Allowed

Vamanabatla Shankara Sharma v. The State of Telangana

Telangana HC11 Oct 2022CRLP/4983/2019

Case brief

AI extract

What is this about?

Petition under Section 482 Cr.P.C. by accused No.6, managing editor of a police magazine, to quash gambling-related proceedings. The only material against him was a co-accused's confession recorded by police, inadmissible under Section 25 of the Evidence Act, and the informant and investigator were the same officer. Proceedings quashed.

What did the court decide?

Criminal petition allowed; proceedings against petitioner-accused No.6 in C.C.No.696 of 2018 on the file of the X Additional Chief Metropolitan Magistrate at Secunderabad quashed.

Vamanabatla Shankara Sharma Vs The State of Telangana — Quashing and FIR | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE D. NAGARJUN

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CRIMINAL PETITION NO: 4983 OF 2019

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Betwee n:

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Vamanabatla Shankara Sharma, S/o. B. Venkataramana, aged about 57 years, lvlanaging Editor of Police today lVlagazine, Ryo. H. No. 2-2-647127313, Baghamberpet, Hyderabad.

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...PETITIONER/ACCUSED

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AND

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The State of Telangana, Rep. by its Public Prosecutor, High Court for the State of Telangana at Hyderabad

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...RESPONDENT/COMPLAINANT

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Petition under Sectron 482 ol Cr.P .C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash proceedings in C.C.No. 696 OF 2018 on the file of the X Addl. Chief lvletropolitan Magistrate at Secunderabad, in the interest of justice.

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l.A. NO: 2 OF 2019

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay all further proceedings including appearance of the petitioner in C.C. No. 696 OF 20'18 on the file of the X Addl. Chief Metropolitan Magistrate at Secunderabad, pending disposal of the Crlp.

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This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri T Anirudh Reddy, Advocate for the Petitioner and of the Assistant Public Prosecutor (TG) on behalf of the sole Respondent.

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The Court made the following: ORDER

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TTIE HON'BLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION No.4983 of 2Ol9

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ORDER:

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This Criminal Petition is filed under Section 482 ol the Code of Criminal Procedure by the petitioner-accused No.6 to quash C.C.No.696 of 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderabad, the cognizance of which was taken on hle for the offence under Sections 3 and 4 of the Andhra Pradesh Gaming Act, 1974 read with Telangana State Gaming (Amendment) Ordinance, 2Ol7 and Section 34 (A) of A.P.Excise Act, 1968 and Section 4 read with Section 21 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2O03.

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The facts in brief as can be seen from the record available before the Court are as under:

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a) On 2O.1O.2O17 at 0300 hours LW18 received credible information through Commissioner's Taskforce, Hyderabad city that some unknown persons are organizing Gambling i.e., three cards game at Room No.7010 in Marriott Hotel, Lower Tankbund, Hyderabad by allowing punters and betting money in the room in order to earn easy money and the said

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information was appraised to the superior officers and obtained authorization memo to conduct search. Accordingly LW2l secured the presence of two mediators i.e., LWs 13 & 14 and drafted search proceedings U/sec. 165 Cr.p.C. at Gandhinagar Police Station at 033O hrs on 20.10.2O1T and he along with the mediators, staff together with Taskforce oflicers and men i.e., LWs 1 to 9 rushed to the spot. After identifuing the room i.e., Room No. 7010 in Marriott Hotel after taking precautionary measures rvith the guidance of hotel management, they knocked the door of Room No. 7O1O situated on 7th floor, upon which one person opened the door, then they entered into the room and found about 36 members in three INTERCOME rooms i.e., Room No. 7OLO, TO|S & ZO2S indulging in playing three cards game by betting money which is a game of chance. On enquiry the person, who opened the door revealed his identity as Accused No. 1. LW21 gave his identity, purpose of visit and served a copy of search proceedings on him under proper acknowledgement. On further enquiry accused No.1 stated that, he is doing real estate business and in order to earn easy money he along with his associates 42: Babulat Agarwal, A3: Rakesh J:ur.eza, A4: Rajinder Nagpal Singh, AS: Sanjay Kumar have

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planned to organize Gambling in posh hotels by allowing punters by betting money.

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b) As per their plan, on 17.10.2O17 he along with his associates Rakesh Jweza and Rajinder Nagpal Singh have booked three room i.e., Room Nos: 7010, 7015 & 7O25 in Marriott Hotel, Lower Tankbund on their names by submitting their ID proofs, and on l9.l0.2ol7 during the night time they along with t1-reir associates and assistants have allowed their knoq.n 28 punters into the above mentioned hotel rooms for playing three cards game without the consent and knowledge of hotel managerrent and collecting an amount of Rs. 3,000/- per each game from the winning punters. For this purpose, in order to entertain the punters A1 along with his associate organizers and assistant organizers A2 to A11 have arranged the costly liquor, food, Hookah smoking to them, for which they are collecting an amount of Rs. 2,000/ - from each punter. They have also arranged two swiping machines to the punters in order to facilitate them to pay the betting money through swiping machines, apart from that they have also arranged playing cards and casino coins (which are to be used in place of money) and they did not allow the hotei staff i.e., waiters and housekeeping personnel into the rooms and they used to supply

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food etc., to the punters. On enquiry with the organizer fpunters, who are playing three cards, they disclosed their name as - (1) Babulal Agarwal s/o. Jagdish prasad, (21 Syed Sajeeth Ali, s/o. Syed Nawab, (3) Mohd. Jaffar s/o. Mohd. Jabbar, (a) Mohd. Amer s/o.Mohd. Jamsheed, (S) Mohd. I(haja s/o. Mohd. Jamal, (6) Rohit Joshi s/o. Ganesh Dutt Joshi, (7) K. Nagesh s/o. K. Laingaiah, (B) Rajesh Dilip Shah s/o. Dilip K Shah, (9) J. Narender s/o. J. Veeresham, aged 37 yrs, (1O) S. Bharath s/o. S. Sajan, (11) B. Dushyanth Reddy s/o. B. Mohan Reddy, (12) K.Satish Kumar, s/o. K. Narsimhulu, (13) A. Santosh s/o. A. Chakradhar Rao, (14) V. Buchi Reddy s/o. Late V. Sanjeeva Reddy, (1S) p. Srinivas s/o. p. Narsa Goud, (16) Mohd. Ghouse Pasha s/o. Late Mohd. Babu Miya, (17) M. Ramesh s/o. M. Nardev, (18) Umesh Agarwal s/o. Late Naval Kishore, (19) S. Sheshu s/o. S. Hari Babu, (2O) S. Dinesh s/o. S. Shiva Shankar, (211 Ranveer Singh Saluja s/o. Late Pritham Singh, (22) A. Santosh s/o. A. pentaiah, aged 38 yrs, (231 K. Marka Reddy s/o. Late K. pichi Reddy, (24ir K. Manmohan Reddy s/o. K. Ranga pratap, (25) C. copal s/o. C. Raju, (26) S. Bashu s/o. S. Kasim, (27) T. Ramesh Goud s/o. Late T. Narahari Goud, (28) G. Shankar s/o. G. Anjaneyrlu, (29) S. Krishna Reddy s/o. Late S. Veera Reddy, (30) p. Sudhakar

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s/o. Late P Venkaiah,⁽³ 1) G.^{Narsing Rao s/o. Late G. Balaiah,} (32) Mohit Juneja s/ o. Tarvinder Juneja,^{(33) Amit Niranjan} Doshi s/o. Niranjan Doshi,^{(34) Vimal Jain s/o. Late M.L. Jain,} (35) Y. Sunii Kumar s/o. Y. Narsing^Rao.

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c) Thereafter, LW2 1 recorded the^{confession-cum-seizure} panchanama of Al & 42, who are the organizers^{of Gambling} and seized an amount of Rs.^{4,50,0O0/-,Two Samsung cell} phones, Swiplng Machine, One Calculator,^{(07) Money Credit} Receipts, 900 Plastic Casino Coins,^{Casino Coins Tray, 19 Royal} Palace Play Cards, O5 Bottles of^{ChivasRegalBlendedScotch} Whisky (750 mt) each bottle, O2^{Bottles of Johney BlackLable} Whisky (1.75 litres), 02 bottles of Kinghsher^{UltraBeer 330 ml} each l)ittle, Hookah Stand with two^{Nozzles & breathingpipe,} Rajnigandha Pan Masala from the^{possessionof A1: Chikoti} Praveen Kumar (organizer) and^{Rs. 4,OO,OOO/- & MI Redmi cell} phone. one Swiping Machine, O8 Money Credit^{Receipts of PS-4,} 849 plastic Casino Coins, Casino Coins Tray,^{06 packets of} Texas playing cards, 05 Chivas Regal^{Blended Scotch Whiskey} (750 ml each), O1 Bottle of used Johney Walker^Whisky(2OO mll, Yz Lrter bottle Morpheus^{Brandy from the possession of A2:} Babulal Agarwal (organizer) under cover of^{panchanama in} presence of mediators LWs 1O and 11. After that the^LW21have

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seized the cash of Rs. 12,63,650/-, 36 cell phones and g4 playing cards from the possession of Sub_Organizers & punters i.e., ,46 to A39. Apart from the above amount and material, the LW21 also seized centre amount of Rs. 2,24,O00/_ from FIVE CENTRE TABLES & remaining 176 playing cards under cover of panchanama in presence of mediators LWs 13 & 14.

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d) After completing the seizure formalities (as per confession) the LW2 1 along with the team brought all the above mentioned accused persons A1, A2, AZ to A4O who are the gaming organizers, Assistant Organizers & punters together with seized cash of Rs. 23,37,65 O /_ and material to Gandhinagar police station at 113O hours and produced before the SHO for taking necessary legal action against them under sections 3 & 4 of A.p. Caming Act, lg74 r/w. the ?elangana State Gaming (Amendment) Ordinance, 2OlZ & Sec. 34(A) of A.p. Excise Act, 1968 & Sec. 4 r / w. 2l of the Cigarettes & other Tobacco Products (prohibition of Advertisement & Regulation of Trade & Commerce, production, Supply & Distribution) Act, 2003.

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e) Based on the said complaint, LW20 registered a case in Crime No. 292/2012, U/sections 3 & 4 of A.p. Gaming Act, 1974 r/w. The Telangana State Gaming (Amendment)

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Ordinance, 2Ol7^{& Sec. 34(A) of A.P.Excise Act, 1968 & Sec" 4} r lw. 2l of the^{Cigarettes & other Tobacco Products (Prohibition} ol Advertisement &^{Regulation ofTrade &Commerce,} Production, Supply^{& Distribution)Act, 2003 and forwarded the} case hle to the^{LW2 1 for further investigation'Duringthe} course of investigation,^{LW2 1 examined and recorded the} statements of^{witnesses, affectedthe arrest of accused persons} by issuing their arrest^{cards after informingthem about the} grounds of arrest. During^{interrogation the accused persons} Accused Nos.1, 2,⁷ to^{11 admittedtheir guilt of committing the} offence that they^{along with the Accused Nos'3 to 6 were} organizing the common^{gaming house in the MarriottHotel by} taking rooms on their^{names without the consent and} knowledge of the^{hotelmanagement and earning easy money,} while the accused Nos.12 to 40^{admitted their guilt thatthey} were indulged in illegal^{activities of playingthree cards, a game} of chance in order^{to easy money illegally. The accusedNos' 1, 2,} 7 to 40 were remanded to^{judicial custodyon2Q.LO.2OL7.}

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f) During further course of^{investigation,on requisitionthe} LW21 took the accused^{persons A1: Chikoti PraveenKumar&} A2: Babulal Agarwal into^{police custodyfor two daysi.e',} 24.10.2017 at i0.30 am to^{26. 10.2017 at 10.30am. During}

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police custody the LW21 interrogated the A1 & A2 thoroughly and recorded their further confession statements in presence of two mediators LWs 15 & 16 in the police station. While the efforts were on foot on credible information the LW21 deputed the staff in the area of Namalagundu, who in turn rushed there and apprehended the Accused No.S on 2g.lO.2O1T at l1O0 hours nearby his house at Namalagundu, brought him to police station 1130 hours and produced before the LW21. LW21 took the A5 into custody and interrogated him thoroughly, wherein he confessed and corroborated with the confession statements of his associate organizers A1 & A,2 in all aspects, as such the LW21 secured the presence of two mediators LW17 & 1g and recorded his confession-cum-seizure panchanama and seized his SAMSUNG cell phone under cover of panchanama. The LW2 1 affected the arrest of accused No.S by issuing his arrest card after informing him about the grounds of arrest and he was remanded to judicial custody on 29.lO.2OlT. On 29.10.2017 in the late evening hours the LW21 served notice under section 41(A) Cr.P.C. to accused No.6 under proper acknowledgement with instructions to appear before him within three days from the date of receipt of notice to depose his version on the allegations without fail, but he failed to respond.

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g) During further course of investigation, LW21 forwarded the material objects i.e., samples of Liquor botties to the Forensic Science Laboratory, Red Hills, Hyderabad for chemical analysis and report. Upon which the LW19 who examined the material objects have furnished report that on tle ba.sis of results obtained through analgsis items 1 and 2 are liquor - item 3 is aerated liquor.

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h) Since accused Nos.3 and 4 were absconding LW21 frled charge sheet against the accused persons A1, A2, A5 to A40 before the Hon'ble court by showing the .{3 & A4 as absconding with a prayer to commence trial against them and supplementary charge sheet will be filed against the Accused Nos. 3 and 4 as and when they arrested.

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i) The charge sheet filed by the investigating agency was numbered as C.C.No.696 of 2018 on the file of learned X Additional Chief Metropolitan Magistrate at Secunderab'ad. Aggrieved by the same, the present petition is Iiled by petitioneraccused No.6 seeking quashment of C.C.No.696 of 2018 on the following grounds:

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i) The petitioner's name has not been stated either in the FIR, remand report or even in the confessional statements of A-

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1 and A-2,which were recorded immediately after their arrest. Subsequently, the police sought custody of the accused and the Hon'ble Court granted police custody of A-1 and A-2. During the said period, on 25.10.2017, at about 10:30 hours, the second confessional statement of A-1 was recorded at Gandhinagar Police Station. In the said confessional statement, A_ 1 stated that the petitioner, who is the managing editor of police Monthly Magazine got introduced to A-I and represented that he is having influence in l-righer circles as well as in the police department. Accused No. I further confessed that the petitioner also promised to manage the officials, if any problems arise. It has also been alleged in the said confessional statement that the petitioner also joined as one of the organizer and the petitioner was also being paid a certain share out of the profrts. It is interesting to note that in the aforementioned second confessional statement dated 2O.05.2012, it has been stated that A- 1 did not disclose this fact about the petitioner in his earlier statement due to fear of the petitioner.

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i0 There is absolutely no legal evidence against the petitioner and it is only an afterthought of the police to include the name of the petitioner. The alieged incident took place on 2O_lO_2OlT around 3.OO a.m. and the FiR, 161 of Cr.p.C. statementsrl.d not

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refer to the^{participation of the petitioner' Fivedays later'on 25-} lO-2O17, that^{too during the policecustodyof A-1, the name of} the petitioner^{wasincluded.Moreover,the petitioner has been} implicated in the^{present case in total contraventionof the well} established rule of^{law that the confession of a co-accused in} not admissible^{in law.}

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iii) The first informant/complainant^{in the present case is R'} Srinivas, Inspector of^{Poiice, GandhinagarPoliceStation'} Hyderabad as^per the^{FIR inCrimeNo '282I 2Ol7 of} Gandhinagar^{PoliceStation,Hyderabad and the person who} investigated the case and^{filed the charge-sheetis also R'} Srinivas, the lnspector^{of Police, GandhinagarPolice Station'} Hyderabad (Lw-2f ).^{Therefore, the proceedingsare liable to be} quashed as the complainant^{and I.O. cannot be one and the} same. The Hon'ble^{ApexCourt in Mohanlal Vs' The State of} Punjab held that fair^{investigationis the very foundation of fair} trial, necessarily^{postulates that the informantand the} investigator must not^{be the sarne person. Justicemust not} oniy be done, but must^{appear to be donealso' Any possibility} of bias or a^{predetermined conclusionhas to be excluded' This} requirement^{is all the more impelg$4e jn laws carrying a reverse} burden op6of.

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iv) The petitioner is no way concerned with the business of A-1 and A-2 and that he has never been involved in any case. He has unnecessarily been roped in as .4_6 in the present case.

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v) None of the offences that are alleged would not fall within the definitions of Sec. 3 & 4 of A.p. Gaming Act, tg14 r /w. Telangana State Gaming (Amendment) Ordinance, 2017 & Sec. 34(A) of A.P. Excise Act, 196g & Sec. 4 r/u,. 21 of the Cigarettes & other Tobacco products (prohibition of Advertisement & Regulation of Trade & Commerce, production, Supply & Distribution) Act, 2OO3 has no application in so far as the petitioner is concerned.

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vi) The petitioner is the managing editor of police Monthly Magazine and he was very much available. But however, in the charge-sheet, the poiice have showed him as absconding.

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Heard Sri T.pradyumna Kumar Reddy, Iearned senior counsel representing sri T.s.Anirudth, learned counsel on record for the petitioner-accused No.6 and Sri S.Ganesh, learned Assistant public prosecutor arld perused the record.

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4 Now the point for determination is:

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"Whether the^{proceedingsagainst the} petitioner-accused No.6 in^{C'C.No.696of 20 18 on} the file of learned X^{Additional Chief Metropolitan} Magistrate at Secunderabad,^{can be quashed under} Section 482 of the Code^{of Criminal Procedure?}

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According to the^{prosecution, on 20 -lO.2Ol7 LW21 i'e',} investigating officer after taking^{permission from the higher} oflicials has visited the scene^{of offence along with mediators} and other staff members^{and the hotelrooms were convertedas} common gaming house and^{playing three cards gamesby} betting huge amounts and^{that organizers have collected} Rs.3,OOO/- for allowing the^{punters to use the said premisesfor} gaming and also collecting Rs.2,OOO/-^{for arrangingliquor, food,} Hookah smoking to the punters.^{At the time of raidingthe} scene of offence, the investigating^{officer LW2 1 foundAccused} Nos. 1, 2, 7 to 39.

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The contention of learned counsel for^{the petitioner-} accused No.6 is that^he is^{no way concerned with the alleged} offence and he has been^{falselyimplicated and even if the} contents of charge^sheet are^{accepted to be true, factually} basing on the^{facts and also on the law, case cannotbe fastened}

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against the petitioner-accused No.6 for any of the offences alleged against the petitioner_accused No.6.

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7 . Admittedly, when the police have searched the scene of offence i.e., hotel rooms, the petitioner-accused No.6 is not present in any of the rooms and he was not playing cards. Immediately after arrest, the police have recorded the confessional statements of accused Nos. I and 2 on 20.lO.2O1Z in the presence of B.Sudarshan and N.Vrjay Kumar i.e., mediators. In the said confessional statement, accused Nos. 1 and 2 though have stated as to how they have committed the offence and how they have collected monies from the punters, did not disclose the involvement of petitioner_accused No.6. if at all the petitioner_accused No.6 is really involved in the offence along with other accused, there is no reason as to why the name of the petitioner-accused No.6 was not mendoned in the confessional statement. According to the police, accused Nos.l and 2 have voluntar y confessed the offence and it is not the case of the prosecution that during the course of confessiondl statement of accused Nos. 1 and 2, they did not disclose anybody name as involved along with them in the offence. According to the confessional statement of accused Nos. 1 and 2, they disclosed the names of Babulal Agg/al,

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Rajinder Nagpal Singh,^{SanjayKumar, Rakesh Juneja as the} persons who are also involved^{in the offence,thoughtheywere} physically not present in^{the hotel roomsat the time of search of} the Police. Therefore,^{basing on this material,the petitioner-} accused No.6 is no^{way concerned or connectedto the offence'}

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However, for the reasons^{best knownto the Police, they} have recorded subsequent^{confessionalstatement,which is not} usual in criminal^{case. ThePolice have not explained as to why} and under what^{circumstancesthe second confessional} statenlent of accused^{Nos.1 and 2 were to be recorded'In the} said confessional statement^{conveniently the name of the} petitioner-accused No.6 was^{brought on recordand not only} that but accused Nos. 1 and 2^{were made to speak in the} confessional statement that^{since they are afraid ofthe} petitioner-accused No.6 when they^{confessedatthe flrst} instance of recording their^{confessionstatement. Here, the} question to be considered is^{if really accused Nos' 1 and 2 got} fear of petitioner-accused^{No.6, then they should not have} disclosed the name of^{the petitioner-accused No.6 even in the} second confessional^{statement.No explanationis offeredas to} what transpired^{betweenfirst and second confessional} statements.

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Therefore, brining the name of the petitioner _ accusecl No.6 in the second confessional statement is clearly an act of involving or implicating the petitioner without any basis.

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On going through the entire charge sheet, the only connection of petitioner_accused No.6 with the alleged offence is second confessional statement of accused Nos.l and 2. The Police have not placed any material either oral or documentary connecting the petitioner-accused No.6 to the offence alleged against him. The police should have recorded the confessional statement of accused Nos. 1 and 2 before the learned Magistrate, which can be admitted. The alleged confession statement of accused Nos. 1 and 2 is not before the learned Magistrate but before the Police officer. Section 25 of the Indian Evidence Act reads as under;

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"25. Confession to police offtcer not to be proued.-No confession mad_e to a police officer 1 , shall be proued as against a person accused. of any offence.-No confession made to a police off.cer 1, shall be proued as against a person accused. of any offence.,,

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On considering the above provision of Indian Evidence Act, it is clear that any confession made before the police o

is hit by Section 25^{of the EvidenceAct and thereby not} admissible. Further,^{even for a moment,if the confessional} statement of accused^{Nos. 1 and 2 can be admitted, still accused} Nos. I and 2 cannot^{confessin respect of other accused' It is} settled legal^{prepositionthat confessionmade before the Police} by co - accused is^{not admissiblebefore the Court' The Police} have also not recorded^{the confessionalstatement of petitioner-} accused No.6;. therefore,^{except the secondconfessional} staternent of co-accused,^{there is no incriminatingmaterial} against the petitioner-accuse^{No.6 to connecthim to the alleged} offenr:e.

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In Parveen @^{Sonu v. State of Haryanal'the Hon'ble} Supreme Court held as^follows:

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"14. On close scruting^{of euidenceon record,we are of} the cL'tnsidrrecl uietu that^{proseantionhas} failed^{to proue its} case, that tlrc appellant^{h.erein, has conspired rttith other} acansed for the offences for^{nthich Le utascharged. Dxcept the} ' alteged confessional^{statementsof ttte co- acansed and in} absence of ang^{other t:orroboratiue euidence, it is not safeto} maintain the conuiction^{and sentence imposeduponthe} Appetlant. The findings^{recordedbg the TialCourt in} coruticting the appellant^{mainly on the groundthat le u)a-s one} of the conspirators for^{the cime in question,is erroneous and}

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'^{2021scc online SC I 184}

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illegal. The High Court has not consid_ered_ the euid.ence on record in proper perspectiue and. erroneousLg conJinned. the conubtion and sentence imposed on the appe ant.,

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13' In Prathap Reddy v. The Inspector of porice, central crime Branch, Egmore, Chennai2, the High Court of Madras held as follows:

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^In this case the Hon,ble Supreme Court of India hos held that ttrc conuiction on the basis of confession of the co-accused. is not permissible, as held In paragraph No.14, which is extracted hereund_er

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" i 4.In the absence of ana substantiue euidence it utould be tnappropnate to base the conuiction of the

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appellant purelg on the statements of co_ accused. The appellant is therefore entitled to be acquitted of the charges leueled. against him. We, therefore, accept this

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appeal, set aside the ord_ers of conuiction and sentence For examp le: State us Nalini (1999) 5 SCC 253, paras 424 and 7O4 and acquit the appetlant. The appellant shall be released fortfuitith unless hrs custod_y i.s required in connection with ang other offence."

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In Firoz Hajibhai Sodha v. State of Gujarat: tne HighT .

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Court of Gujarat held as follows:

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'?^{lndiankanoon.org/d} oc/ I 699 61 462/

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" 10. From^{the aforesaiddecisions, it t'rtouldbe} clear that o statement^{of co-accusedcan be considered} or treated as a^{clue or a pieceof information to initiate} ond conduct inq-iry/^{inuestigation or to d'irect the} inuestigotion/ inquiry^{in a particular directionso as lo} find^{out as to uhether there is any independent'} satisfactory and^{reliablematerial uhich mag support or} jutt fU or prouide reclson fo' continuing inquiry / inue^stig ation fot^initiating furttLer^{inu estig ation'} At the. stage uhen^{the inuestigotion has commencedor} the process is^{going on anA occasionor any questionof} treatitg or consideing^{such a statementas euidence} does not aise and.^{tLerefore it tttouldnot be properand} just to terminate, i.e. to direct the^{inuestigating officer to} close the inuestigotion'^{It is also requiredto be noted} that the admissibilitg^{or othenaise of tte confessional} statetnent con be examined^{at the stage of tial and not} at the stage of^{inuestigation.Tlws, Section25 of the} Euidence Act would^{come into play not at the stoge of} inquiry/ inuestigation^{but at the stage of tiaL"}

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Considering the above^{authorities and on applying on the} facts of this !:ase, it^{is clear that confessionalstatementof} accused Nos. l and 2^{cannotbe admittedbeforethe Court} against the^{petitioner-accused No.6.}

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I Criminal Misc.Application No.5836 of 2021 dated 08.02.2022

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The other contention raised by the learned counsel for the petitioner is that the investigating oflicer LW21 being the de_ facto^complainant cannot investigate and file charge sheet. In Mohan Lal v. State of puajab+, the Hon,ble Supreme Court held as follows:

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"It is therefore letd that a fair inuestigation, tuhich is but th.e uery found-ation of fair trial, necessailg postulates that the informant and the inuestigator must not be the same person. Justice must not onlg be done, but must appeor to be done also. Any possibility of bias or a pred.etermined conclusion has to be excluded. This requirement is a the more imperatiue in laws carrying a reuerse burden of proof.,,

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In Bahgawan Singh v. The State of Rajasthans, the Hon'ble Supreme Court held as follows:

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,,In fact, Head Constable Ram Sing., being an olftcer belout tLLe rank of Deputg Supertntend_ent of Police, uas not authorised. to inuestigate the case but we do not attach ang importance to that fact, as that maA not affect the ualtditg oj the conuiction. The infirtnitg uthich u.te are pointing out is not an infirmity ari-sing from inuestigation bg an offtcer not authorised. to do so, but an infirmitg aristng from inuestigation by a Hea_d Constable taho utas himself the person to uthom the bibe u.tas alleged tqJWue been offered. and_ utho

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a 20la Law Suit tSC) 768 - AIR 1976 Supreme Courr 98S

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todged tlrc first^{information Report as informant or} complainant.^{This is an inftmityrtthich is bound to} reJlect on^{tLe credibititg of the proseantionca'se'"}

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In Xavier^{v. Stateof Kerala6,the High Court of Kerala}

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held as^follorvs:

¶106

"Notu, tLe onlg^{pointthat aises} for^{consideration} before me is^{uhether PW1, being the comptainant can} be an inuestigating^{officer througlaut and uLlrcther he} can file tle final^{report. In a case of this nature' uthen} the complainant^{himself is aPolice Official' tte} inuestigation^{should haue been conductedby his top} ranking officer^{and the} Jinal^{repott alsoought to haue} been fled^{bg the higLLer officials' A Complainant being} potice officer^{cannotbe an inuestigating officer' For' in} such case, the^{accusedand the proseantionu'till be} depriued of their^{ualuableights of contradictingand} corroborating^{the preuiousinformation recorded U/ S'} 154 ancl¹ 55^{Cr.P.C.and preuiousstatementsof} uitnesses,^{being o police ofilcer, complaint recorded'} under S. 161^{Cr.P.C., enjoinedin Ss'745 aftd 157 of the} Ind.ion^{Euidence Act and prouisoof 5'162' Cr'P'C' In'} the instont^{case, before me, PWl is an AssrlstantSub} Inspector of^{Poticeand Iunderstand from ttw Public} Prosecttor^{as utell as} from^{the Counselfor tle petitioner} that the^{partic.tlarPoliceStationhasgot a Sub Inspector} of Police.^{Therefore,in this case, the inuestigation ought} to hante^{beenconducted bg tle Sub Inspectorof Police or}

¶107

( 1998 CRLL.J. 3182

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¶109

ang other police officer aboue the rank of pWl. In the instant case, thus, an inanrable infirmity and. flau.r haue been committed bg tLE prosecution, quite against th.e proposition of taw. Tlrcrefore, on that sare itself, the petitioner ts enti;|Ied to get an ord.er of acquittal. In uieu.t of mg aboue conclusion on the footing of position of taut, this is a fit case, tt_thich has to be allou.ted_ bg acquitting th.e petitioner.,

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In view of the principle laid down in the above said authority, it is evident that the de_facto complainant being a Police Ofhcer cannot be the complainant, investigate and file charge sheet. Similarly, in the case on hand also the d_e_facto compiainant is none other than the Inspector of police, Gandhi Nagar^police Station, who has raided the scene of offence i.e., hotel rooms and subsequently conducted investigation, seized the material objects under confession cum seizure panchanama and finally filed Iinal charge sheet. So, the above said authorities are squarely applicable to the facts of the case on hand. Thus, on this ground alone, continuation of proceedings against the petitioner_accused No.6 amounts to abuse of process of law.

¶111

Accordingly, tie Criminal petition is allowed and the proceedings against the petitioner_accused No.6 in C.C.No.696

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¶113

of 2018 on rhe file of learned X Additional Chief Metropolitan Magistrate at Secunderabad are hereby quashed. The trial Court shall proceed with the case against other accused in C.C.No.696 of 20ig on merits uninfluenced by the observations and comments made by this Court in this order.

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As a scquel, the misceilaneous petitions, pending if any, shall stand c Iosed.

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Sd/. T. JAYASREE

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To,

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ASSISTANI REGISTRAR //rRUE coPY// sEcqiSN oFFrcER

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