The Supreme Court has clarified that statements recorded by the police under Section 161 of the Criminal Procedure Code (CrPC) from an accused person cannot be used to deny bail—either anticipatory or regular—to a co-accused.
“The fundamental principle of criminal law is that a statement of one accused cannot be used against another,” the bench observed.
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The ruling came in a case related to an excise policy scam in Andhra Pradesh involving alleged corruption and losses to the state exchequer. The High Court had denied anticipatory bail, partly based on confessional statements of co-accused recorded under Section 161 CrPC. The Supreme Court, however, strongly disapproved of this approach.
The Court stated that statements under Section 161 CrPC are generally classified as:
- Exculpatory – defending oneself, not admitting guilt
- Inculpatory – admitting guilt, either partially or fully
When such a statement is exculpatory, it has limited value and can only be used to contradict or re-examine the accused if they testify, under Section 145 of the Evidence Act.
When inculpatory, it may be an admission or a confession. However:
“A confession made to police is inadmissible under Section 25 of the Evidence Act unless it also implicates the maker and is proven during trial as per Section 30.”
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This means the confession cannot be used to determine bail for a co-accused, as the rules of admissibility and proof have not been met at the pre-trial stage.
“We are not impressed with the view of the High Court. Such confessions cannot be relied upon at the stage of anticipatory or regular bail,” the Court asserted.
The bench explained that a confession of one accused implicating another is only valid during trial when:
- The confession is relevant under the Evidence Act.
- It is proven against the person who made it.
- It implicates both the maker and the co-accused.
- Both are being tried jointly for the same offence.
“Statements of an accused under Section 161 CrPC... cannot be relied upon against another co-accused. Doing so would violate Sections 17, 21, 25, and 26 of the Evidence Act.”
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Additionally, if an exculpatory statement by one accused implicates another, it still cannot be used against the co-accused unless the maker chooses to testify. Without the ability for cross-examination, such a statement lacks credibility.
“Such exculpatory statements, if not tested by cross-examination, have no evidentiary value against co-accused.”
- Only a witness’s Section 161 statement may be used for forming a prima facie view at bail stage—not that of an accused.
- Courts must verify whether the person making a Section 161 statement is an accused or could later become one.
- If there’s political rivalry, it may be considered by courts in bail hearings, but not as the sole reason to grant bail.
“Political vendetta alone is not enough to grant anticipatory bail. Courts must also examine whether the allegations appear frivolous or baseless.”
Case Title: P KRISHNA MOHAN REDDY VERSUS THE STATE OF ANDHRA PRADESH
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.
