Confessional Statement Of Co-Accused; Delhi High Court Quashes Charges Against Chartered Account For Being Speculative

The Single Bench of Justice Asha Menon ruled that retracted statements made by a co-accused under Section 164 Cr.P.C. are inadequate to establish the participation in a conspiracy to facilitate commission of the offences under the Prevention of Corruption Act.

The petitioner Vinod Kumar Kila filed a writ petition before the Delhi High Court against the charges framed by the Special Judge, CBI under Section 109 of the Indian Penal Code, 1860 (IPC) read with Sections 13(2) and 13(1)(e) of the Prevention of Corruption Act,1988.

The petitioner submitted before the High Court that an FIR was registered by the CBI against Arvind Kumar, the Chief Engineer of Bangalore Metro Rail Corporation, under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, read with Section 109 of IPC, on the ground that he, being a public servant, was in possession of assets beyond his disclosed source of income. The petitioner added that an FIR was also filed against the public servant's wife and several others.

The petitioner Vinod Kumar Kila argued that the CBI filed a chargesheet arraigning the petitioner as an accused on the ground that the petitioner being a Chartered Accountant of the Company of the co-accused had aided her in converting black money into white, by receiving cash from her and issuing cheques in return.

The petitioner added that the said allegations against the petitioner were based on three statements recorded under Section 164 Cr.P.C. given by persons who were named as accused in the chargesheet and that the said statements were later retracted. The petitioner contended that the confessional statement of an accused cannot be used against the petitioner, since he was a co-accused.

Hence, the petitioner contended that the Trial Court had erred in framing charges against the petitioner, since apart from the said retracted statements of the co-accused, there was no evidence against the petitioner to establish that he had abetted the commission of the offence by the said public servant.

Section 13(1)(e) of the Prevention of Corruption Act provides that a public servant is said to commit the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income, for which the public servant cannot satisfactorily account.

Section 109 IPC provides for punishment for abetment of an offence.

The High Court noted that the Supreme Court in Asian Resurfacing of Road Agency (P) Ltd. versus CBI (2018) had ruled that an order framing a charge is not purely an interlocutory order nor is it a final order and therefore, the jurisdiction of the High Court is not barred; however, the Court should only entertain a challenge against an order framing a charge in the rarest of the rare cases and where there is an error of jurisdiction, and not otherwise.

The High Court observed that the Trial Court, believing that there was a possibility that any one of the accused may prefer to testify under Section 315 Cr.P.C. read with Section 21 of the Prevention of Corruption Act or that the confessional statement under Section 164 Cr.P.C. may be proved against the petitioner, framed the charges against the petitioner.

Holding that the charges against the petitioner can only be framed on the basis of the material before the court and that they cannot be based on speculation, the Court ruled that there was no independent material against the petitioner.

"There is no gainsaying that such a reasoning is indeed convoluted. Charge 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.", the Court said.

The Bench added that retracted statements made by a co-accused is 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) and 13(1)(e) of the Prevention of Corruption Act. Noting that the Trial Court wanted to wait and watch for a probability that did not exist in the immediate present, the Court ruled that the reasoning adopted by the Trial Court was convoluted and hence, the charges framed against the petitioner could not be sustained.

Thus, the Court allowed the petition and quashed the order passed by the Trial Court on the charges as well as the charges framed against the petitioner.

Case Title: Vinod Kumar Kila versus CBI

Citation: 2022 LiveLaw (Del) 786

Dated: 08.08.2022 (Delhi High Court)

Counsel for the Petitioner: Mr. R.K. Handoo, Mr. Aditya Chaudhary & Mr. Garvit Solanki, Advocates.

Counsel for the Respondent: Mr. Mridul Jain, SPP

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