D.M. Sen, J.
1. This is an application Under Sections 561-A and 439 of the Code of Criminal Procedure and also under Rule 22 of the Rules for the Administration of justice/police in Garo Hills District as well as under Article 227 of the Constitution of India, by the accused petitioner against an order dated 17-10-1970, passed by the learned Additional Deputy Commissioner, Garo Hills, Tura in Criminal Appeal No. 14 of 1970.
2. It is urged on behalf of the accused-petitioner by Mr. P.C. Kataki, the learned Counsel appearing for him. that the charge framed against the accused-petitioner is not supported by any evidence whatsoever before the learned Magistrate. In other words his submission is that no magistrate could reason-' ably form an opinion that there was any ground for presuming that the accused had committed an offence triable under the Code of Criminal Procedure, upon consideration of the documents which were before him and upon hearing of the prosecution witnesses and the accused. A Magistrate is required to form his opinion as to the sufficiency of grounds for presuming that an accused can be charged for an offence upon consideration of the documents which are to be furnished Under Section 173 of the Code of Criminal Procedure, besides the examination of the accused and the prosecution, which must disclose prima facie legal evidence sufficient to warrant the framing of a charge. In this con- nection, Mr. Kataki cites the case of R. P. Kapur v. State of Punjab : 1960CriLJ1239 , where it was held.
Some of the categories of cases where the inherent jurisdiction to quash proceedings can and should be exercised are:
Where the allegations made against the accused person do constitute an offence alleged but their is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction Under Section 561-A the High Court would not embark upon any enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.
3. Mr. Kataki has placed the entire documents that were furnished to the accused under the provisions of Section 173, Criminal P.C. and on basis of which the charge was framed by the learned Magistrate. He submits that there is no evidence therein whatsoever to show that the accused petitioner had any hand in interpolating the letter purported to be dated 23-6-1964 and as such, there could have been on his part, no dishonest inducement to the R. R. Department (Relief and Rehabilitation Department), Deputy Commissioner's Office, Tura to make payment of Rs. 18,464.90 P. for the non-carried articles. In other words, the offence that was preferred against him contained the averment of dishonest inducement, to be supported by the interpolation of a letter. If such interpolation of a letter could not be imputed to him. there could be no dishonest inducement by him by virtue of such interpolation.
4. Mr. A. Sarma, the learned Counsel for the State of Meghalaya could not place before me any statement Under Section 173, Criminal P.C. or any other document, which could be construed to show that the interpolation of the letter in question, if any can be attributed to the -accused petitioner or was even within his knoweldge. direct or indirect.
5. Mr. Kataki has also submitted that the accused-petitioner in this case was a carriage contractor and that he was entitled to payment of freight for goods carried. As such, he was not entitled nor did he at any stage claim the value of goods, which he had carried. According to him, there is a confusion in the mind of the prosecution as regards this point and he submits that the accused petitioner has been charged as if he had obtained payment for the value of goods, not carried at all by him. Be that as it may the charge, in my opinion, suffers from the infirmity that there is no legal evidence whatsoever to show even prima facie that the letter in question was interpolated by him or at his instance, so that any question of dishonest inducement by him with the object of obtaining payment could be raised. This is, accordingly, eminently a fit case for quashing the charge in exercise of the inherent jurisdiction of this Court Under Section 561-A, Criminal P.C. The proceedings are accordingly quashed and the application is allowed.
Cri. Revision No. 188 of 1970.
6. This is an analogous application with regard to accused petitioner Amritlal Bhaduri. Against him the charge reads as follows:
That you on or about the day of 23-11-1964 at 'Tura abetted the interpolation of the receipt register and a letter purporting to be dated 23-6-1964 with intention to defraud the Government and thereby committed an offence punishable Under Section 477A/109, Indian Penal Code.
7. In this case, a charge Under Section 477-A. IPC has been framed, Although this section relates to falsification by a servant of accounts belonging to his master, the allegations made against this petitioner may properly come within the purview of other penal sections of the Indian Penal Code, like Sections 463 and 465. But, the question to be considered here is whether there was any legal evidence before the magistrate which would warrant forming of a reasonable opinion that there were grounds to presume that the petitioner had committed an offence triable by the magistrate.
8. Now, the only evidence with regard to the petitioner's possible complicity in the interpolation of the receipt register is in the confession of a co-accused, namely Harimohan Das. As has been held in Haricharan Kurmi v. State of Bihar : 1964CriLJ344
As a result of the provisions contained in Section 30, Evidence Act, the confession of a co-accused has to be regarded as amounting to evidence in a general way, because whatever is considered by the Court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as denned by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.
9. The law is, therefore quite settled that although the confession of a co-accused can be taken into consideration and can be regarded as evidence, it cannot be treated substantive evidence. It can only be looked into so as to throw light or give assurance to other substantive and independent evidence. In other words, there must be substantive and independent evidence connecting the accused with the offence charged against him, and only thereafter the confession of a co-accused can be taken into consideration to throw light or to aid in the appreciation of such substantive evidence. Where the only evidence before the learned magistrate was the confession of a co-accused there would, in my opinion, be no legal evidence whatsoever warranting the framing of a charge.
10. Mr. A. Sarma, the learned Counsel for the State of Meghalaya has urged that even if it be conceded that at the stage of framing a charge there is no evidence except the confession of a co-accused the prosecution might produce further evidence of an independent 'kind to substantiate the charge. In other words, it is not closed to the prosecution to bring in further and better evidence. In this view of the matter, Mr. Sarma submits that the charge would not be quashed at this stage. This submission, however, does not impress me. If this submission were to be accepted, in every case that would come for quashing or a charge Under Section 561-A, the prosecution could contend that although the evidence or materials at that stage before the Court might not be sufficient or even non-existent, the prosecution could subsequently adduce other evidence and therefore a Court should not, in anticipation of such subsequent production of evidence, ex- ercise its jurisdiction to quash the proceedings. That position if accepted, would make Section 561-A completely nugatory. When an application is made Under Section 561-A, Criminal P.C. a court is required to consider whether on the existing materials before the trial court, a charge could be framed in consonance with the principles laid down in : 1960CriLJ1239 .
11. All the documents which were before the learned magistrate at the time of framing the charge have been placed before me and I find that apart from the confession of the co-accused implicating the accused petitioner Amrit-lal Bhaduri, there is no other evidence connecting him with the charge preferred against him. To allow the trial to continue, when manifestly there is no legal evidence before the Court, on the mere probability of the prosecution at some future date supplementing its case by adducing further evidence, would in my opinion, constitute undue harassment of the accused and violate all principles of law. A trial cannot be allowed to proceed on contingent, hypothetical and anticipatory evidence. It may further be noted that the accused has been facing trial since 1966.
12. On the facts and circumstances as stated above this also is a fit case where the Court's, jurisdiction to quash the proceedings should be exercised. The proceedings are quashed and the petition is allowed.