High Court · 2025

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Ankit Kumar, Advocate holding brief of Sri Ajeet Kumar Chaurasiya, learned counsel for applicant and learned A.G.A. for State.

2. The instant application has been preferred for quashing charge- sheet dated 29.09.2023 along with cognizance/summoning order dated 18.03.2025 and the entire proceedings of Criminal Case No.1661 of 2025 (State vs. Dilshad and Others) arising out of Case Crime No.26 of 2023, under sections 420, 468, 471, 384, 507 I.P.C. and sections 66D, 67 of I.T. Act, P.S. Shergarh, District- Mathura, pending before learned court of Additional Civil Judge (J.D.)/Judicial Magistrate, Chhata, Mathura.

3. It is the case of applicant that applicant has been implicated while registering F.I.R. at Case Crime No.26 of 2023, wherein detail investigation has been carried out and thereafter name of applicant has also been mentioned in the charge-sheet preferred by concerned Investigating Officer, but at the same time no incriminating evidences have been collected during the course of investigation, but the name of applicant has been only put in the charge-sheet on the basis of statement recorded by co-accused and as per section 26 & 28 of Indian Evidence Act, the same is not admissible in any court of law for determining offence, if required by any person alleged only on the basis of allegation surfaced over the statement recorded by co-offender.

4. Learned counsel for applicant submitted that there is no independent and corroborative evidence against the applicant linking him directly to the commission of alleged offence and there is no financial transaction or transfer of alleged extortion money found to be made from or credited to the account of applicant; the notice under section 41A has been issued to the applicant further applicant produced before the investigating officer whenever is asked; the applicant participated in the investigation and no evidence has been found against the applicant except the statement of co-accused.

5. For substantiating his submissions, learned counsel for applicant placed reliance upon the judgement passed in Firoz Hajibhai vs. State of Gujarat in Criminal Misc. Application No.5836 of 2021, wherein it is held that the statement of co-accused may be admissible for the purpose of investigation and the statement when a charge sheet is filed cannot be consider admissible.

6. He has further relied upon the judgement passed in Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue; Criminal Appeal No.949 of 2018 arising out of SLP (Crl.) No.9816 of 2018, wherein it is held that "in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with the other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."

7. He again relied upon the judgement rendered by Hon'ble Apex Court in case of Karishma Singh vs. State of M.P., AIR 1952 SC 159, wherein it is held that "the proper way to approach a case of this kind is, first, to marshal 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 independently of the confession, then 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 thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

8. Learned counsel for applicant lastly submitted that considering his submissions and the judgements upon which he has been relied, the entire proceedings initiated against the applicant is liable to be set-aside.

9. Per contra, learned A.G.A. vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for applicant on the ground that at the time of investigation, forged Aadhaar card, forged PAN card and several SIM has been recovered along with electronic devices, which are ample source of evidence for implicating the applicant.

10. After hearing the rival submissions extended by learned counsel for the parties, arguments raised by learned counsel for applicant is highly appreciable, but at the same time the evidences and the statement has to be examined by learned trial court during the course of trial only and the outcome of justification of implication of the applicant on the basis of statement so recorded by co-offender can be visualize and determine by learned trial court during the course of trial and at this stage nothing can be determine whether the implication of applicant is on the basis of which statement and the statement recorded by the co-offender is testified before learned court of law in shape of cross and chief.

11. In view of the aforementioned facts and circumstances as well as the submissions made by learned A.G.A. as well as by learned counsel for applicant, there is hardly any scope of interference of this Court by way of exceeding prayers mentioned in the instant application and as such this application lacks merit and is hereby dismissed.

12. However, it is made clear that specific information has also been provided by learned counsel for the applicant that till today applicant has not sought bail before learned court concerned and as such applicant is hereby directed to appear before learned court concerned within one month from today for seeking bail. Till one month from today, no coercive action shall be taken against the applicant herein. Order Date :- 15.5.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad

Hon'ble Saurabh Srivastava,J.

1. Heard Sri Ankit Kumar, Advocate holding brief of Sri Ajeet Kumar Chaurasiya, learned counsel for applicant and learned A.G.A. for State.

2. The instant application has been preferred for quashing charge- sheet dated 29.09.2023 along with cognizance/summoning order dated 18.03.2025 and the entire proceedings of Criminal Case No.1661 of 2025 (State vs. Dilshad and Others) arising out of Case Crime No.26 of 2023, under sections 420, 468, 471, 384, 507 I.P.C. and sections 66D, 67 of I.T. Act, P.S. Shergarh, District- Mathura, pending before learned court of Additional Civil Judge (J.D.)/Judicial Magistrate, Chhata, Mathura.

3. It is the case of applicant that applicant has been implicated while registering F.I.R. at Case Crime No.26 of 2023, wherein detail investigation has been carried out and thereafter name of applicant has also been mentioned in the charge-sheet preferred by concerned Investigating Officer, but at the same time no incriminating evidences have been collected during the course of investigation, but the name of applicant has been only put in the charge-sheet on the basis of statement recorded by co-accused and as per section 26 & 28 of Indian Evidence Act, the same is not admissible in any court of law for determining offence, if required by any person alleged only on the basis of allegation surfaced over the statement recorded by co-offender.

4. Learned counsel for applicant submitted that there is no independent and corroborative evidence against the applicant linking him directly to the commission of alleged offence and there is no financial transaction or transfer of alleged extortion money found to be made from or credited to the account of applicant; the notice under section 41A has been issued to the applicant further applicant produced before the investigating officer whenever is asked; the applicant participated in the investigation and no evidence has been found against the applicant except the statement of co-accused.

5. For substantiating his submissions, learned counsel for applicant placed reliance upon the judgement passed in Firoz Hajibhai vs. State of Gujarat in Criminal Misc. Application No.5836 of 2021, wherein it is held that the statement of co-accused may be admissible for the purpose of investigation and the statement when a charge sheet is filed cannot be consider admissible.

6. He has further relied upon the judgement passed in Surinder Kumar Khanna vs. Intelligence Officer Directorate of Revenue; Criminal Appeal No.949 of 2018 arising out of SLP (Crl.) No.9816 of 2018, wherein it is held that "in dealing with a case against an accused person, the court cannot start with the confession of co-accused person; it must begin with the other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."

7. He again relied upon the judgement rendered by Hon'ble Apex Court in case of Karishma Singh vs. State of M.P., AIR 1952 SC 159, wherein it is held that "the proper way to approach a case of this kind is, first, to marshal 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 independently of the confession, then 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 thus fortify himself in believing what without the aid of the confession he would not be prepared to accept."

8. Learned counsel for applicant lastly submitted that considering his submissions and the judgements upon which he has been relied, the entire proceedings initiated against the applicant is liable to be set-aside.

9. Per contra, learned A.G.A. vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for applicant on the ground that at the time of investigation, forged Aadhaar card, forged PAN card and several SIM has been recovered along with electronic devices, which are ample source of evidence for implicating the applicant.

10. After hearing the rival submissions extended by learned counsel for the parties, arguments raised by learned counsel for applicant is highly appreciable, but at the same time the evidences and the statement has to be examined by learned trial court during the course of trial only and the outcome of justification of implication of the applicant on the basis of statement so recorded by co-offender can be visualize and determine by learned trial court during the course of trial and at this stage nothing can be determine whether the implication of applicant is on the basis of which statement and the statement recorded by the co-offender is testified before learned court of law in shape of cross and chief.

11. In view of the aforementioned facts and circumstances as well as the submissions made by learned A.G.A. as well as by learned counsel for applicant, there is hardly any scope of interference of this Court by way of exceeding prayers mentioned in the instant application and as such this application lacks merit and is hereby dismissed.

12. However, it is made clear that specific information has also been provided by learned counsel for the applicant that till today applicant has not sought bail before learned court concerned and as such applicant is hereby directed to appear before learned court concerned within one month from today for seeking bail. Till one month from today, no coercive action shall be taken against the applicant herein. Order Date :- 15.5.2025 Saif SHAIKH SAIF ABDIN High Court of Judicature at Allahabad