Statement Of Co-Accused U/S 25 Evidence Act Inadmissible In Court But Significant For Investigation: Gujarat High Court Refuses To Quash FIR

Background

The Applicant herein contested that he had been implicated in the FIR on the basis of a statement made by the co-accused, even though there was no material against him connecting him with the incident.

The Respondent, per contra, averred that the statement of the co-accused can be considered during the course of investigation as a clue for further investigation. Therefore, the FIR cannot be quashed. The Gujarat High Court in a previous decision had affirmed this view.

Judgement

Justice Pancholi noted that primarily the Applicant had filed the application on the ground that he had been falsely implicated based on the statement of the co-accused only. However, till the time investigation was not over, it is always open for the investigation agency to consider the statement of the co-accused for the purpose of further investigation.

The Bench relied on Mohmed Salim abdul Rasid Shaikh v. State of Gujarat 2001(2) GLR 1580, where it was held:

"…Irrespective of the fact that statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."

Further, in Further, in Dolatram Tekchand Harjani v.State of Gujarat 2013 (3) GLR 2133, the Gujarat HC had opined:

"The said submission gives rise to an issue viz. does it mean that on the basis of a statement of co-accused even investigation cannot be initiated. On this count, it comes out that while raising the said contention, it is conveniently overlooked that such position or preposition does not mean that statement by a co-accused cannot act as or cannot be even treated as a piece of information or a clue to initiate and conduct inquiry/investigation so as to find out whether there is any independent, cogent, reliable and satisfactory material/evidence which may support, justify and provide cause for further investigation or a charge-sheet and a trial."

Justice Pancholi while affirming this view of the Gujarat High Court stated that when the investigation has commenced or the process is going on, it would not be proper and just to terminate or direct the investigation officer to close the investigation. To bolster this view, the Bench referred to the Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav judgement where the Supreme Court had opined:

"The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."

Thus, per the Bench, the admissibility or otherwise of the confessional statement can be examined at the stage of the trial and not at the stage of investigation. Section 25 of the Evidence Act could not come to play at this juncture.

Accordingly, the Bench dismissed the application but granted the liberty to file fresh application before the Court after the filing of the chargesheet if there was no material against the Applicant.

Case Title: Firoz Hajibhai Sodha vs State Of Gujarat
Case citation: 2022 LiveLaw (Guj) 29
Case No.: R/CR.MA/5836/2021

Click Here To Read/Download Order