# Shashikant Prasad v. The State Thru C.B.I. /A.C.B

- **Citation:** (2013) 2 ILRA 949
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-02-28
- **Case number:** U/S 482/378/407 No.767 of 2013
- **Bench:** Vishnu Chandra Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashikant-prasad-v-the-state-thru-c-b-i-a-c-b-42653
- **Pages:** 9

## Headnote

950 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Code of Criminal Procedure-Section 197-
where the investigation report with case
diary-matter
placed
before
Govt.
for
sanction-and the govt. failed to grant or
refuse the sanction within period-specified
by Apex Court in Vineet Narayan casewhether the Magistrate empowered to take
cognizance
and
proceed
further-after
application of judicial mind?-held-'yes'.

Held: Para-14 & 15

## Text

2 All] Shashikant Prasad Vs. The State Thru C.B.I. /A.C.B.
949
and issuance of show cause notice dated
05.10.2004.

20. In view of the aforesaid finding that
the dismissal order has been passed in
flagrant violation of principles of natural
justice, on this ground alone, the impugned
order of punishment deserves to be quashed.

21. As regards submission of learned
counsel for petitioner that the respondents
took a decision for initiation of departmental
proceedings against the petitioner even
without ascertaining the exact loss, hence,
the
very
initiation
of
departmental
proceedings cannot sustain, it may be
observed that at the time of taking decision to
initiate departmental proceedings, prima
facie satisfaction of the competent authority
suffices to support the decision. Thus, this
argument raised on behalf of petitioner by Sri
Vishal Singh is not tenable.

22. However, as observed above, the
departmental
proceedings
against
the
petitioner have been initiated in violation of
principles of natural justice inasmuch as the
report
dated
12.07.2005,
the
material
contained therein and also the minutes of
meeting dated 03.02.2006 were never
provided to the petitioner. The impugned
order of punishment dated 28.12.2006 cannot
legally be permitted to survive.

23. Accordingly, the writ petition is
allowed and the impugned order of punishment
dated 28.12.2006 as contained in annexure no.1
to the writ petition is hereby quashed.

24. It has been stated at the bar that
the petitioner has attained the age of
superannuation on 28.02.2011. In these
circumstances, it is made open to the
respondents
to
initiate
departmental
proceedings from the stage which has been
found to be initiated in the instant
judgement.

25. If respondents decide to initiate
proceedings again, they shall serve show
cause notice to the petitioner which would
contain proposed punishment which the
competent authority may intend to inflict on
the petitioner. The show cause notice shall
also be accompanied by the inquiry report
and
the
copy
of
letter/report
dated
12.07.2005 along with other relevant
material on the basis of which letter/report
dated 12.07.2005 has been prepared and also
minutes of meeting dated 03.02.2006. The
petitioner shall also be given an opportunity
for personal hearing.

26. If the respondents take a decision to
initiate inquiry again, as mentioned above, the
same shall be completed within a period of
two months from the date a certified copy of
this order is produced before the authority
concerned.

27. However, there will be no order
as to cost.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.07.2013

BEFORE
THE HON'BLE VISHNU CHANDRA GUPTA, J.

U/S 482/378/407 No.767 of 2013

Shashikant Prasad

 ...Applicant
Versus
The State Thru. C.B.I/A.C.B...Respondent

Counsel for the Petitioner:
Sri Nandit Srivastava, Sri Tapeshwar
Kumar Maurya

Counsel for the Respondents:
Sri Bireshwar Nath
950 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Code of Criminal Procedure-Section 197-
where the investigation report with case
diary-matter
placed
before
Govt.
for
sanction-and the govt. failed to grant or
refuse the sanction within period-specified
by Apex Court in Vineet Narayan casewhether the Magistrate empowered to take
cognizance
and
proceed
further-after
application of judicial mind?-held-'yes'.

Held: Para-14 & 15
14. At the same time it would be incumbent
upon the court that while exercising doctrine
of deemed sanction the trial court must think
and apply its mind to the facts of the case
and then proceed in accordance with law. If
the court comes to the conclusion that on
the basis of investigation conducted by the
investigating agency or on the basis of the
complaint made by the complainant that
necessary ingredients of particular offence
are not available and prima facie case is not
made out then merely because investigating
officer
has
submitted
charge-sheet
or
complaint has been filed and the state
government has not taken any decision for
grant of sanction within the time schedule
fixed by Apex Court, it shall not be treated
that court may proceed with blind eyes and
without forming an opinion of prima facie
case to proceed. In absence of the sanction
the responsibility of the court increases
because the safeguard under section 19 of
P.C.Act available to the public servant has
been lifted by the act of the court.

15. In view of the above facts and
circumstances
of
the
case
and
law
propounded by the Apex Court no illegality
or infirmity is found in the impugned order
passed by the trial court taking cognizance
in the matter to prosecute the accused
person including petitioner.

Case Law discussed:
1998 SCC (Crl.) 307; 2012 AIR SCW 1249

(Delivered by Hon'ble Vishnu Chandra
Gupta, J.)

1. Short question for consideration
before this Court in this petition is-

Whether trial Court is competent to
proceed with the case on the basis of
deemed
sanction
to
prosecute
the
accused,if prosecution sanctioned is not
accorded by competent authority/State
within the period of four months in terms
of the direction issued by Apex Court in
Vineet Narain and another Vs. U.O.I. and
another (1998 SCC(Cri) 307) ?

2. Brief facts for deciding this petition
under section 482 Cr.P.C. are that Central
Bureau of Investigation ( for short "CBI")
registered a case of criminal breach of trust,
cheating, forgery, using forged documents as
genuine, criminal conspiracy and criminal
misconduct under Sections 409, 420, 467,
468, 471, 120-B of Indian Penal Code (for
short 'IPC') and section 13(2) of Prevention
of Corruption Act, 1988 (for short 'PC Act')
against Mohammad Syed Kasim Raza and
fifteen others for the alleged food grain scam.
The CBI investigated the matter and
submitted charge-sheet in this matter in the
court of special Judge, Anti Corruption
(West), U.P. Lucknow against the petitioner
and others. CBI after conclusion of
investigation asked for prosecution sanction
to prosecute the petitioners and some other
accused. The State Government granted
sanction against some of the accused but no
order has been passed in regard to
prosecution sanction so far as the petitioner is
concerned. CBI in this case filed a copy of
letter sent to the Chief Secretory, State of
U.P. on 13.7.2012. by which sanction was
sought against petitioner Sashikant Prasad.
The Government has not taken any decision
in regard to prosecution sanction so far as
petitioner is concerned in spite of aforesaid
letter. On account of inaction on the part of
State Government, CBI submitted chargesheet
arising
out
of
RC
0062010A0027/14.12.2012 in the Court of
Special Judge, Anti Corruption (West) CBI,
2 All] Shashikant Prasad Vs. The State Thru C.B.I. /A.C.B.
951
Lucknow against the petitioner and other coaccused under Sections 120B, 420, 468 and
471 I.P.C. And 13(2) read with section
13(1)(d) of P.C. Act. It was submitted by the
learned counsel for the petitioner that the
charge-sheet has been submitted after
registration of crime under the orders passed
by the Division Bench of this Court at
Lucknow on 30.12.2010 in Writ Petition No.
10503
of
2009
(M/B)
(Vishwanath
Chaturvedi Vs. Union of India). The
charge-sheet was submitted in the trial court
in the light of thee Judgement delivered in
Vineet Narain and others Vs. Union of
India and another, 1998 SCC (Cri) 307,
wherein time limit was fixed by the Apex
Court to take decision for grant or refusal of
sanction to prosecute person concerned. The
period fixed in Vineet Narain's case (Supra)
had already expired, but the government has
not taken any decision. Hence in this case the
court deemed that sanction has been
accorded on account of default of State
Government to take decision in the matter
and issued process against accused including
the petitioner to appear before court vide
order dated 4.12.2012. Aggrieved by the
aforesaid order this petition has been filed.

3. Heard the learned Counsel for
Petitioner and the learned Counsel for
CBI and also learned AGA.

4. It has been submitted by the
learned counsel for the petitioner that the
Apex court in a recent matter (Special
Leave to Appeal (Criminal) No. 5027 of
2013) considered the aspect of section
197 Cr.P.C and held that even in the case
of a retired government servant, sanction
under section 197 Cr.P.C. is also required.
The Apex Court by an interim order
stayed the prosecution of the petitioner
and on the strength of this interim order it
has been contended that to prosecute the
government
servant
sanction
under
section 197 Cr.P.C. is also required. It is
further submitted that in Vineet Narain's
case (Supra), the Apex Court issued
certain directions and for implementation
and suggested the Governments to carry
out necessary amendment in the light of
the directions in the statute book, but the
legislature has not amend the law on the
point of deemed sanction.

5. In recent case the Hon'ble
Supreme Court in Dr. Subramanian
Swamy V. Dr. Manmohan Singh and
Anr) 2012 AIR SCW 1249 in paragraph
56 again requested the parliament to make
necessary amendment by introducing time
limit under Section 19 of the PC Act. The
relevant paras 55 and 56 of the said
judgement are reproduced here-in -below

"55. I may not be understood to have
expressed
any
doubt
about
the
constitutional validity of Section 19 of the
P.C. Act, but in my judgment the power
under Section 19 of the P.C. Act must be
reasonably exercised. In my judgment the
Parliament and the appropriate authority
must consider restructuring Section 19 of
the P.C. Act in such a manner as to make
it consonant with reason, justice and fair
play.

56. In my view, the Parliament
should
consider
the
Constitutional
imperative of Article 14 enshrining the
rule of law wherein `due process of law'
has been read into by introducing a time
limit in Section 19 of the P.C. Act 1988
for its working in a reasonable manner.
The Parliament may, in my opinion,
consider the following guidelines:

a) All proposals for sanction placed
before
any
Sanctioning
Authority,
952 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
empowered to grant sanction for the
prosecution of a public servant under
section 19 of the P.C. Act must be
decided within a period of three months
of the receipt of the proposal by the
concerned authority.

b) Where consultation is required
with the Attorney General or the Solicitor
General or the Advocate General of the
State, as the case may be, and the same is
not possible within the three months
mentioned in clause (a) above, an
extension of one month period may be
allowed, but the request for consultation
is to be sent in writing within the three
months mentioned in (a) above. A copy of
the said request will be sent to the
prosecuting
agency
or
the
private
complainant to 62 intimate them about the
extension of the time limit.

c) At the end of the extended period
of time limit, if no decision is taken,
sanction will be deemed to have been
granted to the proposal for prosecution,
and the prosecuting agency or the private
complainant will proceed to file the
chargesheet /complaint in the court to
commence prosecution within 15 days of
the expiry of the aforementioned time
limit."

6. It has been submitted by the
learned counsel for the petitioner that law
laid down in Vineet Narayan's case
(supra) has no binding effect in absence
of any legislative amendment made in
P.C. Act. It was further submitted that in
Vineet Narain's case (Supra) certain
directions have been given by the Apex
Court to CBI and Central Vigilance
Commission (for short 'CVC'). Direction
no. 15 deals with time frame for
according
sanction
which
runs
as
follows:-

"Time limit of three months for grant
of sanction for prosecution must be
strictly adhered to. However, additional
time of one month may be allowed where
consultation is required with the Attorney
General (AG) or any other law officer in
the AG's office."

7. In this regard paragraph 61 of the
judgement of Vineet Narain's Case
(Supra) is very important and so it is
reproduced hereinbelow :

"61. In the result, we strike down
Directive No. 4.7(3) of the Single Directive
quoted above and issue the above directions,
which have to be construed in the light of the
earlier discussion. The Report of the
Independent Review Committee (IRC) and
its recommendations which are similar to this
extent can be read, if necessary, for a proper
appreciation of these directions. To the extent
we
agree
with
the
conclusion
and
recommendations of the IRC, and that is a
large area, we have adopted the same in the
formulation of the above directions. These
directions
require
the
strict
compliance/adherence of the Union of India
and all concerned."

8. In the light of this paragraph no
room left to doubt that the direction given
in Vineet Narain's case (Supra) ought to
have been strictly complied with by all
concerned including State Government.
Therefore, directions issued in Vineet
Narain's case (Supra) shall have the
binding effect in the light of Article 141
of Constitution of India.

9. It was further submitted by the
learned counsel for the petitioner that the
direction no. 15 was with regard to fix the
limit, which has to be adhered to by all
concerned but what would happen if it is
2 All] Shashikant Prasad Vs. The State Thru C.B.I. /A.C.B.
953
not complied with? According to counsel
for petitioner the remedy would be of
initiating proceeding of contempt and not
to take it as deemed sanction to prosecute.

10. Sri Bireshwar Nath, learned
counsel appearing for CBI drew attention
of this court towards the judgement of
Division Bench of this Court delivered in
Writ Petition No. 10503 (M/B) of 2009
(Vishwanath Chaturvedi Vs. Union of
India), wherein the Division of this court
keeping in view the direction issued in
Vineet Narain's case (Supra) fixing time
limit to accord sanction has held that in
default of taking decision to accord
sanction within the time fixed, the
sanction shall be deemed to have been
granted.

Paragraph 151 of the said judgment
is reproduced herein below:

"In view of above, we allow the writ
petition subject to observation made and
finding recorded hereinabove and issue
the following directions for compliance
not only in the interest of present
controversy but to safeguard the future
public interest till Act is appropriately
amended (supra) by the Parliament:-

i)The C.B.I. shall proceed with
further enquiry not only with regard to
Ballia, Lakhimpur and Sitapur but also
with regard to Varanasi, Gonda and
Lucknow District.

ii)All those cases where the State
agencies found that the foodgrains have
been smuggled outside the State of U.P.
or to other countries, immediately, they
shall refer such cases to the C.B.I for
further investigation.

Iii) It shall not be necessary for the
C.B.I or State agencies to obtain sanction
under the statutory provisions with regard
to present controversy where from initial
stage,
prima
facie
intentionally,
deliberately and in a planned manner, the
foodgrains were lifted from godown for
sale either in open market or to smuggle
outside the State of U.P or to other
countries.

iv)
Subject
to
exception
above(supra), the Chief Secretary of the
State of U.P is directed to ensure that not
only in the present controversy but in all
cases where State agencies or the C.B.I or
other investigating agency moves an
application for sanction under the Code of
Criminal Procedure or Prevention of
Corruption Act, 1988 or any other law for
the time being in force, a decision should
be taken within a period of three months.
In absence of any decision with due
communication, it shall be deemed that
the sanction has been accorded, chargesheet shall be filed and the trial Court
shall proceed with trial to logical end in
accordance to law.

v) Investigation into every accusation
made against each and every person on a
reasonable basis, irrespective of the
position and status of such person shall be
conducted and completed expeditiously. It
is imperative to retain public confidence
in the impartial working of the State
agencies.

A message must be given by the
investigating agencies keeping in view the
concept of equality enshrined in the
Constitution that, "Be you ever so high,
the law is above you." Law must take its
course to punish the guilty.

vi)
Directorate
of
Enforcement,
Ministry of Finance, Government of India
shall also proceed with search and seizure
of assets, property, cash or kind earned
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
under food scam under the Prevention of
Money Laundering Act and Foreign
Exchange Management Act or any other
law time being in force expeditiously.

Vii) The State and the central
agencies
shall
proceed
with
the
investigation expeditiously and conclude
the same within a period of six months.
At the interval of every two months, they
shall submit a status report to this Court
henceforth till filing of the chargesheet/report to Court concerned.

It shall be open to the C.B.I. and
State
agencies
to
proceed
with
investigation with regard to food scam not
only up to the year 2007 but even beyond
the said year in case some link
evidence/material is found with regard to
continuance of diversion of food under
various schemes of the State and
CentralGovernment.

Viii) As and when a charge-sheet is
filed, the trial Court shall proceed with the
trial and conclude the same expeditiously
and preferably within a period of one
year.

Registrar General shall communicate
the order passed by this Court and
circulate to all Courts concerned and
submit a compliance report within one
month.

Registry shall send a copy of the
present judgment to the Secretary, Law,
Government of India as well as to the
Principal Secretary, Law and Chief
Secretary of the State of U.P. to consider
for
appropriate
amendment
in
the
Prevention of Corruption Act, 1988 in the
light of observations, made in the body of
judgment. Till the law is appropriately
amended by the State of U.P. (State
Amendment) or the Central Government,
findings recorded and directions issued
shall be followed by all investigating
agencies and subordinate courts of the
State while dealing with corruption cases.
Copy of the judgment shall also be
provided to the Addl. Solicitor General of
India as well as the Advocate General of
the State for appropriate action. A copy
shall also be sent to the Directorate of
Enforcement,
Ministry
of
Finance,
Government of India for appropriate
action in the light of the directions issued
(supra).

The
writ
petition
is
allowed
accordingly. No order as to costs.

In view of above, we allow the writ
petition subject to observation made and
finding recorded hereinabove and issue
the following directions for compliance
not only in the interest of present
controversy but to safeguard the future
public interest till Act is appropriately
amended(supra) by the Parliament :-

i)The C.B.I. shall proceed with
further enquiry not only with regard to
Ballia, Lakhimpur and Sitapur but also
with regard to Varanasi, Gonda and
Lucknow District.

ii)All those cases where the State
agencies found that the foodgrains have
been smuggled outside the State of U.P.
or to other countries, immediately, they
shall refer such cases to the C.B.I for
further investigation.

Iii) It shall not be necessary for the
C.B.I or State agencies to obtain sanction
under the statutory provisions with regard
to present controversy where from initial
stage,
prima
facie
intentionally,
deliberately and in a planned manner, the
foodgrains were lifted from godown for
2 All] Shashikant Prasad Vs. The State Thru C.B.I. /A.C.B.
955
sale either in open market or to smuggle
outside the State of U.P or to other
countries.

iv) Subject to exception above(supra),
the Chief Secretary of the State of U.P is
directed to ensure that not only in the present
controversy but in all cases where State
agencies or the C.B.I or other investigating
agency moves an application for sanction
under the Code of Criminal Procedure or
Prevention of Corruption Act, 1988 or any
other law for the time being in force, a
decision should be taken within a period of
three months. In absence of any decision
with due communication, it shall be deemed
that the sanction has been accorded, chargesheet shall be filed and the trial Court shall
proceed with trial to logical end in
accordance to law.

v) Investigation into every accusation
made against each and every person on a
reasonable basis, irrespective of the
position and status of such person shall be
conducted and completed expeditiously. It
is imperative to retain public confidence
in the impartial working of the State
agencies.

A message must be given by the
investigating agencies keeping in view the
concept of equality enshrined in the
Constitution that, "Be you ever so high,
the law is above you." Law must take its
course to punish the guilty.

vi)
Directorate
of
Enforcement,
Ministry of Finance, Government of India
shall also proceed with search and seizure
of assets, property, cash or kind earned
under food scam under the Prevention of
Money Laundering Act and Foreign
Exchange Management Act or any other
law time being in force expeditiously.

vii)The State and the central agencies
shall proceed with the investigation
expeditiously and conclude the same
within a period of six months. At the
interval of every two months, they shall
submit a status report to this Court
henceforth till filing of the chargesheet/report to Court concerned.

It shall be open to the C.B.I. and
State
agencies
to
proceed
with
investigation with regard to food scam not
only up to the year 2007 but even beyond
the said year in case some link
evidence/material is found with regard to
continuance of diversion of food under
various schemes of the State and Central
Government.

Viii) As and when a charge-sheet is
filed, the trial Court shall proceed with the
trial and conclude the same expeditiously
and preferably within a period of one
year.

Registrar General shall communicate
the order passed by this Court and
circulate to all Courts concerned and
submit a compliance report within one
month.

Registry shall send a copy of the
present judgment to the Secretary, Law,
Government of India as well as to the
Principal Secretary, Law and Chief
Secretary of the State of U.P. to consider
for
appropriate
amendment
in
the
Prevention of Corruption Act, 1988 in the
light of observations, made in the body of
judgment. Till the law is appropriately
amended by the State of U.P. (State
Amendment) or the Central Government,
findings recorded and directions issued
shall be followed by all investigating
agencies and subordinate courts of the
956 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
State while dealing with corruption cases.
Copy of the judgment shall also be
provided to the Addl. Solicitor General of
India as well as the Advocate General of
the State for appropriate action. A copy
shall also be sent to the Directorate of
Enforcement,
Ministry
of
Finance,
Government of India for appropriate
action in the light of the directions issued
(supra).

The
writ
petition
is
allowed
accordingly. No order as to costs."

11. Perusal of this paragraph reveals
that unless the amendment is made by the
parliament in the light of Vineet Narain's
case (Supra) the concept of deemed sanction
shall be there. The order dated 3.12.2010
passed by the Division Bench of this Court in
the aforesaid writ petition was assailed by the
State before Apex Court by filing a Special
Leave Petition (c) No.11563 of 2011. The
Apex Court while entertaining the appeal
vide its order dated 18.4.2011 has passed the
following interim order:-

"..... Ad-inteirm stay of the direction
No. (iii) in para 155 and the second part
of directions no. (viii) in para 155
requiring the reports to be submitted to
the High court in read to every
investigation at interval of two months.

In regard to directions no. (iv) in para
155 of the impugned order, the period
three months mentioned therein shall be
substituted by the period 'six months' ....."

12. Perusal of it shows that the Apex
court has not stayed the operation of
direction (iv) given in para 155 but simply
extent period from three months to six
months which shows that concept of
deemed sanction has been accepted by the
Apex court . In Dr. Subramanian Swamy's
case (supra). The Apex court again
reminded to the Parliament to do its job.
The guide line no. 3 of para 56 deals with
concept of deemed sanction.

13. As such if Investigating Officer
asked for grant of sanction from the
government, after expiry of time limit fixed as
above, the prosecuting agency or complainant
may ask the trial court to proceed in the matter
on the basis of deemed sanction.

14. At the same time it would be
incumbent upon the court that while
exercising doctrine of deemed sanction
the trial court must think and apply its
mind to the facts of the case and then
proceed in accordance with law. If the
court comes to the conclusion that on the
basis of investigation conducted by the
investigating agency or on the basis of the
complaint made by the complainant that
necessary ingredients of particular offence
are not available and prima facie case is
not made out then merely because
investigating
officer
has
submitted
charge-sheet or complaint has been filed
and the state government has not taken
any decision for grant of sanction within
the time schedule fixed by Apex Court, it
shall not be treated that court may
proceed with blind eyes and without
forming an opinion of prima facie case to
proceed. In absence of the sanction the
responsibility of the court increases
because the safeguard under section 19 of
P.C.Act available to the public servant has
been lifted by the act of the court.

15. In view of the above facts and
circumstances of the case and law
propounded by the Apex Court no
illegality or infirmity is found in the
impugned order passed by the trial court
2 All] Naviullah @ Magroo Vs. The State of U.P.
957
taking cognizance in the matter to
prosecute the accused person including
petitioner.

16 In this matter the trial court after
discussing the merit of the case ,
proceeded to summon the petitioner and
the learned counsel for the petitioner has
not argued on merit of the case and
pressed only point of deemed sanction, so
no finding is required to be recorded by
this Court at this stage on merit of the
case.

17. In view of the above, the petition
sans merit and is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.07.2013

BEFORE
THE HON'BLE IMTIYAZ MURTAZA, J.
THE VISHNU CHANDRA GUPTA, J.

Criminal Appeal No. 853 of 2005

Naviullah @ Magroo

 ...Appellant
Versus
The State of U.P.
 ...Respondents

Counsel for the Petitioner:
Sri Manoj Kumar Mishra , Sri C M Shukla
Sri Girdhari Lal Shukla , Sri Ramendra
Kumar Misra
Sri Shailesh Kumar Srivastava and Sri
Shama Kidwai

Counsel for the Respondents:
G.A.

Criminal Appeal- Against conviction of life
imprisonment with fine of Rs. 10,000/--
under
section
302,
201,
376
I.P.C.-
conviction
of
appellant
based
upon
confession
made
before
magistrate-
without certifying about mental conditionnon
mentioning
guilt
of
appellantsstatement recorded in sketchy and hurried
manner without following mandatory legal
requirement
u/s
164(4)-can
not
be
considered for conviction-prosecution failed
to prove the case beyond doubt-conviction
set-a-side.

Held: Para-63 & 69
63. The judicial confession recorded by the
magistrate has failed the test of being a
reliable evidence owing to the reason of its
been recorded in absence of knowing the
mental condition of appellant at the time of
recording of statement, non specifying of
certificate, non mentioning of acceptance of
guilt of the appellant, non mentioning of
reason of confessing the crime and the
treatment meted out to the appellant at the
police station. Thus, seeing the holistic
purview the confessional statement of the
appellant has been recorded in a sketchy
and hurried manner without observing the
mandatory legal requirements.

69. In view of the above we are of the
firm
opinion
that
the
confessional
statement has not been recorded in
accordance with mandatory provisions of
law. Therefore, the trial court wrongly
considered
the
confession
as
an
incriminating circumstance. It is also
relevant to mention here that the alleged
confession is not admission of guilt by
the appellant and cannot be considered
by the court of law for recording finding
of conviction under Section 302 IPC.

Case Law discussed:
[([2008) 16 SCC 714]; AIR 1956 SC 217; AIR
1957 SC 637; AIR 1963 SC 1094; (1978) 4
SCC 90; AIR 1981 SC 2007; (1995) 2 SCC 76;
(2001) 4 SCC 9; (2010) 8 SCC 233; [AIR 1936
PC 253]; (2007) 1 SCC (Crl.) 702; (2011) 2
SCC 490;

(Delivered by Hon'ble Imtiyaz Murtaza, J.)

1. Challenge in the present appeal is to
the Judgment and order dated 10.05.2005,
passed by IV Additional Sessions Judge,
Gonda in Sessions Trial no.59 of 2002