Institute of Legal and Management Studies

The Supreme Court observed that the statements of accused recorded under Section 161 of the Cr.P.C. (police interrogation) cannot be used against co-accused at the stage of anticipatory or regular bail.

“The fundamental cannon of criminal jurisprudence is that a statement of one accused person cannot be used against another co-accused person. The limited exception to this aforesaid general principle are inculpatory confessions, where the accused person in his confessional statement not only admits his own guilt but also implicates another co-accused.”, the Court observed.

The Court observed that when statements are recorded under Section 161 of the Cr.P.C., the accused may make either exculpatory or inculpatory statements. If the statement is exculpatory, it has limited evidentiary value and can be used only for the purpose of contradicting or re-examining the witness who made it under Section 145 of the Evidence Act.

In cases where the statement is inculpatory, it may take the form of either an admission or a confession. An admission is admissible only against the person who makes it, and thus cannot be used to implicate a co-accused. Notably, if the accused makes a confession to the police, such a statement is rendered inadmissible under Section 25 of the Evidence Act. It cannot be used to implicate a co-accused unless the confession also incriminates the maker and is duly proven during the trial in accordance with Section 30 of the Evidence Act. Hence, at the stage of bail, it cannot be used.

"The High Court has its own understanding of Section 30 of the Evidence Act. It says that what is admissible under Section 30 can also be looked into at the stage of considering the plea of anticipatory bail or even regular bail. However, we are not impressed with the view expressed by the High Court. We are of the considered opinion that such a confession if any cannot be looked into at the stage of anticipatory bail or even regular bail..." the Court observed.

For a co-accused's confession to be used against another accused, the following conditions must be satisfied:

1. The confession must be relevant and admissible under the Evidence Act;

2. It must be duly proven against the person who made it;

3. The statement must implicate both the maker and the co-accused; and

4. Both accused individuals must be undergoing a joint trial for the same offence.

The bench comprising Justices JB Pardiwala and R Mahadevan was hearing the case arising from an Excise Policy scandal in Andhra Pradesh, where former officials were accused of favoring select liquor brands, causing losses of ₹3,000 crore to the state exchequer. An FIR was registered under Sections 409 (criminal breach of trust), 420 (cheating), and the Prevention of Corruption Act.

The High Court denied anticipatory bail, partly relying on confessional statements of co-accused recorded during investigation. The accused approached the Supreme Court, arguing that the statements were inadmissible at the bail stage, and the case was politically motivated.

Although the Court dismissed the accused-petitioner's plea, denying them the benefit of grant of bail but criticized the High Court's decision for relying on co-accused statements made to the police under Section 161 Cr.P.C., asserting that such statements cannot be relied upon at the stage of deciding of the bail plea of another co-accused.

“Statements of an accused person under Section 161 of the Cr.P.C. by virtue of ordinarily being in the form of either an admission or a confession cannot be looked into qua another co-accused, as to say otherwise would be to ignore the substantive provisions of Section(s) 17, 21, 25 and 26 of the Evidence Act and the well settled cannons of law of evidence.”, the court said.

The Court held that an exculpatory statement by one accused cannot be used against a co-accused, as it lacks credibility and cannot be tested by cross-examination if the maker chooses not to testify under Section 315 Cr. P.C.

“an exculpatory statement of an accused person under Section 161 of the Cr.P.C. can only be looked into for the limited purpose of either culling out the stance of the accused person qua the allegations or for contradicting the accused, if the accused chooses to be examined as a witness in terms of Section 315 of the Cr.P.C. However, such exculpatory statement insofar as it implicates another co-accused person can in no manner be relied upon by the courts as against such co-accused as such statements by their nature cannot be tested by cross-examination if such accused person declines to be a witness in the trial in terms of Section 315 of the Cr.P.C., and because such exculpatory statement has no credibility.”, the court said.

Other Relevant Observations

"(i) A person who is accused of an offence or named in the first information report, can be examined by the police and his statement may be recorded under Section 161 of the Cr.P.C., as held in Nandini Satpathy (supra).

(ii) A statement of an accused under Section 161 of the Cr.P.C, would ordinarily be of two kinds, it may be inculpatory in nature or may be exculpatory in nature.

(iii) An inculpatory statement again may be in the form of an admission or a confession. If such statement admits either a gravely incriminating fact or substantially all the facts which constitute the offence, respectively, as held in Pakala Narayana Swami (supra), then it amounts to confession.

(iv) Where such police statement of an accused is confessional statement, the rigour of Section(s) 25 and 26 respectively will apply with all its vigour. A confessional statement of an accused will only be admissible if it is not hit by Section(s) 24 or 25 respectively and is in tune with the provisions of Section(s) 26, 28 and 29 of the Evidence Act respectively. In other words, a police statement of an accused which is in the form of a confession is per se inadmissible and no reliance whatsoever can be placed on such statements either at the stage of bail or during trial. Since such confessional statements are rendered inadmissible by virtue of Section 25 of the Evidence Act, the provision of Section 30 would be of no avail, and no reliance can be placed on such confessional statement of an accused to implicate another co-accused.

(v) A confessional statement of one accused implicating another coaccused may be taken into consideration by the court against such coaccused in terms of Section 30 of the Evidence Act, only at the stage of trial, where (1) the confession itself was relevant and admissible in terms of the Evidence Act; (2) was duly proved against the maker; (3) such confessional statement incriminates the maker along with the coaccused and; (4) both the accused persons in question are in a joint trial for the same offence.

(vi) Furthermore, because such confessional statements are not “evidence” in terms of Section 3 of the Evidence Act as held in Bhuboni Sahu (supra), such a confession as held in Kashmira Singh (supra) can only be pressed into consideration by the court as a rule of prudence, to lend assurance to the other evidence against such co-accused, provided that aforesaid ingredients or conditions of Section 30 read with Section(s) 24 to 29 of the Evidence Act, are fulfilled.

(vii) Where the police statement of an accused is in the form of an admission, such inculpatory statement even if it implicates another co-accused cannot be taken into consideration against such co-accused in terms of Section(s) 17 read with 21 of the Evidence Act, as doing so would militate against the general principle, that an admission may be given as evidence against the maker alone. The exceptions to the aforesaid general principle carved out under the Evidence Act, do not permit the usage of such admission against a co-accused in any scenario whatsoever.

(viii) Where the police statement of the accused is an exculpatory statement i.e., it is neither a confession nor an admission, the statement being one under Section 161, would immediately attract the bar under Section 162 of the Cr.PC., and the same may be used only for the very limited purpose provided in the Proviso for the purpose of contradiction or reexamination of such accused person alone, as held in Mahabir Mandal (supra). Even if such exculpatory statement of one accused, implicates another co-accused, the same cannot be taken into consideration against such co-accused, as there can be no credibility attached to an exculpatory statement of an accused implicating another co-accused, more particularly because it is neither required to be given on oath, nor in the presence of the co-accused, the same cannot be tested by crossexamination and the exculpatory nature of such statement militates against the foundational principle that permits taking into consideration a statement of one accused person against another co-accused as explained in Bhuboni Sahu (supra), i.e., 'when a person admits guilt to its fullest extent either to a certain incriminating fact or substantially all the facts which constitute the offence, and in doing so exposes himself and in the process other co-accused persons to the pain and penalties provided for the guilt, there exists a sincerity and semblance of sanction for the truthfulness of such statement'.

(ix) Although a handful of decisions of this Court such as Indresh Kumar (supra) and Salim Khan (supra) have held that statements under Section 161 of the Cr.P.C. ought to be looked into by the courts at the stage of anticipatory or regular bail for the purpose of ascertaining whether a prima-facie case has been made out against the accused and the nature and gravity of the allegations, yet the aforesaid rule only applies insofar as such statements under Section 161 were made by witnesses and not accused persons. A statement of an accused under Section 161 of the Cr.P.C. stands on a completely different footing from a police statement of a witness. As already discussed in the foregoing paragraphs, if the police statement of an accused is inculpatory in nature, its more in the form of a confession or admission rather than a statement, and the relevant provisions of Section(s) 17 to 30 of the Evidence Act, will apply with all its vigour. Where such statement of the accused is exculpatory in nature, the same can be looked into by the courts only for the limited purpose of either culling out the stance of the accused person qua the allegations or for contradicting the accused, if the accused chooses to be examined as a witness in terms of Section 315 of the Cr.P.C.. However, such exculpatory statement insofar as it implicates another accused person cannot be looked into by the courts, as such statements by their nature cannot be tested by cross-examination if such accused person declines to be a witness in the trial in terms of Section 315 of the Cr.P.C., and because such exculpatory statement has no credibility as explained in Bhuboni Sahu (supra).

(x) Before the court looks into the police statement of any person under Section 161 of the Cr.P.C for the purpose of anticipatory or regular bail, the court must first ascertain whether such person is actually a witness or an accused person, or likely to be an accused person in respect of the offence(s) alleged. This is because, there may be situations where a person while giving his statement under Section 161 of the Cr.P.C may not be an accused, but later arrayed as one. In such a scenario the courts must be mindful of the fact that because the investigation is still ongoing, a person who was originally a witness may happen to be later arrayed as an accused person. If the court was to blindly place reliance on statement of such a person merely because he is not named in the first information report, without first seeing whether such person is likely to be arrayed as an accused or not, it would lead to an absurd situation where the statement of such a person may be relied upon up until such person is arrayed as an accused. We also caution the courts, where it emerges from the material on record, that such a person is likely to be arrayed as an accused, the courts should refrain from expressing any such opinion so that the investigation is not prejudiced in any manner.”

Political bias can't be sole ground to grant bail

"Political vendetta or bias if any is one of the relevant considerations while considering the plea of anticipatory bail. The courts should keep one thing in mind, more particularly, while considering the plea of anticipatory bail that when two groups of rival political parties are at war which may ultimately lead to litigations, more particularly, criminal prosecutions there is bound to be some element of political bias or vendetta involved in the same. However, political vendetta by itself is not sufficient for the grant of anticipatory bail. The courts should not just look into the aspect of political vendetta and ignore the other materials on record constituting a prima facie case as alleged by the State. It is only when the court is convinced more than prima facie that the allegations are frivolous and baseless, that the court may bring into the element of political vendetta into consideration for the purpose of considering the plea of anticipatory bail. The frivolity in the entire case that the court may look into should be attributed to political bias or vendetta."

Case Title: P KRISHNA MOHAN REDDY VERSUS THE STATE OF ANDHRA PRADESH

Citation : 2025 LiveLaw (SC) 598

Click here to read/download the judgment

Appearance:

Dr. Abhishek Manu Singhvi and Mr. Vikas Singh, Senior Counsels for the petitioners.

Mr. Mukul Rohatgi, Mr. Siddharth Luthra and Mr. Siddharth Aggarwal, Senior counsels for the State of Andhra Pradesh.