IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION. CIRIMINAL APPEAL NO. 882 OF 2008 The State of Maharashtra .... ..... Appellant V/s Appa @ Prakash Haribhau Londhe & Ors. .. .... Respondents. Dr.F.R.Shaikh, APP for the State. Mr.M.S.Mohite, Adv. For the respondents. CORAM: S.B.MHASE AND R.V.MORE, JJ. 14th November, 2008. PC: This appeal takes exception to the order dated 21.7.2008 passed by the learned Special Judge, MCOC Court, Pune below application at Ex.347 in MCOC Special Case No.6/04 whereby the respondent- accused' s application came to be allowed partly and it was held that the prosecution is not entitled to adduce evidence of P.W.8- Bhujangrao Shinde to the extent of confessional statement of Uttam Hole. 2. Brief facts for the purpose of disposal of the present appeal are as follows: A charge sheet came to be filed before the Special Judge under MCOC Act, Pune on 20.9.04 after completion of investigation initially against two persons viz. Respondent Nos.1 and 2. Thereafter 1 supplementary charge sheet came to be filed against remaining accused on 6.12.04. The learned Special Judge framed charges against the respondents-accused for the offences punishable under sections 3(1)(i), 3(1)(ii), 3(2), 3(4), 3(5) of the MCOC Act. On 1.8.07 one accused by name Uttam Ramchandra Hole expired in Yerawada Central Prison, Pune and therefore his name was deleted from the charge sheet. The respondent-original accused thereafter preferred an application for dropping witness Bhujangrao Shinde. It was submitted by the respondent-accused that witness Bhujangrao Shinde claims to have recorded confessional statements of accused Uttam Hole on 4.9.04 and since Uttam Hole expired on 1.8.07, prior to initiating of trial his alleged confessional statement is inadmissible and the prosecution is not entitled to examine the witness. This application was opposed by the learned Additional Public Prosecutor by making submission that under section 18 of the MCOC Act confessional statement recorded by the police officer is admissible and therefore opportunity cannot be denied to the prosecution to examine the witness and bring real facts on record. It was also submitted that though accused Uttam Hole died, his confessional statement in respect of other accused is still admissible. 3. Learned Special Judge under MCOC Act, Pune, as stated above by his order dated 21.7.08 allowed the application of the respondent- accused partly and held that the prosecution is not entitled to adduce evidence of P.w.8-Bhujagraon Shinde to the extent confessional 2 statement of Uttam Hole. 4. Dr.Shaikh, learned additional public prosecutor submitted that under the provisions of section 18 of the MCOC Act confessional statement recorded by the police officer is admissible. Per contra, learned advocate Mr.Mohite supported the impugned order. Mr.Mohite also relied upon a decision of the Apex Court reported in the case of Esher Singh v. State of Andhra Pradesh, 2004 CRI. L.J. 5021. 5. Having heard the learned counsel for the respective parties and having gone through the impugned order and the ratio of the Apex Court in the aforesaid decision we are of the considered opinion that there is no merit in the appeal. It is true that under section 18 of MCOC Act the police officer is empowered to record confessional statement of the accused. However proviso to that section makes it clear that the confessional statement of the accused are admissible in the trial against himself or co-accused, abettor or conspirator provided that there is joint trial. The issue about the evidenciary value of the confessional statement, maker of which dies before the completion of trial is no more res-integra and is covered by the decision of the Apex Court in Esher Singh' s case (supra). The Apex Court in this case while considering the provisions of section 15 of the Terrorists And Disruptive Activities Act which are pari materia to section 18 of MCOC Act observed as follows: “The use of the expression `charged and tried' in S.15 3 imposes cumulative conditions. Firstly, the two persons who are the accused and the co-accused in the sense used by the Legislature under S.15, must be charged in the same trial and secondly, they must be tried together. Moreover, the question of having a trial before charges are framed does not arise. Therefore, the only interpretation that can be given to the expression `charged and tried' is that the use of a confessional statement against a co-accused is permissible when both the accused making the confessional statement and the co-accused are facing trial after framing of charges. Thus, unless a person who is charged faces trial along with the co-accused the confessional statement of the maker of the confession cannot be of any assistance and has no evidentiary value as confession when he dies before completion of trial. Merely because at some stage there was some accusation, unless charge has been framed and he has faced trial till its completion, the confessional statement if any is of no assistance to the prosecution so far as the co-accused is concerned.” 5. From plain reading of the above observations it is clear that the confessional statement can be used against co-accused only when the accused making confessional statement and the co-accused are facing trial after framing of charges. In the present case there is no joint trial on account of death of Uttam Hole and therefore the evidence of witness Bhujangrao Shinde before whom the confessional statement 4 was recorded is not admissible. The learned Special Judge, in our opinion, has taken the correct view of the matter. Hence we find no reason to interfere. Appeal accordingly stands dismissed. ( R.V. MORE, J.) (S.B. MHASE, J.) 5