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Dilip Prasad Dutta Vs. The State of Assam and Ors. - (High Court of Gauhati) (28 Mar 2019)

At stage of framing charges, Court would only be required to consider existence of a prima facie case



Present Petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (CrPC) praying for setting aside the order by means of which, the learned Judicial Magistrate First Class, has framed charges against the Petitioner under Sections 120(B)/419 of the Indian Penal Code (IPC) in connection with case. The basic contention of the Petitioner is that, the trial Court had committed manifest illegality in framing charge in this case solely based on the confession of the co-accused. The question that arises for consideration in the present case is as to whether the statement of a co-conspirator would be a piece of substantive evidence so as to convict the co-accused.

Law is well settled by a long line of judicial pronouncements that, at the stage of framing charges, the Court would only be required to consider existence of a prima facie case. In Union of India vs. Prafulla Kumar Samal and another, the Supreme Court has held that, the test to determine a prima facie case would depend upon the facts of each case and it would be difficult to lay down a rule of universal application.

Sections 10 and 30 of the Evidence Act, 1872 operate on completely different planes. Law is settled that, confession of a co-accused under Section 30 of the Act is never to be treated as substantive evidence. However, the same is not true in case of anything said or done by a co-conspirator with reference to the common intention to commit a crime. As per Section 10, such statement of the co-conspirator would be admissible in evidence. However, to apply Section 10, the Court must have reasonable ground to believe that, the accused persons have conspired together to commit an offence in furtherance of their common intention and secondly, the act or statement of the co-conspirator must be done or made during the subsistence of the conspiracy and not after the conspiracy has come to an end. If these conditions are fulfilled then anything said or done by a co-conspirator will be relevant fact and hence, admissible in evidence against the other conspirator/accused with reference to their common intention.

In view of the facts and circumstances of the case, a rebuttable presumption arises in favour of existence of reasonable ground to believe that both the accused persons in present case had conspired to commit the offence of cheating by personation. Therefore, a prima facie case is made out for framing charges against the Petitioner under Section 120-B/419 of IPC. There is no merit in present criminal petition and the same is accordingly dismissed.

Relevant : Union of India vs. Prafulla Kumar Samal and another, MANU/SC/0414/1978


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