. rather than to Section 319 of the Cr,P.C. which empowers the court to proceed against any person appearing to be guilty of an offence during the course of trial, after the submission of the chargesheet. The discharge of an accused will not limit the powers of the Trial Court under Section 319 Cr.P.C, the Court noted.  At this stage reliance was placed on the cases namely, Hardeep Singh Vs. State of Punjab , Deepu alias Deepak vs State of Madhya Pradesh.

At the outset, the Court observed that the record disclosed no independent material against the petitioner. Even the Trial Court in the impugned order referred to no such material. Retracted statements of a co-accused were utterly inadequate to establish, prima-facie, the participation of the petitioner in a conspiracy with the co-accused to facilitate the commission of the offences under Section 109 IPC read with Sections 13(2), 13(1)(e) of the PC Act in respect of which the charge were  framed against the petitioner, which was why the  Trial Court wanted to wait and watch, for a probability that did not exist in the immediate present, the Court further noted. 

In light of the observations stated above, the petition was allowed. 

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