The State sought leave to appeal against acquittal under Section 3 RPUP Act where accused were arrested on disclosure statements alone without independent witnesses. The court held the trial court rightly doubted the confessions for non-compliance with Section 100 CrPC and RPF Rules, and dismissed the leave petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 03.02.2025
STATE THROUGH RPF ..... Petitioner
versus
FAROOQ AND ORS
..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. Amit Tiwari, CGSC alongwith Mr. Hussain Taqvi (GP), Mr. Chetanya Puri, Mr. Ayush Tanwar & Mr. Rahul Bhaskar, Advocates.
For the Respondents :
CORAM HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
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“25. In State/Railway Protection Force v. Raju (Supra) it was mandated that in the absence of public persons the Court needs to be circumspect relying upon the confessional statements recorded by the RPF officials. In present case firstly, recovery
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has been effected from accused Farooq near Buland Masjid at Community Center, Shastri Park, Delhi which is a densely populated area however, despite that fact RPF has not joined any public witness to the enquiry and they have mentioned one public witness in the list of witness namely Jimal and Vikas, however, they were not examined by RPF in support of their case for the reasons best known to them. In State/Railway Protection Force v. Raju, 2014 SCC OnLine Del 575, the Hon’ble High Court has held that RPF Rules,1987 are mandatory. The Court further held that requirement of associating public witnesses must not be treated as a mere formality. It must not be presumed by the RPF in every case that the requirement can be dispensed with. Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers.
26. In instant case accused Farooq got recovered two Aquagaurds from his house and at the time of search and seizure no independent witness was joined to the enquiry by RPF witness SI Jargish Mohd. And Ct. Vikas Kumar which is violation of Section 100 Criminal Procedure Code, 1973. Further he disclosed that he received the stolen case property from co-accused persons namely Mohd. Miyan, Sher Khan (since already convicted) and Feroz. Similarly, accused Mohd. Miyan@ Karwa was also arrested on the basis of secret information from a public place i.e Murga Mandi near Buland Masjid, Shastri Park at that time also no public witness was joined to enquiry, RPF has even failed to shown to have made any effort to any public person to enquiry. Accused Firoz was formally arrested from Tis Hazari Court when he came on hearing in some other case on 29.08.2017. Thereafter, accused Firoz was also arrested on the basis of his disclosure statement and he confessed that wherein he stated that he along with coaccused Sher Khan (already convicted) Mohd Miyan@ Karwa stolen the R.O Aquaguards from the Yoga Express Train no. 19032 and further sold the same to accused Farooq, scrap dealer.
27. In the considered opinion of this Court when accused persons are arrested only on the basis of their disclosure and confessional statement the Court need to be circumspect and in the absence of any independent witness or material it would not be safe to convict the accused persons. In the present case the mandatory rules of RPF are violated by witnesses as no public
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witness was joined during enquiry or RPF has failed to examine them, if joined, hence, abovesaid non-compliance has created doubt about the voluntariness of accused person in making confessional statement to the RPF witnesses/officials. 28. From the aforesaid evidence on record it is clear that case of Complainant/RPF suffers from inconsistencies and in violation of mandatory RPF Rules hence, it has failed to prove its case against the accused Md. Miyan@ Karwa, Feroz and Farooq beyond reasonable doubt. Accordingly accused Md. Miyan@ Karwa, Feroz and Farooq Md. Afzal@ Rahul and Ramzani@ Ramzan are given benefit of doubt and acquitted in the present case for the offence under Section 3 RP(UP) Act.”
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out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of State of Maharashtra v. Sujay Mangesh Poyarekar : (2008) 9 SCC 475 held as under:
“ 19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under sub-section (3) of Section 378 of the Code.
20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside. 21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.”
(emphasis supplied)
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evidence on record.
“27. Where there are no public witnesses involved, a trial Court is bound to view with suspicion the confessional statement made by an accused in the presence of the RPF officers. It has been held in Balkishan Devidayal v. State of Maharashtra 1981 SCC (Cri) 6 2 that the statement made to an RPF officer will not be hit by Section 25 of the Evidence Act, 1872. In Babu Lal v. State 1977 Crl LJ. 2008 (All), it was held that the statements recorded by the officers of the RPF during the investigation do not attract the provisions of Section 162 Cr PC. In Chinna v. State, (1977) 2 Karn LJ 480, it was held that the statements recorded by an officer of the RPF in the course of inquiry can be read in evidence. This makes it all the more necessary for the Court to cautiously evaluate the confessional statement purportedly made by an accused to an officer of the RPF soon after his arrest. The Court will have to be satisfied that the statement was voluntary. Otherwise, it will be a denial of a just, fair and reasonable procedure and constitute a violation of Article 21 of the Constitution as well. The voluntariness of the statement will have to be tested on a case by case basis and evaluated in light of the attendant circumstances of each
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case. Where there are no public witnesses associated, or where, as in the present case, all the RPF officers stated to have been present at the time of the arrest do not sign the confessional statement, or where, as in the present case, the entries mandatorily required to be made in the registers maintained under the RPF Rules as regards the arrest of the accused and the seizure of the railway property are not proved by producing the original registers, it would be unsafe for the Court to proceed to convict the Respondent only on the basis of his confessional statement.”
“ 54. Extra judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. It is considered to be a weak piece of evidence as it can be easily procured whenever direct evidence is not available. In order to accept extra judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra judicial confession is voluntary, it can be acted upon to base the conviction. ”
“ 55. Considering the admissibility and evidentiary value of extra judicial confession, after referring to various judgments,
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in Sahadevan and Another v. State of Tamil Nadu, (2012) 6 SCC 403, this Court held as under: —
“ 15.1. In Balwinder Singh v. State of Punjab [1995 Supp (4) SCC 259 : 1996 SCC (Cri) 59] this Court stated the principle that: (SCC p. 265, para 10)
“ 10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance. ”
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Furthermore, the failure to examine public witnesses mentioned in the case records creates doubt regarding the voluntariness of the accused persons’ statements. It was also noted that no notice under Section 100 of the CrPC was served upon independent witnesses before conducting the search and seizure, thereby violating the procedural safeguards meant to ensure transparency and fairness in the investigation. Thus, in light of the observations in State/Railway Protection Force v. Raju ( supra ), the learned Trial Court found that the non-compliance with mandatory procedures by the RPF led to a situation where the prosecution case could not be sustained beyond reasonable doubt.
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independent reliable corroboration of the confession made by the accused.
“ 6. At this juncture we may also dispose of one of the contentions that failure to comply with the provisions of CrPC in respect of search and seizure even up to that stage would also vitiate the trial. T his aspect has been considered in a number of cases and it has been held that the violation of the provisions particularly that of Sections 100, 102, 103 or 165 CrPC strictly per se does not vitiate the prosecution case. If there is such violation, what the courts have to see is whether any prejudice was caused to the accused and in appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and from that point of view evaluate the evidence on record. Under Section 100 CrPC the officer conducting search under a warrant should call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search…..Section 165(4) lays down that the provisions of this Code as to search warrants and the general provisions as to searches contained in Section 100 shall, so far as may be, apply to a search made under Section 165 also…..
7. It therefore emerges that non-compliance of these provisions i.e. Sections 100 and 165 CrPC would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. Of course, in such a situation, the court has to consider whether any prejudice has
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been caused to the accused and also examine the evidence in respect of search in the light of the fact that these provisions have not been compiled with and further consider whether the weight of evidence is in any manner affected because of the noncompliance. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions….. It thus emerges that when the police, while acting under the provisions of CrPC as empowered therein and while exercising surveillance or investigating into other offences, had to carry out the arrests or searches they would be acting under the provisions of CrPC. At this stage if there is any noncompliance of the provisions of Section 100 or Section 165 CrPC that by itself cannot be a ground to reject the prosecution case outright. The effect of such non-compliance will have a bearing on the appreciation of evidence of the official witness and other material depending upon the facts and circumstances of each case…..
xxxx xxxx xxxx
22. We have also already noted that the searches under the NDPS Act by virtue of Section 51 have to be carried under the provisions of CrPC particularly Sections 100 and 165. The irregularities, if any, committed like independent witnesses not being associated or the witnesses not from the locality, while carrying out the searches etc. under Sections 100 and 165 CrPC would not, as discussed above, vitiate the trial ….
xxxx xxxx xxxx
25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:
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(4-A) If a police officer, even if he happens to be an “empowered” officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the
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provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity .
(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. ”
(Emphasis supplied)
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excused for not improving its methods of gathering and presenting evidence and violating the RPF Rules. Almost all individuals carry a mobile phone compatible with videography/photography these days. While a little play in the joint has to be afforded to investigating agencies to enable them to discharge their duties, the authorities also have to be held accountable to prevent abuse of law.
AMIT MAHAJAN, J
FEBRUARY 03, 2025
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2 issues framed by the court
Whether leave to appeal should be granted against the acquittal of respondents under Section 3 of the RPUP Act.
Whether conviction could rest on extra-judicial confessions to RPF officers absent independent public witnesses.
Colour shows how this judgement treated each authority
State of Maharashtra v. Sujay Mangesh PoyarekarApplied¶12
(2008) 9 SCC 475 · Who else cites this
State/Railway Protection Force v. RajuRelied on¶15
2014 SCC OnLine Del 575 · Who else cites this
Subramanya vs. State of KarnatakaApplied¶17
(2023) 11 Supreme Court Cases 255
State of U.P. v. Durga PrasadReferred¶21
(1975) 3 SCC 210 · Who else cites this
State of Punjab v. Balbir SinghApplied¶23
(1994) 3 SCC 299 · Who else cites this
3 provisions across 3 enactments
State through RPF
Farooq
Mohd. Miyan @ Karwa
Firoz
Amit Mahajan
As recorded by the court registry
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
