When “Information” Is Not Evidence:

Economic offence prosecutions often collapse not because the allegation lacks seriousness, but because first principles of criminal law are treated as inconveniences. A recent discharge order passed by the Court of the Ld. ACJM (Special Acts), Tis Hazari Courts, Delhi, is a textbook reminder that information, however sourced, is not evidence and treaties do not dilute the Indian Evidence Act .

The accused was discharged of offences under Sections 276C(1) and 277 of the Income Tax Act, 1961, in a prosecution founded entirely on (i) foreign information received through DTAA channels in a pen drive, and (ii) statements recorded under Section 132(4) of the Act. The order is significant not for its outcome alone, but for the legal discipline it restores.

I. Criminal Prosecution Cannot Outlive Merits-Based Exoneration

The prosecution survived for years despite the fact that the very assessment forming its basis had been set aside on merits by the ITAT and affirmed by the Delhi High Court.

Relying on Radheshyam Kejriwal v. State of West Bengal, the Court reiterated that while adjudication and prosecution are independent, where exoneration is on merits and the allegation itself is found unsustainable, continuation of criminal proceedings is an abuse of process .

Once the additions stood deleted in entirety and the High Court upheld the ITAT’s findings, the criminal complaint based on identical facts lost its legal foundation.

Independence of proceedings does not mean immunity from consequences.

II. Confession Under Section 132(4) Is Not Substantive Proof

The prosecution’s fallback was the alleged admission made by the accused during search proceedings.

The Ld. Trial Court unequivocally held that:

• a confession or retracted confession cannot be the sole basis of prosecution, and

• independent corroboration in material particulars is mandatory.

Relying on recent Supreme Court authority, the Court reiterated that extra judicial confessions are inherently weak evidence and demand strict scrutiny. In the present case:

• no incriminating material was recovered during search, and

• no admissible documentary evidence corroborated the alleged admission.

A confession, without proof, is not evidence but it is merely an assertion awaiting corroboration.

III. Foreign Information Does Not Bypass the Evidence Act

The most consequential part of the order lies in its treatment of foreign-sourced digital material.

The prosecution relied on printouts allegedly derived from a pen drive received from French authorities. The Court found fatal defects:

1. No valid Section 65B certification: The pen drive was never produced; derivative media was relied upon; certificates were issued by persons without lawful custody.

2. Non-compliance with Section 78(6), Indian Evidence Act: Foreign public documents require certification by the legal keeper and authentication by diplomatic or consular authority. None existed.

3. No chain of custody or source verification:

   
   

   Who created the data, how it travelled, and how its integrity was preserved remained unanswered.

Relying on Srichand P. Hinduja v. State (CBI) and Sudhir Engineering Co. v. Nitco Roadways, the Court reaffirmed a basic rule often ignored that marking a document as an exhibit does not amount to proof.

Critically, the Court rejected the argument that DTAA mechanisms override domestic evidentiary law. Treaties may enable exchange of information but they do not amend the Evidence Act unless Parliament says so.

IV. Higher Threshold at the Stage of Charge in Complaint Cases

The Court corrected another frequent misconception: that prima facie satisfaction applies uniformly at the charge stage.

In warrant cases instituted on complaint, Sections 244–245 CrPC require the Court to frame charges only if the pre-charge evidence, if unrebutted, would necessarily result in conviction.

Relying on Suresh Khullar v. Vijay Khullar, the Court held that:

• all foundational documents must already be proved as per law, and

• nothing material can be postponed to the post-charge stage.

Since the prosecution failed to prove even its core documents, discharge was the only legally permissible outcome.

Conclusion

This order quietly but firmly reasserts some foundational truths of criminal law that information, however credible its source, is not evidence; a confession, standing alone, is not proof; and international treaties do not place statutory safeguards in abeyance. In an era where enforcement enthusiasm often runs ahead of evidentiary rigour, the decision is a timely reminder that procedural shortcuts are not prosecutorial strategies rather they are vulnerabilities. For defence practitioners, the reasoning offers a clear roadmap; for prosecuting agencies, it serves as a necessary caution. I have attached the copy of the order for reader's consumption.

Discharge order.pdf

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