LexSURESH BUDHARMAL KALANI versus STATE OF MAHARASHTRA
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SURESH BUDHARMAL KALANI
v.
STATE OF MAHARASHTRA
SEPTEMBER 15, 1998
[M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI, .JJ.J
Evidence Act, 1872-Section 3()-{;onfession--Admissibility of confe.\·-
sional statement against co-accused--Offence under Section 3(4) of Ten'Olists
and Dis111ptive Activities (Prevention) Act, 1987 and Section 120-B of lndia11
C Penal Code-Gang riva/!y between Mafia.1~J.J. Hospital shoot out inci-
dent-Accused 11111ki11g confessional statement dischmged a11d not facing
flial--Held, his confessional statement cannot be used ~rs.ail,1~t, co-ac-
cused-Confession of accused can only be used agailz:it co-accused if both
are jointly facing Ilia! for the same offence.
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Confession of the accused-Evidentimy value-Held, it cannot be
called in aid to frame charges in absence of a11y other evidence to do so.
Confession-Admissibility of self-cxculpatOI)' confession by ac-
cused-Held, inadmissible i11 evidence.
Section l l4--Presumptio11--Can be draw11 only from facts and not from
other presumption.1· by a process of probable and logical reasoning.
The gang rivalry between two mafias groups led to J.J. Hospital
shoot out incident by a group of persons resulting in the death of one 'S'
F accused in some other crime. One 'P' and few people among the group were
injured. However, these people managed to carry with them the injured
associates to a private Hospital. Thereafter accused 'D' knowing fully well
that it was a medico-legal case entertained 'P' and arranged for his
operation by 'K' at a private hospital and helped 'P' to abscond after he
G recuperated.
A case was registered against the appellants and on completion of
the investigation, charge sheet was submitted by the police to prosecute
the appellants and others. The Designated Court took cognizam:r. of the
charge sheet and passed orders for framing charges under Section 3(3) of
H TADA & S.120-B IPC against accused 'K' and under Section 3(4) of TADA
608
S.B. KALANI v. STATE
609
& 212 IPC against accused 'D'. The gravamen of the charges to he framed A
against accused 'K' was hatching of criminal conspiracy to murder 'S'. Tl.-~
prosecution relied on the evidence of the wife of one of the acrused and
another witness, as also the confessional statements of accused 'B' and
accused 'J'. The statements recorded of the two witnesses did not speak of
any conspiracy to commit murder, hut it only disclosed that accused 'K'
had a meeting with accused 'J', President of Bhiwandi Nizampura
Municipal Council, and others in his holiday resort over a no confidence
motion that was to he brought against the latter.
In this appeal the appellants challenged the order of the designated
Court directing framing of charges against them.
Allowing the appeal, this Court
HELD : 1.1. When the accused making confessional statement is
discharged and is not facing trial his confessional statement cannot .he
used against the co-accused. The confession of an accused can only he used
against the co-accused if both are jointly facing the trial for the same
offence. [612-G-H]
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1.2. The accused 'B' had been discharged from the case and was not
facing trial with accused 'K'. So, his confession could not he used against E
accused 'K'. The Designated Court was fully aware of the above legal
position but, surprisingly enough, it still decided to rely upon the confes-
sion on the specious ground that the prosecution was not in any way
precluded from examining accused 'B' as a witness in the trial for estab-
lishing the facts disclosed in his confession. This was a perverse approach
of the Designated Court while dealing with the question of framing char-
ges. At that stage the court is required to confine its attention to only those
material, collected during investigation which can he legally translated into
evidence and not upon further evidence that the prosecution may, adduce
in the trial, which would commence only after the charges are framed and
the accused denies the charges. The Designated Court was, therefore, not G
at all justified in taking into consideration the confessional statement of
accused 'B' who was discharged, for framing charges against accused 'K'.
Further for framing charges against him, in absence of any other evideIJce
to do so, the confession of accused 'J' cannot he called in aid.
[612-G-H; 613-A-B-C] H
610
SUPREME COURT REPORTS [1998] SUPP. 1 S.C.R.
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2. The self exculpatory confession by thExcerpt shown. Read the full judgment & AI analysis in Lexace.