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2005 DIGILAW 1821 (RAJ)

Balu Bai v. State of Rajasthan

2005-07-19

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision under Section 397/401 CrPC, is directed against the order dated 04.02.2005 passed by Additional Sessions Judge (Fast Track) No.1, Bikaner (for short the trail Court hereinafter) in Session Case No. 80/2003, whereby the trial Court framed charge against the petitioner for the offence under Section 368, IPC. Aggrieved by the order framing charge, the petitioner has filed the instant revision petition. 2. I have heard learned Counsel for the petitioner and Public Prosecutor for the State. Perused the order impugned and challan papers. 3. It is contended by the learned Counsel for the petitioner that co-accused Rafique, Faiju Khan, Salim and Mahboob were challaned by the police after investigation and tried by the trial Court in Session Case No. 82/1999. Apart from these accused, Sadekhan and Bhurekhan were also challaned and tried by the trial Court. Out of six accused who were put to trial, accused Sadekhan and Bhurekhan were acquitted by the trial Court and remaining were convicted. Against their conviction, remaining four accused persons preferred criminal appeals being S.B. Cr Appeal Nos. 237/2001 and 235/2001 before this Court, which came to be decided on 06.02.2004 and Judgment and order of the trial Court was set aside and the accused, convicted by the trial Court were acquitted. After investigation, police did not file challan against present petitioner. However, six accused persons tried in Session Case No. 82/1999 were challaned. No investigation was kept pending against the present petitioner under Section 173 (8) CrPC. Without there being any fresh material, the police subsequently filed a challan against present petitioner under Section 173 (8), CrPC. After filling of the challan against six accused persons referred above, no fresh material or evidence oral or documentary came in investigation as no investigation was carried out thereafter and without there being any further evidence oral or documentary or fresh material coming in possession of the Investigating Officer or the knowledge of the Investigating Officer, the police filed challan against the present petitioner for the offence under Section 368, IPC. It is further contended that even in the statement of prosecutrix recorded by the trial Court on 27.06.1999, she has not stated that the petitioner knowing that she has been kidnapped, wrongfully concealed or confined her. 4. I have carefully gone through the statement of prosecutrix Kumari Indra @ Indu dated 27.06.1999. It is further contended that even in the statement of prosecutrix recorded by the trial Court on 27.06.1999, she has not stated that the petitioner knowing that she has been kidnapped, wrongfully concealed or confined her. 4. I have carefully gone through the statement of prosecutrix Kumari Indra @ Indu dated 27.06.1999. In whole of her statement, she has not stated that petitioner Balu Bai concealed or confined her knowing well that she has been kidnapped or abducted. However, it appears that subsequently, a supplementary statement was recorded by the police, wherein she made a statement that she was confined. Be that as it may, since the main accused against whom, the allegations of kidnapping and rape as also wrongful confinement were levelled, have been acquitted by this Court, no useful purpose will be served in allowing the proceeding against the present petitioner. In the supplementary statement, no reason has been assigned as to why in her earlier statement; prosecutrix did not state that she was confined knowing well that she has been kidnapped. 5. Learned Counsel for the petitioner has relied on a decision of this Court in Nooruddin & Ors. vs. State of Rajasthan, 1998 (2) RCC 116, wherein this Court held that supplementary charge-sheet cannot be filed under Section 173 (8), CrPC without securing further evidence oral or documentary, in respect of an offence. 6. In the instant case, there appears to be no fresh material or evidence oral or documentary came in possession of or brought to the Investigating Officer and the challan against the present petitioner has been filed only on the basis of material which was available at the time of filling of the challan against six accused persons named above. In this view of the matter, filing of charge-sheet as also the order framing charge cannot sustain. 7. Consequently, revision petition is allowed. The order impugned dated 04.02.2005 framing charge against the petitioner is hereby set aside and proceeding against him is quashed. The stay application stands disposed of .