M.K. MUKHERJEE, J. – On May, 3, 1991 the Central Bureau of Investigation (CBI),
New Delhi, searched the premises of J.K. Jain at G-36, Saket, New Delhi to work out an
information received while investigating RC Case No. 5(S)/91 SIU (B)/CBI/New Delhi. In
course of the search they recovered, besides other articles and documents, two diaries, two
small note books and two files containing details of receipts of various amounts from
different sources recorded in abbreviated forms of digits and initials and details of payments
to various persons recorded in similar fashion. Preliminary investigation taken up by the CBI
to decode and comprehend those entries revealed payments amounting to Rs. 65.47 crores,
out of which 53.5 crores had been illegally transferred from abroad through hawala channels,
during the years 1988 to 1991 to 115 persons including politicians, some of whom were
members of either House of the Parliament during the relevant period, officials of government
and Public Sector Undertakings, and friends of S.K. Jain, B. R. Jain, and N.K. Jain, who are
three brothers carrying on different businesses. It further revealed that the Jain brothers and
J.K. Jain, who is their employee, had acted as middlemen in the award of certain big projects
in the power sector of the Government of India to different bidders; that they had official
dealings with politicians and public servants whose names were recorded in the diaries and
the files; and that some of them had accepted illegal gratification other than legal
remuneration from Jains as a reward for giving them and the companies they own and manage
various contracts. On such revelation the CBI registered a case on march 4, 1995 under
Sections 7 and 12 of the Prevention of Corruption Act, 1988 and Section 56 read with Section
8(1) of the Foreign Exchange Regulation Act, 1973 against the Jains, some public servants
and others being RC No.1(A)/95 ACU (VI) and on completion of investigation filed 34
charge-sheets (challans) in the Court of the Special Judge, New Delhi against various
politicians, Government servants and Jains. In one of the above charge-sheets (C.S. No. 4
dated 16.1.1996) Shri Lal Krishna Advani, who at the material time was a Member of the
Parliament, and the Jains figure as accused and in another (C. S. No. 8 dated 23.1.1996), Shri
V.C. Shukla, also a Member of Parliament, along with the Jains.
3. The common allegations made in the above two charge-sheets (from which these
appeals stem) are that during the years 1988 to 1991 Jains entered into a criminal conspiracy
among themselves, the object of which was to receive unaccounted money and to disburse the
same to their companies, friends, close relatives and other persons including public servants
and political leaders of India. In pursuance of the said conspiracy S.K. Jain lobbied with
various public servants and Government organisations in the power and steel sectors of the
Government of India to persuade them to award contracts to different foreign bidders with the
motive of getting illegal kickbacks from them. During the aforesaid period the Jain brothers
received Rs. 59, 12, 11, 685, major portion of which came from foreign countries through
hawala channels as kickbacks from the foreign bidders of certain projects of power sector
undertakings and the balance from within the country. An account of receipts and
disbursements of the monies was maintained by J.K. Jain in the diaries and files recovered
from his house and Jain brothers authenticated the same.
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4. As against Shri Advani the specific allegation in the charge-sheet (in which he and
Jains figure as accused) is that he received a sum of Rs. 25 lacs from Jains during his tenure
as a Member of the Parliament, (besides a sum of Rs. 35 lacs which was received by him
while he was not a Member of the Parliament). In the other charge-sheet (filed against Shri
Shukla and Jains) it is alleged that during the period 1988 to 1991, while Shri Shukla was a
Member of the Parliament and for some time a Cabinet Minister of the Central Government
he received Rs. 39 lacs (approximately) from Jains.
5. According to CBI the materials collected during investigation clearly disclosed that
Jains were in the habit of making payments to influential public servants and political leaders
of high status expecting official favours from them and the above payments were made to
Shri Shukla and Shri Advani with that oblique motive. Thereby, the CBI averred, the above
persons (the respondents in these appeals) committed offences under Section 120B I.P.C. and
Section 13(2) read with Section 13(1)(d), 7 & 12 of the Prevention of Corruption Act, 1988.
6. The special Judge took cognisance upon the above two charge-sheets and issued
processes against the respondents. After entering appearance they agitated various grounds
(to which we will refer at the appropriate stage) to contend that there was no material
whatsoever to frame charges against them. The Special Judge, however, the rejected all those
contentions and passed separate orders deciding to frame charges and try the respondents.
Pursuant to the order passed in Case No. 15 of 1996 (arising out of C.S. No. 8 dated
23.1.1996) the following charges were framed against Shri Shukla:- “Firstly, that you, V.C.
Shukla, during the period from Feb. 90 to Jan. 91 at Delhi agreed with other co-accused S.K.
Jain, N.K. Jain, B. R. Jain, and J. K. Jain to do an illegal act, to wit, to obtain pecuniary
advantage from the said Jains by abusing your official position as a public servant being
Member of Parliament during the said period and also be Minister of External Affairs from
21.11.90 to Jan. 91 and in pursuance of the said agreement, you obtained the pecuniary
advantage and accepted Rs. 38, 85,834/- as gratification other than legal remuneration from
the said Jains for a general favour to them from you and you, thereby, committed an offence
punishable U/s 120-B IPC r/w Sec. 7, 12 and 13(2) r/w 13(1)(d) of the Prevention of
Corruption Act, 1988 and within the cognizance of this Court. Secondly, that you during the
aforesaid period at the aforesaid place in your aforesaid capacity being a public servant,
accepted a sum of Rs. 38,85,834 from the above said co-accused persons, namely S.K. Jain,
N.K. Jain, B. R. Jain and J.K. Jain as gratification other than legal remuneration for showing
general favour to them and you, thereby, committed an offence punishable U/s 7 of the
Prevention of Corruption Act, 1988 and within the cognizance of this Court. Thirdly, that
you during the aforesaid period and at the aforesaid place, in your aforesaid capacity being a
public servant obtained pecuniary advantage amounting to Rs. 38,85,834/- from the coaccused persons namely, S.K. Jain, B. R. Jain, N.K. Jain and J.K. Jain by abusing your
position as a public servant and also without any public interest and you, thereby committed
an offence punishable u/s 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act,
1988 and within the cognizance of this Court.”
7. The charges framed against S.K. Jain, in that case read as under:” “Firstly, that you,
S.K. Jain, during the period from Feb. 90 to Jan. 91 at Delhi, agreed with other co-accused
V.C. Shukla, N. K. Jain, B. R. Jain and J.K. Jain to do an illegal act, to wit, to make payment
51
of Rs. 38,85,834/- to said Sh. V.C. Shukla, as a gratification other than legal remuneration as
a motive or reward for getting general favour from said V. C. Shukla who was holding the
post of a Member of Parliament during the said period and also was Minister for External
Affairs during the period from 21.11.90 to Jan. 91 and in pursuance of the said agreement,
the pecuniary advantage was obtained by said V. C. Shukla by abusing his official position
and without any public interest and the payment was made by you as, aforesaid, gratification
and you, thereby, committed an offence punishable u/s 120-B IPC r/w Sec. 7, 12, 13(2) r/w
13(1)(d) of the Prevention of Corruption Act, 1988 and within the cognizance of this Court.
Secondly, that you, S.K. Jain during the aforesaid period and at the aforesaid place abetted the
commission of offence punishable u/s 7 of the P. C. Act, 1988 by offering bribe of Rs.
38,85,834 to said V. C. Shukla, who was a public servant during the relevant period as a
Member of Parliament and also as a minister of External Affairs during the period from
21.11.90 to Jan. 91 for getting general favour from him and you, thereby committed an
offence punishable u/s 12 of the Prevention of Corruption Act, 1988 and within the
cognizance of this Court.”
8. Similar charges were also framed against the other Jains.
9. In the other case (c.c. No. 17 of 1996), in which Shri Advani figure as an accused with
Jains no formal charge was framed (as by then the respondents had moved the High Court),
but the special Judge decided to frame charges against them in similar lines as would be
evident from the order dated September 6, 1996, the relevant portion of which reads as under:
“So, after going through the entire material available on record, i.e. charge-sheet
statements of the witnesses recorded u/s 161 Cr.P.C, documents placed on record
prima facie, it cannot be said that the allegations made against all these accused are
groundless or that there is no sufficient ground for proceeding against all the
accused. Prima facie, it is clear that there are sufficient grounds for framing of
charges against all these accused. Accordingly, I hereby order that the charges
against all these accused. Accordingly, I hereby order that the charges for offences
u/s 120B IPC and Sections 7, 12, 13(2) r/w 13(1)(d) of the P. C. Act, 1988 be framed
against all the accused namely, L.K. Adavani, S.K. Jain, J.K. Jain, B.R. Jain and
N.K. Jain. Further Charges for offence u/s. 7 and 13(2) read with 13(1)(d) of P.C.
Act, 1988 be framed against accused L.K. Advani. Further charges for offence u/s 12
of P.C. Act, 1988 be framed against accused S.K. Jain, J.K. Jain, B.R. Jain and N. K.
Jain.”
10. Assailing the above order/charges the respondents moved the High court through
petitions filed under Section 482 Cr. P. C, which were allowed by a common order and the
proceedings of the above two cases were quashed and the respondents were discharged. The
above order of the High Court is under challenge in these appeals at the instance of the CBI.
11. From the above resume of facts it is manifest that the entire edifice of the prosecution
case is built on the diaries and files – and for that matter the entries made therein – recovered
from J. K. Jain. While the appellant claimed that the entries in the documents would be
admissible under Sections 34, 10 and 17 of the Evidence Act, (‘Act’ for short) the respondents
contended that the nature and character of the documents inhibited their admissibility under
52
all the above Sections. Needless to say, to delve into and decide this debatable point it will be
necessary at this stage to look into the documents; the two spiral note books (marked MR
68/91 and MR 71/91), two small spiral pads (MR 69/91 and MR 70/91) and two files, each
containing some loose sheets of papers (MR 72/91 and MR 73/91). Since according to the
prosecution MR 71/91 is the main (mother) book we first take the same for scrutiny. Page 1
of the book begins with the heading “A/C given upto 31st January on 31.1.1998;” and then
follows serially numbered entries of various figures multiplied by some other figures on the
left hand column and the product thereof on the next column for each month commencing
from January, 1990 to April, 1991. The overleaf (‘o’ for short) of the page contains similar
entries for the period from April, 1988 to December, 1989 and it ends with the words 2.77″
we have to receive. In the subsequent pages the book records monthly receipts of
monies/funds from inconspicuous persons/entities during the period commencing from the
month of February, 1988 to April 1991 maintained on ‘2 columns’ basis. The left hand
column represents the receipts and the right hand column disbursements. In the column of
receipts the source is indicated in abbreviated form on the left of the figure representing the
sum received. On the right side of the said figures a number is mentioned which co-relates
with the serial number of the account of receivers recorded on pages 1 and 1(o) of the diary
for the period subsequent to 31.1.1988. So far as the names of the payees are concerned the
same have also been recorded in abbreviated form, alphabets or words. The entries,
however, do not give any indication of any sale, purchase or trading and show only receipts
of money from a set of persons and entities on one side and payments to another set of
persons and entities on the other, both reckoned and kept monthly. As regards the actual
amounts received and disbursed we notice that the figures which have been mentioned briefly
against the respective names are not suffixed with any symbol, volume or unit so as to
specifically indicate whether they are in lakhs, thousands or any other denomination. It is
noticed that in most of the entries the figures against transactions extend to 2 places after
decimal which seem to suggest that the figures in money column may be in thousands, but
then in some of the months, namely, 11/ 88, 6/89, 10/90, 2/91, 3/91, 4/91, figures extend to 5
places after decimal point in money column. This gives an impression that the figures are in
lakhs; and this impression gains ground from other transactions. For example, at page 9 of the
book in the transactions relating to the month of September 80, a figure of 32,000 prefixed by
£ (sterling pound symbol) indicates that it is 32,000 sterling pounds and the same has been
multiplied by Rs. 40/- per pound (which was possibly the conversion rate of pound according
to Indian currency at that time) and the total has been indicated at 12.80 as against the
product of Rs. 12,80,000. That necessarily means that the 2 places after decimal denotes that
the figures are in lakhs. The book further indicates that it was from time to time shown to
some persons and they put their signatures in token thereof.
12. The other book (M.R. 68/91) contains, inter alia, entries relating to cash and fund
received and disbursed in the months of February, March and April 1991 recorded in similar
fashion as in M.R. 71/91 (some or all of which correspond with the entries in MR 71/91 for
those months); expenses incurred in the month of March 91; and ‘political expenses as on
26.4.91′ with names of a number of persons mentioned thereunder through their initials or
surnames and various amounts shown against their respective names in only figures running
upto 2 points after decimal. The other entries in this book seem to be wholly unconnected to
53
the entries earlier referred to. The two small spiral pads (M.R. 69/71 and M.R. 70/91) also
contain some entries relating to similar receipt and disbursement on certain days and in
certain months during the above period – all written in similar fashion. So far as the two files
containing some loose sheets of paper are concerned (M. R. 72/91 and 71/91) we notice that
in some of these papers accounts of money received and disbursed in one particular month or
a period covering a number of months are written.
13. While arguing their case for framing of charges against the respondents it was
contended on behalf of the appellant before the Trial Court that having regard to the fact that
the documents unmistakably showed that accounts of business regarding receipt and payment
of money during the period 1988 to 1991 were regularly maintained those documents would
be admissible under Section 34 of the Act. Relying upon the statements of some of the
witnesses recorded during investigation and report of the handwriting expert that the entries in
the documents were in the handwriting of J.K. Jain, and that the three Jain brothers had
signed those documents in token of their authenticity, it was contended that entries therein
would be admissible also under Section 10 of the Act to prove that pursuant to a conspiracy
hatched up by the Jains to obtain favours from politicians and other public servants payments
were made to them from moneys received through hawala transactions. Section 17 and 21
were also pressed into service to contend that the entries would be ‘admission’ of the Jains of
such payments.
14. In refuting the above contentions it was submitted on behalf of the respondents that
since those documents were not books of accounts nor were they maintained in regular
course of business they would not be relevant under Section 34. It was next submitted that
even it was assumed that those documents were relevant and admissible under Section 34 they
could be, in view of the plain language of that Section, used only as corroborative evidence,
but in absence of any independent evidence to prove the payments alleged therein the
documents were of no avail to the prosecution. The admissibility of the documents under
Section 10 was resisted by the respondents contending that there was not an iota of material to
show even, prima facie, that there was a conspiracy. Similar was the contention regarding
applicability of Sections 17 and 21 in absence of any material to prove ‘admission’ of Jains. In
support of their respective contentions they relied upon some decisions of this Court as also
of different High Courts.
18. To appreciate the contentions raised before us by the learned counsel for the parties it
will be necessary at this stage to refer to the material provisions of the Act. Section 3 declares
that a fact is relevant to another when it is connected with the other in any of the ways
referred to in the provisions of the Act relating to the relevancy of facts; and those provisions
are to be found in Sections 6 to 55 appearing in Chapter II. Section 5, with which Chapter II
opens, expressly provides that evidence may be given in any suit or proceeding of the
existence or non-existence of every fact in issue and the facts declared relevant in the
aforesaid sections, and of no others.
46. We may now turn to the principle and scope of Section 10 of the Act and its
applicability to the entries in question. This section reads as under:-
54
“10. Things said or done by conspirator in reference to common design –
Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said, done
or written by any one of such persons in reference to their common intention, after
the time when such intention was first entertained by any one of them, is a relevant
fact as against each of the persons believed to be so conspiring, as well for the
purpose of proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it.”
In dealing with this section in Sardul Singh v. State of Bombay [AIR 1957 SC 747], this
court observed that it is recognised on well established authority that the principle underlining
the reception of evidence of the statements, acts and writings of one co-conspirator as against
the other is on the theory of agency. Ordinarily, a person cannot be made responsible for the
acts of others unless they have been instigated by him or done with his knowledge or
consent. This section provides an exception to that rule, by laying down that an overt act
committed by any one of the conspirators is sufficient, (on the general principles of agency) to
make it the act of all. But then, the opening of words of the Section makes it abundantly clear
that such concept of agency can be availed of, only after the Court is satisfied that there is
reasonable ground to believe that they have conspired to commit an offence or an actionable
wrong. In other words, only when such a reasonable ground exists, anything said, done or
written by any one of them in reference to their common intention thereafter is relevant
against the others, not only for the propose of proving the existence of the conspiracy but also
for proving that the other person was a party to it. In Bhagwan Swamp v. State of
Maharashtra [AIR 1965 SC 682], this court analyzed the section as follows:-
“(1)There shall be a prima facie evidence affording a reasonable ground for a
Court to believe that two or more persons are members of a conspiracy;
(2) if the said condition is fulfilled, anything said, done or written by any one of
them in reference to their common intention will be evidence against the other;
(3) anything said, done or written by him should have been said, done or written
by him after the intention was formed by any one of them;
(4) it would also be relevant for the said purpose against another who entered the
conspiracy whether it was said, done or written before he entered the conspiracy or
after he left it; and
(5) it can only be used against a co-conspirator and not in his favour.”
49. In the light of the above principles we may now consider the arguments canvassed by
Mr. Altaf Ahmed to make the entries in the books and the loose sheets admissible under the
above section as relevant evidence. He submitted that the materials collected during
investigation and placed on record clearly establish the existence of a general conspiracy
amongst Jains to promote their economic interest by corrupting public servants. He next
contended that the materials further disclosed that in order to accomplish the design of the
general conspiracy, a number of separate conspiracies with similar purpose had been hatched
up between Jains and different public servants.
50. At the outset we may point out that no charge was framed against the Jains from
having entered into a criminal conspiracy amongst themselves (even though such was the
55
allegation in the charge sheet). We need not, therefore, consider the materials collected during
investigation from that perspective. Indeed, according to the charges of conspiracy all the
respondents were parties thereto and the conspiracy existed for the period from February,
1990 to January, 1991. Therefore we have to ascertain whether there is prima facie evidence
affording a reasonable ground for us to believe about its such existence.
51. To persuade us to give an affirmative answer to the above question Mr. Altaf Ahmed
drew our attention to the statements of Jacob Mathai (L.W. 4), Dr. P.K. Magu (L.W. 14),
Vijay Kumar Verma (L.W. 15), Bharat Singh (L.W. 16) C. D.D Reddy (L.W. 17), S.R.
Choudhary (L.W. 18), Ram Prasad (L.W. 19), H. P. Guha Roy (L.W. 20) and Narendra Singh
(L.W. 21). On perusal of their statements we find that some of them are irrelevant to the
charges of conspiracy with which we are now concerned while others, to the extent they can
be translated into legally admissible evidence, only indicate that Shri Shukla was known to
the Jain brothers and had gone to their residence on formal occasions. The above statements
cannot be made a reasonable ground to believe that all of them have conspired together. So
far as Shri Advani is concerned, we find that no one has even spoke about him in their
statements. Since the first requirement of Section 10 is not fulfilled the entries in the
documents cannot be pressed into service under its latter part.
52. Lastly, comes the questions whether the entries are ‘admissions’ within the meaning of
Section 17 of the Act so as to be admissible as relevant evidence under Section 21; and if so,
as against whom can the entries be proved. In Section 17 admission has been defended to be a
statement, oral or documentary, which suggests any inference as to any fact in issue or
relevant fact and which is made by any of the persons, and under the circumstances,
mentioned in the subsequent Sections (Sections 18 to 21). Section 18, so far as it is relevant
for our present purposes, provides that statements made by party to the proceeding or by an
agent to any such party, whom the Court regards under the circumstances of the case, has
expressly or impliedly authorised by him to make them are admissions. Section 21 reads as
under:
“21. Proof of admissions against persons making them, and by or on their
behalf – Admissions are relevant and may be proved as against the person who
makes them, or his representative in interest; but they cannot be proved by or on
behalf of the person who makes them or by his representative in interest, except in
the following cases:-
(1) An admission may be proved by or on behalf of the person making it, when it is of
such a nature that, if the person making it were dead, it would be relevant as between
third persons under Section 32.
(2) An admission may be proved by or on behalf of the person making it, when it
consists of a statement of the existence of any state of mind or body, relevant or in issue,
made at or about the time when such state of mind or body existed, and is accompanied
by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf of the person making it, if it is
relevant otherwise than as an admission.”
From a combined reading of the above Sections it is manifest that an oral or documentary
statement made by a party or his authorised agent, suggesting any inference as to any fact in
56
issue or relevant fact may be proved against a party to the proceeding or his authorised agent
as ‘admission’ but, apart form exceptional cases (as contained in Section 21), such a statement
cannot be proved by or on their behalf. While on this point the distinction between ‘admission’
and ‘confession’ needs to be appreciated. In absence of any definition of ‘confession’ in the
Act, judicial opinion, as to its exact meaning, was not unanimous until the judicial Committee
made an authoritative pronouncement about the same in Pakala Narayana v. Emperor
[AIR 1939 PC 47] with these words:-
“[A] confession must either admit in terms the offence, or at any rate
substantially all the facts which constitutes the offence. An admission of a gravely
incriminating fact, even a conclusively incriminating fact, is not of itself a
confession, e.g., an admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused a death with no explanation of any
other man’s possession. Some confusion appears to have been caused by the
definition of confession in Art. 22 of the Stephen’s “Digest of the Law of Evidence”
as ‘an admission made at any time by a person charged with a crime stating or
suggestin the inference that he committed that crime’. If the surrounding articles are
examined it will be apprarrent that the learned author, after dealing with admissions
generally, is applying himself to admissions in criminal cases, and for this purpose
defines confessions so as to cover all such admissions, in order to have a general term
for use in the three following articles, confession secured by inducement, made upon
oath, made under a promise of secrecy. The definition is not contained in the
Evidence Act, 1872, and in that Act it would not be consistent with the natural use of
language to construe confession as a statement by an accused ‘suggesting the
inference that he committed the crime.”
The above statement of law has been approved and consistently followed by this Court.
See Palvinder Kaur v. State of Punjab [1953 SCR 94], Om Parkash v. State of U.P.
[AIR 1960 SC 409] and Veera Ibrahim v. State of Maharashtra [(1976) 3 SCR 672].
53. It is thus seen that only voluntary and direct acknowledgement of guilt is a confession
but when a confession falls short of actual admission of guilt it may nevertheless be used as
evidence against the person who made it or his authorised agent as an ‘admission’ under
section 21. The law in this regard has been clearly – and in our considered view correctly –
explained in Monir’s Law of Evidence (New Edition at pages 205 and 206), on which
Mr. Jethmalani relied to bring home his contention that even if the entries are treated as
‘admission’ of Jains still they cannot be used against Shri Advani. The relevant passage reads
as under:-
“The distinction between admissions and confessions is of considerable
importance for two reasons. Firstly, a statement made by an accused person, if it is an
admission, is admissible in evidence under Section 21 of the evidence Act, unless
the statement amounts to a confession and was made to a person in authority in
consequence of some improper inducement, threat or promise, or was made to police
officer, or was made at a time when the accused was in custody of a police officer. If
a statement was made by the accused in the circumstance just mentioned its
admissibility will depend upon the determination of the question whether it does not
57
amount to a confession. It will be inadmissible, but if it does not amount to a
confession, it will be admissible under Section 21 of the Act as an admission,
provided that it suggests an inference as to a fact which is in issue in, or relevant to,
the case and was not made to a police officer in the course of an investigation under
Chapter XIV of the CrPC. Secondly, a statement made by an accused person is
admissible against others who are being jointly tried with him only if the statement
amounts to a confession. Where the statement falls short of a confession, it is
admissible only against its maker as an admission and not against those who are
being jointly tried with him. Therefore, from the point of view of Section 30 of the
Evidence Act also the distinction between admission and a confession is of
fundamental importance.” (emphasis supplied)
54. In the light of the preceding discussion we proceed to consider the validity of the
arguments canvassed by Shri Altaf Ahmed in this regard. Mr. Altaf Ahmed urged that it being
a settled principle of law that statements in account books of a person are ‘admissions’ and can
be used against him even though those statements were never communicated to any other
person, the entries would be admissible as admission of J.K. Jain, who made them that apart,
he contended, they would be admissible against Jain brothers also as they were made under
their authority as would be evident from their endorsements/signatures appearing
against/below some of those entries. In support of his first contention he relied upon the
following passage from the judgment of his Court in Bhogilal Chunilal Pandya v. State of
Bombay [(1959) Supp. 1 SCR 310]:
“The first group of sections in the Act in which the word ‘statement ‘occurs, are
Ss. 17 to 21, which deal with admissions. Section 17 defines the word ‘admission’,
Ss. 18 to 21 lay down what statements are admissions, and s. 21 deals with the proof
of admissions against persons making them. The words used in Ss. 18 to 21 in this
connection are ‘statements made by.’. It is not disputed that statements made by
persons may be used as admissions against them even though they may not have
been communicated to any other person. For example, statements in the Account
books of a person showing that he was indebted to another person are admissions
which can be used against him even though these statements were never
communicated to any other person. Illustration (b) of s. 21 also shows that the word
‘statement’ used in these sections does not necessarily imply that they must have been
communicated to any other person. In the Illustration in question entries made in the
book kept by a ship’s captain in the ordinary course of business are called
statements, though these entries are not communicated to any other person. An
examination, therefore, of these sections show that in this part of the Act the word
‘statement’ has been used in its primary meaning namely, ‘something that is stated’
communication is not necessary in order that it may be a statement.”.
55. Even if we are to accept the above contentions of Mr. Altaf Ahmed the entries,
which are statements as held by this Court in Bhogilal Chunilal and, being ‘admissions’ –
and not ‘confession’ – cannot be used as against Shri Advani or Shri Shukla. However, as
against Jains the statements may be proved as admissions under Section 18 read with Section
21 of the Act provided they relate to ‘any fact in issue or relevant fact.’ Needless to say, what
58
will be ‘facts in issue’ or ‘relevant facts’ in a criminal trial will depend upon, and will be
delineated by, the nature of accusations made or charges levelled against the person indicated.
In the two cases with which we are concerned in these appeals, the gravamen of the charges
which were framed against Jains in one of them (quoted earlier) and were to be framed in the
other pursuant to the order of the trial Court (quoted earlier) is that they entered into two
separate agreements; one with Shri Shukla and the other with Shri Advani, in terms of which
they were to make certain payments to them as a gratification other than legal remuneration
as a motive or reward for getting their favour while they were ‘public servants’ and in
pursuance of the said agreements payments were actually made to them. Thereby the Jains
committed the offence of conspiracy under Section 120B of the Indian Penal code; and under
Section 12 of the Prevention of Corruption Act, 1988 (P.C. Act for short), in that, they
abetted the commission of offences under Section 7 of the Act by Shri Shukla and Shri
Advani.
56. It is thus seen that the prosecution sought to prove that there were two separate
conspiracies, in both of which Jains together figured as the common party and Shri Advani or
Shri Shukla, as the other. Since we have already found that the prosecution has not been able
to made out a prima facie case to prove that Shri Advani and Shri shukla were parties to
such conspiracies, the charges of conspiracy, as framed/sought to be framed, cannot stand also
against the Jains, for the simple reason that in a conspiracy there must be two parties.
Resultantly, the statements cannot be proved as admission of Jains of such conspiracy. We
hasten to add that the case the prosecution intended to project now was not that there was a
conspiracy amongst the Jains to offer illegal gratification to Shri Advani and Shri Shukla and
that pursuant thereto the latter accepted the same. We need not, therefore, dilate on the
question whether, if such was the case of the prosecution, the statements could be proved
against the Jains as their admission.
60. Before we conclude it need be mentioned that another question of considerable
importance that came up for consideration in these appeals was whether members of
parliament come within the definition of ‘public servant’ in the P.C. Act so as to make the
respondents liable for prosecution for alleged commission of offences thereunder. We did not
deem it necessary to go into that question as we found, proceeding on the assumption that
they could be so prosecuted, that no prima facie case was made out against any of the
respondents to justify the charges that were framed against the Jains and Shri Shukla (in one
case); and were to be framed against Jains and Shri Advani (in the other) pursuant to the
order of the trial Court. Accordingly, we dismiss these appeals keeping this question of law
open. Appeals dismissed.
